Legal Questions for our Verified Lawyers #4

[rossva]

Could Perry just not rule? Keep reserving not to decide?


"At that time, Perry reserved ruling on whether or not Ashton should be held in contempt, the motion said."


http://articles.orlandosentinel.com/...ny-depositions

 

[AZlawyer]

Could Perry just not rule? Keep reserving not to decide?


"At that time, Perry reserved ruling on whether or not Ashton should be held in contempt, the motion said."


http://articles.orlandosentinel.com/...ny-depositions

Sure, but I think he reserved ruling back then because there were a lot of really important things going on in the case and he didn't want to get sidetracked. This time, IMO, he will rule one way or the other.

 

[Tulessa]

So there's this new motion by Mason where he's asking Ashton to explain why he shouldn't be held in contempt because he talked about the sealed depostions from his notes and memory only and which he got permission to do (which apparently Mason missed somehow). Could Ashton actually held in contempt with the case being over? I don't think that will actually happen, but I was just wondering if that is legally possible when there is no ongoing criminal case against Casey anymore. I wouldn't think he could possibly be held in contempt for any of the civil cases, right?

BBM. Why do people keep forgetting this?

 

[AZlawyer]

BBM. Why do people keep forgetting this?

Not sure if this was meant for the legal questions thread. But IMO it is not a matter of "forgetting" so much as not knowing. IIRC whatever HHJP said to Ashton about this was said in a sidebar for which we never saw a transcript, and I don't believe even Ashton himself ever said he got permission from HHJP to use his notes and memories. I believe he said he was confident it was OK to use his notes and memories.

 

[RR0004]

Not sure if this was meant for the legal questions thread. But IMO it is not a matter of "forgetting" so much as not knowing. IIRC whatever HHJP said to Ashton about this was said in a sidebar for which we never saw a transcript, and I don't believe even Ashton himself ever said he got permission from HHJP to use his notes and memories. I believe he said he was confident it was OK to use his notes and memories.

IIRC...and the book signing was a ways back...he said the Judge "said" he could use his notes and his recollections. Again, this is not JP speaking so what JA said (and I believe he has repeated that) is just that...his word(s).

ETA: oops, AZ...forgot where I was.

 

[RR0004]

http://www.cfnews13.com/article/new...ll-not-have-to-answer-questions-in-civil-case

AZ- in light of the judge's ruling, ZG's attorneys will ask for a summary judgement. Are they looking for the interpretation of the law behind the ruling? Or are they asking for a judgement in the case? I can't seem to get it to jive with what I read here because aren't all the "material facts" being disputed? Or does Casey's pleading the 5th support the issue that the facts aren't in dispute?
http://www.techlawjournal.com/glossary/legal/summary.htm

TIA

 

[rossva]

How would one prove, or disprove whether or not the details came directly from sealed documents, or from memory and notes? Wouldn't notes about a sealed document be sealed along with the document? If not, what would prevent some one from copying the entire document into their notes before it was sealed? Will this come down to "his word under oath?'


"Defense attorneys for Casey Anthony want former prosecutor Jeff Ashton to explain why he should not be held in contempt of court for including information from sealed depositions in his recently-released book about the case.

Anthony's defense attorney, Cheney Mason, filed the motion Wednesday. It asks Chief Judge Belvin Perry to compel Ashton to appear and tell the judge why he should not face contempt charges.

Ashton revealed details from those depositions in his book, but has said he was relying on his memory and notes to reference the material."

http://articles.orlandosentinel.com..._danziger-and-weitz-casey-anthony-depositions

 

[AZlawyer]

http://www.cfnews13.com/article/new...ll-not-have-to-answer-questions-in-civil-case

AZ- in light of the judge's ruling, ZG's attorneys will ask for a summary judgement. Are they looking for the interpretation of the law behind the ruling? Or are they asking for a judgement in the case? I can't seem to get it to jive with what I read here because aren't all the "material facts" being disputed? Or does Casey's pleading the 5th support the issue that the facts aren't in dispute?
http://www.techlawjournal.com/glossary/legal/summary.htm

TIA

They are planning to ask for judgment in the case. According to the article, the summary judgment request will have nothing to do with the 5th Amendment ruling, but rather with "statements Casey made in jail to her mother about our client [ZG]." I guess this is the statement Casey made to her mother that she had not cleared the ZG in Kissimmee. I don't think that statement gets ZG anywhere near summary judgment, but I will wait to see the motion.

How would one prove, or disprove whether or not the details came directly from sealed documents, or from memory and notes? Wouldn't notes about a sealed document be sealed along with the document? If not, what would prevent some one from copying the entire document into their notes before it was sealed? Will this come down to "his word under oath?'


"Defense attorneys for Casey Anthony want former prosecutor Jeff Ashton to explain why he should not be held in contempt of court for including information from sealed depositions in his recently-released book about the case.

Anthony's defense attorney, Cheney Mason, filed the motion Wednesday. It asks Chief Judge Belvin Perry to compel Ashton to appear and tell the judge why he should not face contempt charges.

Ashton revealed details from those depositions in his book, but has said he was relying on his memory and notes to reference the material."

http://articles.orlandosentinel.com..._danziger-and-weitz-casey-anthony-depositions

First of all, it is an open question whether or not Ashton was permitted to rely on his memory and notes. Something was apparently said at a sidebar on this subject, but we don't know what. Personally, I would interpret an order sealing a document to mean that I could not tell anyone what the document said without court permission. However, (1) I have not researched Florida law on this issue (or Arizona law for that matter) and (2) if Ashton said that HHJP specifically gave him permission to use his memory and notes, I am inclined to believe him over Mason. Just my own inclination. But I haven't seen any direct source that Ashton said this.

Attorney notes about a deposition would never be sealed and in fact would never be in the court's possession. Certainly there is no question that Ashton could keep and use his own notes. The question is whether he could tell the rest of the world what happened in those depositions, based on his memory and/or notes. If this was, in fact, permitted by HHJP, I strongly doubt that there will be a hearing to find out whether Ashton used the deposition transcripts instead of his notes. As you say, it would be close to impossible to prove one way or the other.

My concern is that HHJP might have said something at the sidebar like, "You may use your memory and notes to communicate with your own expert / consultant/ etc. as needed to prepare for trial, but may not show the actual transcripts to those people." Pure speculation on my part, but I could imagine him saying something like this. If a judge said something like that to me, I sure would not assume I could use my memory and notes to communicate with persons not involved in trial prep about the contents of the sealed documents.

Again, we just don't have enough information at this point to know the answer.

 

[Katprint]

They are planning to ask for judgment in the case. According to the article, the summary judgment request will have nothing to do with the 5th Amendment ruling, but rather with "statements Casey made in jail to her mother about our client [ZG]." I guess this is the statement Casey made to her mother that she had not cleared the ZG in Kissimmee. I don't think that statement gets ZG anywhere near summary judgment, but I will wait to see the motion.

Not disagreeing, particularly before we see the motion, but a somewhat different viewpoint coming from a different brain:

The number of women named Zenaida Gonzalez (or Zenaida Fernandez, or Zenaida Fernandez Gonzalez) in the Kissimmee area, who were in any way associated with the apartment complex in question, who owned vehicle like hers or were otherwise similar to the ZFG described by Casey, is very small. IMO it is a small enough number to establish innuendo defamation via the general exception to "group libel" where the group consists of 25 or fewer people.

First of all, it is an open question whether or not Ashton was permitted to rely on his memory and notes. Something was apparently said at a sidebar on this subject, but we don't know what. Personally, I would interpret an order sealing a document to mean that I could not tell anyone what the document said without court permission. However, (1) I have not researched Florida law on this issue (or Arizona law for that matter) and (2) if Ashton said that HHJP specifically gave him permission to use his memory and notes, I am inclined to believe him over Mason. Just my own inclination. But I haven't seen any direct source that Ashton said this.

Attorney notes about a deposition would never be sealed and in fact would never be in the court's possession. Certainly there is no question that Ashton could keep and use his own notes. The question is whether he could tell the rest of the world what happened in those depositions, based on his memory and/or notes. If this was, in fact, permitted by HHJP, I strongly doubt that there will be a hearing to find out whether Ashton used the deposition transcripts instead of his notes. As you say, it would be close to impossible to prove one way or the other.

My concern is that HHJP might have said something at the sidebar like, "You may use your memory and notes to communicate with your own expert / consultant/ etc. as needed to prepare for trial, but may not show the actual transcripts to those people." Pure speculation on my part, but I could imagine him saying something like this. If a judge said something like that to me, I sure would not assume I could use my memory and notes to communicate with persons not involved in trial prep about the contents of the sealed documents.

Again, we just don't have enough information at this point to know the answer.

IMO, the prosecutors are not entitled to publish statutorily privileged information that was disclosed pursuant to the rules of discovery and which the court ordered could be revealed to other (privileged) attorney consultants but not to the general public. Psychological examinations, evaluations, treatment, etc. are statutorily privileged per state law as well as federal law. I don't see the argument of "well, I only disclosed what I remembered reading in the records and hearing at the psych depositions, but not the records/deposition transcripts" as a winning argument. If something is privileged or sealed, then it is still NOT OK for someone to read those records or attend the hearing then describe what was said.

Katprint
Always only my own opinions

 

[AZlawyer]

Not disagreeing, particularly before we see the motion, but a somewhat different viewpoint coming from a different brain:

The number of women named Zenaida Gonzalez (or Zenaida Fernandez, or Zenaida Fernandez Gonzalez) in the Kissimmee area, who were in any way associated with the apartment complex in question, who owned vehicle like hers or were otherwise similar to the ZFG described by Casey, is very small. IMO it is a small enough number to establish innuendo defamation via the general exception to "group libel" where the group consists of 25 or fewer people.

IMO, the prosecutors are not entitled to publish statutorily privileged information that was disclosed pursuant to the rules of discovery and which the court ordered could be revealed to other (privileged) attorney consultants but not to the general public. Psychological examinations, evaluations, treatment, etc. are statutorily privileged per state law as well as federal law. I don't see the argument of "well, I only disclosed what I remembered reading in the records and hearing at the psych depositions, but not the records/deposition transcripts" as a winning argument. If something is privileged or sealed, then it is still NOT OK for someone to read those records or attend the hearing then describe what was said.

Katprint
Always only my own opinions

I wasn't saying that the identity couldn't be established--I was thinking of the other elements. Is it an intentional publication that results in damage to tell your mother something in a jail visit that, at the time, you don't know will be played for the world? I'm still thinking that one over. (Incidentally, I don't think ZG actually had a vehicle similar to anything described by Casey.)

I agree with your analysis about privileged or sealed docs. I hope Ashton got very specific permissions from HHJP at that sidebar and has not misremembered anything.

 

[Justin Tyme]

Being that FCA is deemed to be indigent, does she qualify for welfare and food stamps and free or reduced medical? Would she also qualify for emergency housing and monies to pay for said housing and utilities, etc.? Does she qualify under other type programs such as reeducating or job training programs due to her status of being unemployable? In other words: Does she qualify under any special emergency relief due to her status or is she like any other ex-inmate, she must fend for herself?

 

[AZlawyer]

Being that FCA is deemed to be indigent, does she qualify for welfare and food stamps and free or reduced medical? Would she also qualify for emergency housing and monies to pay for said housing and utilities, etc.? Does she qualify under other type programs such as reeducating or job training programs due to her status of being unemployable? In other words: Does she qualify under any special emergency relief due to her status or is she like any other ex-inmate, she must fend for herself?

The requirements for qualifying for food stamps, etc., are completely different from the requirements for being found "indigent" for purposes of a court case. There is no way to use a court's finding of indigency to get any other benefit whatsoever. She would have to apply for assistance programs just like anyone else.

 

[Katprint]

I wasn't saying that the identity couldn't be established--I was thinking of the other elements. Is it an intentional publication that results in damage to tell your mother something in a jail visit that, at the time, you don't know will be played for the world? I'm still thinking that one over. (Incidentally, I don't think ZG actually had a vehicle similar to anything described by Casey.)

I don't think the intent element requires intent that the initial defamation be re-published. I also think that with regard to the identity of a kidnapper of a missing-child, the widespread re-publication of the defamatory mis-identification is reasonably foreseeable. By contrast, when the incident happened where Casey's neighbor confronted Casey about Casey letting her dog poop on the neighbor's lawn, if Casey falsely told the neighbor that ZFG's dog did that poop, then there would be less foreseeability of re-publication in the national media, which Casey was definitely informed of by Cindy during multiple jail conversations.

General damages for defamation per se are presumed for falsely being accused of a crime (kidnapping) but would not be presumed for falsely being accused of failing to clean up after a dog. Even if ZG cannot prove up her loss of income / being rejected for housing / other special damages, she would be entitled to presumed damages.

Additionally, there are punitive damages for Casey's intentional lies. This is no mere negligent misrepresentation where Casey was mistaken about some facts. I'm expecting Morgan to argue that punitive damages should be, at a minimum, at least as much money as we know Casey made off the case even if she chose to pay that money to Baez. I am hoping for some fascinating post-judgment financial discovery into what book/movie/TV/other media deals Casey has going on. There's that Scott Sternberg TV producer in Los Angeles who is shopping Casey's story around for $500,000 to $750,000. If ZFG can get a nice, fat judgment, I can recommend some good collection attorneys in California who can attach monies owed to Casey which might be present in California.

Katprint
Always only my own opinions

 

[bayouland]

Good morning,

I am just wondering if the rumors regarding FCA getting an early release from probation are realistic. Thanks in advance for your time.

What criteria has to be met in order to obtain an early release from probation in Florida?

Is this the decision of the FDOC, or, does it have to be approved by a Judge?

If it has to be approved in court, would she be able to request consideration from whatever county she resides in, or would it go back to Orange County for consideration?

 

[Aedrys]

All the stuff that's come out - the video, video clip, and pictures; Casey possibly lying about her computer being hacked; and Casey's possible association with a convicted felon, could any of this stuff count as a violation of her probation? And what will this do to her civil cases? I know she still has the 5th because of her appeal, but could this affect her civil cases in other ways? Surely now no one will believe she's in fear for her life? I just don't know how that affects her civil cases, though. I guess I just want to know if she's going to suffer any type of consequences or will she end up getting off probation early like she wants to and it won't affect her civil cases at all?

 

[Horace Finklestein]

This is a question related to Aedrys' comment - can a probation officer basically decide that one of their "people" is goofing around/causing trouble/stirring the pot/misbehaving,etc as FCA clearly is (where is she getting money, why is she not working, etc), and violate the probation based on that? Or do they have to have a specific reason like testing positive for drugs, etc? (We already know she lied several times, stating she hadn't used drugs or alcohol - after she was seen drinking a Corona on Todd Macaluso's private jet).

 

[Katprint]

Good morning,

I am just wondering if the rumors regarding FCA getting an early release from probation are realistic. Thanks in advance for your time.

What criteria has to be met in order to obtain an early release from probation in Florida?

Is this the decision of the FDOC, or, does it have to be approved by a Judge?

If it has to be approved in court, would she be able to request consideration from whatever county she resides in, or would it go back to Orange County for consideration?

I don't practice in Florida, but I would expect early release from probation would require Casey to have met all the conditions of her probation including paying restitution to the state of $200,000+. I would expect probation could even be extended until she pays up especially if the state presents evidence that Casey was getting money - for example, the video where she says she bought her computer with her own money or perhaps if TV producer Scott Sternberg succeeds in selling Casey's story for $500,000 to $750,000 - but Casey didn't send a single dollar to the state towards the restitution she was ordered to pay.

Katprint
Always only my own opinions

 

[AZlawyer]

All the stuff that's come out - the video, video clip, and pictures; Casey possibly lying about her computer being hacked; and Casey's possible association with a convicted felon, could any of this stuff count as a violation of her probation? And what will this do to her civil cases? I know she still has the 5th because of her appeal, but could this affect her civil cases in other ways? Surely now no one will believe she's in fear for her life? I just don't know how that affects her civil cases, though. I guess I just want to know if she's going to suffer any type of consequences or will she end up getting off probation early like she wants to and it won't affect her civil cases at all?

This is a question related to Aedrys' comment - can a probation officer basically decide that one of their "people" is goofing around/causing trouble/stirring the pot/misbehaving,etc as FCA clearly is (where is she getting money, why is she not working, etc), and violate the probation based on that? Or do they have to have a specific reason like testing positive for drugs, etc? (We already know she lied several times, stating she hadn't used drugs or alcohol - after she was seen drinking a Corona on Todd Macaluso's private jet).

The terms of Casey's probation can be reviewed at this link: http://www.examiner.com/crime-in-tampa-bay/read-casey-anthony-probation-orders-watch-jose-baez-interivew-probation-statement-on-casey-anthony-video-1. She would have to actually violate one of the terms of her probation before her P.O. could "violate" her probation.

As for the alcohol use, I'm sure Casey is only required to say that she hasn't drunk alochol "to the extent that her normal faculties were impaired"--as required by her probation order--not that she hasn't drunk alcohol at all.

She does have to convince her P.O. that she is employed to the best of her ability--which he might question at some point.

She is required not to associate with persons "engaged" in criminal activity--which would not include ALL convicted felons but only those who are unreformed.

As far as the civil cases, I think the only effect will be that Morgan et al might be allowed to release the video depo, as Casey's "disguise" is no longer secret--unless Casey's lawyers can convince the judge that the video diary really was released by a "hacker."

 

[Katprint]

Many thanks to AZlawyer for posting the link to Casey's actual probation order.

I was particularly interested in these parts:

"5) You will live and remain at liberty without violating any law. A conviction in a court of law shall not be necessary in order for such a violation to constitute a violation of your probation.
...
12) The Court retains jurisdiction to place you in the Probation and Restitution Center upon recommendation of your Probation Officer without finding of violation of probation.
...
You are hereby placed on notice that the court may at any time rescind or modify any of the conditions of your probation, or extend the period of probation as authorized by law, or may discharge you from further supervision; and that if you violate any of the conditions of your probation, you may be arrested and the Court may revoke your probation and impose any sentence which it might have imposed before placing you on probation."

We know that the IRS has taken certain actions which give rise to the reasonable inference that Casey failed to pay taxes on the first $250,000+ she got from selling the pictures and videos of Caylee. If Casey doesn't make some effort to negotiate a resolution of this indebtedness and the IRS takes the further step of prosecuting Casey for willfull income tax evasion (a felony), IMO she can expect to have her probation revoked.

Similarly, if Casey has the means to begin paying her court-ordered restitution on the false statements convictions but willfully fails to pay what she can afford to per the various sliding scales used by the courts or to set up any kind of payment plan, IMO this may constitute unlawful contempt of the court's order. Consequently, this may result in a violation of her probation even though Casey paid restitution for the fraud/theft/forgery convictions for which she is on probation and the contempt would be based on the failure to pay restitution for completely different convictions.

Bottom line is, she may not get hauled back into jail for failing to pay the $200,000+ restitution, but I don't see her probation ending early unless that gets paid off. Plus, she needs to deal with her income tax issues.

Katprint
Always only my own opinions

 

[Gypsy Road]

This may be a small thing in the scope of things, but by Casey's own admission in the video diary - she admits to purchasing her own computer. From my understanding she told the parole office that she couldn't afford to pay the monthly fee for her parole officer visits. Even if the money used to buy the computer was a gift to her, isn't she obligated to pay her bills before she starts paying "luxury" items for herself? Will the parole people even care that she's not paying them?