How the Grinch Stole Casey Anthony’s Christmas

How the Grinch Stole Casey Anthony’s Christmas.

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.

Casey Anthony: Insufficient Funds (Part Uno)

The first of a two part series by Orlando criminal lawyer Richard Hornsby discussing the impact Casey Anthony’s check fraud case could have on her murder case.

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…

The Clueless Wonder Strikes Again

High Profile Florida Criminal Attorney Jose Baez, otherwise known as the Clueless Wonder provides not-so-expert opinion on the Tiger Woods story for E! Online.

So it was brought to my attention that E! Online turned to High Profile Attorney Jose Baez for his opinion on the Tiger Woods case. (E!: So What Kind of Charges Could Tiger Woods Face?)

Now I would like to point out that E! attributed the source of the comments in their story to High Profile Florida Criminal Attorney Jose Baez. They did not show a picture, a link, or give an address – so I could be wrong about who the source for their article was, and because of this I will just refer to this Jose Baez as the Clueless Wonder for simplicity’s sake 🙂

In any event, I wish I could say I was shocked by the Clueless Wonder’s not-so-expert opinion, but let us just say I was not.

So before the world goes completely mad, I would like to discuss what the Clueless Wonder had to say. Let’s start with the first excerpt from their story: So What Kind of Charges Could Tiger Woods Face?.

High-profile Florida criminal attorney Jose Baez tells E! News that Woods’ seeming refusal to speak with FHP troopers could result in several misdemeanor charges, including obstruction of justice, resisting arrest without violence, criminal mischief and possibly even driving under the influence.

Now I don’t have a lot of time on my hands, but I am really beginning to think the Clueless Wonder does not even practice law in Florida, much less criminal law. Because a first year law student would know that the first three charges the Clueless Wonder cites would never apply to Tiger Woods’ situation.

But rather than just tell you, and expect you to believe me, I am going to break down each of the Clueless Wonder’s ridiculous responses.

Obstruction of Justice

Where do I start with this one. How about there is no crime called Obstruction of Justice in Florida – I swear on my comic books.

Rather, there are a group of crimes that fall under the category of Obstructing Justice. These individual crimes can be found in Chapter 843, Florida Statutes, which is ironically titled Obstructing Justice (No I am not kidding you).

Chapter 843 lists 27 different statutes which criminalize Obstructing Justice – however, there is no individual crime titled Obstruction of Justice. If you do not believe me, you can either read Chapter 843 or you can review the Law Enforcement and Clerk Arrest Tables found on the FDLE website.

Importantly, one of those 27 different statutes does list the next crime I am about to discuss, and which the Clueless Wonder mentions.

Resisting an Officer Without Violence

Resisting an Officer Without Violence is codified in Section 843.02, Florida Statutes. To violate the statute, you must “resist obstruct or oppose an law enforcement officer … in the lawful execution of any legal duty” without doing violence to the officer.

Now for the life of me I cannot even see where the Clueless Wonder is coming from on this one. The only legal duty that Tiger Woods was required to comply with was Section 316.062, Florida Statutes – “Duty to give information and render aid.”

Now this statute lists four specific things Tiger Woods was required to provide, which he did:

  1. Name,
  2. Address,
  3. Vehicle Registration,
  4. Driver License (Technically optional).

Now wait one second, I am sure the Clueless Wonder thinks Tiger had a DUTY to provide law enforcement with a confession just like Casey’s did (okay she lied) – but NO, Section 316.062 goes on to state:

The statutory duty of a person to make a report or give information to a law enforcement officer …relating to a crash shall not be construed as extending to information which would violate the privilege of such person against self-incrimination.

So call me crazy, but it appears Tiger complied with the letter of the law – not that I would expect the Clueless Wonder to know the law.

And “low” and behold, it appears the Clueless Wonder did not let me down, because here is his interpretation of this law as quoted on E! .

And for all those concerned, sports-loving citizens thinking that list seems like overkill, well, blame the finer points of Florida law.

Per Baez, citizens are not allowed to invoke their right to counsel during a traffic accident investigation, hence the possible obstruction of justice charge.

I could have sworn Section 316.062, Florida Statutes, says the exact opposite – but what does the law matter when you are High Profile Florida Criminal Attorney Jose Baez aka the Clueless Wonder!

Criminal Mischief

Criminal Mischief is codified in Section 806.13, Florida Statutes, as follows:

A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another…

Now the keywords there are willfully and maliciously (which basically means with evil purpose). So am I to believe that the Clueless Wonder really thinks Tiger Woods willfully drove into both a fire hydrant and a tree for some evil purpose?

Never mind. So lets move onto the Clueless Wonder’s final thought about Tiger’s possible charges.

Driving Under the Influence

DUI is codified in Section 316.19, Florida Statutes. Now here is what kills me about the Clueless Wonder’s comments on this particular crime being applicable, he provided a qualified statement: “possibly even driving under the influence.” Basically, he was saying this was the least likely of the crimes he listed to be applicable.

Let me tell you something; of all the hair-brained charges the Clueless Wonder mentioned, DUI is the only charge that is even remotely likely to apply. I mean really, when was the last time you drove your car into a tree at 3 a.m.

So how in the world could he qualify his beliefs as to the applicability of this charge. Oh, that is right – he is clueless.

So watch out ladies and gentleman or you too might find yourself being represented by THE CLUELESS WONDER!

To Catch a Tiger Chasing Tail

Tiger Woods: FHP is snooping around where they have no business snooping.

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 HealthSouth 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.

Judge Karen: This Turkey is no Expert

Judge Karen Mills-Francis had her shaken at by Jose Baez because she does not know the law.

In honor of the Thanksgiving holiday, I thought I would take this time to talk turkey with you.

You see, I received a lot of heat for my criticism of he who I shall not mention by name anymore, but I was most surprised by the opinions of other experts used to prove I was wrong. And when pressed, the only other expert they referred to was none other than “Judge” Karen Mills-Francis.

As most of my unfaithful readers probably know by now, Jose Baez made a stop during his whirlwind media tour on ISSUES with Jane Velez-Mitchell to discuss his Motion in Limine to Introduce Prior Bad Acts of … Roy M. Kronk.

As guest “experts,” Jane also had Florida prosecutor Stacy Honowitz and Judge Karen to act as counterpoints to Mr. Baez (a law student would have sufficed).

And while Ms. Honowitz was about as enlightening as a rock, Judge Karen provided the opinion that has been re-posted as black letter law in every chat room on the Internet.

Here is the relevant exchange from the show’s transcript:

VELEZ-MITCHELL: Judge Karen Mills Francis, you`re the judge. Do you think the judge in this case will let this evidence, this evidence that the defense says it has collected, in involving Roy Kronk?

JUDGE KAREN MILLS FRANCIS, HOST, “JUDGE KAREN SHOW”: Well, you know, I`ve been pretty hard on Mr. Baez throughout this whole process. I was a criminal defense attorney for 13 years before I was a judge. I looked at his motion. It`s called a motion in limine. In Florida, a motion in limine is to exclude evidence but his motion is asking the court to allow evidence. There is no such motion in Florida.

Additionally, he`s asking the court to allow evidence of what`s known as prior bad acts. In Florida, it`s called the Williams rule. That`s a prosecution motion. The prosecution can bring in evidence of the defendant`s prior bad acts to show motive, intent, lack of mistake.

I have never heard of a defense attorney filing a Williams rule motion to show prior bad acts of a witness. But let`s say for the sake of argument it`s a legitimate motion. Under the Williams rule, he has to be able to show that there`s sufficient elements in the prior bad acts that fit with the elements in this case, and I don`t think he has that here.

He`s got…

VELEZ-MITCHELL: I got to tell you that Jose Baez is shaking his head, but he doesn`t really want to respond. But he`s shaking his head.

Before I go any further, I would like to focus on the very last part – JOSE BAEZ WAS SHAKING HIS HEAD.

Let me tell you something, I don’t have a lot of requirements in life, just the basics like food, water, and a decent place to sleep. But I am making the following addition to those requirements:

If Jose Baez ever shakes his head at me in disagreement I better be 100% correct.

Jose Baez shook his head.

As I have explained at various places before, a Motion in Limine is not just a motion to EXCLUDE evidence. Rather a Motion in Limine is a motion to determine the admissibility of evidence – meaning whether evidence will be admitted or excluded based upon the Florida Evidence Code.

I even provided a citation to State of Florida v. Oliver, 977 So. 2d 673 (Fla. 5th DCA 2008), a Fifth District Court of Appeals case where it was the State Attorney filing a Motion in Limine to Admit Evidence. And to further hammer the point home, I provided the search results from Google Scholar; which shows over 280 reported cases where such a motion has been filed.

I also pointed out that contrary to Judge Karen’s claim she has “never heard of a defense attorney filing a Williams rule motion” before and, by negative inference, statement the motion was illegitimate, that there are three Florida Supreme Court cases directly on point.

These cases specifically authorize what Judge Karen denies, that Williams Rule Evidence can be introduced by the Defense. See Rivera v. State of Florida, 561 So.2d 536 (Fla. 1990); White v. State of Florida, 817 So.2d 799 (Fla.2002); and State of Florida v. Savino, 567 So. 2d 892 (Fla.1990).

And to put the final nail in the coffin, I provided Simpson v. State, 3 So. 3d 1135 (Fla. 2009), which was a Florida Supreme Court decision decided this year which specifically dealt with a defense “motion seeking a pretrial ruling on the admissibility of alleged ‘reverse Williams rule’ evidence.”

So let us return to the real “earth-shaking insight” of that interview, with is none other than the fact that Jose Baez shook his head in disagreement with Judge Karen. Let me repeat that:

Jose Baez shook his head in disagreement with Judge Karen.

Now this is Jose Baez, an attorney who has looked like a bumbling fool in every major evidentiary hearing he has conducted on the case. This is Jose Baez who, until this motion, rarely cited one applicable case in support of his motion. (I would like to mention Mr. Baez recently won a major felony case, and I respect that.)

But more importantly, this is Jose Baez, who I have never seen shake his head in disagreement with another attorney’s legal opinion before. So he must have been pretty confident about this issue…

We know Judge Karen was utterly clueless about the body of law concerning similar fact evidence or Williams Rule Evidence; you just can’t deny she was clueless about the body of law. And this is what I think about that:

And I think that anyone who goes onto television and gets their head shaken at by Jose Baez needs a closer look; so I did just that.

IMDb says Judge Karen graduated from the University of Florida College of Law (my Alma Matter as well) in 1987 and the Florida Bar says she was admitted in 1989. Now why it took her at least two bar exam cycles to be admitted is something I don’t know. However, her IMDb profile indicates she was an excellent student, so I assume she took a year off – nothing more. (Then again, Mr. Baez passed on his first attempt but was not admitted until several years later).

Anyway,  we know she has been licensed for about twenty years and according to IMDb, her career went like this:

  • 1989 – 1998: Office of the Public Defender and private practice.
  • 1998 – 2000: Traffic Hearing Officer.
  • 2000 – 2008: County Court Judge.
  • 2008 – 2009: Resigned to star in “Judge Karen.”

Lets quickly review what that means. She obviously started at the Public Defender’s office. Since she is from Miami, I am willing to bet she worked at the Miami PD Office. This would have been the same PD’s office Baez interned at after graduation; and they may have even been there around the same time.

At some point she went into private practice. Considering her bio simply says private practice, I am willing to bet that while she handled criminal cases, she was nonetheless a general practitioner.

Regardless, in 1998 she became a Traffic Magistrate. From this I can infer her private practice was not overly lucrative, otherwise she would not need the supplemental income (traffic magistrates can continue to practice law).

Then we have the Traffic Magistrate or Hearing Officer position. Now under Section 318.32, Florida Statutes, a hearing officer’s jurisdiction is defined as follows:

318.32  Jurisdiction; limitations.–
(1)  Hearing officers shall be empowered to accept pleas from .. any person .. charged with any civil traffic infraction .. hearing officers shall not:

(c) Hear a criminal traffic offense case or a case involving a civil traffic infraction issued in conjunction with a criminal traffic offense; or

So that tells me that she has ZERO experience with any criminal cases as a Hearing Officer.

Moving on…

She was elected a County Court Judge and remained one from 2000 – 2008. Now under Florida law, a County Court judge can only preside over misdemeanor cases. (See Section 34.01(1)(a), Florida Statutes.) So that tells me that for the remaining 8 years of her career, she did not preside over one ONE felony case.

So my real question then is why does she think her opinion is important – and more importantly, what makes her such an authority on Florida Criminal Law?

You should also know the Florida Bar is specifically concerned with its members holding themselves out as experts to the public (and maybe the media) in a specific area of law. So much so they implemented the Florida Bar Certification process, which defines certification as follows:

Certification is the highest level of evaluation by The Florida Bar of competency and experience within an area of law, and professionalism and ethics in practice.

I would only note that Judge Karen is not Board Certified in either Criminal Trial Law or Criminal Appellate Law; so why is she even holding herself out as an authority on Florida criminal law on television? Because she has presided over a lot of speeding tickets and misdemeanor shoplifting and disorderly conduct cases?

And why would board certification be important for her to have if she holds herself (or allows herself to be held out) as an authority? Simple – it would show me that she meets the minimum criteria for criminal certification under Florida Rule of Professional Conduct 6-8.3, which are:

  • Practiced on a full-time basis for at least five years,
  • Handled a minimum of 25 criminal trials, at least 15 of which were felony trials,
  • Passed peer review by judges and lawyers,
  • Completed 45 hours of continuing legal education, and
  • Pass a written examination demonstrating knowledge, skill, and proficiency in the field of criminal trial law.

And understand, while not all lawyers are judges, all judges are lawyers. So she could have applied for certification if she wanted. All that I know is she is not. For all I know she could have applied and not met the minimum requirements or passed the test.

Now before I go any further I must point out, some of the smartest and most knowledgeable attorneys I know are not board certified. I would also point out that few judges are board certified and if so, usually achieved the certification before they became judge.

However, neither of these groups of Florida lawyers are appearing on a national television show, allowing themselves to be referred to as Judge, nor do they tell a national audience that the Florida attorney who is handling one of Florida’s most well known criminal cases does not know what he is talking about.

At this point you are probably saying, but she is a judge. You would be mistaken, she was not a judge when she made this statement – she was a former judge who tried and failed at a television show.

That is correct, Judge Karen retired from the bench to start a a television show called Judge Karen. That show lasted one season and was not renewed.

So at the time Judge Karen made her statements on national television, she was actually Karen Mills-Francis, Esq. a former County Court judge who has not handled a felony case in over a decade.

And so I too find myself shaking my head at Karen Mill-Francis, Esq. because the Florida Bar happens to have issued a specific ethics opinion which says it is improper for “a former judge to identify herself as ‘Judge X’ in her private law practice.” See Florida Ethics Opinion 87-9.

And make no mistake about it, she was asked her opinion of Mr. Baez’s motion in her capacity as Judge, not Judge Karen of the failed television show on which she no longer appears, not Former County Court Judge Karen Mills-Francis. Nope, Jane said: “Judge Karen Mills Francis, you`re the judge.”

No, she was asked her opinion as Judge. And not only did she willfully allow herself to be referred that way, she was completely wrong.

So the next time a lawyer offers their opinion to you as an authority on a specific matter, please don’t assume they are actually an authority on anything but providing sound bites.

What bothers me more is that this issue has become such a problem, that as recently as June of this year, the Florida Bar warned former judges about using the title of Judge improperly. (See Florida Bar: Ex-Judges Should be Careful how they Use Their Former Title.)

But why would I have expected her to have read that admonishment if she has never read one of the Florida Supreme Court cases dealing with Reverse Williams Rule evidence?

“Judge Karen Mills-Francis” – what a Turkey.

In Defense of the Casey Anthony Defense.

Criminal Defense Lawyer Richard Hornsby posts a direct response to William Sheaffer’s comments regarding the Motion in Limine filed by Casey Anthony’s defense; and Mr. Hornsby openly questions Mr. Sheaffer’s knowledge of the law, his objectivity, and his own “sense of decency.”

As most readers of this blog (both of them) probably know by now – Jose Baez recently filed a Motion in Limine to Introduce Prior Bad Acts and Other Circumstantial Evidence Pertaining to Roy M. Kronk (“the Motion”) – the blogosphere is buzzing.

And the fact Jose Baez filed this motion immediately after Mr. Kronk’s deposition concluded for the day raised some serious red flags about his motives (not to mention his pre-orchestrated appearances on every major news network the following morning).

But rather than jumping to conclusions, I instead read the motion and I have to tell you, from a legal perspective, it was sound, smart, and strategic.

The Motion was dead on about the law and it was a dead on strategic move from a criminal defense perspective. And I opined this same position on WESH-NBC when I said “This is the first significant and credible shot the defense has taken against the state. I think it has a high likelihood of success.”

So I was flabbergasted when WFTV-ABC “legal analyst” William “Bill” Sheaffer said: “I deem these tactics as despicable” and then “blasted” Mr. Baez on his blog (Does Casey’s Defense Have No Sense Of Decency?), local news, and web video footage for WFTV-ABC.

Well ladies and gentleman, only one of us can be right… (I am, but more on that later.)

Now as WFTV-ABC’s “legal analyst,” Mr. Sheaffer is supposed to educate the viewers on the law and give them an informed opinion about the likely outcome of the legal issue presented (i.e. legal analysis).

However, Mr. Sheaffer basically called this motion frivolous and went so far as to claim Mr. Baez could be sanctioned by the Florida Bar (Yawn…). He even wondered openly if Mr. Kronk could sue Baez and Co. for defamation, slander, and libel. (Double Yawn.)

The very conviction with which Mr. Sheaffer blasts the Anthony Defense on the Motion makes me question when he last opened up one of those law books he is always sitting in front of (Although the Giraffes in his most recent interview were a nice touch).

Importantly, this is the third time (I’ll detail the other two briefly at the end) that Mr. Sheaffer has provided “legal commentary” about the Casey Anthony defense that was completely cheap AND false. (It’s not like it is hard to take cheap shots at them – so why also resort to false ones?) And in my book, three strikes and you are out!

So I am posting this in direct response to Mr. Sheaffer’s comments regarding the Motion and openly questioning his knowledge of the law, his objectivity, and his own “sense of decency.”

I think it is time that someone puts WFTV-ABC reporter Kathi Belich and her sidekick Mr. Sheaffer to task for their Pro-Prosecution pandering to the anti-Anthony sentiment, rather than providing objective analysis of the legal issues in the case so that the Central Florida community can have an informed understanding of the legal issues in this case.

But rather than stoop to Mr. Sheaffer’s level and blast him for selling out his profession as a “criminal defense lawyer” to become a yes-man for Ms. Belich (I will do that at the end), I will instead provide you with an objective and informed explanation of why Mr. Baez’s newest motion is legally sound and likely to succeed. So without further ado, here goes:

Having authored an article on the Basics in Florida Criminal Pleadings, I know that every motion must contain four primary elements:

  1. The Grounds: What authority authorizes you to file the motion, i.e. statutory, constitutional, or procedural authority.
  2. The Relief Sought: What is it that you want the court to do?
  3. Supporting Facts: What are the facts of the case the warrant relief? There are two types of facts. Alleged facts and sworn facts. Alleged facts are nonbinding, sworn facts are binding on the person attesting to them.
  4. Argument and Law: Why do you think you are entitled to relief and why does the law authorize your relief.

So with that as a frame work, let us “analyze” Mr. Baez’s motion.

Mr. Baez seeks to introduce “Prior Bad Acts and Other Circumstantial Evidence Against” Mr. Kronk. So the first thing we must ask is whether there is any legal authority for the court to take such an action. Interestingly, Florida’s Evidence Code happens to have two statutes that fit the bill – 

The first is Section 90.404, Florida Statutes, which states (irrelevant parts omitted by ellipses):

90.404  Character evidence; when admissible.–
(1)  CHARACTER EVIDENCE GENERALLY.–Evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion, except:

(c)  Character of witness.–Evidence of the character of a witness, as provided in ss. 90.608-90.610.
(2)  OTHER CRIMES, WRONGS, OR ACTS.–
(a)  Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

(c) 1.  When the state in a criminal action intends to offer evidence of other criminal offenses under paragraph (a) or paragraph (b), no fewer than 10 days before trial, the state shall furnish to the defendant or to the defendant’s counsel a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information. No notice is required for evidence of offenses used for impeachment or on rebuttal.

The second is Section 90.608, Florida Statutes, which states:

90.608  Who may impeach.–Any party, including the party calling the witness, may attack the credibility of a witness by:
(1)  Introducing statements of the witness which are inconsistent with the witness’s present testimony.
(2)  Showing that the witness is biased.
(3)  Attacking the character of the witness in accordance with the provisions of s. 90.609 or s. 90.610.
(4)  Showing a defect of capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which the witness testified.
(5)  Proof by other witnesses that material facts are not as testified to by the witness being impeached.

Call me crazy, but it appears that Florida’s evidence code DOES allow a person to introduce evidence of other “crimes, wrongs, and acts to prove a material fact in issue” and a party may attack the credibility of a witness by using “other witnesses” to testify that “material facts are not as testified to by the witness being impeached.”

Now, from the motion, we know Mr. Baez wants the court to allow him to introduce evidence that Roy Kronk has:

  1. A history of inappropriate behavior with young girls;
  2. A history of abusing, restraining, and holding women against their will;
  3. Previously used “Duct Tape” to restrain a woman;
  4. Is involved in imaginary worlds of fantasy and violence (BDSM); and
  5. Made contradictory and conflicting statements from the ones he made to law enforcement.

Now is it me (picture me scratching head), or does it seem that at “first blush” (as Mr. Sheaffer likes to say) Mr. Baez is authorized by Sections 90.404 and 90.608, Florida Statutes, to introduce evidence that it was no coincidence i.e. “mistake or accident” that Caylee Anthony, a young girl, was found by a man who just happened to have previously used duct tape to restrain another woman. (I mean really, when was the last time your husband restrained you with duct taped just for fun?) And does it seem that Mr. Baez is authorized to introduce “prior inconsistent statements” that Mr. Kronk made regarding when he found her body?

Well, hold onto your suspenders and lets look at the supporting facts Mr. Baez proffered (meaning offered as proof) in support of his motion.

However, before we go there, I wanted to address a statement by Ms. Belich about the Motion. She is quoted on the Orlando Sentinel saying

“But they were not questioned under oath. And the defense did not provide any evidence to support any of the allegations.” – Kathi Belich

Well, since Mr. Sheaffer obviously hasn’t provided her with any legal analysis (no pun intended), I think everyone should know that there is no requirement that a lawyer have “sworn evidence” before filing a motion/request with the court.

Specifically, Florida Rule of Professional Conduct 4-3.4(e) only requires that a lawyer not “allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.” And the last time I checked, testimony from living, breathing human beings was considered admissible evidence. (But in case you do not believe me: See Section 90.601, Florida Statutes, “every person is competent to be a witness…”).

So considering Mr. Baez provided not just transcripts, but video of living breathing human beings who state exactly what is alleged in his motion – I think he is acting well within his means and in good faith.

But back to the evidence Mr. Baez has proffered (Please note that the following video links of living breathing human beings are from WFTV-ABC’s own website – not sure if Kathi saw them).

  1. First we have video of Mr. Kronk’s own flesh and blood, his son Brandon Sparks, telling us that Mr. Kronk has given what would be a prior inconsistent statement. (Video: KRONK’S SON: Also Answered Questions.)
  2. Second we have video of Crystal Sparks, Mr. Kronk’s ex-wife (and a Chief in the United States Coast Guard), who states (1) he was interested in fantasies, (2) Mr. Kronk’s father asked her to bond Roy out for kidnapping someone and the father had found duct tape, (3) She relates second hand “concerns” about Mr. Kronk with young girls, and (4) corroborating the timeline statements of her son. (Video: Kronk’s Ex-Wife)
  3. Third we have April Hensley, the daughter of Mr. Kronk’s ex-girlfriend who says implies Mr. Kronk may have “walked in on her” a few times and that he played “World of Warcraft.
  4. Fourth we have Jill Kerley, another ex-wife of Mr. Kronk (who Mr. Kronk apparently told others had passed away). She claims he (1) restrained her with duct tape two times, (2) beat her several times, (3) was consumed with Dungeons and Dragons online, and (4) apparently had a reputation for dishonesty (stealing credit cards) and would not know the truth “if it hit him upside the head.”

Now that we know the applicable law and have the substance of the proposed evidence, we need to apply the law to the evidence and see what we get. And rather the opine on the admissibility of the proposed evidence collectively, I will instead analyze each portion separately (like any good lawyer would).

First we have Brandon Spark’s who would testify that his father had called him a week before Thanksgiving and said he found the skull of a little girl. This is obviously important because this is about three weeks before Mr. Kronk “found the body.” Mr. Kronk gave his son very specific details about what he saw, when he discovered the remains, and how he would be on television “tomorrow.”

Importantly, this evidence would be “impeachment evidence,” not “Similar Fact Evidence” because it deals with facts in the instant case, rather than a similar but collateral factual scenario that occurred in the past.

This evidence would be “impeachment evidence,” not “Similar Fact Evidence” because it deals with facts in the instant case, rather than a similar but collateral factual scenario that occurred in the past.

So if, on cross-examination, Mr. Kronk denied discovering the body earlier, the skull rolling out, or calling his son before Thanksgiving – Mr. Baez could then call Brandon Sparks as a witness to offer evidence that Mr. Kronk has previously made inconsistent statements. See Section 90.608, Florida Statutes.

Now before I leave Mr. Sparks, I should point out that a party calls a witness at his or her own peril. And after listening to Mr. Sparks interview, it seems likely he has his own time line confused.

So if the State were smart, they would subpoena his phone records to see if Mr. Kronk actually did call him a week before Thanksgiving. If his records reflect otherwise, they could impeach him at trial (or provide them to him before trial – or at trial – to refresh his memory so he testifies “accurately” for Mr. Baez).

Second we have Ms. Crystal Sparks, the first three points of her testimony is basically second-hand information received from others and thus is considered hearsay. And as most of you probably know, hearsay is inadmissible. See Florida’s Hearsay Rule: Section 90.802, Florida Statutes.

Now, if Mr. Kronk’s (apparently deceased) father were alive, the father (if willing) could testify to what he found and saw – and that evidence could possibly be admissible as “Similar Fact Evidence.” (More on that later).

However, Ms. Spark’s does have specific recollection of speaking to her son, Brandon Sparks, about his conversations with Mr. Kronk. And her memory of when the conversations occurred would be corroborating evidence of her son – this by definition further serves to impeach, or contradict, Mr. Kronk’s timeline. Thus this portion of her testimony should be admissible. (This could be considered collateral-contradiction impeachment evidence; if so, the State could object to her testimony on that ground.)

Third we have Ms. Hensley, who implies – but does not assert – that Mr. Kronk may have purposely walked in on her and that he was interested in “World of Warcraft.” Well the first question we must ask is whether this “evidence” is relevant; i.e. “does it tend to prove or disprove a material fact” in the trial. (See Section 90.401, Florida Statutes: Definition of relevant evidence) And if this evidence is “relevant” than it is “admissible, except as provided by law.” (See Section 90.402, Florida Statutes: Admissibility of Relevant Evidence)

We must ask … is this “evidence” relevant… “does it tend to prove or disprove a material fact” in the trial.

From the defense perspective, this evidence would tend to prove that Mr. Kronk was interested in young girls as well as fantasy role playing. Putting two and two together, it would advance a theory that Mr. Kronk was some type of deranged person who prayed on girls.

However, the State would argue that the implied inferences of this evidence is too speculative and intended only to embarrass Mr. Kronk.

They would likely also argue that even Mr. T. plays World of Warcraft – so there is nothing abnormal about that (joking). (Video: Mr. T on the World of Warcraft!)

On this particular point I think the State would be correct and the court would likely prohibit Mr. Baez from introducing this information (or calling Mr. T as a character witness). See Section 90.403, Florida Statutes, which states:

90.403  Exclusion on grounds of prejudice or confusion.

Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.

Finally we have Ms. Kerley and her testimony is the real prize for the defense – and the real battleground in this motion. (Listen: Richard Hornsby on 540 WFLA Radio.)

Specifically, she provides testimony that Mr. Kronk has used duct tape to restrain her. I think everyone would agree that such evidence is highly relevant to a defense theory that Mr. Kronk may have been involved in Caylee’s death because she was found with duct tape around her head.

And since all relevant evidence is admissible, except as provide by law; we must then ask what law prohibits its introduction. The State will raise two primary arguments:

First they will argue under Section 90.403 that the evidence’s “probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, and misleading of the jury.”

They will also argue under Section 90.404 that the evidence is character evidence being offered solely to prove Mr. Kronk’s ‘general’ bad character. And they are obviously right on both counts – however, even though evidence may be inadmissible for one reason, it can still be offered for other reasons. See Williamson v. State, 961 So. 2d 229, 235 (Fla. 2007).

So, in turn, the Defense will argue that while this evidence is collateral, it is also Similar Fact Evidence that tends to prove Mr. Kronk has previously engaged in a conduct that is so similar to an issue in this case that it would be relevant for the jury to consider. (Relevant as to his credibility if he denies having used duct tape to restrain women and relevant to the possibility that he is the perpetrator.)

The question boils down to whether the evidence’s probative value in advancing Casey Anthony’s defense theory outweighs the prejudicial effect it will have on the State’s case.

In Florida, this type of evidence is called Williams Rule Evidence after the Florida Supreme Court decision authorizing such evidence’s admissibility in Williams v. State, 110 So. 2d 654 (Fla. 1959).  This case was later codified as Section 90.404(2)(a), Florida Statutes.

Usually this type of evidence is offered by the State to introduce similar facts of past collateral crimes or acts against a defendant to show modus operandi or absence of mistake among other things. Thus most of the caselaw interprets it from the prosecution’s perspective.

However, there is nothing that limits the use of such evidence to the State. A defendant can also introduce Williams Rule (or similar fact) evidence and it is commonly referred to as Reverse Williams rule evidence.

“Reverse Williams rule” is evidence of a crime committed by another person that a defendant offers to show his or her innocence of the instant crime. See Rivera v. State, 561 So.2d 536, 539 (Fla. 1990).  To be admissible, the defendant must demonstrate a “close similarity of facts, a unique or `fingerprint’ type of information.” See White v. State, 817 So.2d 799, 806 (Fla.2002). And “if a defendant’s purpose is to shift suspicion from himself to another person, evidence of past criminal conduct of that other person should be of such nature that it would be admissible if that person were on trial for the present offense.” See State v. Savino, 567 So. 2d 892, 894 (Fla.1990).

So with the legality of Reverse Williams rule evidence established, the admissibility of Ms. Kerley’s claims boils down to this question:

If Roy Kronk was on trial for Caylee Anthony’s murder, would evidence that he has used strikingly similar duct tape to subdue a women be admissible against him as similar fact evidence?

I am a criminal defense attorney by profession – and my immediate answer would be without a doubt – YES. However, I am sure any prosecutor you meet would say absolutely not – it is not similar enough, the facts are different, etc. And that is why this will be the true battle ground of the Motion.

I would note that University of Florida law professor Michael Seigel was quoted by the Orlando Sentinel as saying “I wouldn’t be shocked that he allows it, but it’s a long shot.” Professor Siegel – HAVE YOU NO DECENCY!

But ultimately, the decision will be made by one person – the Honorable Stan Strickland. And really, that is why my legal analysis and commentary is nothing more than opinion – because the ultimate decision on who is right and who is wrong boils down to the judge of the case.

Having analyzed the Motion from beginning to end, I think I have more than proven my point regarding the Motion’s merits – but only Judge Strickland knows how this will play out.

However, I am not done with Mr. Shaeffer’s attack on the Motion. He seems to get his suspenders tangled in a knot over the fact the defense team filed this as a “Motion in Limine,” he goes on to state:

Before we proceed further however, I think it important to address this so-called “Motion in Limine” for what it is.  A proper motion in limine, as the title suggests, is a request to the court made pretrial to exclude certain matters from being introduced, or even referred to, at trial. What a motion in limine is NOT is a request to INCLUDE certain matters at trial, which is exactly what the defense has done here.  Now, either these lawyers don’t know proper pleading mechanics, the Florida Rules of Evidence, the Florida Rules of Criminal Procedure, do not possess a Black’s Law Dictionary, or they have another agenda in filing this.  – Bill “I have my Suspenders Tangled” Sheaffer

Well, for those of you that are unfamiliar with Black’s Law Dictionary – it obtains its definitions first from common legal usage and then from definitions given by specific cases. But Mr. Sheaffer’s definition is the second of the TWO definitions provided in Black’s Law Dictionary. The first reads as follows:

“In Limine: On or at the threshold; at the very beginning; preliminary.” – Black’s Law Dictionary

But no, I am not done with Mr. Suspenders, you see In Limine is actually a latin term and if you plug the Latin term into Google (And Google does not lie), you will likely get the Wikipedia entry which states:

Motion in limine (Latin: “at the threshold”) is a motion made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial.

Hold your suspenders tight, because I could swear that says that a Motion in Limine asks that “certain evidence may, or may not, be introduced.” So either Google is lying or Mr. Sheaffer is dead wrong – you make the call.

But wait, Mr. Suspenders, on his video at 4:28 seconds, says “I have just in 30 years not seen this type of pleading and it is an inappropriate pleading.” Really, well apparently other “real” criminal defense attorneys have heard of such a pleading and – HOLD YOUR BREATH – filed them.

As a matter of fact, the Florida Supreme Court just issued an opinion in a Death Penalty case where the defense attorney filed just such a motion:

Simpson filed a motion seeking a pretrial ruling on the admissibility of alleged “reverse Williams rule” evidence. Simpson v. State, 3 So. 3d 1135 (Fla. 2009)

Now I realize Mr. Suspenders is ancient and probably hasn’t tried a case in years; but filing such a motion is good trial strategy for several reasons. The primary reason being judicial economy.

You see, prior to 2003, there was little incentive for an attorney to ask the court to make pretrial evidentiary rulings because the law required the proponent of the evidence to raise the issue during trial – or it was waived.  So even if you thought you had questionable evidence, you were still required to proffer the evidence during trial to preserve the issue in the event of an appeal.

However, in 2003 the Florida legislature amended Section 90.104, Florida Statutes, to read as follows:

90.104  Rulings on evidence.–
(1)  A court may predicate error, set aside or reverse a judgment, or grant a new trial on the basis of admitted or excluded evidence when a substantial right of the party is adversely affected and:
(a)  When the ruling is one admitting evidence, a timely objection or motion to strike appears on the record, stating the specific ground of objection if the specific ground was not apparent from the context; or
(b)  When the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which the questions were asked.
If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(2)  In cases tried by a jury, a court shall conduct proceedings, to the maximum extent practicable, in such a manner as to prevent inadmissible evidence from being suggested to the jury by any means.
(3)  Nothing in this section shall preclude a court from taking notice of fundamental errors affecting substantial rights, even though such errors were not brought to the attention of the trial judge.

In layman’s terms, this means that if Judge Strickland rules against the defense before trial, they do not have to fly their witnesses here and offer the evidence a second time to preserve the issue for appeal as was required pre-2003 (probably the last time Mr. Sheaffer tried a case).

Also it allows the parties to plan for the trial based upon the evidence that will be admitted and it insures that the jury does not receive insinuation about evidence that never materializes.

Also, Mr. Sheaffer makes a big deal about the possibility that Mr. Kronk could sue Jose Baez for slander, libel, or defamation. Well, I could have heard wrong, but it was Mr. Kronk’s ex-wives (one was a Coast Guard Chief no less) calling Mr. Kronk a dirt bag.

But since they are the ones who made the accusations, they are the only ones who could be sued. Which also makes me wonder, if Mr. Kronk doesn’t sue them for defamation, slander, or  libel – does that mean their accusations are true? Well, Bill does it???????

And to finally put the nail in the coffin – I need to point out those two other times that Mr. Suspenders has been dead wrong on the law and just taken cheap AND false shots at the Anthony defense.

On April 22, 2009 he faults Jose Baez for seeking the Court’s permission to seek telephone records. (WFTV-ABC: Legal Analyst: Casey’s Attorney Made Blunder) Mr. Sheaffer is quoted as follows:

Sheaffer said Baez filed an unnecessary court motion that will bring unwanted attention. “Asking the court’s permission to do something you have permission to do to begin with,” Sheaffer explained (watch interview).

Sheaffer said Baez could’ve identified the witnesses’ cell phone providers during depositions and then subpoenaed the companies’ records directly. Instead, he’s asked the judge’s permission.

There is only one itty bitty problem with Mr. Sheaffer’s legal opinion – he is dead wrong.

In fact, the Florida Supreme Court ruled as far back as 1976 (coincidentally two years before Mr. Sheaffer started practicing law) that you have to ask the judge’s permission to subpoena records.

Don’t believe me, well might I suggest you read Heath v. Becktell, 327 So. 2d 3 (1976), in which the Supreme Court of Florida stated subpoenas duces tecum are not permitted in a criminal matter without leave of court (i.e permission). See also State v. D.R., 701 So. 2d 120 (Fla 3d DCA 1997); Florida Rule of Criminal Procedure 3.220(h)(1).

And finally, I must point out that Mr. Sheaffer is not even current with Florida sentencing law. On April 10, 2009 WFTV-ABC did a piece on how Cindy Anthony acted during her deposition in the civil case (Legal Analyst On Anthonys: “Like Mother, Like Daughter”). WFTV-ABC then turned to Mr. Sheaffer for commentary on how Cindy Anthony might help Casey Anthony. This is a quote from the online article:

“Sheaffer said it might actually help Casey during the sentencing phase if she’s convicted. The jury might feel sorry for her and take her upbringing into consideration. – Bill Sheaffer (April 10, 2009)

There is only one problem with that statement –  Casey Anthony was not facing the death penalty on April 10, 2009 and juries do not make sentencing recommendations in any case except for Death Penalty cases.

On April 10, 2009 – Casey Anthony was not facing the death penalty.

So there would be no sentencing phase that the jury would participate in. See Florida Rule of Criminal Procedure 3.720 “Sentencing Hearing”; Florida Rule of Criminal Procedure 3.780 “Sentencing Hearing for Capital Cases;” and Section 921.141, Florida Statutes, “Sentence of Death or Life Imprisonment for Capital Felonies; further proceedings to determine sentence.”

However, it does not escape me that less than four days later – on April 14, 2009 – the State filed a Notice of Intention to Seek the Death Penalty (WFTV: State To Seek Death Penalty In Casey Anthony Case).

On April 14, 2009 – the State filed a Notice of Intention to Seek the Death Penalty

So this leaves me with the inescapable conclusion that Mr. Sheaffer either (1) has no understanding of Florida Sentencing Law or (2) he had advance knowledge of the State’s intention to file a notice to seek the death penalty.

While I suspect the former (Mr. Sheaffer is clueless), I doubt the conspiracy theorists in Casey Anthony’s camp believe the latter. The only real question would be who does Mr. Sheaffer know that might have a cozy relationship with someone at the State Attorney’s Office? Oh, wait a minute, Ms. Belich dated Assistant State Attorney Jeff Ashton at one time, didn’t she?

But nah, their is no way Ye Old Suspenders had a senile moment and referred to something that wasn’t supposed to be publicly known yet. Or maybe, just maybe, Jose Baez’s conspiracy theories about the State leaking evidence are true….. very interesting….

Now I am about done with my tirade about Mr. Suspenders – I mean Sheaffer. I know that the anti-Casey Anthony element will think I am some liberal criminal defense attorney who just wants to see Casey Anthony go free . So let me at least provide some anticipatory rebuttal to your forthcoming comments on my piece. (Interesting Sidenote: My Brother was one of Georgia’s Most Successful Death Penalty Prosecutors.)

I do all of my legal commentary for free (Mr. Sheaffer is on retainer with WFTV-ABC) and approach the interviews the same way I approached a consultation with a potential client: I take the facts that are presented to me (by the reporters) and gave my honest “legal” opinion about the particular legal issue.

I take the facts that are presented to me (by the reporters) and gave my honest “legal” opinion about the particular legal issue.

I explained not just the “black letter law,” but also how the particular demeanor of the assigned judge or the skills of the prosecutor would play into the ultimate outcome – whether it be by plea or trial.

I have tried several cases in front of Judge Strickland – so I am very familiar with his legal disposition. As recently as October of last year I tried a week long Second Degree Felony case in front of him (See Richard Hornsby Trial Verdicts) as well as litigating in a separate case at the same time a very complex legal evidentiary issue in front of him – and won (See Defendant’s Motion and Order Finding in Favor of Defendant).

As for the prosecutors on the case. I have tried cases with two of the three. In 2008 I lost a Robbery with a Firearm trial to Assistant State Attorney Jeff Ashton; but in 2007 I won two different Attempted Murder Cases against Assistant State Attorney Frank George. (See original Orlando Sentinel Articles on each client’s arrest: “Suspect Pursued to Hospital Door” and “Suspect Hunt Disrupts Residents“)

So when I speak about the issues in the case – I speak not just from my legal education, but from actual experience.

More importantly though, my critique of Mr. Sheaffer is something I would give of any criminal defense attorney who I thought was misstating the law – or pandering to the media as Mr. Sheaffer has decided to do.

Frankly, it is exactly why I don’t hold any punches when speaking about Mr. Baez’s representation of Ms. Anthony. However, I never fault him when he does something right and even when I disagree with him, I sure as hell don’t misinform the public about the legality of what he has done.

Take one of my earliest (and worst) interviews for example. It was a live broadcast on August 18, 2008 at CF News 13 (Video: Revoking Casey Anthony’s Bond) where I was paired up with Cheney Mason (arguably one of Orlando’s best known Criminal Defense Attorneys).

What is important about that interview is not the amount of times I said “Um” but my response to the question of whether Leonard Padilla could revoke Casey Anthony’s bond. Mr. Mason said that Leonard Padilla “could not just revoked Casey Anthony’s bond” because they had a contractual agreement (And Mr. Mason should know about contractual agreements). However, I disagreed with Mr. Mason  and explained what the law on that issue was – specifically that Mr. Padilla was within his legal rights to surrender (i.e. Revoke) Ms. Anthony at any time he deemed fit (See Section 903.20, Florida Statutes: “Surrender of Defendant”).

But probably more interesting to whomever reads this, would be the fact that I have leveled my criticism of Mr. Baez directly to him.

But probably more interesting to whomever reads this, would be the fact that I have leveled my criticism of Mr. Baez directly to him.

Take my January 14, 2009 interview with WESH-NBC reporter Amanda Ober where I provided commentary on how Mr. Baez is handling Ms. Anthony’s case. (Video: Is Casey Anthony being Properly Defended?). I had previously said the exact same things to Mr. Baez in response to an email he sent out on a Defense Attorney Listserve seeking any input or assistance in response to a lively thread on the fairness of the original $500K bond.

Being no hypocrite, I obliged and told him exactly what I thought. (See July 31, 2008 Email exchange between Jose Baez and Richard Hornsby). And yes, you are welcome to start calling me Richard “Nostradamus” Hornsby at this point.

At that brings me to the point of this post (or possibly rant) – that I am a fan of good lawyering, I am a critic of bad lawyering; but I am nobody’s hypocrite. My father had a saying: “Money Talks and Bullshit Walks,” which translates into Talk is Cheap.

And, while I am extremely critical of the manner in which Mr. Baez has handled Ms. Anthony’s case, I have nonetheless always been objective about the legal issues I am asked about: acknowledging when he does something right and (more often) when he does something wrong. Doing otherwise is simply cheap talk.

And, importantly, when criticizing Mr. Baez, I think it is important that we “not lose sight of what all of this is about, which is defending Casey Anthony on the charges of murder.”

Wait a minute, that is interesting, I think I have read that before? Oh, right – Those were Mr. Sheaffer’s exact words on May 13, 2009 (Watch WFTV Video or Read)

“It’s not a staged production. Again, let’s not lose sight of what all of this is about, which is defending Casey Anthony on the charges of murder.” – William “Bill” Sheaffer

So when someone like Mr. Shaeffer – an attorney who reeks of elitism – not only criticizes another criminal defense attorney, but hypocritically and falsely criticizes another criminal defense attorney;  I think it is my duty to call him out for his cheap talk. Because he is no more credible that the person he criticizes.

And Mr. Sheaffer, in my humble legal opinion, you are both cheap and a sell-out to your profession.

HAVE YOU NO SENSE OF DECENCY? – Richard Hornsby on William Sheaffer

Motion in limine (Latin: “at the threshold”) is a motion made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial.

Google Publishes Law for the Masses

Google announced that they will begin publishing “full text legal opinions from U.S. federal and state district, appellate and supreme courts” in Google Scholar.

With little fanfare, Google announced that they will begin publishing “full text legal opinions from U.S. federal and state district, appellate and supreme courts” in Google Scholar.

While most of this information is already available at each individual court website, the aggregation of each opinion in one place is an important step at demystifying how our laws are created, changed, and enforced.

Equally important is the fact Google will be providing reporter citation for each case – making use of cases from their site more reliable and authoritative. They also appear to be listing any citing cases, allowing for users to determine whether the law is still good, or if it has been overturned.

And, as a lawyer, I can only think that this is bad news for companies like LexisNexis and Westlaw – both of whom charge an outrageous amount of money to access these case. While their fees were surely justified before the dawn of the modern internet, they can no longer be justified now.

Denying the Certainty of Death…

A convergence of random occurrences has me thinking about the death penalty lately.

I have always though that crime is committed primarily by young people or emotionally immature people who had no understanding of right or wrong or, more precisely, no fear of consequences.

And when it comes to violent acts, I have often found that the acts were committed by people who had no appreciation for the value of life. And their lack of appreciation stemmed from no concept of, much less fear of, death.

And this brings me to the first of my random convergences. While reading, of all things, GQ magazine, I came across a quote from a book review for E.L. Doctorow’s novel Homer & Langley:

And then there was that feeling one gets in a ride to a cemetery trailing a body in a coffin — an impatience with the dead, a longing to be back home where one could get on with the illusion that not death but daily life is the permanent condition.

In many respects, this last line sums up much of the problem in youth crime and violence. When they are committing it, they think that life is eternal. In turn, they obviously lack the moral compass to understand the permanence of their action.

This then brings me to my second convergence. Last week I attended a three day death penalty seminar; it was also my first death penalty seminar. And being someone who considers himself somewhat of a trial hawk, I was at first put back by the tenor of the seminar, which focused primarily on the penalty phase (this presupposes you lost the actual trial).

But as I listened more, I understood why the seminar was so penalty phase focused. It was attended by people (defense lawyers) who not only understood the value of life, they witnessed the raw capriciousness by which the State attempts to take the life, that the law and sentiment is in their favor, and this leads to a rush to judgment in death penalty cases by jurors. So, attorneys must be prepared, with the relaxed evidentiary rules in the penalty phase, to humanize their client and calm the passion that has been created.

And in many ways, I realized that the same immaturity and “nothing to lose mentality” the state exhibits is no different that many youthful offenders. And so, comes the mantra of death penalty lawyers that Death is Different – and it must be defended as such.

And this brings me to the final convergence, about what true punishment is, specifically death – but not a quick painless death, not a death without human suffering. No, you see I do believe in the death penalty, but not state sponsored death. No the true death penalty is a natural death, a natural death in a small cell, watching your life waste away.

I can not think of anything more demoralizing, more painful, than to sit in a cell and come to the realization that life as a permanent condition is nothing more than an illusion. That there will be no escape and your existence is nothing more to sit in a solitary cell and watch your body waste away, to count the seconds, to never know when the death will come. The diseases of age will sit in, the ravages of cancers, strokes, heart attacks. To me, that is punishment, that is an eye for an eye.

And this brings me to my final convergence, but also the first one. Last April i was president of the Central Florida Association of Criminal Defense Lawyers and at our annual banquet we honored one of Florida’s most respected trial judges and death penalty experts, the Honorable O.H. Eaton. I suspect that few people understand the true value of life and death as he does.

But he said something very simple, that I think I would adopt as my approach when the day comes I am in the penalty phase of a death penalty trial. He told me that the fundamental thing lawyers fail to make jurors understand is that – Life means Life.

Specifically, there is no parole in Florida anymore. If someone is not sentenced to death – or more aptly, to die early at the state’s hands; they will instead spend the rest of their natural existences in a prison, a maximum security prison, for their entire life until God decides it is time for them to die – until God has determined that they have suffered enough.

And to even the most conservative juror, I think that would be true punishment…

Florida’s Uniform Case Numbering System

[A]s an attorney that practices in multiple counties, one of the most frustrating problems I continue to routinely come across is that very few criminal justice agencies (especially State Attorney’s Offices) have implemented, or integrated, Florida’s Uniform Case Numbering System into their case management programs.

in 2003, the Florida Supreme Court mandated that Florida’s county clerks begin implementing a twenty digit uniform case numbering system. The obvious purpose of using a Uniform Case Number (UCN) was so that practitioners would be able to properly filed their pleadings without fear of them being rejected and so that the courts could make statistical reports that would result in uniform comparison.

But as an attorney that practices in multiple counties, one of the most frustrating problems I continue to routinely come across is that very few criminal justice agencies (especially State Attorney’s Offices) have implemented, or integrated, Florida’s Uniform Case Numbering System into their case management programs. As a result, I continue to come across secretaries and judicial assistants who are unfamiliar with Florida’s Uniform Case Numbering System and are unable to find my case or coordinate hearing time unless I give them their local case number; which is not always obvious to determine.

So I thought it might be helpful if I posted an overview of the numbering system used in the county and circuit courts to hopefully facilitate better understanding of and more universal adoption of this logical system.

The Uniform Case Number is a twenty character sequence that has five components, broken out, it looks as follows: XX-XXXX-XX-XXXXXX-XXXXXX.

For Example, the first felony case filed in Orange County for 2009 would look as follows: 48-2009-CF-000001-OAXXXX

Broken down, the five components are explained as follows:

The first two characters are the county designation code. Florida has 67 counties and the codes are assigned from 01 – 67 in alphabetical order. A listing of each county’s code is provided at the bottom of this post.

The next four characters are the year your case was actually opened in with the clerk of the court, not the year the issue in dispute occurred.

An example would be if you were physically placed under arrest on December 31, 2008, but you were not actually booked into jail until January 1, 2009. As a result the year designation for your case would be 2009. Because this is the year the Clerk actually would open your case, which is because you were not booked into jail and brought to their attention until 2009.

The following two characters are the court case type (or designation). In addition to the brief examples provided here, I have alco provided a complete listing of court case types at the bottom of the post.

Examples are CF = Felony, MM = Misdemeanor, CT = Criminal Traffic.

The following six characters are the case sequence; simply meaning the number assigned to a case as they are opened each year.

The first case of each year in each division is assigned 000001, the second case is 000002, and so on.

The final six numbers are not specifically assigned and are left to the individual counties to use for their own internal management purposes. Two common practices are to use the first of the two digits to assign co-defendant order (usually starting alphabetical by last name) or municipality designation.

For example, Co-Defendant 1 would be assigned A, Co-Defendant 2 would be assigned B, and so forth.

Or, a misdemeanor case initiated by Eatonville Police Department in Orange County, Florida might look as follows: 48-2009-MM-000001-EA. The E indicates an Eatonville PD case and the A indicates Co-Defendant A if there were two people arrested.

In any event, I hope this provides some clarification for the masses out there.

Court Case Type Designation

AP Appeal from County Court
CA Circuit Civil
CF Felony
CJ Delinquency (Juvenile Crime)
CO County Ordinance Violation
CP Probate
CT Criminal Traffic Citation (But also a Misdemeanor Offense)
DP Dependency
DR Domestic Relations
GA Guardianship
IN Non-Traffic Infraction
MH Mental Health
MM Misdemeanor
MO Municipal Ordinance Violation
SC Small Claims
TR Traffic Infraction

County Code Designations

County County Code
Alachua 01
Baker 02
Bay 03
Bradford 04
Brevard 05
Broward 06
Calhoun 07
Charlotte 08
Citrus 09
Clay 10
Collier 11
Columbia 12
Dade (Miami) 13
DeSoto 14
Dixie 15
Duval 16
Escambia 17
Flagler 18
Franklin 19
Gadsden 20
Gilchrist 21
Glades 22
Gulf 23
Hamilton 24
Hardee 25
Hendry 26
Hernando 27
Highlands 28
Hillsborough 29
Holmes 30
Indian River 31
Jackson 32
Jefferson 33
Lafayette 34
Lake 35
Lee 36
Leon 37
Levy 38
Liberty 39
Madison 40
Manatee 41
Marion 42
Martin 43
Monroe 44
Nassau 45
Okaloosa 46
Okeechobee 47
Orange 48
Osceola 49
Palm Beach 50
Pasco 51
Pinellas 52
Polk 53
Putnam 54
Santa Rosa 55
Sarasota 56
Saint Johns 57
Saint Lucie 58
Seminole 59
Sumter 60
Suwannee 61
Taylor 62
Union 63
Volusia 64
Wakulla 65
Walton 66
Washington 67

Orange and Osceola County Criminal Case Initiation

Having practiced primarily in the Ninth Judicial Circuit since graduating from law school, one of the most frustrating procedures I have witnessed is the manner in which a person has to pay multiple “court costs” in multiple cases that all arise out of the same arrest.

For example, if you get arrested in Seminole county for Fleeing and Eluding, DUI, and Driving on a Suspended License; the Clerk of the Court opens one case file in the Circuit Court (Felony Court) and all three charges are resolved at the same time. This is the way it should be done.

However, under the same scenario in Orange and Osceola County, the Clerk of Court opens up a separate case for each criminal-traffic offense. And because one of them is a felony, there are actually a minimum of two judges, two prosecutors, and two sets of clerk personnel involved.

Well I finally put pen to paper and issued a letter to the various Florida Bar criminal rules committees outlining the problem and the applicable law I believe applies. I am hopeful that this will finally get some changes made. Below is the text of my letter:

The Criminal Procedure Rules Committee
The Rules of Judicial Administration Committee
The Traffic Court Rules Committee
c/o The Florida Bar Staff Liaisons
651 E. Jefferson Street
Tallahassee, FL 32399-2300

Re: Request to Review the Rules Related to the Duties of the Clerk of the Court and the State Attorney as they apply to the Initiation of Criminal Proceedings that Involve a Criminal Traffic Component

Dear Committee Chairs:
I am writing to request that the rules committees review and, if necessary, harmonize or clarify the Rules of Judicial Administration, Criminal Procedure Rules, and Traffic Court Rules as they relate to the initiation of criminal proceedings that involve criminal traffic offenses.

The reason for my request is based upon a questionable initiation and intake process utilized by the Ninth Judicial Circuit Clerks of the Court and State Attorney when initiating and opening criminal cases; a process that appears to be in conflict with the applicable rules of procedure.

The Clerk of Court Procedure in the Ninth Judicial Circuit

Under Rule of Judicial Administration 2.555 (“Initiation of Criminal Proceedings”), when a person is arrested and charged with multiple criminal offenses arising from one episode, the Clerk of the Court should determine jurisdiction based under the most serious charge in the criminal complaint (usually the charging affidavit) and open a case file in the appropriate court of jurisdiction (county or circuit), which includes all of the lesser offenses that the defendant was also charged and arrested for that arose out of the criminal episode.

For example, if a person was arrested by law enforcement for Fleeing and Eluding (FATE), Battery on a LEO (BLEO), Resisting Without Violence (RWOV), Reckless Driving, Driving on a Suspended License (DWLS), and Speeding; the Clerk of Court should open one case in the Circuit Court. This is because the two felonies, FATE and BLEO, can only be heard in the circuit court.

As a result, only one judge, one prosecutor, one public defender (if indigent), and one set of clerk personnel are assigned. And as the case progresses, the law enforcement officers would only appear for hearings on one case. Also, if convicted, only one probation officer is assigned to the defendant.

However, in the Ninth Judicial Circuit, the Clerks of the Court (primarily the Orange County Clerk) do not create one court file based upon the most serious charge as required by Rule of Judicial Administration 2.555. Instead the clerks separate out each misdemeanor criminal traffic offense and civil traffic infraction and open each under a separate and distinct case in the County Court.

So in the Ninth Judicial Circuit, and under the above scenario, the FATE, BLEO, and RWOV are opened under one felony case number in the Circuit Court (in some instances the RWOV is opened under a separate county case number). The Reckless Driving, DWLS, and Speeding are opened under three separate and distinct case files in the County Court. To further complicate matters, an election for a hearing must be made for the speeding ticket (or any related infractions). Otherwise the Clerk will treat it as having been filed at large; and if it goes unpaid the clerks suspend the defendant’s driver license. Consequently, a motion must be filed by the defense attorney to consolidate related infractions with the criminal traffic case under Traffic Court Rule 6.130 (“Case Consolidation”).

However, in the case of indigent clients, the Public Defender does not handle related infractions and the defendant must handle them himself. This is obviously impossible for indigent incarcerated defendants. And in the case of released indigent clients, more often than not they are not provided with copies of their related infractions, or if they are, they assume they are handled automatically with the criminal cases. So they incur needless later fees and unnecessary license suspensions.

Consequently, under the Ninth Judicial Circuit’s scheme, a defendant would find himself with a minimum of three separate cases (possibly four) and – a minimum – of three judges, two prosecutors, two assistant public defenders (if indigent), and – three sets of clerk personnel. Also, law enforcement officers and witnesses are subject subpoena and appearance multiple
times (which equals less time on the street) in four to five separate cases (all with different case numbers, making case reference difficult). Also, if convicted on both the felony and misdemeanor cases, the defendant would be assigned separate probation officers (one for state probation, one for county probation).

The State Attorney Intake Process and Handling of Criminal Related Traffic Cases
To further complicate the matter; the State Attorney in the Ninth Judicial Circuit does not review or engage in criminal intake of criminal traffic offenses that are misdemeanors on their face; and the Clerk of Court simply initiates each as a new and distinct case in the County Court. This failure to review or undergo intake would seem to be in contradiction to the requirements of Florida Rule of Criminal Procedure 3.115 (“Duties of State Attorney; Criminal Intake”). It also raises the ethical question of who should be held responsible if a criminal case is not prosecuted in good faith.

As a result of this lack of intake, and under the above scenario, a defendant could find himself defending against the DWLS charge even though there is no actual evidence to support knowledge of a license suspension to support the criminal charge aside from the LEO’s hunch); whereas, if the State Attorney had reviewed the case in intake, they likely would have declined to prosecute the DWLS charge because the evidence only supported a civil infraction of DWLS. As for the Reckless Driving charge; an astute defendant could plea to the charge at arraignment and, at worse, receive 90 days in jail. However, the State Attorney would be prohibited under double jeopardy principles from filing the second degree felony offense of “Fleeing and Eluding a LEO in a Reckless Manner” because all of the charges were not reviewed together in intake.

So the State Attorney would be left with pursuing the lesser charge of third degree felony FATE. Also, the Ninth Judicial State Attorney has a policy of not assuming responsibility for disposing of civil traffic infractions that are consolidated with (or arise out of) criminal traffic cases because they claim to have no jurisdiction in such cases. This assertion would appear to be contrary to Section 27.02, Florida Statutes, (“Duties Before Court”) (“The State Attorney shall appear in the circuit and county courts within his or her judicial circuit and prosecute or defend on behalf of the state all suits, applications, or motions, civil or criminal, in which the state is a party.”)

Additionally, their refusal to assume jurisdiction over the civil traffic infractions creates needless dispositional problems. Because the infractions remain pending even if the State Attorney resolves the underlying criminal traffic case. To deal with this issue, some judges will “subsume and dismiss” related infractions; but not every judge believes they have this authority and instead requires a defendant to either plead to the infractions or elect a hearing. In the latter case it creates unnecessary work for the judiciary and requires law enforcement to make unnecessary future appearance for infraction hearings; where, instead, the State Attorney could have disposed of the infractions with the criminal traffic case and saved all parties needless time.

The Purpose of the Rules
Finally, I would point out that the underlying purpose of the each set of rules of procedure is to promote the fair and efficient resolution of cases. See Fla. R. Jud. Admin. 2.110 (“The rules shall be construed to secure the speedy and inexpensive determination of every proceeding to which they are applicable.”); See Fla. R. Crim. P. 3.020 (“These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure and fairness in administration.”); See Fla. R. Traf. Ct. 6.020 (“These rules shall be construed to secure simplicity and uniformity in procedure, fairness in administration and the elimination of unnecessary expense and delay.”)

However, the Ninth Judicial Circuit process is neither fair nor efficient. It is unfair to a defendant arrested on multiple charges, as defendants are essentially taxed multiple times in the form of “court costs” simply because the Clerk of the Court decided to open multiple cases; rather than one case.

It is unfair to the citizens of the State of Florida, as the judiciary’s budgets (and now the clerk’s) are based on caseload statistics; as are the standards that dictate requests for additional judges. See Fla. R. Jud. Admin 2.240. Obviously the Ninth Circuit’s procedure inflates the amount of cases in a manner that is disproportionate to the amount of actual defendants. Thus the Ninth Circuit clerks and courts are able to claim greater budgetary and resource needs to the detriment of other circuits who do not report inflated caseload statistics (the neighboring Eighteenth Judicial Circuit for example).

The system is inefficient because it creates additional work for every agency related to the criminal justice system. It requires a minimum two sets of judges, clerk personnel, assistant state attorneys, public defenders, and probation officers to dispose of one defendant; whereas other circuits only need one (again, the Eighteenth Judicial Circuit is a perfect example).

Probably more alarming to the public in general, law enforcement personnel in the Ninth Judicial Circuit find themselves subject to being subpoenaed in multiple cases, different dates, for different proceedings that are all related to one arrest. Their time would be better spent on the streets rather than appearing multiple times for one defendant.

It is inefficient (and unfair) because an indigent defendant must keep track of multiple cases (and infractions) all related to his one arrest. In the above example, while the Reckless Driving charge will be considered to have been formally charged; the FATE and BLEO may still be in the State Attorney intake awaiting a formal charging decision. A trial and acquittal could occur on the Reckless Driving; but the State could file formal felony charges two months later on the FATE and BLEO (probably never knowing there was a trial). This is an unnecessary waste of judicial resources that is avoidable by amending the rules to require the State Attorney to intake all charges and file them under one Information. It would save the finite time of all criminal justice personnel involved.

And I leave you with this final, but common, absurdity involving violation of probation cases in the Ninth Judicial Circuit. Many times, under the above example, a defendant receives separate probation sentences: (1) State probation for the felony charges and (2) County probation for the misdemeanor criminal traffic case. When the defendant violates probation (say with a new arrest), his state probation officer will submit a VOP affidavit to the circuit judge and his county probation officer will submit a VOP affidavit to the county judge. Two separate warrants will be issued (one from each judge) and when arrested he will have two VOP hearings. Of course, the witnesses would potentially be required to attend both hearings.

So I pray that the members of the rules committees will carefully consider this issue; and revise the current rules to clarify the criminal case initiation and intake procedures and bring the unfair and inefficient practice to a stop.

Sincerely,
Richard Hornsby