2008.01.08 Court Hearings Discussion

[Bev]

Thank you, Redhead, this is exactly right - the presence is required at ALL evidentiary hearings. Today they held an evidentiary hearing, therefore, the defendant HAD to be present - it's the law.

 

[gibby207]

I may be wrong, but I think the problem lied in JB having the waiver in writing a little too late, prolly scribbled in crayon....

Oops, it slipped...

 

[ThoughtElf]

Just because its a bit different and so I am on the same wave length is that the same thing as Assistant State Attorney ?

Thats what flashed up on the channel 13 video

Yes, she is an Assistant State's Attorney, and is the one assigned to this case.

 

[impatientredhead]

Thank you, Redhead, this is exactly right - the presence is required at ALL evidentiary hearings. Today they held an evidentiary hearing, therefore, the defendant HAD to be present - it's the law.

(6) when evidence is addressed to the court out of the presence of the jury for the purpose of laying the
foundation for the introduction of evidence before the jury;

I am assuming this is what you are referencing? Today was not a evidentiary hearing, nothing was determined in regards to what evidence would be presented to a jury. This were motions in regards to discovery.

 

[ThoughtElf]

(a) Presence of Defendant. In all prosecutions for crime the defendant shall be present:
(1) at first appearance;
(2) when a plea is made, unless a written plea of not guilty shall be made in writing under the provisions of rule
3.170(a);
(3) at any pretrial conference, unless waived by the defendant in writing;
(4) at the beginning of the trial during the examination, challenging, impanelling, and swearing of the jury;
(5) at all proceedings before the court when the jury is present;
(6) when evidence is addressed to the court out of the presence of the jury for the purpose of laying the
foundation for the introduction of evidence before the jury;
(7) at any view by the jury;
(8) at the rendition of the verdict; and
(9) at the pronouncement of judgment and the imposition of sentence.
(b) Presence; Definition. A defendant is present for purposes of this rule if the defendant is physically in
attendance for the courtroom proceeding, and has a meaningful opportunity to be heard through counsel on the
issues being discussed.
(c) Defendant Absenting Self.


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

Page 54- great link by the way for anyone that likes to reference Fl criminal procedures.

TY so much. Bookmarking the link.

 

[JaneInOz]

www.wftv.com has the full hearing up in two parts, the links on home page

Thank you that is much clearer

The photos .....

You know, just for one moment if she didn't do it, or it was a accident etc etc
I am totally shocked by her disposition.

Not a tear in her eye.

Mind you Lindy Chamberlain was accused of the same coldness
I don't know what to think

 

[HeSaidSheSaid]

It is law for defendants to be present for all 'substantiative' motion hearings, unless waived in writing, within the proscribed time period (I believe 24 hours) - and it is still at the discretion of the court whether the waiver is accepted or not.

Not being a wiseass here, seriously. What determines "substantive?" I've read other posts that indicate that much of what JB was requesting could be obtained through depositions, and that today's hearing was completely unecessary. What about today's hearing was substantive require that Casey be present?

I'm not an attorney and completely clueless when it comes to the various procedures and court appearances. :waitasec:
She seemed, from what I watched, to be completely clueless as to what was even going on.

 

[ThoughtElf]

Found some interesting case law to go along with this. I don't understand all of it and will have to read up on some definitions, but it was interesting reading:

caselaw.findlaw.com/data2/floridastatecases/app/app1_06_2005/04-2383.pdf

 

[ThoughtElf]

Not being a wiseass here, seriously. What determines "substantive?" I've read other posts that indicate that much of what JB was requesting could be obtained through depositions, and that today's hearing was completely unecessary. What about today's hearing was substantive require that Casey be present?

I'm not an attorney and completely clueless when it comes to the various procedures and court appearances. :waitasec:
She seemed, from what I watched, to be completely clueless as to what was even going on.

I'm not taking that as a wiseass question, at all, as I had the same thought. What is 'substantive' and who makes that call? The Judge alone, and on what basis? Does that still leave room for either side to present case law arguments?

I really don't know.

As for why it was necessary for KC to attend today, I have only guesses, none of which are legal:

1. Decision regarding remains images/photos.
2. It is just my opinion, but I think the SA might also have wanted to see KC themselves, and ensure that she was aware of how serious this is. (That may sound lame, but I think a taste of what's to come was timely, MOO)

 

[gibby207]

I'm not taking that as a wiseass question, at all, as I had the same thought. What is 'substantive' and who makes that call? The Judge alone, and on what basis? Does that still leave room for either side to present case law arguments?

I really don't know.

As for why it was necessary for KC to attend today, I have only guesses, none of which are legal:

1. Decision regarding remains images/photos.
2. It is just my opinion, but I think the SA might also have wanted to see KC themselves, and ensure that she was aware of how serious this is. (That may sound lame, but I think a taste of what's to come was timely, MOO)

They made it clear on NG tonight that it was a wise move on SA/judge's part to add her in as they don't want the client down the line to say, hey, I wasn't at so-and-so hearing and have a reversal. Consensus was bad on JB's part.

 

[amethyst221]

I'll take a shot at a general answer. Think of substantive versus merely procedural. Of significance to important issues on the merits of the case rather than merely housekeeping. Since the statute refers to all pre-trial motions by its language, this distinction may be part of the case law interpreting it. Anyway, there must have been a pretty persuasive case, right on point, that the state gave to the judge to read. Probably some case where the defendant's absence was used as an appellate issue.

 

[ThoughtElf]

I'll take a shot at a general answer. Think of substantive versus merely procedural. Of significance to important issues on the merits of the case rather than merely housekeeping. Since the statute refers to all pre-trial motions by its language, this distinction may be part of the case law interpreting it. Anyway, there must have been a pretty persuasive case, right on point, that the state gave to the judge to read. Probably some case where the defendant's absence was used as an appellate issue.

Lots of interesting case law here about 'Presence of Defendant'
caselaw.findlaw.com/data2/floridastatecases/app/app1_06_2005/04-2383.pdf

But, I will review tapes again and see if I can catch if the state specific case law they gave to Judge Strickland.

 

[Bev]

I really don't want to get into an argument about this - according to the Florida State Constitution and interpreted both by the Florida Supreme Court and the U.S. Supreme court, citing Illinois v. Allen and Kentucky v. Stinces and Jackson v. State of Florida appeals court decision, the constitution requires that all proceedings affecting life and liberty be conducted according to due process, Fla. R. Crim. P 3.10 defines presense as PHYSICALLY in attendance and having meaningful opportunity to heard, therefore, the defendant MUST be present at all critical hearings and must petition the court in person to be excused from the proceedings after first being sworn in, informed of her rights and obtaining affirmation that the defendant understands those rights and is indeed waiving those rights.

That is why the judge himself said he was being lax in that requirement - it is mandated by statute and by the Florida State Supreme Court rulings. NO judge wants to overturned for what is essentially negligence in his duties. He may accept a written waiver, but in a capital murder case, he MUST be absolutely certain that the defendant be in attendance at every critical proceeding and must be questioned in person as to whether she understands and waives those rights.

Believe me, I am not making this stuff up as I go along, it is the LAW.

 

[nomoresorrow]

I really don't want to get into an argument about this - according to the Florida State Constitution and interpreted both by the Florida Supreme Court and the U.S. Supreme court, citing Illinois v. Allen and Kentucky v. Stinces and Jackson v. State of Florida appeals court decision, the constitution requires that all proceedings affecting life and liberty be conducted according to due process, Fla. R. Crim. P 3.10 defines presense as PHYSICALLY in attendance and having meaningful opportunity to heard, therefore, the defendant MUST be present at all critical hearings and must petition the court in person to be excused from the proceedings after first being sworn in, informed of her rights and obtaining affirmation that the defendant understands those rights and is indeed waiving those rights.

That is why the judge himself said he was being lax in that requirement - it is mandated by statute and by the Florida State Supreme Court rulings. NO judge wants to overturned for what is essentially negligence in his duties. He may accept a written waiver, but in a capital murder case, he MUST be absolutely certain that the defendant be in attendance at every critical proceeding and must be questioned in person as to whether she understands and waives those rights.

Believe me, I am not making this stuff up as I go along, it is the LAW.

Bev you are right, it is the law.

 

[amethyst221]

I really don't want to get into an argument about this - according to the Florida State Constitution and interpreted both by the Florida Supreme Court and the U.S. Supreme court, citing Illinois v. Allen and Kentucky v. Stinces and Jackson v. State of Florida appeals court decision, the constitution requires that all proceedings affecting life and liberty be conducted according to due process, Fla. R. Crim. P 3.10 defines presense as PHYSICALLY in attendance and having meaningful opportunity to heard, therefore, the defendant MUST be present at all critical hearings and must petition the court in person to be excused from the proceedings after first being sworn in, informed of her rights and obtaining affirmation that the defendant understands those rights and is indeed waiving those rights.

That is why the judge himself said he was being lax in that requirement - it is mandated by statute and by the Florida State Supreme Court rulings. NO judge wants to overturned for what is essentially negligence in his duties. He may accept a written waiver, but in a capital murder case, he MUST be absolutely certain that the defendant be in attendance at every critical proceeding and must be questioned in person as to whether she understands and waives those rights.

Believe me, I am not making this stuff up as I go along, it is the LAW.

I'm not sure who you are addressing this to, but I'm in total agreement with what you said, despite what tv pundits may have offered. The statute says all pretrial proceedings, so I was just trying to come up with a source for the substantive distinction others were talking about. ???

 

[Bev]

Thank you, Nomore. Let me add, that it isn't what the statute states, it is HOW that statute is interpreted by the court that is important.

I understand why some people think this was not a critical hearing, but of all the hearings held so far, this was indeed the most critical and the motion filed by the state to withhold evidence from the defense by placing restrictions on that evidence was incredibly stupid and would without a doubt be a reversable error in appeals court. The Supreme court has ruled time and again that to withhold evidence is a violation of the U.S. constitution's 6th amd. confrontation clause.

 

[HeSaidSheSaid]

I'll take a shot at a general answer. Think of substantive versus merely procedural. Of significance to important issues on the merits of the case rather than merely housekeeping. Since the statute refers to all pre-trial motions by its language, this distinction may be part of the case law interpreting it. Anyway, there must have been a pretty persuasive case, right on point, that the state gave to the judge to read. Probably some case where the defendant's absence was used as an appellate issue.

Thanks for the answers everyone. I appreciate it.

I have an additional question(s). If Casey were to use an instance where she wasn't present at a pre-trial hearing, no matter the significance, as grounds for an appeal, yet JB had, at the time of the hearing, insisted that Casey waived her rights to be present and she was relying on his representation of her to covey as much, and relying on him as her attorney to represent her without being present at any hearing, how much of a leg would she have to stand on? And if there is one, who would represent her, if JB is the one that claimed she waived her right to be present? Does she get an attorney appointed to her, in the event of an appeal, if she cannot afford one?

 

[ThoughtElf]

I really don't want to get into an argument about this - according to the Florida State Constitution and interpreted both by the Florida Supreme Court and the U.S. Supreme court, citing Illinois v. Allen and Kentucky v. Stinces and Jackson v. State of Florida appeals court decision, the constitution requires that all proceedings affecting life and liberty be conducted according to due process, Fla. R. Crim. P 3.10 defines presense as PHYSICALLY in attendance and having meaningful opportunity to heard, therefore, the defendant MUST be present at all critical hearings and must petition the court in person to be excused from the proceedings after first being sworn in, informed of her rights and obtaining affirmation that the defendant understands those rights and is indeed waiving those rights.

That is why the judge himself said he was being lax in that requirement - it is mandated by statute and by the Florida State Supreme Court rulings. NO judge wants to overturned for what is essentially negligence in his duties. He may accept a written waiver, but in a capital murder case, he MUST be absolutely certain that the defendant be in attendance at every critical proceeding and must be questioned in person as to whether she understands and waives those rights.

Believe me, I am not making this stuff up as I go along, it is the LAW.

I am certainly not arguing, I hope I've made that clear? I appreciate the time you all spend to post and educate us.

If I am clear about that, and not being offensive, may I ask one question about the above? I will wait for a response before I do so.

 

[Bev]

Well, HSSS, I think she already may have the makings of an appeal - the fact that the State has put restrictions on the autopsy evidence. It in effect has put an undue burden on the defense. It is this kind of arrogance by the state that gives defendants mistrials and overturned verdicts. These prosecutors are involved in gamesmanship and it is in the long run going to hurt the state, not the defendant.

To answer your question, ALL hearings in a capital murder case are important.

I apologize if anyone thinks this was directed at him/her. I just didn't want to get into a big back and forth about this.

 

[JaneInOz]

So Bev who determines what is a critical hearing ? and why wouldn't Baez want her at every hearing if its law ?
Is it because its taxing and they want a defendant fresh for the actual trial?