Legal Questions for our Verified Lawyers #4

My DH posed a question. I'll move to the questions thread if necessary

I don't understand why the chemist was allowed to testify today for the defense regarding the chemical makeup of the contents of the Gatorade bottle and the syringe since the state didn't use that in direct testimony. I thought it was the defenses job to rebut the direct testimony of the state?

Also, he had this to point out,


If any juror is believed by the court (the judge or their fellow jurors) to be unable to convict based on their predetermined beliefs like objection to the death penalty, it would be the judges duty to replace that juror with an alternate even after deliberations have begun.


I posted this in regards to the questions about Juror #4

His in bold

GatorMom said:

It is my understanding that she has been asked repeatedly about replacing Baez and has consistently refused. So my question is how can the court FORCE her to accept another attorney if she doesn't want one even if it is a capital case?

Thank you.

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First, I believe your understanding may be incorrect. So if you can point out the times where she has been questioned on her satisfaction with Baez, please do.

Second, the court can't force someone to accept another attorney, but the court can force her to acknowledge that her client is not qualified to handle the case before allowing him to proceed as her attorney.

This is more frequently seen when a person wants to represent themselves. In such a case, the court does a "Faretta Hearing" to insure the defendant is aware of the inherent pitfalls of self representation.

mydailyopinions said:

Mr. Hornsby, can I ask you a hypothetical question?:crazy:

Lets just say that Baez couldn't make it into court on Wed. and asked for you to step in and finish this case. Given his opening statements and what witnesses he has put forward thus far, where would you start? Would you focus on the car? Or would you focus on damage control of the opening statement?

P.S. -Hypothetically you would have to agree to be there on time and ready to proceed.:crazy:

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I would focus on raising reasonable doubt as to the Murder and Agg Child Abuse charge and aim for the Agg Manslaughter charge.

Also, I would not put Casey on.

I hope this hasn't been asked. If Jose does not present any evidence to support his OS do George and Mr. Kronk have any legal recourse? I know attorney's have a certain level of immunity with such things, BUT it seems to me a person should have some sort of recourse when accused of such horrendous crimes.

cluciano63 said:

http://articles.orlandosentinel.com/2009-02-28/news/newtrial28_1_mansfield-physical-evidence-robles

AZ Lawyer, this article does say that Scott Mansfield was granted a new trial back in 2009, but I can't see where it has yet taken place. According to this article, it was based on the video interrogation. Thanks.

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OK, I see now that the sentence was upheld on appeal and in the state post-conviction proceeding, but the federal judge on a habeas petition disagreed that the admission of the video interrogation was "harmless error." I can't find anything after that.

I think, in this case, the "harmless error" analysis makes more sense, because Casey said all the same lies in her other statements as well.

TxLady2 said:

I am confused about the rules of "hearsay." If a witness testifies that a person told them something, why is that called hearsay? I always understood that it was not hearsay as long as you say the person told you personally. If I say this person told me so-and-so, that is not hearsay, right? But if I say that someone else tells me something that they were told by a 3rd party, that is hearsay. Please clarify for me, and thanks. Sorry if the question is confusing, I'm not 100% back to normal yet.

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Both those things are generally hearsay. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in that statement. There are lots of exceptions and exclusions, though.

Oakley said:

Thanks AZ, but I don't think I asked my question clearly enough.

My question is: Must the questions at the deposition be limited to the phone number or can Jose ask about anything he likes? And if so, just how deep can the defense dig into this VT's personal life during the deposition. Hope that makes sense.

Sorry for the confusion. TIA

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If JB has not yet received anything official from the phone company about the phone number, I suppose he could go off on a wild goose chase about VT's criminal history, etc., "just in case" the phone number was really his in July 2008.

reeseeva said:

Would like the opinion of the Lawyers on here, as to their opinion of Jeff Ashton. He is so brilliant and knowledgeable, and wonder if there are many attorneys working for the State, in other areas of the country, that are of his caliber.

TIA

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I think he is very smart and competent, but sometimes lets his anger get the better of him. Not a perfect lawyer, but who is?

SyraKelly said:

If Casey has a mistrial and she gets new lawyers, the state can not use anything JB put forth against her from the first trail in her 2 trial-right-Thank you sorry if ask and answered-I did not see post

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Nothing JB says is evidence, so the State can't use his statements against Casey in a second trial.

egnarts said:

Not acquittal exactly, but if there is a mistrial declared over the objection of the defense, then there would not be a retrial. Is that what you mean? But I don't think there's any likelihood of that happening.

All the charges are being tried now. There are no "remaining" charges. So I'm not sure what you're asking.

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Thanks for the quick reply! Most appreciated!
I posted with bleary eyes and mind last evening. Let me try to clarify my questions.

The acquittal reply: I think I understand this is a moot point since it would be highly unlikey the court (or SA) would request the mistrial and the defense would object. I believe HHJP has previously either denied DT requests for mistrial and/or informed DT all mistrial requests would be decided upon @ the end of trial portion.

As to the charges being tried now...
Allow me to give you an example of State of IL vs Gov Blago. 1st trial, 24(?) charges. Convicted of 1 charge. Jury hung on remaining 23 counts. Sentencing not being addressed until after re-trial.
Blago recently re-tried for balance of 23 counts. Jury currently deliberating last I knew.

FL vs ICA: Charged on several counts. (Sorry I do not wish to quote all counts & 'get it wrong'!)
My question: Could ICA be convicted on 4 counts of lying to LE, but jury be hung on all other counts?
If so, would the court continue thru sentencing on only those 4 guilty counts? And, then she would be re-tried on balance of charges?
Or, must she be guilty/not guilty/hung jury on ALL counts after jury deliberations?
:tyou:

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OK, I think I see what you mean. Yes, sentencing on even the 4 counts of lying might wait until after there is a final verdict on all counts.

sheri21 said:

I have a question about attorney client privilege. If Jose Baez, either loses his license or decides to no longer practice, would he still be held to hold his tongue. Meaning, what would hold him to it? His license would be gone. Could he go to jail? I keep thinking he knows he isn't going to be a lawyer anymore and is going to write one heck of a tell-all for a whole lot of dough. Is that possible. Hope this makes sense.

I just don't believe anyone can be as clueless without some kind of motive. He did graduate law school, for crying out loud. He can't be a total dunce cap. Can he?

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Yes, he would still be bound by the privilege, but I'm not sure what could be done if he violated it. Never thought about that before. :waitasec:

I know a LOT of total dunce caps practicing law. A LOT. And JB is not the worst of them. :banghead: Some law schools are better than others, and some allow students to choose to "skate through" if they don't feel like getting a challenging education.

tehcloser said:

IF, JB decides to pull something totally outrageous for the purpose of causing a mistrial, would it work?

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I'm sure SOMETHING would work. He could run into the courtroom naked and set fire to the podium--that would probably work.

Coldpizza said:

My DH posed a question. I'll move to the questions thread if necessary

I don't understand why the chemist was allowed to testify today for the defense regarding the chemical makeup of the contents of the Gatorade bottle and the syringe since the state didn't use that in direct testimony. I thought it was the defenses job to rebut the direct testimony of the state?

Also, he had this to point out,


If any juror is believed by the court (the judge or their fellow jurors) to be unable to convict based on their predetermined beliefs like objection to the death penalty, it would be the judges duty to replace that juror with an alternate even after deliberations have begun.


I posted this in regards to the questions about Juror #4

His in bold

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The defense is not limited to rebutting the state's evidence.

As for Juror #4, something new would have to come up that HHJP didn't know during jury selection. If deliberations started and she said, "I absolutely will not participate" and stuck her fingers in her ears, then I suppose the foreperson could notify HHJP and he would realize that she meant something more than he thought she meant during the selection process. But I think he would have to declare a mistrial--he can't replace a juror with an alternate after deliberations are underway.

Beccaboo said:

I hope this hasn't been asked. If Jose does not present any evidence to support his OS do George and Mr. Kronk have any legal recourse? I know attorney's have a certain level of immunity with such things, BUT it seems to me a person should have some sort of recourse when accused of such horrendous crimes.

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Nope.

AZ Lawyer, if it is true that a juror made a "gun" sign to JB today...what would that mean? Thanks...

rhornsby said:

First, I believe your understanding may be incorrect. So if you can point out the times where she has been questioned on her satisfaction with Baez, please do.

Second, the court can't force someone to accept another attorney, but the court can force her to acknowledge that her client is not qualified to handle the case before allowing him to proceed as her attorney.

This is more frequently seen when a person wants to represent themselves. In such a case, the court does a "Faretta Hearing" to insure the defendant is aware of the inherent pitfalls of self representation.

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OK, I think I see your point now. Not that HHJP should have asked Casey the meaningless, "Are you satisfied with your attorney?" question, but that he should have said to her, "Look, you may be entitled to appointed counsel. If I were to appoint counsel for you, by rule I would be required to make sure that this person had a certain level of experience in death penalty cases. Let me tell you what would be required [blah blah blah]. Now JB here, as you may or may not be aware, has practically no experience at all in anything, so there is a pretty big risk that he wouldn't be able to defend you as well as the person I might appoint. And even if you're not entitled to appointed counsel, these are the sort of qualifications you should have in your lead attorney anyway. CM, for example, has those qualifications, so he's likely to have a better idea of what he's doing than JB in this case. Etc etc etc."

Something like that?

cluciano63 said:

AZ Lawyer, if it is true that a juror made a "gun" sign to JB today...what would that mean? Thanks...

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Ha. I hadn't heard that one. I'd like to see it before I assume there's any truth to it. I'm sure if it was an obvious "gun sign" the defense will throw a fit and HHJP will ask the juror about it. If that one juror appears to have entered nutcake land, HHJP would likely replace him or her with an alternate.

TxLady2 said:

I am confused about the rules of "hearsay." If a witness testifies that a person told them something, why is that called hearsay? I always understood that it was not hearsay as long as you say the person told you personally. If I say this person told me so-and-so, that is not hearsay, right? But if I say that someone else tells me something that they were told by a 3rd party, that is hearsay. Please clarify for me, and thanks. Sorry if the question is confusing, I'm not 100% back to normal yet.

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Hearsay is defined as evidence of a statement that was made other than by a witness while testifying that is offered to prove the truth of the matter stated. The reasl hearsay is excluded is that our system of adjudication through adversarial proceedings is built on the notion that the best way to determine the truth is to make people say what they know under oath [i.e. under circumstances where they could suffer serious adverse consequences for lying] and then subject them to cross-examination. But that system does not work if we allow a witness to testify about what someone told them.

So, if I tell you I saw Colonel Mustard commit the murder in the ballroom with a candlestick, at Col. Mustard's trial, you would not be permitted to testify about my statement because, while Col. Mustard can cross-examine you about whether I actually made that statement, he cannot cross-examine you about whether what I said is true.

As you point out, there can be levels of hearsay. If I tell you that Professor Plum told me he saw what Col. Mustard did, my statement to you about what the Professor said is hearsay, and your testimony about what I told you is double hearsay.

AZlawyer said:

(edit block...)


As for Juror #4, something new would have to come up that HHJP didn't know during jury selection. If deliberations started and she said, "I absolutely will not participate" and stuck her fingers in her ears, then I suppose the foreperson could notify HHJP and he would realize that she meant something more than he thought she meant during the selection process. But I think he would have to declare a mistrial--he can't replace a juror with an alternate after deliberations are underway.

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They got a rid of a juror (through juror complaints to the judge) at S Peterson for failure to deliberate. The jury started deliberations over again with the new juror. That is unique to Cali that a juror can be replaced by an alternate? Or, unique to FL that it would be a mistrial?
Seems odd. Thanks for it all, AZ et al.

Do any of the lawyers know for a fact that AW was in jail during April, 2009? I'm thinking that's one of the dates but, it's also the same exact month/year that the SA filed the paperwork on the Death Penalty for ICA (April 13, 2009)....my question is this, do you think ICA decided right then that she better think of a story? And, then the jail letters began? Do you think it was all a plot by her?

I would like to hear any attorneys take on the event yesterday where LDB gave JB a copy of the demonstrative aid of extracted hard drive info pertinenet to June 16 2008. To me that is the biggest bombshell I have heard to date!! To me, this seals the deal and ICA should try to plead now. There is such a narrow window on that day already established that this has got to be devistating.Thanks in advance.

AZlawyer said:

OK, I think I see your point now. Not that HHJP should have asked Casey the meaningless, "Are you satisfied with your attorney?" question, but that he should have said to her, "Look, you may be entitled to appointed counsel. If I were to appoint counsel for you, by rule I would be required to make sure that this person had a certain level of experience in death penalty cases. Let me tell you what would be required [blah blah blah]. Now JB here, as you may or may not be aware, has practically no experience at all in anything, so there is a pretty big risk that he wouldn't be able to defend you as well as the person I might appoint. And even if you're not entitled to appointed counsel, these are the sort of qualifications you should have in your lead attorney anyway. CM, for example, has those qualifications, so he's likely to have a better idea of what he's doing than JB in this case. Etc etc etc."

Something like that?

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Ding, Ding, Ding!:goodpost:

Hi Richard, are you watching the trial in the courtroom or like we are, on the internet? I trust your observations and Mark's N. more than I do the out-of-towners THs.

IF you are watching in the courtroom, what's your take on the jurors and how they view ICA during her antics and her "thinker" pose she immediately goes into when Caylee's photos are shown again and again. And has the DT come to you for advice on your choice of pocket squares (yea I know, but it was hysterical watching you, good job).

rhornsby said:

First, I believe your understanding may be incorrect. So if you can point out the times where she has been questioned on her satisfaction with Baez, please do.

Second, the court can't force someone to accept another attorney, but the court can force her to acknowledge that her client is not qualified to handle the case before allowing him to proceed as her attorney.

This is more frequently seen when a person wants to represent themselves. In such a case, the court does a "Faretta Hearing" to insure the defendant is aware of the inherent pitfalls of self representation.

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Its clear that a person - at least in some circumstances - can waive their right to counsel. But can a person waive their right to effective counsel?

To me it seems impossible to waive such a right. Because if the trial judge gives an accused such a talk and the accused says he loves his lawyer and thinks his lawyer is doing a fantastic job such a claim by the accused becomes meaningless if we find out the lawyer had a conflict of interest, for example, that seriously impaired his ability to adequate represent his client. In such a case any sort of "waiver" is not a knowlegeable waiver.

BTW - I do not think anything in this trial seems to rise to the level of ineffectiveness - what do you think?

AZlawyer said:

OK, I think I see your point now. Not that HHJP should have asked Casey the meaningless, "Are you satisfied with your attorney?" question, but that he should have said to her, "Look, you may be entitled to appointed counsel. If I were to appoint counsel for you, by rule I would be required to make sure that this person had a certain level of experience in death penalty cases. Let me tell you what would be required [blah blah blah]. Now JB here, as you may or may not be aware, has practically no experience at all in anything, so there is a pretty big risk that he wouldn't be able to defend you as well as the person I might appoint. And even if you're not entitled to appointed counsel, these are the sort of qualifications you should have in your lead attorney anyway. CM, for example, has those qualifications, so he's likely to have a better idea of what he's doing than JB in this case. Etc etc etc."

Something like that?

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Would we the public know whether or not His Honor has said such a thing to the defendant behind closed doors?

I have been trying to find the answer to this question:

How, if any, will the new FL death penalty ruling effect this case?

ynotdivein said:

Would we the public know whether or not His Honor has said such a thing to the defendant behind closed doors?

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To piggy back your question Ynot, I remember a long session where all the attorneys and ICA went into his chambers. I remember we speculated about it but cannot remember if we actually learned the purpose and/or outcome.

countzero said:

Hi Richard, are you watching the trial in the courtroom or like we are, on the internet? I trust your observations and Mark's N. more than I do the out-of-towners THs.

IF you are watching in the courtroom, what's your take on the jurors and how they view ICA during her antics and her "thinker" pose she immediately goes into when Caylee's photos are shown again and again. And has the DT come to you for advice on your choice of pocket squares (yea I know, but it was hysterical watching you, good job).

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Have not stepped foot in the courtroom yet, so have no idea what the jury is thinking.

Also, while I like Mark N, he lost his objectivity a long time ago. It really seems to me he is sweating a talking head angle hard. Next time your'e on Twitter, ask him when he last tried an actual case in front of a jury, I am willing to bet it was last century.