Legal Questions for Our VERIFIED Lawyers #2

Capri · Mar 21, 2011

Whether someone knows right from wrong is important if you are trying to EXCUSE someone's behavior based on insanity. There has been no attempt in this case to argue insanity, or that Casey was so mentally ill she did not know right from wrong.

If you are merely trying to EXPLAIN why someone is acting strangely--e.g., dancing and partying after one's baby has died through some terrible no-fault accident--it does not matter whether they know right from wrong. That's not the issue. The issue is whether they are "weird" in some way that would explain their behavior for the jury.

For the penalty phase (which is the same as the sentencing phase), it also doesn't matter if the person knew right from wrong, because it is too late at the penalty phase to be discussing insanity--that's an issue for the guilt phase. At the penalty phase, you are also no longer trying to EXPLAIN the strange behavior in order to get the jury to buy a theory of non-guilt (e.g., an accident theory). The jury has already found the person guilty at that point, so obviously they did not buy your theory. Instead, at the penalty phase, you are trying to get the jury to feel sorry for the person and not give them the death penalty. So you can bring up a true mental illness, a behavioral disorder, abuse that did NOT lead to any behavioral disorder, etc.

So the only time it matters whether the person knew right from wrong is for an insanity defense. For any other purpose, all sorts of mental deficiencies and disorders might come into play.

Thanks AZ, crystal clear now- thanks for all you do here to help us understand! :blowkiss:

karengo · Mar 21, 2011

I realize with the sunshine laws everything is released before trial. But is there anything that we the public wont know that will come out at trial? like maybe something the FBI has?

lauriej · Mar 21, 2011

..at the beginning of closing arguments, cheney said:

http://www.wftv.com/video/27109199/index.html
----march 7/2011---@ 3:00---

cheney-----..by way of, the parameters of all this, in the event that you, uh, deny any, or all, I guess, uh, I hope not, of our motions, that doesn't mean the end of it."

"The, the, the content of the statements, and/or recordings, and/or video recordings would still be subject to additional, uh, objections such as relevancy or 403 evaluations and so forth and we will have to somehow deal with that later."

..even though their 'Motions to suppress..' were denied----does this mean they'll still be bringing them up throughout trial anyway?

AZlawyer · Mar 21, 2011

sumbunny said:
03/21/2011 Motion to Vacate
and in the Alternative Motion for Clarification

What does this mean?

I have no idea.

You can't tell much from docket entries. All you can tell is that one side or the other wants to vacate something (maybe a hearing on a particular issue?) or in the alternative to clarify something (maybe that the hearing doesn't include that issue?).

karengo said:
I realize with the sunshine laws everything is released before trial. But is there anything that we the public wont know that will come out at trial? like maybe something the FBI has?

If the FBI has something that the SA wants to use at trial, the SA will have to disclose it first, in plenty of time for the defense to prepare to respond to it.

lauriej said:
..at the beginning of closing arguments, cheney said:

http://www.wftv.com/video/27109199/index.html
----march 7/2011---@ 3:00---

Quote:
cheney-----..by way of, the parameters of all this, in the event that you, uh, deny any, or all, I guess, uh, I hope not, of our motions, that doesn't mean the end of it."

Quote:

"The, the, the content of the statements, and/or recordings, and/or video recordings would still be subject to additional, uh, objections such as relevancy or 403 evaluations and so forth and we will have to somehow deal with that later."

..even though their 'Motions to suppress..' were denied----does this mean they'll still be bringing them up throughout trial anyway?

It means that he might still have objections to various statements, videos, etc., in addition to those raised in the motions. For example, the statements made by Casey at jail visits will not be excluded based on the theory that her family members were acting as "agents of the state"...but at trial there might be additional objections based on other theories, including relevance or unfair prejudice (Rule 403).

faefrost · Mar 21, 2011

I just finished reading through Dr. Logan's deposition. (Fascinating read. I think he will be very credible on the stand. Especially the part where he confirms that there was probably a buttload of chloroform, but I digress)

Given HHJP's order stating that anything not testified about in deposition cannot be testified to at trial. What does that mean in situations where the subject was raised, but the expert did not at that time have a complete answer. As an example the line by line comparisons of chemicals between Dr Vass's work and the greek dude. Since the subject was raised in deposition, and the expert clearly stated that "I don't know offhand, but could sit down and look it up", can he then go look at up and testify to his further findings on it at trial?

Itsy · Mar 21, 2011

AZlawyer said:
It means that he might still have objections to various statements, videos, etc., in addition to those raised in the motions. For example, the statements made by Casey at jail visits will not be excluded based on the theory that her family members were acting as "agents of the state"...but at trial there might be additional objections based on other theories, including relevance or unfair prejudice (Rule 403).

RS & BBM -

But if they object about a lot of these statements (most would be by unfair prejudice, I'd think), won't that just make Casey look bad/worse?

If I were on the jury and this happened as much as I think it will, I'd really be wondering hard as to what I wasn't being allowed to hear about, KWIM?

ETA: RE: Discovery turned over in time for other side to research...If the SAO is investigating up until trial as LDB said in a hearing lately (isn't that what she said? lol)...can the defense object if the SAO finds something the day before the trial starts?

AZlawyer · Mar 22, 2011

faefrost said:
I just finished reading through Dr. Logan's deposition. (Fascinating read. I think he will be very credible on the stand. Especially the part where he confirms that there was probably a buttload of chloroform, but I digress)

Given HHJP's order stating that anything not testified about in deposition cannot be testified to at trial. What does that mean in situations where the subject was raised, but the expert did not at that time have a complete answer. As an example the line by line comparisons of chemicals between Dr Vass's work and the greek dude. Since the subject was raised in deposition, and the expert clearly stated that "I don't know offhand, but could sit down and look it up", can he then go look at up and testify to his further findings on it at trial?

I doubt it. HHJP's order seemed pretty clear to me. Which means JB was probably "confused" by it, and CM "even more so".... :innocent:

Itsy said:
RS & BBM -

But if they object about a lot of these statements (most would be by unfair prejudice, I'd think), won't that just make Casey look bad/worse?

If I were on the jury and this happened as much as I think it will, I'd really be wondering hard as to what I wasn't being allowed to hear about, KWIM?

ETA: RE: Discovery turned over in time for other side to research...If the SAO is investigating up until trial as LDB said in a hearing lately (isn't that what she said? lol)...can the defense object if the SAO finds something the day before the trial starts?

The jury definitely wonders what's being hidden from them, but there will be so many objections from both sides that over the course of a 2-month trial it will seem like a draw.

If the SAO finds something the day before the trial starts, either it will not be used at trial or the trial will be delayed. Or I suppose both--i.e., if it is something that the SAO does not plan to use but the defense reasonably needs to investigate prior to trial in case it might be helpful to the defense.

Dells · Mar 22, 2011

Dells said:
Regarding a plea deal, of course the state would want to get as much time as possible and the defense team as little time as possible, but in your professional opinion, what do you think would be a fair plea deal to both sides? I know this is going on what we know and there are probably things we don't know that both the defense and the prosecution probably know, but still, what do you think would be a fair plea deal? Also, if a plea deal is reached, how likely would it be that Casey would have to get up in court and admit what she did?

Quoting myself to bump my question. I think it got lost in the shuffle. Thanks!:seeya:

Just Jayla · Mar 22, 2011

rhornsby said:
I think you need to examine it from the opposite view point, meaning can the State prove beyond a reasonable doubt that Casey killed Caylee intentionally.

If the State cannot prove that - beyond a reasonable doubt - then the lesser verdict would be either Second Degree Murder, Aggravated Manslaughter of a Child, or Not Guilty.

I think that if a jury was having a difficult time finding that the State proved First Degree Murder beyond a reasonable doubt they would compromise with a verdict of Aggravated Manslaughter of a Child.

Thank you, you have answered my question without answering my rambling

I have asked more of you in the First Degree or Lesser thread, so as not to clog up this thread-If you get a chance to get over to that thread and answer more questions, that would be swell. Once you answer, we will probably circle like sharks on the attack (not personal attack, of course), so I think that might be a better thread if you are interested-Thanks!

I will ask here: If DominicC were privy to conversations between KC and JB as to where Caylee's body was, can DC's atty/the defense solidly argue that this information was privileged, even if DC's "contract" with JB expired? How/Could you eliminate any testimony by DC as to this scenario? What case law would you cite?

Capri · Mar 22, 2011

Is the only way to find out how much each defense expert is getting paid, is to ask them under oath?

Paintr · Mar 22, 2011

Dr H Lee had a few problems with his testimony in another trial. It seems as if Dr Logan had problems with his employment in 2008.Is the SA allowed to bring up these previous troubles, when questioning these defense experts during trial?

Thank you kindly for all you do to provide education to us all. You are a great teacher, AZ! :clap::clap:

salvarenga · Mar 22, 2011

Ok here's the the newest motion:

Motion to Vacate & In The Alternative Motion For Clarification
http://www.wesh.com/pdf/27276629/detail.html

This was written by CM but if I remember correctly it was orginally argued by DS. So my question is IF DS had a problem with HHJBP's order why did she not file this...why did CM? Could it be perhaps that she doesn't think CM has a leg to stand on and doesn't want to bring her reputation into it?

faefrost · Mar 22, 2011

salvarenga said:
Ok here's the the newest motion:

Motion to Vacate & In The Alternative Motion For Clarification
http://www.wesh.com/pdf/27276629/detail.html

This was written by CM but if I remember correctly it was orginally argued by DS. So my question is IF DS had a problem with HHJBP's order why did she not file this...why did CM? Could it be perhaps that she doesn't think CM has a leg to stand on and doesn't want to bring her reputation into it?

I remember back when the defense forced HHJS out and got HHJP instead there was a lot of talk of "this would allow them to get a second bite of the apple" on some motions that had gone against them. And it seemed at the time that such a "second bite" was unusual and was only possible because they had forced a switch in judges.

So how is this motion not an attempt at a similar second bite? and is that normally allowed or if allowed does it ever work. I mean it appears that CM is completely re-arguing something that another of the lawyers had already argued before the court, using different referenced case law? Can they do that? And if they can what is the limit to it to prevent a continuous stream of motions to vacate from the defense?

AZlawyer · Mar 22, 2011

Dells said:
Regarding a plea deal, of course the state would want to get as much time as possible and the defense team as little time as possible, but in your professional opinion, what do you think would be a fair plea deal to both sides? I know this is going on what we know and there are probably things we don't know that both the defense and the prosecution probably know, but still, what do you think would be a fair plea deal? Also, if a plea deal is reached, how likely would it be that Casey would have to get up in court and admit what she did?

Dells said:
Quoting myself to bump my question. I think it got lost in the shuffle. Thanks!:seeya:

Sorry, I thought your question was for RH. He would probably have a much better idea of how these things normally turn out in Florida. My gut instinct is that a 15-year plea would make sense.

She would not have to get up in court and admit the details of what happened, just that she did, in fact, commit whatever offense she pleas to.

Capri said:
Is the only way to find out how much each defense expert is getting paid, is to ask them under oath?

You can also ask them to bring their retention agreement and evidence of payment to the deposition, or to produce it separately if there will not be a deposition.

Paintr said:
Dr H Lee had a few problems with his testimony in another trial. It seems as if Dr Logan had problems with his employment in 2008.Is the SA allowed to bring up these previous troubles, when questioning these defense experts during trial?

Thank you kindly for all you do to provide education to us all. You are a great teacher, AZ! :clap::clap:

Only if the "problems" are relevant. In the case of Dr. Lee, for example, IF there was any reason to believe he had tampered with evidence in this case, his "problems" might be relevant. But there isn't. In the case of Dr. Logan, I haven't read the thread, but you'd have to ask yourself whether or not his "problems" cast doubt on his opinion.

salvarenga said:
Ok here's the the newest motion:

Motion to Vacate & In The Alternative Motion For Clarification
http://www.wesh.com/pdf/27276629/detail.html

This was written by CM but if I remember correctly it was orginally argued by DS. So my question is IF DS had a problem with HHJBP's order why did she not file this...why did CM? Could it be perhaps that she doesn't think CM has a leg to stand on and doesn't want to bring her reputation into it?

Everything that is filed is filed by the entire team and affects the reputation of the entire team. The signature might tell you which office prepared the document, but nothing else. Personally, I have a hard time believing that CM wrote this particular document, which is titled "Motion to Vacate and in the Alternative Motion for Clarification" but is obviously a Motion for Reconsideration. :waitasec: He seems to at least have a basic grasp of procedure, unlike....well...you know who.

I am quite certain that DS had a problem with the order, because she lost.

Also, this was not one of the "throwaway," not-a-leg-to-stand-on motions. It was a decent motion in substance, although it was written so poorly that it was hard to tell. :loser:

AZlawyer · Mar 22, 2011

faefrost said:
I remember back when the defense forced HHJS out and got HHJP instead there was a lot of talk of "this would allow them to get a second bite of the apple" on some motions that had gone against them. And it seemed at the time that such a "second bite" was unusual and was only possible because they had forced a switch in judges.

So how is this motion not an attempt at a similar second bite? and is that normally allowed or if allowed does it ever work. I mean it appears that CM is completely re-arguing something that another of the lawyers had already argued before the court, using different referenced case law? Can they do that? And if they can what is the limit to it to prevent a continuous stream of motions to vacate from the defense?

The motion, as I mentioned above, is incorrectly titled. It is, in fact, a motion for reconsideration, which is absolutely an attempt at a second bite at the apple and is absolutely allowed, but very rarely works.

I don't know how it works in FLA, but in AZ the other side doesn't have to respond to a motion for reconsideration unless the judge orders a response, and the judge can just ignore the motion if he/she prefers, until time runs out and it is "deemed denied." So there is not much point in filing one unless you have something good to say.

Of course, if you titled it a "motion to vacate" instead, the other side would feel obligated to respond...hmmm, maybe the rule is the same in FLA as in AZ.

Katprint · Mar 22, 2011

AZlawyer said:
The motion, as I mentioned above, is incorrectly titled. It is, in fact, a motion for reconsideration, which is absolutely an attempt at a second bite at the apple and is absolutely allowed, but very rarely works.

<respectfully snipped>

A motion for reconsideration is not supposed to be merely a request for the judge to "reconsider" his prior decision and decide in favor of the previously-losing side. It is supposed to present something new which should be taken into consideration but which was not previously considered.

Sometimes there will be a brand new opinion from an appellate court which basically changes the law from what it was when the motion was initially ruled on, or some brand new fact comes to light that was previously unknown, or a party previously litigating in pro per (i.e. by themselves with no attorney) who was on the losing side of the motion will hire an attorney for a re-do, or there is some other reason supporting a fresh "reconsideration" of the issue. The losing party believing that the judge just decided wrongly is not enough to support a motion for reconsideration.

There are many situations where the judge could decide either way. AZLawyer and I both felt the statements at Universal Studios after the door was shut were probably "custodial" and required Miranda warnings at that point but Judge Perry disagreed for the reasons stated in his opinion. I believe Judge Strickland would have decided differently. This is one of the reasons why the defense's recusal of Judge Strickland was a bad move because they ended up with a less favorable judge.

Katprint
Always only my own opinions

faefrost · Mar 22, 2011

Katprint said:
<respectfully snipped>

A motion for reconsideration is not supposed to be merely a request for the judge to "reconsider" his prior decision and decide in favor of the previously-losing side. It is supposed to present something new which should be taken into consideration but which was not previously considered.

Sometimes there will be a brand new opinion from an appellate court which basically changes the law from what it was when the motion was initially ruled on, or some brand new fact comes to light that was previously unknown, or a party previously litigating in pro per (i.e. by themselves with no attorney) who was on the losing side of the motion will hire an attorney for a re-do, or there is some other reason supporting a fresh "reconsideration" of the issue. The losing party believing that the judge just decided wrongly is not enough to support a motion for reconsideration.

There are many situations where the judge could decide either way. AZLawyer and I both felt the statements at Universal Studios after the door was shut were probably "custodial" and required Miranda warnings at that point but Judge Perry disagreed for the reasons stated in his opinion. I believe Judge Strickland would have decided differently. This is one of the reasons why the defense's recusal of Judge Strickland was a bad move because they ended up with a less favorable judge.

Katprint
Always only my own opinions

By "something new" does it typically have to be something such as a new ruling that may impact their case, or new evidence or witness testimony? or can it be a argument or direction that they did not choose to originally argue with the motion? Does the motion for reconsideration require something more external or can they simply keep submitting different arguments until they get one that sticks?

AZlawyer · Mar 22, 2011

Katprint said:
<respectfully snipped>

A motion for reconsideration is not supposed to be merely a request for the judge to "reconsider" his prior decision and decide in favor of the previously-losing side. It is supposed to present something new which should be taken into consideration but which was not previously considered.

Sometimes there will be a brand new opinion from an appellate court which basically changes the law from what it was when the motion was initially ruled on, or some brand new fact comes to light that was previously unknown, or a party previously litigating in pro per (i.e. by themselves with no attorney) who was on the losing side of the motion will hire an attorney for a re-do, or there is some other reason supporting a fresh "reconsideration" of the issue. The losing party believing that the judge just decided wrongly is not enough to support a motion for reconsideration.

There are many situations where the judge could decide either way. AZLawyer and I both felt the statements at Universal Studios after the door was shut were probably "custodial" and required Miranda warnings at that point but Judge Perry disagreed for the reasons stated in his opinion. I believe Judge Strickland would have decided differently. This is one of the reasons why the defense's recusal of Judge Strickland was a bad move because they ended up with a less favorable judge.

Katprint
Always only my own opinions

faefrost said:
By "something new" does it typically have to be something such as a new ruling that may impact their case, or new evidence or witness testimony? or can it be a argument or direction that they did not choose to originally argue with the motion? Does the motion for reconsideration require something more external or can they simply keep submitting different arguments until they get one that sticks?

It isn't supposed to be just a new argument, but on the other hand I disagree there has to be some new law or new facts. I think a motion for reconsideration is appropriate, for example, if the ruling makes it clear that the judge has just completely missed or misunderstood something that is really not in dispute and has been used as the basis for his ruling. Like if the order says "I was particularly persuaded by the testimony of Mr. X, who said 'Z'"--but in actuality Mr. X said "not Z."

Katprint · Mar 22, 2011

faefrost said:
By "something new" does it typically have to be something such as a new ruling that may impact their case, or new evidence or witness testimony? or can it be a argument or direction that they did not choose to originally argue with the motion? Does the motion for reconsideration require something more external or can they simply keep submitting different arguments until they get one that sticks?

I suppose a motion for reconsideration could be based on a judge's misunderstanding of an important material fact - for example, whether someone was an adult or a minor when the incident occurred as opposed to their current age - and thus it would be proper to point out the correct fact which would negate the basis for the court's prior decision.

However, other than that (which doesn't happen very often) it is supposed to be something new which could not previously have been presented to the court. They are supposed to give it all they've got the first time. A motion often has multiple grounds and arguments supporting why it should be granted, even inconsistent grounds and arguments which assume "arguendo" (solely for the purpose of argument) certain disputed facts without admitting those adverse facts to show why the motion should still be granted even if those facts were true.

I have not seen "I didn't think of this argument before" as a successful basis for a motion for reconsideration. If it was a really, really good argument maybe the judge would consider it "in the interests of justice" but most likely not. If the defense starts filing a lot of motions for reconsideration and/or re-reconsideration which have nothing new, the prosecution can start filing motions to strike motion for reconsideration and motions for sanctions for the defense's frivolous filings.

Katprint
Always only my own opinions

Edited to add: I posted before I saw AZlawyer's post above, which I agree with.

AZlawyer · Mar 22, 2011

Katprint said:
I suppose a motion for reconsideration could be based on a judge's misunderstanding of an important material fact - for example, whether someone was an adult or a minor when the incident occurred as opposed to their current age - and thus it would be proper to point out the correct fact which would negate the basis for the court's prior decision.

However, other than that (which doesn't happen very often) it is supposed to be something new which could not previously have been presented to the court. They are supposed to give it all they've got the first time. A motion often has multiple grounds and arguments supporting why it should be granted, even inconsistent grounds and arguments which assume "arguendo" (solely for the purpose of argument) certain disputed facts without admitting those adverse facts to show why the motion should still be granted even if those facts were true.

I have not seen "I didn't think of this argument before" as a successful basis for a motion for reconsideration. If it was a really, really good argument maybe the judge would consider it "in the interests of justice" but most likely not. If the defense starts filing a lot of motions for reconsideration and/or re-reconsideration which have nothing new, the prosecution can start filing motions to strike motion for reconsideration and motions for sanctions for the defense's frivolous filings.

Katprint
Always only my own opinions

Edited to add: I posted before I saw AZlawyer's post above, which I agree with.

I agree with you too.

I did think of one other time I was successful with a motion for reconsideration--the judge had done his own research and come up with a new and totally wrong reason to grant the other side's motion for summary judgment. I filed a motion for reconsideration pointing out very tactfully the statute the judge had failed to notice

, and he reconsidered and issued a new order addressing the arguments actually made by the other side.

But in this case (the motion filed by CM), I don't think I see anything new....

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