Legal Questions for Our VERIFIED Lawyers #1

butterfly1978 said:

Okay I have been thinking about this. If it came out that RK overheard a private conversation with JB, that would mean that she admitted to guilt to JB and he did not report which is also a no-no. Which would also give credability to DC when he had said JB told him not to call LE if he found Caylee but to call him.

WOW what a mess that would be. I hope its not true.

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BBM

Question for one of the attorneys:

Is it true that if KC were to have admitted to her attorney that she killed Caylee and told him where to find the body, the attorney could then NOT reveal this information?

I always heard the attorney is bound by A/C privilege if a client confesses to him (unless the client is a threat to herself or someone else... or something like that). And if the attorney divulges that privileged information, isn't that grounds for disbarment?

Could one of the attorneys here please clarify this?

TIA!

I would be interested to see whether Themis and rhornsby agree, but IMO:

1. If KC told JB where the body was, NO he could not tell anyone else other than members of the defense team. NO he could not report the information to the police. YES he could send a member of the defense team to go look at the body and not tell LE if he found it (but I don't think DC was a member of the defense team at the time.) NO he could not have the body moved or alter the evidence in any way.

2. I don't think JB ever said anything about meetings or statements made in the hallway at the jail. I think every meeting JB had with KC was in a room designated for such meetings. If a jail employee obtained information about the location of the body by eavesdropping somehow on a conversation between JB and KC, and that information was transmitted to Kronk, I think it is very likely that the body and all related evidence would be excluded at trial. BUT it's important to keep in mind that the only source of this information AFAIK is Leonard Padilla, who has been notoriously unreliable in this case.

Hmm for arguments sake lets say LP is right about the daisy chain to Rk. However lets also assume DC was the one that was sent to search but was not under written contract for the defense at the time (only under contract with the A's). Could the SA argue the evidence is still admissible because it would have been found anyway do to DC's testimony?

I know that's a lot of "if's" and speculation but even if there is a daisy chain linked to RK aren't there still circumstances where the body and evidence from the scene can still come into play?

That is my question also....what about the inevitable discovery excetption:

The inevitable discovery exception to the exclusionary rule allows into evidence illegally seized items that would have been discovered lawfully anyway. This exception allows evidence to be admitted, even though it was seized in violation of the Constitution.

In order to successfully assert the inevitable discovery exception, some courts require that the prosecution demonstrate that the police were in the process of actively pursuing a lawful investigation that would have led inevitably to the discovery of the evidence at the time that the evidence was illegally obtained. Some courts not only do not require active pursuit of an alternative legal means of discovery at the moment of the illegal search, but they do not even require that it be law enforcement officials who are hypothesized to be the ones who inevitably would have discovered the evidence.

Couldn't the prosecution use this exception....to the fruit of the poisonous tree claim, if one were made?

marspiter said:

Hmm for arguments sake lets say LP is right about the daisy chain to Rk. However lets also assume DC was the one that was sent to search but was not under written contract for the defense at the time (only under contract with the A's). Could the SA argue the evidence is still admissible because it would have been found anyway do to DC's testimony?

I know that's a lot of "if's" and speculation but even if there is a daisy chain linked to RK aren't there still circumstances where the body and evidence from the scene can still come into play?

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The World According said:

That is my question also....what about the inevitable discovery excetption:

The inevitable discovery exception to the exclusionary rule allows into evidence illegally seized items that would have been discovered lawfully anyway. This exception allows evidence to be admitted, even though it was seized in violation of the Constitution.

In order to successfully assert the inevitable discovery exception, some courts require that the prosecution demonstrate that the police were in the process of actively pursuing a lawful investigation that would have led inevitably to the discovery of the evidence at the time that the evidence was illegally obtained. Some courts not only do not require active pursuit of an alternative legal means of discovery at the moment of the illegal search, but they do not even require that it be law enforcement officials who are hypothesized to be the ones who inevitably would have discovered the evidence.

Couldn't the prosecution use this exception....to the fruit of the poisonous tree claim, if one were made?

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Assuming for sake of argument that RK had illegally-obtained info that led to the discovery of the body--and DC did not--then it appears that the illegally-obtained info WAS necessary to find the body, because DC didn't find it.

So then, taking this loose speculation a step further (why not?): if some version of the daisy-chain theory was proven factual, and if the body was deemed inadmissible, would it be allowable to empanel a juror that knew of its discovery? (Specifically, that it was found, not necessarily in what manner.) With all the media attention this case has received, it seems like an impossibility to fill an entire jury box with people who haven't heard that Caylee's remains were found. (I shudder to think of the type of jurors they'd dig up even if they were able to find enough.) How would this case proceed in such an instance?



PS- If this is too far O/T or just too ridiculously theoretical, please ignore.



ETA: Forgot about the non-English speaking population- maybe this case hasn't been covered as heavily in the other various media? Lol as I'm picturing an all-Sikh jury or something of the sort. Couldn't see it benefiting KC really; I'm sure JB's made certain this story got plenty of press in the Hispanic community. If all these hypotheticals came to pass anyway.

So I guess I answered my own post... now how do I delete this?

Would letters being carried by JB from the jail to the A's or DC from KC be protected under A/C privilege, even if said letters had bypassed jail security illegally? KWIM? It has been inferred in the jail videos that JB was taking letters back and forth between the A family and KC even though any correspondence was supposed to be checked by jail officials. IF KC had drawn a map of where she placed Caylee and had it delivered to the A's or DC via JB and his briefcase, and IF DC had now turned said map over to LE, would this be covered as work product or protected by A/C? Thanks!

You guys are making me nervous. Now I won't rest easy until I find out what the secret meeting was supposed to be about.

chefmom said:

Would letters being carried by JB from the jail to the A's or DC from KC be protected under A/C privilege, even if said letters had bypassed jail security illegally? KWIM? It has been inferred in the jail videos that JB was taking letters back and forth between the A family and KC even though any correspondence was supposed to be checked by jail officials. IF KC had drawn a map of where she placed Caylee and had it delivered to the A's or DC via JB and his briefcase, and IF DC had now turned said map over to LE, would this be covered as work product or protected by A/C? Thanks!

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There would be no privilege for communications delivered to third parties through JB.

Maybe JB reviewed letters from KC to the A's and thought they were "safe" but in fact KC had used some secret spy code in her letter to Lee and he finally remembered where he put his secret decoder ring from when they were kids and figured it out and slipped a note in with the teddy bear that got mailed to the psychic and......:waitasec: :waitasec: :waitasec:

IF the daisy chain was true and the evidence, including the finding of the body, was thrown out, would there be an explanation to anyone as to why, or would absolutely none of it be presented in the first place. I'm confused as to how this would work without some information about how it transpired being released. Sounds like a nightmare under the sunshine laws to me.

But...and this is a BIG BUT...if JB knew that Casey killed Caylee (and I do highly doubt that she said boo!)...and then pursued the "live" angle...with detectives scouring the country following up leads...what's the implication for that? I suppose it would all boil down to when he knew this...but with the family handing over their own leads (if in fact they knew all along that Caylee was dead)...would there be repercussions...meaning can LE come after them for money spent on pursuing these "fake" leads?
Sorry...I think I'm confusing myself!

I believe that I heard on NG that IF Casey told Jose that Caylee was dead and where to find the body than Jose is not required to tell that information however he is required to step down, that he can not argue innocent because that would be perjury.

Jolynna said:

I think there is something to what LP is saying. RK and the Daisy chain rumor were the first things that popped into my head when I heard that the prosecutors wanted to meet with the judge privately. I posted that opinion too...



AZlawyer or RHornsby or themis,

If true, would that mean that the evidence found on Suburban, including Caylee's body and the duct tape, could be thrown out?

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The SA is not going to be meeting with the Judge privately on any matter that involves the merits of the case. The issue described would be a merits issue, not merely a procedural or administrative scheduling issue. A merits issue would be noticed to the other side, briefed, argued and an opinion and decision rendered.

Horace Finklestein said:

My question is: What happens if Casey's defense team dissolves, resigns, leaves for whatever reason - Will everything sort of 'start over'? Would she get a public defender? It seems like there would be preventative measures to prevent a person from indefinitely postponing trials because of representation issues...

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The Judge has a great deal of discretion in whether or not to allow an attorney to withdraw from the case. If it is absolutely required, then justice will wait while the new attorney gets up to speed. Having the effective assistance of counsel is part of due process.

RR0004 said:

But...and this is a BIG BUT...if JB knew that Casey killed Caylee (and I do highly doubt that she said boo!)...and then pursued the "live" angle...with detectives scouring the country following up leads...what's the implication for that? I suppose it would all boil down to when he knew this...but with the family handing over their own leads (if in fact they knew all along that Caylee was dead)...would there be repercussions...meaning can LE come after them for money spent on pursuing these "fake" leads?
Sorry...I think I'm confusing myself!

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Could in theory, but it doesn't happen.

butterfly1978 said:

I believe that I heard on NG that IF Casey told Jose that Caylee was dead and where to find the body than Jose is not required to tell that information however he is required to step down, that he can not argue innocent because that would be perjury.

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Well, being defense counsel of record is not an elected position so there is no "stepping down." Whether or not an attorney is allowed to withdraw is a matter of client choice, tempered by a whole lot of judicial discretion because the Presiding Judge has an obligation to keep the case moving along, keep order in his courtroom and prevent it from becoming a circus.

Paintr said:

respectfully snipped

And a huge ego?

OT
Nice to 'see' ya again! Any ham sandwitches to spare? LOL!

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Yes. A huge ego. LOL! Nice to see you too, Paintr.
If I see a spare one, I'll be sure to get an indictment.

A little more on child abuse.

This is from the Florida Statutes.


827.03 Abuse, aggravated abuse, and neglect of a child; penalties.--
(1) "Child abuse" means:
(a) Intentional infliction of physical or mental injury upon a child;
(b) An intentional act that could reasonably be expected to result in physical or mental injury to a child; or
(c) Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child.

A person who knowingly or willfully abuses a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) "Aggravated child abuse" occurs when a person:
(a) Commits aggravated battery on a child;
(b) Willfully tortures, maliciously punishes, or willfully and unlawfully cages a child; or
(c) Knowingly or willfully abuses a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child.

A person who commits aggravated child abuse commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3)(a) "Neglect of a child" means:
1. A caregiver's failure or omission to provide a child with the care, supervision, and services necessary to maintain the child's physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the child; or
2. A caregiver's failure to make a reasonable effort to protect a child from abuse, neglect, or exploitation by another person.

Neglect of a child may be based on repeated conduct or on a single incident or omission that results in, or could reasonably be expected to result in, serious physical or mental injury, or a substantial risk of death, to a child.
(b) A person who willfully or by culpable negligence neglects a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(c) A person who willfully or by culpable negligence neglects a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) For purposes of this section, "maliciously" means wrongfully, intentionally, and without legal justification or excuse. Maliciousness may be established by circumstances from which one could conclude that a reasonable parent would not have engaged in the damaging acts toward the child for any valid reason and that the primary purpose of the acts was to cause the victim unjustifiable pain or injury. History.--s. 1, ch. 4721, 1899; s. 1, ch. 4971, 1901; GS 3236, 3238; RGS 5069, 5071; s. 1, ch. 9331, 1923; CGL 7171, 7173; s. 1, ch. 65-113; s. 1, ch. 70-8; s. 940, ch. 71-136; s. 49, ch. 74-383; s. 30, ch. 75-298; s. 1, ch. 84-238; s. 8, ch. 96-322; s. 16, ch. 99-168; s. 1, ch. 2003-130.

butterfly1978 said:

Okay I have been thinking about this. If it came out that RK overheard a private conversation with JB, that would mean that she admitted to guilt to JB and he did not report which is also a no-no. Which would also give credability to DC when he had said JB told him not to call LE if he found Caylee but to call him.

WOW what a mess that would be. I hope its not true.

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JB would not have to report to anyone if KC admitted guilt to him. However, if he learned the location of the body and IF the State of Florida has a penal statute that requires anyone who knows the location of an unburied human body to report it for public health reasons, then the location would have to be reported but JB would not have to say anything to anyone about how he knew that.

The World According said:

That is my question also....what about the inevitable discovery excetption:

The inevitable discovery exception to the exclusionary rule allows into evidence illegally seized items that would have been discovered lawfully anyway. This exception allows evidence to be admitted, even though it was seized in violation of the Constitution.

In order to successfully assert the inevitable discovery exception, some courts require that the prosecution demonstrate that the police were in the process of actively pursuing a lawful investigation that would have led inevitably to the discovery of the evidence at the time that the evidence was illegally obtained. Some courts not only do not require active pursuit of an alternative legal means of discovery at the moment of the illegal search, but they do not even require that it be law enforcement officials who are hypothesized to be the ones who inevitably would have discovered the evidence.

Couldn't the prosecution use this exception....to the fruit of the poisonous tree claim, if one were made?

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You are correct that inevitable discovery can prevent evidentiary exclusion due to a fruit of the poisonous tree exclusion motion. However, we haven't even cleared the unlawful discovery yet. There are circumstances when an attorney client communication can be overheard and it is a waiver of the privilege too. IF THIS INFORMATION came from KC to JB, then were they talking so loudly or in a location where they knew they would be overheard and continued the discussion anyway? The privilege could have been waived by conduct.