Procedure and legal questions

[Wudge]

Apparently, what the defense would like to continue to do is stonewall (not ask for a speedy trial), complain (after fighting against a gag order that would have kept all of this information out of the public), blame (LE/SA/FBI/JS/TES/LP etc...anyone other than KC) and deny deny deny...All the defense had to do from day one...was to allow the prosecution's request for a gag order. Wow. I just wow. But they are more content to allege some conspiracy, during this economy that all the SA/LE etc...want to do is frame KC (while wasting precious tax payer dollars) when clearly, the state barely regarded her as blip on any radar before Caylee was killed.

If a client of yours should ever end-up being demonized by the media (cat is long out of the bag) in a high-profile case, the first thing you do is change the topic. Distraction favors your client, not the prosecution. As regards, "deny, deny deny", that does not help the prosecution either.

Pre-trial, take whatever actions favor your client. During motions-in-limine, execute a scorthed-earth policy. In voir dire, your horse-picking skills will be most critical, find as many ears as possible that will likely be open to your best evidence and argument (lack of evidence that proves premeditation in this case). Finally, be persuasive. All great trial attorneys win cases that others would lose.


(May God watch over you as you progress through your chemo treatments. Best of luck in your career. Do good.)

 

[Ripley007]

It was a very high bond for the charges and her lack of a criminal record.
I think JS may have let his conscious guide him when he set her bond. I don't think he failed to follow the law when he did this. Is it ethical for him to follow his conscious when making decisions as long as it's within the scope of the law? He is the judge and has to judge things. Or, does he have to rule as a jury does and not let any emotions influence his decisions?

Incidently, his ruling at the bond hearing doesn't in any way make me question his credibility or motives. The reason I asked the question above is because many times, a judge will follow the law to the letter while ignoring his common sense, i.e. child abuse case where his decision, while following the law, failed to use common sense and a child suffered as a result.

Hope I don't sound too ignorant, but I thought a Judge followed the law to the letter UNTIL sentencing time. That's when his/her own personal opinions/feelings (common sense) were allowed to come into play.

 

[Marina2]

Hope I don't sound too ignorant, but I thought a Judge followed the law to the letter UNTIL sentencing time. That's when his/her own personal opinions/feelings (common sense) were allowed to come into play.

I don't know either Ripley. I asked in all seriousness.

I guess that something such as the bond hearing would allow him some leeway to use his conscious when making a ruling. He followed the law but his conscious wouldn't let him set a smaller amount than he did? Or, did he give her a higher bond than the law allowed based on his emotions or from using common sense? I don't know.

The child abuse cases I referred to in my post probably were done during sentencing. The judge gives a very light sentence instead of using his common sense and a child predator goes free to harm again and again, etc.

 

[Marina2]

IMHO, Judge Strickland used his common sense in this case and the appellate ruling backed him up. He said that "the truth and Ms. Anthony are strangers." The blatent lying Casey started with was the best reason to keep her on the high bond. She was not trustworthy... she still isn't.

Thanks CarolinaMoon. That's what I get for reading the thread from the bottom-up. I had forgotten that it was taken to a higher court and the judge's ruling was affirmed.

 

[CentralFLMama]

I apologize if this has been asked - I have not read the whole thread - does anyone know the next time Casey is due in court and what it is for? Does that information get posted on an online schedule anywhere?

 

[MADJGNLAW]

Brad just said that Baez gives the Anthony's mail from Casey that is how they communicate, he almost slipped. I felt when asked when was the last time they saw Casey he was going to say something other, then he shifted to the letter part. I thought that was against the law or conflict of interest? So what BC is saying is that Baez will take mail/letters from jail, from Casey to give to the Anthony's? Could they also be doing private video visitation per computer? It was said a while back that Baez can take his laptop in the jail and use some type of card that would allow him access to the INTERNET, maybe he lets Casey use it as well?

REPORT: Anthonys' Attorney Speaks Out On Morning Show
http://www.wftv.com/video/19823838/index.html

 

[TakeNote]

I noticed this on the Criminal Case Docket Updated!

6/19/2009---A---DEFENDANT NOT PRESENT what is this?

was this because JB spoke up in court the day BC was there with the A's to get the autopsy report restricted?? since JB spoke in court for the defense....does that make it that Casey should have been there? even though the judge said she didn't have to be, because it was only for Conway and the A's as a courtesy?

6/19/2009---A---MOTION TO RESTRICT DISCLOSURE OF THE AUTOPSY REPORT AND FINDINGS IS HEREBY DENIED. DEFENSE MOTION FOR A 48 HOUR STAY IS HEREBY DENIED.

 

[Themis]

I noticed this on the Criminal Case Docket Updated!

6/19/2009---A---DEFENDANT NOT PRESENT what is this?

was this because JB spoke up in court the day BC was there with the A's to get the autopsy report restricted?? since JB spoke in court for the defense....does that make it that Casey should have been there? even though the judge said she didn't have to be, because it was only for Conway and the A's as a courtesy?

6/19/2009---A---MOTION TO RESTRICT DISCLOSURE OF THE AUTOPSY REPORT AND FINDINGS IS HEREBY DENIED. DEFENSE MOTION FOR A 48 HOUR STAY IS HEREBY DENIED.

No. She didn't have to be there for a motion that was brought by her parents. The fact that the Court's minutes show the presence or absence of each of the parties and their counsel is just a ministerial act. It does not mean anything one way or another regarding any obligation to be present.

 

[Themis]

I know you said you were only concerened with judges' use of the term inflammatory.Why are you not concerned with JB using the same term in his motion? The judge appears to be answering ,or reflecting exactly what the defense asked for.
If KC's own lawyer can use that term publically,referring to the tape,why can't the judge?
Do you think it was inappropriate for KC's own lawyer to use the term?
What else should JB have said?

The term "inflammatory" was absolutely necessary to discuss the issue because it is the standard or yardstick by which the admissibility of the evidence is measured.

 

[Themis]

http://www.wftv.com/pdf/19803207/detail.html

Sorry to put this here but, just found this link to Morgan & Morgan response to PI Dominic Motion to Strike Plaintiffs Motion for Contempt, Motion for Protective Order, and Motion for Attorney's Fees.

Holy schnikies, it's pretty dang good read.

Now how do I find the Motion that this is in answer too?


ETA!!! Here is a WS link with the pdf for the first Motion:

Websleuths Crime Sleuthing Community - View Single Post - Hoover & D. Casey Depos in Gonzales Case


Searchfortruth, I love you forever!

You can't find the Opposition from Dominic because it hasn't been written and filed yet. This motion was just served on June 19th and Dominic will have time to answer it according to Florida rules of civil procedure -- look for the opposition in about 3 to 4 weeks.

 

[impatientredhead]

Brad just said that Baez gives the Anthony's mail from Casey that is how they communicate, he almost slipped. I felt when asked when was the last time they saw Casey he was going to say something other, then he shifted to the letter part. I thought that was against the law or conflict of interest? So what BC is saying is that Baez will take mail/letters from jail, from Casey to give to the Anthony's? Could they also be doing private video visitation per computer? It was said a while back that Baez can take his laptop in the jail and use some type of card that would allow him access to the INTERNET, maybe he lets Casey use it as well?

Under the umbrella of working on her defense, yes he could bring documents in that Cindy or George authored, and have her review them. She can't tuck them in a pocket and take them back to her cell since they didn't come in through the search process. If you or I sent JB a letter he could take in with him for her to review and comment on.

 

[impatientredhead]

http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/BDFE1551AD291A3F85256B29004BF892/$FILE/Criminal.pdf?OpenElement

Criminal Procedure Rules for Florida- 3.140 Indictments

Page 52, Paragraph 6

To put an end to the debate about whether the indictment allows for a charge of "felony murder" (versus the dreaded premeditated requirement). For an offense divided into degrees it is sufficient to charge the commission of the offense without specifying the degree.

Charged under [SIZE=-1]782.04 Murder [/SIZE]

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=Ch0782/SEC04.HTM

They cannot make changes to the indictment that would impair her defense but she is on notice that they are going after a first degree (though they could go second or third degree if they chose to), seeking the death penalty, and they have included an indictment for aggravated child abuse. Seeking a "felony murder" due to death of the victim during the commission of aggravated child abuse would not effect Casey's defense as she has been indicted and charged with aggravated child abuse.

In other words they could not have left the manslaughter charge off the indictment, gone forward with murder and aggravated child abuse, let her build her defense around a drowning accident and then tell the jury they can find her guilty of manslaughter.

They have covered premeditated, aggravated abuse/rage and manslaughter/accident.

 

[Wudge]

http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/BDFE1551AD291A3F85256B29004BF892/$FILE/Criminal.pdf?OpenElement

Criminal Procedure Rules for Florida- 3.140 Indictments

Page 52, Paragraph 6

To put an end to the debate about whether the indictment allows for a charge of "felony murder" (versus the dreaded premeditated requirement). For an offense divided into degrees it is sufficient to charge the commission of the offense without specifying the degree.

Charged under [SIZE=-1]782.04 Murder [/SIZE]

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=Ch0782/SEC04.HTM

They cannot make changes to the indictment that would impair her defense but she is on notice that they are going after a first degree (though they could go second or third degree if they chose to), seeking the death penalty, and they have included an indictment for aggravated child abuse. Seeking a "felony murder" due to death of the victim during the commission of aggravated child abuse would not effect Casey's defense as she has been indicted and charged with aggravated child abuse.

In other words they could not have left the manslaughter charge off the indictment, gone forward with murder and aggravated child abuse, let her build her defense around a drowning accident and then tell the jury they can find her guilty of manslaughter.

They have covered premeditated, aggravated abuse/rage and manslaughter/accident.

Casey has not been charged with felony murder. Moreover, felony murder is not a lesser charge of aggravated child abuse or murder one. If a charge of felony murder is not added to the indictment prior to the start of the trial, the jury will not be instructed on it.

 

[Devon]

Casey has not been charged with felony murder. Moreover, felony murder is not a lesser charge of aggravated child abuse or murder one. If a charge of felony murder is not added to the indictment prior to the start of the trial, the jury will not be instructed on it.

Wudge, looking at FL statute 782.04 here:
http://www.leg.state.fl.us/STATUTES....HTM&Title=->2008->Ch0782->Section 04#0782.04

782.04(1)(a) appears to cover 3 categories of First Degree (capital) Murder. Category 782.04(1)(a)(2) appears to be the felony murder one and KC is only charged under 782.04(1)(a)(1) - Premeditated Murder. Is that correct?

 

[Wudge]

Wudge, looking at FL statute 782.04 here:
http://www.leg.state.fl.us/STATUTES....HTM&Title=->2008->Ch0782->Section 04#0782.04

782.04(1)(a) appears to cover 3 categories of First Degree (capital) Murder. Category 782.04(1)(a)(2) appears to be the felony murder one and KC is only charged under 782.04(1)(a)(1) - Premeditated Murder. Is that correct?

Correct. Casey has been indicted on a murder one charge (premeditated murder). She's not been indicted on a felony murder charge. Also correct is that 782.04 is the controlling Florida statue.

 

[Devon]

Correct. Casey has been indicted on a murder one charge (premeditated murder). She's not been indicted on a felony murder charge. Also correct is that 782.04 is the controlling Florida statue.

Thank you.

 

[impatientredhead]

Time will tell what the jury instructions are but if you look up Florida case law there are many cases relevant to this discussion. In every case that the the defendant was informed of the states intent to demonstrate aggravating factors (which they have done in this case) the jury was permitted to consider other charges under the same statute AND they did not even have to be unanimous amongst themselves as to whether they were coming back with first degree murder under the premeditated or the felony statute. It has also been upheld under common law arguements as well.



Florida Rules of Criminal Procedure 3.490 reads as follows:
"Determination of Degree of Offense If the indictment or information charges an offense which is divided into degrees, without specifying the degree, the jurors may find the defendant guilty of any degree of the offense charged; if the indictment or information charges a particular degree the jurors may find the defendant guilty of the degree charged or of any lesser degree. The court shall in all such cases charge the jury as to the degrees of the offense."


More recently, in Beck v. Alabama, supra, the Court held that the death sentence may not constitutionally be imposed after a jury verdict of guilt of a capital offense if the jury has not been permitted to consider an alternative verdict of guilt of a lesser included offense. In reaffirming the Court's commitment to the lesser-offense doctrine, the Court observed that "the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard." 447 U.S., at 637, 100 S.Ct., at 2389.

B. Lesser Included Offenses
The Supreme Court has made clear that, in capital cases, the Due Process Clause of the Fourteenth Amendment is violated when a refused jury instruction, amply supported by the evidence presented at trial, results in a substantially increased risk of error in the fact-finding process. Beck v. Alabama, 447 U.S. 625, 637 (1980).12 When a jury is faced with the choice of either convicting or acquitting a defendant of capital murder and when the evidence tends to show the defendant committed some violent crime, irrelevant considerations are interjected into the fact-finding process. Id. The possibility arises that the jury may convict the defendant due to its belief that the defendant committed some crime, and should not, therefore, be allowed to go unpunished. Id. at 642. The Beck Court found this possibility constitutionally unpalatable, and mandated that the jury be given a "non-capital, third option," rather than simply guilt or acquittal of a capital crime, when the evidence supported it. Id. at 637, 641.13


In interpreting our first degree murder law, the Florida Supreme Court adopted a jury instruction which informs the jury that there are two ways in which the jury may convict for first degree murder, premeditated murder and felony murder. The instruction then informs the jury that to convict for "First Degree Premeditated Murder" it must find the "element" of premeditation. The instruction further informs the jury that to convict for "First Degree Felony Murder" it must find the "element" that the death occurred as a consequence of the commission or attempted commission of a felony.

 

[RubyB]

Moved here from another thread, so we can "conversate" about it. To keep things in context, AZLawyer's response to me was generated from having read this blog entry from WM:

http://www.thedailybeast.com/blogs-a...llowed-to-see/

The concern I have about the WM article is that the exceptions to the Sunshine Laws that she is discussing would all require a motion and order by the Court to be invoked.

Agreed.

No such motion or order has appeared on the docket. Even a motion filed under seal would appear on the docket, as would the motion to file the motion under seal.

Agreed. No such docket entry to date.

As would the motion to intervene filed by the press, the motion to exclude video cameras from the courtroom, the motion to allow gum-chewing in the courtroom, etc. etc.

uh-huh. I'm with you so far.

To summarize what I've said on other threads:

1. If evidence is being given to the defense but hidden from us, we would know about it from the docket. Remember the jail video? We didn't get to see it, but we got to see the entire process of how it was hidden from us.

I submit that the main reason that we know so much about the jail house video is because JB made a huge spectacle of his position that the state was trampling his clients rights. Do you think that perhaps had JB requested an in camera meeting w/ the SA and the judge, stated his case and let JS view the tape, that the same result could have been accomplished? It's tough for me to believe that JB HAD to waste so much time and share the graphic details of what we could expect to see IF we were able to view this footage, all in order to get it suppressed. Particularly because the SA wasn't really that invested in the outcome on this one. Of course, there would have been a docket entry reflecting the activity but the bottom line would still be the same. KWIM? JB is clumsy.

2. If evidence is being hidden from the defense, it is certainly not HELPFUL evidence (i.e., bad-for-Casey evidence), because the prosecutors CAN NOT USE any such evidence at trial unless they disclose it first.

Understood. My first lesson on that was from OJ's trial. The prosecution had some really great exclusive Bronco carpet fiber evidence, but they forgot to share and got sanctioned for it. Sorry state! Afraid you can't use it! Too bad, so sad.
No good prosecution team is gonna try and sneak up on the defense with previously undisclosed evidence. It's bush league and there are steep penalties for such antics.

I doubt seriously that they would hide any evidence GOOD for Casey either, because they could get in a lot of trouble for that.

I doubt seriously such evidence exists.

3. LE could, possibly, be holding on to some item of evidence to make sure it is what they think it is or to follow up on it before disclosing it, especially if premature disclosure could result in some Anthony family member tampering with the evidence. But I can't really think of anything that would fall within that category,

I can't even imagine a scenario where this example would apply. I'd certainly hope that LE has what they need all locked up and tamper-proofed!

and this is a dangerous game to play as trial gets closer and disclosure gets more important. They are not going to risk having evidence excluded that is really helpful to the case.

As trial gets closer? Really? While I agree that the SA can't wait until the last minute to drop whatever they've got, 1) I think info that's been released thus far has been painfully slow in coming, and 2) the SA just bought themselves a good year or 18 months by putting the DP back on the table. Trial date is by no means imminent at this stage. Everyone's got plenty of time to dick around with each other. I don't think either party will be tipping their hand anytime soon.

4. The FBI may not have sent all their results to LE yet. Other third parties also may not have responded to document requests. Or LE may have things but still be "processing" the information prior to disclosure.

Agreed on all of that.

I just HAVE to think that there is a something that is irrefutable that will explain why the SA office decided to again put the DP back out there. I knew in my heart that when the AR was released that we would find that the duct tape would be shown to have covered both airways, and that would be the thing that would seal the deal. Now that we know, I can't believe all of the talk about staging a kidnapping and trying to block decomp seepage. I hope that's not the smoking gun I was hoping for, because if the WS community is a fair representation of the general public I guess there could be reasonable doubt about when it was applied. So that's probably not the thing I've been hoping to see after all.

No, I want something that is so good that all parties involved will agree (in camera) that it's just too inflammatory to release before trial because it would make rounding up 12 genuinely impartial jurors and 6 alternates virtually impossible unless the trial would be moved to Kathmandu. I want them to agree that they can't afford to have NG and a bunch of unleashed lawyers shouting from the rooftops and running amok with this juicy tidbit. I'd be perfectly happy to read in the court docket that they're keeping a secret, and I would patiently await the day when it can be shared. Can you feel how badly I want to believe that Caylee's day will come? Let me have this one.

 

[Wudge]

SNIP



Florida Rules of Criminal Procedure 3.490 reads as follows:
"Determination of Degree of Offense If the indictment or information charges an offense which is divided into degrees, without specifying the degree, the jurors may find the defendant guilty of any degree of the offense charged; if the indictment or information charges a particular degree the jurors may find the defendant guilty of the degree charged or of any lesser degree. The court shall in all such cases charge the jury as to the degrees of the offense."


More recently, in Beck v. Alabama, supra, the Court held that the death sentence may not constitutionally be imposed after a jury verdict of guilt of a capital offense if the jury has not been permitted to consider an alternative verdict of guilt of a lesser included offense. In reaffirming the Court's commitment to the lesser-offense doctrine, the Court observed that "the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard." 447 U.S., at 637, 100 S.Ct., at 2389.

B. Lesser Included Offenses
The Supreme Court has made clear that, in capital cases, the Due Process Clause of the Fourteenth Amendment is violated when a refused jury instruction, amply supported by the evidence presented at trial, results in a substantially increased risk of error in the fact-finding process. Beck v. Alabama, 447 U.S. 625, 637 (1980).12 When a jury is faced with the choice of either convicting or acquitting a defendant of capital murder and when the evidence tends to show the defendant committed some violent crime, irrelevant considerations are interjected into the fact-finding process. Id. The possibility arises that the jury may convict the defendant due to its belief that the defendant committed some crime, and should not, therefore, be allowed to go unpunished. Id. at 642. The Beck Court found this possibility constitutionally unpalatable, and mandated that the jury be given a "non-capital, third option," rather than simply guilt or acquittal of a capital crime, when the evidence supported it. Id. at 637, 641.13


In interpreting our first degree murder law, the Florida Supreme Court adopted a jury instruction which informs the jury that there are two ways in which the jury may convict for first degree murder, premeditated murder and felony murder. The instruction then informs the jury that to convict for "First Degree Premeditated Murder" it must find the "element" of premeditation. The instruction further informs the jury that to convict for "First Degree Felony Murder" it must find the "element" that the death occurred as a consequence of the commission or attempted commission of a felony.

In your post, the word "lesser" exists multiple times.

In post #533, I explained that felony murder is not a "lesser" charge to aggravated child abuse or to murder one. Ergo, it would not be open to jury instructions and jury consideration if not charged prior to the start of the trial.

If Casey has not been charged with felony murder prior to the start of the trial, an attempt by prosecutors to have the jury instructed on felony murder later in the trial would equate to an ambush indictment attempt, which would be a clear due process violation (to say the least). Moreover, you recognized this fact in your post (#532) when you stated: "They cannot make changes to the indictment that would impair her defense".

HTH

 

[impatientredhead]

In your post, the word "lesser" exists multiple times.

In post #533, I explained that felony murder is not a "lesser" charge to aggravated child abuse or to murder one. Eego, it would not be open to jury instructions and jury consideration if not charged prior to the start of the trial.

If Casey has not been charged with felony murder prior to the start of the trial, an attempt by prosecutors to have the jury instructed on felony murder later in the trial would equate to an ambush indictment attempt, which would be a clear due process violation (to say the least). Moreover, you recognized this fact in your post (#532) when you stated: "They cannot make changes to the indictment that would impair her defense".

HTH

I posted the lesser charges because you have stated over and over again that they cannot consider anything other than the statute in the indictment.
Not only can they, they will be required to consider charges not included in the indictment.

The supreme court's jury instructions that allow them to consider two ways to come back with first degree murder are in the post too. I notice you ignored that portion. And the multiple cases I found in Florida that were indicted on premeditated and convicted under an unspecified first degree murder charge, held up on appeal when the defendant claimed that they were convicted of a crime they weren't indicted for? In every case that the jury was given instructions to consider either option and the indictment included an aggravating felony the Supreme Court told them too bad. The arguement that the jury had to be in agreement of which version of first degree murder were also shot down as long as there was evidence to support either option.

Casey's case is not harmed and there is no need to change the indictment.
She is aware that she is charged with aggravating circumstances of child abuse and probably shouldn't use that as her defense.

There is a case where there the defendant was found guilty of conspiracy and there was no version of conspiracy in the indictment at ALL.
The upper courts have held that up too (that one surprised me).