Casey Anthony - What Happens Now?

Well, the Casey Anthony jury verdict was returned today and yes, I'm surprised that the jury found Not Guilty on all the felonies.  From the news coverage, I'm right there with the majority of the country: there's even media alerts on the large, growing number of celebrities who are tweeting their shock at this result.  

A copy of the complete jury charge is here (not the verdict, I'm sure that will be uploaded to the web shortly). It's this that the jury had with them in the jury room to guide them in their decision-making, together with the exhibits and their recollection or notes of witness testimony. 

Reading through the counts within that charge, I understand that the jurors did not find a sufficient connection in the "act" or "criminal act" to find beyond a reasonable doubt that Casey Anthony was guilty of that particular crime.   And I understand that their perspective is different from the judge, the defense, the prosecutor (as I've posted about earlier). 

The jury did the right thing: if they did not think that the State of Florida provided evidence beyond a reasonable doubt that there was guilt, then "not guilty" was where they should have come down.  

It's not like the jury voted that she is innocent of her daughter's death.  Not guilty and innocent are two different things. 


In my view, this didn't have anything to do with Jose Baez's antics but dealt solely with the prosecution's evidence, which was almost entirely circumstantial in its attempts to connect the mother to the crime.  No DNA, etc. was a big problem for them - apparently, an insurmountable one. 

I'm sure that we'll hear interviews and probably read books written by some of these jurors, giving us more details than we really need on the why and the how of their deliberations and their decision.   I imagine some of those deals are being ironed out while I type this.

Speaking of book deals and things, I imagine that Casey Anthony will financially benefit from these events.  I imagine that Jose Baez and his team are making deals for books and movies and all sorts of things.  Maybe Cindy is going to write a book, too.  Heck, maybe River Cruz will be on Amazon in time for Christmas.

What I'm interested in watching now is how the public is reacting to this surprise verdict, and how disrespect has grown for our system of justice; how a trial by media does impact a case; and I'm also concerned about some fool seeking vengeance on behalf of Caylee - because I fear that there are those out there that are that incensed that Casey Anthony will walk free. 

Finally, today reminds me of one of the reasons that I stopped working the Children's Court.  Without revealing details, I can share that I was involved in a case where a prostitute had her children taken from her by CPS and she fought long and hard to get those kids back.  She earned the respect of everyone in the case, and we all believed that she had taken this life event as an opportunity to change her life: to have an apartment with ivy growing in the kitchen window, a regular job, her kids in school, her own car and a normal family life.

Her family was reunited and the case was closed.  Everyone - the attorneys, the therapists, the ad litems, the case workers, the judge - counted this case as a victory.  Victories aren't seen too often in Children's Court.  We all took this case to heart because so many of the CPS cases are so sad - we all needed this to remember that sometimes things do work out well. 

Then, about a year later, we were told that this woman had been arrested in another state, high on drugs and she had almost killed her youngest child.  She didn't fight the charges, and she'll spend the rest of her days behind bars.

Today, I think about that case and that pretty little girl who was about the same age as Caylee when she was almost killed by her mother and I remember the lesson from that case. 

It's not always over when the judge closes the case.  The justice system isn't omnipotent nor omnipresent and its power is intentionally limited.  Life continues after the lawsuit is done.

I worry that this tragedy isn't over with, and I hope and pray that I'm wrong. It just seems in my gut that there's another shoe that's going to drop, and I'm hoping this is just my personal reaction based upon that old CPS case. 

Is Casey Anthony Crazy? The Legal Issue of Mental Incompetency and the Defense of Insanity

The Casey Anthony trial continues to do its excellent job of educating the American public on nuances in the legalities that apply to us all - and of which many citizens are not aware.   This weekend, there was the review of Casey Anthony's mental condition after the defense moved on Saturday morning for psychological evaluations of their client.

Seems that two forensic psychologists and one psychiatrist spent time with Casey Anthony over the weekend, and this morning, based upon their opinions, the trial continues.  She wasn't found mentally incompetent by the experts.  Sure enough, all the talking heads are spending the day discussing incompetency - not only the circumstances of why and when this happened in the Casey Anthony trial, as well as what "incompetency" means overall.

Incompetency is an Issue Many of Us With Face at Some Point

It's difficult for the law to draw lines on where an individual has a mental illness or deficiency sufficient for the courts to intervene in their freedoms.  And judges are asked to makes these calls every day - legal incompetency is an issue that millions of Americans have had to face - either from themselves, or for loved ones.

Personally, I've seen the difficulties of a probate judge determining whether or not an elderly person needs to have a guardian of the person or a guardian of their estate, or both -- particularly when that elder does not want someone else making personal care decisions or taking control over their finances.  Legally incompetent ruling, and that elder loses their control over their lives and/or their money. 

I've also seen the state seeking to terminate the parental rights of a parent for their child because the parent is mentally incapable of caring for a child.  Testing is done, opinions are given and then, no matter how much that parent loves their baby, their right to parent is legally ended. 

And, yes the government can do that.  Being a mother or father isn't an absolute right: the government can take your child from you.

Hopefully, there's a family member who steps in, taking on the role of parent.  If not, that child goes into foster care because the court has found that it's in the best interests of that child to be with foster parent caretakers than their mentally incompetent bio parent. 

Being mentally unable at a sufficient level to take care of yourself or another person usually means that it's obvious.  Elderly parents with dementia need guardianships.  Paranoid schizophrenic mothers may need help to care for their babies. 

Sometimes, it's a close call and there may be an expert fight in a courtroom, because experts disagree on the competency of someone.  Those are the hard cases for the judges, when the experts don't jive on the psychological status of the individual. 

So, if Casey Anthony seems strange because she is so stoic at the defense table and then something bizarre happened on Friday (who knows what), then it was the right call for the attorneys to get evaluations of her mental competency.  Here, the question is whether or not Casey Anthony is competent to assist her attorneys in her defense. 

Maybe she had a psychotic break, maybe something else happened.  It was their duty to do so - and it was the judge's duty to stop everything until that issue of competency was resolved. 

Their issue would be akin to one where a probate judge was being asked for a guardianship: is she legally competent? 

Here in Texas, the Court of Criminal Appeals has explained why her legally competency is important - it involves not only (1) the right to effective counsel, but also to (2) the right to due process as well as (3) the right to be present at her criminal trial, all federal constitutional protections:

The requirement that a criminal defendant be competent to consult with counsel is not based only on the right to the assistance of counsel. Another right is the presumption of innocence, which is guarantied by the Due Process Clause.²² Requiring that a criminal defendant be competent to be tried preserves the presumption of innocence by ensuring that a criminal defendant can help the defense attorney defend the client.²³ A defendant must be able to assist trial counsel because often the defendant possesses the only information that may cast doubt on the State’s case. If a defendant is incompetent, we cannot be sure that the defendant can communicate to counsel the facts necessary to mount an effective defense. It also has been said that the requirement of competence is a byproduct of the rule requiring that a defendant be present at trial, since a trial of an incompetent defendant is virtually a trial in absentia.²⁴ The right to be present is largely based on the Confrontation Clause, although it also has a due process component.²⁵

Legal Insanity is a Legal Defense to a Criminal Charge

Mentally incompetency is not the same as being legally insane.  Legal insanity is a defense to a criminal charge that's defined by the state law. Here is how it's defined under Florida law:

775.027  Insanity defense.

(1)  AFFIRMATIVE DEFENSE.--All persons are presumed to be sane. It is an affirmative defense to a criminal prosecution that, at the time of the commission of the acts constituting the offense, the defendant was insane. Insanity is established when:
(a)  The defendant had a mental infirmity, disease, or defect; and
(b)  Because of this condition, the defendant:
1.  Did not know what he or she was doing or its consequences; or
2.  Although the defendant knew what he or she was doing and its consequences, the defendant did not know that what he or she was doing was wrong.

Mental infirmity, disease, or defect does not constitute a defense of insanity except as provided in this subsection.
(2)  BURDEN OF PROOF.--The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

Casey Anthony has not asserted the affirmative defense of legal insanity.  FYI, prosecutor Jeff Ashton participated in the creation of the Jury Instructions for Legal Insanity as approved by the Florida Supreme Court.

Warehousing Does Happen in Discovery, But It Didn't Happen to Jose Baez

Back in the day, I practiced law during the "Rambo" years - aggressive, litigious days in commercial business litigation where it was pretty much expected that if you went up against some law firms, you were going to be "warehouseed" in discovery.

Which meant that you would be given access to relevant documents in response to your discovery request, and when you went to their offices to review and flag their originals for photocopying, there would be boxes and boxes and boxes -- maybe even rooms and rooms and rooms filled with boxes and boxes and boxes - and you and your paralegal would be left there, with your stickies, to do what you thought best. 

Sometimes, we'd call for the cavalry and have lots of helping hands arrive to comb through everything.  Other times, we'd have an idea of things we were looking for, and we could pick through all those documents with some savvy.

Then, there were times we walked out and took it to a judge, moving to compel and maybe for sanctions. 

It's no different with a hard drive.  Even a personal home computer's hard drive can be compared to producing rooms filled with boxes filled with documents.  You can warehouse with a hard drive.

And with his "phone book" analogy, Jose Baez was arguing this morning that he's been warehoused,  He just didn't use the lingo. 

Problem is: he wasn't.  As the judge pointed out, he didn't just have the hard drive.  He was given target dates that were of interest.  That is like the attorneys on the opposite side of one of my complex business litigation cases saying, yes - here's access to everything, and by the by, we're targeting X and Y if you want to look there. 

Judge Perry has a lot more patience than I do. 

Psych Today's Dr. Karyl McBride Will Answer Casey Anthony Trial Questions as Guest Blogger Here at Backseat Lawyer

Dr. Karyl McBride has graciously accepted my invitation to be a guest blogger here at Backseat Lawyer, to answer questions dealing with the Casey Anthony trial that are best addressed by someone with her level of psychological education and expertise.

Dr. McBride's blogs at Psychology Today's web site at The Legacy of Distorted Love, as well as at her website Will I Ever Be Good Enough? and she will be appearing tonight on Issues With Jane Velez Mitchell.

To read her some of her takes on the Casey Anthony case thus far, check out her posts "Lying is Part of the Fascination of the Casey Anthony Trial," and "Why Are We So Fascinated by the Casey Anthony Trial."

Send Your Questions for Dr. Karyl McBride In Comments or E-Mail Now

I will be sending Dr. McBride a list of questions culled from reader comments and emails that I have received since the beginning of the Casey Anthony trial.

If you wish to have your question answered as part of Dr. McBride's guest article(s), then please send it to me as soon as possible, either in the comments below or by email (reba at rebakennedy DOT com). Dr. McBride's first QnA post will appear within the week, and we are discussing additional guest posts here, as well.

Who is Dr. Karyl McBride?

Dr. Karyl McBride is the author of Will I Ever Be Good Enough?: Healing the Daughters of Narcissistic Mothers which has received 4.5 stars in over 75 reviews at Amazon.com. 

Her work focuses upon the study of narcissism and its impact within families, particularly the offspring of narcissists.  Each year, she hosts a national conference and workshop (20 hour CEU letter available for therapists) where her respected five-step healing model for daughters of narcissistic mothers can work toward full recovery and the re-defining of self/finding one's authentic self. 

This year's Daughters of Narcissistic Mothers workshop will be held at the Inverness Hotel in Denver, Colorado on October 7 -9, 2011.


From her website:  Dr. Karyl McBride has been in private and public practice for almost 30 years, based in Denver, Colorado, where she specializes in treating clients with dysfunctional family issues. For the past 17, Dr. McBride has been involved in private research concerning children of narcissistic parents, with a primary focus on women raised by narcissistic mothers. She has treated many adult children of narcissistic parents in her private practice.

She holds a B.A. from the University of Wyoming in elementary and special education, an M.A. from the University of Northern Colorado in counseling psychology, an Educational Specialist graduate degree from the University of Northern Colorado in school psychology, and a Ph.D. from The Union Institute in clinical psychology.

Dr. McBride has extensive clinical experience in the fields of trauma, sexual abuse, domestic violence, divorce and step family therapy, marital and family therapy, specialized trauma treatment in Eye Movement Desensitization Reprocessing (EMDR), and individual adjustment issues related to anxiety, depression, and life transitions.  She does forensic consulting and has served as an expert witness in numerous civil and criminal cases involving children and sexual abuse;  has 9 years experience conducting sexual abuse investigations with law enforcement; and she has conducted training for law enforcement in the area of sexual abuse investigations.


Thanks in advance to Dr. McBride and to all of you!!

Jose Baez - Sanctions, Contempt of Court, and Bar Discipline - Judge Perry Warns Jose Baez and Jeff Ashton of All Three: What Are They?

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.