Casey Anthony: August 21 Hearing Report

Watching the hearing Friday, I had the feeling I was watching a preview of the trial. The defense made it crystal clear what the defense case is going to be. In his early remarks concerning the Motion To Certify Timothy Miller As a Material Witness, California attorney Todd Macaluso came right out and said:

As Your Honor knows, the body of Caylee Marie Anthony was found very close to the Anthony home, and the body was found in a wooded area that if one were to search for a missing child, this is the first place you would go search. There is substantial evidence that we’ve discovered, and that’s been set forth in our brief, Your Honor, that the body or the remains of Caylee Anthony were placed there after Casey Anthony was locked up in the Orange County Correctional Facility. There is substantial evidence, and that proves, Your Honor, her innocence. That’s exculpatory evidence, it proves that somebody else placed the remains in the area where it was ultimately found.

As I was watching, my mind went through all the holes in this defense and I couldn’t believe that Casey’s “all-star” defense thinks they will find any sort of evidence to bolster it. Way back in the beginning of the case and during it’s continuing “media-o-rama,” I recall Jose Baez constantly reassuring us that Casey had very compelling reasons for doing what she did and that we would have to wait for the trial to hear them. I guess they are still looking for those “compelling” reasons. From Casey’s appearance today, I have a feeling that she may have forgotten what her “compelling” reason was and is looking to her team of attorneys to come up with one for her.

Macaluso went on to describe the extensive search of the area and explain that since this is a capital murder case, it is incumbent on the defense to question everyone in the search. He went on and on and concluded that the evidence they would unearth would be exculpatory because it would prove Casey is innocent. He argued that if a person volunteered to search for a missing child and found the child, the remains, or evidence, there would be no expectation of privacy because the person would be a material witness. He continued by stating that if there were 32 or 100 persons who searched the area and found nothing, didn’t smell decomposition, that was also evidence. Macaluso also mentioned that a while ago, a Team Leader came to them and said that over 100 people searched the area and that no remains were discovered.

When I heard this part of Macaluso’s argument, I couldn’t help but wonder if they were relying on the information Joy Wray shared with LE when the body was found. If you look through the motion, you will find snippets of her interview there. In the report she wrote (which is also in the appendices of the motion), she claimed to have been a Team Leader.

After a lot more of the same arguments, Judge Strickland told Macaluso that he was arguing the merits of the case and needed to focus on relevance. The judge found that the information was relevant and wanted to know if he had the authority to certify a material witness from out of state. The judge essentially wanted to know what the defense wanted!

Macaluso said he wanted to depose Tim Miller in Texas and for the defense team to review the documents for themselves and not rely on someone else’s opinion of what was relevant to the case.

He also brought up a possible conflict of interest for Mark Nejame, since he was formerly the Anthony attorney. He stated that the Anthony family supports their daughter’s innocence and Mr. NeJame is now representing TES, which wants to keep the defense from finding exculpatory evidence!

I won’t go into the rest of his arguments, you can read them (if you want) in the motion. At this point, the hearing was at about 12 or 13 minutes!

Mark NeJame was next to speak to the motion. He explained again that the motion was overly broad. Rather than waste time, NeJame said that they had narrowed down the range of information to that which applied to the area where Caylee was found. The rest, he said, was not relevant.

He agreed that a searcher who found the body or other evidence would be expected to be questioned by LE and deposed. There would not have an expectation of privacy.

NeJame also indicated that, in identifying 32 people that he believed were relevant, they had limited the area to within 200 yards of the remains site. He also discussed the chilling effect on future searches if all 4000 searchers were covered by the subpoena.

Then, he offered to have the judge look over all other records and decide for himself. Brad Conway had also reviewed the records without permission to copy and had found fewer than 32 names which were relevant.

NeJame objected to a deposition in Texas due to lack of materiality. He did make an offer to have Tim Miller do a deposition in Florida as long as the scope was narrowed to the 32 people. He indicated that about 22 of these people had already been contacted and none of them had an objection. NeJame did say that the would all say that the area was indeed wet! They would also attest to the fact that the underbrush and vegetation were extremely dense.

Finally, NeJame pointed out that TES is a small, poor organization that would not have the funds to pay the expenses. As he has said before, he’d want a check to cover the expenses.

Andrea Lyon came up next and spoke.. Actually, more than a bit. She rejected the review of Conway and offered to go in to NeJames office to review the documents for themselves. She pointed out that the people making the decisions about what was relevant in the defense would not be aware of what the defense was looking for.

NeJame spoke briefly and stressed the issue of privacy for searchers who were never in the area.

At this point in the hearing, I’m starting to get tired of hearing about this issue! It is obvious to me that the defense is absolutely desperate to find ONE person to say they searched the exact area where Caylee was found and that it was dry and that there was no body. According to what Todd Macaluso stated earlier, it would be incontrovertible evidence that Casey Anthony was totally innocent!

The judge eventually stated that he would make a decision next week. I have a feeling that he will make a decision that closely resembles what they seemed to agree with, that the defense could review the documents and possibly identify other searchers at their own expense.

The next issue that came up was the motion to quash the subpoena filed by William R. Jay, Tony Lazarro’s attorney. This was a relatively simple discussion since other witnesses had set the precedent and that Baez had already limited the motion he had filed.

Jose Baez said that Tony Lazarro was noticed at the address on the witness list. He said he’d received a brief from Jay the at 4:00 PM previous day.

I was very impressed with Mr. Jay’s representation. Since it sounds like Tony is the next candidate to be subject to being shoved under the bus, he needs a good attorney!

Mr. Jay indicated that Tony had not been noticed and that he himself had only learned of the amended motion on Wednesday from a third party, which is why he had submitted his brief so late.

Jose Baez then made his main new point for obtaining calls from the end of September on was that Caylee’s remains were found December 11, 2008. He also assured the judge that he was not “in the business of throwing things out to the public” and that he found that “tacky, unprofessional, and unethical.” He also insinuated that the presser Tim Miller and Mark NeJame the day before was “tacky” as well.

My favorite statement from Judge Strickland here was... “tackiness not withstanding...”

Jay made a point that he didn’t want records from September released as the defense hadn’t established relevance. Judge Strickland acknowledged that the body had been found December 11 and felt that since the defense was indicating someone else placed the remains at the site after October 14, that time period was relevant.

In the end, the judge ruled that phone call records for June 1 - December 18 would be turned over within 30 days. If the cell tower pings are in the records, the defense could also have them. The judge ruled that text messages and internet were out for the time being. The judge will review the documents as to what information is material to the case.

If the cell tower pings are available, I’m sure the defense will put a great deal of time and effort attempting to track Tony to Suburban Drive within the appropriate time period!

The Motion For A Protective Order on Leonard Padilla, Rob Dick, Tracy McLaughlin, and Tony Padilla is addressed.

George Anthony takes the witness stand and swears to tell the truth.

Baez asked George how Leonard Padilla and his "employees" introduced to him. George stated that Baez introduced them to him as security staff. He then went on to tell their duties and responsibilities around the Anthony home. George indicated that they stayed out in front of their house, had Tracy McLaughlin inside the home and that others patrolled around the house and in the yard of the house behind theirs. Baez asked George how the various people communicated with each other. Nothing much was established there except that he saw Rob Dick with a potable radio or walkie-talkie at one time. He also elicited that the mobile home parked out front was the command center.

George also indicated that Padilla and his people transported Casey to and from her home confinement officer and to Baez’s office. He stated that he and his family felt safe with the security provided. They had no concerns for Casey’s safety as there were always 4 or 5 people around her all the time. Baez also brought up the protesters who were in front of the house. George pointed out that they were frequently threatened.

Baez also testified for his witness by stating that this was a publicity stunt for Padilla and that he felt it was an “necessary evil.” George agreed.

Linda Drane-Burdick then cross-examined George. At this point, I remember thinking that George was gearing up for another “deposition” act. He picked apart words and tried to avoid giving definitive answers.

In the matter of security, Drane-Burdick elicited from him that Padilla contacted him through Baez. When asked if he was aware that Padilla was there to help find Caylee, he answered that Padilla may have “taken it to that level,” but, as far as he was concerned, Padilla and his crew were simply there for security.

George also claimed that he couldn't remember that it was Leonard Padilla who personally posted the $50,000 cash to bond Casey out of jail. He said he thought it was Tony Padilla who did so. (I’m not buying George’s poor memory at this point!)

George waffled a bit more when Drane-Burdick asked if he met the Padilla group at a warehouse on Orange Blossom Trail. He answered "no." After a bit more questioning, he then described the location where they met as an office complex on Orange Blossom Trail! Baez was not there.
When asked if this meeting occurred several days before Casey's release from custody, George said he was not sure.

George was also vague on his recollection that the main purpose of the security was that Padilla and his people were there to secure their asset, Casey Anthony. George grudgingly admited that was true, but that they were mainly there to protect the entire family.

When asked if any of these security people provided legal services, George asked for a clarification. He then went on to say that they were there for security only, “protecting us and our daughter.”

Drane-Burdick went on the ask if he was in the security business as a security officer. George said he wasn’t “at the moment.” She went on to ask if he could have gotten friends in the business to help. George answered, Yes, he could have if he "would have put out the effort."

George then went back on a “deposition rant” when asked about a friend of his from Ohio, Jim (what’s the relevancy?) Campbell. Judge Strickland quickly put him in his place and had him give the man’s last name. George pointed out that Campbell arrived in Orlando after the security people provided by Padilla were in the house.

As Drane-Burdick was asking a question about the arrangements with regards to the rules set by Baez about conversations with Casey, George started to talk over her. Again, Judge Strickland reigned him in and allowed the prosecutor to finish her question. ( I’m glad the judge is trying to educate Mr. Anthony on proper conduct in a court of law!)

It was finally established that the rules were that the Padilla team members were not to talk with Casey about Caylee unless Jose Baez was present for the conversation. If Baez was not present, a member of the family had to be there. It was also brought out that George was unaware of the privacy agreement or the terms it contained.

The next topic Drane-Burdick brought up was whether or not the members of their family were working at the time. George stated that he worked sometimes, but that Cindy and Lee took leaves-of-absence from work and therefore a member of the family was always in the home during that particular time out on bond.

She also asked if Cindy or Lee could have transported Casey to her attorney’s office. He mentioned that Lee took her once and that the “security” crew followed them. The family members were always available to take Casey on her out of home-confinement jaunts .

Drane-Burdick then asked if he or Cindy was present in the home when Tracy spoke to Casey. He said that they were and that Lee was in and out of the home during that time. She asked if he could hear those conversations if he so chose. George stated that he didn’t because he didn’t want to eavesdrop. He stated he wouldn’t follow them around to listen.

Hey, wait! Didn’t George just say he was aware of the rule that Tracy couldn’t talk to Casey without Baez or a family member present? George even says he can’t remember if they were ever behind closed doors!

My notes have the following at this point:

DOESN'T GEORGE REALIZE HE JUST SANK THE ARGUMENTS? HE AND THE FAMILY WERE THERE TO FOLLOW THROUGH WITH MONITORING COMMUNICATIONS AND THEY DIDN'T!

That was the end of George’s testimony and Drane-Burdick indicated to the judge that she has CD’s with police interviews of Leonard Padilla, Tracy McLaughlin, and Rob Dick which she would like the judge to listen to. (This is the information we have all been waiting to get!) Jose Baez objected to this as not being relevant since the prosecutor didn’t call them as witnesses. Drane-Burdick argued that the interviews are relevant and that Jose Baez had presented an argument here in court that is not in line with the information he presented in this motion. His motion was far more expansive in content.

She then continued on to indicate that heresay is admissible in a hearing and it was not necessary to fly the witnesses in from wherever they were. The judge indicated that he would listen to them and give them the weight he chose.

Drane-Burdick then began dropping the bombshell of the day. She indicated that Baez had presented copies of documents in his pleading and had not produced the originals. She was referring to the privacy agreement signed by Baez and the Padilla crew. She indicated that there had been no testimony presented at the hearing about them. She wanted to see the originals before deciding to object to them at the hearing. Baez says he didn't have the originals with him but could provide them to the court and to the State. He stated that HE could represent them as “a true and accurate copy” in the same way Ms. Drane-Burdick represented the nature of the interviews she had submitted.

The judge said that Drane-Burdick can review the originals Baez would provide since he had to listen to the interviews before ruling on the motion.

Strickland then asked Baez to state his argument for privilege. Baez indicated that when approached by Padilla asking if he would mind if he bonded Casey out, he stated that “anyone in their right mind” would say no to the offer.

Drane-Burdick objected to Baez testifying to this matter. She wanted proof of the facts that he was stating.

The judge asked her to follow up in rebuttal.

Baez stated that after meeting Padilla, he decided he needed some sort of agreement due to the unusual circumstance. He said it was difficult to anticipate what the group would do or what would happen in the future. He claimed he searched the entire law library to find some document that would apply. It’s at this point, he referred to Padilla as a “flamboyant cowboy.” He stated that if there were any confusion about the agreement, everything would lean in favor of Casey’s constitutional rights. Therefore, the privacy agreement created confidentiality.

At this point, Judge Strickland asked if this was a situation where Padilla and crew rendered legal services. Baez argued that they did. He said that he felt responsible to provide round-the-clock security for Casey. He stated that, as they served in that security role, Casey felt comfortable to speak freely before them and THAT was part of the legal services.

OK, gang, I’m not getting this. What we read in the agreement provided by Baez and testified to by George Anthony was that the Padilla crew members were NOT to speak about the case with Casey UNLESS either Baez or a family member was present. Casey was smart enough not to talk about the case with LE after she lawyered up, yet she felt free to talk in front of security people? Add in the fact that the security people were there to protect their “asset,” and we have a simple situation where Casey just blabbered on to Rob Dick about the abduction at Blanchard Park! Perhaps she was out to gain his sympathy?

The judge interrupted Baez’s argument to say that Ms. Drane will argue, “You get your flamboyant cowboys as you find them” and to explain the situation to him.

Baez responded by comparing “security” to a “rogue paralegal.” I didn’t quite get the meaning, since security people don’t necessarily have any legal training!

Moving on, this article is getting way too long!

The judge stated that he’d never seen a motion like this before.

At this point the judge got into a discussion with Baez as to why HE is bound by the agreement which is between Baez and Padilla & Co. I didn’t follow all of this and I’ll move on.

What was most interesting in this exchange was that the judge felt that Baez was treating the situation as a Fourth Amendment violation rather than a civil situation. He pointed out, using the same phrase I used in my last entry, that “the horse had already been let out of the barn,” that Leonard Padilla had spoken frequently in the media about the case. Baez’s response was that he had been too busy to deal with it and would take it up at a later date in civil court!

HELLO? Baez had every opportunity to slap a gag order on Leonard Padilla a year ago! Meanwhile, a great deal of what he learned and what his people learned has been around for a long, long time!

I truly believe that the entire problem here is that Baez is suffering from some very bad decisions he made at the get-go in this case. This situation is of his own making, owing to his inexperience at handling complex cases such as this.

I noticed Ashton was widely grinning and raising his eyebrows at this point. I suppose he thinks as do on this matter. I do hope that he works on his demeanor when there is a jury present.

Linda Drane-Burdick then argued the fact that while notice of the motion was sent to and address in California purported to be that of Leonard Padilla, none of the others were legally noticed. Apparently, the media was not noticed either. She also pointed out that this isn’t the first time there has been lack of notice.

She also pointed out that case law states that only those statements made in the rendition of legal services are privileged. Baez’s motion does not lay out which statements are subject to the privilege, IF Baez’s agreement gave the “security” people privilege.

She then continued by pointing out the alleged oral agreement mentioned in the motion. The motion does not even make clear if the oral agreement was made with Baez or some other member of his firm. There was no testimony at the hearing from any witnesses concerning this alleged agreement. The defense had not established proof that this agreement ever took place. Even if it did exist, it would not prove anything more than a business arrangement, certainly not an agreement to provide legal services. She further indicated that the oral agreement, if it existed, came before any written agreement. Leonard and Tony Padilla were not going to post and assure the bond unless they could monitor Casey and protect their investment, since the risk was so great. Once Casey was released on bond, Baez changed all the rules. He said only Tracy could stay in the house. She pointed out that as far as civil actions were concerned, Baez had breached his own agreement!

Drane-Burdick then dropped the rest of the bombshell. Apparently, Tony Padilla had stated that the agreement in the motion was not the same agreement he signed. She said that Tony Padilla had informed her that he had signed a separate document. He also told her that he had asked for, but not received a copy of the document he signed. He wanted to make it clear that, in the document he signed, he was a separate entity from his relative, Leonard Padilla and the others. She also pointed out that the other three were not one business entity either.

Drane-Burdick pointed out to the judge that he must go by the "four corners of the document" and that one cannot contract for privilege. The contract even stated that there was no relationship between Baez and the others. She mentioned a great deal about the situation and said that Baez had told Casey not to talk about the case with them! In addition, as was said before, there were always people in the house around Casey who could hear the conversations and the presence of a third party negated privilege.

In his final rebuttal, Baez continued to try and fight his way out of a wet paper bag again by asserting that there was privilege. He seemed to take great umbrage at being accused of “manufacturing false evidence” and being asked to provide original documents. The judge quashed any further comments about this by stating that all Baez had to do was show her the originals and it would all be over!

Finally, Baez admitted that not all of what Casey said to the security guards could be considered privileged information and would be subject to testimony. He also stated that he was not responsible to notice the media every time he wanted to assert attorney-client privilege and that all parties (Padilla & Co.) were noticed for the hearing. He stated that Drane-Burdick had “shot herself in the foot” by not authenticating the audio interview through a witness. He even indicated to Judge Strickland that he was in essence saying that he would say that he believed everything the State said, but not what he, Jose Baez said.

I do believe that he is still smarting from being asked to produce the original documents!

Again, the judge will consider the motion and not rule today!

We finally got to the Motion to Set A Trial Date. This discussion was more cut-and dried than the previous one. In brief, State’s Attorney Frank George stated he wanted to schedule a speedy trial because:

The State is ready to proceed with the trial.

The time frame of the trial is brief, July 8-July 15 (2008). While there are overlapping witnesses, the testimony will be such that it wouldn’t involve the murder case.

Mr. George stated that the defense has two reasons to postpone the trial: 1) they are too busy and 2) they won’t be able to get a jury.

There is only one attorney of record of case for the trial, Jose Baez. The motion Baez filed stated that Andrea Lyon would also deal with the case. So far, there has been no motion filed to do so.

They are all busy, he has 80 other cases he is involved in. Jose Baez has 20 other cases he is involved with, most of them new cases taken on since the state reinstated the death penalty.

Gee, I wonder if Casey knew this?

My favorite quotes from Mr. George were that, “Mr. Baez isn’t living and breathing the Casey Anthony murder case 24/7" and, “Ms. Lyon hasn’t quit her day job, either!”

They can give this case a day of their time.

Amy Huizenga has filed an affidavit that states she wants to get this case over with because it’s causing her stress and embarrassment. She has had difficulty finding a job because of this.

This would be a one day trial with 15 witnesses at most, not including jury selection.

While getting a jury is a problem, they can try. Why not have a bench trial?

Even though she has no standing in this case, the Court allows Andrea Lyon to speak to the motion.

Since this article is getting very long, I will spare you the details of all she said. She basically blamed the state for the delay, as was stated in the motion. She spent a great deal of time explaining how the enormous amount of work that needs to be done to save Casey Anthony from the death penalty.

Mr. George rebutted briefly and the major point he made was that the case should be placed on the docket. He added that if Casey's current attorney's were too busy to handle this case, she should have further counsel.

Again, the judge will make a decision next week.

Additional Sources:

Video of Hearing

Tim Miller:
Materiality
Appendices
Memorandum

Leonard Padilla & Co.
Brief
Privacy Agreement