Appellate Law, Criminal Defense, Criminal Appeals & Criminal Appellate Review and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit for Criminal Attorneys, Criminal Lawyers & Appellate Lawyers
In today’s media culture, almost any criminal case can become a high profile case. All it seems to take is (1) the involvement of a relatively well known or notorious person ; (2) a sympathetic or outrageous crime; and (3) news coverage by the media. If circumstances are right, even purely local cases can be picked up by the national media and become high profile. (Anyone hear of the Casey Anthony trial??) The purpose of this post is to make a quick note of some things that an attorney may want to consider prior, during, and after trial.
Investigation phase: At some point, an attorney may learn that his or her client is the target of a criminal investigation. While this may be more common in the Federal system, it may also occur in the State system where police are conducting a long-time criminal investigation, or a large grand jury investigation is being conducted at the direction of the Statewide Prosecutor. Once an attorney is notified or learns that the investigation has targeted the client, an attorney may want to consult with the client about the possibility of approaching the relevant authorities to see if a deal can be worked out prior to indictment. This kind of deal may entail cooperation in exchange for an indictment on a lesser offense, or perhaps the withholding of an indictment altogether.
Prior to and at the start of trial: After the client gets charged with a crime, where the case involves co-defendants or multiple offenses, an attorney needs to consider a motion to sever pursuant to Fla. R. Crim. P. 3.152. If the case has been the subject of pre-trial publicity, counsel may wish to consider moving to change venue pursuant to Fla. R. Crim. P. 3.240. At the time of jury selection, counsel may wish use Rule 3.281 as a basis to request a list of all the prospective jurors, including their names and addresses and the juror questionnaires. A search of the jurors’ names on Google may reveal valuable information about them, and such information could serve as a basis to exercise a peremptory strike or challenge for cause. Where pre-trial publicity has been high or negative, counsel may wish to think about moving to sequester the jury pursuant to Fla. R. Crim. P. 3.370(a) to insulate them from publicity during the trial. Motions to sequester and change venue are left to the discretion of the trial judge, so counsel should be sure to make a good record by filing a thorough written motion in compliance with the rule, and renewing it whenever necessary, prior to and during the trial. The better record counsel can make of the court abusing its discretion, the better chances counsel may have of prevailing on any subsequent appeal.
Jury selection: To state the obvious, jury selection is an extremely important time of the trial. Attorneys may wish to come prepared with a list of the prospective jurors that was requested pursuant to Rule 3.281, and be ready to argue why certain potential jurors should be stricken for cause at the outset. The more jurors that are successfully challenged for cause, the more peremptory strikes can saved for use later on. Attorneys should remember to make as good a record as possible for appeal by stating objections on the record and the reasons for the objections. Objections to the panel should be renewed at the time the panel is selected, and again prior to the time that the panel is sworn. If objections are not made and renewed, an appellate court may find that the jury selection issues have not been preserved. In really high profile cases, jury selection may take days or weeks. In such cases, counsel should ask the court for additional challenges for cause and peremptory strikes. Courts may grant such requests in their discretion.
Post verdict: If the jury renders a guilty verdict, and if there is reason to believe that the verdict is subject to legal challenge, counsel may move to interview the jurors pursuant to Rule 3.575.
Post trial: After trial, counsel may move for a new trial under Rules 3.580 and 3.600. If the evidence sustains a conviction for a lesser offense, a court may, pursuant to Rule 3.620, enter a judgment for the lesser offense.
Bail pending appeal: Where an attorney intends to appeal a conviction, the court may release the defendant pending appeal pursuant to Rule 3.691.
Shortly after the verdict, one of Anthony’s lawyers was photographed flipping the bird. That attorney, Cheney Mason, is now the subject of a Florida Bar complaint. To see the photo and read the article, go here.
Well, by now you have all probably heard that Casey Anthony was sentenced to 1 year incarceration for each count of lying to a police officer, consecutive, which means she was sentenced to a total of 4 years. (The Court also imposed a $1,000 fine and court costs for each count, and the prosecutor stated that the State would be seeking to recover the costs of investigation and prosecution of the case). According to a CNN report, after adding up all the jail credits, it appears that Anthony will be released on July 13, 2011. Even though Anthony’s defense attorneys mentioned the possibility of an appeal of the sentence based on the double jeopardy issue which was raised at the televised hearing, I would be surprised if any appeal will be filed now. If Anthony is going to be released in a week, why waste time with an appeal?
The Court will consider the State’s motion to recover the costs of investigation and prosecution at a later date. Meanwhile, a company named Texas Equusearch is seeking to recover the $112,000 it spent trying to locate Caylee, and Zenaida Gonzalez, otherwise known as “Zanny the Nanny,” has apparently filed an action for defamation against Anthony based on Anthony’s false statements that she left Caylee in her care. Ms. Gonzalez denies ever meeting Anthony. No reports yet on whether the State of Florida will try to pursue perjury charges against Casey Anthony’s mother. Under Florida Statute section 837.02, making a false statement under oath in an official proceeding constitutes either a second or third degree felony. In my personal experience, perjury charges are not often pursued because they are difficult to prove.
Note: In my previous Casey Anthony post, I referred to the felony offenses of providing false information to a police officer under Florida statute section 837.05(2). However, it turns out that in Counts IV through VII, Anthony was only convicted of the misdemeanor offenses under Florida Statute section 837.05(1) which carry the lighter maximum penalty of up to 1 year incarceration.
The media is swirling with reports about the verdict in the Casey Anthony case. Reporters and courthouse watchers are all talking about how shocked they are. Others speculate about what will happen to Anthony and her family now that she has been acquitted. It is easy to get dragged in to the media hype surrounding this case. After all, a little girl’s dead body was found in the woods, and her mother acted despicably in the days following her disappearance. But before you join that angry mob out there, take a minute to think about something else.
We all know that in a trial, the prosecution’s job is to prove its case beyond a reasonable doubt, and that the defense attorney’s job is to convince the jury that there is reasonable doubt. The role of defense attorney seems easy enough in cases where the criminal defendant might be a likeable person, or where the Government made some clear mistakes either in the investigation or in the prosecution of the case. But in cases like Anthony’s, where the defendant shows no remorse for what happened, or acts despicably in the days following the perpetration of the crime, the role of the defense attorney becomes all the more difficult and important. In cases where the defense attorney has to defend someone that is despised by the public, the defense attorney truly assumes the role of defender. The jury trial system given to us by the Founders of this great Nation knew the importance of the jury trial as a check against mob justice. And the Justices of the United States Supreme Court, in Gideon v. Wainwright, 372 U.S. 335 (1963), recognized that all defendants, regardless of income, have the right to be defended against criminal charges. The right to due process of law, which we all enjoy under the Constitution, requires nothing less.
It is somewhat ironic that the verdict in the Anthony case was reached one day after Independence Day. While we may feel angered and frustrated by the senseless death of little Caylee, and while we may disagree as to the appropriateness of the verdict, there are two things we should all take a moment to remember in these days surrounding the Fourth of July: the right to trial by jury, and the important role of the criminal defense attorney. An oath contained on the website of the Office of the Public Defender for the Fifteenth Judicial Circuit is worth quoting:
I am a Public Defender.
I am the guardian of the presumption of innocence.
My clients are the indigent accused.
They are the lonely, the friendless.
There is no one to speak for them but me.
My voice will be raised in their defense.
I will protect and defend my clients and the Constitutions of the United States and the State of Florida.
After only approximately 10 hours of deliberations, the jury reached its verdict in the Casey Anthony case: Not Guilty of Counts I through III, which were the counts charging Anthony in the death of her daughter. (Note: Count I charged First Degree Murder, Count II charged Aggravated Child Abuse, and Count III charged Aggravated Manslaughter of a Child). The jury did, however, find Anthony guilty on Counts IV through VII, which charged her with Providing False Information to a Law Enforcement Officer. Sentencing has been set for Thursday, July 7, 2011.
Pursuant to Florida Statute sec. 837.05(2), a person who provides false information to a law enforcement officer with regard to the alleged commission of a capital felony commits a third degree felony, and may be incarcerated for a term of up to 5 years. Since Anthony has been in custody on and off since the death of her daughter in 2008, Anthony may have already earned a substantial amount of credit for time served.
A report on CNN today states that during trial proceedings on Thursday, June 30, 2011, a Casey Anthony trial spectator decided to give the middle finger to a prosecutor while the prosecutor was at the podium, in open court. Although the prosecutor did not see the middle finger being given because he was at the podium and had his back to the gallery, the spectator’s actions were caught on tape and played on national television for all to see. After Judge Perry was notified of the spectator’s actions, Chief Judge Perry, outside the presence of the jury, called the spectator, Matthew Bartlett, up to the court to address his actions. The Chief Judge questioned Bartlett as to what the middle finger gesture meant, and particularly, what the gesture meant to him. After Bartlett said he did not even know why he made the gesture, he apologized. Apparently not happy with the apology, Chief Judge Perry sentenced Bartlett to 6 days in the Orange County jail, a fine of $400.00, and $223.00 in court costs. Bartlett was handcuffed and escorted to jail by Orange County deputies.
Can the Judge really do that? In a word: YES. Attorneys are well aware that the courtroom is a place that demands the highest levels of respect and decorum. A court’s contempt powers are the means to enforcing the rules of the court, and maintaining proper behavior in a courtroom. While it may be that people who are not attorneys may not be aware of the court’s contempt powers, ignorance of the law is never a defense. And, in this case, ignorance of the law could not possibly be a defense because as noted in the CNN report, there is a sign posted indicating that gestures would not be tolerated. In addition to the sign, on May 4, 2011, Chief Judge Perry signed an Order Establishing Rules Governing Members of the Public, which clearly states that proper decorum was to be expected at all times, and that “[t]here shall be no gestures, facial expressions or the like, suggesting approval or disapproval during the proceedings.”
While a jail sentence may seem harsh at first, closer examination shows that perhaps that’s not the case. True, going to jail for giving the middle finger could be characterized as extreme. However, one cannot simply look at the action and the consequence in a vacuum. The larger picture needs to be taken into account. What we have here is a woman who is on trial, possibly facing the death penalty, for the murder of a little girl. These court proceedings, as do all court proceedings, require respect and solemnity. We also have a Judge who is responsible for balancing the rights of the media and the public to observe the proceedings, against the rights of the accused to a fair trial. Why should the Judge allow the irresponsible actions of one mere spectator inject a possible taint into the entire proceeding? After proceeding for more than 6 weeks, why run the risk of a mistrial because one immature person could not respect the rules of the Court? If the case is mistried, the entire process would have to start all over again, and the work of everyone–jurors, witnesses, attorneys and the Judge– will have been for nothing. In the end, I regret that the sentence had to be imposed, but I believe that to protect the dignity of the proceedings, the authority of the Court, and the efforts of all the players involved, the sentence is appropriate.