Preparing for the Penalty Phase


(a) Notice of Intent to Seek Death Penalty. The provisions of this rule apply only in those capital cases in which the state gives written notice of its intent to seek the death penalty within 45 days from the date of arraignment. Failure to give timely written notice under this subdivision does not preclude the state from seeking the death penalty.

(b) Notice of Intent to Present Expert Testimony of Mental Mitigation. When in any capital case, in which the state has given notice of intent to seek the death penalty under  subdivision (a) of this rule, it shall be the intention of the defendant to present, during the penalty phase of the trial, expert testimony of a mental health professional, who has tested, evaluated, or examined the defendant, in order to establish statutory or nonstatutory mental mitigating circumstances, the defendant shall give written notice of intent to present such testimony.

(c) Time for Filing Notice; Contents. The defendant shall give notice of intent to present expert testimony of mental mitigation not less than 20 days before trial. The notice shall contain a statement of particulars listing the statutory and nonstatutory mental mitigating circumstances the defendant expects to establish through expert testimony and the names and addresses of the mental health experts by whom the defendant expects to establish mental mitigation, inso far as is possible.

(d) Appointment of State Expert; Time of Examination. After the filing of such notice and on the motion of the state indicating its desire to seek the death penalty, the court shall order that, within 48 hours after the defendant is convicted of capital murder, the defendant be examined by a mental health expert chosen by the state. Attorneys for the state and defendant may be present at the examination. The examination shall be limited to those mitigating circumstances the defendant expects to establish through expert testimony.

What Does all of this Mean?

Jeff Ashton has already gone on record that the reason the State sought the Death Penalty was because Casey Anthony was the first women who did not have some mental issue that justified not seeking death penalty.

This suggests that the State consulted with a mental health professional before seeking the death penalty to reach such a conclusion.

This also suggests that when the Defense files their Notice of Intent to Present Mental Health mitigation pursuant to Rule 3.202 exactly twenty days before the trial is slated to begin, the defense fully expects that the expert the State selects to examine Casey Anthony will disagree that any mental health mitigator exists.

Preemptive Defense

In anticipation of this, the defense brings Ms. Sims on board specifically to debunk the State expert’s methodology.

And I think the support for this hypothesis of mine can be found in a quote of hers found in an article in NJEsq, Author says methods detect doctors’ lies, which quoted her as saying:

The thing that disturbs me the most [about psychological tests] are when they are misused in criminal cases or – child custody cases.” Sims said.

Smoke and Mirrors, Smoke and Mirrors.

Many would ask that if Ms. Sims is only being brought on to cross-examine penalty phases witnesses, why file a Notice of Appearance now.

I believe that the timing was done solely to throw the State off. If they think Ms. Sims will be used only to attack Dr. Garavaglia, they likely would not prepare their chosen penalty phase mental health expert thoroughly.

Whereas if Ms. Sims filed a Notice of Appearance contemporaneously with the defense teams filing of their Notice of Mental Health Mitigator, the State would have no problem figuring out her purpose.

Little Medical Evidence

Finally, my belief that this is the case is because there is actually very little medical evidence for Ms. Sims to attack.

Dr. G’s autopsy report clearly states that Caylee died by unknown means, and the reason she ruled it Homicide is because of the duct tape and the peculiar circumstances of her disappearance and ultimate discovery. Quite frankly, there is little to cross-examine.

So that is my story and I am sticking to it.

Author: Richard Hornsby

Orlando, Florida Criminal Defense Lawyer and DUI Attorney Richard Hornsby is Board Certified in Criminal Trial Law by the Florida Bar and represents clients throughout Central Florida in all criminal defense and DUI defense cases.

67 thoughts on “Preparing for the Penalty Phase”

  1. Great Article! I have a question though, if the defense were planning to throw the State off their trail, wouldn’t they have delayed their filing today (9/9/10) that changed from limited appearance co-counsel yesterday to co-counsel today? Is the defense legally required to disclose within a specified time limit when a new attorney joins the defense team?

    Thank you for your time.

    1. I don’t know why she filed her amended Notice of Appearance today, but I suspect it is because there is no such thing as a Limited Notice of Appearance in a criminal case, either you are an attorney of record, or you are not. The only time a Limited Notice of Appearance is allowed is in family law cases.

      1. So in other words she will fit right in with the defense team, she starts off with an incorrect filing.

        Are you aware of the company she owns MDinaBox? Outsourced expert testimony. Any opinions about her company?

  2. I believe this was a good move by the defense. Some are saying that this is LKB replacement. Do you believe that? I don’t. thanks

    1. It seemed so, however their areas of claimed expertise are not the same. Ms. Sims’ expertise is in the medical/psychiatric field. LKB’s field is scientific and serology (DNA).

  3. Hi Richard,
    I live in Texas and there has recently been a court ruling that a mother who murdered her child did not pose enough danger to others to warrent a death sentence. The ruling from the Texas Court of Criminal Appeals found that if the accused has only committed acts of violence against a segment of society she would not encounter in prison, there’s insufficient evidence for a death-penalty conviction, so she was given a life sentence.

    Can these Texas rulings be used as arguments in Casey’s case in Florida?

    I can link the rulings if you need….just let me know.

  4. Hi Richard,
    Good to see you back. I notice you don’t write unless you have something interesting and important to say. Love it!

    I’m curious……if you figured out their sneaky purpose of introducing Ms Sims at this time, do you think the prosecution will be as astute? I don’t believe for a moment that the defense is pulling the wool over the eyes of the prosecution.

    1. My theory is pure speculation, but considering there is not much medical testimony to be presented during the guilt phase, and no psychological testimony during the guilt phase, it just seems she would not be helpful until psychologists could testify, which is during the penalty phase – and only if the Defense files their Notice of Intent to Introduce Mental Health Mitigation.

  5. Illuminating article as usual … Thank you for making the time. A question though.Is the State paying Ms Sims or does she also work “pro bono”?

  6. Caseys first Death penalty qualified atorney quit very early on because he felt the defense should be pursuing a mental health defense didn’t he? However if I recall correctly, Baez didn’t agree so presumably neither did the client. Can the state throw that back at them if the defense attempts to do what you discuss in your article?

  7. Great article Mr. Hornsby. I truly appreciate your matter of fact delivery. I have a question about counsel. At what point in a upcoming trial like this would you, for instance, have a come to Jesus meeting with your client (let’s say Ms. Anthony)? Do you think this already happened and they are rolling the dice or do you think perhaps this defendant doesn’t know the gravity of the situation? In a case of this severity….how and WHEN do you as counsel plan (a) a defense and at the same time (b) mitigating factors for the penalty phase? I’d be like….wooaaahhhh, wait a minute.

    Are they telling her like it is? Would you have tried to plea this case? Hate to put you on the spot but, damn, I really want to know what a real lawyer would do with this case.

    Thank you in advance.

    1. I don’t know if they have had a “Come to Jesus” meeting, but I would suspect they will at some point. Every attorney in a serious case has a Come to Jesus meeting with their client.

      But then again, if the only offer on the table is death, what is the point of having a “Come to Jesus” discussion with their client.

  8. Great Article. I’m thinking, George and Cindy should be evaluated too. There’s something wrong with that entire family. That poor child, never had a chance. Because of Cindy Anthony’s selfishness, (like mother like daughter, IMO), poor Caylee had to die, the only reason that child is dead, is because Grandma and Mom were at war with themselves, Caylee was Casey’s final killing wound to Cindy. Ms. Sims, will know this, right off the bat. I can’t wait to see the wonderful attorney, make some excuse for a murdering self centered spoiled brat. Ms. Sims, wonder if you can sleep well at night. What about justice for poor little Caylee. That family never deserved that little angel.

  9. I love your question voir doire, and Thank you, Mr Hornsby for the interesting article.
    I wonder if it is customary to plan the penalty phase even before the trial??? It seems like the defense is conceding the fact that a guilty verdict will be the result of her trial..

    1. Well the rule I cited requires them to file a Notice of Intent to Present Mental Health Mitigation 20 days PRIOR to the trial beginning. So they are procedurally required to plan for the possibility of a guilty verdict.

  10. Interesting theory. I wondered as well, with the limited medical information, what they would attack. Your theory makes good sense.

    The article that you linked states Ms. Sims works with plaintiffs. Nothing was stated regarding defendants. Has she been successful in the mitigation phase of capital cases? Thanks.

    1. Plaintiff’s lawyers, the ones suing doctors for medical malpractice, suing employer’s for workers compensation claims, etc. Generally speaking, a Plaintiff’s Lawyer “defends” the rights of the injured, whereas a Criminal Lawyer “defends” the rights of the criminally accused. Many would say that their ultimate interests are aligned.

  11. So, does this mean that their defense strategy for trial is going to be the insanity or diminished capacity defense????
    And isn’t it reasonable to believe that 2 years ago, Casey was examined and found to be sane with no mental issues going on, and now after 2 years of jail in almost solitary confinement , that she has lost some of her mind??? Sims probably can (in 2011) argue that the original psychologist is wrong..
    Thank you .

    1. No, you did not read my article very closely. Mental Health mitigators can be brought up in the penalty phase, which occurs AFTER a conviction was obtained. They cannot be brought up during the guilt phase.

  12. I have two questions for you Mr. Hornsby. One: You mentioned earlier in this thread that an Attorney’s decision cannot be brought back up. What about C. Mason? He stated for the world to hear that he thought KC was guilty but now he is on board with at least one oar in the water.

    Two: Why would any self respecting Attorney attach themself to this case purposely> Would you for any reason involve yourself?

    1. Cheney Mason is not a witness to the case, he is was an observer when he made his comments and he cannot be called to testify to give his opinion. The only opinion that matters, or that is admissible, as to Casey Anthony’s guilt is the jury’s.

      I could see a lot of self respecting attorneys getting involved in the case; and frankly, most of the attorneys who have become involved, with the exception of Baez, are well respected attorneys – or were.

      As for me, sure I would get involved in a case like this if the situation was appropriate, but I detest Jose Baez and think it is attorneys like him who give the practice of criminal defense a bad name.

      1. Focusing on your last paragraph in this post, do you have an opinion of the defense scheduling 35(?) depositions of on duty law enforcement officials in the same day, at the same time?

        (Also does “appropriate” in a case like this translate to “show me the money”?)

      2. “As for me, sure I would get involved in a case like this if the situation was appropriate, but I detest Jose Baez and think it is attorneys like him who give the practice of criminal defense a bad name.”
        OH! THANK YOU SO MUCH. Please go on the Geraldo show and say that. Best think I read all day!

        1. Maggie
          he made my day with that comment. I read between the lines that he too thinks baez is enept!! made my day!!!
          First time I heard an attorney speak out honestly about baez.

  13. Thx for your response. one more ? please. why would they not BEG the state for a plea? Outraged taxpayers in Fla alone would make you wonder why they don’t just plea and put this nag out to pasture (LWOP).

  14. Mr. Hornsby,
    Thank you for the article!
    I don’t think I quite understand, Mental Health mitigators can be brought at the penalty phase as you mentioned, from my understanding it has nothing to do with her being insane right? So is the work that this lady Jeannene Barret is doing to dig out KC’s past and upbringing, her family’s past will help defense to prove how dysfunctional her family is and spare her the DP?
    In your opinion, do you believe KC will take the stand, will it help her or not?
    Please and thank you.

  15. I’m curious as to the “defense”….circa July, 2008. If I were, say, Casey Anthony and I retained you to defend me in the mounting charges (endangerment, false reporting AND ultimately murder)…..would your strategy be to stage the trial of the century or would you plea bargain and cut my losses?

    Why, in your opinion (please) are they no longer focused on the alleged abductor (zenaida fernandez-gonzales). What happened to Zanny the Nanny?

    As a defense attorney….should I tell you the “truth” or are you going to tell me you don’t want to know the answer to anything you don’t ask?

    I am not being snarky. I respect you. I just want a perspective on what one “unknown” fairly new lawyer may have been told. Do you think Jose Baez got the truth from Casey Anthony? If he did, would this trial be scheduled? If he didn’t….when did he invoke the “golden rule”…..don’t ask a question you already know the answer to.

    I have to say, Mr. Hornsby, I would LOVE to see you in court litigating.

    You ROCK!!! (Plus, you look a hell of a lot better than Cheney Mason)


    1. Hi Voirdoire,
      I have a couple of thoughts on your questions. They are JMO, of course.

      As far as July, 2008 is concerned…..I don’t believe she took a plea because that would mean she had to tell exactly what happened to Caylee. That wasn’t going to happen. Not at that time.

      I believe it has been proven that Zenaida Fernandes-Gonzales does not exist. (except in Casey’s mind) Nobody has ever seen her, talked to her or has any way of getting in touch with her. No pictures exist of “Zanny the Nanny”. Dead end.

      I also believe that Casey has told Mr Baez all. JMO

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