Trayvon Martin: Character Evidence or Character Assassination?

George Zimmerman’s defense team recently filed a Discovery Exhibit indicating they may seek to introduce a litany of unfavorable evidence about Trayvon Martin.

Among the items the defense listed was evidence of marijuana use, text messages showing an participation in street fighting, and school disciplinary records.

The Martin Family Attorneys Reacts

As can be expected, the reaction from Trayvon Martin’s family was swift and indignant.

Natalie Jackson accused the defense (probably accurately) of attempting to taint the jury pool and claimed the proffered evidence was “irrelevant to [George Zimmerman’s] guilt or innocence.”

Ben Crump proclaimed,

The only “evidence that will be admitted at trial is the legally documented history of George Zimmerman’s propensity for violence, such as his arrest for battery on a law enforcement officer, his injunction to prevent domestic violence taken out by his ex-girlfriend, and evidence of his training as a bouncer for Data Whore Productions, Inc.”

Put in simpler terms, the Martin family attorneys were accusing the defense of engaging in Character Assassination.

And while “character assassination may be tolerated in some places, it has no place in the administration of justice.” State v. Beggs, 51 So. 2d 423 (Fla. 1951)Or does it?

Character Evidence

Before we discuss the specific issues raised by both the Zimmerman defense and the Martin family attorney, we must discuss the admissibility of character evidence, since this is at the heart of the dispute.

Generally, character evidence is inadmissible. F.S. 90.404(1). But, for every rule there is an exception (or two). And in this case, the exceptions will swallow the rule.

Evidence of Violent Propensities

An exception to this rule is “where the victim’s character is an essential element in the case or where the defendant asserts that he acted in self-defense.” Munoz v. State, 45 So. 3d 954, 956 (Fla. 3d DCA 2010).

Where self defense is raised, the victim’s propensity or reputation for violence becomes an essential element of the case. As such, the victim’s character, proven through reputation testimony, sheds light on the victim’s conduct at the time of the altercation. Banks v. State, 351 So. 2d 1071 (Fla. 4th DCA 1977).

However, such evidence is limited to either:

  1. The victim’s conduct at the time of the altercation; or
  2. The reasonableness of the defendant’s fear at the time of the incident.

The first prong is proven through the introduction of Reputation Evidence of the victim. The second prong is proven through the introduction of the defendants knowledge of prior acts of violence by the victim.

Reputation Evidence

To prove a reputation for violence (and I use violence broadly), Florida permits a defendant to introduce evidence “that the alleged victim had a propensity for violence, thereby inferring that the alleged victim was the aggressor. A defendant’s prior knowledge of the victim’s reputation for violence is irrelevant, because the evidence is offered to show the conduct of the victim, rather than the defendant’s state of mind.”  Dwyer v. State, 743 So. 2d 46, 48 (Fla 5th DCA 1999)

Reputation evidence of this type is generally proven through witnesses who knew the individual (in this case Trayvon Martin’s friends or family). Such evidence is notoriously difficult to prove or even introduce.

This is because testimony as to a person’s reputation must be based on sufficiently broad knowledge of the individual and not on fleeting contact or isolated acts. Wisinski v. State, 508 So. 2d 504 (Fla. 4th DCA 1987) (The reputation testimony must be based on discussions among a broad group of people so that it accurately reflects the person’s character, rather than the biased opinions or comments of two or three persons.)

Prior Acts of Violence

Conversely, evidence of prior acts of violence by the victim is admissible if the defendant has prior knowledge of them to demonstrate the reasonableness of the defendant’s fear at the time of the incident.

However, because the purpose of introducing this evidence is to show the defendant’s state of mind at the time he defended himself, it must be shown the defendant had prior knowledge of these acts. Taylor v. State, 513 So. 2d 1371 (Fla. 2nd DCA 1987) (Evidence of victims’s prior acts inadmissible to show state of mind, because defendant was unaware of the acts prior to killing victim.)

Evidence of Peaceful Propensities

In self defense cases, evidence of a peaceful or non-violence reputation of the victim and the defendant is admissible as follows.

Victims’s Peaceful or Non-Violent Reputation

Once the defense places a victim’s character or reputation into evidence, either by cross-examination or through reputation witnesses, the defense then opens the door for the State to introduce rebuttal evidence of the victim’s reputation for peacefulness or non-violence.

Defendant’s Peaceful or Non-Violent Reputation

Likewise, a defendant may testify that he is a peaceful or non-violent person, or use witnesses to testify to his reputation as a peaceful or non-violent person.

However, once the defendant places his character or reputation into evidence, the State may then introduce rebuttal evidence that impeaches the assertion of a reputation for peacefulness or non-violence.

Trayvon Martin’s Prior Bad Acts

Marijuana Use

Evidence of drug use is controlled by the Florida Supreme Court decision of Edwards v. State, 548 So. 2d 656, 658 (Fla. 1989), which states that evidence of drug use is prohibited unless:

  1. It can be shown that the witness had been using drugs at or about the time of the incident which is the subject of the witness’s testimony;
  2. It can be shown that the witness is using drugs at or about the ti me of the testimony itself; or
  3. It is expressly shown by other relevant evidence (i.e. toxicologists or psychologists) that prior drug use affects the witness’s ability to observe, remember, and recount.

You may have noticed that I kept highlighting the word witness. The reason for this is that evidence of drug use is only admissible against a witness if it impeaches the witness’s “ability to perceive, record, recollect, narrate, or testify truthfully.”

It is not admissible solely to cast a person in a bad light (i.e. character assassination). Ruland v. State, 614 So. 2d 537, 539 (Fla. 3d DCA 1993) (Evidence of drug use offered to establish that the victim was a drug dealer or user is an impermissible attack on the character of the victim.)

And if you have been following along, you will have also realized that Trayvon Martin will not be a (testifying) witness in this case. As such, the State will argue that evidence of his drug use is therefore inadmissible.

However, evidence of Trayvon Martin’s drug use on the night of the incident will be admissible for two reasons separate from showing his bad character.

Impeachment Evidence

First, we know Witness 8 will likely testify about Trayvon Martin’s statements to her and we know an audio experts will likely testify that Trayvon Martin can be heard on the 911 calls. Such statements are hearsay, but are admissible under exceptions to the hearsay rule. (State of mind, excited utterances, etc.)

Nevertheless, when a hearsay statement has been admitted into evidence, “the credibility of the original declarant of the statement may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness.” Huggins v. State, 889 So. 2d 743, 755 (Fla. 2004)

What this means is that whenever a state witness testifies to something Trayvon Martin said, the testifying witness can be questioned as to whether they were aware Trayvon Martin had used drugs that night.

If they say yes, then the defense has been able to indirectly impeach Trayvon Martin. If they say no, then the defense can introduce the toxicology evidence in their case in chief to impeach Trayvon Martin.

Corroboration of Defendant’s Belief

Second, evidence of drug use on the day of the incident is admissible to corroborate George Zimmerman’s opinion that Trayvon Martin was acting like he was on drugs prior to the altercation. Arias v. State, 20 So. 3d 980, 984 (Fla. 3d DCA 2009) (Toxicology findings relevant and admissible not as character evidence, but to confirm defendant’s perception that victim was in fact intoxicated.)

Prior Incidents of Fighting

To be honest, I grappled (pun intended) with how the defense could legally introduce evidence that Trayvon Martin had previously engaged in semi-organized street fighting.

Since George Zimmerman was unaware of this behavior, it would be inadmissible to show his state of mind. Taylor v. State, 513 So. 2d 1371 (Fla. 2nd DCA 1987) (Evidence of victims’s prior acts inadmissible to show state of mind, because defendant was unaware of the acts he killed victim.)

However, part of Florida’s standard jury instruction 3.6(f), Justifiable Use of Deadly Force, instructs the jury that when they “consider the issue of self-defense, they may take into account the relative physical abilities and capacities of the defendant and the victim.”

It is because of this instruction, that (as Ben Crump pointed out) George Zimmerman’s “training as a bouncer for Data Whore Productions, Inc.” should be relevant. Likewise, it is for this same reason that Trayvon Martin’s participation in semi-organized street fighting is relevant. Otherwise, the jury would be unable to take into account the “relative physical abilities and capacities of the defendant and the victim.”

In the same regard, the State or its witnesses will likely posit that Trayvon Martin was a small, unskilled, teenager who lacked the physical ability or capacity to overpower George Zimmerman. Thus evidence of Trayvon Martin’s participation in street fighting either rebuts this assertion or impeaches any assertion by friends or family members that he was not skilled or strong enough to have overcome George Zimmerman.

This reasoning is consistent with the holding in Arias v. State, which held that the toxicology evidence was admissible because it was relevant evidence, notwithstanding that it could also be classified as inadmissible character evidence.

Moreover, the Florida Supreme Court has indicated in dicta that specialized training (such as Martial Arts) is relevant evidence notwithstanding its also evidence of bad character traits. Trease v. State, 768 So. 2d 1050 (Fla. 2000) (FN5. Evidence of proficiency in the martial arts and how to use a knife was relevant evidence against defendant in murder case.)

Finally, it appears Florida is one the few remaining states to exclude evidence of a victim’s prior violent acts absent evidence that the defendant had knowledge of the prior acts.

Rather, the majority of the states are moving “toward admitting some form of this evidence [because evidence of the victim’s propensity for violence] has substantial probative value and will help the jury identify the first aggressor when the circumstances of the altercation are in dispute” regardless of whether the defendant has prior knowledge. Commonwealth v. Adjutant, 443 Mass. 649, 659 (Mass. 2005),

In abandoning the minority position that Florida clings to, the Massachusetts Supreme Court reasoned:

Admission of evidence showing the victim’s prior violent acts on the first aggressor issue reflects the principle that ‘in criminal cases there is to be greater latitude in admitting exculpatory evidence than in determining whether prejudicial potentialities in proof offered to show guilt should result in its exclusion.’

‘Where the victim’s propensity for violence is in question . . . the danger of prejudice to the defendant lies in refusing to admit such evidence.’

So if I am Mark O’Mara or Don West, and Judge Nelson refuses to allow the evidence of Trayvon Martin’s prior acts of fighting into evidence, I argue that Florida should adopt the majority rule; and not to do so violates due process.

While Nelson would still deny it at this point, the issue would be preserved for appeal.

School Disciplinary Reords

At the onset, I would agree that Trayvon Martin’s disciplinary records or the reason for his suspension is completely irrelevant. However, if Trayvon Martin’s family members or friends attempt to mislead the jury as to why Trayvon Martin was staying in Seminole County or portray him as a good child that never got into trouble, the evidence may become very relevant.

This is because if a witness offers misleading testimony or makes a specific factual assertion about his character, the opposing party can then impeach the misleading evidence or character evidence with evidence that would otherwise be inadmissible. Bozeman v. State, 698 So. 2d 629 (Fla. 4th DCA 1997) citing Allred v. State, 642 So. 2d 650 (Fla. 1st DCA  1994) (Once defendant testified he would never hit a woman, evidence that he hit his first wife and a former girlfriend admissible as impeachment.)

Zimmerman’s Prior Bad Acts or Crimes

While the general rule is that evidence of the defendant’s prior bad acts or bad character is inadmissible. There are two exceptions to this rule.

Williams Rules Evidence

The State can introduce evidence of prior bad acts to show motive, intent, absence of mistake, etc., but only if they have filed what is known as a Williams Rule Notice at least ten days prior to trial. (To date, no Williams Rule Notice has been filed.) Usually, Williams Rule evidence is only admissible to show fingerprint type evidence (i.e. the defendant used the same disguise in prior crimes, he said the exact same statements, etc.)

Absent a Williams Rule Notice, if the Defendant testifies, the only manner that his character can be attacked is through impeachment with prior convictions for prior felonies or crimes of dishonesty.

However, contrary to what Ben Crump believes, “prior arrests which do not result in convictions are an improper subject for impeachment or cross-examination.” Baker v. State (Fla. 4th DCA 2012); citing Fulton v. State, 335 So. 2d 280, 283 (Fla. 1976) (“Arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty. Only a conviction, therefore, may be inquired about to undermine the trustworthiness of a witness.”)

Likewise, allegations in a civil injunction, even if granted, are inadmissible to prove a violent character.

Impeachment

If a defendant offers misleading testimony or makes a specific factual assertion about his character, the State can then impeach the misleading evidence or character evidence with evidence that would otherwise be inadmissible. Bozeman v. State, 698 So. 2d 629 (Fla. 4th DCA 1997) citing Allred v. State, 642 So. 2d 650 (Fla. 1st DCA  1994) (Once defendant testified he would never hit a woman, evidence that he hit his first wife and a former girlfriend admissible as impeachment.)

In this regard, the fact he is alleged to have struck his girlfriend or shoved the officer in prior incidents could be admissible if he testified that he has never struck someone unprovoked (or something similar). If he were to be foolish enough to testify as such, then he could be cross-examined on the allegations against him in the dismissed Orange County criminal case and the ex-girlfriend’s injunction.

However, such evidence is not considered “substantive” evidence (meaning it is admissible in and of itself for some relevant reason). Rather, such evidence is solely impeachment evidence that cannot be brought up unless George Zimmerman opens the door to it.

Admissible or Assassination?

So now that you know the law that most likely applies to the evidence in question, what do you think? Admissible Character Evidence or inadmissible Character Assassination?

Why Casey Anthony’s Probation Ends July 17

I was asked yesterday by Hal Boedeker of the Orlando Sentinel to answer one of his frequently asked Casey Anthony questions, which was: when does Casey Anthony’s probation “legally” end.

Well, contrary to what Foghorn Leghorn says, the answer is simple: July 17, 2012.

The not so simple reason

When Casey Anthony was originally released from jail, which was shortly after midnight on July 17th, 2011, most people thought that she was no longer on probation because the Florida Department of Corrections unilaterally decided that her probation began running while she was in jail and her probation ended on January 24, 2011.

I, on the other hand, knew they were wrong in their conclusion and explained why Casey Anthony should still be on probation (See: The Great Probation Debate).

The Velvet Hammer sets Ms. Anthony, Jose Baez, and DOC Straight

Subsequently, the Department of Corrections filed a motion for clarification and the defense moved to dismiss.

A hearing was later held and Judge Perry issued an order where he makes no judicial determination of when her probation actually started, although he does point out in his “Facts of Case” that judge Strickland stated her “probation was to start once she was released from jail.” (See page 2)

With Judge Strickland’s sentence established in his findings of fact, he then “orders” Casey Anthony to “report to DOC no later than 12:00 p.m. on August 26, 2011.” (See page 12)

You Can be on Probation and Not Know It

Importantly, he never issued any orders regarding when her probation started, he only ordered her to report to probation.

And this is for good reason, since the Department of Corrections told Casey Anthony her probation concluded while she was in jail and gave her documentation to this effect, Judge Perry knew that a person’s probation could only be violated if the person knew they were on probation. See Jenkins v. State, 963 So. 2d 311 (Fla. 4th DCA 2007) (“A probationer cannot be found in willful violation of probation if he does not know he was on probation.”)

Thus the Department of Corrections was powerless to do anything until Judge Perry issued an order putting Casey Anthony on notice that she was actually still on probation.

But just because they could not violate her until she was ordered to report to probation, does not mean that her probationary term had ever stopped running.

Thus the proper remedy for a person who was led to believe they were not on probation, but which was subsequently corrected by the Court, is to order the person to finish out the remainder of their probationary period.

Casey Anthony has got the Probation Blues

And that is exactly what happened in Blue v. State, 744 So. 2d 543 (Fla: 1st DCA 1999).

In Blue, the Defendant, Mr. Blue, was originally sentenced to prison to be followed by probation (what we call a split sentence). He was subsequently found in violation of probation and sentenced to straight prison. However he appealed, won, and the appellate court ordered him released from prison ASAP and reinstated to probation.

However, once released from prison, he reported to the probation office and was told they had no record of him still being on probation (sound familiar?); thus he was led to believe he was not on probation.

Probably overjoyed with his new found freedom, Mr. Blue decided to commit a new crime and was rearrested The State also argued that he was still on probation in his original offense, the judge agreed and sentenced Mr. Blue to eight years in prison.

Mr. Blue appealed again, arguing that his probation could not be violated since he did not know he was on probation. The appellate court agreed, but the remedy was to “reverse both the order revoking probation and the judgment and sentence entered by the trial court, and remand with instructions to reinstate Blue to his original term of probation.”

Thus although Judge Perry was correct in that he could order her to report to probation, it would only be for the remaining portion of her “original term of probation.”

As a result, Casey Anthony’s probation ends exactly one year after she was released from jail; which by my calculations would be July 17, 2012.

(I would point out that this post assumes July 18th as her first official day of probation, although the argument could be made July 17th was her first day, so maybe her probation actually ends July 16th!)

For Judge Perry’s Eyes Only

Well, today threw me for quite a loop.

I was pleasantly surprised to see Assistant State Attorney Frank George not only appear, but precisely state the law when advocating for enforcement of Judge Strickland’s original sentence.

Nevertheless, Judge Perry seemed hesitant, did not immediately rule in favor of Mr. George, and instead indicated he needed to do some additional research.

At that point, I said hey, what do I know, I’m just a dumb blogger, but maybe if I provide my dumb blogger’s “research,” Judge Perry’s eyes might just come across it. (But really, I mean it’s not like Judge Perry’s law clerks or staff lawyers, or any lawyer involved in the case for that matter, would ever read my blog.)

Does Double Probation Means Double Jeopardy?

Defense Attorney Lisabeth Fryer (whom I think is an excellent advocate) asserted that since Ms. Anthony could have been violated while she was in jail (which, as you will see, is true), the court must consider Casey Anthony to have been actually supervised. Otherwise, requiring her to be supervised a second time would constitute double jeopardy.

There are two flaws with this argument (one of which is fatal) and if carried to their logical conclusion, shows that this argument should not prevail.

A Sword and a Shield

First, you can bet your bottom $200,000 dollars that had Ms. Anthony’s probation actually been “violated” while she was in jail, the defense would have argued that she was not on probation in jail, as Judge Strickland’s “oral pronouncement” was clear that her probation was not to start until she “was released” from jail.

Thus, probation had no jurisdiction to violate someone who was not on probation and the court would therefore have no jurisdiction to conduct a Violation of Probation proceeding.

While this is nothing more than an academic exercise, you can bet that the legal positions would have been reversed had such a scenario occurred.

Thus, it seems patently obvious that the defense is only using the “scrivener’s error” as a sword now, but would obviously have used it as a shield had Ms. Anthony been violated while in jail. And as you will read below, the United States Supreme Court has cautioned that the constitutional prohibition against double jeopardy should not be used to turn sentencing into “a game in which the wrong move by the judge means immunity for the prisoner.”

Prospective Violations are Permissible

Unfortunately for the Casey Anthony defense, the Florida Supreme Court has clearly found that a court can prospectively violate someone. A prospective violation means that a defendant who is sentenced to jail to be followed by probation, can be found in violation of probation, while still serving the jail portion of the sentence, before beginning to actually serve the probationary portion of their sentence. Stafford v. State, 455 So. 2d 385 (Fla. 1984).

The Florida Supreme Court adopted the following opinion when holding a trial court has the inherent ability to revoke a person’s probation before it is even started:

The question here is whether a probationer can, with impunity, engage in a criminal course of conduct (or for that matter any course of conduct which is essentially contrary to good behavior) during the interval between the date of an order of probation and some subsequent date when the probationary term is to commence.

We think not. To hold otherwise would make a mockery of the very philosophy underlying the concept of probation, namely, that given a second chance to live within the rules of society and the law of the land, one will prove that he will thereafter do so and become a useful member of society.

As a result of the Stafford opinion, Ms. Fryer’s argument (that because Ms. Anthony could have been violated, the court must consider her to have been on probation) is unpersuasive.

This is because the court already had the inherent authority to revoke Ms. Anthony’s probation before it commenced if she committed an act that would have constituted a violation while on probation. (This actually comes up frequently when one inmate commits a battery on another inmate.)

Guidance on Addressing the Legal Morass

While I would agree that I could find no case exactly like Ms. Anthony’s situation, I nonetheless believe there are plenty of cases that provide guidance on how Judge Perry Should rule.

This is because while the Department of Corrections likely never catches when they release someone from probation early, there are legions of cases where someone has been released from prison early – only to be returned once the mistake is identified.

For Example…

In Carson v. State, 489 So. 2d 1236 (Fla. 2d 1986) the defendant was sentenced to thirty months imprisonment with credit for time served” on January 14, 1985. (Notably the court left it up to corrections to determine the amount of time served.) Corrections gave the defendant credit for 546 days of credit when he should have received 173 days.

On May 16, 1985, more than 60 days after the sentence was imposed, the state filed a motion to correct appellant’s sentence to reflect the correct amount of credit for time served. The court granted the state’s motion and issued an amended sentence, nunc pro tunc, January 14, 1985.

The defendant appealed arguing his sentence was being illegally increased after he had already been discharged and that the court lacked jurisdiction to modify a sentence after sixty days.

The appellate trial court rejected the defendant’s argument and stated the trial court was neither correcting an illegal sentence nor reducing a legal sentence, but was attempting to execute the original sentence it had ordered. The court went on to state, “a court may correct clerical mistakes in its own judgments and records, nunc pro tunc, even after the term of court has expired, and such corrections generally relate back and take effect as of the date of judgment.”

Finally, the court in Carson ruled that if a defendant is released or discharged from prison (or in Ms. Anthony’s case, probation) by mistake, the defendant may be recommitted if the sentence would not have expired had she remained in confinement.

In Ms. Anthony’s case, her probation sentence would not expire until July 17, 2012; so there is plenty of time to fix the clerical error so she serves the intended sentence.

A Legal Smörgåsbord for Judge Perry

Finally, there is Gallinat v. State, 941 So. 2d 1237 (Fla. 5th DCA 2006) that was issued by the Fifth District Court of Appeals (the same appellate court Ms. Anthony would have to appeal too).

The defendant in Galliant was sentenced concurrently in two cases to 33 1/2 months in prison. The sentencing documents sent to the Department of Corrections reflected credit for 285 days served in county jail prior to sentencing in each case.

The truth though, was that the defendant had only done 264 days in one case and 96 days in the other. Three months later, the trial court entered a “corrected order,” which reduced the jail credit award in each case to 264 and 96 days respectively, which reflected the time actually served by the defendant. (This also meant that he would sit in prison for about four months more.)

Well, wouldn’t you know it, the defendant appealed and argued virtually identical grounds as Ms. Anthony’s attorneys argued. The Fifth District Court of Appeal rejected the defendant’s arguments on multiple grounds, which I will briefly summarize below:

  1. The Court saw no difference between a correction made by one of the Department’s commitment auditors and a judge’s correction in the reporting of time that an inmate has served toward a sentence when the error is brought to the court’s attention by the state or the court’s clerk. Neither correction implicates a defendant’s constitutional right to be free of double jeopardy.
  2. Correcting the time served to properly reflect that historical fact will not result in imprisonment for more than the maximum, and does not “increase the sentence.” Rather, the correction simply ensures that the defendant will serve the sentence judicially imposed.
  3. The United States Supreme Court has cautioned that the constitutional prohibition against double jeopardy should not be used to turn sentencing into “a game in which the wrong move by the judge means immunity for the prisoner.” That is exactly what would happen here if we were to hold that a judge could never correct a time-served calculation in the “typical” case.
  4. In addressing double jeopardy claims in the sentencing context, the United States Supreme Court has focused on the “legitimate expectations” of the defendant.  Meaning, the defendant’s only legitimate expectation should be to serve the full sentence imposed, and not catch a break because of a clerical error.
  5. It is appropriate to consider legitimate expectations of the victim of a particular crime involved in a case, and of society in general. Both should be able to legitimately expect that the crime will be punished, which includes a right to expect that a lawfully-imposed sentence will be fully served.

The bottom lime, a clerical error can be corrected at any time BEFORE the sentence would expire so that a defendant fulfills the sentence actually imposed.

My Prediction: A “Splitting of the Baby

My final prediction is that Judge Perry will essentially split the baby when resolving this issue.

On one hand, I am pretty sure he is probably not to pleased with the way Foghorn Leghorn accused Judge Strickland of engaging in fraud by entering an order Nunc Pro Tunc (which is a latin turn, meaning “now for then”). So when Judge Strickland issued the clarification order Nunc Pro Tunc, he was not saying that the events reflected in the minutes occurred on August 1, 2011; he was legally saying, although I am signing this document on August 1, 2011, they signature is to be retroactively applicable to when I originally signed the document January 25, 2010.

Also, with the State taking the position that Ms. Anthony should be on probation, he risks being reversed should the State appeal. This puts more pressure on him to rule correctly, as opposed to what would be easier – which is to get Ms. Anthony out of his hair for good.

On the other hand, by being the Chief Judge of the Ninth Judicial Circuit, he is also the defacto Chief Criminal Justice Administrator for the Ninth Judicial Circuit. Meaning he knows the State, law enforcement, and probation have better things to be doing than dealing with Ms. Anthony’s safety and her hoard of enemies she now has (never mind the hysteria should a violation ever be alleged).

And You Thought Judge Strickland Was Solomon Like

As a result I believe he will pull a Judge Strickland and be King Solomon like and “split the baby” by entering an order stating she is to be on probation, but that it will be Administrative Probation (which essentially means, don’t ever get arrested and you make it.)

P.S.

Between me and you, if he puts her on Administrative Probation, it would be an illegal sentence.

This is because Administrative Probation is part of a split-sentencing scheme that has to be authorized at the time it is originally imposed (meaning Judge Strickland would have had to impose it) and it requires the first half of her probation to be “supervised” before she can be placed on the “administrative” portion.

The court may also impose split probation whereby, upon satisfactory completion of half the term of probation, the Department of Corrections may place the offender on administrative probation for the remainder of the term of supervision. Florida Statute 948.012(3)

But at this point, any type of accountability would be palatable. Ms. Anthony and her shady band of lawyers beat the murder rap, there is no reason they should also beat a simple probation rap.

The Great Probation Debate

The Check Fraud Case

On Monday, January 25, 2010 Casey Anthony pleaded guilty Monday to 13 counts of check fraud. At the time of her plea, she was also being held in jail without bond on charges of murder, manslaughter, and lying to police.

Judge Strickland or Judge Solomon

In what can only be described as recognition of the chess game the State was playing with Ms. Anthony’s life by demanding the check fraud case go to trial first, Judge Strickland did not formally convict her on all 13 check fraud counts and instead threw her a lifeline by withholding the adjudication of guilt on 7 of the counts. (As I had predicted he would prior to the sentencing.)

By withholding guilt on 7 of the counts, Casey Anthony was only considered a six-time convicted felony; as opposed to a 13 time convicted felon. At the time, the felony convictions were extremely valuable to the State Attorney for impeachment purposes should Casey Anthony testify or her self-serving statements somehow be admitted (which Jose Baez almost opened the door too).

The “Catch”

But by withholding adjudication there was a legal catch. Under Florida Statute 948.01, a judge cannot withhold adjudication of guilt on a felony UNLESS they also place the person on probation.

And that is exactly what Judge Strickland did, even though everyone knew she was being held in jail on No Bond for the murder case, Judge Strickland ORALLY pronounced that she was sentenced to the 412 days she already spent in jail on the check fraud charges, but for each count he Withheld Adjudication of Guilt on, he also placed her on One Year of Supervised Probation to be served “once released.”

An Indefinite Sentence?

Almost immediately after Judge Strickland explained his sentence, Assistant State Attorney Frank George raised his concerns that such a sentence would be considered an “indefinite” sentence under Florida law (which is illegal) because Ms. Anthony would obviously be held in jail and therefore could not begin her probation for the foreseeable future.

Judge Strickland stuck with his original pronouncement and stated that if the State could think of a better idea, they should file a motion seeking the better idea. They never did.

The Confusion

While Judge Strickland’s intentions were clear, there seems to have been some confusion because the sentencing minutes that were generated after the hearing, and which Judge Strickland signed, simply stated credit for 412 days jail followed by one year of supervised probation. Notably, the sentencing minutes never contained the magical words “upon release” at the end of the sentence – not that they needed to.

And because the sentencing minutes lacked the magical words “upon release,” the Florida Department of Corrections unilaterally decided that her probation began running while she was in jail and her probation ended on January 24, 2011.

Presumably, the reason they interpreted it this way is that she was in jail awaiting trial, as opposed to serving a sentence. (Never mind she was ultimately sentenced to all the time spent awaiting trial and then some.) Thus by giving her credit for the time she spent in jail towards her probation she was allowed to double dip and essentially get a two for one.

And since nobody brought the Department of Corrections oversight to the court, no clarification was ever provided from Judge Strickland’s office.

Which brings us to the heart of the matter, was there a discrepancy between Judge Strickland’s oral sentence and the sentencing minutes in the first place. If so, did it even need to be clarified?

The Legality of Judge Strickland’s Sentence

To begin, the Florida Supreme Court has held time and time again that “a court’s oral pronouncement of sentence controls over the written document.” State v. Jones, 753 So. 2d 1276 (Fla. 2000) This principal was recently reaffirmed by the Florida Supreme Court in State v. Akins, 36 Fla. L. Weekly S215a (Fla. May 26, 2011) (“when there is a discrepancy between the written sentence and ‘the oral pronouncement, the oral pronouncement prevails.’)

As a result, even if there was a discrepancy between Judge Strickland’s oral pronouncement of sentence, where he said the probation was to begin “once released” and the written minutes that omitted these “magical words,” the oral sentence still controls – irrespective of how the defense or the Department of Corrections wants to interpret it.

Did Written Order Actually Conflict with Oral Sentence?

Nonetheless, even if the written sentencing minutes did not contain the magical words “upon release,” Judge Strickland did not legally have to even include them in his oral pronouncement for Casey Anthony’s probation to have begun “once released.”

This is because the general rule is that when a person is sentenced to incarceration followed by probation and the person completes the custodial portion of the sentence, but nonetheless remains incarcerated on another offense, the probationary portion is tolled (meaning does not begin) until the person is released from incarceration in the other case being held on. See Brooks v. State, 762 So. 2d 1011 (Fla. 5th DCA 2000). This means that absent specific language stating that Casey Anthony’s probation was to run while she remained in jail, her probation was tolled by operation of law – Judge Strickland was not required to include any magical language stating “upon release.”

Does the Defense have a Legitimate Double Jeopardy Argument?

Actually, the defense has TWO legitimate Double Jeopardy arguments.

Argument 1: Being Supervised Twice

The first argument is that requiring Casey Anthony to report to probation now amounts to double jeopardy since the Department of Corrections already “supervised” her for one year while she was in jail.

The problem with this argument is that Casey Anthony never actually did anything; a probation officer visited her at least one time and then verified her continued incarceration for the next twelve months (thus accounting for the “contacts” DOC references – read look her up online). My gut feeling is that a Court of appeals would not be to sympathetic to Ms. Anthony, because she was not actually reporting to probation and there was no impediment placed on her liberty.

I think an appellate court would say that one that the Department of Corrections actions did not amount to supervision and two, they could not supervise someone without lawful authority. And as explained earlier, a person cannot serve probation while in jail (unless the jail is made a specific condition of probation).

Argument 2: “Clarification Order” is Void

The second argument is that Judge Strickland’s Clarification Order amounts to double jeopardy because Casey Anthony had already served her sentence and the Judge’s jurisdiction to clarify the sentence had long since expired. Therefore, once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles. Ashley v. State, 850 So. 2d 1265 (Fla. 2003)

Scrivener’s Error

On its face, this argument is correct. As a Judge only has 60 days from the date of a sentence to correct a scrivener’s error, which refers to a mistake in the written sentence that is at variance with the oral pronouncement of sentence or the record but not those errors that are the result of a judicial determination or error. Rule 3.800 Fla.R.Crim.Pro.

In Ms. Anthony’s case, the judge’s 60 days of jurisdiction expired on March 26, 2010. As a result, the “Clarification Order” entered by Judge Strickland is void, illegal, and unenforceable. Stang v. State, 24 So. 3d 566 (Fla. 2d DCA 2009); rev. denied. State v. Stang, 41 So. 3d 206 (Fla. 2010).

Warren Stang and Casey Anthony Sitting in a Tree, Dou-ble Jeop-ar-dy

Stang is an important case because on its face it is very similar to Ms. Anthony’s case. In Stang’s case, he was sentenced to consecutive sentences on multiple counts in a violation of probation case and given a total of 27 years in prison. Notably, the oral sentencing pronouncement intended for him to get credit for 1,915 days towards the 27 years; meaning he would have about 23 more years to do.

However, his sentencing minutes appeared to give him 1,915 days credit towards each count. The net result was that he only had 2 more months on his sentence, not 23 years. The Department of Corrections noticed this and asked the judge to clarify his sentence. So 67 days after the sentence was imposed, the court entered a “Clarification Order” (sound familiar) saying that the credit was towards the total years, not each count.

The appellate court upheld the two month interpretation, finding that the Court lacked jurisdiction to clarify the order because more than 60 days passed and finding that based on double jeopardy, once credit has been awarded, it cannot be rescinded – even if granted in complete error.

What is notable about this case is that the State Attorney’s Office never challenged the defendant’s post-conviction motions on the merits. Because if they had, the transcripts of the oral pronouncement shows that the credit was only given towards the years, not each count.

And this is notable, because the case went all the way to the Florida Supreme Court; and the Florida Supreme Court denied review of the case specifically because the State Attorney did not provide the transcripts until after the case had been affirmed by the District Court of Appeal (meaning the State simply argued the case based on the sentencing minutes and did not get the hearing transcribed). See State v. Stang, 41 So. 3d 206 (Fla. 2010).

What the clear indication of this procedural defense means is that had the transcript originally been provided to the lower courts; the Florida Supreme Court would likely have agreed that the oral sentence controls and Mr. Stang had 24 more years in prison to complete.

The Current Situation

This brings us to the current situation in Ms. Anthony’s case. It is understood that the defense will first file a Motion to Disqualify or recuse Judge Strickland. I have no doubt that Judge Strickland will grant his request and the case will then be turned over to a new judge.

Can the Successor Judge Vacate Judge Strickland’s Clarification Order

The Defense will have 20 days to file a Motion for Reconsideration asking the successor judge to vacate the Clarification Order entered by Judge Strickland. See Rule 2.330, Fla.R.Jud.Admin.

It is my opinion that the new judge will likely agree to vacate Judge Strickland’s Clarification Order, as it is clearly Void and unenforceable under Stang v. State, 24 So. 3d 566 (Fla. 2d DCA 2009)

Coming Full Circle

However, just because Judge Strickland’s Clarification Order is void and unenforceable; it does not mean his original sentence is unenforceable.

To the contrary, Judge Strickland’s original sentence still controls and the Department of Corrections – as a member of the executive branch – has a duty to enforce it. This is because, by operation of law, Ms. Anthony’s probation was tolled while she was in jail awaiting trial on the murder case.

If the defense wants to then argue that she was supervised in jail and thus double jeopardy prevents her from being supervised again; by all means, they should argue it – I know I would.

But that has been my point from the very beginning, it is not for the State Attorney or the Department of Corrections to decide whether requiring Ms. Anthony to report to probation as Judge Strickland intended amounts to Double Jeopardy – it is up to a court to decide.

Have Some Balls Lawson Lamar; Defend Strickland’s Sentence

I know next year is an election year and you want to distance yourself from Ms. Anthony and the boondogle of a prosecution you put on lest a formidable opponent emerge to run against you.

But seriously, the Very Honorable Lawson Lamar needs to grow a sack and defend Judge Strickland’s sentence and provide this community with some sense that you aren’t afraid of big bad lawyers like Mike Snure, Donald Lykkebak, and “gulp,” Cheney Mason, who make mince-meat our of your high profile cases.

If you thought she was such a danger to society that you were committed enough to have her executed, I think you should be committed enough to at least try and have the Department of Corrections execute a simple probation sentence on her for one year.

If you don’t, the irony is indeed rich that Jose Baez and Cheney Mason ultimately made you their Bitch.

For Whom the Sentences Toll

Some would say that Casey Anthony got away with murder, personally I think she’s getting away with Lying and Check Fraud…

The Check Fraud Case

On January 25, 2010 Casey Anthony pled guilty to 13 counts of check fraud. As a result of her guilty plea, the Honorable Judge Stan Strickland adjudicated her guilty on six of the felonies, withheld adjudication of guilt on the other seven, and sentenced her to 412 days in jail as credit for the time she previously served to be followed by one year of supervised probation.

The 412 days was based upon the amount of time between her arrest and the date of her plea.

Importantly, as will be explained, Ms. Anthony has yet to be released from the Orange County Jail to actually serve her one year of probation, as she was also being held in the Orange County Jail on another, more serious case.

The More Serious Case

On July 5, 2011 Ms. Anthony was acquitted of the most serious crimes she was charged with and was instead, only found guilty of four First Degree Misdemeanor counts of Lying to a Law Enforcement Officer during the Course of an Investigation. Based upon the jury’s verdict, the maximum sentence Ms. Anthony could receive was four years in the Orange County Jail and $4,000 in fines. The Very Honorable Judge Belvin Perry set off sentencing until July 7, 2011.

A Serious Sentence for a Serious Case

On July 7, 2011 The Very Honorable Judge Belvin Perry sentenced Ms. Anthony to consecutive sentences of one year in the county jail with credit for 1,043 days already served in the Orange County Jail awaiting trial. In addition, he imposed a fine of $1,000 on each count. The resulting sentence totaled four years in the Orange County Jail and $4,000 in fines, which on paper, looks to be the maximum possible sentence The Very Honorable Judge Belvin Perry could have handed down.

But Casey, We Were Just Getting to Know You!

About an hour later, Orange County Corrections announced that after taking into account the 1,043 days credit for time served, as well as good time and gain time, Ms. Anthony would be released from the Orange County Jail by Sunday, July 17, 2011.

Later that same day, Orange County Sheriff Jerry Demings released a statement haling the Very Honorable “Judge Belvin Perry, Jr. for giving the maximum sentence allowable under the law.”

And to Think, We Could Have Spent More Time Together…

There is only one problem, it was not the maximum sentence allowable under the law.

Rather, the maximum sentence allowable under the law would have been for The Very Honorable Judge Belvin Perry to have sentenced Ms. Anthony to consecutive sentences of one year in the county jail with credit for 631 days already served in the Orange County Jail awaiting trial.

But how can that be you say! She has been in jail for 1,043 days, not 631?

Under Florida law, a judge is not required to give a defendant credit for time previously served on unrelated sentences while awaiting trial. See Jackson v. State, 23 So. 3d 853 (Fla. 2d DCA 2009) (“Where a defendant is held to answer for numerous charges, he is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition of multiple charges or cases.”); See also Hardenbrook v. State, 953 So. 2d 717 (Fla. 1st DCA 2007).

What this means is that the Very Honorable Judge Belvin Perry had the authority to deny Ms. Anthony credit for 412 of the 1,043 days he credited her with previously serving, as that time had been credited to her already by the Honorable Stan Strickland on the Check Fraud Charges.

If the Very Honorable Judge Belvin Perry had exercised his judicial discretion to do so, Ms. Anthony would likely be spending at least 9 more months in the Orange County Jail after taking into account good time and gain time.

There Are No Do-Overs

And before you ask, I am sorry to say it is too late for the State to request a rehearing. The case law is crystal clear; once a sentence is imposed, it can not be modified to the detriment of the defendant. See Stang v. State, 24 So. 3d 566, 570 (Fla. 2d DCA 2009) (“The Courts have repeatedly held that a trial court may not rescind jail credit that was previously awarded, even if the initial award was improper, because such an action violates double jeopardy.”)

Well, She Still Has One Year of Felony Probation…

Luckily for us, Ms. Anthony does still has one year of felony probation to serve on her Check Fraud convictions…. Hold on, wait a sec, what’s that?

Beth Karas on Prime News with Vinnie Politan is reporting that Cheney Mason claims:

“Ms. Anthony has served her probation (while in jail)  and when she leaves on Wednesday she is a free agent, can go anywhere she wants…”

Now looka, I say looka here son;  maybe that Mason fella just might be on to something. According to a January 29, 2010 article by the Orlando Sentinel, Ms. Anthony’s probation was scheduled to end on January 24, 2011 … Ruh, Ro! That was six months ago…

Please, Say it Ain’t So…

It ain’t so, or at least it shouldn’t be.

This is because Florida law is very clear that Ms. Anthony’s probationary period was tolled while she was incarcerated awaiting trial on that serious case we discussed earlier. See Bradley v. State, 721 So. 2d 775 (Fla. 5th DCA 1998) (Finding the defendant’s “term of state supervision was tolled during period defendant was incarcerated on an unrelated case.”); See also Brooks v. State, 762 So. 2d 1011 (Fla. 5th DCA 2000) (Defendant “erroneously contends that he completed his split sentence while incarcerated before he began his probation. He cannot have successfully completed a split sentence if he never served the probationary part, even when the sentence is a “true split” sentence. Additionally, because he was incarcerated on another offense at the time he was released from the custodial portion of his sentence in this case, defendant’s probation was tolled until he was paroled in his other case.”) See also Schurman v. State, 847 So. 2d 569 (Fla. 1st DCA 2003)  (“Although the incarcerative portion of his sentence in Case No. 93-202 may have expired prior to his release from prison in May 1998, the probationary portion of that sentence was tolled while he remained in prison on other sentences, and it did not begin to run until appellant was released in May 1998. Therefore, his probationary sentence in Case No. 93-202 was [still] in effect upon his release.”)

Finally, it is worth pointing out that the fundamental reasoning behind this line of cases is that “the underlying concept of probation is rehabilitation rather than punishment and presupposes the fact that probationer is not in prison confinement.”  Hatton v. State, 689 So. 2d 1195 (Fla. 4th DCA 1997)

The Law is Only the Law

Notably, the Florida Department of Corrections Offender Lookup website no longer lists Casey Anthony as a probationer, which means they agree with Mr. Mason’s interpretation.

So while the law may say Casey Anthony should still be on one year of felony probation when she is released, the law “don’t mean a hill of beans” if neither the State or the defendant follow the law.

A Final Single Finger Salute to J. Cheney Mason

Finally, I wanted to give a single finger salute to J. Cheney Mason. During Mr. Mason’s (very deserved) victory speech, he declared:

I say that dog is lower than a snake full of buckshot

“Bias and prejudice and incompetent ‘talking heads’ saying what would be and how to be — I’m disgusted by some of the lawyers that have done this. I can tell you that my colleagues from coast to coast and border to border have condemned this whole process of lawyers getting on television and talking about cases they don’t know a damn thing about.”

Mr. Mason ended that sissy fit with a proclamation that the “talking heads” would be hearing from him and his team.

The following day I received several phone calls from various sources and reporters who indicated that J. Cheney Mason had, in fact, not been sleeping through most of Ms. Anthony’s trial as we all suspected.

Rather he had actually spent that time compiling a list of “talking head” attorneys that he was going to go after, alleging either defamation or violation of the Florida Rules of Professional Conduct.

I was allegedly confirmed to be one of those “talking head” attorneys.

Well J. Cheney Mason, I have only one response to that.

Call me, I’m waiting…

Cheney, my office number is (407) 540-1551, so instead of cornering reporters and brow beating them for quoting me, feel free to pick up the phone like a man and call me whenever you “want to talk” about what has gotten your boots so tight.

But since I doubt you would ever do that, here are four other suggestions for you to consider:

  1. Brush up on the word Hypocrite.
  2. Review your own commentary about Jose Baez and Ms. Anthony’s case.
    • “You can pretty well predict there’s going to be a life sentence, either a plea and get it over with or have a circus trial and then be convicted and get life.” – J. Cheney Mason (12/12/2008)
    • “Then all the talking, all the press interviews and the parents going on this show and that show and the lawyer [Jose Baez] going on different shows establishes they have no credibility whatsoever.” – J. Cheney Mason (12/12/2008)
  3. Read this little gem on the First Amendment.
  4. Sit on this and rotate 🙂

Top 10 Reasons Casey Anthony will not Testify

10. She could pick up the phone to call 911 over some pesky protesters, but not when her daughter supposedly drowned? I don’t think so.

9. You wouldn’t want to testify either if Jose Baez or Cheney Mason hadn’t visited you in jail since June 12, 2011.

8. Cheney Mason is so close to death, blow flies are circling over his head.

7. What’s the rush to lock in her testimony now? There’s only a 99% chance of a reversal on appeal due to ineffective assistance of counsel.

6. You think its bad that Cheney Mason screwed up by letting your mother admit to accusing you of stealing from her, wait until the jury finds out you were convicted of Six Felony Check Fraud counts for stealing from your “best friend.”

5. Linda Drane Burdick, need I say more?

4. Standing next to your lawyer during a press conference after your’e indictment for First Degree Murder while wearing a “Help find Caylee Button” is never a good idea when you knew your daughter drowned four months earlier.

3. You wouldn’t want to testify either if you had Jose Baez as your attorney.

2. When your lawyer accused every witness before you of capitalizing on your daughter’s death, you too would be a wee bit concerned about how the jury would react to hearing the two of you cashed in for a cool $200K Dollars in blood money from ABC.

1. Jeff Ashton, Homey Don’t Play That!.

Alternative Viewpoints on the Casey Anthony Trial

For those religious followers of the Casey Anthony trial, I thought you might enjoy some alternative view points from  respected attorneys around the blogosphere, who have not been commenting on the case on a daily basis, about the Casey Anthony trial.

Mark Bennett: A Lesson From the Casey Anthony Trial

Brian Tannebaum: No One Would Like My Commentary On The Casey Anthony Case

Did Judge Perry make a rather large boo-boo?

First, please don’t shoot the messenger.

Second, I think Judge Perry made a rather large boo-boo…

Third, read Sparkman v. State, 902 So. 2d 253 (Fla. 4th DCA 2005) to see why…

Sparkman and the Tape

First Comes the Tape, Next Comes the Objection

During trial, when the state offered the videotape of Sparkman’s statement to Brock, Sparkman objected  […] Defense counsel admitted that the prosecutor had asked him to review the tape and provide his objections pre-trial, but he declined to do so.

The prosecutor also excised two portions on his own, which as an officer of the court he felt needed to be removed. The prosecutor explained that defense counsel knew that it would take a full day to edit the tape and that the court did not want the jury waiting that long.

Then comes the trial Judge’s response…

The trial court ruled that Sparkman’s contemporaneous objections were untimely because Sparkman should have filed a pre-trial motion pursuant to Rule 3.190 of the Florida Rules of Criminal Procedure: “Now the defense wants the court to hear in round numbers somewhat less than a hundred objections they have to the state’s two and a half hour taped statement when the grounds for these objections were known some fifteen months ago.” The court considered the objections waived and refused to address them on the merits.

Now comes the Appellate Court’s Take…

The first issue presented is a purely legal question — whether Sparkman’s objections to Brock’s statements had to be made pretrial.

While it is always good practice for counsel to raise known objections pretrial, and counsel may be compelled to do so by order of the court, Rule 3.190 does not require Sparkman to object pretrial to raise the instant issue.

Rule 3.190 addresses the necessity of pretrial objections for a “Motion to Suppress Evidence in Unlawful Search” and a “Motion to Suppress a Confession or Admission Illegally Obtained.” Fla. R.Crim. P. 3.190(h), (i). Nowhere in Rule 3.190 is a party required to object pretrial to the interviewing officer’s legally obtained statements, if such objections go to specific questions or answers within the statement.

Did Judge Perry Actually Enter an Order on the Issue?

So the question then is whether Judge Perry specifically stated that the parties were to make pretrial objections to statements of Casey Anthony’s that would be introduced, if the objections were to relevancy, hearsay, or some other purely evidentiary issue.

  • Amended Proposed Order Setting Discovery Motion & Hearing Deadlines & Trial Date
  • Order Setting Case Management Hearing
  • Order Setting Motion Hearings
  • Order Regarding Deposition Schedule
  • Amended Order Setting Discovery, Motions & Hearing Deadlines & Trial Date

The only order entered by Judge Perry that addressed the issue, was a general statement in paragraph 5 of the Amended Order Setting Discovery, Motions & Hearing Deadlines & Trial Date.

But the question remains, will the appellate courts find that was sufficient notice, given that the primary focus of the order was on discovery, not evidentiary issues?

Whatever happened to Sparkman?

Oh, and how did the Appellate Court Rule?

In this case, the error was not harmless because Brock’s out-of-court comments as to what he believed happened and that he believed Sparkman killed Courtney were so prejudicial that the erroneous admission of the statements cannot be considered harmless beyond a reasonable doubt. Id. at 1135. We therefore reverse Sparkman’s conviction and remand this case to the trial court.

The Ineffectiveness Assistance of Jose Baez, Cheney Mason, Et. Al.

My personal opinion is that Jose Baez is screwing up so bad, that even if this issue alone was not enough to warrant a reversal due to Judge Perry’s generic statement in Paragraph 6, the combination of errors will cause the case to be reversed no matter what Casey is convicted of (and if she is convicted of course).

I have a feeling that Judge Perry is going to end up allowing in Baez’s late witnesses and discovery come Saturday at the show cause hearing because this case is becoming one of those rare cases “where the incompetence and ineffectiveness of counsel is apparent on the face of the record and prejudice to the defendant is [so] obvious” that the “appellate courts will address [the ineffective assistance of counsel] issue on direct appeal.” Aversano v. State, 966 So. 2d 493 (Fla. 4th DCA 2007).

Another fun read for those dreading a retrial one day is Johnson v. State, 796 So. 2d 1227 (Fla. 4th DCA 2001) (“A reasonably effective criminal defense attorney must keep himself or herself informed of significant developments in the criminal law, including decisions of other district courts around Florida. […] The ineffectiveness thus appears on the face of the record”).

Baez, Lippman, and the Scandalous Allegations

Many people are speculating on what the motion filed by George and Cindy Anthony’s attorney Mark Lippman is about.

Below is my opinion that I posted on Websleuth’s regarding what it is likely about, as well as my post on why Jose Baez can  make such scandalous allegations in the first place.

Mark Lippman’s Likely Motion?

FYI: It has been verified that Mr. Lippman is filing a motion on behalf of Lee Anthony for Lee to also be present during the trial.

I think the motion is one the state probably should have filed, which is a motion in limine to prohibit the defense team from insinuating George molested Casey in questioning until such time as someone has actually testified to it (i.e. Casey Anthony).

The state should have probably made the motion immedietly after the opening statements, as it is improper for a lawyer to ask questions of witnesses that imply facts not in evidence or that the lawyer does not have a good faith belief will be established by the eventual evidence.

Ironically, this opening statement issue came up in what many consider “the case” that led to Nancy Grace’s fall from grace (pun intended) as a prosecutor. See Carr v. State, 482 SE 2d at 322 (GA. 1997) (“The transcript of the opening argument shows that the prosecuting attorney (Nancy Grace) repeatedly made references to physical abuse although the trial court had ruled out all evidence of purported abuse. There is no occasion and no excuse for attempting to influence the jury in advance by improper statements as to evidence which counsel knows he cannot prove or will not be permitted to introduce.”)

Anyway, as you can see from the case involving Nancy Grace, if argued correctly, Lippman’s motion would force Baez to proffer to the court how be believes in good faith he will establish George molested Casey to support his defense theory.

If his proffer does not involve him stating on the record that Casey (or someone else) will testify to it, the judge would likely prohibit him from pursuing the line of questioning or insinuating such scandalous allegations through his questioning. (That is, unless the Judge finds the Anthony’s don’t have standing for such a motion – in which case the State should adopt the motion.)

Speaking of Baez’s Scandalous Allegations

The general rule is that a defense attorney [any attorney actually] enjoys “absolute immunity [from law suit] in any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior . . . so long as the act has some relation to the proceeding.” Delmonico v. Traynor, 50 So. 3d 4 (Fla. 4th DCA 2010).

In this case, Jose Baez’s scandalous allegations were made in arguing a defense of his client and would therefore be considered rationally related to the proceeding. As such, he is entitled to absolute immunity for the allegations he made against George, no matter how damaging they are.

With that said, if it could be proven that he actually fabricated the allegations, he would likely be disciplined by the Florida Bar.

Additionally, while George could not pursue Baez if Baez was just restating what a witness told him, he could nonetheless sue the person who made the statement to Baez.

In this case, it would likely be Casey Anthony who would be the person making the defamatory statements, so George would most likely not pursue the matter.