Procedure and legal questions

[Just Jayla]

For those with legal knowledge--After reading the "privacy agreement" between "The Firm" and Padilla, Tony, Tracy and Rob, do you think this agreement would prevent them from testifying?
http://www.wftv.com/pdf/20089919/detail.html

I always have to preface by pointing out I am not an attorney, so I might be clueless here, but the way I read this, there is nothing to stop ALL of them from tesifying if they are subpeoned by a court. As JB points out in the beginning of the agreement, it is HE that has an obligation to protect KC's rights.
Don't know if there is precedent for something like this, but it does look like one of those agreements you see in the tabloids between a celebrity and their housekeeper. I don't think those agreement hold if the housekeeper is subpeoned, either.

 

[DotsEyes]

Last I heard, the defendant's lawyer can not determine the relationship between the bonding agent and the defendant and can not create a privilege where none exists.

The bonding company determined the conditions of the bond, one of which was that there would be an agent of the bonding company with KC 24/7. JB didn't "let" or "allow" them to have contact with KC. They earned that distinct honor by putting up half a million dollars in bond to release her from jail.

KC has never listened to anyone, so it doesn't surprise me that she chatted it up around Tracy, despite JB's instructions to keep her trap shut.

She couldn't stop talking and Tracy couldn't just turn off her ears. This horse is out of the barn.

 

[lin]

Although Themis has already explained in this thread, a conflict came up on another thread regarding whether or not the Anthony jury may be instructed on felony murder. My position is according to the Florida Standard Jury Instructions and Knight cited therein, they can:

"Under Knight v. State, 338 So.2d 201 (Fla. 1976), felony murder is included within a single indictment count of premeditated murder. Therefore, first degree felony murder should be given if requested by the state and if supported by the evidence, although it is not a lesser included offense."

Link to Florida Supreme Court website and Standard Jury Instructions

 

[lin]

Some debate over whether or not the Anthony jury may be instructed on felony murder ensued. Leading to this post:

Quote me.

So this is my response to that post, to move the discussion to this thread:

I tried previously to refer a further discussion on felony murder to the other thread.

It took a good deal of time before most posters finally understood and agreed that Casey has not been charged with felony murder. Hence, the judge can't instruct the jury on felony murder nor can the jury deliberate on felony murder. I'm not going to rediscuss felony murder in this thread. Please use the other thread to carry on that discusson if you wish.

Casey has not been charge with felony murder. Moreover, felony murder is not a lesser charge of first-degree murder. Prosecutors would have to amend their currect charges and charge Casey with felony murder before the judge could instruct the jury on felony murder.

ETA: There is a thread that covers this in detail.

Either Knight as cited in the Florida Standard Jury instructions controls, or it does not. By repeatedly stating that the jury may not be instructed on felony murder, your analysis appears to be in direct conflict, imo. In other words, you indicate that Knight does not control. HTH

 

[lin]

So, folks, can we try to reach a consensus here? Will the court be allowed to instruct on felony murder if requested by the state? TIA for all input.

 

[Wudge]

Some debate over whether or not the Anthony jury may be instructed on felony murder ensued. Leading to this post:



So this is my response to that post, to move the discussion to this thread:





Either Knight as cited in the Florida Standard Jury instructions controls, or it does not. By repeatedly stating that the jury may not be instructed on felony murder, your analysis appears to be in direct conflict, imo. In other words, you indicate that Knight does not control. HTH

I have no idea why you say that I "indictate" that "Knight" does not control. I've not said a word about whether "Knight" controls or not.

If you read through the thread, you will find what I have said is that the "circumstances" of the case must support a felony murder charge. Moreover, though a premeditated murder charge can co-exist with a felony murder charge provided the circumstances support both charges, I have consistently said that the circumstances are too disparate to support both charges. In other words, the circumstances of this case do not lend themselves to a charge of murder one and a felony murder charge -- special note that Florida offers three tiers for felony murder.

Nevertheless, felony murder is not a lesser charge of first-degree murder. Therefore, prosecutors would need to charge Casey with felony murder before the trial starts.

 

[Brini]

So, folks, can we try to reach a consensus here? Will the court be allowed to instruct on felony murder if requested by the state? TIA for all input.

The law looks pretty clear, to me! Yes.

Knight clearly contradicts Wudge.

Case law trumps personal opinion.

 

[JBean]

Although Themis has already explained in this thread, a conflict came up on another thread regarding whether or not the Anthony jury may be instructed on felony murder. My position is according to the Florida Standard Jury Instructions and Knight cited therein, they can:

"Under Knight v. State, 338 So.2d 201 (Fla. 1976), felony murder is included within a single indictment count of premeditated murder. Therefore, first degree felony murder should be given IF requested by the state and IF supported by the evidence, although it is not a lesser included offense."

Link to Florida Supreme Court website and Standard Jury Instructions

There are a lot of "if's" in there and so the answer cannot be a simple one.

 

[Themis]

If, after presentation of all the evidence, the evidence admitted supports a felony murder lesser included offense, the prosecution will make a choice of whether or not to request the instruction. The prosecution might not want to do that if they think the evidence supporting a premeditated murder charge is very clear. Juries like to compromise on things like this and giving them a compromise may or may not be the right legal tactic. The State's Attorney in Orange County will likely be the one to make this decision and not the lead prosecutor.

The standard of "if supported by the evidence" is not such a high bar to reach. It generally means that if there is evidence admitted upon which the jury could make that decision, then it meets the standard. The prosecutor, in making the request, and the judge, who decides whether or not to grant the request, do not themselves have to deliberate on the evidence to see if they would decide this at the beyond a reasonable doubt standard. In fact, the tendency is that if there is evidence that could support a felony murder charge, then they will let it go to the jury. "Support" here is a question of whether or not the evidence exists in the case and has been admitted. Even if that seems to be an unlikely result if the evidence exists in the case it can go to the jury. What we don't know at this point is if there will be evidence admitted in the case that the jury could use to support a felony murder conviction. A big part of that will depend on witness testimony and that hasn't happened yet.

 

[lin]

I have no idea why you say that I "indictate" that "Knight" does not control. I've not said a word about whether "Knight" controls or not.

If you read through the thread, you will find what I have said is that the "circumstances" of the case must support a felony murder charge. Moreover, though a premeditated murder charge can co-exist with a felony murder charge provided the circumstances support both charges, I have consistently said that the circumstances are too disparate to support both charges. In other words, the circumstances of this case do not lend themselves to a charge of murder one and a felony murder charge -- special note that Florida offers three tiers for felony murder.

Nevertheless, felony murder is not a lesser charge of first-degree murder. Therefore, prosecutors would need to charge Casey with felony murder before the trial starts.

You have insisted and repeat above, bbm, that the court may not instruct on felony murder in the Anthony case without specifically charging it. According to the jury instructions, the decision in Knight is the basis for the instruction that the court may, upon request of the state, give felony murder instructions without filing additional charges, even though it's not a lesser included offense. As Knight is the basis for the finding or instruction, Knight controls. When you suggest something contrary to the holding in Knight, you indicate that in your view, Knight does not control.

I agree the facts of the case must support a felony murder charge before the instruction may be given to the jury.

In no way do I mean to be facetious but just in case we're having another semantical misunderstanding, this is my view of jury instruction in red:

"Under Knight v. State, 338 So.2d 201 (Fla. 1976), I assume you know but for the benefit of others, this means that this case is cited as the authority validating the premise stated felony murder is included within a single indictment count of premeditated murder. Due to Knight, felony murder is included within the indictment Therefore, first degree felony murder should be given if requested by the state and the state may request and if they do the court should give the felony murder instruction and if supported by the evidence, although it is not a lesser included offense." Sort of indicating this is a special exception to the authorities that have led you to believe otherwise.

If yours differs, please explain. And it may help to clarify if you use the same method I did, to explain your understanding of this instruction, so I can see your reasoning on same.

 

[tweety933]

They arrested her for 782.04…… 1.) a. 1
I know 782.04 means first degree murder, but what does 1.) a.1 stand for?

 

[Brini]

There are a lot of "if's" in there and so the answer cannot be a simple one.

Looks like two ifs.

So, if the state deems that accidental death 2nd to the commission of, say, felony child abuse, occurred, because the evidence supports that position, the state could instruct and request that the jury so consider?

Not that I believe that, BTW. The Huck and duct tape precident decided me otherwise.

 

[JBean]

http://felonymurderfl.org/about/

this is good read

 

[Marina2]

They arrested her for 782.04…… 1.) a. 1
I know 782.04 means first degree murder, but what does 1.) a.1 stand for?

The 782.04 is "murder", the 1.) a. 1 designates "premeditated".

1.) a. 2 looks like it's designating "felony" murder if I'm I reading the statute correctly.

ETA: Might as well post the whole thing in an effort to understand:

782.04 Murder

(1)(a) The unlawful killing of a human being:

1. When perpetrated from a premeditated design to effect the death of the person killed or any human being;
2. When committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any:

a. Trafficking offense prohibited by s. 893.135(1),
b. Arson,
c. Sexual battery,
d. Robbery,
e. Burglary,
f. Kidnapping,
g. Escape,
h. Aggravated child abuse,
i. Aggravated abuse of an elderly person or disabled adult,
j. Aircraft piracy,
k. Unlawful throwing, placing, or discharging of a destructive device or bomb,
l. Carjacking,
m. Home-invasion robbery,
n. Aggravated stalking,
o. Murder of another human being,
p. Resisting an officer with violence to his or her person,
q. Felony that is an act of terrorism or is in furtherance of an act of terrorism; or
​

3. Which resulted from the unlawful distribution of any substance controlled under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., or opium or any synthetic or natural salt, compound, derivative, or preparation of opium by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user, is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082.
​

(b) In all cases under this section, the procedure set forth in s. 921.141 shall be followed in order to determine sentence of death or life imprisonment.

(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) When a person is killed in the perpetration of, or in the attempt to perpetrate, any:

(a) Trafficking offense prohibited by s. 893.135(1),
(b) Arson,
(c) Sexual battery,
(d) Robbery,
(e) Burglary,
(f) Kidnapping,
(g) Escape,
(h) Aggravated child abuse,
(i) Aggravated abuse of an elderly person or disabled adult,
(j) Aircraft piracy,
(k) Unlawful throwing, placing, or discharging of a destructive device or bomb,
(l) Carjacking,
(m) Home-invasion robbery,
(n) Aggravated stalking,
(o) Murder of another human being,(p) Resisting an officer with violence to his or her person, or
(q) Felony that is an act of terrorism or is in furtherance of an act of terrorism,
​

by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony is guilty of murder in the second degree, which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

(4) The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any:

(a) Trafficking offense prohibited by s. 893.135(1),
(b) Arson,
(c) Sexual battery,
(d) Robbery,
(e) Burglary,
(f) Kidnapping,
(g) Escape,
(h) Aggravated child abuse,
(i) Aggravated abuse of an elderly person or disabled adult,
(j) Aircraft piracy,
(k) Unlawful throwing, placing, or discharging of a destructive device or bomb,
(l) Unlawful distribution of any substance controlled under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., or opium or any synthetic or natural salt, compound, derivative, or preparation of opium by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user,
(m) Carjacking,
(n) Home-invasion robbery,
(o) Aggravated stalking,
(p) Murder of another human being,
(q) Resisting an officer with violence to his or her person, or
(r) Felony that is an act of terrorism or is in furtherance of an act of terrorism, is murder in the third degree and constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
​

(5) As used in this section, the term "terrorism" means an activity that:

(a)1. Involves a violent act or an act dangerous to human life which is a violation of the criminal laws of this state or of the United States; or
2. Involves a violation of s. 815.06; and

(b) Is intended to:

1. Intimidate, injure, or coerce a civilian population;
2. Influence the policy of a government by intimidation or coercion; or
3. Affect the conduct of government through destruction of property, assassination, murder, kidnapping, or aircraft piracy.
​

 

[JBean]

The 782.04 is "murder", the 1.) a. 1 designates "premeditated".

1.) a. 2 looks like it's designating "felony" murder if I'm I reading the statute correctly.

ETA: Might as well post the whole thing in an effort to understand:

782.04 Murder

(1)(a) The unlawful killing of a human being:

1. When perpetrated from a premeditated design to effect the death of the person killed or any human being;
​

Translation: she has been charged with premeditated murder. 782.04 1(a)1


eta 782.04 2 is Felony murder which she has not been charged with. and now we are back to square one LOL.

 

[Marina2]

Translation: she has been charged with premeditated murder. 782.04 1(a)1

Correct :crazy:

 

[tweety933]

Ok, so if premeditation is not proved then 7.7 MANSLAUGHTER
§ 782.07, Fla. Stat. would have to be 2.c. which is....c. The death of (victim) was caused by the culpable negligence of (defendant). 2.a&b both require intentionally causing (premeditation).

The lesser charge that could be determined by the jury could only be this, and not FELONY murder, because she wasn't charged with THAT.

Is this correct?

 

[Wudge]

You have insisted and repeat above, bbm, that the court may not instruct on felony murder in the Anthony case without specifically charging it.

I've noted that prosecutors would need to move to amend the current charges to include a felony murder charge before the trial starts.

I'm not sure if you believe that after the trial starts, "Knight" permits prosecutors to charge Casey at their will and at any time during the trial with an entirely new charge; i.e., a felony murder charge, and/or that the Judge would have but no choice to instruct the jury on this new charge.

At best and at a minimum, I hold that to do so would violate Casey's 6th and 14th Amendment rights (fair trial, due process). In all honesty, if the trial judge permitted this, [any competent defense attorney would have Appellate Courts immediately review and rule on the judge's decision before continuing the trial] the doctrine of plain error would come into play -- read: miscarriage of justice. Because a defendant has a clear and long understood right to prepare a well thought out, well conceived and well planned defense against the charges that exist at the start of a trial.

Clearly, this does not include prosecutors altering their theory of the crime at the twelth of midnight so as to support an ambush charge or charges. For which, you might even further believe, the judge would have but no choice other than to issue related jury instructions.

 

[lin]

Ok, so if premeditation is not proved then 7.7 MANSLAUGHTER
§ 782.07, Fla. Stat. would have to be 2.c. which is....c. The death of (victim) was caused by the culpable negligence of (defendant). 2.a&b both require intentionally causing (premeditation).

The lesser charge that could be determined by the jury could only be this, and not FELONY murder, because she wasn't charged with THAT.

Is this correct?

Not according to Knight or the jury instructions. According to the passage I quoted, although felony murder is not a lesser included offense, (meaning that it requires an element not found in the list of elements required for premeditated murder), it is included in a premeditated murder indictment and the judge may instruct the jury to consider that as a charged offense. That is, if the state requests it and the evidence supports it, the judge may so instruct. The jury may consider and return a verdict of guilty of felony murder, despite its not having been charged prior. Whew!

 

[lin]

I've noted that prosecutors would need to move to amend the current charges to include a felony murder charge before the trial starts.

I'm not sure if you believe that after the trial starts, "Knight" permits prosecutors to charge Casey at their will and at any time during the trial with an entirely new charge; i.e., a felony murder charge, and/or that the Judge would have but no choice to instruct the jury on this new charge.

At best and at a minimum, I hold that to do so would violate Casey's 6th and 14th Amendment rights (fair trial, due process). In all honesty, if the trial judge permitted this, [any competent defense attorney would have Appellate Courts immediately review and rule on the judge's decision before continuing the trial] the doctrine of plain error would come into play -- read: miscarriage of justice. Because a defendant has a clear and long understood right to prepare a well thought out, well conceived and well planned defense against the charges that exist at the start of a trial.

Clearly, this does not include prosecutors altering their theory of the crime at the twelth of midnight so as to support an ambush charge or charges. For which, you might even further believe, the judge would have but no choice other than to issue related jury instructions.

It's not what I believe that's important. It's what the law reads and the jury instructions say. Can you give a different explanation for the passage citing Knight quoted from the jury instructions other than that you insist cannot be possible and is a constitutional violation?

If not, then I'm going to read the plain language of the instruction and disagree with your opinion.