by Jose Baez
“Casey should have done the right thing,” I said, “and that’s what she’s guilty of.” We always wanted to acknowledge Casey’s bad behavior. I never felt we should shy away from it. Instead I wanted her to own it, to fall on the sword and give them nowhere to go with it. That way we could focus on the big question of murder.
I KNEW THAT THE KEY to winning the case was one key question: how can you call it a murder if the prosecution doesn’t know the cause of death?
I knew that because a couple months before jury selection, I got a call from CBS’s 48 Hours Mystery. They said they were curious about whether Casey could get a fair trial, so I suggested that they do a focus group to determine what people were thinking and how they were analyzing the evidence. We selected Orlando because we wanted to get the most tainted jury pool possible.
48 Hours Mystery hired a dozen “jurors,” a good cross section of the community, and they had them fill out juror questionnaires, just like a real jury would. Our trial consultant, Richard Gabriel, spent an entire day with them, discussing only the prosecution’s case. They talked about air samples, the cadaver dogs, the duct tape, and Casey’s behavior after Caylee disappeared, and while they were talking, I was able to sit behind a two-way mirror and watch and listen to them interact.
I was fascinated. I learned they really didn’t believe the air sample bullshit the prosecution was trying to sell. They also put very little weight on the cadaver dogs. Also, they had real problems with the fact there was no DNA on the duct tape.
What they did put significant weight on were the computer searches, and from that, I knew those computer searches would be critical, and that I would have to take great pains to explain why Casey was looking for chloroform.
The biggest problem with the prosecution’s evidence, I learned, was that these people could not understand how this could be a murder if the prosecution didn’t know the cause of Caylee’s death.
“How can you say it was murder if you don’t know how she died?” said a forty-nine-year-old woman in the focus group.
And that was huge. Most of them said they figured it was some kind of accident.
None of them liked Casey. They didn’t like her at all. But in the end they just couldn’t envision her committing murder just so she could go out and party. None of it made any sense to them.
And when they took the vote on first-degree murder, Troy Roberts, the correspondent for 48 Hours Mystery, asked everyone to stand up who would acquit her. Ten stood to acquit. And that turned out to be the exact same number for the first vote of the real jury.
The focus group was very helpful. I had such an accurate preview from the community that hated her the most. I also learned they didn’t like the media coverage.
But from that focus group, I learned there was one key question that the jury needed the prosecution to answer: “How did Caylee die?” Our entire defense was built around that question.
I REITERATED THAT this was not a murder case and not a manslaughter case. I could just as easily have said, “This was not a murder case,” and left it at that, but the lesser offense of manslaughter carries a significant penalty, and you don’t want to ignore it. I learned that lesson in the Nilton Diaz case, where Nilton ended up getting hit with a manslaughter charge. I didn’t want that to happen again.
I told the jury, “This is a sad tragic accident that snowballed out of control.” I used the confession that George had made to his lover, Krystal Holloway.
I asked the jury why George hadn’t called 9-1-1. My answer: because the police never investigated him at all, we will never know. I went on to ask why, after Cindy Anthony told the police that the ladder to the pool was still up, they completely ignored her. Why were no questions asked? Why was there no information gathered? Why were there no forensics?
I knew the answer.
“Because they had murder on their minds,” I said. “An accident wasn’t sexy enough for them. There was this bizarre girl lying to them, telling them outrageous stories, and the media was eating it up, and so they continued to pursue their murder theory.”
I told the jury what I felt lay at the heart of this whole case.
“They were more concerned about the public than they were in doing their jobs,” I said.
I TALKED A LITTLE about George, and his gas cans, and the duct tape and how the same duct tape was found where George was handing out flyers. I told the jury that Casey had been in jail when the duct tape was found.
I said, “Follow the duct tape, and it will point you to who put Caylee’s remains where they ultimately ended up. Or maybe not.” But I made it clear that though the prosecution’s contention was that Casey was the only one who had access to that duct tape, it was a contention that wasn’t true at all. If anyone had access to the duct tape, it was George.
My conclusion to the jury was, “The only physical evidence that you will find in this case that connects Caylee’s remains to anyone at the home is this duct tape.”
I then told the jurors about George’s affair with Holloway.
“He has denied, and he will deny on this stand, that he ever had a relationship with her,” I said, “but he couldn’t get around the guard at the gate where she lives. Because that woman saw him coming and going many times at her home. And Krystal Holloway will tell you they had a conversation, and George began to break down and cry, and she asked him, ‘What happened to Caylee?’ And he said, ‘It was an accident that snowballed out of control.’”
I said, “This was before Caylee was ever found. This was while he was passing out flyers asking for donations to help find his missing granddaughter.”
Then I told the jury about George’s attempted suicide on January 22, 2009.
I said we had no intention of accusing George of murder, or that he had anything to do with Caylee’s death.
“It was an accident that snowballed out of control,” I reiterated. “This is not a murder case. This is not a manslaughter case. This is a tragic accident that happened to some very disturbed people.”
Before I wrapped up, I turned to the story of Roy Kronk. I told the jury I wasn’t accusing Kronk of murder either. But I did say Kronk used Caylee’s remains as a meal ticket. I used my tape measure to show how close to the road she had been left. I asked why none of the EquuSearch people had found her. I talked of the thousands of people who had searched for her and came up empty.
I recounted how Kronk had found her on August 11 and then again on December 11. I recounted the confusion.
At the very end of my opening, I drew a big V on the board, and I said to the jurors, “At the end of the day, when you go back home, after this case is over and you go back to Clearwater and you’re sitting around your dining room table, and someone asks you, ‘Why did you find Casey Anthony not guilty?’ you’re going to say, ‘Because they couldn’t tell me what happened to Caylee. They couldn’t tell me how she died.’”
And again, I repeated, “It’s not a murder case, not a manslaughter case, and definitely there was no child abuse.” Which was true. And not to give it all away, after the trial was over, all the jurors said the same thing, “We found her not guilty because they couldn’t tell us how she died.”
In my opening statement, I was challenging the prosecution to do something I knew it couldn’t do. I challenged the prosecutors to tell us how she died, and they couldn’t do it. The jurors looked to the prosecution for answers, and it never delivered.
Then I drew an A and a line to Z, and I said, “A prosecutor is supposed to give you their case from A to Z to prove their case beyond a reasonable doubt. If they don’t know what happened to her” and I put a big question mark in the middle, “that’s a huge gap, and if A is George Anthony being the last person to see Caylee alive, you’re going to have doubt, and if Z is Roy Kronk, who found Caylee Anthony, you’re going to have even more doubt.”
“So what are you left with? Nothing.”
And that’s how I concluded my opening statement.
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I sat down, and when I came back to the table, my team was very complimentary. I can remember leaving the courtroom to go to one of our offices and walking past a reporter from People magazine.
He looked around to make sure no one was listening, and he leaned over to me and said, “Jose, that was fucking brilliant.” And in the hallway I could hear the buzz, because I had revealed evidence that had never been revealed before. Everyone was describing my opening as “turning the case upside down.” But I knew this was no easy task. I was facing a prosecutor desperate for a conviction, a judge who hated my guts, and a disbelieving media. I didn’t for a second think that things would get easier. To the contrary, I knew that I was going to have to scratch and claw my way through this trial; but I had no intention of letting up.
This was not going to be a sprint. This was a marathon, and I was too well aware that I’d be running a route covered with sharp nails in my bare feet.
CHAPTER 25
THE FOCKERS
AFTER MAKING MY OPENING STATEMENT, I felt really good, but it was only three in the afternoon when the prosecution called their first witness. I was sure they were going to call Cindy Anthony. I felt she would have been their strongest choice.
Instead we were thrown off guard when they called George. It was at the same time the prosecution’s best—and worst—move.
The purpose of the prosecution’s calling him was to deflate and reject the sexual abuse charges that we had made against him. George took the stand, told his life’s history, how he worked as a police officer in Ohio, quit the job to work with his father in the car business, parting ways after they didn’t get along, and then how he and Cindy left for Florida to start over.
When Jeff Ashton asked him if he ever sexually molested Casey, he said no.
When Ashton asked him if he was present in his home when Caylee died, he said no.
When Ashton asked him if he disposed of Caylee’s body, he said no.
He denied everything, displaying the usual, “I’m the victim here. Feel sorry for me.”
What was interesting was that during direct examination Ashton asked him if he had seen the ultrasound of Caylee, and he responded by saying, yes, he had seen the pancake—Caylee’s vagina—and so he knew it was a girl. That was creepy enough, but Ashton then brought out that George had been in the delivery room when his daughter gave birth to Caylee. Everyone on the jury and in the courtroom was a little creeped out by that fact. By itself that piece of information took away some of the effectiveness of George’s testimony.
The reason Ashton asked him about that was because he knew I was going to bring it up on cross-examination, and he wanted to steal my thunder.
Ashton did a decent enough job on his own in direct, and when he was finished, I got up to cross-examine George, and I began with a question about the day Cindy’s brother accosted him and Cindy at his wedding wanting to know if Casey was pregnant. George had denied she was. He said he thought she was getting fat when in fact she was seven-and-a-half months pregnant.
He continued to insist he hadn’t known.
I asked him whether during the final two months of her pregnancy he ever asked Casey who the father was, and he said no.
I said to him, “For two years Casey dropped Caylee off at a nanny who you never met. Is that right?”
“Yes.”
I brought up the marital problems he and Cindy were having at that time. I mentioned that he had moved out after Caylee was born.
Ashton got up to object.
“Relevancy?”
“He moved out because of molestation issues with Casey,” I said, “not financial issues that he claimed.”
Ashton said that the breakup was over fights between George and Cindy over money Casey had stolen.
When George testified, he denied he left because Casey didn’t want him around. He said it was because he had been gambling on the Internet and because he had lost a lot of money to a Nigerian bank scam.
George again said that Casey and Caylee left the house on June 16 at 12:50 P.M.
I changed directions and started to ask about the gas cans. I wanted to ask him whether he had put the duct tape on the gas cans.
Ashton objected.
“The question is beyond the scope of the direct examination,” Ashton said.
Judge Perry: “Sustained.”
I asked George about the duct tape.
“Objection. The question is beyond the scope of the direct examination,” Ashton said.
I asked George why he had hired a lawyer within twenty-four hours of his calling the police.
“Objection. The question is beyond the scope of the direct examination,” Ashton said.
“Sustained.”
I asked him if he put the duct tape on the gas cans.
“Objection. The question is beyond the scope of the direct examination,” he said.
“Sustained.”
I asked him about the smell of decomposition in Casey’s car.
“Objection. The question is beyond the scope of the direct examination,” Ashton said.
Judge Perry: “Sustained.”
The prosecution had made a decision to call George up to the stand multiple times during the case, thereby trying to limit some of my cross-examination. But there is a case called Blue v. State that says it’s an abuse of discretion for a judge to restrict cross-examination if it’s reasonably related to the defense. All of my questions had been reasonably related, even if they were beyond the scope. Judge Perry should not have sustained Ashton’s objections, and I was somewhat thrown off by this. I had never heard of not being able to go after a witness.
Casey was on trial for her life, and I should have been allowed to attack George the way I wanted to, especially with his being the focus of our defense. But it was another one of those moments where I had to adapt. We were playing by new rules, and I was going to have to change the way I played the game in order to adjust to them.
This is like starting a game and changing the rules in the middle of it, I thought to myself.
I sat myself down and gave myself a talking to.
I’ll have time to regroup and really come after George harder, I decided. And this is why I say calling George first was the prosecution’s best move, but it was also its worst move, because I knew this was going to be a long trial, and I would have many more shots at him. As a result, I wasn’t too concerned I wasn’t able to follow the fireworks of my opening statement with a boom.
Afterward I heard all the boo birds.
“Doesn’t Baez know Law School 101? You don’t go beyond the scope.”
“He kept trying to go outside the scope. What does he think he’s doing?”
The haters were saying, “He did a great job during the opening, but he really flopped during his cross of George.”
The truth is, those people didn’t know what they were talking about. They hadn’t a clue.
The jurors would forever have the opening statement as a map of where this case was going to go, and that was the biggest impact of the day—not George’s denials, for I would have multiple shots at him.
And that was the prosecution’s biggest mistake.
If it had put George on at the beginning of the trial and only given me one shot at him, I probably would have scored a few points, but they would have gotten lost and forgotten as the case went on.
What the prosecution did was make George the central part of its case, and he was a horrible, horrible witness. The state called him a bunch of times, and we called him twice, and each time I got to take my blows at him.
The smarter move by the prosecution would have been to put him up once and get him out of there, but it just kept parading him up there. And I just kept going at him. Rather than going for a head shot in the first round to try to knock him out, instead what I did was I hit him with body shots throughout the entire six weeks of the trial. By the time the trial was over, he was done.
One of my favorite
sayings is, “Persistence beats resistance every time.”
By the time I was done with George, not only did the jurors believe he had something to do with the cover-up, but they even began to question whether he had intentionally murdered Caylee.
WHENEVER GEORGE TESTIFIED, and later when Cindy testified, Casey would get angry and would become more and more animated. She’d shake her head no. She’d make facial expressions, and I would constantly be on her about the faces she was making.
I was really angry with her. This was one of the three or four times during the trial when she and I would really go at it.
“I’m human,” she’d say to me.
“I don’t want you to be human,” I’d reply. “I want you to sit there and not react to the evidence. Because at this point you’re behaving no better than Ashton.”
“People don’t like it,” I would tell her. “They’re watching you.”
One thing different about this case: we were facing the jury the entire time. Usually the defense table is off to one side, and you sit far away from the jury. This time we were face-to-face with the jury, and I think that worked in our favor.
“You need to stop that shit,” I’d tell Casey.
And in fairness to her, I was asking her to do the impossible, which was to be emotionless during this incredibly emotional event she was going through.
At a certain point she realized she was disappointing me, and she’d keep her emotions in check. Overall, Casey did an excellent job keeping her emotions intact.
“I need you to keep focused on the task at hand,” I kept telling her. “I can’t be watching you. I can’t spend my time thinking about what you’re up to.”
AFTER CALLING GEORGE, the prosecution for the next two weeks trotted out what they called The FOC-kers—Friends of Casey—to the stand. Their purpose was to talk about how she acted as though nothing was wrong—going to parties, smiling a lot, getting a tattoo—all of which was supposed to impress upon the jury that Casey wasn’t at all sad over the disappearance and then death of her daughter.