Fool's Mate

In his court game of chess, Cheney Mason was the first to yell…

CHECK

That was nearly a year ago. Certainly, the recusal of the Honorable Stan Strickland is not so far in the distant past that we would forget what Casey Anthony’s defense team is forever up to. Would they have the audacity to do it again? For the past two-and-a-half years, we have watched them throw everything in their arsenal at the wall of justice in hopes that something sticks. Why not? They have a right to do that, but is Mason now trying to force Chief Judge Belvin Perry, Jr. against the same wall? Are they backing him into a corner with only one way out?

Judge Perry is a smooth operator, so smooth, in fact, that he always comes prepared to hearings with his own powerful set of weapons - case law. He’s well educated in the courthouse games lawyers play and he seems to have some sort of mental telepathy, as if he knows beforehand what tack the defense will take on any given day. It’s almost mystical, because we are left to wonder how he did it. How could he possibly know all that? The man is shrewd. He easily wipes the excess dirt off the wall without missing a beat, and the defense is oftentimes left with mud on their faces. Does this mean he’s biased, as Mason recently charged?

Much to the dismay of common folks like you and me, the court has had to put up with a wide range of oddball motions filed by this defense, so nothing is surprising. One such absurdity was a motion to disqualify the state attorney’s office. Huh? How could an assistant state attorney possibly represent the state if the entire office is disqualified? Case dismissed for lack of state attorneys! Of course, there are more like this one, but that’s not important.

On April 16, 2010, Cheney Mason filed his shot heard ‘round the judicial world demanding that the trial judge step down. In DEFENDANT, CASEY MARIE ANTHONY’S MOTION TO DISQUALIFY TRIAL JUDGE, he wrote, “The Defendant, Casey Marie Anthony, reasonably fears that she will not receive a fair trial because of the conduct and apparent prejudice and bias of the judge…” The motion cited several reasons. Most were centered around me, my blog, and three articles I wrote a full year before. The exchange between the judge and myself was precisely six months later.

In his ORDER ON DEFENDANT’S MOTION TO DISQUALIFY TRIAL JUDGE, Judge Strickland made several points, two of which were:

• [The defense] seems to have only recently lost confidence in the Court’s ability to be fair and impartial; and
• [The defense] has now been accused of bias and wrongdoing, potentially each denial of a defense motion will generate renewed allegations of bias.

We all know the outcome of Mason’s first chess game at the Orange County Courthouse soon after joining Casey’s team. In any event, my point is not to rehash the past. It’s to look into recent defense moves and what the future may hold.

COMES NOW, Cheney Mason, criminal defense attorney, recently filed a motion for a rehearing, aptly titled, MOTION FOR A REHEARING ON ORDERS DENYING MOTIONS TO SUPPRESS.  Judge Perry had earlier ruled on the defense MOTION TO SUPPRESS STATEMENTS MADE TO LAW ENFORCEMENT OFFICERS. The defense argued that Casey should have been read her Miranda rights when law enforcement personnel were initially summoned to the Anthony home due to 911 calls made by Cindy Anthony. The judge decided Casey was not a suspect at the time and was, therefore, a witness to a possible kidnapping. You don’t Mirandize witnesses. The new motion also included the MOTION TO SUPPRESS STATEMENTS MADE TO GEORGE, CINDY, LEE ANTHONY, MAYA DERKOVIC, ROBYN ADAMS, AND SYLVIA HERNANDEZ, defining Casey’s 6th Amendment right to counsel and the improper use of agents of the state. In this case, the judge ruled that George, Cindy and Lee, by their own admission, were desperately seeking Caylee and wanted every bit of help they could muster, especially from law enforcement. Obviously, Casey was doing a lousy job of running her own investigation into the disappearance.

Although I feel that the crux of this defense motion for a rehearing lays in possible ramifications later on, such as an impetus to file an appeal if the defendant is found guilty, it extends into other areas as well, and that’s where we come right back to the succinct possibility that the defense will file yet another motion to disqualify the trial judge. What? Deja vu all over again? Admit it. It’s a nervous feeling running down your back.

In order to request that the judge step down, a couple of factors are problematic for the defense. In Judge Strickland’s case, he most certainly did not have to go, but he understood that the prevailing issue would remain if he denied the defense their request, as he so stated in his order. Every subsequent motion the defense lost could be grounds for an appeal. What caught us off guard now is the fear that Mason may be up to his old tricks. While certainly an option, it’s not easy. Here’s the statement Mason made in his motion that rattled nerves:

c. The Court Did Not Look at the Evidence from the Hearing Objectively and Instead Displays a Clear Bias [emphasis mine] In Explaining Law Enforcement Conduct Rather than Evaluating Whether a Reasonable Person Would Have Felt Free to Leave.

Shades of dismissal! Well, no, not really. Under FLORIDA RULES OF JUDICIAL ADMINISTRATION, Rule 2.330, DISQUALIFICATION OF TRIAL JUDGES, “Any party, including the state, may move to disqualify the trial judge assigned to the case on grounds provided by rule, by statute, or by the Code of Judicial Conduct.” OK fine, but what it means is that the procedure for filing disqualification motions for civil and criminal cases is set out in Rule 2.160 of the Fla. R. Jud. Admin., amended by the Florida Supreme Court in 2004.

If this is the route Mason is considering taking, he should be mindful of the fact that a statute related to judicial disqualification exists. He should surely remember F.S. §38.10 from last year:

Whenever a party to any action or proceeding makes and files an affidavit stating fear that he or she will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against the applicant or in favor of the adverse party, the judge shall proceed no further, but another judge shall be designated in the manner prescribed by the laws of this state for the substitution of judges for the trial of causes in which the prescribing judge is disqualified. Every such affidavit shall state the facts and the reasons for the belief that any such bias or prejudice exists and shall be accompanied by a certificate of counsel of record that such affidavit and application are made in good faith. However, when any party to any action has suggested the disqualification of a trial judge and an order has been made admitting the disqualification of such judge and another judge has assigned and transferred to act in lieu of the judge so held to be disqualified, the judge so assigned and transferred is not disqualified on account of alleged prejudice against the party making the suggestion in the first instance, or in favor of the adverse party, unless such judge admits and holds that it is then a fact that he or she does not stand fair and impartial between the parties. If such judge holds, rules, and adjudges that he or she does stand fair and impartial as between the parties and their respective interests, he or she shall cause such ruling to be entered on the minutes of the court and shall proceed to preside as judge in the pending cause. The ruling of such judge may be assigned as error and may be reviewed as are other rulings of the trial court.

In a nutshell, it explains something about a judge if he/she is prejudiced. Does Judge Perry fit the mold? Is he in favor of the adverse party as Mason claims in so many words? Well, it doesn’t really matter. After Judge Strickland willfully stepped down, and he could have easily remained on the bench, Judge Perry cannot be disqualified because of alleged prejudice solely based on what Mason claims. The only way it would work is if Perry admits he is biased in favor of the prosecution. Even then, his admission is just recorded in the court minutes and the trial proceeds on schedule. Of course, this would be reviewed after a conviction and it would, no doubt, lead to a retrial, but let me assure you, this judge will not fail. He will never admit to bias, and because he’s the second judge, the rules are different now.

One of the misconceptions of trial court judges is that rulings are the basis for disqualifications. They are not, as Mason is claiming in his rebuttal motion. A judge may not be disqualified for judicial bias. He/she can be disqualified, however, for personal bias against a party. (See Barwick, 660 So. 2d at 692, and cases cited therein)

What effectively worked in the Strickland recusal was his personal relationship with me. Although the defense clearly distorted the facts, it did proffer a basis for the motion. In Perry’s situation, it’s purely judicial in nature. And laughable.

§

Lest you think I will leave you dangling with merely one slice of cake from the book of rules, allow me to add a thick, sweet, slab of icing to the entire cake. Rule 2.160 has something else to offer to save Mason from a mea culpa moment if he chooses to stay on top of his game. Section (g) deals with the filing of successive disqualification motions. This is to prevent the possibility of abuse, otherwise referred to as judge-shopping. Yes, you read it right… JUDGE-SHOPPING!

When Judge Strickland disqualified himself due to alleged bias, and I use that term loosely, his successor, Judge Perry, cannot be disqualified on a successive motion by Casey’s defense “unless the successor judge rules that he or she is in fact not fair or impartial in the case.” And that ain’t gonna happen, folks. Judge Perry is allowed to toss out any new dismissal motion. By golly, he was even brazen enough to tell the defense that, “No other motions for rehearing shall be considered,”¹ after the defense filed its MOTION FOR A REHEARING ON ORDERS DENYING MOTIONS TO SUPPRESS.

What nerve.  It looks like the Teflon judge has Mason backed into a corner. King takes pawn.

CHECK

See also: The Florida Bar Journal, Judicial Disqualification: What Every Practioner (and Judge) Should Know, Douglas J. Glaid, October, 2000 Volume LXXIV, No. 9

Comments

[LisaT]

Yes, it will be interesting, and I'll watch out of curiousity. I just find that JVM's so-called "bombshells" rarely turn out to be much of anything we didn't already know. But I still watch...

[SnoopySleuth]

I have nicknamed Jane Velez Mitchell, the Screamer. It will be a miracle if Lippman gets three to five minutes of air time on her show. I have outgrown Jane and Nancy Grace. LOL

[Mary Jo]

I only watch them when I think they are going to truly have something on that is worth listening to. That is a good nickname for JVM. I can tolerate NG a lot more than JVM.

[beth maiorana]

Thanks for more of your hard work, Dave. I especially like your "spaghetti being thrown against the wall" analogy, because that is glaringly what they're attempting. It seems to me right now that any obstacle they can pull out of their hats will do so long as it results in delaying/complicating further this already muddied-up case. It seems inelegant to me, very transparent, and dismaying always- but I have the utmost respect for Judge Perry and have confidence that he will prevail throughout. I also thank goodness he exhibits comforting capacity for unflappability. I believe the Defense tipped their hand when they managed to implement Judge Strickland's stepping down- and this formidable Jurist is well prepared for any and all games. Onward and upward !!

The pleasure is mine, Beth! If spaghetti is being thrown against the wall, then Cheney Mason is a meatball.

To be honest and blunt, if Casey is sentenced to death, then I will put the onus on him for letting his ego get in the way. He switched from a judge who may not have sentenced her to death to one who certainly would.

Onward and upward is right. Thank you for enjoying my blog. The day is near...

[Feathers]

Way to go, Dave! Another truly great article that is most appreciated. Though I so hate to admit it, I was rather concerned that the defense might succeed in at least delaying the trial by causing trouble for Judge Perry. You've put such concerns to rest.

We're so close to the end of all of this now that they're going to throw anything and everything they can up against that proverbial wall in a desperate though futile attempt to obtain a not guilty verdict, aren't they. It's what they were hired to do after all.

Thank you, Feathers. The fear of another recusal unsettled a lot of people, including me, so I just had to research it. I'm glad I found what I did. By the way, I got your e-mail. Thank you very much. You're a real sweetheart.

[simba]

Hello Dave,
Remarkable reporting! George is not a suspect, despite the latest news reports. He and Cindy will try to save their daughter from the DP, just my opinion. But, if she were my child charged with murder, don't think I could stand by and protect. I would have to let go. What comes around, goes around, in this case it shows proof. And, Dave - you need to write that book, you are an amazing writer.Look forward to seeing you in court, along with your following remarks.

I'm sure George and Cindy want to save Casey's life, but George would never go along with a stupid story like that.

Thanks for your kind words. I'm leaning toward writing a book when this is all over, but meanwhile, there are still a lot of hearings to go to. I'll be there this morning!

[pipkin]

great article, Dave...thank you for doing the leg-work to gather all this "legal" information. I'd call that a big CHECK MATE MOMENT and it couldn't come at a finer time.

Thanks pipkin. Leg-work is what I enjoy doing. I hope I can find more morsels as this trial nears. Anyway, time to get ready for the day. See you later!

[Weezie]

Dave. whatever you do, don`t announce it before the trial gets going because the DUFENCE will use your book writing gig to somehow twist and turn your association with the BENCH. Sounds ridiculous perhaps but look what happened to you last year. This Dufence Team stoop so low I would call it schoolyard bullying. They don`t care about appearances, obviously, unless it`s to do with their wardrobe. ha.... Just be very carefull because they remind me of the nasty bloggers that used to hammer you before you made the right changes to your blog. I know you will succeed in writing a riveting account of the pretrial mishaps and the trial itself. JUST DONT GIVE THEM ANYTHING TO USE BEFORE THE TRIAL. I`M already finding it hard to stay calm and not go through the ice. You make so many great observations about the people and the law. AND DON`T FORGET YOU ARE FAMOUS, right now. Keep up the great posts Dave.

Thanks Weezie. I'm about ready to walk out the door so I need to shut down my computers. I'll be back.

[Mystical Pippin]

Aww Dave of course you're one of us. (power to the little people!) Thats why we love ya! I just hope you're not still in that tiny room with the black typewriter......:-))

btw: after many headaches, fits of frustration, and some crying..... I finally figured out how to use Dreamweaver enough to do my homework. I have been struggling in this class big time and using Notepad was making it harder. Once I got the basics I started using it so that helps, But just when I finally began to have an understanding of the html, we moved onto css so.......... I'm back in the dark again.

sorry for the off topic.

I've added on an atrium to my tiny room and it has lots of hanging plants that bring it to life. Occasionally, my French maid brings me something to eat and drink, but that's between back rubs and foot massages. Then, it's off to the hot tub before going back to writing. Did I tell you writers have wild imaginations?

Ahhh, yes, Dreamweaver. I like it!

[Estee]

Well, that was short and sweet...Hardly worth the cost of gas for your drive down there Dave...Guess we'll have to wait for the fireworks tomorrow...

Hope you're having better weather than I am, here in the Bay Area...

It's a lousy day, Estee. No better here than there.

Was it worth the trip? No, not really. Tomorrow will be better. I'm afraid if I write up what occurred today, it will take longer to write tan the hearing.

[Phyllis]

Dave, I do remember Mason 's statement, and I also remember him stating (prior to joining the circus) the defense should plea to accidental death and improper burial..I remember in one of Mason's motions and in open court he eluded to the possibility that Casey could be involved, but that someone else was too...Unless he takes charge and is lead attorney during trial, I just don't see him sitting there day after day listening to Jose Baez mumble and bumble, challenge the judge, and throw temper-tantrums for well past two months. It's not just that he's working for free, but his time is not available to his high-dollar clients that are paying. But then arrogant, egotistical people will take risks that just don't make sense to reasonable people like you and me! :)

I think we're going to see a very different side of Mason once the trial starts. In my opinion, he's not doing much yet because the show belongs to Baez. In other words, it's Baez's case to lose. It's Baez's case to do the legwork. When Mason is needed, he's there, but Baez does the day-to-day grunt work. That's my guess.

[BMan]

as always Dave, such an intellegently written peice, loved it!! Upthread several people mentioned the possibility of you penning a book, although i am a long ways away from Orlando, and if you dont mind, i would like a signed copy!!

As to the latest scheme by the Defense I would like to take a different more suttle approach...what it the defense, who are up-in-arms screaming that their client cant get a fair trial, is putting out "ear worms" you know, those songs you cant stand but you cant get them out of your head...as of now there has been no jury selection so it would seem to reason that if you cant beat them join them. By dropping all these objections and what not maybe they are posing reasonable doubt before the jury is selected. Even the judge indicated in one way or another that the public is not stupid. The only need one to turn the sympathetic ear but i hope that Orlando, or wherever the trial is set, are not stupid and read between the lines...

One of my good friends called me today to ask whether I started my book yet. I said, no, I'm waiting to discuss something with an attorney first, and that's next week. Hopefully, I'll be more in focus after that.

The trial will still be held here in Orlando, but the jury is going to come from another county not within our market area. This would mean a place with similar demographics and their own media outlets, not Orlando TV, radio and newspapers. There are a lot of options, and the defense cannot possibly saturate the entire state to taint the jury pool. I think it's too much of an undertaking. There are lots of places where Casey is nothing more than a memory. Even online, the world has more important concerns.

Oh yes... If I write a book, you will certainly get an autographed copy! I'm very glad you found this post to be intelligent. It almost makes me look smart. Silly me.

[Janet]

Hi Dave,
I watched the short hearing this morning and saw you. I also read about the weather down your way, hope you made it home safe and all is well. Take care!

Hi Janet - It was short, alright. I think it lasted about 10 minutes. Hardly worth a write-up, but I might conjure up something. Thanks! I will take care. You too.

[BMan]

Dave,

Not to change the topic but i thought this to be a little related when it comes to Dr. Vass's work at the "Body Farm" and would like your opinion/speculation of what i saw last night.

There are really only 2 crime shows that i watch. CSI (original) and Bones. Bones, as many probably know, comes from the creative mind of Kathy Reichs who has, in the past few months, made her presence known in the KC Saga. To the best of my recollection she is on the side of the defense but i could be completely wrong but in 3 weeks the next episode of Bones will take place, or around, the Body Farm...it'll be interesting to see how the episode will unfold but it'd be nice to speculate. I know the show is based on novels by Kath Reichs but i dont know if she is used as a creative consultant but i thought it was interesting...

That's fascinating, BMan. I'd like to watch that episode. Could you please remind me when you know it's going to air? I definitely want to see it.

Oh, by the way, there's nothing off topic here. Anything related to the case is open for discussion on any post about the crime. Thanks for the heads up. I'll try to remember when the show is on.

[BMan]

ahh, Dave i can barely remember my name and age has nothing to do with it :-), but i will do my best to remind you..

Thanks, BMan. It looks like Janet also knows about Bones. I am a creature of habit and there are only a few fictional shows I follow, like House, NCIS and Blue Bloods. The rest are those boring news and educational programs. I will make sure I remember that so I can remind you. Or the other way around.

[Janet]

Dave, I'm not BMan, however here is the info on Bones:
Bones is based upon Kathy Reich’s Temperance Brennan novels, appearing Thursday at 8 on FOX. The heroine, Temperance Brennan, shows striking similarity to her creator, the talented forensic scientist and archaeologist Kathy Reichs. To learn more about Kathy’s role in producing the show, explore this sub-site and get ready to become addicted to the show.
I watch the show as well!!

Interestingly, I know who Reichs is, but had no idea there was a connection to Bones. Thank you for the info. Who knows, maybe I'll get hooked.

[Dave Knechel]

Oh yes! I can't forget Jeopardy.

[Dave Knechel]

Bob Kealing's report on Judge Perry:

http://www.wesh.com/video/27380942/detail.html

[Phyllis]

No question that Mason is making Baez tow the line most likely because Jose is the only attorney that "Casey paid." (that we know of anyway) Having said that, I think Mason took the case pro bono with a limited role and has found himself in dire straits with Jose Baez. I think his ego and reputation has forced him to put in way more time and effort than he originally anticipated. We've heard him complain more than once about the number of hours he's logged. Has anyone heard him use the word "fun" since that first day on the courthouse steps?

BTW: do we know if either of the two mental health experts have ever actually interviewed Casey?

Hah! Mason hasn't used the "fun" word since day 1. I think he fully expected to do his fair share of weight pulling, but I also think he expected a different judge than he ended up with. That made things a lot less fun.

Danzinger has been around since the beginning. He was ordered by Judge Strickland to examine her back at the initial bond hearing.

[Mary Jo]

Dave, thanks for bringing over the link of Bob Kealing interviewing Judge Perry. Bob did great work on that story. I really, really like Judge Perry and I know he will be more than fair with this trial.

Yes, Bob does good work. Perry will be fair, but he won't put up with garbage. That's for sure.

[Cathi]

It seems like such a long time ago that a very emotional and teary-eyed George asked us all at the memorial service to wait until the trial to form an opinion.

I tried to do just that - and then I read that the defence is now thinking of putting this all on George.

Oh George, I tried to wait..

But this is absurd. Great to find you again after getting a new computer Dave .. Lots to catch up on. I hope they aren't trying to confuse the jury with this George theory.. Sure sounds like it to me. They can introduce all these outlandish ridiculous theories, the death penalty is still on the table Casey. Desperate people doing desperate things. I don't think we have to worry about a panel even thinking that George had anything to do with this, but doesn't it just take one ?

Here's to the truth coming out .. !!! You've done a masterful job Dave.!!!

Much appreciation,

Cathi

Hi Cathi! Thank you for enjoying my blog. I'm glad you found it again. It's been a lot of work and time, and soon, it will end. Personally, I don't think the defense will accuse George of any wrongdoing, but I wouldn't put it past them to blame him for how Casey turned out. By that, I mean they may portray him as a demanding father who constantly degraded her. And he was extremely strict. In the end it may spare her life, but it won't save her from the most logical trial outcome - guilty.

Welcome back! I'm happy you are here!