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 Mason’s general premise was correct, his specific premise was superseded by intervening law; as a lot has changed since 1976.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

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.

38 thoughts on “The Theory of the Defense”

  1. Wow! All I can say is how the heck does Mason think Zanny the Nanny will disappear? Casey Anthony goes into great detail not only with LE but with the prior 31 days with Cindy, Zanny has Caylee here, we’re in Jacksonville, we’re in Tampa, Zanny’s in the hospital, Zanny got in a car wreck, Zanny has plenty of clothes and diapers for Caylee, “We’re crashing at Zanny’s” I mean really, and none of her friends met this person, Cindy didn’t know where her grandchild was being babysat. I call BS, George was telling Cindy he didn’t think Casey was working, Cindy choose to ignore her own husband in trying to get to the truth of the matter. Cindy Anthony is responsible for a lot of this behavior, enabling Casey to continue to lie, lie, and lie some more to anyone and everyone didn’t matter why she would lie or what could Casey gain from this lie. Cindy has a lot riding on her shoulders.

    1. I predict Zanny will be a State feature of this trial. lol And IIRC we are up to version three.

      Version 1
      Dropped off Caylee between 9am and 1pm at a vacant apartment on the 9th June. “just like a normal day”. She went to a neutral place and paced frantically. Just after picking out some videos at Blockbusters.

      Version 2
      Held down at JBP whilst the nanny gone bad and sister Samantha packed Caylee into a Silver Ford Focus, leaving poor Casey with her script but without a baby girl.

      Version 3
      From the jailhouse letters and in her own inimitable handwriting she has ditched the script, timer 55 doesn’t get a mention. Zanny is her friend again. Now she claims SHE asked Zenaida to take Caylee while jobless Casey Anthony got together some money etc. But her plans got “way beyond tangled” when Zanny wouldn’t tell her where they were. So she didnt report Caylee missing ………..cos “she was and she wasn’t”

      1. Sorry, but 1 and 3 go together and she has only blurted out number 1. Number 2 was a story told by someone else.

        1. Ah, but she wrote down #3 and they are NOT the same story.
          In #1 she (ZFG) just “disappeared” with Caylee. In #3, ZFG is “holding” Caylee until Casey can get things together, then she refuses to give Caylee back.

          Altho Casey may not have been the original one to come up with #2, she sure did have some details to share about that theory – the script she was supposed to follow that she “lost” and the lesson ZFG was teaching her, etc.

          1. Actually in story number 1 Kc maintains contact with Caylee all the way up to July 15th. So story number 3 fits in there just fine. Or are we talking about LE side of the story? The story that this all happened on June 9th, or are we talking about the 31 day story that comes out about June 14 saturday when she was in her Grandmothers custody, or are we talking about Jt story where he sees them at walmart on the afternoon of the 16th, or are we talking about JG story where he heard Caylee in the background on the 24th, seems to be a lot of versions out there by a lot of people. I am sticking to what KC said and that is story number 1 and number 3 fits right in there. MOO

        2. No 2 was told to an FBI Agent by her mother, interestingly before she bonded out of jail. Lee Anthony testified he got the story DIRECTLY from his sister after she bonded out at the house. He gave a full account of where and how she told him this story in his sworn civil and State depositions.

          “Not being offered as the truth of the matter”, I’m sure the State will be allowed to ask the Anthonys about her statements to them during the trial.

          I think it already meets the relevancy criteria. lol

          Point is, the truth doesn’t change.

          Conclusion, the Jury will hear that she can’t even keep her lies straight about her phantom friends.

          1. notthatsmart says:
            March 8, 2011 at 11:31 pm

            Actually in story number 1 Kc maintains contact with Caylee all the way up to July 15th. So story number 3 fits in there just fine. Or are we talking about LE side of the story?


            Her phone records say differently. What LE story?
            Are you resorting to the great conspiracy theory. lol

            Or can you offer me one piece of evidence that suggests LE manufactured evidence against this girl.

        3. Only blurted out #1.

          By “blurted out” do you mean her 4 page wrtitten statement , given on July 16th at 1.05 am or the taped interview that followed at the house.

          1. Confused, there is confusion. lol I am not here to argue what happened. I don’t think that is what Mr Hornsby wants. I just want to say that often majority opinionators scream conspiracy theory when they are on the losing end of an argument. There is no conspiracy, there is just confusion because we have only heard one side of the story. Now that a few people have been put on the stand, we are learning a lot more of what happened that night. I see a lot more to come and we are going to learn a lot more. There should be no confusion when they are done. I hope…..
            ps you can find me on if want to further discuss with spirit and kindness.

    2. Lets not forget that KC was telling ma and pa she was in Jacksonville (i think thats where she was???) all the while ma and pa were standing next to the death mobile!! This is what “inspired” CA to look through the “death mobile” and find Amy’s number. It was CA telling AH not to believe KC cause she’s a thief and a liar and puts in there that they hadn’t seen Caylee in over a month.

      IMO, the law was set up to keep the innocent out of prison not to complicate the shit out it (IMO)

      The issue of course is when and where did the transformation take place in which KC became a suspect and not a witness? I think, in the eyes of LE, it is simultaneous they have to. The first suspect in a disappearance of a child is the closest relative, in this case the parent. But LE has to give the parent the benefit of the doubt as YM said: why on earth would a mother lie to me about where her child is??.

      IMO, and i am no lawyer, Miranda Rights are given once the evidence acquired thus far is overwhelming and implicates the suspect, everything up to that point is investigation otherwise if LE was off questioning people about a “person of interest” they wouldve all been mirandized…(IMO) You cant (IMO) cry foul if no one else is subject to the same…

  2. You can cut to the chase here. The name of the game is blame LE in order to divert attention from your client murdered her child. Not a very innovative attorney who uses that tired old theory. Mason used this same theory on Lisa Nowak, the former astronaut. I can tell you one thing for sure, IF I AM EVER A MEMBER OF A JURY WHEN AN ATTORNEY STARTS USING THAT THEORY I WILL VOTE GUILTY regardless of the facts!!

  3. Richard,

    Would you give your thoughts on the stipulation that Baez made prior to Chaney’s closing argument regarding the meeting in his office to arrange a meeting between George and Casey? Was he eating crow and admitting that he did know that George wanted a meeting with Casey and he was not out of the loop as he tried to portray? Isn’t he once again bumping up against lying to court?

  4. Mason can try to pull all the tricks out of his hat…But I don’t think he has one for the 31 DAYS that she never reported her daughter missing……. THAT SAYS IT ALL.

  5. Doesn’t it stand to reason that if the defense thought that LE violated Casey’s Miranda rights, this matter would have been brought up a long time ago? Why now, so long after the fact?

      1. That’s interesting. If there was evidence to support the objection, why wouldn’t it have been heard? Do you happen to (almost) recall when this objection was filed? I’d like to read it, but have been unable to locate it any where, to include docstoc.

        Thank you, and enjoy your weekend.

  6. Why didnt any of the Anthonys call LE as soon as they got that decomposed car at their house? Why did they wait so long to FIND CASEY? Why didnt either Anthony Guy intervene ? Casey is as much theirs as Cindys.
    Why is Mason still an active attorney? (sarcastic) <<<<<

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