by Jose Baez
“It’s not a two-sided affair,” I said. “The state has the only burden here.”
I told the jury we had put on evidence and testimony, but that we weren’t required to do so.
“We could have sat back, not questioned one single witness, and done absolutely nothing throughout the course of this trial, and the prosecution still had the burden to prove every element and every charge.”
I then told the jury, after talking about my biggest fear, I would outline the state’s case piece by piece, and then talk about the defense’s case, “even though we weren’t required to do anything.”
“Let me start with my biggest fear,” I said. “This case deals with so much emotion. I know there were times where every single person here felt something deep inside.” I talked about the guidance the law gives them when it comes to their emotions.
I then showed them a huge exhibit of the Florida Rules for Deliberation, which read in part, “This case must not be decided for or against anyone because you feel sorry for anyone, or are angry at anyone.” And then I added, “and that’s because we want you to base your verdict on the evidence, not on emotion. And it’s my biggest fear because it’s such a difficult thing for you to push aside. Caylee Anthony was a beautiful, sweet, innocent child who died too soon. But to parade her up here to invoke your emotions would be improper.”
“It’s improper under the law, and it’s improper to the rules of your deliberation. And I submit to you, that is the way the state presented its case.”
“They started with—let me start with Mr. Ashton’s remarks to you today.”
“Mr. Ashton started out showing you a video of little Caylee, started talking to you about parenting, about what a mother should or should not do. He went on for a great length of time talking about this beautiful child. They gave you two weeks of testimony that was completely irrelevant and served only one purpose, and that was to paint Casey Anthony as a slut, as a party girl, as a girl who lies, and that has absolutely nothing to do with how Caylee died. And you would dishonor the law, and even Caylee’s memory, if you were to base your decision on anything but the evidence—to use emotion to get you angry is improper.”
There’s a backstory behind Ashton using that video of Casey and Caylee to begin their case. I also had possession of that video, and before I gave my closing arguments, Dorothy told me I should play it.
“You have to show the jury how much these two loved each other,” she said. “It’s important.”
“That’s come out already in the testimony,” I said. “What that’s doing is playing on the jury’s emotions, and I’ve been arguing from the very beginning that the prosecutor is the one playing on their emotions, so I can’t do that.”
“But this is too good a video not to play it,” she said.
“Sorry, Dorothy,” I said, “I just don’t think it’s the right thing to do. And I won’t do it.”
Lo and behold, Ashton got up to give his closing argument, and starts it by playing that same video!
I leaned over to Dorothy and said, “I told you he was on our side.”
“Though the state called a string of witnesses to testify to Casey’s bad behavior, what’s interesting is that everyone the state called kept coming back with the same thing: Casey was a good mother. Caylee loved Casey. I asked many questions as to how Caylee reacted to Casey because I thought it important that you understand that a child cannot fake this. A child cannot fake love. A child knows when someone is loved. It behaves a certain way. And I did this not to appeal to your emotion. It was especially directed at the child abuse charges.”
“You didn’t hear one single instance having anything to do with child abuse. Not one. Ask yourself, when did someone get on this stand and tell me or demonstrate to me in any way that Caylee was abused?” I could literally see jurors number three and ten nodding their heads.
“Child abuse cases are sad. They’re one of the most horrible crimes imaginable. One thing is for certain. If there’s an abused child, people know about it. People see bruises. People see different things about the child. There will be broken bones. But there was nothing other than the fact that this child was loved and well taken care of.”
The implication was clear. In discussing what happened to Caylee, the jurors would have to rely on the evidence.
“What was put before you? I agree with one statement that Mr. Ashton said, and that is you can’t speculate. Don’t speculate. Don’t guess. If you don’t know what happened, it wasn’t proven. There are no mysteries to solve here.”
This statement was directed to juror number one based on a conversation that she and I had during jury selection. I was reinforcing it, and when you do that you’ll have no greater ally in the deliberation room than someone who has been educated on the law.
I concluded, “If you have questions, then it was not proven. And that’s as simple as it goes.”
WHEN I BEGAN MY CLOSING ARGUMENTS, Ashton sat in his chair laughing, and grimacing, and making faces. It was something he did during my opening statement to the jury. Three or four times during the trial I brought it to Judge Perry’s attention at sidebar, and each time he dismissed my concerns about it.
We had a break, and I could see he was still doing it, so when we came back into court the very first thing I said to Judge Perry was, “Your Honor, I want to point out that Mr. Ashton continues to make faces and he is laughing during my closing arguments.”
“I haven’t seen him making any faces,” was Judge Perry’s response.
He was apparently blocked from seeing Ashton by the exhibits I had brought for my closing.
He’s going to let him get away with it, I told myself.
I resumed my closing arguments and was on a roll, talking about George’s connection to the duct tape and the gas cans, and out of the corner of my eye I could see the laughter coming from Ashton. He was acting so inappropriately that I didn’t miss a beat when instinctively, reflexively, I pointed to him and said, “It doesn’t matter who’s asking the questions, whether it’s this laughing guy right here …”
Ashton jumped up and objected, and we went sidebar.
I was done with him.
This is not the way a trial should be run, I felt. I was disgusted with the whole process and ready to accept responsibility for my actions.
This is not justice, I told myself.
At sidebar Judge Perry could not have been more upset with me, and after sending out the jury for fifteen minutes, he laid into me.
“Tell me why I shouldn’t hold you in contempt of court for violation of this court’s order about not making disparaging personal remarks against counsel,” he said.
“I don’t believe that was a disparaging remark about counsel. I was just merely pointing out his behavior.”
He said I should approach the bench, and when I did, he said he could not see Ashton because of the exhibits.
“If you would move those signs where I can see Mr. Ashton, then I would be able to see him.”
“Sir, would you like me to move a seat over?” Ashton asked in his most unctuous way.
“Yeah,” said the judge.
I hadn’t gotten a lot of words out, when one of the court administrators told him, “It’s on TV, and you can see Ashton laughing.”
Judge Perry went into his back room and watched the video of Ashton carrying on. When he came back his anger was directed at Ashton.
He told everyone, “Go look at it, and I’m going to do what I need to do.”
“Your honor,” said Ashton, sucking up as only he could, “I trust your judgment about whatever it is you saw, and I don’t need to see it.” He went anyway.
He told us to go back and look at the video if we wanted to. We did, and there he was, laughing like he was at a comedy club, rather than a murder trial of a baby.
When we came back, Ashton told the judge, “Your honor, as I viewed the video, I appear to be smiling behind my hand. I wasn’t laughing. I wasn’t n
odding. I was doing what I could to make sure that my expression was not seen by the jury. If I exceeded the court’s order, I apologize.”
I could see Judge Perry was about to do something—I didn’t know whether he was going to hold Ashton in contempt or not—or hold me in contempt for that matter—but I knew he was about to crack the whip and do something extremely harsh. I stepped up and said to him, “I would not request that Mr. Ashton be held in contempt because of his facial expressions. This case has been highly emotional for both sides, and all I really request is that it stop.”
When I did that, Judge Perry calmed down, and he let us off with a warning.
That day Kerry Sanders, a correspondent for NBC, called me and said, “What you did was a very gentlemanly thing to do. It was a class act.”
I thanked him, but at the end of the day when I look back, I did that as much to save my own hide as Ashton’s. I knew once he was done holding Ashton in contempt, he was going to do the same to me. I didn’t think for a second he would have disciplined just Ashton alone.
Some people say I won the case right then and there, or at least it was one reason the jury voted the way it did, but that’s nonsense. At the same time Ashton didn’t do himself any favors by acting that way.
As I said, he was always on our side.
I NOTED THAT THE PROSECUTION spared no expense hiring the finest crime labs in the country, but with all its resources, it had to create new areas of forensic science. I said that for the first time ever, a jury heard about air evidence. For the first time, they heard about hair banding, and they were the first to hear about a dog trainer testifying about his dog.
“You’re the first ones to ever hear any of these types of evidence,” I said. “That’s what I told you from the very beginning, that this prosecution would raise the level of desperation to make up for their lack of evidence.”
“I told you at the very beginning this was an accident that snowballed out of control, and while it was a very common accident, what made it unique is not what happened but who it happened to.”
I said the jurors sat and watched some bizarre things during the trial, “bizarre things that have been going on long before Caylee was ever born and throughout her early life. You saw all of these things.”
“There’s something wrong here. There’s something not right,” and I told the jury that was what made Casey’s behavior after Caylee’s death irrelevant. I reiterated: “It’s irrelevant to the number one question that you all came to answer: How did Caylee die?”
THE NEXT TOPIC of my closing was to let the jury know that there was not one single strand of real evidence to the state’s case.
Since it was Casey’s car, one thing the prosecution did was try to show Casey had put Caylee’s body in her car, drove to the woods, and dumped her there. There’s only one problem with that theory: even though the prosecution rounded up a posse of scientists, and even though it made up theories in a desperate attempt to show there was a body decomposing in the car, there was no evidence of that.
The prosecutors brought up a stain of decomposition in the trunk, when no stains existed. They kept bringing up how the smell in the trunk reeked of decomposition, when at the end of the day all their scientists turned out to be full of it. The trunk smelled of garbage, not decomposition, it turned out.
They needed to tie the duct tape found near Caylee’s body to Casey, and so when a gas can was found with some of the same duct tape on it, they trumpeted that Casey had used the gas can, and therefore she had been the one to put the duct tape on Caylee. But it turned out there was no DNA on the duct tape found near Caylee and no fingerprints. The theory also turned out to be made up by the cops and the prosecution.
I asked the jury, “Why were there so many lies surrounding the gas cans and the duct tape? It’s not a coincidence.”
Then there was the sense that the police did everything they could to make sure the finger was never pointed at George.
When George went to pick up Casey’s car at the lot, he not only brought his keys, but he also brought a full can of gas, because Casey had told him the car had run out of gas. He told the tow lot manager that the car had been at the Amscot lot for three days. How did George know that? Because Casey told him when it ran out of gas, and he knew. And he smelled the smell you never forget, and he did what every responsible parent would do when his daughter and granddaughter were missing.
Nothing.
He went home and went to work.
I talked about the great lengths the police went to to make sure Casey was convicted. A dog who was inconsistent at identifying the smell of dead bodies alerted to Casey’s car. The next day the dog came back and smelled—nothing. And not only that, when a dog did a test like that, he was supposed to choose among three different cars, but he only smelled one car. When asked about it, the dog handler testified that the dog had chosen between two cars, yet everyone else’s testimony impeached him. Why? Because even though there turned out to be no evidence that a body had ever been in that car, the cops wanted you to think there was.
Was there the smell of death in the car? George certainly pointed it out that first night, but then Catherine Sanchez, the manager of the Amscot, said she smelled garbage. Casey’s boyfriend, Tony, who rode in the car, didn’t smell anything. Charity Beasley, who picked up the car and took it to the tow yard, didn’t smell anything. Maria Kish also rode in the car and didn’t smell anything. Sergeant Reginald Hosey smelled something. Did he call the crime scene investigators? No. There was trash in the car for three weeks.
Deputy Ryan Eberlin didn’t smell anything. Detective Yuri Melich? Didn’t smell anything. Corporal Rendon Fletcher? He walked right by the car while the trunk was open.
But once Casey was arrested, everyone smelled death in that car.
Is there reasonable doubt about the smell in the car?
I told the jurors to decide that for themselves.
Then there was the day Casey borrowed a shovel from her neighbor for forty minutes, and therefore the state’s conclusion was that she was burying Caylee in the backyard in broad daylight. What she was doing was trying to break the lock on the garage to find some gas for her car. But to the state, her borrowing that shovel was cause for it to trumpet she was digging a hole. But when she brought the shovel back, the neighbor testified, she wasn’t sweaty. When the shovel was inspected by the FBI, no DNA or any other evidence was found on it.
Is that reasonable?
What was the state doing here? They were speculating. That’s not the law, but that’s what they wanted the jury to do.
To win, I speculated that the police may have consciously altered and destroyed evidence. Take the trash. It was our alternate theory to their contention that the smell came from a dead body. How did they try to get rid of our contention? They dried the garbage so that it didn’t smell any more.
“How can this create a smell?” the prosecution asked.
Well, it sure smelled when it was garbage—before the police altered it so it wouldn’t smell.
I then talked about what I liked to call the state’s fantasy of forensics. If I have made a mark in trying this case, that expression will live forever in legal history. I didn’t use it to make a name for myself. I used it because it was true. The state’s case was a mixture of invented evidence and science fiction.
Early on, the cops leaked that there was blood in the trunk of Casey’s car. There was a stain from human decomposition. They said there were maggots in the car, and that was proof of human decomposition.
None of it was true, but all this “evidence” was spread through the media to trial fans throughout the country. The anger against Casey grew because she was a woman who killed her daughter in order to go out and party, a series of charges of which NONE WERE TRUE.
But here’s what the state hoped: if the jury was angry enough at Casey, if its emotions were riled up, if it stared hard enough and long enough, it just might see a stain in the back of
that car.
That’s not evidence. Evidence would be a DNA report. It was a phantom stain. It’s there—you just can’t see it.
The state’s case was nothing but desperation.
Dr. Neal Haskell and Dr. Tim Huntington talked about the bugs in the trunk of the car. Or should I say bugs in the trash bag? The insect the state found is commonly found in garbage. Since the state had no DNA evidence or any blood, it instead gave us speculation: if the police found maggots, there must have been a dead body.
Anger and emotion: that’s what the state wanted to fill in the gaps with.
Why were there allegations that there was a body in the trunk?
It’s to make up for a lack of evidence. To keep the jury guessing. To have it take that leap of faith into a place where it should not and could not go under the law.
Next the prosecutors talked about the hair. Or rather one hair. And they said it had post-mortem root banding, proof that the one hair came from a dead Caylee, hence Caylee’s body was in the trunk of the car.
But it turned out that the science was unable to determine whether the hair came from a dead body or from a hair that was discolored from spending a long time in the trunk while it was being subjected to chemicals and heat.
One thing we did know: they were talking about one hair. They had taken hair from the trunk, hair from the trash bag, hair from her home—they went crazy trying to find more hairs so they could say the hair came from a dead body. And they found hundreds more hairs, but not one more with post-mortem root banding.
What are they doing here? Let’s throw it all against the wall and see what sticks, right down to the cause of death. One week it was chloroform. Later it’s duct tape. Let’s make up our minds.
Then we get to the chloroform. When I first heard chloroform mentioned in this case, I thought it was a joke. This issue came up because of Dr. Arpad Vass. He testified that the levels of chloroform were “shockingly high.” But all he performed was a qualitative analysis, not a quantitative one. He had no idea what the levels were. But what did he say? He said the levels were “unusually high.” And it was spread to the world by the media like a radioactive cloud from an atomic bomb. Casey had killed her daughter using chloroform.