Saturday, October 31, 2009
Thursday, October 29, 2009
Saturday, October 24 was a day of celebration at Richmond High School—every high schooler’s favorite fall event—homecoming. And like every other high school celebrating homecoming, Richmond High hosted a homecoming dance.
At 9:30 p.m., a 15-year old girl decided she was ready to go home, and left the gym and started walking on 23rd Street, on the north side of the campus, intending to call her father to pick her up. Before she took the time to call her father, a friend from school invited her to join a group of students hanging out and drinking in an alley adjacent to the campus.
The girl was offered a drink, which she accepted, and she quickly became incapacitated from slamming brandy. She was then beaten and sexually assaulted by as many as 10 males, robbed of her jewelry, and abandoned semiconscious, naked below the waist, underneath a lunch table on campus.
Richmond is located in Contra Costa County, across the bay from San Francisco, right on the water. Its population of 120,000 is comprised of mostly black or Hispanics, and there is high unemployment and gang activity in the city. Although the 2000 census revealed a racial make-up of 36 percent black, 27 percent Hispanic and 21 percent white, in recent years the population has skewed Hispanic. Seventy-six percent of Richmond High’s students are Hispanic, 75 percent characterized as “socioeconomically disadvantaged,” and 54 percent “English learners.”
While the girl was being raped, word spread about the ongoing assault and what is thought to be two dozen students stopped by to witness the attack, with some young men joining the assault, and others laughing and taking photos of the crime, with none summoning assistance. On campus that night were four on-duty Richmond police officers, along with paid security, and three school administrators. The dance ended at 11 p.m. and the campus was cleared by police, security and one administrator.
The high school does have a surveillance system in place, but it is not operational. Friends of the victim say that a group of young men without ID cards (non-students) were hanging around at the school’s entrance, but police, private security and administrators did nothing to question or remove the men.
Word of the rape was filtering off-campus. Several blocks away, a man was approached by a group of young men who told him there was a naked drunk girl behind the high school and if he wanted to get laid, he’d better get over there. He immediately went looking for someone with a phone to call police. A resident of a nearby home overheard students talking about the incident, and called 9-1-1 around midnight, with police responding to the dark out-of-the-way site.
As police pulled up to the scene, they saw 19-year-old Manuel Ortega, a high school dropout who had attended Richmond High, run away from the area. Ortega was found with some of the girl’s jewelry. He was arrested on suspicion of rape, kidnapping and robbery, and is being held in the Contra Costa County jail on $1.2 million bail.
The girl was airlifted to a nearby hospital, and was discharged on Wednesday. Authorities said she would not be returning to her home to maintain her privacy.
Despite Richmond’s gang and drug problems, rape of a high school student is a shocking event. And Richmond police have gone into overdrive to solve this case.
Fifteen-year old Cody Ray Smith, who knew the victim, was arrested on Monday night (October 26) on suspicion of sexual assault and rape. On Tuesday, 21-year old Salvador Rodriquez was detained, and on Wednesday, October 28, Richmond police announced that charges were being filed against Ortega (rape in concert, rape by force, robbery and assault with a deadly weapon causing great bodily injury), and three others, including Smith, 16-year-old Ari Abdallah Morales and 17-year-old James Marcelles Peter, each of whom face felony counts of rape in concert, otherwise known as gang rape, and penetration with a foreign object. Morales also faces felony robbery charges. Charges against Rodriquez are expected to be filed by the end of the week.
The four suspects were arraigned this morning (October 29) under tight security at Contra Costa County Superior Court in Richmond. The underage suspects, who were arraigned together, were wearing bulletproof vests, hands shackled to their waists, surrounded by five sheriff’s deputies. Only Smith offered a plea of not guilty. Morales appeared separately. All four will return to court on November 5, and the underage suspects will remain in juvenile hall without bail.
Smith, who is white, and Morales, who is Latino, are residents of nearby San Pablo, and Peter, who is black, is a resident of Pinole. Each will be tried as adults, and if convicted, each faces the possibility of life in prison.
More arrests are expected.
Unfortunately the race card is being tossed around already. The family of James Peter was already blaming prosecutors and threatening to sue the city of Richmond for arresting the teen, alleging he was arrested only “because he is black.” They claim he is innocent of everything, and simply walked by the scene of the crime.
The DNA and photographs taken by onlookers will not lie.
The victim is white, described as a churchgoing girl who was struggling to fit in and who felt unsafe on the Richmond High campus, as do most of the white students.
So what charges can be expected for bystanders who failed to report the crime? In California, there is the Sherrice Iverson Child Victim Protection act, which was passed in 1999 following the molestation and murder of 7-year-old Sherrice Iverson in a Nevada casino. She was killed by Long Beach resident Jeremy Strohmeyer, and the legislation was created in response to Strohmeyer’s friend, David Cash, Jr., who witnessed to the assault and murder but failed to report the crime. As a consequence of the law, it is a misdemeanor to fail to report a crime against a child—but it applies to victims 14 years of age or younger.
It is possible that an onlooker could be charged with aiding and abetting if police can show their actions facilitated or goaded the perpetrators.
There is a posted reward of $20,000 for information leading to conviction of anyone involved in this crime.
There is plenty of commentary that can be made on this case. Most importantly is the question “What are we teaching our young men when they participate, witness, laugh at, photograph and fail to report a crime such as this?” Do they not have mothers, sisters, grandmothers, or girlfriends that they would not allow this to happen to? Where are the parents and what do they teach their children at home? Is violence against females commonplace in their homes? When did the United States become so tolerant and callous? Is the problem an “anything goes” attitude? What makes it socially acceptable to do something like this? Is this a consequence of the hip-hop and rap music and culture that many teens of all cultures embrace, degrading women and practicing thuggery? Does raping an unconscious girl give a young man street cred?
And because the victim was white and four of the alleged assailants were Latino or black, is this a hate crime?
Please keep your comments away from racially charged remarks. As evidenced in this case, rapists come in all colors. This isn’t a commentary on one racial group of people taking advantage of a young girl—this is a sad example of poor parenting and societal indifference and a disgusting sign of the times where high school students can find such a horrific crime a source of entertainment.
Richmond High School is accepting cards and donations for the victim and her family. They can be mailed to the school at 1250 23rd St., Richmond, CA 94804-1011. Make checks out to the Richmond High Student Fund, with "for sex assault victim" written in the memo line.
Addendum: A sixth person was arrested in nearby San Pablo on Thursday night. Jose Carlos Montano, age 18, was charged with felony rape, rape in concert with force, and penetration with a foreign object. His bail was set at $1.3 million, and police label him as having played a significant role in the assault.
Suspect Cody Smith was a friend of the victim, and he was the one who invited her to join the group.
Wednesday, October 28, 2009
Recently the William Hamilton Ayres Watchdog site received a communication from Sgt. Detective John Donovan of the Boston Police Crimes Against Children Unit. Unlike San Mateo County, which was slow to act upon accusations and allegations of child molestation against child psychiatrist William Ayres, Sgt. Detective Donovan is willing and eager to locate victims of the physician, who began his psychiatric training at the Judge Baker Guidance Center between 1959 to 1963. The facility's name was changed to the Judge Baker Children's Center in the 1980s, to better reflect broader social programs.
Ayres claimed that he was taught to do physical exams on his psychiatric pediatric patients while at Judge Baker. However, physicians who worked at Judge Baker at the same time as Ayres (and today) said they never gave physical exams to the patients—that physical exams were the jobs of pediatricians on staff, and ministering to a child’s mental needs were the realm of the psychiatrists.
Unlike California, Massachusetts has a “Stop the Clock” law, which means that whenever a victim of Ayres steps up, the state is able (and willing) to prosecute regardless of how long ago the abuse occurred. If Ayres’ pattern of abuse began back then, we can assume that Ayres’ first victims are now in their early- to mid- 60s. Read the story of Joel here. While he did not suffer physical abuse (and he was a bit "old" for Ayres at the age of 17, who exhibited a preference for boys as young as 8 or 9 and no older than 14 or 15, according to testimony of survivors of Ayres' doctoring), the conversation he had with the doctor is nothing short of inappropriate.
Ayres will be re-tried on nine counts of molestation in April 2010 in San Mateo County. Case management hearings have been held regarding the civil suits against Ayres, and it is expected a trial date for those proceedings will be decided upon in December. Ayres has a new criminal defense attorney, as Doron Weinberg won't be back for Ayres 2.0.
Please, T & T readers, if you know of any men who spent time at Judge Baker while Ayres was in residence, please let them know that the state of Massachusetts is ready to do the right thing and prosecute Ayres, yes, even 50 years later, if they were victims of an inappropriate physical exam. Contact the Crimes Against Children Unit, Sgt. Detective John Donovan, phone (617) 343-6183 or (617) 343-6186, e-mail DonovanJ.firstname.lastname@example.org. The Suffolk County District Attorney can be reached at (617) 619-4300. Please help put Dr. William Ayres away for the rest of his natural life!
Sunday, October 25, 2009
On Saturday, the state rested its case in the second Christian-Newsom torture-murder trial after defense failed to make a dent in the cross-examination of the medical examiner. The defense still insists that the defendant, Lemaricus Davidson, had "consensual vaginal sex" with Channon Christian. The defense began its case with the two most dubious witnesses I can remember.
Here again is my first article outlining the case. This is what the defense wants the jury to forget.
Thank you so much David, for covering this case for T&T's readers. It's very much appreciated. Sprocket
Wednesday, October 21, 2009
Monday, October 19, 2009
(This is a very belated entry because this is the same day that Mr. Sprocket got laid off from his new job and not only have I been trying to finish sewing orders, I've been busy helping him try to find jobs in his field~which are very scarce at the moment.)
This was sad news for the LA Weekly, where Mikulan had worked for 25 years as a theatre critic and later, reporting on local politics and high profile trials.
LA Observed was the first to announce Mikulan's firing.
Marc Cooper praises Mikulan's writing. Peter Hong of the LA Times left the following comment there:
"Steve Mikulan’s trial stories read like a Los Angeles version of Murray Kempton’s dramatic courtroom storytelling. His reports from the Phil Spector trial were gutsy and lucid. Steve, by his example, pushed others in the mass market press corps to be more ambitious — precisely what an alternative press guy is supposed to do, right ?"
I spoke to Kevin Douglas Grant, senior editor at Neo Tommy about how I met Steven and through him, the great group of journalists I got to sit with at the first Phil Spector trial.
I wish Steven the best. He is one of the finest writers I've ever had the pleasure to meet.
Steven is now writing for The Wrap. Here is his latest piece on the Anna Nicole Smith drama, the preliminary hearing of Howard K. Stern and doctors Khristine Eroshevich and Sandeep Kapoor on drug charges.
Saturday, October 17, 2009
The second trial involving the torture-murders of Channon Christian and Christopher Newsom begins on Monday, October 19. The defendant is the alleged ringleader, Lemaricus Davidson. On August 25, Davidson's half-brother, Letalvis Cobbins, was convicted and sentenced to life without parole.
Thank you David, for covering this horrific case for T&T! Sprocket
Friday, October 16, 2009
It was not a smooth day in court today for those of us who watched it on InSession or live-streamed. The first part of the hearing was blacked out due to feed problems. Fortunately, I've been able to fill in the blanks from the media accounts and reporting by the wonderful Beth Karas. Prior to the hearing it was announced that the Motion To Dismiss Due To Spoliation Of Evidence would not be heard today since the defense had not provided a witness list.
On September 10, the State filed a Motion To Compel Reciprocal Discovery concerning defense attorney Todd Macaluso's claims at the August 21 hearing that the defense had "substantial evidence" that the body of Caylee Anthony had been placed in its final location while Casey Anthony was in jail. Macaluso added that the defense had "substantial evidence" that Casey Anthony was innocent. In their motion, the State requested a witness list of those who would testify to these facts. According to the Orlando Sentinel,
Strickland ordered the defense to provide a witness list to the state by Feb. 1 or else explain why it can't do so. Prosecutors want to interview the witnesses who can support the defense’s claim.
Based on the ongoing media presence of members of the defense team, it appears to me that they are making broad statements about the evidence, but are loathe to disclose any specific evidence to the State to back up their claims. More than once, Jose Baez has stated that what the defense has to support their claims will come out at the trial. Likewise, Baez has frequently stated that Casey Anthony had "compelling reasons" she had acted as she did and it would come out at the trial. Unfortunately, Baez and his defense team is required to provide reciprocal discovery prior to the trial. While I can respect that the defense wants to keep as much information as possible in their pocket, it is necessary to disclose information to support their motions.
Next, Judge Stan Strickland addressed the State’s Motion to Strike Defendant’s Legally Flawed Motion to Dismiss Counts I and II.
In their original motion, the defense had argued that the judge should dismiss Count I (murder charge) because,
Even viewed in the light most favorable to the prosecution, the undisputed facts of this case show that the prosecution cannot prove its prima facie case for first degree murder.
The defense, in support of dropping Count II (the child abuse charges) indicated that,
There is no evidence showing that Miss Anthony ever harmed Caylee Anthony. In fact, the facts show that Miss Anthony was a good mother and provided Caylee Anthony with a safe and secure living environment.
The prosecution came back with their motion to strike indicating that it was legally flawed for a number of reasons.
The defense's Addendum filed October 6, included the same vague language as the original motion and included a sworn statement by Casey Anthony which stated,
I, Casey Marie Anthony, do hereby swear and affirm that the matters contained in the (sic) her previously filed Motion to Dismiss Counts I and II of the Indictment, and this Addendum, are true to the best of my knowledge and belief.
I do hereby swear to the following:
1. I did not report my daughter missing until my mother called on July 15th 200.
2. I did tell law enforcement that I had dropped off my child with a person named Zenaida Fernandez Gonzalez when questioned by Law Enforcement.
In court, Linda Drane Burdick attacked both the original motion and the addendum. She told the court that the addendum was as flawed as the original motions. She stated that having beliefs or believing someone would testify to something wasn't appropriate in a motion. In addition, she pointed out that the motion and addendum contained no facts and use such terms as "allegedly" and "reportedly". She also indicated that the motion was essentially a farce and full of impermissible language. It's my opinion she totally slammed the defense in her presentation. If she was correct, there was nothing permissible in the entire motion and addendum.
Defense attorney Andrea Lyon spoke on behalf of the defense. She indicated that the Florida legislature never intended for a person to swear to something of which they had no knowledge. She also said that the motion contained sworn police reports and self-authenticating documents. She indicated that Casey Anthony could not swear to information in reports such as those of the medical examiner.
She also indicated that some of the arguments in the State's response were more appropriate to a demurrer. She asked the judge to dismiss the Motion to Strike and allow the State to come back with a demurrer if they chose and then set another hearing date. She indicated that it was a simple matter.
Judge Strickland added a slight bit of humor by wondering if the matter were so simple, why was he having a hard time with it. He indicated that since he had not had the opportunity to read all the defense material, he would rule on it later today.
Later, Strickland did rule, granting the State's motion. In his decision, Strickland stated that,
...While the lengthy motion is both thoughtful and interesting, it does not meet the requirements of Florida Rule of Criminal Procedure 3.190(c)(4) which allows a defendant to move for dismissal alleging that there are no material disputed facts, and the undisputed facts do not establish a prima facia case of guilt against the defendant. While certain facts are undisputed, the bulk of the material facts are disputed.
The motion was granted without prejudice, so I would imagine the defense will be back when they have some facts to offer and Casey Anthony can swear to them. For the time being, Counts I and II remain firmly in place.
Next up was a motion I never got around to discussing. It was filed by the defense on October 12, and I thought I had some more time to read it and digest its content. However, the defense Motion To Modify Order Compeling(sic) Access To Crime Scene Photographs For Defense Experts ties directly to the motions on "spoliation" not discussed today. Apparently, the defense experts are having a difficult time working with the photographs of the remains. They are unable to have hard copies of them or to manipulate them as they need to conduct their investigations.
This is one motion I had mixed feelings about. As Drane Burdick indicated at the hearing, the main concern was that if the defense experts were out of state they would not be easily held liable for unexpected dissemination to the tabloid media. Once a disk was in the hands of the experts, there would be the possibility that someone could steal it or make unauthorized copies and make a small fortune. The thought of pictures of what little remained of Caylee Anthony after so many months in the elements getting out into the public is totally abhorrent to me.
On the other hand, I want Casey Anthony to have the best possible defense. I want the defense experts to have every opportunity to study the pictures for themselves under the best of circumstances. I want future defense motions to be based on solid, factual information that can be rationally discussed in the pre-trial hearings.
Judge Strickland did grant the motion. He will allow Baez and Lyon to have copies of the disk burned and personally delivered to the experts. With that decision, the defense team has taken on the mighty burden of protecting the privacy of Caylee Anthony. I hope that they do.
I would like to cite what to me was an electrifying moment in the discussion of the photographs.
Judge Strickland: State, your principle objection is just that the nature of the photos and to protect the family even though they're on the other side of the fence, right?
Linda Drane Burdick: No, I, actually my position is not to protect the family, my position is to protect the child who is deceased....
When she made that statement I am told by those who attended the hearing that Cindy Anthony began to say something and was restrained by her husband, George. Casey has a visible reaction to the comment and was comforted by Andrea Lyon.
I give kudos here to Ms. Drane Burdick. She made it clear to one and all that her one and only concern as a State's Assistant Attorney is to stand up for Caylee Anthony and getting justice for her.
Shortly after granting the motion, the hearing broke up. As people were milling around, it was amusing to hear Judge Strickland ask to see the man in the second row with the striped gray shirt. It turns out it was Marinade Dave! We should be hearing about his experiences soon, so do check out his blog for his take on the hearing and his meeting with Judge Strickland.
Video of the hearing
One additional note: Judge Strickland has set January 25, 2010 as the date for Casey's check fraud trial. He also set December 18 for a status hearing. I will post about this trial and the motions for it once I've had a chance to wade through them.
Thursday, October 15, 2009
Although Judge Strickland plans to hold a status hearing for the fraud trial tomorrow, I have to believe that the shear volume of the motions precludes discussion at the hearing which already encompasses five motions from the criminal trial.
In last week's article I discussed the State's response to the "spoliation" issue which the defense wants to use to have the entire case dismissed. I said at the time that, since the defense had yet to reply to the State's response, that the defense will argue that they don't need to present any more information than they have.
Well, I was right. In the Defendant's Reply To State's Response to Motion To Dismiss Due to Spoliation of Evidence, the defense reiterates its original position and refers back to the memorandum it filed with the original motion.
I'm not an attorney, so I will stay away from the esoteric legalese in the motion as well as the discussion as to which case law applies to what and get to some of the basic facts.
The motion does include a more detailed explanation as to why they believe LE acted in bad faith by excavating the crime scene. What it boils down to is:
As usual, I will cap my discussion of this reply to a reply by quoting my favorite part:
The technological changes since Youngblood and the corresponding changes in Florida case law and policy support her contention that, given the prevalence and importance of DNA testing and other forensic science, police and other State agents should be presumed to understand that they are crippling a defendant's ability to defend herself when they destroy an entire crime scene...
There was no way LE could completely unearth all of the evidence and tiny fragments of bones from the scene without removing the nasty vegetation and sifting through the soil.
Had the investigators not done so, and many precious remains had been missed, the defense would be telling the State that they had botched the investigation.
I hope that Judge Strickland can rein in all the attorneys who will be present. There could be some rather impressive pyrotechnics in the courtroom tomorrow.
Motions to be considered October 16, 9:30 AM
Motion to Dismiss Due to Spoliation of Evidence
Response To Motion To Dismiss Due To Spoliation Of Evidence And Motion To Compel Defense Witness List For Hearing
Defendant's Reply To State's Response to Motion To Dismiss Due to Spoliation of Evidence
Motion to Dismiss Counts 1 And II Of The Indictment Against Casey Marie Anthony
State’s Motion to Strike Defendant’s Legally Flawed Motion to Dismiss Counts I and II
T&T reference articles for the motions
Here are some interesting facts about the hearing tomorrow. According to reporter Tony Pipitone, of Local 6, "Strickland did not call the motion to dismiss to be heard at next week's hearing, but did set for hearing the state's move to have that motion to dismiss cleared from the record because it is flawed."
In addition, "Pipitone said it looks like Strickland is trying to clear the clutter over the defense's claims that the case should be dismissed. Strickland also did not call the defense's motion to bar the state from seeking the death penalty to be heard next week."
The State's Response To Motion To Preclude The Death Penalty Procedures is now available online. While it isn't posted to be discussed at tomorrow's hearing, I'd like to share the opening parts of the document authored by Assistant State's Attorney Jeff Ashton:
In her Motion, through counsel, the Defendant, once again, has filed a legally insufficient motion which the State would move this court to deny the motion on the pleadings and avoid the grandstanding at a hearing before the media which appears to be the sole purpose behind the filing of the motions...
I believe Mr. Ashton hit the nail on the head here, considering the recent media blitz by the defense and the airing of a 48 Hours episode about the case tomorrow. Apparently, the defense will be splashing their stuff all over the media yet again. The article at the link has a number of incredible quotes (and I mean "incredible" in both meanings of the word).
See you in court tomorrow!
Sunday, October 11, 2009
Thank you David, for keeping T&T's readers up-to-date on this horrific case. Sprocket.
Read Statement (Pp. 2-4)
I went back to my copy of the witness list and found that Mr. Thompson had been added to the witness list last August. At this point, I can only guess that the State's Attorneys find something he said as credible.
What impressed me most was the fact that, if Mr. Thompson's account is true, it would make him the last person to see Caylee alive other than her mother. This sighting would tighten the timeline. Casey was seen on the Blockbuster video at about 7:56 PM with her latest squeeze, Tony Lazarro and without her daughter.
Marinade Dave, a fellow blogger from Orlando, has been assiduously following up on this story and went to the WalMart to investigate details of the statement and contacted Mr. Thompson. The back-and-forth discussion between Dave and Thompson elicited a statement from Thompson which gave the most detail about his experience than has been given in any press report. I'm not totally sure about what Thompson says, but it sure opens up some areas for discussion.
Kudos to Dave for getting this information out to the public.
From Jim Thompson's statement to Marinade Dave:
I don’t have a tv because I don’t like to watch all the bad news. Low and behold the one story I click on the internet to read about in November 2008 is about some girl who looks familiar to me for some reason and when i read the story to find out why it is hearbreaking. I didn’t wait a year to tell my story. I called the numbers we were supposed to call several times, left my information several times and no one called me back. I finally had to go to the local police department to make a statement just to get the pressure off my chest.
nothing will ever change the fact I saw Casey Anthony walking about 10 feet in front of Caley Anthony with a zombie and distant look on her face as her daughter desperately trailed behind her looking hot, distraught, abandoned, sweaty and flustered. The entire time I saw Casey and Caley at WalMart Casey never once looked back to check on her daughter. Yes, I stopped in my tracks turned around and watched because that is how unusual it was and why I remember it so vividly.
To read the full article, go to Marinade Dave's Blog.
Thursday, October 8, 2009
HEARING SCHEDULED FOR FRIDAY OCTOBER 16, 9:30 AM
Judge Stan Strickland has announced that he will hear five motions concerning the murder case at this hearing. The hearing will also address the status of the check fraud trial. Hopefully, he will set a date for this trial then.
According to clickorlando, "Judge Stan Strickland wants to put lawyers from Anthony's defense and the state attorney's office in the same room in an attempt to resolve several issues and get the case moving." Among motions still pending that won't be discussed at the hearing are the ones dealing with change of venue, videotaping, and the dropping of the death penalty filed by the defense in September.
The Motion to Dismiss Due to Spoliation of Evidence is the first motion up today. I discussed this one at length in an article posted September 17. The defense has been aiming at getting the physical evidence and the case tossed since the day Caylee's remains were discovered.
The State filed a Response on September 22. In my T&T entry on September 23, I went over this response at length. State's Assistant Attorney Jeffrey Ashton clearly pointed out that the defense needed to use correct terminology as they had used a civil term, "spoliation" to cover destruction of evidence and preservation of possibly exculpatory evidence. He asked for a list of witnesses to support the substantial burden of proof that the defense would bear. Well, the hearing is a week away and there has not been any response to this motion. I am going to assume at this point that the defense will argue that they don't need to present any more information than they have. The State and the defense at this point keep tossing the ball back and forth as to who has the burden of proof. Somehow, no proof is ever offered!
As with some of he other motions to be discussed at the hearing and some which are not, the defenses motions seem full of broad generalizations without specific facts to back them up. I've read the Memorandums that have accompanied some of the motions, and they seem to do the same thing. They repeat accusations with little argument as to proof. I expected more from the "Dream Team" defense attorneys.
Next up is the State’s Motion to Strike Defendant’s Legally Flawed Motion to Dismiss Counts I and II. This is an interesting situation. While I was on vacation, the defense filed a Motion to Dismiss Counts 1 And II Of The Indictment Against Casey Marie Anthony.
Since I didn't get a chance to review the motion, I'll discuss it briefly here.
Count 1 is for First Degree Murder. The defense stated that the State had not established a prima facie case of guilt against Casey and that the Court had the right to dismiss the charge. One of my favorite lines from the motions state that:
5. There are no material facts in dispute in this case. Even viewed in the light most favorable to the prosecution, the undisputed facts of this case show that the prosecution cannot prove its prima facie case for first degree murder. Specifically, the State cannot establish whether Caylee Anthony's death was accidental, natural or the result of an intentional or negligent homicide. Most importantly, there is no evidence to substantiate that Miss Anthony unlawfully and with premeditated design killed Caylee Anthony.
That left me with my mouth agape. No proof? Dr. Jan Garavaglia, the ME in the case clearly doesn't know exactly how Caylee died, but she knows it was a homicide, most likely due to the duct tape and the location of the remains wrapped in two black plastic garbage bags and a white laundry bag.
The motion goes on to say that this is a strictly circumstantial case and therefore should be dismissed. I am going to assume that the defense assumes the judge will assume that all the science is junk or tainted, therefore it doesn't exist. Likewise, the defense makes a huge leap here in saying that it's "only" a circumstantial case!
Remember Scott Peterson? There was no cause of death and precious little physical evidence, just the cement buoys and a few of Laci's hairs on a pair of pliers on his boat. He's on death row as we speak. What nailed Peterson more than anything else was his pathological lying. Sound familiar?
Well, we really don't need to spend a lot of time on this motion because it's not on Judge Strickland's to-do list for the hearing the 16th. Instead we have the State’s Motion to Strike Defendant’s Legally Flawed Motion to Dismiss Counts I and II.
In the motion, State's Assistant Attorney Linda Drane Burdick indicates that while the Court is permitted to dismiss criminal trials prior to trial under a few circumstances, the defense motion does not move to dismiss under "any particular rule of procedure..." She does point out that under the Rule of Criminal Procedure 3,.190(c),
... it is the defendant's burden to specifically allege and swear to the undisputed facts in a motion to dismiss...
Once again, we have a motion which lacks any proof. There are more sweeping generalizations, no specifics.
Drane Burdick also pointed out that there were some "fatal flaws" in the motion in that Casey Anthony would have to swear to the facts and that there were no "facts" in the motion to swear to, and Casey had not supplied the affidavit which so swore.
On October 6, perhaps in an attempt to fix those "fatal flaws" the defense filed an Addendum to the motion. One would assume that Mr. Baez and Ms. Lyon would manage to affix the pertinent facts to the document to make it legit. But no! Instead they whine about not getting discovery from the State fast enough to do so!
3. Miss Anthony should have also included in that paragraph the fact that much of the discovery which forms the basis for this motion was not made available to the defense until August and September of this year despite repeated requests...
At this point, this motion is obviously very premature. Shouldn't the defense take their time to get which facts they have into shape to include in the motion? It's rather clear at this point that discovery is ongoing and there are many months left to go until the trial. I would imagine that there is still laboratory testing going on.
The best part of the motion is Casey Anthony's affidavit. Baez and Lyon point out that all the "facts" they have are based on lab results (which they didn't have time to put in the motion) to which Casey cannot swear. So, Casey swears to "any old thing" just to make the motion legit.
I do hereby swear to the following:
1. I did not report my daughter missing until my mother called on July 15th 2008.
2. I did tell law enforcement that I had dropped off my child with a person named Zenaida Fernandez Gonzalez when questioned by Law Enforcement.
Personally, I don't think the judge will think much of this amendment. In fact, he may be highly insulted by it.
Lastly, there are the State of Florida’s Motion to Compel Reciprocal Discovery and the defense's Response to State of Florida’s Motion to Compel Reciprocal Discovery. Once again, the State is calling out the defense to put its money where its mouth is. Todd Macaluso made broad statements in court claiming they had proof that Casey was innocent and that someone else had put Caylee's body in the swampy area. I posted about these motions and if you want to review my comments about them, you can find them HERE.
There is only one motion left on my blotter now. It is a defense Motion To Preclude The Death Penalty Procedures, apparently penned by Andrea Lyon, the Angel of Death Row. I won't comment about it now for two reasons. First, this motion is not included in the hearing next Friday and second, Linda Drane Burdick just issued a response to the motion today. It's not out on-line yet, but WFTV published the following about it this evening:
In a new document filed Thursday, prosecutors are accusing Casey Anthony’s defense team of filing yet another bogus motion, this time over the death penalty.
The defense wants the judge to take the death penalty off the table, but prosecutors say judges don't have that authority.
Prosecutors went as far as saying either the defense team doesn't understand the law or is purposely misstating it to grandstand.
Prosecutors say a hearing on the issue would be a waste of the court's time.
Well, that's it for now. I hope this article and the others I've linked here will help you get ready for the hearing Friday. They are so much easier to follow when you've gone over the motions. I look forward to your comments and seeing you in court Friday, October 16, at 9:30!
Wednesday, October 7, 2009
I almost didn't make it to court on time this morning. Mr. Sprocket had jury duty at the Metropolitan courthouse so we car-pooled. Whenever he drives we are always getting out the door many minutes later than we originally planned. The goal was to get me in front of the Criminal Court Building at 8:15 am and he would then have time to get to the other courthouse on South Hill Street.
More than two-thirds of the way downtown, I come to find out that Mr. Sprocket forgot to bring his jury summons. This is what gets him into the parking lot for free as well as speed through signing in. He's thinking he needs to drop me off at the nearest train station and go back and get the form. I told him it's better to show up without it (serve) verses spending an hour or more going back to get the form and being late for service. He did tell me later that he had a drama with the parking lot attendant because he didn't have the form to get his free parking. Fortunately, everything worked out for him, and for me too.
When I arrive around 8:35 am in Department 107, the hearing hasn't started. Dr. Adams is there and he tells me that the sheriff's are short staffed. They need two people to get Brown transferred, and one of them has to be a supervisor to film the defendant being transported with the camcorder. So we wait, and wait. When I arrived, DDA Craig Hum was at the prosecution table. Pat Harris and Lara Yeretsian as well as their clerk were in the courtroom. Mavis is the court reporter up. At 8:47 am, Brown is finally brought into the courtroom. Patty is in the second row, sitting in the aisle. She's wearing a nice gray jacket and matching pants with an orange scoop neck top.
Brown comes out, smiling but he's not wearing his jacket or tie. Judge Pastor addresses him. "Mr. Brown, take a moment to put on your coat and tie and then we'll begin."
As Judge Pastor begins to voir dire Juror #1, Brown's parents enter the courtroom and sit beside Patty Brown. Judge Pastor asks Juror #1 about the situation that prevented him from coming to court on Friday.
There was a bar fight and a shooting on his street and LE closed off several streets declaring it a crime scene. The street ended up being closed until 6:00 pm that evening. With the first question about the paper being brought into the courtroom the juror states he has no idea who brought in the paper. He states that since he was the one holding the door for everyone, he was the last one inside 108's jury room and it was already out and on the table by then.
Juror #1 states that he thinks it was read out loud by the jury foreman.
JP: You saw it?
JP: Did you see it highlighted by anyone?
JP: Did you see it passed around?
J#1: I believe so. [...] I think it was dropped (the issue of malice) after that. [...] I think one of the jurors said we shouldn't be bringing in (things) from the outside.
Judge Pastor then in very strong terms asks the juror that if he was instructed to disregard anything he heard, may have heard or read, could he disregard. The juror replies, "Of course."
JP: The court does admonish you in the strongest terms... [...] Do you understand and accept that?
J#1: Yes I do.
He orders him not to discuss what they talked about with the other jurors.
I believe at this point Judge Pastor talks about about what he believes happened. He believes there was clear jury misconduct.
JP: I'd like counsel's thoughts.
CH: I don't think there's necessity for any more inquiry. I think the court has admonished the jurors in the strongest terms. [...] I think any prejudice that may have risen from that was successfully cured of that. [...] Except for extremely [?]... I think we need to bring them in a s a group and admonish them again.
JP: Mr. Harris?
Harris states he agrees with the prosecutor that there was jury misconduct and that he doesn't believe further investigation is necessary. However, he states that he doesn't believe that it's been cured. I believe Harris states, "I feel like a mistrial is warranted." (I think this is just proforma to secure the appellate record.)
Judge Pastor then goes into a lengthy description as to all that had happened since last Thursday. He describes the jury misconduct in detail and reads what was done to investigate it.
JP: The court finds (the following?) [...] Juror #9 did in fact conduct misconduct. He violated repeated admonishments of this court.
Judge Pastor then clearly states for the record that the definition that was brought into the jury room from the Columbia University Dictionary is a ".....complex intermingling of civil and criminal (law) definitions of malice. [...] Quite frankly, it's wrong. [...] It does not reflect the law (or) CALJIC, 8.10 or 8.11. [...] Juror #9 committed misconduct. [...] Juror #7 committed misconduct by reading it out loud.
Judge Pastor then reads the numbers of the jurors who read the paper on their own.
JP: Number one said they heard it. Number three said they "turned it off." [...] There's some ambiguity as to who may have highlighted the document. It may have been (number 6? or number 5.?) [...] Number 2 did not hear it. Number 8 did not read it but heard it. [...] Number twelve was the juror who was the one who instigated the inquiry. [...] The (?) is, what to do. [...] There is a presumption of prejudice. [...] I do not believe the exposure was lengthy or extensive to this (? incorrect ? definition). [...] There wasn't much deliberation at all. [...] It appears that after the material was read, the discussion was cut off at an (earliest time?) [...] And that's significant. [...] I do believe all the jurors that spoke to us. [...] I found them to be candid and honest as I observed them. [...] Was exposure to the online printout inherently prejudicial? [...] I do not find that that exposure was so prejudicial that it will prejudice the case. [...] I do not find that.... [...] I do not find that it is substantially likely that any juror is biased from the insertion of this information. [...] I am satisfied at this point. [...] If the individual jurors are prepared to continue, [...] if there isn't [....] then I will..... (I missed the rest of the sentence.)
JP: Mr. Harris and Ms. Yeretsian requested several times [the jurors be told the information is incorrect] and I am prepared to say that it is absolutely incorrect and inaccurate and wrong. [...] I'm totally prepared to do that. [...] I will strongly instruct the jury to disregard...
Judge Pastor then brings in a case to cite for his rulings. People V. Barton, 37 Cal Ap. 4.....
CH: I think that's the appropriate response.
I believe I have a note that says (Harris no additional...)
JP: Motion for mistrial is denied.
Judge Pastor then references other cases he had mentioned last week. Harper, Barten (sp?) vs Vasques, Harris.
The jurors are brought back in.
Judge Pastor addresses the jurors in the strongest terms.
JP: There was misconduct in this case. No one should have brought in information from the Internet into this case. [...] From the onset, I admonished you not to access the Internet. I admonished you not to utilize a dictionary. [...] We talked to all of you. [...] I believe what you told me. [...] Not only was there a violation, but a significant number of jurors didn't think it was significant enough to bring it to my attention. [...] The bottom line ladies and gentlemen, whatever you may have read from that is wrong, and that is precisely why we tell you not to consult (information off the Internet). It's garbage. It's full of inaccurate information. [...] When a person needs surgery, you don't do it on yourself.
Judge Pastor admonishes the jurors very forcefully that the information is wrong.
JP: The only law that is applicable is the law I have given you. [...] I am no admonishing you in the strongest possible terms you must not consider anything you read, may have read or heard, from this document.
The jurors are excused to go deliberate again. As I was leaving the courtroom, I ask DDA Hum if there were any specially worded instructions like there was in the first Spector trial. He said there were a few word changes, but they were minor and they did not have anything to do with malice. The instructions for malice were the standard instructions. I decide to take the train home. Once I get off my stop on the Orange Line I decide to get in some exercise and walk home, about a mile and a half. As soon as I got home and got into comfortable clothes, I received a call that a verdict had been reached. I immediately got dressed again and started searching for people that could give me a ride. I was lucky, I was able to arrange a ride into downtown from a friend about fifteen minutes later. When I get back downtown, I run into Dr. Carroll Adams in the cafeteria and he kindly bought me a salad since I forgot and left my lunch back home in the fridge.
At 1:25 pm, I get into 107 and sit in the front row beside Carroll. The room quickly fills up with the accredited press. Denise Nix is here along with Greg Risling from the Associated Press. I see Claudia from KFWB and Terri Keith from City News. There are several camera operators and still photographers here that I've never seen before. Brown's parents are here sitting with Patty in the second row, aisle seat. They look solemn.
It's now that I notice for the first time, these exquisite figurines on top of the court reporter's desk. Normally, there is a computer there but this time, it's just Mavis and her reporting machine and that's how I noticed them. There's a metal elephant, and two interesting pieces out of carved wood, a second elephant and the other looks like a rhino. There's also a uniquely painted wood monkey head finished with a fabric dress. Carroll tells me that Judge Pastor brings his staff various items from the trips he takes.
Vania Stuelp from the courts Public Information Office (PIO) arrives and so does Jack Leonard from the Los Angeles Times. PIO Department Head Alan Parachini's here also. Lots more reporters and cameramen. Doug Kriegel from local NBC Channel 4 is sitting in the front row next to the gentleman sitting next to me.
Harris and Yeretsian come out from the holding cell area. More and more press show up. Hum paces in the well, something I've seen him do often. Jane Robison, the press secretary for the DA's office is here sitting next to Kriegel. Alan Parachini comes out of the Judge's chambers and right afterwords, Vania makes an announcement to the press that there will be no texting during the hearing. All cell phones and blackberries must be completely turned off.
I then ask the man next to me what's his name and what news agency is he with. He's with the local Channel 11, (FOX) and his name is Chris. He states that his station covered the first trial. I introduce myself and tell him I covered most of this case until I got sick during the defense case. I also mention my coverage of the second Spector trial. Doug Kreigel then says he's heard of me and asks if I would be willing to talk about the case after the verdict. I tell him that I'm not interested in appearing on camera. He tries to cajole me into doing an interview but I stand firm. The courtroom is now almost completely filled with reporters.
At 1:40 pm, Ms. Benson says, "Ms Theodora (Mavis, the court reporter) and counsel, we need you to come in chambers please."
For the next ten minutes a buzz goes around the courtroom. The camera men are told to leave. I don't see this; Carroll tells me. I look back a few rows at Katie and Lisa (my trial watching friends I met during Spector 2). Katie tell me that it's going to be a hung jury. Katie saw that DDA Hum came over to Sarah and overheard him give her the news. Sarah and her supporters, (her husband Greg and other friends) appear to be in shock. And the tone among the defense attorneys is changed. Yeretsian is smiling. Harris is quite happy, too. I'm in shock too and confused because the message was clear that there were three buzzes by the jury in courtroom 108.
At 1:50 pm we are on the record. Judge Pastor starts out by explaining what happened. Late in the morning he was notified by the bailiff in 108 that the jury had buzzed three times. That's the signal that they had reached a verdict. The bailiff inquired if they had reached a verdict and the response was "Yes."
The jury had regrouped and #7 sent a note to the judge. The note said (this is not exact) We feel that further deliberations will not be (fruitful?). We feel there [...] that the jury is deadlocked. Judge Pastor asks which alternates are here. Alternate #2 and #5. Alternate #4 is not here. It's officially a hung jury. The defense team looks joyful. Sarah is on the verge of tears. I have no idea why she isn't bawling her eyes out by now. Now I get the full note.
We the jury unanimously feel that further deliberation will not sway us from a ununanimous verdict.
When the jury is brought in, Judge Pastor questions the foreman, Juror #7.
JP: NO unanimous verdict?
J#7: No sir.
JP: Do you feel anything further by the court ....
J#7: No sir.
JP: Is this jury hopelessly deadlocked?
One by one, Judge Pastor addresses each juror and asks them a series of questions.
JP: Is there anything the court could do, further reading of testimony, further jury instructions or further argument by the attorneys?
He goes onto to ask them if they are deadlocked and one by one they all agree.
Juror #7, when asked why they buzzed three times, states that since they couldn't reach a verdict, that "was" a verdict. (I'm visibly shaking my head at this answer when he gives that explanation.)
Judge Pastor then tries to ask the foreman what was the split. After a few questions, the juror still doesn't understand what Judge Pastor is asking him. The accredited press beside me is astounded that this juror doesn't get it. Judge Pastor resorts to telling the juror that there were four options. First degree, Second degree, Involuntary and not guilty. I'm having a hard time not laughing because this is a serious matter but the juror is quite slow. I tell Chris beside me that this juror is a medical doctor.
We then learn that the split is six to six. Six for second degree and six for involuntary. I'm in major shock. They all thought he was guilty, but could not agree on what charge.
Judge Pastor finds that there is nothing further that the court could do.
JP: Court further finds the jury is hopelessly deadlocked. There is no unanimous decision to any crime that is [alleged?] or lesser crime. [...] ... good cause to call a mistrial.
Judge Pastor asks the foreman about the first degree charge. The juror states the jury was not deadlocked on first degree, but they did not fill out the jury forms and sign that as a verdict.
Judge Pastor asks to see the attorneys. Afterwords, Judge Pastor addresses the jurors and their right to talk to anyone they want to or not talk to anyone from the prosecution, defense or media. It was there call.
The jury is excused. Judge Pastor tells Brown that he's entitled to a retrial in 60 days. That clock starts now. There will be a hearing in 15 days for motions. Judge Pastor and the attorneys go over their calendar for motion dates. He tells the defense that they need to file their motion (to dismiss I believe) by 4:00 pm on October 13th. The People have until 4:00 pm on October 26th to file their reply to the defense motion. The defense then has two more days after that to respond to the People's motion. They are looking at October 29th, to hear motions, and that day would be day 24 of 60. (Denise Nix of the Daily Breeze in her report of the hearing states it will be on October 28th.)
Outside on the Temple Street plaza, Juror #7 speaks to the press and tells the press that at one point, there was a single juror who voted for first degree. He also stated that it wasn't so much "how" Lauren ended up at the bottom of the cliff, but they could not agree on intent. Afterwords, Pat Harris speaks to the press.
Several jurors met with Sarah to apologize to her that they could not reach a verdict. Juror #9 was crying and hugging Sarah and Sarah's friend. I heard him state that it was the younger jurors that did not get it, that they did not have the life experience (to see this case as murder). Juror #4 also spoke to Sarah. I saw Juror #2 come over and it appeared he had tears in his eyes also. Juror #8 came over to speak to Sarah and I also saw this juror speak to the defense attorneys after that.
By the time this was all over, it was 3:00 pm. Mr. Sprocket was still on jury duty and I thought I would get in another walk and head down to the fabric district at 9th and Wall Street, since I need to price out a 60 yard roll of fleece for my upcoming fleece and flannel blanket sale. I got some good price offers from several different wholesalers. Around 4:30 pm, Mr. Sprocket picks me up and I tell him everything that happened. We are both very sad for everyone involved in this nine year old case.
When I got home, I realized that Judge Pastor may have used the old jury instructions (CALJIC) instead of the new, CALCRIM, because he referred to "8.10 and 8.11" during the morning hearing.
A comparison of CALJIC to CALCRIM at this link, text copied below with the added commentary from the link.
CALJIC 8.10 MURDER--DEFINED (previous instruction; alternatives relating to felony murder and killing of fetus have been omitted for clarity of presentation)
[Defendant is accused [in Count[s] _______] of having committed the crime of murder, a violation of Penal Code section 187.]
Every person who unlawfully kills a human being with malice aforethought is guilty of the crime of murder in violation of section 187 of the Penal Code.
A killing is unlawful, if it is neither justifiable nor excusable.
In order to prove this crime, each of the following elements must be proved:
1. A human being was killed;
2. The killing was unlawful; and
3. The killing was done with malice aforethought.
CALJIC 8.11 "MALICE AFORETHOUGHT"--DEFINED
"Malice" may be either express or implied.
[Malice is express when there is manifested an intention unlawfully to kill a human being.]
[Malice is implied when:
1. The killing resulted from an intentional act,
2. The natural consequences of the act are dangerous to human life, and
3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.]
[When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.]
The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.
The word "aforethought" does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.
CALCRIM 520. Murder With Malice Aforethought (new instruction)The defendant is charged [in Count __] with murder.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant committed an act that caused the death of (another person/ [or] a fetus);
2. When the defendant acted, (he/she) had a state of mind called malice aforethought(;/.)
3. (He/She) killed without lawful excuse or justification.]
There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.
The defendant acted with express malice if (he/she) unlawfully intended to kill.
The defendant acted with implied malice if:
1. (He/She) intentionally committed an act;
2. The natural consequences of the act were dangerous to human life;
3. At the time (he/she) acted, (he/she) knew (his/her) act was dangerous to human life;
4. (He/She) deliberately acted with conscious disregard for (human/ [or] fetal) life.
Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.
COMMENTS: Note the very impersonal phrasing (and passive construction) in the CALJIC instruction: "Malice is express when there is manifested an intention unlawfully to kill a human being." In other words, the defendant must have intended to kill the victim. I suppose that this is becoming my mantra: if that is what you mean, why not just say so?
Also, observe again the abstact quality of the CALJIC instruction. It requires the jury to decide whether "a human being" was killed, and that the killing was done with malice aforethought. Of course, what the jury has to decide is whether the defendant killed a human being, and whether the defendant killed with malice aforethought.
The new instruction continues to use the distinction between express and implied malice, even though it seems to me that this is burdening the jury with unnecessary terminology. I can see no reason for the jury to decide whether malice was express or implied--this unnecessarily complicates their task. All they have to decide is whether the defendant killed intentionally, or intentionally did an act that he knew was dangerous, etc. But the distinction is so ingrained that--after receiving public comment--the committee decided to retain it.
Associated Press article by Greg Risling
CBS 2 News Video Report
KABC Video Story