A lot of good lawyering today

Introduction

Let me start this post with the very end of the hearing and a little bit beyond. As it wrapped up, Judge Strickland made note that there was a lot of good lawyering in the courtroom and that included both sides. As some of you will argue against that with regard to Andrea Lyon, don’t take it out on me. This is exactly what the judge said and so did Bill Sheaffer, as I was carrying on a conversation with him after the hearing and when Assistant State Attorney Jeff Ashton approached. I reiterated Bill’s words and shook the prosecutor’s hand, telling him it was a great job today on both sides, and it was. I can say that with authenticity because, to witness an interaction like this in a courtroom, live and in person, it is much more convincing than seeing it on TV. The emotions burst out from every dimension and it’s something a television set can never quite capture. Not yet, anyway - plus there’s something more eloquent about hearing the reverberation of a strong voice that a microphone and speakers cannot convey.

The hearing started at 9:30, right on schedule. Instead of His Honor’s usual courtroom on the 19th floor, this time it was on the 12th. The last one I attended on October 16 was on the 10th. We took a 5 minute break from 10:40 to 10:50. I know it doesn’t add up, but that’s what it was. During that break, I started a conversation with Bill that continued for a good while after the hearing ended.

This time, I sat on the state’s side, but to be honest, that’s where seating was available, unlike the last time, when it was on the defense side. Trust me, there are no vantage points to either side and in hearings, in particular, it means nothing about which team you’re rooting for. To my direct left sat WFTV’s Kathi Belich. I looked around briefly and saw Holly Bristow from FOX35 behind me and WESH-TV journalist Bob Kealing next to George and Cindy on the other side. Later, I saw Tony Pipitone from WKMG. I must be tell you that Bob is my favorite and we’ve sort of developed a friendship and professional regard for each other. Another one of the good guys is Jim Lichtenstein, a producer for the NBC Today Show. We had a chance to say a few words again. Let me say there’s no way I would put myself in the same league with them, but because I live here and write a blog about this case, there is an element of respect. No one has ever accused me of being a bad writer and if you lived here, you’d be writing about it, too. I am not attempting to improperly involve myself in this case, but I have fallen into it somewhat. For those with bad attitudes, get over it. This is what I’m doing and nothing will stop me from bringing my perception of this story to readers all over the Internet. I try to tell a story from a human interest point of view while sticking to the facts. And because I am open minded, I will talk to anyone and everyone.

Soon after I sat down, Dominic Casey came in and a bailiff ushered him next to me. Poor, poor Kathi. She was coughing and sniffing up a storm. I offered her one of my cough drops and she respectfully declined. I turned to my right and exchanged a few words with Dominic. He asked me who I was. When I told him, he didn’t recognize my name until I handed him a card and said, “Marinade Dave.”

“Oh yes! I know who you are.” Someone had told him about me and he said he’s not much of an Internet person but he does read my blog. He quickly extended his hand for a firm handshake. “You’re very objective and I appreciate that very much.”

I told him I use his Web site for reference material and he said that’s what it’s there for.

Meanwhile, a bailiff brought Kathi a cough drop and she accepted. When the hearing started, we all remained quite, but during the break, Dominic and I chatted a little more and I turned to Kathi and said, “You’ve had this cold or whatever for quite some time.”

“Oh,” and she shook her head in disbelief. “It’s been a month. Remember that shooting in the downtown office building?”

I nodded yes.

“I did a live report at 10 o’clock that night and it was cold. That’s when I caught it.” I told her I was sorry. Later, when she was coughing and sniffing again, she stuck out her hand and I promptly handed her a drop. It helped a lot, she said later, and better than the first one. I am always glad to help and she needed it.

Early Motions

I guess I can walk you through the motions, as the hearing began. I can tell you what Diana Tennis, Dominic Casey’s attorney said, and how the prosecution responded, but I want to delve more into the meat of the matter today. I’ll mention there was a discussion regarding the right to assert privilege and severance of his relationship with Jose Baez, and who is bound by contract and ethics, but in the end, the judge threw it back in the hands of the state by telling the prosecution to issue an investigative subpoena. If anything else comes out, the court can address it next week, he said, which was when the initial deposition was scheduled.

Next came the matter of videotaping Casey in jail and with her attorneys and/or parents. Before you all go screaming about “private time” between Jose and Casey, remember that on either side and above the classroom where they meet are two windows with guards observing the interaction. She wasn’t asking to change any of that. Her argument was about videotaping and Casey’s right to privacy as something sacrosanct, which means, in this case, free from criticism or violation. She hammered home the nature of the Internet beast, where everyone rips their client and her parents apart. Attorneys for Orange County argued that this is policy and holds true for everyone. Orange County runs the jail, not the state. Lyon said Casey is not just any old prisoner. This is a capital case of immense notoriety. Jim McGuire, an attorney for the Orlando Sentinel, said the defense’s request that videotapes be destroyed would be a clear violation of state law. He said there’s no basis to destroy public records because someone doesn’t want them publicized. I’ll leave that for you to argue, but the judge said he will rule later today or early next week.

There was a brief discussion about Joe Jordan and whether his statement should be released or not. The judge ordered a protective order for now. This is an order that prevents the disclosure of sensitive information except to certain individuals under certain conditions. It is meant to protect a person from harm or harassment. Jordan had made an illegal recording of a conversation that recanted his story. (See also: Say hello to Laura and Joe)

Double Jeopardy

As motions were heard and argued, I could sense a building up of, well, I can’t really say tension, but I knew with each new motion, it was like climbing a mountain and we were approaching the peak. One thing I will say about Judge Strickland is that this man is all about integrity and fairness. He understands the emotions and dedication from both sides. Instead of letting each side argue this motion, he patiently waited until the right moment to gracefully interject. That’s what I really, really like about him. He’s so darn polite, yet he speaks with a firm voice. There is no getting around the fact that he is a class act and he controls his courtroom.

He is quite aware of the law, too. There is no doubt the fraud trial will be resolved before the murder case, either by trial or by plea. He will decide the double jeopardy issue today or early next week. Casey is not guilty of any priors. If she is guilty here, there will be jail time and he will treat this case like any other. I looked at Sheaffer and acknowledged that he was precisely right when he wrote about this. He nodded back. I believe it was at this time I saw Casey begin to cry. She now knows she will spend time in prison, no matter what, because she will not escape the guilt, whether she is sentenced for all charges or not. This means prison as a convicted felon.

To Preclude or Not to Preclude the Death Penalty

The Defense

Here’s the heart of today’s hearing. This is where the two sides shone. Andrea Lyon said it is the intent of the state to get as biased a jury as possible. A death qualified jury is predictable. They are there to get a conviction. This is a case built on circumstantial evidence by premeditated design.

“The death penalty is reserved for the worst of the worst!” she exclaimed. There is no evidence of an intentional murder or prolonged suffering. There is nothing that points to death in a heinous, atrocious or cruel manner; nothing proves it was cold, calculated and premeditated. All of Casey’s friends and family, the state’s own witnesses, said what a loving mother Casey was. Her daughter never showed signs of abuse; no cuts, no bruises. There was no heightened premeditation. No careful plan.

When she finished arguing, Judge Strickland queried, “Aren’t you asking me to reinvent the wheel?” She asked if the state can legally look at this as a death penalty case.

The State

Assistant State Prosecutor Jeff Ashton approached the podium and opened his salvo with one important fact; that everybody charged with first-degree murder in the state of Florida is eligible for the death penalty. What makes this one so different that the state must waive it? He said not one single person made the choice; not him, not Linda Drane Burdick, and not Lawson Lamar, from the State of Florida State Attorney’s Office, 9th Judicial Circuit. It is an issue of prosecutorial discretion. It is the job of prosecutors to be advocates for the people.

The state showed it’s hand today and this will unfold before our eyes. Cindy and Casey cried throughout, but this is where the state struck deeply into their hearts and got directly to the heart of the matter. I knew it had to come. The motion demanded it.

As much as the defense argued there is no proof how Caylee died, Ashton quickly took aim. After the body was found, there was not one, there were not two, but there were three layers of duct tape placed over Caylee’s mouth and nose. She must have known what was coming or she was chemically restrained. If she wasn’t, then she had her hands taped so she could not fight. The last thing the killer did was look into her eyes as the tape was applied and the last thing Caylee saw was her mother’s eyes. George and Cindy jumped up and ran out of the courtroom. Casey was sobbing. This was the most dramatic scene I have ever witnessed and emotions throughout ran high. The courtroom crescendo had reached its climax!

In rebuttal, Andrea Lyon said there was no proof the tape had anything to do with Caylee’s death.

In Closing

The judge said we will be here on January 10, 2010 for the fraud trial. There was some very good lawyering today from both sides. With that, the hearing came to a close.

One thing to keep in mind is that a jury selection will probably be made next week for the fraud trial. This should shed a hint of light on what strategies both sides will pursue in the murder trial. It’s something to keep in mind.

In my opinion, reality set in big time today in Casey’s mind. Today, she entered the real world and it hit her hard.

Talking to the Attorneys

I had a chance to talk to Brad Conway about a matter we discussed at the last hearing. He is a very busy man. No problem, I said. I understand. Now, remember I said early on that I am willing to talk to anyone and everyone. I will not base my decision because of closed-minded bloggers and commenters elsewhere on the Internet who choose to make up stories about who I love. If that’s the case, then I love everyone and just as much as I would talk to Brad, I would talk to Bill Sheaffer. I almost had a chance to say a few words to Jose Baez, but I was in the middle of a conversation with someone else. I will tell you upfront, if I have the opportunity to do so again, I will, because I want only to bring quality articles to this blog, not filled with 3rd-grade name-calling and lies. If Baez is willing to talk, I will be all ears.

During the break, I spoke briefly with Bill Sheaffer. I asked him if we could continue the conversation after the hearing and he said yes. Before I go on, I will tell you something I learned about the man. He is one of the nicest, warmest and most accommodating gentleman attorneys I have ever spoken with. We discussed many issues, including the rift with another local attorney. There were things we talked about I said I would keep between us. Some of those could be because I am also a gentleman and I am not going to steal the thunder out from under him. There are things he is going to want to write on his own blog, for instance, but he put me under no obligation to do so. There has never been any real animosity or jealousy on my part after he started his blog. He is a blogger who writes from a legal point of view. I am a blogger who writes from a human interest perspective. What we found today was a genuine mutual respect for each other and we hit it right off from the gitgo. It was quite evident from my first impression that this comes naturally to him.

Of primary concern to me was the problem with commenters on his site. They are ripping his blog to shreds. I said I want to stop it. I seem to be the target and it is not fair to him. I want you all to know that he never looked at me as part of the problem. Yes, he is aware of what goes on and he has asked for it to stop. He told me what I could do to help stop it. He is relatively powerless. It is run by WFTV and they control the comments for the most part. He gave me a contact name at the station and asked me to call. If it continues, I will, and with a vengeance.

In case you’re wondering, yes, he knew who I was. What I am going to do first is ask all of you, regardless of what you think of me, to treat the man with the same dignity you would any other well-respected individual. We are all aware that he cannot police his own site because he has many other responsibilities, and it’s not fair to take advantage of that by using his blog as a forum to spew hatred. He said if you want to argue with anyone, argue with him or call him names. Leave everyone else alone. He’s a big boy and he can handle it. My God, he’s wrestled with the best of them in court. I will ask everyone to please honor his request.

In closing, there is one more thing I want you to know. As we connected after the hearing ended, he extended his hand and asked me, “Didn’t you win some sort of award from the Sentinel last night?”

“Yes sir, I did. For the best news blog.”

“Congratulations!”

“Thank you very much. Coming from you, that is an honor.”

In the end, what mattered was that he is just a regular guy.