Recall that in Florida law, the defense has the distinct advantage of being able to question witnesses before trial in a process known as deposition. The State is required to provide defense attorneys with all of the names of its witnesses, as well as to identify and provide access to all tangible evidence within fifteen days of a request by the defense. Most often, the State is very cooperative in this process, and in allowing additional time to work with the defense.
Now that I was on this case, I intended for it to be handled properly. After forty years’ experience and the handling of quite a few homicide cases, I knew how I wanted to work in order to get the job done effectively. I had seen some of the unfair advantages held by the prosecution in previous cases and was determined to work as efficiently as possible in order to keep the deck stacked as evenly as possible. Yet even I was unprepared for the degree of obstruction we would encounter in defending this case.
The State had already provided “partial discovery” by listing a number of witnesses that they intended to call upon during the trial. In order to expedite the deposition of these witnesses, Florida rules require witnesses to be categorized by the State as either A-, B- or C-category witnesses. “A” witnesses are those witnesses who are inherently relevant to the case at hand—whom the State definitely intends to call as witnesses in the trial, and whose depositions the defense is automatically entitled to take. “B” witnesses are those who may be called during the trial—whose testimony is seen as only moderately relevant to its outcome—and can be deposed upon special agreement with the prosecution, or by a court order. “C” witnesses are only distantly related to the case, are not intended to be called during trial at all, and so are not subject to deposition.
In this case—and for all too many cases prosecuted in this jurisdiction—the State Attorney’s Office, for reasons known best to themselves, did not categorize their witnesses separately in this fashion. They simply categorized all of them as “A” witnesses. This, they claimed, was because they didn’t want to realize later that they had made a mistake in determining whether or not the proper witnesses were disclosed and could be used; but truth be told, it was because they didn’t want to go to the trouble of separating witnesses, or to be held accountable for their classification. Indeed, I have found few jurisdictions in the state of Florida in which prosecutors are professional enough to review their cases before filing and categorizing witnesses.
What this meant for the defense was that the witnesses had to be brought to the courthouse to be questioned in order to determine what their testimonies might be and of what real value they were to either side. This requires coordination with the state attorney so that both groups of lawyers can have the fair opportunity to be present, and it also requires a lot of money. Attorneys have to pay a court reporter to be present at every deposition, who generally charges a per-diem fee of $85.00 or more, simply to appear. If what is said is deemed important enough to be typed up, they charge $4.25 or more per page. Thus, when a defense lawyer or the State wants to memorialize the testimony given in a deposition, it can quickly get very expensive. Moreover, expert witnesses have to be paid their fees and expenses, which are sometimes shockingly high; and any additional investigation—by the defense, at any rate—requires hiring private investigators. The prosecution’s investigation, of course, is already being carried out internally, and since the prosecution functions as an arm of the State, all of their other expenses are taken care of by taxpayer dollars. On the side of the defense, the money has to come from somewhere else—the client, his or her supporters or the lawyers themselves.
In our case, there was no money—or rather, what there was had been depleted before I joined the case. Mr. Baez had evidently sold some photographs of Casey to one of the major news networks for $200,000; he had also obtained a private contribution—$75,000, I’m told—from a lawyer who was at one time involved in the case. Yet this money was gone by the time I came on, with no prospects of more coming in.
I had already agreed to take the case pro bono, even knowing it was going to be a battle. It would surprise me, in the end, to see just how much time and money it took to defend Casey’s life; by closest estimate, my unbilled hourly time alone amounted to close to a million dollars—not including the many tens of thousands of dollars in expenses paid out-of-pocket. But to be thwarted from the beginning by lack of funds was extremely frustrating. Right when I came on, I was faced with an ugly choice: either accept the inability to take depositions and investigate the case properly, or try to find some other resource.
Upon obtaining the witness list—which comprised then, as I recall, 125 or more names—I realized we were already far behind schedule in the deposition process. Only a very few depositions had been taken, and those only partially. In a death penalty case, this simply wouldn’t do.
I had worked with Linda Drane Burdick, the formal lead counsel for the prosecution, on several prior cases, and knew her to be a professional and honorable person. We had a meeting to discuss moving forward with our very heavy deposition schedule, during which I asked Linda if she would go to the trouble to more adequately categorize the long list of “A” witnesses, so we could avoid wasting time in taking the depositions of witnesses with only a peripheral involvement in the case. She agreed, but unfortunately, she didn’t do it in the end. Knowing Linda and her history, I couldn’t but suspect that it was others on the prosecution team who had objected to her carrying out what she had told us she would do. One way or another, though, we were left with no money and potentially more than a hundred costly depositions to take.
There is a procedure that I have successfully undertaken in similar circumstances in the past that I decided to invoke in this case. We filed a motion to have Casey Anthony declared indigent. Under this motion, if the court agreed that she was so, the State of Florida would pay the cost of investigations, depositions and expert fees for the defense.
Having filed our motion, we scheduled a hearing before Judge Strickland. Ordinarily such a hearing is a perfunctory, non-interesting proceeding that nobody would take note of. But not in this case; this was Casey. The result: a courtroom full of news media, with an army of television trucks and crews around the courthouse and curiosity seekers cramming themselves in at every door. This may have been seen only as a nuisance, but in light of the exceptional scene that followed, one may suppose it to have been obstructive to a deeper degree.
It is important to point out here that, regarding a criminal trial, the prosecution really has no “stake in the fight” over funding. The State Attorney’s Office has its own separate and independent budget amounting to millions of dollars. They also have an unlimited source of investigators and experts available to them. In our case, they had the FBI, the Florida Department of Law Enforcement, the Orange County Sheriff’s Department, the Orlando Police Department, the Metropolitan Bureau of Investigation, the state attorney’s own investigating staff, and every federal law enforcement agency in the country on call—at any time, for any purpose.
Nevertheless, at the indigence hearing for Casey Anthony, in the overwhelming presence of the news media, the prosecution objected to our motions, to the point of cross-examining Mr. Baez regarding the funds he had already spent. They asked the defense team generally, and Jose Baez specifically, if there were any book deals, movie deals or other such projects in the works that could provide us with funding, which, of course, there were not. Though there was no evidence whatsoever to contradict what we were saying, even the judge continued to be skeptical, and at one point I found myself simply asking him, “You trust me, don’t you?” Recognizing my standing, he finally agreed, and allowed us to submit a private accounting of the money that Mr. Baez had received. Soon thereafter, Casey Anthony was declared indigent.
Now it seemed the defense would at least have some small ability to level the playing field. Yet there was another state agency to deal with, which would prove susceptible to the same obstructionist tendencies.
The Justice Administrative Commission is a commission, personified by a single lawyer, that decides whether or not to pay requested expenses for the defense. Even when the judge approves the propriety of expenses for witnesses or assistance in a case, the JAC frequently oppose it, sometimes to the point of absurdity. They have, for instance, guidelines by which the amount to be paid for a private investigator is limited to $40 per hour, despite the fact that the average investigator’s rate is three times that or more. Likewise, they restrict the amount of money to be paid to court reporters in depositions, both for their time and for their transcription work.
This is one of the points in which obstruction seems to be built into our legal system. The State prosecution has no such commission, or even tax-watch organization, looking over their shoulder; nor do they have to restrict their spending in accordance with any such guidelines. Their travel and access to witnesses—perhaps even to expert witnesses—is completely unfettered. In our case, their hotel bills, their meals, their taxis and their flights were all paid for, as were all fees and expenses for their expert witnesses. There was no need for them to ask the judge’s permission, or to send a bill for approval; they just spent what they needed to spend. The defense had to beg for every dime—and were frequently denied.
This form of obstruction through economic constraints would be manifested throughout the rest of the proceedings. When Mr. Baez asked the court to pay to provide the defense with a jury consultant—of which the prosecution already had at least one—the judge responded, “Mr. Baez, you’ve got Mr. Mason. He’s been doing it for forty years. You don’t need an expert.” When we wanted to take the deposition of one of the State’s so-called expert witnesses, we would have to pay the travel expenses to get to them. When we traveled to take the deposition of a witness in Knoxville, Tennessee, I paid for our flights, the taxes, the hotel and all other expenses related to travel. One of our team had to participate via phone, rather than incur the additional travel expense. The state prosecutor, Mr. Ashton, showed up there on the state attorney’s budget, accompanied by his own consulting expert, a professor from the University of Florida. When it came time to go to trial, the defense team had to pay all of our travel and accommodation expenses during the two weeks required for jury selection in Clearwater. The State’s entire entourage traveled there on taxpayer money.
It doesn’t pay to be a poor defendant in this country to begin with. But besides the unfair financial advantage that our system grants to State prosecutors, its ordinary restriction of defense funding to private sources leaves open another avenue for obstructive media influence. Poorer defendants often rely on external contributions to fund their cases; and, in the case of defendants like Casey Anthony, whom the media decides to vilify early on, such external contributions dry up very quickly. How can one be expected to drum up such necessary resources, financial or otherwise, from a public, or even from friends and family, that have been persuaded of their guilt from the beginning?
The converse, it’s worth pointing out, is just as applicable, and defendants of very questionable standing have received disproportionate amounts of financial support from private contributors, practically sight unseen, for the same prejudicial reasons. Long before the circumstances of Trayvon Martin’s death were known, George Zimmerman was given huge amounts of money by the National Rifle Association to support his acquittal for the shooting—simply on the basis of his public presentation as a gun-rights avatar. In this type of case as in the other, media involvement too easily affects trial conduct and takes it quickly out of the realm of what most Americans would consider “due process,” and into that of straightforward obstruction.