Imperfect Justice

by Jeff Ashton

  A couple of months earlier, our decision not to seek the death penalty had been based largely on the fact that we did not have a body and didn’t know exactly how Caylee had died. The discovery changed our decision on every level. A lot has been said about the decision to seek the death penalty, both before and after the trial. The death penalty is a visceral issue, and oftentimes it may feel as if the decision to seek the death penalty is made viscerally. Nothing could be further from the truth, no matter how horrific the crime. There are always arguments on both sides, but in the end the decision is always reached after we’ve weighed every aspect of the case. Such was the case with our eventual decision to pursue the death penalty against Casey Anthony.

  In terms of the discussions that went into making this decision, the story behind those belongs to State Attorney Lawson Lamar. Lawson made the final decision and as such it was his to reveal as he saw fit. The questions he asked during our discussions and the answers we gave are kept in confidence. At the end of the day, only he knows why he made the decision that he did. I do, however, think I can help the public understand how the decision was reached by sharing my thought process.

  First, consider the law. By Florida law, the death penalty is a possible sentence for any first-degree murder. But before the penalty can be imposed, certain additional factors must be present, and these were the factors that we considered when first making the death penalty decision prior to finding the remains. These factors are called “aggravating circumstances.” They are very specific and precisely laid out in Florida’s death penalty statute. Some circumstances depend upon facts about the victim: was she a young child, elderly and infirm, or a police officer or government official? Some deal with the issue of why the crime was committed: was it for financial gain, to eliminate a witness, or to disrupt the functioning of government? Some relate to how the crime was committed: was it committed during another felony, was it coldly planned in advance, was it torturous and cruel, involving conscious suffering by the victim? The last group of circumstances looks at the defendant’s criminal record: was the defendant ever in prison, on probation, or does he or she have a past history of conviction for violent crimes?

  There are certain cases in which, while the defendant may be guilty of first-degree murder, none of the aggravating circumstances are present. The death penalty can never be applied to these people. There are other defendants whose cases are so horrendous that the death penalty must always be an option. For those in the middle of the spectrum, it is not merely the existence of the aggravating circumstances that must be considered, but the weight of them.

  Over the decades, our courts have refined both the definitions of the aggravating circumstances and the concept of weighing. They teach us that not all aggravating circumstances are given the same weight. For example, if a murder is committed during the commission of another felony, as in the course of a robbery, it is weighted far less heavily than a contract killing, coldly planned and executed. While it may seem odd to use such subjective criteria in the context of a legal determination that could result in a guilty person losing his or her life, it is the process mandated by the statute.

  In addition, when deciding if going after the death penalty is appropriate, there is a vital linguistic distinction to be made. The media likes to use the phrase “the state is seeking the death penalty.” When making the decision about whether to pursue the death penalty, the prosecution sometimes adopts a similar shorthand. More properly put, what we do is decide that the jurors should be allowed to consider the death penalty as an option based upon their individual interpretations of the facts. In other words, we say, “This case merits giving the jury the option of a death sentence.” That distinction is particularly important in this case. None of us presumed to decide what Casey’s fate should be. I have had cases in the past that were so egregious that I felt justice could be served only by a sentence of death, but I did not feel that way here. The real question for us was whether we should decide her fate, or allow a jury to make that determination. For that assessment, we must look to the facts.

  It was against the backdrop of this body of law that we analyzed Casey’s case. So what could a juror take from these facts? First, as to the category dealing with the victim, it seemed clear to us that Caylee was a child who’d been killed by her mother. That alone was an aggravating circumstance all by itself, but according to my interpretation of the case law, it was unlikely to be of sufficient weight to sustain the death penalty. I know many may be shocked by that comment, but in weighing the factors, we look to how common that type of crime is and how it is generally treated, a process the court refers to as “proportionality.” Regrettably, infanticide is not that rare, and as such, it almost never results in the death penalty. So while that factor is entitled to some weight, it is not sufficient by itself. This was why we’d been unable to seek the death penalty prior to the discovery of the remains.

  The new information we had to take into account concerned the remains and the condition in which they were found. I believed that if a juror saw in those photographs what I saw—three pieces of duct tape covering the nose and mouth of a two-and-a-half-year-old child—he or she would conclude that little Caylee was suffocated. “Suffocation while conscious” is considered by the court an unnecessarily torturous way to die. The physical pain and fear involved is unimaginable, and for a small child, unthinkable. So, if the jury were to believe that Caylee died by suffocation while she was conscious, then there would be two aggravating circumstances present, which would be in line with other death penalty cases the court had addressed in the past.

  Of course, if the jury were to find that Caylee was unconscious at the time the tape was applied, then the “torture” aggravator would not apply. But why would she be unconscious? There were no skull fractures, so there was no evidence that she was rendered unconscious by blows to the head. How about the chloroform? The chemical element had been found in the trunk of the car and the word “chloroform” in Casey’s hard drive searches. Yes, a jury could conclude that Casey knocked her out with chloroform and then applied the tape to humanely dispatch her daughter. If so, then the “torture” aggravator also would not apply, but the cold planning and premeditation could. So either way, we would be back to two aggravating circumstances and sufficient weight to justify death, if the jury should so choose.

  Having determined the existence of aggravation, we must then look to mitigation, which generally examines the defendant’s past: any mental health history or any surrounding context for the reason or the manner in which the crime was committed. To this point, we have still been given nothing to indicate that Casey suffered from any mental illness or personality disorders, other than appearing a bit of a psychopathic narcissist (just my opinion—not a professional diagnosis). So none of the mental illness mitigating factors applied. If the defendant has no criminal conduct in the past, this also would be considered mitigating, but since Casey had stolen money from her mother, her grandmother, and her friend Amy, that behavior ruled out “no prior criminal behavior.”

  Mitigation can also come from general factors in one’s background, such as childhood deprivations or abuse. These are common family histories put forth as mitigating circumstances, but Casey’s early interviews with the psychologists ruled those out. From all available evidence, not to mention Casey’s own words to that point, she appeared to have been raised in a loving middle-class home, experienced no abuse of any kind, and been given every opportunity in life that her parents could manage to supply. I am sure the defense would dispute this, they always do. But it appeared to us that there was no obvious mitigation. Once that analysis was complete, it was clear that the death penalty would have been lawful under a view of the evidence that the jury could reasonably have taken.

  Aside from the legal issues, there are practical issues to consider as well. A case in which the death penalty is sought involves a substantial expenditure of public resour
ces, so my feeling has always been that, as with any other prosecution decision, the cost must be weighed. Any lawyer must consider the cost to his client of pursuing a course of action versus the potential for success. I believe all public officials who have the power to spend the public’s money should take into account how much it is going to cost the taxpayers. However, it cannot be the driving force in any decision. Justice doesn’t have a price. The two must be balanced.

  Casey Anthony’s case was a tough one for me to balance. On the one hand, the death penalty had been considered by juries in three cases that involved the murders of children by caretakers in my thirty years in the office. But all the defendants had been men, with prior criminal records. The jury voted for life in all three of those cases. The juries in our circuit have never given death to a caregiver who had killed a child. On the other hand, none of the caregiver defendants had planned and premeditated a murder, as we were intending to claim in the death of Caylee. While there had been other cases where mothers had planned and carried out the murders of their children, the mothers always presented pretty clear evidence of psychological and emotional problems, which were not present with Casey.

  The most frustrating part of the analysis was that in reality, the issue that would most probably be in the minds of the jurors would be the very one they should not be considering: that Casey was an attractive, middle-class Caucasian girl. I believe you must always do a gut check in a decision of this kind and ask yourself, “Would my decision be different if the defendant were X and not Y?”

  How would the jury view this if Casey were a father and not a mother? How about if she were African-American or Hispanic? What if she were poor or extremely wealthy? In the end, I concluded that under any circumstance, the death penalty could be lawfully sought in good faith. But based upon my experience, the odds of the jury actually voting to recommend it were exceedingly small. Ultimately, the decision of the state attorney was to go forward and let the jury decide. Since I was convinced we were on solid legal footing, and we were going forward in good faith, I was ready to proceed.

  Ever since that decision was made and certainly in the aftermath of the trial, some second-guessers have claimed that Lawson should not have reintroduced the death penalty to the case, saying that its potential put a cloud over this case that might have impacted the outcome. To me, that position is more about people trying desperately to find something to say we did wrong, and I think it’s highly unfair to Lawson. This jury had plenty of options that would have assured Casey’s punishment short of death. First, they were told time and again that it would be their recommendation that would control her fate in the end. They were also given multiple options for lesser penalties, including offenses that could never have involved death. As a result, I have no difficulty in expressing my opinion that nothing in this case would have been different if death had not been an option.

  At the same time, I’ve spent the last two and half years debating the issue of the death penalty in this case, and despite the multitude of reasons that I felt that a jury could have given the death penalty, I always came back to the reality that they never actually would. Lawson’s decision was to allow the jury to decide, and I respect him for making it. Personally, I think I would have been happier if the death penalty had not been reintroduced into the case, even though on some level I think Casey may have deserved it. Simply put, I just didn’t think the jury would go there. Later on, when we were picking the jury, I chose to keep a juror I liked, even though he was opposed to the death penalty. At that time, I remember saying to Frank, “it isn’t going to matter, because she is not going to get it anyway.”

  SOME MONTHS AFTER THE DECISION was made, the defense challenged our legal basis for seeking the death penalty. The law is clear in Florida that absent a showing of “bad faith” on the part of the prosecution, the court may not second-guess the decision to proceed. Bad faith is defined in such a way that it is virtually impossible to prove, absent a blatant statement by the prosecutor showing that he or she is proceeding based solely upon racial or other unconstitutional considerations. We responded to the defense’s challenge by citing the legal precedents on the issue, which prohibited the judge from forcing us to defend our decision.

  Leading up to that challenge, the defense had been hitting us pretty hard in their statements to the media on this issue. We had made an officewide decision not to comment during the pendency of the case, because we felt that silence was our obligation under the rules of ethics. However, I suggested to Linda that if they wanted to know why we were seeking death, I would give them the reasons in open court. And I was looking forward to it.

  I spent a great deal of time drafting what I wanted to say. I wanted to make sure that my comments respected the presumption of innocence, but I still laid it out so that it would be understood in clear and certain terms why we felt the death penalty was a warranted option. I prefaced these comments with the caveat reminding all who would hear me that the defendant was presumed innocent.

  “Caylee was almost three when she died with duct tape over her nose and her mouth,” I began. “Any child of that age should have had the physical ability to remove the duct tape covering her airway and preventing her from breathing, and the evidence in this case would show that Caylee was, if not average, above average in that regard. A juror might conclude, then, that she must have been restrained, either chemically or physically. If chemically restrained, her killer prepared some substance in advance that would render her physically unable to resist, administered the substance and awaited its effect, and then methodically applied three pieces of duct tape to completely cut off the flow of air through her mouth or her nose and let nature take its course.

  “At least Caylee wouldn’t have had any fear,” I continued. “How would the jurors apply those facts to the law that the court would give them? If she was physically restrained, her killer would have to restrain her arms by some means, applying tape while she was conscious as her killer looked into her face. Maybe her killer even saw her eyes as the tape was applied.

  “First, one piece; then two; then three, so that no breath was possible. Could Caylee have understood what was happening to her? Did she try to resist? Could her killer see the fear in her eyes as the tape was applied?

  “These are questions only the jurors will be able to answer in this case. One thing we do know is this: If we have gotten to this stage, those same jurors have already decided that the face that Caylee Anthony saw in those final moments of her life was her mother’s face. Anyone who contends that no juror could find that these conclusions call for a sentence of death is only fooling himself.”

  As I was reading these remarks, the courtroom was silent as a tomb; all I could hear were movements at the defense table. Casey was in the courtroom when I read my remarks, but I was looking directly at Judge Strickland. I was told by observers that she had a dramatic reaction to my comments, so I reviewed the video of the hearing later. At the beginning of my statement and through the portion where I referenced someone administering the chemical substance, Casey looked angry. Her jaw locked in a scowl. Jose then leaned over and rather forcefully whispered something to her. Within five seconds, her demeanor changed. She began to shake her head no and cried, then continued crying for the remainder of my remarks.

  In my opinion, for those first few minutes we saw the real Casey Anthony, the one who was angry with me for telling the truth. The transformation from that Casey Anthony to the crying, grieving mother was amazing to me, but it didn’t compare to the performances we would see in the years to come.

  CHAPTER FIFTEEN

  LYING TO THEMSELVES

  While Caylee’s remains impacted everyone involved with the case in different ways, no one was more upset than George and Cindy Anthony. The find confirmed all their worst fears: their precious granddaughter was not missing, she was dead, and making matters worse, now more than ever before the finger appeared to
point to Casey.

  It didn’t take long for us on the prosecution to begin speculating about how George and Cindy would react to the news. For so long, everything about their public personas had been singularly devoted to the idea that Caylee was alive. Now that everyone knew for sure that she was dead, none of us could say how that would change George and Cindy’s attitude toward their daughter. Our hope was that they would suddenly wake up to the reality of the situation and choose Caylee over Casey. Of course that was a pretty small hope.

  While law enforcement was searching their home on December 11, Cindy and George had just stepped off a plane from Los Angeles where they’d been guests on Larry King Live the previous evening. They’d used the appearance to proclaim that Caylee was still alive and to criticize investigators for persecuting Casey. When they landed, they were whisked away to the Ritz Carlton Hotel in Orlando, which was paid for by an unknown benefactor. While searchers with warrants combed through their home for evidence, they joined Jose Baez and a few other supportive people for dinner at the hotel restaurant. The search proceeded smoothly.

  Our first indication that little in their attitude was going to change occurred when the searchers returned to their house on December 20, and the Anthonys were borderline hostile. They were annoyed at the mess and chaos the prior search had caused, but more importantly, they seemed angry that now Casey was the only suspect. As far as they were concerned, yes, Caylee was dead, but their daughter didn’t do it. The search had brought the investigation to their doorstep, but they were still of the opinion that a stranger had killed their precious angel.