YATES & SCHOLOSSER: 2 MOMMIES WHO RECENTLY SUCCESSFULLY ARGUED INSANITY DEFENSE - IS CASEY NEXT?

My Disclaimer

Here is my disclaimer again since I have previously received some crazy feedback on my position on the Casey Anthony case. (Yes, one person even called me a baby killer!): I am not defending Casey Anthony, nor am I making the argument that I, personally, believe she is innocent. What I am saying, however, is that no matter how guilty you think Casey Anthony is of killing her daughter, she is entitled to a defense; therefore, my positions are from the perspective of a defense attorney.

Insanity Defense Recently Successful with TWO Mothers Who Killed Their Children

Insanity as a defense is very difficult to prove. Statistically, it is only used in about 1% of cases and of those 1% of cases, the defense is only about 20% successful.

Andrea Yates mugshot - 2000

Even though the insanity defense is rarely successful, two people who recently successfully asserted the defense were Andrea Yates and Dena Scholosser: both of these women were mothers who killed their children. Ms. Yates drowned her 5 children in the bathtub, was found guilty and then on appeal was found not guilty by reason of insanity in 2006. In 2004, Ms. Scholosser chopped off the arms of her infant child who later died in the hospital. She was found not guilty by reason of insanity. As recently as November 2008, it was disclosed Ms. Scholosser will soon be released to out-patient care.

Dena Scholosser mugshot - 2004

These two cases may set a trend for successful argument of not guilty by reason of insanity, especially for a mother who has killed her toddler or infant child.

Understanding the Insanity Defense

Florida uses the M'Naghten Rule: To establish a defense on the ground of insanity, it must be clearly proved that:
1) at the time of the committing of the act,
2) the party accused was laboring under such a defect of reason,
3) from disease of the mind, as not to know the nature and quality of the act he was doing; or,
4) if he did know it, that he did not know he was doing what was wrong.

Basically, insanity can be proved 1 of 2 ways in FL: the person was so mentally sick 1) she didn't know that what she was doing was wrong OR 1) she did not understand the consequences of the act.

Application of Casey Anthony Case to Insanity Defense

One major difference between the Anthony case & the Yates/Scholosser cases is that in the Yates/Scholosser cases, there was no question both mothers committed the murders. Ms. Scholosser was found in her house, covered in blood, with a knife in her hand. Ms. Yates immediately confessed to the drownings. In Casey's case, however, she never made a confession and has maintained her innocence. Thus, Casey would have to admit to the crime before she alleges the insanity defense.

Casey Anthony did exhibit certain behaviors that may lead one to question her sanity. Everyone is still focusing on how she is a compulsive liar but I think her lying is possibly indicative of someone with multiple personalities or a different perception of reality. Remember, she did not just lie about her daughter's whereabouts. Casey has lied her entire life and that leads me to suspect that maybe she has an undiagnosed mental defect. And remember the Nanny who allegedly stole Caylee? Was this another delusion of Casey or was it really a lie of a sane person. Or how about Casey's jail house video where she says she wants to find Caylee? Is she lying or did she really believe her daughter was somehow alive?

Over 500 pages of documents were released today raise a mental state red flag:

1) Casey had a diary entry that stated she was "happy", had no regrets and hoped "the end justifies the means." I would like to know what the rest of the diary says. Are any of her writings delusional? One entry is not enough.

2) Casey allegedly considered a miscarriage (I do not know how that's really possible) after Caylee was born.

3) Casey suggested committing herself to a psych ward all the way back in 2006. Additional information points to Casey not being "fit" to raise Caylee and her parents, George and Cindy, wanted to get custody of Caylee.

4) The heart-shaped sticker found on the Caylee's mouth suggests Casey was possibly suffering a delusional state at the time of the killing. What was the reason for the sticker? Ms. Yates had delusions that her children were evil and Ms. Scholosser heard G-d commanding her to remove her child's arms. Did a "voice" tell Casey to strategically place the sticker on Caylee's mouth?

I doubt the insanity defense will be raised, but I just wanted to give you another potential perspective of the case. It could be possible that Casey has a severe mental defect that has gone undiagnosed...

I previously discussed the insanity defense in the Casey Anthony case on December 15, 2008. Blog here.

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CASEY ANTHONY CASE: GRANDPARENTS WANT IMMUNITY

December 31, 2008: Today, George and Cindy Anthony's (Casey's parents) attorney asked prosecutors to give his clients immunity if they were to speak to prosecutors again.  Article here.

George & Cindy Anthony (courtesy of bloggernews.ne

Remember, Cindy and George have both spoken to investigators numerous times in the past.  George even testified before the Grand Jury.  That means what he said to them is on the record and can be used against Casey (or him if he's charged with a crime).  I'm sure many of you saw the taped interviews of Casey's parents from early-on in the investigation.  Also, we know Cindy reported that the trunk of the car smelled like a dead body, then she recanted the statement.  Further, investigators asked Cindy to give them Caylee's brush but instead she gave them a different brush. 

Some suspect prosecutors will charge the parents with "obstruction of justice" for their failure to cooperate with investigators and alleged covering-up for their daughter.

Many question what George and Cindy have to hide - why they will not speak to investigators willingly.  It is not necessarily that they have anything to hide.  In fact, they know they are possibly facing obstruction charges from previous conversations with and actions against the police. 

This tactic is the parents' attorney's way of saying, "If you want more information, we must be sure you aren't going to come after us and charge us too." I know many of you want the parents to go down too...but...

At the end of the day, what do people want?  They want the killer behind bars.  And since Casey is heading to trial for allegedly being the killer of her daughter, the prosecution must put on their best case.  That means forensic evidence and live testimony.  An obstruction of justice conviction is not the same as a murder conviction.  Prosecutors should find whatever they need to bolster their main case.  If that means giving George and Cindy Anthony immunity so that prosecutors can get more info or to get them to testify against their daughter,  that's what should be done. 

LOOK AT THE ULTIMATE GOAL: A MURDER CONVICTION FOR CASEY.  PROSECUTORS NEED TO KEEP THEIR EYE ON THE PRIZE AND DO WHATEVER IT TAKES (WITH ETHICAL PARAMETERS) TO GET THAT CONVICTION.

Here is my interview discussing this issue.

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CASEY ANTHONY CASE: METER READER BRINGS UNANTICIPATED PROBLEMS TO PROSECUTION

(Red Huber, Orlando Sentinel / December 20, 2008)

Last week, a meter reader, Roy Kronk, was working near the Anthony home when he discovered Caylee Anthony's remains in a bag just 1/4 mile from the family's residence. This man's discovery brings a whole different set of problems to the prosecution that could never have been anticipated in any prosecutor's wildest dreams. Article here.

1. Was Roy Kronk Involved?: Up until this point, Casey Anthony has been the only name suspect in her daughter's death; however, Mr. Kronk's discovery of the remains raises a few eyebrows.  Kronk is not considered a suspect in Caylee's murder; according to authorities, he was simply a "concerned citizen" who called the authorities THREE times in August to come to the SAME location where the bag was found in December. He reported seeing a "suspicious" bag. But what makes something suspicious? Suspicion is a state-of-mind. Why did he determine this bag suspicious instead of just litter in an undeveloped area? And human nature has it that curiosity would have drawn him to the bag to inspect its contents. Did he really not ever inspect the bag the 3 other times he saw it? How is it that he did not direct the authorities to the bag back in August? And was he in the area at all between August and December? There is a lot about the August "sightings" that is totally bizarre.

Casey's defense team is going to go crazy with this information. Again, Kronk is not a suspect but the defense can plant the seed into the jury's mind (upon strong objection from the state) that Kronk's discovery and his constant calling of the authorities is enough to question whether Casey acted alone (or at all) in her daughter's murder. Studies show that often times a perpetrator will be drawn to a crime scene and just cannot stay away. Remember when Scott Peterson was seen at the dock after his wife Laci's disappearance?

2. Authorities' failure to locate crime scene. From a defense perspective, Casey's defense has been handed a prosecutorial gift by the authorities' failure to locate the bag in August. The prosecution must create a crime scene for trial. The fact that Caylee's body could have been located in August (when Kronk originally made the call), but for the authorities' failure to properly follow-up on all leads, causes huge problems. If the body were discovered in August, much more evidence surely could have obtained; thus a better crime scene could have been created. Flesh might have still been present and forensic evidence could have given much more information to cause-of-death and any other evidence. Instead, 4 months passed before the body was located, and only skeletal remains were discovered, no flesh remained.

Forget what kind of evidence could have been retained in August. The authorities' general failure to investigate this bag in August calls into question their entire procedure and competency to properly investigate the case as a whole. The defense will use the meter reader's August calls to show the jury that the authorities totally failed to investigate the case!

The other significance of the bag sightings in August is that Casey was released on bond on August 20. Article here. Did she direct someone to place that bag in that location after she was released? Was the bag there the entire time? The timing of her release and the first sighting of the bag is questionable.

Expect the defense to come up with a catchy phrase similar to OJ's "if the glove doesn't fit, you must acquit." Remember that case? Remember how the defense focused on the LAPD's errors so much so that OJ was found not guilty on a double murder charge?

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CASEY ANTHONY CASE: A DEFENSE MUST MAKE SENSE

We are still awaiting final confirmation from the medical examiner that the bones found near the Anthony home are that of 2-year old Caylee Anthony. (Remember, since Caylee was just 2-years old, we don't have dental records to compare; thus, testing must be more detailed.) For the sake of argument, let's say the remains found are those of Caylee. Caylee Anthony

CASEY'S DEFENSE MUST MAKE SENSE

Casey Anthony, like every defendant in the United States, is entitled to a defense.  Not all people accused of committing crimes are guilty; however, we hope that those who are guilty are properly prosecuted and convicted. In this case, no matter how guilty you think Casey is of murdering her daughter, I hope you can appreciate her receipt of a proper defense.

Jose Baez, Casey's attorney, has shared some of his defense strategies with the public.  Here is my analysis, as a criminal defense attorney myself, of possible defenses.

Defense #1 - CAYLEE WAS KIDNAPPED & IS STILL ALIVE
Jose Baez must move from the "Caylee-is-still-alive" defense to an entirely new defense. I wrote about this theory last week. Blog here. Up until the remains were found, Mr. Baez was filing motions for information from the police on Caylee "sightings" and speaking  publicly about his belief that Caylee is somewhere out there in the world - alive.  Once we receive the confirmation that she's in fact dead, Mr. Baez will probably withdraw any motions seeking information on Caylee sightings....UNLESS...he continues with his kidnapping theory, he may still want these records...(see next Defense #2.)

Defense #2 - CAYLEE WAS KIDNAPPED & SOMEONE KILLED HER
Jose Baez may not withdraw his motions to compel Caylee "sightings" information in an effort to establish that someone kidnapped her, people reported sightings of Caylee, and then she was subsequently murdered.  I don't think this defense makes sense.  If someone kidnapped Caylee, the liklihood of the person returning to the area to dispose of the body is slim.  Of all places to dispose of a body, it does not make sense that a killer would go to the very place where the risk of getting caught is the highest.  Certainly, it may be argued that the person who took her was from the area; however, the kidnapping theory still doesn't make  much sensee. Why?  Well, the most damning fact is that Casey never reported her daughter missing!  In fact, it was Casey's mother, Cindy Anthony, who reported her granddaughter missing nearly a month after she was last seen.

The average juror will think about that time their cat went missing for one day and they posted flyers all over the neighborhood, knocked on doors and called local animal shelters.  Jose Baez is going to have a hard time convincing that same juror that someone kidnapped Caylee and Casey's failure to report her daughter missing for ONE MONTH is not suspicious. C'mon!  Again, the defense must make sense in order for it to prevail.

Defense #3 - INSANITY DEFENSE
Let me clear something up: I've previously argued on TV that Casey's compulsive lies are nothing new.  Of course, some people felt I was defending Casey; however, that is not the case.  My point is this: Casey's pattern of behavior and compulsive lies existed way before Caylee disappeared. Casey lied about Caylee's father's identity; she lied about having a job; she lied about the babysitter; Casey even stole money from Caylee's piggy bank!  So, from a defense perspective, her lies about Caylee's disappearance (she was kidnapped by babysitter Zanny, etc.) are nothing new.  Besides the lies, what else did the prosecution have?!  Now, of course, they have a body.

One thing that I find lacking in the prosecution's case is MOTIVE.  Of course, the prosecution may argue that 22-year old Casey just wanted to be free, go out and party, and not have the attachment of her daughter. That's definitely enough to prove motive.Casey Anthony - partying at the same time her daugher is "missing"

But, on the other hand, it appears Casey may have a mental defect and was unable to appreciate her conduct - i.e., she was insane at the time she committed the crime.  Casey, in my opinion, seems delusional and like somewhat of a sociopath.  Even while she has been in police custody, she has failed to show any remorse and instead continues to live in her own little world. (Also, it will be interesting to see if when the duct tape was placed on Caylee's mouth can be determined.  If it was placed on her mouth after death, that may show Casey's insanity and inability to believe that her daugher is really dead.)

Casey's pattern of behavior before and after Caylee's death, and also any evidence found on the remains (duct tape, for example) may make up for a solid insanity defense.  Don't be surprised if the Casey Anthony Defense Team pleads her insanity.Casey Anthony in court

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CASEY ANTHONY CASE: NO LONGER THE CASE OF TWO REASONABLE DOUBTS

* Disclaimer: As of 9:30 CST, this blog is posted purely on speculation that the remains found are those of Caylee Anthony.  This has not been confirmed by authorities working on the case.

Investigators obtained a search warrant overnight of the Anthony home in an effort to obtain more evidence against Casey Anthony, if the remains found are in fact of her daughter, Caylee.

Caylee went missing in June or July and since then, 2 other search warrants were executed.  So what could possibly be in the house that investigators didn't previously seize?

New Evidence

1) Duct Tape & Bag: The skull was found with duct tape wrapped around it.  Investigators will search the house for duct tape.  Possibly, the same roll was used and then put back in its place.  Forensics analysts can microscopically compare the tape on the skull to tape found in the home and determine if they are the same. The bag found at the scene can also be compared to trash bags found in the Anthony home.

2) Clothing: If clothing was found, investigators will obtain other items of clothing in the home to compare size.   DNA analysis will be conducted on the clothes in the home to those, if any, found at the scene. Evidence is carried out from the Anthonys' home early this morning. (Red Huber, Orlando Sentinel)

Crime Scene was Needed for Prosecutor's Case: The TWO REASONABLE DOUBTS

Prior to the discovery of Caylee's remains, Casey's defense was resting on two reasonable doubts: 1)  Reasonable doubt that Caylee is dead since there is no body, and 2) Reasonable doubt that Casey, Caylee's mother, committed the crime. 

Much of my previous defense of Casey was premised on the fact that there was no crime scene.  Without a body, the jury's mind can easily wander into "What if She's Alive?" land.  Now that Caylee has been found and a crime scene has been identified, there is NO reasonable doubt whatsoever that Caylee is alive, was possibly kidnapped, sold, etc.  

Prior to yesterday's finding of the remains, Casey's attorney, Jose Baez, was hanging his hat on the belief that Caylee was still alive. He appeared on national TV stating this theory and filed motions for the police to disclose alleged sightings of Caylee. Casey's parents even appeared on Larry King earlier this week and spoke of their belief that she was still alive.  These "moves" were smart on Baez's part; he was talking to the jury pool early on, planting a seed that Caylee was still alive. (Unlike another defense attorney, who shall remain nameless, who has gone on a national media campaign, telling the world that the investigation of his client, a suspected wife-killer, is purely for the prosecutor's political agenda. This attorney has become just as despised as his client!)

But, that theory is out the window for good.  There is no reasonable doubt that Caylee is alive.  

The only reasonable doubt left is whether was Casey committed the murder of her then 2-year old daughter, Caylee.   Maybe Jose won't have to reach that point of determination; maybe he will now advise Casey to confess and take a plea if she ever wants to see the light of day again.  

12-9-08: Jose on The Today Show, stating his belief that Caylee is still alive.

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CASEY ANTHONY: IF THE REMAINS ARE OF CAYLEE, WHAT NOW FOR CASEY?!?

CAYLEE’S REMAINS ALLEGEDLY FOUND – IF SO, WHAT DOES THIS MEAN FOR MOTHER, CASEY ANTHONY?

December 11, 2008: A utility worker was working near the home of Caylee Anthony when he discovered a bag.  Upon picking up the bag, bones fell out, including a small skull.  It is speculated that the bones belong to 3-year old Caylee Anthony.  Her mother, Casey, is in jail awaiting trial for her murder. Scene where bones found - allegedly those of Caylee Anthony

I have never entirely defended Casey Anthony; however, from a defense perspective, I have believed there are several problems with the State’s case.  1) There was no body.  Up until now (and until the bones are confirmed to be Caylee's), Caylee was only missing. Without a body, there is always speculation that she may still be alive; hence, the alleged sightings.  2) Casey is a compulsive liar.  Just  because she has lied about her daughter, that doesn’t make her a killer.  Her whole life has been a lie: she’s lied about Caylee’s father’s identity, her employment, etc.  As a defense attorney, I would focus on her pattern of lies BEFORE Caylee went missing, in an effort to make the jury question “what more” does the prosecution have on Casey?  3) Casey never gave a confession.  A confession is usually always a clincher (unless suppressed prior to trial) and since she never confessed, the State lacked the home run. 

LOCATION OF BODY POINTS TO CASEY AS MURDERER

A killer often disposes of a body in a familiar area.  Since the body was found within ½ mile of Casey’s home, the killer knew the area well enough to feel comfortable disposing of it here.  It’s highly unlikely that if the killer were not Casey, the body would have been disposed-of so close to the residence. It just does not make sense that the perpetrator would be anyone other than someone familiar with the area. (There's always the possibility that a neighbor was a sex-offender, kidnapped Caylee and disposed of her in the area.  But then why wouldn't Casey have reported her missing if that were the case?)

HOW CASEY’S DEFENSE PROCEEDS

If the remains are of Caylee, then Jose Baez must come up with a new strategy.  His focus on wanting records of Caylee sightings and his desire to create reasonable doubt that Caylee is dead based on these sightings is now totally out the window. 

If I were Casey's defense attorney, I would advise my client to take a plea, unless she is going to use the insanity defense.  If she does not take a plea, she will probably be sentenced to life in prison.  At least with a plea, she can possibly get out of prison one of these days.  Also, if Casey does not take a plea, the State may re-file a motion to seek the death penalty.  A good attorney not only can try a case well but can also look at a case and advise his client to take a plea over getting launched. A good attorney knows how to pick battles and knows what battles he can win and those he cannot win.

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CASEY ANTHONY CASE: NO BODY = NO DEATH PENALTY

Friday, December 5, 2008: Prosecutors filed documents in the Casey Anthony case stating they will not seek the death penalty for the alleged murder of Casey's daughter, Caylee, stating, "It is not in the best interest of the people of the state of Florida to pursue the death penalty as a potential sentence. Therefore, the state of Florida will not be seeking the death penalty as to Casey Marie Anthony." Article here.

The state's allegations against Casey depict a selfish mother who committed a heinous murder of her 3-year old daughter by possibly poisoning her with choloroform and then storing her body in the trunk of the family car for days.  Why wouldn't they seek the death penalty?  In my opinion, the sole reason is because Caylee's body still has not been found and there is a probability (although quite low) that Caylee is still alive.  It would be a terrible injustice to have executed a woman whose daughter miraculously appears alive one day.  (There are still alleged sightings of Caylee.)  If Caylee's body is found before trial, it may be possible that the state can withdraw their filing and re-file a request for the death penalty.George and Cindy Anthony received a photo of a girl with brown hair (center) playing at the Florida Mall. Photo courtesty of Orlando Sentinel.

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