Presumed Guilty

by Jose Baez

  I fenced with him for an hour, getting him to admit he would get paid if his testimony stood up and his machine was sold to police departments around the country.

  “These devices—the goal is to sell these to police departments all across the country?” I asked him on cross-examination.

  “In my position at the national lab, we are required to file invention disclosures,” was his answer. He then went on about how this involved a grant from the National Institute of Justice. He was totally unresponsive.

  “Did you understand my question?” I asked him.

  Ashton objected to my interrupting his witness.

  “Sustained.”

  He said it was the laboratory’s decision whether to file a patent or not. He said he had no say in the matter.

  “Do you understand my question?” I asked again.

  “I think I answered your question,” Vass said.

  “I don’t think you did.”

  “The goal of this, sir, is to sell this to police departments all across the country?”

  “No,” he said. “My goal is not to sell these at all. My goal is to develop them.”

  “You have to have validation of that database in a court of law, do you not, sir?”

  Ashton objected and asked to approach the bench.

  The court sustained his objection.

  “I do not know that,” said Vass.

  I pressed on.

  “You get royalties as a result if this device is sold, and sold basically to the police, do you not, sir?” I said.

  “I honestly don’t know …” he said.

  It went on like that for a while.

  The owner of the patent and Vass stood to make a mint if he could show his data to prove decomposition was scientifically proven, and he was going to do all he could to make sure the jury didn’t know. Unfortunately for Dr. Vass, they knew full well.

  Fortunately for me, Vass loved giving interviews and writing articles. In researching his career, I found an article he wrote in which he said he could prove that divining rods work. A divining rod is like an unbent coat hanger, and he asserted that he believed in using divining rods to unearth hidden graves.

  I started to question him about that, and Ashton objected, but I pushed the issue. In the end he admitted he used divining rods to teach, and that he believed in them. It was comical. In our research we also learned he had also tried to put electronic leashes on flies.

  What was interesting, and germane to our case, was that a lot of the prosecution witnesses talked about how unique the smell of human decomposition was; however we were able to find an article where Vass said that a rotten potato sitting in a cupboard smelled very similar to human decomposition.

  I was really bothered—it bothers me to this day—how many of Ashton’s objections were sustained. Why shouldn’t I have been allowed to show examples of outrageousness on the part of Vass? Why shouldn’t I have been allowed to impeach his credibility? Vass was like any other witness, but whenever I went after him, I was shut down. Reliving this makes me as angry as when it was happening.

  Vass had testified about how the chloroform levels were “shockingly high” and “unusually high,” and as hard as I tried, I didn’t get very far in my attempt to show there had not been a quantitative analysis, and that there was no way Vass could have known what the level of the chloroform had been.

  Then the prosecutors handed us another gift. They did something so stupid I can’t believe they did it. They brought on as a witness an FBI scientist by the name of Dr. Michael Rickenbach, who did very little if anything to bolster the prosecution’s case. I can only think the reason they brought him in to testify was so they would have a second scientist to back up Dr. Vass.

  But when I asked Rickenbach about the levels of chloroform found in the trunk of Casey’s car, his answer was that the chloroform levels were very, very, very low.

  “Were they shockingly high?” I asked him, mimicking Vass’s high-pitched voice.

  “No,” he said.

  “Were they unusually high?”

  “No,” he said.

  And the fact they put him on the stand told me that Ashton did that because he totally lacked an understanding of the science. Not only did Rickenbach testify to the low levels of chloroform, he also testified that chloroform could be found in degreasers and other normal cleaning products, and that the levels found in the trunk were comparible to chloroform levels found in cleaning products. He was called for the prosecution, but it was as though he testified for the defense.

  It wasn’t one of Ashton’s best days. During my cross-examination, Ashton went to make an objection, and he did it with a loud, aggressive shout. His screech was almost violent, and when he did it, I looked at the jury, and I could see juror number eight, the Caucasian woman who worked for Verizon, made a grimace as if to say, “You asshole.” It was such a telegraph that she seemed to be signaling to anyone who noticed how much she didn’t like Ashton.

  As the trial dragged on, I never could be sure how well I was doing, how effective I was being. At times I felt good about how we were doing, but the pressure was intense every day, and the amount of preparation was great. Vass had been an important witness for us. If I had allowed him to get away with selling the cock and bull he was selling, I might have given the jury something to hang its hat on. If they had a suspicion or even a hint there might have been a dead body in the car instead of garbage, there was the chance they could have concluded that Casey had put it in the trunk of her car, because after all, it was her car. When it became clear that Vass could no more discriminate between decomposition and garbage, the prosecution’s case became much weaker.

  CHAPTER 28

  HOPING IT STICKS

  THE PROSECUTION next went to the dogs. In between our pretrial motions and actually going to trial, the Supreme Court of Florida handed down a ruling in the case of Harris v. the State of Florida. The ruling required law enforcement to provide records of their search and cadaver dogs to show that a dog was reliable. In the past, the training records had been acceptable, but the court ruled that because the one who did the training was the dog’s handler, the results were biased. What would be needed were real-world results. Every time the dog went out what were the results?

  In effect, the court wanted the results to come from blind testing.

  In our case, neither Gerus nor Bones had any records to show their reliability as cadaver dogs, so under Harris, the testimony about what they may or may not have found should have been excluded.

  I was baffled when Judge Belvin Perry allowed Officer Jason Forgey to play a video of Gerus finding another body in another case and tack that on to a couple of articles about other cases in order to allow in the testimony. These records were put together ghetto-style.

  To me, hands down, this was reversible error.

  I sat and watched the video, objecting all the way.

  “You can’t let the jury see this,” I said.

  “You’ve made your bed,” Judge Perry said to me, “and now you’re going to have to lie in it.”

  He took the Harris decision and turned it upside down.

  It was so unfair.

  After the dogs came the computer searches. Sandra Osborne Cawn was called to testify about her work with the home computer in Lee’s old bedroom that everyone in the Anthony family had used.

  One thing I noticed: though George was in his fifties he was an active user of that computer. He was always online. You can never categorically prove someone is behind a computer, but you can group searches to give you a very good idea who was using it. Casey, for example, spent hours on Facebook and Myspace. Based on the Internet history, it appeared George’s favorite sites included job searches like Monster.com, but if he wasn’t looking for a job, he was looking for prostitute and escort sites. Two of his favorites were Forty Plus and Single.com. He also looked up some gardening sites including Lowes.com. Again, you can never put someone behind a computer.
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  Cawn testified she found there were some deleted files, but she didn’t know how to retrieve them, so she gave the computer over to Sergeant Kevin Stenger of the Orange County Sheriff’s Department Computer Crimes Squad. Stenger used software called NetAnalysis to pull the reports of the deleted files and isolate them. He said he utilized a new type of software called CacheBack that was designed by the next witness, John Dennis Bradley, an ex-law enforcement officer from Canada. Bradley stayed up for three nights writing code and developing the Cache-Back program during the process after Stenger told him he couldn’t get it to work.

  So Linda Drane Burdick called Bradley to testify about Stenger’s report because he was the developer of the software. While she was questioning him, she’s going over each and every one of the searches. I saw one website for chloroform had been visited eighty-four times. I couldn’t believe it.

  I had already gone over these reports with a fine-tooth comb.

  How could I have missed that? I wondered.

  I even objected. We went to sidebar, and while we were standing before the judge, Burdick gave me this smirk, as if to say, “We got you. Finally, we’ve got you. She’s going down.”

  Of course, I wasn’t smiling.

  Bradley’s testimony came at the end of the day. I wanted more time to cross-examine him so I asked the court for a little more time, and Judge Perry agreed.

  The prosecution liked to put a strong witness on at the end of the day so when the jury went home, the prosecution could leave on a very high note. It was a great strategy.

  I went back to the back room, and I questioned Casey.

  “What the fuck is this all about?” I said. “Eighty-four times looking for chloroform? Did you know anything about this?”

  “I have no idea what this is,” she said. “I’m telling you, I didn’t visit any chloroform website eighty-four times. That’s ridiculous, and it’s not true.”

  I ended up believing her, because I looked at the page. It gave no information. This page had been clicked eighty-four times, but the page preceding it had only been clicked once. You needed to click the preceding page to get to the chloroform page. How could that page be clicked eighty-four times if the preceding page had only been clicked once?

  It didn’t make any sense.

  I called Larry Daniels, my computer expert, and asked him if he would help me. He and I stayed up all night trying to find a way to cross-examine the issue. We needed to cross-examine Bradley the next day in court, but Bradley had not prepared the report. Stenger had. Larry was very frustrated over that.

  The next day, the one strong point I could bring out on cross-examination was that Bradley hadn’t prepared the report. The state called another witness to testify as to Stenger’s report, which made me raise a serious question about Stenger. I would have to wait until I put on the defense case to talk about that NetAnalysis report, which would have shockingly different results, and that’s when I would completely blow it out of the water.

  We had to sit and wait on that for a while. It was unnerving.

  Then they called Lee, who was there to testify that he wasn’t the one who deleted files on the computer. My intention was to admit testimony about the searches for prostitutes and escort services, to argue that the conclusion was that George was the one who had deleted the files, because the logic was that he didn’t want Cindy or anyone else to know about his philandering.

  I wanted to say, “If you’re a married man, and you’re looking for whores on your computer, you better believe that from time to time you’re going to make deletions of your Internet history.”

  But I couldn’t. It was outside the scope of the direct examination.

  NEXT, THE PROSECUTION delved into the crime scene. Deputy Edward Turso and Deputy Pamela Porter were the first two officers to arrive on the scene when Roy Kronk made his 9-1-1 call to report he had found a body on December 11, 2008. Given the fact that Kronk had said to Porter, “Do I still get the reward even though she’s dead?” and the fact that Porter had been ordered by Internal Affairs not to say anything about Kronk, in effect keeping that little bit of information a secret, I didn’t expect the state to call her, and they didn’t. Instead they called Turso, who told the jury how he had arrived on the scene and found the body.

  It was at this point we knew the prosecution wasn’t going to call Kronk, which I just couldn’t believe they were doing, but the reason they didn’t call him, it turns out, wasn’t just that they didn’t trust Kronk’s testimony. Worse than that, they flat out didn’t believe him.

  They thought he was “untruthful.”

  Here’s what offends me deeply. They were asking the jury to believe the veracity of the crime scene that he delivered to them, while at the same time refusing to believe his story.

  It was a case of, “Believe everything at the scene that I found, but don’t believe me.”

  This was bad enough in a criminal case. In a capital case, which this was, it was so much worse and is really one of those things that makes you question capital punishment in this country. If this could happen in a high-profile case that everyone is watching, imagine a quiet case where no one is paying attention … It’s scary.

  AFTER CALLING A COUPLE MORE WITNESSES about the photographs of Caylee’s remains, the state called medical examiner Dr. Gary Utz, who testified there was no evidence of trauma to Caylee.

  After Utz, the state called Dr. John Schultz, their forensic anthropologist, whose job it was to show the jury the gory details of the scene. They went so far as to show the jury photos of and testimony about animals chewing on Caylee’s bones.

  I objected strenuously. We went to a sidebar, and Judge Perry allowed it because of my opening statement that the remains had been moved. I didn’t see how one thing had to do with the other, but that was his basis for allowing the jury to hear and see this prejudicial information that wasn’t probative in any way. All it did was introduce an element of gore to the scene.

  Casey, meanwhile, had to sit in court and watch these horrible photos of the bones of her beloved daughter, and I could see her get upset. Dorothy Clay Simms would put her arm around her shoulder to comfort her.

  Jeff Ashton then took the time to complain about it.

  “I do think that counsel’s arm around the back, patting, needs to not be done in front of the jury,” he said. “So we would ask that Ms. Sims and all counsel be instructed that the consoling really needs to stop, because it has the potential to influence the jury and getting sympathy. So we would ask that counsel stay out of it and leave the consolation for the breaks.”

  Judge Perry refused to do as Ashton asked, but he did warn me to watch myself, lest the court have to remove Casey from the courtroom.

  Later in the day Casey became so upset watching those horrifying photos that she became ill, and Judge Perry called off court for the rest of the day. For all those bloggers who said that Casey didn’t love her daughter, that she killed her so she could go dancing—well, you should have been in the courtroom on this day. Her pain was evident and terribly sad. This was a tragedy anyway you looked at it, and I was sorry to be a part of it.

  THE PROSECUTION THEN CALLED to the stand Dr. Jan Garavaglia, the medical examiner. The prosecution was touting her as being their star witness.

  What I found her to be—and the jury found her to be—was over the top. Meaning she gave much more than what she was qualified to discuss. And it all had to do with the cause and manner of death—how this was a homicide case. As before, she repeated her justification for this to be ruled a homicide:

  A. Caylee’s disappearance was not reported to the authorities immediately,

  B. her body was hidden in a wooded area, and

  C. duct tape appeared to be applied to the lower face.

  Again, these are not medical facts. These investigative facts say nothing about how Caylee died.

  On cross-examination Dr. Garavaglia was very indignant, very abrasive, and yet I do really believe she
felt she gave great testimony.

  After the trial, she did something that really offended me. She made a documentary of the case, as we all knew she would. Instead of accepting the verdict, she commented that the jury had been made up of people who still believed Elvis was alive. She kept commenting about the defense’s spin and how strong the prosecutor’s case was. When I saw her say that, I wondered where she had heard all of this information.

  She was a witness, which meant she wasn’t allowed to sit in on the trial. The rule of sequestration dictated that she not listen to the testimony. Either she was in violation of the judge’s order, or she was indicating her clear bias, when the medical examiner is supposed to be anything but.

  THE NEXT WITNESS was Michael Warren and his absurd, offensive video superimposition of the duct tape around a photo of Caylee. On the stand Warren said this was a “possibility” and was “speculative.” He failed to say it was entirely made up and sold to the public as reality.

  I was offended on so many levels I don’t know where to start.

  I moved for a mistrial.

  “I think the overwhelming prejudicial effect was outweighed by the probative value and we would hereby move for a mistrial based on the fact,” I said.

  Judge Perry asked me whether both sides had presented various theories about the location of the duct tape. And he asked me whether he had said there could be other possibilities, beyond the version of events implied by the video.

  “The witness did,” I said. “However, it’s our position that it’s not outweighed by the video, about two minutes long, seeing a photograph of this beautiful child with duct tape wrapped around her face and her skeleton, skull, in the background.”

  “Okay,” he said.

  “I think that served only one purpose, to inflame the jury, especially since this witness said he could describe and explain that opinion without the video.”