05/11/10 Open Death Penalty Motions Hearing (6 Motions Heard) Lyon and Baez http://www.wftv.com/video/23516373/index.html Part 1 CJP: And would the State please announce their presence for the record please? JA: Jeff Ashton for the State of Florida. CJP: And would the defense? JB: Jose Baez on behalf of the defendant (the video went blank) @ 0:32 CJP: Ok we’re here you have five motions scheduled. One of the issues we need to determine before we conclude the hearing today I think there are about six or seven other death penalty related motions that were not scheduled for today? AL: Correct your honor. CJP: We need to talk about those at the conclusion of this hearing as to whether or not you want to schedule hearings for, on those or whether or not you want to just want the court to rule on those on the (video broke) AL: I have a suggested order of these motions and. CJP: Go ahead Ms. Lyon. @ 1:16 AL: I have one witness to call your honor and the rest will be just oral arguments or so. I am suggesting that I have the witness for be the first one that we hear which is the motion to preclude State’s impermissible, gender biased request for imposition of the death penalty, second on our list, which is actually two motions, the ring motion and then the inadequate appellate review but there intertwined and I want to argue them together if that’s alright. CJP: That’s fine. AL: Third I wanted to argue motion for statement of particulars to provide notice of aggravating circumstances. Fourth a motion for protective order with respect to penalty phase discovery and lastly the seventh motion to preclude death penalty procedures for impermissible prosecutorial motives and that is my scheduled order if that’s alright with the court. CJP: That’s fine Ms. Lyon. AL: Thank you so much. JA: Just to let the court know there will be a discovery issue as witness the defense plans calls to the first motion whatever the court would like to take it up. CJP: Well that’s the first one were going to take up. Mr. Ashton? JA: Yes your honor apparently the defense intends to call witness in hearing by the name of Elizabeth Rapport this has been just listed by the defense as a defense witness. When the defense provided (video broke) if witnesses were going to be called I noticed the witness was mentioned. I e-mailed Ms. Lyons on Wednesday morning to a bring up the fact that this witness was now just witnessed and that we would be objecting to that because we hadn’t had a chance to properly depose and prepare for her testimony and I also suggested that we reschedule (video broke) @ 3:10 On Thursday evening at five nineteen in the evening counsel responded (video broke) @ 3:22 claims that the her work is cited in the memorandum as if that were a placement for it compliant to discovery she then wrote in the afternoon acknowledging that discovery applied and offering to make the witness available Thurs, I’m sorry Friday afternoon two, three or four o’clock I responded that was still not sufficient time for me to look at the witnesses work and to be able to take an intelligent deposition so at this point @ 3:53 the State would object to the testimony of this witness. We don’t know what this witness is going to testify to some …… that has been done ….. and that she is a law professor so we’re not quite certain what factual evidence she could present, but at this point we object based upon the motion to discovery. AL: Originally these motions were set for next month and then the schedule change with your honor coming on the case. As soon as we knew that we call Jeff and made a decision that I was going to call one of the authors who I relied upon in memorandum of law. I do explain her research and the basis of her research and then did provide the State with her cv of Professor Rapport and indicated that we intended to call or at least intended to call in regarding her research to bias gender and death penalty. There I can represent to the court that she done no survey there is no direct evidence having to do with this particular case, but rather that is hope that her testimony might be helpful to the court in thinking about this issue in a more general way. She’s been studying the questions of gender and the death penalty @ 5:15 for twenty years. She’s written many articles most are which are cited in the memorandum of law that the State has had for seven or eight weeks I’m not sure with exactly of how long and I did indicate that that was the case. Upon looking at your discovery rules your honor I have to confess I have to look at them all the time because there’re very different and it appears that the prosecution has the ability to categorize witnesses as a, b or c witnesses but the defense does not. If we did Professor Rapport would probably be a c category witness as meant that she has something to say regarding this motion @ 5:56 but we never be called at trial. She has nothing to say about that particular defense in the defense of Casey Anthony and it might be helpful to this court in understanding the research that they’ve done regarding gender bias and the death penalty. She is the leading scholar in the country on this subject and it was our thought that she would be helpful to the court and that this court is interested in keeping expeditiously on all these motions which have been pending for sometime, some have been since last November regarding the death penalty so this spring that I thought it be over with and not particularly sure and some and a few that got filed a few weeks and in regard to that reason I would suggest that there the State is not at a disadvantage, the State adversely a category for a week. She is not going to testify for particulars in Casey Anthony’s case but rather not for what her research has shown in the United States for the past twenty years regarding gender and the death penalty. JA: If I could briefly we never received a cd I have the e-mails right in front of me they don’t mention a cd and the only article of this witnesses writing in the motion is one, is only one not several and it’s the one I was not able to get online. I did get three older articles online trying to prepare for this. The one that is cited I did not. @ 7:21 I also now that I know what she is going to be talking about we’ll have further objections to testifying at all because the issue for this motion is that this prosecution was based upon gender bias. What a law professor opinions about national trends in death penalty have no relevance to the question to whether this prosecution is gender biased all it would do is present a political perspective is not appropriate for this motion. @ 7:53 CJP: Ok any thing else folks? AL: Your honor recently, first of all we did provide the cd I don’t know what happened in the transition but I do have copies right here so. CJP: Ok. AL: Number one we recently decided to call her. CJP: Ms. Lyon let me ask you this. Where’s the professor from? AL: She’s from New Mexico your honor. CJP: And she traveled here from New Mexico I take it. AL: She did. CJP: Ok thank you. This is what I am going to do. I’m going to admit her to testify if the State feels after direct testimony that they would like to reserve her cross examination then what we will do is let them reserve their right to cross examine her. We can have her appear again for cross examination by video conference rather than have her transport all the way back here and then I will give the State if they feel after they hear the initial testimony if they want to reserve the cross examination I will give them approximately thirty days to do that and then we will reschedule this for a conclusion but we are going to proceed at this time. You may call your witness Ms. Lyon. @ 9:03 AL: I call Elizabeth Rapport. @ 9:40 Professor you should try to lean forward so you’re in the microphone ok? ER: Ok can you hear me? AL: I think so. Would you state your name for the record please? ER: Elizabeth Rapport. AL: And can spell your last name for the benefit of the court. ER: R-A-P-P-OR-T. AL: And what is your current job title? ER: I’m a professor of law at the University of New Mexico, School of Law. AL: And can you please describe your educational back ground for the court? ER: Yes I went to the city College of New York for my BA I have a PHD from Case Western Reserve and a law degree from Harvard. AL: And when did you get your law degree? ER: In eighty seven. AL: Alright and could you describe briefly your professional experience since getting your law degree in nineteen eighty seven? ER: Yes I taught at Duke University in Public Policy School for several years right after getting my degree after clerking at the North Carolina Supreme Court and in nineteen ninety five I took my present position at The University of New Mexico, School of Law. AL: And in your tenure are you a full professor there? ER: Yes I am. AL: Ok and you been involved in any capacity within your own State regarding death penalty work? Have you ever done any case for New Mexico or things like that? ER: I was a member of the legislative committee studying capital; punishment in the State for several years. AL: Ok. You’re not currently a member there though? ER: I am not currently a member. The committee concluded its work. The counsel completed its work. AL: Your honor may I approach the witness? CJP: You may. AL: Thank you. @ 11:41 I want to show you an article (can’t hear) ER: Yes it is. AL: And did that reflect your educational back ground up to September? ER: Yes it does. AL: And we would like to submit this into evidence. CJP: Any objections from the State? JA: Other than discovery issue that the court ruled on. CJP: Ok. Objection shall be over ruled and it will be received in evidence as defense exhibit number what madam clerk? Clerk: Number one. CJP: Ok. Thank you. AL: Thank you judge. May I approach your honor? CJP: Yes. AL: Thank you. Professor Rapport can you tell us what the focus of your or whatever important focus of your professional work has been late, of your research? ER: Well for as for perhaps twenty years I’ve been among other things looking at the question of gender in capital punishment. My early research was on the question whether woman are different in the capital punish system. I have subsequently written on a number of other questions looking at both men and women who have been charged capitally or have been convicted of a capital offensives involving family kinds of intimate homicide I’ve written on the question of executive clemency for person who have been convicted of capital crimes and sentenced to die and I have also written on the question of mothers who kill their children and have been capitally convicted and sentenced at either sentenced to die or not sentenced to die. AL: And could you approximate for the court hoe many scholarly articles you’ve written in these areas? Just an approximation. ER: I wouldn’t be approximate but I would say certainly four or five. @ 13:56 AL: Ok and can you talk a little but about the kinds of sources that you use in your scholarly work? ER: Yes. I use reported cases in particular I believe a direct appeal when there has been one as of and I also recently provided extensively on newspaper sources. Certainly in my earlier work which involves cases from nineteen thirty to the early sixties before many of these cases even had direct appeals was a very good source and I’ve relied on a for both facts and newspapers that is in much more recent cases of both for fact and for the sort of background on how cases work were received in media. AL: And just for the benefit of the court how many hours would you approximate it takes to do a research for a scholarly piece? ER: Kind of work I do takes many hours and if your looking at hundreds of cases or dozens of cases and your looking at all of these the reported cases in law as well as media sources and the looking at the social sides it is quite time consuming. It would difficult to say exactly how but it could certainly take many months to produce an article of this nature. AL: And have you ever testified before in a court? ER: No. AL: Ok so this is the first time? ER: First time. AL: Ok. I would like to talk with you a little bit now about some of the work that you’ve done. The actual work that you’ve done in regarding gender and the death penalty, in your research what have you discovered about media attention given to cases of child homicide where the accused is a parent or a parental figure? JA: Objection relevance this case has been in a set of circumstances counsel’s motion accuses the State of specific gender bias in this individual case. This witnesses opinion as to anything other than this case is irrelevant would also objection to her mentioning her opinion she does not qualify as an expert. AL: Your honor I haven’t asked the question. CJP: Objection will be over ruled at this point I’m going to grant them some latitude. AL: Ok I forgot to ask your honor if she could be declared an expert in the area of gender and the death penalty. I skipped over the question I outlined. JA: I object the on the rules of evidence expert testimony is only admissible if it is offered to be a: to try the facts in this case in court in understanding evidence presented to it. No evidence has been presented to this court. So there is nothing for the expert to eliminate for your honor. But if this witness is being offered for is just too simply take the stand and give her pre-digestive opinions they have nothing to do with this case. There is nothing that this court needs an expert opinion to just an understanding because nothing has been presented. CJP: I’m going to except the witness as an expert in this area tendered by the defense death is somewhat different hopefully the defense will get to the specifics dealing with this particular case but they’re are aloud some leeway to lay out a background. Objection over ruled you may proceed. AL: Thank you your honor. I’ll ask the question again professor in your research what have you discovered about media attention given to cases of homicide when the accused is a parent or a parental figure? ER: Well what I have discovered and what is treated my most recent article on this subject is that when the mother, when the accused is a mother and in particular a white middle class mother the press coverage is far more extensive then it would be in other @ 18:45 kinds of configurations of relationships of the accused to the victim. AL: Why in your opinion do these cases receive so much more attention? JA: Objection your honor that is outside of the scope for her proper expertise which is legal aspects of gender in capital punishment she is now being given apparently psychological explanations as to motivations of various members of the media. I object. @ 19:13 CJP: Objection will be overruled. ER: Would you repeat the question? AL: I sure will. Why in your opinion do these cases receive so much attention? ER: Well my over all conclusion is that there is a great deal of interest, a great deal anxiety, a great deal of titillation in the public, in the press among press and media people on the subject mothers and the behavior or conduct of women who are mothers. Both their conduct with respect to their children alleged to have been killed by them and in some cases admittedly to have been helping by them and other cases that proven they have killed by their mothers. There’s a great deal of interest in the conduct of these women both in respect to their mothering and other aspects of their lives that are not directly related to children @ 20:21 and that this interest is overwhelming when you compare it to the interest of other people who might be alleged to have killed their, to have killed children. AL: And when you say they pay attention to other aspects of the character of the accused or convicted mother could you give some examples of what you mean to the judge that you found in your research. ER: May I refer to other cases as an examples? AL: Sure if they’re part of your research. ER: Well I. JA: Your honor I would object to her referring to cases that really don’t relate to this case. CJP: Overruled. Mr. Ashton I’m going to give them some latitude. JA: I understand that you are I just wanted to state my objection to understand for the record. CJP: Objection overruled. ER: I see for example in the Texas case of Darley Routier, R-O-U-T-I-E-R in Texas for example a case that got a great deal of publicity in Texas I studied a group of Texas cases that the press was enormously interested. The press and other media in how short her skirts were and whether she had a tattoo, piercing in the discovery of the fact that she went out to see male strippers with her girlfriends issues that didn’t relate at all to whether she killed her son or how, or even how she took care of her sons were discussed in hundreds pieces and that would be an example of the interest in the woman @ 22:08 and her be, and her conduct quite apart from any issue whether she actually killed the children or what her disposition or character was even as a mother. AL: So that for example if a prosecutor would have referred to a defendant as being scantly clad would that fit in with this. ER: Yes it would scantly clad would be a good example. AL: And in your research have you observed that prosecutors are more likely or less likely to seek a severer sentence in child murder cases where there is great public interest. JA: Objection that is completely utterly outside the witness expertise. It is just completely outside the witness expertise. CJP: Reply from the defense. @ 23:00 AL: It relates to the research that she’s done in talking to prosecutors that is part of her research included interviewing prosecutors and asking them how why they made the decisions they did in particular cases and with vary cases your honor so I guess I could ask her the research question first and then ask her the conclusion I. JA: She never indicated speaking to any prosecutors. She indicated that she read those opinions and through media accounts. There is no reference that she has spoken to prosecutors. At this point I will sustain it. Continue. CJP: Objection sustained you probably need to ask her the source of that information so. AL: Ok I will do it the other way your honor. @ 23:40 Sure. Ms. Rapport in before I ask you a question regarding prosecutorial response to this sort of media attention can you tell the judge in addition to law reports and media have you ever interviewed prosecutorial prosecutors or prosecutorial agents regarding their decision making? ER: Yes I have but I have not done it as extensively. I have done it on a couple of occasions in terms of material that was subsequently cited and used in my articles. I have done some a lot more generally as background right, but I would not claim to be a an authority on prosecutorial practice in a deeper way @ 24:36 AL: Alright. ER: But I have certainly have talked to prosecutors. I’ve certainly read in newspaper accounts of more generally comments on prosecutors on why they do what they do. AL: And do you feel @ 24:55 that you can opine. I know that you opined in your article, but can you feel that you can opine here in court. Do you feel comfortable opining as to whether prosecutors that you have interviewed or read remarks that they have published some place are affected by these, for lack of a better word, gender accounts or media attention to the gender of the defendant in what sentence they seek? ER: Yes, I think I can. JA: If I might. ER: Please. JA: Speaking to a couple of prosecutors and reading comments in a few articles are not a sufficient basis for anyone to give an opinion that generalizes what prosecutors do. I believe this is beyond the courts very liberal allowance of testimony @ 25:51 in this case and I would submit inappropriate. CJP: Objection overruled. AL: You can answer the question. ER: Yeah let me say that, myself and other researchers when looking at gender in capital punishment are always faced with the fact that these cases are very rare. There are not many of these cases so when you need to qualify if you’re in my position with any thing you say because the number of cases is small right. So I can answer any questions but it may, will have to be qualified by the small number of cases in the category of relevant cases ok. So if you will repeat the question. AL: I’ll repeat the question sure. In your research have you observed that prosecutors are more likely or less likely to seek sever sentences in child murder cases where there is great public interest? ER: I would say that in any case where there is a great deal of public interest, for example: the prosecutor in the Andrea Yates case. JA: Objection sorry I’m not sure that is a response for the question to be specific. CJP: Sustained. JA: Thank you. AL: Let me ask the question again. @ 27:19 ER: Ok. AL: The question is, ave you observed that the prosecutors are more likely or less likely to seek a severe sentence if there is intense media interest? ER: I would say more likely yes, definitely more likely. AL: Alright In your scholarship you discuss what you call the good mother defense. ER: Right. AL: Can you explain to the court what that is? ER: Yes I can. The good mother defense which is my term is not a formal defense what it is a strong strategy which I think is reflected the trying of cases at the guilt innocence phase as well as the punishment phase for both it is a strategy which you can see operating in the defense and it’s a strategy which is understood by prosecutors that if a woman is accused of murdering her child it will be extremely important for the defense to establish that she was a good mother. The juries and courts as well as the general public will be scrutinizing to whether she was a good mother and they will be sympathetic if they conclude that she’s a good mother and they will be highly antagonistic conclude if she wasn’t and hat there’s a pronounced disposition for the investigation whether she is a good mother to bleed into whether she was a good woman. A good woman in the sense of conventional wife right @ 29:08 a woman who is not scantily clad or going out at night or sleeping with other men whether or in any way disreputable in the conventional sense right and that this question although not relevant to whether a particular child was killed by a particular woman tends to get a great deal of media attention a great deal of court attention and lead to an adverse consequence for the woman if she is labeled not a good mother ok. http://www.wftv.com/video/23516985/index.html Part 2 AL: So by good mother you don’t mean whether she cared well for her child but rather whether. JA: Objection leading. CJP: Sustained rephrase the question. AL: Sure your honor. When you use the phrase good mother do you mean someone who is good and nurturing has a happy healthy child or do you mean someone who fits into society’s description of what a woman is supposed to do? ER: Yeah I would say that the question of whether the accused is a good mother in the sense of taking good care of the child is the child well nourished well tended secure is highly relevant but there is a drift away from that whether she was a active sexually you know outside of marriage how she dressed how she spent her time issues that have nothing to do with whether the child was well cared for. AL: Ok based on the research that you’ve done do you have an opinion as whether as to whether the prosecutor would have greater success in seeking and getting the death penalty if a woman charged with killing her child fell outside what you have defined as a good mother? That is was socially deviant for lack of a better phrase. ER: Yes I think that any mother is in trouble, now the deviant mother maybe a perfectly good mother you know just as a father who has affairs or gambles maybe a perfectly good father in terms of providing for his family in terms of showing up to little league games but if we’re talking @ 1:53 about a woman defendant and if that woman defendant was deviant from whatever the culture is yes she’s likely to get tagged for and it would be very difficult for the defense successfully yes I think that is right. AL: Are there other, is there other research discussion with other professors who have looked at this phenomenon of the social deviance again for the lack of a better phrase in other context other than criminal of law? ER: If we get outside of criminal law perhaps the work of Carol Sanger at Columbia would be relevant to the way in which women’s presentation or deviance might be important. There is certainly other work in criminal law that shows similar kinds of social interest control. JA: Objection witness is bolstering her own testimony with outside sources. ER: Ok. CJP: Sustained. AL: Is there any research or scholarship which contradict the observations that you have made this morning? ER: Well at the risk of appearing swell headed I can’t think of anything that would be directly on point and contradictory. AL: Ok @ 3:26 your honor those are all the questions that I have for Professor Rapport I don’t know if the prosecution wants to cross examine or reserve. CJP: Mr. Ashton do you want to proceed with your cross examination or do you want to reserve. JA: No I’ll go ahead. @ 3:41 CJP: You may proceed. JA: What is your background in child psychology? ER: I have no background in any forms of psychology. JA: What is your background in child and adolescent development? What is your background in child and adolescent development? ER: Child and adolescent development I have no background I have no degrees in psychology of any form. JA: You have no training in those areas whatsoever? ER: None whatsoever. JA: Are you a mother yourself? ER: Yes. JA: Now you have, your comments have been replete with value judgments about what makes a good mother. Would you agree with that? ER: Value judgments yes I said that a good mother or parent takes care of the physical and psychological needs of a child. I guess that is a value judgment. JA: But you have no background in what psychological needs are wouldn’t you agree? ER: Would you clarify with what you mean as background please? JA: No educational background, no training, no expertise in. ER: Right I have no degrees in psychology and make no claim to be a psychologist. JA: So when you make statements that a woman that, when you make statements that the fact that society may believe that a woman who parties, who is promiscuous, who hangs around with male strippers, who neglects their child for socials reasons when you say that those facts are irrelevant to whether she is a good mother or not. AL: Your honor I’m sorry I just want to object to the compound nature of the question because there was nothing about neglecting her children and any answers that she gave she separated all those things with me and there were like four or five ideas. JA: I’ll rephrase the question. @ 5:43 CJP: Ok. JA: So is it your testimony that a woman who chooses to on a regular basis party with male strippers is not is irrelevant to being a good mother? Is that your testimony? ER: Well I think I would have to say that it was. Now if a woman spent @ 6:12 her free time and I don’t believe I suggested that any body was spending all their time in this way I’ve mentioned one illustration of that. If a woman or a man leads a life style which perhaps you or I would reject but is there a hundred percent of the time in their parental role for their children and does everything that you or I might consider more admirable in other aspects of their life I’m not sure that either you or I would be able to conclude that they’re a bad parent I mean if you go to a PTA. JA: But. ER: To PTA meetings and you feed your child and you make sure they have everything that the children of the conventional have but you lead an unconventional life style I think you can be a very good parent. JA: But you said that those were quote un quote irrelevant to the determination which means that no matter how much it is it is irrelevant it doesn’t matter at all. Isn’t that what you said? AL: Objection your honor that was not her testimony. JA: I believe I heard her use the word irrelevant judge with all do respect. CJP: Overruled. JA: Isn’t that what you said. ER: Yeah I think I said it was used by the press and some prosecutors some of the time. I’m certainly not saying all the prosecutors all the time in these cases. JA: But that is not what I asked you. ER: In something to inflame and mislead people who were so interested in whether the mother wore short skirts that the weren’t thinking clearly about whether she actually killed the child or whether some aggravating factor that would make her eligible for the death penalty obtained in the case that is my testimony. JA: So you would agree it’s relevant? ER: I beg pardon. JA: So you would agree that those facts are relevant? ER: They are relevant based on my testimony. JA: But that’s not what I asked you. ER: Relevance whether. CJP: Just a second folks. JA: Your honor. CJP: Mr. Ashton listen up let the witness finish answering the question. JA: I will your honor. CJP: Ok. JA: When she is responsive. CJP: We don’t have a jury in here. If she gets to be overly unresponsive then will deal with it. JA: Go ahead. CJP: Don’t get. JA: Sorry judge. CJP: Wait. ER: Ok now what was the question? CJP: Just a second. Are all minds clear? JA: Yes sir. CJP: Ok. Now did you finish answering the question professor? ER: Yes I believe I have my point is that the a. CJP: Ok thank you next question. JA: Thank you. So acknowledging that those facts maybe relevant your point is that sometimes they are over blown over emphasized is that correct? ER: It cannot be relevant to whether an accused kills the victim that she wears short skirts. JA: Ma’am. ER: Then it is not relevant. JA: Did I ask you anything about short skirts? ER: Well you talked about partying and male strippers. The evidence that a woman went to see a male stripper performance is not relevant either to whether she killed her child or whether the case of homicide is sufficiently aggravated to deserve a jury concluding that she deserves the death penalty you see. JA: And that is your. ER: And that in sense it is not relevant. JA: And that is. ER: It is not legally relevant to the fact of guilt or aggravation. JA: You done. ER: Yes. JA: Thank you. Now wouldn’t you agree that is the job of the court to decide what is relevant in any particular case? ER: Yes. JA: And is it true if not in your research that you found that courts have found certain of those life style issues relevant in certain cases? @ 10:06 Wouldn’t you agree? ER: Could you be more precise in what you mean by that? JA: How many cases of this type have you read reported opinions? ER: I beg pardon. JA: How many cases, how many reported cases appellate opinions of this type of case have you read? ER: I have read all of the cases of women charged capitally or certainly convicted capitally and there’re very few. There aren’t a whole lot of them. JA: In any of those cases has the court deemed these lack of life style issue facts to be relevant and admitted them for the jury to hear? ER: In that sense yes they have, the jury has heard testimony from neighbors who say or police who say they found sex toys in the drawer, in the bedroom drawer of a particular defendant. JA: And in those cases the court found that to be relevant? @ 11:13 Correct? ER: The court, the court permitted the testimony yes. JA: And you disagree with that by the court with that it is relevant? ER: Well we have to look back and see was it considered relevant to perhaps general character right but it is certainly not a factor in aggravation of a homicide that you use sex toys right. JA: I couldn’t agree with you more. ER: Right. JA: But. ER: Or that you go out and party. JA: Well not as an aggravator couldn’t agree with you more. ER: Alright. JA: But that doesn’t make it irrelevant to the process does it? @ 11:46 ER: I think that question is to general for me to answer. JA: Right I’ll go to some specific one. Do you have any evidence to present to this court to indicate that this prosecution, that Lawson Lamar or due process in this case were influenced by gender bias means making decisions in this case? ER: I certainly do not I am unfamiliar I am not overly familiar with this case I’ve read a few press reports. CJP: Redirect? AL: No thank you your honor. CJP: May the professor be excused? AL: Yes your honor the defense has no more questions. CJP: Thank you can go have a seat you maybe excused. @ 12:28 Any additional witnesses? AL: No your honor, nothing further on this issue. JA: Nothing from the State. CJP: Ok argument? Defense then State. AL: Thank you your honor. @ 13:06 Your honor I know that you are familiar with the motion and the brief in this so I don’t intend to repeat everything that’s in it but there are a few points that I would like to make and of course I am happy to answer any questions that you might have and I don’t think that there is any doubt about the fact that this court has the authority should it choose to exercise it to restrict the State progression in seeking the death penalty where the prosecution has impermissible motives. Which is what’s held in the State versus Conner and you honor and some other rulings that you have made are already indicated that it is the courts duty to protect an individual particularly in the context of a death penalty case and to make sure everything is done appropriately and properly @ 13:55 and I do want to just comment that the question that I asked Professor Rapport regarding scantily clad comes directly from comments that were made by Ms. Drane Burdick yesterday in court when she was attempting to show that photographs of our client some of which were years prior to the incidents involved were some how relevant to this case and to say that this bias isn’t here is to be willfully blind your honor that to not pay attention to all of the press attention, all of the discovery the kind of investigative questions that have been asked by the police in talking to anyone that they could find @ 14:50 that ever dated my client. It is just a part of this case and this case is unusual in another regard which is that the State originally took a position that I will be talking a little bit later on about that they were not going to seek the death penalty and then changed their minds because of some reason that they don’t want to tell us and I know that I don’t need to relate to you your honor that death is different and that it appears that the case here though is death is being sought not because of some terrible criminal history @ 15:29 of the defendant or a long history of abuse of this child which would what one normally sees if you look at the cases that we cited in our memorandum of law you will see that the cases that where a death penalty is sought received and affirmed for a child murder what you have is a long history generally speaking of abuse, neglect, starvation, torture and other unspeakable things that have happened to some children by some parents but that’s not present in this case your honor and what you have is or you have some particularly horrendous form of homicide but you don’t have that in this case either and I would refer and incorporate by reference the motion that we filed to dismiss counts one and two of the indictment and our original motion to preclude death penalty procedures which we discussed in some detail the lack of evidence or fact that there is no proof now there is a interesting mock closing argument that was made during arguments by my colleague, Mr. Ashton but there is no actual proof as to whether this death was even a homicide, whether it was accidental, natural homicide a concealment of an accidental death they don’t have actual evidence of that but seeking death in a circumstance like this your honor where a part of the case admittedly from the prosecution point of view even from the questions that you heard just a few moments ago from Mr. Ashton that you know having sex toys might be relevant somehow as to whether someone should get the death penalty is feeding right into right into some of our gender biases. Now your honor I don’t know how old you are an I’m not making a comment here but I’m old enough that I was practicing law when there were well when there weren’t just any other women doing it. I was the only member of the homicide unit in the public defenders office and the only woman in the city of Chicago who did homicide cases that had brush cut your honor ok it was all long time ago and people said out loud their prejudice I’d walk into court and someone would say you know who’s secretary are you and I don’t know your honor or if you understand what I’m trying to say here but people said things out loud. Now there is codes for things people don’t say you know she’s a, it’s an impolite thing, you know she’s a whore like that but they don’t say that out loud or they do in blogs actually your honor and some of the blogs suggest that I die with her but that’s neither here or there. You know they don’t say that here in court and that is something that might have happened in our history but underneath that is what is going on. We can pretend and be polite and talk about aggravating circumstances and all the rest of that which we have no idea what they are in this case but sexist attitude @ 18:50 still exist. We are not unfortunately post sexist anymore then we are post racial or post prejudice we just aren’t and that is just a fact and the fact that every single second of this young woman’s life has been examined and poured over and reported and exploited is a part of this prosecution. I realize your honor this is a unique motion I am asking your honor to take a look at what traditional gender roles are and how it is that this prosecution and the circumstantial evidence that the subject to some of the motions that your honor heard yesterday with from my colleague, Mr. Mason and Mr. Baez that this kind of evidence hearsay, opinions, gossiping, innuendo all that kind of thing is all over this case and it is all over this case because it’s driving this case and it’s driving the decision to ask for the death penalty. Casey Anthony is I’m going to drawn a literary analogy if your honor wouldn’t mind this is very much like Comes Who’s the Stranger. Perhaps you had to read that in college I know I did and in that book a man doesn’t act right @ 20:26 after the death of his mother and gets punished and convicted of homicide that he had nothing to do with because his behavior was considered socially deviant and that is what this prosecution rests on. On actions that Ms. Anthony didn’t take and the actions that she did upon evidence that party pictures show her scantily clad are some how relevant to whether or not she was a good mother. Whether this child was well taken care of when everybody knows that and all of the evidence that the State has induced is no matter what people have said about her they all say that Caylee was happy and healthy. Women are often tried and punished not only for the crime they’ve committed but also for their degree of non conformity with traditional gender types your honor and we’re as here again incorporated by reference our other motions the evidence in fact is deficient the reliance upon prejudice is enormous. Your honor is aware I know @ 21:40 of the arguments that have previously been made regarding the fact of death qualifying a jury and how conviction prone they’ve become and how they are tend to be more traditional and more conservative in there is a lot of things including whether a woman who has a child out of wed lock is a fit person at all. Over charging is a common trait found on the cases of women found on death row. Yet you do not see the same amount of cases where intrafamilure cases where men on death row after the fact I recognize your honor and I appreciate and I’m sure your honor does to that Professor Rapport says that the sample is small because it has been a smaller number of cases so it is difficult to drawn any statistical or conclusions from that but gender bias provides the State with an impermissible motive your honor in seeking the death penalty in this case because it is their position and had been their position that she behaved in a non appropriate way for a woman and I do want to just call your attention in the memorandum of law to cases where there has been and here in Orange County that they have not repeatedly not sought the death penalty for men who have murdered a child I won’t read those to you they are in the memorandum of law and I know your honor will consider it. Finally your honor I recognize that this is a an unusual motion to have presented to you that generally speaking these sorts of things are not discussed and that this kind of in fact is asking your honor to take a, an unusual and I would characterize it as a brave step if your honor agrees of course you’re the one that makes the decision as to whether or not you agree that this gender bias has something to do with their decision to seek death in this case. @ 23:52 I would only ask your honor that you think about this and I know you will carefully that you look at the law that we have cited and that I believe when you do that that you will draw the conclusion that there is impermissible gender bias in seeking the death penalty in this case and that you will preclude the State from so seeking thank you. CJP: Mr. Ashton. @ 24:14 JA: Ms. Lyons only support for this motion that is specific to this case is Ms. Burdick’s reference yesterday after a question by the court about a photograph as it being a photograph of the defendant scantily clad that is the only reference. As to the same photograph in the defendant’s own motion the defendant’s attorneys described it as a wild drunken possibly bi sexual dance. I think Ms. Burdick should be applauded for her circumspection in the manner which she referenced that photo. As a matter of law the counsel is correct that if the court finds from the evidence that this prosecution based upon and improper motive that is in bad faith that the court can intervene. Bad faith is defined as a reliance upon a constitutionally protected fact and gender would be one of those and if the defense had presented slightest scintilla of evidence in this case that this prosecution that these prosecutors that this State Attorney prosecuted this case or sought the death penalty because the defendant is a woman then the court would be well within it rights to intervene. Now this your honor was not involved in this before but in the last motion we were accused of seeking the death penalty because the defendant wouldn’t except some phantom plea now that was the accusation the first time and later today we’re going to hear that the State’s pursuing the death penalty in this case for financial reasons to bankrupt the defendant. So the defense appears to be speculating on a number of different motives. The only evidence provided in this is the testimony of a law professor that the court permitted. Her testimony I would submit to you comes from a basic bias which is obvious from her testimony. She doesn’t like the fact that our law provides jurors to access the character of individuals in citing the death penalty. @ 26:47 That’s the way the law is whether it is a man or woman that’s the law. Since Ms. Lyons argued from things that aren’t in the record I will do the same. She claims that overcharging is common everyone knows in cases of women killing their children I would argue to the court that in the thirty years I have been in the Ninth Judicial Circuit so far as I or co counsel can recall this is the first case where we have had the type of evidence that has compelled us to allow a jury to decide the issue of penalty in this case. Unfortunately mother’s killing their children are not rare it occurs all more frequently than any of us would like to say. Sometimes fathers kill their children as well that occurs as well. The court from its own experience and I that I think can observe generally when fathers kill their children it is in a form of a non intentional felony murder. Generally aggravated child abuse leading to death the rage kind of killing, generally and to go with the court experience kind find that most of the time when woman kill their children it is more a premeditated act usually accompanied by some significant mental disorder, depression, schizophrenia things of that sort. To have a allegation at this point of course I will always stress of an allegation of a mother premeditating murdering her child in the absence of any particular mental disease or disorder is extremely rare and in fact in my experience the only one we’ve had here. The defense cited two for cases that the State had murders of children by men the death penalty were not sought and we’ve looked at those and there all as I’ve said felony murder cases non intentional murders of children during rage it is usually by boyfriends. I would cite to the court the other have been three cases that myself and Ms. Burdick were involved in @ 29:05 over the last couple of decades in which we have sought the death penalty for men murdering children. Owen Rogers which is CR919916, Mickey Clark which is CR907166 and I believe the other one. Pardon me while I talk to counsel a minute. Juan Santiago and I believe the court was presiding over. To say that we are seeking the death penalty in this case solely because of her gender is not proven before this court and is patently absurd. I would ask the court to deny this motion thank you. AL: You honor my I speak now. CJP: Yes ma’am. @ 29:51 AL: Thank you. When the State changed their minds after they had said they were not going to seek the death penalty and then they changed their minds. The defense wrote a letter to them which is attached to one of our other motions we said what new evidence tell us what is it and we’ve read thousands and thousands of pages of police reports and we, what is it. Never have we received a response in any form and you know I know that this they cited to you in which some cases to seek the death penalty here it would have been helpful of course your honor if they had filed a written response to the motion as we had requested to be done and taken a look at those cases but the State stood here and said to you we are acting in good faith we made this decision for a good reason ok lets put this motion aside for a little while and allow us to take Mr. Ashton’s deposition and Mr. Lamar’s, Lawson Lamar’s deposition and find out exactly what that good reason is what their good faith is why it is that they are saying that they can show this you know premeditated homicide when their own medical examiner cannot determine a cause of death. Let’s get the answer to that question your honor. I believe that we have made a record here that shows there is this bias in the seeking of the death penalty in this case that is related not to the fact only that she is female but the fact that Casey Anthony is female and not behaving the way woman are supposed to in our society. The way that we view that most people view that is appropriately and proper and it’s important that we make those things connected. The prosecution also argued to you that the only thing we had was scantily clad and then he read something from our writing about the possibility of it being bi sexual that is the way that those photographs have been characterized in the press your honor that’s why we said that because that is how the public is looking at it and how our potential jury pool is looking at all of this in order to illustrate to your honor why these things are not relevant. So I wanted to make sure I made that comment and I other than that your honor I would rest on the motion. CJP: The court has reviewed the defenses motion to preclude the State’s Impermissible Gender Bias as opposition of the death penalty along with the memorandum that has been submitted by the defense the court has reviewed State versus Donner which is found at five southern second at five thirty-two. State versus Bloom which is found at four fifty seven southern seconds page two both of those cases coming out of Florida Supreme Court. The court has also reviewed Kenley versus State a May sixth two thousand ten decision of the Florida Supreme Court which is cited at 2010WL1791142 under article two, section three of the Florida Constitution judicial branch of this government is prohibited of interfering with prosecutor’s decision to charge or seek the death penalty. Case law is quite clear is that the court can only do that only in rare instances where there has been documented and proven impermissible motives which may be attributed to the prosecution such as bad faith, race, religion or a desire to prevent the exercise of the defendant’s constitutional rights. The case law is also quite clear that the burden of proof is for the defense to prove that the State made the decision based upon those improper motives i.e. gender bias. The court has also reviewed for instructional purposes the case of McClusky versus Kemp a nineteen eighty-seven decision of the United States Supreme Court authored by Justice Powell where there was a concurrent opinion by Justice Renquist which summed to sense from Justice Bremmer and Marshall dealing with some issues of eighth amendment and fourth amendment issues where there was a study done where a black defendant and killers of a white victim as opposed to other folks were disproportionally given the death penalty. Based upon Donner versus State, Bloom versus State and McKenley versus State the fact that the defense has not met their burden in this case the motion to preclude the death penalty for the impermissible gender bias will be denied. We’ll take a ten minute recess at this time and proceed to the next motion. http://www.wftv.com/video/23517144/index.html Part 3 CJP: You may be seated. Let the record reflect that the defendant is present along with counsel for the defendant, Assistant State Attorneys ok Ms. Lyons you may proceed, Ms. Lyon you may proceed to your next motion. AL: Don’t worry your honor I haven’t got there yet. The next motion that I would like to argue is actually two motions that I’m rolling into one, oops it would help if I had the right file, which is the motion regarding Ring versus Arizona and the inadequate appellate review that goes along with this and I want to start by saying I imagine that your honor might be saying to himself why is she raising this. The Florida Supreme Court has said a lot of times are statute and constitutional. CJP: I’m not wondering you have to raise it Ms. Lyon because if you read ……..AL: Correct. CJP: The door is always open so I understand. AL: The door is open but also your honor there is a specific reason, specific to this case that I think is important for your @ 1:13 honor to consider, considering whether or not in this particular case as applied Ring versus Arizona makes seeking the death penalty improper and let me explain what I mean by that ok and you know just a quick the general principle I know your honor knows is that the United States Supreme Court started in a lot of cases with Aprendy versus New York made the decision that any factual basis that basically up the anti that is made the defendant eligible for a higher sentence had to be something that was found beyond a reasonable doubt by a jury and first in Aprendy then later during Ring versus Arizona statutes that did not allow that outlawed by the Supreme Court and so the question became in Florida given that it’s sort of and I don’t mean to sound kind of the cart before the horse way of doing things here your honor whether in fact that’s the case outlawed statute thus far in Bodisan in many cases what has happened is that there is factual status of the case that have gone to the Florida Supreme Court has to due with some degree obviated the concern and here’s the concern a jury makes a decision that a defendant is guilty of first degree murder they then get to make the recommendation to the court who as to whether or not death is appropriate or in appropriate and they can do so by a majority this is the only State where that’s true you know there are other States with judge override but this is the only one where that’s true and so they could recommend seven to five for life or six six means it is a recommendation for life or etcetera but there is no requirement and no court has held that the jury ever make a finding beyond a reasonable doubt that there is a single aggravating factor in other words they found murder beyond a reasonable doubt but if it’s cold calculated and premeditative or whatever the aggravating factor is that jury never says that all twelve of them found that aggravating factor and attempts by various defense attorneys throughout the years since Ring versus Arizona to ask the court to allow special verdict forms have been rebuffed by the Florida Supreme Court so that there is no way. CJP: I know. I did it in Huggins and Rogers. AL: Ok alright and so your familiar with that but here’s the problem in most of the cases that have gone to the Florida Supreme Court the jury has found that at least one aggravator @ 3:54 in guilt and innocence an armed robbery, a sexual assault, a second homicide one of the aggravating factors is already been found beyond a reasonable doubt in the guilt and innocence phase and as I read your statute there is a requirement that there be at least two aggravating factors because it says factors plural which means more than one but in that context @ 4:16 the Florida Supreme Court has been reluctant despite what they have said and what Justice ….. said. CJP: The statute says one or at least one. AL: And it also says plural but any way I know there is a contradiction in there but be that as it may that there the way that these cases have come to the Florida Supreme Court they have come with a jury finding in guilt or innocence beyond a reasonable doubt this is not a case like that though your honor because there is no accompanying felony there is no second homicide there is no anything that if this jury which by these arguments your honor I am certainly not in the least bit conceding that the State can meet their burden of proof at all assuming that they did for the sake of these arguments there’s nothing that’s going to be found that would be in fact a finding @ 5:10 of an aggravating factor beyond a reasonable doubt by the jury that means that when this goes to the jury they will be in a position to perhaps recommend to your honor by whatever majority and they recommend to you the death penalty without ever having found a single, not one aggravating factor and that your honor cannot be constitutional it cannot be constitutional and there. CJP: What about in this case if they find the defendant guilty of count two? AL: It’s not preciously and aggravating factor I concede that that puts it in one could characterize that I suppose that way but it would not preciously be an aggravating factor is not one of the listed aggravating factors and that is a possibility that’s true but in this particular case as applied this statute cannot with stand constitutional scrutiny. The Florida Supreme Court has basically as far as I as directly asked begged the Florida Legislature to do something about this statute to make it @ 6:29 conform with Ring versus Arizona to require the jury to make a finding beyond a reasonable doubt unanimously of an aggravating factor or factors depending on how you want to read the statute and that has not happened and even if it would happen tomorrow of course it could not apply expose facto to Ms. Anthony any way and so the question that your honor has to struggle with here is whether or not you can allow this to go forward with the State asking for the death penalty and all of that entails when as a matter of law as applied this statute cannot be constitutional. Now I want to be clear your honor that we are not forgoing the argument that the statute is a general matter is not constitutional under Ring versus Arizona and that it’s progeny I just didn’t feel the need to argue that with your honor I wanted to spend time talking about why in this particular case given that the aggravating factors if they can prove any would only come in the penalty phase if that is here because Florida scheme does put the cart before the horse it’s during the sentencing phase that the jury makes the first makes the life or death recommendation and then later your honor reviews that and makes a decision as to whether there are aggravating factors that have been proven or not and what weight to give them and there is just no requirement of enmity it simply falls way outside of what the United States Supreme Court is doing these days it does feel a bit odd that I have to say I feel it hard for myself arguing the motions based on opinions by Justice Scalea whom I seldom agree but these in fact are his opinions and they do relate to of a very dear and strongly held constitutional right that all of us in this country hold dear is a right to a jury trial and to a unanimous finding and that is the reason for the decision of Aprendy and in Ring and that is why at least in this particular fact of this case your honor that I would be asking your honor to hold that the death penalty is unconstitutional generally under Ring for inadequate appellate review because there is no way to know the jury ever found a single aggravating factor and as applied. @ 9:02 CJP: Mr. Ashton. JA: I’ll be very brief, counsel I believe in her motion agreed that the Florida Supreme Court has in general ruled on this issue. She’s argued, she makes an as applied argument to this case and says quote un quote based upon the facts. There are no facts in this case yet the court hasn’t heard any facts the jury hasn’t ruled hasn’t rendered a verdict. I would submit to the court that the as applied argument is pre-mature the court cannot judge this as applied until the court has a verdict from the jury in the guilt phase and only then can the court entertain the as applied argument at this time your honor the motion should be denied. @ 9:49 AL: May I just respond to that? CJP: Yes ma’am. AL: Thank you first I my colleague Mr. Mason reminded me I do believe count two of murder is a count one anyway I think as it would matter here and the State’s argument that is pre-mature may have some appeal to your honor but if it is correct then it’s not pre-mature because all of the things that go along with a death penalty case you know death qualified jurors and all the experts we were talking about last week and all the investigation and the costs to the State and all the rest of that and if we’re right about this and it is our position that we are then this actually is the correct time to make this decision thank you. @ 10:41 CJP: Thank you. This court is bound by the decisions of the Florida Supreme Court, Florida Supreme Court in Bodisan versus Moore found at eight thirty-three southern second six ninety-three a two thousand two decision Florida Supreme Court in King versus Moore which is found at eight thirty-one southern second one four three also a two thousand two decision of the Florida Supreme Court. The history behind those two cases both of those cases had active death warrants. The United States Supreme Court after Ring versus Arizona granted stays of execution to Mr. Lynn Robertson which hailed from a case here in the Ninth Judicial Circuit and King versus Moore granted stays of execution after that the stays lifted the issues were argued as to whether or not Ring versus Arizona applied also the argument with Aprenty versus New Jersey the stays were lifted Florida Supreme Court in puerility opinion with various positions announced basically upheld the constitutionality of the Florida death scheme in subsequent cases have also held the Florida scheme to be constitutional even in view of Ring versus Arizona as to the issue that Florida does not require a unanimous jury recommendation on the issue of death where a simple majority of the cases have been repeatedly held that it meets constitutional muster cited in Whitfield versus State seven o six southern second page one a nineteen ninety seven decision of the Florida Supreme Court and Kromarty versus State eight forty five southern second @ 13:13 forty one a two thousand three decision of the Florida Supreme Court therefore the motion to declare Florida Statute nine twenty one point four one unconstitutional under Ring versus Arizona plus the motion to declare that same statute unconstitutional for inadequate appellate review will be denied based upon prior Supreme Court decisions of Florida Supreme Court. Ms. Lyons does have a point if there’s a verdict comes as to count two to not guilty there maybe some problems there may not be problems but it will present something that will be interesting penalty issue if we get to that stage. Ok your next motion Ms. Lyon. @ 14:20 AL: ……….. JA: The court denying those motions? CJP: Yes both of those are denied. AL: Your honor this is the one and only motion that the State saw fit to file a written response to which I’m sure your honor has and has reviewed that and so rather than and I know you’ve read the motion itself so rather than go through all of the motion I think I would just sort of start mid through the middle kind of and respond to what the State had said in regards to those aggravating. CJP: One thing I have not seen is the State’s response. AL: I did receive one. JA: I e-mailed it to your assistant last week. CJP: Well. JA: Would you like to see mine? CJP: Let me see yours right quickly. AL: Do you want to take a few minutes and read it? CJP: Just let me look at it right quick. AL: Ok. JA: …. CJP: Ok Mr. Ashton. JA: Excuse me. AL: I beg your pardon. CJP: I think Mr. Ashton in your memorandum you had acknowledged Steel versus State and that is for some type of aresta proste in the discovery process but you all get to that Ms. Lyon you may proceed. AL: Thank you your honor that basically is a very good summary judge that there agreed that is in your position to tell us what the aggravating circumstances are. They say you should though because as I could read their response we should be smart enough to figure it out based on our quote un quote much total experience on page three that they shouldn’t have to educate us and they say that on page three also and three that they had given us a mountain of discovery which we can figure that out also on page three and actually it’s that mountainous that’s the problem judge there’s a mountain of discovery and awful lot of what we have discussed in our terms of having to deal with interviews of anybody that ever cross Casey Anthony’s path and many are which frankly close to prurient but they say though that if you agree to order them to tell us well you should also order us to provide them a list of statutory and non statutory litigation factors prior to trial. First thing I want to say is this memorandum I believe they cite a case there is almost no law it’s more like a an oral argument that’s written down judge then a memorandum, but be that as it may @ 18:03 this is not a situation where the State needs a culpable playing field that some how their getting cheated by the fact that we are trying to develop and investigate and come up with mitigating evidence to in the event there is a conviction in this case and they proceed as though we were civil parties should be treated the same. That’s just not the case your honor first of all we should be told what we’re charged with, what we’re facing and what exactly their aggravating factors are and how they intend to prove it. How are earth are we supposed to as a matter of due process do this I mean you know the indictment itself which is the subject of another motion your honor that we’re not doing today but I do want to refer to it which is our motion to dismiss the defective indictment none of those even tell us what their theory is, what their evidence is as to how this homicide happened or when it happened just a month it would have happened and it cites the statute which is legally insufficient in the Florida law and it gives us no notice of circumstances of the offense she is charged and the indictment also indicates has no information what the aggravating factors are and they certainly know judge that the burden is on the prosecution. They have to prove guilt beyond a reasonable doubt if they can and they have to prove an aggravating factor or factors depending on how one wants to read the statute if they can and notice your honor is the gammon of due process it really is how are we supposed to meet @ 19:49 at last count fourteen thousand pages, fourteen thousand of police reports all which by the way are online for everyone to read. Fourteen thousand pages of police reports and mountains of physical evidence going to be subject of other motions things that I charitable call new science and all of us are how are we supposed to discern from that where to spend our time and our limited resources judge. Every lawyer in this case is in the case pro bono. We cannot match the State. We don’t have the FBI and the police and everybody else running around doing things for us. How are we supposed to do that and give our client her sixth amendment right to effective assistance of counsel absent notice and the State made a statement when noticed changed and reverse course regarding the death penalty. They said new circumstances have come to light and we wrote them and we said what new circumstances and they have never responded and your honor they should have to respond. They should tell us what we are looking at with aggravating factors that we’re looking at. The State goes through and says well I can eliminate nine of them and that leaves six they can figure it out from there. Well does that mean all six, one of them, two of them, three of them, which ones and how do they intend to prove that on what basis through what evidence. How on earth are we supposed to meet this mountain of evidence that the State refers to and given the basis of the purging document and we don’t know what the theory of the case is going to be from the prosecutions point of view regarding aggravation? I think that it is particularly important given the fact that the State reversed its course regarding the death penalty in this case there is something specific @ 21:58 that caused them to do so they say I take them at their word. How about your honor in sense of fairness to tell them to please tell us so we can get ready. That’s all we’re asking. Have them tell us. @ 22:17 CJP: Response from the State of Florida. JA: Yes sir. Judge this pretense of ignorance is getting old. Counsel stands before this court and says that she can’t figure out what happened between early December of 2008 and April of 2009 that changed this case. That she can’t figure out from fourteen thousand pages of discovery what was different and when we stand in open court and tell her what’s different she still feigns ignorance. My response goes through the Steel decision to discuss what the purpose of Steel was. Steel was a change in the law prior to Steel the court had routinely held that there was no obligation on the State to provide work product and again legal theories are work product. Work product is protected. Work product is the theory of the lawyers for the party involved. It is their work product that is protected by discovery rules. It is protected by common law. What the defense wants you do is to force us to do is tell them our legal theory about this case. We work in an adversarial system of justice where two lawyers both do their work and justice comes from that. Now the reason I cite Steel was because what Steel said was well we’re going to depart from our long held position that this is not necessary or appropriate and what the court gave as a reason was because the list of aggravators had expanded. The quote in my response goes into the fact that the @ 24:10 number of aggravators had expanded over the years since they took that position. The court went on to explain since those aggravators had expanded there is a potential for the defense not to understand which aggravators might apply and the court has the discretion if it finds that the defense is in a position where they can’t figure out what the aggravators are to order the State to give them that guidance. Now the reason I went through all the aggravators that don’t apply is to demonstrate the fact that all of the fifteen aggravators I believe I said nine of them clearly don’t apply. I mean no one could seriously contend that they apply and of the six remaining for the defense to actually stand here and say gee we can’t figure out what the State may argue. It’s simple absurd. Ms. Lyons is an experience defense attorney in capital cases. She’s heard from reputation hundreds of prosecutors argue aggravating circumstances in capital cases and for her to stand before you and say I can’t figure this out is simply incredible. Now should the court order us to comply of course we will. My memorandum which contains I think citations for cases I don’t think counsel had a chance to read it. It does contain a number of different case citations basically it’s just for the proposition judge if your going to order us to do it then order the defense to do it as well. I mean I went through the history of the efforts by the court in various different ways to balance the field. Now death is different penalty phase is different. In penalty phase the defense has the burden of proof. They have the burden to prove mitigating circumstances if they chose to by a preponderance of mitigating evidence and that is a heavy burden on the defense in every other situation the defense has had the burden to prove something. The courts have gone a long way in assisting the State in responding to that and I’m @ 26:20 taking you through the history of these various things. First beginning with three point two two zero which embodies the very concept of reciprocal discovery. You want discovery fine you have to give something up, you have to comply. You have to be reciprocal. Three point to one six you want to argue an insane defense that’s fine but you have to give something up. You have to give notice to the State and allow the State to interview the defendant. In death penalty cases the courts have even gone further I cited Burns versus @ 27:00 State, where the State was presented with the possibility mental health mitigation from a defense witness and no one had provided and the court approved the creation of an exception to the rule of sequestration. Later the court went on in Dilveck and in rule three point two two zero two to actually create a process where the defense has to tell us what their mitigation is and allow us to introduce the defendant if they want to present it. So the idea of forcing the defendant @ 27:32 to reveille mitigating circumstances is not new to the law. Hickson went on to apply that same thing to battered spouse witnesses. The idea of the defendant being completely held to produce and provide a list of mitigating circumstances is not new. In Lucas versus State required the defense prior to the evidentiary hearing to provide the court this court with that very list and the reason for that is for the court to be able to do its duty to address the mitigating circumstances in its order. @ 28:06 And I would just appeal to the court that our duty to respond to and potentially to rebut mitigating circumstances is every bit as important as the courts duty to do their order that is sufficient. If you’re going to tell us that they can’t possibly figure out what I call a mountain of discovery what, which of the six aggravating factors may apply put yourself in our position we have got to figure out from an unlimited list what non statutory mitigation could possibly be argued. Imagine if the defense was in that position how much they would complain. @ 28:47 Judge you don’t have to grant the motion. I don’t believe the defense needs it. I’m willing to use my experience and the facts I learned them in discovery to figure out what the defense is going to argue in mitigation and they should be required to do the same but if you do order our response it should be reciprocal thank you. CJP: Thank you. @ 29:09 Anything else? Ms. Lyon? AL: Yes your honor I appreciate it. The cases and the statute says that the State has referred to are all in absent in the sense that of course by not asking the death penalty in the requisite in the statutory time they don’t have access and I believe it is forty-five days, they don’t have access to do their own mental investigation and an insanity defense is different then the death penalty and I think this is different than the death penalty. I will endeavor not to respond in kind to the argument that Mr. Ashton made regarding whether we are diligent enough and again experienced enough to figure it out on our own. This is a due process argument your honor. The State @ 30:00 is the one that has the burden of proving that this is a first degree murder in the first place that it is an aggravating first degree murder and that the defendant is even eligible for the death penalty citing to what needs to happen at the Spencer hearing which is post the juries recommendation is equally in absent. I do not believe that by asking them to name the statutory aggravating factors that they intend to rely on that anyone is invading the province of work product. It’s our position that it would be appropriate to make such an order and that it would be inappropriate to make such an order that we list statutory and non statutory mitigating factors in advance of trial. JA: Might I respond but briefly. @ 30:44 CJP: Yes sir. JA: I’m not sure whether Ms. Lyon is aware of this but the forty-five day requirement under three point two two zero two was waived by defense early in the case before she became involved so that statement she made was not correct. CJP: Ok thank you. The State of Florida has filed a notice a motion a notice that it intends to seek the ultimate penalty in this case that if the defendant in this case is found guilty of murder in the first degree and that if a jury comes back with a recommendation of death that it will ask this court to impose a sentence accordingly. The Florida Supreme Court in State versus Steel which is found at nine twenty-one southern seconds five thirty-eight two thousand five decision of the Florida Supreme Court talks about this issue of notice of aggravating factors. I agree with the defense that there is a good due process of law argument that when this case well rather when this statute was originally incorporated was six aggravating factors and that Cerisy and Hitchcock we based upon those six therefore the court will order within ten days of today’s date that the State of Florida list pursuant to Steel the aggravating factors that it intends to prove. As to the issue of reciprocal discovery as mentioned in Steel because we have the catch all unlimited list of non statutory mitigating factors the court at this time will deny the request of the State of Florida for a list without prejudice. Both sides according to the law and I know there is a motion that is coming up are required to give a list of various witnesses whether we like it or not death is different therefore the motion will be granted and we will follow the dictates of Steel. Your next motion Ms. Lyon. http://www.wftv.com/video/23518001/index.html Part 4 CJP: Your next motion to be heard Ms. Lyon. AL: Yes your honor. The next motion I want to argue is motion for protective orders of the penalty phase discovery judge and I’m going to ask a little of, I seem to be arguing against my political predilections today I’m going to argue a strict constructionist from the statute your honor. Florida Rules of Criminal Procedure three point two two zero does not require pre-trial disclosure of penalty phase discovery extending the rule to require penalty phase discovery before trial would raise serious constitutional questions and the Florida Supreme Court thus far at least has expressly @ 0:51 declined to do so. The only rule specifically mentions penalty phase discovery doesn’t apply here at least it is our view, I guess we’re going to argue about this later because the State failed to give notice of it’s intent to seek the death penalty in ten days of arraignment but the rules don’t actually literally require disclosure of mitigation, penalty witnesses before trial. In this case your honor there’s extra reasons why in addition to just the plain reading of the statute of the rule rather that as to why it is it would be a mistake to order this pre-trial or if the court is inclined to argue it pre-trial very much pre-trial and you know I do want to address before @ 1:43 I get to that though Florida rules of criminal procedure three point two two zero D, 1 A requires the participating defendant to provide prosecution with a written list of names and address of all witnesses whom the defendant expects to call at the trial or hearing and you know some appellate courts have determined that the phase or hearing should be interpreted to include sentencing. I wanted to be candid with the court and say that and under that interpretation you know the rule would require both the State and the defense to provide this information. However the courts stressed that there is some applying the rule to the penalty phase should not be construed as @ 2:27 limiting the courts authority under rule three point two two zero K and L apply good cause shown to control and scope of the reciprocal penalty phase discovery in order to protect the substantial rights of the person accused. The Florida Supreme Court has not issued a definitive ruling on this issue I’m just speaking that those other decisions were appellate court issues and it’s important to note that when the court considered revising it’s rules to clarify penalty phase discovery it declined to extend all requirements of three point two two o to the penalty phase. Before nineteen ninety-five the rules did not address penalty phase issues, penalty phase discovery in nineteen ninety-five a proposed amendment that would have made discovery rules but they declined that proposal so that’s where the Florida Supreme Court is on this. @ 3:17 and so for just the plain reading of the rules in the Florida Supreme Court has chosen to do and not do we believe that a protective order would be appropriate any way but in particular in this case your honor. You’ve already heard this morning I know you’ve certainly become familiar as you have waded into this case with the high amount of public interest and publicity associated with it and the amount of scrutiny that every witness has, every person associated with this case has perhaps not the prosecutors I, maybe there are blogs that don’t like them but there’s basically every other person has reasonably been dug into and interviewed and the press sows up and all the rest of that and the risk of prejudice to Ms. Anthony regarding penalty phase in particular @ 4:18 I’m not speaking regarding you know witnesses we might call at trial ok but penalty phase in particular where we’re discussing perhaps sensitive family related issues, mental health, physical health relative issues and there are witnesses who are uncomfortable, frightened and you know perhaps intimidated by the prospect of the kind of information that @ 4:44 might be dug up about them more, it might be speculated about them or the press showing up or threats which we’ve been investigating in mitigation we’ve had some moments of physical discomfort put it that way. There is a very likely risk of prejudice your honor you have the ability to exercise your discretion whether you agree with our legal position or not you can exercise your discretion and control and either grant a protective order requiring, not requiring us to turn them over or grant a protective order not requiring us to turn them over until much, much later in the process so that we can protect these witnesses from the amount of harassment that, which is all people have contemplated under rule three point two two zero. I would also make the argument your honor that the record is clear requiring that to us to turn over mitigation witnesses prior to trial is unconstitutional for the reasons that are in our memorandum of law and @ 5:53 the right I also want to argue at least mention another part of our argument which is that the right of privacy under the Florida Constitution should prevent pre-trial discovery of penalty phase witnesses. So that’s basically my argument on this your honor and we would ask that you would grant this motion. CJP: Thank you. Reply from the State of Florida. JA: Yes the defendant chose to participate in discovery in this case it was not compelled. Every defendant has the choice. She had the choice to not utilize the rules of discovery and to keep everything private. Now having made that choice having taking advantage of the opportunities it presents now she complains that it is to onerous to comply. The defense does cite the case of Booker versus State which is a case out of this very circuit Judge Foreman presiding. I was the prosecutor in the case in which the Fifth Judicial Court of Appeals is opinions binding precedence upon this court found that rule three point two two zero when it said trial or hearing contemplates any hearing including sentencing. It isn’t necessary for the Supreme Court to further rule that is a binding precedent upon this court. This court does of course have the right under the rules upon good cause shown to limit the scope and timing of discovery. The interesting, the defense is claiming that you should restrict their obligation to give evidence to us because of what the press or public might do. Their concern for the harassment @ 7:47 and embarrassment of witnesses I’m sure that Roy Kronk finds that the irony quite rich in that. The point here is, is that is not a sufficient legal reason to not permit the State to fully prepare its case. We have an obligation as I’ve said in the last motion to investigate and potentially rebut mitigating circumstances. We can’t do that without discovery, which the defense has chosen to participate in. The defense has not shown good cause for the court to in anyway to restrict their obligation to produce discovery to the State of Florida and I would ask the court to deny the motion. @ 8:31 CJP: Ms. Lyon anything else? AL: Yes just briefly your honor the fact that the defense made a choice to participate in discovery regarding trial does not obligates this court to need to look carefully is what is the most appropriate thing to do and I know that we’ve said this about twelve times today but death is different and I know that your honor knows that. Also for the fact the we have filed a motion in regarding another witness a trial witness not a penalty phase witness to admit certain evidence is perhaps not the most appropriate thing to argue and @ 9:08 I just would appreciate your honor if the prosecution would address your honor rather than me when making a arguments but I believe that things that we cited in our motion regarding the attempted suicide to potential witnesses in this cases result in the publicity and all the other things that are in our memorandum of law support at the very least some requirement regarding the timing of some protection or support for potential mitigation witnesses and we would ask your honor to exercise at your discretion to make sure that we are able and adequately investigate litigation and present it @ 9:49 in a way that it’s safe for our witnesses. CJP: Based upon Booker versus State found at six thirty-four southern second page three o one nineteen ninety-four decision of the Fifth District Court of Appeals and also based upon State versus Clark which is found at six forty-four southern second five fifty-six a nineteen ninety-nine decision of the Second District Court of Appeals based upon Booker it is interesting to note that in State versus Clark the Florida Supreme Court at six fifty-one southern second eleven ninety-three declined to review the Clark decision when that was appealed. @ 10:55 The State is correct that the court is bound by the decision of the Fifth District Court of Appeals therefore the motion for protective order with respect to penalty phase discovery to the State of Florida will be denied. If there is a particular witness that maybe facing so called public harassment then the court will consider a motion that limits exposure to making that name and address a matter of public record if there is sufficient grounds to do that but other than that you would have to file those on a case by case basis but discovery that goes to the State must go to the State we have some pretty rigid discovery deadlines in this case. @ 12:10 Ok I believe you have one more motion. AL: Yes your honor and just before I do that motion there is some portions of that one to be on the record but under seal that deal with the ….. you know there is a portion of that motion where I said that we need to argue some of this on the record but under seal and rule so I don’t know whether you want me to start and then …. CJP: Why don’t we take the portion that we can publicly and then we’ll consider what you want at the side bar in this amnd deal with it if necessary? AL: Ok. JA: Your honor at some point I would like to know what she wants to put under seal. CJP: Well you’ll find out when both sides come up to the side bar. You may proceed on your second motion to preclude death penalty procedures for impermissible prosecutorial methods. AL: Yes sir. CJP: Motives. @ 13:16 AL: Judge I believe that the motion is pretty self explanatory and I don’t intend to go through each element that we go through in the motion and memorandum of law with your honor but I think that what I would like to say is that the timing of the behavior of the State when you just supposed the hearing regarding finances with the changed position of the State regarding asking for the death penalty is circumstantially evidence that in fact there is a was a motive that the State had to try to basically break the defense and you know just quickly the grand jury indicted Ms. Anthony on October fourteenth, on December fifth two thousand and eight the State filed a notice of intention not to seek the death penalty. On December eleventh of two thousand and eight the skeletal remains of Ms. Anthony’s child was found and an autopsy was performed December eleventh through December twenty-third. Despite the fact that there was no way to determine the cause of death the autopsy report concluded that Caylee Anthony cause of death was homicide by undetermined means there was no evidence of trauma, no toxicological evidence all of the things again incorporating by reference of some of the other arguments that we’ve made in other motions without going into them in great detail @ 14:59 and so that was the situation then in December. On March ninth a few months later the State filed a motion to determine potential conflict of interest of Mr. Baez. He filed an objection the next day refuting those allegations the prior judge held in camera hearing on March twelfth there were questions asked there whether there is a lucrative book deal and all the rest of that and there wasn’t and they sought to learn how the funding of the defense was going, where the money came from, how much was involved and thus on March twelfth of two thousand and nine the prosecution knew exactly how much money Ms. Anthony had available to fund her defense. Less than a month later the prosecution, well I guess it was exactly a month later looking at the dates. They filed a notice of intent to seek the death penalty. The notice merely stated your honor as we previously discussed a number of times this morning that additional information became available and we sent a letter never got a response. Again your honor has the discretion to and the ability if there is an improper unconstitutional request by the prosecution for the death penalty @ 16:22 to intercede I recognize what those limitations are we’ve discussed them earlier today in the context of the first motion we argued so I don’t intend to reargue them and I know you are familiar with them but I believe that you know that there are certain other constitutional rights that are connected to the actions of the prosecution including the sixth amendment right to counsel of one’s choice that were being interfered with by this decision by the prosecution. In addition to this just the timing of the notice of the intent and there was just really nothing else that would indicate a reason why they would reverse course and ask for the death penalty. This is, there is, this is the point at which maybe I should approach the bench @ 17:14 then tell you, this is when I would talk about things that I do not think we’re allowed to say except under seal. CJP: Both sides may approach the bench. AL: Ok. @ 17:26 (side bar) @ 26:10 AL: Your honor may I have one moment? CJP: Yes. AL: Your honor based on our discussions I would just reiterate that the timing that we discussed is suspicious I am aware that the defense has a burden here I move or suggest you grant our motion. CJP: Mr. Ashton? JA: Thank you since your honor has to a limited extent freed us to speak of the in camera hearing. @ 26:49 At the in camera hearing an amount of. JB: I object judge this is not what I heard at side bar. JA: Sorry I thought as to the limited issue of the amount of money that was reveled in the defendant’s motion and I was permitted to discuss that. CJP: Well to be honest with you Mr. Ashton that’s not going to help me. JA: The only point I’m trying to make is the allegation here is that when we were given the amount of money that we some how calculated that if we sought the death penalty it would bankrupt the defendant and make it impossible for her to continue to have Mr. Baez represent her. I assume that is the argument here? I was just going to comment at the hearing there was no discussion to what Mr. Baez’s fee was, what portion of that was his fee and what was not to contend that that was our motive would be to assume that we are @ 27:44 ignorant of the aspect of Florida law that allows an indigent defendant to move the court for her partial indigency for costs. So to say that that two hundred thousand dollars would not be sufficient as a fee for Mr. Baez is I think going against common sense I certainly I think to say that two hundred thousand dollars would have been more than adequate and of course we now know what his fee was. There’s nothing in this record that would tend to suggest that the State sought the death penalty for any improper motive. Now this is the third one that we’ve had alleged the record does not support it and the court should deny the motion. CJP: Ok. Ms. Lyon anything else? AL: Your honor I would just reiterate a bit that what we did say regarding the first motion also that it impossible thus to meet our burden absent the ability to ask questions the prosecution discovered that actually the burden had been met. @ 28:48 CJP: The second motion to preclude the death penalty for impermissible prosecutorial motives will be denied. The defense has failed to meet their burden of proof. Ok I believe that concludes all of the motions you had scheduled for this morning? AL: Yes your honor. CJP: Now there are about between eight to twelve death penalty motions left? AL: There are eleven I think. CJP: Eleven. AL: Yes sir and we are comfortable with the court ruling on those motions based on the pleadings if the State has no objections. I think that we. JA: Now the defense has taken a new position I will seek to file a response. CJP: How much time will you need to file a response to those? JA: If counsel would give me a list of ones she’s referring to I will try having them but I wasn’t required to do something before for the death penalty motions. CJP: Ok. JA: I would respond she would respond back and we would still have a hearing. AL: … CJP: Ok this is what I am going to do and tell me if you can make these time limits. I will give the defense five days to list so we can be sure which ones have not been ruled on to provide that list and the State will have ten days from that file any response that they may want to file. JA: That’ll be fine sir. AL: Thank you your honor. @ 30:11 I doubt that any of them I will need to file a response but can I have a few days after that? CJP: How many? AL: Seven. CJP: You have seven days. AL: Thank you sir. CJP: And then the State will have ten days after those seven days. Now are there any, Mr. Baez any other pending motions that have been filed that have not been heard that you intend to schedule for hearing? @ 30:43 JB: There are several motions that have been filed that are not ripe at this time your honor. There are, there was one that the defense had chosen to wait until certain depositions were taken that being the motion for spoliation and I believe there is also another motion that the State would also like additional time and based on that currently that is where we’re at this time. I do anticipate some future motions being filed in the next couple of days that can be heard immediately. CJP: Ok just a like to remind both sides I do have one bad habit please read your trial order with deadlines. JB: Yes sir. CJP: If you knew about something and you don’t have a very, very, very good reason for not meeting those deadlines you maybe left out in the cold and that is for both sides. JB: Understood. CJP: Ok anything else on behalf of the defense? JB: No. AL: We have nothing your honor thank you. CJP: Anything else on behalf from the State of Florida? JA: No sir. CJP: Ok this court will be in recess. Just my opinion to what I heard.
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