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!)

Poor George wants a Bond

So George Zimmerman wants a reasonable bond?

This in itself is not surprising, most every client I have ever represented wanted a reasonable bond.

However, few of my clients ever had a quarter million dollar defense fund, and most importantly few of my clients have ever been caught blatantly misleading a judge about the nature of their assets. (Although I am sure many a defendant before George Zimmerman has lied about their actual assets.)

Does George Zimmerman deserve a bond, in my humble opinion, before his misleading of the court, yes and he deserved a bond much lower than what it was set at. The evidence against him is severely underwhelming. And I believe that the $150,000 bond initially imposed was four times what would have been imposed in a less newsworthy case.

However, I also have little sympathy for the way George Zimmerman allowed the court to be misled regarding his true finances. Killing someone, no matter what the circumstances, should never be a reason to come into a financial windfall and then lie about it.

But more importantly, if the financial windfall is for purposes of defending yourself, it should only be used for that reason; not hid so that you can maximize the amount you get to keep when all is said and done.

So with that said, here are a few things to consider about today’s bond hearing:

The Integrity of the Judicial System

As Mark O’Mara points out, Article 1, Section 14 of the Florida Constitution provides that:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

As you can see, in Florida there is a presumption that a person is entitled to bond and only under three limited circumstances can a judge deny a person bond.

So dispensing with irrational argument for the moment, which would be pure hyperbole and speculation, there is no evidence that George Zimmerman poses a threat to the community or that he will not appear at trial.

To the contrary, the evidence seems to suggest that certain segments of the community pose a threat to George and that he has gone out of his way to cooperate with law enforcement. (In a million years, I would never believe  a person who thought they were guilty would willingly scream help for police so they could get voice samples).

So that leaves us with assuring the integrity of the judicial system; the most troubling issue Judge Lester must grapple with today.

Interestingly, Wells Fargo v. Reeves (Fla. 1st DCA June 13, 2012) is a mortgage foreclosure appeal that recently discussed a similar scenario where the integrity of the judicial system was at issue. (And although this opinion speaks in terms of dismissal of a foreclosure suit as a sanction, the corollary sanction in George Zimmerman’s case would be a denial of bond.) In this decision, the First DCA said:

Fraud upon the court is an egregious offense against the integrity of the judicial system and is more than a simple assertion of facts in a pleading which might later fail for lack of proof. Rather the requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.

To support dismissal for fraud on the court, the party alleging fraudulent behavior must prove such by clear and convincing evidence. Inartful pleadings, inconsistent testimony, and even lying to the court by a witness are generally insufficient to support a dismissal for fraud upon the court.

However, the power to dismiss a case for fraud upon the court is an extraordinary remedy found only in cases where a deliberate scheme to subvert the judicial process has been clearly and convincingly proved. A court certainly possesses the authority to protect judicial integrity in the litigation process.  The authority to dismiss actions for fraud or collusion should be used cautiously and sparingly, and only upon the most blatant showing of fraud, pretense, collusion, or other similar wrong doing.

While ultimately the Court reversed the dismissal of the foreclosure action, it seemed to do more on the possibility of good faith defenses that were ignored by the trial court, rather than explicit findings of fraud.

However in George Zimmerman’s case, the judge explicitly made findings of fraud. And so even if George Zimmerman admits his failure to come clean at the initial bond hearing was “wrong” and he “accepts responsibility” (does he have a choice), I believe Judge Lester would be well within his rights to deny George Zimmerman a bond based upon he and his wife’s collusion.

The Trust Fund Defendant

A lot has been made by Mark O’Mara about the defense trust fund, which George Zimmerman supposedly has no control over.

While I don’t doubt that the intent is for Mark to spend the donated money on George Zimmerman’s defense (and by definition his lawyers’ fees), make no mistake at all – that money is George Zimmerman’s. George Zimmerman has complete control, authority, and final say as to where any of that money is spent. If there is any doubt as to the truth of this conclusion, one need look no further than Florida Bar Rule 5-1.1, Rules Regulating Trust Accounts.

On a side note, I have heard of trust-fund babies, but never trust-fund defendants – just saying.

Might Mark O’Mara Secretly Hope Lester Denies Bond

First, Mark O’Mara is one of the most professional and ethical attorneys I am acquainted with, so I discuss this more for hypothetical sake than anything.

With that said, we also know that Mark O’Mara originally was going to represent George Zimmerman Pro Bono, even though he claimed to normally charge in the $400/hour range. He was also going to ask to have Zimemrman declared indigent for costs, in which case the state would pick up the defense costs (due process costs).

But then he found out about that George Zimmerman had in the neighborhood of $250,000 stashed away in his defense fund. While that is less than what the accused acquitted baby killer had available, it is still more than 99% of criminal defendants will ever have available to defend themselves.

Needless to say, Mark O’Mara was probably pretty relieved about his decision to take on the case pro bono, but also pretty happy. Because I don’t care how much you claim to charge an hour (you listening Foghorn Leghorn?), the truth is that clients that can actually afford such an hourly amount are few and far between. More often than not, a criminal lawyer agrees to a flat fee that is paid regardless of how many hours are put into a case.

However, if Judge Lester now set an extremely high bond, say two million dollars, it will likely put Mark O’Mara back in the pro bono category and the State back on the hook for George Zimmerman’s defense costs. Why?

In Florida, and most states, when a person is granted bond, they can satisfy the bond in one of two ways:

  1. Post a Cash Bond for the Full Amount; or
  2. Post a Surety Bond through a bondsman.

Obviously, if the bond is set at more than what George Zimmerman defense fund has, he would have to post a surety bond. However, the posting of a surety bond comes with a hitch: the defendant must pay the bondsman 10% of the bond value. This is known as a Bail-Bond Premium.

Therefore, if Judge Lester sets bond at the two million dollar mark, 10% of the bond premium will be $200K. While not a bad day’s work for a bondsman, it’s a real bad day for the person paying the premium unless the money was never yours in the first place (or at least earned).

So you can bet your bottom dollar that George Zimmerman is not going to hesitate using his donated money to get his butt out of jail as quickly as he can; and there is nothing Mark O’Mara can do or say to stop him from using the defense fund money to pay the Bail-Bond premium.

On the other hand, if the judge denies bail, finding that the integrity of the judicial system cannot be assured, then Mark O’Mara can continue to bill his $400/hour (I wonder if George Zimmerman ever negotiated a contract before he told Mark about the defense fund) and the state of Florida will avoid spending a ton of money on George Zimmerman’s defense while Mark O’Mara spends countless days deposing witnesses that Ben Crump has already gotten a hold of.

Legally, Who Was the First Aggressor?

Sticks and stones
May break my bones
But words will never hurt me

As many commentators have opined, including myself, Angela Corey’s probable cause affidavit to support a charge of Second Degree Murder is not only a stretch, but extremely lacking in objective facts.

Boiled down to its essential elements, the probable cause affidavit reads:

  1. “Trayvon Martin was on his way back to a townhouse where he was living when he was profiled by George Zimmerman.”
  2. Zimmerman called the non-emergency police number and pursued Martin.
  3. When the dispatcher realized Zimmerman was pursing Martin, he instructed Zimmerman “not to do that and an officer would meet him.”
  4. “Martin attempted to run home, but was followed by Zimmerman.”
  5. “Zimmerman confronted Martin and a struggle ensued.”
  6. “Martin died from a gunshot wound.”

As was highlighted by Zimmerman’s attorney, Mark O’Mara, the prosecution engaged in selective word use when drafting their probable cause affidavit.

Where followed would have been appropriate, they used “pursued.” Where approached could have been used, they used “confronted.”

Which begs the question; why? Why did Angela Corey elect to use such specific language in the probable cause affidavit?

The answer is quite simple, in order to survive the inevitable Motion to Dismiss based upon Self Defense that will be filed by George Zimmerman’s attorney, she must convince the judge that Zimmerman was the “First Aggressor.”

The First Aggressor Rule

The First Aggressor Rule is a rather simple common law rule that says “a defendant who provokes an encounter as a result of which he finds it necessary to use deadly force to defend himself, is guilty of an unlawful homicide and cannot claim that he acted in self-defense.” Wharton’s Criminal Law, Sec. 136 Provocation by Defendant. See also Wallace v. United States, 162 US 466 (1896).

Florida has codified the First Aggressor Rule into Florida Statute 776.041(2) (Use of force by aggressor), which states: “The justification [to use self defense] is not available to a person who initially provokes the use of force against himself or herself.”

So if George Zimmerman is to be the aggressor, and thus forfeit his right to self defense, it must be shown that he “provoked” Trayvon Martin to attack him in someway.

This begs the question though, what would constitute sufficient provocation by George Zimmerman such that he would forfeit right to self-defense?

Sufficient Provocation

According to Wharton’s Criminal Law treatise, an encounter is provoked, thereby branding the defendant as an aggressor and stripping him of his right to self-defense, where the defendant:

  • Assaulted the deceased;
  • Unlawfully arrested the deceased;
  • Fires the first shot in a standoff;
  • Leaves a fight, only to return with a weapon; and
  • Is caught sleeping with the deceased’s wife.

Insufficient Provocation

On the other hand, Wharton’s Criminal Law states that a defendant does not become an aggressor where the defendant:

  • Demands an explanation of offensive words or conduct;
  • Discusses settlement of a claim;
  • Discusses a sensitive subject;
  • Hurls inappropriate language and insulting epithets;
  • Engages in an inconsiderate act;
  • Travels near a neighbor who has previously threatened him;
  • Arms himself to repel an anticipated attack, while going about normal business;
  • Provides an opportunity for conflict, but does not cause it; and
  • Arms himself with the intent to cause a conflict with the deceased, but does not perform an act manifesting his subjective intent to cause the conflict.

This line of reasoning was followed in Gibbs v. State, 789 So. 2d 443 (Fla. 4th DCA 2001), which held that hurling racial slurs at another person does not constitute provocation, rather the defendant’s provocation must be done “by force or the threat of force.”

Legally, who was the Aggressor?

With examples of sufficient and insufficient provocation as a backdrop, the question turns to what evidence does the State have that George Zimmerman legally provoked the altercation between he and Trayvon Martin?

Noticeably absent from the Probable Cause affidavit was any evidence of who provoked the fight; but we do know that George Zimmerman claims that it was Trayvon Martin who not only followed him back to his car, but who also threw the first punch. If that is true, or goes un-rebutted by the State, then Trayvon Martin was clearly the first aggressor as a matter of law.

And while we have not had an opportunity to review George Zimmerman’s statement in its entirety, based upon what we do know, there does not appear to be any evidence that would contradict his account of Trayvon Martin throwing the first punch.

Thus there would seem to be no evidence that George Zimmerman legally provoked the fight. And if he did not legally provoke the fight, then he cannot be considered the First Aggressor.

Assuming George was the First Aggressor

Although it is my opinion that there is no evidence to support the conclusion that George Zimmerman was the aggressor as a matter of law. Let’s assume for the minute that Trayvon Martin was lawfully defending himself because he was provoked by George Zimmerman’s “pursuing” of him; the questions then need to be asked:

  1. Did George Zimmerman forfeit his right to self defense entirely; and
  2. Could Trayvon Martin respond with disproportional force to the initial “confrontation.”

The answer to both of these question is No. George Zimmerman did not forfeit his right to defend himself entirely and Trayvon Martin could not resort to Deadly Force simply because he was being “pursued” or was subsequently “confronted” by George Zimmerman.

Disproportionate Force Exception

Codified in Florida Statute 776.041(2)(a), the “Disproportionate Force” exception qualifies “The First Aggressor Rule” and provides limited circumstances by which an initial aggressor’s right to self defense is restored.

The exception holds that even if a defendant “initially provokes the use of force against himself” if the response is disproportionate to the initial provocation, then the defendant’s right to self defense is restored.

More importantly, he can resort to deadly force if he has no means of escape and reasonably believes that deadly force is necessary to defend himself against the disproportionate reaction by the other party.

In George Zimmerman’s case, it seems pretty clear that he found himself on his back and was having his head hit against a hard surface. We also know, based upon the funeral director’s statements, that Trayvon Martin did not have any noticeable injuries.

Thus the safe conclusion would be that Trayvon Martin had George Zimmerman in a compromising position that, in my opinion, would have been disproportionate to any perceived or real provocation made by George Zimmerman.

And if George Zimmerman did find himself on his back, was having his head hit against a hard surface, and felt his only choice was to use his weapon to defend himself against Trayvon Martin’s disproportionate response, then his use of deadly force to defend himself would have been excusable homicide.

As a result, the charge of Second Degree Murder would be subject to dismissal under Florida’s self-defense law.

Trayvon Martin’s Death is not a Stand Your Ground Case – Sort Of

In the wake of Trayvon Martin’s death, Florida’s Stand Your Ground Law has come under fire from anti-gun activists, the media, and Trayvon Martin’s family and supporters.

In response, Republican politicians (and George Zimmerman’s attorney) have defended the law by stating that the Trayvon Martin case is not a Stand Your Ground case.

Well, I agree, this is Not a Stand Your Ground case… Sort of.

In order to understand why this is not a Stand Your Ground case, you need to understand the state of Self Defense law in Florida prior to the passage of the Stand Your Ground Act and the State of Florida Self Defense law now.

Self Defense in Florida Then

Prior to the passing of the Stand Your Ground Law, a person could only use deadly force if it was reasonably necessary to prevent death or great bodily harm to him or herself.

The instructions for making this determination is found in Florida’s jury instruction on deadly force, which states:

In deciding whether a defendant was justified in the use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real, that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force.

Additionally, the ability to use deadly force was further tempered by two long standing legal principles:

  1. Retreat to the Wall: “Before taking a life, a combatant must ‘retreat to the wall’ using all means in his power to avoid” the need to use deadly force unless retreating would be futile Hunter v. State, 687 So. 2d 277 (Fla. 5th DCA 1997).
  2. Castle Doctrine: If a person is attacked in his own home or premises (i.e. his Castle), he has no duty to retreat and had the lawful right to stand his ground and meet force with force, even deadly force, if it was necessary to prevent death or great bodily harm. State v. Bobbitt, 415 So. 2d 724 (Fla. 1982).

As a result, under the old self-defense law, even if a person reasonably believed they needed to use deadly force, if it could not be shown they either (1) used all means necessary to retreat or (2) were in their home or premises; they could be found guilty of the charged homicide (whether it be murder or manslaughter).

The Provocation Exception

One final exception to the use of deadly force is found in Florida Statute 776.041, which states that a person can not justify the use of deadly force if they initially provoked the altercation.

But for every exception, there is yet another exception. So under 776.041, even if a person provokes a fight against themselves, they can still use deadly force if the person they provoked responds with disproportionate force. Meaning a person starts a fist fight and the other person pulls out a knife.

This statute remains unchanged under Florida’s current Stand Your Ground law and, as explained below, will likely play a major role in the outcome of George Zimmerman’s case.

Arrest First, Ask Questions Later

Importantly, under the old law, self-defense was not something that law enforcement were expected to give much thought to if someone was killed. In such cases the old adage applied: arrest first, ask questions later.

If there was even the slightest doubt as to the defendant’s story, a law enforcement officer could arrest someone without any fear of civil repercussion in the form of a false arrest suit. (Not that have I ever heard of a law enforcement officer being sued for arresting someone who killed another person.)

Let the Jury Figure it Out

And while prosecutors are not supposed to charge people with crimes that they do not believe can be proven beyond a reasonable doubt, the reality is that prosecutors routinely bend to public pressure and charged people with manslaughter even though the facts supported self-defense.

This is because, no matter how compelling the self-defense claim, the determination of whether a person was defending themselves was always a question for the jury to decide. A judge could not dismiss a case, no matter how much he believed the defendant.

Thus charging someone with manslaughter (and sometimes murder) was a politically expedient way for a prosecutor to pass the buck and look tough on crime. As another old legal saying goes, let the jury figure it out.

Unfortunately, this devastated defendant’s families emotionally and financially, resulted in numerous pleas of convenience to avoid the possibility of being found guilty and sentenced to prison, and made many people believe that criminals had more rights than the average law abiding citizen.

Self Defense in Florida Now

In response to what many perceived as a situation that benefited criminals over law abiding citizens, the Florida Legislature passed the Stand Your Ground Act in 2005.

This act amended Florida Statute 776.012 and created two new statutes, Florida Statute 776.013 and Florida Statute 776.032.

Florida Statute 776.012

This amendment removed the requirement that a person first attempt to “retreat to the wall” if they reasonably believed that deadly force was necessary to prevent imminent death or great bodily harm.

Florida Statute 776.013

This statutory enactment codified the Castle Doctrine and created a presumption that a person’s use of deadly force within their home was reasonable.

This is important because under the old law, even though a person was not required to retreat to the wall if they were in their home, they were still required to prove that their use of deadly force was reasonable.

Under the new law, a person is presumed to have reasonably used deadly force (if done in their home) and it would fall to the prosecutor to develop evidence that overcame this presumption. This is known as a statutorily created rebuttable presumption and is very common, only it is usually a defendant who is required to overcome the statutorily created presumption (think DUI over .08 or possession of recently stolen property).

The statute also further eroded the requirement to retreat by stating that a person could use deadly force any place they were lawfully allowed to be so long as they reasonably believed it was necessary to prevent death or great bodily harm.

This section is important in the Zimmerman case, because even though the statute removed the requirement for George Zimmerman to first attempt to retreat before using deadly force, it neither created a presumption of reasonableness, nor did it remove the requirement that he prove the use of deadly force was reasonable under the circumstances.

Florida Statute 776.032

This statutory enactment created what is known as “criminal prosecution immunity.” And stated that a person who lawfully defended themselves is “immune” from prosecution from arrest, detention, or prosecution.

As the procedure for making the determination of whether a person was “immune” from criminal prosecution was not defined by the legislature, the Florida Supreme Court cleared up the issue in Dennis v. State, 51 So. 3d 456 (Fla. 2010) and ruled:

A defendant may raise the question of statutory immunity [from criminal prosecution prior to trial] and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.

The result of this statute and the Florida Supreme Court’s ruling is that a defendant can now raise self defense at two stages in the criminal prosecution.

First, a defendant can file a motion to dismiss asking the court to find that they are entitled to dismissal by using the procedure outlined in by the Florida Supreme Court. If the court denies the motion, the defendant is still allowed to raise the issue with the jury.

In my opinion, this added a much needed and reasonable layer of protection against prosecutorial over reaching.

Finally, the statute goes on to state that a law enforcement agency cannot arrest a person unless it determines that there is probable cause that the force used was unlawful.

It is this section that is probably the most vexing issue in Trayvon Martin’s death and likely the one that most needs to be addressed by the Florida legislature.

Is This a Stand Your Ground Case

To determine if this is a Stand Your Ground case, we must work backwards and analyze the applicable statutes.

Did George Zimmerman Provoke the Fight?

As I explained previously, Florida Statute 776.041, states that a person cannot raise self defense if they provoked the fight.

And that begs the question, what would be considered provoking the fight? Most people (including myself) focus on the facts that George Zimmerman:

  1. Disobeyed the 911 Dispatcher, left his car, and followed Trayvon Martin; and
  2. Brought his firearm with him, although lawfully concealed.

But neither of these acts are unlawful, nor would they be considered legally provocative acts.

So unless George Zimmerman told police that he went up either waiving his gun around or went up and started a fight with Trayvon Martin, his acts of getting out of his car with his firearm concealed and following Trayvon would not make him the aggressor. Thus 776.041 would not apply.

Was George Zimmerman Allowed to Stand his Ground?

If George Zimmerman was not legally the aggressor, we would then turn to Florida Statute 776.013(3).

And because George Zimmerman was not breaking the law when he followed Trayvon Martin and was lawfully present in the gated community (since he lived there) he was not required to attempt to retreat if Trayvon Martin either confronted him or physically attacked him.

Thus George Zimmerman was entitled to Stand his Ground.

BUT, even under the old law, George Zimmerman would have been entitled to stand his ground and use non-deadly force (i.e. fisticuffs) without first attempting to retreat. See Morris v. State, 715 So. 2d 1177 (Fla. 4th DCA 1998) (There is no duty to avoid danger before using non-deadly force.)

As a result, under both Florida’s old and current self defense law, George Zimmerman could stand his ground and defend himself with his fists IF Trayvon Martin attacked him first.

But Was Deadly Force Reasonable

Which leads us to the most vexing question in this entire case: what were the exact circumstances that led to George Zimmerman using deadly force.

Because even under Florida’s current Stand Your Ground law, George Zimmerman’s use of deadly force is not entitled to a presumption of reasonableness.

The reason we cannot answer this question is we do not know what happened in the moments before Trayvon Martin and George Zimmerman physically engaged one another.

If George Zimmerman went up and grabbed Trayvon or went up waiving his gun around, but Trayvon instead defended himself, which resulted in George Zimmerman shooting him – then his use of Deadly Force was unreasonable.

But we do know that George Zimmerman has a (self reported) broken nose, a cut on the back of his head, and grass stains on his back.

These facts beg the questions:

  1. Did Trayvon Martin attack George Zimmerman first, pin him to the ground defenseless, and beat him?; or
  2. Did George Zimmerman verbally ask Trayvon Martin to identify himself, but instead Trayvon Martin jumped George Zimmerman, pinned him to the ground in a defenseless manner, and beat him?

If either of these scenarios are supported by the physical evidence and George Zimmerman’s explanation; then George Zimmerman’s use of his gun was likely reasonable – and therefore lawful.

Moreover, even under Florida’s old law, George Zimmerman would have been allowed to stand his ground and INITIALLY use non-deadly force.

An under both the old law and the new law, if the situation escalated such that George Zimmerman reasonably had to resort to his weapon to stop Trayvon Martin from beating him badly; then the use of his firearm to stop Trayvon Martin would be lawful.

The Only Difference

The only difference is that even if law enforcement believed George Zimmerman, under the old law they would have arrested him first and asked questions later.

But under the new law, Florida Statute 776.032, law enforcement cannot arrest George Zimmerman unless they determine that the deadly force he used was unlawful under the facts of the case.

And we know that the Sanford Police Department declined to arrest George Zimmerman; therefore they have concluded that his use of deadly force was lawful.

So if any change needs to be made to Florida’s Stand Your Ground Law, maybe it’s that we need to return to Arrest First, Ask Questions Later when it comes to deadly force in self defense situations.

What do you think?

Who is Zenaida Fernandez Gonzalez?

Well, its been a while since my last meaningful blog post. I was actually enjoying my retirement from the circus that is Casey Anthony and Foghorn Leghorn. But the volume of inquiries as to whether Zenaida Gonzalez’s case has any merit and whether Judge Munyon should dismiss the case has pushed me to reply.

My position is that the case has no merit and it should be dismissed. The primary reason I believe it has no merit is that Zenaida Gonzalez has failed to show that she is the actual person that Casey Anthony referred to; meaning that she is actually “Zenaida Fernandez Gonzalez.”

The other reason I believe the case should be dismissed is that Casey Anthony, or any witness or defendant in a criminal investigation, is entitled to Absolute Immunity from civil law suits for any statements made during a criminal investigation.

Just Another Keyser Söze

Keyser Söze or Zenaida Gonzalez?

A key element of a defamation claim is that the person suing for defamation, was actually the  person being defamed.

So in the defamation case, Zenaida Gonzalez must prove by “clear and convincing” evidence that she was the person Casey Anthony was referring to when Casey claimed “Zenaida Fernandez Gonzalez” kidnapped Caylee.

“Clear and convincing evidence” is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the question in issue.

In this case, it seems highly unlikely that Zenaida Gonzalez could prove, without hesitation, that Casey Anthony was speaking of her, and not some fictional person, when she told law enforcement that “Zenaida Fernandez Gonzalez” was the person who kidnapped her child. Moreover, when pressed, Casey Anthony never described any person who remotely resembled Zenaida Gonzalez.

Which leaves us with the only piece of connecting information, which is that Casey Anthony apparently visited Sawgrass Apartments, the same apartment complex that  Zenaida Gonzalez had visited previously.

But this begs the question, even if Casey Anthony did see Zenaida Gonzalez’s name, she did not use that name and instead used the specific name Zenaida Fernandez Gonzalez. And without any other concrete information to link Casey to Zenaida Gonzalez, it seems clear that Zenaida Fernandez Gonzalez is just another Keyser Söze.

The greatest trick the She-Devil ever pulled was convincing the jury she was Not Guilty.

Absolute Immunity versus Qualified Immunity

But even if Casey Anthony was actually claiming that Zenaida Gonzalez is the one who kidnapped Caylee, it is my belief that she is still entitled to dismissal of the case based upon the doctrine of Absolute Immunity.

This is because Casey Anthony’s statements were made to investigators during an ongoing criminal investigation; not to initiate a new investigation. And statements made to investigators during an ongoing criminal investigation are privileged and a person cannot be sued for their statements to law enforcement officers during an ongoing criminal investigation – no matter how scandalous or false they are.

Doctrine of Absolute Immunity

The doctrine states “absolute immunity must be afforded to 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.” Moreover, “The falsity or maliciousness of the alleged statements is irrelevant to this analysis.” Delmonico v. Traynor, 50 So. 3d 4 (Fla. 4th DCA 2010)

“Absolute immunity extends to the parties, judges, witnesses, and counsel involved and related to the legal proceedings. Participants in legal proceedings must be free from the fear of later civil liability as to anything said or written during litigation so as not to chill the actions of the participants in the immediate claim.” Id.

Doctrine of Qualified Immunity

However, I am not sure Judge Munyon will revisit the issue of whether Casey Anthony is entitled to Absolute Immunity because the prior judge, Judge Rodriguez, ruled that Casey Anthony was only entitled to qualified immunity, which is a question for the jury to decide, not a judge.

The doctrine of qualified immunity holds that “statements made by a private individual to an investigating officer or a prosecutor prior to the filing of a criminal charges are privileged only if it is proven the statements are false and made with actual malice.” Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992).

But there are No Damages?

A final issue that has been brought up is whether Zenaida Gonzalez’s case will be dismissed if she is unable to prove actual monetary damages.

The answer is no; even if a person cannot prove actual money damages due to defamatory statements, they are still entitled to have the jury make a determination of whether they are entitled to nominal damages. See Myers v. Russo, 3 So. 3d 411 (Fla. 2d DCA 2009).

Extra Credit

One other thing that might interest some of you, is how Jose Baez’s opening statement can be used against Casey Anthony in her civil trial.

The answer is that since Jose Baez was Casey Anthony’s “agent” and he gave very specific statements that could only have come from Casey Anthony, and not from inferences based on other witnesses statements, the opening statement is admissible against Casey Anthony, as if she has uttered it herself, as an “Admission by a Party Opponent.”

The leading case on this issue is United States v. McKeon, 738 F. 2d 26 (US 2nd Cir. 1984), which held that a criminal defendant’s attorney’s opening in one trial could be introduced against the same defendant in the retrial if the defendant adopted a defense that was incompatible with the original opening. This same rule has been applied to prosecutor’s opening statements. And has been applied to using criminal opening statements in subsequently related civil law suits. (See The Use of an Admission by Party-Opponent to Hoist A Prosecutor By His Own Words.)

The underlying  principle behind this rule is that no party ought be able to evade the truth by changing their statements merely because it may suit their theory of the case it stands at that time.

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.

Exculpatory Evidence Suppressed by Law Enforcement During Casey Anthony Murder Trial

UPDATE: Since this post, a few things have come to light.

  1. After reading the comments at The JB Mission, it appears that Baez brought up the issue of false or misleading evidence with Judge Perry right before Linda Burdick gave her closing. She basically tells him to pound sand.
  2. The State Attorney’s Office issued a press release today saying that since Baez knew about the problem (apparently from his own deduction, not State’s correction) that they did nothing wrong.

It appears the Orange County Sheriff’s Office intentionally suppressed exculpatory evidence that directly contradicted the State Attorney’s theory of premeditated murder in their attempt to have Casey convicted of First Degree Murder.

Please read:

  • The Hinky Meter: Caylee Anthony case: 84 Visits or Not?…and why it matters
  • CacheBack Creator and State Expert Witness Issues Press Release Revealing Government Misconduct

Law Enforcement’s Duty to Disclose Favorable Evidence

In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held that suppression of evidence favorable to an accused upon request violates due process. Subsequently, in Giglio v. United States, 405 U.S. 150 (1972) and United States v. Bagley, 473 U.S. 667 (1985), the Court made clear that all impeachment evidence falls within the Brady rule.

Finally, in Kyles v. Whitney, 514 U.S. 419 (1995), the United States Supreme Court not only reaffirmed that both exculpatory and impeachment evidence fall within the Brady rule. The Court also reiterated “… that the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.

But my question is how do we know the State Attorney’s Office didn’t know that the computer search was flawed. If they did, they not only had a duty to disclose it to the defense, but a duty to disclose it to the court, and more than likely a duty to correct it in front of the jury.

This Ain’t the State’s First Rodeo Either

And let’s not forget, this is not the first case ASA Jeff Ashton was involved in where exculpatory evidence was suppressed. some of you may remember my post in Casey Anthony: Insufficient Funds (Part Uno), where I explained about a trial conducted by the Elected Public Defender Robert Wesley:

—-

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, theChief 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.

An Ironic Twist

The irony of all ironies is that it may be Casey Anthony who has the best law suit to bring after her acquittal.

A law suit against the Orange County Sheriff’s Office and the State Attorney’s Office for violating her civil rights by suppressing favorable evidence so they could rely on flawed evidence to try and convict her of First Degree Murder.

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 🙂