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  • Should they Stay or Should they Go?

    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.

  • What are the Odds?

    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.

  • Former Sheriff’s Detective

    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.

  • Enlightening Article on Judge Perry

    Order in His Court
    Thought I would pass this link on to the followers of the Casey Anthony case.

    Other than Bob Kealings recent segments at WESH, this article is probably the most enlightening article about the judge to date.

  • Can I have some Fryes with that Clandestine Grave Detector?

    Over the next three days, the Casey Anthony case will take a scientific detour, the primary purpose of which is for Judge Perry to decide whether to admit testimony from Dr. Arpad Vass regarding his decompositional odor analysis of Casey Anthony’s trunk, an analysis that supposedly revealed the presence of Chloroform – a compound alleged by Dr. Vass to be unique to decomposing bodies.

    Who is Dr. Arpad Vass?

    Dr. Arpad Vass is a “research chemist scientist and forensic anthropologist based at the Life Sciences Division of Oak Ridge National Laboratory.”

    What is Decompositional odor analysis?

    According to Dr. Vass, deceased human beings release volatile chemical compounds during the decompositional process. Dr. Vass claims these compounds are the same “odors” that cadaver dogs detect when searching for human remains.

    As a result of this hypothesis, Dr. Vass (in conjunction with the FBI) has compiled a “Decompositional Odor Analysis Database” consisting of over 478 compounds that are released by decomposing bodies.

    The development of this database is outlined in several of his research papers:

    • Decompositional Odor Analysis Database
    • Odor analysis of decomposing buried human remains

    It is important to understand that the only person that knows all of the compounds in the database is Dr. Vass (and presumably the FBI), thus making it a proprietary database.

    Why is the Defense Objecting to Dr. Vass’ Testimony

    The Casey Anthony defense team is objecting to Dr. Vass’ testimony on the basis that it is based on “new or novel scientific techniques.” As a result, the defense has convinced Judge Perry to hold a Frye hearing to require the State to prove that Dr. Vass’ testimony is not based on new or novel scientific techniques.

    What is a Frye Hearing?

    A Frye hearing gets its name from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which held that before new or novel scientific techniques will be admissible, the court must find that the “scientific principles and methodologies” which the expert relies upon in rendering the opinion are generally accepted within the scientific community.

    What is Generally Accepted within the Scientific Community mean?

    Essentially, to be generally accepted within the scientific community, the methods and principles you relied upon in reaching your opinion must be generally accepted to be true and by your peers.

    It is important to note that your peers do not have to agree with the opinion you reached, just agree that the methods and principles you relied upon in reaching your conclusion are generally accepted.

    An excellent example of this occurred when the defense tried to exclude Dr. David Hall’s testimony in the field of botany. Judge Perry astutely pointed out that his testimony was purely opinion that was based upon general principles within the botany community.

    How is Dr. Vass’ Testimony Different from Dr. Hall’s?

    It may very well be that Judge Perry rules that Dr. Vass’ testimony is purely opinion testimony based on generally accepted “scientific principles and methodologies.”

    However, Dr. Vass’ testimony differs from Dr. Hall in one major respect; Dr. Vass’ testimony is based upon a proprietary database that he developed through his own research.

    The Heart of the Defense Argument

    If you read Dr. Vass’ report in the Casey Athony case, it essentially requires the reader to take his word that the compounds he identified in Casey Anthony’s trunk suggest a “decompositional event” because they match the compounds in his database – a database of 478 compounds that are a mystery to everyone but him.

    However, Dr. Vass’ research seems to have been developed for commercial and governmental purposes, as Dr. Vass has obtained a patent for a “Clandestine Grave Detector,” which is based on his research. Additionally, the FBI is part owner of the “Decompositional Odor Analysis Database” because they funded his research.

    This commercial motive is important because Dr. Vass has a vested interest in his research being validated by utilizing his research on behalf of the State at the Casey Anthony trial.

    This validation would stand in stark contrast to his 2008 work in the Charles Manson case where he attempted to use his research to identify “clandestine graves” at the infamous Barker Ranch. According to Dr. Vass, his research is so accurate that he can’t differentiate whether the decompositional event was from “an animal, Native American, or a dinosaur.”

    Needless to say, they did not find any bodies on the Barker Ranch to validate Dr. Vass’ claims that a decompositional event took place; which begs the question, how do we know his conclusions were correct?

    This is the same question that we must ask in the Casey Anthony case. If nobody but Dr. Vass has access to his database, how can anybody in the scientific community determine if the methods and principles he relied upon in compiling the database were generally accepted?

    And if we can’t determine if his methods and principles were generally accepted, how can we let him testify to something that only he would know the answer to.

    Another Problem of Dr. Vass’ Research

    If you read Dr. Vass’ literature, he appears fixated on the issue of Fluorinated water – essentially believing that because we fluorinate our water, this compound is usually present in decompositional events.

    However, fluoride was not present in his report in the Casey Anthony case. Instead, he accounts for the absence of fluoride to Caylee’s young age; meaning she did not live long enough to absorb the fluorine into her bones.

    But the question must be asked, what basis does he have to dismiss the presence of fluoride? If his work has not been sufficiently peer reviewed, how can we know that the methods and principles he relied upon in reaching that conclusion are scientifically accepted?

    From a statistical point of view, he has developed his database on a relatively small number of cadavers (according to his first paper, only four cadavers were used). Any statistician will tell you that you need at least 200 samples before you can make a statistically reliable conclusion. So it is difficult to believe that his reliance on such a small statistical sample would be accepted by peers in the scientific community.

    Peer Review, Schmear Review

    Essentially Dr. Vass has created a secret database that has not been peer-reviewed and cannot be peer reviewed – which is the hallmark of trusted scientific evidence.

    (Yes, ValHall at the Hinky Meter did an excellent review of much of the science behind Dr. Vass’ work last year. While ValHal was of the opinion that his research was peer-reviewed, I respectfully disagree.)

    Because any peer review of Dr. Vass’ research would by definition be incomplete unless the reviewer had complete access to his decompositional odor database. Without access to this database, it is impossible to thoroughly peer review his research.

    And peer review is the hallmark for determining whether a principle or methodology is generally accepted within the scientific community.

  • A Bad Lawyering Combination

    Just to show you that there are other Jose Baez and Cheney Masons out there parading around:

  • Nancy Grace Parody in Casey Anthony Case

     

     

  • The Theory of the Defense

    Back in 2007 I attended a criminal defense seminar in Key West, Florida called “Sailing Your Way to Victory.”

    One of the sessions I attended during that seminar was titled “The Theory of the Defense.” That session was taught by none other than a Mr. J. Cheney Mason, Esq.

    The session was an instruction on developing what are known as “theory of defense” jury instructions. The esteemed Mr. Mason went on to advise in his seminar materials (which I still have) that the “theory of the defense” should be “determined at the earliest possible time” and will frequently be “the difference between conviction and acquittal.”

    Theory, Schmeary

    Theory, Schmeary… so what does Mr. Mason’s seminar discussion on “Theory of Defense” have to do with the Casey Anthony case?

    Well, many of you may recall that last Friday, in response to the State’s Motion in Limine to preclude the defense from calling state witnesses liars without an evidentiary basis, Mr. Mason told Judge Perry (and I quote) “I am going to ask you to give a jury instruction that part of the theory of defense is that a certain witness is a liar and I believe you will give that based on the case of United States v. Alfonso-Perez, 535 F. 2d 1362 (U.S. 2d Cir. 1976).” (See YouTube Video of Friday Hearing | 11 minutes 26 seconds).

    Where Have I Heard that Before?

    The minute Mr. Mason mentioned United State v. Alfonso-Perez, I knew exactly where he was going, because it just so happens that United State v. Alfonso-Perez was one of the primary cases he cited in the 2007 seminar materials AND I had already researched the case myself, why you ask?

    Well after the seminar, I obviously thought it would be a swell if I could get a judge to instruct the jury on my specific defense theory. That way, not only could I argue the theory to them, I could also get the judge to instruct them on it.

    The obvious implication is that a judge adds judicial credibility to your theory by reading it to a jury and a jury would then be more apt to give your argument credence – rather than dismissing it as implausible.

    There was only one problem with Mr. Mason’s position, by the time he presented at the seminar, the cases he cited were over thirty years old. And unfortunately for me, they no longer applied.

    Rather, while Mr. Mason’s general premise was correct, his specific premise was superseded by intervening law; as a lot has changed since 1976.

    Specifically, beginning in 1981, the Florida Supreme Court began adopting and publishing Standard Jury Instructions that were to be used in all all criminal cases.

    As a result, the law now holds that a person is only entitled to a special jury instruction (such as what Mr. Mason asks) IF there is no Standard Jury Instruction in Florida that covers the particular issue. See Stephens v. State, 787 So. 2d 747, 755 (Fla. 2001) (“The standard jury instructions are presumed correct and are preferred over special instructions.”)

    And under current case law, a special jury instruction (like the one Mr. Mason wants) should only be given if:

    1. The special instruction was supported by the evidence;
    2. The standard instruction did not adequately cover the theory of defense; and
    3. The special instruction was a correct statement of the law and not misleading or confusing.

    Unfortunately for Mr. Mason’s expected request to Judge Perry, Florida Standard Criminal Jury Instruction 3.9 specifically and adequately covers issues of witness credibility, witness incentive, or witness inducement that a jury should consider when deciding what evidence is reliable.

    But what about United States v. Alfonso-Perez?

    Interestingly, the language of the special jury instruction that was the requested – and ultimately ordered to be given – in United States v. Alfonso-Perez was as follows:

    You are instructed that the defendant’s position is that he was not involved in the narcotics conspiracy. It is his position that the government witnesses must have falsely testified against him for reasons of their own, such as to obtain their own freedom from imprisonment by providing a target for prosecution other than themselves.

    Now is it just me, or would it seem easy to replace “the narcotics conspiracy” with “the death of Caylee Marie Anthony” and have an almost identical instruction that parallels claims made by the Casey Anthony defense?

    You are instructed that the defendant’s position is that she was not involved in the death of Caylee Martie Anthony. It is her position that the government witnesses must have falsely testified against her for reasons of their own, such as to obtain their own freedom from imprisonment by providing a target for prosecution other than themselves.

    If so, I think Mr. J. Cheney Mason, Esq. may have given away what “Theory of Defense” he will pursue at trial.

    And One Last Thing…

    There was one last thing Mr. Mason made a point to emphasize in his seminar materials, which was:

    Do not reveal the theory of defense in advance [as] cops will change their testimony and prosecutors will conform or revise their case.

    All I can say is, way to take your own advice Mr. Mason, way to take your own advice.

  • A Favorable Appellate Case for the State?

    As many of you know, the focus of the hearings over the last three days has been on whether Casey Anthony was “in custody” and, if so, at what point was she “in custody.”

    And as has been discussed at  WebSleuths by AZLawyer, Judge Perry’s decision will hinge on the following four factor analysis used in Florida and outlined in Ramirez v. State, 739 So. 2d 568 (Fla. 1999):

    1. The manner in which police summon the suspect for questioning;
    2. The purpose, place, and manner of the interrogation;
    3. The extent to which the suspect is confronted with evidence of his or her guilt; and
    4. Whether the suspect is informed that he or she is free to leave the place of questioning..

    The reason this analysis is so important is that if  it is determined that a reasonable person in the defendant’s  position (here, Casey Anthony) would have believed herself to be in custody, law enforcement would have been required to administer proper Miranda warnings at the point a reasonable person would have felt them self in custody. And any statements made after that point, without the benefit of Miranda, would have been illegally obtained and will, therefore, be suppressed.

    On the other hand, if it was determined that Casey Anthony was not in custody, then law enforcement would not have had to administer Miranda warnings and all of Casey Anthony’s statements come in.

    Miranda Warnings are no Guaranty

    But even Miranda Warnings are no Guaranty. An excellent example of how easily law enforcement can hurt a case, even though it seemingly appeared they were doing everything by the book, is Ross v. State, 45 So. 3d 403 (Fla. 2010).

    In Ross’ case, the Florida Supreme Court reversed a conviction for First Degree Murder and found his right against self-incrimination was violated.

    In doing so, the Florida Supreme Court provided more specific guidance for determining when a person is in custody – as it is at this point a person must be Mirandized, not before.

    In making this determination, the Court laid out a two-factor analysis for the Court to use:

    1. The circumstances surrounding the interrogation; and
    2. Given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.

    In using this analysis, along with the Ramirez framework, the Florida Supreme Court found that even though Law Enforcement administered Miranda “the timing and circumstances of the warnings undermined the intent and effectiveness of Miranda, particularly in light of the following:”

    1. The initial Miranda warnings were deliberately delayed and no warnings were given until after Ross made incriminating statements;
    2. Police downplayed the significance of the Miranda rights and misled Ross by assuring him that he was not being arrested “at the time” despite the incriminating evidence and Ross’s prior statements;
    3. Before continuing the post-warning interrogation, the police reminded Ross about his earlier admissions;
    4. Police did nothing to counter the probable mis-impression that Ross’s prior incriminating statements could be used against him; and
    5. Police treated the pre- and post-warning interrogation as one continuing round of questioning with only a minimal break but no change in circumstances.
    6. In addition, we also take into account that Ross was only twenty-one at the time with no indication of any prior experience with the criminal justice system.

    The Focus of the Anthony Defense Questioning

    And as you know, there were no Miranda warnings given in the Casey Anthony case at her house or during the walking tour she provided to law enforcement at Universal.

    So if Custody is determined to have occurred at her house or at Universal Studios with no Miranda warnings ever given, you can be assured that the Florida Supreme Court will surely frown on the tactics used by Detectives Melich and Allen as in many ways, they mirror the law enforcement tactics used in Ross.

    A Ray of Hope for the State

    However, just today, the Fifth District Court of Appeals issue State v. Perez, 58 So. 3d 309 (Fla. 5th DCA 2011), that is favorable to the State and might provide Judge Perry with some guidance on how to rule.

    In Perez, the defendant was interviewed by law enforcement at his home, the law enforcement officer went there under the pretext of investigation one crime when it appears he was really investigating another crime and told the defendant’s mother to leave when he started asking about the second crime.

    The trial court initially found that the officer’s lack of candor about his purpose along with telling the mother to leave indicated a Miranda violation under the Ramirez framework. However, just today, the Fifth DCA issued a ruling reversing the trial court’s findings, saying that

    “Balancing all the facts in light of the four-part test in Ramirez leads us to conclude that a reasonable person in Perez’s situation would not have believed himself to be in custody.  Accordingly, we reverse the order suppressing Perez’s confession and remand to the trial court for further proceedings.”

    Interestingly, the decision makes no mention of the Ross decision, which leads me to believe that Perez was written before the Ross decision came out. Nonetheless, while not as involved as Casey Anthony’s case, it does provide some favorable direction if Judge Perry wanted to find in favor of the state.

    On the other hand, I am not sure it is favorable enough to overcome Ross…

  • The Rule of Sequestration

    The Rule of Sequestration is a common law rule that could be invoked by parties to a legal proceeding to exclude non-party witnesses from listening in on what other witnesses testified to.

    This common law rule has been codified as Florida Statute 90.616 (“Exclusion of witnesses”) and states in relevant part that “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.”

    If requested by a party, the exclusion of witnesses from a proceeding is mandatory, as the rule uses the word shall.

    Reporter’s Privilege?

    Yes, Florida does have a Journalist’s privilege that can be invoked. See Florida Statute 90.5015. And I believe that a journalist would likely be able to avoid being forced to testify based upon this privilege; especially as it relates to the Casey Anthony case.

    More importantly, to overcome the privilege, Baez and Co. would have to show:

    1. The information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought;
    2. The information cannot be obtained from alternative sources; and
    3. A compelling interest exists for requiring disclosure of the information.

    Given this high legal hurdle, it is unlikely that any reporter has information that would satisfy all three prongs.

    What if?

    But let’s assume for a minute that the privilege does not exist, could Baez really get a reporter excluded from sitting in on the trial by listing them on the witness list?

    A black letter reading of the rule would appear to say yes, as exclusion is a mandatory requirement.

    However, Gore Newspapers Company v. Reasbeck, 363 So. 2d 609 (Fla. 4th DCA 1978), an old opinion out of the Fourth District Court of Appeals (which predates the codification of F.S. 90.616), indicates that if the invocation of the rule is challenged by the witness or the opposing party, the judge must determine that the “rule” is being properly invoked.

    In that case, the defense attorney declared that any person who walked in the room was a potential witness and asked the court to swear them in so that the rule of sequestration applied.

    On appeal, the appellate court pointed out early on in the opinion that “the entire charade was simply a ruse by counsel for the defendant to exclude the press from that proceeding.” The court found that “the granting of the rule of sequestration was improper and that the trial judge erred in failing to exercise his discretion by denying the requested invocation of the rule.”

    Exercise in Futility

    So at the end of the day, it appears that the Defense team’s hijinks are just another exercise in futility. Even assuming Judge Perry does not strike their latest witness list, they are unlikely to overcome the reporter’s privilege and are even more unlikely to successfully invoke the Rule of Sequestration.

    Moreover, it is abundantly clear that they are listing the reporter solely as a ruse to harass the reporter – not to mention make an end run around the First Amendment.

    A Historical Note

    (A little legal history, the Fifth District Court of Appeals was created by legislative act in 1979 and was carved out of the Fourth District Court of Appeals. So all Fourth District Court of Appeals decisions made prior to 1979 are binding on the Fifth District Court of Appeals.)