Prosecutorial Misconduct Once Again - Senator Ted Stevens The Latest Victim

 Another American injustice - this time the victim was one of our very own American leaders: Senator Ted Stevens. Fortunately, in the end, justice prevailed - Sen. Stevens' conviction was set aside due to obvious prosecutorial misconduct. AG Holder has stated he will dismiss the indictment and is not seeking a new trial.  Article here. In October, Stevens was found guilty of seven counts of lying on Senate ethics forms. Senator Ted Stevens

THE MISCONDUCT

In a nutshell, the government's key witness was Bill Allen, an oil industry exec., who testified that Sen. Stevens failed to disclose over $250,000 in gifts from him on his Senate forms. (Mr. Allen is no angel himself - he pleaded guilty to charges of bribing Alaskan lawmakers, including Ben Stevens, Senator Stevens’s son.)

It wasn't until trial that prosecutors gave Stevens' defense team FBI notes that were not previously disclosed, a clear Brady violation. These notes were handwritten by an agent, Chad Joy, during an interview with Mr. Allen. Mr. Allen told the agent he believed Sen. Stevens would have paid any bills but that the bills were never sent! Article here. Obviously, this information could have helped with Sen. Stevens' defense!

 FBI Agent Mary Beth Kepner - allegedly involved with prosecution's key witness Bill Allen The juiciest part is that another FBI Agent, Mary Beth Kepner, (see picture) was allegedly involved in an "inappropriate relationship" with Mr. Allen.  In fact, she apparently wore a skirt to Stevens' trial the day Mr. Allen testified.  I hope she has nice legs because she surely doesn't look like one of Hef's girls! 

PROSECUTORIAL MISCONDUCT A DISGRACE TO AMERICAN JUSTICE

Lucky for Sen. Stevens, he had a highly paid defense team.  Lucky for the Duke lacrosse players, they had a highly paid defense team.  (Remember their case was dismissed after the prosecutor Mike Nifong withheld key DNA evidence. The ability to pay for a lawyer gives one the ability to fight a case.  But what about the thousands of indigent men and woman (predominantly African American) who cannot afford to fight their case and who are forced to plead guilty?  In Illinois, Governor Ryan pardoned 4 death row inmates stemming from torture allegations by the Chicago Police and prosecutorial misconduct in the criminal cases.  In fact, Gov. Ryan thereafter instituted a moratorium on the death penalty.

Or how about the recent case in Orleans Parish, LA?  The city may have to file for bankruptcy after it lost a multi-million dollar lawsuit against its prosecutors for engaging in misconduct on a death penalty case.

If you turned Sen. Stevens into a poor black man, turned the charges into a murder and turned a private defense team into one public defender, Sen. Stevens would have been forced to plead guilty as charged. I am not trying to be a bleeding heart - the statistics speak for themselves.

It is fundamentally unfair for prosecutors to hold all the cards, cheat and then not be held accountable for their actions.  More judges must hold prosecutors accountable for their actions and prosecutors' offices across the county cannot be afraid to charge their own for engaging in misconduct and withholding evidence. 

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Tamara on Fox News "Live Desk" Discussing Teen "Sexting"

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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: 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: THE "NO BODY" DEFENSE

PROBLEM: THE BODY IS MISSING!
Reasonable doubt is a high burden placed on the prosecution. 
I'm simply pointing out potential flaws; I am not saying I believe Casey Anthony is innocent!

NO BODY DOES NOT EQUAL 'NOT GUILTY' BUT STATE NEEDS OTHER FORENSIC EVIDENCE

I was reading "Blogger News Network" today and the discussion was that Casey Anthony could be found guilty without the body of Caylee because there are other cases where a guilty verdict was handed down without the body.  The writer discussed a whopping TWO cases (and a THIRD but the facts don't fit at all) where the person was found guilty without the body.  The writer is correct, a person can be found guilty of murder without the body, BUT the state must have OTHER forensic evidence.

Tom Capano: Tom was found guilty of murdering his lover, Anne Marie Fahey, in 1996.  No body was recovered.  BUT, there was other evidence!  Tom's own brother, Jerry, stated that Tom admitted to killing "a person attempting to extort money from him."  Tom made an admission!!!  Furthermore, Jerry stated that he helped Tom dispose of the body in the Atlantic Ocean.  And lastly, to corroborate Jerry's statement, the cooler was later found by a fisherman in July 1996.  Most damning, was the defendant's own testimony at his trial!  He admitted to killing his girlfriend and disposing of the body. 
Tom Compano vs. Casey Anthony: As far as we know, Casey has made no admissions to anyone about killing her child. Also, as far as we know, there is little corroborating evidence.  Yes, hair suspected to be Caylee's was found in the trunk of the car...but, to make that evidence really stand out, the state may need corroboration: for example, someone to testify that they helped put Caylee in the trunk of the car.  (Capano case: brother tells detective cooler is thrown into ocean PLUS cooler is found in the ocean.)  Conclusion: TOM CAPANO'S CASE IS A POOR COMPARISON.

The second case that's discussed in the blog is that of Hans Reiser.  Mr. Reiser's wife, Nina, disappeared in 2006.  In 2008, he pleaded guilty to a lesser included offense of 2nd degree murder (after the jury found him guilty of 1st degree murder) in exchange for Hans to disclose the location of the body.  In 2004, Nina obtained a restraining order against Hans.  This case is a great comparison! There was a lot of circumstantial evidence, none of it great, but it added up!
Hans:
1) Neighbors saw him spraying off car
2) Blood spatters found but DNA couldn't be confirmed (*mistake in testing rendered this evidence inconclusive)
3) 2 books on homicide investigation found in his car after her disappearance
4) Nina had a restraining order against Hans, evidence of abusive relationship
5) He told authorities Nina ran off with another man
Casey:
1) She requested to borrow shovel from neighbor
2) Hair in trunk found and tested to be "decomposing body" but not confirmed to be Caylee's (as of yet) (*mistake in testing at "Body Farm" could make the hair inconclusive - the site is "research" based and proper foundation for admitting the hair into evidence may be difficult.)
3) Internet searches on missing children and chloroform found on her computer
4) Caylee was often left in the care of her parents due to her often disregard in raising her child, but no evidence of abuse or proven neglect
5) She told authorities a babysitter ran off with Caylee
Conclusion: HANS REISER IS A GREAT COMPARISON! The main difference that stands out to me in the Reiser case, however, is that Hans previously exhibited violent behavior towards his wife, they were going through a bitter divorce and she had an order of protection against him. In Casey's case, there is no evidence of violence towards her daughter.  Her partying ways before Caylee's disappearance can be explained as that of a 22 year-old woman.  There seems to be no evidence of abuse.  (There is a text where Casey calls Caylee a "snot-nosed brat" or something.)

THE FIRST BODYLESS CONVICTION

L. Ewing Scott, was convicted of murdering his wealthy wife in 1958. She mysteriously disappeared.  There were rumors of physical abuse and after her disappearance he stole large sums of her money. Ashes of her false teeth were found inside of their residence. He told different stories, one being that she ran off with another man. 

THIS MAY NOT BE A DROP-IN-THE-BUCKET CONVICTION

Just a few final notes.  There are 2 recent and well-known cases where no body has been found and the suspects have not been charged: missing Natalee Holloway who went missing while in Aruba and was last seen with Joran van der Sloot and missing Stacy Peterson, wife of police Sgt. Drew Peterson.  Drew maintains that she ran off with another man.  Sound familiar?  I really hope the prosecution in Casey Anthony's case has more circumstantial and direct evidence than what has already been leaked.  At this point, it seems like it could go either way.  My suggestion to the state's attorney would have been to let her continue acting like a party girl.  Eventually, she would have cracked and told somebody something.  We shall see...

** MY DISCLAIMER **

Please, allow me to make a “disclaimer” of sorts: Just because I take a defense position, that does not necessarily mean I think the person is innocent!

For example, People v. OJ Simpson is a textbook criminal defense case. Clearly, his defense team was stronger than the prosecution, even though the facts appeared to prove his guilt.  (Of course, there is the argument that he was actually innocent or that the jury was tainted, but just give me a break on this one.)   Clearly, the defense raised enough reasonable doubt in the minds of the jury to find him not guilty. 

I am following the Casey Anthony case very closely; in fact, I was interviewed on Nancy Grace and Prime News prior to Casey's indictment.  (You can watch my interviews here.) Now, going back to my disclaimer, just because I state that "something is missing", that does not mean I think Casey Anthony did not kill her beautiful daughter, Caylee.  Quite the contrary, I believe the cards are stacked against Casey; however, the prosecution must prepare for the defense to focus on "what's missing."  Casey is represented by a fine defense attorney, Mr. Jose Baez, and they will have their day in court to put on their very best defense, just like Johnnie Cochran did for OJ.  Please understand that it’s my goal to simply share with you what I see from the world of criminal defense.  I am not saying I believe Casey Anthony is innocent.  I just don’t want to see another person, like OJ, walk free.

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