Whitey Bulger Trial Begins Today: a Lesson in Real Life Mafia Crime and How Organized Crime Works (and Succeeds).

Whitey Bulger's Mugshot

Whitey Bulger goes on trial today and while I haven't been following this case before now, I'm suddenly fascinated with what is happening up in Massachusetts starting this week. So I'm going to be posting about the case, sharing what I'm learning with you, Dear Reader.  
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Today, the trial begins in a Boston federal courtroom for James (”Whitey”) Bulger, who was on the lam for 16 years before getting nabbed by the Federal Bureau of Investigation in Santa Monica, and it’s a big deal.

He’s facing charges of racketeering as well as 19 separate murder charges and his pretty blonde girlfriend, Catherine Greig, has been busted too (she already been convicted and sentenced to eight years incarceration for helping Whitey hide from the law).

Starting tomorrow, 675 people who make up the jury pool will begin the process of making their way to the Moakley Courthouse each morning as the judge and attorneys on both sides work to find 18 people out of that group to serve as the 12 jurors and 6 alternates in a trial that is sure to take months and months to complete.

Whitey Bulger Story is a Fascinating Story to Many:  Best Sellers, Big Movie 

This is a big deal for many people, in many ways. There’s already a couple of bestselling books detailing the life of this alleged mobster, and there’s also a big time movie in the works. (Johnny Depp was cast to play the role of Whitey, but he quit this week in an apparent salary dispute.)

The details of this federal trial are going to be a real-life education for many of us that heretofore learned about organized crime through Mario Puzo’s and Francis Ford Coppola’s Godfather series or perhaps watching the TV series, The Sopranos. 

 No fictionalized version of things this time. Follow this trial carefully and it may prove better than any award-winning fiction.  This is the real deal, and it's pretty darn spooky (and this from reading only the pleadings filed in the public record.)

Lessons in Real World Organized Crime: The Structure of the "Cosa Nostra"

Consider this from the live pleadings, the Fourth Superceding Indictment, where I for one learned lots of different descriptions for what the movies refer to as the “Cosa Nostra” in the movies and how the organization works, as well as the charges that have been brought against Whitey Bulger. 

 Summarizing from the first few pages of this indictment:

1. Since1965, both in Massachusetts along with other parts of the country, there has been a “secret criminal organization” which has several nicknames among its membership including:

• "La Cosa Nostra"
• "stu Cosa"
• "The Mafia"
• "This Thing of Ours," and
• “This Thing”.  (Who knew?  I never heard of "this thing" for the Mafia before, did you?)

2. The secret criminal organization is efficiently structured into groups called “Families" which operate all across the United States. The Families are overseen at a national level by a national “"commission" which is headquartered in New York City. The Commission’s membership are the leaders of each “Family” known as their "Bosses."

3. The indictment describes one of these Families as follows:

• “The Patriarca Family of La Cosa Nostra (the "Family"), which operated in the Districts of Massachusetts,on July 11, 1984 and who was then succeeded by his son, Raymond J. Patriarca, aka "Junior," until he was succeeded by the defendant FRANCIS P. SALEMME.“
• “The Patriarca Family existed and acted in conformity with the rules of La Cosa Nostra (LCN).“

4. Within the the Patriarca Family, the organizational chart involved the following:

1. The head man (or CEO as it were) is the "Boss."
2. His right hand man is the "Underboss."
3. His advisor and counselor is the Family’s "Consigliere."
4. Below the Underboss are a number of "Capo Regimes" or "Capos", men who are each in charge of a group of members who are their “crew.”
5. Within the crew, each member is a “made man” known as a “Soldier.”
6. Associates to the family are those who help the organization succeed and act with the Family members but these Associates are not officially “made” members of the Family.

5. The Family’s business operations were definitely for profit. According to the indictment, this Family gained revenue from a variety of illegal operations such as “…illegal gambling, extortion, loansharking, and narcotics distribution businesses and the collection of unlawful debts.”

6. In Massachusetts, there was a separate criminal organization known as "The Winter Hill Gang" and "South Boston." James “Whitey” Bulger was the Boss of the Winter Hill Gang.

7. The Winter Hill Gang acted with “...the purpose of controlling, supervising, financing, and otherwise participating in and deriving income from illegal activities, including illegal gambling, extortion, loansharking, and narcotics distribution businesses and the collection of unlawful debts.”

8. The Winter Hill Gang was competing with La Cosa Nostra in the New England area in these illegal marketplaces (gambling, extortion, drugs, etc.)for many years, viciously and successfully.  Things got ugly.

More in my next post.

Meanwhile, Back Along the Texas - Mexico Border Things Are Getting More Violent

Maybe you saw the news about the 49 bodies that were found near Monterrey, Mexico earlier this month: well, the 49 torsos.  Seems the heads, hands, and feet had been removed.  Good luck with those identifications, right?  

Actually, the torsos were found near San Juan, on the highway that you would drive if you were leaving say Houston to visit Monterrey.  And you just might do that -- Monterrey is, after all, a huge industrial powerhouse, home to lots and lots of major international companies and Mexico's richest city. 

And Monterrey isn't a common destination for Texans just because of business: lots of folk I know have family down in Monterrey.  One friend of mine has a father who owns an apartment complex in Monterrey, part of his retirement plan.  You get the idea. 

It takes around 5 hours to drive from San Antonio to Dallas.  It also takes around 5 hours to drive from San Antonio to Monterrey. 

Message 3:  100% Zeta

Let's put it this way: last year, in a special report, Reuters predicted "if Monterrey falls, Mexico falls."  So, when 49 torsos are found on a major highway near Monterrey with a nearby cement archway spray-painted, "100% Zeta," it's not hard to figure that the major drug cartels are something that the Powers that Be need to be considering as serious business here in Texas and in the rest of the country, too.

Now, though, the carnage is getting closer to home.  Well, at least to San Antonio.

Message 2:  "Parasites"

Last month, there were also 23 bodies found in Nuevo Laredo, which is across the border from Laredo, Texas, and a mere 157 miles from San Antonio.  Years ago, we used to take day trips to shop in Nuevo Laredo.  No more.

Nine corpses were hanging from a bridge.  The remaining bodies were found decapitated, bagged, and stuffed into an SUV parked in front of the local Customs building.  (Yes, they did find the heads.  Later.)


The message with those bodies, according to the San Antonio Express News:

"This is how I am going to finish off all the fools you send to heat up the plaza ...We'll see you around, you bunch of parasites.” 

Message 1: Sinaloa Taking Nuevo Laredo Back

Then, there were 14 bodies left outside of Nuevo Laredo's City Hall last month.  They were also mutilated.  With those bodies, another message was written on a banner and signed (according to the banner itself) by Joaquin "El Chapo" Guzman, who is the head of the Sinaloa Cartel.

Part of that message?  Guzman was going to take Nuevo Laredo back from the Zetas, and had joined forces with the Gulf Cartel.

Who are the Zetas? 

Los Zetas are an efficient organization that originated as trained military personnel recruited by a powerful Mexican drug cartel, the Gulf Cartel.    These are commandos.  Special Forces folk.

Skilled, smart, savvy professionals - and understandably from a business perspective, in February 2010 they broke off to form their own independent organization.

Like an associate who becomes partner and then splits to form his own law firm, taking business with him.  Or at least, that's my analogy.  Point being, don't be distracted by the blood and gore: it's business to these guys.

Today, Los Zetas are known to operate out of Nuevo Laredo and they've got a big territory.  The biggest in Mexico, in fact.

Cartel business has expanded too: from drugs, it's gone into guns, and kidnapping for ransom, as well as human trafficking and who knows what else.  It's a business, and a growing business needs to diversify.

Los Zetas have diversified as well as expanding their territory. 

Which is what business does.  Now, if you were running the biggest company in your industry in Mexico, and you were projecting where your business would be in the next five years, where would your projections go?

Does Texas seem so farfetched?  Does Montana?  It's business. 

This isn't a gang war between two factions in the poor section of town.  This is two major, international combines fighting for who comes out on top in their market.  It's market share.  

So, in today's news where "El Loco" was arrested for taking part in the 49 beheadings event near Monterrey, a man named Daniel Jesus Elizondo Ramírez and a member of Los Zetas, this shouldn't be considered all that big of a deal.  He's an employee. 

Nor should the fact that the Treasury Department just put the names of four big wigs in the Sinaloa drug cartel to its "kingpin list," two of which are the sons of the CEO of the Sineloa organization, Joaquin "El Chapo" Guzman.   Being on the Kingpin List means that the U.S. Government can freeze any assets found in the United States as well as barring anyone from doing business with them. 

"El Chapo" is the most wanted man in Mexico.   He's been on the Kingpin List since 2001.  "El Chapo" also made Forbes' Billionaire List in 2012 (he's number 1153) and Forbes lists Guzman as number 55 in this year's 70 World's Most Powerful People.

Would anyone be surprised to learn that the day that this post was typed, this guy was off someplace nice playing golf?  I know I wouldn't.  It seems like something a billionaire CEO would be doing....

Zetas vs. Sineloa:  Fight for Sales Territory and Market Share Between Two Industry Leaders

It seems to me that too many people hear about the nicknames and the bloodbaths and think that these are strange, emotional groups of illiterates who will just kill each other off in time.  I think that's stupid.

This is business at a scale that most of us cannot comprehend.  It's billions of dollars in revenue, and I'm wondering if that is monthly not annually.  

And maybe that's why we're not hearing that much or seeing that much happening here in Texas to stop this advance.  The profit-motive is a powerful thing. 

Gameover - The Latest Malware Threat Has the FBI Issuing Public Warnings

The Federal Bureau of Investigation (FBI) has issued a warning to the American public about a new internet attack they are calling "Gameover." 

Read their press release here.

Seems that the evildoers send you an email that looks to be from a very official looking site, informing you that's there has been a problem with a recent financial transaction.  You're instructed to follow the link provided in the message for further details. 

Wham.  If you click on that link, you've allowed the malcious software ("malware") access to your hard drive, where it will spend its time locating and forwarding the user name and passwords for your financial accounts.  Yes, like your checking account.

It's serious stuff -- they're taking lotsa bucks from people and it's called "gameover" because by the time that you know you've been hit, they're already finished with you and taking your hard-earned cash.

PC World has a nice article discussing how this latest threat is another version of the Zeus malware from a few years back.  Along with it, a discussion of the past year's internet thievery highlights.

Here's the thing.  Don't open those attachments connected to emails even if you know the person unless you are expecting them to be sending you a document.  And even then, it's nice to have your security software in place to scan the attachment before it's downloaded.  (Yahoo! Mail provides this via Norton, nice freebie.)

Drew Peterson and the TV Movie: I Admit It – I’m Gonna Watch Rob Lowe

I’ve been keeping up with the Drew Peterson case for it seems like years now (hey, it has been years if you count this December 2007 post) and truth be told, part of me is kinda irked that he’s getting to feel so darn important because now, yes, there is a Lifetime TV Movie bearing his name.

You know he loves this.  He’s even talking to the media via his attorney. 

And I hate that.

However, I am going to watch this movie.  From the previews, Rob Lowe looks to be giving an excellent performance and his hair looks perfect for the role, to boot.  I’m happy to see Penny from the Big Bang Theory getting a chance to show us that we really do need to know her name as an actress (besides hosting whatever awards show she’s doing).

Maybe this movie will help some battered wife out there get the heck out.  At least, that is what I’m going to be telling myself … because this is one guilty pleasure that I’m not going to miss. 

Troy Davis and Judge Moore: What Was the Evidence in this Case?

Troy Davis was executed by the State of Georgia, despite all the controversy surrounding whether or not this man was innocent of killing a police officer, long ago, in the parking lot of a fast food restaurant.  Since the execution, I've read all sorts of stuff on the web about this case - from Ann Coulter to Alec Baldwin - and it's left me wondering: okay, what WAS the evidence in this case?

Earlier, I posted what I understood to be accurate - that the majority of the eyewitnesses had recanted and that there was no physical evidence presented by the prosecution at the trial where Troy Davis was convicted.  Was this true?  (No.)

Also, I wrote that the United States Supreme Court had done something very unusual when they sent the case down for an evidentiary hearing before a district court judge (Judge William Moore of the United States District Court for the Southern District of Georgia, Savannah Division).  As I recall, this was the first time that the High Court had done this in around 50 years.  The federal trial court judge would serve as a fact-finder, grading the papers of that Georgia jury. 

Interesting - a single federal judge given the opportunity to overturn a state jury.  Think about that, it's a big deal. 

So, after pondering all this, I went to the very long opinion that Judge Moore issued in that unusual hearing, and I have posted it at Google Docs for anyone who wants to read it (it's almost 150 pages, and it appears in two parts):

Judge Moore's Opinion re Troy Davis Part One;
Judge Moore's Opinion re Troy Davis Part Two.

The evidence that was considered in the Troy Davis case is presented at the beginning of this opinion.  After that, an analysis of that evidence under a "clear and convincing" standard is given; a standard not as stringent as that of "beyond a reasonable doubt," as discussed on page 80 of the Pattern Jury Instructions of the Eleventh Circuit.  (Judge Moore spends significant word count explaining the burden of proof he believes applies in his determinations.)

Bottom line, it is this opinion that I think everyone should be reading before they consider the words of political commentators - Judge Moore obviously wrote this opinion with the expectation that many eyes would be reading and reviewing his work. 

• Was there physical evidence?  He discusses shell casings found at the scene of the crime.
• Why wasn't he swayed by the eyewitnesses who recanted?  He goes into detail, witness by witness, regarding what they said then and now.

Did the State of Georgia execute an innocent man?  I don't know.  I do know that I learned something from this opinion and I wish I had read it, in all its details, long ago instead of reading a lot of the other stuff out there on this case. 

Psych Today's Dr. Karyl McBride Answers Your Casey Anthony Trial Questions

As promised, guest blogger Dr. Karyl McBride answers your questions today regarding some of the psychological issues that have arisen during the course of the Casey Anthony trial.

Dr. McBride is the author of Will I Ever Be Good Enough? Healing the Daughters of Narcissistic Mothers, published by Simon and Schuster and available as either a paperback or e-book. She will be hosting her annual workshop (for therapists and narcissist survivors) this fall at the Inverness Hotel in Denver, Colorado on October 7 - 9, 2011 (details here), the "Healing the Daughters of Narcissistic Mothers Workshop."

You may listen to her recent interviews regarding the Casey Anthony trial at her website, which include (1) June 9, 2011 - HLN's "In Session" with Mike Galanos and (2) June 20, 2011 - HLN's "Issues With Jane Velez Mitchell." 

For more details on Dr. McBride's background and expertise, please review the biographic details provided in my earlier post.  What follows are Dr. McBride's answers to the questions sent to her, which were culled from both Backseat Lawyer comments as well as emails that I received regarding psychological questions/concerns.

Question:  In families with a narcissist, what other mental illnesses are found - aren’t they all ill from living with the narcissist and being controlled by him? 

Dr. McBride:  Narcissistic families are a dysfunction all to themselves. There are unique and insidious factors to the family that looks good on the outside, but has emotionally harming behaviors and reactions happening on the inside, in the dark, and behind closed doors. The cornerstone to maternal narcissism is the inability to love unconditionally and a lack of empathy.

Narcissistic parents do not tune in to the emotional world of their children. Instead, everything is all about them...the parents. The children are there to meet the needs of the parents. There are many ramifications to the children... so many, I could write a book about it! Ha! See book details at www.nevergoodenough.com . The most damaging to the children is growing up with nagging self doubt and a feeling of not being good enough.

Question:  What is the difference between a narcissist and a sociopath and a psychopath?

Dr. McBride:  Not all narcissists are sociopaths or psychopaths of course. But most sociopaths and psychopaths are also narcissists. How confusing is that, eh? Psychopaths can't form human attachment, have a lack of empathy, masked by an inability to appear normal. They have no remorse and these are the people with a criminal mind who do bad...really bad things.

Sociopaths are people with social behavior that is extremely abnormal and they are interested only in their own personal needs and desires without concern for the effects of their behavior on others. They can also be criminals.

There is an interaction between genetic predisposition and environmental factors much like addiction in sociopaths and psychopaths, but it is thought that psychopaths leans more towards heredity while sociopaths lean more towards environment.

I don't think there is enough research out there to confirm. The debate continues on nature versus nurture. What makes it even more confusing is that trauma effects the brain.

Question:  Is being a liar or a gambler sometimes a born trait? 

Dr. McBride:  Addictive personalities have a predisposition but turning into a gambler is mostly related to environmental factors. Lying is a learned behavior in my opinion. Can you imagine looking at a new born baby and knowing that this precious little one is sure to be a liar. It doesn't make much sense to me.

Question:  How can a mother not cry about her missing child but go bar hopping and being in “Hot Body” contests? 

Dr. McBride:  Oh, talking about Casey Anthony here? I do not believe we know all the details of this case. See my Psychology Today post on the family dynamics theories. I always worried that Casey's behaviors were trauma related and best explained in that way. I still wonder why the litigation did not bring forth more psychological testimony or assessment.

Question:  I would like to know if it does not seem strange that there has never been any comments from friends or relatives of the Anthony family... except Casey's fly by night 'friends' who we've seen in court. Why no one else is sitting in the courtroom with George and Cindy for support. Where are the siblings of George and Cindy? Or neighbors or parents of Lee or Casey's childhood friends, teachers – anyone who can say something about what life was like in the Anthony household? 

Dr. McBride:  This is such an interesting point! In narcissistic families, there are few friends. Narcissists don't make emotional connections with people. We don't know if this family had narcissistic dynamics, but if there were, this all makes a whole lot of sense to me.

Additionally, the family members of narcissistic families are rarely close and connected. They were not taught to be close, but rather pitted against each other in competitive ways. Ughhh!

Question:  Do narcissists kill? Isn’t that what makes the difference between a narcissist and a sociopath like Ted Bundy? 

Dr. McBride:  Many people have narcissistic traits and we could never say that narcissists kill.

Question:  Is Lee Anthony the scapegoat in this dysfunctional family? 

Dr. McBride:  Again, good question and thought. We don't know anything for sure. But, with the dynamics we saw and then looking at narcissistic family dynamics, it looked that way.

Question:  What about Cindy Anthony? No one talks about her but she lies too and there’s something not right about her. It can’t be just one mentally ill person in that house. What if Cindy is a maternal narcissist? 

Dr. McBride:  I don't want to diagnose anyone without knowing them. We can only do hypotheticals. But the mother-daughter strained relationship makes sense if we have a narcissistic family and an incest family. The engulfing behavior of the mom in this family makes more sense too.

Question:  How do we know if we are working with a narcissist? I think I know someone just like Casey! 

Dr. McBride:  A narcissist is someone who exploits others, has no empathy or interest in others, is all about themselves, can be grandiose, haughty, arrogant, has a sense of entitlement and is jealous of others or thinks others are jealous of them. I think one way to tell is if they are able to give and take and do reciprocity or if it is always about them when they invest in something. The biggest key, however, is that lack of empathy.

Question:  Can narcissists change? Could Casey Anthony have been helped if she was in therapy long ago or she unreachable?

Dr. McBride:  We don't know if Casey was or is a narcissist. Narcissism is a spectrum disorder and one can have traits without being a full-blown NPD. I think it is very difficult to assess what went wrong in this case and with Casey.

I can make a case for the defense though when I look at all the dynamics. If so, then Casey does not look like she appeared on television. Hard to explain, but if you read the blog post on Psychology Today it will make more sense.

I don't believe in diagnosing people we don't know, so please understand that my postings here and on my blog are using the case to educate about dysfunctional families and not to take a stance or diagnose this family. There is much here that we will never know or understand because there are too many unknowns, secrets and lies.

Casey Anthony Book Deal: With Her Deposition in the Zenaida Gonzalez Case, How Much Is Left to Sell to a Publisher?

The real Zeniada Gonzalez filed her civil lawsuit against Casey Anthony back in September 2008. Last week, Ms. Gonzalez's lawyer, John Morgan, lost no time after the infamous Not Guilty verdict in the murder trial -- he promptly served Casey Anthony with a subpoena to have her deposition taken in Zeniada's civil suit.

Unless there is an agreed-upon delay, the deposition is scheduled to take place in Mr. Morgan's Orlando law offices on July 19, 2011.

Zenaida is suing for defamation, seeking damages for the harm she has experienced after her name was used as "Zanny the Nanny" - something that Casey Anthony admitted in her criminal case was a total fabrication.

That deposition will be transcribed by a court reporter. Maybe it will be videotaped. Casey Anthony will be sworn in - just as if she was taking the witness stand in a courtroom - and everything she says will be part of this civil defamation suit.

So, here's my question: with that big fat deposition coming down, how much will be left for any book deal? The deposition will be public record, it's the taking of testimony in a court case, and unless there's a gag order it will only be a matter of time till the depo will be online for anyone interested to read.

Add that to the fact that double jeopardy has attached, and Casey Anthony cannot take the Fifth on any question that might tend to incriminate her in Caylee's death (she cannot be tried twice for that crime), and that deposition testimony should be pretty interesting.

Suggestion: if it's acceptable under Florida law and Florida ethical rules, as well as the court reporter (in Texas, court reporters are paid for extra copies), maybe Zenaida would consider placing that deposition transcript for a small price on Amazon - and let the proceeds go to an appropriate charity that would honor Caylee. If that's okay to the Court, the Bar, etc. and I don't know that it is (maybe it could be if there was a Court Order in place that gave the okey-dokey).

I'm not sure that this flies, but I like the idea of sales of Casey's words going to honoring Caylee Marie.

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.

Nancy Grace Enters Search for Missing Baby as Mystery of New Braunfels' Joshua Davis Unfolds

Joshua Davis is 18 months old and very cute.  He has big button brown eyes and a wide, expecting smile.  He is also missing, and has been for over a week now.  His mother is very pregnant, and this prevents her from taking a lie detector test.  Meanwhile, Joshua's daddy has taken several lie detector tests, and passed. 

According to WOAI-TV reporting (see Nancy Grace media link below), so has everyone else who was in the home that day - except for one individual who remains unidentified. 

Today is the 8th day that he's been gone.  

The baby disappeared during some of the coldest weather we've seen in Texas for decades.  Talk of snow.  Days where we didn't go above freezing.  It's too hard to ponder whether or not it's merciful that those first few hours of searching around the home late last Friday and into that next chilly Saturday morning -- in culverts, underneath the houses and cars and in the wooded areas -- didn't turn up a body.  (For awhile, they were calling it a recovery effort - thinking that the toddler had strolled away from his home and in the sub-freezing temperatures could not have survived the night.)

The baby's daddy told reporters that he was glad; he believes his boy is still alive and that he's been snatched.  The mother cries; she tells everyone that he was wandering in and out of the room where Toy Story was on the TV and no, the door wasn't open.  But it wasn't locked. 

And, his mom says that Joshua couldn't open the door.  Nine people in the home; mommy and daddy watching television in different rooms; and there's reportedly no trace of the baby outside of the home itself.

They've brought in the bloodhounds.  They've got the FBI and the Texas Rangers on the scene.  The Heidi Search Center and other community volunteers have helped combed an ever-expanding search area: latest we were told a two-mile radius, and been gone over like a fine-toothed comb. 

No Joshua.

Today, there will be a massive flier outreach, with parents and friends and family and volunteers trying to reach as many people as possible in communities along IH 35, from San Antonio to Austin, with papers giving information and a big photo of the little guy. 

And, Nancy Grace has joined the team.  Her first report on the Mystery of Joshua Davis - gone without a trace - aired this week.   

Nancy Grace?  Yes, and I welcome her interest - though others may not.

Of course, Nancy Grace coverage will be unwelcomed by some, who will see her involvement as self-serving and an open invitation for media exploitation of a newstory that is growing bigger by the day.  Personally, when a baby has literally disappeared from his home then any help should be welcome. 

Nancy Grace can bring a huge national spotlight to this little, beloved community north of San Antonio - and it seems to me, that right now this is a very good thing for Joshua Davis.  I welcome her interest. 

If you know anything about little Joshua Davis - where he is, where he might be, any clue as to what has happened to him -- please call the New Braunfels, Texas, police at 830-221-4100.

CrimeStoppers of Comal County, Texas, is offering $5000 for information that leads to finding Joshua Davis.  You may call anonymously and give your tips to 830-620-TIPS (8477) or 800-640-8422 or just text COMAL along with your info to CRIMES (274637).

Trial by Media: Michael Jackson Doctor, Conrad Murray, Will Be Tried On TV - Should He Be? Do the Pros Outweigh the Cons?

TMZ is reporting today that the trial of Dr. Conrad Murray in California, where he is facing manslaughter charges in the death of Michael Jackson, will be televised.

Now, I recognize that if there's gonna be any place in the country where putting stuff on the screen seems like no big deal, it's Los Angeles. And I understand that there's a lot of profit here by doing so -- big audience, big advertising dollars, I get it.

I still don't know that this is a good idea. First of all, the job of the defense is to air a lot of dirty laundry. Yes, Michael Jackson will be tried in this case -- it's a strategy honed by my mentor Racehorse Haynes long ago, in the Cullen Davis murder trial.

No smart criminal defense attorney is going to forego introducing as much evidence as possible that puts Jackson in a bad light in defense of Dr. Murray's actions that day. It's gonna happen.  (There's already scuttlebutt about a Michael Jackson suicide defense.)

Not fair to his kids. Not fair to his mom. Won't matter. We're going to learn things that will hurt them in this trial, and it's gonna go all over the world instantaneously in this televised trial.

Meanwhile, there are all those conspiracy theories out there (yes, there are Michael Jackson sightings now) as well as the potential of new ones if this trial is not put out there for public scrutiny. People may debate the trial in its aftermath, but they'll have the evidence presented and that's a different scenario than the omission of cameras and worldwide suspicions of evildoing in the courtroom. This is a plus to televising this thing.

However, I'm not a fan of televised trials. Perhaps in the early days, when the process was put onto our screens in sort of a CSpan approach -- but now, it's become so much more akin to reality TV.

Trial by media is a real concern, as well. Can Dr. Murray get a fair trial? I don't know, but if he's convicted there is that possible appellate argument.

Do the pros outweigh the cons? I don't think so in this case. In my opinion, Dr. Murray's trials should not be televised.

How Can Jose Baez Be Lead Lawyer in the Casey Anthony Case -- No Death Qualified Attorney Has Been On the Record Since Terry Lenamon Left

Back in January, I was flabbergasted when I learned the limited experience that Jose Baez had -- and here he was, lead counsel in the Casey Anthony case. Back then, I wondered about ineffective assistance of counsel claims (you can read that post here).

Then, today, I learn that Jose Baez is filing a Motion to Transfer Venue - and his spokesperson has told the media that afterwards, he will have a press conference. Of course he is.

Meanwhile, fellow "Dream Team" attorney Linda Kenney Baden has been up in New York City, appearing on the Today Show and telling everyone how the local media has been sooooo biased, but the national media has been so NOT.

Please. Does this woman watch Nancy Grace? I do. Most folk at Nancy Grace aren't discussing the issue of whether or not Casey Anthony killed her daughter, they're talking about how strong the state's case is and whether or not Casey Anthony will get the death penalty - and they're looking carefully at all the new document dumps as they occur. (There was another one last Friday.)

There's No Big Diff in the Media Coverage

My first point: there is no significant distinction to be made between the local media and the national media in how the Casey Anthony case is being portrayed. That's hooey.

And, now, my second point. And it's much bigger.

Terry Lenamon Posted Florida Rule on Death Penalty Qualified Attorneys

I was over at Terry Lenamon's blog (he was the attorney last fall who argued for Casey Anthony and got the death penalty off the table for her) and he's building a big blog all about the death penalty -- both in Florida and across the country. Lots of stuff about capital punishment.

(As a side note, Lenamon's picked up on our illustrious Chief Justice Sharon Keller over here, but that's a different post for a different day. We're all so very proud here in Texas.}

And Terry Lenamon has put the entire Florida rule on what attorneys can represent defendants who are facing the death penalty. Appointed or Retained. And, Florida is pretty darn strict on which attorneys get to take on this job.

And here's the big scoop that I'm shocked no one is discussing....no one on the Casey Anthony Legal Team Meets the Florida Legal Standard

There is absolutely NO ONE on the Casey Anthony legal team, as far as I can tell, that has these qualifications. Lenamon did, but he isn't currently on the "Dream Team."

Neither Jose Baez or Linda Baden meet this statute. Go read it for yourself.

I think this creates a great argument that there is a Due Process violation here.

Think about it. Jose Baez filed a major request with the court today -- a venue challenge. Big deal in any case, MAJOR big deal in this one. Does he have legal authority to act? Looks questionable, given the statute.

Is this ineffective assistance of counsel? Mebbe. Bigger argument, I think: Casey Anthony's due process rights are being violated if she's been represented outside of the Florida qualification statute.

Think of the appeal, assuming she's found guilty.

Lawyer without the necessary - and mandatory - legal prerequisites makes major decisions and files key motions (like the venue request) in a death penalty case.

First argument, it's due process as a matter of law because the Florida statute wasn't met. Second argument, it's due process under the facts of the case because this unqualified attorney made flawed decisions during the course of Casey Anthony's case that have irreparably harmed her.

More on this later. I'm just fuming.

And that was even BEFORE I read all about how it took 8 years for Jose Baez to get a bar license with the State of Florida.

Ye Gads. Why the heck isn't Terry Lenamon -- who is death qualified -- on this Casey Anthony case?

I am not a Florida attorney, nor am I a criminal defense attorney. But I do know a little about the 8th and 14th Amendments to the US Constitution, I can read a statute, and I'm thinking I have a real and valid concern here.

Wish Terry Lenamon could talk about this.

Who Is Jose Baez Besides Being Casey Anthony's Attorney?

After reading today at Examiner.Com that Jose Baez's past experience involves winning 32 out of 34 trials while working as an intern at a Public Defender's Office as well as doing internet training at Lexis-Nexis, I was shocked.

How did this guy get to be the lead counsel on the biggest case of the year? And however snooty this may sound, Casey Anthony BETTER have a dream team if this is the type of experience we're talking about here.

Most defense attorneys work years before they take on felony cases of this magnitude, where the death penalty is involved. And that's before you add in all the media hoopla. What gives?

Here's what I found out about Jose Baez.

1. First of all, his website doesn't allow you to read his bio page - it just clicks back to the home page when you attempt to go there. Nice, expensive website.

2. WESH-TV in Orlando reports that it has checked out his recent past experience in their records; however when you compare this to the Baez site with its four "success stories," it's duplicative.

Plus, there's only FOUR and they are the kind of wins you'd expect an aggressive, Young-Turk type of defense attorney to have on his site at this point. NOTHING near to the complexity of the Anthony matter.

3. You can't pull up his information at Martindale, when is a site owned by Lexis - purportedly, his former employer. He's not in Martindale???? What??????

4. The Florida Bar Association shows Jose Angel Baez to be in good standing with them, with offices in Kissamee, Florida. He was admitted to practice in September 2005.

5. I found a site, avvo.com, that reports Jose Baez got his law degree from St. Thomas School of Law - while Investigation Discovery quotes Baez's web site as Baez having a Bachelor's of Science Degree in Criminology from Florida State University. Same source also quotes the Baez site as Baez working for the Public Defender's Office since 1995.

Okay.

We know that he's been licensed to practice for around 3 years when he takes the Casey Anthony case.

We know that he's got an office in Kissimmee, and he's paid for a very nice website.

We know he's not listed in Martindale (a real red flag to lawyers out there).

Today, I can't get anything off the website. However, it appears that those seeking information about Baez have had access to it, and it's been from his own website that they've reported his "success stories" as well as his background and experience.

Personally, I'll give Jose Baez this: as a trial lawyer, you go into a courtroom and take responsibility for another human being.

It takes a whole lot of chutzpah to do that job. Courage, huevos, whatever you want to call it.

And it's clear that Jose Baez has that in spades.

What's not clear is what the heck Jose Baez thinks he's doing, representing Casey Anthony. Her defense is something that even the most seasoned of advocates would find challenging.

He's gone out and got himself some co-counsel. Good. Great.

Because there's a thing called "ineffective assistance of counsel" that every jailhouse lawyer can chant like a mantra upon appeal and if my search of the web is all we've got to put in an appellate brief here, well - Katie Bar the Door.

Point of Error comin'.

Unless, of course, on the first day of trial we get a Surprise Change in Lead Counsel -- a Mystery Lawyer who reveals himself or herself as things tee up (wouldn't that make a great Nancy Grace Bombshell?).... 


Update:  After a self-imposed gag order on posting regarding the Casey Anthony Case, I have begun posting again beginning June 3, 2011.  For reasons on the gag, and why I decided to lift it, you can read my June 3d post. 

You May Also Be Interested in Elements State Must Prove to Win - Three Prongs to First Degree Murder in Florida and Circumstantial Evidence vs. Direct Evidence.

Killers on the Loose: They're Looking for the Shoppers in the Wal-Mart Trampling Case

Showing my age, when I first heard the story about the Wal-Mart clerk being trampled to death by crazed bargain hunters on this Thanksgiving's Black Friday, my mind immediately recalled those 11 fans trampled to death in the mob's rush for the best seats at a Cinncinnati, Ohio open seating concert for The Who back in 1979.

Being trampled to death must be very painful, and terrifying, don't you think?

The Authorities Are Considering Criminal Charges Against the Shoppers Who Trampled the Clerk

This morning, I read that law enforcement is going over the WalMart surveillance video, and looking to charge those folk who ran over this poor guy on their way to their DoorBusters. The headline reads almost like a Wanted poster, and I'm wondering when CrimeStoppers will get involved (only halfway tongue-in-cheek):

Sought: Wal-Mart shoppers who trampled NY worker.

They're saying that criminal charges are possible -- if they can figure out the identities of those who actually ran over the poor man.

I think about who these people must be, and what they are thinking about right now. Are they going over that horror in their minds, with regret? Or, are they focused on whether or not they are going to be caught, based upon those surveillance videos?

Some Shoppers Got Mad the Store Was Closing Due to the Death

I suppose it's somewhat good news to report that there were those who tried to help - and got hurt in the process. But this is far from making me feel better at the thought that materialism and a Good Deal were so important that people ran like cattle over this clerk. What is this telling us as a society? Is Elmo that important?

And, can you believe that there were shoppers who actually got angry because WalMart announced the store was closing due to this man's death? WHAT? Did they expect to carry their bags out, and manuever their carts, around the yellow crime scene tape? Did this death mean so very, very little to them?

This saddens me. And, it makes me wonder about what's going on in the minds and hearts of those who did this deed. No one's come forward with mea culpa. Are they still as self-absorbed as they were on Friday morning?

Sensationalism On the Heels of Materialism

It also saddens me that lots of sensationalized media stories will end up making advertising dollars for various publications, online and not, based upon this holiday tragedy.

One bright note: early on, if you wanted to check out a cellphone video of the event, you could see it online. Then, YouTube took the video down for Terms of Use Violation. Thank you, YouTube.

Who Was the Guy Who Got Trampled? The Clerk Who Opened the Door

By the way, it was a 34-year-old man named Jdimytai Damour who died in that shopper's rush. He was the guy who unlocked the doors for these people to enter the store to shop for the early-bird specials.

Rest in Peace, Jdimytai Damour: 1974 - 2008.

My sincerest condolences to the family and friends of Jdimytai Damour. I hope and pray that somehow, someday your holidays - especially Thanksgiving, a day dedicated to recognizing one's blessings with gratitude - can become something of joy and peace once again, despite this terrible tragedy and the horrific memory you must now carry with you.

Again, I am so sorry this has happened to you all.