Legal Questions for our VERIFIED Lawyers #3

[AZlawyer]

Thanks for your response, AZ. I love Arizona, by the way.

Is it common when screening jurors to go on and on and on about mitigating circumstances? Several jurors have asked what they mean, and the attorney explains and explains to where it's so tiresome, I don't see how the poor person can keep up - after being grilled and dried about their personal lives first. I can understand if they asked the person if they'd be willing to consider certain factors and make a decision after it's been discussed, but they keep throwing out all sorts of "examples" that I think should wait for trial. It's like they're trying to sway the jurors now, and the poor jurors are trying to keep up. This is part of the reason this process is taking ridiculously long. I won't even mention how many people have changed their answers during all this! :banghead:

I would also like to ask is it normal to get this personal with jury? What would happen if you failed to answer some of these personal questions??? After jb showed that booking pic of that gentleman, along with mentioning a friends name to one of the PJ's on facebook--makes one wonder if they really would want to serve....What would happen if they when asking a jurior "Do you want to be on the Jury" if they said "NO"--I certainly wouldn't want to be that interigated...and there isn't anything in my background....I can get some of the questions but some of the others...:banghead::waitasec:

tia....:seeya:

Yes, it is very common to question potential jurors in a DP case about mitigating circumstances, and also very common to get very personal with potential jurors in a DP case. Jury selection is tremendously important in this kind of case.

The potential jurors have to answer the questions unless the judge sustains an objection. They could ask to answer in private if they feel uncomfortable about answering in public.

Nothing would happen if a potential juror said they didn't want to be on the jury, except that someone might strike them for that reason.

I'm worried about appeals issues with His Honor seating the first twelve who made it to round 3...he's pushing the opening statements date for May 17, 2011...I'm wondering if His Honor pushing like he is, not allowing the DT to pick the 18 from 100 propspective jurors but from the handful that made it through voir dire meeting the DP qualifiers, the publicity and hardships...will his process hold up and not get overturned on appeal or a new trial...JMHO

Justice for Caylee

No one ever gets to "pick" any jurors, so it's not an appeal issue to seat the first 12 who are not stricken by either party. That's how it's always done. The part that's different is not letting the parties get 40+ potential jurors who get through the whole voir dire process before deciding how to use their strikes (12 jurors plus 8 alternates plus 10 strikes plus however many additional strikes HHJP allows because of the number of alternates). I'm a little concerned about that process, unless it's been previously approved by a Florida appellate court.

Of course, if the defense doesn't object, this won't be a problem on appeal. Are they objecting?

Can Casey present her own closing argument or present her own case?

Could be a good way to present her own story.

She probably could have qualified to do that, but she didn't ask. And she would have to take over the whole case--questioning witnesses, etc.--not just a tiny piece of the case (e.g., closing argument).

Disclaimer: This is an oversimplification. I promise if Casey stands up and demands to represent herself that we will have a more in-depth conversation on this thread.

 

[uklaw]

She probably could have qualified to do that, but she didn't ask. And she would have to take over the whole case--questioning witnesses, etc.--not just a tiny piece of the case (e.g., closing argument).

Disclaimer: This is an oversimplification. I promise if Casey stands up and demands to represent herself that we will have a more in-depth conversation on this thread.

Snipped to relevant part, with respect of course.

Well that's what I was asking: could she ask to do part of the case (i.e. act as one of her own counsel, since there is nothing stopping there being different counsel who handle different parts of the case why can Casey not handle part of the case herself)?

Anyway: Are you sure that a Defendant cannot handle part of her case by herself? Their is a constitutional right to pro se representation, a right to counsel what is there to say she cannot "mix and match". I wonder if there is any case law, statute or other source of law on this.

N.B. Even if she couldn't handle part of her case, the obvious way round it would be firing her legal team right before closing arguments start.

 

[allycat1208]

Can a potential juror be fined for omitting any criminal charges against him on his questionnaire? Also, if the defense or prosecution proves that a potential juror violated court rules by going on facebook and blogging about the case after being warned not to, can they be fined?

 

[uklaw]

No one ever gets to "pick" any jurors, so it's not an appeal issue to seat the first 12 who are not stricken by either party. That's how it's always done. The part that's different is not letting the parties get 40+ potential jurors who get through the whole voir dire process before deciding how to use their strikes (12 jurors plus 8 alternates plus 10 strikes plus however many additional strikes HHJP allows because of the number of alternates). I'm a little concerned about that process, unless it's been previously approved by a Florida appellate court.

Of course, if the defense doesn't object, this won't be a problem on appeal. Are they objecting?

BBM

Don't think so: the Defense have to avoid irking the judge with over-objecting otherwise it will become second nature to overrule them.

But even so can it come in by way of ineffective assitance?

 

[Shadow5618]

Since all the DT's efforts to delay this trial have failed up to this point........could Casey fire her DT at this late date? Could the DT "fire" her? (ie, withdraw) That would most certainly delay the trial - but would HHJP allow it this close to opening statements?

 

[ZsaZsa]

Re THE lady that JA tried to strike yesterday.
If she is really as slow to grasp or comprehend the evidence as she seemed to be about the fairly simple questions she was asked during the VERY long interview, what will happen once she's on the Jury if she just cannot process it all? That would be quite a dilemma, what would the Jury Foreman be able to do about it? Anything?
What if she persists with her "don't ask me to judge others' stance when they are considering the evidence?

 

[Lexington]

Who decides the number of jurors and alternates to hear a case or is it statutory? Can those numbers be changed once jury selection starts? IE, from 8 alternates to 4 or 6.

 

[rhornsby]

Who decides the number of jurors and alternates to hear a case or is it statutory? Can those numbers be changed once jury selection starts? IE, from 8 alternates to 4 or 6.

The number of jurors is set by Florida Statute 913.10 at 12 for capital cases. The number of alternates is completely at the judge's discretion. But if there are not enough alternates, and the number dips below 12 for some reason during the trial, the defense can demand a mistrial.

And no, once the jury is sworn in, no new jurors can be added during the trial. As only someone who has heard all of the evidence can deliberate in the verdict.

 

[rhornsby]

Since all the DT's efforts to delay this trial have failed up to this point........could Casey fire her DT at this late date? Could the DT "fire" her? (ie, withdraw) That would most certainly delay the trial - but would HHJP allow it this close to opening statements?

There have been a few capital cases through the years where the defendant has [ame="http://en.wikipedia.org/wiki/List_of_people_who_have_acted_as_their_own_criminal_defense_attorney"]fired his/her defense team and acted as his own attorney[/ame].

Usually this is done so that the defendant can pseudo testify by his cross-examination of witnesses, but at the same time not be cross-examined by the State.

Also, it is more frequently done in the penalty phase where the defendant can give an opening statement of why death should not be executed, but again not be cross-examined because never actually testified.

 

[Shadow5618]

What if she doesn't want to act as her own attorney but wants a new DT instead? Granted, she's indigent so she would have to accept a public defender - but could that happen at this late date?

 

[Wise Old Owl]

There have been a few capital cases through the years where the defendant has fired his/her defense team and acted as his own attorney.

Usually this is done so that the defendant can pseudo testify by his cross-examination of witnesses, but at the same time not be cross-examined by the State.

Also, it is more frequently done in the penalty phase where the defendant can give an opening statement of why death should not be executed, but again not be cross-examined because never actually testified.

Thank you - that is interesting. Question is - is ICA "educated" enough to be able to do that? Don't think so.

I gots another question. I know this is out there - but its been bugging me and I really wouldn't put it past this group.


What happens if CA takes the stand and says "SHE DID IT" - just puts it out there "I DID IT"!

What happens? Is there a mistrial? Do they arrest CA and JB immediately moves to dismiss all charges against ICA and she goes free? What?

I wouldn't put it past any of them to try something like this.

 

[SoCalSleuth]

Snipped to relevant part, with respect of course.

Well that's what I was asking: could she ask to do part of the case (i.e. act as one of her own counsel, since there is nothing stopping there being different counsel who handle different parts of the case why can Casey not handle part of the case herself)?

Anyway: Are you sure that a Defendant cannot handle part of her case by herself? Their is a constitutional right to pro se representation, a right to counsel what is there to say she cannot "mix and match". I wonder if there is any case law, statute or other source of law on this.

N.B. Even if she couldn't handle part of her case, the obvious way round it would be firing her legal team right before closing arguments start.

The 6th amendment guarantees one the right to represent themselves during a criminal trial, unless the court finds that they lack the mental capacity to do so--not the intelligence to do so but rather mental capacity. Indiana v. Edwards. It has happened. Sometimes the trial court keeps DT on to assist the defendant. I mentioned Ted Bundy did it previously--not because he went to law school but because he requested it.

 

[SoCalSleuth]

Thank you - that is interesting. Question is - is ICA "educated" enough to be able to do that? Don't think so.

I gots another question. I know this is out there - but its been bugging me and I really wouldn't put it past this group.


What happens if CA takes the stand and says "SHE DID IT" - just puts it out there "I DID IT"!

What happens? Is there a mistrial? Do they arrest CA and JB immediately moves to dismiss all charges against ICA and she goes free? What?

I wouldn't put it past any of them to try something like this.

See my prior post--ICA's intelligence has no bearing on whether court would allow her to represent herself if she requested to do so. RE CA-if she claims she did "it" (ie killed Caylee intentionally) -that would not be grounds for a mistrial. JB could ask that the charges be dismissed but after SA argued the motion it is doubtful JP would grant the request since the evidence against ICA is so overwhelming and my guess is there would be no evidence to support any claim by CA that she did "it" that would be sufficient to support a motion to dismiss. No, the media might have a field day with that scenario but CA would just be examined by the parties and the trial would move forward.

 

[logicalgirl]

Can we have a legal comment for the use of the words "alleged victim Caylee Anthony" in this trial. I understand that this trial is the State vs. Casey Marie Anthony, who is presumed innocent until proven guilty. She is an alleged murderer, and Caylee is her alleged victim, even though we know she is a victim because she is dead - many posters are angry with the semantics. With thanks.

 

[rhornsby]

Can we have a legal comment for the use of the words "alleged victim Caylee Anthony" in this trial. I understand that this trial is the State vs. Casey Marie Anthony, who is presumed innocent until proven guilty. She is an alleged murderer, and Caylee is her alleged victim, even though we know she is a victim because she is dead - many posters are angry with the semantics. With thanks.

Who is calling Caylee the "alleged victim"? While there is no rule or case that prevents anyone from referring to her that way, I suspect it is only the defense. In which case there is nothing you can do but be frustrated, as it is the defense's right to refer to the victim that way.

 

[rhornsby]

Thank you - that is interesting. Question is - is ICA "educated" enough to be able to do that? Don't think so.

I gots another question. I know this is out there - but its been bugging me and I really wouldn't put it past this group.


What happens if CA takes the stand and says "SHE DID IT" - just puts it out there "I DID IT"!

What happens? Is there a mistrial? Do they arrest CA and JB immediately moves to dismiss all charges against ICA and she goes free? What?

I wouldn't put it past any of them to try something like this.

Wouldn't be the first time something like that has happened. A mistrial would not be warranted and how to proceed would be up to the state. Likely, the State would impeach her with her prior testimony, then continue with the prosecution against Casey. If Casey is convicted, Cindy would probably be prosecuted for perjury. If Casey is acquitted, Cindy would be prosecuted for perjury and possibly murder.

 

[rhornsby]

What if she doesn't want to act as her own attorney but wants a new DT instead? Granted, she's indigent so she would have to accept a public defender - but could that happen at this late date?

Only with the court's permission. The court would have to grant the request, and likely would not.

 

[pip]

Who is calling Caylee the "alleged victim"? While there is no rule or case that prevents anyone from referring to her that way, I suspect it is only the defense. In which case there is nothing you can do but be frustrated, as it is the defense's right to refer to the victim that way.

Meaning, if her death was due to an accident.. they would not refer to her as a victim. I believe the defense will be an accident and ugly coping afterwards. If they were going to try to pin George or SODDI they would refer to her as a victim.

 

[Wise Old Owl]

Wouldn't be the first time something like that has happened. A mistrial would not be warranted and how to proceed would be up to the state. Likely, the State would impeach her with her prior testimony, then continue with the prosecution against Casey. If Casey is convicted, Cindy would probably be prosecuted for perjury. If Casey is acquitted, Cindy would be prosecuted for perjury and possibly murder.

Thank you. I kinda thought it would work the way you said. Man oh man - can you see the media scrum that THAT would cause? lol

Ok - another one. HHJP said that each side will get a chance to strike anyone before he swears them in. Could the State strike the woman that they tried to do the other day - or is she immune now? I mean, if they want to strike someone now - do they have to give a reason still? Or can they just say - "we don't want this one" and she's gone?

 

[uklaw]

There have been a few capital cases through the years where the defendant has fired his/her defense team and acted as his own attorney.

Usually this is done so that the defendant can pseudo testify by his cross-examination of witnesses, but at the same time not be cross-examined by the State.

Also, it is more frequently done in the penalty phase where the defendant can give an opening statement of why death should not be executed, but again not be cross-examined because never actually testified.

The 6th amendment guarantees one the right to represent themselves during a criminal trial, unless the court finds that they lack the mental capacity to do so--not the intelligence to do so but rather mental capacity. Indiana v. Edwards. It has happened. Sometimes the trial court keeps DT on to assist the defendant. I mentioned Ted Bundy did it previously--not because he went to law school but because he requested it.

Sorry if you have answered this - just so I get it clear since I am still confused - is ICA allowed to keep her defense team as counsel of record and not "standby counsel" so that she can pseudo-testify and do part of the closing argument. That is to say, can Casey Anthony keep her current defense team but present her own closing argument at the same time.

IIRC, Ted Bundy fired his counsel (although AFAIK, the Judge kept them as Standby counsel). So that is not exactly the same as what is being suggested here.

I know the defense have been trying to get ICA's story/testimony in anyway they can without her actually testifying. However, I don't think she could handle the entirety of the final part of her case by herself. So if she could use her "closing argument" or part of it to suggest, shall we say, her side of the story it would seem like a possible - indeed, creative - strategy. Also if she did it this way would she not be able to avoid the admission of her prior felony convictions (per section 90.806 Florida Statute, Huggins v. State, 889 So. 2d 743, 756 (Fla. 2004), as explained in Richard Hornsby's post, "Casey Anthony: Insufficient Funds (Part Uno)")?

Who is calling Caylee the "alleged victim"? While there is no rule or case that prevents anyone from referring to her that way, I suspect it is only the defense. In which case there is nothing you can do but be frustrated, as it is the defense's right to refer to the victim that way.

I think the defense objected to the terms "murder" and "victim" being used during the voir dire process IIRC. I think the judge told the SA to stop referring to her death as a "murder" and (I think) Caylee as the "victim" during questioning of the Potential Jurors. I assumed this was because no evidence had been presented as yet since the Trial has not started.

Wouldn't be the first time something like that has happened. A mistrial would not be warranted and how to proceed would be up to the state. Likely, the State would impeach her with her prior testimony, then continue with the prosecution against Casey. If Casey is convicted, Cindy would probably be prosecuted for perjury. If Casey is acquitted, Cindy would be prosecuted for perjury and possibly murder.

I thought along a similar line. However, I did think that CA would be more shrewd. As in she would originally plead the fifth, get use immunity and then make the admission (although she would still be open for perjury of course). Coming to think of it now, she could better protect her position by saying she caused the death by "accident".

Out of interest can a person be charged with two contradictory offences (they would obviously have to be pled in the alternative I assume) on the same indictment (i.e. CA being charged with Murder and Perjury on the basis of her testifying she committed murder).

It's interesting that you say that stuff like this has happened previously in the US. There have been similar cases in the UK (including one case in Scotland in the 1960s or 70s - which I forget - where the actual murderer decided to testify on his own behalf that he did not commit the murder and then after his acquittal had the audacity to sell his story to a tabloid including an account of him committing the murder: Her Majesty's Advocate v. Cairns). Seems weird that such a bizarre set of circumstances occurs with relative frequency :/ .

Only with the court's permission. The court would have to grant the request, and likely would not.

I am a reader of your blog. I remember your post where you suggested that a suitable option would be for Judge Perry to declare a mistrial (http://blog.richardhornsby.com/2011/04/we-can-only-dream/). Well I assume that is what you meant when you said:

What should be done, the answer is obvious and does not need to be said. But for those who are wondering what the answer is, might I suggest you read:

Washington Post: D.C. Superior Court judge declares mistrial over attorney’s competence in murder case

Although, you also suggested that JP "require Casey Anthony’s lawyers to follow Rule 3.112 and demand that Ms. Finnell, or unfortunately, Cheney Mason act as lead attorney" in the same post. Do you think that is unlikely now?

It is a shame because although I used to get a good laugh watching The Clueless Wonder as you aptly call him, he is starting to become irksome.



---------

As always thanks for your assistance.