To quote Judge Belvin Perry, "This is a mess." Jose Baez, Frank George, and Lizabeth Fryer duked it out during the hearing this morning's hearing.
Baez started with a Ms. Finnigan the Florida Department of Corrections Probation Supervisor.
She received Casey Anthony case January 25, 2010. It was was entered in data base and assigned to a probation officer. On January 26, the intake supervisor received the case and which indicated that Ms. Anthony was sentenced to one year probation. The supervisor noted she was in jail, awaiting trial on another case. Her case was assigned to an officer who located Casey in the jail, Natalie Lewis went to the jail to instruct Casey on the terms of her probation.
She didn't recall if it was publicized in the news. She completed an intake packet. There was a special condition, that she have no contact with the victim, Amy Huizenga.
They monitored the case and checked each month that she was in jail. They checked her records for any problems in the jail because inmates can get arrested for crimes in the jail. During that time, Casey did not commit any other crimes in jail and there were no problems that prevented her release from probation.
Ms. Finnigan went on to say that any time a case is in jail, she decides if the case should be tolled (delayed) or not. Since Casey had another case, she decided not to toll it. She based her decision on the Department of Probation guidelines. She's been in that position for 28 years.
Usually, probation is not given on an indefinite basis. There is no provision in the policy for probation to be served "someday".
Ms. Finnigan stated that Casey was treated as any other probationer.
Baez then went on to mention the media coverage being a problem if she were to serve probation. Baez asked what precautions would they take to see she was treated like any other probationer.
Ms. Finnigan didn't know how to answer that question. She said that it would be possible she would have to and would be concerned for the safety of her probation officers as well, she is ALWAYS concerned about the safty of her people. She pointed out it would be a unique challenge.
Baez pointed out that Casey made restitution. The cost of supervision was waived by the department since she was in custody, not by Judge Strickland.
January 24, 2011, Casey was dismissed from probation and they sent her a form letter. A letter was also sent to the victim, Amy Huizenga. She also said that if Casey had written a letter of apology, it would have violated her probation.
Frank George then spoke for the state. He asked what the purpose of probation was. Ms. Finnigan to protect the community, as it is a community-based service. It is not intended to watch people in custody.
Baez objected to George's next question. Judge Perry allowed him to ask it even though Baez had a point. Ms. Finnigan indicated that the purpose is to supervise those
already released from custody and assist them into reentry to a law-abiding life style. It's purpose is to help them assimilate back into the community.
George then asked if it is not a normal practice to supervise a probationer while in custody?
Ms. Finnigan indicated that it happens on occasion when there are subsequent dockets. They could have additional cases and be on probation for the first one.
George then asked it it was a requirement of probation to report every 30 days? Yes Was it a normal condition to pay the cost of supervision? Yes
(We know Casey did neither.)According to Ms. Finnigan, after Feb. 2, 2010, nobody went out to the jail to supervisor her. They merely checked to see if she was still incarcerated.
George then asked if probation could begin at an unspecific time? The witnesses indicated that it was true, especially because the release date from prison can change. George also got her to agree that the words "upon release" have meaning. Those cases resolve themselves at different points in time. It's not so confusing or spectulative that you wouldn't know when probation would begin. While the last question confused Ms. Finnigan a bit, she did indicate that there is a mechanism for them to know if probationer has reported within 30 days of release.
George also asked her if parolees are seen outside of their monthly reporting dates. Finnigan stated that parolees are classified as maximum, medium, or minimum and that decides how often their parole officer sees them in the field.
Costs was waived because Casey was incarcerated. There would be no way for her to violate terms of probation unless she attacked someone or committed some sort of crime in jail. Or contacted the victim.
Baez then brought out that at time of probation, she wasn't under sentence, but she was under possibility of violation by her office.
Judge Perry then asked about the issue of tolling. Did she ever contact Judge Strickland about that? She said she hadn't. He also asked her if she was familiar with a number of cases (Jones (2007) Bradley (1998), Savage, (?). Ms. Finnigan said that she was only familiar with Savage.
With the conclusion of testimony by the witness, Lisabeth Fryer made a number of arguments to the judge. She spoke as fast as usual, but managed to get the gist of her arguments. She mentioned the
Judicial Cannon 3B2, a direct slap at Judge Strickland.
(2) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism. Fryer continued by saying the issue is moot on several grounds. First was that the issue came from previously disqualified judge.
(I would tend to disagree with that. Judge Strickland was the judge who accepted the plea deal and did the sentencing in question. He did NOT recuse himself from the fraud case.)She also cited lack of jurisdiction because the court loses jurisdiction 30 days after the decision.
The
sua sponte decision was written by a disqualified judge. His oral order was not followed up in writing with a motion concerning the issue.
The State Attorney
unofficially stated she had served her time.
Ms. Fryer then went on to cite case law at a rapid pace and I missed a lot of her references. Such items as the 1ssue of double jeopardy (most of which dealt with erroneous jail sentences). separation of powers, and so on. One remarkable comment was that, "The disqualified judge's displeasure is not a problem for the judiciary." Another issue was that The Department of Probation
did consider if it could be tolled and decided it did not.
Fryer went on by stating that Casey's acquittal could not affect her sentencing. There was no previous attempt by the State to challenge the decision. Judge Strickland was in the media and is vindictive. Casey was not serving a sentence and there was no certainty to when she would be released. It would be inappropriate to toll based on DOC policies.
Finally, Judge Perry asked if she reviewed the sentencing transcript? Fryer said she didn't, but she saw the video.
Perry handed out transcripts of the hearing to everyone and referred to page 5 of transcript, lines 16-23. He pointed out that
long before he was recused, Strickland reserved decision. Mr. Baez felt strongly that Casey would be acquitted and Judge Strickland said he would withhold, follow by one year probation when released.
Perry asked her what obligation, if any, would he or she have once he or she knew that the written pronouncement differs from the oral pronouncement, what responsibility does he or she have to inform the court? What obligation does the
defense have to notify the court? Can a judge, on his own volition, correct a scriveners error to give the sentence that he announced in open court which no one appealed for whatever reason?
Perry went on to the issue of double jeopardy (Brown v State) and pointed out to Ms. Fryer that a probation order is
NOT a sentence. A sentence can only been given with the adjudication of guilt.
Perry then stressed this is not a cut and dried situation. Casey was not serving a sentence. She was given time served. He also noted that when people are erroneously placed on probation while being incarcerated they really can't function on probation.
(All Casey had to do was not attack anybody or contact Amy. That's not real-world probation.)Perry then indicated that the judge's oral pronouncement was not followed. They knew she would complete one year upon release.
Ms. Fryer said that the defense
WAS aware of the situation, but it wasn't their burden. It was up to the State to prove it.
(Notice, she never answered the earlier question about the defense's responsibility to report errors to the court, considering they are all Officers of the Court.)Then, Ms. Fryer blasted Judge Strickland's bias and his recent appearance in the media.
Judge Perry disagreed. Strickland imposed sentence and probation
BEFORE that all came up. He also asked if there is a time limitation to correct the scrivener's issue?
Fryer avoided answering that question as well and simply indicated that Strickland no longer had jurisdiction over that case. She then rambled on that Casey hadn't violated probation, she had completed probation, and so on and so on ending with the statement that Strickland made a correction that she serve a second period of probation.
Perry again asked the question that, as an Officer of the Court, doesn't counsel have the responsibility to report errors? Fryer again threw the responsibility back to the State. He then asked if the State even knew she was serving probation. Then, he went back to the oral order in court by Judge Strickland. "It's a mess, go home Ms. Frye!"
Perry said that her strongest point is that of jurisdiction and the ability to amend the scrivener's error. Ms. Fryer stated, "This is done, this is over." Perry kept saying that probation is not a sentence! She was given time served and probation. Perry again pointed out it is
NOT a sentence.
(Yes, we were listening to them repeat themselves by this point.)
Frank George then spoke. Here is the short version of the points he made:
It's bad public policy to allow people to serve probation in jail. This supervision was in name only. She was in PC, her only obligation was not to attack anybody or escape.
Another jurisdiction says she has successfully served probation.
They discussed time frame for correcting a scrivener's error. Judge Perry brought up the case(Drumright v Fl)
Gave more legal citations.
Judge Strickland was merely correcting a scrivener's error.
Oral pronouncements trump written.
George ended by saying they would leave the decision to the court.
Perry then asked George when the State of Florida learn the written pronouncement was different from the oral pronouncement. When did they learn she had been placed on probation?
George said he learned of it when Judge Strickland corrected the error. When that case was resolved, he received no documentation about the probation.
George said that he had none and mentioned that there may not even be a statutory provision for administrative probation.
Judge Perry said that he didn't know.
Ms. Fryer said they have wide latitude and that administrative probation was the only practical solution. She went on to state that they were back to Casey having to serve probation TWICE!
I believe Judge Perry pointed out that time waiting in detention was release, she was not serving a sentence.
Ms. Fryer brought up that if Casey were to have to serve probation, if there would be an opportunity to discuss the difficulties in dealing with her "unique" situation. Perry agreed.
At that point, the hearing was finished. Judge Perry indicated he could find no similar situation in Florida law and would have to do a nationwide search.
According to InSession, we shouldn't expect a decision from Judge Perry until late next week. He is taking over Judge Adams docket for the present and has to deal with his cases.
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