Ignorance is no excuse

This is especially true if you are a lawyer. In the case of the clandestine chat between Jose Baez, Esquire, and Robin Lunceford, an inmate at Lowell Correctional Institution, Judge Belvin Perry rendered a decision yesterday regarding the privacy of what Baez described as "work product."

First, let's take a quick look at what transpired to bring about the judge's ruling. It seems that Jose received a collect call from a jail house snitch on May 31 where she ratted out another jail house snitch, Maya Derkovic. There were two phone calls, actually, but the first one was to set up the second one with Jose.The first call was received at 6:34 PM and answered by Baez Law Firm legal assistant Michelle Negron. This is what she heard:

"Hello, this is a prepaid collect call from Kathleen, an inmate at Florida Corectional Institution. This call is subject to recording and monitoring. To accept charges, press one. To refuse charges, press two. To prevent calls from this facility, press... Thank you for using T-Netix. You may start your conversation now."

According to the initial recording, it seems apparent from the content of the call that Casey's defense was waiting for a call from an inmate. Ms. Negron tells the person on the other end that, "Hallie told me that you were going to call." After listening, she tells the caller that she needs to speak to Mr. Baez. Arrangements were then made to forward calls to Jose's cell phone in anticipation of another call at 7:00 PM. At 7:01, a call is placed by inmate Robin Lunceford that is answered by Jose. The key words here are answered by Jose. This means that the warning about possibly being recorded and monitored was heard loud and clear by the attorney. As the call progressed, Ms. Lunceford also advised him that she was not telling him everything she knew because "these phones are recorded."

When the state said it would release the contents of the calls as part of discovery, Jose sprung into action. On July 15, he filed a MOTION FOR PROTECTIVE ORDER REGARDING A TELEPHONE RECORDING OF ROBIN LUNCEFORD. In it, he wrote that the Baez Law Firm received a call from an individual who advised the firm "that she was an ex-inmate at Lowell. The caller stated that she had a friend who had conspired with Maya Derkovic to create a lie to possibly benefit from her knowing Casey Anthony at the Orange County Jail. The caller informed the [Baez Law Firm] that she would be calling later that evening."

In his motion, Jose made some very concise statements regarding his knowledge of the phone calls possibly being recorded. He began it with a reference to F.S. 3.220(l)(1), which states:

Motion to Restrict Disclosure of Matters. On a showing of good cause, the court shall at any time order that specified disclosures be restricted, deferred, or exempted from discovery, that certain matters not be inquired into, that the scope of the deposition be limited to certain matters, that a deposition be sealed and after being sealed be opened only by order of the court, or make such other order as is appropriate to protect a witness from harassment, unnecessary inconvenience, or invasion of privacy, including prohibiting the taking of a deposition. All material and information to which a party is entitled, however, must be disclosed in time to permit the party to make beneficial use of it.

I don't know about that section of the statute, because, at no time was anyone informed that this was a deposition. As the motion progressed, it took on the issue of the recording made by the prison.

"Shortly thereafter, the undersigned counsel was advised by his secretary, after hours, that Robin Lunceford was attempting to reach him. The call was transferred to the undersigned counsel's cell phone, upon which a conversation with the prosepective witness occurred.

"While it became known that Robin Lunceford was calling from a correctional institution, the undersigned counsel was never made aware that the call was being recorded by either Robin Lunceford or the standard recording that is usually played when receiving a call from a correctional institution."

The motion went on to make several key points. According to the Book of Jose, not all calls are recorded when coming from a correctional institution. He was made aware that Lunceford, along with Derkovic, conspired with Robyn Adams to "... possibly benefit by lying to the state about Casey." Derkovic's motivation could have been for a transfer to another prison. She was, in fact, transferred.

Jose Baez concluded his motion with a plea from the court:

 "The defense contends that this conversation is not only protected by the work product doctrine, it further argues that it would be a third degree felony pursuant to 934.06.

"The undersigned requests that the state not listen to the illegally recorded statement as the use and disclosure of the unlawfully intercepted conversation would be a third degree felony pursuant to F.S. 934.03. Additionally, F.S. 934.06 specifically states, 'Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before the court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter.'"

Yada, yada. In her July 26 motion, STATE OF FLORIDA'S RESPONSE TO DEFENDANT'S MOTION FOR PROTECTIVE ORDER REGARDING TELEPHONE RECORDING OF ROBIN LUNCEFORD, Linda Drane Burdick basically said PHOOEY! You're full of it! She wrote that, "The assertion in the defendant's motion that Mr. Baez was 'never made aware that the call was being recorded' is simply not true."

LIAR, LIAR, PANTS ON FIRE! 

Burdick continued by adding that a warning did occur at the beginning of the call, no matter what Baez said about having "absolutely no recollection of hearing any recording by the correctional facility," it was clear "that the call was not an unlawfully intercepted communication under Florida Statute 934."While he may think so, the Florida Security of Communications Act "was intended to flesh out the constitutional protections afforded private communications, while at the same time giving guidance to law enforcement as to the legitimate circumstances under which they may use the interception of communications as an investigative tool."

Burdick filed another salvo at the defense motion by boldly stating that, in opposition to Baez's claim, a review of the call contained no work product information, which would could include names of potential additional witnesses. As a matter of fact, she states that both phone calls were dominated by the rantings of Lunceford against Derkovic as a result of an argument between the two. She asserts that neither Baez, nor his assistant, contributed much content to the calls. As for F.S. 3.220(l)(1), this is what she had to say:

"Florida Rule of Criminal Procedure 3.220(g)1) provides: 'Work Product. Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting or defense attorney or members of their legal staffs,'" and she cited case law to explain the differing types of work product. Fact work product usually protects information which relates to the case and is gathered in anticipation of litigation. Opinion work product consists primarily of the attorney's mental impressions, conclusions, opinions and theories. Not to confuse you further, but the state maintained that"there is little case law on what constitutes a pretrial waiver of the work product privilege in the criminal context other than those cases dealing with disclosure to experts, it is clear that other, normally privileged communications lose their privileged status when the communication is overheard by a third party." Both Jose and his assistant knew or should have known that their communications with the inmate were not confidential and could be overheard by prison officials resulting in a waiver of any possible work product claim. She concluded her motion by saying that since the State of Florida "is not the party of interest regarding the release of public records," it had no position one way or the other.

This left the field wide open for Judge Perry to decide. Initially, I thought he would conclude that it was not work product for any number of reasons. One being the fact that Lunceford was not his client. When the judge released his order yesterday, something became apparent to me, although it is merely my opinion. Baez lied. In his RESPONSE TO STATE OF FLORIDA'S RESPONSE TO DEFENDANT'S MOTION FOR PROTECTIVE ORDER REGARDING TELEPHONE RECORDING OF ROBIN LUNCEFORD, Baez said that it was clear that "both the State and the Court have copies of the tape, and the undersigned does not. Without having the benefit of the tape the undersigned must rely solely on his memory of a call that occurred two months ago." True, but that did not preclude him from taking notes.

In closing, Baez's response asked the court to "issue a protective order barring the state from using the recorded conversation of Robin Lunceford. If the Court finds that the state has reached its burden of necessity, the defense requests a copy of said tape to make proper objections or requests for redactions. Or in the alternative require the State to take Ms. Lunceford's deposition prior to arguing necessity or delay the disclosure to allow both parties to fully investigate the matter as previously requested."

OK, I'll give him token credit over the work product argument and the defense's "almost" foregone conclusion that the motion was probably futile. I'll even give him credit for the request for the state to depose Lunceford before disclosing the phone calls, but here's where I would have drawn the line if I were the judge, and I wholly believe this was the clincher. It's something the state, the court, the defense and the public have been aware of for two years, and it is the reason why I think Jose lied about not knowing the calls were recorded. When was the last time Casey had visitors outside of her defense? Any family? No. When was the last time she made or took any phone calls? Who advised her not to? If you guessed Jose Baez, you are probably a big winner! He knew fully well that any external communication was subject to recording, and as an attorney, it should be indoctrinated into his very fiber that ignorance is no excuse in the eyes of the law. If he wasn't lying, what was he thinking?

Yesterday, Judge Perry banged his gavel down and he came relatively close to calling Baez a liar. In his ORDER DENYING PROTECTIVE ORDER REGARDING TELEPHONE RECORDING OF ROBIN LUNCEFORD, the judge said that the recordings made by prison officials do not constitute counsel's work product. Moreover, the work product privilege/doctrine protects documents and papers of an attorney or a party prepared in anticipation of litigation. In other words, when defense PI Jeremy Lyons came to my house to ask questions, that's work product because it was generated by the defense. In the case of Lunceford, she sought the defense out, and in my case, the defense came looking for me. Also, the private investigator recorded the conversation. Contrary to what Baez thinks, it was not the defense that recorded the prison conversation. It was the prison, and that makes it, not only legal, but owned by the state, and not work product of any kind.

Since the recordings were made by the prison in accordance with its procedures, they constitute public record. The judge reminded the defense that it should have been familiar with the ORDER DENYING MOTION TO SEAL JAIL VISITATION LOGS filed June 7, 2010. That made clear Florida's Public Records Act and the issue over separation of powers; that the Judicial branch of government has no jurisdiction over prisons that are run by the Executive branch.

The defense brought up Florida Statute 934.03, which deals with the interception and disclosure of wire, oral, or electronic communications. The judge explained that for a conversation to be protected under that section, the speaker must have an actual expectation of privacy, along with a societal recognition that the expectation is reasonable. State v. Inciarrano, 473 So.2d 1272 (Fla. 1985). There was no expectation of privacy from a jail and Baez knew that.

Where Baez really goofed was in his statement that he never heard the prison disclaimer about it being subject to recording. I reiterate that ignorance is no excuse, but I will further lay claim that it cannot be used in conjunction with a fabrication. How could he quickly forget the warning, but conveniently remember the content of the call he took? How could he claim that he was unaware that all calls are monitored or recorded when he advises his clients of the same thing?

Judge Perry admonished Jose. He reviewed the contents of the calls in camera. At the beginning of the call that Baez took, he was warned by an automated message that the call was being placed from a correctional institution and was subject to monitoring and recording. It was followed by a prompt to press "1" to accept or "2" to decline the call. Almost immediately, the call was accepted and Baez could be heard in the recording. The judge then repeated the fact that Lunceford reminded Baez that the call was subject to recording. Most importantly, she told him this crucial information before he made any statements in response to what she was telling him.

Ultimately, the judge denied the motion. The court found that there was simply no reasonable expectation of privacy where there were two warnings, one from the automated messaging system, and the other from the witness. Therefore, Florida Statute 943 does not prohibit the interception of the conversations, the court concluded. (Pssst... Don't tell the defense that the judge should have cited Florida Statute 934, not 943. Could this be brought up at the appellate level if Casey is convicted?)

In my opinion, this was a poorly conceived effort to pull the wool over a judge's eyes. Not only did this plan explode in Jose Baez's face, it alerted the judge to exactly what trickery this defense team will utilize in order to spring their client from jail, not that this is the first-time a lawyer has tried, but in any event, judges don't take too kindly to lies, especially when the truth is right there on a state sanctioned recording. Perhaps, Jose forgot the facts, which would be a very bad thing, because it might mean truths beneficial to Casey could slip through the cracks. If his client is truly innocent, the facts will come out at trial, just as Jose has said over and over again, but if he's willing to lie over a simple matter like this, how far would he go? I'm not an attorney, nor am I paid to play one on TV, but even I am aware that phone calls to and from a jail or prison are subject to recording. Heck, doesn't Jose ever watch Law & Order? It might be an eye opener.

"There is a higher court than courts of justice and that is the court of conscience. It supercedes all other courts."

- Mahatma Gandhi

Robin Lunceford Defense Motion

State's Response to Robin Lunceford Motion for Protective Order

Defense Response to State Robin Lunceford

Order Denying Protective Order Regarding Telephone Recording of Robin Lunceford

Order Denying Motion to Seal Jail Visitation Log Records

Foot-in-mouth disease

Motion to Quash The Court's Order on Defendant's Application For Subpoena Duces Tecum For the documents in the Possession of Texas Equusearch Based on Bad Faith

On June 22, I wrote this:

304 days ago, Todd Macaluso stood before the Ninth Circuit Court of Florida, in front of Judge Stan Strickland, and made this blanket statement:

“There is substantial evidence that we’ve found … that the body or remains of Caylee Anthony were placed there after Casey Anthony was locked up. It proves that somebody else placed the remains in the area.”

For ten months, we were led to believe this would be the tack the defense would take at trial, based on statements made by TES searchers, off-record, who said the land where Caylee was found three months later was not flooded in September when they searched. What made this so senseless was the undisputed fact regarding summer weather in Central Florida. Roy Kronk said under oath that the woods were too flooded to enter in mid-August of 2008. Soon after he reported his sighting, T.S. Fay rolled into town, adding over 12" of rain to an already flooded and low-lying location. Come September, no one could go in there to search, and TES leader Tim Miller instructed his teams to keep away from areas under water; that it may destroy evidence.

I believe Cheney Mason was smart enough to recognize that, because yesterday, he did an abrupt about-face. Huh? What's this all about? In a post-hearing press conference, Mason said:

"They did not search the exact areas where the body was found. So everything they said before that is not relevant."

Did Brother Cheney speak out of school? Is he spanking the numero uno defense attorney, Jose Baez, by taking the lead, or is it part of an orchestrated effort because of one simple truth - the area was too flooded to search and the State has the proof to back it up? I think the answer is yes. The area WAS flooded and the statement of Macaluso past must be erased from the memory bank of future defense maneuvers. Of course, we won't discuss plant and insect forensic evidence at the moment. That comes later.

On July 16 of 2009, Jose Baez and Andrea D. Lyon filed two motions. One was to certify Tim Miller as a material witness and/or to subpoena him for documents in the possession of TES. The motion makes several claims:

1. "This area [8750 block of Suburban Drive] was searched by several individuals, including Orange County law enforcement and TES volunteers, between July and December 2008."
2. "Several searchers have made statements to Orange County law enforcement and to the media stating either that they searched the 8750 block of Suburban Drive with TES, or they encountered TES searchers in that area."
3. "... that Orange County law enforcement provided TES with documents identifying the area in question as an area of interest; that witnesses have made various statements (including in a sworn interview) to the effect that they searched the area in question on behalf of TES or saw TES searchers in that area..."

In another defense motion filed November 23 of 2009, the defense had this to say:

"The Defense, through its own independent investigation, has interviewed several TES searchers who not only searched the area where the remains were found, but who were not among the thirty-two (32) identified by TES."

This was the now famous motion containing the statements of Joseph Jordanand Laura Buchanan, in which the bold claim was made that:

"The signed statements from Joe Jordan and Laura Buchanan, included with this Memorandum of Law, indicate that there were several people who searched the Suburban Drive neighborhood but were not among the thirty-two (32) names disclosed by TES.

Why did the defense decide to run diametrically opposed to previous statements and motions? Clearly, this is something Cheney Mason conjured up because Jose Baez and Andrea Lyon filed motions that are contrary to this new revelation. They are also motions this defense did not win, and there lies the crux. Since this didn't work, let's try something else. Gone with the old, in with the new, and most certainly, Mason is not naive to the ins and outs of criminal defense strategies. Here's the brand new slant:

“What do you have that shows she was not there in June?” WFTV reporter Kathi Belich asked him.

“That's when Caylee was missing. We don't know when she disappeared,” he replied.

AHA! The linguistic switch! No one knows when Caylee disappeared. As President Clinton once responded, "It all depends on what your definition of isis," there are discrepancies in the meanings of missing and disappearing. I guess we could establish the fact that my keys may be missing if I lost them, but they certainly didn't disappear because they would have to be where I left them, unless, of course, they were taken by someone else. Then, they would have disappeared and they are missing. Got that? You see, it's all in the semantics. Instead of admitting it can't win the flooding argument, the defense concedes by manipulating the verbiage. What it will attempt to prove in court is that Casey lost Caylee, but she didn't disappear. It was precisely like losing a set of keys, only she wasn't where Casey last left her. Let's see... was that at Sawgrass, or was it at Jay Blanchard Park? Oh. She lost her at Sawgrass, but she disappeared from Blanchard. Today, Casey misses her more than anything else. Gotcha!

Last night, the Orlando Sentinel reported that Mark NeJame, the attorney representing Texas EquuSearch, argued that the defense team had "earlier opportunities to review Texas EquuSearch records, as directed under court orders, but failed to follow through."

"The defense is clearly operating under bad faith and looking to harass the volunteers," he stated in a motion filed yesterday to invalidate an earlier court order regarding the issue. In this new motion, NeJame noted that Mason stated publicly last month that the area where Caylee's remains were found "was impassible at the time." This is precisely my argument today as it was a month ago.

Let me reiterate what Mason declared last month: "They did not search the exact areas where the body was found. So everything they said before that is not relevant." The 'they' in this case is Texas EquuSearch and its teams of volunteer searchers.

Because of Mason's statement, NeJame threw it back in the defense's face, "It is patently obvious and apparent that the defense knows the conditions of the area, and that they are no longer in need of the names of any searchers to verify this information."

According to the Sentinel report, NeJame further suggested "the defense 'is filing these motions, requesting irrelevant documents all to create seemingly bogus appellate issues that do not exist.' He calls the pursuit of the records 'a ploy to harass volunteers of TES who donated their free time to search for the remains of the innocent Caylee Anthony.'"

I couldn't agree with Mark NeJame more. Not to dismiss or make a mockery of Casey's defense team's request, but if TES searchers never stepped into the flooded woods, which Mason acknowledged no one did, what's the point of interviewing any more searchers? Why seek out anyone who wasn't there to begin with?

Cheney Mason defended astronaut Lisa Nowak. If I told him that John Glenn never set foot on the moon, would he want to interview him anyway? Would he expect Glenn to have knowledge of what gravity feels like on the lunar surface? Would he have learned something incriminating from his fellow astronauts - that the moon is made of Swiss cheese? If none of that made any sense, that's precisely my point.

Anticipating such a bad faith motion as the one filed by NeJame yesterday, Judge Perry announced in court last Thursday, and wrote in his order, that a new hearing would have to be set to present arguments from both sides. I didn't think a visit to NeJame's office by Casey's defense would be an easy stroll in the park. I get the distinct impression that he and Mason have never been colleagues or friends. No love will be lost as this spills out and into the awaiting hands of a thirsty public. Meanwhile, did someone stick their foot in their mouth or was last month's statement meant to be taken tongue-in-cheek? Either way, this one is full of holes.

Speaking of holes, on a final note, records from the Orange County Corrections Department show Casey's jail account is $41.51 in the hole as of yesterday. George stopped adding funds after she insinuated that he may have sexually molested her. I don't blame him one tiny bit.

Casey trial will stay in Orange

“The jury will be sequestered. They will be brought back to Orange County. They will be kept at an undisclosed location. I will be entering a gag order [for the attorneys]. I will be doing that at a sufficient time.”

- Chief Judge Belvin Perry, Jr.

I’ll tell you, the courthouse was tough to get into this morning. I gave myself plenty of time, but people were almost backed out the door to get through security. After waiting for what seemed like a half hour, I finally got up to the courtroom. I hate being late for anything, and I missed the first 10 minutes. How do I know I missed 10 minutes? Because Chief Judge Belvin Perry is never late, either, and when he sets a starting time of 9:00 AM, that’s the moment he walks in and sits down at the bench. Fortunately, I was able to open the door quietly so no one heard me walk in.

Change of Venue

The judge had decided this was the day he would hear motions that had been lingering for months, starting with the Change of Venue. Casey’s defense team has argued that their client cannot get a fair trial in Central Florida. In September of last year, Baez wrote in a motion that, “The Orlando community’s involvement in this case and its hostility towards Miss Anthony create an environment in which it would be difficult for a juror to render a verdict based solely on the evidence presented at trial.”

Soon after I walked in and Baez was stating his position, Judge Perry told him to get to the point, at which time he presented a short video of mostly protesters outside of the Anthony home, which were shot nearly two years ago now, as Assistant State Attorney Linda Drane Burdick was quick to point out in her rebuttal. She also asserted that jurors should come from any county that has similar demographics as Orange County.

“The defendant’s motion for change of venue will be granted at the appropriate time. I will enter an order prior to us proceeding to somewhere in the state of Florida to select a jury. I will review and take into consideration the comments by the defense and the state in selecting a site,” Judge Perry said. The future jury will be sequestered. He and all of the attorneys will travel to another Florida county to pick 12 jurors plus 6 alternates. He warned the media that he knows all 20 court administrators in other districts and they will be instructed not to discuss his inquiries with reporters.

Jail Visitation Logs

Visitation logs are a matter of public record, yet the defense wants the judge to keep the list of names private. Only the judge can seal them. The main defense claim is that the media is constantly aware of any visits she has, and the identities of some experts will produce unfounded speculation. According to him, it will hamper the defense’s preparation for trial. Cheney Mason asked the judge if it could be argued at a later date because he didn’t rule one way or the other.

Wild Party Pics

The defense recently filed a motion to exclude irrelevant evidence of party pictures. Today, it argued that the photos do absolutely nothing to prove whether Casey was a good mother or not. “To assume that a person is a bad person because they go to a nightclub, or they drink a beer,” Baez argued, “is completely unconscionable.”

The defense fears that if the images are shown to a jury it would only inflame them against their client. Burdick claimed that the only photos it wants to use are ones taken after June 15 that address where and how Casey was looking for her child. If Casey went to bars looking for Caylee, then wild photos of Casey participating in a hot body contest four days after her disappearance should be relevant evidence. If the defense is going to argue what a wonderful mother she was, the State should be able to use photographs to dispute that issue. She also said that the State has constructed a very careful timeline.

Judge Perry said that if the defense shows evidence of what a good mother she was, then the photos should not be about what she was wearing at the time, it should be more about what she was doing in them. In other words – in my words – women wear bikinis on the beach. Wearing a bikini in that setting proves nothing about who and what that women is doing or thinking. He acknowledged that most of the photos were taken prior to Caylee’s disappearance and only the ones taken from June 16 on should matter. Meanwhile, he deferred ruling on it until the end of next March. That gives both sides plenty of time to work out what photos will be used.

Hearsay

As part of the case, investigators have questioned dozens of people who knew Casey Anthony. They offered their opinions of her character, motives and undisclosed intentions and honesty. Casey wants to keep those statements about her made by family and friends out of the courtroom. Her defense contends they’re all hearsay; gossip and innuendo. They don’t want prosecutors to be able question any of her friends on the stand about whether she was an honest person and what compelled her. What were her motives? He also brought up the 911 calls made by Cindy. Judge Perry said he would not rule on such a vast subject. Narrow it down by citing individual instances where they could be argued as hearsay. He did say he will reserve a ruling on those 911 calls.

Motion to Dismiss Indictment

Denied. ‘Nuff said.

Motion to Compel Bench Notes

Judge Perry brought up this motion to compel filed by the defense. It seeks to obtain documents they feel haven’t been turned over to them. Once again, the judge asked Baez to be more specific. “This has been an ongoing issue,” Baez said after prosecutor Jeff Ashton told the court it was giving them everything it should.

Judge Perry asked for names. Baez gave him five. Both sides went back and forth. “We will table this one here and, uh, if there’s an expert witness for bench notes, list that expert saying you haven’t gotten it and I’ll have the state file a written response,” he said.

In the end, the defense will get 10 days to submit a list and the State will get 10 days after that to respond. He then asked both sides if there were any other discovery issues that need to be worked on down the road. No one had anything to say and with that, the hearing was over. It lasted an hour-and-a-half. “OK, we’ll be in recess on this matter until 9 o’clock tomorrow morning.”

Big Story of the Day!

As deputies walked Casey out of the courtroom, she turned to her mother, smiled, and whispered “Happy Mother’s Day. I love you.”

That is the first time I saw her show any affection for either of her parents, but especially, her mother.

My Observations

One thing is certain. This judge is instructing the State and defense to take the bull by the horn and settle as many matters as possible outside of court. Take control and move on it. What I am seeing is the defense’s failure to be specific about anything. Baez uses broad generalizations in his arguments and Judge Perry is persnickety and detail oriented. I noted his obvious disdain for whiners. In order to get your point across, be clear and precise, focused and reserved, and very knowledgeable of the law. That’s not to say Judge Strickland was not a thorough jurist. On the contrary, but there is a different demeanor in this court than in his, but I can’t quite put my finger on it. You wouldn’t think that personality traits could make all that much of a difference when applying law, but it does. Judge Strickland has the patience of Job. Judge Perry wants to git ‘er done.

I rode down the elevator with the prosecutors. Linda Drain Burdick was discussing an online legal publication. As we exited the elevator, I asked her what it was and if I could also receive it. She gave me the details. As we walked to the exit doors, I asked her about her last name. I notice the judge calls her Miss Drane. Do you prefer Drane or Burdick? Either one, she said. It’s not hyphenated and it was added after she got married. Either name will do and she has no preference.

As she walked away, the defense team approached the awaiting cameras and reporters. I stood near Cheney Mason. Because we were close, I decided to discuss something. “Skin cancer?”

Yes, he responded. I knew that’s what it was. I have too many friends here in Florida. “You’ve got to remember that I grew up when there was no SPF, and I’m 66-years-old.”

That’s many years in the Florida sun. He said that anyone living here and spending time outside will get it. It’s only a matter of time. I told him about my friends and what they go through. He also said he had a 14 hour operation several years ago on the other eye. Obviously, his surgeon did a great job because I didn’t notice a thing.

I think it was quite apparent that Cheney Mason had no problem talking to me, and vice versa. What he did with Judge Strickland was a professional decision and he took advantage of an opening. In the real world, that’s what happens. In the online world, people make up their own laws and hold silly grudges. I’m bald and he’s got skin cancer. Big deal. What’s it got to do with Casey?

What’s my point, you may ask? Remember that when you come to Florida. Wear sunscreen. And a hat. Oh, and I will talk to whoever I damn well please.

A civil play, s’il vous plaît?

Today was my first foray into Orange County Circuit Court Judge Jose R. Rodriguez’s courtroom. I decided that this would be a perfect day before the firestorm begins in the criminal case, where motions are set for Thursday, next Monday, and the day after. This one came at a leisurely time, too; an easy 1:30 PM. That meant no rush hour traffic and no skipping lunch or dinner – not that that’s ever been a problem in Judge Stan Strickland’s court.

One of the things I noticed upon entering the courtroom was the relaxed nature of everyone, including the lone bailiff who sat at a desk in front of me. To my left was Red Huber, the award winning photographer from the Orlando Sentinel. We are both left-handed and our birthdays are only days apart. I’m not telling you who is older, but the deputy’s is one month after ours, in September and two out of three will be the same age. I asked the man with the badge why there were no other deputies in the room, like in Casey’s other courtrooms I’ve been in. He said, “This is civil court. We don’t get too many criminals in here.”

To be truthful, a second deputy did come in and sit across the room from him as court got under way, but this bailiff sure was a nice guy. Smart, too, because he doesn’t pay any attention to what goes on over at the criminal side. Casey who?

The judge was very amicable today, too. He was already at his bench when we were allowed in, so there was none of the ALL RISE business and we actually left before court was adjourned. The courtroom was sparse, but there were a few other cases to hear. Judge Rodriguez heard one, which only took a few minutes. It was all very relaxed. He then said he would hear the case about Zenaida Gonzalez and Casey, because that would clear the courtroom of most of the people who were there – all media – except for attorneys. That left only a couple of cases to address, but he knew this one would go by fairly quickly. It did.

Casey’s attorney, Jonathan Kasen, wasn’t there, but Keith Mitnik was. He represents Zenaida Gonzalez from the Morgan & Morgan law firm. The judge called today’s hearing a pre-trial conference and told him his docket is backed up. He told Mitnik to remove this case from the docket and refile it for trial in January, February or March of “oh-eleven” – the only time when there are openings. But he would set nothing in stone. Mitnik asked if it could possibly be sandwiched in between cases. Judge Rodriguez would not relent. Nope, he wasn’t going to bump-up. Older cases take priority, he responded.

That was pretty much the order for the day, but it doesn’t mean it ended there. Keith Mitnik was very happy to talk to the media when we exited the courtroom. It seems he saved the best for last, and it made my trip very much worth it. Outside of the courtroom is a large area for people to wait before the courtroom opens up. There’s a sprinkling of chairs here and there, but not nearly enough for everyone to sit. Like I said, it was only media people lining up to talk to him.

“I’m not surprised,” Mitnik said about the trial delay, which he had hoped would be held in August. “The courts are very busy. It’s not an old case.”

There is the possibility of new evidence surfacing from the criminal investigation, and the postponement actually gives Zenaida Gonzalez’s attorneys time to review the letters Casey wrote, along with statements made by the two jail house snitches, Robyn Adams and Maya Derkovic. Did Casey say or write that the nanny never existed? “They could be bombshells for our case.”

When he was asked if Zenaida is now working, he wouldn’t answer. He expects a jury to find that this Zenaida had nothing to do with Caylee’s murder. When pressed about money, he said this was more a matter of right and wrong, not money, although he did address punitive damages. He said he would ask for a significant amount of money.

He was puzzled by the fact that nothing has been done about Dominic Casey. Why hasn’t he been deposed yet? That’s a very good question, he responded, but he did add that Casey’s attorney, Diana Tennis, had filed a couple of motions that are pending, so there is some activity.

He said he had absolutely no contact with Casey Anthony. He is aware that she has her Fifth Amendment right to not answer and fully expects her to use it. Last September, her attorney, Jonathan Kasen, asked Judge Rodriguez to delay or throw out the civil trial. He said that Casey should not be asked whether or not she murdered her child while under oath. The judge denied that request. Something tells me there will be a lot of pleading the Fifth.

There are two other items of interest…

After most of the media people finished their questions, I had a chance to talk to Keith. I offered my condolences. He lost his 85-year-old mother a few months back. He’s a very good natured guy and told me he got that trait from her. He seems like a softie at heart. Standing alongside me was Bob Kealing from WESH. We did press him for information on the Cheney Mason/Judge Stan Strickland debacle. He was willing to proffer his thoughts, but he did ask that it be off the record. The only thing I will tell you is that he did not think it was my fault at all. Like I said, there isn’t an attorney in town who doesn’t know Mason.

Finally, I got a phone call this afternoon from my old friend Bill. Bill is the attorney who gave me excellent advice when I had to design ads, bumper stickers and more for a judge’s re-election against his opponent, a newcomer by the name of Belvin Perry, Jr. Bill went on to become a judge in Jacksonville, but is now retired except for consulting work. He asked me if I knew where Belvin came from. I said, you mean the prosecutor’s office? He said, yes… but it’s more than that. He and Ray Sharpe handled all of the capital cases. That means he knows all about prosecuting murderers. Before you let your imagination run away with this, please remember he is now the chief judge and no longer a prosecutor. Still, it’s something to mull over. Meanwhile, Bill agreed to be my “legal advisor” so he’s willing to answer difficult legal questions. Bill and I go back at least 25 years and I used to tell him he should be a judge. Well, he was, and I am proud to know him.

Judge Perry’s lightning speed steals Mason’s thunder

“Be patient and you will finally win, for a soft tongue can break hard bones.”

- Proverbs 28:13

The last time I was inside the courtroom on the 23rd floor, Casey Anthony pleaded guilty to all fraud charges. That was four months ago on January 25. In June of 2009, I wrote a post titled, Guilty as CHARGED? that clearly spelled out why I thought she had no solid defense against those charges. The word CHARGED was my way of saying she charged her purchases on a checkbook she stole from her friend, Amy Huizenga. Why this defense chose to take it completely out of context in its motion to dismiss Judge Strickland is far beyond me, but so it was written, so it was done. God save the judge.

This time, on Friday, the courtroom took on a completely different atmosphere, as a new judge sat on the bench. Known as a no-nonsense jurist, Chief Judge Belvin Perry, Jr. lived up to his reputation. The mood was clearly stoic and reserved. As much as Judge Strickland deserved the same dignity and respect that Cheney Mason did not afford him, quite clearly, this time he sat quietly in the courtroom like a timid church mouse. Was he expecting this sort of outcome after Judge Strickland dismissed himself? Only time will tell, but if there is true justice in the world, Cheney Mason will not stand between it and the mockery he made of the court by filing the motion to dismiss and the later objection he filed in response to the court’s order.

When I got to the courtroom, it was a matter of minutes before Judge Perry entered. I noticed that Casey was wearing a light pink shirt and her hair was tied snugly back in a ponytail. She seemed to be in good spirits until Judge Perry entered the room. From that point on, gone were the smiles and hand-rubbing. As serious as the judge was, so was she. The more relaxed attitude of Judge Strickland’s court was washed completely away. This was business as usual, but a tougher version of it mixed in with a heavy dose of reality. Judge Perry had no qualms about discussing the dreaded death penalty.

He first addressed the monumental list of State witnesses, over 250, and the small number, 36, that had already been deposed. This is something he wants done. Let’s get a crack on it. MOVE, MOVE, MOVE!  He told the defense to file a proposed deposition schedule. He will not allow for any excuses. In light of this, he gave prosecutors and the defense strict orders to get their evidence and witnesses in order. Prosecutors said that some out-of-state witnesses were reluctant.

“I’m quite sure that Sheriff Jerry Demings will aid us in going to make those witnesses available for deposition,” Judge Perry said. In other words, depose them or the court will. There will be room for one courtesy call ONLY.

On record, Jose Baez listed himself as lead counsel for the day. Will that change by the time the trial gets underway? That’s anyone’s guess, but I did notice he addressed the judge as “Judge” on several occasions, instead of “Your Honor.” Some habits die hard.

Moving on, His Honor was irked that the defense still hadn’t talked to the JAC (Justice Administration Commission) about how much money the case will cost Florida taxpayers.

“I got time next week and the following week. That needs to be done like yesterday,” Judge Perry said. A hearing on the matter has been scheduled for this Thursday. He ordered attorneys to block out several days the following week (next week) to argue over unresolved motions, including all non-death penalty motions, whether the state’s death penalty is unconstitutional, whether jurors will be allowed to view pictures of Casey partying, and allegations of Roy Kronk’s domestic violence. This will most likely be held on the 10th or 11th.

Judge Perry really got down to the nitty gritty of changing the venue. Stating that it would be too cost prohibitive to move the entire trial to another county, he proposed moving a jury here if one could not be seated within the confines of Orange County. He said, “I have done a number of change of venue cases. Once I grant it, the location will not be disclosed. It will be disclosed at the last possible moment.”

He does not want the media to know until the last minute. That way, all publicity surrounding the location and jury selection will be kept under wraps. It seems apparent this judge wants the trial to take place right here in Orange County due to the massive costs of uprooting everyone, including over 250 witnesses, mostly from the Orlando area. He has no problem moving a jury here instead, if necessary. Most assuredly, this is something I was positive Judge Strickland would have decided. Many of us felt the same way, so it’s nothing new, but what may be is sequestering. If the judge decides to sequester jurors, which cuts them off from all outside influences, it could make jury service much more tiresome.

When asked, Jose Baez said, “This is really not just about the publicity. This community is intimately involved in this case by way of searches, by way of protesters.” He noted that the types of people the defense would want to hear the case may not be able to handle the stress of two months away from home and family.

“It is no secret that this case has received widespread publicity,” Perry said. He went on to say that the only way to make sure they are not infected or polluted during this proceeding is to sequester them.

Judge Perry asked the prosecution how long it expected to take to argue their case. Linda Drane Burdick responded that it would take about 3-4 weeks. The judge asked the defense the same question. Baez answered, about 3 weeks. The judge then set a working schedule of five-and-a-half days per week, meaning a half-day on Saturdays. He said that he would submit a list of movies for the jury to watch and each side could strike any from that list, no questions asked. Remember, there will be no TV for a sequestered jury.

Finally, he brought up the DEATH PENALTY phase. This was something Casey could not order her attorneys to “make him stop.” I almost swear I saw the hairs stand up on the back of her neck. Her parents were in front of me and I watched Cindy cringe.

How long will it take the state to argue? Jeff Ashton stood and said it would be done in a day. Baez then stood and said it would take the defense anywhere from 3-5 days.

Judge Perry reminded the court that we live in an adversarial system of justice, which is “the two-sided structure under which criminal trial courts operate that pits the prosecution against the defense. Justice is done when the most effective adversary is able to convince the judge or jury that his or her perspective on the case is the correct one.”¹

He wanted to move the trial date up a week, to May 2, but Andrea Lyon reminded the court over a speaker phone (in absentia) her daughter graduates college that week. The judge accommodated her and allowed the date Judge Strickland set to stand at May 9, 2011. Meanwhile, he expects to hold status hearings every 45 day. With that, the hearing came to an abrupt – no, not yet… Baez corrected the judge, who called Andrea Lyon “Miss Lyons.”

“There’s no ‘s’ at the end of her name, Judge, and it’s Professor Lyon.”

The Honorable Judge Belvin Perry, Jr. stood corrected and walked away from the bench. So it was written, so it was done.

Order Regarding Deposition Schedule

Order Setting Motion Hearings 5-03-2010

EquuSearch: Running out of patience before us?

As soon as members of the media showed up at Mark NeJame’s office this past Friday, Casey Anthony’s defense team ran out the door, tails between their legs. They had arrived only minutes earlier to look over records belonging to Texas EquuSearch.

Now, TES officials say they want to try to break the standoff with Casey’s team in court. One source said that, with Chief Judge Belvin Perry now in charge, they want him to decide when enough is enough. They are fed up with playing the waiting game. For more than eight months TES has waged a large legal battle over keeping most of the searchers’ records private.

In August of 2009, Casey’s defense team won the right to pore over records of 32 searchers who looked closest to the location where Caylee’s remains were eventually found. The defense later filed a motion to copy all of the records of roughly 4,000 people who looked for the toddler at all other locations, including south of OIA. Judge Stan Strickland denied that motion.

The defense made claims that at least two of the searchers looked in the very spot where Caylee rested and found nothing. Texas EquuSearch is getting fed up with the defense and is planning on filing legal paperwork to have the new judge order Mason & Co. to review the records and be done with it. Mark NeJame declined to comment.

In one other bit of news, and if my source is correct, Baez will stand behind the shadow of Cheney Mason because Mason has tried a number of cases before Judge Perry. Mason is also known to be a one man band with lots of attorneys he can turn to for assistance. He has surrounded himself with an excellent blend of specialists, all independent and all within the immediate vicinity of his office. In other words, he rents them space.