Presumed Guilty

by Jose Baez

  After court that day, it was one of the those days when I watched a bit of the news coverage afterward. The so-called experts out there who think they know what it’s like to try a case were saying, “Ashton took him apart. Dr. Spitz is going to end his career on a low note because Ashton destroyed him. He looks like a senile old man.”

  Meanwhile, what these people didn’t know because of their ignorance, what they didn’t see from my seat in the courtroom, was that the jury hung on Spitz’s every word. They liked him so much because of his personality that they were much more open to listening to what he had to say. And what he had to say was devastating to the prosecution’s case.

  After the trial one of the jurors confided in me, “After Dr. Spitz testified, the case was over for the prosecution.”

  Our next witness was Jane Bock, our forensic botanist specializing in plant ecology, plant anatomy, and forensic botany. Jane is an elderly woman, who Ashton ridiculed left and right. She was discussing bones being buried and foraging by animals. When Ashton asked about a buried bone, she commented that a dog could have buried it.

  He mocked her. “A dog buried? A dog buried?”

  “They do,” said Bock. “As do coyotes. I don’t know if you have those here.”

  “We don’t have coyotes …” Ashton said with contempt, when in fact there was a news article about coyotes being spotted in downtown Orlando.

  You could argue whether her testimony hurt us or helped us, but the real impact of her testimony came from Ashton going overboard and treating this very kind, nice elderly woman badly.

  “What a cocky asshole,” one of the jurors said to me after the trial referring to the way Ashton treated Bock.

  Then came Richard Eikelenboom, whom I flew in all the way from the Netherlands. He was another witness whom Ashton deliberately did not depose. And this time Ashton’s tactics—with Judge Perry’s wrath–almost pushed me to quit the case.

  Ashton intentionally did not take the deposition of a lot of my experts that we gave him the reports for. I believe he did this so he could hold the judge to his order that said, “If it’s not in the deposition and it’s not in the report, they are not testifying to it.” So throughout the trial, he kept bringing up the fact we were in violation of this order because he failed to take their deposition. You’d think there was something I could do about this, but there really wasn’t. If I could have forced Ashton to depose my witnesses, I would have.

  Ashton, meanwhile, was gaining a great deal of pleasure at my distress.

  He kept saying, “Baez can’t seem to follow that order, Your Honor.” When in actuality, it was Ashton taking advantage of two things: one, the order, and two, the fact that Perry was playing along with the game.

  I badly wanted to make a motion to recuse Judge Perry, accusing him of bias, but I feared making it, as I told Casey, because of what he could have done to me.

  At any rate, after I put Richard Eikelenboom on the stand, and Ashton made a big show of his opinions being outside the scope of his report, Judge Perry read me the riot act.

  Judge Perry ruled that my actions were not inadvertent, but willful. Eikelenboom should have been required to comply.

  How was I supposed to force Ashton to depose him, Your Honor? I wanted to shout.

  He refused to allow the witness to testify on the issue dealing with the possibility of DNA analysis on the decompositional fluid in the trunk of the car.

  He also stated that he was going to consider holding me in contempt after the trial.

  That shook me up, but good. What was he going to do to me? I didn’t know. I had never been held in contempt before. He could have fined me. There could have been ramifications with the bar, something I certainly didn’t want to go through. I could even go to jail.

  And what of the public humiliation? I had worked hard to gain a good reputation as a lawyer, one who fights hard for his clients. I didn’t care if the media bashed me because it was in the course of defending my client, but this was different. We had recessed for the day, and I went to see Casey.

  “I have to confess something to you, Casey,” I said to her. “I don’t know if I can defend you anymore. The problem now is that I have to worry about myself more than about you. I’m worried for my family, for my son. It would be unfair for me to be your lawyer because you’re no longer my main focus, and you deserve better than that.”

  Casey began to cry.

  “Please don’t give up on me,” she begged.

  “I’m not,” I said. “But I just can’t believe I’m telling you this.”

  I left her, went up to the bathroom, and I literally got on my knees and prayed for help and strength.

  Cheney, meanwhile, went and spoke to Judge Perry. I walked in on them as Cheney was saying, “This kid is very concerned about his license and his career, and he’s no longer focused on this case. We can’t have this. This has got to stop.”

  Cheney suggested that we quit for the day and all go home to start anew tomorrow.

  “Everyone go home,” said Judge Perry. “I am not holding anyone in contempt.”

  I went back and spoke to Casey.

  “We’re breaking for the day,” I told her, “Everything’s going to be okay.”

  It was a very difficult time for me in the middle of this very difficult trial. The next day the Orlando Sentinel ran a cartoon of Judge Perry bending me over his knee spanking me. I am a lawyer, a father, and a husband. All I was doing was upholding my oath as an officer of the court. No lawyer should be spoken to or humiliated that way. I say this not for myself, because what’s done is done, but for all of my brothers and sisters who fight for the poor, the underclass, and the underprivileged, as well as those who work for the private and endowed. But to those individuals responsible for this fiasco I offer them Plato’s wisdom: It is better to suffer injustice than to do injustice.

  CHAPTER 30

  DESTROYING THE FANTASY

  WE PRESSED ON. As a lawyer, I learned to have a short-term memory, to put the past behind you and look forward. It’s what we did on a daily basis. My whole approach was to fly straight. When we had a good moment, we didn’t rejoice. When we had a bad moment, we didn’t pout.

  After a couple hours of extreme anxiety the previous day, I recovered. I vowed I wasn’t going to let any of this affect my performance. I knew in the next few days the prosecution’s fantasy—its made-up theory of how Caylee died—would be exposed.

  We went after the prosecution’s death-by-chloroform theory first by calling Detective Yuri Melich to testify that the police didn’t find any chloroform anywhere in the Anthony home. He testified they didn’t find any ingredients for making chloroform, didn’t find receipts for buying chloroform, didn’t find any chemistry kits, didn’t find anything in any way, shape, or form in the Anthony home or anywhere else, for that matter, that indicated that Casey had been involved in making chloroform.

  We then called Dr. Arpad Vass’s partner, Dr. Marcus Wise. We didn’t call Vass because he had already testified, and I had gotten what I wanted from him. And he wasn’t a chemist; Wise was.

  Dr. Wise was not happy to be there, and the jury clearly saw he was not being straightforward. When I attempted to get him to admit there were no standard protocols for his test, he kept avoiding the answer. Jeff Ashton did his best to keep him from answering.

  Dr. Wise explained that he had done a qualitative analysis of the chemicals in the trunk but decided not to do a quantitative one because of the nature of chloroform.

  “Chloroform is what is called a volatile chemical,” Wise said. “That means it evaporates easily. If you put a drop of chloroform on a surface, it’s going to begin to evaporate, and over a period of minutes, hours, days, it’s going to decrease.”

  He also said that because he didn’t have a history of the carpet sample, didn’t know the temperature of the trunk, how it varied every day, didn’t know when the material was deposited, how much was there originally—in short, because
there were so many unknowns—it was impossible to determine the amount of chloroform.

  While it took pulling teeth from the guy he finally stated one crucial fact without equivocation: contradicting Vass, who had testified that there had been a “huge” amount of chloroform, Wise finally had to admit there was no way to determine how much chloroform was in the trunk of Casey’s car.

  So much for the state’s theory that Casey used chloroform to drug Caylee.

  We next called Maureen Bottrell, a soil expert from the FBI. She testified that she collected all of Casey’s shoes—about thirty pairs—and tested them to determine whether any of her shoes had soil samples that matched the soil of the recovery site. None did.

  There went state’s theory that Casey dumped Caylee’s body in the woods.

  Madeline Montgomery of the FBI testified that there were no drugs found in Caylee’s hair, and that included Xanax, chloroform, sedatives, or designer drugs. No drugs—period.

  On cross-examination Ashton got her to say that such drugs are volatile and take a while to get into someone’s system, and so the fact they were tested, and the tests came back negative was virtually meaningless.

  I rose and said to her, “So what other meaningless work do you do over at the FBI?”

  “My work is very important,” she replied. “It’s critical. We find evidence in cases.”

  As she did in this case.

  WE CALLED DR. MICHAEL SIGMAN, who conducted the air sample tests. Sigman testified that the chloroform levels were low and that the main chemical in the trunk of Casey’s car was gasoline.

  Then we recalled Michael Rickenbach. If you remember, we tried to show he had conducted other tests during his initial appearance, only to be shut down by Ashton’s objections. Here was my chance to throw it right into their faces—to show the jury what the state was hiding from them.

  Rickenbach testified that he tested not only the trunk for chloroform but also the steering wheel cover, the door handle, and Caylee’s doll, and none of those tests came back positive.

  So much for the state’s theory that Caylee was being knocked out by chloroform on a regular basis so Casey could go out and party.

  We then returned to the issue of the hair—the one hair that supposedly had root banding, indicating there had been a dead body in the trunk.

  We called Karen Lowe, and her testimony was especially impactful. On direct she had testified about the one hair, but this time I was able to ask her about the nine other tests she had conducted—the tests the prosecution wanted to keep from the jury. After making those nine inspections of more than a hundred other hairs, I was able to get her to tell the jury that not a single one of those other hairs had root banding—human decomposition—on them.

  For example, they took Casey’s clothes and took hairs from them, and not one hair had root banding.

  They did vacuum sweepings from the house. None of them had decomposition on them.

  They did vacuum sweepings from Casey’s car. None of them had decomposition on them.

  Everywhere they turned, they tested all these other hairs, and when the tests turned up negative, that increased the probability that the one hair that had root banding had changed not because it came from a dead body but because of environmental conditions in the trunk of Casey’s car.

  Her testimony wasn’t conclusive, but it strongly suggested that the state’s theory that Casey put Caylee in the trunk was weak at best.

  WE THEN WENT AFTER the computer evidence. We called Cindy Anthony. Remember I said I wanted the old Cindy back? I found my opening. I realized how I could get her back.

  I knew in her deposition she had claimed that she had been the one who had made the searches for the chloroform. However, her work records showed her to be at work that day. To get around that, she said she had worked from home that day, but her time records didn’t reflect that.

  I don’t know if she was lying, because you can’t be certain who is behind a computer, but we always felt our strongest argument that Casey had been on the computer was Ricardo Morales’s Myspace posting of “Win her over with Chloroform.”

  This is a perfect opportunity for me to do two things: one, continue to cast reasonable doubt on these searches; and two, get Linda Drane Burdick to attack her best witness, Cindy, I thought to myself.

  And that’s exactly what I did.

  We got Cindy up on the stand, and Cindy testified that she had made the searches for chloroform. She said she was doing research on chlorophyll, because she said she feared her dogs were eating bamboo and were acting lethargic, and by accident chloroform came up.

  Looking back, I have mixed feelings about her testimony. You can certainly say what she was doing was lying to protect Casey, but there were plenty of other occasions when she could have stepped up and helped her a whole lot more.

  I really don’t know. Maybe she really believed she made those searches. Later, of course, it turned out she didn’t. Maybe she was trying to save her daughter, but if she was, she wasn’t doing a very good job of it.

  And that was the big news of the day: Cindy falling on her sword for Casey.

  When Burdick got up to cross-examine Cindy, boy, it was like the good old days, as Cindy and Burdick went back and forth at each other. An angry Cindy was pointing her finger at Burdick, and the two of them once again were doing the Cindy Two-Step.

  I remember sitting back in my chair catching myself smiling at what was going on. I had to stop myself.

  Oh shit, I thought, I’m enjoying this way too much.

  Because up until then Cindy had been the perfect witness. But there came that moment, and it was on. She and Burdick would bump heads, and it was like the good old days.

  And then Burdick did us a big favor. During her cross-examination, she asked her, “Did you run this search on how to make chloroform eighty-four times?

  Cindy danced around the answer.

  Burdick kept on the eighty-four searches. I could have objected as asked and answered, but I didn’t. I wanted to give Linda enough rope to hang herself, and she was doing it over and over again.

  Burdick repeated, “Eighty-four times,” and all Burdick was doing was digging a bigger hole for the prosecution by repeatedly bringing up “eighty-four times.”

  Because with my next witness I was about to blow that theory out of the water.

  We called Sergeant Kevin Stenger of the Orange County Sheriff’s Department Computer Crimes Squad, and I got him to compare two different reports of the Internet histories of the Anthony family computer.

  He testified that the report that he prepared using a program called NetAnalysis, had a problem with the times and dates, but otherwise was accurate. He said that according to his NetAnalysis program on March 21, Myspace was visited eighty-four times, and that there was one search for “How to Make Chloroform.” This fit perfectly with Casey’s explanation that one time she had gone to a chloroform site because her boyfriend at the time, Ricardo Morales, had posted that photo on Myspace that said, “Win her over with Chloroform.”

  To get rid of the notion that Cindy was the one doing the looking, I asked Stenger whether, if you type in chlorophyll, it could happen that chloroform might come up. He said no.

  Stenger testified that the person who looked up the chloroform site during the two searches was on it for exactly three minutes.

  On cross-examine Burdick tried to suggest that Casey might have stayed on the website a lot longer than three minutes, or might have printed out the results.

  On redirect Stenger said that to say she might have stayed on longer was pure speculation.

  “I do not know if that happened,” he said.

  I asked him whether anyone had recovered pages about chloroform that had been printed out and taken in as evidence.

  “No one informed me of that,” he said.

  During Stenger’s testimony, which pretty much blew to smithereens the notion that Casey had visited chloroform sites eighty-four times, Burdi
ck, who had been pushing the theory, was turning red. That wasn’t one of her finest moments, but it certainly was one of ours.

  So much for the state’s theory that Casey had looked up chloroform eighty-four times.

  We left court that day, and it was one of the few days when I said to myself, This evidence was so persuasive, these media folks are going to have no choice but to tell the public what a great session we had blowing a gaping hole in the state’s case.

  But in the media the next day, all they were reporting was Cindy admitting to the searches for chloroform. Not one single reporter mentioned about how we had slammed a forensic issue in the state’s case and made it look like a complete and total fraud.

  My goodness, I said to myself, how could they miss something huge like that?

  And what’s funny is, after the trial I received an email from one of the jurors.

  After asking why the state didn’t check the phone records of anyone but Casey, including Roy Kronk, the juror wrote, “The computer evidence was just the final straw for me. What a joke!”

  And I have to say, this is where having a quality expert makes a huge difference. Larry Daniel was the one who found the discrepancy, and he was nothing short of spectacular in his knowledge of what was on the Anthonys’ computer. He knew it ten times better than the state.

  When the trial was over, John Bradley, the designer of the software used by the state to determine that Casey had made eighty-four searches for chloroform, wrote an article saying that the searches were based on inaccurate data, and that there had only been one search, not the eighty-four searches as the state claimed.

  Not only that, but according to The New York Times, “Mr. Bradley said he immediately alerted a prosecutor, Linda Drane Burdick, and Sgt. Kevin Stenger of the Sheriff’s Office in late June through e-mail and by telephone to tell them of his new findings. Mr. Bradley said he conducted a second analysis after discovering discrepancies that were never brought to his attention by prosecutors or the police.”