Legal Questions for Our VERIFIED Lawyers #2

[suepitzl]

AZ - Would you be so kind as to address:

FL Standards for Imposing Lawyer Sanctions
[Credit: flitterfuzz at IS]

Seems to me Baez meets all of them. What if he is found in contemt again?? Will this allow a whole new trial? TIA
Please see specifically:

Section 4.4 LACK OF DILIGENCE
Section 4.5 LACK OF COMPETENCE
Section 6.1 FALSE STATEMENTS, FRAUD, AND MISREPRESENTATION
Section 6.2 ABUSE OF THE LEGAL PROCESS
and a smattering of my personal wishful thinking -
Section 4.3 FAILURE TO AVOID CONFLICTS OF INTEREST (re: selling of photos)

Thank you! :seeya:

Seems to me Baez has all of them. Will his repeated contempt be cause for a new trial?

 

[suepitzl]

Sorry Nums, did not mean to post within your post.

 

[Numbers]

Thus far, JB might have acted with questionable diligence and competence, but what harm has he caused to KC? (Note that lack of "strategy" is not an ethical violation.) At most, under these standards, he should be admonished.

Re: false statements, etc., I suspect we would also land at the "admonishment" level, as JB would plead "confusion" regarding what his staff told him about the court reporter, what BC told him about the TES documents, etc., and no significant harm has been done.

For abuse of the legal process (I assume you're talking about failure to comply with court orders), it would depend on whether the Bar chose to adopt HHJP's finding that JB's failure to comply was intentional. If so, it looks like suspension might be appropriate (although, again, I can't see much harm done, so perhaps it would be a short suspension?).

I can't remember why the selling of photos was thought to be an ethical violation. Assuming it was a conflict of interest (why, though?), it looks like it would land at the "admonishment" level again.

Thank you for your explanations.

I included the ethics stuff because there was chatter about the exact method used to obtain the funds from ABC for the pictures, etc. Baez claimed he consulted an ethics lawyer and all was cool. It was suspected (not an ounce of proof) that his personal acceptance of the funds and its subsequent dispersal was unethical. As I said, no proof - it just wouldn't surprise me one bit.

 

[nums24]

Oh geez, I just read this and am :banghead:. Baez is confused? What else is new?

IMO HHJP will be irritated for sure. The order was clear, and clearly did NOT say what JB supposedly thinks it said. I have no idea what sanctions might be imposed, though--perhaps monetary sanctions, because HHJP has been working hard not to punish JB in a way that will punish KC and thereby provide an appeal issue for her.

The Florida Bar appears to be very tolerant. :waitasec: But keep in mind that they have to find an ethical violation in order to take action--a lawyer's perpetual "confusion" is probably not sufficient.

AZ, I thought Mr. Ashton was requesting these sanctions, FRCP 3.220 (n), starting on page 106, am I mistaken or misunderstanding? Thank you! http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/BDFE1551AD291A3F85256B29004BF892/$FILE/Criminal.pdf?OpenElement

 

[AZlawyer]

AZ, I thought Mr. Ashton was requesting these sanctions, FRCP 3.220 (n), starting on page 106, am I mistaken or misunderstanding? Thank you! http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/BDFE1551AD291A3F85256B29004BF892/$FILE/Criminal.pdf?OpenElement

I haven't gone back to check his motion, but that rule provides for every type of sanctions under the sun, so unfortunately knowing that he is asking for sanctions under that rule doesn't help predict what kind of sanctions might be awarded.

 

[ThinkTank]

Originally Posted by nums24
AZ, I thought Mr. Ashton was requesting these sanctions, FRCP 3.220 (n), starting on page 106, am I mistaken or misunderstanding? Thank you! http://www.floridabar.org/TFB/TFBRes...df?OpenElement

I haven't gone back to check his motion, but that rule provides for every type of sanctions under the sun, so unfortunately knowing that he is asking for sanctions under that rule doesn't help predict what kind of sanctions might be awarded.

On this same topic, I have a question - is the Defense relying on the grounds that they have not actually failed to comply with "an applicable discovery rule"? They are obviously failing to comply with what the Judge Ordered ... but not exactly failing to comply with any specific Discovery Rule.

Is there no specific Discovery Rule which says the Defense must provide in writing their objections which would fall under Frye issues?

And was there no specific Discovery Rule which says the Defense must provide detailed information about the Defense Experts.

Was the Judge in the right to issue Sanctions against Baez for failing to comply with an Order from the Judge ... while not failing to comply with a specific "Discovery Rule"?

 

[AZlawyer]

AZ, I thought Mr. Ashton was requesting these sanctions, FRCP 3.220 (n), starting on page 106, am I mistaken or misunderstanding? Thank you! http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/BDFE1551AD291A3F85256B29004BF892/$FILE/Criminal.pdf?OpenElement

Originally Posted by nums24
AZ, I thought Mr. Ashton was requesting these sanctions, FRCP 3.220 (n), starting on page 106, am I mistaken or misunderstanding? Thank you! http://www.floridabar.org/TFB/TFBRes...df?OpenElement



On this same topic, I have a question - is the Defense relying on the grounds that they have not actually failed to comply with "an applicable discovery rule"? They are obviously failing to comply with what the Judge Ordered ... but not exactly failing to comply with any specific Discovery Rule.

Is there no specific Discovery Rule which says the Defense must provide in writing their objections which would fall under Frye issues?

And was there no specific Discovery Rule which says the Defense must provide detailed information about the Defense Experts.

Was the Judge in the right to issue Sanctions against Baez for failing to comply with an Order from the Judge ... while not failing to comply with a specific "Discovery Rule"?

Wait just a second. I just went back and read the State's contempt motion, and there is no mention of FRCP 3.220(n). Why do you guys think that the State is relying on that rule?

 

[belle3]

im sorry if this has been asked before, but can the judge rule on these motions without a hearing? are there certain instances in when this is acceptable or unacceptable? tia.

 

[AZlawyer]

im sorry if this has been asked before, but can the judge rule on these motions without a hearing? are there certain instances in when this is acceptable or unacceptable? tia.

To me, a "hearing" means that witnesses are sworn in and/or exhibits are offered into evidence. So most motions are decided without a hearing. But I think you are thinking of "oral argument," which is when the attorneys argue their positions before the judge. Unless there is something weird in the Florida rules of procedure, the judge probably has the authority to rule on motions without oral argument. However, in the case of the contempt motion, I think he will want to talk to JB directly in order to determine JB's state of mind (if any).

 

[NoNameLeft]

Wait just a second. I just went back and read the State's contempt motion, and there is no mention of FRCP 3.220(n). Why do you guys think that the State is relying on that rule?

Perhaps confusion about the Motions to Strike? The Judge mentioned Rule 3.220 in his Order on the 17th: Order Setting Hearing on States Motion to Strike Def Supplemental Witness List

 

[nums24]

Wait just a second. I just went back and read the State's contempt motion, and there is no mention of FRCP 3.220(n). Why do you guys think that the State is relying on that rule?

I thought because it was violation of the discovery rule and the court's order.

 

[AZlawyer]

I thought because it was violation of the discovery rule and the court's order.

If we're talking about the contempt motion, it does not concern any violation of a discovery rule or discovery order. But the judge certainly has the power to hold JB in contempt for violation of the Frye briefing order, with or without any court rule that directly applies.

 

[Teresa]

This is a little change of topic but I have burning question. I've had it for a bit (I've been lurking) and finally have the courage to ask. Evidence that makes Casey "look" too guilty can be thrown out. The jail video pops to mind. Why is this so? After all, isn't a trial all about a jury looking at all the evidence, good, bad and otherwise, and make their decision? The evidence is what it is and it's the lawyers jobs to show the strength or weakness of this evidence. I kinda remember this occuring during the 911 hearing too. This is part of the evidence and I never could understand how it could be tossed. Cindy's call IS part of the story. How does this get decided? If it makes Casy's situation look very bad, maybe it is. Explain to this newbie who just doesn't understand! I've never followed a case before and I'm pretty green.

 

[rhornsby]

This is a little change of topic but I have burning question. I've had it for a bit (I've been lurking) and finally have the courage to ask. Evidence that makes Casey "look" too guilty can be thrown out. The jail video pops to mind. Why is this so? After all, isn't a trial all about a jury looking at all the evidence, good, bad and otherwise, and make their decision? The evidence is what it is and it's the lawyers jobs to show the strength or weakness of this evidence. I kinda remember this occuring during the 911 hearing too. This is part of the evidence and I never could understand how it could be tossed. Cindy's call IS part of the story. How does this get decided? If it makes Casy's situation look very bad, maybe it is. Explain to this newbie who just doesn't understand! I've never followed a case before and I'm pretty green.

Evidence that is determined by a judge to have been lawfully obtained, to be relevant, and if relevant, to have a probative value that does not outweigh its prejudicial effect is admissible.

The jail video has not yet been found to have been lawfully obtained; there is the issue of whether it constitutes non-verbal admissions that were obtained in violation of the 5th and 6th Amendments.

Then even if it is found to have been lawfully obtained, there is the further question of whether it is fact probative of a guilty conscience. Or if it is as equally susceptible to being probative of an innocent conscience.

When circumstantial evidence has no clear probative value - to a judge - it can be excluded as being to speculative towards proving any particular point.

 

[AZlawyer]

This is a little change of topic but I have burning question. I've had it for a bit (I've been lurking) and finally have the courage to ask. Evidence that makes Casey "look" too guilty can be thrown out. The jail video pops to mind. Why is this so? After all, isn't a trial all about a jury looking at all the evidence, good, bad and otherwise, and make their decision? The evidence is what it is and it's the lawyers jobs to show the strength or weakness of this evidence. I kinda remember this occuring during the 911 hearing too. This is part of the evidence and I never could understand how it could be tossed. Cindy's call IS part of the story. How does this get decided? If it makes Casy's situation look very bad, maybe it is. Explain to this newbie who just doesn't understand! I've never followed a case before and I'm pretty green.

It is not so. Evidence that makes her look too guilty cannot be thrown out for that reason. Hopefully you feel better now lol.

I think what you're thinking of is evidence that is too "prejudicial" when compared to its probative value. What this means is that you look at the "probative value" of the evidence--i.e., how much does it tend to prove anything important (especially GUILT)--and then balance it against the "prejudicial value" of the evidence--i.e., how much does it tend to suggest something bad OTHER THAN GUILT? Evidence that very very strongly tends to suggest guilt will NOT be kept out.

As for the jail video, it is not really probative at all from what I've heard, because Casey's behavior is consistent with a guilty mother who realizes she has been caught but also with an innocent mother who realizes her child's body has been found and goes a little nuts and then a little into denial. In other words, the video (at least from the descriptions I've seen of it) won't really help the jury figure out if she's guilty or innocent. So IMO it is likely to be thrown out for irrelevance, before the judge even gets to the question of prejudice.

ETA: I just saw that Mr. Hornsby answered your question also. His answer mentions an additional problem with the jail video--it might be thrown out because it was sneakily obtained by the jail staff, acting on behalf of the State, in an attempt to get Casey to say (or do) something incriminating without her lawyer present.

 

[Teresa]

Thank you for responding rhornsby and AZlawyer! Your right AZlawyer, I was thinking "prejudicial". Your answer made things clear for me. So, understanding now I can see why the jail video should be thrown out. And, why the 911 call was allowed. I'm learning... =-)

Teresa

 

[wildchild1961]

AZ?????

I don't often have the time to post.. but I avidly read here every night from work and have truly learned to look forward to your postings I deeply appreciate how you can translate legal issues into every day language for those of us who are as legal-speak challenged as I am. lol Now for my questions...

It seems to me.. that while Judge Perry obviously has the authority to impose sanctions, contempt of court.. etc, that he also relies on each opposing team to give him the "ammunition" to address those issues. For the Judge to be knocking down JB's little piles of dog doodoo constantly.. could possibly show a bias. So now that time is an issue before the trial, I can see how the State is now making an issue of things even if they seem minor to all of us after we have seen how much bull they have already had to deal with. Basically (in my head).. the State is now giving Judge Perry... more ammunition to work with.

Am I off base here with my thinking????????? Could you please give your take on this?

And I apologize in advance if my questions aren't clear, lol .. forgive me! I am learning as I read on here

Pat

 

[Fluffy Puppy]

I am curious about Frye hearings: who has the burden of proof? Does the state have to first prove the evidence is reliable or does the defense have to first make their case that it is not? Does one side present in response to the other or do they make their separate cases?

And are the hearings mostly scientific or are they more about legal precedent? I know the judge has to deem the evidence reliable, does that mostly lean on the principals and precedence of Frye (those four tests)?

(I hope this makes sense, lol.)

 

[AZlawyer]

AZ?????

I don't often have the time to post.. but I avidly read here every night from work and have truly learned to look forward to your postings I deeply appreciate how you can translate legal issues into every day language for those of us who are as legal-speak challenged as I am. lol Now for my questions...

It seems to me.. that while Judge Perry obviously has the authority to impose sanctions, contempt of court.. etc, that he also relies on each opposing team to give him the "ammunition" to address those issues. For the Judge to be knocking down JB's little piles of dog doodoo constantly.. could possibly show a bias. So now that time is an issue before the trial, I can see how the State is now making an issue of things even if they seem minor to all of us after we have seen how much bull they have already had to deal with. Basically (in my head).. the State is now giving Judge Perry... more ammunition to work with.

Am I off base here with my thinking????????? Could you please give your take on this?

And I apologize in advance if my questions aren't clear, lol .. forgive me! I am learning as I read on here

Pat

I see what you mean, but the judge does not really need anyone to give him ammunition. When it comes to enforcing his orders, he can act "sua sponte" (on his own), without anyone asking him to do anything.

I am curious about Frye hearings: who has the burden of proof? Does the state have to first prove the evidence is reliable or does the defense have to first make their case that it is not? Does one side present in response to the other or do they make their separate cases?

And are the hearings mostly scientific or are they more about legal precedent? I know the judge has to deem the evidence reliable, does that mostly lean on the principals and precedence of Frye (those four tests)?

(I hope this makes sense, lol.)

The state has the burden of proof. Because the state has the burden of proof, they should get to go first and last, with the defense response in the middle--just like at trial.

The hearings are scientific BUT so many of the scientific issues have already been addressed by previous case law that the case law often takes center stage.

There is probably Florida Supreme Court case law that interprets Frye. HHJP's Frye determinations will probably closely track the language in whatever is the most recent and most comprehensive Florida Supreme Court opinion on the subject.

 

[AZlawyer]

Hey, I have a question. Is that OK, for me to ask a question on this thread? Does anyone have a list of the defense's Frye motions? I was waiting for JB to file the list of specific issues, but it looks like we aren't going to be seeing it until HHJP clears up JB's "confusion." :gavel: