Presumed Guilty

by Jose Baez

  My entire cross revolved around those gas cans, but the prosecution refused to stipulate I could show the pictures of them, and so I had to wait my turn—a month later as it was—and when I did, I would shove those photos down George Anthony’s throat.

  I really wanted to show the jury those photos. Ordinarily the defense is allowed to refer to an exhibit during cross—that doesn’t mean it’s admitted into evidence—however Judge Perry didn’t even allow me to do that. In the end, because Ashton tried to get the tactical advantage at every twist and turn, he forgot about the jurors. They, too, wanted to see this photograph and in denying them that, they saw he was hiding the truth. A prosecutor should never look like he’s hiding something from the jury, especially if you’re the one arguing that it’s the defense that’s doing all of the hiding. This prosecution was hiding the ball on almost every play, and I do think the jury saw through that. In some instances it insulted the jurors’ intelligence. When the state failed to call crucial witnesses and show them certain things, like the gas can photograph, it lost all credibility.

  Judge Perry was shutting me down like crazy. He was on top of me to the extreme.

  Some judges let you try your case; the theory behind that is if the defense does its best and the state does its best, true justice will come out in the end. It also lowers the risk of the case coming back on appeal because the judge hadn’t restricted the defense in any way.

  Every time a judge denies something from the defense, it increases the possibility of it coming back on reversal.

  Judge Perry was no such judge. In his courtroom, I wasn’t on a short leash; I was wearing a choke collar.

  Not being able to show the photos of the gas cans was only one example. Later there came a point when Judge Perry was so angry with me that he stopped the trial, excused the jurors so they knew he was mad at me—because of something I had allegedly done wrong—and he kept them out for a long time, meaning the end result was the jurors would get pissed off at me for slowing down the trial because of my incompetence, thereby making me less persuasive.

  Another time I asked George Anthony to step down and write something on an exhibit. Proper court decorum dictates that you ask permission from the judge. But sometimes you’re on a roll when cross-examining someone, and he had just been down a second earlier when I did ask permission, and this time I told George to come down, and Judge Perry immediately said, “Stop.” And he said, “Mr. Baez,” and he began yelling at me for not asking permission. It was like, “You didn’t say Simon Says, or pretty please.”

  This was in front of the jury.

  What’s important, the jury usually sees the judge as the wisest person in the room. It relies on the judge who’s in charge of taking them out for nice dinners, for arranging their accommodations, their comfort, so anything nice they received came from Judge Perry. It’s always important that the judge appears to like or respect you as a lawyer before the jury. I was getting neither.

  But what people don’t realize is that a judge is a lawyer, and most people don’t trust lawyers, but when a lawyer puts on a black robe, all of a sudden he is noble and all-knowing.

  Another thing: a judge is an elected official, which means by definition he is a politician. So a judge is not only a lawyer but he’s a lawyer who’s a politician. Nevertheless, once he puts on that robe, he’s cloaked with a certain amount of brilliance as it relates to a lay person, and I just find that fascinating.

  The judge also gets to sit above everyone else. If you look at the rituals when it comes to the judiciary, it’s interesting, to say the least.

  AT THE END OF THAT DAY, because of the way Judge Perry was treating me, I really started to feel down. I was an emotional wreck. The adrenaline rush had subsided, and the fatigue started to build again. It was from a combination of the pressure, of getting my objections overruled time and time again by Judge Perry, who was shutting us down at every turn, of the pressure of being involved in a high-profile case, and the responsibility of it all. I was starting to come apart. Everything started to take its toll.

  The toughest, most stressful times for me were the hours between leaving court in the evening and returning in the morning. It was bad leaving court, and the evenings were the worst. In fact, at times they were intolerable. But I was determined to never let it show. It’s like they say, sharks smell fear. So do lawyers, and I never gave the first clue that something inside of me was wrong or hurting.

  I called one of my very best friends, Michael Walsh, and I asked him to send me a Catholic prayer to help me get through this in my time of need.

  He sent me a prayer and in addition he sent me a text that read:

  “When the Philistines sent their most ferocious warrior out front to destroy the Israelites, God sent a small boy named David armed with a rock and a rag. David destroyed Goliath with a single shot. When God is with you it matters not who is against you, stand firm in the face of adversity and remain still knowing He is the lord.”

  It truly inspired me. It was as if it spoke to me. I was the underdog, feeling insulted and ridiculed every step of the way, and I was facing not only my very own Goliath, but several of them. I immediately changed the screen saver on my iPhone to a photo of Michelangelo’s David.

  The other thing I did was go to church every morning before court. I was born a Catholic, but I wasn’t raised in a religious household. There’s a Catholic church about a block from the courthouse, and most days before going to court, I would kneel and pray for fifteen minutes.

  Some days I would just sit in church and stare at Jesus on the cross. I’d stare out and just think for a few minutes, and each day I would feel a message being given to me. It was more about my life than it was about the case.

  Some days a voice would tell me, You need to call your mother and tell her how much you love her. Or, You need to call your wife and daughter. Or, You need to be more grateful.

  And when I would sit and pray, I’d pray for wisdom. I’d pray for strength to handle those things I had no control over.

  A calmness would usually come over me. I’d be in the zone, doing my thing, and I’d be fine.

  One morning I was running late to court, so I skipped church that morning. We had a horrible day. I remember thinking, Never again. Judge Perry is going to have to put me in jail for being late before I miss church again.

  I then made a decision as it related to Judge Perry: that was no matter how much he attacked me or berated me, I would be incredibly respectful. If he indeed had a bias against me, he would show that to the jury on his own. It would not be because any of my actions.

  I knew this was going to be a long trial, and thanks to Cheney’s constantly reminding me about just how long a marathon it would be, I was prepared to go the distance. People change opinions over time. I did not want the jury’s opinion of me to change. I felt they liked and respected me, and I was going to be humble and straight while fighting for my client. After all this trial was about Casey, not Ashton, not Judge Perry, and certainly not about me.

  THE NEXT WITNESS was Ricardo Morales, another former boyfriend of Casey’s. I never liked Ricardo. I thought he was a creep. This was a guy who sold photos of Caylee to Globe magazine for $4,000. However, Ricardo’s testimony was critical, because I was able to show the jury the “Win her over with Chloroform” photo he had posted on Myspace during the time they were dating. I was then able to explain to the jury that Casey had no idea what Ricardo was talking about, and that she looked up “chloroform” to understand the reference.

  This contradicted the prosecution’s ridiculous theory that Casey had used chloroform to sedate Caylee and then kill her.

  After more Fockers, I cross-examined Mallory Parker, who was Lee Anthony’s fiancée, and she concluded the good mother evidence for us. Mallory was a phenomenal witness because she came across as so sincere. She talked about what a great mother Casey was.

  “Their relationship was amazing,” she said.

  She broke
down in tears, and you could hear a pin drop in the courtroom. It was a powerful, powerful moment.

  Yeah, the prosecution was able to spread the word that Casey partied, that she shopped, but I had set the framework for the jury to know why she was behaving this way. We constructed a backdoor mental health defense, and because of it, the jury understood that there was something off with this girl. So all the prosecution was doing was reinforcing our position.

  Our strategy was always to take the negative things that the prosecutors threw at us and to adopt them as our own, rather than fight them, and I do think that helped us a great deal.

  THE NEXT IMPORTANT WITNESS was Simon Birch, the manager of the tow yard company. We did very well with him. He helped the defense for several reasons. He had had the unique experience of having once worked for a sanitation company, and he said his first inclination on smelling the bad odor in Casey’s car was that it was trash. Though he claimed to have smelled dead bodies before, and claimed he smelled a dead body in Casey’s car, he testified he never called the police but rather allowed George to leave in the car. Furthermore, when he finally did speak to the police, he testified that he was influenced by what he had read in the media.

  The exclamation point of his testimony was that George had told Birch that Casey’s car had been at the Amscot parking lot for three days. He had known that, Birch said, because George Anthony had told him so.

  Right after Birch, the prosecution called George to the stand again. What I found fascinating was that George, Cindy, and Lee were granted special permission during the trial to sit in the courtroom. Ordinarily, if you were testifying during the trial, you couldn’t sit in court, but the rule of sequestration didn’t apply to them, so they were able to listen to all the testimony.

  George had just watched Birch testify that George had told him the car was at the Amscot lot for three days.

  But when I asked George whether he had told Birch that, George said, “No, I didn’t tell him that.” And not only that, said George, but he had called Amscot right after he got to work that night.

  So here we had an independent witness versus George, clearly showing that not only was George lying, but that he had access to that car for three days. You have to ask yourself: Why didn’t George come and pick it up when Casey told him, and he said he’d come and get it? Did George leave it to get towed intentionally to start the ball rolling in an effort to pin Caylee’s death on Casey? You have to wonder.

  Casey, meanwhile, had told a number of her friends that she had told George and told him to pick up the car, so there was evidence that she wasn’t making up the story.

  As they say, the third time is a charm, and this is where the momentum really shifted to the defense as it related to George. He came across as unbelievable on so many points. For example, he was unable to tell the jury how long it takes a letter to get to his house from a mile and a half away. He went and picked up Casey’s car knowing it “smelled of death,” after not seeing Casey for three weeks, and he never even bothered to call Casey to inquire whether she or Caylee was okay?

  The inconsistencies would also occur with Cindy.

  At times George and Cindy would contradict each other. It was the weirdest thing.

  While trying to explain why he didn’t think Casey was pregnant in 2005, one time George said the reason Casey gained weight was because she would do athletics all the time, and when she’d run and exercise, she’d grow.

  “She grew a potbelly from exercise?” I asked him.

  And then I’d question Cindy, who was sitting right there listening to George’s testimony, and Cindy would say, “No, she gained weight like that when she was sedentary.” Meaning, Casey didn’t do any exercise.

  I couldn’t believe how often they’d get up on the stand and contradict one another while they were listening to each other’s testimony.

  And people wonder how Casey was found not guilty?

  I would later tell the jury, “They are all liars.”

  Cindy came on next to testify about her 9-1-1 call to the police. The rush I had gotten from being so successful with George was deflated because Cindy came across as a phenomenal witness for the prosecution. She was very sympathetic. She testified well, answering Linda Drane Burdick’s questions in a calm and sympathetic way.

  I never in a million years thought the hard-bitten, fast-talking Cindy could come off as sympathetic. Just knowing the way Cindy was, very powerful and aggressive, I thought that attitude was going to come through, but with Burdick on her side, she came off very well.

  To watch her during that 9-1-1 call, you watched a woman being tortured. And when the jury looked at the photos of Caylee’s playhouse, there wasn’t a dry eye in the house.

  I knew the one thing I couldn’t do was get up there and attack a grieving grandmother, so my cross was very subdued and not very effective, because I knew that if I had gone after her, I would have done more harm than good.

  What surprised me was that Cindy and Burdick, up until then, had been archenemies. Cindy had always defended Casey, and the two of them would battle. I used to joke with Burdick, calling it the Cindy Two-Step, meaning the two of them would go toe-to-toe with one another and dance. Cindy would sometimes get so aggressive with Burdick, that Burdick had to ask Judge Perry to step in and shut Cindy up. I used to laugh at Burdick all the time whenever she and Cindy would battle because Cindy was no pushover. I gather when Casey accused George of sexual abuse, Cindy went over to the prosecution’s side.

  Cindy had been extremely aggressive with Burdick, and I wanted the jury to see that, so right then and there, I started to think to myself, I have to find a way to get the old Cindy back.

  Later on, we would, and it would be explosive.

  AFTER CINDY TESTIFIED during court on June 13, there was a break in the case, and Judge Perry spoke to the jury. He said that depending on the length of the defense’s presentation, deliberations should begin “hopefully the 25th or 27th, but that is subject to change.”

  Cheney objected and called for a sidebar.

  “Listen,” Cheney said, “We don’t have any obligation to put on any evidence at all. And you just told the jurors you expect us to be putting on evidence, and we may or we may not.”

  “But you told me you were going to put on evidence,” said Judge Perry.

  Yes, we did tell him that, but nevertheless we felt that his discussion was signaling to the jury that somehow we had a burden, when we didn’t.

  Unfortunately, Judge Perry took it personally.

  “Y’all lied to me,” he said.

  “No,” Cheney said.

  “Yes, the hell you did,” said a very angry Judge Perry. “If you don’t put on any evidence, then I will do that.”

  “Well, we are,” Cheney said, “so don’t worry about it.”

  “I will take it that I cannot trust one thing your side says anymore,” said Judge Perry.

  After that exchange we repaired to a room where our team sat down to discuss whether to try to recuse Judge Perry.

  “This is getting out of hand,” I said. “He’s admitted that he can’t trust a word we say, so how the hell can he give Casey a fair trial?”

  We went back to sidebar with Judge Perry and told him what we were thinking, and he said, “Go ahead and file your motion, and I’ll file my response.”

  Which in my estimation meant, Do it and I’ll retaliate.

  The proper response should have been, “I’m sorry you feel that way. It’s not that way at all. But you’re more than entitled to file your motion.”

  But the way he replied to me I took to be a threat.

  We prepared the motion, and we went back and had another meeting, and every member of the team pretty much agreed that we shouldn’t do it. We felt it was the right thing for the client, but the wrong thing for me.

  “I fear he’s going to retaliate against you, Jose,” said Dorothy Clay Sims, and each member of the team agreed.

  “I’ll wit
hdraw my vote because I’m biased and only thinking of myself,” I said.

  The vote remained the same.

  I went to Casey and explained it to her, and told her the pros and cons; she too didn’t want me to file it.

  “Don’t file it,” she advised.

  “I don’t want anything to happen to you,” said Casey.

  And so we didn’t.

  CHAPTER 27

  THE STATE’S CASE TURNS TO HUMAN DECOMPOSITION

  FOR A DAY AND A HALF, all the prosecution did was play videos of the jail visitations of George, Cindy, and Lee. That was a difficult time for everyone, because they were lengthy and repetitive. But the state did it because it was trying to prove several things. It wanted to show what a smart-ass Casey was to her parents, it was showing her lies about Zanaida, and it was showing her interaction with George, during which she told him what a great father he was.

  What I realized and no one else did, was that this was right around the time Casey was trying to convince her parents to get her out on bail, and so she was trying an angle with Cindy in the context of, “Get me out so I can help you find Caylee,” and her angle with George was, “You’re the greatest father since sliced bread. Hey, I’m not going to roll over on you and tell everyone about the sexual abuse or about carrying away Caylee’s body, so please bond me out.”

  Then there was the video that caused the public to think that the story about Caylee drowning in the pool was an invention. It occurred on August 14, when George and Cindy went to visit her. On the tape you can hear Cindy say, “The media is saying that Caylee drowned in the pool,” and Casey says, “Oh well. Oh well,” sounding like she’s blowing her off.