Legal Questions for our Verified Lawyers #4

[AZlawyer]

Sorry if this has already been asked. Not had access to a computer recently. I had a sudden thought regarding the appeal on lying. If this Caylees' law goes through and there is a retrial, would this mean there is a possibility this will be enforced if she is proven Guilty a second time and this could cut off her nose to spite her face ? ie she may do more time for this? Thank you

No. First of all, any retrial would only be on the lying convictions. Second, she cannot be retried for anything relating to Caylee's disappearance/murder due to the double jeopardy rule. Third, the law cannot apply retroactively to acts committed before the law took effect.

I may have missed this if it was asked. Was it legal for jb to transport letters between fca and ca? It could not be proven that it happened, but we know it did.

No. It was not legal.

 

[UCAKID]

Sorry if this has been asked; I looked and didn't find. Is there a Son of Sam law in FL? If yes, how could CA write a book about Caylee/Trial if she was convicted of the 4 counts of lying to LE? Since the lies were so central to her being charged, wouldn't a tell-all book have to encompass the lies? Sorry if I'm not being clear, but basically i just can't see a way for CA to write about her experiences without the lying convictions being part of the story, and therefore not eligible for profit? Thanks in advance.

ETA: BTW, if she became a resident of another state, (after probation ends, of course), would FL's Son of Sam law (if exists) determine if she could write a tell-all book ala my scenario above, or does the resident state law determine if such a book can be published for profit?

 

[Desdemona]

<snip>
I wish I had a transcript of CM's part of the closing. I didn't get to watch it. Based on his level of experience, I seriously doubt that he told the jury that the state was REQUIRED to prove any of those things. If he had, JA/LDB would have objected, and HHJP would have put a stop to it. Certainly there would have been nothing wrong with CM pointing out that the state HADN'T proved those things, though.

This is the chart he used.

http://www.cfnews13.com/article/news/2011/july/273314/

However, it wasn't only the chart (which is designed to use psychology to sway jurors against finding guilt), but also the misleading words he used. I was appalled watching it live, and felt that he was improperly instructing the jurors about their job and the legal burden of proof. If he did not state explicitly that all those elements had to be proved for a guilty verdict, he certainly implied it.

I am not a lawyer, and of course this is all water under the bridge. But it really did come across to me as disingenuous and improperly crossing the line. I was very surprised it was allowed by the judge and not objected to by the State, either.

O/T, as I recall he also told the jury that in their deliberations, if they had any doubt in their minds about how to proceed, they should just ask themselves what Cheney Mason would have to say about it.
:doh:

 

[AZlawyer]

Sorry if this has been asked; I looked and didn't find. Is there a Son of Sam law in FL? If yes, how could CA write a book about Caylee/Trial if she was convicted of the 4 counts of lying to LE? Since the lies were so central to her being charged, wouldn't a tell-all book have to encompass the lies? Sorry if I'm not being clear, but basically i just can't see a way for CA to write about her experiences without the lying convictions being part of the story, and therefore not eligible for profit? Thanks in advance.

ETA: BTW, if she became a resident of another state, (after probation ends, of course), would FL's Son of Sam law (if exists) determine if she could write a tell-all book ala my scenario above, or does the resident state law determine if such a book can be published for profit?

Yes, there is a Son of Sam law in Florida, but it only applies to felonies. The only felonies of which Casey was convicted were the check forgery charges relating to Amy. (My "gut feeling" on the second part of your question is that the new state would apply Florida law, but it would take some case law research to be sure that's the correct answer.)

This is the chart he used.

http://www.cfnews13.com/article/news/2011/july/273314/

However, it wasn't only the chart (which is designed to use psychology to sway jurors against finding guilt), but also the misleading words he used. I was appalled watching it live, and felt that he was improperly instructing the jurors about their job and the legal burden of proof. If he did not state explicitly that all those elements had to be proved for a guilty verdict, he certainly implied it.

I am not a lawyer, and of course this is all water under the bridge. But it really did come across to me as disingenuous and improperly crossing the line. I was very surprised it was allowed by the judge and not objected to by the State, either.

O/T, as I recall he also told the jury that in their deliberations, if they had any doubt in their minds about how to proceed, they should just ask themselves what Cheney Mason would have to say about it.
:doh:

Are you talking about the burden of proof chart with "guilty" at the top defined as "guilt beyond a reasonable doubt" and "not guilty" encompassing everything else from a "strong belief" in guilt all the way down to a belief that she was not guilty? That chart was completely legally accurate and totally consistent with the jury instructions.

The attorneys, in closing, are supposed to talk to the jurors about the jury instructions, burden of proof, etc. But, again, if he told the jury that the state was required to prove exactly how and when Caylee died, I would love to see a transcript of that.

 

[Desdemona]

Are you talking about the burden of proof chart with "guilty" at the top defined as "guilt beyond a reasonable doubt" and "not guilty" encompassing everything else from a "strong belief" in guilt all the way down to a belief that she was not guilty? That chart was completely legally accurate and totally consistent with the jury instructions.

The attorneys, in closing, are supposed to talk to the jurors about the jury instructions, burden of proof, etc. But, again, if he told the jury that the state was required to prove exactly how and when Caylee died, I would love to see a transcript of that.

Oh drat. It appears my zeal has caused me to communicate less than clearly. Sorry about that.

Yes, I'm well aware that the defense is supposed to talk about burden of proof, etc. And I did not mean to imply that the chart itself was illegal per se, only extremely leading (and perhaps, as I recall it, used by CM to subtly mislead as he reviewed each step in the ladder). He's an old pro at lawyering and I would imagine an old pro at skating the line as well.

This is the chart:

Without benefit of a transcript or a video to review, my impression as I recall it is that CM spent a long time on this chart, using it for talking points in which he may have "indicated" or "implied" or "insinuated" to the jury that unless the State proved exactly how Caylee died, and other details that could never be known, that their job under the U.S. Constitution was to find her "not guilty."

I recall thinking at the time that using his instructions, no jury anywhere would ever be able to find any defendant guilty unless the defendant had already pled guilty, in which case there wouldn't be a need for a jury. I thought it went too far, but that was merely my unprofessional take on it. I so badly wanted to see Caylee get justice.

I'm sure you are right, and I'm sure neither the judge nor the State would have let CM get away with it if he had stepped over the legal line. Thank you for taking the time to reply, and for all you do at WS.

 

[Horace Finklestein]

How can the Anthonys have a charity and collect money when they aren't doing anything with the charity? I don't understand that. Shouldn't they have to show something for the donations they accept like promoting legislation or the like?

 

[Desdemona]

Following up; I found a video of CM's closing.

(WESH's coverage)
[ame="http://www.youtube.com/watch?v=ANndx586Msk&feature=relmfu"]Defense's Closing: Part 9 - YouTube[/ame]
The bit about the State's burden starts around 4:00.


Some quotes from CM's address to the jury:

No admission on Casey's part that she harmed the child

No motive

The GUESS of this [duct] tape as a murder weapon... how many times did you hear somebody say "could be" "might be"... "in all likelihood"(quoting JA)... Well (raising voice and turning to look at JA while going for his chart) "in all likelihood" DOESN'T QUITE MAKE IT! (Placing chart on stand) Let's talk about what burden of proof really requires and how you can think about it.

"I've got a STRONG belief in her guilt" -- No, no, NO. Not Guilty. Not guilty because the State hasn't PROVEN GUILT.

There are few things in the world that are subject to absolute proof... People can talk about 100% this 100% that... The only thing I know that people are gonna do, 100% are gonna do, is DIE.

That's why we have a system that says the State has to prove beyond a reasonable doubt, EVERYTHING. (pause) And if they fail to do that, then NO MATTER WHAT YOU MAY THINK in this continuum (reading from chart) strong belief, guilt likely... on down the line, your obligation is to say, Wait a minute. They haven't PROVEN it beyond a reasonable doubt. And if they don't prove beyond a reasonable doubt, (pause) Not Guilty. It's not a trick.

[Re testimony about duct tape placement:] ...So we have "in all likelihood" "could have" "in the vicinity" "may have." (pause) THIS is NOT a could have, may have [unintelligible]. THIS is a charge (pause) of MURDER (pause) in the first degree (pause) and serious other charges of aggravated manslaughter and aggravated child abuse...

And I close with this: [he presents a dramatic speech, charging the jury to uphold the system and free his client, then discloses that the speech is not his own; he lifted it from Atticus Finch in To Kill A Mockingbird, making an implied parallel between Finch and himself, and Finch's unjustly accused client and FCA.]

[He ends by telling the jury that the Prosecution will now get another shot at them, and that during that presentation, he must sit silently, unable to interject or correct. He urges the jury as they listen to the Prosecution, when they are uncertain about any point that is made, they are to...]

... ask yourself, "What would Mr. Mason argue about that, or say in response to that?" -- and then YOU do it. And then you do your duty. You LIGHT your candles for the Constitution, and you DO your duty, and you find CMA NOT GUILTY because they have not PROVEN her guilt.

A few of the points that concerned me:

• He plainly states to the jury that JA's reference to the duct tape as "in all likelihood" the murder weapon shows that the State's theory of the murder weapon does not meet the burden of proof BARD. But wait: The State does not have to prove the murder weapon! Right? I guess he's allowed to do this. But I found it misleading.
  
  
• After pointing out that the State didn't introduce any evidence of FCA admitting that she harmed Caylee (lack of confession), and ridiculing the State's suggested motive that Caylee cramped her style (motive not proven), CM introduces the concept of 100%, using the term "subject to absolute proof." He subtly gives the jury the unspoken impression that guilt must be proven 100%, leaving not even a 1% doubt, in order to find her guilty. No, he did not come out and state that she can't be found guilty without solid proof of an admission or a motive (which would have been a lie). But his use of the 100% concept and the term "subject to absolute proof" did strongly imply that the jury must not find her guilty if there is ANY doubt whatsoever. That IMO is a misleading deviation from the definition of guilty BARD.
  
  
• CM also emphatically lectured the jury that the State is required by our system of justice to "prove beyond a reasonable doubt, EVERYTHING." He strongly emphasized the word "everything" and did not qualify that sweeping statement. This was the point where my jaw dropped open and I thought there should have been some kind of remedial clarification made to the jury. Because even though I'm not a lawyer, I know that BARD does NOT mean the State has a burden to prove EVERYTHING.

Obviously JP and the SA would not have let him get away with anything illegal. I just didn't like it, and felt it was improperly misleading.

:frown:

 

[AZlawyer]

How can the Anthonys have a charity and collect money when they aren't doing anything with the charity? I don't understand that. Shouldn't they have to show something for the donations they accept like promoting legislation or the like?

The link I had for the "Caylee Marie Anthony Foundation" doesn't work any more, but IIRC it is/was a 501(c)(3) non-profit.

There is no requirement that a 501(c)(3) be any good at actually doing anything, however, and in fact one of the restrictions is that a 501(c)(3) organization "may not attempt to influence legislation as a substantial part of its activities." http://www.irs.gov/charities/charitable/article/0,,id=96099,00.html (emphasis added).

Following up; I found a video of CM's closing.

(WESH's coverage)
Defense's Closing: Part 9 - YouTube
The bit about the State's burden starts around 4:00.


Some quotes from CM's address to the jury:




A few of the points that concerned me:

• He plainly states to the jury that JA's reference to the duct tape as "in all likelihood" the murder weapon shows that the State's theory of the murder weapon does not meet the burden of proof BARD. But wait: The State does not have to prove the murder weapon! Right? I guess he's allowed to do this. But I found it misleading.
  
  
• After pointing out that the State didn't introduce any evidence of FCA admitting that she harmed Caylee (lack of confession), and ridiculing the State's suggested motive that Caylee cramped her style (motive not proven), CM introduces the concept of 100%, using the term "subject to absolute proof." He subtly gives the jury the unspoken impression that guilt must be proven 100%, leaving not even a 1% doubt, in order to find her guilty. No, he did not come out and state that she can't be found guilty without solid proof of an admission or a motive (which would have been a lie). But his use of the 100% concept and the term "subject to absolute proof" did strongly imply that the jury must not find her guilty if there is ANY doubt whatsoever. That IMO is a misleading deviation from the definition of guilty BARD.
  
  
• CM also emphatically lectured the jury that the State is required by our system of justice to "prove beyond a reasonable doubt, EVERYTHING." He strongly emphasized the word "everything" and did not qualify that sweeping statement. This was the point where my jaw dropped open and I thought there should have been some kind of remedial clarification made to the jury. Because even though I'm not a lawyer, I know that BARD does NOT mean the State has a burden to prove EVERYTHING.

Obviously JP and the SA would not have let him get away with anything illegal. I just didn't like it, and felt it was improperly misleading.

:frown:

Thanks so much for the quotes--I can't watch the video ATM.
I think he did fine and stayed well within the lines based on the quotes and comments above:

(1) The point about the duct tape is that the state had to prove BARD that Caylee was KILLED by Casey. If the duct tape was "most likely" used to kill her, but no other alternative murder weapon is offered as a possibility, that was appropriate to point out to the jury.

(2) What he was saying about 100% is that the State was NOT required to prove guilt 100%. He was saying--look, nothing is 100% except that we're all gonna die. So we have this system where, instead of 100%, the State has to prove guilt "beyond a reasonable doubt."

(3) The State does have to prove "everything" beyond a reasonable doubt. That's why this was such a tough case for murder 1. Now obviously they don't have to prove BARD stuff that they don't have to prove at all...but everything they have to prove has to be proved BARD.

 

[Sleuths4Me]

I'm assuming that HHJP knew about all the evidence that was going to be presented could he have called a mistrial after JB's crazy opening statement?

 

[AZlawyer]

I'm assuming that HHJP knew about all the evidence that was going to be presented could he have called a mistrial after JB's crazy opening statement?

No. As far as HHJP knew, (1) Casey might testify and confirm the ridiculous story, or (2) Jose might have planned to "break" George on the stand and get him to confess.

 

[atthelake]

Oh drat. It appears my zeal has caused me to communicate less than clearly. Sorry about that.

Yes, I'm well aware that the defense is supposed to talk about burden of proof, etc. And I did not mean to imply that the chart itself was illegal per se, only extremely leading (and perhaps, as I recall it, used by CM to subtly mislead as he reviewed each step in the ladder). He's an old pro at lawyering and I would imagine an old pro at skating the line as well.

This is the chart:

Without benefit of a transcript or a video to review, my impression as I recall it is that CM spent a long time on this chart, using it for talking points in which he may have "indicated" or "implied" or "insinuated" to the jury that unless the State proved exactly how Caylee died, and other details that could never be known, that their job under the U.S. Constitution was to find her "not guilty."

I recall thinking at the time that using his instructions, no jury anywhere would ever be able to find any defendant guilty unless the defendant had already pled guilty, in which case there wouldn't be a need for a jury. I thought it went too far, but that was merely my unprofessional take on it. I so badly wanted to see Caylee get justice.

I'm sure you are right, and I'm sure neither the judge nor the State would have let CM get away with it if he had stepped over the legal line. Thank you for taking the time to reply, and for all you do at WS.

AZ/other lawyers here - have you ever seen such a board/chart ANYWHERE that has been done by the prosecution which most of the top is for GUILTY words? Has such been showed to you in any professional meetings that prosecutors have done. It was strong I think for the defense, and just loved <snark> how all were so light colored with the exception of the top red on of guilty, and the dark blue of "strongly believe". Strongly believe I don't think is mutually exclusive of their jury directions which would have allowed for GUILTY! . Do you agree?

But again - they put in all didn't they - as I FIRMLY BELIEVE that all the words used here were obtained from their mock jury test marketing they did - the words perhaps that were found out by the "mock jury trials" that were done and on television in part. Would love to see a professional do one up for the prosecution side - for the FUTURE perhaps if hasn't already been done. :twocents::twocents::twocents:

This to me, I agree, was marketing SPIN for defense and would love to know if others have done for other side. Perhaps we :websleuther: could research for others as THIS, I think, was a BIG BIG DEAL :truce:

OK, I"m going to think on this for a few days, and perhaps others are faster thinker that can do top to bottom for prosecution (But can't do that on this thread!!!!! Have to do on sidebar or such!)

 

[AZlawyer]

AZ/other lawyers here - have you ever seen such a board/chart ANYWHERE that has been done by the prosecution which most of the top is for GUILTY words? Has such been showed to you in any professional meetings that prosecutors have done. It was strong I think for the defense, and just loved <snark> how all were so light colored with the exception of the top red on of guilty, and the dark blue of "strongly believe". Strongly believe I don't think is mutually exclusive of their jury directions which would have allowed for GUILTY! . Do you agree?

But again - they put in all didn't they - as I FIRMLY BELIEVE that all the words used here were obtained from their mock jury test marketing they did - the words perhaps that were found out by the "mock jury trials" that were done and on television in part. Would love to see a professional do one up for the prosecution side - for the FUTURE perhaps if hasn't already been done. :twocents::twocents::twocents:

This to me, I agree, was marketing SPIN for defense and would love to know if others have done for other side. Perhaps we :websleuther: could research for others as THIS, I think, was a BIG BIG DEAL :truce:

OK, I"m going to think on this for a few days, and perhaps others are faster thinker that can do top to bottom for prosecution (But can't do that on this thread!!!!! Have to do on sidebar or such!)

I think the chart was fine. It would be impossible to do one on which most of the words would be "guilty" because that would be inconsistent with the jury instructions. "Strong belief" in guilt is insufficient--the jury would have to find "not guilty" if all they had was a "strong belief."

 

[Pattymarie]

I just posted this on Sidebar and the thought maybe it was better here.
I found this document online. It is a letter to the FBI Federal Prosecuter. Beautifully written. I don't know who wrote it or if its intent is for us to download, sign and send. What do you think?
https://docs.google.com/document/pub...O3_32Ccf34Nyb8

Is this even a legal possibility?

 

[AZlawyer]

I just posted this on Sidebar and the thought maybe it was better here.
I found this document online. It is a letter to the FBI Federal Prosecuter. Beautifully written. I don't know who wrote it or if its intent is for us to download, sign and send. What do you think?
https://docs.google.com/document/pub...O3_32Ccf34Nyb8

Is this even a legal possibility?

https://docs.google.com/document/pub?id=1iOKxxoSME4JXI0llpDW6ZBG16diVHO3_32Ccf34Nyb8&pli=1

Your link was broken for me, but I got it from your post in the other thread. 42 U.S.C. § 5106g is no good--that's not a criminal statute, just a statute about giving federal money to the states to deal with certain problems.

As for 18 U.S.C. § 1001 (lying to federal officer), they might be able to get her on that one if she did indeed say to Nick Savage (as the letter writer says) "I know that she is alive." Statute of limitations would expire 10/14/13; max. prison time 5 years. But in context her statement really seems to be "I feel in my gut she's alive," so the feds might be leery of prosecuting if they have to prove what she was feeling in her gut.

 

[jon_burrows]

Hypothetical question:

If the jury looked at the picture of Caylee touching the handle to the sliding glass door and had suspicions of it being altered, could they have asked if it was a snapshot from a video? Assuming the answer was yes, could they have asked to view the video?

IMO

 

[ZsaZsa]

https://docs.google.com/document/pub?id=1iOKxxoSME4JXI0llpDW6ZBG16diVHO3_32Ccf34Nyb8&pli=1

Your link was broken for me, but I got it from your post in the other thread. 42 U.S.C. § 5106g is no good--that's not a criminal statute, just a statute about giving federal money to the states to deal with certain problems.

As for 18 U.S.C. § 1001 (lying to federal officer), they might be able to get her on that one if she did indeed say to Nick Savage (as the letter writer says) "I know that she is alive." Statute of limitations would expire 10/14/13; max. prison time 5 years. But in context her statement really seems to be "I feel in my gut she's alive," so the feds might be leery of prosecuting if they have to prove what she was feeling in her gut.

This video shows her saying "I still have that feeling, I know she's alive" starting at 6.03, to the FBI agent..

[ame="http://www.youtube.com/watch?v=1WAKNI4b6x8"]The Death of Caylee Anthony, pt. 14 - YouTube[/ame]

Whether they could split hairs and claim she only "felt" Caylee was alive, she is not telling the truth. According to her claim in court, Caylee was dead and she absolutely knew it.

 

[AZlawyer]

Hypothetical question:

If the jury looked at the picture of Caylee touching the handle to the sliding glass door and had suspicions of it being altered, could they have asked if it was a snapshot from a video? Assuming the answer was yes, could they have asked to view the video?

IMO

I suppose they could have asked, but no one had disclosed or marked the video as evidence, so I can't imagine it would have been admitted.

 

[AZlawyer]

This video shows her saying "I still have that feeling, I know she's alive" starting at 6.03, to the FBI agent..

The Death of Caylee Anthony, pt. 14 - YouTube

Whether they could split hairs and claim she only "felt" Caylee was alive, she is not telling the truth. According to her claim in court, Caylee was dead and she absolutely knew it.

I don't want to argue too hard for the defense side here, just in case the Feds decide to go for it. Let's just say the case isn't as slam-dunk as it might appear, but hey, if they want to charge her with lying to the FBI, I will enjoy it while it lasts.

 

[Tulessa]

AZ, I just had to tell you how much you have gotten me to understand that I would NEVER have understood. Thank you so Much and sorry all for the O/T.

ETA! Re reading that, it males no sense! I just hope you get what I am trying to say. My nerves are rattled with MY Brother's trial coming up.

 

[LambChop]

AZ, I just had to tell you how much you have gotten me to understand that I would NEVER have understood. Thank you so Much and sorry all for the O/T.

ETA! Re reading that, it males no sense! I just hope you get what I am trying to say. My nerves are rattled with MY Brother's trial coming up.

Ditto on the thanks, too. Thanks AZ and many, many thanks. Can't tell you enough. lol