Legal Questions for Our VERIFIED Lawyers #1

[LancelotLink]

I noticed a witness in the upcoming trial, David Lohr listed on Jose's FB page as a friend. Is this unethical? Could this association be called into question? Is this witness tampering?

 

[AZlawyer]

AZLawyer, did you have the opportunity to watch any of the status hearing today?

Diane Tennis's comment was that she had never seen a judge micromanage a case like His Honor Judge Perry is doing - that it is very unusual.

Would you agree or care to comment? To me, HHJP says this case will go to trial in May of 2011, and he means it, even if it means micromanaging the Defense team every step of the way to get it done.

I agree with Ms. Tennis, but I think HHJP's management style is necessary in this case.

 

[AZlawyer]

After Baez stated in today's status hearing that he would like to have ICA present for the depositions of the Orange County Corrections Officers, HHJP asked Baez if he knew what the rule said.

FRCP 3.220 (h) Discovery Depositions

(7) Defendant’s Physical Presence. A defendant shall not be physically present at a deposition except on
stipulation of the parties or as provided by this rule. The court may order the physical presence of the defendant
on a showing of good cause. The court may consider (A) the need for the physical presence of the defendant to obtain effective discovery, (B) the intimidating effect of the defendant’s presence on the witness, if any, (C) any
cost or inconvenience which may result, and (D) any alternative electronic or audio/visual means available.

Whaaaa? Can you please explain what that means?

I get the meaning of A, B seems like the choice that Jose would love to use, but C and D just don't make sense to me.

Also, of those reasons to allow a defendant to attend a depo, which one would Jose likely present (motion) to HHJP?

Thanks in advance!

A is the one Jose will use--that the depositions won't be effective unless Casey can be there to help them.

B means that, if the witness is going to be intimidated by the defendant being there, the court should consider that (and probably not allow the defendant to be there--unless reason A above is really strong).

C means that the court can consider whether having the defendant there in person will cause a lot of cost and inconvenience--guards, other security arrangements, etc. If there will be a lot of cost and inconvenience, the court probably won't allow the defendant to be there--unless reason A above is really strong.

D means that, if there is some other way to have the defendant "present" without being there physically--e.g., by videoconference--the court should probably order that the defendant be there by other means instead of in person (unless reason A above is really strong and requires actual physical presence).

 

[AZlawyer]

I noticed a witness in the upcoming trial, David Lohr listed on Jose's FB page as a friend. Is this unethical? Could this association be called into question? Is this witness tampering?

No, it is not witness tampering to befriend a witness. If they were really close friends in real life, the witness could be questioned about it at trial, i.e.: "Isn't is true that you are close friends with JB? Isn't it true that you would say whatever he asked you to say in this trial?" But there still wouldn't be any ethical problem with the witness being a friend of the lawyer, unless somehow the relationship makes it difficult for the lawyer to act in his client's best interests.

 

[beach]

A is the one Jose will use--that the depositions won't be effective unless Casey can be there to help them.

B means that, if the witness is going to be intimidated by the defendant being there, the court should consider that (and probably not allow the defendant to be there--unless reason A above is really strong).

C means that the court can consider whether having the defendant there in person will cause a lot of cost and inconvenience--guards, other security arrangements, etc. If there will be a lot of cost and inconvenience, the court probably won't allow the defendant to be there--unless reason A above is really strong.

D means that, if there is some other way to have the defendant "present" without being there physically--e.g., by videoconference--the court should probably order that the defendant be there by other means instead of in person (unless reason A above is really strong and requires actual physical presence).

BBM

Ding, ding, ding! You win.

He disclosed he was going with A today. His defense is that Casey will have to be there to identify them because she can't put the names and faces together. *cough*

Yes, that is his definition of good cause. I'm doubting that could be considered "really strong".

I guess he didn't think very far ahead..... like Judge Perry could suggest photograph ids. :angel:

 

[aeli2468]

I have a question about what the defense needs to give to the prosecution in terms of their discovery.

I know it is a moot point now, but suppose that JB was allowed to send the pieces of evidence (shorts and laundry bag?) to the DNA expert in Europe. And further suppose that the defense did not like the results as they were potential more damning for his client. Therefore he will not include the DNA expert on his witness list or the report in the trial.

Does he need to give any of those findings over to the prosecution? I am assuming he does not, because he is not planning on including it at trial.

At that point, would the prosecution be able to call that DNA expert as a witness or in any way be able to see the report? In this specific hypothetical situation, the prosecution would be aware that the DNA expert tested the evidence but the defense is not including the results at trial.

TIA,
Elizabeth

 

[Kentjbkent]

I have a question concerning the Sunshine Laws.

There appears to be a time delay between the time that SA turns over discovery to the defense team, and when SA/court releases same discovery to the public.

When SA turns over discovery to the Defense (but it has NOT been released publicly yet), are there any rules governing WHO the defense can share the information with?

Can the defense allow anyone to "view" the documents, or provide a copy to them?

(I am referring to "anyone" as a layman who is in no way related to the defense of KC....say, a member of the media....)

Is discovery "protected" until it is released publicly?

 

[Meemom]

Murder Docket Updated

09/28/2010 Order Granting State's Second Motion to Compel Reciprocal Discovery and Motion for Discovery Schedule

Does this mean that JB has to finally start turning over his discovery to the SA? Is there a schedule attached to it that he will have to follow or incur the wrath of HHJP?

Thanks!

 

[AZlawyer]

I have a question about what the defense needs to give to the prosecution in terms of their discovery.

I know it is a moot point now, but suppose that JB was allowed to send the pieces of evidence (shorts and laundry bag?) to the DNA expert in Europe. And further suppose that the defense did not like the results as they were potential more damning for his client. Therefore he will not include the DNA expert on his witness list or the report in the trial.

Does he need to give any of those findings over to the prosecution? I am assuming he does not, because he is not planning on including it at trial.

At that point, would the prosecution be able to call that DNA expert as a witness or in any way be able to see the report? In this specific hypothetical situation, the prosecution would be aware that the DNA expert tested the evidence but the defense is not including the results at trial.

TIA,
Elizabeth

The discovery rule says that a defendant who has elected to participate in reciprocal discovery (which KC has) is obligated to produce "reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons." R 3.220(d)(1)(B)(ii). My assumption, however, is that the word "experts" limits the entire sentence and refers only to experts who will be called at trial. So the defense should be able to "deep six" any unfavorable results by taking the expert in question off their witness list. And the prosecutor would not then have any right to question their expert.

 

[AZlawyer]

I have a question concerning the Sunshine Laws.

There appears to be a time delay between the time that SA turns over discovery to the defense team, and when SA/court releases same discovery to the public.

When SA turns over discovery to the Defense (but it has NOT been released publicly yet), are there any rules governing WHO the defense can share the information with?

Can the defense allow anyone to "view" the documents, or provide a copy to them?

(I am referring to "anyone" as a layman who is in no way related to the defense of KC....say, a member of the media....)

Is discovery "protected" until it is released publicly?

No, the discovery is not protected prior to public release. JB could post it all on his Facebook page if he wanted to.

 

[QB.]

Hi AZ, I have a question about the deadlines Judge Perry has set for this case.
It seems like every status hearing the deadlines are renegotiated.
In the last hearing we saw JP set firm deadlines. What are the consequences of either side failing to meet these deadlines after they were already given more time?
Are there any consequences and are they serious?
Thank you.

 

[AZlawyer]

Murder Docket Updated

09/28/2010 Order Granting State's Second Motion to Compel Reciprocal Discovery and Motion for Discovery Schedule

Does this mean that JB has to finally start turning over his discovery to the SA? Is there a schedule attached to it that he will have to follow or incur the wrath of HHJP?

Thanks!

It's tough to guess what an order actually says just by reading the title. Here's the (pretty old) motion that was apparently just granted: http://i2.cdn.turner.com/cnn/2010/images/01/27/motion.to.compel.reciprocal.discovery.pdf.

My guess is that HHJP is just "cleaning up the docket" by ruling on old motions. HHJP has already issued a discovery schedule, so that part of the motion is moot. Other parts of the motion might also be moot, because JB has already been turning over witness and expert information, as requested in the motion (and as required by the rules). But HHJP doesn't want any motions hanging out there with no ruling.

 

[beach]

This one is for AZ, please.

In your opinion, what would it take (evidentiary speaking) for the SA to present the theory that Q104 was used to bind Caylee's hands during their case in chief? As LambChop and several of us have noted, binding her hands means only one thing. We've got fringe hairs (that are not candidates for DNA analysis), fibers and a very curious image from the trunk photos. Anything else? I realize that they could throw that in during closing arguments, but I don't know if they would even 'go there' unless they could really convince the jury of that theory.

I think Q104 is a very, very important piece of evidence and if they could tie it to binding Caylee's hands behind her back.... well, that is pretty darn damning, iykwim.

 

[AZlawyer]

This one is for AZ, please.

In your opinion, what would it take (evidentiary speaking) for the SA to present the theory that Q104 was used to bind Caylee's hands during their case in chief? As LambChop and several of us have noted, binding her hands means only one thing. We've got fringe hairs (that are not candidates for DNA analysis), fibers and a very curious image from the trunk photos. Anything else? I realize that they could throw that in during closing arguments, but I don't know if they would even 'go there' unless they could really convince the jury of that theory.

I think Q104 is a very, very important piece of evidence and if they could tie it to binding Caylee's hands behind her back.... well, that is pretty darn damning, iykwim.

I'm afraid that there is really nothing yet that would qualify as evidence that Q104 was used on Caylee's wrists. The defense might even move to exclude that piece of tape from evidence entirely, but I don't think that motion will succeed (based on the tape being the same "make & model" as the skull tape, having (IIRC) some similar fibers to the other tape, and matching at one end to one of the other pieces). I would sure like to see someone say that the red fibers on Q104 match Caylee's T shirt, though.

Hopefully the jurors will look at that piece of tape the same way we did and say, "hmmm, where else would Casey have used an 8.5-inch piece of tape?"

 

[Paintr]

Hi AZ, I have a question about the deadlines Judge Perry has set for this case.
It seems like every status hearing the deadlines are renegotiated.
In the last hearing we saw JP set firm deadlines. What are the consequences of either side failing to meet these deadlines after they were already given more time?
Are there any consequences and are they serious?
Thank you.

Bumping this question by QB...

 

[nums24]

Hello and thanks for your time! The defense motion to test the shorts and laundry bag says that the "defense waives any chain of custody arguments as to the items the defense wishes to have tested."

What exactly does that mean? Would the waiver also apply to any of the other items also found with the shorts & laundry bag?

 

[AZlawyer]

Hi AZ, I have a question about the deadlines Judge Perry has set for this case.
It seems like every status hearing the deadlines are renegotiated.
In the last hearing we saw JP set firm deadlines. What are the consequences of either side failing to meet these deadlines after they were already given more time?
Are there any consequences and are they serious?
Thank you.

The consequences, if the deadlines are really firm, is that you don't get to do things after the deadlines. I.e., if you have a deadline of 10/31/10 to complete 8 law enforcement depos, and you don't do it, then you don't get to take those depos.

 

[AZlawyer]

Hello and thanks for your time! The defense motion to test the shorts and laundry bag says that the "defense waives any chain of custody arguments as to the items the defense wishes to have tested."

What exactly does that mean? Would the waiver also apply to any of the other items also found with the shorts & laundry bag?

It just means that, since the defense will now be taking those items out of the custody of the State, they are not going to later complain that the State failed to keep track of those items and the items might have been tampered with.

So the waiver would not apply to items that the defense is not removing from the custody of the State.

 

[john's mom]

The consequences, if the deadlines are really firm, is that you don't get to do things after the deadlines. I.e., if you have a deadline of 10/31/10 to complete 8 law enforcement depos, and you don't do it, then you don't get to take those depos.

re bold above, so then the defense can't use 'oh I wasn't able to depose so and so' for appeal or argument purposes at trial, right? If he doesn't do it by deadline, he can't cry about it later either, correct? TIA

 

[ThinkTank]

Originally Posted by nums24
Hello and thanks for your time! The defense motion to test the shorts and laundry bag says that the "defense waives any chain of custody arguments as to the items the defense wishes to have tested."

What exactly does that mean? Would the waiver also apply to any of the other items also found with the shorts & laundry bag?

It just means that, since the defense will now be taking those items out of the custody of the State, they are not going to later complain that the State failed to keep track of those items and the items might have been tampered with.

So the waiver would not apply to items that the defense is not removing from the custody of the State.

Is the "waiver" the same as the "stipulations" that Judge P said Inmate Anthony MUST sign, which Ashton prepared for the entomology evidence, and the hair evidence, and the laundry bag and shorts?