Category: Criminal Law

Some would say that Casey Anthony got away with murder, personally I think she’s getting away with Lying and Check Fraud…

The Check Fraud Case

On January 25, 2010 Casey Anthony pled guilty to 13 counts of check fraud. As a result of her guilty plea, the Honorable Judge Stan Strickland adjudicated her guilty on six of the felonies, withheld adjudication of guilt on the other seven, and sentenced her to 412 days in jail as credit for the time she previously served to be followed by one year of supervised probation.

The 412 days was based upon the amount of time between her arrest and the date of her plea.

Importantly, as will be explained, Ms. Anthony has yet to be released from the Orange County Jail to actually serve her one year of probation, as she was also being held in the Orange County Jail on another, more serious case.

The More Serious Case

On July 5, 2011 Ms. Anthony was acquitted of the most serious crimes she was charged with and was instead, only found guilty of four First Degree Misdemeanor counts of Lying to a Law Enforcement Officer during the Course of an Investigation. Based upon the jury’s verdict, the maximum sentence Ms. Anthony could receive was four years in the Orange County Jail and $4,000 in fines. The Very Honorable Judge Belvin Perry set off sentencing until July 7, 2011.

A Serious Sentence for a Serious Case

On July 7, 2011 The Very Honorable Judge Belvin Perry sentenced Ms. Anthony to consecutive sentences of one year in the county jail with credit for 1,043 days already served in the Orange County Jail awaiting trial. In addition, he imposed a fine of $1,000 on each count. The resulting sentence totaled four years in the Orange County Jail and $4,000 in fines, which on paper, looks to be the maximum possible sentence The Very Honorable Judge Belvin Perry could have handed down.

But Casey, We Were Just Getting to Know You!

About an hour later, Orange County Corrections announced that after taking into account the 1,043 days credit for time served, as well as good time and gain time, Ms. Anthony would be released from the Orange County Jail by Sunday, July 17, 2011.

Later that same day, Orange County Sheriff Jerry Demings released a statement haling the Very Honorable “Judge Belvin Perry, Jr. for giving the maximum sentence allowable under the law.”

And to Think, We Could Have Spent More Time Together…

There is only one problem, it was not the maximum sentence allowable under the law.

Rather, the maximum sentence allowable under the law would have been for The Very Honorable Judge Belvin Perry to have sentenced Ms. Anthony to consecutive sentences of one year in the county jail with credit for 631 days already served in the Orange County Jail awaiting trial.

But how can that be you say! She has been in jail for 1,043 days, not 631?

Under Florida law, a judge is not required to give a defendant credit for time previously served on unrelated sentences while awaiting trial. See Jackson v. State, 23 So. 3d 853 (Fla. 2d DCA 2009) (“Where a defendant is held to answer for numerous charges, he is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition of multiple charges or cases.”); See also Hardenbrook v. State, 953 So. 2d 717 (Fla. 1st DCA 2007).

What this means is that the Very Honorable Judge Belvin Perry had the authority to deny Ms. Anthony credit for 412 of the 1,043 days he credited her with previously serving, as that time had been credited to her already by the Honorable Stan Strickland on the Check Fraud Charges.

If the Very Honorable Judge Belvin Perry had exercised his judicial discretion to do so, Ms. Anthony would likely be spending at least 9 more months in the Orange County Jail after taking into account good time and gain time.

There Are No Do-Overs

And before you ask, I am sorry to say it is too late for the State to request a rehearing. The case law is crystal clear; once a sentence is imposed, it can not be modified to the detriment of the defendant. See Stang v. State, 24 So. 3d 566, 570 (Fla. 2d DCA 2009) (“The Courts have repeatedly held that a trial court may not rescind jail credit that was previously awarded, even if the initial award was improper, because such an action violates double jeopardy.”)

Well, She Still Has One Year of Felony Probation…

Luckily for us, Ms. Anthony does still has one year of felony probation to serve on her Check Fraud convictions…. Hold on, wait a sec, what’s that?

Beth Karas on Prime News with Vinnie Politan is reporting that Cheney Mason claims:

“Ms. Anthony has served her probation (while in jail)  and when she leaves on Wednesday she is a free agent, can go anywhere she wants…”

Now looka, I say looka here son;  maybe that Mason fella just might be on to something. According to a January 29, 2010 article by the Orlando Sentinel, Ms. Anthony’s probation was scheduled to end on January 24, 2011 … Ruh, Ro! That was six months ago…

Please, Say it Ain’t So…

It ain’t so, or at least it shouldn’t be.

This is because Florida law is very clear that Ms. Anthony’s probationary period was tolled while she was incarcerated awaiting trial on that serious case we discussed earlier. See Bradley v. State, 721 So. 2d 775 (Fla. 5th DCA 1998) (Finding the defendant’s “term of state supervision was tolled during period defendant was incarcerated on an unrelated case.”); See also Brooks v. State, 762 So. 2d 1011 (Fla. 5th DCA 2000) (Defendant “erroneously contends that he completed his split sentence while incarcerated before he began his probation. He cannot have successfully completed a split sentence if he never served the probationary part, even when the sentence is a “true split” sentence. Additionally, because he was incarcerated on another offense at the time he was released from the custodial portion of his sentence in this case, defendant’s probation was tolled until he was paroled in his other case.”) See also Schurman v. State, 847 So. 2d 569 (Fla. 1st DCA 2003)  (“Although the incarcerative portion of his sentence in Case No. 93-202 may have expired prior to his release from prison in May 1998, the probationary portion of that sentence was tolled while he remained in prison on other sentences, and it did not begin to run until appellant was released in May 1998. Therefore, his probationary sentence in Case No. 93-202 was [still] in effect upon his release.”)

Finally, it is worth pointing out that the fundamental reasoning behind this line of cases is that “the underlying concept of probation is rehabilitation rather than punishment and presupposes the fact that probationer is not in prison confinement.”  Hatton v. State, 689 So. 2d 1195 (Fla. 4th DCA 1997)

The Law is Only the Law

Notably, the Florida Department of Corrections Offender Lookup website no longer lists Casey Anthony as a probationer, which means they agree with Mr. Mason’s interpretation.

So while the law may say Casey Anthony should still be on one year of felony probation when she is released, the law “don’t mean a hill of beans” if neither the State or the defendant follow the law.

A Final Single Finger Salute to J. Cheney Mason

Finally, I wanted to give a single finger salute to J. Cheney Mason. During Mr. Mason’s (very deserved) victory speech, he declared:

“Bias and prejudice and incompetent ‘talking heads’ saying what would be and how to be — I’m disgusted by some of the lawyers that have done this. I can tell you that my colleagues from coast to coast and border to border have condemned this whole process of lawyers getting on television and talking about cases they don’t know a damn thing about.”

Mr. Mason ended that sissy fit with a proclamation that the “talking heads” would be hearing from him and his team.

The following day I received several phone calls from various sources and reporters who indicated that J. Cheney Mason had, in fact, not been sleeping through most of Ms. Anthony’s trial as we all suspected.

Rather he had actually spent that time compiling a list of “talking head” attorneys that he was going to go after, alleging either defamation or violation of the Florida Rules of Professional Conduct.

I was allegedly confirmed to be one of those “talking head” attorneys.

Well J. Cheney Mason, I have only one response to that.

Call me, I’m waiting…

Cheney, my office number is (407) 540-1551, so instead of cornering reporters and brow beating them for quoting me, feel free to pick up the phone like a man and call me whenever you “want to talk” about what has gotten your boots so tight.

But since I doubt you would ever do that, here are four other suggestions for you to consider:

1. Brush up on the word Hypocrite.
2. Review your own commentary about Jose Baez and Ms. Anthony’s case.
   • “You can pretty well predict there’s going to be a life sentence, either a plea and get it over with or have a circus trial and then be convicted and get life.” – J. Cheney Mason (12/12/2008)
   • “Then all the talking, all the press interviews and the parents going on this show and that show and the lawyer [Jose Baez] going on different shows establishes they have no credibility whatsoever.” – J. Cheney Mason (12/12/2008)
3. Read this little gem on the First Amendment.
4. Sit on this and rotate 🙂

10. She could pick up the phone to call 911 over some pesky protesters, but not when her daughter supposedly drowned? I don’t think so.

9. You wouldn’t want to testify either if Jose Baez or Cheney Mason hadn’t visited you in jail since June 12, 2011.

8. Cheney Mason is so close to death, blow flies are circling over his head.

7. What’s the rush to lock in her testimony now? There’s only a 99% chance of a reversal on appeal due to ineffective assistance of counsel.

6. You think its bad that Cheney Mason screwed up by letting your mother admit to accusing you of stealing from her, wait until the jury finds out you were convicted of Six Felony Check Fraud counts for stealing from your “best friend.”

5. Linda Drane Burdick, need I say more?

4. Standing next to your lawyer during a press conference after your’e indictment for First Degree Murder while wearing a “Help find Caylee Button” is never a good idea when you knew your daughter drowned four months earlier.

3. You wouldn’t want to testify either if you had Jose Baez as your attorney.

2. When your lawyer accused every witness before you of capitalizing on your daughter’s death, you too would be a wee bit concerned about how the jury would react to hearing the two of you cashed in for a cool $200K Dollars in blood money from ABC.

1. Jeff Ashton, Homey Don’t Play That!.

First, please don’t shoot the messenger.

Second, I think Judge Perry made a rather large boo-boo…

Third, read Sparkman v. State, 902 So. 2d 253 (Fla. 4th DCA 2005) to see why…

Sparkman and the Tape

First Comes the Tape, Next Comes the Objection

During trial, when the state offered the videotape of Sparkman’s statement to Brock, Sparkman objected  […] Defense counsel admitted that the prosecutor had asked him to review the tape and provide his objections pre-trial, but he declined to do so.

The prosecutor also excised two portions on his own, which as an officer of the court he felt needed to be removed. The prosecutor explained that defense counsel knew that it would take a full day to edit the tape and that the court did not want the jury waiting that long.

Then comes the trial Judge’s response…

The trial court ruled that Sparkman’s contemporaneous objections were untimely because Sparkman should have filed a pre-trial motion pursuant to Rule 3.190 of the Florida Rules of Criminal Procedure: “Now the defense wants the court to hear in round numbers somewhat less than a hundred objections they have to the state’s two and a half hour taped statement when the grounds for these objections were known some fifteen months ago.” The court considered the objections waived and refused to address them on the merits.

Now comes the Appellate Court’s Take…

The first issue presented is a purely legal question — whether Sparkman’s objections to Brock’s statements had to be made pretrial.

While it is always good practice for counsel to raise known objections pretrial, and counsel may be compelled to do so by order of the court, Rule 3.190 does not require Sparkman to object pretrial to raise the instant issue.

Rule 3.190 addresses the necessity of pretrial objections for a “Motion to Suppress Evidence in Unlawful Search” and a “Motion to Suppress a Confession or Admission Illegally Obtained.” Fla. R.Crim. P. 3.190(h), (i). Nowhere in Rule 3.190 is a party required to object pretrial to the interviewing officer’s legally obtained statements, if such objections go to specific questions or answers within the statement.

Did Judge Perry Actually Enter an Order on the Issue?

So the question then is whether Judge Perry specifically stated that the parties were to make pretrial objections to statements of Casey Anthony’s that would be introduced, if the objections were to relevancy, hearsay, or some other purely evidentiary issue.

• Amended Proposed Order Setting Discovery Motion & Hearing Deadlines & Trial Date
• Order Setting Case Management Hearing
• Order Setting Motion Hearings
• Order Regarding Deposition Schedule
• Amended Order Setting Discovery, Motions & Hearing Deadlines & Trial Date

The only order entered by Judge Perry that addressed the issue, was a general statement in paragraph 5 of the Amended Order Setting Discovery, Motions & Hearing Deadlines & Trial Date.

But the question remains, will the appellate courts find that was sufficient notice, given that the primary focus of the order was on discovery, not evidentiary issues?

Whatever happened to Sparkman?

Oh, and how did the Appellate Court Rule?

In this case, the error was not harmless because Brock’s out-of-court comments as to what he believed happened and that he believed Sparkman killed Courtney were so prejudicial that the erroneous admission of the statements cannot be considered harmless beyond a reasonable doubt. Id. at 1135. We therefore reverse Sparkman’s conviction and remand this case to the trial court.

The Ineffectiveness Assistance of Jose Baez, Cheney Mason, Et. Al.

My personal opinion is that Jose Baez is screwing up so bad, that even if this issue alone was not enough to warrant a reversal due to Judge Perry’s generic statement in Paragraph 6, the combination of errors will cause the case to be reversed no matter what Casey is convicted of (and if she is convicted of course).

I have a feeling that Judge Perry is going to end up allowing in Baez’s late witnesses and discovery come Saturday at the show cause hearing because this case is becoming one of those rare cases “where the incompetence and ineffectiveness of counsel is apparent on the face of the record and prejudice to the defendant is [so] obvious” that the “appellate courts will address [the ineffective assistance of counsel] issue on direct appeal.” Aversano v. State, 966 So. 2d 493 (Fla. 4th DCA 2007).

Another fun read for those dreading a retrial one day is Johnson v. State, 796 So. 2d 1227 (Fla. 4th DCA 2001) (“A reasonably effective criminal defense attorney must keep himself or herself informed of significant developments in the criminal law, including decisions of other district courts around Florida. […] The ineffectiveness thus appears on the face of the record”).

Many people are speculating on what the motion filed by George and Cindy Anthony’s attorney Mark Lippman is about.

Below is my opinion that I posted on Websleuth’s regarding what it is likely about, as well as my post on why Jose Baez can  make such scandalous allegations in the first place.

Mark Lippman’s Likely Motion?

FYI: It has been verified that Mr. Lippman is filing a motion on behalf of Lee Anthony for Lee to also be present during the trial.

I think the motion is one the state probably should have filed, which is a motion in limine to prohibit the defense team from insinuating George molested Casey in questioning until such time as someone has actually testified to it (i.e. Casey Anthony).

The state should have probably made the motion immedietly after the opening statements, as it is improper for a lawyer to ask questions of witnesses that imply facts not in evidence or that the lawyer does not have a good faith belief will be established by the eventual evidence.

Ironically, this opening statement issue came up in what many consider “the case” that led to Nancy Grace’s fall from grace (pun intended) as a prosecutor. See Carr v. State, 482 SE 2d at 322 (GA. 1997) (“The transcript of the opening argument shows that the prosecuting attorney (Nancy Grace) repeatedly made references to physical abuse although the trial court had ruled out all evidence of purported abuse. There is no occasion and no excuse for attempting to influence the jury in advance by improper statements as to evidence which counsel knows he cannot prove or will not be permitted to introduce.”)

Anyway, as you can see from the case involving Nancy Grace, if argued correctly, Lippman’s motion would force Baez to proffer to the court how be believes in good faith he will establish George molested Casey to support his defense theory.

If his proffer does not involve him stating on the record that Casey (or someone else) will testify to it, the judge would likely prohibit him from pursuing the line of questioning or insinuating such scandalous allegations through his questioning. (That is, unless the Judge finds the Anthony’s don’t have standing for such a motion – in which case the State should adopt the motion.)

Speaking of Baez’s Scandalous Allegations

The general rule is that a defense attorney [any attorney actually] enjoys “absolute immunity [from law suit] in any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior . . . so long as the act has some relation to the proceeding.” Delmonico v. Traynor, 50 So. 3d 4 (Fla. 4th DCA 2010).

In this case, Jose Baez’s scandalous allegations were made in arguing a defense of his client and would therefore be considered rationally related to the proceeding. As such, he is entitled to absolute immunity for the allegations he made against George, no matter how damaging they are.

With that said, if it could be proven that he actually fabricated the allegations, he would likely be disciplined by the Florida Bar.

Additionally, while George could not pursue Baez if Baez was just restating what a witness told him, he could nonetheless sue the person who made the statement to Baez.

In this case, it would likely be Casey Anthony who would be the person making the defamatory statements, so George would most likely not pursue the matter.

Have no idea what happened, but suspect it was due to jury selection procedure. So could for once Judge Perry be wrong and the defense right?

Ironically named, Perry v. State, 675 So. 2d 976 (Fla. 4th DCA 1996), might hold the answer.

We find that the court did abuse its discretion in this case when it terminated voir dire before defense counsel had an opportunity to question all of the jurors individually. A number of factors have led us to this conclusion.

First, this was a capital case, and thus involved twice the usual number of jurors.

Second, it was the type of case which could generate unusual emotional reactions from jurors because of the senselessness of the killing and the ages of the participants.

Third, the number of jurors (forty-five) from which the selection was being made was large.

Fourth, exercising more than the seven peremptory challenges the defense did use would have resulted in the possibility of jurors being seated who had not been reached by defendant for individual questioning.

 

 

Week one of the Casey Anthony trial is behind us and, as could be expected, it was not without incident as several notable issues arose.

Jury Selection

After five full days of jury selection, the parties ended Saturday with 12  potential jurors. Some in the media believe this to be a sign that we may actually swear in a jury panel by Monday afternoon; my experience tells me otherwise. As this is the point where the strategy of jury selection really begins.

This is because in Florida, a party can exercise a peremptory strike up until the last second before the jury is sworn in.  See Gilliam v. State, 514 So. 2d at 1099 (Fla. 1987) (“Reversible error to deny a defendant his right to challenge a juror any time before the jury is sworn.”). As a result, it has been my experience that lawyers utilize very few peremptory strikes initially and instead wait until the initial petit jury panel is formed before actively using peremptory strikes to strike jurors they initially accepted. This is known as “backstriking”.

Because of the right to backstrike, each side has been biding their time waiting to see what jurors the other side unsuccessfully challenged for cause (suggesting the party will ultimately backstrike them), determine what jurors took a personal liking to one side or the other (meaning the juror would favor the other side), and watching to see whether the other side seemed very interested – or disinterested – in a particular juror (the strategy being  to avoid using a backstrike on a juror the other side is likely to strike, thus  you save yours).

And the way backstriking usually works is the judge will advise the parties that they have their primary panel and will be moving onto the selection of alternates. Before he does so, he will then entertain any backstrikes.

He will  then ask the prosecution if they would like to exercise one, if they say yes, they announce the juror and the juror is stricken (except in rare circumstances where a race, gender objection is sustained). The judge will then turn to the defense, who will probably do  the same. The process then rotates back and forth until all backstrikes have been utilized or the parties decline to exercise any remaining strikes.

However this case throws an interesting wrinkle into the usual scenario, as all the jurors have not been interviewed yet (whereas they usually have been), so you are unsure of whether the remaining potential jurors will be better or worse than what you have.

The bottom line is that there are (to my knowledge) 9 peremptory strikes left between both sides, suggesting that the none of the 12 tentatively selected now will ultimately survive (although I think about 1/3 will).

That Smell

Ooh, ooh that smell
Can’t you smell that smell?
Ooh, ooh that smell
The smell of death surrounds you.

– Chorus to “That Smell” by Lynyrd Skynyrd

Ah yes, that smell. By far one of the most talked about and debated issues in the case. Was it garbage or was it the smell of a decomposing body.

Shockingly, the fact that three sealed canisters of the carpet sample had been saved – and thus the odor itself – seems to have been overlooked by every person who has followed the case – whether you were a reporter, blogger, or former attorney to any of the Anthonys.

Well almost everyone, as the State made it clear that part of their game plan was to “publish” the sealed containers to the jury and let the jury make their own determination of whether the smell was rotting pizza or a rotting body.

But then the most surprising thing happened, the defense team won their most significant evidentiary victory in the past three years without even lifting a finger.

Because as fast as “greased lightning” Judge Perry made it clear that he would not allow the canisters to be published, astutely pointing out that doing so turned the jurors into witnesses – but how?

I must confess, I did not even realize the State had the canisters or intended to use them as proposed. But once I realized they did, it never crossed my mind that the State would not be allowed to publish them to the jury. After all, they were pieces of evidence that had been collected.

So I immediately hit the law books in search of cases that addressed the issue of allowing jurors to smell, not just evidence of decomposition, but any evidence for that matter.

To my surprise there were no published cases (that I could find) on the specific issue (smelling decomposition) and only a few cases on the issue in general (smelling evidence). And wouldn’t you know it, one case was premised on the exact reasoning expressed by Judge Perry.

It’s Five O’Clock Somewhere

In Kaldis v. Texas, 926 S.W. 2d 771 (Tex. 1st DCA 1996) the defendant was being prosecuted for illegal possession of liquor and wanted the jury to smell a batch of the “liquor” in question to show that although it smelled like rum, it was not.

In denying the defendant’s request, the court stated that the practice (by prosecutors) of having jurors smell liquors “‘called upon them to become witnesses on a disputed issue,’ and when, during deliberations, a juror stated that the smelled or tasted liquid was whiskey, his statement constituted ‘new evidence received in retirement.’”

It’s 4:20 Somewhere

Another case I came across, U.S. v. Michelena-Orovio, 702 F. 2d 496 (5th Cir. 1983), also rejected the practice of allowing a jury to “smell” evidence, although on different – yet applicable – grounds.

This case was a federal prosecution for conspiracy to traffic in Marijuana. It involved a crew member of a boat that was intercepted with 363 bales of marijuana. The defendant denied knowing the marijuana was on board and wanted to introduce a bale of marijuana so that he jury could determine the likelihood he could have smelled the marijuana – thus be on notice of its presence.

The court rejected this argument, finding “the conditions of the proposed experiment [to allow the jury to smell one bale of marijuana] differed substantially from the circumstances under which the jury would receive it. (As the experiment involved one bale, not 363, and was to take place in a courtroom, not a boat at sea.)

The obvious parallels in the Anthony case are that the canisters are three years old now, do not the other items present in the vehicle, and would be opened in a building; thus not approximating the conditions of the carpet when it was in the car, outside.

For your “Smelling Pleasure”

Arizona v. Morris, 160 P. 3d at 217 (Az. 2007) is the final case I came across and seems most factually similar in that it involved evidence that smelled like decomposition, but, unfortunately, only indirectly addressed the appropriateness of allowing the jury to smell the item.

involved a murder case where the prosecution introduced a jacket found near the victim’s decomposing body. When the jacket was introduced, the jury was never asked to smell the jacket and did not smell the jacket. Instead the jacket was immediately placed in a plastic bag and was presumably introduced for some identification purpose.

However, during closing arguments the prosecutor stated he had offered the jacket for the jury’s “smelling pleasure.” Notably the defense did not object at trial and only raised the issue on appeal.

Because the defense did not object, the Arizona supreme court found the issue harmless mostly because the jacket was actually introduced for the purpose of identifying the victim, not for its smell. Nevertheless, the court did agree that the prosecutors comment was inappropriate (implying that asking the jury to smell the jacket was improper, since this was not the purpose for which it was introduced during trial).

What Else Could the Jury See, Hear?

The issue of the containers got me thinking, if the State wanted to jury to smell them, what else did they want the jury to experience first hand that has not been addressed challenged by the defense?

The two most obvious suspects would be the Pontiac itself and the woods near suburban drive where the body was found. But to date the State has not filed a motion requesting a Jury View of either as required by Florida Statute 918.05.

While there is no requirement that the motion be made pretrial, it will nonetheless be interesting to see if the State makes this motion, what objection – if any – the defense will make, and what Judge Perry’s view will be.

However, it is worth noting that jury views are exceedingly rare in Florida and case law holds that if they are conducted, they should be conducted under conditions almost identical to the conditions as they originally existed. See Darley v. Marquee Enterprises, Inc., 565 So.  2d 715 (Fla. 4th DCA 1990) (Jury view must be conducted “under the conditions that prevailed at the time of the [incident]”.)

What is interesting though is that if a jury view is conducted, the jury view statute mandates that Casey Anthony be present while the jury views the evidence or scene (although she can waive her presence). Her reaction to being in the presence of the Pontiac or the woods could become some of the most riveting events in the trial.

George and Cindy Anthony v. Brad Conway

And finally we have the public spat that has erupted between George and Cindy Anthony and Brad Conway, with the Anthonys’ attorney, Mark Lippman, threatening to sue Brad Conway and also file a bar grievance because Mr. Conway has taken it upon himself to speak to every media outlet following the Casey Anthony case.

While I have not heard Mr. Conway speak poorly of either George or Cindy Anthony, he has made statements that have created quite a commotion in the middle of their daughter’s jury selection by claiming Casey Anthony will likely testify. Thus the question seems to be, is he conducting himself in the best interests of his former clients.

But before I go there, I would like to discuss Mr. Conway’s reason for withdrawing as counsel to the Anthonys’ in the first place.

He claimed that he was forced to resign because the Casey Anthony defense team filed a pleading that contained inaccuracies about him, thus making him “a witness to an inaccurate legal pleading filed in our court system.” To me this is a cop out, as lawyers file pleadings all the time about litigation disputes that the other side claims are inaccurate.

If the pleading filed by the defense team – mind you, not his clients – was truly inaccurate, the ethical thing to do would report the false statement to the Florida Bar. See Florida Rule of Professional Conduct 4-8.3(a) (“A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority.”).

So while we are on the issue of the appropriate course of action, the question must be asked, was Mr. Conway’s concern of being a witness to an inaccurate legal pleading a legitimate reason to abandon the Anthonys. My opinion is that it was not a legitimate reason.

This is because Florida Rule of Professional Conduct 4-3.7(a) only prevents an attorney from acting as an “advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client.”

The case law interprets this rule strictly and only prevents an attorney who might be a witness from representing his client “at trial,” but can represent the client in all pretrial (before the start of the trial) and posttrial (after the judgment is rendered) proceedings. See Cerillo v. Highley, 797 So.  2d 1288 (Fla. 4th DCA 2001).

Regardless, Mr. Conway would have never been a witness in Casey Anthony’s trial (never mind his clients are not on trial), at most he would have been a minor witness in a single evidentiary hearing over an evidence dispute. And any lawyer who has ever been involved in a civil case will tell you that lawyers frequently file affidavits or testify regarding evidence disputes if needed to resolve an issue.

With this behind us, the question still remains, did Mr. Conway do anything since quitting on the Anthonys that warrants a civil suit or a grievance. The answer is found in the commentary of Florida Rule of Professional Conduct 4-1.9 which states “Information that has been widely disseminated by the media to the public, or that typically would be obtained by any reasonably prudent lawyer who had never represented the former client, should be considered generally known and ordinarily will not be disqualifying.”

What this means is that Mr. Conway is free to provide his analysis about the Casey Anthony case so long as he is not using or revealing specific information he obtained while representing Cindy or George Anthony. Do I think this is right or fair – no.

Extra Credit

I recently came across The Florida Bar v. Niles, 644 So. 2d 504 (Fla. 1994) which involved an attorney who sold media access to his client for $5,000. (Anything sound familiar.) The Florida Bar sought disbarment and the referee sought a one year suspension.

While the Florida Supreme Court upheld the suspension instead of disbarring the attorney as the Florida Bar sought, the court did go on to warn future lawyers with the following:

We specifically reiterate that we find respondent’s conduct detrimental to the public, his profession, and the administration of justice in the courts.

We expect members of The Florida Bar not to engage in conduct in any case, including cases which attract substantial media attention, which violates the Rules Regulating The Florida Bar in the ways found by the referee in this case.

Our approval of the referee’s recommended one-year suspension in this instance, in which the referee followed The Florida Bar’s counsel’s recommendation, is not to be read as an indication that similar conduct will receive any discipline less than disbarment for respondent or any other member of The Florida Bar in any future proceedings.

Assuming that either the State or the Defense invoke the Rule of Sequestration once the trial begins, the question has been raised:

Should George and Cindy Anthony, as next of kin to Caylee Anthony, be allowed to stay in the courtroom during the  trial or should they be required to sequester themselves outside of the courtroom during the trial until excused from their subpoenas.

There are two competing sources of law that are implicated when answering this question: constitutional law and statutory law.

Art. I, § 16(b), Fla. Const. Rights of accused and of victims.

On one hand, the Florida Constitution provides that the “victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.”

Importantly, this right does not endow the State Attorney, as the prosecuting authority for the State of Florida, with any rights to object to the presence of the victim or the next of kin to homicide victims.

George and Cindy Anthony: Kinfolk or Next of Kin?

As soon as I posted this piece, I was informed that FogHorn LegHorn had filed a motion objecting to George and Cindy Anthony’s presence and I received numerous posts from readers wondering why or how George and Cindy could even be considered Next of Kin, when Casey is obviously her next of kin.

Well, Florida Statute 732.103 defines how a person’s next of kin is determined. The short version is that Casey Anthony is technically Caylee’s next of kin. But since since Caylee has no other siblings and her father is dead, George and Cindy Anthony would be the next “kin” in line after Casey.

Under normal circumstances, victim advocates would argue that Judge Perry should apply a liberal interpretation to the term “next of kin” and consider any relative who could potentially be next of kin under the statute to be next of kin for purposes of Art. I, s. 16. But since this is not a normal case, many of the so called victim advocates would not want that definition to apply because it would allow George and Cindy to sit in on the trial.

Nevertheless, even if Judge Perry were to apply a strict interpretation to the definition of next of kin, George and Cindy’s attorney can and should argue that they become the next of kin under Florida’s “Slayer Statute.” This statute holds that if Casey Anthony is convicted of Caylee’s death, she is excluded from being considered next of kin under Florida Statute 732.802.  (Killer not entitled to receive property or other benefits by reason of victim’s death.) As a result, by operation of law George and Cindy become next of kin under Florida Statute 732.103.

Fla. Stat. 90.616 Exclusion of witnesses.

On the other hand, Florida Statute 90.616 states: “At the request of a party, the court shall order witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except, [] in a criminal case, the victim of the crime, the victim’s next of kin, or a lawful representative of such person, unless, upon motion, the court determines such person’s presence to be prejudicial.”

This statute is more commonly referred to as The Rule of Sequestration and a literal reading of the statute mandates that once invoked, a witness to a proceeding – other than the “victim, the victim’s next of kin, or a lawful representative of such person”  – must remain outside of the courtroom so they cannot hear testimony of other witnesses.

Importantly, once the rule of sequestration is invoked it only applies to witnesses not related to the victim. This means that even if the rule is invoked, the victim or next of kin are still entitled to stay and watch the proceedings.

If you read the statute closely, in order to exclude the victim or next of kin, the person invoking the Rule of Sequestration must also make a second motion to exclude the victim or next of kin and allege that their continued presence would be prejudicial.

What this means is that even if the State or Defense invokes the Rule of Sequestration, Cindy and George Anthony would be not by default be required to leave. Rather, either the State or Defense would have to make a specific motion asking that they be required to leave and have the court determine that their presence would be prejudicial (to whom though, the State or the Defense).

Constitution trumps Statutes

Well have no fear, I am pleased to advise you that George and Cindy Anthony should be allowed to remain in the courtroom for the entire trial.

In Beasley v. State, 774 So. 2d 649, 668 (Fla. 2000) the Florida Supreme Court was presented with an almost identical question, but with greater constitutional importance. This is because the defendant, who is the only party constitutionally authorized to object to the victim or next of kin’s presence,  invoked the rule of sequestration specifically as to the victim’s daughter and son, both of whom were key witnesses in the case. The trial court denied the defense request and ruled that the daughter and son could both remain in the courtroom.

In upholding the trial court’s ruling, the Court went on to explain that there “are only two bases upon which a defendant may object to the trial court’s decision not to apply the rule of sequestration to a witness who is the victim’s next of kin.”

1. First, that the witness has [or will] change key testimony to conform to the evidence presented.
2. The prejudice potentially caused by emotional reactions of the victim’s family members.

The Court found that the first basis did not apply because “the witnesses’ testimony had been memorialized in prior depositions.” Meaning, that if there was any change in testimony, the witness could be impeached with the prior deposition. Thus any potential prejudice would be outweighed by the benefit of impeaching the witness.

In the Anthony case, both George and Cindy Anthony have testified multiple times and are subject to being impeached with any of those transcripts. Moreover, they have been present for almost every evidentiary hearing to date. Thus the likelihood of the defendant being prejudiced is unlikely.

And while there are numerous arguments that could be made that the State might be prejudiced by George and Cindy Anthony’s presence during the trial; the simple answer is that the State does not have standing to object under Article 1, Section 16 of the Florida Constitution – only the defendant does.

As to the second basis, the Court found that the trial judge maintained vigilance so that the “defendant” was not prejudiced by emotional outbursts of the victims next of kin and that the court even admonished them twice during the proceedings. So while some of you will annoyingly complain about Cindy Anthony’s sneers and looks, this is not the type of behavior that the Court is concerned with or would even consider prejudicial.

They Should Stay…

So ultimately, it is my opinion that George and Cindy Anthony should be allowed to stay in the courtroom and the only party who even has grounds to object to their presence would be Casey Anthony.

But, with the way Judge Perry is ruling against the defense, I wouldn’t be surprised if he found a way to rule against them remaining in the courtroom if the State did object. I wouldn’t be surprised if he overruled their objection filed today and agreed to allow George and Cindy to remain in the courtroom during the trial.

So let me get this straight.

On March 18, 2010 Casey Anthony was declared indigent by Judge Strickland after Jose Baez revealed he had blown over $250,000 received on Casey Anthony’s behalf – $200K of which was paid by the “American Broadcasting Company” as “licensing fees” for Casey Anthony’s “pictures.” Of importance, was the fact Jose Baez said he had “no more money.”

On May 6, 2010 a budgeting hearing was held by Judge Perry; notably, he denied Jose Baez’s request to have JAC provide funding for a “Jury Consultant.”

On July 30, 2010 Jose Baez, Dorothy Clay Sims, Michelle Madina, and Jeanene Barrett meet with Casey Anthony in jail; notably, they are accompanied by a man named Richard Gabriel.

On April 9, 2011 CBS (the Columbia Broadcasting System if you’re reading Jose) released a teaser for “48 Hours Mystery,” which shows an assembled focus group (read, “mock jury”), moderated by an unknown person, who asks: “If the only charge was First Degree Murder, who here would vote to acquit [Casey Anthony]? Please stand up.”

And just who is that unknown person moderating the assembled focus group; many astute followers of the Casey Anthony trial have opined that if you remove the beard, it looks remarkably similar to Richard Gabriel, whose website biography describes him as a “leader in the field of jury research, jury selection, and litigation communication.” The biography goes on to inform us that he ” is currently working with attorneys in the Casey Anthony matter.”

So what are the odds that the unknown moderator is both jury consultant Richard Gabriel and the Richard Gabriel that met with Casey Anthony on July 30, 2010.

If it is, there are two very interesting questions that are raised.

1. Was there a Privilege Waiver?

As most of you know by now, there are two primary mechanisms that protect a defendant’s Fifth Amendment right not to incriminate themselves and their Sixth Amendment right to the assistance of counsel. These two mechanisms are the Attorney-Client Privilege and the Work  Product Doctrine.

However both privileges can be waived if the defendant or her counsel communicate privileged information to third parties.

Normally communications by a defendant or her attorney with personnel like paralegals, investigators, interns, over-the-hill attorneys, and jury consultants – yes, jury consultants – carry the same protection as communications directly between the attorney and the defendant so long as they work for the attorney; as the privilege is imputed directly to them.

But if the defendant, attorney, or the personnel divulge this information to a third-party with no expectation of privacy, the privilege is waived.

So if the Richard Gabriel that visited Casey in jail, and  jury consultant Richard Gabriel, and the unknown moderator of CBS 48 hours Mystery are all the same person; it makes you wonder if Richard Gabriel disclosed “privileged” information to 48 Hours – did the defense waive any privilege that they might have enjoyed as to either their defense strategy or statements made by Casey.

2. How was Richard Gabriel Paid?

Which brings me to my final question.

If Jose Baez wanted a jury consultant, but Judge Perry denied him funds for a jury consultant, and yet Jose Baez subsequently shows up to the jail with a Jury Consultant; how did Jose Baez pay for the jury consultant.

Could it be that rather than pay Jose Baez “licensing fees,” CBS simply footed Mr. Gabriel’s fee and the focus group’s services (yes, they would need to be paid to listen all that evidence and testimony) in exchange for the Casey Anthony defense team providing CBS with exclusive rights to film the focus group’s reaction and have insight into the defense team’s planned defense?

Which raises a very academic, yet timely question: Do in-kind services have to be reported to JAC?

Sounds like some more Jose Baez chicanery to me.

I just thought I would point out how ironic it is that if you type in www.OrlandoDUI.com you are taken to the website of Former Sheriff’s Detective Dan Newlin.

Yes, the same former Sheriff’s Detective Dan Newlin who has all those billboards with an oversized head.

Yes, the same former Sheriff’s Detective Dan Newlin who blamed an “overzealous” cop for his DUI arrest last night.

I recommend that he hire a good attorney, one that doesn’t advertise on television.