Presumed Guilty

by Jose Baez

  Furton’s research concluded the opposite of what Vass concluded: there was no uniform signature for human decomposition.

  What was masterful about Furton’s work, as it related to our defense, was that all the chemicals that Vass found, as they related to the carpet samples from Casey’s car, were also found in garbage. Vass had concluded that the chemicals in the trunk proved that Caylee had been in there, but that wasn’t at all scientifically accurate. Rather, it was bullshit.

  The evidence showed, said Furton, that the chemicals in the trunk proved only that garbage had been in Casey’s car.

  So why was it so important for Vass to find that those chemicals meant that a body had been in the trunk? Because of the “signature of human decomposition” evidence, we redoubled our investigation. We investigated Vass and discovered that he was listed on a patent disclosure as an inventor for a machine (“The Labrador Patent”) that analyzed burial remains and decomposition odor. The machine looks like a metal detector and uses the database that Vass created in his studies to determine whether human decomposition is present. One thing we discovered was notable: he didn’t put the patent application on his CV, though other patents he applied for afterward were listed.

  Vass and his partner were going to sell this machine to police departments all over the country. But in order to sell his machine, he needed to have the results admissible in court. If they weren’t admissible, his machine was toast. So for the very first time in the United States, the database was admitted into evidence. I asked Vass if he had a financial interest in this case, to which he replied, “Not in my opinion.” So much for pure science.

  Vass had a financial motive for finding what he inevitably found. After the trial was over, I found a brochure that showed the estimated amount of revenue they could make by selling it to law enforcement in the U.S. market was $486 million. Did that influence him? I don’t know.

  We tried our best to preclude his “junk” science, but of course we were unsuccessful. We made a motion to exclude the “evidence,” arguing that to admit it would be a “miscarriage of justice.” The testing was done unreliably, we argued. We showed that the chemicals—common chemicals—were not from a decomposing body but from garbage.

  As much as we discredited it in front of the judge in what is called a Frye hearing, our motion to exclude it from coming before a jury was denied. I thought we were most persuasive, but the judge let it in anyway.

  He let everything in, but it didn’t matter. We had the science on our side.

  CHAPTER 17

  THE PROSECUTION’S FANTASY OF FORENSICS

  WE WEREN’T SURE when we were going to get Caylee’s remains. Finally, the prosecution released her body to us on December 23, 2008, a full twelve days after Caylee’s body was found. I called Dr. Werner Spitz, our pathologist, and told him apologetically, “We have the body now. I am so sorry to ask this of you, because I know tomorrow’s Christmas Eve, but can you come down tonight?”

  He laughed.

  “Jose, are you stupid?” he said. “I’m Jewish. It’s not a problem.”

  The medical examiner’s office apparently tipped off the media as to which funeral home Caylee’s body was being sent, so when I arrived there was a pack of media trucks parked outside. Spitz hadn’t arrived as yet, so we decided we would wait until after the eleven o’clock news, knowing they’d pack up and go home after the news was over.

  Spitz didn’t arrive until close to 1:00 A.M. on December 24. We walked into the funeral home and saw a big silver box sitting on a table. Caylee’s remains came in the silver box; it looked like a Christmas present.

  Her skull was wrapped in paper inside the silver box.

  “The skull has not been opened,” said Spitz. “It doesn’t make any sense. How could the medical examiner not open the head?”

  Opening the skull is standard protocol in any autopsy of skeletal remains. Examiners open the skull to get the best possible view of what’s going on inside. Spitz went on and on about the skull not being opened.

  Spitz had assumed that Dr. Jan Garavaglia, the medical examiner, would follow standard protocol and open the skull, so he did not bring a saw.

  “Do you have a saw?” Spitz asked the funeral director. “I need a saw. Any saw.”

  The director returned with a rusty old saw.

  Spitz sawed and sawed, and after about a half an hour, he gave up.

  “This saw doesn’t cut,” he said.

  “We’re going to have to buy a saw,” I said. The only store open at three in the morning was Walmart.

  “Come on, Pat,” I said to our investigator, Pat McKenna.

  When we entered the Walmart, the place was virtually empty. There were only a handful of employees. This was perfect. I figured we’d be able to get in and out quickly without anyone noticing us. (Media interest in the case grew exponentially after Caylee’s body was found.)

  McKenna and I split up in our search for a saw, and just as I began my search, a bus from a home for the mentally challenged dropped off its passengers so they could shop with the least amount of hassle. I’m looking for the saw, and one of the ladies from the bus (she had Down’s syndrome) saw me and began shouting, “Baez, Baez, Baez.” She followed me throughout the store, pointing at me and yelling, “Baez, Baez, Baez.”

  McKenna found a saw, and I yelled to him, “Let’s get out of here.” We trotted to the checkout counter and noticed the tabloid magazines, each featuring a horrible story about Casey. One story trumpeted, “Casey Anthony’s Drunken Party.” Another proclaimed, “Secrets and Lies,” and yet a third featured a story headlined, “Caylee’s Mom Did It: She Fed Tragic Tot to Alligators.” I was looking at all these headlines, while waiting to pay $4.99 for a saw to cut open Caylee’s skull, when the woman with Down’s syndrome found me and again began yelling, “Baez, Baez, Baez.”

  It was surreal. I couldn’t believe why I was there and what was happening. We paid and hurried out the door.

  We returned to the funeral home, and Spitz went through the bones, looking for trauma. Spitz sawed Caylee’s skull in two in a matter of minutes, and we found something we hadn’t expected: there was decomposition residue on the top left-hand side of her skull.

  “This is evidence she was laying on her left side,” said Spitz.

  We hadn’t yet received the photos from the crime scene. When we got them, they showed that the skull was upright, not lying on its left side. Caylee had been moved. This ended up being an important piece of evidence that helped us win the case.

  Opening the skull gave us another extremely important piece of evidence. The prosecution was contending that Casey had killed Caylee by using chloroform and putting duct tape over her mouth—basically suffocating her. If a person dies of suffocation, many times there is bleeding behind the back of the ears because blood vessels pop; there can also be some discoloration behind the area of the ears. But you can’t know this unless you open the skull. The prosecution’s theory was that Caylee suffocated, but the medical examiner’s office never took the necessary steps to confirm that. Spitz found no evidence of discoloration. There was zero evidence that Caylee had been suffocated.

  I suspect the reason the prosecutors didn’t check was they were too busy looking for chloroform and other drugs like Xanax to back up their other theory that Casey drugged Caylee before killing her. We were sure that the prosecution’s case was made up of whole cloth. Additionally, all toxicology results were negative for chloroform and all drugs. Now we had the evidence to prove the incompetence of the autopsy performed by the prosecution and the evidence to show that Caylee didn’t die of suffocation by duct tape, the way it said she did.

  That was huge for us. Dr. Garavaglia was later featured in a documentary on the case and tried to explain away some of the criticisms directed at the autopsy. As far as I was concerned, she never answered them. Spitz called Dr. Garavaglia’s autopsy shoddy, and that’s exactly what it was. Michael Baden would always tell me, “If you’r
e sloppy in low-profile cases, you’re going to be sloppy in high-profile cases.” I was beginning to see just how right he was.

  The next piece of evidence trumpeted by the prosecution was the remnants of a heart-shaped sticker supposedly found on the duct tape. According to the police, after duct-taping Caylee’s mouth to suffocate her, Casey put a heart-shaped sticker over her mouth as a sign of affection. Can you even picture something that ridiculous? As I’ve been saying, the prosecution all along treated this case like a reality show and it was the one writing the script.

  The police then searched the Anthony home for more heart-shaped stickers, and wouldn’t you know it, they found some, along with stickers of Mickey Mouse, Pluto, stars, and bears—stickers you would typically find in any two-year-old’s home. Police also found a heart-shaped sticker attached to a piece of cardboard in the wooded area off Suburban Drive.

  In order to search the home, Detective Yuri Melich issued a sworn affidavit when applying for a search warrant to the Anthony home. Melich swore under oath, “While processing the duct tape at the FBI lab in Quantico, the latent print unit noticed residue in the perfect shape of a heart. The heart was not hand drawn and residue appeared to be consistent with the adhesive side of a heart-shaped sticker. It appears that the sticker was put on the duct tape intentionally.” But that wasn’t what Elizabeth Fontaine of the FBI laboratory in Quantico testified to in her deposition.

  Question to Fontaine: “Did you ever communicate to anyone, quote, ‘It appears that the sticker was put on the duct tape intentionally?’”

  Answer: “Never.”

  She was next asked: “Why were you so firm when you said that?”

  Answer: “I could never say that it was a heart-shaped sticker to begin with.”

  She would later say, “I could never and would never jump to the conclusion that something was placed intentionally or that it even was what I thought it was.”

  Fontaine said that she saw “something” in the shape of a heart but she continued processing the tape. No fingerprints were found on the tape, and then when she went back to look for the heart, it was gone. It had disappeared.

  We called this the “phantom heart-shaped sticker.”

  What they did then was give the duct tape to another examiner in the document section, who used several devices to do her testing, including one that looks at paper with different light reflections to allow it to pick up the minutest impressions. She found no sticker fragments. She found nothing in the shape of a heart on the duct tape.

  Nevertheless, the prosecution went with its theory anyway, also discussing the sticker found attached to the cardboard thirty feet from the skull. In that part of the woods, there were all kinds of things—tires, a toilet seat, trash, pens, paper, etc. It was across the street from an elementary school, which was probably where the sticker came from. And to make matters worse, the sticker they found on the cardboard looked nothing like the stickers they said they recovered from Caylee’s home. In fact, they weren’t even close.

  But the prosecution, desperate and out of real evidence, tried to feed the story of the phantom heart-shaped sticker to the jury anyway, contributing to what we called, “the fantasy of forensics.”

  CHAPTER 18

  SLINGS AND ARROWS

  THIS CASE INTRUDED ON MY LIFE in so many unpleasant ways. I went home early on December 24, 2008. It was Christmas Eve, normally a most festive evening, especially in the Hispanic community.

  That evening Lorena and I had a get-together at our home. We invited family and friends, but I wasn’t much in the mood to party. That day the defense had conducted Caylee’s autopsy, and my thoughts were wrapped up in the case. While everyone else celebrated, I was on the phone talking strategy with Linda Baden.

  Linda and I discussed our need for a botanist, because we figured forensic botany would play a role in the case. Caylee was found in the woods, and there might be possible evidence of soil or weed growth. It’s a specialized field, and neither Linda nor I knew anyone, but she said she’d make some phone calls. Meanwhile, Lorena was getting more and more upset because I was on the phone talking business when she wanted me spending the Christmas holiday with my family.

  That night our home was filled with tension. Everyone struggles to balance work and family, but it’s even harder when the whole world’s watching and criticizing your every move. I lost focus for a long time.

  About a month later Lorena and I had dinner at a Mexican restaurant, and by the time I got home, I wasn’t feeling well. I was up all night vomiting, and my stomach hurt so much that we got in the car and went to the hospital.

  The staff treated me with kid gloves. They put me in the Intensive Care Unit to make sure no one would notice me. The doctor was concerned the pressure of the case was getting to me, but after running some tests, the doctor came in and said, “This is just a case of some bad Mexican food.”

  My visit to the hospital made it into the media the next day. I was fine by the morning and even flew to Colorado for a forensic meeting, but every TV news program that morning reported that the stress had gotten to me, and that I had had a heart attack. I will never forget sitting in the airport that night, watching as Nancy Grace did a news report about my stress-related hospital visit. She followed that with a video of George Parnham, the lawyer representing Clara Harris, a Texas woman who was accused of driving over her husband twice in her Mercedes and killing him. The video showed Parnham, who had actually had a heart attack, being taken by stretcher into an ambulance.

  I thought to myself, She’s comparing this guy to me? Is she nuts?

  But even Nancy Grace couldn’t have anticipated the stress that I would be feeling a short time later.

  I got a call from Dominic Casey, to whom I hadn’t spoken in months, and he told me, “The police want to talk to me.” I explained to him that his information, whatever it was, was privileged. They wanted to talk to him about what he and Jim Hoover were doing in the woods off Suburban Drive a month before Caylee was discovered.

  “It’s as if you’re a lawyer,” I said. “You should not be talking to the police, especially about the time you were working for me. And if you do talk to them, I want to be present.”

  Of course, Dominic did whatever Dominic felt like doing. I had zero control over him, and he went and spoke to the police anyway. I filed a motion to prevent it, but I filed it too late. So he went in and talked to them and was represented by Brad Conway, the Anthonys’ pro bono lawyer. During the conversation the police asked him, “If you had found the body, did anyone ever tell you to do anything other than call 9-1-1?” The tape was paused before he answered, and after the tape was turned on again, he said, “Yes, Jose Baez told me if I found Caylee, call me first, not 9-1-1.”

  There are major problems with that. The first is that every time we spoke, it was about finding Caylee alive. And secondly, it was a complete and total lie; we never discussed anything of the sort. Dominic had a way with stories.

  But even if it were true, it still wasn’t unethical. Say I represent a client, and the client says to me, “I killed somebody and I put the body in the woods.” I don’t know whether that’s true or not and I would not be able to negotiate his surrender to the police, or even his cooperation, until I verified he actually did what he said he did.

  If I said to him, “Go over and check the body. Don’t touch anything. And let me know,” there would be nothing at all unethical about that.

  But on the basis of this allegation by Dominic, Judge Stan Strickland, who certainly seemed to have it in for me, filed a bar complaint against me, accusing me of obstruction of justice and charging me with not just an unethical act but one that was criminal.

  That was bad enough, but what disturbed me more was that he never had the decency to call me aside to ask me about it. He would have gotten a better picture if he had taken me aside and said to me, “I have these concerns. What do you have to say for yourself?” He didn’t call me in and tell me, “I
feel obligated to do this, and this is why I’m doing it.”

  No, I had to find out about the bar complaint from my lawyer, who was told about it. And the Florida Bar didn’t tell him the nature of the complaint, so all I could do was imagine the worst. Remember, I was the guy who was denied admission to the bar for eight years. I was the guy they deemed not to have enough character to join the bar.

  For two weeks this bar complaint hung over my head without my knowing the basis for the complaint. And I will never, ever forgive Strickland for that.

  The day I learned of Strickland’s action, I was scared shitless. I didn’t know what to do. I drove home, walked into our bedroom, and took refuge in the walk-in closet where I kept my clothes. I took off my suit, sat down, and was suddenly overcome with a terrible feeling of doom. After all my success, after all the work I had put into the Casey Anthony case, all of it was going to come undone—I was going to be disbarred and disgraced in front of the world.

  I fell into a deep, deep depression. I didn’t want to talk to anyone. Lorena would say to me, “What’s wrong?” But I didn’t want to talk about it. I shut down. I couldn’t sleep, and my stomach would often be in knots. I walked around like a zombie because I knew the cops were investigating me, and I knew the judge filed the complaint. I thought to myself, I’m not a big shot. People get wrongfully accused of things all the time. How are they going to give you a pass?

  The depression grabbed me by the gut, and I walked around in a fog for the two weeks I waited to find out what I was accused of. I did my job working on the case, but I derived little joy from my work.