Presumed Guilty

by Jose Baez

  I thought Cheney was going to have a heart attack. “This is the clearest case of witness tampering that I have ever seen,” he said. Cheney always would say, “These prosecutors always feel they have to have the advantage. They can’t play on a level playing field. Nothing makes them angrier than playing on a level playing field.”

  He was absolutely right, and I heard that expression constantly in this case because they would abuse the system time after time.

  How do you get away with that? I asked myself.

  When we told the judge what the prosecution had done, Perry said he’d reserve his ruling, but instead he put it on the back burner and never did rule, not even after the trial. Once again, Ashton was allowed to get away with—dare I say it—murder.

  With the trial coming up, I began to think of the strategy for our defense. I envisioned a five-prong attack on the state’s “evidence.”

  The first prong was what I called “good mother” defense. One of the strongest and biggest advantages we had was that, as much as the cops went through Casey’s life with a fine-toothed comb, speaking to anyone and everyone who knew her and Caylee, there wasn’t a soul who could give a single incident that Casey had been anything but a loving mother. To me this was huge because it bolstered Casey’s testimony that Caylee’s death was an accident and contradicted the prosecution’s theory that Casey had deliberately killed her daughter.

  I’ve said this before, but in cases of real child abuse that leads to death, you almost always see a progression of abuse. You see a bruise, a black eye, or a visit to the hospital with a broken arm. The child will be malnourished and often neglected. There are always numerous documented incidents as the abuse progresses, until the actual death of the child.

  That was never the case here. Caylee always was well taken care of and loved, and you could see it throughout her home. I can’t tell you how many people testified about what a wonderful mother Casey was.

  I really wanted to ram this home because it not only bolstered the accident theory but also counterbalanced all the outrageous behavior Casey was accused of exhibiting during the thirty days she was away from home after Caylee died.

  The second prong was going to be all about George and “Baldy.” We were going to go into the sexual abuse of his daughter and all the other things we discovered about George: his lies about the gas cans and the duct tape, his affair, his proclivity for making statements that pointed the finger at Casey, and his lies to law enforcement. I felt we had a very strong case against him.

  Ashton, after his underhanded trick to inform George and Cindy what Casey was going to say against him, was sure George would turn on her and be a star witness for the prosecution.

  But that didn’t entirely explain Ashton’s giddiness. Here’s one reason he was so giddy: because George was his witness, Ashton would take a larger role in the trial.

  The other reason he was giddy was that he was sure George was going to make a great witness. George had always been a media darling, and Ashton was sure that because George had experience as a law enforcement officer, he would come across well on the stand. But I knew George a lot better than Ashton did. I had spent nearly three years with the Anthonys in their home. I didn’t think George would come across as credible on the stand and I was sure I’d eat him for lunch.

  Ashton thought he was gaining a strong ally through his machinations, but he would be sadly mistaken come trial time.

  The third prong was the information about Suburban Drive. Caylee’s body had been discovered on August 11 and then found again on December 11. What’s important to know is that when her body was found on December 11, she was found only nineteen feet from the road. Her remains were not found deep in the woods, as it was often described. As far as I was concerned, nineteen feet was by the side of the road. I intended to explain that and show how many people had been in that area between August 11 and December 11, with no one finding her body. It was incredible how many people had searched that area in the months before she was discovered and had not found anything.

  My initial plan was to call thirty different people to the stand to testify that they had searched the area and that her body wasn’t there. But the problem was that by the time the trial came around, we faced tremendous obstacles from EquuSearch and such hostility from the media that the majority of the volunteers who worked for EquuSearch had no interest in helping us with our case. These were people who, inflamed by the media, expressed outrage at Casey’s behavior. The other problem was that anyone who became involved in the case became the subject of scrutiny and harassment from the media, which would go so far as to follow them to their homes. They were automatically thrust into the limelight, whether they wanted the attention or not. This made it even harder to find defense-friendly witnesses because no one wanted to be skewered in the press for helping us out.

  Even in the mitigation, which is part of the death penalty defense where you go back into the defendant’s life and try to humanize the person facing the death penalty, we faced terrible opposition. Our mitigation specialist had the door slammed in her face by Casey’s third-grade teacher! Casey was a child when they interacted, and all we wanted to know was what she was like back then. Some sicced their dogs on our legal team; others threatened them. It was a most hostile environment, anathema to a defendant getting a fair trial, and all because of this Frankenstein-like persona the media had built about Casey that turned the public into a lynch mob with pitchforks.

  I couldn’t believe how hostile these searchers were to the defense. The ones who weren’t hostile appeared to be fame seekers, and we weren’t looking for them either. Then came the attempted public destruction of Laura Buchanan whose arm was twisted to lie so the police could charge me with a crime. When she bravely refused, she was publicly castigated by the police and the press. The police made it known they were investigating her. Didn’t anyone find it strange the police were advertising their investigation? It was really nothing short of intimidation. Again, the prosecution was out to win its case, no matter what the tactic.

  Without witnesses to testify that they had searched the area before Caylee was found and had come up empty, we still had other convincing evidence to prove our point. Before entering the woods on Suburban Drive, there is six feet of grass; when I visited the scene, I noticed that the grass had been mowed. It occurred to me that someone had to have mowed it between August 11, the first time Roy Kronk reported seeing Caylee’s remains, and December 11, when he actually turned over the body.

  You mean to tell me, I said to myself, that for five months people came here and mowed the grass and no one saw or smelled a body that lay only nine feet away?

  My investigator tracked down the manager of the lawn service who had the contract from the county. The manager said that his company had on average ten workers cutting the grass in that area—a couple guys with weed trimmers, one with a blower, and a couple on lawn mowers—and would cut the grass twice a month. On ten different occasions these men were walking around the area where Caylee was found on December 11, and none of them had seen or smelled anything.

  Not only that but there was an elementary school across the street, and people in the neighborhood walked their children past the spot to the school every day. No one saw her body or bones?

  Pat McKenna, my investigator, went door to door canvassing the neighborhood, but because of what was reported in the media and because of the intense media spotlight, no one wanted to speak with us. No one wanted to get involved. No one wanted any part of the Casey Anthony circus.

  All we were left with was the measurement of how close she was to the street and the testimony of the grass cutters. We also knew of other searchers who had been out there and didn’t find her, but it was one of the weaker parts of our case. I really thought it would be stronger, but in this case we just couldn’t beat the influence of the media.

  Prong number four was Roy Kronk, who discovered Caylee’s remains, and the suspicious circumstances
surrounding when and why. I knew this information would be very interesting for the jury as we sought to cast reasonable doubt on the contention that Casey had put her daughter in the woods after killing her.

  The fifth prong was the science. We strongly felt that every piece of forensic evidence favored the defense. Of course it did. The prosecution’s case had been a fantasy of forensics, and because of that, there was not one shred of evidence to prove its woefully weak and fantastic charges.

  But that didn’t mean a not-guilty verdict was in the bag. Not by a long shot. The prosecutors had the power of the state behind them, and I could not imagine what sort of treacherous pitfalls they had in store for me during the trial.

  CHAPTER 22

  THE SIDES ARE DRAWN

  WHEN I FIRST SIGNED ON to represent Casey Anthony, I had no idea what I was getting into. It started as a case where I thought Casey was keeping her daughter away from her parents because they had had a spat of some sort, and it wasn’t long before the case went from a missing child case to a case of murder in which the prosecution was asking for the death penalty.

  I didn’t have to be a rocket scientist to see that to win an acquittal I would need help making a case for the defense.

  The first person I recruited was Linda Kenney Baden, the wife of the famed forensic pathologist Dr. Michael Baden. Linda was a lawyer, and she was nothing short of brilliant. Linda was in charge of the forensics, and she and I worked extremely well together. What made her so valuable to me was her willingness to teach me and work with me. She wasn’t one of those lawyers who did the work, turned it in, and went home. She was always willing to share with me what she was thinking and she wasn’t shy about letting me know the different ways I could improve as a lawyer.

  Linda was able to stay on for three wonderful years, but we ran out of money (flying her back and forth from New York to Orlando was expensive), and she could no longer afford to pay for the trips out of her own pocket. Though Casey was declared indigent, the court won’t pay for a lawyer’s legal fees or travel expenses. In fact, when the trial was moved to Clearwater, Florida to pick a jury, I had to pay for my own travel expenses.

  I really enjoyed working with Linda and I hope to again in the future. However, she introduced me to a lawyer from California by the name of Todd Macaluso. I liked Todd from the start and nicknamed him “Macko the Wacko” because of his great sense of humor and larger-than-life personality. Todd was a civil lawyer with a heavy interest in criminal law. He had a lot of experience dealing with expert witnesses and was a great help to me. Unfortunately, his brother had passed away a year earlier, and he barely spent time in his practice. As a result, his office bounced a trust check; he was suspended and had to withdraw from our case. I was really sad to see him go.

  The next lawyer to come on board was Andrea Lyon. I brought her on after the state changed its mind and filed to make this a death penalty case. Andrea had tried more than 120 homicide cases and was the nation’s leading death penalty lawyer. She was the first woman to try a death penalty case.

  I wanted a woman as my death penalty lawyer because this case was filled with women’s issues and I wanted someone who would be sensitive to them.

  I met Andrea in Orlando when she was speaking at a death penalty seminar and thought she was extremely engaging. I knew this was the person I wanted.

  Todd and I flew to Chicago and recruited Andrea. She was a beast of a lawyer—extremely well organized, thorough, and very aggressive.

  Andrea ran a death penalty clinic at DePaul University College of Law, so she was able to recruit dozens of law students to do a lot of our grunt work. She also had her own investigator and mitigation specialist. Andrea was a perfect addition to our team.

  Unfortunately, she ended up having the same problem as Linda. She was in charge of funding for her clinic, and our case didn’t bring in any money for her. When her clinic began suffering financially, she had to withdraw.

  After Andrea left, the lawyer who replaced her was Cheney Mason, a local Orlando legend.

  Cheney and I were so different. We were generations apart. I was young and Hispanic; he was older and white. I spoke with a Northeast accent; he spoke with a drawl. They used to call us “Chico and the man;” the bloggers would call us “the sleazer and the geezer.” And yet we saw eye to eye as to how a defense lawyer should conduct himself and how the case should be tried.

  Our lives had taken similar career paths. We both had dropped out of high school at a very young age. We both entered the military when we were seventeen. He went to Vietnam, came back, and went to school. I went to college under the GI Bill.

  Cheney was old school and had a wealth of experience, though one of the biggest reasons I respected Cheney was that he never once questioned my authority as lead counsel and never once overstepped his boundaries.

  What I loved most about Cheney was that he was totally committed to the cause. We worked so well together. Though he was well respected in the Orlando legal community, once he was named co-counsel in the case the media began disrespecting him, and some local lawyers would criticize his work. Cheney was a former president of the Florida Association of Criminal Defense Lawyers and had earned the Robert C. Heeney Memorial Award, the highest honor given by the National Association of Criminal Defense Lawyers.

  But again, this was not real life, it was the media’s Casey Anthony reality show, a show that depended on name-calling and controversy for television ratings. Everyone was fair game, including Cheney Mason.

  One day Cheney and I were driving back to Orlando from Gainesville after deposing witnesses, and I thanked him for all the work and time he had put into the case.

  “I really believe, while I’m not religious,” I said to him, “that God put you in my path to be here with me.”

  Cheney was my rock. After the departure of others who worked with me, Cheney would say, “Jose, come hell or high water, if it’s just you and me trying this case come May 2011, we’re going to do it. And what’s going to surprise a lot of people: you’re going to be able to answer the bell and come out swinging.”

  He could say that because he too could see how the case was developing. He started to see the gaping holes in the prosecution’s mostly madeup case. He believed in our case as much as I did and he was a reservoir of strength to me throughout the whole exhausting trial.

  The other great reservoir of strength came from Dorothy. I knew mental health issues would come up during the trial, and that was her specialty. A world-class lawyer, she knows the subject backward and forward.

  Dorothy is a throwback to the ’60s. Her children served in the Peace Corps. She has traveled the world and hasn’t owned a television set for twenty years. She heard about the case listening to the TV in a coffee shop.

  I had seen her at a death penalty seminar giving a lecture on performing background checks on expert witnesses and how to depose those witnesses. She was phenomenal and when she joined our team, we loved her instantly.

  She is the ultimate giver. Dorothy did a great deal behind the scenes helping me prepare and making sure we had all the information we wanted on the experts and on the jury. When it came to work, she was a machine, and equally important, she too totally believed in Casey’s innocence. Fifty years from now Dorothy and I will still be friends because she’s such a beautiful person.

  The final person to join our team was Ann Finnell, who took over as death penalty counsel after Andrea left the team. Ann was quiet, but had an enormous sense of humor. She also had a wealth of experience; there was not a female lawyer in the state of Florida that had more death penalty experience than she did. With a wealth of talent and experience, our team was complete.

  There were also three important people on my office staff whom no one knew of, no one talked about, people who never spoke in court except for perhaps a minor time or two. The first was Michelle Medina, my right-hand woman in the firm. From A to Z, you name it, she did it. She helped keep my practice afloat while
I was trying the Casey Anthony case, working hard at what sometimes seemed like an impossible task. She was our one-woman nerve center. No one outside of my own family has remained more loyal or hardworking than Michelle, and I will forever be in her debt.

  Michelle was truly the unsung hero of the case.

  Another was a recent law school graduate by the name of Lisabeth Fryer. She came on board in 2010, when she started interning through Cheney’s office. I used to call her “E-less,” because of the missing E in her name; she quickly became our legal guru. In her midthirties, she is an incredibly brilliant and bright woman. She had been on law review at Barry University Dwayne O. Andreas School of Law in Orlando, and she earned the highest score in the state of Florida on the bar exam.

  The first time she would speak in court as a lawyer would be during jury selection in the Casey Anthony case. She was ready. One day she will end up on the state appellate court; that’s how brilliant she is. I loved having her as a resource.

  The third was William Slabaugh, a law student when the case began. William was one of my students when I taught at the Florida A&M University College of Law. He interned for about a year and a half, volunteering his time and working for me while he was studying for the bar. After he passed the bar, I gave him a job, putting him in charge of the 26,000 pages of testimony and the exhibits.

  William was a hard worker and extremely committed to the case. Whenever I needed a transcript relating to the case, I called William, and he was always able to find it for me.

  We were in court on the day William learned that he had passed the bar, so we asked Judge Belvin Perry if he would swear Will into the Florida Bar. Perry said he would.

  I leaned over to Casey and said, “Judge Perry’s going to swear in Will.” Casey knew Will had been working on the case for two years and she was really happy for him. When I told her that, she looked over at him and smiled—as we all did—as he was getting sworn in.