Legal Questions for our VERIFIED Lawyers #3

[ebedeeb]

I hope this makes sense, as its been a long day...As Im trying to understand all these rules for a juror regarding mitigating circumstances...I understand that a victim impact statement will be given, (assuming that would be GA, CA & LA) and jurors are not allowed to base their decision on that (seems silly that the court would allow, and then tell jurors to disregard, but...)... can the juror take into regard the "actual victim" and their circumstances? In this case a child, Caylee, to outway any mitigating circumstances that would be presented? Interested to know what the judge actually says in regards to directing them.

 

[AZlawyer]

I hope this makes sense, as its been a long day...As Im trying to understand all these rules for a juror regarding mitigating circumstances...I understand that a victim impact statement will be given, (assuming that would be GA, CA & LA) and jurors are not allowed to base their decision on that (seems silly that the court would allow, and then tell jurors to disregard, but...)... can the juror take into regard the "actual victim" and their circumstances? In this case a child, Caylee, to outway any mitigating circumstances that would be presented? Interested to know what the judge actually says in regards to directing them.

The jury can only consider the aggravating circumstances that are listed in the statute. In this case, the ones they can consider (if found beyond a reasonable doubt) are:

1. The murder was committed during commission of aggravated child abuse;

2. The murder was especially heinous, atrocious or cruel;

3. The murder was cold, calculated and premeditated without any pretense of moral or legal justification;

4. The victim was a child under 12;

5. The victim was particularly vulnerable due to the perpetrator's position of custodial authority over the victim.

In this case, the jury pretty much has to find #4 and #5.

 

[darnudes]

In light of the news that Rosalie Bolin is now on the defense team what do you think of Judge Perry citing a Bolin case to support his Order Denying Motion To Exclude Hearsay Evidence, Gossip And Innuendo

That case was "Bolin v. State 2010 WL 2612348 (Fla.)"

http://www.ninthcircuit.org/news/Hig...07-19-2010.pdf

Found here (not sure but think I'm correct) -

http://www.wfsu.org/gavel2gavel/tran...fs/08-1963.pdf

Sorry, this seems to be the one Judge Perry cited -

http://www.floridasupremecourt.org/d.../sc08-1963.pdf

Poetic justice or a case of it's a small world in death penalty circles?

 

[sua_sponte]

We discussed this up-thread. What laying a foundation MEANS is just going through where the evidence came from and what has been done to it--e.g., person A opened the trunk, cut the piece of carpet out, put it in a can and mailed it to person B; person B received the can, opened the can but not for long, blah blah blah.

Some lawyers and judges use "foundation" also in a looser (wrong lol) way to mean evidence of reliability. I think. It always drives me nuts, quite honestly, and I'm not sure what they mean exactly. :banghead:

Interesting... I would probably be one of the lawyers causing you to bang your head. What you describe as "laying a foundation" was taught to me as "proving chain of custody" or its equivalent depending on the evidence.

Laying a "foundation" in my jurisdiction refers to a standard that must be met before evidence is admitted, where the proponent of the evidence must show that it is what it purports to be (and relevant and helpful to the fact-finder). In other words, here, the state would have to show some foundation (other than the jurors own perceptions) showing that the air in that can is actually decomp. I think Dr. Vass' testimony would be the proper foundation.

ETA: In my jurisdiction, proving "chain of custody" is considered part of laying the foundation, but not entirely sufficient.

 

[Kentjbkent]

RE: ROSALIE BOLIN

I have been unable to get passed the previous relationship and project that Rosalie Bolin had with Larry Garrison of Silver Creek Entertainment (and previous PR man for Anthonys) and have a question...

We know Mrs. Bolin is not an attorney but makes claims on the net that she has worked as a "mitigation specialist" and in other articles claims to be a "private investigator".

We ASSUME that the recent Motion for Addtl Investigative Hours (posted by media) is in reference to Mrs. Bolin's new role...but we do not know this as fact.

We know that Jeanne Barrett is still involved as mitigation specialist as she has spent several hours recently with KC according to jail logs, as well as previously request additional investigative hours from JAC.

Mrs. Bolin appeared suddenly on Day THREE of jury selection. It appears her current role is "nanny" to KC during these lengthy hearings. (If she is indeed involved in role as investigator, shouldn't she be out INVESTIGATING instead of spending HOURS every day in court????)

My question is....what kind of confidentiality would she be bound to in regards to any conversations, etc she may be privy to by defense or KC? What about any statements that may be uttered by KC during these proceedings that do NOT refer to her innocence or guilt?

She states in articles that she works "pro bono" so I would assume there is NO Financial Agreement contract in place?

If Baez had her sign a confidentiality agreement in order to be present at defense table during these proceedings and trial, would that stand up in court should she decide to enter into a media deal agreement with Larry Garrison post-trial????

(May want to skim Rosalie Bolin thread...is interesting read...)

(I am keeping in mind the controversy of the confidentiality agreement involving Dominic Casey, investigator. WAS he or WASN'T he bound?)

 

[MissJames]

RE: ROSALIE BOLIN

I have been unable to get passed the previous relationship and project that Rosalie Bolin had with Larry Garrison of Silver Creek Entertainment (and previous PR man for Anthonys) and have a question...

We know Mrs. Bolin is not an attorney but makes claims on the net that she has worked as a "mitigation specialist" and in other articles claims to be a "private investigator".

We ASSUME that the recent Motion for Addtl Investigative Hours (posted by media) is in reference to Mrs. Bolin's new role...but we do not know this as fact.

We know that Jeanne Barrett is still involved as mitigation specialist as she has spent several hours recently with KC according to jail logs, as well as previously request additional investigative hours from JAC.

Mrs. Bolin appeared suddenly on Day THREE of jury selection. It appears her current role is "nanny" to KC during these lengthy hearings. (If she is indeed involved in role as investigator, shouldn't she be out INVESTIGATING instead of spending HOURS every day in court????)

My question is....what kind of confidentiality would she be bound to in regards to any conversations, etc she may be privy to by defense or KC? What about any statements that may be uttered by KC during these proceedings that do NOT refer to her innocence or guilt?

She states in articles that she works "pro bono" so I would assume there is NO Financial Agreement contract in place?

If Baez had her sign a confidentiality agreement in order to be present at defense table during these proceedings and trial, would that stand up in court should she decide to enter into a media deal agreement with Larry Garrison post-trial????

(May want to skim Rosalie Bolin thread...is interesting read...)

(I am keeping in mind the controversy of the confidentiality agreement involving Dominic Casey, investigator. WAS he or WASN'T he bound?)

To jump off of this post,
Could JB legally be getting around the indigent claim ,by funneling info through RB to LG ,for a movie after the trial? This would be yet another way to get "paid" without being paid directly by ICA.
Sad ,but I always think JB is scheming of ways to make money off this case in an unethical way. Blood money.
Would there be any legal repercussions?

 

[Linda7NJ]

Is there going to be lesser included charges or straight up Murder One?

 

[SoCalSleuth]

Is there going to be lesser included charges or straight up Murder One?

There are lesser included charges.

 

[my_tee_mouse]

It has been posted on the jury selection forum that the judge announced they would go with 12 jurors and then replace as the attorneys use their strikes....only 12? Are they not going to seat any alternates in a two-month-long case?!!

 

[lowens1975]

Do you think anyone, including the A's, will get up at the proper time and give the 'Victim Impact Statement'. If not the A's then who?

 

[LoisDenominator]

OK, I hope I can express this question sensibly.

In our esteemed attorneys' opinion(s), will this legal team actually stick around for the eventual appeal process?

I ask because the DT threatens so often (verbally and by tonality) that if CJBP does not rule their way on their motions, it will become an appeal issue. Are they doing this a) because it is the absolute norm in any case, no matter what; or b) they know they won't be doing the work required for appeal (especially pro-bono) and are hoping that by bullying CJBP into ruling their way, they might be able to squeak out an acquittal and then they can become the celebrity attorneys who got ICA off of Capital Murder charges?

 

[AZlawyer]

In light of the news that Rosalie Bolin is now on the defense team what do you think of Judge Perry citing a Bolin case to support his Order Denying Motion To Exclude Hearsay Evidence, Gossip And Innuendo

That case was "Bolin v. State 2010 WL 2612348 (Fla.)"

http://www.ninthcircuit.org/news/Hig...07-19-2010.pdf

Found here (not sure but think I'm correct) -

http://www.wfsu.org/gavel2gavel/tran...fs/08-1963.pdf

Sorry, this seems to be the one Judge Perry cited -

http://www.floridasupremecourt.org/d.../sc08-1963.pdf

Poetic justice or a case of it's a small world in death penalty circles?

Just Casey Case Coincidence No. 10,003

Interesting... I would probably be one of the lawyers causing you to bang your head. What you describe as "laying a foundation" was taught to me as "proving chain of custody" or its equivalent depending on the evidence.

Laying a "foundation" in my jurisdiction refers to a standard that must be met before evidence is admitted, where the proponent of the evidence must show that it is what it purports to be (and relevant and helpful to the fact-finder). In other words, here, the state would have to show some foundation (other than the jurors own perceptions) showing that the air in that can is actually decomp. I think Dr. Vass' testimony would be the proper foundation.

ETA: In my jurisdiction, proving "chain of custody" is considered part of laying the foundation, but not entirely sufficient.

Thanks. I have a suspicion from some of the things HHJP has said in previous hearings that he means something more like this as well.

RE: ROSALIE BOLIN

I have been unable to get passed the previous relationship and project that Rosalie Bolin had with Larry Garrison of Silver Creek Entertainment (and previous PR man for Anthonys) and have a question...

We know Mrs. Bolin is not an attorney but makes claims on the net that she has worked as a "mitigation specialist" and in other articles claims to be a "private investigator".

We ASSUME that the recent Motion for Addtl Investigative Hours (posted by media) is in reference to Mrs. Bolin's new role...but we do not know this as fact.

We know that Jeanne Barrett is still involved as mitigation specialist as she has spent several hours recently with KC according to jail logs, as well as previously request additional investigative hours from JAC.

Mrs. Bolin appeared suddenly on Day THREE of jury selection. It appears her current role is "nanny" to KC during these lengthy hearings. (If she is indeed involved in role as investigator, shouldn't she be out INVESTIGATING instead of spending HOURS every day in court????)

My question is....what kind of confidentiality would she be bound to in regards to any conversations, etc she may be privy to by defense or KC? What about any statements that may be uttered by KC during these proceedings that do NOT refer to her innocence or guilt?

She states in articles that she works "pro bono" so I would assume there is NO Financial Agreement contract in place?

If Baez had her sign a confidentiality agreement in order to be present at defense table during these proceedings and trial, would that stand up in court should she decide to enter into a media deal agreement with Larry Garrison post-trial????

(May want to skim Rosalie Bolin thread...is interesting read...)

(I am keeping in mind the controversy of the confidentiality agreement involving Dominic Casey, investigator. WAS he or WASN'T he bound?)

As part of the defense team, she is covered by attorney-client privilege, which would include whispers at the defense table from KC.

If she is working pro bono on THIS case, she cannot be paid by JAC. So perhaps she is not working pro bono on this case. I don't know if the JAC requires a written payment agreement, or if an oral agreement would be OK.

Yes, I think she would be bound by a confidentiality agreement. I can't remember all the details about DC, though. If you're talking about when he was being questioned by LE, such questioning "trumps" any private confidentiality agreement.

To jump off of this post,
Could JB legally be getting around the indigent claim ,by funneling info through RB to LG ,for a movie after the trial? This would be yet another way to get "paid" without being paid directly by ICA.
Sad ,but I always think JB is scheming of ways to make money off this case in an unethical way. Blood money.
Would there be any legal repercussions?

I think it would be a breach of attorney ethics rules in Florida for JB to arrange a contract to tell his "story" while he is still representing Casey. If so, this would be unethical whether he does it directly or through third parties.

But this would have nothing to do with Casey's indigence, because you are not talking about (as far as I can tell) anything that belongs to Casey.

It has been posted on the jury selection forum that the judge announced they would go with 12 jurors and then replace as the attorneys use their strikes....only 12? Are they not going to seat any alternates in a two-month-long case?!!

I think HHJP said there will be 8 alternates. I'm not watching jury selection live--maybe he meant they will get through the selection of 12 jurors first (replacing as the attorneys use their strikes) and then separately select the 8 alternates? (IIRC the Florida rule says you get 1 or 2 additional strikes if there are 1 or 2 alternates...so maybe HHJP will give them 8 more strikes for 8 alternates? Hopefully not or we will need more potentials.)

Do you think anyone, including the A's, will get up at the proper time and give the 'Victim Impact Statement'. If not the A's then who?

I never thought the As would do this, but now that AF has laid out the penalty phase strategy, I am beginning to suspect that the As might have something to say about Caylee after all by the end of this process. And if the guilt phase strategy indeed turns out to be "throw momma from the train and daddy under the bus," then the chances of Caylee having family members on her side increase even more.

 

[AZlawyer]

OK, I hope I can express this question sensibly.

In our esteemed attorneys' opinion(s), will this legal team actually stick around for the eventual appeal process?

I ask because the DT threatens so often (verbally and by tonality) that if CJBP does not rule their way on their motions, it will become an appeal issue. Are they doing this a) because it is the absolute norm in any case, no matter what; or b) they know they won't be doing the work required for appeal (especially pro-bono) and are hoping that by bullying CJBP into ruling their way, they might be able to squeak out an acquittal and then they can become the celebrity attorneys who got ICA off of Capital Murder charges?

Normally the team is different on appeal in a death-penalty case. For one thing, you would want appellate attorneys. For another thing, the appellate team would also be working on the post-conviction relief petition alleging that the original trial team provided ineffective assistance of counsel.

It is absolutely normal IMO for the lawyers and judge to be focused on the potential impact of any ruling on appeal. I don't think there is any abnormal focus on that issue in this case.

 

[Macushla]

For AZ: A little OT here. I am in AZ visiting, how the heck do you manage the 3 hour time difference? I am not thrilled about getting up at 5 am to try and catch the beginning of juror selection each day

 

[grammieto5]

I've been thinking of KC's behavior for the first few days, I know she knows what she has done, but is it possible she did not know what she is being charged with ?

 

[AZlawyer]

For AZ: A little OT here. I am in AZ visiting, how the heck do you manage the 3 hour time difference? I am not thrilled about getting up at 5 am to try and catch the beginning of juror selection each day

I don't watch it--I just speed through the thread when I have time.

I've been thinking of KC's behavior for the first few days, I know she knows what she has done, but is it possible she did not know what she is being charged with ?

No, I am pretty sure her defense team has discussed those charges with her for hours on end.

 

[Blue Jackets fan]

If she gets convicted of 2nd degree murder of even manslaughter, what would be min or max sentence for each one/

 

[gmt]

Do you know if the SA, DT & ICA might have agreed and maybe had some stipulations agreeing to this process for jury selection?? Can they do that, which would prevent any appeals for selection being done this way? How can you strike when you may be on the fence with a juror? THanks

 

[miimaa]

This mitigating factor stuff that has come up... can the DT use any info KC gives them about her alleged mistreatment from her parents without verifying it to be true? What if this abuse is something totally made up by KC?

TIA

 

[Katprint]

I think what HHJP was saying is what I've said many times on this thread before--you can't ask the jurors to smell the can to see that it smells like decomp, because they have no basis for comparison. They are not experts in decomp smell (or lay witnesses with experience smelling dead bodies).

But IMO if the defense FIRST brings in testimony (e.g., from Cindy) that the trunk smelled like trash, then the SA ought to be allowed to rebut that evidence by bringing in the smell (the can) for the jurors. They don't need any special expertise to know that something smells like not-trash.

I don't know if there is any "smell evidence" case law (I haven't looked for it lol). But the defense should not be permitted to present witness testimony that "the trunk smelled like trash" without the state being allowed to rebut it, any more than the defense should be allowed to say "Casey was pacing and worrying" without the state being allowed to show pictures of her renting movies.

With sincerest respect, I strongly disagree.

Arranging for the jurors to smell for themselves is essentially arranging for the jurors to conduct an experiment. IMO it would be like having the jury experimenting with a gun to try to get it to misfire when dropped, in a case where the defendant claimed the gun had accidentally misfired when he dropped it. It would be OK for a gun expert to examine/test/experiment with the gun and provide expert testimony concerning whether the gun could have or could not have misfired when dropped but it would NOT be OK for the jury to conduct their own experiments on this same issue.

In a brief search of legal authorities, I did not find any appellate decisions where the jurors were permitted to smell a preserved smell. All of the "smell evidence" decisions I found involved witnesses who testified about having smelled alcohol, marijuana, gasoline, decomp, etc.

Although I do not disagree that human decomp is an extremely unique smell, I don't think the prosecution will be able to prove that NOTHING ELSE smells similar, particularly given the likelihood they will be presenting evidence to the contrary with regard to the pseudo-decomp scents used for training cadaver dogs. IIRC decomposing pigs are supposed to smell similar to decomposing human remains. If Casey had actually worked as an event planner, the defense might be able to put together some story about transporting a suckling pig to a luau or BBQ in her car trunk but the container breached and pork juices leaked out onto the car's carpet etc.

IMO this is one of those "lack of foundation" situations where certain "foundational" facts must be proven before the evidence can become admissible.

Katprint
Always only my own opinions