Perry Hears Death Penalty Motions: Hearing in the murder trial of Casey Anthony

Today's hearing has just ended and I'm staring at piles and piles of notes. There was a great deal of back-and-forth between the defense and the prosecution and a surprise witness. Today's hearing was one rich in eloquent lawyering, and I recommend you watch some of it for the details I have not included!

I must also say that it wasn't a good day for Casey Anthony. Everything heard by the court today dealt with the death penalty. She fidgeted a great deal and had some "teary" moments when she wiped her eyes with her tissue or wiped her eye with her finger and wiped her finger on the tissue.

The defense, represented by Andrea Lyon, presented a total of six motions today, which leaves eleven outstanding.

The first motion discussed was the MOTION TO PRECLUDE THE STATE'S IMPERMISSIBLE, GENDER BIASED, REQUEST FOR IMPOSITION OF THE DEATH PENALTY.

(I have had difficulty getting individual links to work and you need to go to the site and click on them as listed on the lower right-hand side.)

Andrea Lyon presented a surprise witness, Elizabeth Rapaport, an attorney from the University of New Mexico School of Law. Assistant State's Attorney Jeff Ashton objecting, indicating that the defense had not listed this person as a witness, nor had he received a copy of her CV.

Judge Perry allowed her to testify and gave her wide latitude. She has done a number of studies about gender bias in death penalty cases. She testified about the prejudice in courts towards women who are accused of killing their children. She also pointed out that such cases are rare. She stated that women who kill their children will elicit extensive media attention. If the mother lives a life style of partying, having different sex partners, is "scantily clad", watches male strippers, and so on, they are judged by their behavior, not their ability as a parent. She pointed out that such a woman can be a good parent, providing nurturing and care to her child.

Mike Brooks on InSession just pointed out that a good parent does not wait 31 days to report her child missing, how apropos as I write this!

Jeff Ashton asks Ms. Rapaport if she has any background in child psychology or child and adolescent development. She says she has none. She also admitted she knew little of this particular case. She did add that if a man or woman who led a lifestyle we don't admire, but were there 100% for the child physically and emotionally could be good parents. She also said that some prosecutors and some media used such information to inflame the public to the point that whether or not the woman did kill her child would not be the main issue.

Ashton got a little hot about the relevance issue and was admonished by the judge. He asked her if there have been times when a court has deemed some of these issues relevance.

This is a part of the hearing you have to see for yourself! It is a preview of things to come in the trial itself.

In the end, Judge Perry denied the motion.

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Andrea Lyon then presented two related motions for consideration: MOTION TO DECLARE FLORIDA STATUTE SECTION 921.141 UNCONSTITUTIONAL UNDER RING V. ARIZONA and MOTION TO DECLARE FLORIDA STATUTE 921/141 UNCONSTITUTIONAL FOR INADEQUATE APPELLATE REVIEW.

Lyon explained that, in Florida, the jury finds a defendant guilty beyond a reasonable doubt but, in the penalty phase, the jury does not need to agree about aggravating factors. She said that the law mentions "aggravating factors", meaning that there must be two. Judge Perry says that the law says there must only be one. She asked the judge how he could go forward when the statute cannot be constitutional as it is in opposition to Ring v. Arizona.

Ashton indicated that in her motion, she had agreed that the Florida Supreme Court had ruled on this issue. He also said that the case hadn't come to trial yet and there were no facts yet. The facts haven't been heard and the jury has not ruled. He told the Court that the motion was premature.

Lyon concluded by stating that if the defense were right, this is the correct time.

Judge Perry stated that the Court is bound by Supreme Court decisions in 2002 that upheld the Constitution of Florida's death "scheme". He cited the decisions and denied the motions.

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I don't have a specific reference to a motion for the next one. It refers back to the December 11, 2009 hearing in which Jeff Ashton made his eloquent "closing" argument concerning the death of Caylee Anthony. That was the hearing where the defense wanted to know the aggravating factors being used in the case. At that time, Judge Stan Strickland ruled against the death penalty. Apparently, there was a response from the state which argued that the defense should be able to figure out the aggravating factors.

In Ashton's reply, he argued that if the state had to supply aggravating factors, the State wanted the defense's mitigating factors.

This argument was Jeff Ashton at his best! He was indignant and fiery in his representation of the need for reciprocal discovery.

After the arguments back and forth, Perry granted the motion.

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Lyon then presented her case for the defense motion: Protective Order with Respect to Penalty Phase Discovery. She wants this information sealed to protect potential witnesses in the penalty phase from harassment. The defense does not want to present this information prior to the trial. Lyon believes these witnesses have a right to privacy considering what has happened to other witnesses in this case.

Jeff Ashton pointed out that the defense had agreed to participate in discovery. He said that they had taken full advantage of the State's discovery and now don't want to reciprocate. Ashton said that the Court has the right to restrict information concerning witnesses, but that he believed Roy Kronk finds the irony in this situation "quite rich". He further indicated that the State wouldn't be able to rebut without discovery.

Andrea Lyon pointed to the attempted suicides of two witnesses as an example of the effect of the publicity on potential witnesses.

Perry cited case law and denied the motion. He did indicate that if some particular witness were facing public harassment, the names could be withheld on a case by case basis.

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The final motion presented today was the SECOND MOTION TO PRECLUDE DEATH PROCEDURES FOR IMPERMISSIBLE PROSECUTORIAL MOTIVES. This is the motion the defense filed which essentially says that once the State learned how much money the defense had at its disposal last March, they put the death penalty back in play so that Casey Anthony would be forced to spend all her money and not have the right to counsel of her choosing.

Andrea Lyon began by pointing out that some of the information was still under seal (from the in-camera hearing last year).

Judge Perry said that they would deal with this at the sidebar.

Jeff Ashton said he wanted to know that information!

The judge said he would know, at the sidebar.

Lyon then stated that the timing and behavior of the state after the disclosure of the amount of money available to Casey Anthony, was not a coincidence. Even though there was no cause of death, no evidence of the cause of death, after the State became aware of the amount of money at the March 12 hearing, the State had put the death penalty back on the table so as to interfere with Ms. Anthony's ability to have counsel of her choice. She indicated then that what was to be discussed next was under seal. Prior to approaching the bench, she reiterated that the timing was suspicious.

After the bench conference, Ashton said he was now free to speak about the in-camera hearing. Baez immediately objected and Judge Perry said it was not going to help him as there was no mention of Baez' fee at the hearing.

Ashton then said that $200,000 should have been more than adequate for the case. He was annoyed that this was the third time that this has been alleged.

Lyon had a few words to say, and the judge ruled:

Denied!

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At this point, the hearing was complete. Judge Perry went on to housekeeping details. He indicated there were 8-12 death penalty motions left. Lyon stated that there were 11 and she was willing for the judge to base his rulings on her pleadings if the State didn't object.

Ashton agreed, but wanted the opportunity to write a response.

Judge Perry agreed to give Lyon 7 days to provide the State with a list of the motions and Mr. Ashton to respond.

Perry then asked if there were any opinion motions ripe to be heard. The defense stated that they needed to wait for depositions before arguing the spoliation motion. Ashton said the State needed more time (I'm assuming to respond to the latest motion). Baez then pointed out there would be more motions in the next couple of days to be heard. Since the majority of those motions ask the judge to declare parts of Florida Statutes unconstitutional, they will probably be denied.

Perry closed the hearing by warning both sides to pay attention to the deadlines or "they may be left hanging in the cold".

I do believe him when he says that!

Watch the hearing

Part 1
Part 2
Part 3
Part 4