Presumed Guilty

by Jose Baez

  We thought we had finally caught a break. We had important motions coming up, motions Strickland was sure to shoot down. We were optimistic that Perry wouldn’t hold the same strong prejudices against us that Strickland had held.

  We were also more confident about Perry’s expertise in criminal law; Strickland had mostly been in workman’s compensation during his career, and we wanted someone more sophisticated and more fair.

  Initially, I really liked Perry. My first interactions with him were extremely positive. When we had our first sidebar, I felt relaxed. He was very pleasant, and I sensed he was going to listen to both arguments and make his decision based on the law, despite what everyone in the media was saying about him.

  Hard-nosed, no-nonsense is what the press said. Some local lawyers were calling my move to recuse Strickland a “huge mistake.” One said it was “the dumbest move Jose Baez ever made.”

  Just before Perry came on board, we made a motion to declare Casey indigent. It was necessary because we could no longer pay for the experts we needed to defend her, and if she were declared indigent, then the expenses would be borne by the state. Our motion was granted by Strickland, and we were gratified when Perry gave us most of what we were asking for.

  Going into the trial, I felt relieved. Finally, I thought, I have a shot at a fair trial. Wow, we’re finally on a level playing field. We’re going to be able to make things interesting.

  I was about to find out I couldn’t have been more wrong.

  As time went by, the media kept portraying Perry as a no-nonsense judge, saying he wasn’t going to put up with Jose Baez’s crap. The media was setting the stage as it waited for me to do something that would incur Perry’s wrath. I don’t really know whether that had anything to do with the way he would treat me, but I felt it was certainly a strong possibility.

  In hindsight, I should have left well enough alone. We were hoping the new judge would be a breath of fresh air, but at the end of the day, the verdict would have been the same. It’s just that I would have been spared a lot of humiliation and distress.

  There had been a lot of criticism that the case was taking a long time to get to trial. The critics, however, don’t know the first thing about murder trials. On average it takes two to three years for a murder case to go to trial. If it’s a death penalty case, it’s closer to three years, and can be even longer, depending on the circumstances.

  As hard as I was working, I still wasn’t able to accomplish all that needed to be accomplished. There were depositions of my experts I had to take. I had to depose law enforcement. The prosecution kept piling on more and more discovery, knowing I was short-handed. There were depositions relating to forensics, and we had a slew of pretrial motions we had to prepare.

  When Strickland was presiding over the case, the prosecution had suggested that he set a deadline for taking depositions and filing motions. Based on those suggestions, Strickland set a trial date of May 9, 2011. It was more than a year away.

  When Perry took over and announced he would enforce the deadlines, trial preparation jumped from first to fifth gear. If I had been under pressure before, now I was under the gun to do the impossible.

  The average complicated case has about a thousand pages of discovery. This case had 26,000 pages! It had more than three hundred hours of audio and video. Given the limited resources we had, I didn’t think there was any way this case could have gone to trial in three years. It did, but I was working seven days a week, fourteen hours a day to prepare for it.

  It’s a lot harder to defend a case than to prosecute one. The work is much more intensive. At times I would get so frustrated, I wanted to pull my hair out. If I have any regrets, it’s that I didn’t come forward and tell the court I was being ineffective because we were pushing so hard and moving so quickly.

  For Perry to push us that hard was borderline sacrificing Casey’s right to a fair trial and competent counsel.

  The other problem I had was that the prosecution knew I was short-handed, that my financial resources were severely limited, and prosecutor Jeff Ashton, an admitted street fighter, did everything he could to make my job as difficult as possible. One thing we had to do was go through the prosecution’s witness list and take depositions. Ordinarily the list is broken into A witnesses (the important ones), B witnesses (less important), and C witnesses (those who probably won’t be called). But the prosecution had a policy where it rated every single one of its witnesses as an A. The prosecutors refused to tell me which ones weren’t going to be called, increasing my workload considerably.

  I regret not going before Perry and telling him, “Listen, I’m being ineffective because I’m working seven days a week, fourteen hours a day, and I just can’t do it anymore.” I know he would have taken control of my calendar, asking me who I was interviewing and what I was doing.

  But I have an ego and didn’t want to look bad. I didn’t want to be honest, and looking back, I’m ashamed of myself for it. I didn’t stand up and say, “I’m being borderline ineffective here. I’m cutting corners, and it shouldn’t be that way.”

  THEN ISSUES dealing with discovery arose. The whole no-nonsense judge theme carried out by the media gave Ashton, the prosecutor in charge of the forensic evidence, an opening. It created an advantage for him that was really sneaky, but brilliant. He kept filing motions claiming we weren’t living up to our obligations in discovery. In essence, he wanted Perry to think that we weren’t following his orders. He filed a motion asking the judge to make us give him a list of each expert, the expert’s field, and what opinions he or she was going to render at trial.

  It seemed reasonable on its face, but in Florida we take depositions, which provides for a lawyer to put a witness under oath with a court reporter and ask the witness questions before trial. Using depositions, a lawyer can prepare for trial with no surprises. If the witness testifies differently at trial, the lawyer can impeach him with the testimony from the deposition transcripts. It’s a great tool and prevents a trial by ambush.

  If the prosecution wanted to know what my experts were going to testify to, all Ashton had to do was take their depositions.

  Instead, Ashton cleverly made a motion asking that we provide him with an outline of what my experts were going to testify to ostensibly so he could prepare for their depositions.

  And Perry made my life immeasurably harder by granting that, just as he would grant almost all of the prosecution’s motions.

  Understand, this isn’t ordinarily what happens. In a common criminal case, you take the deposition, file your motions, and have your hearings—end of story. What Perry did by issuing that order was to create new rules of procedure for the Casey Anthony case.

  It all added to our already overwhelming workload. I was drowning in an avalanche of work. Now I had to sit down with our experts and come up with an outline explaining who they were, what their fields were, and what they were going to testify to.

  I thought it was a ridiculous request, but I did it anyway because I was ordered to and had no choice. The information I provided was very general; I certainly wasn’t going to do Ashton’s work for him.

  After I handed in the information, Ashton filed a motion saying it wasn’t good enough, that I hadn’t explained enough. Perry issued another order, granting his motion to make me explain even more.

  Here’s what Ashton wanted from me: Tell us the questions you’re going to ask them and tell us what they’re going to say.

  I said to Cheney, “Help me out here. I’m not going to give Ashton our entire direct examination,” which was essentially what he wanted.

  Unlike a movie, a trial is not a scripted event, and I wasn’t about to hand over a script to him when I didn’t know what may or may not happen in the trial.

  Cheney and I took one more crack at giving Ashton what he wanted. I emailed it to Cheney and said, “Look it over and let me know if it’s okay, because this is what I’m going to send them.”

  “Have you eve
r run into something like this?” I asked him.

  “I’ve been trying murder trials for forty years,” said Cheney, “and I’ve never heard of such a thing.”

  I sent it to the prosecution. It was much more detailed. And of course it still wasn’t good enough for Ashton, so he filed a motion to hold me in contempt.

  By now I was so angry I couldn’t see straight. I knew Perry was probably at his wit’s end, but I knew that, rather than order the state to take the experts’ depositions, he was going to order me to do something more, fine me, or hold me in contempt. I thought if Cheney handled the motion, arguing with his experience that this motion was a first for any defense lawyer, that Perry might understand the unreasonableness or the laziness of Ashton’s request.

  It didn’t matter. Perry fined me $600 for the hours it took Ashton to file the motion and ordered me to produce something even more detailed. And then Perry went further.

  He said, “I order that all your experts file reports. And I’m going to order them to be handed in within a certain period of time. And any opinions not in the report or deposition will not be testified to in trial.”

  Essentially, by doing that he was narrowing the defense.

  I was livid, of course.

  I went back and wrote it up again, adding very little, because there wasn’t much left for me to write. It wasn’t all that much more than what we gave the prosecution in the first place. And this time it was acceptable to Ashton, which led me to believe this was all gamesmanship on his part.

  I still had to go back to each of my experts and ask them for reports, even though ordinarily this isn’t something they’re obligated to do. Now I had to ask these people, the top people in their field working for minimum wage, to submit reports under a hard deadline. It was difficult, but we had to do it, and we did, on top of all the other things we already had to do. Perry was putting my feet to the fire to get in these reports.

  What Ashton was doing on his part was very clever. I had to give him that. He knew he held a winning hand and he kept playing it. He knew if he kept it up, Perry would get angrier and angrier with me. The judge would think I was thumbing my nose at the court, not paying attention to his orders, when nothing could have been further from the truth. I was working around the clock trying to get it all done and I was overloaded with work.

  Then Ashton did something that can only be characterized as sneaky, underhanded, and calculated. Since my experts had hard deadlines to get their reports in, they were not as long and detailed as they could have been. I had told them all that I really just needed to get the broad strokes of what their opinions were.

  “The state can go into further detail with you during your depositions,” I said.

  But Ashton intentionally didn’t take depositions of a lot of my experts that produced reports. I believe he did this so he could hold the judge to his order that stated, “If it’s not in the deposition and it’s not in the report, they aren’t testifying to it.” Throughout the trial, he kept bringing up the fact that we were in violation of his order because there were no depositions, even though it was Ashton who had failed to take their depositions, not me. I had taken the depositions of every single one of the state’s experts.

  Many judges never would have put up with that. They would have said to Ashton, “You’re asking me to make the defense do all of your work. I’m holding you in contempt for wasting this court’s time and for being lazy and underhanded.”

  But that lifeline never came. Ashton would keep pushing that envelope until he pushed me nearly to my breaking point.

  CHAPTER 21

  PREPARING FOR TRIAL

  THROUGHOUT THIS CASE I always felt the obligation to do what I could to remove Casey from the shadow of the death penalty. I never felt this was a death penalty case, even before I heard the truth about what really happened to Caylee. Having to go to trial with your client’s life on the line is a huge and awesome responsibility, so I constantly focused on the goal of getting the death penalty removed. It was a big concern, to say the least.

  Around the time I was considering calling the two shrinks who examined Casey to the stand, or at least listing them as witnesses, I came up with an idea that I thought might get Casey out from under the death penalty shadow.

  I knew if we listed the psychiatrists as witnesses that the prosecution was going to take its depositions and ultimately know what our defense was going to be anyway. So I offered Linda Drane Burdick a deal: if she would consider taking the death penalty off the table, I would let her know in advance our defense strategy, and she could hear it from Casey herself.

  Another reason to make the offer was that if the prosecution agreed, then there wasn’t going to be a death-qualified jury. A death-qualified jury is generally more conviction-prone because if she were found guilty, they would be able to proscribe the death penalty.

  The prosecution had no clue what our defense was going to be and was desperate to hear it. This was the perfect opportunity for it to find out. The deal made sense. We’d get something, and the prosecution would get something. At first Burdick seemed eager to do it, but she faced strong opposition from Jeff Ashton. As I said earlier, Ashton strongly opposed taking the death penalty off the table. The reason for it, I’m convinced, was that he was in charge of the death penalty part of the case. If the death penalty were taken off the table, he would have had a much smaller role in the trial.

  So at the end of two weeks of negotiations, the prosecution came back to me and said, “We won’t take the death penalty off the table, but if you tell us what your strategy is, we’ll consider it.”

  Ashton was asking me to trust him, and even though he thought otherwise, I wasn’t that naive or stupid.

  We said thanks but no thanks.

  AS WE STARTED ACCUMULATING all the evidence that backed Casey’s version of events, there was a real possibility that we were going to have Casey testify at trial. We knew she would still take it on the chin for her numerous lies and we knew putting a client on the stand is always a risky move. And even though we were constantly looking for ways to admit evidence about her in without having to call her to the stand, I also knew we’d call her if we had to.

  As I noted earlier, one way to get the information about Casey’s abuse into the record was to put the psychiatrists on the stand and let them testify. We had to submit reports from each of our experts. However, we were concerned that one shrink’s report might not be submitted in time because we added him to the witness list later than the others.

  We had a closed-door meeting with Perry. I was in chambers with Ashton and Ann Finnell, my death penalty expert. This was a last-minute meeting; Burdick, Frank George, and Cheney Mason had already gone home for the day, so we called Ashton in to discuss the issue in front of Perry.

  Ann told the judge the report of one of the psychiatrists might be a couple of days late. She said she didn’t want there to be any misunderstandings.

  “Not a problem,” said the judge.

  And then Ashton asked, “So what is the doctor going to testify to?”

  Ann didn’t say anything for a few seconds.

  Ashton said, “Just tell us. We’re going to find out tomorrow anyway when we take his deposition.”

  “She’s going to testify that the child died by accident, and her father covered it up,” Ann said.

  That was the first time the state had learned what our defense was going to be. And I’ll never forget Ashton’s bizarre reaction: he started to jump up and down in his seat like a little child. He burst out laughing, sounding like a hyena, and kept on jumping up and down in his chair as he laughed. We were talking about the death of a child here.

  Ann and I looked at each other, and we looked at Perry, who had a deadly serious expression, and then the three of us looked directly at Ashton as he engaged in his celebration dance in his chair.

  “Is that all?” asked Perry after Ashton finally calmed down.

  “Yes, that’s everything
,” we said, as we watched Ashton run out the door to pass on the exciting news to Burdick.

  I turned to Ann and I said, “So what do you make of that reaction?”

  “I think he’s mentally disturbed,” she said. “And I mean that in all seriousness.”

  AFTER THE PROSECUTION took the depositions of the two psychiatrists, both sides agreed they should be sealed because they contained medical information as it related to Casey’s mental health, and because there were issues of sexual abuse by George and Lee, which was protected under state law. Perry immediately sealed them, saying that he wanted to review them before deciding whether they should remain sealed.

  A couple of days later Cindy called me to say she and George had an appointment the next day at the state attorney general’s office to discuss the depositions of the shrinks.

  I lost it. I smelled the skullduggery of Ashton and immediately contacted Perry, telling him that the state was planning to meet with the Anthonys to discuss the information that he had sealed.

  Perry had a clear response: “Sealed means sealed.” Despite this clear message from the judge, the prosecution went ahead and had its meeting anyway. That was the arrogance of Ashton, whose attitude was, “I can do anything I want because I can get away with it.”

  And get away with it he did.

  To me the prosecution’s actions should have subjected it to a contempt citation. The prosecution argued that it didn’t show the Anthonys the depositions, but rather told the Anthonys’ lawyer the information from the notes prosecutors took during the depositions. The clear purpose was for the lawyer to pass the information to the Anthonys, which he did. The benefit to the prosecution by making sure the Anthonys found out what was in the shrinks’ depositions, of course, was that when the Anthonys found out that Casey was revealing George’s sexual abuse, they would turn on Casey, no longer support her, and became state-friendly witnesses.