May 2011 Update: After reading this two year old post, please note Judge Perry’s concern about whether the hearsay statements Mr. Baez elicited were:
- Exculpatory statements (meaning statements made by Casey that were meant to clear Casey of guilt), and
- Whether the hearsay statements of Casey pertained to collateral matters, meaning statements not directly related to the murder.
As Judge Perry pointed out, under Huggins, only truly exculpatory hearsay statements can be impeached with prior convictions. Considering most of the hearsay statements elicited were before she had been arrested, it would be hard for them to have been exculpatory.
Also, most of the hearsay statements were to collateral matters. As Judge Perry pointed out, if the statements dealt primarily with collateral matters, they still could not be impeached as the prejudice to Casey Anthony (which Judge Perry described as “devastating”) outweighed the probative value to the State in impeaching collateral matters.
My gut feeling is that Jose Baez did not go far enough over the line and because the issue is to close to call, Judge Perry err on the side of caution and will not let the convictions in because of his fear they would result in an automatic reversal on appeal.
Original December 2009 Post Follows:
As a break from my recent juvenile rants about other lawyers’ cluelessness, I am going to address a more serious legal issue; the significance of Casey Anthony’s check fraud case in relation to her First Degree Murder case.
This will be the first of a two part series and this first post will discuss why the State would want to try the Check Fraud case before the First Degree Murder case. The second post will discuss how the defense will likely try to avoid trying the Check Fraud case first.
As a refresher, in her Check Fraud case, Casey Anthony is charged with thirteen separate felonies that also happen to be crimes of dishonesty. Now in relation to the Murder case, the Check Fraud case would seem insignificant.
However, it is the 13 separate convictions that the Check Fraud case provides which is the true strategic prize for use in the Murder case. But why?
It’s the Convictions Stupid
As you probably guessed, under Florida law, a person can be impeached with proof of a prior conviction for a felony or a crime of “dishonesty or false statement.” This rule is codified in Section 90.610, Florida Statutes, which states:.
90.610 Conviction of certain crimes as impeachment.–
(1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment…
Now I understand that the statute does not actually say a witness’ credibility can be attacked by a felony conviction, rather it says by a crime which “was punishable by death or imprisonment in excess of 1 year.” And this is for good reason, because not every jurisdiction categorizes and defines criminal offenses with tidy labels – felony and misdemeanor – like Florida does. (See Section 775.08, Florida Statutes.)
As a matter of fact, in some jurisdictions, a misdemeanor can be punishable by up to 3 years imprisonment (I use imprisonment generically). So rather than look at the label of the crime (felony or misdemeanor), Florida looks at the seriousness of the crime to determine whether it is worthy of attacking a person’s credibility and they only ask four questions about the crime:
- Was the crime punishable by death?
- Was the crime punishable by more than 1 year imprisonment?
- Was the crime one that involved dishonesty?
- Was the crime one that involved a false statement?
If the answer to any of those four questions is yes, then the crime might be admissible as impeachment evidence against a person at trial. That is right, it might be admissible – because before a person can be impeached with a prior conviction, the person must have both been convicted (there is that darn word again) of the crime and the person must “testify.”
A Conviction by any Other Name is not a Conviction
At this point you have probably caught on to my highlighting of the word conviction and convicted. Well that is for good reason; because in Florida, a person is not convicted just because the plead guilty or are found guilty by a jury. Rather, when a person admits their guilt or is found guilty, a judge “may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt” pending completion of a probationary period. (See Section 948.01(2), Florida Statutes.)
When the judge does the latter (usually for first time offenders), we call that Withholding Adjudication or giving a Withhold. And a Withhold is important for many reasons, such as (1) being a condition precedent to having your charge sealed and expunged, (2) allowing you to maintain eligibility for certain state programs and licenses, but most importantly to our discussion, (3) it does not act as a conviction for impeachment purposes. See State v. McFadden, 772 So. 2d 1209 (Fla. 2000) Rather, to act as a conviction for impeachment purposes, the court must specifically “adjudge the person guilty.”
And if you are paying attention, that means that even if Casey Anthony pleads guilty or is found guilty of the 13 separate felony crimes, Judge Strickland could still “stay and withhold the adjudication of guilt,” because in the eyes of the law, she would technically be a first time offender.
Do I think he will do that, no I do not and I will discuss that in part two of this blog series. So for now, we will assume that if she is found guilty, she will be adjudicated guilty and thus convicted for impeachment purposes.
However, I bring that up to highlight what the real prize in this fight is and why the State wants the benefit of being able to impeach Casey Anthony with 13 felony convictions if she “testifies”.
The Right to Remain Silent
Now trials require evidence, and the jury can only consider the evidence that is presented to them. So even if Casey Anthony was convicted of the 13 felony offenses – Baez could prevent the jury from ever knowing Casey Anthony was a convicted felon 13 times over by allowing her to exercise her Fifth Amendment Right to Remain Silent – by not having her testify. If only the State could get around this pesky constitutional right she is invoking – if only…
Once Upon a Time there was Huggins I
Once upon a time there was a prosecutor named Jeff Ashton (wow, what a coinkydink!) who prosecuted a man by the name of John Huggins near a Magical Kingdom in La Florida for the first-degree murder, carjacking, kidnapping, and robbery of a woman by the name of Carla Larson. Although the case was based entirely on circumstantial evidence, Huggins was found guilty as charged on all counts.
But wait, Huggins was represented by none other than the Honorable Robert Wesley (See Bill Sheaffer: Saying Thanks to a Local Hero) and Mr. Wesley realized not long after the guilt phase of the trial that the dastardly prosecutor Jeff Ashton “suppressed favorable evidence.” See State v. Huggins, 788 So. 2d 238 (Fla. 2001). And because of this dastardly act, the Chief Judge of the Ninth Judicial Circuit, Belvin Perry, granted Mr. Huggins request for a new trial, noting:
[I]t is not the Court’s intent or wish to punish society or the family of Carla Larson. This Court has a sworn obligation to follow the law. The principles of Brady v. Maryland are well known to all lawyers who practice criminal law and remedies for its violation are well known. While a defendant’s right to a fair trial is of the utmost importance in our system of justice, particularly when the ultimate punishment may be imposed, the Court is mindful of the heavy burden it places on Carla Larson’s family as well as society. But in the end, society wins not only when the guilty are convicted but when criminal trials are fair.
And Then There was Huggins II
And so Huggins went on trial again, prosecuted by none other than Jeff Ashton and defended by the Honorable Robert Wesley. But the second time around Mr. Ashton had an Ace up his sleeve.
You see, Mr. Ashton had originally obtained a court order to collect a pubic hair sample from Huggins to see if the hair sample matched hair found at the crime scene. However when the Crime Scene Investigator went to collect the sample, Huggins’ entire pubic region had been shaved – thus thwarting the ability to collect a sample.
So during their case in chief, the State presented evidence suggesting Huggins’ shaved his public region because he had a guilty conscious and knew the hair sample would match – thus directly connecting him to the crime.
The defense attempted to rebut this claim by calling a corrections officer who testified “that outbreaks of crab lice would occur, and that one method of addressing the problem would be for an inmate to shave.”
Unfortunately for Huggins, his defense attorney went one question too far and asked the corrections officer whether Huggins had ever complained of lice – thus implying that Huggins had an innocent motive for shaving his public region. Mr. Ashton objected on hearsay grounds and the court sustained his objection (agreed with him).
However, the defense pressed further and the corrections officer was finally allowed to testify that he knew Huggins had shaved his pubic region and by implication, asserted it was because of the lice outbreak.
At this point, you are probably wondering what in the world does this story have to do with Casey Anthony’s Check Fraud Case – and I tell you it has everything to do with her case!
Because even though Huggins never testified, Mr. Ashton was able to introduce Huggins’ NINE FELONY CONVICTIONS pursuant to Section 90.806, Florida Statutes, which permits;
“The introduction of a defendant’s felony convictions when the defendant elicits his or her own exculpatory, hearsay statement through another witness at trial.” See Huggins v. State, 889 So. 2d 743, 756 (Fla. 2004).
The Florida Supreme Court reasoned that “a defendant who chooses not to testify but who succeeds in getting his or her own exculpatory statements into evidence runs the risk of having those statements impeached by felony convictions” and Mr. Ashton did just that.
So the court, at Mr. Ashton’s request, took judicial notice of Huggins’ nine felony convictions, entered each of the nine felony conviction dispositions into evidence, and instructed the jury that “the evidence of John Huggins’ nine felony convictions should be considered by you … in weighing the credibility of the statements attributed to John Huggins.” See Florida Standard Jury Instruction 2.5.
Needless to say, John Huggins was found guilty as charged and is currently on death row, sentenced to die.
What Does All of This Mean?
It means that even if Casey does not testify, she can still be impeached with the 13 felony convictions obtained from the Check Fraud case if Baez attempts to offer her “testimony.”
So, if any witness (but especially Cindy, George, or Lee Anthony) is called to testify by either party and the defense attempts to elicit exculpatory statements attributable to Casey Anthony, the State can impeach the exculpatory statements attributed to Casey Anthony by introducing her 13 felony convictions and asking Judge Strickland to read Florida Standard Jury Instruction 2.5 to the jury at the same time:
“The evidence of Casey Anthony’s thirteen felony convictions should be considered by you … in weighing the credibility of the statements attributed to Casey Anthony.”
So even if Casey Anthony does not testify – she may still “testify,” in which case I suspect a suspiciously named prosecutor will be waiting with 13 crisp copies of felony convictions…
Epilogue
I realize I glossed over the fact that Casey Anthony’s thirteen Check Fraud charges also happen to be crimes of dishonesty or false statement; so you are wondering if the State could have the judge refer to them as both felonies and crimes of dishonesty of false statement. Well, fortunately for Ms. Anthony, “when a witness has been convicted of a felony, the other party may not inquire further into whether the felony involved dishonesty or false statement because doing so ‘would have the impermissible and unintended effect of elevating certain felonies over others.’” See Atis v. State 2D07-5924 (Fla. 2d DCA 2009).
So stay tuned for part two of this blog series, where I will discuss the seemingly infinite ways in which the defense will try to delay the Check Fraud case until after the Murder case…
35 responses to “Casey Anthony: Insufficient Funds (Part Uno)”
If Cindy Anthony testifies….they can start adding starch to those crisp copies
I think the Check Fraud Cases, are part of the states Case against Casey Anthony regarding Caylee, as it shows Casey’s state of mind around the time Caylee disappeared, which we later learned she was murdered.
I think it is important to have the Felony Fraud Cases happen prior to the Death Penalty Case, to be able to bring in and show the Jury Casey’s moves prior to Caylee’s death, it will show the direction in which this person was heading, it will show her destructive path.
imo
@Frosty
That will be discussed in part deux…
I have a feeling there isn’t much that ANYONE could or would want to, introduce into trial that was said by Casey Anthony. I can’t remember ANYTHING she ever said that would be helpful to her anyway. Baez and Co. would be wise to stay away from anything that even came from her lips EVER! Just my opinion, of course.
RH,
I mistakenly thought for a long while that you were an objective contributor to the Caylee/Casey Anthony case. My observation of you and your practice, seemed to confirm a fresh, if not singular, perspective in Florida law procedure and its addiction to media and hype to gain convictions, more importantly, ratings, at any cost.
I issued a LOUD BRAVO to all that would listen. FINALLY, I thought, a criminal lawyer in Florida who had the smarts, strength and loyalty to remain true to American constitutional foundations, IN PUBLIC. I believed, regardless of Florida, and its overall bad taste with regard to media hype and intrinsic, obvious, unstoppable political corruption, there is a lawyer prominent in the media who gives a hoot about a FAIR trial, regardless of what we may deduce to be fact prior to an actual trial. This was confirmed further for me when you, Richard Hornsby, outed Mr. Sheaffer for selling out his peers and their career objectives while abusing his position credentials for yet another headline capture. (yawn)
It appears since your confrontation with Sheaffer, this is not the case. The latest contributions you have made on your blog and with WESH & FOX (boo) have been sophomoric and competitive, but least attractively, based on response. You have allowed the likes of Ivy Bigbee, one of many unimpressive Examiner chime ins, to attempt to discredit your opinion.
I enjoy your writing. The law is made clear, with all of the stiff vernacular the law endows. However, you seem to have a knack with colloquialism that I, and many, can identify with. Not unlike what the media uses, not unlike Andrea Lyon speaking to a group of peers.
Why did you turn? Isn’t your voice more important than a ladder climbing approval? Or does proving to be a CRIMINAL attorney also prove that all charged with crimes are guilty, and we, as a people, (with the aid of lawyers) just need to prove guilt?
Please show me otherwise. I am one of the few who follow this case for the sake of true justice. I do not want to see an innocent person put to death. I do not want to see loopholes created for the guilty based on a (un)informed public outcry. I want a fair, unbiased trial. Just as if I were accused.
I ask, do you not see the dichotomy you and Mr. Sheaffer are creating, now, together? Where is our justice system, if not with those of your ilk, who defend it? Most importantly, when and how, for you, did it become popular to exploit it for personal gain? Perhaps this is a question you and Mr. Sheaffer both may consider. I have little doubt of the rhetoric I will hear from Sheaffer. Sadly, he has long sold out his union and trade, as many before him. Will you do the same?
@Facts Only. PLEASE. Justice for All
Actually, my only beef with any attorney is when they misstate the law. The purpose of this was to explain a legal aspect that affects both cases.
So, the only public opinion I care about is that the public understands how and why the law applies – and that it is applied fairly.
I’ll leave it for WJS to pander for the prosecution and I will leave it to JAB and Co. to pander for Casey Anthony.
Fair enough. However, you fail to address the media as a legal vehicle, which you are now a big part of, based on your secular knowledge and beef with Sheaffer. Caught my eye…
Richard, i’m digging the blog with the law demystified.
Will Casey and her family having sold images and video of Caylee to media outlets be mentionned during trial?
Perhaps this will be answered in part deux, but will the defenses desire to delay the fraud trial outweigh the victims right to a speedy trial?
Richard, do you agree with the above? TIA
Quote;”So, the only public opinion I care about is that the public understands how and why the law applies – and that it is applied fairly”.
And you have done that today. Thank you.
hey Richard ..
Excellent article…
fyi.. There is a typo just below the first blue highlighted paragraph which says “the statute does no ( sic) actually say a witness”… ( I believe you meant to write “not”).. (teacher’s pet, violette)
Mr. Hornsby, thanks for “keeping it real” about the KC’s case, & backing off the sophmoric rant & behavior about Mr. Sheaffer.
I think FLA. Law is extremly interesting, too bad that all VICTIM’S of a Criminal Act are not afforded a “SPEEDY Trial like Amy H.” The “right to a speedy trial for victims & the Sunshine Law” are RIGHT ON for Victim’s & their families. I wish “other STATES” afforded the VICTIM’s these rights, as a layman, I am sickened at times during these cases, that it seems the CRIMINALS have more rights than the Victim’s & their families.
I live in Louisiana & we have the SUNSHINE LAW, one week per year. FLA. Law sets a good example for other states, imo.
Mr. Hornsby very informative article. Thank You. My question is how long could the Defense delay the check fraud case and for what reasons could they legitmately do so?
Regarding 13 felony convictions ….. I thought there where only 4 felony charges and the rest are misdemeanor charges?
It seems that most of the defendant’s parents statements are based on what she has told them. ( she left the baby with a nanny ) So how can they be questioned by the defense without the convictions coming in?
“…prosecutor Jeff Ashton ‘suppressed favorable evidence.’”
You mean he suppressed exculpatory evidence?!
😮
I guess it’s okay w/Lawson Lamar that his ASA doesn’t play by the rules?!
😮
Do you have any other examples of Ashton’s “suppressing exculpatory evidence?”
[…] The scheduling of the hearing on these motions provides not only a timely interlude in the progression of her Murder case, but also a timely and brief interlude from my two part series on her Check Fraud case (Casey Anthony: Insufficient Funds). […]
Ya know what. Maybe just MAYBE if Casey Anthony did not steal from her friend and KILL her daughter and LIE maybe just MAYBE none of this would be going on. SHE is soley to blame for the big trouble she is in. TOO freakin BAD. WHY should the checl fraud be delayed? Why? She mad her death bed. Now she can lie (pun intended) in it. The game is played both ways.
I am grateful that I heard Lyon’s released speech. Here’s a wonderfully thought out intelligent blog:
http://niecey456.wordpress.com/2009/12/02/justice-truth-politics-law/#comments
Mr. Hornsby. I’m a new reader here. I really appreciate the time and effort you’ve put into these blogs. Thank you so much!
Wow! I’m really impressed with your knowledge of the law!
(I also like your style of writing…I hope a novel is in your future!)
And another thought!lol I think that Andrea Lyons is a “know it all braggard, that has a condesending attitude” is NOT going to help Casey Anthony. Most people detest her, and her rude, obnoxious behavior, and will want to see her fall on her ass. Wipe that big, bully smirk off her face. Her 162 IQ
is not going to get Casey off. Lyons is mainly oncerned with Lyons, and selling her book. I find her disgusting, and self-serving. She needs to remember that the people from the inner city of Chicago are totally different from the people of Fla.
Facts only please: What I am hearing from you is that you want EVERYONE to be in complete agreement. Sorry, life just doesn’t work that way! Once the jury has heard all the evidence, and in the jury room and able to discuss the FACTS AMONG THEMSELVES, for as long as it takes, ONLY THEN WILL A DECISION MADE. The facts alone will decide the verdict. You (as much as “some” would like) cannot change the FACTS!(regardless of Lyon’s phony tears, and theatrics…same for the Prosecutors)
@ Loves2shop…….I feel it important to bring in the Felony Fraud Case first because in this case if for some weird freaky reason CASEY gets off…..Casey will go to jail for 45 years reguardless if she wins or loses the MURDER1 case……..albiet it would be a win win situation…….
AND JOJO better look out… they may have some dirt on him that he isnt going to be able to explain away…….Let them bring in J Wray reguardless of her mental state!
With 250 some odd witnesses…..surely Casey will get the conviction she deserves!
The whole family is a HUGE bunch of LIARS!
LOL…thank-you, Richard…I was just coming to look for this…I remembered that you made mention of the “shaved pubic hair statement” in it 🙂
This was posted like 2 years ago…brilliant. Did you go to Hogwarts School of law because you are some sort of Sorcerer.
Part of me wants to break the law just to have you in my corner….
IMO the prosecution is using Casey’s odd behavior (lying, ugly coping) to show Casey’s guilty state of mind concerning Caylee’s death. This is somewhat similar to using Huggins’ odd behavior (shaving his pubic hair) to show Huggins’ guilty state of mind. In both cases, the defense has attempted to use statements of the defendant to provide alternative, innocent explanations for the odd behavior. Thus it is difficult to say, at this point, whether Casey’s (false) statements to Cindy concerning her whereabouts, her romantic/sexual relationships, Caylee’s paternity, etc. concern “collateral” matters.
On the one hand, Baez’ opening statement blamed Casey’s pathological lying and ugly coping, both generally and specifically during the month after Caylee’s allegedly accidental drowning, on years of extensive sexual abuse by her father and attempted molestation by her brother. On the other hand, Baez has not yet introduced a scintilla of evidence that Casey was ever sexually abused by her father nor molested by her brother.
It is conceivable Baez is a big enough joker that his opening statement (which as you know is not evidence) was merely a ruse intended to throw off the prosecution, and Baez actually plans to spring some completely different defense strategy. That would explain his constant smirking and his failure to pay attention when the judge is talking to him about things like Don’t cause further trial delays by leaving behind your files, because Baez can only think about how he is SO much smarter than anyone else. Does Florida criminal procedure allow Judge Perry to reserve ruling on this until after Baez has put on his defense case in chief?
Hypothetically, yes Judge Perry could wait until after the defense put on their case. Practically though, no, he would either allow it or rule against the state (for now).
With that said, even if Judge Perry ruled against the State now, it would not prevent them from re-raising the issue later if the defense slipped up.
Richard, do you have any idea of what portion of Sindy’s – I am assuming it was Sindy – testimony elicited the statements in question?
Any time she referred to something Casey Anthony said to her.
thank-you for clarifying 🙂 I thought they were referencing a particular statement made…
So, my guess is, Baez won’t let Casey testify?? I personally feel the jury should know everything about her deceiving personality. Thanks
I would like to know if strickland allowed her to use the 412 days she first spend in jail as time served for 6 of the 13 felonies, how can they then use the same 412 days as time served for the 4 yrs judge perry sentenced her to on the 4 charges of lying to a police officer? So in folirda you can use the same days as time served for two completely different crimes… where does that make sense?