Every single day across the state of Florida, both criminal defense and prosecution attorneys abide by a very strict rule of reciprocal discovery. The rules of discovery in criminal proceedings are very well known to most attorneys who practice in the state. In short, the discovery rules require each side to inform the other in writing of any and all discovery that exists prior to trial. This rule is to avoid what Judge Perry referred to as the common principle of “trial by ambush”.
Now, the Casey Anthony defense team won’t be the first to disobey this requirement; I would venture to say that in cities across the state of Florida, prosecutors have also inadvertently or willfully disobeyed this rule on occasion, as no case is perfect. The troubling aspect of failure to abide by this rule is to run the risk of a verdict being overturned, which would require a retrial.
As you may recall, Judge Perry ordered the defense to produce expert witness discovery by a certain deadline date. When the defense failed to comply and turn over sufficient detail to the prosecution, Judge Perry clarified the order for Jose Baez at a second hearing. When Jose Baez failed to comply to the second court order, the court today concluded that the defense willfully violated its court order.
The prosecutor, Jeff Ashton, advised the court that the defense has a history of deliberately skirting deadlines, and not complying with discovery rules. To which Cheney Mason answered: The defense is doing its best against the State – with all its resources. Mr. Mason opined that he and Mr. Baez are paying out of their own pockets for airfare and other incidentals. Mr. Baez later sarcastically let the court know that his salary is about $3.00 per hour.
The fact of the matter is, this is the burden that ALL defense attorneys have to contend with! If Mr. Mason and Mr. Baez cannot keep up with the costs and the demands this trial asks of them, it’s too bad and oh so sad, but that is life in the criminal justice system in Florida.
Jeffery Ashton was quite convincing and eloquent today. He asked that the court sanction the defense to the extent that is personally hurtful. He said, if the Judge does not do so, the defense will continue to obfuscate and delay, causing harm to Casey Anthony’s ability for adequate defense, and causing delay to the May trial date. Mr. Ashton suggested that Jose Baez be charged $500 per day until such time as he produces the discovery of its expert witnesses.
Judge Perry wasted no time in issuing his ruling, and was clearly very prepared, having read the motions and the supporting documents from the State.
In short, the Judge found that the defense willfully violated a court order. He also pointed out that it is highly unlikely that the defense team does not know what their experts’ opinions or findings are.
As to sanctions, the court decided that Jose Baez would pay the costs associated with the State having to file the motion for sanctions, including lawyer fees. Jeff Ashton will determine an amount; submit it to the court who will announce the amount of the fine. Jose Baez will then have five days to appeal the amount he will have to pay the court.
Furthermore, the court ruled that the defense may not use or argue any expert opinion that is not included in written discovery or in a deposition at trial. This means, if the defense chooses to “hide” a fact or an opinion from the prosecution, and then tries to bring the opinion before the jury at trial, it will be disallowed.
That alone is a very serious sanction for Jose Baez as his strategy is to conceal and hide information in the hopes of knocking the State off their game with the element of surprise. As you know, the rules of criminal procedure for the state of Florida do not allow for trial by surprise or ambush.
Mr. Baez had better resort to trying his case on its merit, of which we know there is little, and steer clear of trickery or contempt charges will be the next tool used by Judge Perry.
Judge Perry ordered the defense to submit its expert witness discovery within seven days. Jose Baez asked for 30 days, the Judge said no, but allowed Jose Baez to submit by Wednesday an estimation of how long it will take to fulfill the discovery request. The Judge appeared willing to concede a day or so, which was generous of him.
As for the additional motions – all 22 of them. Most will not be heard until the State can provide an argument in answer to each motion. The Judge is allowing the state 15 days to file their responses to the motions.