Presumed Guilty

by Jose Baez

  The prosecution had filed for the death penalty when this clearly was not a death penalty case. From the perspective of the prosecution, this case was all about winning, not justice. The prosecution wanted to kill the most hated woman in America. However, she was steadfastly maintaining her innocence, and the evidence was starting to prove she wasn’t guilty, which only made them dig in their heels harder. I knew they would destroy her—and me—to win this case if they could.

  What was I going to do? I remember the day I confronted this dilemma. I closed my eyes, took a deep breath, and said to myself, All I can do and all I will do is fulfill my oath.

  CHAPTER 15

  MAKING UP A CAUSE AND MANNER OF DEATH

  ONCE CASEY FINALLY TOLD ME what really happened on June 16, it was clear to me that the prosecution’s case—that Casey had killed Caylee with duct tape, put her in the woods, and lied to cover it up—contained a series of serious leaps of faith without evidence to support them, based on their main argument that Casey didn’t act right.

  But until that day finally came, months after Caylee was found, I had been deeply concerned that what they were saying was true.

  On December 12, 2008, the day after Caylee’s remains were found, I ran into FBI Special Agent Nick Savage. He had seen that I had hired a group of well-known experts to process the crime scene and said to me, “With all the evidence we’ve got, I don’t think if you had Jesus Christ on the defense team you’d be able to save her.”

  If Savage said that to intimidate me, he certainly succeeded.

  I didn’t know the full story then, so my first reaction was to feel the icy fingers of fear run down my spine. I felt badly for Casey on various levels. One, I felt horrible that her darling daughter had been found dead and not alive. Two, if found guilty, Casey was the one who was going to fry for this. As a lawyer, even if you represent someone who may be guilty, you get to know them and you learn to have sympathy and empathy for them.

  I do this work for two reasons. One, because not everyone who gets arrested is guilty. Human error in the justice system is extremely prevalent, much more so than people realize. And second, just because a person makes a mistake doesn’t mean he or she should pay for it for the rest of his or her life. I believe in forgiveness, I believe people can change, and I believe in redemption. And I know that’s because of my own experiences in life, not because I was a bad person, but because I did some stupid things growing up, and even as an adult I’ve done some stupid things. But I don’t think that makes me a bad person. I’m much more than that, and that’s what I think my clients are. They are much more than just criminal defendants. There is a basic human dignity that everyone has; everyone is capable of loving and being loved and contributing to life as a whole. And if you don’t think that way, you cannot do this job effectively.

  All I could do was stand back and wait and see what he was talking about. What was all this evidence he was boasting about?

  I remember when I was watching the TV news coverage of their processing the crime scene, I could see how happy and excited the detectives and law enforcement officers were when they were there at the scene. They were smiling and laughing and joking around not twenty feet from Caylee’s remains.

  We’re going to have to look at what the cause of death is going to be, I said to myself.

  We were very anxious to see what Chief Medical Examiner Dr. Jan Garavaglia’s autopsy was going to show, and on December 19, 2008, Garavaglia spoke at a press conference. She got up and said, “With regret I am here to inform you that the remains found off Suburban Drive are that of the missing toddler, Caylee Marie Anthony.”

  Garavaglia (who gained fame as “Dr. G” from the Discovery Health Channel show, Dr. G: Medical Examiner) then announced that the cause of death was “undetermined,” and the manner of death was “homicide.”

  “What the hell does that mean?” I asked Linda Baden.

  “Hell if I know,” she replied. “That’s a first for me.”

  We knew right there that something was very fishy.

  What that means in plain English is that they don’t know how she died, but they know it was murder. They were going to try to say they knew the who, but not the when, how, or why. None of it made any sense to me, and I knew if I had trouble with it, so would a jury, so that’s where the center of our attack of the prosecution’s case would begin.

  Chief Deputy Medical Examiner Dr. Gary Utz, who initiated the autopsy for the state, determined that there didn’t appear to be any trauma on the body. There was no indication Caylee ever had a broken bone, or even a prior injury. There was no indication of any violence to Caylee’s body.

  We knew then and there that Garavaglia was going to have a problem justifying why she called Caylee’s death a homicide. Her report, after all, gave no reason for it.

  Later we would find that Dr. G gave three nonmedical reasons for calling it that, specifically: (1) Caylee’s disappearance was not reported to the authorities immediately; (2) her body was hidden in a wooded area; and (3) duct tape appeared to be applied to the lower face.

  These aren’t medical facts, I said to myself. You don’t need to be a doctor or a scientific expert to come up with these reasons. It was all in an investigative context.

  Our conclusion: these were the facts the cops were talking about.

  We would later find out that when Caylee was found, Dr. G was at the airport and heading out of town. Everyone in the medical examiner’s office was on high alert, waiting for the call, and when it finally came, she called in and assigned the case to Utz, a board-certified forensic pathologist who had done many, many autopsies. He was fully qualified to do it.

  When Garavaglia returned from her trip, she took Utz off the case and replaced him with herself. Dr. G was the big name in town. Because of her TV show on Discovery Health, she is well-known throughout the community and the nation.

  Utz had begun the autopsy, and when we asked him his opinion as to whether he agreed with Garavaglia declaring the manner of death a homicide, his words were, “You’d have to ask Dr. Garavaglia about that … It’s her opinion. It’s not my opinion.”

  When we pushed Utz further on the subject, he refused to tell us what his opinion was. That struck me as odd, and I immediately was given the impression he disagreed with his boss’s opinion and moreover, he was not at all happy about being pushed aside on the biggest case of his career just because Dr. G had a good relationship with the cops.

  When I asked Utz why Dr. G took over the case from him, he said, “Because it’s a high-profile case and because of her relationship with law enforcement.”

  When I heard that, my jaw dropped.

  I thought, She took the case back because it’s high profile? And because of her relationship with the police?

  The medical examiner is supposed to render an independent opinion. Utz gave us a clue that Dr. G’s opinion wasn’t without prosecutorial bias.

  We knew we could benefit at trial over the two medical examiners dueling over the issue of the cause of death, and I decided to put that one in my back pocket and use it later when needed.

  We immediately began researching Dr. G’s past. Casey said that Caylee had drowned accidentally, and my co-counsel, Dorothy Clay Sims, discovered that Garavaglia had written a book in which she stated that the most common cause of death of young children in Florida was drowning. I couldn’t wait to ask her about that at trial.

  The next question was obvious. If the medical examiner was going to call this a homicide, then how did Caylee die if there were no evidence of foul play?

  How was the state able to mount a case for murder, other than offering evidence that Casey was a liar, that she neglected her daughter when she went out dancing a couple times at a club during the thirty days when she was “missing” (we knew for the first time she wasn’t missing; it was more of a coping issue than evidence that she was glad to be rid of Caylee), and that she was promiscuous and had a lot of boyfriends?

&
nbsp; Basically, the police and prosecution made up—invented—the cause of Caylee’s death. They had no idea what actually happened to Caylee, who took her, or who put her in the woods. There was no physical evidence whatsoever that Casey was involved in Caylee’s death, but because the police had focused their attention solely on Casey, her activities, and her car—and no one else—they blindly went ahead and took what they believed to be the next logical step: accusing Casey of putting duct tape over Caylee’s mouth and nose and smothering her to death.

  For the many months before I learned the truth about what really happened on June 16, the duct tape evidence was the most troubling piece of evidence I had to deal with. I stayed up many nights and labored many hours over the photographs of the duct tape found near Caylee’s skull, wondering how I was going to attack this piece of evidence.

  What I found shocking was that no fingerprints were found on the duct tape. None. Not any. If there’s anything that lends itself to fingerprints, it’s duct tape. There was also no DNA on the duct tape. If the duct tape had actually been wrapped around Caylee’s face to suffocate her, as the prosecution alleged, you would think the odds would be 100 percent that Caylee’s DNA would’ve been all over that duct tape, especially if you consider the force necessary to apply it. If someone had put duct tape on Caylee, why was no saliva, mucus, and as she decomposed, all of the decomposition liquid, found on the tape afterward? It just didn’t seem possible at all.

  To counter this obvious truth—that there was no evidence that duct tape had been used to kill Caylee—I was sure a desperate prosecution would use the argument that the outdoor elements off Suburban Drive degraded the DNA so much that none was left.

  Three things destroy DNA. One is heat, the second is moisture, and the third is law enforcement. I can tell you that more often than you’d think, law enforcement will contaminate a piece of evidence because it’s so easy to do. They certainly did it in this case.

  When the FBI processed the duct tape, his first move was to send it to fingerprints first and not the DNA section. That was a critical mistake. Second, after the duct tape left the fingerprint section, when they were searching for what they described as a fragment of a heart-shaped sticker, the supervisory forensic document examiner, a lovely woman by the name of Lorie Gottesman (I found her to be such a pleasant and nice lady because she was extremely polite and honest) contaminated the duct tape. As I said, it’s easy to do. When the duct tape was examined, her DNA was found on it. When she placed the duct tape on what is called a Video Spectral Comparator, a machine that uses lights and filters to view items that are not visible to the naked eye, her DNA could have been on the machine and transferred to the tape. She could have contaminated it by speaking while handling it, or by placing the duct tape on her desk and allowing it to touch something on her desk that had her DNA on it. If Gottesman could get her DNA on the tape so easily, why in the world wasn’t Caylee’s DNA on it?

  Or Casey’s for that matter, since she was the one accused of using it to kill Caylee.

  There was further proof that someone else handled the duct tape. There was a low amount of DNA on the sticky side of the tape. Now, in order to identify whose DNA it was, you have to match thirteen different markers. But to prove that it doesn’t belong to someone, it’s enough to have just one marker to eliminate that person. And the one marker that was found excluded Casey and Caylee. Because the police never got a DNA sample from Roy Kronk, no one will ever know if it excluded him as a possible contributor to the DNA on the duct tape.

  That should have been enough to cast major reasonable doubt into the case, but what the prosecution did was argue that the DNA had been contaminated from another law enforcement person. It just didn’t know who.

  I was determined to identify the culprit.

  I needed to find an expert on what is called Low Copy Number DNA, which is the analysis of DNA when only minimal amounts are present. Europe has many of the leading scientists in DNA. An Englishman, Sir Alec Jeffreys, discovered DNA fingerprinting in 1984, and he was the first to use it in a criminal case. The first person ever to admit DNA in a courtroom in the United States was none other than my adversary, Jeff Ashton.

  I wanted the top expert in the field, and so I traveled to the Netherlands to meet with Richard Eiklenboom, the best when it came to LCN.

  Before I began Casey’s case, I had planned on taking Lorena to Egypt. We had it all planned, and I had to put it off because of the case. I still had the ticket vouchers. I came home one day and said to her, “Lorena, I have phenomenal news. We’re going to Europe.”

  She was very excited.

  “The bad news,” I said, “is that we’re going to a DNA lab.”

  I spent two weeks in Richard’s lab and learned all about LCN. I learned about DNA from A to Z, from recovering it at a crime scene, to the way it’s processed. I learned each step at the lab—the way the statistics run, how it’s amplified—and became a complete expert. I even went through Richard’s certification program and got certified in trace recovery and DNA analysis.

  I knew that when the time came, I’d be able to fight Ashton toe-to-toe on the issue of DNA. I also hired Richard’s wife, Selma, who was a knowledgeable fireball of a woman.

  I was out of money, so I asked the Eiklenbooms if they would come work on the case pro bono, which they did. They provided me with insight and so much knowledge. Richard and Selma showed me the example of a burned body that had been thrown in the water and how they were still able to find DNA. He showed me the case of a person who had died twenty-five years before, but from whom they were still able to recover DNA on a pair of underwear from touch, not blood or semen.

  He talked to me about the duct tape, and what it meant that there was no evidence of DNA on it.

  His conclusion was that the duct tape was never wrapped around Caylee’s face.

  The photographs of Caylee’s skull and the tape nearby backed up his conclusion. I found numerous photographs that showed the duct tape in a completely different position from ones in other photographs.

  I knew that if I presented this photographic evidence at the trial, it would be tricky, because I would have to show the jury photos of Caylee’s skull, and it was going to require a delicate type of examination to be effective. But the evidence was too important not to put before the jury.

  In addition I also had the evidence that Dr. Werner Spitz pointed out at our autopsy of Caylee’s remains, in which we found scientific proof that the skull had been moved from its original location. In other words, she didn’t decompose the way she was found. The decomposition residue inside her skull proved she had been lying on her side.

  The fact that I kept reading the 26,000 pages of discovery over and over again allowed me to find a needle in the haystack. I found an FBI email that gave us some disturbing news. The email said:

  From: MARTIN, ERIN P. (LD) (FBI)

  Sent: Friday, February 06, 2009 10:10 AM

  To: LOWE, KAREN K. (LD)(FBI); CARROLL, BRIAN J. (LD)(FBI); FONTAINE, ELIZABETH K. (LD)(FBI)

  Subject: Tape from Caylee case

  UNLCASSIFIED

  NON-RECORD

  Hello.

  Nick Savage called in and they have been getting requests for info about the tape from skull. The prosecutor would like to know if any of you had taken pistures (w/scale) of the tape as it was received to show the full length and width of tape pieces before they were separated. They are esp interested in the width info.

  They want to know if it would be possible for the tape as it was to cover both the mouth and nose areas - they would need the measurements/photos w/scale in order to do some computerized re-creation images of the skull w/tape. The ME’s office only took initial photos of tape on skull w/o scale and they didn’t measure it because they thought the full measurements would be done by us.

  By “scale,” they meant ruler measurements.

  The reason they wanted such pictures was to show that the tape was wide enough to cover
both Caylee’s nose and mouth and to suffocate her. What this email shows is that the prosecutor (most likely Ashton) is forming his theory of death by duct tape.

  There are two problems with this cause of death: first, this isn’t coming from the medical examiner’s office—it’s coming from the prosecution. A prosecutor does not get to make up a cause of death based on what he or she thinks may have happened.

  Second, this email was dated February 6, 2009, before the prosecution changed its position and decided to seek the death penalty. I would argue that the prosecution was also locked into using it in deciding whether to take another human being’s life. It was disgusting and reprehensible.

  After the trial I heard Ashton make the claim that it wasn’t his decision to seek the death penalty, and that he never felt there was a likelihood that Casey would get it. He claimed it was the decision of his boss, Lawson Lamar. Ashton was trying to give the impression that he didn’t support seeking the death penalty against Casey. I am here to tell you that nothing could be further from the truth. We tried multiple times to get the death penalty taken off the table, and the biggest opposition always came from Ashton, who was the “death penalty lawyer” on the prosecution team.

  The prosecution hired Dr. Michael Warren, a forensic anthropologist from the University of Florida, to get on the stand and show a video superimposition of a photograph of a smiling Casey and Caylee that would morph into a vision of a piece of duct tape covering Caylee’s nose and mouth with her little skull in the background.

  The medical examiner’s pictures lacked scale, so they invented evidence. It was disgusting. Judge Belvin Perry admitted it over our objections, even though it was ridiculously prejudicial and served only one purpose: to try to inflame the jury, to get the jurors angry so they could render their verdict with their emotions, not their brains. It’s an age-old prosecution technique, an attempt to get the jury to hate the defendant, ensuring that a conviction will follow—the evidence be damned.