Legal Questions for our VERIFIED Lawyers #3

[Horace Finklestein]

Is anyone expecting any last minute motions/shenanigans from the defense tomorrow? I mean to they have any options to do anything in the 1 weekday before trial begins?

 

[aeli2468]

When do the lawyers here think the defense is most likely to make their opening statements? My understanding is they could either do it right after the SA's opening statements, or they could choose to do this after the state has finished presenting all their evidence and before the DT starts presenting evidence/witnesses for their defense.

Each scenario has it's pros and cons. Given this specific case, when do you think the DT will make their opening remarks?

TIA-
Elizabeth

 

[Baznme]

Listening to this morning's news, there was a comment that there is a fear the trial could end in a "mistrial" because of the low number of alternate jurors. That concerns me greatly. With only 5 alternates, what do you feel the chances are of that happening?

 

[Aedrys]

I don't know if this has been asked yet, but how do alternates work? Would a juror ask to be taken off, and an alternate would replace them? Would one side or the other ask for a juror to be replaced or is that judge's discretion? I'm asking because there seems to be concern for a low amount of alternates. What are the odds that all of those alternates would be activated and then a problem would come up because no alternates were left?

 

[SoCalSleuth]

I am awful at formulating these questions, so yet another warning that this may make no sense at all-
Tricia mentioned something tonight about letter-of-the-law proof of premeditation by KC. If this scenario occurs:

LDB asks Lee if he told Jesse that a fight happened. Lee answers in the affirmative. LDB follows up by asking Lee if what he told JG was truthful to his knowledge, or if Lee meant to mislead JG. Lee answers that it is truthful to his knowledge (now this gets tricky due to hearsay). While Lee may not be able to say his knows it to be true because CA told him it was true, he can say that he was telling the truth as he knew it (correct?). The jury can then determine, IMO easily, that Lee was telling the truth as he knew it and if CA denies a fight, she is probably lying to protect KC.

Long story short, if a fight is somehow established absent CA's confession, will that be weighty enough for the jury to use that as a piece of the premeditation puzzle? Any legal suggestion as to how they can get a fight in there, if a fight happened, minus CA's admission?

Anyone who was present who observed or heard the fight could testify to it.

Can jury nullification be grounds for appeal?

No.

Question about out-of-state witnesses called for ICA's trial: Are they reimbursed for transportation costs and accommodation (if needed) costs? If not, what would happen if one of them could not afford to travel to Florida? What if someone is a no-show? Will they be held in contempt of court?

Out-of-state witnesses are compensated for travel to testify. If a no-show without a reasonable explanation for defying the court order to appear, they could be held in contempt.

Is anyone expecting any last minute motions/shenanigans from the defense tomorrow? I mean to they have any options to do anything in the 1 weekday before trial begins?

They could try all manner of things, however, JP will not let that happen.

When do the lawyers here think the defense is most likely to make their opening statements? My understanding is they could either do it right after the SA's opening statements, or they could choose to do this after the state has finished presenting all their evidence and before the DT starts presenting evidence/witnesses for their defense.

Each scenario has it's pros and cons. Given this specific case, when do you think the DT will make their opening remarks?

The evidence against KC is too overwhelming to wait to give opening statements. I believe they will give it after the SA gives their opening.

TIA-
Elizabeth

I don't know if this has been asked yet, but how do alternates work? Would a juror ask to be taken off, and an alternate would replace them? Would one side or the other ask for a juror to be replaced or is that judge's discretion? I'm asking because there seems to be concern for a low amount of alternates. What are the odds that all of those alternates would be activated and then a problem would come up because no alternates were left?

A juror can't simply ask to be taken off. They would have to establish they were sick, or were threatened or some reason why they could no longer deliberate. Either side could ask for a juror to be replaced if there was a compelling reason for it --i.e. a refusal to deliberate. Sometimes jurors are replaced because of illness, family emergencies, etc. Whether or not the court has discretion to replace a juror or must replace a juror depends on the circumstances. This is a very long trial and most likely not all seated jurors will make it through the entire trial--very possible all 5 could be used not sure if I'd go as far as saying probable. It would only be a problem if all alternates are used and another juror needs to be excused and there are no alternates left.

 

[USARDOG]

If this has been asked and answered, fist my apology, second, I'd appreciate someone giving me the post number.

So with that in mind... If GA, CA or LA "admit" in open court, under oath, molesting ICA, can they be prosecuted for that statement after this trial is over? After all, they'd be "admitting" to being a pedophile and having engaged in felonious child molestation, as I believe she was still a minor at the time of the alleged allegations.

 

[AZlawyer]

If this has been asked and answered, first my apology, second, I'd appreciate someone giving me the post number.

So with that in mind... If GA, CA or LA "admit" in open court, under oath, molesting ICA, can they be prosecuted for that statement after this trial is over? After all, they'd be "admitting" to being a pedophile and having engaged in felonious child molestation, as I believe she was still a minor at the time of the alleged allegations.

Without knowing exactly when the alleged abuse would have taken place or the nature of the abuse, we can't be sure. If the abuse constituted a first-degree felony and took place after Oct 1999 but before Casey turned 18 (March 2004), I believe it could still be prosecuted.

When do the lawyers here think the defense is most likely to make their opening statements? My understanding is they could either do it right after the SA's opening statements, or they could choose to do this after the state has finished presenting all their evidence and before the DT starts presenting evidence/witnesses for their defense.

Each scenario has it's pros and cons. Given this specific case, when do you think the DT will make their opening remarks?

TIA-
Elizabeth

I think they absolutely have to give their opening statement at the beginning. Otherwise, the jurors will have their minds set in favor of the State by the time the defense case starts weeks later.

 

[ThinkTank]

Is there any rule or statute on the length of time for opening statements?
Can the Judge put a time limit of any kind on either side's opening statements?

 

[Sun]

I was browsing through the Clerk of Courts records, and noticed that the consolidated case #48-2008-CF-013331-O appears to have disappeared off the records. This was the record of the combined cases of check/fraud felony convictions. So, when now searching Casey's criminal history, it no longer shows up that she has been convicted of all those felonies.

Has Casey apppeared to somehow get all those felonies expunged from her criminal record? Or is it more likely that some type of clerical error has occurred?

 

[AZlawyer]

Is there any rule or statute on the length of time for opening statements?
Can the Judge put a time limit of any kind on either side's opening statements?

I don't know of any rule or statute. The judge can and probably will set a time limit.

I was browsing through the Clerk of Courts records, and noticed that the consolidated case #48-2008-CF-013331-O appears to have disappeared off the records. This was the record of the combined cases of check/fraud felony convictions. So, when now searching Casey's criminal history, it no longer shows up that she has been convicted of all those felonies.

Has Casey apppeared to somehow get all those felonies expunged from her criminal record? Or is it more likely that some type of clerical error has occurred?

We would have heard if she had somehow managed to get them expunged, and I don't see how she could have done that. Plus several counts are still awaiting final adjudication. There may be a mistake on the clerk's website.

 

[thumbtack]

If all 5 alternates are used & need more, would it most likely end in mistrial? In your opinion, should JP have picked more alternates for this lengthy trial?

 

[AZlawyer]

If all 5 alternates are used & need more, would it most likely end in mistrial? In your opinion, should JP have picked more alternates for this lengthy trial?

Yes, it would end in a mistrial if there are not enough alternates. IMO, HHJP will be very very cautious about using the alternates.

I was more comfortable with HHJP's initial instinct that 8 alternates were needed. However, 5 will probably be OK if he can really keep the length of the trial down to 6 weeks. Keeping my fingers crossed....

 

[thumbtack]

AZ, I was listening to you on the WS radio show, but lost audio part way through. I think you said that you don't believe the defense will use accidental death since there is a lot of evidence of premeditation (e.g. computer searches). Since I greatly value your opinion, do you feel the DT could pose something along the lines of:

Due to all the past family abuse & resulting PTSD, ICA was searching for ways to hurt her family the most & fantasized about killing Caylee to get back at them. One of the times she was in such a rage that she couldn't stop herself & suffocated Caylee.

If the DT used something like this, would this be 2nd degree murder?

Thanks so much for considering!

 

[AZlawyer]

AZ, I was listening to you on the WS radio show, but lost audio part way through. I think you said that you don't believe the defense will use accidental death since there is a lot of evidence of premeditation (e.g. computer searches). Since I greatly value your opinion, do you feel the DT could pose something along the lines of:

Due to all the past family abuse & resulting PTSD, ICA was searching for ways to hurt her family the most & fantasized about killing Caylee to get back at them. One of the times she was in such a rage that she couldn't stop herself & suffocated Caylee.

If the DT used something like this, would this be 2nd degree murder?

Thanks so much for considering!

It was the other way around--I said I think they WILL argue accidental death as the evidence of premeditation is the WEAKEST evidence in the case.

The defense team is not going to have any psychiatrist types testifying in the guilt phase and has admitted that Casey has not been diagnosed with PTSD, so the scenario you mentioned above is not likely to be brought up. Also, PTSD would not reduce first-degree murder to second-degree murder.

 

[Paintr]

I realize this is a bit OT since the trial hasn't even started yet, but could you please explain a bit about the penalty phase...how it works, what each side does, who testifies, ect.

I was reading about another DP trial and the article mentioned that evidence was allowed/not allowed in by the judge and that motions were put forth on who could testify during this phase or what was allowed to be said in court, just as we have seen leading up to this trial's guilt phase. This was a surprise to me as I had thought that the penalty phase was, more or less, just pleading for the defendant's life to be spared.

 

[AZlawyer]

I realize this is a bit OT since the trial hasn't even started yet, but could you please explain a bit about the penalty phase...how it works, what each side does, who testifies, ect.

I was reading about another DP trial and the article mentioned that evidence was allowed/not allowed in by the judge and that motions were put forth on who could testify during this phase or what was allowed to be said in court, just as we have seen leading up to this trial's guilt phase. This was a surprise to me as I had thought that the penalty phase was, more or less, just pleading for the defendant's life to be spared.

The penalty phase is like another mini-trial in which the issues are whether certain aggravating and mitigating circumstances exist. There will be opening statements, witnesses and exhibits, closing statements, jury deliberations, etc. The evidence rules are looser, however.

The jury will make a recommendation of death or LWOP (majority vote required for death recommendation). The judge will then hold another hearing to decide whether or not to accept the jury's recommendation.

 

[Oakley]

Just heard the DT turned over discovery today. Could it be something we've not yet seen? Could it be something the SA has not seen prior to today? Is this permitted? TIA

 

[AZlawyer]

Just heard the DT turned over discovery today. Could it be something we've not yet seen? Could it be something the SA has not seen prior to today? Is this permitted? TIA

It could be just "demonstrative exhibits" for the opening statement--exhibits that are not "evidence" but created by the attorneys to help present the case to the jury (charts, blowups of documents, etc.).

If it is something truly new, the DT better have a darn good reason why they couldn't produce it earlier.

 

[Coley]

I'm not sure if you would call this a legal question but here it goes. So since KC has been in a "protective" cell will she be moved in to population right when the verdict is given?

 

[Baznme]

Listening to this morning's news, there was a comment that there is a fear the trial could end in a "mistrial" because of the low number of alternate jurors. That concerns me greatly. With only 5 alternates, what do you feel the chances are of that happening?

Hate to quote my own post, but no one seemed to address my question directly. I can see from some of the answers to other posters, that it "could" become a problem, but would it result in a mistrial if they run out of alternates and they come up one short if one of the original jurors needs to be excused?