Of Biblical Proportions

SOLOMON, PART I

On January 27, 2010, I wrote a post titled, “The Wisdom of Solomon”. It was two days after The Honorable Judge Stan Strickland listened to Amy Huizenga’s thieving friend plead guilty to thirteen counts of fraud. Here is part of what I wrote that day:

State Attorney Frank George stood up at his respective podium and began to speak. On July 8, 2008, Casey wrote a check in the amount of $111.01 that accounted for charges 2, 3, and 4. She wrote this check at Target.  On July 10, she passed a check at Target in the amount of $137.77 that accounted for charges 5, 6, and 7. Also on July 10, she passed a third check at Target for $155.47 and that took care of counts 8, 9, and 10. Counts 11, 12, and 13 took place on July 15 when she wrote a check for $250 at the Bank of America. He then brought up count 1 which referred to a deliberate scheme of conduct overall. She planned on writing checks until they bounced off the walls, I would guess. Good thing we live in the information age, where account balances are instantaneous almost everywhere we go.

Judge Strickland gave the defense an opportunity to challenge the charges. We can discuss the lack of brevity or the levity of the arguments, but let’s cut to the chase - it came down to the judge. First, it should be noted that Casey had no prior convictions and she did make full restitution and  Baez did bring up “equal justice” for his client. He asked for one year of probation and credit for time served, rather than the five years of incarceration the State sought. In the end, His Honor sentenced the 23-year-old Casey to (jail) time served - 412 days - plus $5,517.75 in investigative costs and $348 for court. The amount may be discussed and negotiated at a later motion hearing because the defense found the investigative charge too high and not justifiable. He also adjudicated Casey guilty on six of the fraud counts and withheld adjudication on seven, plus he tacked on a year of supervised probation, which could be problematic and complex later on, given that she still faces a huge mountain of charges ahead. He said that he had given this a lot of thought prior to sentencing. “I’ve done what I thought is fair based on what I know.”

In closing, he added what he felt was the right thing to do:

“There was not an even number of offenses, so I withheld in seven, I adjudicated in six. If that seems Solomon-like, it is.”

Of particular interest now is the Solomon-like decision Judge Perry faces regarding the recent clarification of Casey’s probation period set by Judge Strickland. I find it ironic that good old Solomon once again rears his head at the now acquitted and much detested convicted felon.

MOSES, PART I

That brings me to another biblical figure - Moses. He was the guy who cast ten plagues on the people of Egypt. He also parted the Red Sea after he turned the Nile into blood. The pharoah was none too happy with that, so he let Moses and his people go out of Egypt to be slaves no more.

My reason for bringing up Moses has little to do with him, actually. It’s more about the pharaoh at the time, and what his edict was while Moses was packing up the Israelites to wander in the desert for forty years. Every mention of his name and every word etched in stone was struck from the official records. (Historical records actually show that Ramses II was not in charge at the time, but Hollywood disagrees.)

As Ramses II, Yul Brynner exclaimed in Cecil B. de Mille’s film The Ten Commandments, “So it shall be written, so it shall be done.” In this same light, I proclaim that the name Casey Anthony will no longer be permitted on this blog. It is now stricken from the record. However, I do have an appropriate replacement. We know that Caylee called Cindy Ci Ci, and George was Jo Jo. What did she call her mother? How about Ca Ca? From now on, Caylee’s mother will only be known as Ca Ca. Yes, you know how it’s pronounced.

SOLOMON, PART II

Back to the problem Judge Perry called “a legal maze” and “a legal morass”. What sort of decision should he make? According to the Department of Corrections, Ca Ca served her probation while incarcerated and was duly discharged a year later; free from all restrictions. According to what Judge Strickland said in open court on January 25, 2010, her probation was supposed to begin AFTER her release from jail, not while she was sitting in a cell, and he made it clear last week, on August 1, when he issued a corrected Order of Probation and corrected Court Minutes, nunc pro tunc to January 25, 2010. Nunc pro tunc, of course, means now for then; whatever the action is, it has a retroactive legal effect.

Here’s the dilemma. Ca Ca’s defense argues that she has served her probation while incarcerated and they have a letter from DOC to prove it. On the other hand, Judge Strickland made it abundantly clear that Ca Ca did not serve her probation as per his instructions, and his order stated that it was to begin after her release, only there was a mix-up on the first order, as written by the court. But that was not Judge Strickland’s fault. Meanwhile, Cheney Mason filed a motion on his client’s behalf, the EMERGENCY MOTION FOR HEARING TO QUASH, VACATE, AND SET ASIDE COURT’S ORDER. 

Judge Perry said (at the August 5 hearing on the matter) that what Strickland stated in court should trump all - not what the defense claimed. At the same time, Perry acknowledged that she DID serve out her probation in jail according to the Orange County Corrections Department. What a quagmire. “If anything could go wrong,” he said, “it went wrong here.”

Perry is quite aware of safety concerns, meaning keeping Ca Ca safe from harm. To openly serve probation now opens up a can of worms since her address would be made public due to Florida’s sunshine laws. You know, what with all those death threats and whatever.

Phooey. Ask OCSO how many real death threats they’ve received since her release from incarceration. From my own experience with trolls and the “vengenance is mine” crap - yes, that’s the way one idiot spelled it, insinuating harm on me - almost every one of them lives far enough away to be a real threat, although I wouldn’t trust any of them face-to-face, and that leads me back to Ca Ca. Personally, I feel she should be more afraid the farther away from home she is, as she enters uncharted territory. There are more crazies out there in the world than there are in Orlando. Believe me, I thank God for the Atlantic ocean, but that’s another story.

Ahum.

Moving on, I am left with prior motions the defense filed before the trial which asked the court to seal jail records, including visitation logs, telephone conversations and commissary purchases. They were filed and denied while Strickland was on the bench, and they were refiled, along with new ones, after Judge Perry took over. Both judges made it very clear that the judicial branch holds no legal sway over the legislative branch; the one that controls jails and prisons. Consequently, neither judge ruled in favor of the defense because they had no authority to do so.

That leads me to what I think the judge should do. Since he has no power over the jail because it’s a completely separate governmental branch from the court, his decision should be based on those prior rulings. The court does not have to honor the administrative decisions the jail makes in its day-to-day operations. What both judges have been saying all along is that they have no control over the executive branch, and at the same time, the jail has no power over the judicial. There you have it - a very simple solution to a complex problem. Ca Ca did not serve a day of probation while incarcerated because she did not satisfy the court’s order. The heck with what the jail says.

MOSES, PART II

As Ramses said about Moses, let Judge Perry say the same thing about Ca Ca. So it shall be written, so it shall be done. While he wanders through what must be at least 40 years worth of court cases, let’s see how he rules. Personally, I think the answer should be a year of supervised probation. Afterward, she can find her Promised Land. By then, she should be old news and TMZ won’t pay her another dime.

Have a Happy Heavenly Birthday!

Nunc pro tunc no slam dunk

In Latin, nunc pro tunc literally translates into “now for then.” In other words, retroactive. Chief Judge Belvin Perry, Jr. listened to several matters brought up at the hearing held on October 29, including issues over funding that dated back to May, hence, nunc pro tunc. Four days later, on November 2, the judge delivered his ORDER ADDRESSING RETAINMENT AND PAYMENT OF EXPERTS, INVESTIGATORS, MITIGATION SPECIALIST, AND OTHER COSTS. Written in chambers, without bravado and with his usual brevity, it addresses three separate motions filed earlier by Casey Anthony’s defense.

MOTION ONE

On September 30, Ann Finnell filed the Motion to Determine Reasonable Budget for Due Process Costs in a Capital Case and Motion to Incur Certain Specified Costs. A long-winded title, indeed, that came with a short reply from the judge on each specific element. Casey had requested authorization for anticipated costs for the penalty phase, if this case ever truly reaches that stage, plus mitigation costs addressed previously in an order dated May 12, 2010 nunc pro tunc to May 6, 2010.

Private Investigator

The defense asked for the authorization of a $5,000 cap on the use of a private investigator “to provide services for the penalty phase such as locating and interviewing mitigation witnesses, documents, and other relevant evidence.” Judge Perry reserved judgment and told the defense to submit an itemized list, by November 5, of the investigative services needed to support the request. It sounds reasonable enough. After all, one of the key points the judge made at the hearing was that he was not going to write an open check.

Psychiatrist or Psychologist

Here, Casey’s defense asked for the authorization of a $7,500 cap “for services by a licensed psychiatrist or psychologist to examine and conduct forensic testing on Defendant, to render an opinion regarding cross-examination of any State expert, and if needed, to testify at the penalty phase.” The court granted this part of the motion, but set the cap at $2,500 for pre-trial services at JAC rates. Please note that this is pre-trial work and not money going to a possible penalty phase. That money will be addressed at a later date the judge left unclear. I also get the feeling the defense may be able to ask for more if needed, although there was no mention in his order.

Copying Costs

The defense asked for a $1,000 cap to cover copying costs during the penalty phase. Think Xerox. The judge gave them $500 at the approved JAC rate. When the judge asked Ms. Finnell whether that amount would work, she said it most likely would. She didn’t sigh, in other words, or beg for more.

Mitigation Specialist

Casey wanted the court to authorize an additional 100 hours for services of the mitigation specialist, Jeanene Barrett. The court granted her request in full - 100 hours to be provided by Ms. Barrett or another in-state investigator at the JAC rate of $40 per hour. That gives her $4,000 to work with at the full rate. Can she request more? Probably, but the judge wants everything to be itemized and explained.

Attorney Travel Expenses

Ann Finnell wanted a $4,000 cap for expenses she expects to incur as she travels back and forth between her office in Jacksonville and Orlando. The amount covered anticipated trips to and from Ft. Myers. George has family there. Despite public arguments over whether Jeanene Barrett has already been there, done that, it’s moot and nothing more. The judge denied the request because of JAC policies and procedures, and the earlier court ruling entered May 12, 2010 nunc pro dunc to May 6, 2010. This means the order is retroactive to May 6. No money, honey.

Travel Expenses for Investigator or Mitigation Specialist

Casey requested the authorization of a $1,500 cap on travel expenses for one investigator or one mitigation specialist to journey to Ohio to obtain records and interview potential witnesses. At the hearing, Judge Perry said to use the telephone wherever possible, and/or to try to hire someone within the state of Ohio who will work at JAC rates. That would save Florida a lot of money on round-trip airline tickets. Here, he reserved any ruling until the defense can offer reasons in support of their initial request. Explore the options first. Whatever the defense can figure out, the judge will meet with them in camera in order to shield the strategy from the prosecution.

Attorney Travel Expenses for Trial

The defendant asked the court to authorize payment of Ann Finnell’s anticipated travel expenses to attend the trial commencing in May of 2011. The judge had no choice but to deny the request because of JAC guidelines and the earlier order entered May 12, 2010 nunc pro tunc to May 6, 2010.

MOTION TWO

Motion for Additional Hours of Investigation (guilt phase)

On October 25, Jose Baez filed a motion on behalf of his client. He asked the court to authorize an additional 300 hours for in-state investigative services in order to “continue investigating the evidence alleged in the State’s on-going discovery.” Of course, this request was above and beyond the hourly cap addressed during the May 12 nunc pro tunc to May 6 approval. What he ended up with this time is not what he asked for, though. The judge granted an additional 60 hours to the tune of JAC’s $40 per hour rate. Instead of $12,000, he ended up with $2,400. For now. Although not stated in the order, the judge did leave the door open for additional funds later on, if the need arises and the defense can account for every single dime.

MOTION THREE

Motion for Clarification of the May 12th Order regarding both Travel Time and Reimbursement for Travel Expenses and Mileage of Out-of-State Experts, Mitigation Specialist, Investigators, and State Experts

This is in response to a motion filed by Jose Baez on October 25 “because the order entered on May 12, 2010 nunc pro dunc to May 6, 2010 did not specifically address the travel time and expenses incurred or anticipated for these persons. Accordingly, clarification is needed as to the authorization for payment of such costs” according to the order. The court granted this motion, nunc pro tunc to May 6, 2010, and authorized “the payment for travel time and reimbursement for travel expenses and mileage of out-of-state experts, the mitigation specialist, investigators, and state experts at the JAC approved rates and in compliance with JAC’s policies and procedures in this motion and its attachments.” In the May 12 order, ORDERS ADDRESSING MOTION TO SEAL RECORDS RELATED TO THE JUSTICE ADMINISTRATIVE COMMISSION/RETAINMENT AND PAYMENT OF EXPERTS, INVESTIGATORS, MITIGATION SPECIALIST, AND OTHER COSTS/RECONSIDERATION OF DEFENDANT’S REQUEST TO WAIVE APPEARANCE AT CERTAIN HEARINGS/PROCEDURES FOR FUTURE MOTIONS… hold on, I need to catch my breath after that one… the judge addressed many areas of the defense’s earlier motion. I’m not going to go over every aspect of it. This is merely to sort out the reason Judge Perry had to take another look at his order and why he decided to respond now. In essence, the earlier order listed the approval and caps for each individual he cited, but omitted travel expenses:

• Dr. Henry Lee - Criminologist Expert: A cap of 8 hours for in-court services and a cap of 25 hours for out services.
• Jeanene Barrett - Mitigation Specialist: 384 hours for services.
• One investigator (in-state): 300 hours for in-state services.
• One Investigator (out-of-state): 100 hours for out-of-state services.
• One K-9 Expert (out-of-state): 20 hours for services.
• One postmortem hair banding expert: 20 hours

For the following experts, caps as to the number of hours to be incurred has not been determined. Therefore, the judge ruled that they shall be approved by subsequent order:

• One forensic entomologist (out-of-state)
• One forensic anthropologist
• One forensic botanist (out-of-state)
• One forensic pathologist (out-of-state)
• One digital computer forensic expert (out-of-state)
• One DNA expert (out-of-state)
• One forensic chemist (in-state)
• One forensic chemist (out-of-state)

Also in that order, he found that the following experts were not relevant and necessary to provide Casey with adequate representation:

• Jury consultant (denied with prejudice)

I recall the judge saying at the motion hearing that Cheney Mason is a qualified jury consultant and that was enough. This was also before Ann Finnell came along.

• One additional DNA expert (denied with prejudice)
• One additional forensic botanist for consulting only (denied with prejudice)
• One additional forensic Biologist for consulting only.
• One trace evidence expert (denied without prejudice)

With prejudice is another way of saying forget about it. It’s a done deal. Without prejudice means a motion can be re-addressed later by taking on a different tack, or by rewriting an incorrect motion, or because - as is the case here - the defense needs an opportunity to decide whether Dr. Lee can provide the trace evidence services. If not, counsel could then request approval from the court for someone else.

• One taphonomy expert (denied without prejudice) to allow defense counsel to request a Rogers hearing.

In my unqualified opinion, a Rogers hearing (in this instance) may be requested if the defense’s expert opinion testimony is incomplete. Taphonomy, from the Greek taphos (death), is concerned with the processes responsible for any organism becoming part of the fossil record and how these processes influence information in the fossil record. Many taphonomic processes must be considered when trying to understand fossilization. See: Taphonomy

• One cell phone expert (denied without prejudice - to determine whether this expert is needed after the state’s expert is deposed.)

In his May 12 order, the judge granted a cap of $3,500 for the costs of public records requests and denied all travel costs incurred by defense counsel, meaning attorneys only, but it didn’t address travel costs for experts. What the judge needed to clarify to both the defense and the JAC is what JAC will be held responsible for paying. In its own response to the defense motion, JAC did not make that clear. At the same time, the official JAC Expert Billing manual states that:

“Experts may not bill for time spent traveling on a case unless an hourly rate has been established by law or a court order for the travel time. Generally, travel time is not reimburseable.”

In this case, the judge did not establish an hourly rate, but the JAC manual does address a mileage rate for reimbursement of $.0445 per mile when out-of-county experts travel more than 50 miles. Will the judge set an hourly rate for the experts’ travel time? The order did cite attachments, which were not released to the public as far as I know. The answer may be in those documents.

Personally, I can’t imagine a better judge when it comes to knowing law. And I wouldn’t hold my breath if I were the defense, expecting him to flub somewhere down the pike. As much respect as I have for Judge Strickland, Judge Perry has a clear docket, and that translates into one important thing: He’s got more time on his hands to make sure this case is handled by the book. That means less things to consider upon appeal. Of course, that’s only if Casey is convicted. Meanwhile, stare decisis et non quieta movere.  The defense must maintain what has been decided. In other words, it cannot alter the legal principle under which judges are obligated to follow the precedents established in prior decisions. That’s why the judge denied the defense counsel’s Motion for Reconsideration that dealt with the previously rendered denial of its motion to seal jail logs, including commissary records and telephone and visitation logs. Oh, I could go on, but that one’s for another day.