Imperfect Justice

by Jeff Ashton

  In the end, though, none of their actions or their complaining could derail what seemed all but inevitable as September came to a close: we were building a murder case against Casey Anthony. In all of our weekly meetings with Melich, following all of the various leads, both useful and not, we were slowly tracking this case to what felt like an inevitable conclusion: Casey had killed her daughter. We didn’t have a body to prove it, but perhaps that too would come with time. Until then we had to focus on what we did have—solid forensics, a well-executed investigation, and a potential defendant who appeared incapable of telling the truth to anyone.

  CHAPTER ELEVEN

  THE GRAND JURY

  As October approached, we had a decision to make. Casey stood charged with child abuse and multiple counts of lying to law enforcement, and she was out of jail on bond awaiting her trial. The trial date for those charges was set for mid-November. The original thinking on the child abuse charge was that by not reporting her daughter missing for a month, she had committed child abuse by neglect. The difficulty for prosecutors was that, unlike defense attorneys, we had to actually believe the theory we were arguing to the jury. Defense attorneys have an obligation to argue their clients’ version of the facts or any alternate version of the facts that benefit their client. Their subjective belief in the truth of the version must be disregarded unless there is clear evidence that perjury has been committed. Prosecutors, however, can proceed only if they have a good-faith belief that the prosecution is warranted and that the material evidence on which it is based is true. None of us could have looked a jury in the eye and effectively argued a conviction for child abuse when we all believed the child in question had been dead thirty-one days, not just missing.

  In addition, there were two other problems to consider, each of which could have a potentially devastating effect on our ability to prosecute Casey if Caylee’s body was ever found. The first was that, in Florida, we have what is referred to as a “speedy trial” rule, which states that when a person is arrested, he or she must be charged and tried within 180 days. That right is waived if the defense delays the case or requests more time to prepare, but the prosecution can’t count on that. If a case is not taken to trial within the required period, you can’t prosecute it even if new evidence is discovered.

  So the first concern we had was whether Casey’s arrest in July had started the clock running on the murder charges. The tricky part was that the rule states that the defendant has to be tried in that period for any related crimes as well. Would the law consider the child abuse charge and the murder charge as related crimes? As with many things in law, the answer was uncertain. There were good arguments on both sides, but if we choose the wrong course, then some appellate court years from now could decide we were wrong and Casey might walk, even if we found Caylee’s body and she was convicted of murder.

  The second issue was double jeopardy. The U.S. constitution prohibits someone from being prosecuted twice for the same offense. Whether child abuse and murder would be considered the same offense was again a question without a clear answer and with potentially devastating consequences if we were wrong. We could convict her of child abuse, find Caylee’s body, and be forever prohibited from prosecuting her for murder.

  While our course of action was open to debate, the one thing we felt certain of was that Casey had had a hand in the death of her daughter. Whether she had deliberately killed her and disposed of her body, which was my personal belief, or had killed her accidentally, maybe with an accidental overdose of chloroform—either way it was first-degree murder. Linda, Frank, and I were comfortable with the evidence we had when it came time to go forward with the murder charges. At this point, the only potential murder weapon that we had was the chloroform. We had lengthy discussions about every possible chloroform scenario—that Casey had chloroformed her daughter on purpose, but only to render her unconscious so that she could party; that she had accidentally administered chloroform and killed Caylee, still a felony murder; or that she had used the chloroform to kill her deliberately.

  The bottom line: We believed she’d killed her daughter, and we couldn’t wait for a body to be found. We had to go with what we had. Here were the facts: We had a young mother who left home with her daughter and from that point on appeared to begin a new life without her. She got a tattoo expressing her feeling that she was living a beautiful life. She lied repeatedly about her daughter’s absence for months and instead of looking for her, went out partying. When she was called out for her lies, she was uncooperative and continued to tell more lies. She blamed her daughter’s disappearance on a babysitter who did not exist. She was offered the opportunity on two occasions (first by Sergeant John Allen in the interview at Universal Studios and later by Cindy Anthony during one of her visits to Casey in jail) to adopt an “accident” account of what had happened to her daughter, and she scoffed at it both times. And of course, she was driving a car that contained a very suspicious odor, along with one of her daughter’s hairs and high levels of chloroform in the trunk.

  AS WE SURVEYED ALL OF this evidence, these last pieces were what we kept coming back to—the physical evidence. The smell in the car, the hair in the trunk, and the presence of chloroform. The odor and the hair alone were bad enough, but there was no reason for the chloroform to be present other than to be used on Caylee. When we combined the presence of chloroform with Casey’s bizarre behavior during those thirty-one days, we couldn’t believe that Caylee’s death had been an accident. As a prosecutor, as a parent, as a person, I couldn’t see how any mother could act the way Casey did if the death had truly been accidental. Each of us on the prosecution had kids. I had raised four to adulthood and had two new little ones at home. Linda had one child of tender years and so did Frank. As we sat around talking, all of us could relate one story or another about the panic that arose from even momentary loss of contact with one of our kids. There was no scenario we could imagine in which a mom could experience the accidental death of her child and then proceed to drive around with the dead body in her trunk, watch a movie, and spend the night with her new boyfriend. Those did not seem like the actions of someone whose daughter had died in a freak and tragic accident. They seemed like the actions of someone who wanted her daughter gone. The reason Casey seemed so happy after Caylee was gone was that she was happy that Caylee was gone.

  From the evidence we had collected thus far, our conclusion was that the child had decomposed in the back of her car, and Casey had attempted to bury the body in her backyard with the shovel she borrowed from a neighbor. The story she’d told was clearly false and, in my opinion, showed an unmistakable consciousness of guilt. Whether it was because of this guilt or something else, she had been prevented from actually burying the body in the backyard, so instead she stashed it in a place where we had yet to find it.

  All of these arguments were presented to the state attorney, Lawson Lamar. It was up to him to decide whether we would proceed with presenting the facts to the grand jury. If we did so, and they chose to indict Casey, we would then prosecute the best case we could. Allowing Casey to escape responsibility for her actions was not an option. Lawson sought the opinion of all of us, both in law enforcement and in the prosecutor’s office. I told him that I was comfortable with the evidence we had and felt he should move ahead and present it to the grand jury. I believe Linda and Frank were of the same opinion.

  The grand jury would consist of nineteen jurors chosen from the same jury pool as trial jurors. Whereas trial jurors usually serve only a few days, grand jury members serve six-month terms, hearing evidence in a variety of murder cases one day a month instead of sitting on one specific trial. The difference between a grand jury hearing and a trial is that the grand jury only has to find probable cause that a crime has been committed to hand down an indictment, whereas at trial, the state has to prove the prosecution’s case beyond a reasonable doubt. At grand jury, only the prosecution presents evidence, and
it is not refuted or challenged by the defense. The common practice is for the prosecutors there to question the witnesses, and, unlike in an actual trial, hearsay is admissible. The grand jurors are free to ask questions as well. When the testimony is completed and the witnesses excused, the grand jurors are invited to question the prosecutors about legal matters. When all questions have been answered, the prosecutors excuse themselves, and the grand jurors deliberate and vote in private. Fifteen of the nineteen jurors must approve the decision to indict.

  Usually the witnesses that appear before a grand jury are police officers and medical examiners. In most cases that is enough. The investigating officer can summarize the testimony provided in the sworn statements of other witnesses that he has gathered during the investigation. A detective can summarize a medical examiner’s testimony, but State Attorney Lawson always seemed to think that grand jurors wanted to hear directly from the examiner. I personally felt that it was important to use the process of grand jury testimony to lock in witnesses who might later succumb to pressure and change their testimony. After all I’d seen and heard in the last couple of months, I felt that George Anthony might be such a witness.

  Over the preceding months, I’d witnessed how conflicted he was by his love for his granddaughter, what the facts said about Casey, and his relationships with his daughter and wife. It was clear to me that Cindy was in complete denial as far as Casey was concerned. I imagined that the pressure on George to adopt Cindy’s denial must have been unrelenting, and while he hadn’t succumbed to the pressure so far, if Caylee’s body were to be found, his will might falter. But it would be much harder for that to happen if we got his testimony locked in during the grand jury hearing.

  I arranged a meeting with him through his attorney, Mark NeJame, a few days before his grand jury appearance. I wanted to meet with George in person, but at the last minute the press made it impossible to do so in secret, so we settled for a telephone conference. We discussed his prior statements to the police and what questions he would most likely face in the grand jury room. He seemed cooperative and cordial.

  Similarly, there was brief consideration of calling Cindy Anthony to testify, but her state of denial by then seemed so entrenched that Linda, Frank, and I feared the prospect of some great emotional outburst, or worse yet, an outright refusal to testify. There was no need or desire on anyone’s part to have a grieving grandmother held in contempt. In the end, we decided it was best to present her testimony through Detective Melich.

  ON OCTOBER 14, 2008, A grand jury was convened to hear testimony in the Anthony investigation. The hearing occurred behind closed doors, in the ceremonial courtroom on the twenty-third floor of the Orange County Courthouse in downtown Orlando. The atmosphere was tense, with members of the media, many of whom I had known for years, angling for any bit of news to report. Unlike the defense team, we had a strict “no comment” policy during the pendency of cases, and this case was no different. While the reporters would ask questions, they always respected our polite “no comment,” and largely left us alone that day.

  The testimony of the witnesses was sealed, as per standard procedure. The media camped outside the courthouse was certainly speculating about the witnesses, making a brouhaha about anybody involved in the case who was coming up the sidewalk. In all, six witnesses entered the grand jury room that day, and what they said in the two-hour proceeding has been kept secret, by law. All the witnesses had been subpoenaed to testify. They were Casey’s father, George; Corporal Yuri Melich; canine handler Jason Forgey; FBI hair analyst Karen Lowe; FBI agent Nick Savage; and computer forensics investigator Sandra Cawn. Each witness was called forth separately to testify in private. While I cannot discuss the proceedings in this case, I can tell you that besides the six witnesses, Linda, Frank, and I were all there for the prosecution team. The state attorney was present and, of course, the courtroom reporter. George Anthony was accompanied by his lawyer. Though Casey was invited to testify without immunity, she declined through counsel. There was no judge involved, only the nineteen grand jurors.

  The grand jury reached its decision within two hours of the hearing’s conclusion, handing down the primary charge of first degree murder and supplementing it with six other charges: aggravated child abuse, aggravated manslaughter of a child, and four counts of providing false information to law enforcement. After getting word of the grand jury’s decision, my boss, State Attorney Lawson Lamar, addressed the press. “The investigation contains intricate forensics that are on the cutting edge of science. We are used to complex forensics, and are ready to manage this evidence at trial.” I appreciated the words of confidence and knew I was already doing everything possible to get my experts in order and be prepared for the trial date.

  Jose Baez had alerted us that Casey would be spending the day at his law office in Kissimmee. In order to waste no time taking Casey into custody, Melich was on his way to Baez’s office the minute the indictment was unsealed. Casey was reported to have been cool, polite, and calm when he arrived to arrest her. This outcome was no surprise; she always seemed to keep her emotions in check. Melich placed her in handcuffs and transported her to the sheriff’s office, where she was read her Miranda rights. Melich later reported that she declined to speak to anyone without her attorney present, but her mood was light and she engaged in chitchat with the officers processing her back into the system. She could have asked the court to have another bond hearing, but for some reason never made clear to us, she opted not to. By that evening, she was back at the Orange County Jail, charged with first-degree murder in the death of her darling two-year-old daughter, Caylee Marie. Whether she was to face the ultimate penalty was an issue to be decided on another day.

  IN SPITE OF THE GRAND jury indictment, Cindy Anthony was still convinced that Caylee was simply missing, not dead. As such, she spent the months of October, November, and December going on TV to say that Caylee was alive and to wonder why the police weren’t looking for her. Now that the indictment was in, our office started preparing for trial. The pretrial date, when you discuss if you are ready for trial, was set for December, abiding by the 180 days speedy trial statute. We figured the defense would try to push the case to trial before Caylee’s body could be found, thereby leaving open the argument that she was alive somewhere, so we had to be prepared for that. Although it would have been a herculean task, we were up for it. I was primarily dealing with requests from the defense about the forensic testing. We assumed that the defense would start taking depositions. They wanted the lab documents from Dr. Vass and the FBI. There was a great deal of litigation about getting the lab information. Many of the labs were out of state, so technically they didn’t have to comply, but everybody was fairly cooperative. The defense also made other requests, many of which seemed overboard to me, such as when Baez requested all the e-mails between the sheriff’s office and Dr. Vass. Technically we were not required to provide these, but in this digital age we had no problem providing it. Baez also wanted law enforcement to compile and copy each and every tip they had received concerning Caylee sightings. We again had no problem with providing that as long as the agency didn’t. The sheriff’s office had to spend time and effort to put together those tips—numbering about five thousand—and as a result, they had the right to expect reimbursement for the copying costs.

  There was one particularly ridiculous hearing where Baez complained that the sheriff’s office was not filtering the tips that were being provided to the defense, and he accused them of giving him the worthless ones first—as if anyone had time to sort them that way. When the tips were all collected and Baez was informed that they were ready for pickup, he balked, claiming that Casey didn’t have the money to pay for them. We suspected this wasn’t true, since there were rumors floating about that Casey had sold videos and photographs of her daughter to ABC News for $200,000. But regardless of the money situation, the whole exercise just felt like an unnecessary waste of time, which it
almost certainly was.

  It wasn’t just the defense’s requests that appeared outrageous. In general I found their continued presence in the media to be questionable. Baez was on TV all the time, giving his opinions, making statements, all arguably inappropriate under the rules of the Florida Bar. On November 7 I filed a motion to have the court prohibit the defense attorneys from making comments to the media. I thought Baez was potentially tainting the jury pool, which was a concern that Baez himself claimed to have. I even went so far as to extend the gag order request to all parties involved in the case, including the sheriff’s office and the Anthony family. Not surprisingly, the motion was opposed by Baez. In the end, he must have been more concerned about continuing his media appearances than about getting the untainted jury pool he said he wanted. Of course the media opposed us on this as well. The motion was denied.

  While we were battling Baez on just about every little thing, there was another issue that we had to address internally at the prosecutor’s office: whether to seek the death penalty against Casey. Every defendant charged with first degree murder technically faces the possibility of the death penalty, though few actually meet the eligibility requirements in the statute. These requirements are based upon factors about the crime, the victim, and the offender’s prior record. Although the statute does not mandate it, most state attorneys try to inform the court as early as possible if their case obviously does not meet any of these criteria. In some cases the determination is clear-cut because none of the criteria is met. In others, though some of the criteria may be met, we know from experience and research that the death penalty will not fly, either because juries never give it under those circumstances or because the courts have decided in similar cases that the facts aren’t sufficiently egregious.