Friday, May 27, 2011

Anthony Trial - Day Three

Yesterday was the most interesting day yet of the Anthony trial. The state continues to build on the story that they told during their opening statement by presenting witness testimony regarding Ms. Anthony's activities while her daughter was missing (or after she drowned if you believe the defense theory).

The interesting parts came from the defense. As part of their case, the state recalled Mr. Anthony to the stand. Mr. Anthony is the person who the defense says found the girl's body and then covered up the death. If the defense stands any chance to make that theory work, they must be able to make Mr. Anthony look like someone who would do such a thing. They are going to have to confront him and win the battle of words.

Well, it appears from yesterday that they won't be able to do that. Yesterday's testimony concerned two gas cans and the duct tape that was found on them. When the defense attorney cross-examined Mr. Anthony on these issues, Mr. Anthony was able to turn the tables and absolutely dominate Mr. Baez. The question that needs to be asked is - if you can't get control of the witness and keep control of the witness when you are discussing gas cans and duct tape, how will you be able to do it when you are making accusations of abuse and covering up the death of a child?

Other cracks appeared in the defense, too. Mr. Baez simply does not seem to know his way around a courtroom. He doesn't seem to have a good grasp of the rules of evidence. At one point, he attempted to question Mr. Anthony about a photograph. However, he didn't lay the proper foundation for the admission of the photograph into evidence. The judge sustained objections. The attorneys approached the bench for a sidebar. He kept trying to ask the questions. Finally, the judge sent the jury out and basically took Mr. Baez out behind the woodshed in open court and on the record.

Another example came when Mr. Baez wanted Mr. Antony to mark on a calendar that they set up as a demonstrative exhibit. He approached Mr. Anthony and gave him a marker and instructed him to move to the exhibit. At that point, the judge told Mr. Anthony to sit down and asked Mr. Baez if he had anything he wanted to ask him (the judge). Mr. Baez looked confused for a few seconds before finally asking the judge's permission for Mr. Anthony to step down to the exhibit.

Perhaps this last is picking nits, but the cumulative effect of all these missteps on the jury will likely be profound.

But perhaps the most telling thing about the defense is something that came into play after the jury was excused for the day. The defense made a motion to strike all the testimony related to the defendant's activities during the time between the girl's disappearance and the time that the disappearance came to light. They argued that the evidence was inadmissible because it was calculated to show a lack of remorse on the part of the defendant. Evidence of lack of remorse is not admissible in the guilt phase of a trial because the defendant has not yet been found guilty of anything for which she should feel remorse. The prejudicial effect of such evidence outweighs its probative value. The defense presented case law from the Florida Supreme Court to that effect.

Talk about closing the barn door after the horses get out. Why didn't they make this motion pre-trial? Waiting until the end of three days of this kind of testimony tells me that they are disorganized. The jury has already heard it and you can't unring that bell. The only remedy would be a mistrial. So, the judge denied the motion.

It is easy for me to sit here and judge. I know far less about this case than the defense does. It just seems to me that the defense is stumbling around in the dark, while the prosecution has a well designed game plan and is executing it perfectly.

It does not look good for Ms. Anthony.


Thursday, May 26, 2011

Anthony Trial - Day Two

Day two of the Anthony trial in Florida was uneventful. The state is presenting its case exactly as they laid it out in the opening statement. They began by focusing on showing the jury how Ms. Anthony went about living her life and seemed to enjoy it with no concerns at all, when all the time her daughter was missing. This is something that the defense will absolutely have to overcome if they are to get a favorable outcome.

The defense's strategy on this point was laid out in their opening statement. They contend that her behavior was a result of sexual abuse by Mr. Anthony. They reason that Ms. Anthony was used to hiding traumatic events in her life and that the death of the child was just another in a series of such events.

I have to tell you, I don't buy that. And I am a defense attorney. If they can't convince me, I doubt that they will convince a juror. But, the evidence is not all in so we should wait to draw conclusions.

The defense didn't have much to do with these witnesses. Basically, they are conceding that their testimony is true and correct and will be presenting their explanation when it is their turn. It looks like they will have to put Ms. Anthony on the stand, which will open her up to cross-examination by the state - always a risky proposition.


Tuesday, May 24, 2011

Anthony Trial - Day One

While working today, I set up a feed of the Anthony trial in Florida on my monitor so I could watch it. Today was opening statements. It is a fascinating case. The defense has a very interesting theory of the case and I am going to enjoy watching them try to prove it. Basically, they are now saying that the little girl died in an accidental drowning and that the defendant and her father tried to cover it up.

As I was watching, I thought how much fun it would be to take one trial, like this one, and teach a class dissecting the video once the case was over. You could make a whole semester out of a long trial, like this one is bound to be, or a shorter seminar out of a smaller trial. If the class was composed of practicing attorneys, everyone would come away as a better lawyer.

For today, I would give the prosecutor a B+ and the defense a C-. The prosecutor told a compelling story in her opening. The technique of going through each day that the girl was missing and showing the defendant's activities on that day was masterful. It told exactly the story that the state wants to tell.

The defense fell short of telling a compelling story. It was only near the end of the opening that I could really tell where he was going. He failed to reach out and grab the audience from the beginning. Their story is that the girl died in a drowning and that the mother lied about it because she was sexually abused and hiding things was normal for her just doesn't resonate. There is also an issue with the facts, as I understand them. If the mother and the grandfather hid the body, and someone else came along later and placed the body where it was ultimately found, why would the mother not have informed police long before now of this fact? Would she not have wanted a forensic examination of the original disposal site made to discover any evidence that would support her story? Answering those questions in a believable manner will be critical to the defense.

Day one caught my interest enough that I will be watching tomorrow, as work permits.


Tuesday, February 15, 2011

A Judge Does the Right Thing

I was just reading that a judge in Virginia refused to follow a ruling by his state Supreme Court because that ruling would result in a violation of a criminal defendant's rights as established by the United States Supreme Court.  At issue is the obligation of an attorney to advise his criminal clients of the immigration consequences of a conviction or guilty plea.  That obligation was imposed by the United States Supreme Court in Padilla v. Kentucky.

The Virginia Supreme Court ruled that certain procedures are not available to raise the issue in state court post conviction relief proceedings.  Judge Dean Worcester disagreed and permitted a criminal defendant to raise the issue.  His rationale was that not permitting the issue to be raised is the equivalent of denying the right in violation of the holding in Padilla.  His opinion can be found here.

Without taking a position on whether he is right or wrong, it is nice to see a judge who understands that he has the same responsibilities as appellate court judges when it comes to following the constitution.  I am reminded of a hearing on a motion to suppress that I had in a case in east Tennessee a year or so ago.  The issue there was the recording of a criminal defendant in her home by a paid informant.  Many states have held that these recordings are inadmissible.  Tennessee has never ruled.

After completing my argument, the judge stated that he thought that it had merit but that he was going to deny the motion because, he said, these matters are best addressed by the court of appeals not trial judges.  I pointed out to him that he took the same oath to uphold the constitution as did the appellate judges but he was not swayed.

The rule of stare decisis, following the court decisions that have come before, is necessary in our legal system.  It is what brings stability to our rule of law. But blindly following precedent is just as damaging.  A judge must be free to uphold his oath to the constitution, no matter what level of the system he represents.  It is nice to see that at least one trial court judge agrees.


Friday, February 4, 2011

Observations about a Divorce Case at the Court of Appeals

I recently attended a Court of Appeals session to observe my husband, also an attorney, make his first Court of Appeals oral argument.  While we were anxiously waiting for his case to be called, we had the opportunity to watch other cases.

One case in particular was very interesting to me.  The facts as follows:  couple dates for 1 year; wife has debilitating stroke; couple continues dating for 4 more years; couple gets married; couple stays married for 20 years; couple gets divorced.

The marital estate at issue in this case was rather large and valued at over $7,000,000.  The husband made the argument at trial that because the wife did not contribute to the marital estate (because she had a stroke that he clearly knew about before they got married) by working or raising children (they were married in their mid-40s), that she should get less of the estate.  The trial court awarded the husband 60% of the estate, plus a large amount of stock options and the wife 40% of the estate.

The husband appealed the trial court.  His attorney stated that the husband felt like he was entitled to 70% and the wife should have only gotten 30%.  In my opinion, the husband won at the trial court and this appeal was just adding insult to injury.

During the wife’s attorney’s defense of the case, she stated that she felt like she “got a whooping” at the trial court and was embarrassed to have to defend this case in front of the Court of Appeals.  I was very impressed by her conversational style and preparedness.
Another fact that made this case memorable is that the wife’s attorney stated that the husband’s attorney was paid $130,000 in fees out of the marital estate before the division, and her attorney’s fees had not been paid out of the marital estate.  For a $130,000 fee, I expected to see some spectacular rhetoric and wit, or, at the very least, extreme preparedness.  Instead, I witnessed an attorney who was not even able to recall the value that his client had been awarded at the trial court level.
The Court of Appeals does not rule from the bench, and the parties in this case may not get a ruling for a few months.  I am interested to see how the case turns out.

Rachel Rieger

Wednesday, February 2, 2011

Always Learning

I was in court this morning to do a plea in a theft case.  While waiting to get the paperwork in order, I was able to watch the jury selection in a DUI case.  It turned out to be one of the best voir dires that I have ever heard.

One of the things that made it interesting was the defense attorney's education of the potential jury as to the burden of proof requirements in a criminal case.  As most people know, the state has the burden of proving facts to establish all the elements of a crime, while the defendant has no burden to prove anything.

The defense attorney asked the standard questions:

If my side doesn't even put on a case, would you find him guilty just because of that?  No hands popped up from the jury.

Do you promise to acquit him if you don't feel that the state has proven all the elements of the crime?  All hands held up.

What if the state doesn't put on any case at all, could you still convict him?  At this point, the jurors all raised their hands indicating that they could indeed convict.  That's when the defense attorney told him that they had been tricked and that this goes to the heart of burden of proof.  He then educated them by telling them that the state was required to put on a case, else they were not permitted to return a guilty verdict.

It was really much more effective watching it in the courtroom than it comes across in writing.

Here is the real point - I hadn't been up in a courtroom to watch a case in a very long time.  I used to go watch frequently, but as business picked up I simply didn't have the time to keep that up.  I think that's a mistake.  I think that you learn far more from immersing yourself in the courtroom on a regular basis than you do by taking continuing legal education courses or even by trying cases (you are too wrapped up in your case to really learn - unless you make a mistake, that is.  You always learn from mistakes).

I am seriously considering making it a requirement of this firm that every lawyer attend at least one jury trial per month.  Including me.  I think that would be a great way for each of us to develop, and keep, the skills we need in order to try cases.


Tuesday, January 25, 2011

Wrongful Denial Settlement

Today the firm settled the first of three pending wrongful denial of insurance claims cases that we are currently handling.  This one involved the theft of an automobile and the insurance companies denial of coverage for the claim.

It seems more and more insurance companies are denying claims out of hand.  We are close to settling both of the remaining two cases.