Procedure and legal questions

[Dear Prudence]

Yes, ZG will almost certainly be deposed. But I don't think JB is involved in the civil suit. I can't remember the name of KC's civil attorney.

her attorney in the civil case is Jonathan Kasen. He assisted Baez on his last murder case defending Nilton Diaz. Kasen has not appeared at any of the depositions conducted by Morgan. Why wouldn't he attend these depositions? I just don't understand why the person being accused in a civil suit (Casey) would not have a lawyer present for every event in the case.

 

[ClockWatcher]

Will one of our legal minded posters please explain what this charge means?? Is it Felony murder? First degree murder? Capitol Murder? Murder? Homicide? Florida Murder? What exactly is it?

Phase: Initial
Defendant: CASEY MARIE ANTHONY Count #: 001
Offense Date: 6/15/2008 Citation #:
Complaint Date: Information Date: 10/14/2008
Statute: 782.04(1)(A)(1) - FIRST DEGREE MURDER
General Offense Category:
Charge Level: FELONY Charge Degree: CAPITAL
Phase: Prosecutorial
Defendant: CASEY MARIE ANTHONY Count #: 001
Offense Date: 6/15/2008 Citation #:
Complaint Date: Information Date: 10/14/2008
Statute: 782.04(1)(A)(1) - FIRST DEGREE MURDER
General Offense Category:
Charge Level: FELONY Charge Degree: CAPITAL
Result: FILED/NOT DISPOSED AT PROSECUTORS LEVEL Result Date: 10/14/2008


Thank you!

 

[Themis]

Will one of our legal minded posters please explain what this charge means?? Is it Felony murder? First degree murder? Capitol Murder? Murder? Homicide? Florida Murder? What exactly is it?

Phase: Initial
Defendant: CASEY MARIE ANTHONY Count #: 001
Offense Date: 6/15/2008 Citation #:
Complaint Date: Information Date: 10/14/2008
Statute: 782.04(1)(A)(1) - FIRST DEGREE MURDER
General Offense Category:
Charge Level: FELONY Charge Degree: CAPITAL
Phase: Prosecutorial
Defendant: CASEY MARIE ANTHONY Count #: 001
Offense Date: 6/15/2008 Citation #:
Complaint Date: Information Date: 10/14/2008
Statute: 782.04(1)(A)(1) - FIRST DEGREE MURDER
General Offense Category:
Charge Level: FELONY Charge Degree: CAPITAL
Result: FILED/NOT DISPOSED AT PROSECUTORS LEVEL Result Date: 10/14/2008


Thank you!

"Is it Felony murder? First degree murder? Capitol Murder? Murder? Homicide? Florida Murder? What exactly is it?"

I will try to give short, non-legal-jargon answers, if you promise that I can tweak later depending on how the discussion turns. :blowkiss:

It is first degree, premeditated murder. Felony murder is when the murder is committed during the course of a felony. A guy is robbing the 7-11 with a gun. During the course of the robbery (a felony) he shoots the store attendant, who dies. That's felony murder (aggravated by the use of a firearm). "Capital" murder is a murder that qualifies under a specific statute authorizing the death penalty. (I suppose a "capitol" murder would be one that took place in a state or federal capitol building? :waitasec Murder is a common name for an unlawful killing. An unlawful killing happens when there is not a legal justification for a killing. For example, when a surgeon operates and the patient dies due to the operation but it was not medical malpractice, just the frail condition of the patient, who consented to the surgery; then the death was covered as being legally justified -- trying to save the patient. There was intent to do that act knowing the patient might die, but the intent of the surgeon was to save the patient. Homicide means the killing of a human being. Sometimes it means the same as murder, but it is broader than that since murder requires specific intent. (That's a whole other conversation -- "specific intent.")

Bottom line, the charge is for premeditated murder also commonly known as first degree murder. It is a class of homicide. It is a capital offense because the death penalty is justified. To use your term, it is also a Florida murder, although that's not a real legal term at all. :blowkiss:

 

[marspiter]

Clockwatcher,

I'm not a lawyer but from my limited experience.
Statute 782.04(1)(A)(1) is the statute for First Degree Murder in Florida.

Charge level would simply mean that it is a felony for example in North Carolina Murder is a class A felony.

Charge degree simply means it a capitol offense that carries with it the possibilty of capitol punishment.

The system that you pulled that information from looks some what similiar to OPUS here in NC which was adopted by the Department of Corrections from....of all states Florida.

Like I said I am not positive but I think that explains the charges listed there.

Well nevermind Themis beat me to it while I was typing.

 

[butwhatif?]

Is it legal in FL to show a photo line-up to a witness where every pic is of the same person, rather than 12 different people of similar features/likeness?
TIA

 

[Themis]

Is it legal in FL to show a photo line-up to a witness where every pic is of the same person, rather than 12 different people of similar features/likeness?
TIA

I don't know that it would be illegal, but no rational prosecutor is going to try to use it because it is so prejudicial and not particularly probative of the issue of whether or not the witness can identify the perpetrator. Stuff like this is what get convictions reversed on appeal.

 

[Themis]

Clockwatcher,

I'm not a lawyer but from my limited experience.
Statute 782.04(1)(A)(1) is the statute for First Degree Murder in Florida.

Charge level would simply mean that it is a felony for example in North Carolina Murder is a class A felony.

Charge degree simply means it a capitol offense that carries with it the possibilty of capitol punishment.

The system that you pulled that information from looks some what similiar to OPUS here in NC which was adopted by the Department of Corrections from....of all states Florida.

Like I said I am not positive but I think that explains the charges listed there.

Well nevermind Themis beat me to it while I was typing.

You did just fine. :blowkiss:

 

[ClockWatcher]

:floorlaugh:
"Is it Felony murder? First degree murder? Capitol Murder? Murder? Homicide? Florida Murder? What exactly is it?"

I will try to give short, non-legal-jargon answers, if you promise that I can tweak later depending on how the discussion turns. :blowkiss:

It is first degree, premeditated murder. Felony murder is when the murder is committed during the course of a felony. A guy is robbing the 7-11 with a gun. During the course of the robbery (a felony) he shoots the store attendant, who dies. That's felony murder (aggravated by the use of a firearm). "Capital" murder is a murder that qualifies under a specific statute authorizing the death penalty. (I suppose a "capitol" murder would be one that took place in a state or federal capitol building? :waitasec Murder is a common name for an unlawful killing. An unlawful killing happens when there is not a legal justification for a killing. For example, when a surgeon operates and the patient dies due to the operation but it was not medical malpractice, just the frail condition of the patient, who consented to the surgery; then the death was covered as being legally justified -- trying to save the patient. There was intent to do that act knowing the patient might die, but the intent of the surgeon was to save the patient. Homicide means the killing of a human being. Sometimes it means the same as murder, but it is broader than that since murder requires specific intent. (That's a whole other conversation -- "specific intent.")

Bottom line, the charge is for premeditated murder also commonly known as first degree murder. It is a class of homicide. It is a capital offense because the death penalty is justified. To use your term, it is also a Florida murder, although that's not a real legal term at all. :blowkiss:

Thank you Themis!

So what is all the fuss about whether the State has made the right charge against KC? If you care to discuss that issue?

Sorry about using the incorrect terms above, capitol instead of capital...I was in a hurry to cover all the terms I could think of. :doh:

Please feel free to tweak at any time, anything that may be necessary to tweak.

I appreciate your time and effort to help us all figure out just what the heck is going on with all the legal aspects!!

 

[cecybeans]

Is it legal in FL to show a photo line-up to a witness where every pic is of the same person, rather than 12 different people of similar features/likeness?
TIA

Would it be deemed prejudicial if, in all of the photos of the same person, the subject's appearance had been so radically altered in each photo that they looked like different people?

For instance, we've all seen pix of KC with short hair, long hair, in various colors and made up differently. Heck, she hasn't always looked like the same person even in the various court appearances we've seen her in. If LE thought that a specific person might have appeared using an alternate look, or is known for a range of looks, (particularly if the person being interviewed may not have had much time in the person's presence or if it was a while ago in time) in order to give the interviewee a greater chance of recognizing the person, would that be any different than showing them one picture and saying "have you ever seen this person?". Just curious as to how that might affect a jury's perception of the explanation of why this particular strategy may have been used.

 

[ClockWatcher]

Clockwatcher,

I'm not a lawyer but from my limited experience.
Statute 782.04(1)(A)(1) is the statute for First Degree Murder in Florida.

Charge level would simply mean that it is a felony for example in North Carolina Murder is a class A felony.

Charge degree simply means it a capitol offense that carries with it the possibilty of capitol punishment.

The system that you pulled that information from looks some what similiar to OPUS here in NC which was adopted by the Department of Corrections from....of all states Florida.

Like I said I am not positive but I think that explains the charges listed there.

Well nevermind Themis beat me to it while I was typing.

marspiter, what? Not an attorney? Holiday Inn Express last night, perhaps? Just really dang bright? Wow, I already love ya... you are a wonderful addition here!!

The charge thingie I posted is straight from the Orange County Clerk site. MyOrangeClerk.com

Themis... yup, she's quick and she just makes the world a better place!

 

[Themis]

Thank you Themis!

So what is all the fuss about whether the State has made the right charge against KC? If you care to discuss that issue?

Sorry about using the incorrect terms above, capitol instead of capital...I was in a hurry to cover all the terms I could think of. :doh:

Please feel free to tweak at any time, anything that may be necessary to tweak.

I appreciate your time and effort to help us all figure out just what the heck is going on with all the legal aspects!!

Not a problem at all about capital vs capitol. :hand:

I think all the fuss about premeditated murder vs felony murder is based on peoples' different theories of the case. For example, if KC did use chloroform or dangerous drugs to knock Caylee out, that would be aggravated child abuse; a felony. It would be so grossly reckless that even if KC didn't intend to kill Caylee, but Caylee died as a result, it could be second degree murder or felony murder. Premeditated murder indicates the prosecution will have to prove that KC intended to kill Caylee by whatever methods she used to do it; ie smothering with duct tape.

 

[JBean]

Thank you Themis!

So what is all the fuss about whether the State has made the right charge against KC? If you care to discuss that issue?

Sorry about using the incorrect terms above, capitol instead of capital...I was in a hurry to cover all the terms I could think of. :doh:

Please feel free to tweak at any time, anything that may be necessary to tweak.

I appreciate your time and effort to help us all figure out just what the heck is going on with all the legal aspects!!

I think part of the fuss is about determining whether she has been charged with Felony Murder. In reading the posts, I think we now agree that she has not been charged with felony murder and we can put that part behind us.

Kc's is charged with- 782.04(1)(a)(1)

Felony Murder charge is 782.04(1)(a)(2)

I think some of the confusion is the fact that while she is of course charged with a felony ,it is not the same thing as being charged with Felony Murder.

However there is also debate as to whether felony murder can still be given to the jury to consider even though she hasn't been charged with it.


does that help?

 

[Themis]

According to the Florida standard jury instructions I just posted on the guilty/not guilty thread, felony murder can be a lesser included offense of premeditated murder under Florida law.

 

[JBean]

According to the Florida standard jury instructions I just posted on the guilty/not guilty thread, felony murder can be a lesser included offense of premeditated murder under Florida law.

Thanks for posting those instructions. But the very first sentence is the 64k question for me.

[ame="http://www.websleuths.com/forums/showpost.php?p=3947133&postcount=555"]Websleuths Crime Sleuthing Community - View Single Post - "G (Guilty)" vs "NG (Not Guilty)" Where do you stand?[/ame]

7.2 MURDER—FIRST DEGREE​

§ 782.04(1)(a), Fla. Stat.
​

When there will be instructions on both premeditated and felony murder, the following explanatory paragraph should be read to the jury

Isn't that what we are trying to determine? These instructions seem to be for a case where it has been determine there will be instructions on both.

I am not debating one side or the other..I have no idea. I am just trying to get to the truth. I have heard very persuasive arguments for both sides and have thoroughly enjoyed reading this thread.

Ok I will finish reading your post and perhaps will answer my own question lol.

ETA: The lesser degree chart is very helpful! But item six is interesting.

 

[Wudge]

SNIP

7.2 MURDER—FIRST DEGREE​

§ 782.04(1)(a), Fla. Stat.
​

When there will be instructions on both premeditated and felony murder, the following explanatory paragraph should be read to the jury

Isn't that what we are trying to determine? These instructions seem to be for a case where it has been determined there will be instructions on both.

SNIP

You are correct JBean.

Casey has not been charged with felony murder. However, depending on what prosecutors might allege the circumstances and evidence to be, they could move to amend the current charges. Moreover, Florida has a three-tier approach to felony murder -- felony murder in Florida is based on proximate cause liability, not agency.

The three possibilities for a charge of felony murder in Florida are: first-degree felony murder [statute 782.04 (1)a(2)], second-degree felony murder [statute 782.04 (3)] and third-degree felony murder [statute 782.04 (4)].

 

[ClockWatcher]

I have to admit that I was thoroughly confused.

Looking at the charges against KC, well... they contained all the terms that were being debated. I was unable to comprehend the debate as I believe the SA knows the facts in this case and wouldn't just arbitrarily charge the defendant without having very strong evidence to support those charges.

With all the additional information and explanation of the terms, charges and jury instructions, I feel as if I have a better grasp on what has fueled the debate. So, thank you to my fellow poster's who are more than gracious and kind enough help in furthering our understanding of the law and the way things work.

I do want to apologize to Wudge for thinking that you were deliberately being contrary and vexatious, for sport. Now I'm able to at least understand where you're coming from in your side of the argument. Thank you for all of your excellent posts, especially, Jane and the Wayward Hike. (Were those children wearing hiking boots and had sunscreen been applied?)

 

[Themis]

In some jurisdictions, a lesser included offense doesn't have to be written on a charge sheet. It is automatically included as a listed "lesser included offense" ("LIO"). There is already notice for that defense because it is listed as a lesser included offense. Therefore, the jury could be instructed to decide guilt on an LIO of premeditated murder.

The prosecutors would not have to amend the charge sheet to include an LIO. It is already there, included in the greater charge of premeditated murder.

The citation below is to an article about military law, it is generally applicable. I have not researched Florida state law on this topic.

In a contested criminal trial, the accused may in fact be on trial for more charges than appear on the charge sheet. This may not seem right, or logical, but the law provides that if the judge or the jury finds an accused not guilty of an offense he is charged with, the Court must then deliberate to determine if the accused is guilty of any applicable “lesser included offenses,” which we will refer to in this article as “LIO’s.”
http://www.militarylawyers.org/lesser-included-offense.htm

 

[Themis]

Would it be deemed prejudicial if, in all of the photos of the same person, the subject's appearance had been so radically altered in each photo that they looked like different people?

For instance, we've all seen pix of KC with short hair, long hair, in various colors and made up differently. Heck, she hasn't always looked like the same person even in the various court appearances we've seen her in. If LE thought that a specific person might have appeared using an alternate look, or is known for a range of looks, (particularly if the person being interviewed may not have had much time in the person's presence or if it was a while ago in time) in order to give the interviewee a greater chance of recognizing the person, would that be any different than showing them one picture and saying "have you ever seen this person?". Just curious as to how that might affect a jury's perception of the explanation of why this particular strategy may have been used.

That could be plausible.

 

[Wudge]

I have to admit that I was thoroughly confused.

SNIP

With all the additional information and explanation of the terms, charges and jury instructions, I feel as if I have a better grasp on what has fueled the debate. So, thank you to my fellow poster's who are more than gracious and kind enough help in furthering our understanding of the law and the way things work.

I do want to apologize to Wudge for thinking that you were deliberately being contrary and vexatious, for sport. Now I'm able to at least understand where you're coming from in your side of the argument. Thank you for all of your excellent posts, especially, Jane and the Wayward Hike.

SNIP

Appreciated, though I truly took no slight.

Felony murder is neither a straight forward nor intuitively obvious concept. Opponents of felony murder laws largely hold them to be unconstitutional, and many of their arguments are not without merit.

For states that have a felony murder statute, the law can vary greatly from one state to another. Florida's felony murder laws are based on the theory of proximate cause. Florida's intent is to deliver justice in a more proportional manner than the one-size fits all theory that many other states use. However, another result is that it adds still more complexity to the law, which simply adds still more confusion to the topic.

 

[Themis]

A little more on "Lesser Included Offenses." The following is language from a Florida Supreme Court opinion, Williams v. Florida May 2007, SC06-594.
http://caselaw.lp.findlaw.com/data2/floridastatecases/5_2007/sc06-594.pdf

"The Court recently explained the distinction between necessary and permissive lesser included offenses:​

Lesser included offenses fall into two categories: necessary and permissive. Necessarily lesser included offenses are those offenses in which the statutory elements of the lesser included offense are always subsumed within those of the charged offense. State v. Paul, 934 So. 2d 1167, 1176 (Fla. 2006). A permissive lesser included offense exists when "the two offenses appear to be separate [on the face of the statutes], but the facts alleged in the accusatory pleadings are such that the lesser [included] offense cannot help but be perpetrated once the greater offense has been." State v. Weller, 590 So. 2d 923, 925 n.2 (Fla. 1991).​

Sanders v. State, 944 So. 2d 203, 206 (Fla. 2006) (alteration in original)."

"An instruction on a permissive lesser included offense is appropriate only if the allegations of the greater offense contain all the elements of the lesser offense​

and the evidence at trial would support a verdict on the lesser offense. See Welsh, 850 So. 2d at 470. If an offense meets the criteria for an instruction and verdict choice as either a necessarily or permissive lesser included offense, the State may insist on its inclusion, even over defense objection. See Johnson v. State, 601 So. 2d 219, 220 (Fla. 1992) (holding that State has right to instruction on permissive lesser included offense over defense objection); Gallo v. State, 491 So. 2d 541, 543 (Fla. 1986) (holding that if State declines to consent to defense waiver of instruction on necessarily lesser included offense, waiver is ineffectual and instruction must be given), receded from on other grounds by Gould v. State, 577 So. 2d 1302, 1305 (Fla. 1991)." (Ibid.)

Basically, what this says is Florida does use LIOs, the statute doesn't necessarily contain all of the LIOs of a particular charge, the test is whether the elements for the LIO are also within the list of elements for the greater charge and the defense can't waive the prosecution's right to have the jury instructed on an LIO.