by Jose Baez
Ashton argued that at one point Caylee did have duct tape over the area of her face, nose, mouth, or both, and that the exhibit was necessary to establish the state’s theory that the duct tape was the murder weapon and was admissible for that purpose.
“Motion for a mistrial at this time will be denied,” said Judge Perry.
NEXT WERE CRIME SCENE INVESTIGATORS Robin Maynard and Elizabeth Fontaine to talk about the phantom heart-shaped sticker. Dr. Neal Haskell testified about the flies coming from the trunk. Haskell’s report may have overreached, but on the stand, he was fair. He was subdued and answered honestly. He talked about the single leg of the blowfly, and when I asked him on cross where all the bugs came from, he answered honestly—they came from the garbage in the bag.
The very last of the prosecution’s long list of testifiers as to Casey’s character—not to whether she killed anybody—was Bobby Williams, the tattoo artist who tattooed the words “La Bella Vita” on Casey.
The prosecutors wanted to end on an emotional bang; they wanted the jury to know that after Caylee had died, she had gone into town and had herself tattooed, which I suppose was to indicate to the jury that she was a person of bad morals.
During cross-examination I quickly pointed out that George and Cindy had also gotten tattoos to memorialize Caylee.
“If George and Cindy could do it,” I said, “why couldn’t Casey do it?”
And that was the end of their case, both literally and figuratively.
I MUST SAY THAT OVERALL the state did a very good job presenting the evidence that it had. The state didn’t have much, but they made the most of it. All in all it was organized and well presented. Burdick was the reason for that. She was in charge of the case and its organization as far as the evidence was concerned.
Granted, there were a number of times when the prosecutors really let the case drag on, but what they wanted to do was err on the side of overkill, rather than under-try their case.
Aside from the fact they didn’t have any evidence as to how, when, and where Caylee died, especially how she died, the prosecutors also engaged in the quintessential prosecutorial overkill—using the many Fockers, using that video superimposition, and really dragging out the case to the limit when they really had very little to back it up.
After the trial I heard from one of the alternate jurors, who I will not name, that he and another juror told themselves the same thing: At the end of the prosecution’s case, each said, “We were asking for more, expecting more. And we were shocked, at the end of their case, they didn’t have more.”
The alternate juror had this crazy phrase:
“It was like paying for a prostitute and not getting any,” he said. But this case was far from over. Because of the circumstances, I feared the jury would find Casey guilty if it could find a reason to. I had to keep the pressure on.
CHAPTER 29
MY TURN
TO MAKE OUR CASE, we wanted to break it into themes. We thought it would be easier for the jury to follow. Also, the prosecution had argued its case in chronological order, and we figured the jury had already gotten an idea of what happened when.
Here are the five themes I intended to follow:
A: The forensics. This had to do with all the evidence concerning the chloroform, the carpet samples, the air in the trunk, the textile fibers, the lack of DNA evidence, the phantom heart-shaped sticker, bugs, and Dr. Arpad Vass’s experimental air tests that there was decomposition in the trunk of Casey’s car.
B: Caylee’s accidental drowning. There was evidence to back this up.
C: The botched crime scene on Suburban Drive. I looked forward to questioning Roy Kronk.
D: Casey’s sexual abuse at the hands of George Anthony. This would explain Casey’s strange behavior during the thirty days before her arrest and in jail.
E: The final topic concerned the possible police misconduct and George’s attempts to frame Casey in order to keep her from talking about the abuse. I couldn’t wait to examine Krystal Holloway, George’s mistress during this ordeal, to let the jury know what she had to say about the accident that snowballed “out of control.”
FOR THE LONGEST TIME, I wanted to start with the forensics, and I wanted to start that way because the state had ended that way. It was a significant part of their case, and my intention was to put so many holes into their case that it would reek of reasonable doubt.
I wanted to accomplish two things with the forensics. One, I intended to show just how much the forensics actually exonerated Casey, and two, I wanted to show the jury just how much forensic evidence the state was hiding from them. And because of their poor strategy of hiding the ball, it made this really easy.
During the state’s direct examination, whenever I tried to bring something up that Jeff Ashton would object to as being “outside the scope,” Judge Belvin Perry would sustain the objection—these were points most judges would have allowed me to make—but what that did for me was really open up the door to show the jury just how much the prosecution was hiding from them.
Trying a case is a lot like playing a chess match. You always have to anticipate your opponent’s next move. They began to preclude me from going into areas that exonerated Casey during my cross-examination which forced us to do it in our case. We were more than willing and happy to do this, because we could parade in front of the jury witnesses that the state should have called but didn’t.
There’s a case called Haliburton, which says that during closing arguments you cannot argue that the state has failed to call a witness unless you call that witness yourself. For example, if we had not called Roy Kronk, we could not then argue that the state didn’t call him. And I knew come closing arguments, this was going to be especially important.
It would be fantastic to call as my first witnesses no one but FBI laboratory personnel to testify about all the evidence that wasn’t brought forth by the prosecution, and all the evidence that exonerated Casey.
And that’s precisely what we did.
This wasn’t an easy task to pull off because all these experts were busy and had tight schedules, but this was where my associate Michelle Medina was at her best. Michelle is extremely organized and personable, and managed to arrange for all these witnesses to be in court in the order we needed to put them on.
We started with Gerardo Bloise, because he was the one who collected a lot of the evidence and sent it to the FBI so they could examine it. At this point I wish to note that I found the FBI lab employees to be extremely professional. Paula Wolf, the FBI lab’s lawyer, was a straight shooter with the defense.
“Our personnel is going to testify to whatever the facts are,” she told me, “whether it helps one side or the other.”
I couldn’t have asked for anything more.
The FBI asked if we would go over with each person the testimony before they testified in court, and so every evening after court I would meet with the FBI lab personnel and go over their testimony with them.
We began with Heather Seubert, who was a senior DNA analyst with the FBI lab.
DNA is always a very difficult topic to explain to jurors without losing them, and I have to say that some of my best lawyering in this case was making the science simple. I spent a lot of time preparing for it and to date it is the work I am most proud of.
I found Seubert to be a great witness. She was very personable and very good at explaining DNA, and she helped us out on several fronts. She testified that there was no blood on the car seat, in the trunk of Casey’s car, or on the steering wheel; that there was no DNA on the duct tape; and that the duct tape was contaminated.
The state was arguing that there was human decomposition in the trunk of the car, but Heather testified that decompositional fluids should have DNA in them, yet there was none. She testified that she also tested for blood, semen, and saliva, and none of that was found.
The jury was able to reasonably conclude there was no body in the trunk.
She also testified about the
foreign DNA found on the sticky side of the tape that excluded both Casey and Caylee.
That really hurt the prosecution’s case.
THE NEXT THING I did was attack the phantom heart-shaped sticker. The prosecution’s theory was that Casey had taken one of Caylee’s heart-shaped stickers and placed it on the duct tape to show her how much she loved her.
Taking this ridiculous theory apart was easy.
I called Ronald Murdock, who was in charge of processing the crime scene, and he testified that the sticker was thirty feet from Caylee’s body.
After that we called Lorie Gottesman, and she testified that she inspected the duct tape and found no residue of any stickers.
Then we showed the jury that the stickers found in the house looked nothing like the one found at the scene thirty feet away.
The conclusion for the jury to make was that the state had in fact tried to trick it by giving it misleading information.
And what made it especially powerful was we were using the state’s own people to do it. These were not our experts. These were the prosecution’s witnesses, and the prosecution had to sit and watch us use their experts to put on our case.
Ashton, in particular, was getting all upset as his case disintegrated before his eyes. He was his usual self, making faces, carrying on, making objections, getting all angry as usual.
Slowly but surely we could see the agitated Ashton start to boil like a volcano ready to erupt at any moment.
The next day I called Dr. Tim Huntington, our entomologist, to the stand. Huntington did extremely well. He broke things down to their simplest forms for the jury to understand that based on the larval habits of flies, the ones in the trunk didn’t come from human decomposition, which the prosecution tried to claim, but rather from the trash—and for no other reason.
When asked whether the leg of the blowfly was evidence of decomposition, he testified, “It doesn’t mean anything.” He said if there had been a body in the trunk, there should have been thousands of flies, not just one leg.
He also testified that, in his opinion, the body had been moved from another location to where it was found; it wasn’t placed there originally.
Ashton spent several hours cross-examining him. He knew that Huntington was hurting his position badly, and he fought vigorously to attack him, cutting off his answers, bullying him, trying to control and manhandle him; in the end he failed because he didn’t have the evidence on his side.
One of the most bizarre things Ashton did during the trial arose during his fencing with Dr. Huntington, who during his testimony was discussing pigs decomposing. Ashton thought it would be cute to talk about “wrapping pigs in a blanket.” We were talking about the remains of a little girl, and he was cracking bad jokes.
Because Ashton was using an exhibit to question Huntington, I got to stand near the jury when Ashton made his “pigs in a blanket” quip. I looked over at the jurors. They didn’t like it, and none of us thought it was funny.
I kept objecting to Ashton cutting off Dr. Huntington during his cross-examination. Ashton said, “Discovery issue. I’m just very concerned that we’re going into other areas.”
His real concern was that Huntington was turning his case into hamburger meat.
Judge Perry said to Ashton, “Don’t do that again.”
Ashton kept interrupting Dr. Huntington, until I couldn’t stand it any longer.
“I’m going to object and ask that the witness be allowed to complete his answer,” I said.
Ashton apologized. He saw how angry Judge Perry was.
“I thought he was done,” said Ashton.
“I’ve lost my train of thought,” said Dr. Huntington. “I don’t remember where I was going with that.”
Ashton asked if he would like the court reporter to read it back.
Judge Perry called a sidebar.
“You need to talk to your counsel,” he said to Linda Drane Burdick about Ashton. “Because of what I’m about to do. If he continues to interrupt witnesses, and that goes the same for you, Mr. Baez, then I will prohibit counsel from participating. The only thing they can do is pass questions back and forth and so if you can’t control your counsel, that counsel will be eliminated from actual participation.”
“It’s a simple rule. Ask a question. And when they finish answering the question, they’ll stop talking. So if folks can’t control their emotions, I’m going to control them. And that’s one way I will do it.”
In all of the bragging that I have seen Ashton do about his performance during the trial, I have never heard him tell anyone about the day Judge Perry nearly threw him off the case for not being able to control himself.
After that Ashton, his wrists slapped, calmed down considerably.
On June 18, I called Dr. William Rodriguez to the stand. I was calling him because he had a great deal of experience dealing with bodies and duct tape, and he was going to testify that unless the remains are buried, duct tape never stays near the remains. His conclusion was going to be that the crime scene had been staged, and any evidence surrounding it should not be considered.
He was also going to testify that the superimposition of the duct tape over the color photograph of Caylee’s remains was “unheard of.”
“There’s no way scientifically that you can show where that duct tape was,” he said.
Ergo, the state’s cause of death: death by duct tape, was absurd.
But the jury would never hear his testimony. Ashton immediately objected because Rodriguez was an expert who hadn’t been deposed, and under Judge Perry’s order, if my witness had not included his opinions in his report or deposition, he couldn’t testify.
But wait a minute: it was Ashton’s responsibility to depose him. There was no way I could force Ashton to do that, and he purposely didn’t depose this witness, just so he could object and try to keep him from testifying.
It was ridiculous on its face. And Judge Perry let him get away with it.
Judge Perry called for a recess at 1:00 P.M. so the prosecution could take Rodriguez’s deposition.
But there was a hitch. Rodriguez worked for the United States Armed Forces, and somehow, some way, according to Ashton, Rodriguez’s boss called Ashton’s cell phone to tell him that Rodriguez hadn’t gotten permission to testify. Ashton said if Rodriguez testified, he would be fired.
Ashton swore he hadn’t called Rodriguez’s boss, that his boss had called him. I have no evidence to say he was lying, but tell me, how did Rodriquez’s boss get Ashton’s cell number?
At first Rodriguez said he would testify anyway, but to make sure he didn’t, Ashton made a motion to hold Rodriguez over for another day so he could review his deposition in order to be able to prepare for his testimony, knowing full well what Rodriguez’s situation was.
For Ashton it was all about winning. Nothing else.
I told Rodriguez what Ashton had told me, that his boss said he was going to get fired if he testified, and under the pressure, we both agreed it wasn’t worth his losing his job. At the end of the day I had to strike him from the witness list.
MY NEXT WITNESS was Dr. Werner Spitz, who was nothing short of brilliant. You’d be hard-pressed to find a forensic pathologist with more experience.
He testified that the autopsy conducted by Dr. Garavaglia was “shoddy,” and he talked about the fact that the skull had not been opened during the autopsy and that he had opened it. What he found was that there was important evidence that the body had decomposition on her left side, where she had been left. But when the body was discovered by Kronk, the skull was sitting upright. This was more scientific evidence that the crime scene had been staged.
Ashton crossed-examined him. During his cross he tried to use an article written by lawyers to impeach his testimony. Ashton wanted Spitz to see it, and when he did, he exclaimed, “You know, this is written by lawyers for lawyers, and as I say, by lawyers. It’s written in legalese. I don’t understand it. I am not a lawyer. I have neve
r been a lawyer. It’s in lawyerese, and I don’t know how to understand this.”
Spitz was a riot on the stand, slapping Ashton around. He was also very persuasive. He was giving his direct testimony about decomposition in Caylee’s skull to Cheney Mason, who was asking the questions. There was a moment when he said, “You see black flecks. These black flecks are material which represent the large and permanent result of decomposition. What that means is that the brain, which fills this entire space, is gone. The brain has dissolved but some parts, like iron, magnesium phosphate, sodium, chloride, all kinds of elements remain permanent. They don’t disappear.”
“This is ashes to ashes and dust to dust, what you read in the Bible. And this is the dust which is remaining. And this amount of dust would have been probably just less than an ounce, but of course there’s not one ounce because some of the dust has been removed—has gone.”
His “ashes to ashes, dust to dust” analogy was very interesting, and I looked over at the jurors, and each and every one of them was leaning forward listening to the professor, the dean of forensic pathology, teaching them about what he had found and how significant it was.
He was telling them that he had found the residue—the black flecks—on the top left-hand side of Caylee’s skull to show she had initially been placed sideways.
The jurors saw that this was proof the crime scene had been disturbed and wasn’t reliable. And when Spitz testified the duct tape had no DNA on it, they were convinced Caylee wasn’t murdered by duct tape. During his cross-examination Ashton kept trying to nail Spitz with facts of the case that had nothing to do with the science. It was interesting, because when she was on the witness stand, all Garavaglia wanted to talk about were the facts of the investigation, that Caylee had been missing thirty days, investigative facts like that, while Spitz concentrated only on the work he did, not the investigative facts.
And because he couldn’t recall any of the investigative facts, Ashton tried to paint him as a doddering old man who couldn’t remember anything.