Reasonable doubt-Jury instructions and More #2

[Jolynna]

Assuming for a minute that KC applied the duct tape to an alive Caylee, what evidence shows that she could not have been in a rage both when applying it and for several minutes afterwards, until it was too late?

KC didn't wake up in a rage. At 7:56 a.m. she is instant messaging witeplayboi. You can see where KC's mind is. She's hardly in a rage.

Snipped...

WitePlayboi (8:01:33 AM): so what r u up 2
casey o marie (8:02:02 AM): not a whole lot. checking up on all the myspace/facebook hoopla

Snipped...

casey o marie (8:05:40 AM): casey really likes this boyfriend of hers

Throughout the day KC downloads a picture of Fusian to her photobucket. She leaves messages on social sites. She texts. She talks on the phone.

KC managed to ping, meet up with witnesses and leave a computer trail pinpointing HER locations for every single one of the 31 days she was "hiding out" except for June 30 into the morning of July 1.

Cindy was in the house when Caylee was put to bed ALIVE June 15. George was in the house until 2:30 p.m. June 16. No intruders were IN the Anthony house ANY of June 15 or until AFTER 2:30 p.m. June 16. By 3 p.m. June 16 KC is back ON AN ANTHONY COMPUTER. Cindy, George and KC are the only ones with access to Caylee after Caylee got home from Shirley's house until 1 p.m. June 16. That gives another person outside of KC from 1 p.m. until 3 p.m. IF KC left her paren't house. But whatever happened to CAylee still had to have happened while KC is close enough to ping in Anthony house locale. (Which excludes Blanchard Park & Sawgrass Apts.)

Sometime before KC met up with Tony on June 16--her pings put her at his apartment by 4:30 p.m.--something happened to Caylee.

How many minutes did KC have off of her cell phone to deal with crazy intruder kidnappers? Or to try to revive her baby from a surprise accident? That is before she was on the phone again...how'd she manage to get calm enough to make plans with Tony,lie to her parents and say she was going to Tampa, discuss Fusian's upcoming Friday night event with friends on facebook within mere minutes after her child catastrophically was kidnapped or accidentally died? IMO, she had to hustle and be deliberate to purposefully do the deed herself and be out of her parent's house before Cindy got home.

KC stupidly(IMO) managed to get herself videotaped on June 16.

Jurors are allowed to and do take a defendant's demeanor into account when deliberating. The instructions say a defendants behavior matters.

 

[Devon]

Unfortunately for her, there is likewise no evidence to show she was in a rage (again, what did the 34 month old do to provoke her mother?) but there is evidence to exclude it, imo.

IMO the evidence of rage is equal to the evidence of premeditated intent, i.e. it's guesswork. Rage can be inferred from evidence of alleged escalating discord at Casa A and all that was apparently going on during the preceding days or weeks. The rage didn't necessarily have to be against Caylee, she may just have been having a toddler tantrum or being difficult when KC's brewing anger/frustration finally exploded.

 

[JBean]

You may be right JBean,however I do feel that over a year in jail is about the same as 31 days! If you know or suspect SODDI,why would you allow your client to be imprisoned,EVERY opportunity has been presented for presenting the truth in this case,and it just has not happened.Are there huge amounts of money to be made for not coming forward?? Maybe.....

I don't think it is a matter of allowing your client to remain in jail.
Consider this.
Let's just say she really didn't do it.
But at the same time, she doesn't know who did it. She cannot get out of jail on that.
She will have to wait and get her day in court.

This is oversimplified of course, but unless one has really solid evidence or information leading to the true offender, most would have to wait until their day in court.

 

[lin]

Snipped
Some evidence that supports accidental drowning (not necessarily exhaustive):

1)The high levels of chloroform found in the trunk. It's possible that this was the result of early stage decomposition in very oxygen-deprived conditions (enclosed car trunk plus trash bags) combined with ingestion of, and saturation in, chlorinated water.

2)The hair mat. This may have been the result of wet, chlorine soaked hair drying in a clump under the skull after the body was wrapped and laid down in the trunk.

3)No shoes or socks found in the car or with the body.

4)The T shirt. This appears to have completely rotted away, except for some 'stitching' and a label. Some fragments of a 'light coloured' fabric were found adhered to the shoulder blade and arm bone. I think it possible that a chlorine soaked pink cotton T shirt might well fade to a 'light' colour, stick to and remain present in some form on areas of the body that are pressing down/lying on it (shoulder/upper arm), but completely disintegrate otherwise. The lettering may have survived because it was a different and tougher fabric weave/structure. Chlorinated water rots fabrics - Fact. (Just see what happens to your swimwear if you don't ever rinse the chlorine out!). Most garments/fabrics would not disintegrate to this extent after just 6 months, even if they'd been subject to adverse weather conditions.

5) The shorts - The trunk bones and upper leg bones were found in a different location from the shorts. This suggests to me that the shorts were not on the body, otherwise I think it more probable that they would have been dragged to the same location with these body parts. The report suggests that this movement by animal activity must have occurred when there was sufficient soft tissue present to hold the trunk and upper limbs together, so it's reasonable to assume that if the shorts were on the body they would have been moved with it. The shorts were also in fairly good condition - unlike the T shirt.

If a small child wanted to get into a pool by themselves, they would most probably take off their shorts/trousers/skirt and socks and shoes. If they are used to wearing a diaper in the pool this would probably be left on. A T shirt on the other hand is not always an easy garment for a toddler to wriggle out of, plus they may be used to keeping one on sometimes for added sun protection.

6)The fatty acids found on the paper towels. These acids appear not to be from the 'decomp fluid' that caused the stain on the trunk carpet, so it's likely that the towels were not used to try and clean that up. The acids are from body fat and suggest the presence of adipocere (grave wax). This substance is normally present in bodies that have either been buried in cool soil or kept in wet or moist conditions. Apparently bodies kept in plastic bags may be more prone to the formation of this substance, but I have seen another article that suggests that it doesn't appear in very warm conditions, so it's possible that although the bags kept the body warm (so limiting formation) the contents of the bag were wet (so creating the conditions for formation).

7) The evidence that the yard gate was found left open on 17 June and the pool ladder left in situ. This evidence carries some weight because CA's work colleague has testified that CA told her about it just days after it was apparently discovered - i.e. several weeks before anyone knew that Caylee was not with KC.

You've shown how it's possible but imo, you haven't shown it is more than 'merely possible.' (A neighbor could have stolen a cookie through the window.)

You're really reaching for evidence, imo, to support this by indicating chlorine soaked, rather than the weather and exposure caused the decay and matting. No chemist here but logic would indicate to me the chlorine soaking would make it less likely for any of the materials to have then survived the elements and animals to which it was exposed for six long months. Where I disagree with you is that the decay is inconsistent with being caused solely by the elements and so far, I haven't seen any expert opinion to this effect. What I have seen is that the conditions were such as to indicate that Caylee was placed there shortly after her death, and a time frame given. I haven't seen "but the clothes were degraded beyond this time frame and must have been subject to another agent."

Do you have children? The no shoes/socks not being found doesn't mean a lot to me, even if it's correct. Mine used to take theirs off constantly. Nor does your assertion about a 2 year old partially undressing before getting into a pool unsupervised. I've never seen that happen. I have seen kids get in fully clothed and I've seen them strip naked. I haven't seen a 2 year old calmly remove socks, shoes, shorts and pile them neatly to the side. (I know you didn't imply that but that's kind of the picture that comes to my mind.) You make a lot of assumptions and offer a lot of possibilities there but where they become thoroughly unreasonable to me is when put in context with the other evidence.

IF we accept the premise of an accidental drowning initially, it is belied by the false exculpatory and other statements to avoid detection/prosecution that may be used to show consciousness of guilt. It is belied by placing the duct tape of the airways of the child prior to decomposition. It is belied by KC's behavior both before and after the alleged drowning. It is belied by KC sitting in jail for going on a year without speaking up about it. Perhaps to no one but me, but it is strongly, very, very strongly belied by failing to place the 'mama' doll with Caylee's remains.

The accidental drowning theory fails from the onset as in total contradiction to the sworn statement of the only known person who was there -- KC herself.

I don't want to repeat every point of what I am sure is an excellent and detailed analysis and suggest you read [ame=http://www.websleuths.com/forums/showthread.php?t=80908] this 'Evidence That is Incompatible With an Accident Theory' thread [/ame] and let us know what you think after reading.

As always, jmo.

 

[lin]

IMO the evidence of rage is equal to the evidence of premeditated intent, i.e. it's guesswork. Rage can be inferred from evidence of alleged escalating discord at Casa A and all that was apparently going on during the preceding days or weeks. The rage didn't necessarily have to be against Caylee, she may just have been having a toddler tantrum or being difficult when KC's brewing anger/frustration finally exploded.

Under these circumstances I don't think it would be an affirmative defense for attempted murder, which is all I've seen that incorporates this at all. I don't think being mad at one's parents would be considered provocation reasonable to harm the child.

But, hypothetically, for just a moment let's assume that is exactly what happened and JB is able to convince the jury of same. Then we're still left with felony murder, the felony being the child abuse, because her death would not be an excusable homicide, as I understand the instructions.

ETA: Found instruction for excusable homicide, listed below.

 

[lin]

My bad, found it:

EXCUSABLE HOMICIDE § 782.03, Fla.Stat. The killing of a human being is excusable, and therefore lawful, under any one of the following three circumstances:
1. When the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or
2. When the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or
3. When the killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel or unusual manner.

 

[lin]

I just don't see "sudden" and "sufficient provocation" in the hypothetical advanced.

ETA: Nor do I see layers of duct tape as "accident" or "misfortune."

 

[lin]

PS to Devon --- If I gave them impression that I felt your analysis was not well thought out and logical, it was unintended and I apologize. I very much appreciate your input into this discussion and am learning. Thanks!

 

[lin]

[ame=http://www.websleuths.com/forums/showpost.php?p=3415701&postcount=14]Funny post from the no accident thread.[/ame]

 

[lin]

[ame=http://www.websleuths.com/forums/showpost.php?p=3988938&postcount=315] IM conversation with ID wherein KC states 'never been happier' and 'loves the nanny.'[/ame]


[ame=http://www.websleuths.com/forums/showpost.php?p=3989246&postcount=319] (Incomplete) List of behavioral evidence, including 'beautiful life' tattoo.[/ame]

ETA: [ame=http://www.websleuths.com/forums/showpost.php?p=3418583&postcount=71]GREAT post by TheOnly1[/ame] is one of many great posts in the no accident thread that I highly recommend others read when the possibility of an accident occurs to them. I think they will be reassured that the accident theory is a non-starter and that's likely why the defense has apparently rejected it, imo.

[ame=http://www.websleuths.com/forums/showpost.php?p=3418411&postcount=58]Ok, and one more by Lanie [/ame] that I couldn't stop myself from bringing over in contradiction of my post above that I didn't think we should repeat that whole thread in this one.

 

[Brini]

Assuming for a minute that KC applied the duct tape to an alive Caylee, what evidence shows that she could not have been in a rage both when applying it and for several minutes afterwards, until it was too late?

Doesn't matter. She would have to pause to tear off the tape and place it, for a second.

If a shooter reloads, he has a few seconds to consider, rage or not.

One might be in a rage for weeks. That doesn't excuse anything.

 

[Brini]

Snipped
Some evidence that supports accidental drowning (not necessarily exhaustive):

1)The high levels of chloroform found in the trunk. It's possible that this was the result of early stage decomposition in very oxygen-deprived conditions (enclosed car trunk plus trash bags) combined with ingestion of, and saturation in, chlorinated water.

2)The hair mat. This may have been the result of wet, chlorine soaked hair drying in a clump under the skull after the body was wrapped and laid down in the trunk.

3)No shoes or socks found in the car or with the body.

4)The T shirt. This appears to have completely rotted away, except for some 'stitching' and a label. Some fragments of a 'light coloured' fabric were found adhered to the shoulder blade and arm bone. I think it possible that a chlorine soaked pink cotton T shirt might well fade to a 'light' colour, stick to and remain present in some form on areas of the body that are pressing down/lying on it (shoulder/upper arm), but completely disintegrate otherwise. The lettering may have survived because it was a different and tougher fabric weave/structure. Chlorinated water rots fabrics - Fact. (Just see what happens to your swimwear if you don't ever rinse the chlorine out!). Most garments/fabrics would not disintegrate to this extent after just 6 months, even if they'd been subject to adverse weather conditions.

5) The shorts - The trunk bones and upper leg bones were found in a different location from the shorts. This suggests to me that the shorts were not on the body, otherwise I think it more probable that they would have been dragged to the same location with these body parts. The report suggests that this movement by animal activity must have occurred when there was sufficient soft tissue present to hold the trunk and upper limbs together, so it's reasonable to assume that if the shorts were on the body they would have been moved with it. The shorts were also in fairly good condition - unlike the T shirt.

If a small child wanted to get into a pool by themselves, they would most probably take off their shorts/trousers/skirt and socks and shoes. If they are used to wearing a diaper in the pool this would probably be left on. A T shirt on the other hand is not always an easy garment for a toddler to wriggle out of, plus they may be used to keeping one on sometimes for added sun protection.

6)The fatty acids found on the paper towels. These acids appear not to be from the 'decomp fluid' that caused the stain on the trunk carpet, so it's likely that the towels were not used to try and clean that up. The acids are from body fat and suggest the presence of adipocere (grave wax). This substance is normally present in bodies that have either been buried in cool soil or kept in wet or moist conditions. Apparently bodies kept in plastic bags may be more prone to the formation of this substance, but I have seen another article that suggests that it doesn't appear in very warm conditions, so it's possible that although the bags kept the body warm (so limiting formation) the contents of the bag were wet (so creating the conditions for formation).

7) The evidence that the yard gate was found left open on 17 June and the pool ladder left in situ. This evidence carries some weight because CA's work colleague has testified that CA told her about it just days after it was apparently discovered - i.e. several weeks before anyone knew that Caylee was not with KC.

1) No, honey. Chlorinated H2O is NOT of sufficient concentration to produce a high level of chlorine in the trunk, and, 2) Chlorine is not found in any significant level in human decomp.

 

[JBean]

IMO, I have never thought that it was an accident, but I only based that on what I would do and common sense. However, since KC does not operate with common sense and, as someone said, functions in her own reality, I can't rule anything out which includes premeditation/rage/accident.
I think KC is going to maintain throughout that she did not do it and so accident will not even come into play, even if it actually was one.
The subtle distinction for me is not so much what i think happened as much as what the evidence pans out to show.
The case that will be put on by the prosecution is going to be fascinating.

 

[tweety933]

Assuming for a minute that KC applied the duct tape to an alive Caylee, what evidence shows that she could not have been in a rage both when applying it and for several minutes afterwards, until it was too late?

Does rage negate premeditation in the application of three layers of duct tape? What is FLORIDA's standard?

 

[impatientredhead]

Does rage negate premeditation in the application of three layers of duct tape? What is FLORIDA's standard?

No it does not. My notes in bold:

EXCUSABLE HOMICIDE § 782.03, Fla.Stat. The killing of a human being is excusable, and therefore lawful, under any one of the following three circumstances:

1. When the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or Duct taping your child is neither an accident nor misfortune during a lawful act. Does not qualify.

2. When the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or Again applying duct tape is not an accident and a toddler tantrum or lack of a babysitter is not going to rise to the level of sudden and sufficient provocation. Does not qualify.


3. When the killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel or unusual manner. She didn't find herself in sudden combat with a 2 year old, and the killing was cruel and unusual. Does not qualify.

Examples of excusable homicide in Florida: An attempt is made to car jack a driver. Deceased had a pellet gun and took $15. Driver pursues the deceased and runs the man over. Jury accepted circumstances as heat of the moment and that they believed he only meant to knock the man to the ground, not kill him.

Most recently the fight in the McDonald's parking lot where the deceased was the aggressor, the defendant was military trained and put the deceased in a chokehold to subdue him and killed him. State ruled it excusable.

 

[lin]

I think we can agree that the tape was put on Caylee on purpose rather than by accident. I think the jury can also conclude beyond a reasonable doubt that Casey was the one who applied the tape, based on the fact that there is no indication whatsoever of the involvement of any other person and the materials found with the body all apparently came from the home.

Then we can ask ourselves, "For what purposes would one apply 3 layers of duct tape over a child's face, either before or after death?"

Then go through each alternative that is NOT "to suffocate the child" and see if it is reasonable in light of all the evidence.

Alternative 1: To keep the child quiet for a period of time. Is this a reasonable explanation in light of all the evidence? (It would still be second-degree murder.) If Casey had intended merely to keep Caylee quiet, would her discovery of the horrible result of her efforts have left her happier than she had been for a long time, as she said to Iassen in her IM? Was Casey's behavior consistent with that of a devasted grieving mother? Would she have applied the tape over Caylee's hair if she had intended to remove it at some future time?

Alternative 2: To cover up an accidental death by making it look like a kidnapping. (The accidental death, by the way, whatever it was, would likely constitute aggravated manslaughter of a child if it was worth covering up.) Is this reasonably consistent with the evidence? Again, was Casey's behavior consistent with a mother who had just lost her precious daughter in a horrible accident? Would Casey have used 3 layers of duct tape and taped into Caylee's hair to stage a kidnapping? Are the multiple layers of duct tape more consistent with an alive, struggling child than with a dead child?

Alternative 3: To prevent fluid leakage/insect activity/etc. following a death from an accident. (Again, given the undisputed evidence of cover-up and the fact that Caylee was totally dependent upon Casey, this "accident" would potentially constitute aggravated manslaughter of a child.) Is this reasonably consistent with the evidence? Again, was Casey's behavior consistent with a mother who had just lost her precious daughter in a horrible accident? Is this theory consistent with the fact that only a select number of body openings were taped? Would multiple layers of tape have been necessary or helpful to accomplish this purpose? Would duct tape stick after decomp/insect activity had begun? If not, does this mean the person who applied the tape would have to have known ahead of time that such activity would occur AND have had the presence of mind to apply duct tape as their initial reaction to the death? Is such presence of mind consistent with the shock of losing one's precious daughter in a horrible accident? What would be the purpose of preventing decomp/insect activity? If to avoid disfigurement of the child, would the application of 3 layers of duct tape over a child's face reasonably seem like a step to take to accomplish that goal?

Alternative 4: ???

bumping in light of today's discussion; thought it deserved another look.

 

[lin]

No it does not. My notes in bold:

EXCUSABLE HOMICIDE § 782.03, Fla.Stat. The killing of a human being is excusable, and therefore lawful, under any one of the following three circumstances:

1. When the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or Duct taping your child is neither an accident nor misfortune during a lawful act. Does not qualify.

2. When the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or Again applying duct tape is not an accident and a toddler tantrum or lack of a babysitter is not going to rise to the level of sudden and sufficient provocation. Does not qualify.


3. When the killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel or unusual manner. She didn't find herself in sudden combat with a 2 year old, and the killing was cruel and unusual. Does not qualify.

Examples of excusable homicide in Florida: An attempt is made to car jack a driver. Deceased had a pellet gun and took $15. Driver pursues the deceased and runs the man over. Jury accepted circumstances as heat of the moment and that they believed he only meant to knock the man to the ground, not kill him.

Most recently the fight in the McDonald's parking lot where the deceased was the aggressor, the defendant was military trained and put the deceased in a chokehold to subdue him and killed him. State ruled it excusable.

 

[Themis]

Does rage negate premeditation in the application of three layers of duct tape? What is FLORIDA's standard?

NO. The heat of passion defenses are, IMHO, a carry-over from the days when husbands "owned" their wives as property. If the husband found the wife in the sexual act with another man and killed his wife and/or the other man, the justice system at the time didn't want to convict for murder. So, they created a "heat of passion" excusable homicide defense in the common law which has been codified into our statutes. That's usually where you see "heat of passion" defenses -- when finding your significant other with another.
I have not seen "heat of passion" defenses apply to the anger a riled child can embroil in a parent as a defense to killing a child. Doesn't happen.

 

[Themis]

IMO, I have never thought that it was an accident, but I only based that on what I would do and common sense. However, since KC does not operate with common sense and, as someone said, functions in her own reality, I can't rule anything out which includes premeditation/rage/accident.
I think KC is going to maintain throughout that she did not do it and so accident will not even come into play, even if it actually was one.
The subtle distinction for me is not so much what i think happened as much as what the evidence pans out to show.
The case that will be put on by the prosecution is going to be fascinating.

KC won't get an individualized or "subjective" standard when it comes to comparing to the ordinary standard of care. That is a reasonable person standard. BTW, what do you think happened, JBean. I'd be interested.

 

[Themis]

1) No, honey. Chlorinated H2O is NOT of sufficient concentration to produce a high level of chlorine in the trunk, and, 2) Chlorine is not found in any significant level in human decomp.

This is very important information. Plus, it would be extremely unusual to use it for a non-industrial, household cleaner. But, it is more commonly known to be used to make people unconscious -- like for surgery. IMHO it was misused here to "babysit." Problem was, it is short acting and to make it longer acting -- like for a whole night -- well, there would have to be a way to hold a chloroform soaked cloth to the mouth and nose. Hummm. :furious: