I am not going to presume which 'facts' the Judge is referring to in his statement. JA references to the LAW may be the facts the Judge is referring to.
From the video referenced below (transcribed but not word by word)
JA: the facts that the defense argued their opinion and that the death penalty is available for 1st degree murder w/out special aggravating circumstances in FL. Why does prosecution waive it sometimes (to bring it before a jury) is more appropriate. Case law does say court is not permitted to make a pre-trial decision on special/aggravated circumstances - but that is what defense is arguing. Can if there is "bad-faith" for decision- case law is limited to where it can be shown if based on race, gender, religious beliefs or sexual orientation. Prosecutor is trying to punish defendant outside of the crime - defense has not presented anything that shows prosecutorial decision has done so. Defense goes on to allege that before Caylee's body was not found and no death penalty and once body was found and state's case became stronger then prosecutor needed 'advantage' of death penalty jury to win - why waive when case weaker and reinstate when stronger?
Then JA goes on with the innocence statement and the worst case scenario he gave which others are assuming are the 'facts' the Judge is referring to in his order.
15:32 (about where JA starts)
http://www.wftv.com/video/21931707/index.html
MOO
