| | | TWO JURIES AND TWO VERDICTS | | |
Sometimes the smallest things take up the most room in your heart.
—A. A. Milne
Reconciliation of realities is one of the paradoxes of high-profile trials. There is the prosecution’s reality, the defense’s reality, the media’s reality, and ultimately the jury’s reality. While the public commonly thinks of justice as a fixed result, justice is actually the process whereby the jury merges and reconciles these realities.
On an unseasonably warm November day in 2008, I met Jose Baez for the first time at the Essex House Hotel, off Central Park. He had heard of me, and we had arranged to meet in New York to discuss how to handle the avalanche of publicity inundating his case. Nancy Grace had already done more than a hundred shows on the case, turning her astringently prosecutorial eye to any detail that might prove Casey Anthony’s guilt. And she had plenty of details.
Casey Anthony was a young single mother who lived with her two-year-old daughter Caylee and her parents George and Cindy Anthony in an Orlando, Florida, suburb. For thirty-one days in 2008, the young child was not seen, and when asked by her parents about their granddaughter, Casey would say that her nanny, Zenaida Gonzalez, had the child while Casey was at work at Universal Studios. After Casey’s car had been towed and her father smelled a strong odor in the trunk when he picked it up, her parents confronted Casey about their granddaughter. Casey tearfully told them that Gonzalez had Caylee, and that she had not seen her for a month. The police were called and while investigating the young girl’s disappearance, they learned that Casey had not worked at Universal Studios for years, and that the nanny had never existed. They uncovered many other lies that Casey had told. Most damaging was the fact that Casey had seemed carefree to friends and family during the thirty-one days, attending parties and getting a tattoo inscribed on her shoulder, Bella Vita, or “beautiful life” in Italian. The body of Caylee Anthony was discovered five months later in a wooded area within a quarter mile of the Anthony home, wrapped in a black plastic trash bag. Duct tape had been found attached to the skull. Casey was arrested and charged with the murder of her daughter.
The Sunshine Law in Florida makes every single document exchanged between the prosecution and defense a public record, press-ready to be posted on any news site. There would be a court filing and a new round of documents would blaze across the Internet, without explanation or context, showing Casey’s text messages, phone calls, visited websites, and photos, all taken from the Anthonys’ shared computer. The contrasting photos of Casey drinking and partying while her daughter was missing filled millions of viewers with howls of rage and indignation at the seemingly brazen, uncaring evil embodied by this petite, twenty-three-year-old mother. Baez asked me how all of the shows, stories, and photographs would affect our ability to pick jurors when the trial began. I calmly looked at him and told him that the trial had already begun.
All missing children become our children. We temporarily adopt them. Perhaps we feel that rush of panic when we momentarily lose our own kids in a park or a store. Perhaps it is a child’s unfulfilled promise. Perhaps it reminds us of innocence we have lost. But there is something about the purity of a child that breaks all hardened barriers of cynicism and resigned aphorisms about the “cruel world.” Caylee’s smiling pictures and videos reached out, compelling a city, a state, and then a country to say, “No. We will find you.” It prompted everyone who saw her to believe they could protect her.
Thus, the public became de facto investigators, searching for clues to the missing Caylee. Prompted by pleas from George and Cindy, who seemed to become adoptive parents while Casey was in jail during the search for Caylee, nearly two thousand volunteers in the summer and fall of 2008 combed miles of wilderness and swamps to locate this beautiful little girl, hoping against hope. Texas EquuSearch, a large search and recovery organization that coordinated volunteers to look for missing persons, led the effort. Millions watched daily for a promising sign, a fleeting whisper of a miracle. Others donated thousands of dollars of their own money to support the search effort. They pored over the documents already available on the case. In water cooler conversations, they mapped out clues to the girl’s whereabouts the way they had seen it done on the many police procedurals they’d watched over the years. They held candlelight vigils. They prayed. And then they were betrayed.
On December 11, 2008, after five months of searches, Caylee’s body was found a quarter mile from her own home, nineteen feet from the road. Hope dashed and doubt gone, millions sought an explanation for how this could have happened. How could a woman not report her own child missing after thirty-one days? How could she go to clubs, drink, laugh, and carry on as if nothing had happened? The public couldn’t get this explanation from Casey. They had already heard of her lies to the police and her parents. The 911 calls of her mother and her interview with the detectives where she spoke of the fictional nanny were available to anyone to listen to at the touch of a mouse click.
So they turned to those they trusted to help them understand this bizarre behavior. They turned to Nancy Grace, the matron saint of prosecutors and platitudes. And Saint Grace gave them the answer: Casey Anthony, the now infamous “tot mom,” was guilty of killing her own child—the most reviled and primal crime a parent could commit. More disquieting, Casey appeared to almost celebrate her daughter’s death in the thirty-one days before her body was found.
And so, in December of 2008, the public’s role shifted from investigator to prosecutor. As the press and the Orange County district attorneys dug into Casey’s life, they revealed more details to fuel the public’s ire. She was a young, promiscuous single mother. She exposed her daughter to multiple boyfriends. She lied. She would leave her daughter to go and party. She did not report her own child missing. These behaviors violate puritanically rooted social norms and deeply held moral values. And while they may be tolerated in a normal young woman, these violations become fatal character flaws when that woman’s child dies unexpectedly, especially under suspicious circumstances.
Those who might have believed that the child had somehow been abducted now became convinced that there was only one person who could be responsible for the child’s death—her mother. In the iconography of women criminal defendants accused of killing their children, such as Andrea Yates or Susan Smith, Casey Anthony did not appear to be crazy, therefore she must be evil.
Baez called me as soon as Caylee’s body was found. There were news helicopters, news vans, and wall-to-wall media coverage. It was on every local station in Orlando. But Casey didn’t know. They didn’t tell her. The sheriffs brought her into a holding cell under some pretense, left a television on with the news coverage, and then filmed her as she realized what she was watching. In the tape, you see her bent over in her chair, crying with her head in her hands as she realizes that the news footage is the discovery of her dead child. Prosecutors set up this theater, thinking they could catch Casey unguarded, cold and unemotional, to demonstrate to the jury her callous disregard for Caylee’s life. But they captured her grief instead.
The police were already focusing on the forensic evidence from the trunk of Casey’s car. Dr. Henry Lee, the renowned forensic scientist, had already volunteered to examine this evidence, but Baez needed an expert to examine the remains for the cause of death. Knowing that I had worked with Linda Kenney Baden and Dr. Michael Baden on the Spector case, he asked about them and we all had dinner when we met in New York. Linda’s reputation as one of the preeminent attorneys on criminal forensic evidence had only grown since her work on the Spector case. Michael Baden was the most renowned forensic pathologist in the country, appearing in his own show, Autopsy, on HBO as well as working on the Claus von Bülow and Byron De La Beckwith trials and conducting examinations into the deaths of President John F. Kennedy, Sid Vicious, John Belushi, and many others. Linda flew down to Florida and started working with Baez in December 2008 on the forensic evidence.
As there were numerous misassumptions and errors that were being dispersed into the mainstream media by pundits and personalities, we had to make some key strategic decisions in the case. Do we speak out to counter the negative publicity in the case or stay silent? Do we affirmatively put out a defense theory, or just give the press enough information to actively question the prosecution’s emerging story of the “crime”? The story of Casey’s guilt had already gained tremendous momentum, becoming the media’s reality of the case. It was my belief that not only would it be futile to try to turn the tide, but that we may actually be able to harness the hysteria and use it to our advantage. The more the actual evidence mingled with psychics, screaming mobs, former boyfriends, salacious sex, and death threats, the better. The harder it would be for a jury to tell what was real versus what was tabloid real. The risk, of course, was that tabloid real would become the only reality for the jury.
I advised Baez that no one wins these trials by playing it safe. We needed to let the press and the prosecutors build their case while we patiently prepared. I thought, at some point, the press would tire of their relentless criticism of Casey and the defense team, and would turn their skeptical eye to the prosecution’s theories, evidence, and strategies. But I was wrong.
In monitoring the press coverage on television, print, radio, and the Internet, not only was the public outraged by Casey’s behavior, but the journalists were as well. I underestimated the emotional investment that both the public and the press had in Casey’s guilt. On February 10, 2009, a memorial was held for Caylee Anthony, arranged by Casey’s parents, Cindy and George. An estimated audience of 1,100 attended, including strangers who drove hundreds of miles to pay their respects. Casey could not attend as she was in the Orange County Jail. But the public expected her to watch, and they watched her reaction to see if it fulfilled their expectation of a grieving mother or a cold killer. Since we knew that having no reaction to her own daughter’s memorial would surely cause a public outrage, she was forced to make a public statement.
I miss Caylee every day and every minute of every day. I can’t be there for Caylee’s funeral, but someday I want to go and visit her grave and tell her how much I miss her.
I allowed my parents to be in charge for the funeral for Caylee. I told them I wanted her buried in a casket and I wanted there to be a gravestone so I could go and visit her. I asked them if there could only be a private funeral for just the family.
I know they cremated her. I still don’t want a public event with cameras and everybody around for Caylee’s service, but I can’t stop my parents from doing what they want. I truly hope that it will help them.
—Casey Anthony response to Caylee memorial read by Jose Baez
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At this point, the adoption was nearly complete. Caylee seemed to belong more to George, Cindy, and Casey’s brother, Lee, than to Casey. She seemed to belong to millions who had watched and prayed for her return. And they were angry with Casey for killing their child. Although I have worked in numerous high-profile cases where the public’s distaste was apparent, I have never run across a stronger or more palpable anger than I encountered in this case. Not in tragic death civil cases, not even in other death penalty cases. There is frustration anger and there is betrayal anger. This was an anger born of deep hurt. It was personal.
As the months rolled on, the stories rolled on as well. The tapes of jail visits between Casey and her parents were released, scrutinized, and posted on YouTube. When there was nothing new, the press reported on Casey’s jail allowance and her junk food purchases. Helicopters followed Baez to report on his alleged mortgage problems. And the audience built. Social media lit up with constant blog posts on the case. The Caylee Daily, a site started during the case, posted eight million hits by the time the trial started. Justice4Caylee as well as numerous other blogs and newly created websites openly pursued a pro-prosecution editorial bent, calling into question every defense move and lauding every minute detail that could implicate Casey in her daughter’s death.
Scot Safon, the executive vice president of programming for Headline News Network, gave an interview where he openly stated how important the Anthony trial was to HLN. “It’s a gigantic deal for us . . . It speaks to so many issues, to the responsibility parents have, to the responsibility grandparents have, to the vulnerability of children, to the fact that this could play out in the midst of what might seem a normal family.” He went on to discuss how audiences across the country felt they could relate to the people in this “story.” This is the same chord that entertainment executives look for in both fictional and reality television: that the audience feels like they know the Anthonys. “Based on what we hear, the audience says it’s outraged, but there’s an undertone of identification with the anxieties that a story like this points out.”
And it is at the intersection of the two highways, justice and journalism, that the First and Sixth Amendments again collide. The First Amendment guarantees the right to free speech, and the Sixth Amendment guarantees the rights of a defendant to due process and an impartial jury. There is nothing in the Constitution about fairness. However, the founders did understand the importance of impartiality. Our first trials in this country were tried by local juries—those familiar with the parties in the case and the matter being tried. However, in 1807, this changed with a case of some notoriety at the time.
On February 20, 1807, Aaron Burr, former vice president of the United States, sat and played chess in Fort Stoddert with the daughter of the judge who was responsible for his arrest on the charge of treason. Burr was known as one of the founding fathers of political campaigning, wooing the members of Tammany Hall, a New York City political organization, to win over members of the newly formed delegates of the Electoral College in presidential campaigns. Thomas Jefferson and Burr tied in electoral votes for the 1800 presidential campaign before Alexander Hamilton, a former law partner of Burr, swung the election in Jefferson’s favor. Later, Burr and Hamilton exchanged accusations after a heated election in which Burr had lost the New York governorship. Burr demanded a retraction by Hamilton of supposed assertions against Burr’s character. When Hamilton refused, he was challenged to a duel. In a field in Weehawken, New Jersey, Burr shot and killed Hamilton in a duel in 1804. In 1805, Burr foresaw a war with Spain. With the help of General James Wilkinson, he gathered a group of about eighty men to train and outfit them for the exploration and claiming of territory prior to this conflict. Wilkinson turned Burr’s plans in to Jefferson, who promptly had Burr arrested for treason. The animus between Burr and Jefferson was well known, and the newspaper accounts of the treason charges against the former vice president were voluminous and highly inflammatory.
When jury selection for his trial began on August 3, 1807, Burr’s lawyers argued that “the public mind has been so filled with prejudice that there was some difficulty in finding impartial jurors.” Only four of the forty-eight jurors questioned that first day could be seated, most admitting that they had been predisposed toward Burr’s guilt by what they had read in the newspapers. While many were eliminated from serving, a few jurors who had expressed negative views of Burr and the alleged treason were still seated on the jury. On September 1, 1807, the jury acquitted the former vice president, setting up the long battle between the First and Sixth Amendments. From that point on, the courts decided that a jury should be an “indifferent” group of citizens that had no knowledge of the case or interest in the outcome. This battle rages today in courtrooms, and on televisions, computers, and iPhones across this country.
While the jurors in the Burr treason trial had been exposed to many newspaper accounts of the charges, they did not have the electronic media or the journalism standards that we now face today. In today’s journalism model, the media are the masses with Twitter feeds, Facebook, and blog posts feeding mainstream news sources. In turn, mainstream media must feed the public’s 24/7 news hunger with a steady diet of hard news stories, rumors, speculation, and opinions redigested across media platforms.
The Sixth Amendment of the United States Constitution reads, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law . . .” But when you have more than 75 percent of the American population who use the Internet and television for their news, you have a much more indistinguishable district. In fact, the venue for a court case is subjected to more national news and opinions than in the past, making a “district” in the constitutional sense much more national.
And this is where the battle between the First and Sixth Amendments became a full war during the Anthony trial, challenging the very foundation of our criminal justice system and raising troubling questions. Should the public be able to vote on a defendant’s guilt? How does one seat an impartial jury when 90 percent of the jury pool knows a great deal about a case and already believes the defendant to be guilty? If the public already believes the defendant to be guilty, should a defendant have to prove their innocence?
This was especially problematic in our case, where jurors who watched numerous television shows or read about the actual evidence on the Internet would be instructed to only consider evidence from the witness stand and law from the bench. In 2011, the term Casey Anthony was the fourth most searched Google term. The courts typically deal with this prickly issue by blithely turning a blind eye to the problem. Judges across the country routinely ask jurors if they can “set aside” all that they have seen and heard about a case or opinions they have of the guilt of the defendant. Asked this question by the robe of authority, jurors with all good intentions obligingly answer “yes.” No one wants to leave the impression that they are an unfair person. Actually setting aside all previous information, especially with strong emotional content, is of course a psychological impossibility.
The Supreme Court has dealt with this issue a number of times, the most recent being the decision they made upholding some of the convictions of Jeffrey Skilling in one of the Enron trials. While the Court has typically recognized that pretrial publicity can have a prejudicial effect, they have ruled that there are numerous ways to cure this effect. Previously, the justices ruled that jurors are not required to be “totally ignorant of the facts and issues involved.” However, the courts have been pretty antiquated in their view of the media, let alone the Internet, usually considering only newspaper or television stories to constitute publicity exposure while ignoring Internet stories or social media. “Not totally ignorant” leaves a lot of room for a juror who has seen dozens of negative stories about Casey.
At the end of 2010, I wrote a memo to the defense team asking them to consider making a motion to dismiss the whole case, as I believed Casey’s due process rights had been so compromised that she could not get a fair trial. For this, I referred them to the Sheppard v. Maxwell Supreme Court case involving the trial of Dr. Sam Sheppard that I discussed in the Simpson chapter. Justice Black’s sharply worded opinion stated numerous similarities to the Casey Anthony case, including the “circuslike” atmosphere of the trial: “Throughout this period the newspapers emphasized evidence that tended to incriminate Sheppard and pointed out discrepancies in his statements to authorities.”
Since it was not realistic to expect the court to dismiss the case, I had hoped that such a motion would push the judge to control some of the media and set some ground rules (or at least some suggestions) for the media’s coverage of the trial. Baez had repeatedly asked the court to seal documents in the case. Judge Stan Strickland (and later Judge Belvin Perry) refused to seal any documents aside from Caylee’s remains, citing First Amendment issues. And here lay my greatest concern for my client—that the public’s “right to know” outweighed Casey’s individual right to a fair trial. In their rulings, Judges Strickland and Perry clearly chose the press’s and public’s rights over the defendant’s rights. The Sunshine Law made it difficult for them to shut down the media machine. However, I wish we could have had an open and candid discussion with the judges, the press, and the prosecution to discuss solutions to manage the onslaught of coverage. The Orange County Sheriff’s Office and the county prosecutors had to spend countless hours fielding calls from both concerned citizens and crackpots, following empty leads and wild speculations. At the height of the 2008 to 2009 recession and during huge Florida budget deficits, the total tab for both of these offices had to run into the millions in costs and allocation of scarce resources.
There is a type of practiced denial that operates as a survival mechanism in high-profile cases. Judges and even the lawyers like to pretend they are just trying a case like any other case. In refusing Baez’s request to seal documents, both Strickland and Perry shrugged off the potentially prejudicial effect this might have on the jury pool in favor of the free speech arguments. Strickland soon became a casualty after he spent time privately discussing matters with a pro-prosecution blogger. Judges must avoid even the appearance of impropriety, and his conversations brought on a defense motion for recusal. In granting this motion and recusing himself, Judge Strickland made biting comments about the defense, stating that he felt it ironic that defense counsel was accusing him of behavior that the defense had engaged in. However, a defense attorney is by definition partisan, while a judge must avoid even the impression of favoritism.
One of the first orders of business was to file a motion for change of venue. Orlando had been permeated with stories about the case, and many in the community had direct participation in looking for Caylee and memorializing her. Because of this exposure and involvement, we needed to look for another place for the trial. However, there were only a small handful of venues in the state that were considered to be neutral enough to give a defendant a fair shot in a capital case. We felt that if we could get the trial moved farther south to Miami or another southern district, it would be less likely that the jury there would have had the same degree of press exposure.
I wanted to conduct some community attitude surveys—normal in these high-profile trials—to demonstrate the bias in Orlando. However, since Casey and her family had no money to pay for the surveys or my services, we petitioned the court for funds to conduct the surveys and to help with jury selection. The court refused. Since the prosecutors were now asking for the death penalty, I chose to continue working pro bono for the remainder of the case.
Linda Kenney Baden also could not get court funds and could not afford to pay her own travel and lodging for months of the trial. She had to withdraw from the case but laid a strong foundation for the forensic challenges to the prosecution’s case, staying on to advise Baez for the duration of the trial. Andrea Lyon, a noted death penalty lawyer from Chicago, had to withdraw from the case because of similar circumstances. J. Cheney Mason, an extremely experienced Florida criminal defense attorney with death penalty experience, along with Dorothy Clay Sims, a civil litigation lawyer, also joined the team to help focus on the prosecution’s dubious forensic case and their “expert” witnesses.
I provided Baez with an affidavit to submit to the court as to my belief that a change of venue was necessary to provide Casey with a fair trial. We completed as much of a media analysis as we could to study the relative exposure of different communities in Florida to press coverage of the case. In the end, both the prosecutors and the judge agreed that the pervasive bias in the Orlando community made it necessary to change venues. The question became where to go. There were extensive negotiations between the prosecution, the judge, and the defense about an appropriate venue.
The judge then made an unusual ruling. Perry said that he would import a jury from another venue to Orlando, where he would sequester them in an undisclosed location for the duration of the trial. This meant that we would travel to another community, pick a jury there, and then bring them back to Orlando to hear the case. This is unusual but not unheard of in Florida. What was unusual was that Perry refused to let us know where we would be picking a jury. We had no idea where in Florida we would be going.
This posed a couple of problems for us. First, based on our research, there had been thousands of stories all over Florida. Therefore, we had no confidence that the rest of the state would be able to give her a fair trial. We should have been able to look at the new community, study it, and decide whether that venue could impartially listen to the case. However, with Perry’s order, we would not know where we were going until the eve of trial. This would be too late to study the new venue to determine whether it would be an appropriate place for the jury selection. Second, the imported jury would be sequestered in Orlando, a mixed bag for a defendant. While the jurors would be protected from inflammatory publicity during the trial, they would have to pass the protestors entering the court every day, feeling the tension in the Orlando community and the desire for the conviction. We were also concerned that the Orange County sheriffs, who would be caring for the jurors, would make them identify more with law enforcement in the case. With these concerns, I flew out to Florida to meet with the defense team.
ORLANDO
The origin of the city’s name is uncertain, some claiming it comes from the character Orlando in Shakespeare’s As You Like It who escapes into the Forest of Arden. Some claim the name comes from a fictitious story of a soldier named Orlando Reeves. In Orlando you are never far from water, the wetlands dotted with hundreds of lakes and swamps. The bedrock is made of porous limestone, and in 1981 a massive sinkhole over three hundred feet wide and ninety feet deep opened up outside Orlando, swallowing businesses and homes. On top of this wet, uncertain landscape, the largest tourist attractions in the world are built. Walt Disney World brings in an estimated forty-seven million people every year. Orlando likes its theatricality and it likes its rides. And from 2008 to 2011, the biggest ride in Orlando was the Casey Anthony case.
Baez, Sims, and I checked in at the Orange County Jail facility and made the long, slow walk through the multiple gates to the inner lockdown part of the jail. There, we waited about half an hour while dull-eyed friends and crisp nuns checked in as the inmates stared and shuffled behind the wired glass, shackled as they were ushered to their visitations.
When I met Casey Anthony, I was struck by how young and energetic she was. Unusual for a woman incarcerated for two years and being tried in a death penalty case. Usually, the inmates become hardened in their attitudes and the way they stare at you, nodding absently as you talk to them about the jury and the trial.
But here she was, handcuffed and eager to talk, engaged, absorbing the advice and strategy we discussed. More than anything, I wanted to help her understand the strange and convoluted way a jury would be selected in a case like this and what the jury would expect from a defendant in a case like this. Of course, you always want the defendant to have a realistic picture of the trial. You don’t want to depress them or dash their hopes. But more importantly, you do not want to create false expectations.
And it is strange when you are in front of her. The knowledge that the state is trying to put this petite young woman to death. It is easier when you are distant and it is a news story. Easier when you are just meeting with the lawyers. But when you are in front of your client, especially a young woman, and know that you are trying to save her from death, it is more immediate. More urgent. You feel more, a greater responsibility. It is harder to make the excuses you sometimes make when your client is convicted. Because you know this is it. They do not just disappear into the system. They will reemerge just in time for their death. Not now. Not for years. But they do emerge, a chrysalis of death. And it does not fit our archetype—a woman on death row. Maybe that is why less than 2 percent of death row inmates are women.
In order to get the full picture of this family, I knew I had to see the house and meet the Anthonys. Their home sits on Hopespring Drive, just down the road from Suburban Drive, paradoxical names for such a gothic tale. When you step into her small bedroom, you see a teenager’s room: light blue paint, frilly bedspread, posters. There is a sense that Casey emotionally stopped developing sometime in adolescence. What strikes you as you look around are the dozens upon dozens of individual and montage photographs of Caylee spread over all available surfaces. These photographs were there from before the time that Caylee went missing. This room starkly contrasts with the rest of the furnishings of the small home with its black lacquer Japanese furniture and running bamboo in the yard. One is struck by how close and compressed the house is, how near the pool is to the living room, and how close to the site where Caylee’s remains were found.
We sat down to speak with George, Cindy, Lee and his fiancée, and their attorney at the time, Brad Conway. There was a palpable tension in the room. We were aware that Casey had made allegations of abuse against her father George and her brother, Lee. We also had heard about George’s alleged mistress, Krystal Holloway, and her assertions that George had told her that Caylee’s death “was an accident that snowballed out of control.” We were aware that George had tried to commit suicide by taking sleeping pills in a Daytona Beach hotel. But George had also given a damning interview to the FBI against Casey. Baez also believed that Brad Conway had reviewed the records for Texas EquuSearch, the search and recovery organization, while Baez had not been given the same opportunity. Texas EquuSearch was now represented by Mark NeJame, who had previously represented George and Cindy, and there was no love lost between NeJame and Baez. So, at the time, Baez and the team did not know whether George and the attorneys really did support Casey or whether George would implicate her at trial, as he did in later statements. George had been a deputy sheriff in Warren, Ohio, and a detective investigator, and we did not know how closely he identified with and would align with law enforcement in this case. All of his records from Ohio were destroyed in a fire, so we did not know details about his background in law enforcement but, having worked closely with law enforcement in other cases, it has been my observation that the color blue runs deep in the police community.
Secrets can also run deep in families. There is a hidden code—things that are done that should not be done. Things that are said that should not be said. And things that are never spoken of because they are too painful. Too laden with shame and guilt to be uttered. In these cases where you are dealing with terrible tragedy in a family, you wonder what really happened here, knowing that you will never truly know. Never truly understand those secrets. As a trial consultant, you walk into those shadows and try to light the darkness with your own experience, to understand this family, to make sense of them. You do this because, ultimately, you need the jury to understand who these people are and to translate the deep emotions, motivations, and mysteries into a true story for these twelve jurors. But you struggle because this family is different, confounding conventional customs and mores.
As a trial consultant, this struggle, this inward turn of introspection, is important in representing your client. You do not have the luxury of the sole role of advocate. You must speak with the prosecutor’s and the jury’s voice to the attorneys and your client. They need to clearly hear those voices. Because any trial-strategy or jury-selection decisions must take into account how the jury will hear both sides of the case. You need to know the prosecution’s opening statements, their closing arguments, their direct and cross-examinations, their order of witnesses, their demonstrative evidence, and their themes. You need to know how jurors will talk about their case compared to yours in deliberations. So it is your job to be the pessimist, to push your clients to think harder and deeper about the case and to explore any avenue that either the state or the jurors may use to convict your client.
Just like everyone else, you want to solve the mystery. You look for the clues to help you find out what really happened: that hidden piece of evidence, that document, that revealing mannerism to provide you with that TV show “Aha!” revelation, when all becomes clear and the pieces fall into place. But it doesn’t come. You don’t find them. In actuality, the deeper you dig, the more complicated, confusing, and contradictory this world becomes. With discomfort, you slowly realize you will never know what happened. Because the truth lies in the past, on June 16, 2008. It lies in a house on Hopespring Drive. And only those that were there really know. Because this is real life. And real life is messy, incomplete, unknowable. And that is a problem. Because trials are about trying to know the unknowable.
Law enforcement tries to piece together a criminal portrait of the defendant to at least partially explain the unexplainable. Prosecutors try to complete that picture. To make the incomprehensible understandable. They want the jury to have a black-and-white, simplified picture of this world, because they need certainty to eliminate doubt. The prosecution looks for simple equations to make it easy for jurors. Casey lied equals consciousness of guilt equals killed her daughter. Casey went to parties and did not grieve for her daughter equals motivation to be rid of her child equals killed her daughter. Defense attorneys usually present more complex, chaotic, and uncertain portraits of their clients. Ultimately, you are trying to grapple with the same questions that a jury will grapple with. Did she? How? Why? You struggle with these questions to place yourself in the deliberation room. You have to examine your own feelings. Because you want to know how a jury can convict your client. You want to know how they will sentence her to die.
THE FOCUS GROUP
As the trial approached, a unique opportunity presented itself. Linda Kenney Baden introduced me to Ira Sutow, a producer from CBS who was interested in doing a different story on the case. He had seen that the prolonged and negative media coverage had truly created an issue with Casey getting a fair trial. He wanted to do a piece for 48 Hours on the unprecedented effect of the coverage. I asked him if he would be interested in filming a focus group in which we would recruit a group of Orlando residents that were jury qualified, talk to them about the case, present evidence that had already been in the public forum, and ask them how they would vote. Since we had no money to conduct the focus group and I was working for free on the case, CBS offered to pay for the hiring of our mock jurors and the facility where the focus group would be held in exchange for the ability to film the group. I was not paid for conducting the project. Baez said that CBS had been balanced in their past coverage, and he approved the project. Although we knew we would not be picking a jury in Orlando, we truly wanted to learn how jurors looked at the case, especially the major evidence. Focus groups and mock trials allow the attorneys in the case to understand how jurors interpret the evidence in the case, how they apply their own life experiences and beliefs, and how they grapple with the verdict questions. They are invaluable in developing themes, demonstrative evidence to illustrate your main points, issues to emphasize and ignore, and types of jurors to select or avoid. Most importantly, jury research tells you where your land mines are, the problems you most need to address in order to persuade a jury to vote not guilty.
We selected a random group of Orange County citizens to be representative of the types of jurors you would see in an Orlando courtroom. At the beginning of the group, I spent about an hour with the “jurors,” discussing all of the pretrial publicity they had seen. Most of our jurors said they believed Casey to be probably or definitely guilty based on the pretrial publicity. They agreed she could not get a fair trial in Orlando and probably could not get a fair trial anywhere in Florida. They mostly blamed the media for oversaturating the case with so many stories. Based on this publicity, they thought that Casey was a terrible person, had mostly a positive impression of Cindy, and had some real questions about George. Although Baez had garnered almost universally negative press, the jurors believed him to be doing his job and diligently defending his client.
So I took the jurors through the case, asking what they thought of the evidence. I kept the presentation neutral, avoiding both prosecution and defense arguments. I started with a timeline of events, highlighting the thirty-one days that Caylee was missing. Predictably, this was where jurors had the most problems with Casey’s conduct, finding it inconceivable that a concerned mother would not report her own child missing, opting to go to parties and happily spend time with friends and family. I then took jurors through the 911 calls, Casey’s arrest, and the recorded interrogation by Detective Yuri Melich in which Casey is caught in numerous lies. Again, jurors saw this evidence as damning. And then a curious thing happened.
As I went through the car evidence that we knew the prosecution would use to show that Casey had kept Caylee’s body in the trunk, the jurors started having problems with the prosecution’s forensic conclusions. Since most of this evidence was introduced through air sampling, jurors questioned the relatively new science and the ability of investigators to discern anything at all, given that the car had sat in the summer Orlando sun with a bag of food and other trash. And even though a neighbor testified about Casey borrowing a shovel two days after Caylee allegedly died, our jurors questioned why she would wait and drive Caylee around for two days without burying her. And when asked about the chloroform searches Casey had allegedly done on the family computer in March 2008 to plan the murder, jurors simply did not feel this was enough to show motive. Moreover, they questioned why she would wait until June of that year to carry out this premeditated plan.
I then discussed the discovery of Caylee’s body. The jurors had more problems with this evidence. First, the timeline of the search raised questions about why the body was not discovered earlier. Meter reader Roy Kronk had reported finding a skull in the Suburban Drive location to the police on August 11, 2008, and they had come out to investigate on August 12 and 13. Additionally, one hundred volunteers from Texas EquuSearch combed the area in early September. With all of this activity, jurors found it difficult to believe that no one would have seen the bag containing Caylee’s remains, especially since the final placement of the body was only nineteen feet from the road. There was inconsistent evidence that this area was submerged under water at the time of the searches, giving rise to juror belief that the body could have been seen if it had indeed been in the area.
Jurors were further troubled by the lack of DNA evidence, especially on the tape that supposedly covered Caylee’s mouth. Even when I explained that DNA easily degrades over time, especially in a wet environment, jurors still believed there should have been more concrete forensic evidence to show that the tape had indeed been placed over the child’s mouth or some other evidence from Casey that she had intentionally murdered her child. Jurors look for consistency in evidence. It is difficult to ask them to believe that you can pull air-sample evidence from the trunk of a car, preserve it for months, and draw conclusions about its origin, yet tell them you have no DNA or evidence of chloroform from the child’s body.
I concluded the evidence presentation by playing the jurors tapes of the jailhouse visits between Casey, Cindy, and George.
And then, the most surprising revelation occurred. At the end of the group, I asked these twelve jurors, who had previously concluded that Casey Anthony was guilty, which of them would convict her of first-degree murder. Only three jurors raised their hands. More said they wanted to convict her but just did not feel that the evidence pointed in the direction of premeditation. I pushed the jurors to articulate what they thought happened on June 16, 2008. Many felt it was an accident—Caylee had drowned in the pool, and the rest had “snowballed out of control,” to quote George’s supposed mistress, Krystal Holloway. I asked them why Casey would not have just claimed it was an accident and spared herself these accusations. A few of the jurors felt there was a strange family dynamic that prevented Casey from admitting to her parents that her daughter had drowned on her watch. One juror stated that she felt Casey was a narcissist, and people that self-centered would never admit they were wrong. A number of jurors felt that George was involved in some way. When I asked them why, many felt that his statements to his mistress and suicide attempt indicated more than just grief over the death of his granddaughter.
It was evident from the focus group that jurors had a hard time with motive and with the forensic evidence in the case. Without knowing why she would want to kill her own daughter and with uncertainty about how the murder had occurred, jurors were not willing to convict Casey Anthony, despite their initial predisposition toward guilt and their reaction to her lies and behavior in the thirty-one days. Their reactions gave us a clear road map for the trial.
When the 48 Hours episode aired, and CBS showed the jurors’ reaction to the case, the network endured its own firestorm of outrage from the public, with hundreds of emails and blog posts criticizing CBS for supposedly supporting the defense. Also in the show was footage of Florida attorney general Pam Bondi talking about how the prosecution had a “mountain of evidence” and laying out the prosecution’s case. The attorney general of the state is the chief law enforcement officer and is the credible authority on crime for most people in the state. When she speaks, people listen. So when she says a defendant is guilty, most people believe her. The only problem is that she is Casey Anthony’s attorney general as well, since Casey was a resident of the state and is presumed innocent until proven guilty. So when the attorney general goes on national television and proclaims one of her citizens guilty, it can be viewed as an attempt to prejudice the jury pool, which could be considered jury tampering. It raises more questions about how political interests influence how cases are investigated, charged, and prosecuted in a high-profile media trial.
THE JURY SELECTION
Once we knew a clearer path to defending this case, we still needed a jury that could also deliver the same verdict as our focus group respondents. It is one thing to sit in a room for four hours and give your opinions on a case where there is no consequence to your final judgment. It is quite another to be pulled from your home, moved eighty-five miles, and sequestered for six weeks during a nationally covered trial, where you know the public and the pundits are clamoring for one result.
A jury questionnaire is one of the easiest ways to discern whether a jury has been prejudiced by pretrial publicity or has any other biases that would impair their ability to be fair and impartial. Jurors can fill it out and give voice to their candid attitudes without the pressure of a robed authority and strangers judging their responses. A questionnaire is used frequently in both civil and criminal trials and almost always in high-profile trials. Perry refused our request for a questionnaire and laid out his jury-selection plan. He would reveal the location of the jury selection to selected lawyers on the trial teams a few days before trial. They could not disclose the location even to members of their own team until the day of selection. With only hours of notice, they would then have to scurry to the location where Perry would pick a jury in five days. There would be no questionnaire and the attorneys would be limited to questions about the death penalty, pretrial publicity, and whether jurors could move to Orlando and sit as a juror on a six-week trial. The jury selection would be broadcast live. I told Baez that this plan was problematic not only for us but also for the prosecution and the court itself. Jury selection in high-profile cases has numerous potential snags that can derail the whole process unless you carefully plan it out. I urged him to have a conference call with the court to make a cooperative plan so that all parties could be better prepared for what was sure to be a unique and challenging jury-selection process.
But the judge was determined to pursue his course. We knew that even Perry was having problems, because he stated at one point that if we could not pick a jury in five days, we would have to come back to Orlando and pick a jury. This was absurd, as he had ruled that Orlando had been prejudiced by the publicity in the case, therefore making it impossible to pick a fair jury in the venue. He could not then rule that it had magically become fair and impartial. The judge relented on moving the selection back to Orlando, but still insisted he would pick a jury in five days. I knew this to be a fantasy. Jury selection in death penalty cases with little or no publicity can easily take two weeks. The media exposure and sequestration issues could have easily pushed this selection to a month. In any case, this unilateral plan created a number of problems.
First, I felt that the entire state had been prejudiced by the pretrial publicity and that we were entitled to make a change of venue motion in whatever venue we were going for appellate purposes. If we didn’t know where we were going, we couldn’t study the venue or make the motion. Second, while judges may make the decision to broadcast the trial live, jury selection is almost never broadcast. Juror privacy is critical to giving them a sheltered forum to disclose their true feelings on a range of subjects and to allow them to focus on the evidence rather than how the public may perceive their verdict. That they would have to disclose their opinions and personal experiences in front of the whole nation was sure to inhibit their candor and increase the chances that a stealth juror would try to make their way onto the jury. Finally, this plan made it almost impossible for me to attend the jury selection. I had told Baez and the team early on that I wanted to bring another consultant on to lend their local knowledge of jurors in Florida and to provide coverage during the trial since my pro bono involvement limited my ability to participate in a potentially multiweek process in Florida. We had discussed the profile of jurors we were looking for and the types of questions we needed to ask to eliminate the riskiest and most problematic jurors. We had discussed a couple of consultants, and I urged that they be contacted. As the trial approached and the judge was unyielding in disclosing the location, I told Baez I simply could not afford to fly at the last minute to an undisclosed location for an indefinite period of time. We had to scramble to find a consultant at the last minute. To compound matters, one of the contacted consultants then went to the media and announced with outrage that I had “quit” the defense team. This caused more headaches as Baez and I had to try to dispel these rumors and to prepare for the selection.
To reinforce my belief that the entire state of Florida had been polluted by the media coverage of the case, WFTV released a series of polls on the eve of trial. These polls demonstrated that in Orlando, Jacksonville, Pensacola, West Palm Beach, and Tampa, 80–90 percent of jurors knew about the case from multiple media sources and believed Casey to be already guilty. Ironically, about 50 percent said that even though they thought she was probably guilty, they could still reach a verdict in the case. Would that jury still be considered to be fair, impartial, and open-minded?
In the same poll, approximately 50 percent of Floridians supported the death penalty for all first-degree murders, meaning they thought anyone convicted of first-degree murder should automatically get the death penalty, disregarding any evidence that might make that person’s life redeemable. However, in a death penalty trial, there are two phases: a guilt phase and a penalty phase. Most are familiar with the guilt phase of a trial. Only after a jury has found a defendant guilty of a crime where a special circumstance applies that qualifies them for the death penalty do they move on to the penalty phase. In a penalty phase, the prosecution presents “aggravation” evidence or evidence that suggests the defendant is so bad, he or she deserves the death penalty. In this phase, the defense also presents “mitigation” evidence, or evidence that suggests that the defendant has redeemable qualities and should be given life in prison without the possibility of parole.
The specter of finality always hangs over a death penalty case. You sleep less and worry more. And prosecutors know that when the death penalty is on the table, they have a strong guilt case, preoccupying the defense with preparing evidence to save the defendant’s life. But when you are asking a jury to kill someone, you had better make it as easy as possible for them. Because killing is hard. Despite the body count on TV, in movies, and in gaming, a juror sitting in a courtroom is looking at a real person.
And that is why jury selection in a death penalty case is different. Prosecutors are looking at jurors who will make it easy on themselves. An “eye for an eye,” they say, quoting scripture and dissociating from the defendant they are looking at. Prosecutors look for jurors who strongly operate under the “just world” hypothesis, an opaque psychological term that becomes vividly colorful in a death penalty case. These people emphatically believe that the world has order and rules and those that break them will suffer the consequences.
And that is when you look hard at a juror in the moment when they are asked whether they would be willing to vote for someone’s death. The too quick, too eager “yes” demarks the avenger or calculating (“premeditation equals death”) types. Do they believe in a controlled, certain, and just world or a world filled with uncertainty, ambiguity, and unexplained mystery? You look for jurors who will struggle, be uneasy, and can reconcile themselves with unsettling contradiction. For in a death penalty case, you are asking twelve jurors to define justice in the most final terms.
But it is ultimately unfair to jurors. We forbid them from considering punishment in any other case, whether it is shoplifting or a DUI. Yet we ask them to make a literal life-or-death decision involving the most serious of charges. And judges expect jurors to do it easily. “Can you follow the law and impose death?” they ask the juror. And if he or she hesitates, the judge dismisses them for their inability to follow the law. This is why death penalty research shows that jury selection in these cases preloads a jury more likely to convict a defendant in the guilt phase and impose the death penalty. Prosecutors know this. When you ask every juror if they can impose the death penalty, you have subconsciously already asked them to vote on your case. Since you spend time asking “hypothetically” what they would do if they did get to that phase, jurors presuppose they probably will get there.
Florida and Texas have been in competition for the death penalty championship for years. Texas executes more death row inmates, and Florida has more exonerations where the death penalty is overturned. Florida’s death sentences have also been marked by horrific, botched executions. Until they made lethal injection an option, Florida called its electric chair “Old Sparky,” a three-legged wooden contraption made by inmates, which would periodically set the sentenced man on fire. Florida also has a unique distinction—they are the only state in the union where a defendant can be sentenced to death by a simple majority vote. They have to be convicted of the crime unanimously, but they can be sentenced to death by only seven out of twelve jurors.
These challenges make jury selection in a death penalty case much harder for a defendant. Sometimes a good guilt juror is a bad penalty-phase juror, or vice versa. So you need to decide where to play your cards. Because jury selection is part poker, part chess, and part roulette. You need a strategy, and you need luck.
Perry did not allow us to know where he was picking a jury until the day selection was scheduled to start. Since we all knew this would make attendance unworkable, a team of consultants arranged to monitor the jury selection via the live web feeds and to send emails and texts to the team about questions to ask and thoughts on the individual jurors. At the end of each day, we would look at the jurors and their responses, and consultants who were monitoring the selection in Florida, Texas, and California would have an online discussion about which jurors to keep or kick. But the team on the ground, Baez, Mason, Sims, Ann Finnell, and Casey, had to make the final calls.
As I have said, jury selection is really jury de-selection. You try to identify your highest-risk jurors and to eliminate them by exercising cause or peremptory challenges. You invite jurors to voice their skepticism, hatred, and outright conclusions about your client’s guilt. And you only have ten strikes to eliminate those jurors who are most problematic. So you have to target jurors with the worst attitudes toward your client and the highest leadership potential. You are selecting not only individual jurors for the case but also a group to decide your client’s fate. And you are most carefully looking at who will lead that group. Both attorneys and the media always ask about the demographic labels of our most desired jurors: men or women, old or young. In Casey’s case, the question is whether we wanted single people, or mothers and fathers with young children. But the real truth is you look for an attitude, a mind-set, a worldview, and a temperament that fits the case. In this case, like with a number of other cases I have written about in this book, I again knew we wanted smart, skeptical, and independent jurors. And I needed more than one, because we would need several if we got to the death penalty phase.
The actual jury selection took eleven long days, marred by a series of incidents. At one point a Texas EquuSearch volunteer who had searched for Caylee was called as a juror and discussed the search freely with all of the other assembled jurors. All fifty of those jurors had to be dismissed. At one point, a spectator called out, “She killed someone anyway!” during jury selection, prompting the dismissal of that juror. And Perry almost ran out of jurors, threatening to empanel jurors from the homeless shelter next door.
When you pick juries, you train yourself to hear voices. You sit and listen to prospective jurors, and then you project what their voices will sound like in deliberations. And you listen to those voices to try to match them to the verdict you want. They whisper in your ear during opening statements, when witnesses are on the stand, when you are giving closing arguments, and when the judge finally instructs them on the law. These jurors that spoke to us and sat in judgment of Casey were ordinary people: a gym teacher, a retired nurse’s aide, two people who worked for Verizon, an IT worker, a salesman, a secretary, a handyman, a cook. One was a policeman’s daughter, one was a lawyer’s daughter. Two had difficulty with the death penalty, and two previously thought Casey to be guilty. All would unanimously make one of the most difficult decisions they had made in their lives.
THE TRIAL
I tape every episode.
—Observer at Casey Anthony trial
Our family is at Disney World, but this is more exciting for me.
—Another observer at Casey Anthony trial
The jury was sworn and seated in an Orlando courtroom on May 20, 2011, while another jury had been seated at home for more than two years. The jury in Orlando was charged with keeping an open mind, only considering evidence from the witness stand, and not discussing the case or doing any independent investigation. The jury at home did not have any of these rules. And they had already made up their minds.
Trial strategy is often about leverage and weight—both the type and amount of evidence that gradually moves a jury to the decision you want them to reach. The defense’s main leverage in the Anthony case lay primarily in four areas: attacking the prosecution’s “fantasy forensics,” the Anthony family dynamic, the severity of the death penalty, and the pretrial publicity. Since doubt is a defense attorney’s primary tool, our main goal was to create uncertainty and to make the jury question the prosecution’s case in all of these primary areas.
Although there was much discussion in the press about Casey’s lying, no one can sit and pretend for six weeks without revealing their true character. We knew the jury would be watching her in the small moments before testimony and on breaks to see whether the true Casey would reveal herself. We knew they would watch her reaction to her parents and to the testimony about the discovery of Caylee’s body. The jury would be comparing her demeanor in court to the interrogation tapes, to the jailhouse interviews, and to the bar pictures of her infamous “hot body” competition. In essence, she would be testifying in trial through all of these images. This made our preparation easy. She needed to be genuine in her emotional reactions in court. She had to dress appropriately. Anything tight or low cut would emphasize negative impressions of her sexuality and make her seem less like a mother and more like the careless tramp the prosecution was making her out to be. The fit had to be loose and the colors generally light. It was inevitable in a six-week trial that she would relax and smile at some points, joke with attorneys at the table, which would be interpreted in the press. But she needed to be serious and engaged in the trial.
Because the pretrial publicity had been so pervasive, I was concerned that the burden of proof had shifted to the defense proving Casey innocent. While jurors do often hold prosecutors to the “reasonable doubt” standard, it is counter intuitive—we expect the accused to explain why they didn’t do what they are accused of doing. This has become more pronounced in a post-9/11, pro-prosecution era where we have regularly suspended the Bill of Rights for criminal defendants under the label of “terrorists” and “enemy combatants.” Baez had managed to hold off for nearly three years. Now it was time to tell the story of what happened in his opening statement.
Baez knew that jurors would want to hear from Casey, especially to explain how she lost her daughter, and the thirty-one days she did not tell anyone about her disappearance—our greatest weakness in the case. For that, Casey would have to take the stand, a rarity for a criminal defendant. If she were to testify, Baez would have to introduce jurors to her testimony in the opening statement, including her account of the accident and her allegations of abuse against George and Lee. While there has been much criticism of the lawyers’ decision to introduce those allegations, it was ultimately Casey’s decision whether she wanted to testify about what happened that June day and what happened on Hopespring Drive when she was growing up.
Baez’s opening statement, which discussed the drowning accident and the abuse allegations against George and Lee, created a stunned reaction in the press and the public. But it provided an important framework for the jury in dismissing key pieces of forensic evidence and explaining motive. The drowning accident made the car evidence extraneous to motive. Even though Baez, Mason, and especially Sims, whose specialty was in holding expert witnesses accountable, were planning on attacking the evidence from the car, the accident made this evidence irrelevant to the murder charge. The abuse allegations against George and Lee started to explain the Anthony family dynamic and why Casey or George would have tried to cover up the drowning.
Prosecutors sometimes make the mistake of believing that more evidence builds a better case. They often use the phrase a “mountain of evidence” to describe what the defense has to climb. But more evidence also can mean more questions and ultimately more doubt. In the prosecution’s case, they called Casey’s family and friends to describe her deception and lack of grieving in the thirty-one days before Cindy confronted her about Caylee. But these same witnesses, on cross-examination, described a remarkable and loving relationship between the mother and daughter, confounding the prosecution’s theory that Casey had wanted to be rid of Caylee to live a freer life.
A great deal of the case then turned to the experts. Linda Kenney Baden had laid a solid foundation for the defense in taking the depositions of a number of the state’s experts, and the attorneys did an excellent job of questioning the agenda and credibility of the state’s forensic experts. They were relying on new science involving captured air samples, a dubious stain on the trunk mat, along with testimony about the horrible smell of Casey’s car. The new science had no peer review and had never been previously allowed in a court of law. Moreover, this evidence was being used to bolster the state’s claim that Casey had used chloroform to kill Caylee. However, the chloroform “signature” could have come from other sources, and no chloroform had ever been bought by Casey or recovered from the house.
The state also had their own TV star, coroner Dr. Jan Garavaglia, or “Dr. G.,” who had her own reality show and testified to her conclusions in labeling the death a homicide. However, she could not conclude the cause of death, relying only on the tape around the jaw and mouth area. In an attempt to tie the body to Casey, an FBI forensic expert also testified to the outline of a heart-shaped sticker, which magically disappeared before it could be photographed. Earlier in the case, Nancy Grace and numerous other commentators had spent countless hours opining on the implications of Casey placing a heart-shaped sticker on the duct tape covering her child’s mouth. But testimony also showed that George primarily used the duct tape, and he had discarded deceased family pets in trash bags. All of these inconsistencies created uncertainty about the time and cause of death. The questions were made more glaring by the hype and expectations driven by the media coverage.
And it was here, at the conclusion of the prosecution’s evidence, where the pretrial publicity did the most damage to the state’s case. Because when prosecutors Jeff Ashton and Linda Burdick rested, there was a palpable disappointment. There was no new evidence, no smoking gun, no new revelations. The public and perhaps the jury had already heard this evidence for nearly three years. It did not have the emotional impact of freshly heard evidence. From an objective standpoint, the state put on a decent circumstantial evidence case. But the Sunshine Law and pervasive coverage of the case had deprived the jury of the weight and heft of their case, making it seem slight, barely able to tilt the scales.
In putting on the defense case, I considered what jurors still needed to hear to answer their questions and their concerns about our case. It was my belief that the jury needed to understand how the accident could have happened: the layout of the house and access to the pool. The jury also needed someone to testify about the different ways that people grieve. Since Casey’s behavior was so aberrant, so unusual, the jurors needed to understand that people’s reactions to loss take many forms, including inappropriate behavior.
When they were on the stand, defense experts addressed and reinforced the questions, inconsistencies, and omissions in the state’s case. Significantly, testimony about the discovery of the body raised questions about the very basis of the prosecution’s theory. Ashton had continuously said that the tape on the skull told the story about Casey’s premeditated murder of Caylee and was the basis for the capital charge. But meter reader Kronk’s testimony raised serious questions about when he and the Orange County sheriffs had discovered the body or whether the body had even been in the final location the entire time prior to discovery. More importantly, since the bag had been handled and the skull had dropped out and rolled, questions remained about whether the tape across the skull was there in the first place.
Most importantly, jurors spent time with the Anthonys. George Anthony denied his affair with Holloway and denied telling her the drowning was an accident “that snowballed out of control.” He testified about his suicide attempt and denied abusing Casey. Cindy testified that she had done the computer searches that resulted in chloroform appearing in the search history. The prosecution tried to impeach her by showing she was at work at the time the searches were done. Casey’s brother Lee testified about the stain in the trunk of the car and about feeling left out of Caylee’s birth. They all wept openly in court, joined by Casey at the defense table. The Anthonys became a dysfunctional family for the country. In this live reality show, jurors were left to wonder why Cindy and Lee would clearly try to help Casey with their testimony while George, given numerous opportunities, would not, knowing his daughter faced the death penalty. And if, as the prosecution was claiming, Casey was a cold-blooded killer of her own daughter, what made her that way?
Cynthia Marie,
As you get this letter, this should be no surprise that I have decided to leave the earth, because I need to be with Caylee Marie.
I cannot keep on going because it should be me that is gone from this earth, not her.
I have lived many years, I am satisfied with my decision because I have never been the man you, Lee, Casey & especially Caylee Marie deserved.
I have never been the man any of you could count on. I have always let each of you down in more ways than I could remember. I do not feel sorry for myself, I am just sorry I burden all of you the way I have.
My loss of life is meaningless. . . . I cannot be strong anymore. Caylee Marie, our granddaughter, I miss her, I miss her so much. I know you do too. You were always the one that provided for her. What did I provide?
I blame myself for her being gone! You know for months, as a matter of fact, for a year or so I brought stuff up, only to be told not to be negative. . . . I sit here, falling apart, because I should have done more. She was so close to home, why was she there? Who placed her there? Why is she gone? Why? For months, you & I, especially you always questioned, why?
I want this to go away for Casey! What happened? Why could she not come to us? Especially you, why not Lee?
Who is involved with this stuff for Caylee?
I am going [crazy] because I want to go after these people Casey hung with prior to Caylee being gone.
That is why I got that gun. I wanted to scare these people. You know! They know more than they have stated. You cannot sugar coat, kidglove these people. They need hard knocks to get info from.
Sure that will not bring Caylee Marie back, but was Casey threatened? You know, Casey does not deserve to be where she is!
I miss her, I miss her so much. I am worried for her. Her personal safety is always on my mind. . . . I cannot function knowing our granddaughter is gone. Caylee Marie never had a chance to grow. . . . I have taken what meds was given to me with alcohol & I am ready to give up.
As I can tell by my writing & thinking I am getting very stupid. Wow, what a word STUPID. Yes, I am. Again, I do not feel sorry for myself, but yes I am STUPID. Cannot deal with stuff anymore. The loss of Caylee Marie. The loss of Casey. The loss of us, Cynthia Marie, the meds, I am ready.
Saying good bye, please understand it is for the best. I do not deserve life anymore. Anymore us. . . . You know I never got to say good bye. I am at this place & all is getting fuzzy & my writing is all over the place. I love you, I love you, I hope you get to see Casey soon. All the people we met, wow the writing is getting weird, I love you, I am sorry—I will take care of Caylee—once I get to God. . . . I am so tired, at least I shaved today, Wow—I’m tripping out, I am sorry. I love you—Cynthia Marie. Caylee here I come.
—George Anthony’s suicide note
—
In closing argument, Baez drove home the problems with the discovery of the body and the state’s forensic case as well as inconsistencies with their theory of Casey’s premeditation. He kept reiterating the holes and the uncertainty in their case, stressing that the state could not prove when, where, or concretely how Casey had murdered Caylee. More importantly, I wanted the jury to know about the hidden assumptions in the prosecution’s case. That the state, the prosecution team, the media, and the public all wanted, indeed expected, a conviction. That they were relying on fundamental biases, speculation, and rumor in place of real evidence. They wanted the jury to believe that she was a bad mother, a whore, and a liar. That she did not behave the way we expect a grieving mother to behave. And because of these fundamental assumptions, she must have killed her child. I wanted the jury to know the state was really asking only for the death penalty and that this was really the only charge that they had taken any effort to prove. Since jurors can easily decide on a lower count if they feel the prosecutors have not fully proven their case, I wanted to reduce the chance of this kind of compromise. I wanted them to know the law and their duty as jurors. That it would take diligence to discern the real evidence from all of the publicity. And that it would take courage to resist the public pressure to convict.
THE VERDICT
On a hot Fourth of July weekend, people across the country barbequed and watched closing arguments in the case. And on July 5, after eleven hours of deliberation, the jury in an Orlando courtroom acquitted Casey of first- and second-degree murder, aggravated child abuse, and aggravated manslaughter of a child. They convicted her of four counts of lying to the police. Their first vote was 10–2 for acquittal on the most serious counts, almost the same as our focus group in Orlando. More than 5 million people watched the verdict on HLN, more than watched the catastrophic events of 9/11 unfold. CNN had 2.3 million viewers. Fox had 2.9 million viewers, and MSNBC had nearly a million viewers. Grace’s show had 2.9 million that evening, the biggest spike in the history of her show. The outcry was instantaneous, and the comparisons to the O. J. Simpson verdict immediate. And while Simpson was a Jacobean tragedy, bloody with tones of vengeance and sexual jealousy, Anthony was a mythical Greek tragedy, familial, secretive, with fatal flaws and mistakes leading to an irrevocable and deadly crisis.
The jurors were vilified and their decision condemned, evidence of the investment that the public had in one outcome to the case. They received death threats, one left the state, and the rest went into hiding. Perry would later go on The Today Show and speak about his “surprise, shock, and disbelief,” stating that he thought the “prosecutors had proved a great case” and comparing Baez to a used car salesman, belying his own leanings in the case.
But if Perry, the pundits, and the public listen to what the jurors said, they followed the law, their interpretation of the evidence, and their own common sense. One juror discussed how the legal premeditation instruction requires the defendant’s contemplation of the murder before the actual act. Since the prosecution did not prove the time of the murder, he felt the prosecution could not meet this premeditation requirement. Another two jurors discussed the inability of the prosecution to concretely show when, where, and how the murder occurred, leading them to vote for acquittal. These two found credibility problems with George but said they had no evidence of the abuse, so did not consider it. Many of their comments echoed those of the focus group we held in Orlando.
Independent juries are the cornerstones of the justice system. They are chosen by both the prosecution and the defense. They trust that a group of twelve citizens, brave and true, working together to interpret the evidence and the law, will use their independent judgment to arrive at a just verdict. There is no formula, no predictable result. Each jury has its own way of piecing together the evidence in the case and applying the law. We rely on that individuality as the hallmark of citizen juries. Our founders wisely felt this independence was the best safeguard against a state’s unchecked power to seize the life or property of a citizen.
Real trials, like real life, are complicated, sad, confusing, and sometimes inexplicable. They do not fit into an hour-long news show or detective drama. American justice is not American Idol. It is a process. A messy, frustrating process. And it is one of the prices of unfettered democracy.
I was on a dock in Lake Arrowhead with my daughter when I heard about the verdict. I was relieved but not happy. I did not celebrate. Whatever happened on June 16, 2008, a small but bright light was gone from the world. I paddled out with my daughter into the lake.