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.

It's Never a Good Sign When the Jurors Are Falling Asleep On You

You're giving a presentation at work.   Or, you're in front of a classroom filled with 100s of people, reading your short story.  You're teaching Sunday School.  Heck, you're teaching anything, anywhere to a group of people.

Imagine the message you're receiving if members of the audience, say 30% of them, have fallen asleep while you're talking.  What are you going to think?

Well, presenting your case in a courtroom isn't that different from these other situations.  Although what is at stake is much, much different. 

Lawyer in trial are always monitoring what the jurors are doing.  Are they taking notes?  Are they looking at my client?  If they are, what's on their faces: scowls, smiles, concerned brows?  If they're not, then where are they looking?  Are they avoiding my client?

Some jury behavior is good.  Smiles are good.  Some jury behavior is bad.  Never looking at your client is seen by many attorneys as a signal that things are going very badly for their side. 

However, having a third of the jury (which is what I've heard is happening during the defense's presentation, 4 jurors are snoozing) sleeping during your presentation of evidence is really a big, and bad, deal. 

Sure, this is technical forensic stuff.  However, the jury wasn't sleeping during the same kind of evidence during the prosecution's presentation.  I don't think this can be blamed on dull evidence coming in .....

Different Ways of Looking at the Casey Anthony Trial - Not Guilty Standard

Reading through all the comments left here over the past week regarding the Casey Anthony trial (and thanks again to everyone who has taken the time to leave a comment, it's appreciated), I've been thinking about how different perspectives can be taken on what we are all watching unfold.

There's the viewpoint of the truthseeker: what really happened here? 

Everything gets pondered, and personal recollections and experiences are mined for information that will help explain how this crime could have happened, and why. To be honest, that's me. Maybe you, too. 

But that's not necessarily what anyone's role is there in the courtroom.

First, there's the perspective of the defense attorney. 

This focus is upon getting their client acquitted - and if not freed, then with the least amount of punishment possible.  That's the defense attorney's job.  To defend. 

Second, there's the prosecutor's focus. 

The state attorney is compiling evidence and presenting it to the jury and placing it in the record in order to meet the elements of the crimes contained within the charge (see earlier post on what the state has to prove, and with what Casey has been charged.)  Enough evidence has to be presented to meet the burden of proof - beyond a reasonable doubt.  Not all evidence will be placed before the jury (for example, I'm not hearing anything about how Casey was arrested under an overpass while she was changing cars and possibility trying to run away).  When they rest their case, they should set down thinking "we have given the jury everything they will need when they get those jury instructions, to tie law to facts and come back with the verdict we want."

Third, there's the judge.  

He's protecting the law as it is presented to him.  No objection made to a piece of evidence and he knows it should have been?  He must set there and let the attorney make the error.  Expert provided that he thinks isn't the best choice?  Not his call.  If the law and the precedent has been met, then he must follow state law.  Is the law being followed as the attorneys do their job?  Then the judge is doing his.

Fourth, the jury.  

They are to take what has been presented to them and deliberate with the instructions that have been given to them (hasn't happened yet) to decide whether or not the state has met the burden of proof for "guilty" on the charges they've been given.  They are not deciding innocence. 


No one in that courtroom is considering innocence - they are considering the standard of "not guilty." 

Here's why that is very important to all of us. 

The crux of this proceeding, as any criminal proceeding, is whether or not the government will be allowed to take a citizen and throw them in a cell, denying them freedom for a period of time.  In this case, the government is going one step further:  the State of Florida is asking that the citizen be killed by an executor for the crime that the state is alleging has been committed.

Freedom, life: it's one of the truly great things about our American system of justice that we fight so hard to protect these things.  Not every country does, and we read about that every day.

So, when we are all watching the Casey Anthony trial, I for one want that prosecution to be strong in its case and I want the defense to be stellar in its challenge.  It's not because of Casey Anthony, though it's her life on the line -- it's because I respect the system and what it means to all of us.

Now, as the state is preparing to rest, I'm waiting to see what the defense is going to pull out of its hat.  Mr. Baez and his co-counsel knew the evidence before it came in, so all this "drowned in the pool" and "body was moved" has to have some sort of basis they'll try to present.  Will this sway the perspective of "not guilty" here?

I don't know yet.  But "not guilty" is all that the defense has to meet -- and that's another way of saying, here's enough doubt to keep you from jumping the reasonableness hurdle.

Casey Anthony Trial Obsession - Why This May Be a Good Thing

Is the country obsessed with the Casey Anthony trial?  Maybe.  TIME magazine thinks so. 

These days, little else besides the Casey Anthony trial appears to be covered on HLN, and other evening news or news feature/talk shows appear to be devoting quite a bit of coverage to this one case in Orlando, Florida.  

I admit to watching more television than usual these past two weeks, and I'm sure that I'll stick with my pattern through to the verdict.  Part of my pondering this whole thing is asking myself why I feel the need to stick with it: it's not like I don't have a gazillion other things to do.  You too, am I right?

However, I don't think that having so many Americans watching the Casey Anthony trial is a bad thing.  In fact, I think it is a good thing for several reasons, including:

1.  Viewers Are Learning How Trials Really Work - Which Helps Lawyers in Future Cases

Trial lawyers have to deal with clients, jurors, witnesses - heck, sometimes even experts - that expect courtroom proceedings to happen just like they've seen them on television.  The attorney's biggest concern is that a jury does not perceive his or her case as weak just because someone looking remarkably like Laurence Fishburne or David Caruso or Marg Helgenberger isn't taking the stand to describe how this fancy dancy lab gizmo can reveal who shot JR in thirty seconds flat. 

Or, that the lawyers aren't numbskulls because they need more than the single file folder you see oh-so-many lawyers bring into the courtroom (and then they don't even open the folder to look inside!).  Oh, oh, oh - and the perfect hair and makeup and wardrobe!  TV lawyers never, ever reflect the reality of real courtroom work.  Trial lawyers work all night getting ready to perform the next day; by that second or third week, no one has perfect hair (or maybe even mascara) at that point. 

So, to the extent that discussions are being had over "junk science" and viewers are watching how cumbersome those objections can be in the Casey Anthony trial and how many paper is really involved, good.  It helps the real lawyers out there - and justice, too.  (I won't discuss the blond attorney's hair, but I think she's doing a fine job of keeping up appearances with everything else on her plate.  Isn't she still wearing heels?  Geez Louise, that's impressive.)

2.  Viewers are Finding Out Why Death Penalty Cases Cost So Much

There is lots of chat right now not only about how much is Jose Baez getting paid (or not), but also about how much the State of Florida is going to have for a final tab in this case.  Viewers are learning the right to counsel that is constitutionally guaranteed to anyone who can prove themselves indigent means that these cases have the government (read that "the taxpayer") footing the bill for work done by both sides as well as all their expenses.  Now, those fees and expenses are monitored (in Florida, it's by the JAC) and the legal fees are far from what a similarly situated criminal defense attorney would get in a private-pay case. 

Still, one of the main challenges to the death penalty in the country today (think California) is the simple fact that it costs so darn much.  In the Casey Anthony trial, viewers are seeing how this works -- and they will soon see, assuming that there is a guilty verdict, how a death penalty case is really two trials in sequential order.  The penalty phase will have its own evidence (witnesses, testimony) as the state puts on its aggravating factors and the defense, its mitigating circumstances, as the decision of whether or not the sentence should be death at the hands of the state is determined. 

So, it's good that viewers are learning the finances of indigent defense, particularly involving the death penalty.


3. Viewers Are Learning About Parents Who Don't Love Their Kids Like People Assume They Do

Right now, I don't think there is enough information out there about mothers who are not automatically loving and kind and protective of their offspring.  Casey Anthony is viewed as something unique, still - and whether or not viewers think she's innocent or a monster, it's still discussion revolving around this one young woman.  I have hopes, though, that this will change.

In my years down at the Children's Court, I saw all too often that mothers (and fathers) are not blessed with an inate need or drive to protect, love, or nurture their children.  Frankly, it was a reality that slammed me in the face, seeing child after child, each beautiful and unique in their own way, discarded or disrespected or victimized in other ways by their BioMom or BioDad.  The mothers really got me - choosing drugs, men, or just their freedom over their babies. 

It happens a lot more than most Americans want to think about: it's easier to think about children starving in Africa or orphaned in Tahiti than it is to consider the overwhelming number of unloved, abused, and neglected kids here in our own backyards.  Here in San Antonio, there are only enough child advocates (via CASA) to assign to 1/3 of the children who have been removed from their parent's care.  That means 67% of the local kids don't have an advocate (they do have a lawyer and a caseworker). 

I hope that the Casey Anthony trial, somehow, sheds a light on damaged mothers - and the children they leave behind.  That, I think, would be the best thing to result from the Casey Anthony trial obsession.

Casey Anthony Trial - Who's On That Jury?

The Orlando Sentinel has a great reference for who is on the Casey Anthony jury, entitled "Bios of the Casey Anthony Jury."

It's a slide show, and appears to be a transcription of notes taken by the Sentinel's reporter during jury selection.  Their identities are being protected until they are released from jury duty - but once they're released, we'll know lots about them.  Remember the OJ Trial?

Circumstantial Evidence vs Direct Evidence

Can we trust circumstantial evidence?  Sure we can.  And we do.  Rather than use my own words to explain why, I'll leave it to the United States Supreme Court in the landmark case, Holland v. U.S., 348 U.S. 121, 140, 99 L. Ed. 150, 75 S. Ct. 127 (1954):

Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.

For Those That Distrust Circumstantial Evidence, Direct Evidence Isn't That Reliable

There are those that may argue that direct evidence, especially in a murder case, should be the only evidence used to convict.  However, in our imperfect world there usually isn't much direct evidence in most crimes -- and the direct evidence that may be had might not be the most reliable.

Eyewitness testimony is notoriously unreliable, for example - and you can't get more direct that a witness glaring at a defense table, pointing his finger and crying out, "he did it!" 

Meanwhile, the slow and tedious introduction of pieces of circumstantial evidence, as time consuming as it might be, can provide a clear picture of the truth - I like to think of it as a "Lite-Brite" of sorts.  Remember Lite-Brites?  They were toys were white lights were hidden by thick black paper on a screen, and you had oodles of plastic buttons, or pegs, that you pushed one at a time into that black nothingness until an image emerged. 

Perhaps those that distrust circumstantial evidence are more concerned, really, with the burden of proof that the State in a criminal case must meet in order to prove their case.  Twelve jurors must use what they have (from Holland, their "experience with people and events") and determine if there is any reasonable doubt left that the defendant did the crime alleged.

Doubt can remain.  It just cannot be a reasonable doubt. And logical reasoning can occur in that jury room.  If it walks like a duck, and it talks like a duck, you can infer it's a duck.  

Some Believe That Circumstantial Evidence is More Reliable That Direct Evidence

Note:  In fact, there are those in the criminal arena that find circumstantial evidence to be more reliable than direct evidence (especially when we're talking eyewitnesses).   If you are interested in learning more on that issue, I've downloaded Professor Heller's excellent article on this subject, "The Cognitive Psychology of Circumstantial Evidence," 105 Michigan Law Review (2006) at Google Docs.

The University of Michigan Law School is one of the most prestigious law schools in the country, and coming from UT Law, another top tier law school, maybe I should have found a UT Law Review article -- but I like Heller's article here and I think you will, too.

Casey Anthony Trial Defense Costs - How Much the State of Florida Has to Pay

Judge Perry, in a public hearing last year, approved the court clerk's determination that Casey Anthony was legally indigent.  By being declared "indigent" under the law, Casey would become eligible for her legal expenses to be paid by the State of Florida.  However, the defense did not request that her attorneys' fees be paid out of the state's pocket according to the media sources I reviewed today.  (Good summary provided by CBS News.)

One year later, according to Orlando's WESH-TV, the defense had spent $80,000 and was asking for more.  (Story here.)

That was back in March.  Who knows what the total is today. 

Two thoughts here:  first, death penalty cases are expensive to try.  You've got a guilt phase and if the defense loses there, then you've got a penalty phase - where death is debated.  Sentencing is a new ball game and there are different witnesses, etc. and with that a new set of expenses. 

Second, another good thing coming from the Casey Anthony coverage is the education of the American public on what it means, budget-wise, when an indigent is facing the death penalty.  The taxpayers are paying for BOTH SIDES of the case -- attorneys' fees and legal costs.  The fact that Baez isn't being paid by the State of Florida here, nor his death-qualified co-counsel, shouldn't be considered as what usually happens.

Some states try and cut these costs with Public Defender Offices, some have appointment lists of outside, private attorneys who are eligible to defend death penalty cases.  Either way, it's tax money.

The Psychology of Casey Anthony - I've Invited a Psychologist to Post

I want to understand what is going on with Casey Anthony and her family, and I know that several readers have written, voicing similar interests.  So, I've sent an invitation to an expert in narcissism and asked for a guest post.

Hopefully, we'll have that input by Friday evening - if not, I'll send out another invite to an expert in narcissism or sociopathy, etc. and (fingers crossed) either way, we'll have an expert giving us details on this issue.

Personally, I pondered on this issue a couple of years back, as fodder for character studies in my personal writing and I posted about this at my fiction writing blog (here).

For me, I don't believe that Casey can be considered without looking at her family, particularly her mother.  There's something sad and bad about their relationship - but I'll wait to hear what the psychologist has to reveal about all this.

Reading one reader's comment here - Anonymous on June 5th to Who Is Jose Baez? post - I think she may know more than the rest of us about the family dynamic in that house, e.g., that Casey became a liar as a means of escaping the overwhelming power and control of her mother.  That makes sense to me.  

One other thing:  I wish that I could look at Casey Anthony and consider the possibility of a mother killing her child as a bizarre, unique instance - but I can't.  One of the biggest shocks that I had when I worked the local CPS Docket was the parents, particularly the mothers.  There were some that were blind to their children, they did not care.  I learned that a maternal instinct is not a given in humans.  Some chose drugs, true.  Some, however, just did not love those babies - and "blind" is the closest I can get right now to describing their lack of perception. 

Casey Anthony Trial - Here is What the State Has To Do To Prove Its Case Under Florida Law

In the Casey Anthony trial, the prosecution must provide the jury with evidence beyond a reasonable doubt that the crimes for which she was charged were indeed committed by defendant Casey Anthony.  I'm providing two helpful links here for those wanting to follow along with the trial as the state puts on its case.

What Casey Anthony Has Been Charged With - First Degree Murder, Aggravated Manslaughter of a Child

From a CNN article, I found a listing of the grand jury indictment's seven counts:  Casey Anthony is charged with first-degree murder, aggravated child abuse, aggravated manslaughter of a child and four (4) counts of providing false information to police.  First degree murder in Florida carries the possibility of the death penalty (see below).

(By the way, when I found this article I re-read something that I had forgot:  Casey was arrested after she switched cars under an overpass shortly after the indictment came down - wow.  Forgot all about that one.)

Florida Prosecutors Burden: What They Must Prove With Admitted Evidence To Win Their Case

The Florida Supreme Court's website includes the current jury instructions that are to be used in Florida criminal trials. From these instructions you can find each prong of the case, or element of the crime, that must be shown by the reasonable doubt standard.  Just surf through. 

• You can read the section under Homicide and get an idea of the prosecution's duty here, it's in somewhat of an outline format but easy enough for following along with the current proceedings. 
• Search the Florida Supreme Court's instructions to find First Degree Murder as well as Aggravated Manslaughter of a Child: Florida Supreme Court - Jury Instructions. 

For First Degree Murder, for example, you will find:

"There are two ways in which a person may be convicted of first degree murder. One is known as premeditated murder and the other is known as felony murder.

"To prove the crime of First Degree Premeditated Murder, the State must prove the following three elements beyond a reasonable doubt:

"1. (Victim) is dead.  (State will have to put in evidence that Caylee Marie Anthony is dead.)

"2. The death was caused by the criminal act of (defendant). (State will have to put in evidence that Casey caused Caylee's death and this was by a criminal act.)

"3. There was a premeditated killing of (victim). (State will have to put in evidence that this was premeditated.)

"Definitions.

"An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.

“Killing with premeditation” is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing. The question of premeditation is a question of fact to be determined by you from the evidence. It will be sufficient proof of premeditation if the circumstances of the killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the killing. "

What are jury instructions? 

Jury instructions take the actual statutes and place them into a format for the jury to use in their deliberations, as they assess the evidence presented to them.  There is a charge conference between the lawyers and the judge (at least that's what we do here in Texas), where the jury instructions are debated by the lawyers and after arguments, finalized by the judge.  The charge will include the instuctions as well as question like you hear on Law n Order all the time:  "how do you find" type of thing.

For example, here is the Florida statute for murder which can result in a life sentence or the death penalty which you can see dovetailed into the Jury Instructions for Homicide (above):

Florida Statutes 782.04

Murder.—
(1)(a) The unlawful killing of a human being:
1. When perpetrated from a premeditated design to effect the death of the person killed or any human being;
2. When committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any:
a. Trafficking offense prohibited by s. 893.135(1),
b. Arson,
c. Sexual battery,
d. Robbery,
e. Burglary,
f. Kidnapping,
g. Escape,
h. Aggravated child abuse,
i. Aggravated abuse of an elderly person or disabled adult,
j. Aircraft piracy,
k. Unlawful throwing, placing, or discharging of a destructive device or bomb,
l. Carjacking,
m. Home-invasion robbery,
n. Aggravated stalking,
o. Murder of another human being,
p. Resisting an officer with violence to his or her person,
q. Felony that is an act of terrorism or is in furtherance of an act of terrorism; or
3. Which resulted from the unlawful distribution of any substance controlled under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., opium or any synthetic or natural salt, compound, derivative, or preparation of opium, or methadone by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user,

is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082.

(b) In all cases under this section, the procedure set forth in s. 921.141 shall be followed in order to determine sentence of death or life imprisonment. (emphasis added)

(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) When a person is killed in the perpetration of, or in the attempt to perpetrate, any:
(a) Trafficking offense prohibited by s. 893.135(1),
(b) Arson,
(c) Sexual battery,
(d) Robbery,
(e) Burglary,
(f) Kidnapping,
(g) Escape,
(h) Aggravated child abuse,
(i) Aggravated abuse of an elderly person or disabled adult,
(j) Aircraft piracy,
(k) Unlawful throwing, placing, or discharging of a destructive device or bomb,
(l) Carjacking,
(m) Home-invasion robbery,
(n) Aggravated stalking,
(o) Murder of another human being,
(p) Resisting an officer with violence to his or her person, or
(q) Felony that is an act of terrorism or is in furtherance of an act of terrorism,

by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony is guilty of murder in the second degree, which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any:
(a) Trafficking offense prohibited by s. 893.135(1),
(b) Arson,
(c) Sexual battery,
(d) Robbery,
(e) Burglary,
(f) Kidnapping,
(g) Escape,
(h) Aggravated child abuse,
(i) Aggravated abuse of an elderly person or disabled adult,
(j) Aircraft piracy,
(k) Unlawful throwing, placing, or discharging of a destructive device or bomb,
(l) Unlawful distribution of any substance controlled under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., or opium or any synthetic or natural salt, compound, derivative, or preparation of opium by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user,
(m) Carjacking,
(n) Home-invasion robbery,
(o) Aggravated stalking,
(p) Murder of another human being,
(q) Resisting an officer with violence to his or her person, or
(r) Felony that is an act of terrorism or is in furtherance of an act of terrorism,

is murder in the third degree and constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(5) As used in this section, the term “terrorism” means an activity that:
(a)1. Involves a violent act or an act dangerous to human life which is a violation of the criminal laws of this state or of the United States; or
2. Involves a violation of s. 815.06; and
(b) Is intended to:
1. Intimidate, injure, or coerce a civilian population;
2. Influence the policy of a government by intimidation or coercion; or
3. Affect the conduct of government through destruction of property, assassination, murder, kidnapping, or aircraft piracy.
History.—s. 2, ch. 1637, 1868; RS 2380; GS 3205; RGS 5035; s. 1, ch. 8470, 1921; CGL 7137; s. 1, ch. 28023, 1953; s. 712, ch. 71-136; s. 3, ch. 72-724; s. 14, ch. 74-383; s. 6, ch. 75-298; s. 1, ch. 76-141; s. 290, ch. 79-400; s. 1, ch. 82-4; s. 1, ch. 82-69; s. 1, ch. 84-16; s. 6, ch. 87-243; ss. 2, 4, ch. 89-281; s. 4, ch. 90-112; s. 3, ch. 93-212; s. 11, ch. 95-195; s. 18, ch. 96-322; s. 1, ch. 98-417; s. 10, ch. 99-188; s. 16, ch. 2000-320; s. 2, ch. 2001-236; s. 2, ch. 2001-357; s. 1, ch. 2002-212; s. 12, ch. 2005-128; s. 1, ch. 2010-121.

John Edwards, Expert Trial Attorney, Indicted Today in Six Count Indictment From Federal Grand Jury: This Should Get Interesting Fast.

This afternoon, actually in about an hour and a half, former Vice-Presidential nominee (with Kerry in 2004) as well as a Presidential candidate on more than one occasion, John Edwards is going to make his first appearance as a defendant in a North Carolina federal courtroom, since he's been indicted by a federal grand jury on six counts of essentially campaign fraud.

This is going to be a case to watch, at least I find it interesting. Not only is John Edwards a career politician, he's got a history as an extremely successful trial attorney.

Put those two together in the current scenario, where's he is fighting to stay out of jail, and this is going to be fascinating.  Not that he's really demonstrated all that much savvy so far.  I mean really. 

My first question: who is John Edwards choosing to be his lead criminal defense lawyer?  This will bring a whole new meaning to the phrase "controlling your client." 

Oh, and fine. I've been expecting this for awhile. Back in August 2008, I wrote a post wondering about the money after the Rielle Hunter story broke. I asked about campaign financing back then. Guess I got my answer today....

Watching the Casey Anthony Trial - Judge Belvin Perry Is One Great Trial Judge

Watching the daily television feed of the Casey Anthony trial, lots of the good work that Judge Belvin Perry is doing gets lost, as the TV channels take the opportunity for throwing in commercials the minute that the presentation of evidence is halted. 

That's too bad, because lots can be learned from watching Judge Perry in action. 

What makes me think that Judge Belvin Perry is really good at what he does?  Lots of things, but these come to mind immediately:

1.  He understands the lawyers' jobs.  Granted, my background is in huge, voluminous civil cases that take weeks if not months to try.  One example:  in these cases, there's lots and lots and lots of paper, and amidst all that pressure of trial, there's the need to keep track of all that stuff.  Judge Perry offers the lawyers a secure place to keep their files there in the courtroom  - not all judges do that; I have horrific memories of waiting for the firm courier and his cart so we could move all that stuff back to the office every evening, and into the courtroom every morning.  Pack up the bankers' boxes, unpack the bankers' boxes.  How nice to have the Judge give that secure space, it's a little thing but it's a big deal, too.

2.  He lets the jury know that they are the Important Ones here - along with everyone else in the courtroom.  I respect the American system of justice primarily because in the search for truth, that jury really does tend to sniff it out.  True, it's not 100% of the time, but it's amazing to watch those 12 individuals take their spots in the jury box and meld into a cohesive whole.  The jury in a trial does become an entity:  the factfinder.  It's great to see the trial judge here give the jury the respect and courtesy that it deserves.  Judge Perry will ask them to make the call on staying late (he did this yesterday); Judge Perry will blast the lawyers on how the Jury wanted to work Memorial Day and their desire to keep moving is going to be respected. 

3.  He's approachable.  Racehorse Haynes was one of my mentors when I was a baby lawyer, and one of the things he told me was that the masters of the profession knew who they were, and let you know that, too.  They brought their own personalities into their work, they didn't conform - he told me to watch for the ones that didn't wear the blue suit, that didn't carry the Right Briefcase, you get the idea.  Judge Perry doesn't demand respect from the bench, he assumes it will be given - you know he's been doing this for years, without checking his background.  He could be intimidating or arrogant and we'd accept it.  He's not, he listens to the lawyers and while he's routinely denying Jose Baez's requests for sidebars, Judge Perry is accommodating and ready to help everyone get their jobs done, as best he can.

I could go on and on about this judge.  He's just wonderful.  I really, really, really respect Judge Belvin Perry.

Posting on the Casey Anthony Trial - Better Late than Never

Like most of the country, I've been following the Caylee Anthony tragedy almost since the afternoon that Cindy Anthony's 911 call was first released by the national media.  I'm not sure why so many of us are so pulled to this particular case.  I know there are several theories, but there it is:  enough viewers around the country that the trial is being shown all day long, every day, and then countless Talking Head shows are doing their various replays and analyses during the evening.

It may not be the O.J. Simpson trial, but it's getting close.

I haven't been posting on the case for one reason: Terry Lenamon, the first death-qualified attorney on the Casey Anthony defense team, is one of my writing clients. I didn't want to give any appearance of impropriety and for a very long time, I didn't write about this case. I just watched; discussed developments with friends.

However, I've changed my mind about this for these reasons:

1. Terry Lenamon hasn't been on that case for years now, and he has never (ever!) discussed the details of that representation with me. No, I haven't read the memo. No, I don't know the backstory about how he got on that case or why he got off. No, I don't know what his opinion is on what is happening now - haven't got a clue. 

2. There are important things for all of us to learn from this trial.

• First, there are more details here on the reality of how trials work, which is important because TV expectations (like CSI forensics) do impact how lawyers have to present their cases now.  Having jurors of the future see the Real World of forensics, how evidence is presented, how experts are vetted, these are all good things.
• Second, having representing abused and neglected kids for three years here in the local Children's Court, I think this case helps bring light to those issues: not every mother (or father) has that parenting instinct we tend to assume they do.  One of the biggest shockers that hit me in the face when I first started working that docket was my naive assumption that these parents loved their kids, put their kids first - you know, the way that you would think.  Nope.  Nope. Nope. 
• Third, there are damaged people out there. We need to know more about what mental illness is, why it happens, how we can help. Or, if we can.  Having met and worked with diagnosed narcissists, sociopaths, bipolars, and borderlines through that Children's Docket, I know now that there are people out there that see the world, and how to live in it, differently that I do - and some of them are very scary, and some of them will not change.  Maybe they cannot be helped, maybe they don't want to change. 

3. I'm getting lots of questions about this trial, and I think that in the balance, it's better for me to post here on Casey Anthony than worry about this Terry Lenamon tie. Terry's posted his public statements on his blog for all to read, they are over there. What I post here are mine. No connection. I'm a 20+ year AV-Preeminent attorney in Texas, and I have something to contribute to this national dialogue. (Hopefully.)