Procedure and legal questions

[Wudge]

It's not what I believe that's important.

SNIP

Then there's no issue, for I am not and have not been talking with "Knight".

(adieu)

 

[lin]

Then there's no issue, for I am not and have not been talking with "Knight".

(adieu)

Wow, that you select that single sentence to quote. I had no idea your point in the discussion was about what I believe. (ha ha)

My point is correct interpretation of applicable law. Since you cannot offer an alternate interpretation of the passage from the jury instructions, much less conflicting authorities, I think we'll all have to assume that it is the applicable, controlling, law of the case. Whether or not you personally agree, it appears to be fact that the KC jury may be instructed on felony murder if the state requests it and if there is evidence to support it.

 

[AZlawyer]

OK, I just read Knight and some later cases interpreting it and my opinion is:

1) Casey clearly was not charged with felony murder;
2) Knight will allow the State to proceed on that theory at trial anyway;
3) The rule in Knight is very likely unconstitutional but obviously the Florida Supreme Court disagrees so this won't make much difference.

 

[wasalurker]

Plse forgive me if this is TOTALLY off base as this is my first post (been lurking for months LOL). Can it really be as simple as:
IN FL (and FL only as I don't know about any others and FL is what has been discussed):

If someone is charged under 782.04 1(A) which is premeditated....that if the jury does not find premeditation then they can find ANY of the other following charges IF the state requests and it's put into the jury instructions?
Such as since "1 and A" are the first # and the first letter then everything else falls under the "umbrella" of them....ie., 782.04 (2) , 782.04 (3), etc as they are all AFTER the 782.04 1(A)

BUT as the other example if they were charged with 782.04 (2) the jury could NOT consider 782.04 (1) because 1 is BEFORE 2 and not able to be applied - but they could consider 782.04 (3) 782.04 (4) etc as those are after them??

I don't know and I could be wayyyyyyyy off base, but through all these discussions it just seemed to me like this is what is being said without being said - KWIM?

I am NOT a lawyer, have not experience in this, but it is what seems to pop out to me with all these discussions. If I am totally wrong then I apologize in advance and sorry.

Oh and thanks everyone for this great forum and for the learning experiences. I am truly learning alot and am now addicted! LOL

 

[AZlawyer]

Plse forgive me if this is TOTALLY off base as this is my first post (been lurking for months LOL). Can it really be as simple as:
IN FL (and FL only as I don't know about any others and FL is what has been discussed):

If someone is charged under 782.04 1(A) which is premeditated....that if the jury does not find premeditation then they can find ANY of the other following charges IF the state requests and it's put into the jury instructions?
Such as since "1 and A" are the first # and the first letter then everything else falls under the "umbrella" of them....ie., 782.04 (2) , 782.04 (3), etc as they are all AFTER the 782.04 1(A)

BUT as the other example if they were charged with 782.04 (2) the jury could NOT consider 782.04 (1) because 1 is BEFORE 2 and not able to be applied - but they could consider 782.04 (3) 782.04 (4) etc as those are after them??

I don't know and I could be wayyyyyyyy off base, but through all these discussions it just seemed to me like this is what is being said without being said - KWIM?

I am NOT a lawyer, have not experience in this, but it is what seems to pop out to me with all these discussions. If I am totally wrong then I apologize in advance and sorry.

Oh and thanks everyone for this great forum and for the learning experiences. I am truly learning alot and am now addicted! LOL

It's not because of which parts of the statute are listed first. The Florida Supreme Court says it is OK because felony murder is really just like premeditated murder except with a felony instead of premeditation....

If this makes no sense to you, it's not because you're not a lawyer.

 

[lin]

Plse forgive me if this is TOTALLY off base as this is my first post (been lurking for months LOL). Can it really be as simple as:
IN FL (and FL only as I don't know about any others and FL is what has been discussed):

If someone is charged under 782.04 1(A) which is premeditated....that if the jury does not find premeditation then they can find ANY of the other following charges IF the state requests and it's put into the jury instructions?
Such as since "1 and A" are the first # and the first letter then everything else falls under the "umbrella" of them....ie., 782.04 (2) , 782.04 (3), etc as they are all AFTER the 782.04 1(A)

BUT as the other example if they were charged with 782.04 (2) the jury could NOT consider 782.04 (1) because 1 is BEFORE 2 and not able to be applied - but they could consider 782.04 (3) 782.04 (4) etc as those are after them??

I don't know and I could be wayyyyyyyy off base, but through all these discussions it just seemed to me like this is what is being said without being said - KWIM?

I am NOT a lawyer, have not experience in this, but it is what seems to pop out to me with all these discussions. If I am totally wrong then I apologize in advance and sorry.

Oh and thanks everyone for this great forum and for the learning experiences. I am truly learning alot and am now addicted! LOL

If you go back a few pages, Themis gave a good explanation of lesser included offenses, or LOI's. Each crime has a list of elements that must be proven. A lesser included offense requires some of the same elements as a higher offense, but not all. Each one down the line requires less and less, hence "lesser included offenses." Another way to look is from bottom up; adding more elements that needs to be proven and that may help to understand it better. And I think the exception or special rule or whatever it is about the inclusion of felony murder was pretty well discussed today, so no need to review that. You seem to understand it pretty well; I can't add much to what you've written and I've been studying on this for a few days now!

 

[lin]

PS: wasalurker, it's not if the jury doesn't find premeditation; the decision is made before the jury begins deliberations; before they make any findings. Earlier today Themis explained pretty well both sides of what may go into making the decision whether or not to request felony murder instructions. [ame=http://www.websleuths.com/forums/showpost.php?p=3987172&postcount=669]Here is her post.[/ame]

 

[DotsEyes]

In State v. Anderson, (FL January 19, 2003), the defendant argued that he was denied his rights when he had been charged with Capital Murder 1 but at the charge conference (when jury instructions are discussed amongst lawyers and judge and which happens immediately before the jury is instructed) the DA threw in Felony murder for kicks.

The FL Supreme Court ruled that the defendant had not shown any reason to recede from Knight, and found the defendant's argument to have no merit.

So, yes, the DA can wait until the charge conference to toss in felony murder and there is no prejudice to the defendant as it is a lesser included charge.

Things may have changed in 6 years, but I can't get the legal sites online here.

 

[lin]

In State v. Anderson, (FL January 19, 2003), the defendant argued that he was denied his rights when he had been charged with Capital Murder 1 but at the charge conference (when jury instructions are discussed amongst lawyers and judge and which happens immediately before the jury is instructed) the DA threw in Felony murder for kicks.

The FL Supreme Court ruled that the defendant had not shown any reason to recede from Knight, and found the defendant's argument to have no merit.

So, yes, the DA can wait until the charge conference to toss in felony murder and there is no prejudice to the defendant as it is a lesser included charge.

Things may have changed in 6 years, but I can't get the legal sites online here.

If there has been a change it's so recent that the jury instructions haven't been updated yet. And keep in mind that Knight was decided 1976. That's a long time to withstand appeals. I can thoroughly understand the reasoning of the courts, using the facts of this case as an example. KC is charged with aggravated child abuse, a felony. She can't claim at the charge conference that she's been blind sided. How would her defense have changed if she had been separately charged with felony murder? She already had to prepare for the felony abuse and the murder.

But more importantly, in my view, after 33 years of this case standing, if her defense doesn't know this is the law of FL, then they really shouldn't be practicing FL criminal law. KC should have been told by counsel from day 1 the implications here --- even if they can't prove premed, you're still facing dp due to FL law; Knight et al. I expect AL will read the jury instructions from start to finish, looking for any advantage she may be able to argue and will realize this is FL law. Does JB know? He should but I wouldn't bet the farm, or more importantly, my life on it.

 

[AZlawyer]

In State v. Anderson, (FL January 19, 2003), the defendant argued that he was denied his rights when he had been charged with Capital Murder 1 but at the charge conference (when jury instructions are discussed amongst lawyers and judge and which happens immediately before the jury is instructed) the DA threw in Felony murder for kicks.

The FL Supreme Court ruled that the defendant had not shown any reason to recede from Knight, and found the defendant's argument to have no merit.

So, yes, the DA can wait until the charge conference to toss in felony murder and there is no prejudice to the defendant as it is a lesser included charge.

Things may have changed in 6 years, but I can't get the legal sites online here.

There have been no changes according to my cite-check.

 

[Brini]

There have been no changes according to my cite-check.

OK, it looks like Knight it still on!

 

[Themis]

It's not because of which parts of the statute are listed first. The Florida Supreme Court says it is OK because felony murder is really just like premeditated murder except with a felony instead of premeditation....

If this makes no sense to you, it's not because you're not a lawyer.

Just thinking here. I saw your earlier post regarding possible US Constitutional issues with Florida's history by case law of allowing felony murder instructions to be given even though it is not technically a lesser included offense of premeditated murder. I also see those issues. But, it seems that this is allowed because the independent felony, like felony aggravated child abuse or one of the other listed felonies, is also on the charge sheet. Therefore, this in combination with the premeditated murder charge does appear that it would take care of those US Constitutional concerns of due process (including lack of sufficient notice and right to trial on that charge and its elements) and the related concerns of right to counsel (who has to have a chance to be competent and prepared). :waitasec: So, maybe if it is limited to when both premeditated murder and the specific felony are both on the same charge sheet, it could pass constitutional muster. Other than that, it would appear there could be problems.

 

[impatientredhead]

Just thinking here. I saw your earlier post regarding possible US Constitutional issues with Florida's history by case law of allowing felony murder instructions to be given even though it is not technically a lesser included offense of premeditated murder. I also see those issues. But, it seems that this is allowed because the independent felony, like felony aggravated child abuse or one of the other listed felonies, is also on the charge sheet. Therefore, this in combination with the premeditated murder charge does appear that it would take care of those US Constitutional concerns of due process (including lack of sufficient notice and right to trial on that charge and its elements) and the related concerns of right to counsel (who has to have a chance to be competent and prepared). :waitasec: So, maybe if it is limited to when both premeditated murder and the specific felony are both on the same charge sheet, it could pass constitutional muster. Other than that, it would appear there could be problems.

This issue has gone to the Florida Supreme court several times and the convictions have been upheld as long as the aggravating felony was on the indictment. In the cases where it was not on the indictment they did not allow the alternative finding of felony murder. In the cases where it was included the court found (repeatedly) that the defendant's ability to defend themselves was not impeded and the conviction stood.

The other issue that came up in Florida was that the jury did not have to a cohesive group when it came to felony murder or premeditated murder. The jury could be completely split on that issue and still come back with a capital conviction. That has been challenged to the Florida Supreme Courts repeatedly and the convictions have been upheld on that issue.

 

[Themis]

This issue has gone to the Florida Supreme court several times and the convictions have been upheld as long as the aggravating felony was on the indictment. In the cases where it was not on the indictment they did not allow the alternative finding of felony murder. In the cases where it was included the court found (repeatedly) that the defendant's ability to defend themselves was not impeded and the conviction stood.

The other issue that came up in Florida was that the jury did not have to a cohesive group when it came to felony murder or premeditated murder. The jury could be completely split on that issue and still come back with a capital conviction. That has been challenged to the Florida Supreme Courts repeatedly and the convictions have been upheld on that issue.

Excellent research! Now it clearly makes sense.

 

[shgrbkr]

Question: Can the SA subpoena any of the snail mail/letters that have been exchanged between KC and family since she has not been receiving visits? Is that completely off limits, or would they have to have probable cause to believe that there is definitely something of consequence in there?

 

[impatientredhead]

Question: Can the SA subpoena any of the snail mail/letters that have been exchanged between KC and family since she has not been receiving visits? Is that completely off limits, or would they have to have probable cause to believe that there is definitely something of consequence in there?

Mail sent through the jail mail system is monitored.
They would already have that if any existed.

Mail passed through JB would not be attainable.
It falls under client privilege as JB would just provide the letter under the "my client and I need you to review this document and provide feedback" and "I received the following communication regarding your case and need you to review it". Absolutely shady if he is doing that, but it would be protected.

 

[faefrost]

Mail sent through the jail mail system is monitored.
They would already have that if any existed.

Mail passed through JB would not be attainable.
It falls under client privilege as JB would just provide the letter under the "my client and I need you to review this document and provide feedback" and "I received the following communication regarding your case and need you to review it". Absolutely shady if he is doing that, but it would be protected.

Not completely true. Mail sent via JB is not monitored by the jail system. But it is only protected if it is mail that is limited to comunications between the defendent and her council. Letters to Mom lose privelege and protection as soon as moms eyes fall on them. At that point they are evidence that may be supeoned and siezed by LE. The trick is for LE to be able to track the movement of the letters closely, and to catch them in CA's hands or possesion.

 

[tweety933]

Not completely true. Mail sent via JB is not monitored by the jail system. But it is only protected if it is mail that is limited to comunications between the defendent and her council. Letters to Mom lose privelege and protection as soon as moms eyes fall on them. At that point they are evidence that may be supeoned and siezed by LE. The trick is for LE to be able to track the movement of the letters closely, and to catch them in CA's hands or possesion.

Is it possible that KC did write her parents and she gave them to her attorney to forward to them, either via being mailed from JB's office, or hand delivered by DC? Could the SA then subpoena those letters from the Anthony's, even if they found out about them via DC (whom later became employed by the Anthony's), whom was an agent for JB at the time the letters were delivered?

The legal question being can they subpoena anything that DC had knowledge of, and that might be protected by the atty/client privilege extended through the relationship of JB and DC at the time?

 

[nssherlock]

Mail sent through the jail mail system is monitored.
They would already have that if any existed.

Mail passed through JB would not be attainable.
It falls under client privilege as JB would just provide the letter under the "my client and I need you to review this document and provide feedback" and "I received the following communication regarding your case and need you to review it". Absolutely shady if he is doing that, but it would be protected.

It seems that they've all been clear that they've been communicating using this venue. Since it is "shady"........is there nothing that can be done about it? In essence - if the rules are that easy to get around then there really are no rules........right? TIA for any insights.

 

[lin]

It seems that they've all been clear that they've been communicating using this venue. Since it is "shady"........is there nothing that can be done about it? In essence - if the rules are that easy to get around then there really are no rules........right? TIA for any insights.

The rules aren't likely so easy to get around for most people who have ethical counsel. It will be interesting to see if this plays out and if so how it does. Both faefrost and impatientredhead made compelling arguments, imo and having read many of their posts, automatically respect the reasoning of either.