Procedure and legal questions

[AZlawyer]

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/

<SNIPPED>

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.

<SNIPPED>

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.

<SNIPPED>

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.

Looks like we mostly agree.

If there was a stipulation between the parties not to release info to the public, though, it would still appear in the docket, through a motion or stipulation being filed and an order being signed (however vaguely worded), regardless of whether the actual hearing was public. Also, the people "harmed" by the lack of disclosure would be "we the people," i.e., the Orlando Sentinel , not the prosecution or defense, and therefore the parties do not have the power to "stipulate" that they won't follow the Sunshine Laws. This judge seems very aware of the public's rights in this case.

I haven't been keeping a close eye on the docket, so let me know if you see anything unexplained on there.

 

[Wudge]

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).

Whether prosecutors "can" consider adding a felony murder charge is not the issue. The issue is "when" such a charge would need to be made. The answer to "when" is: prior to the start of the trial.

As regards cases where dual charges of murder one and felony murder have been made and tried, the facts of the case must support dual charges. In this case, the facts do not support dual charges, which is why prosecutors have indicted Casey on but one murder charge (premeditated murder).


HTH

 

[celticthyme]

There has been some talk about the Defense & a plea deal. Can they request a Plea at this stage, and more importantly, what would be the reasons for the State to accept one? If they believe that they have enough evidence, for DP, I don't understand why that might happen?

 

[Shear22]

There has been some talk about the Defense & a plea deal. Can they request a Plea at this stage, and more importantly, what would be the reasons for the State to accept one? If they believe that they have enough evidence, for DP, I don't understand why that might happen?

With a jury nothing is a sure thing. One hold out juror who thinks it could have been an accident could hang the jury and then there would have to be a new trial. Trial's are expensive in general, and this is looking to be long and complicated. I would imagine that if Baez/KC offered to plea guilty in exchange for LWOP the state would jump at it rather than go to the expense and trouble of a trial and risk a hung jury or even possibly an acquittal (I can't imagine an acquittal, though, not with JB's lawyering skills at the helm). In any case, I don't think JB will give up his opportunity to bask in the spotlight of a televised trial that airs live for months. Ah, the glory!

 

[impatientredhead]

There has been some talk about the Defense & a plea deal. Can they request a Plea at this stage, and more importantly, what would be the reasons for the State to accept one? If they believe that they have enough evidence, for DP, I don't understand why that might happen?

Casey has nothing left to negotiate with.
The time that dealing was on her side for a shorter sentence was before the body was found. At this point the only thing they have to offer is a guilty as charged in exchange for no death penalty. The benefit to the state would be the HUGE cost of taking this to trial and then following it with years and years of death row appeals, stays, requests for clemency. I don't think she is that worried about being on death row considering how long it normally takes, how many get reversed, and the added benefit of all the attention it comes with in a profile case. Much better than being your average lifer. MOO

 

[impatientredhead]

Whether prosecutors "can" consider adding a felony murder charge is not the issue. The issue is "when" such a charge would need to be made. The answer to "when" is: prior to the start of the trial.

As regards cases where dual charges of murder one and felony murder have been made and tried, the facts of the case must support dual charges. In this case, the facts do not support dual charges, which is why prosecutors have indicted Casey on but one murder charge (premeditated murder).


HTH

You should chat with the men that are doing their time for felony murder and unspecified murder one that were indicted under the premeditated statute. No amendment to their indictments. I am sure they would agree whole heartedly that in theory it works the way that you say it does. In practice the Florida Supreme Court has upheld their convictions despite the protest.

I am not saying it should or shouldn't work the way you claim, or that was the original intent. I am telling you case law in the Supreme Court in Florida has allowed the changes, the jury instructions, and upheld the verdicts time and time and time again.

As I said four posts ago, time will tell.

 

[RubyB]

Looks like we mostly agree.

If there was a stipulation between the parties not to release info to the public, though, it would still appear in the docket, through a motion or stipulation being filed and an order being signed (however vaguely worded), regardless of whether the actual hearing was public. Also, the people "harmed" by the lack of disclosure would be "we the people," i.e., the Orlando Sentinel , not the prosecution or defense, and therefore the parties do not have the power to "stipulate" that they won't follow the Sunshine Laws. This judge seems very aware of the public's rights in this case.

I haven't been keeping a close eye on the docket, so let me know if you see anything unexplained on there.

Ah, stipulation is the word I've been searching for. Thx. I suspect AL will be more willing to stipulate to certain things as opposed to JB's "bull in a china shop" MO when he feels slighted. I sure hope AL is able to bring all this clamoring and righteous indignation down a notch or two.

Maybe you know (or anyone else please feel free to chime in), when John Couey murdered Jessica Lunsford (also in FL), was the media this rabid to get their hands on information to share with the public through these same Sunshine Laws? I could be wrong here but I thought that there was significant info that was suppressed until trial in that case. It might have been the fact that JL was buried alive? I was not following the intricate details of all that online. But I'd be interested to compare how the public's right to know was balanced with JC's right to a fair trial in that case.

 

[Wudge]

You should chat with the men that are doing their time for felony murder and unspecified murder one that were indicted under the premeditated statute. No amendment to their indictments. I am sure they would agree whole heartedly that in theory it works the way that you say it does. In practice the Florida Supreme Court has upheld their convictions despite the protest.

I am not saying it should or shouldn't work the way you claim, or that was the original intent. I am telling you case law in the Supreme Court in Florida has allowed the changes, the jury instructions, and upheld the verdicts time and time and time again.

As I said four posts ago, time will tell.

Many states that have a felony murder statute have case law that permits a charge of murder and a charge of felony murder, but the circumstances surrounding the crime must support multiple charges. However, the prosecutor must charge the defendant with a charge of murder as well as a felony murder charge -- Casey has only been charged with murder one.

Please understand that a judge cannot instruct a jury on a non existent charge, nor can a jury consider convicting a defendant on a non existent charge.

HTH

 

[spyhouston]

Yesterday I was watching a Florida trial on In Session and the defendant took the stand. One of the talking heads made the comment that in Florida, unless the defendant takes the stand, the defense cannot present any expert witnesses. I hadn't heard this before.......does everyone but me know about this?

 

[AZlawyer]

Yesterday I was watching a Florida trial on In Session and the defendant took the stand. One of the talking heads made the comment that in Florida, unless the defendant takes the stand, the defense cannot present any expert witnesses. I hadn't heard this before.......does everyone but me know about this?

Makes no sense to me (and I think it would be unconstitutional). Are you sure you got the comment right?

 

[spyhouston]

Makes no sense to me (and I think it would be unconstitutional). Are you sure you got the comment right?

Yeppers.........I think they even said it a couple of times, but positive sure they said it once. My immediate thought was how would that affect KC's trial.

 

[MissJames]

Makes no sense to me (and I think it would be unconstitutional). Are you sure you got the comment right?

Perhaps it was in reference to something that was not admissible unless the defense "opened the door" by bringing up an issue with the defendent on the stand.:waitasec:

 

[NSS]

Maybe the 'expert' was to testify about a fact not yet in evidence, and putting the defendant on the stand is the only way to introduce that evidence/theory?

 

[Themis]

Yesterday I was watching a Florida trial on In Session and the defendant took the stand. One of the talking heads made the comment that in Florida, unless the defendant takes the stand, the defense cannot present any expert witnesses. I hadn't heard this before.......does everyone but me know about this?

That would be extremely unusual.

 

[LambChop]

Can anyone tell me why R. Kronk still needs an attorney?

 

[MissJames]

Can anyone tell me why R. Kronk still needs an attorney?

I believe the defense has a motion requesting all of R Kronk's cell phone activity.He is clearly in their line of fire.

 

[LambChop]

Thanks, MissJames. I had totally forgotten about that. Clearly KC has not told JB one specific person or he would not be asking for records from all the people that CA identified as potential suspects. No wonder people say they just do not want to get involved. How very sad!!!!

 

[SoSueMe]

Yesterday I was watching a Florida trial on In Session and the defendant took the stand. One of the talking heads made the comment that in Florida, unless the defendant takes the stand, the defense cannot present any expert witnesses. I hadn't heard this before.......does everyone but me know about this?

This has got to be incorrect. Perhaps they were talking about something specific to what the defendant testified to in that particular case? The defense has the right to refute evidence and/or testimony presented by the prosecution, so that would include expert testimony.

 

[countzero]

Legal ones, can the A compound still be monitored by wiretap or whatever other legal means with a warrant to obtain more evidence from there/A clan?

 

[faefrost]

Maybe the 'expert' was to testify about a fact not yet in evidence, and putting the defendant on the stand is the only way to introduce that evidence/theory?

This is what I am betting on. The state cannot force KC to take the stand. But certain defense tactics would force her to do so. It is doubtful if any defense involving ZG or "the nanny did it", would be allowed to be presented unless KC takes the stand. There is no eveidence of the existance of ZG other then testimony from KC. She is the root source of anything on the subject. So all the defense would have to work with is KC's direct testimony, and heresay evidence of others who heard KC tell them about ZG. While the burden of proof resides with the state, the defense is not allowed to present pure fabrication to the jury. There must be some chain of evidence or direct testimony. You canno simply try and defend a murderer by claiming alien abduction or an act of bigfoot. You need at least one person to swear under oath that they actually saw Bigfoot.