WFTV's Legal Analyst Bill Sheaffer - Casey Anthony Blog

Bill Sheaffer Answers Your Questions

Posted in Latest Posts by William J. Sheaffer on May 7, 2010

QUESTION: Would the defense have anticipated the sitting of Judge Perry upon Judge Strickland’s departure or was it an unpleasant surprise? — KMerr

BILL SHEAFFER: No, the defense team could not have anticipated which of the “death penalty qualified” judges would have been assigned the case. There is no line up of judges, per se. In the event of a recusal or disqualification, the Administrative Judge (Whitehead) typically makes the case assignments in Orange County. Certainly, the defense team may have had some preferences. Whether Judge Perry was one, is not known to me.

QUESTION: Now that Mr. Malcaluso has withdrawn from the Casey Anthony case, can he be called as a witness for either the prosecution, or the defense? He did state that he had proof of Casey’s innocence, or words to that effect at one of the numerous hearings. — Muesli

BILL SHEAFFER: No. The attorney client privilege comes into play here. The State cannot call Casey’s former defense team member as a witness. The Defense most certainly would not want to, and subject him to cross examination by the State, thereby opening the door to information that he possesses, as a result of the attorney client relationship.

QUESTION: What do you think about Baez’s claim that he doesn’t keep track of his billable hours? – Deb S.

BILL SHEAFFER: The majority of criminal defense practitioners, by and large, do not keep billable hours, but, instead, charge a flat fee for representation. I, myself do not keep hours. There are of course, those who do.

QUESTION: What might that mean to other clients of his (if he has any)? Do you think now that Judge Perry has taken Strickland’s place it signals the beginning of the end for Baez? – Deb S.

BILL SHEAFFER: I do not expect that Mr. Baez is going to go anywhere. He will see this case through to the end as lead counsel. I do anticipate that he will be better behaved.

QUESTION: Also, I’d like to ask, with this new defense team do you think they will try to convince Casey to go for a plea? They have never wavered so far in saying she wants her day in court and she’s innocent – Deb S.

BILL SHEAFFER: As to possible plea offers, competent criminal defense lawyers would not close the door to plea negotiations with the State. However, in this case, I do not believe a resolution by way of a plea is likely. One reason is that this is a circumstantial evidence case that lacks a “smoking gun” or a confession.

QUESTION: And even though they (the defense) have tried different theories on the blogs and with the public, Casey has never wavered from saying the Nanny took her. In your opinion do you believe they’ll take that story to court? – Deb S.

BILL SHEAFFER: Good question, but it is hard to say. The defense team may well be married to that theory as there were so many out of court statements, especially prior to Casey’s arrest, asserting that the nanny took her child.

http://www.wftv.com/caseyanthonyblog/index.html

What Did The Supremes Mean?

Posted in Latest Posts by William J. Sheaffer on May 25, 2010

While reading some of your comments this Sunday, I ran across one from Bees Knees in which she provided Judy PC, a link to a case that seemed to indicate that the State Attorney’s Office could withhold certain evidence from the Defense until trial, just as long as it is not evidence helpful to the Defendant. Recognizing Bees as one of our blog contributors that is always on the cutting edge of current information, I went to the link she supplied. I found a 2001 revised Florida Supreme Court opinion in the case of Hoffman vs. State of Florida, which discusses the issue of the State’s failure to disclose evidence favorable to the Defense prior to trial in a death penalty case.

At first blush it does appear that the Supreme Court reached the conclusion that Bees did. But, with apologies in advance to Bees, that was not the Court’s decision after all. Having had to read and brief more cases than I care to remember, starting waaaaaaay back in law school, I realized I ought to take a closer look at the Hoffman case. I believe Bees, as well as Judy, Frankie, Amazed, CatCarr, Kate, et al., would want me to straighten out an area of confusion so that there is no misinterpretation when you all speak to this issue in the future.

The general rule in Florida is, pretty much without exception, when the Defense files its Notice of Intent to Participate in Discovery, pursuant to the Florida Rules of Criminal Procedure, both the State and the Defense are then obligated to timely provide all evidence in the possession of each, to one another, as set forth and defined by Rule 3.220 Fla. R. Crim.P. This duty to disclose is ongoing, up to commencement of trial. If either party breaches that duty, the Court has a broad range of sanctions it can impose on the offending partying, including, but not limited to, exclusion at trial of the witness or evidence not properly disclosed.

This discussion leads us to the Hoffman death penalty case that Bees found. Hoffman deals with a particular type of evidence which is referred to as exculpatory evidence (evidence which is favorable to the Defense, or evidence which seems to point to the Defendant’s innocence). The aforementioned evidence is known as BRADY evidence, named from the United States Supreme Court case of BRADY VS. MARYLAND. When the State fails to turn over exculpatory evidence to the Defense, lawyers refer to it as a BRADY VIOLATION.

In the Hoffman appellate case, the Appellant/Defendant Hoffman, during an evidentiary hearing held by the Trial Court subsequent to his conviction and sentencing, claimed that the State had withheld exculpatory evidence. And further, had the Defense known of that evidence, the trial result would have been different. The Trial Court, at this post conviction hearing, rejected this argument. However, on an appeal to the Florida Supreme Court, the Defense prevailed, as the Supreme Court agreed with the Defense and remanded the case back to the Trial Court for a new trial.

When a Brady violation is alleged, the Defendant must establish a prima facie case that “there is a reasonable probability that, had the evidence been disclosed to the Defense, the results of the trial would have been different.” To meet this test, the Defendant must prove: (1) The State had evidence favorable to the Defense, (2) That the evidence was suppressed, or, not given to the Defense, and, (3) There is a reasonable probability that, had the evidence been disclosed, the outcome would have been different.

Bees was right in one respect. That is, that the State can withhold exculpatory evidence and get away with it, so long as the Courts conclude that even though the State did so, it doesn’t matter, because it would not, within a reasonable probability, have led to a different verdict. That, however, is a very dangerous game for a prosecutor to play, especially in a capital case, such as the Casey Anthony case. None of us, especially the taxpayers, want to run the risk of seeing a verdict and sentence overturned and a new trial granted. Therefore, from an ethical standpoint as well as a practical one, I do not expect to see either the State or the Defense fail in their duties to timely disclose all evidence to one another as required by the Rules of Criminal Procedure in Florida.

WJS

http://www.wftv.com/caseyanthonyblog/index.html

Wow. Glad to see Bill is posting again. And I remember Beesknees from the old Greta blogs! Small world, eh? kh

Discourse or Discord?

Posted in Latest Posts by William J. Sheaffer on August 4, 2010

The rumors are not true. I am not dead, nor in the Witness Protection Program, nor have I abandoned or lost interest in our blog. While it is true that the personal injury side of my law practice has kept me beyond busy, the fact is, as well, there has been little to say of late.

In that vein, many of you may remember Mr. Ed, a TV sitcom that ran when I was a child. The show was about a horse that could talk, but would only speak to his owner, Wilbur. In any event, the show’s theme song went, in part, something like this: “People yakkity yak and waste our time of day, but Mr. Ed will never speak unless he has something to say… A horse is a horse, of course of course…” Well, I generally feel like Mr. Ed in that regard, and do not want to talk or write and waste your time unless I have something to say.

So much of what has been presented as topical or important during the pendency of the Casey Anthony case has been, what I consider to be, white noise. That is, a lot of sound and dissonance with little or no consequence or meaning to either the prosecution of the defense of the criminal case itself. That is not to say that certain “white noise” events are not in some ways interesting, or should not be of interest to us. Rather, these things just do not, in my opinion, rise to the level of scholarly discussion or analysis.

Although now old news, but still extremely significant (and, yes, I should have commented earlier), was Judge Perry’s ruling denying the defense motion to exclude the tapes of Cindy Anthony’s 911 calls. That decision, after all, was one of the most, if not THE most, momentous evidentiary rulings made to date in this case. I would certainly now expect the State to lead off by playing those tapes as their first evidence in the presentation of their case in chief. The agitation, frustration and emotion contained in Cindy Anthony’s voice, during her last 911 call, foreshadows the tragedy that unfolds and, ultimately, culminates with the discovery of the body of baby Caylee Anthony. This call, in particular, also sets the evidentiary stage for the unfolding web of lies spun by Caylee’s mother, Casey Anthony, which, measured against the facts, will ultimately lead to the inescapable conclusion of Casey’s guilt in the murder of her little girl.

It is critical in this circumstantial evidence case that the State’s launch from the starting gate be strong, impactful and consistent with the evidence provided by the 911 tapes. And so now, the stage has been set. What remains is to flesh out the supporting evidence, especially the forensic evidence.

What are we waiting for now? We are anticipating the Defense motions to exclude the forensic evidence, Judge Perry’s denial of same, and the evidentiary boxcars to line up behind the 911 tape train engine.

Finally, questions and curiosity about the content of the taped telephone calls between defense attorney Jose Baez and Lowell Correctional Inmate Robin Lunceford are rampant now that the judge has issued his order denying the defense motion for a protective order regarding their release. However, again, whether these tapes contain anything of evidentiary value, or whether we have instead more white noise, remains to be seen. If it is the former, I promise to comment (and, yes, Craig, in a timely fashion).

Until then, or until the next significant event, I have been asked again to answer questions. I will do so gladly as my caseload permits. Thank you all for your patience and forbearance.

WJS

http://www.wftv.com/caseyanthonyblog/index.html

I was so thrilled when Bill started his blog....... the thrill died quickly. I could not believe the things people wrote/fought over...... and it had nothing at all to do with the blog or the case! I have not been there for a really long time so I didn't even notice he was missing. kh

I haven't read there in a really long time either. I forgot his blog even existed.

kh, I was very happy, also, when Bill started his blog.... but I have to say... I completely did not pay any attention at all to the derogatory comments that were made. I know what I thought about him, and to me, that's all that mattered. I just refused to read all the trash.

I really like Richard Hornsby, and I appreciate his legal input about the case, but I do wish he would reserve his comments to explaining motions and such, the way he has been doing, and not say such hateful things about BS. I find it to be in very poor taste. There is room for both of them to comment on this crazy case.

JMO.

I also enjoyed Bill's input and explanations...I thought the bad mouthing by this commentors was uncalled for...I understand his delay in updating his blog...If he answered each any every question he wouldn't have time to represent his clients...I look forward to his next insightful post...