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Okay unfaithful ones, I need to get a life.

So here I was watching Saturday Night Live (Google v. iPhone) when I noticed this post on the MarinadeDave blog: ALERT! Zenaida Myspace page logged into today!

Now, my first reaction was:

No shit, Zenaida’s got a MySpace page? She needs to get a life too. I mean who uses MySpace anymore?

But then I remembered that Casey Anthony had already ruined her life and that this Zenaida Gonzalez had hired The M-Team to clear her name. (Listen: The M-Team Intro)

Now aside from my continuing suspicions about whether The M-Team took on Ms. Gonzalez’s case out of the goodness of their hearts solely to clear poor little old Zenaida Gonzalez’s name (I am unaware of them donating any time to the Florida Innocence Project or helping people like James Bain, Leroy McGee, or Bill Dillon clear their equally valuable names), I thought this post needed some looking into.

And man was I reeled in, it was great – if Casey really set up this MySpace page, it provided proof of cold and calculating pre-meditation. But then I read the HinkyMeter and it appears this may be some elaborate hoax 🙁

Undeterred, I moseyed on over to WebSleuths and there it was like lights on a Christmas Tree: Is Casey the real Zenaida? This thread had Five Star ratings and all. I was hooked for about five minutes – and then I got a headache.

But around page 25 of the thread, I did come across some righteous conspiracy angles regarding the issuing of traffic tickets to both Annie Downing and Zenaida Gonzalez on May 24, 2008… (cue mystery music)

Now the first thing that came to my mind was:

“Well, I understand why that reporter called me on April 10, 2009 and asked me to look into this TicketGate.”

And so look is exactly what I did and (Spoiler Alert) while I did not find any real Casey Anthony link, I think I may have found a real juicy Cindy Anthony conspiracy theory – shall I explain?

As most of you guessed, the first thing I did was visit the Orange County Clerk’s website to look up both Annie Downing and Zenaida Gonzalez. To my amazement, there were tickets issued to them both on the same day – the plot thickens.

But wait, it appears that Ms. Gonzalez received not one BUT two tickets…

Now this second ticket was a criminal ticket (more on that later), so it must have been that dastardly Casey Anthony if it was a criminal ticket! She clearly was posing as Zenaida Gonzalez AND Annie Downing on the same day; or was she? Well, this is what inquiring minds want to know! (And National Enquiring minds too, I suppose.)

But before I go any further, I need to explain a little court procedure.

As I explained in a non-Casey Anthony post (Florida’s Uniform Case Numbering System) Florida utilizes a uniform case numbering system that utilizes a twenty character sequence that has five components (Boring I know, but necessary).

And so the case numbers assigned to the three tickets were as follows:

• 48-2008-TR-104021-O; Annie L. Downing
• 48-2008-TR-028407-W; Zenaida Gonzalez
• 48-2008-CT-002378-W; Zenaida Gonzalez

As you may have noticed, the third and fifth components of the case numbers have some differences.

First, you probably notice that the third case number has “CT” in it. Well, this tells people this is a Criminal Traffic offense and is technically a misdemeanor, just like a battery or petit theft. The “TR” stands for a traffic infraction and is civil in nature. An important distinction is also the manner in which they can be resolved: a traffic infraction can be paid, a criminal traffic offense requires a mandatory court appearance.

Second, you may have noticed that the first ticket ends in “O” (as in Orange) and the second two end in “W” (as in West). This last letter is used by the Orange County Clerk of Court to designate which courthouse the tickets are to be handled as if they are contested.

So all cases that end in “O” are resolved at the downtown Orange County Courthouse and all tickets that end in “W” are resolved at the Ocoee Courthouse Annex, which also happens be the westernmost courthouse building in Orange County. If the tickets had ended in “E,” they would have been resolved at the Winter Park Courthouse Annex, which also happens to be the easternmost courthouse building in Orange County (coinkydink, I think not).

So now we know that Ms. Gonzalez’s second ticket was both a criminal case and was to be resolved at the Ocoee Courthouse. And there is one other interesting thing that many people don’t know, the courthouse where the case is resolved is the courthouse that maintains the court file (for at least two years) – this will be important for later.

So with this information in hand, I then went to the downtown courthouse to see what I could get on Ms. Downing’s case. I was informed by the Clerk that the original ticket no longer existed because it had been imaged. So, of course, I had the nice lady print me out a copy: (PDF: Annie L. Downing; 48-2008-TR-104021-W).

Interestingly, the Clerk was also able to print me out a copy of Ms. Gonzalez’s traffic infraction. (PDF: Zenaida Gonzalez; 48-2008-TR-28407-W).

Now the ticket itself provides me with very little information, but it did tell me that Ms. Gonzalez did not have a Florida  Driver License number (which explains her criminal ticket of No Valid Driver’s License) and I was intrigued by the way the ticket was signed – Zenaida Gonzalez C.

Now at this point you have noticed that I was unable to unearth any information on the criminal case; but all was not lost unfaithful ones – for I was undeterred and drove my happy ass down to the Ocoee Courthouse Annex.

And sure enough I was able to finagle my way into the file room and what should I find… None other than a video of Casey Anthony pretending to be Zenaida Gonzales!!!

No, really what I found was the court file for Ms. Zenaida Gonzalez (PDF: Zenaida Gonzalez; 48-2008-CT-2378-W). And after reviewing the file, I quickly realized this Zenaida Gonzalez had absolutely nothing to do with Casey Anthony or these cases.

It reveals that when Ms. Gonzalez was stopped, Officer Allen was unable to communicate with her because she spoke Espanol (Go figure!). As a result, he called Officer Narvaez who does speak Spanish. Officer Narvaez then issued Ms. Gonzalez two tickets:

1. A civil ticket for Failure to Yield and
2. A criminal ticket for Driving without a valid Driver License.

Ms. Gonzalez then appeared for court on June 11, 2008 and lo and behold, she still had not mastered the English language. So she signed a Spanish Plea Form and plead Nolo Contendere. The Court then Withheld Adjudication of Guilt, fined her $100, and imposed court costs. Ironically, the court issued her a Notice of Fine and Fees as well as her sentencing disposition in English! No wonder she did not pay her court costs on time.

So, it appears that this Zenaida Gonzalez had nothing to do with Casey, or did she?

Well, ye unfaithful may remember Cindy Anthony’s civil deposition with The M-Team. And if you remember correctly, there was a lot of ruckus about “C. Zenaida Gonzalez.” (WESH: Casey Anthony’s Parents Questioned In Civil Suit.)

The main contention was about the significance of the name C. Zenaida Gonzales appearing on the Sawgrass Apartments log. I assume this is important because Casey clearly told Lee Anthony that the nanny’s name was Zenaida Fernandez Gonzalez.

And I think Cindy’s point was that if The M-Team’s “Zenaida Gonzalez” signed her name C. Zenaida Gonzalez, there would be no way for Casey to know that her full name was really Zenaida Fernandez-Gonzalez.

So what is my point to all of this nonsense – that it is just that, nonsense.

For once in my life, I find myself agreeing with Cindy Anthony; meaning that there was no way for Casey Anthony to extrapolate that the “C. Zenaida Gonzalez” who signed the Sawgrass Apartment log was actually The M-Team’s “Zenaida Fernandez-Gonzalez.”

And the reason I believe her is because:

1. Casey Anthony is a liar, liar, pants on fire! and
2. THERE IS NOT A “REAL” ZENAIDA GONZALEZ.

No, Casey Anthony’s Zenaida Gonzalez is none other than a Zanny Bar otherwise known as Xanax!

That is right:

• There is no real Zenaida on MySpace that is linked to this case,
• There was no super sleuthing by Casey to figure out that C. Zenaida Gonzalez was actually Zenaida Fernandez-Gonzalez,
• Nor is the Zenaida Gonzalez C. who was ticketed on the same day as Annie Downing linked to this case.

Nope these conspiracy theories are giving me a headache.

Why doesn’t Casey Anthony’s real Zenaida Gonzalez please stand up?

Hello my unfaithful!

Well, Friday brought some interesting events, oh where to begin? The beginning is always a good place to start…

But before I do, I should point out I have left out discussion on the video arguments because I covered it previously (How the Grinch Stole Casey Anthony’s Christmas) and nothing new came out during Friday’s hearing.

Dominic Casey’s Protective Order

To the lay person, this part of the hearing may have seemed overly confusing – but in actuality is rather simple from a legal perspective. Let me explain.

Basics of Ongoing Investigations

Notwithstanding the ongoing prosecution of Casey Anthony, the State Attorney is free to continue to investigate the case, as is the defense.

So let’s say that a potential witness is brought to either side’s attention. The first thing they might do is see if the person would voluntarily come in and speak with them. If the person agrees (as with Kronk’s ex-wives), no problem – if the person does not agree, well then we have a problem. At this point, the person must be compelled to testify.

Devlin v. Rosman, although a civil case, explains this concept in a fairly straightforward manner.

It is the general rule that attorneys for one party in a pending case are free to interview the other party’s intended witness without the consent or presence of opposing counsel. This presupposes that the person thus sought to be interviewed is willing to submit thereto. If he is not, he may insist that his views or testimony be given only upon deposition or at a trial or other court proceeding in the cause, after having been subpoenaed. Devlin v. Rosman, 205 So. 2d 346, 347 (Fla. 3d DCA 1967)

The State Attorney’s Investigative Subpoena Power

However, let’s say the State comes across a witness that both:

1. Is not listed by the defense, and
2. Does not want to voluntarily cooperate.

Well the State is then entitled to issue what is referred to as an investigative subpoena. See Section 27.04, Florida Statutes – “Summoning and examining witnesses for state.”

Once served with the investigative subpoena, the person is required to appear before the State Attorney and answer any questions they have. The only questions they are not required to answer are ones that go to areas that are constitutionally, statutorily, or procedurally protected (meaning privileged). Nevertheless, the State can offer use immunity and require the protected information be divulged.

So in the instant case, even if Dominic Casey had privileged information that belonged to George and Cindy Anthony, the State could offer use immunity that would allow them to pierce the privilege and ascertain what he knows. If he divulged something that could get him, George, or Cindy into trouble, he (and presumably they, not quite sure) would be immune from prosecution based on the discovery of this information.

Now, let’s say that the State Attorney is provided information regarding the Casey Anthony case by the previously unlisted witness. At this point, they are required by Florida Rule of Criminal Procedure to list Mr. Casey as either a category A, B, or C witness. See Florida Rule of Criminal Procedure 3.220(1)(B)(1)(A).

Essentially Category A witnesses are any material witness, Category B witnesses are expert witnesses whose testimony is fully laid out in a written report, and Category C witnesses are people who have no real information to provide (think records custodians).

The Defendant’s Deposition Subpoena Power

Now prior to this point, the defense had no “authority” to compel any witness to speak with them. However, once listed by the State, the defense is then authorized by Florida Rule of Criminal Procedure 3.220(h) to “depose” a person if the person does not want to voluntarily speak with the defense.

And at its core, a deposition (as opposed to an interview) is nothing more than a “compelled sworn interview” in the presence of both parties. Meaning the person was required to appear pursuant to a court order (compelled), to be placed under oath (sworn), and answer questions (interview).

Now a final nuance to this discussion is what happens when the defense team places a person on their witness list. Remember that the defense had no authority to require state witnesses to sit for an interview until the State actually lists them. And if the defense wants to speak with an uncooperative state witness, he can subpoena them for a deposition.

The flip side of this coin is that “[i]f defense counsel wants to protect against the state’s ex parte [compelled] examination of a witness, he can do so by furnishing the witness’s name on his list of defense witnesses.” See Dufour v. State, 495 So. 2d 154, 161 (Fla. 1986).

The reasoning is that if the State could compel a listed defense witness to appear without notice to the defense, the state might “inject certain information to influence or bias the testimony” of the witness. See generally Lee v. State, 324 So. 2d 694, 698 (Fla. 1st DCA 1976).

So really what this boils down to is that until Jose Baez lists Dominic Casey as a witness, he has no right to be present at an investigative interview by the State.

If he does list Dominic Casey as a witness, the State is required to notify the defense of the “interview,” which is now legally defined as a “deposition.”

The Bottom Line

Which leads us to Judge Strickland’s final remarks:

“Call me if there is a problem.”

Essentially he instructed the parties to go forward with the interview/deposition and to call him (literally) if there are any objections based on privilege that must be ruled on during the interview/deposition.

This procedure saves everyone’s time and money lessens the spectacle and allows the case to move forward.

Yay for Common Sense!

The Double Jeopardy Motion

Since both the defense and state rested on their pleadings during their argument, I will rest on my previous analysis of the motion found in How the Grinch Stole Casey Anthony’s Christmas.

As for who has the better legal argument, I would point out that the State cited State v. Sholl, 1D08-4826 (Fla. 1st DCA 2009) – the same case I cited days before they filed their motion. On the other hand, the defense did not – you figure out who I think did better.

And like the State, I will not comment (too much) on Mr. Baez’s editorial comments except to say that what he expects of Casey Anthony’s case is precisely what he argues against – special treatment. And as a local practitioner, his continued hypocrisy disgusts me. When I was a public defender, I saw hundreds of cases where seemingly excessive counts were filed, just like Ms. Anthony’s case.

Before I go any further though, a lot of people have asked why Judge Strickland did not rule right away – and here are my thoughts.

It is not unusual for him to reserve ruling on motions and issue an order afterward. And while he has never come out and said so, most practitioners (including myself) believe he does this as a professional courtesy to the lawyers who argued the motion.

Because it allows the attorneys who argued the (likely) losing side to save face during the hearing and break the bad news to their clients in private (Casey, we almost convinced him otherwise he would not have waited to rule – next time). Seriously though, I am glad he does that as it makes life easier for the average practitioner.

Moving on though, Judge Strickland did provide some interesting insight that is worthy of discussion.

Reading Between the Lines

At the end of the discussion of the double jeopardy issue, Judge Strickland took the unusual step of giving his thoughts on the motion; and I think it was very shrewd on his part. So let’s examine what he said:

He began by saying that he would get out a:

“Short order on the alleged double jeopardy violation.”

Well, let me tell you something, judges do not issue short orders granting motions to dismiss – they issue very long ones.

He then added that the Check Fraud case is:

Going to get resolved either by trial or plea before the Capital case.

Judges who are going to dismiss cases don’t say that either.

So reading between the lines, it seems clear how he will rule on the motion (and how meritorious he thinks it is) – MOTION DENIED (I bet he even cites State v. Sholl).

The Real Issue is Punishment

Now here is where Judge Strickland took an unusual, but a shrewd step.

Not only did he basically deny the motion, but he essentially stated how he would sentence Casey Anthony if she was found guilty.

After stating “the real issue is punishment…” he went onto explain how he would sentence a “first time offender.” And to understand why this is so important, you must understand some basic Florida Sentencing Law.

Generally, a “judge may neither state nor imply alternative sentencing possibilities which hinge on future choices, such as the exercise of the defendant’s right to a trial.” And if the judge does imply a potential sentence, but subsequently imposes a harsher one, the sentence will be presumed to be vindictive and subject to reversal on appeal. See Longley v. State, 902 So. 2d 925 (Fla. 5th DCA 2005) (A case that involved yours truly!).

So with that general principle of law, let’s examine what Judge Strickland said, which was:

He would deal with Casey Anthony the same way he would deal with anybody else who sits there with no priors, which would generally be jail time and frequently concurrent sentences.

Now Judge Strickland did not use the words consecutively, incarcerate, probation, or prison –  he said “jail and concurrent sentences.” And under Florida law, these terms have distinct meanings.

Specifically, for a felony offense, a person can be sentenced to no more than 1 year in a county jail. See Section 922.051, Florida Statutes. If the cumulative sentence exceeds 1 year, the person must be sentenced to prison. See Section 775.08, Florida Statutes.

Additionally, he said concurrent sentences. This is also codified in Section 921.16, Florida Statutes, states:

A defendant convicted of two or more offenses charged in the same information, or [consolidated indictments] shall serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences be served consecutively.

A final point of law that needs to remember is that if he sentences her to jail, with no probation, he is required by law to adjudicate her guilty of each count. See Section 948.01(2), Florida Statutes. And this is all that the State really wants out of the Check Fraud case anyway.

So considering Casey Anthony has been in jail for an excess of 1 year on the Check Fraud case, Judge Strickland basically told both parties that if convicted he will Adjudicate her Guilty and sentence her to concurrent sentences of 1 year in jail on each count, with credit for time served.

Meaning, a time served sentence – but a sentence that leaves her as a convicted felon on each count.

Now Why Did He Do This?

Well, he did it because he is a fair judge, but also because he doesn’t want this Check Fraud case to be dragged out unnecessarily.

As I discussed in Casey Anthony: Insufficient Funds Part Deux, the guilt is overwhelming apparent and the defense only wants to delay the case to avoid the convictions.

However, by showing how he would sentence her (which is the best and most realistic sentence they could hope for) Judge Strickland has basically said, you no longer have any legitimate reason to drag this thing out because I am not going to slam her (remember, she was technically looking at up to 65 years in prison).

Moreover, if you listened carefully at the end of the hearing Judge Strickland said:

“Also by the way, in terms of pretrial, we are still on for trial for January 25 at 10. We discussed that briefly in the back and I am going to await word from each of you and I am going to order an appropriate number of jurors next week.”

Well, here is a little local insight: you don’t “order an appropriate number of jurors” unless you first know where the jury is going to be selected from – Judge Strickland does.

So I think Judge Strickland is intending to attempt to pick the Check Fraud jury in Orlando – and only if they are unable to seat a jury will he move it somewhere else (same as was done in John Couey case).

I also surmise he made this intention known to both parties during the discussions that were made off the record in the back.

Additionally, by refusing to change the venue as Jose Baez so desperately wants, he is calling Jose Baez’s bluff – because everybody knows he does not really want to try the Check Fraud case in the first place, much less in Orlando.

So Mr. Baez can either:

1. Spend a month preparing for and conducting a spectacle of a trial that he will almost assuredly lose, or
2. He can take Judge Strickland’s olive branch and let this case go away quietly with a guaranteed sentence (and a guaranteed appeal if it is not imposed).

What would Sun Tzu do?

The Reality Check

The most interesting part of the hearing to the layperson was obviously the remarks given by Jeff Ashton in his rebuttal to Ms. Lyon’s argument to preclude the death penalty.

Not that I think he was reading my blog, but he said much more eloquently and succinctly exactly what I had eluded to in How the Grinch Stole Casey Anthony’s Christmas; which is the death penalty is always a potential penalty in a Capital murder case.

And many people were curious as to why he cited so little law in comparison to Ms. Lyon, well the answer is relatively simple – the law states precisely what he argued:

Section 782.04(1)(b), Florida Statutes. In all cases under [the Murder statute], the procedure set forth in s. 921.141 shall be followed in order to determine sentence of death or life imprisonment.

Section 921.141, Florida Statutes.  Sentence of death or life imprisonment for capital felonies; further proceedings to determine the sentence.

(1) Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment as authorized by law.

But aside from his legal argument, which he could have rested on – he then went onto give the proverbial bitch slap to the defense and provided a much needed reality check as to how serious the state is about prosecuting Casey Anthony – and how strong they think their case is.

And as someone who has been watching this circus from the outside, I think it is about time.

Advantage: State

Hello again my unfaithful readers!

In part one of this two-part expose on Casey Anthony’s Check Fraud case, we discussed why the State wants to try the Check Fraud case before the First Degree Murder case.

In part deux, we will discuss why the Defense will likely try to postpone the Check Fraud case in some manner.

But before we discuss the how and why the defense will try to delay the Check Fraud case, I think it is best that we discuss what I would be doing.

Because there is nothing more enjoyable than second guessing another person’s strategy by playing Monday Morning Quarterback.

What Would Hornsby Do?

Now we know that the real prize to the State is the thirteen felony fraud convictions for use as impeachment in the Murder case. Thus we know that the defense wants to avoid trying the Check Fraud case before the Murder case at all costs.

However, with Judge Strickland having granted the State’s Motion to Set a Trial Date in the Check Fraud case, it seems likely that the Check Fraud case would be tried first.

And when the ship is sinking, Richard Hornsby asks, why go down with the ship?

A Lifeline…

Florida Rules of Criminal Procedure 3.151 allows a defendant to consolidate “related” cases and charges.

Rule 3.151. Consolidation of Related Offenses
(a) Related Offenses. For purposes of these rules, 2 or more offenses are related offenses if they are triable in the same court and are based on the same act or transaction or on 2 or more connected acts or transactions.

(b) Consolidation of Indictments or Informations. Two or more indictments or informations charging related offenses shall be consolidated for trial on a timely motion by a defendant or by the state. The procedure thereafter shall be the same as if the prosecution were under a single indictment or information. Failure to timely move for consolidation constitutes a waiver of the right to consolidation.

A casual reading shows that in order to consolidate offenses, there must be two or more offenses (meaning charged with at least two crimes – duh!) and they must be based upon “two or more connected acts or transactions.”

And this relationship has been further defined by the Florida Supreme Court in Spencer v. State, 645 So. 2d 377 (Fla. 1994), which held that for consolidation purposes, the two incidents need only be “causally related,” meaning they “stem from the same underlying dispute and involve the same parties.”

So coming full circle, we know that Amy Huizenga will be required to testify in both cases. We also know the underlying conduct that makes up the Check Fraud case will be relied upon by the State to convict Casey in the murder case.

So the real question is – what is the defense thinking?

Wishful Thinking

There is only one possible explanation for the defense team’s failure to move for consolidation (Okay, other than they didn’t know they could – but really?)

They believe they will be able to exclude the Check Fraud conduct from admitted into evidence in the Murder case – arguing it is nothing more than character evidence used solely to show propensity to commit crimes (which we all remember is an inadmissible purpose).

Nevertheless unfaithful ones, if this is the defense team’s thinking, it is nothing more than wishful thinking… Why?

There are two types of evidence of uncharged crimes that is admissible against a defendant: “similar fact evidence” and “dissimilar fact evidence.”

We have previously discussed “similar fact evidence” and how it can be introduced to show show modus operandi or absence of mistake. (See In Defense of the Casey Anthony Defense.) This type of evidence is governed by Section 90.404, Florida Statutes.

On the other hand, “dissimilar fact evidence”  is governed by the general rule of relevancy set forth in Section 90.402, Florida Statutes. And under Florida law, dissimilar fact evidence of uncharged misconduct is admissible to establish the relevant context in which the criminal acts occurred so that the State can paint an accurate picture of the events surrounding them.

As a result, evidence of misconduct not charged in the Murder Indictment (i.e. the Check Fraud charges) is relevant and admissible when it is necessary to adequately describe the events leading up to the commission of the offenses charged in the Murder case. See Victorino v. State SC06-2090 (Fla. November 23, 2009).

Moreover, such evidence is “admissible as relevant evidence even though it might otherwise be objectionable as prior bad act evidence because it is ‘inextricably intertwined‘ with the underlying crime.” See Shively v. State, 752 So. 2d 84 (Fla. 5th DCA 2000). This is especially true if the evidence of other crimes, wrongs, and acts is probative on a material issue  and not being offered just to show the bad character or propensity of an individual. See Hunter v. State, 660 So. 2d 244 (Fla. 1995).

And looking at Ms. Anthony’s case in context, it seems undeniable that the State would be entitled to present evidence of her fraudulent activity to establish a time-line, show her absence of mistake, show her false statements to police, show her lack of remorse, show she purchased nothing for Caylee with the stolen funds, show …

But again, what would Hornsby do, or better yet – what would Sun-Tzu do?

The Art of War

In chapter two of the Art of War, Sun-Tzu says:

One who cannot be victorious assumes a defensive posture; one who can be victorious attacks.

In these circumstances by assuming a defensive posture, strength will be more than adequate, whereas in offensive actions it would be inadequate.

What this stanza means is that you should only fight when victory can be secured; otherwise you should assume a defensive posture. This allows you to both minimize your losses when attacked, and live to fight another day.

And considering that Casey Anthony’s guilt is evident in the Check Fraud case, it would seem obvious they cannot obtain an acquittal – so why try the case first and provide the State with additional ammunition in the Murder case?

Rather, they should wisely choose a defensive posture and move to consolidate the cases, which is the safest option and minimizes negative exposure to the jury in the Murder case.

And importantly, from a defense perspective, if the motion to consolidate was denied, it would create one additional appellate issue that could be raised in either case.

However, her defense team seems to be pursuing a more precarious option – delay the inevitable.

Delay is the Deadliest Form of Denial

By choosing to delay the Check Fraud case, Casey Anthony’s defense team only has three options available:

1. Motion to Continue,
2. Plea to the Bench, or
3. Conduct a Trial.

So let’s discuss each of these options.

Some Other Day Please: Motion to Continue

While Judge Strickland granted the State’s Motion for Determination of New Trial Date, it must be realized that his order only instructed the Clerk to docket the Check Fraud case for “pretrial and trial” – a standard couplet of court dates that are scheduled in all criminal cases. And as any practitioner will tell you, most Motions to Continue are made at the pretrial.

Additionally, many people have equated Judge Strickland’s consideration of Amy Huizenga’s affidavit with her having exercised her speedy trial rights afforded to victims in Florida.

Unfortunately though, Ms. Huizenga’s speedy trial rights have yet to mature. Because under Florida law, a victim’s Demand for a Speedy Trial cannot be made until the court has granted at least three continuances upon the request of the defendant and over the objection of the state attorney. (See Section 960.0015, Florida Statutes.)

And not only does Judge Strickland’s Order specifically state that the Check Fraud case has only “technically” been continued one time, it must be remembered that that continuance was not opposed by the State. Thus the defense could still be able to continue the case three times before the state could file a Demand for Speedy Trial on behalf of Ms. Huizenga.

Consequently, it is still possible that the defense could move to continue the case at the upcoming pretrial if they can show good cause for the continuance as required by Florida Rule of Criminal Procedure 3.190(g).

When moving to continue, defense attorneys usually state one of two reasons: (1) they are trying to locate additional witnesses or (2) they need additional time to prepare. In Ms. Anthony’s case, it would seem additional time to prepare is the only good faith reason they could raise.

And when alleging additional time needed to prepare, a judge must consider the following factors to determine if the continuance should be granted. See Trocola v. State, 867 So.2d 1229 (Fla. 5th DCA 2004).

1. The time actually available for preparation;
2. The likelihood of prejudice to the defendant from the denial;
3. The defendant’s role in shortening the preparation time;
4. The complexity of the case;
5. The availability of discovery;
6. The adequacy of counsel actually provided; and
7. The skill and experience of the attorneys considering their pre-retention experience with the defendant or the alleged crime.

A cursory review of these factors mitigates against Judge Strickland being required to grant the defense another continuance. But in addition to the factors outlined in Trocola, Rule 3.190(g)(5) is also working against the defense:

The party applying for a continuance may file affidavits in support of the motion, and the adverse party may file counter-affidavits in opposition to the motion.

Considering the defense has not filed any supporting affidavits and the State has filed Ms. Huizenga’s, it seems obvious that Judge Strickland is entitled to deny any Motion to Continue made by the defense. But this is especially so considering how much weight Judge Strickland gave to Ms. Huizenga’s affidavit and the very pointed language he used to describe how simple the case would be to try – thus preempting any future attempt to request additional time to prepare.

To Plea or not to Plea, for that is the Question: Plea to the Bench

Of the three options available, I believe this is the most likely to occur – with one caveat.

While I think the defense will plea to the bench to avoid a trial, I nonetheless think they will wait until the last minute to do so – meaning until the jury is literally waiting outside the courtroom to be picked.

So the question then turns to why would they plea to the bench, rather than roll the dice at trial.

Two Words: Strategery!

The truth is that no matter how much “duh” the Casey Anthony team puts into the term defense, even they have to know they would lose the Check Fraud trial given the overwhelming direct evidence.

But more importantly, the State Attorney’s Office would get a free test run against Mr. Baez, Ms. Lyon, and Ms. Kenney-Baden.

This would allow the State to prepare for each attorney’s particular style, to obtain a psychological insight on how the attorney thinks, and allow the State to prepare limiting motions to prevent the defense from engaging in certain conduct or argument during the Murder trial that they attempted in the Check Fraud trial.

Additionally, considering the State Attorney is not offering the defense any plea bargains in the Check Fraud case – the defense would have to know that their only hope in any type of leniency would be to appeal to Judge Strickland.

However, it is highly unlikely Judge Strickland would show them much sympathy if they wasted the court’s time and resources. And, as I will discuss at the end of this post, the ultimate sentence will be up to Judge Strickland if she pleads guilty or is found guilty. And as the saying goes, don’t bite the hand that feeds you. (This of course assumes Casey Anthony is not acquitted of the Check Fraud charges,)

A Final Wrinkle

Even if Casey Anthony pleads to the bench, it is interesting to note that a judge is not required to accept any plea other than a Guilty plea – meaning that Judge Strickland could refuse to accept a Nolo Contendere (No Contest) plea.

The reasoning is that a person who admits their guilt has less issues available to appeal; whereas a person who pleads Nolo Contendere can not only claim actual innocence on appeal, but can appeal such trivial claims like the denial of a motion to continue.

And while there are many judges that will only accept a Guilty plea, Judge Strickland is not one of them. My experience is that he routinely accepts Nolo Contendere pleas. So, for me, it will be interesting to see whether he would in this case.

My personal suspicion is that if push came to shove, he would allow a nolo contendere plea if it would avoid the necessity of a trial.

And from the State’s perspective, so long as she pleads and is “convicted,” they could still use the convictions as impeachment evidence even if she is appealing the underlying convictions while the Murder case is ongoing.

The pendency of an appeal … relating to such crime does not render evidence of the conviction from which the appeal was taken … inadmissible. Evidence of the pendency of the appeal is admissible.  – Section 90.610(2), Florida Statutes.

A Slow Plea: Conduct a Trial

As any defense attorney worth his salt will tell you, there are certain clients who are oblivious to the evidence against them and want their day in court because they have rights! And sure enough, they do:

Sixth Amendment – Rights of Accused in Criminal Prosecutions

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

And while many defendants call this their constitutional right to a trial, evidence be dammed – we defense attorneys call this a slow plea.

Because after all of the evidence is presented, the jury decides whether the crime occurred – nobody else. And if the evidence is as overwhelming as it appears, the jury should have little trouble returning a guilty verdict as charged.

So even though we went through all of that constitutionally mandated “hassle,” we still end up back where we started – at the mercy of the court. Thus the term “slow plea.”

May the Court Have Mercy on Casey’s Soul

And whether by an open plea to the bench or by a long drawn out trial, Casey Anthony will most likely find herself at the mercy of Judge Strickland. And here is where things get interesting…

You see Casey Anthony is a First Time Offender, and Judge Strickland is prohibited by rule from immediately sentencing her to jail or prison if she is convicted. Rather, he is required to order that a Presentence Investigation be conducted before imposing sentence.

Ruled 3.710(a) – Presentence Report

In all cases in which the court has discretion as to what sentence may be imposed, the court may refer the case to the Department of Corrections for investigation and recommendation. No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after such investigation has first been made and the recommendations of the Department of Corrections received and considered by the sentencing judge.

Important for the defense, this Presentence Report can take up to three months to complete – and as you might guess, that could be just long enough to allow the Murder case to be started without Casey being formally convicted of the crimes.

But there is a catch, this rule does not apply if Judge Strickland sentences Casey to probation. See Cloutier v. State, 930 So. 2d 841 (Fla. 3d DCA 2006) (Rule 3.710(a) clearly mandates that the trial court first order a PSI before sentencing a first felony offender to more than probation… Thus, the trial court erred when it sentenced the appellant without first ordering a PSI.)

At this point many of you are likely cursing my name for saying such blasphemy as probation – and this is because you not only assume Judge Strickland will sentence Casey to prison but you believe he is required to sentence her to prison.

If only you knew (and you will).

Florida’s Criminal Punishment Code

In Florida all persons charged with felony offense are sentenced pursuant to a scoring system known as the Criminal Punishment Code (CPC). See Section 921.002, Florida Statutes.

In layman’s terms, the CPC assigns a numeric value to each criminal offense that a person has been convicted of and the resulting sum of those convictions dictates the judge’s sentencing options: (See Florida CPC Manual)

• If the total points equal or exceed 44 points, the judge is required to sentence the person to prison.
• If the total points are less than 44 points, the judge is not required to sentence a person to prison, but may still do so.

Now the 44 points also carries another magical consequence, any person sentenced to prison must be adjudicated guilty. On the other hand, a person sentenced to probation can, at the court’s discretion, receive a withhold of adjudication of guilt. And we all know why that is important – don’t we?

Nevertheless, at this point you are probably asking: “well what does Casey Anthony score already?” and it just so happens that I took the time to complete a sample CPC scoresheet (Download PDF) and she scores ….

43.6 points

Can you believe it? She scores 0.4 points less than the magical number of 44. And they say god doesn’t have a sense of humor!

So it appears that all is not lost for Casey Anthony, because Judge Strickland is not required to sentence her to prison – he is allowed, by law, to sentence her to probation…

(Note: A reader brought up the possibility of a juvenile record, which is something I had not considered. But to be accurate, a juvenile record is taken into consideration for scoring purposes. It would only take one felony or two misdemeanor juvenile delinquency convictions to cause her to score over 44 points.)

And the Plot Thickens

Now here is where things get dicey for me – because, as Blaise on WebSleuths would say, I am not Judge Strickland and he is not me, for I am the Walrus. Meaning that Judge Strickland has options at this point and only he knows what he will do.

On one hand, Judge Strickland is known as one of the fairest judges around and he might see the unfairness (from Casey Anthony’s perspective) of a first time offender being burdened with 13 felony convictions that are inextricably intertwined with the same murder case the State wants the convictions for in the first place. In which case he could throw Casey Anthony a lifeline by placing her on probation and withholding the adjudication of guilt.

On the other hand, this is, after all, the same judge who said:

The truth and Ms. Anthony are strangers.

It was recently announced that Judge Strickland will address four of the Casey Anthony Defense Team’s motions at a hearing on December 11, 2009. They are:

1. Motion to Preclude the Death Penalty Procedures
2. Motion for a Protective Order Directing Orange County Jail to Destroy Videos of Family Visits
3. Motion for a Protective Order Prohibiting Orange County Jail from Videotaping Attorney Visits
4. Motion to Dismiss for Violation of Double Jeopardy Clause

The scheduling of the hearing on these motions provides not only a timely interlude in the progression of her Murder case, but also a timely and brief interlude from my two part series on her Check Fraud case (Casey Anthony: Insufficient Funds).

Unfortunately though, I think that this interlude will not provide Ms. Anthony with any early Christmas cheer, as it appears that Santa will not be giving her anything on her Christmas wish list – she must have been a naughty girl this year, tsk tsk…

Oh Casey, just what have your attorneys done?

Motion to Preclude the Death Penalty Procedures

This motion (while well intentioned) is your classic example of putting the cart before the horse.

Under Florida’s death penalty scheme, if a person is found guilty of a capital crime and a jury subsequently recommends a sentence of death, the court must first find that “sufficient aggravating circumstances exist” before it can actually impose  the death penalty.

Section Section 921.141, Florida Statutes, states in pertinent part:

921.141  Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence.–

(1)  SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.–Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment

So as you can see, a condition precedent to seeking the death penalty is that the State first obtain a conviction for a Capital Offense. If they do not obtain a conviction for a capital offense, but rather a lesser included offense such as manslaughter, there will be no death penalty sentencing phase under Section 921.141.

Nevertheless, the defense is seeking to proactively prohibit the State from prosecuting this case as a death penalty case at all – and thus seeking the death penalty – because they believe the State would be unable to prove sufficient aggravating factors required to impose the death penalty.

As you might have guessed by now, we have not actually had a trial yet – thus we do not know if Casey Anthony will even be convicted of a Capital Felony. And even if the State does obtain conviction for a Capital Felony, we do not know what aggravating factors the State is able to prove – thus we have no way of knowing whether a death penalty would imposed be by the judge.

So until such time as the trial is held and the death penalty imposed, this motion is moot.

Prediction – Motion Denied.

Motion for a Protective Order Directing Jail to Destroy Videos of Family Visits

I can only scratch my head in disbelief at this motion – because Jose Baez is trying to argue with a straight face that videotaping Casey Anthony’s jailhouse visits with her friends and family somehow infringes on her constitutional rights.

The primary problem with this belief is that it is contrary to ALL established legal precedent.

And wouldn’t you know, the Florida Supreme Court just issued Jackson v. State, No. SC07-2008 (Fla. 2009), a case that dealt with an inmate who complained of the jail recording his “personal” calls.

Well the Florida Supreme Court was not very sympathetic, and held:

The Fourth Amendment right to privacy is measured by a two-part test:

1. The person must have a subjective expectation of privacy; and
2. That expectation must be one that society recognizes as reasonable.

A prisoner’s right of privacy fails both prongs because a prisoner’s privacy interest is severely limited by the status of being a prisoner and by being in an area of confinement that “shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room.”

The court went on to state “society would insist that the prisoner’s expectation of privacy always yield to what must be considered the paramount interest in institutional security.”

Thus, “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.”

So in a nutshell, the Florida Supreme Court said “too bad, so sad” to any privacy objections an inmate may have about a correctional facility recording their jail visits.

Prediction – Motion Denied.

Motion for a Protective Order Prohibiting Jail from Videotaping Attorney Visits

Now this motion is one that I think has some merit, but little traction – and here is why.

To begin, unlike her family visitations, Casey Anthony does have a subjective expectation of privacy in her meetings with Jose Baez based upon the Sixth Amendment right to the assistance of Counsel. And this is an expectation that society recognizes as reasonable. So the previously cited case law is not analogous.

Moreover, as a practicing criminal defense lawyer I can understand Mr. Baez’s concerns that his interaction with Casey Anthony is being videotaped IF the interaction involves her explaining or recreating certain aspects of the case – say explaining location, movements, distances, etc. Because viewing her actions is a violation of the attorney-client privilege.

And I understand his concerns based on first hand experience. As I too have had to make physical contact with a client in the preparation of a trial so that I could understand the clients physical point-of-view, prepare myself to cross-examine witnesses, and determine how to explain the client’s physical standpoint to a jury.

With that said, I have also been reprimanded by jail officials for that very same conduct – so I do not think they are singling out Mr. Baez, rather I think they are uniformly enforcing jail policy.

But from a legal perspective – I only think I would be entitled to object to the video taping if that video was being made available to the opposing prosecutor. At that point I think I would have an extremely strong argument that the jail’s act of allowing the prosecutor to view the video violates the attorney-client privilege.

And, as a matter of fact, a strikingly similar scenario recently played out in Broward County, where a prosecutor obtained and listened to jailhouse telephone conversation of an inmate and his defense attorney. (See Sun-Sentinel: Murder suspect seeks freedom after prosecutors snooped on calls to lawyer.)

Once made aware of this intrusion, the defense attorney moved to disqualify the entire State Attorney’s office because they had violated the attorney-client privilege and the trial court granted this request. The State appealed and the trial court’s order finding the State Attorney has violated the attorney-client privilege was upheld. See State v. Martinez, 4 So. 3d 712 (Fla. 4th DCA 2009).

However, I think Mr. Baez’s complaints are entirely different.

He has no proof – nor do I even believe he has alleged – that the State Attorney’s Office has reviewed the silent videotapes the jail maintains for security purposes. Rather, his complaint is that he is being videotaped in general.

But more importantly, he became aware of the jailhouse security videos not because they were released to the media, but because he was reprimanded after they saw him on the security video touching Casey Anthony – in violation of jail policy.

Thus he is complaining because he got caught with his hand in the cookie jar – naughty, naughty.

So, here is where I stand with this motion. I understand his concern, but absent any proof the State Attorney’s office is viewing the videotape, I do not believe he is legally entitled to any relief.

Prediction – Motion Denied.

Motion to Dismiss for Violation of Double Jeopardy Clause

The final motion to be heard involves the Check Fraud case, which you may remember charges Casey Anthony with 13 counts of either Uttering a Forged Document (Forging Checks), Grand Theft, or Fraudulent use of Personal Identification Information (Identity Theft).

Their primary argument is that Casey Anthony is being charged with three separate crimes for each singular act – thus a violation of the United States and Florida constitutions prohibition on being twice placed in jeopardy for the same offense. And under their theory, for each check of Amy Huizenga’s she forged and cashed, she should only be charged with one crime.

Unfortunately for Casey Anthony, nearly twenty years of established case law says her double jeopardy motion is untimely – and without legal merit. Let’s Discuss.

Untimeliness of Motion

Under Florida law, the appropriate time to raise a Double Jeopardy claim is after you have been found guilty – not before. The reason for this was best discussed in State v. Sholl, 1D08-4826 (Fla. 1st DCA 2009), which held”

The trial court should not have considered the double jeopardy claim until sentencing. When an information contains two or more charges which amount to the same offense, “[d]ouble jeopardy concerns require only that the trial judge filter out multiple punishments at the end of the trial, not at the beginning.”

To this end, double jeopardy protections may not be extended to an earlier stage of the proceeding, such as the filing of the information or jury selection. Otherwise, the trial court would be “usurping the State’s discretion to make strategic decisions about charging alleged criminal activity.” Consequently, Sholl’s double jeopardy argument was premature and an improper basis for dismissal.

So without even getting into whether the double jeopardy motion is meritorious, it is clearly premature.

Legal Merit of the Motion

Even assuming the double jeopardy motion was timely, it seems clear the motion is contrary to established legal precedent.

Remember, their primary double jeopardy argument is that Casey is being charged with three crimes for every one act. Unfortunately for Casey though, the courts have a different take on her alleged conduct – meaning they see her as having committed three individual crimes each time she cashed a check of Amy Huizenga.

For example, in Sibley v. State, 955 So. 2d 1222 (Fla. 5th DCA 2007) the court ruled that convictions for organized fraud, fraudulent use of personal identification information and uttering forged instruments do not violate double jeopardy. Interestingly, the court did find that organized fraud and grand theft violated the double jeopardy clause.

And that is important to Casey Anthony’s case, because while she is not charged with Organized Fraud, she is charged with Grand Theft. Thus under Sibley, convictions for grand theft (since it is the same as organized fraud), fraudulent use of personal identification information and uttering forged instruments do not violate double jeopardy either.

Another case with a similar holding is found in Henderson v. State, 572 So. 2d 972 (Fla. 3d DCA 1990) where the defendant was convicted of 14 counts of uttering forged instruments and 1 count of grand theft, which was based on the money she obtained by means of the same forged instruments (sound familiar). Henderson v. State is also cited with agreement by Sinclair v. State, 645 So. 2d 105 (Fla. 5th DCA 1994)

The court rejected the defendant’s double jeopardy claims and held that separate acts were committed by uttering the forged instruments and by obtaining the funds because each had different elements.

Know Your Judge

Now before we go on any further, it is worth noting an important fact about both Sipley v. State and Sinclair v. State – and what is the fact you ask? Well they were both decided by the Fifth District Court of Appeals in Florida.

And, as you might have guessed, the Fifth District Court of Appeals is the appellate court that Casey Anthony would have to appeal to if she were ever convicted on the Check Fraud case. Gee, I wonder how they might rule?

Prediction – Motion Doubly Denied

Final Prediction: An Un-Merry Christmas

So something tells me the that Casey Anthony is going to have a very un-merry experience on December 11 and will head into 2010 with a lump of coal in her cell and a lot of soul searching to do.

May 2011 Update: After reading this two year old post, please note Judge Perry’s concern about whether the hearsay statements Mr. Baez elicited were:

1. Exculpatory statements (meaning statements made by Casey that were meant to clear Casey of guilt), and
2. Whether the hearsay statements of Casey pertained to collateral matters, meaning statements not directly related to the murder.

As Judge Perry pointed out, under Huggins, only truly exculpatory hearsay statements can be impeached with prior convictions. Considering most of the hearsay statements elicited were before she had been arrested, it would be hard for them to have been exculpatory.

Also, most of the hearsay statements were to collateral matters. As Judge Perry pointed out,  if the statements dealt primarily with collateral matters, they still could not be impeached as the prejudice to Casey Anthony (which Judge Perry described as “devastating”) outweighed the probative value to the State in impeaching collateral matters.

My gut feeling is that Jose Baez did not go far enough over the line and because the issue is to close to call, Judge Perry err on the side of caution and will not let the convictions in because of his fear they would result in an automatic reversal on appeal.

Original December 2009 Post Follows:

As a break from my recent juvenile rants about other lawyers’ cluelessness, I am going to address a more serious legal issue; the significance of Casey Anthony’s check fraud case in relation to her First Degree Murder case.

This will be the first of a two part series and this first post will discuss why the State would want to try the Check Fraud case before the First Degree Murder case. The second post will discuss how the defense will likely try to avoid trying the Check Fraud case first.

As a refresher, in her Check Fraud case, Casey Anthony is charged with thirteen separate felonies that also happen to be crimes of dishonesty. Now in relation to the Murder case, the Check Fraud case would seem insignificant.

However, it is the 13 separate convictions that the Check Fraud case provides which is the true strategic prize for use in the Murder case.  But why?

It’s the Convictions Stupid

As you probably guessed, under Florida law, a person can be impeached with proof of a prior conviction for a felony or a crime of “dishonesty or false statement.” This rule is codified in Section 90.610, Florida Statutes, which states:.

90.610  Conviction of certain crimes as impeachment.–

(1)  A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment…

Now I understand that the statute does not actually say a witness’ credibility can be attacked by a felony conviction, rather it says by a crime which “was punishable by death or imprisonment in excess of 1 year.” And this is for good reason, because not every jurisdiction categorizes and defines criminal offenses with tidy labels – felony and misdemeanor – like Florida does. (See Section 775.08, Florida Statutes.)

As a matter of fact, in some jurisdictions, a misdemeanor can be punishable by up to 3 years imprisonment (I use imprisonment generically). So rather than look at the label of the crime (felony or misdemeanor), Florida looks at the seriousness of the crime to determine whether it is worthy of attacking a person’s credibility and they only ask four questions about the crime:

1. Was the crime punishable by death?
2. Was the crime punishable by more than 1 year imprisonment?
3. Was the crime one that involved dishonesty?
4. Was the crime one that involved a false statement?

If the answer to any of those four questions is yes, then the crime might be admissible as impeachment evidence against a person at trial. That is right, it might be admissible – because before a person can be impeached with a prior conviction, the person must have both been convicted (there is that darn word again) of the crime and the person must “testify.”

A Conviction by any Other Name is not a Conviction

At this point you have probably caught on to my highlighting of the word conviction and convicted. Well that is for good reason; because in Florida, a person is not convicted just because the plead guilty or are found guilty by a jury. Rather, when a person admits their guilt or is found guilty, a judge “may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt” pending completion of a probationary period. (See Section 948.01(2), Florida Statutes.)

When the judge does the latter (usually for first time offenders), we call that Withholding Adjudication or giving a Withhold. And a Withhold is important for many reasons, such as (1) being a condition precedent to having your charge sealed and expunged, (2) allowing you to maintain eligibility for certain state programs and licenses, but most importantly to our discussion, (3) it does not act as a conviction for impeachment purposes. See State v. McFadden, 772 So. 2d 1209 (Fla.  2000) Rather, to act as a conviction for impeachment purposes, the court must specifically “adjudge the person guilty.”

And if you are paying attention, that means that even if Casey Anthony pleads guilty or is found guilty of the 13 separate felony crimes, Judge Strickland could still “stay and withhold the adjudication of guilt,”  because in the eyes of the law, she would technically be a first time offender.

Do I think he will do that, no I do not and I will discuss that in part two of this blog series. So for now, we will assume that if she is found guilty, she will be adjudicated guilty and thus convicted for impeachment purposes.

However, I bring that up to highlight what the real prize in this fight is and why the State wants the benefit of being able to impeach Casey Anthony with 13 felony convictions if she “testifies”.

The Right to Remain Silent

Now trials require evidence, and the jury can only consider the evidence that is presented to them. So even if Casey Anthony was convicted of the 13 felony offenses – Baez could prevent the jury from ever knowing Casey Anthony was a convicted felon 13 times over by allowing her to exercise her Fifth Amendment Right to Remain Silent – by not having her testify. If only the State could get around this pesky constitutional right she is invoking – if only…

Once Upon a Time there was Huggins I

Once upon a time there was a prosecutor named Jeff Ashton (wow, what a coinkydink!) who prosecuted a man by the name of John Huggins near a Magical Kingdom in La Florida for the first-degree murder, carjacking, kidnapping, and robbery of a woman by the name of Carla Larson. Although the case was based entirely on circumstantial evidence, Huggins was found guilty as charged on all counts.

But wait, Huggins was represented by none other than the Honorable Robert Wesley (See Bill Sheaffer: Saying Thanks to a Local Hero) and Mr. Wesley realized not long after the guilt phase of the trial that the dastardly prosecutor Jeff Ashton “suppressed favorable evidence.” See State v. Huggins, 788 So. 2d 238 (Fla. 2001). And because of this dastardly act, the Chief Judge of the Ninth Judicial Circuit, Belvin Perry, granted Mr. Huggins request for a new trial, noting:

[I]t is not the Court’s intent or wish to punish society or the family of Carla Larson. This Court has a sworn obligation to follow the law. The principles of Brady v. Maryland are well known to all lawyers who practice criminal law and remedies for its violation are well known. While a defendant’s right to a fair trial is of the utmost importance in our system of justice, particularly when the ultimate punishment may be imposed, the Court is mindful of the heavy burden it places on Carla Larson’s family as well as society. But in the end, society wins not only when the guilty are convicted but when criminal trials are fair.

And Then There was Huggins II

And so Huggins went on trial again, prosecuted by none other than Jeff Ashton and defended by the Honorable Robert Wesley. But the second time around Mr. Ashton had an Ace up his sleeve.

You see, Mr. Ashton had originally obtained a court order to collect a pubic hair sample from Huggins to see if the hair sample matched hair found at the crime scene. However when the Crime Scene Investigator went to collect the sample, Huggins’ entire pubic region had been shaved – thus thwarting the ability to collect a sample.

So during their case in chief, the State presented evidence suggesting Huggins’ shaved his public region because he had a guilty conscious and knew the hair sample would match – thus directly connecting him to the crime.

The defense attempted to rebut this claim by calling a corrections officer who testified “that outbreaks of crab lice would occur, and that one method of addressing the problem would be for an inmate to shave.”

Unfortunately for Huggins, his defense attorney went one question too far and asked the corrections officer whether Huggins had ever complained of lice – thus implying that Huggins had an innocent motive for shaving his public region. Mr. Ashton objected on hearsay grounds and the court sustained his objection (agreed with him).

However, the defense pressed further and the corrections officer was finally allowed to testify that he knew Huggins had shaved his pubic region and by implication, asserted it was because of the lice outbreak.

At this point, you are probably wondering what in the world does this story have to do with Casey Anthony’s Check Fraud Case – and I tell you it has everything to do with her case!

Because even though Huggins never testified, Mr. Ashton was able to introduce Huggins’ NINE FELONY CONVICTIONS pursuant to Section 90.806, Florida Statutes, which permits;

“The introduction of a defendant’s felony convictions when the defendant elicits his or her own exculpatory, hearsay statement through another witness at trial.” See Huggins v. State, 889 So. 2d 743, 756 (Fla. 2004).

The Florida Supreme Court reasoned that “a defendant who chooses not to testify but who succeeds in getting his or her own exculpatory statements into evidence runs the risk of having those statements impeached by felony convictions” and Mr. Ashton did just that.

So the court, at Mr. Ashton’s request, took judicial notice of Huggins’ nine felony convictions, entered each of the nine felony conviction dispositions into evidence, and instructed the jury that “the evidence of John Huggins’ nine felony convictions should be considered by you … in weighing the credibility of the statements attributed to John Huggins.” See Florida Standard Jury Instruction 2.5.

Needless to say, John Huggins was found guilty as charged and is currently on death row, sentenced to die.

What Does All of This Mean?

It means that even if Casey does not testify, she can still be impeached with the 13 felony convictions obtained from the Check Fraud case if Baez attempts to offer her “testimony.”

So, if any witness (but especially Cindy, George, or Lee Anthony) is called to testify by either party and the defense attempts to elicit exculpatory statements attributable to Casey Anthony, the State can impeach the exculpatory statements attributed to Casey Anthony by introducing her 13 felony convictions and asking Judge Strickland to read Florida Standard Jury Instruction 2.5 to the jury at the same time:

“The evidence of Casey Anthony’s thirteen felony convictions should be considered by you … in weighing the credibility of the statements attributed to Casey Anthony.”

So even if Casey Anthony does not testify – she may still “testify,” in which case I suspect a suspiciously named prosecutor will be waiting with 13 crisp copies of felony convictions…

Epilogue

I realize I glossed over the fact that Casey Anthony’s thirteen Check Fraud charges also happen to be crimes of dishonesty or false statement; so you are wondering if the State could have the judge refer to them as both felonies and crimes of dishonesty of false statement. Well, fortunately for Ms. Anthony, “when a witness has been convicted of a felony, the other party may not inquire further into whether the felony involved dishonesty or false statement because doing so ‘would have the impermissible and unintended effect of elevating certain felonies over others.’” See Atis v. State 2D07-5924 (Fla. 2d DCA 2009).

So stay tuned for part two of this blog series, where I will discuss the seemingly infinite ways in which the defense will try to delay the Check Fraud case until after the Murder case…

Well, Tiger Woods sure has caused quite a stir – but from a legal perspective, I think the jurisdictional goof by the Florida Highway Patrol sticks out the most.

You see, Tiger Woods lives in an exclusive, private, community called Isleworth. What that means in layman’s terms is that the public is not allowed to drive on their finely paved roads (or play golf on their well-manicured greens).

So where am I going with this? Me thinks FHP is starstruck and asserting jurisdiction they do not have. Specifically, Section 316.640, Florida Statutes, states:

316.640 Enforcement.–The enforcement of the traffic laws of this state is vested as follows:
(1) STATE.–
(a)1.a. The Division of Florida Highway Patrol …have authority to enforce all of the traffic laws of this state on all the streets and highways thereof and elsewhere throughout the state wherever the public has a right to travel by motor vehicle.
(2) COUNTIES.–
(a) The sheriff’s office … shall enforce all of the traffic laws of this state on all the streets and highways thereof and elsewhere throughout the county wherever the public has the right to travel by motor vehicle. In addition, the sheriff’s office may be required by the county to enforce the traffic laws of this state on any private or limited access road or roads over which the county has jurisdiction pursuant to a written agreement.

Now the best way I can bring this home for you is to give an analogy. If Tiger Woods lived on a 50 acre ranch (Isleworth is 600) and crashed his tractor into a tree (sans 9-iron wielding wife), everyone would agree that the Orange County Sheriff’s Office had jurisdiction – not the Florida Highway Patrol. So you need to think of the Isleworth enclave as a really fancy ranch (and for the historian buffs, it used to be an Orange Grove Plantation).

Now that we have established that FHP is snooping around where they have no business snooping, we must ask ourselves: what are they up to? Well here is what I think is going on.

FHP is justifying (in their minds) the medical records subpoena to further a “DUI investigation” (cough, cough – bull$h!t). They will say that they hope Encompass Health took a blood draw at the hospital – and the blood draw will show controlled substances (prescription or illegal) in his system that would justify a DUI charge. Never mind he likely was taking pain killers of some sort for his previous knee surgery.

But my unfaithful readers know better than to believe such an altruistic motive. What FHP is really hoping to obtain are incriminating statements in furtherance of – hold it, hold it – a domestic violence investigation.

See, under Section 90.803(4), Florida Statutes, a statement made to doctors in furtherance of medical diagnosis is admissible against the person who made the statement.

90.803  Hearsay exceptions; availability of declarant immaterial.

The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:
..
4)  Statements for Purposes of Medical Diagnosis or Treatment.–Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts, which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.

So what is FHP hoping they will find out? They are hoping they will find the conversation with the treating doctor went something like this:

Doctor: So Mr. Woods, those are some nasty cuts you have there, mind telling me how you got them?

Tiger: Well, you see doc, my uber hot wife picked up this garbage gossip magazine that had a story about me smooching with this other chick on the side. She then grabbed a 9-Iron and started chasing me out of the house. I jumped in my Escalade and tried to escape with my life. As I was backing out I hit a fire-hydrant and then a tree. Right as she was about to kill me my neighbor came out (note to agent, Christmas is not far away) and saw her holding the 9-iron. She then acted like she was breaking out the windows to save me.

That is right unfaithful ones – I believe FHP is trying to make Tiger’s wife miserable by arresting his wife for Domestic Violence. Go figure.

So while everyone else is trying to figure out what is going on – you tell them you heard it here first.

p.s. For an interesting take on what went through Tiger’s mind when looking for a criminal lawyer, please read Brian Tannebaum’s blog entry: How Famous People Handle Problems, Like Car Accidents.