Casey Anthony Hearing, December 11, 2009

It seems like yesterday that we heard that the bones of a small child had just been found on Suburban Dr., just around the corner and down the road a bit from the Anthony family home. Deep in their hearts, people knew it was Caylee Marie Anthony.

It's been a year now, and to mark this sad anniversary, I dedicate this hearing review to her memory.

It's all about finding justice for this little Angel.

It seems ironic that one of the most explosive and emotional hearing took place on this same date, one year later. It was a hearing where the State laid out a graphic description of a possible scenario for her death and her mother showed some very strong emotions.

The hearing began with the issue of Dominic Casey's upcoming deposition. Casey had filed a Motion To Strike Notice Of Deposition And Motion For Protective Order. In the motion, the key element to the case was:

3. That there is no area of inquiry of Mr. Casey that would not be privileged (see attached privilege log filed in Gonzalez civil case dealing with the same issues). 7. The only arguable areas that have had a partial waiver of confidentiality are the areas of inquiry by law enforcement of Mr. Casey having looked in the area of where the body was ultimately found in the months prior to it being found. This transcript reveals that there was no incriminating or relevant information relating to the prosecution of Casey Anthony revealed during this interview, nor was any intended.

In an interview on InSession prior to the hearing, the Anthony family attorney Brad Conway said that he had spoken to Assistant State's Attorney Linda Drane Burdick As a result of this discussion, he didn't think that neither he nor Cindy and George would have to testify in the matter. He added that since he, as an attorney, had not hired Mr. Casey, the Anthonys, as private citizens would generally not have an expectation of privilege in the relationship. He said that Mr. Casey had agreed to do the deposition and go through it question by question regarding "privilege".

Once in court, Casey's attorney, Diana Tennis essentially argued to Judge Stan Strickland that Dominic Casey was not on the witness list and therefore not able to be deposed. She also indicated that Casey did not want "any more involvement in this case than is required by the court..."

Linda Drane Burdick had apparently filed a response which dealt with privilege versus the information provided by Ms. Tennis. In order for the State to question Mr. Casey, they would have to issue an investigative subpoena. If Jose Baez wanted to be present at an interview of such nature, he would have to add him to his witness list.

One thing that I noticed was that Ms. Tennis kept discussing the Anthonys waiving their "privilege" and Linda Drane Burdick also mentioned that they did not have privilege. This seems very confusing since none of the information the State is looking for comes after Casey and Baez parted contractual ways in October, 2008.

In the end, it was decided to issue an investigative subpoena and carry on with the scheduled interview later in the month. Baez indicated he might add Casey to the witness list in order to be present.

Strickland indicated that there "may be more to do about this" in terms of a future deposition.

The next motions up were those concerning the videos:

MOTION TO DESTROY VIDEOS OF FAMILY VISITS
MOTION TO PROHIBIT VIDEOTAPING ATTORNEY VISITS

Andrea Lyon stood and asked the judge how he was feeling today. Strickland replied with a somewhat ironic answer, "just sitting on a rainbow".

She then began her presentation, merging the two motions. She indicated they are not addressing the videos that have been released. She filed a response to the County's response the previous day.

After a faltering beginning, Lyon stated that she would begin with the video taping of attorney client meetings. She gave a detailed description of the classroom where they meet with Casey who would be brought to the room in shackles. She described how Casey would sit with her back to a plate glass window that opens onto a hall where there are two guard stations with views of the room. She indicated that there is a video camera, whose audio, they say, is disabled up on the wall in a corner with a red light on. She said that there was also an intercom in the room and that they can hear it click from time to time.

Because of these obvious indications that the conferences could be overheard, Lyon indicated that they felt uncomfortable when speaking to their client. Since this is a death penalty case and they have to discuss intimate and embarrassing aspects of Casey's life. She said that they are easily observed by the guards and that Casey is a small, shackled person who does not pose a threat to her, a larger person. Lyon said that the camera should be turned off.

Lyon also told the Court that pictures have been released as well as incidents (hugging?) have been reported to the media. Lyon wanted all those videos destroyed.

She pauses and asks if there are any questions. Strickland tells her to move on.

She then moved on to the family and friends' visits. She described the meeting situation, rather inaccurately. She described the meetings as being over a phone (correct) with Plexiglas between the parties (incorrect), with no way below them to pass items (incorrect).

Lyon needs to learn the set up for visits in Orange County Jail! They are done by video and the parties are in separate buildings.

Moving along, Lyon indicated that phone calls can be recorded, but there is no need to keep them once it is determined there is no breach of security, no "escape plans" In this case the tapes get on the Internet and are dissected by voracious media and people and creates legions of prejudice. She went on to say that there is no need for that to happen. If they are not needed for reasons of security, there is no need to keep them.

Lyon moved on to say that the State of Florida is trying to kill her client (warning, she, and now Baez, are throwing around that word quite a bit). She said that Casey needs the support of friends and family. She can't meet with them due to the current situation.

When Lyon said, "Casey has needs for someone to just come and say 'I Love You'," Casey got all "teary-eyed" in her first show of emotion for the day and dabbed at her eyes.

Lyon told the judge that he has jurisdiction to change the rules.

Cindy sniffled...

Lyon told the judge that he could seal the videos so the public has no access to them, he had already sealed one video in the case, he could do that again.

Just a reminder, the video that was sealed was the one of Casey's reaction to the news of the discovery of the skeletal remains of a child not far from her family home.

Lyon told the judge that he can find that the annoyance and embarrassment outweighs the law.

Her conclusion was that the jail should cease taping attorney-client meetings and that family videos should be reviewed. If there were no security issue, they should be destroyed.

One thing Lyon failed to note was that LE can watch the meetings as they are going on. In them, they could find Casey imparting incriminating evidence or other indications of guilt and they could be used against her in a court of law!

Tammy Gaffin, the Orange County attorney spoke for the jail. She pointed out that the jail is well run and one of only 300 accredited jails in the country. The jail is required by law to follow certain procedures for security and risk management. They would be breaking the law if they destroyed videos. She indicated that the public records law in Florida allowed any citizen to file a Freedom of Information Form and receive copies of the videos. Following her presentation, an attorney from the Orlando Sentinel spoke briefly and backed Ms. Gaffin's statements.

To keep this short, the judge stated he will rule on the motion the same day or the following week. It will be interesting to see how he handles the lawyer meetings issue. As for meetings for poor, stressed-out Casey, I doubt the judge will give her any relief on the issue. Quite frankly, if all that happened in these meetings were "Kumbaya Moments", nobody would care to see them. The problem is that the family is full of loose cannons on both sides of the video screen. As for friends, one can only wonder how may "friends" Casey has left to visit her. The last time Casey's pastor came to offer consolation over the discovery of Caylee's remains, she left him cooling his heels and ultimately sent him away.

The next item on the agenda, STATE OF FLORIDA'S MOTION FOR PROTECTIVE ORDER REGARDING RECORDING OF INTERVIEW OF JOE JORDAN was reviewed in my previous article. It was dealt with in rather short order. Drane Burdick explained how the tape came to be made while Mr. Jordan was on the phone with Baez's investigator. She also indicated that Jordan's statement made to her may contradict the what is on the tape. Baez jokingly said he'd like to hear it but wouldn't want Ms. Drane Burdick charged with 13 felonies!

Judge Strickland said that he would grant the motion for now and that it may come up at a later time.

It will be very interesting to follow what happens with the whole Texas Equusearch situation. Thank goodness, that will be left to another hearing which could prove to be a true humdinger, especially if the Roy Kronk mess is dealt with at the same time!

At this point in the hearing, there was a ten minute break. When the hearing resumed, the

MOTION TO DISMISS COUNTS 1,2,4,5,7,8,10, 11, 13 FOR VIOLATION OF DOUBLE JEOPARDY CLAUSE and STATE'S REPLY TO MOTION TO DISMISS COUNTS 1,2,4,5,7,8,10,11,13 FOR VIOLATION OF DOUBLE JEOPARDY CLAUSE were discussed.

Baez stated that the defense positions are clearly outlined in the pleadings. He said that he wants to insure that Ms. Anthony is treated like any other individual. He said he "took issue" that there were 13 counts for writing four checks. He asked if the state can stand up and say they treat everyone that way. He stated that he takes "serious issue" with this issue. An armada of police car came down Hopespring Drive....

Judge Strickland indicated that he had read motion and understands his thoughts

Assistant State's Attorney Frank George, the lead attorney in the fraud case, stated that they also rely on the motions to speak for themselves, wouldn't address Baez's editorial contents.

Judge Strickland said he would decide Friday or early next week. He did indicate that this case would be resolved by trial/plea before the capital case. He stated that he will treat Casey like everybody else, but this charging situation is not unusual.

The judge indicated that since Casey has no priors, and since they were felonies, she could, if found guilty, get some jail time with concurrent sentences.

I think we all pretty much know what will happen some time this coming week on this one. There was an also not-so-subtle indication to the defense that this trial will not be continued!

Finally, the blockbuster part of the hearing came when the defendant's MOTION TO PRECLUDE THE DEATH PENALTY PROCEDURES.

Death-penalty attorney Andrea Lyon addressed the court for approximately 40 minutes. I will provide as brief summary as possible of what she discussed before the court.

Lyon first addressed the issue of "bad faith" mentioned in her motion. She stated that the reason State had asked for death penalty is that they want to get as biased, conviction-prone jury as possible. She said that the State's case is based on the presumption that since Casey didn't report daughter missing, she killed her. She indicated that a death-qualified jury is more conviction-prone and that she would discuss it later.

She went on to say that the death penalty was not appropriate because State removed it on December 5, 2008 because they didn't have a strong enough case to pursue it. She continued on to say that after the remains were found, that the State's case was even weaker because the autopsy provided no proof of how the Caylee Anthony died.

Lyon went on to mention such factors as the fact that this is a 100% circumstantial case and that there was a lack of good faith on the part of the prosecution (nothing personal). She indicated that the prosecution gets to decide what to charge, the defense has no say. However, this ability is not unfettered. She cited that there is an impermissible motive: that a death penalty here is being used is to coerce a plea. She stated that in this case there is insufficient evidence to establish 1st degree/capital murder. The defense can't prove premeditated design or that the death occurred during the commission of a felony. She said that the State had no way to prove method of death. She also said that there was no such proof in the 10,000 plus pages of discovery.

Lyon continued her arguments by stating that there were insufficient aggravating circumstances to bolster the charge. She listed all those that could not conceivably apply. Among them were that the murder was heinous, atrocious, or cruel. She stated that the State had not "deigned" to tell the court what they were. She said that the State could not prove that there was suffering or unnecessary pain.

Lyon indicated that there was no proof of cruelty or torture. The State could not say if the victim have knowledge of her impending death.

The only circumstance that the State could prove was that the victim was a child under the age of 12. (One is the magic number in a death penalty case, the State needs only to prove one aggravating circumstance.) She repeated that the prosecution cannot establish that the crime was cold, calculated, or premeditated. She continued by stating that the prosecution cannot prove Ms. Anthony committed another felony in the process of the murder, that of aggravated child abuse.

Lyon then said that EVERY witness the police talked to saw any proof of abuse and that Casey was a good mother who loved her daughter.

During Lyon's statements, Casey was continually sniffling.

Lyon went on to discuss the one aggravating factor that the State can possible have, that the victim was under the age of 12.

That the victim was vulnerable due to age and under authority of another, she asserted, has only been used in the cases of the elderly.

Orlando Sentinel


She also said that the under 12 aggravating factor is not offender related, it doesn't show that age is a factor. It only requires a birth certificate and that it has been ruled that a birth certificate alone is not enough to prove vulnerability.

Lyon didn't think this would pass Constitutional muster because it only applies to state of the victim and has nothing to do with the offender.

Intermixed with her arguments, Ms. Lyon mentioned that the death penalty was reserved for the "worst of the worst" criminals. She formed a pyramid at with the "worst of the worst" of murderers at the very apex. One case she cited was that of a child beaten to death by her mother with a baseball bat. The pain the child felt would have been the aggravating factor. She pointed out that in this case and in others, the State did not ask for the death penalty.

What happened next is that Ms. Lyon went on to give a lecture to the judge about various sociological studies concerning death-penalty qualified juries. To sum up her major point, she said that death penalty juries tend to be homogeneous, with all members of a single mind concerning the death penalty. Mixed, non-death penalty juries talk more about the case in their deliberations. According to these studies, mock death penalty juries made mistakes and non-death penalty juries didn't.

Since that was true, based on all the studies she mentioned, she felt it meant that the State shouldn't impanel a "politically homogenious death-penalty qualified jury" because it would be unfair to her client. It was a rather ingenious argument.

Personally, I felt that her long lecture to the judge was more appropriate for the Supreme Court.

Finally, Judge Strickland interjected that even while her comments "resonated with him" , this had "been done". Later on, he indicated here that she was "reinventing the wheel".

State's Attorney Jeff Ashton began his argument next.

He began by stating that the defense had been "arguing their opinion, not the law". He then stated that in the State of Florida, all Grand Jury 1st degree indictments automatically includes the death penalty. He essentially stated that it was not up to the prosecution to make the decision, it was up to to jury, should a guilty verdict be reached. All they can do is to decide to let the jury decide. He also stated that the prosecution believed that the discovery of the remains had provided information that had given the State a stronger case. It is also noted that aggravating factors cannot be determined prior to trial.

Then, Ashton made the comment that of course, Ms. Anthony is presumed innocent, he went on to give the following "summation" of his case if she was deemed guilty. It was brilliant, and it was moving.

Caylee was almost three when she died, with duct tape over her nose and her mouth. Any child of that age should have had the physical ability to remove the duct tape covering her airway and preventing her from breathing. And the evidence in this case would indicate that Caylee was, if not average, above average in that regard.

A juror might conclude, then, that she must have been restrained, either chemically or physically.
If chemically restrained, her killer prepared some substance in advance that would render her physically unable to resist, administered the substance, awaited its effect, and then methodically applied three pieces of duct tape to completely cut off the flow of air to her mouth or her nose and let nature take its course. At least, Caylee wouldn't have had any fear.

How would jurors apply those facts to the law the court would give them?
If she was physically restrained, her killer would have had to restrain her arms by some means, applying tape while she was conscious. As the killer looked into her face, maybe her killer even saw her eyes as the tape was applied, first one piece, then two, then three, so that no breath was possible. Could Caylee have understood what was happening to her? Did she try to resist? Could her killer see the fear in her eyes as the tape was applied?

These are questions only the jurors will be able to answer in this case.

One thing we do know is this: if we have gotten to this stage, those same jurors have already decided that the face that Caylee Anthony saw in those final moments of her life was her mother’s face. Anyone who contends that no juror could find that these conclusions call for a sentence of death is only fooling themselves. Thank you.

Needless to say, this speech had a profound effect on those listening. Cindy Anthony bolted from the courtroom followed by George and some of their supporters. Casey could be heard over the microphone asking her attorney to "make him stop." Casey also had a very visual reaction and Andrea Lyon spent a great deal of this time holding onto her arm. I won't even fathom a guess as to what her expressions mean, I'll just post some pictures here.



Orlando Sentinel





Andrea Lyon spoke briefly at the end and made it a point to say that she appreciated the fact that Ashton had reminded "whoever was listening" that Casey is presumed innocent. She also stated that there was no evidence that the duct tape had anything to do with her death. She went on to speak a bit more and reminded the judge that he could rule for the defense in this case.
The experts have already opined that this motion has no chance of being granted, but we will have to wait and see.
The hearing ended with Judge Strickland saying that he had heard some good lawyering today and that they have a date of January 25 at 10:00 AM for fraud trial. The jury selection process will begin next week.

For those of you who haven't had the opportunity to view the hearing, I'm posting it here. There's no way I can tell you everything that happened or you would be reading a far longer post!

RAW HEARING: 1. Part 1 Part 2 Part 3 Part 4

The death penalty section begins in part 3 and continues throughout part 4. Mr. Ashton's comments begin at approximately 17 minutes into part 4.