Legal Questions for Our VERIFIED Lawyers #2

[logicalgirl]

Thank you for your dispassionate review of the case. We may not like the answers all the time but I don't want to hear b.s.. I want to hear the actual, expert opinion of criminal law attorneys in Florida and that's what you are giving us. It helps us accurately gauge where the case is going and what our chances are, how hard the state's job will be at trial, etc.



I think some people are confused about what constitutes an arrest. Booking someone, taking them to jail in handcuffs is obviously an arrest. But simply detaining someone by force of law can be an arrest as well. Handcuffs are a great indicator that an arrest has taken place.

I was intrigued by your earlier statement that one cannot be un-arrested. Thus, if the court views the handcuffing as an arrest, does that mean that Miranda would have had to be read to the subject for any later statement, whether voluntarily given, signed as such, etc., to come in? That sounds like what you're saying and then it seems that none of casey's statements would come in after the handcuffing, which I think includes her written statement.

If so, what does the state's case look like? How do they explain why they went to Sawgrass or Universal or why they looked for a Zenaida Gonzales to begin with? It seems that without most of casey's statements, it will be hard to paint the picture they need to paint, in a logical, chronological manner.

I always had a problem with the universal statements. The moment I heard them, I feared they would not come in. I kept wondering when they were going to Mirandize her. Unlike some, I think the failure to do so was a mistake. It was a huge risk because if she had confessed and led them to the body, the discovery of that body as well as the associated evidence would be fruit of the poisonous tree (IIRC from law school!) and would be inadmissible if the court later ruled casey was in custody (which I think is a strong argument) at the time she confessed. So, it baffled me that they took that risk.

My prediction is that some of the statements will come in (not the Universal one). I think judges weigh how the case will be impacted when making fine line distinctions in such cases. They want to allow the case to proceed but give the defense a bone so that they cannot be accused of trampling the defendant's constitutional rights and to forestall a successful appeal. This judge will be very careful and measured. He is very intelligent and I think whatever decision he makes will hold up. He knows what he's doing.

By the way Hornsby, I agree with your assessment of part of Yuri's testimony. When I saw him dancing around the questions of what his thought process was regarding casey as a suspect, I cringed. It would be witness testimony that I would not favor if he was my witness. That's just how I see it as an attorney. Sorry! I love Yuri and think he's done a great job so far on this case, but I do think his answers and demeanor at that moment slightly damaged his credibility.

He could have avoided admitting to seeing her as a suspect in a better manner, IMO. I think he could have said something to the effect of: "Well I knew something wasn't adding up, but I had no idea if a crime had been committed or where the child was at that point. So no, I didn't deem casey a suspect at that moment because at that time, I was still gathering facts and simply trying to find the location of this child. I was not looking to solve a crime or determine who was a suspect of a possible crime or to interrogate any suspect. I didn't know if this was a domestic squabble, if someone had kidnapped this child, if a custodial parent was lawfully hiding her from other relations, or if she was alive or dead or if a crime had been committed at all and if so, what crime it could have been. None of that was on my radar at that moment. I was just trying to sort out the facts at that point and locate this little girl."

Now, would such a statement be the truth? IMO no. The moment he smelled the odor of death in the car, I think he and the other officers knew they were looking at a potential crime scene. And the moment casey started giving bizarre answers and they found she had not reported the child missing despite a month having passed, I'm sure they viewed her as a potential suspect. But, I don't care. It's all a question of strategy and walking the constitutional line while trying desperately to find a child. So, I get it and do not have a problem with it. I just think if he had testified slightly differently, he would have appeared more credible on that subject. :twocents:

I am not arguing with your views gitana, but I need a segway to ask this question. Why when the smell of death comes up does everyone think the focus should suddenly shift to the trunk of the car that smelled of death. Why not continue on and investigate what led up to probably the cause of the smell of death. At this point it was a missing child - not a dead child.

Cause if I've learned one thing about death over the years - it is this. Death is dead. Dead means it's over and that's not going to change. And the smell of death isn't going anywhere either. There is no big rush, it's not like dead isn't going to be dead tomorrow morning does it?

 

[AZlawyer]

It is an academic questions that I am not sure about; I have previously thought they would come in (and said so on WESH), but after reading one of AZLawyers posts changed my position.

Honestly though, I don't care to much to elaborate because we will know the answer soon enough... So why not wait:innocent:

Mr. Hornsby, thank you so much for coming on here and patiently answering everyone's questions tonight. To clarify, my position prior to the hearing was that the Universal statement would almost certainly be excluded, and earlier statements might be excluded. After hearing the details about the 5-minute handcuffing and release, I think this might be a rare case of someone actually being "unarrested" (especially if the supervisor's statement that the theft charges should be disregarded in light of the kidnapping was made in front of Casey), and at least the written statement is likely to come in. The statement made to Yuri in the bedroom is a closer call but might come in. As for the Universal statement I think there is a slim (SLIM) chance that HHJP might buy this "hey we were just curious is all, not treating her as a suspect" argument--but I hope he does NOT buy that argument because I don't think the Florida Supreme Court is gonna buy it.

Bottom line, what will the State really lose if this Motion is granted for the Defense? I say not much, considering the fact that most everything Casey lied about at Universal, she also lied about in her Written Statement which the State will be able to use.

Your opinion?

The defense wants to keep the written statement out as well. I believe the written statement was just a little while after the handcuffing incident.

After seeing George and Cindy Anthony in court today, after they had been released as witnesses, do you think that Judge Perry should allow them to be in the courtroom, come trial time, when other witnesses testify with the expectation that they will be called back to the stand?

I ask this because I noticed that George and Cindy made no attempt to hide their feelings about the testimony that Yuri Melich was giving. They shook their heads in protest and at one time Cindy even threw her hands in their air (in disbelief?). I would have no problem with the Anthony's being there for all the testimony if they could control this, but I don't think they can or would even try. I don't think that it would be a good thing for a jury to be distracted by this behavior or even influenced by it.

What do you think?

ETA: Trust me, this isn't just coming from my dislike for the Anthony's. I really want them to be present for every single detail, but I just don't think it is fair to the jury and those giving their testimony.

I think HHJP's experience with the A's today will cause him to strictly enforce the rule sequestering witnesses at trial.

 

[AZlawyer]

AZ,

If you have the time (i dont have the books in front of me),for all involved to better understand(it might help with WS'ers thought process)....... you could explain/define:

1) Common right of inquiry
2) Mere suspicion
3) Reasonable suspicion
4) Probable Cause

Blah this is starting to sound like law school. In all seriousness, though, I think the distinction between these things would be helpful for a discussion about whether someone was appropriately arrested, but not for our discussion about Miranda warnings, which is based on whether a person is "in custody." And someone might be "in custody" without being arrested and/or without probable cause for arrest.

 

[Bittiness39]

Blah this is starting to sound like law school. In all seriousness, though, I think the distinction between these things would be helpful for a discussion about whether someone was appropriately arrested, but not for our discussion about Miranda warnings, which is based on whether a person is "in custody." And someone might be "in custody" without being arrested and/or without probable cause for arrest.

So whether or not a defendant is named a suspect, dumb as they may seem and despite the lies they tell, if LE wanted to try and send out an Amber Alert would not LE want to get all the information they could via interrogation?

 

[AZlawyer]

Apples and Oranges. Casey's lies are not subject to Constitutional requirements, law enforcement's actions are. That is why the focus is on whether they followed the law and are credible - not on whether Casey lied.

Au contrare monfrair - the judge decides if the handcuffing constituted an arrest (or an event that required Miranda) - not the law enforcement officer.

I agree completely!

Except for your French spelling. But who needs French for the law when you have Latin, n'est-ce pas?

 

[AZlawyer]

So whether or not a defendant is named a suspect, dumb as they may seem and despite the lies they tell, if LE wanted to try and send out an Amber Alert would not LE want to get all the information they could via interrogation?

I'm sure they would! But if they also wanted to use the suspect-but-not-yet-named-as-a-suspect's statements at trial later, they need to give Miranda warnings.

If they would rather try to find the baby and risk not using the statements at trial, they should skip the Miranda warnings and try to find the baby. But then they should not be too surprised if the statements are excluded from trial down the road.

 

[beach]

I'm sure they would! But if they also wanted to use the suspect-but-not-yet-named-as-a-suspect's statements at trial later, they need to give Miranda warnings.

If they would rather try to find the baby and risk not using the statements at trial, they should skip the Miranda warnings and try to find the baby. But then they should not be too surprised if the statements are excluded from trial down the road.

For LG: THIS! This is what I was trying to say.

I knew AZ could explain it better...Thank you, AZ! :blowkiss:

 

[Bittiness39]

I agree completely!

Except for your French spelling. But who needs French for the law when you have Latin, n'est-ce pas?

So essentially, as I understand it, as long as you are a young ADULT female and you lie to law enforcement it is to the good for the defense because you were Tricked? Even though by this one's very nature she was clearly a "trick." so despite the wealth of circ evidence it just comes down to us thinking she was promiscuous? Doubtful...the fact she cannot name or will not name the baby daddy is just a bonus!


I think this case would and should scare those who wish to defend without impunity. Live by the sword or die by the sheath I always say.

 

[Bittiness39]

I'm sure they would! But if they also wanted to use the suspect-but-not-yet-named-as-a-suspect's statements at trial later, they need to give Miranda warnings.

If they would rather try to find the baby and risk not using the statements at trial, they should skip the Miranda warnings and try to find the baby. But then they should not be too surprised if the statements are excluded from trial down the road.

Hope you are not one of those who think that Casey had help. No evidence at all suggests this. Period.

 

[AZlawyer]

So essentially, as I understand it, as long as you are a young ADULT female and you lie to law enforcement it is to the good for the defense because you were Tricked? Even though by this one's very nature she was clearly a "trick." so despite the wealth of circ evidence it just comes down to us thinking she was promiscuous? Doubtful...the fact she cannot name or will not name the baby daddy is just a bonus!


I think this case would and should scare those who wish to defend without impunity. Live by the sword or die by the sheath I always say.

I don't think anyone (except maybe JB?) is saying she was tricked. Certainly I am not saying that. She was in custody is the point, at least by the time the Universal interrogation got under way.

My point is that this was a calculated risk on the part of LE. Give her the Miranda warnings and risk scaring her into shutting up...or don't give her the warnings and risk not being able to use her statements down the road. You can't have your cake and eat it too. Although I think Yuri and the prosecutors presented the best possible case they could--better than I thought they could do with the facts they had.

 

[AZlawyer]

Hope you are not one of those who think that Casey had help. No evidence at all suggests this. Period.

Help? What? No, not at all. Not the tiniest bit. But I think we might be veering off from the "legal questions" theme of the thread... :waitasec:

ETA: Oh. When I said the "suspect not yet named as a suspect," I meant Casey, at the time of the Universal "chat." HTH

 

[kaRN]

The hearing thread got locked as I was responding to RH on a comment he made so I'm going to post it here. He was responding to a member who found that ICA hitting JB to get his attention, the gum chewing etc to have been contemptible.

With all due respect to your displeasure at how people present themselves in court, not a bit of what you protest is the least bit contemptible

Perception is everything though isn't it?
I testified in a wrongful death case for the defendant who was a police officer. When I met with his lawyer and confided how nervous I was to take the stand, he was very good about explaining the culture of the courtroom so I would feel more comfortable. He advised me gum was a no no and to spit it out before I entered the courtroom. He advised me on what the appropriate attire was and who would be sitting where and who was responsible for what. He even advised me on what I did or didn't have to answer ie: If it can't be answered as a yes or no, don't respond at all unless directed to by the judge and to never allow any question to get under my skin.


Having never been a defendant, I have to defer to your expertise here, but wasn't that defense attorney doing a bang up job in making sure that every witness he called appeared clean and credible? Isn't a defendant measured by those speaking for him or her in the absence of them taking the stand themselves?
You could have impeccible forensic reports to counter the states evidence but if they're presented by an MD with lunch all over his beard in wrinkled clothes who slouches and rolls his eyes at the prosecutor while mumbling, a jury will have a hard time finding those impeccible reports credible if they were generated by him IMHO.

IMO, this is another example of the DT failing miserably. To normal citizens who get called for jury duty, these witnesses will be making their first impressions on people like me, and expecting me to find them credible and honest and even normal as they speak on behalf of the defendant. If normal jury eligible folks find it contemptable then whether it is or isn't technically- IT IS. They're the ones who get to vote at the end of the day.


MOO


My legal question here is. Isn't it considered good lawyering to ensure the witnessess you call come across in the light most favourable to your client and position? Do you believe this DT has done a good job of preparing their witnesses?

 

[Lera213]

In today's hearing JB while questioning Det. Yuri kept talking about ICA lies. My question, did JB do this as a tactic? Basically since the SA office will offer this themselves he thought if it came from him directly it would be less sting for the defense?

My comment if this is indeed what JB was doing...it was an epic fail in my opinion.

 

[Kimmer]

AZ or Others, Is it normal for a Defence Attorney to ask for the States evidence be admitted into evidence? I found this a bit odd when JB did it, but if it can be normal protocol I am curious.

 

[Marina2]

IIRC, the first written statement given by KC was done shortly after the officers' arrival and prior to the handcuffing incident. If so, will this make a huge difference in whether the judge allows this particular statement to be admitted?

 

[Turnadot]

There are no magical words that trigger the Mirdanda requirement, rather the question is whether law enforcement's conduct would cause a reasonable person to believe they were no longer free to decline law enforcement's overtures.

In this case, the handcuffing clearly suggest that Casey was no longer free to leave. But that is just one factor, Judge Perry will also look at all of the other factors in the incident.

Regardless, this is an issue that has no black-and-white answer, and ultimately will be up to Judge Perry to decide based on the totality of all of the circumstances. (Personally I agree with AZLawyer and think Perry will find Miranda was required and toss the statements.)

Also, I think most of the WebSleuthers are having a hard time believing law enforcement did anything wrong because of the self-serving way that law enforcement is trying to paint what they did and how they interpreted the situation.

For example, a lot of you got a kick out of Melich claiming ignorance when Baez asked whether he suspected Casey of a crime. His answer was disingenuous and obviously he had been prepped about how to answer such questions. Everyone knows he suspected Casey of a crime; he would have been more credible to admit that, but he was afraid that by doing so the defense might win. Unfortunately though, this could backfire on him and the State.

BBM with respect.

Most reasonable average Joe citizens, for example me, wouldn't make the connection they couldn't leave after being told the door was not locked but closed for privacy reasons. I think a lot, if not most people associate "not being free to leave" with interrogation rooms, not a situation where I drive around with police of my own volition. Now, did it meet the legal definition of "in custody"... I haven't a clue, but it's my opinion that most people wouldn't assume in the Universal situation that they were in custody.

Also, the handcuff incident happened the day before the Universal ride, because CA wanted KC arrested for theft. I noticed Baez conflated the two things as if she was cuffed then BAM! carted off to Universal to be cornered, but that's not what happened. Of course it may still matter legally, and I defer to the lawyers here, but as an Average (no nothing legal) Jane, I don't believe KC was in custody at Universal.

That's why it's so important for Baez to have it tossed, because a jury, who probably won't have a lot of legal knowledge, will find the assertion that KC was intimidated by LE and assumed she couldn't leave laughable, because she lied so calmly and with such ease during that Q&A.

It's about perception and most reasonable people don't associate someone who lies smoothly to big men with guns, with a timid dove who thinks she's in custody and can't leave, especially someone with a father who is former LE.

Anywho, my personal unqualified legal opinion is that after KC led them to the end of the hall and admitted to lying, they should have read her her rights.

****

My question: Baez argued that KC felt intimidated. Will KC have to verbally agree that's how she felt in open Court?

 

[bananarama]

If all of the statements made by ICA prior to her formal arrest are deemed inadmissible, can't the state still present the same information in another fashion? IOW, can't they bring up the lying, stealing, etc. as obtained during their investigation after the fact? Can't they still use other people's testimony to bring out the Nanny story, unemployment, etc.? If so, I think that even if JP grants the defense this motion, it's not going to ruin the state's case.

 

[rhornsby]

BBM with respect.

Most reasonable average Joe citizens, for example me, wouldn't make the connection they couldn't leave after being told the door was not locked but closed for privacy reasons. I think a lot, if not most people associate "not being free to leave" with interrogation rooms, not a situation where I drive around with police of my own volition. Now, did it meet the legal definition of "in custody"... I haven't a clue, but it's my opinion that most people wouldn't assume in the Universal situation that they were in custody.

Also, the handcuff incident happened the day before the Universal ride, because CA wanted KC arrested for theft. I noticed Baez conflated the two things as if she was cuffed then BAM! carted off to Universal to be cornered, but that's not what happened. Of course it may still matter legally, and I defer to the lawyers here, but as an Average (no nothing legal) Jane, I don't believe KC was in custody at Universal.

That's why it's so important for Baez to have it tossed, because a jury, who probably won't have a lot of legal knowledge, will find the assertion that KC was intimidated by LE and assumed she couldn't leave laughable, because she lied so calmly and with such ease during that Q&A.

It's about perception and most reasonable people don't associate someone who lies smoothly to big men with guns, with a timid dove who thinks she's in custody and can't leave, especially someone with a father who is former LE.

Anywho, my personal unqualified legal opinion is that after KC led them to the end of the hall and admitted to lying, they should have read her her rights.

****

My question: Baez argued that KC felt intimidated. Will KC have to verbally agree that's how she felt in open Court?

Well my practical experience is much different. The reality is that when confronted by police, whether innocent or not, most citizens do not feel that they can just go on their merry way and ignore law enforcement officer's questions or presence. (And in the Casey Anthony situation, where would she have gone to? She was transported there by law enforcement.)

Even worse, my practical experience is that when the occasional person does try to decline law enforcement's overtures, law enforcement becomes more forceful, accusatory, and over bearing. The next time you get a stopped by a law enforcement officer, see how uninhibited you are - especially if you weren't speeding, or committing a traffic infraction (in your own opinion, not the officers).

 

[rhornsby]

The hearing thread got locked as I was responding to RH on a comment he made so I'm going to post it here. He was responding to a member who found that ICA hitting JB to get his attention, the gum chewing etc to have been contemptible.



Perception is everything though isn't it?
I testified in a wrongful death case for the defendant who was a police officer. When I met with his lawyer and confided how nervous I was to take the stand, he was very good about explaining the culture of the courtroom so I would feel more comfortable. He advised me gum was a no no and to spit it out before I entered the courtroom. He advised me on what the appropriate attire was and who would be sitting where and who was responsible for what. He even advised me on what I did or didn't have to answer ie: If it can't be answered as a yes or no, don't respond at all unless directed to by the judge and to never allow any question to get under my skin.


Having never been a defendant, I have to defer to your expertise here, but wasn't that defense attorney doing a bang up job in making sure that every witness he called appeared clean and credible? Isn't a defendant measured by those speaking for him or her in the absence of them taking the stand themselves?
You could have impeccible forensic reports to counter the states evidence but if they're presented by an MD with lunch all over his beard in wrinkled clothes who slouches and rolls his eyes at the prosecutor while mumbling, a jury will have a hard time finding those impeccible reports credible if they were generated by him IMHO.

IMO, this is another example of the DT failing miserably. To normal citizens who get called for jury duty, these witnesses will be making their first impressions on people like me, and expecting me to find them credible and honest and even normal as they speak on behalf of the defendant. If normal jury eligible folks find it contemptable then whether it is or isn't technically- IT IS. They're the ones who get to vote at the end of the day.


MOO


My legal question here is. Isn't it considered good lawyering to ensure the witnessess you call come across in the light most favourable to your client and position? Do you believe this DT has done a good job of preparing their witnesses?

I agree with you 100% that proper court room presentation is important.

My frustration is that many WebSleuthers throw around the contempt word like it is candy.

Contempt is an extremely serious and rare action for a court to take and merely not conducting yourself with proper etiquette is not contempt.

The only way Judge Perry might hold someone in contempt for their demeanor is if they openly offended Judge Perry personally.

 

[Turnadot]

Well my practical experience is much different. The reality is that when confronted by police, whether innocent or not, most citizens do not feel that they can just go on their merry way and ignore law enforcement officer's questions or presence. (And in the Casey Anthony situation, where would she have gone to? She was transported there by law enforcement.)

Even worse, my practical experience is that when the occasional person does try to decline law enforcement's overtures, law enforcement becomes more forceful, accusatory, and over bearing. The next time you get a stopped by a law enforcement officer, see how uninhibited you are - especially if you weren't speeding, or committing a traffic infraction (in your own opinion, not the officers).

I'm aware of my rights and if I were walking down the street and a cop asked me the time of day, I'd ignore him/her and keep walking.

I'll take your word that most people would feel they had no choice but to talk to LE because you obviously have for more experience with that than I do. But as for me... I sure as hell wouldn't talk to LE, unless compelled by the Court and only with my attorney present.

If a cop tried to intimidate me to elicit statements from me, I'd ask for my lawyer. I won't put up with that; I don't have to.