Jose Baez was sanctioned by Judge Perry earlier this year, and today Perry warned from the bench that he'll be considering contempt of court as well as additional sanctions after the trial has concluded ... and by mentioning the Florida Bar, he's brought up the possibility of a grievance being filed against Mr. Baez, too.
Sure, the prosecution got pulled into the "gamesmanship" warning from the bench, but I doubt many attorneys are thinking that Jeff Ashton is facing serious consequences here: it's pretty clear that Jose Baez is in trouble, and here's why and what it's based upon. (Not including Baez's lack of experience and not being a death-qualified attorney in Florida).
First, consider where the trial stands.
Counting jury selection, the Casey Anthony trial has been going on for over a month and here we are, on a Monday morning in the middle of the defense's case, and there's no court this afternoon. No evidence for a sequestered jury again today, after losing time on Saturday as well.
The defense has blown up a trial calendar that had been proceeding along on its tracks very efficiently. This is because the defense experts are being asked on the stand about things that go outside their areas of expertise as well as outside their reports. Experts are allowed to provide opinion to the factfinder within set boundaries.
During the discovery process, each side learns of the opposition's testifying experts - what they know, what they've been given and told, and what they are going to tell the jury on the stand and in their written reports.
This is basic advocacy, no big surprises here that the judge is upset that these basic boundaries are being disrespected and that he's making these warnings from the bench. He's trying to get control of that calendar back, get the trial proceeding as it should be.
Second, What's Going On: Hiding the Ball.
So when the defense experts start flopping over into areas outside their designation and their reports it mucks up the efficiency of things -- and it's not fair. Just as Judge Perry explained on Saturday, it's playing "gotcha."
Sure, state attorneys are being pulled into the "game" because they didn't depose these experts - but depositions cost money for one thing, and secondly, if the opinion looks pretty clear - then why spend that time and money? You are supposed to be able to depend upon the opposing side to abide by standard procedure.
Baez's accusing Ashton of gamesmanship because the state didn't depose these experts demonstrates an attitude of a bad lawyer: this is not "catch me if you can." The State of Florida wants to convict and execute a young woman.
There is no situation I can think of where it would be more important to make sure all i's are be dotted and t's are be crossed. In other words, the idea that Ashton is sneaky because he did not depose an expert to make sure that the defense wasn't hiding a ball that isn't supposed to be hidden under established standards of Florida law is ludricrous.
For example, when Ashton learned that the expert that performed the second autopsy and would be taking the stand to challenge Dr. G's findings was the same man who took the stand in the Phil Spector trial to give his opinion that the dead woman had gone to Spector's house to kill herself, you can imagine that Ashton kinda had a good idea what Werner Spitz was gonna say on the stand. That, and a ONE PAGE expert report.
Did Ashton need to depose the guy? Did Ashton think "hired gun"? I know I did.
What Can Happen to Jose Baez? Baez faces three different avenues of punishment or discipline.
Jose Baez is in danger of being disciplined or punished from three different directions: (1) Florida procedural rules that allow for attorney and party sanctions; (2) Florida criminal law for contempt of court; and (3) Florida State Bar disciplinary procedings where his license to practice law will be at risk of reprimand, suspension, or disbarment.
1. Sanctions Under Florida Procedure Rules.
Judge Perry has already sanctioned Mr. Baez once for discovery abuse back in January 2011, ordering him to pay a little over $500 in fines for Baez's intentional disrespect and violation of a discovery order, when Baez was ordered by the court to turn over to the state attorneys details regarding his expert witnesses' testimony, so the state could prepare to depose them. Under the Florida Rules of Criminal Procedure, Judge Perry could find another willful violation by Jose Baez at trial, and order him under this rule to pay more in sanction fines.
READ JUDGE PERRY'S ORDER SANCTIONING JOSE BAEZ IN JANUARY 2011 HERE.
2. Crime of Contempt of Court For Violation of Court Order.
Anytime anyone violates a court order, then they are acting in contempt of the court and can be arrested, brought before the bench, and punished with fines and jail time. Personally, I've only seen one judge mad enough to impose contempt fines and threaten punishment, and that was for a juror that decided not to come to court one day. Bad mistake.
Under Florida law, could Mr. Baez be ordered to appear before Judge Perry to show cause why he should not be found in contempt of court for violation of a court order after he's already been sanctioned for discovery abuse, and if he can't prove why he's not at fault, Baez could be ordered to spend some time in jail and pay some money as the fine is defined under Florida contempt laws.
3. Florida Bar Discipline - Bar License at Risk.
Law licenses are not property rights; they are privileges (there's U.S. Supreme Court law on this, if you're interested). Grievances, or complaints, can be filed with the Florida State Bar regarding an attorney's actions and the agency will then investigate those allegations. In worst case scenarios, lawyers have been disbarred - losing their licenses to practice law because of their bad acts.
Lesser punishments are being suspended from practicing law for a set period of time, or being reprimanded - publicly or privately denounced for doing something wrong. The criteria for deciding what those sanctions will be can be reviewed here, in the Florida Bar's adopted version of the ABA standards for bar sanctioning of lawyers.