http://www.wftv.com/news/23514611/detail.html#Judge Says Casey Anthony Can Face Death Penalty
Posted: 6:30 am EDT May 11, 2010Updated: 3:39 pm EDT May 11, 2010
ORANGE COUNTY, Fla. -- Attorneys for Casey Anthony used colorful language in their fight to keep her off death row, but Tuesday they failed and the death penalty is still on the table.
“People don’t say, you know, ‘She’s a,’ it’s an impolite word, but, you know, ‘She’s a whore, so she should die.’ Right? They don’t say that out loud. Oh, well, they do in the blogs, your honor,” Casey's death penalty-qualified attorney, Andrea Lyon, argued in court Tuesday morning. “But they don’t say that here in court ... but underneath, that is what’s going on.”
Judge Belvin Perry rejected several of the defense teams' arguments, including that the death penalty is sexist and that the prosecution was seeking it to bankrupt the defense.
Casey is the first mother ever in Orange County to face a possible death sentence for killing her own child. Prosecutors say that's because she's the first mother accused of premeditated murder who cannot blame mental illness for what she's done.
It was an emotional day in court for Casey. She cried during testimony and during a break. It was the second day in a row she's had to appear in court. Next May, she’ll stand trial for allegedly killing her daughter Caylee.
Casey walked into the courtroom just a minute after 9:00am wearing the same tan, buttoned-down, long-sleeve shirt she was wearing during Monday’s hearing (images | raw video). She was all smiles as she walked to the defense table and took her seat between attorneys Jose Baez and Andrea Lyon.
The death penalty discussion started with controversy as the prosecution argued against a witness the defense wanted to call to speak, saying that the witness was not previously listed and the prosecution had little time to prepare. Judge Belvin Perry, though, overruled and allowed the witness.
Elizabeth Rapaport, a professor of law at the University of New Mexico School of Law, took the stand for the defense. Judge Perry granted her status as an expert on gender and its relationship to capital punishment.
As she testified on the subject of capital punishment and mothers, the state objected several times, each time overruled by Judge Perry. Rapaport spoke to issues dealing with women and capital punishment, their behavior and how that represented them, for instance hanging out with male strippers or partying, and said a mother who is perceived as "deviant" by a jury faces a difficult time in defending herself against criminal charges.
The prosecution then got an opportunity to cross-examine Rapaport, pushing hard to discredit her, suggesting that her qualifications don't justify her as an expert in the case. Prosecutor Jeff Ashton asked whether she had any evidence showing sexism was involved in the case against Casey.
“I certainly do not, I am not familiar, I am not overly familiar with this case. I've read a few press reports,” Rapaport said.
At 9:45am, Rapaport stepped down from the stand.
To not pay attention to all the press attention, all the discovery,” Lyon told Judge Perry after Rapaport stepped down. “The media talking to anyone my client dated, your honor, is just part of this case.”
Lyon tried to point out that the prosecution is unfairly trying to make a point, out of Casey's appearance in photos and her behavior, and that it somehow could be influencing the prosecution's decision to seek the death penalty.
"We can pretend, and be polite, and talk about aggravating circumstances," Lyon argued. "But sexist attitudes still exist ... it's driving the decision to seek the death penalty."
Then the hearing turned emotional for Casey.
“No matter what people have said about her, they all say that Caylee was happy and healthy,” Lyon told the court as tears began to stream down Casey's face (images | raw video).
Casey wiped away the tears as Lyon continued and wrapped up her argument.
“We’re asking your honor to take an unusual and a brave step ... that this gender bias has something to do with them seeking death in this case,” Lyon concluded.
The prosecution was then given an opportunity to counter the defense's argument.
"[The] only support for this is Ms. Burdick’s reference yesterday, after a question from the court about a photograph, as it being a photograph of the defendant scantly clad, that is the only reference,” prosecuting attorney Jeff Ashton argued.
Ashton acknowledged that the judge has the right to deny the death penalty as an option, but argued that Casey's behavior is a relevant element to the case.
She doesn’t like that our law allows us to access the character [of the person on trial],” Ashton told the court. “To say that we are seeking the death penalty in this case solely because of her gender is not proven before this court and is patently absurd."
Then, after a brief statement from Lyon restating the defense's opinions, Judge Perry spoke.
“The court can only do that in rare instance,” Judge Perry said regarding the defense’s request to have the death penalty option tossed. “The burden of proof is on the defense, to prove that the state made the decision based upon those improper motives, i.e. gender bias.”
Citing case law, Judge Perry said it’s only in rare instances that a judge can overturn the state’s desire to seek the death penalty.
“The fact that the defense has not met their burden in this case, the motion to preclude the death penalty for the impermissible gender bias, it will be denied. We’ll take a 10 minutes recess,” Judge Perry said.
"The defense is right that her behavior did not endear herself to the public at large," WFTV legal analyst Bill Sheaffer said Tuesday afternoon (watch full interview). "I doubt seriously, however, that the State Attorney’s Office took that into consideration when they made the decision to seek the death penalty. The decision was based upon the evidence at hand."
After returning from the brief recess, Judge Perry spent little time hearing arguments before citing previous cases supporting his decision to deny two motions the defense filed seeking to have a statute dealing with Florida's death penalty ruled unconstitutional.
"The motion to declare Florida Statute 921.41 unconstitutional under Ring vs. Arizona, and the motion to declare that same statute unconstitutional for adequate appellate review, will be denied based upon prior Supreme Court decisions," Perry ruled.
The arguments then began over the Motion for a Statement of Particulars Providing Notice of Aggravated Circumstances. Essentially, the defense is seeking from the prosecution a list of the aggravating factors it intends to prove in the case to support their seeking the death penalty, should Casey be convicted.
"This pretensive ignorance is getting old," Ashton told Perry referring to the defense. "[Lyon] says she can't figure out what happened, what changed this case, that she can’t figure out from 14,000 pages of discovery what is different ... for her to stand before you and say she can’t figure this out is simply incredible ... should the court order us to comply, we of course will."
The aggravated circumstances are what the prosecution intend to use to convince jurors to sentence Casey to death if convicted. There are 15 possible reasons and prosecutors have said only six of them could apply and now they have to list which they intend to use if she is convicted.
The state of Florida intends to seek the “ultimate penalty” in this case, Judge Perry said. The judge then referenced a 2005 Florida Supreme Court decision regarding aggravating factors and agreed with the defense that there’s a due process of law argument.
“Therefore, the court will order, within 10 days of today’s date, the state will list ... the aggravating factors that it intends to prove,” Judge Perry said. “As to the issue of reciprocal discovery ... because we have, uh, the catch-all, unlimited list of, uh, none statutory mitigating factors, the court at this time will deny the request at this time of the state of Florida of a list without prejudice. Both sides, according to the law … are required to give a list of the various witnesses. Whether we like it or not, death is different, therefore, the motion will be granted.”
The judge then heard more arguments on another motion before citing two 1994 cases to support his decision.
“The state is correct. The court is bound by the 5th District Court of Appeals, therefore the court is denying the Motion for Protective Order, with respect to the penalty phase discovery given to the state of Florida,” Judge Perry said.
A discussion then began on the defense's second Motion to Preclude the Death Penalty Procedures for Impermissible Prosecutorial Motives. However, before getting too far in the discussion, the state and prosecution began holding a sidebar conversation (meaning the public can't hear it) with the judge regarding specifics surrounding the motion.
“I am aware that the defense has a burden here and we would ask that you grant our motion,” Lyon told the judge.
The prosecution then argued that for the defense to suggest that their interest in seeking the death penalty is out of a plan to bankrupt the defense is untrue.
“There’s nothing in this record that would tend to suggest that the state sought the death penalty for any improper motive. It’s the third one we’ve had alleged. The record does not support and the court should deny the motion,” Ashton argued.
“The second motion to preclude the death penalty ... will be denied. The defense has failed to meet its burden of proof,” Judge Perry ruled.
With the motions for the day heard, Judge Perry looked forward to what's to come.
“Now, there’s about eight to 12 death penalty motions left,” Judge Perry said, as he concluded the hearing. “I will give the defense five days to list, to be sure which ones have not been ruled on, and then I’ll give the state 10 days.”
After hearing back from the defense on those stipulations, Perry decided to the give the defense seven days, after which the state will get ten days to respond.
At 11:27am, after around two and a half hours, the hearing ended.
On Monday, Casey's attorney Jose Baez did not want to bet on his chances that new presiding judge Belvin Perry will take the death penalty off the table, and it's a good thing because he would have lost money.
"I'm not Las Vegas, or anything like that. I'm not a bookie, I couldn't tell you," said Baez.
Tuesday morning, Baez had to step aside because he is not qualified to try death penalty cases alone. Chicago-based attorney Andrea Lyon once again was fighting to keep Casey from serving the death penalty if she is found guilty of murdering her daughter Caylee.
"I completely and totally trust on her and her position," Baez said Monday.
The defense's position is that Casey should not be put to death because prosecutors cannot prove she killed her daughter in a cold, calculated and premeditated manner. However, prosecutors argue Caylee Anthony's killer had to use physical force or chemicals to subdue the child, because otherwise she would have been able to remove the three pieces of duct tape found covering her nose and mouth.
The defense says, all that aside, the death penalty in Florida is flawed, but Casey's attorneys did not offer up specific reasons why.
"There are some serious problems with it. Obviously, the death penalty here doesn't work," Baez said.
Casey's defense team believes that jurors hearing death penalty cases are more likely to convict. However, to this point, there has not been any mention of specific Florida cases that would back up that notion.
