The State Rests, The Defense Argues
Posted by thedarwinexception on June 16, 2011
Today the prosecution rested – and the defense petitioned the court for a directed verdict. Which is fairly standard operating procedure.
First off are the housekeeping matters from yesterday. The state and the defense have come to a stipulation regarding the tattoo and it’s translation. They agree that it say s ”Beautiful Life.”
The state wants to introduce the 2 cans with the pieces of spare tire cover in them. The defense asks if these are going to be used for a “sniff test” the state says at this point they are only introducing them into evidence.
The jury is brought in and the judge reads the stipulation saying that Casey got a tattoo on July 2nd, saying “Bella Vita”, and this phrase translates from the Italian as “Beautiful Life.”
The state introduces the smell cans.
The State rests.
The judge has the attorneys over for another sidebar,
The judge tells the jury that there are legal arguments that will be lengthy, so the jury can go back to the hotel until 9 am tomorrow, when the proceedings will continue
The judge accepts the defense’s lengthy memorandum. He asks the defense if they want the judge to read their case cites – or if they want to go straight to argument.
The defense says they will go to argument and the judge can then take the argument under advisement. Although this is standard operating procedure for the defense to present an argument for a directed verdict and it is also standard operating procedure for those arguments to be denied by the court, it is interesting to listen to he defense arguments because this is really a kind of “mini closing argument” – it gives a fairly good preview of what the Defense might argue once their own case in chief is concluded. If they make a reasonable argument here, one that a jury might buy – they have a fairly good chance of an acquittal for their client.
Cheney Mason begins his petition for a directed verdict by citing the appropriate Florida Statute, which he reminds the court allows for the defense to do so, when all of the evidence, when viewed in light most favorable to the state, is insufficient to warrant a conviction, At the end of the State’s case, if there are elements that are not proven, or have not been established beyond a reasonable doubt, then it is the court’s obligation to enter a judgment of acquittal,
Mason cites the Serrano case, and says that the ruling (citing Darling)) was that a motion for judgment of acquittal should be granted if a case is based solely or wholly on circumstantial evidence,, if the state fails to present evidence from which the jury could exclude every reasonable hypothesis except that of guilt. Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction of guilt cannot be sustained, unless the evidence is *inconsistent* with any reasonable hypothesis of innocence.
The question of whether evidence fails to exclude all reasonable hypothesis of innocence is for the jury to determine, where there is substantial competent evidence to support that, and the court will not reverse it.
Cox v State allows also that if the state is relying purely on circumstantial evidence, that this evidence must be not only consistent with the defendant’s guilt, but also must be inconsistent with any reasonable hypothesis of innocence.
Mason then reads the rule and instruction that the jury will receive:
“Circumstantial evidence is legal evidence and a crime may be proven by such evidence. A well connected chain of circumstances is as conclusive in proving a crime as is positive or direct evidence. It’s value is dependant upon it’s conclusive nature and tendency.
Circumstantial evidence is governed by the following rules:
1. The circumstances themselves must be proven, beyond a reasonable doubt. (At this point Mason illustrates how this relates to this case by pointing out that Dr G only labeled this a homicide “by the preponderance of the evidence.” which is directly contrary to the law.)
2. The circumstances must be consistent with guilt and be inconsistent with innocence.
3. The circumstances must be of such a conclusive nature and tendency that you are convinced beyond a reasonable doubt of the defendant’s guilt.
If the circumstances are susceptible to two reasonable constructions, one indicating guilt and the other innocence, you must accept the construct indicating innocence,.”
Mason puts forth that the most the State has proven in it’s case is that Casey has a history of untruthfulness with family and friends. And, that this untruthfulness, for whatever reason that Casey felt she had to lie, about Zanny the Nanny, began in 2006. The state has also established by stipulation that the child was dead. But there is no evidence to establish when the child died, (other than in a month long window of possibility), where she died,, how she died, or who , if anyone, was in attendance with her when she died.
Mason also says that he state has failed wholly to rebut the reasonable hypothesis of innocence in that the death was an accidental death, and inappropriate efforts, by those yet unidentified, to cover up the accidental death.
With respect to the first count – 1st Degree Premeditated Murder – The evidence fails to exclude a reasonable hypothesis of innocence. That is,, that there was no premeditation. Even if there was a determination that there was a murder at all. When the element of premeditation is sought to be established by circumstantial evidence, the evidence relied on by the state must be inconsistent with every other reasonable hypothesis. There has been in this case absolutely no evidence of premeditation presented. There has been a stacking of inferences, a stacking of speculation, but no evidence.
Mason cites the Smith case out of Tampa, Florida. This case involved a man accused of murdering his wife by strangulation, wrapping her body in a blanket and chains, and dumping her body off the Gandy Bridge, into Tampa Bay. Despite the fact that the woman was missing for some time, the defendant never reported her missing.
Smith was initially convicted of first degree murder, which was later appealed and subsequently the charge was reduced to second degree murder. The appellate court cited the state’s failure to prove beyond a reasonable doubt that there was premeditation involved. The state had relied on circumstantial evidence in this case to prove premeditation.
Mason says that this is strikingly similar to this case, only in this case there is even less evidence. In the Smith case, the experts could at least point to a cause of death. In this case, none of the experts are able to identify a cause of death. All the court has in this case is the speculation by Dr. G that this was a homicide. And she concludes this because 100% of people report things or something……
[An interesting side note to the Smith case Mason cited is that when the charges were reduced from 1st degree to 2nd degree murder, the sentence was actually *increased*. The original trial judge had given the defendant a life sentence – with the possibility of parole after 25 years. The second judge, who sentenced Smith for the second degree murder, gave him 30 years. The guidelines suggested 12-17 years. The judge said, in sentencing Smith, that he reason he departed from the guidelines was because if the elaborate cover-up initiated by the defendant – lying to her family, lying to her friends, saying that she had left him without warning….the decision to stray from the guidelines in sentencing also went up for appeal]
Mason also cites the Serrano case, another Serrano case (and one that I thought was appealed because of alibi issues…..but….), Mason says that this was also a circumstantial case. Serrano was convicted of the execution of four people (they were all family members…) There was no question of the cause of death of the victims, it was clearly gunshot – the issue was whether or not Serrano was the shooter. (Oh and Mason finally says that this is on appeal because of alibi issues….thank God,,, I thought I was misremembering…) But Mason cites it as another source of the use of the test that “every reasonable hypothesis be excluded.”
Mason says that another element of the 1st degree Premeditated murder charge that has not been met is the “felony murder” allegation. (In order to prove felony murder, the state must prove an underlying felony that the murder was committed in conjunction with – in this case, the state is relying on the underlying charge of aggravated child abuse.) The state, as is sanctioned under the law, has merged these acts into one act. Mason argues that there was no prior abuse of this child whatsoever, no fractures, no broken bones, and all the witnesses who testified for the state that were personal friends of Casey’s, all testified that Casey was a caring, loving, attentive, good mother.
The judge asks Mason about the Lewis case, a case currently pending in the Florida Supreme Court, that seeks to overrule the Brooks case Mason is relying on for his merger argument. Mason says he reconciles these the same way the judge has reconciled every issue in the case for the last 6 weeks – that “The Supreme Court Says” is the final authority, and since the law now upholds Brooks, that is what Mason is relying on.
With regard to count 2 – Aggravated Child Abuse, Mason is relying on Kennedy vs. State dated just last month. This case defines what aggravated child abuse is:
“May be established by circumstances from which one could conclude that a reasonable parent would not engage in the damaging acts towards the child for any valid reason. AND – the primary purpose of the acts was to cause the child unjustifiable pain or injury.
Mason argues that there has been no evidence presented to support this conclusion or this charge. He says that the acts the state is alleging (either chloroform or duct tape, he’s not sure which), are wildly open to interpretation. All of the witnesses who would be in a position to know were asked about torture, inappropriate disciple – any acts at all that a reasonable parent would not take – all of the witnesses denied any such actions ever happened.
In the absence of evidence that is proven beyond a reasonable doubt, hat the primary purpose of the act was not to cover up or to conceal, but was to cause unjustifiable pain or injury, the charge of aggravated child abuse must be adjudicated as not guilty,
With regards to count three – aggravated manslaughter of a child – the state is required to prove beyond a reasonable doubt three elements:
1. That Caylee Marie Anthony is dead (Mason concedes that this has been proven.)
2. That the death of Caylee Marie Anthony was caused by the intentional acts or culpable negligence of Casey Marie Anthony. (Mason says this is not proven)
3. That Caylee Marie Anthony was under 18 (proven -and it is the age that shifts the charge from regular manslaughter to aggravated.)
Mason says that it is his (our) position that what has been presented to the court and to the jury is that the mere presence of duct tape on or near the remains , which is not dispositive of any intentional act, and furnishes nothing stronger than a suspicion. There has been no evidence of culpable negligence on the part of the defendant, which is defined as “a course of conduct showing reckless disregard for human life or for the safety of persons exposed to its dangerous effects., or such a want of care as to raise the presumption of a conscious indifference to consequences or which shows such wantonness and recklessness or a grossly careless disregard for the safety and welfare of the public; or such an indifference to the rights of others as is an equivalent to an intentional violation of such rights.
This is the standard jury instruction for aggravated manslaughter, And Mason says there has been no evidence whatsoever that reaches this standard of negligence. None.. No negligence that caused this child’s death.
As to counts 4, 5 & 6 (Lying to a Law Enforcement Official), Mason says that he is not going to belabor these points. (She’s guilty…) But Mason does mention that he could find no appellate court cases citing these charges,.
Mason does charge materiality – basically that the lies told have to be material to the case. It really wasn’t material *where* Casey worked, so she shouldn’t be charged with lying with regards to where she was employed. This materiality is in the same vein as Perjury – you can’t be charged with perjury if you get on the stand as a witness in a case and lie about your age – unless your age is somehow relevant to the issues in the case . Mason is saying since Casey’s employment was not material to the issues in the case – that she can’t legally be charged with “Bearing false witness” about her employment. It’s an interesting argument.
The judge doesn’t say that Mason’s arguments have no merit – but he does say that that are a little “late in the day”. Which is probably true. You don’t put charges in front of a jury and *then* argue to the judge, after the state has presented their evidence regarding the charges, that the charges have no legal merit. That’s something for pre-trial motions and arguments.
Mason says that motions were filed regarding these charges before he came on board – but it sounds like those motions were to suppress the defendant’s statements all together. Maybe not the “materiality” of the statements themselves. Materiality is a better position.
Mason says that he anticipates that the judge will give the jury the standard instruction given when the state is relying on statements made by the defendant themselves. This instruction says that if the jury believes that any statements made by the defendant *involuntarily* they are to disregard those statements, Which is silly. Anyone who heard the taped conversations between Melich and Casey were involuntarily given is crazy. Melich repeats throughout the statements that she is there voluntarily, to help, to aid in finding her daughter. The bitch wasn’t water boarded or anything,
Mason also argues that Casey was never read her rights while giving statements to the police. In order for this to be a valid issue, the judge would have to disbelieve the testimony of Melich when he said that Casey was simply the mother of a missing child when those interviews were conducted,, not a suspect.
Manson then cites all the case law he is relying on in his argument. Baugh and Reynolds, dealing with circumstantial evidence and the special standards the state is held to when dealing solely with circumstantial evidence,
Ballard is a case that questions hair evidence,. But this case concerns a bloody scene and unquestionable homicide – not mere speculation of homicide as in this case, says Mason.
Cox vs. Florida is a 1989 case that was reversed by the FL Supreme court, after the state relied solely on circumstantial evidence. And this case had hair, blood and boot prints,
Randall vs. State – a death penalty case reversed to acquittal because the state did not prove premeditation. (this case only applies to cases where there is no underlying felony. There is an underlying felony here – I don’t know why Mason is citing it,.)
Mason argues that unlike the Serrano case, where there was a history of bad blood between his parties, in this case there is nothing to show that Casey was anything but a s loving mother. There is no confession, there is nothing but circumstantial evidence that the state is trying to expand into proof.
Mason expounds on this with the example from yesterday of the heart shaped sticker, Mason says that the state finds a piece of cardboard with a heart emblem on it – which was unlike anything at all seen in this case, and all of a sudden, this piece of cardboard is important. Only because one FBI agent says that she saw the outline of a heart on a piece of duct tape, But when she went to photograph it – “Poof!” it’s gone.
Judge Perry looks bored. Mason has been through about a dozen case cites. None of them, so far, have been on point , as far as I can see. But, then again he keeps referring to this case as one with a reasonable alternative hypothesis being accidental drowning, and so far, there has been no evidence of this besides opening statements – which isn’t evidence. No other witness has even hinted at a drowning,.
Mason continues – the duct tape in this case happened to “slip” to the mouth area (slip from where – the shelf in the garage?) and the only one shown to have custody and control of the duct tape is George.
Before Mason gets to the cites he received from the state – the judge asks him about his mentions of “accidental death”. The judge asks what accidental death mentions there are in the recorded testimony (exactly what I wondered – the defense can’t argue “reasonable alternative hypothesis” if there’s been no evidence or testimony of such a thing – and all these cases he is citing are then off point.).
Mason confesses that “as of this point” there is no record of accidental death. (So how he thinks he can argue that this is a reasonable alternative is beyond me….) Mason contends that it’s *still* a reasonable hypothesis. (it’s not) and the judge just says “OK” and Mason continues, The judge is just humoring him – he’s made up his mind at this point and unless Mason comes up with something *really* good and *absolutely* on point, his motion won’t even be read, let alone considered.
Mason says that as to the cases the state is citing in counter to the directed verdict, that he bets there is no question as to the manner and cause of death, like there is in this case. Which is silly, lots of cases have stood up on appeal when the cause of death is unknown,. Anyone remember Scott Peterson? How was Lacey killed? Anyone know for sure? And where is Scott Peterson right now?
Mason goes through the state’s cites – yelling out the known cause of death in each one, and listing the physical and direct evidence. I guess he forgets about the physical evidence in this case. I guess, according to Mason, as long as you kill someone and hide their body long enough so that a cause of death can’t be determined, well, you get a free murder!
Mason tells the judge that he’s been trying murder cases for 40 years, and in this case, none of the elements that are necessary for establishing guilt have been presented. All this case relies on is speculation, probably’s and maybe’s. Every one of the expert witnesses relied on “might have been”:, “could have been” and “may have been” in their testimony.
Mason says there is no evidence to exclude the reasonable hypothesis that there was no murder at all., that there was no premeditation, there is no history to suggest culpable negligence, no history to establish basis for aggravated abuse, so counts 1, 2, and 3 are ripe for and screaming loudly and demanding judgments of acquittal.
Mason is done.
Linda Drane Burdick gets up to argue against the directed verdict for the state. She really doesn’t need to do this. Mason hasn’t proven anything,
Burdick starts with the judge’s words from yesterday “The Law is the Law.” Burdick points out that what Mr. Mason did was not cite law, but cite facts and evidence from other cases in an effort, as he said, to compare them to the unique circumstances in this case.
Burdick says that the cases she cited were not to point out similarities in circumstances, but to point out what the court and the defense team already knows – that at this stage of the case, any inferences that are to be drawn from the evidence are to be drawn in favor of the State of Florida.
The reason Serrano was included was for the proposition under the law that the State is not required to rebut conclusively every possible variation of events that could be inferred from the evidence,. But only to introduce competent evidence inconsistent with the defense’s theory of events.
In the Serrano case, the defendant’s theory of innocence was an alibi. The state presented ample evidence to prove that the defendant’s alibi was lacking.
In this case, the record evidence of defense,, in the form of Miss Anthony’s statements to law enforcement, family and friends, was that an individual named Zenaida Gonzalez kidnapped her child,. At that point, she had no contact with the child and didn’t know what happened to the child,. The evidence in this case has conclusively rebutted that “hypothesis” of innocence.,
The suggestion in opening statement that there was some sort of accidental theory to be propounded at some juncture is exactly what Serrano is designed to avoid. This is a possible variation of events, that the state does not have to conclusively rebut. However, if the court accepts that the argument or event he cross examination of some of the witnesses establishes that accident is some sort of possibility, in this case, Dr. G has stated unequivocally that this was not an accident. The suggested witness to this accident and it’s aftermath, George Anthony, has conclusively rebutted this hypothesis,.
Burdick cites Jackson vs. State- – In that case, the defense challenged that the state did not prove that the victim died as a result of the criminal agency of another, The ME in that case testified that he could not perform a routine autopsy because of the state of the remains, but that he examined the remaining tissue and bones, and determined that the manner and cause of death was homicidal violence of undetermined ideology, which is almost identical to the words of Dr G in this case. There were a multitude of possibilities in the cited case, “hypothesis of innocence” propounded by the defense all of which were rebutted by the ME, who stressed that his opinion was based on his considerable experience as a medical examiner, as well as the characteristics of the gravesite, information he learned about the victim, and common sense.
The opinion stated that the weight to put on that testimony is to be determined by the jury.
It is the state’s opinion in this case that a reasonable jury that Caylee Marie Anthony died as the result of the application of three pieces of duct tape to her nose and mouth. That a reasonable jury could conclude that Caylee died as a result of poisoning, by chloroform, that a reasonable jury could conclude that Caylee died as a a combination of the two. A reasonable jury could conclude, as a result of the relationships of the parties in this case, specifically Cindy and Casey, could provide or did provide, a motive for Casey to eliminate the child. A reasonable jury could conclude that Casey began preparations for the elimination of the child as early as March, 2008 when she conducted computer searches for “how to make chloroform” and other means of weapons and creating injury.
The Jackson case goes on to suggest that he state does not need to provide the exact means of death, or the location of the murder. This relied on Crane vs. State – a case which was affirmed even though a location o f murder – and not even a body – was ever found.
The only real issue, Burdick says, relating to acquittal, is the case the defense brought up in Brooks vs. State, (This is the merger issue – the combining and reliance upon the two charges to prove felony murder.) Florida has a statute that says when there is an underlying charge of aggravated child abuse, and it’s *more than one act*, that this is considered *aggravated* child abuse, and can be charged as felony murder by “merging” the two cases together. There are cases in the Florida Supreme Court right now challenging this statute. One case is challenging it based on the “more than one act” aspect. This case is saying that the “aggravated child abuse” can only be for more than one act and is challenging a case based on a single act of child abuse. Another case is challenging Brooks based on the section that applies the merger to “:caregivers only”. There is yet another case that argues that the legislation meant only to prosecute cases of torture, caging and……one other thing I can’t remember off the top of my head…..as “mergable underlying charges” for felony murder.
So Burdick does well to address this issue with the judge.
She cites Dorsey, where there was a single stab wound, and how this case was ultimately considered a single act, since it was only one stab wound, and Brooks, the case that first challenged the statute, which considered “shaking” a multiple act. She also cites Lewis, who was convicted of drowning her daughter by holding her head under water in a swimming pool. (BTW I don’t believe this woman killed her daughter – but that’s another case and another blog entry…) She also cites Sturdivant, which conflicts with the case of Lewis on this issue. But now there is an argument over the two cases asking whether the judge’s remarks were dicta (editorializing) or actual legal statute that needs to be relied on.
Burdick has attached for the judge the current status of both cases, Lewis is on hold awaiting the decision on Sturdivant, deciding whether or not that decision was based on fact or dicta.
Lim vs. State is another case that cites Brooks, but the multiple events surrounding the death of the victim make it not a question that Brooks would address.
Rosa vs.,State found that multiple holds or grips when strangling a victim constituted more than one instance of child abuse.
Burdick says that it is therefore the state’s argument in this case that since a reasonable jury could conclude that Caylee’s death was caused by the application of multiple pieces of duct tape, which obstructed her airway and her mouth and her nose, and this would not constitute a single act of abuse, and therefore the aggravated child abuse does not merge into the felony homicide, and does not preclude the state from the charge of felony murder. Especially since there could also be an argument made that Caylee was also poisoned in conjunction with the duct tape.
As to the other issue – that of premeditation – a reasonable jury could conclude that based on the computer searches and the ultimate similarities in the way the child died to those computer searches, that there was premeditation in the act. There is no set time that must pass to prove premeditation., When Miss Anthony placed duct tape on the child’s mouth, not one application, not two applications, but three, that sufficient time had passed for her to know the nature and the outcome of that act.
Mason Rebuts – Mason wonders if the state thinks they have overcome their burden by talking about poisoning by chloroform. Mason says there was no evidence whatsoever of poisoning by chloroform. Dr. G acknowledged that there were detectable traces of chloroform due to decomposition,. She even sent materials to Dr Goldberger – and they did every test they knew how to do and there was no traces of chloroform found. At all.
The duct tape issue – despite suspicions and arguments, the duct tape was not wound around the child’s head at all. There were 2 pieces found on the skull, and one was found 9 feet away.
It’s only suspicion that the duct tape had anything to do with death – or with Casey. Inference stacked on inference. The only thing we know absolutely about duct tape in this case is that George put some over a valve on a gas can – and here was similar duct tape found on a poster of the missing child – and that was George, as well.
Mason discounts all the cases cited, and concludes that they all had defined causes of death. Not like in this case – where Dr G only opined “probably” it was homicide.
There is no evidence in this case that Casey used duct tape at all – or chloroform, or had anything at all to do with the administration of either to Caylee. It’s forcing, it’s guessing and it’s speculation – and not in this country. (OK – admit it, you knew sooner or later he was going to go patriotic.)
Mason asks the judge to please read the cited cases. The judge says that he spent the weekend and a lot of time reading and researching these cases. And he reviewed the testimony.
After a break, the judge comes back to render his decision.
The judge cites Reynolds in his decision, saying that in a circumstantial case, the court only has to rely on whether or not there is a prima fascia inconsistency in the state’s case. This case also says that “Under the circumstantial evidence standard, where there is inconsistencies between the evidence and the defense’s theory of innocence, that this is a decision that has to be left up to the finder of fact, and a motion for acquittal must be denied.”
He also cites Serrano – the same conclusion stated by Linda Drane Burdick in her argument, that the state is not required to rebut conclusively every single interpretation or possibility the defense comes up with.
Whether a premeditated desire to kill was formed prior to a killing is a question of fact to be determined by the jury in a case of circumstantial evidence. Evidence from which premeditation can be inferred, and includes such matters as the nature of the weapon used, the manner in which the homicide was committed. Where the elements of premeditation are sought to be determined by circumstantial evidence, the circumstantial evidence must be inconsistent with every other reasonable inference.
Those are the principles of law that the court noted in it’s decision and must abide by.
The judge then cites Rosa vs. State. In this case, the defendant was the last person seen with the victim, and the defendant did have some motive. This is the Lisa Berry case. Lisa’s mother, Barbara, had dated the defendant, James Rose for about 9 months. Lisa was 8 years old at the time of her murder. Rose was on parole at the time of the murder.
Rose was found with the victim’s blood on his clothes, he kept changing his statement, and their was hair and fiber evidence. The court concluded that the evidence was sufficient to sustain the verdicts.
The judge also cites Epperly vs. Virginia, a case where the body was never found.
The judge also, for persuasive purposes, cites a Massachusetts case, where the evidence was no stronger tan the circumstantial evidence that the victim was last seen with the defendant.
The last case he reviewed was Zone vs. State of Arkansas. Again, the defendants were the last two people seen with the victim. The court concluded that this was sufficient evidence
The judge then addresses the Brooks case, as well as Lewis, and the felony murder merger issue. The judge says the law is the law. The judge opines that in this case there is more than one act, insomuch as there is duct tape over the nose *and* the mouth, and there is evidence of chloroform, and the child was placed in a trash bag. The judge says each of these is a separate act.
Reviewing the case in the light most favorable to the state, the defense’s motions are hereby denied. These are questions of fact for the jury.