Imperfect Justice

by Jeff Ashton

  Most of all, though, he was experienced and pragmatic. When he first got involved, I think he wanted to ride in on his white horse and resurrect this failing defense. We always hoped the addition of a new, reputable attorney would class up the defense team’s tactics. Unfortunately, we would find in the weeks and months ahead that instead of Cheney raising Baez to his level of professionalism, Baez seemed to bring Cheney down to his.

  The first time I saw Mason in court with Lyon, I knew they were oil and water. Mason was an old Southerner type who seemed fine with women in certain roles, like being protégés, but seemed to have trouble with women who were his professional equals. He showed that side in his dealings with Linda once, not a mistake you want to make twice. Lyon, meanwhile, was a big-city lawyer who could give as well as she took. Big city versus old country, we on the prosecution team knew this would be fun to watch. He would say disrespectful things to us about motions Andrea had filed, such as how ridiculous they were. You could tell they would never get along. As predicted, Lyon would leave the case as soon as the death penalty motion was argued, citing cost issues.

  Ann Finnell entered the case in September 2010. Ann was a very experienced capital litigator, much like Andrea Lyon, only less abrasive. I actually liked working with Ann, though I am sure she was not happy to be working on Baez’s team. There were a number of occasions when she would lament to me privately about what an insane situation this was, referring to the lack of coherent management in the defense team and how she regretted getting involved.

  The last to enter was Dorothy Sims, a civil lawyer from Ocala. She was touted as an expert in cross-examination of medical experts. During trial, however, she was relegated to the role of hand-holder and gal Friday. I thought Baez and Mason treated her very disrespectfully.

  Ultimately, this defense team was not Kumbaya. It was all about who could survive in what was undoubtedly a difficult atmosphere, one in which Baez would perpetually govern every decision. When the dust settled there were four left standing, the four that would be our opposition for the trial: Baez, Mason, Finnell, and Sims.

  CHAPTER SEVENTEEN

  ORDER IN THE COURT

  Shortly after Cheney Mason officially joined the case in the spring of 2010, the defense filed a motion to disqualify Judge Stan Strickland. Their reason for the recusal was that a blogger named Dave Knechel, known online as Marinade Dave, had engaged in conversations with Strickland about the Anthony case. The defense found that this showed a bias and said the judge should withdraw. They also accused Judge Strickland of being a publicity hound, which, in my opinion, was an accusation more applicable to them. It was not lost on Judge Strickland that the defense filed its motion at 4:48 P.M. on a Friday, just as it had done with the Kronk blindside. As we had seen before, no one from the Anthony defense team provided him with a copy, so he learned about it on the news. This was Baez’s MO.

  In his response to the allegations, Judge Strickland said that the accusation that he was biased in favor of the prosecution “must serve as a source of bemusement” to Linda, Frank, and me. “Each of whom has verbally sparred with the court many times. . . .”

  Ultimately, Judge Strickland did recuse himself, as he should have, given the circumstances. In his order, he said, “At its core, defense counsel’s motion accuses the undersigned of being a ‘self-aggrandizing media hound.’ Indeed, the irony is rich.” On that, we agreed.

  The fact that Baez and Mason had Judge Strickland removed from the case only to be replaced by Judge Belvin Perry was the stupidest move anybody in the Florida legal community had ever heard of. I loved the news.

  For a while I had been frustrated that Judge Strickland wasn’t doing enough to rein in Baez. Jose would take any opportunity to use a hearing as a forum to bash the sheriff’s office or us. I knew that Mason wasn’t going to be any better. Judge Strickland’s style was laid-back and hands-off, which would be fine for most cases, but I was having nightmares thinking about what a circus the real hearings and trial would devolve into with Jose and Cheney in the ring.

  I confess that I am a fighter. It’s one of my faults and one of my strengths. If the judge wasn’t going to control the defense, I knew the task would fall to me, which meant a free-for-all with everybody’s gloves off. I wasn’t going to let Baez or Mason own the courtroom. It is not in my character to take punches. During one venting session with Linda, I commented, “Can you imagine what this would be like if Belvin Perry was the judge?” Wishful thinking at the time. Little did I know I’d actually get my wish.

  When Judge Strickland recused himself, Judge Perry, the chief judge of the Ninth Judicial Circuit, had the power to assign a new judge. He picked himself. It amazed us that Mason would have Judge Strickland recuse himself without the foresight that he was going to end up with Belvin Perry, a much stricter, letter-of-the-law kind of judge. Judge Perry and I had done many high-profile cases together over the years and I had always found him to be extremely fair and knowledgeable about the law. Furthermore, he loved complex, high-profile death penalty cases. Even as chief judge, he had continued to take those cases when the opportunity arose. It seemed like a no-brainer that he would assign himself to this. Linda, Frank, and I were delighted.

  Some people go into law because they love law, and Judge Perry is one of those people. He lives and breathes law with every case he hears. In 1977 he got his Juris Doctorate degree from Thurgood Marshall School of Law at Texas Southern University. After, he became an assistant state attorney for the Ninth Judicial Circuit Court of Florida. He was elected a circuit court judge in 1989 and chief judge in 1995, and again in 2001. His father was one of Orlando’s first African-American policemen.

  Judge Perry is a big man for standing only five foot two. He is a huge presence, and it always surprises me how controlled he is, even when he is exasperated—Lord knows I have exasperated him more than once. He is a unique mixture of the legal mind of U.S. Supreme Court Justice Thurgood Marshall, the charisma of Rat Pack sensation Sammy Davis, Jr., the fire of actor Jack Nicholson, and the facial expressions of Bill Cosby thrown in for good measure. He doesn’t take any crap from attorneys, regardless of whether they’re on the defense or the prosecution. But his patience was about to be tried with the likes of Jose Baez and his “dream team.” Of course, he was going to have his fair share of exasperation with us on the prosecution, too.

  IN EARLY 2010, BEFORE MASON and Judge Perry came on board, we became concerned that the discovery stage of the case could go on interminably if Baez were left to his own devices. We suggested to Judge Strickland and the defense that the court enter an order setting a deadline for everything from depositions to filing the hearings on motions. Linda and I spent a great deal of time breaking down all that needed to be done by both sides prior to trial and assigning each to a category. The deadlines were staggered based upon the complexity of the issue. We then submitted it to the defense, and they requested a few changes that we agreed to, submitted it to Judge Strickland, and he signed it. Finally we had a trial date: May 9, 2011. It was more than a year away, but at least we had it set.

  We spent the next year getting ready for that date. It was all the grunt work that goes into getting ready for a trial and sorting through what needs to be done. It’s a process that I like, but there’s always stress involved. Most of our hearing time was occupied by common death penalty motions that get filed in capital cases. The defense usually files a couple of dozen motions, all of which are routinely denied.

  One thing we noticed was that with Judge Perry at the helm the hearings tended to be shorter and involved much less posturing by the defense. I recall with great affection the first time Judge Perry interrupted Baez and politely insisted that he stick to the topic at hand. In that one statement, it was instantly clear that Judge Perry was not going to let Baez get away with the stuff he’d been pulling with Judge Strickland. Not long after, Baez and Mason attempted to get Judge Perry to rehear
several issues that Judge Strickland had already ruled on. Judge Perry simply looked at them and maintained all the rulings. Much to our satisfaction, Judge Perry also reaffirmed the discovery and motions deadlines that Judge Strickland had set, meaning that our May 2011 trial was going to take place on schedule come hell or high water.

  Not surprisingly, the defense team’s out-of-court shenanigans didn’t stop with the introduction of Judge Perry to the case. Ever since Casey had been indicted by the grand jury, the pretrial preparations had been a constant roller coaster of Jose’s noncompliance. Deadlines would be set, then ignored. If and when they were finally met, there was little or no acknowledgement of the fact that they had been met late. It was a frustrating cycle for all of us on the prosecution, and it didn’t bode well for the run-up to the trial.

  Of all the ways that the defense made the pretrial phase harder, perhaps the most glaring was that they did not have much respect for the rules of discovery. When it came to evidence, Baez had a reputation as an ambusher. Prosecutors who’d had cases with him in the past said they had been ambushed with last-minute evidence. In a case in Lake County, he had been reprimanded by the judge for this behavior. Mason, on the other hand, was a reasonably straight shooter, so our hope was that they would balance each other out.

  When it came to the discovery phase, our first major issue with compliance started innocently enough. By November 2010, Jose had given us a list of several expert witnesses, but he had said nothing about what the subject of their testimony would be. Because the rules of discovery require both sides to turn over the reports of experts, defense attorneys generally tell their experts not to prepare reports so that there is nothing they are required to turn over. But even though the prosecution doesn’t have the actual reports, we typically are given an idea of what the experts are going to say. In this case, however, Jose gave us nothing to go on.

  In an attempt to get something to use to prepare for the depositions of the experts he had listed, I filed a motion requesting a number of different documents I suspected the defense might have—letters, e-mails, contracts—that would help explain the purpose of calling the various experts. At the hearing on the motion, Judge Perry denied most of what I was asking for but added something I hadn’t asked for. He told Baez to file a document by a certain deadline that would give some general information about the background and expertise of the experts. He also added that Baez needed to provide a statement of the “subject matter” of their testimony. A rather modest order, I thought, but helpful nonetheless.

  The deadline came and went with no filing. Once the deadline passed, I called Baez about it and he claimed he had forgotten. The next day his filing arrived. It contained some minimal information about the experts, pretty much what I had already found on the Internet, but nothing about the subject matter they would be discussing. I pointed this omission out to Baez, and some e-mails passed between us disputing the language of the judge’s order—but still no compliance.

  I filed a motion asking the judge to clarify what Baez had to file, though it seemed crystal clear to me. The judge apparently believed that the words were clear as well, and so he upped the ante. Judge Perry listed five specific questions that the defense had to answer about each expert, including every opinion they would give at trial and the factual basis for each of them. He then gave the defense another deadline.

  When that deadline arrived, I received another filing. It contained mostly sarcastic comments about me, but little new information and nothing to clue us in about what opinions the experts would enter. I couldn’t believe that Baez had essentially dared Judge Perry to enforce the order. It was like my eight-year-old son—you tell him to hurry up and he slows down just to be defiant. Since Baez had been given two opportunities to comply and was still refusing, I filed a motion asking that he be held in contempt and be fined for every day he failed to comply.

  At the hearing, Baez had no real response except to attack me. Judge Perry found that he had not complied with the prior orders and was in violation of the discovery rules, but rather than hold him in contempt, he ordered that the experts file reports that would provide essentially the same information that was supposed to have been in the prior orders. He also made Baez pay the state of Florida for the time I had spent preparing all these motions. It ended up being almost six hundred dollars. Eventually we got reports that appeared at the time to comply with the order.

  The issue would arise again less than a month later. Baez had filed a motion requesting a Frye hearing to determine the admissibility of Dr. Vass’s odor analysis testimony. The motion was no surprise. We had all been expecting it for over a year. After I read his motion, though, I couldn’t figure out exactly what he was arguing was new or novel in Dr. Vass’s work. Certain things Vass did were indeed new, and we were prepared to argue those. But the way Baez had written his motion, I could see an ambush on the horizon, if all of a sudden he started arguing about an issue that I thought would not be challenged because it was already a commonly accepted technique.

  I raised the matter with the judge, and upon reviewing the motion, he agreed that it was not sufficiently specific. In open court, he asked Baez what he was challenging, and Baez gave an answer that I felt adequately limited the issue and gave me what I needed to be prepared. Perry then ordered Baez to file the motion again, and essentially just repeat what he’d said in court. Instead of listening to the judge, Baez filed a response to Judge Perry’s order that once again was completely vague and had little connection to what Baez had said in court.

  It was maddening. After the last round with him about the experts, it was apparent that this wasn’t just an issue of misunderstanding; it was obstinacy. As familiar as I was with Baez’s game, I was annoyed enough to file my own motion.

  “Judge, he is not following your order again,” I stated. “You should hold him in civil contempt.” If Judge Perry was to find him in contempt, Baez would have to pay a fine or be jailed—no more wasting time waiting for him to comply. In response to my motion, Jose filed a response filled with attacks. This one went above and beyond anything he had said to date, specifically singling me out, calling me a liar, making accusations that were very personal, very nasty, and very much directed at me rather than at the team.

  At the conclusion of other hearings one day, it was time to take up the issue of contempt. Judge Perry said to both of us, “I would prefer that y’all work it out, but I am willing to hear your motion.”

  Everybody went into a side room: Linda, Frank, Baez, Cheney Mason, Dorothy Sims, and me. They were desperate to avoid a public hearing on the second contempt charge against Jose, since they knew that Jose had stubbornly failed to comply with the prior order. This could only make them look unprofessional—it was a lose-lose as far as they were concerned. Cheney began the discussion.

  “What do you want to resolve this?” he asked as Jose sulked in the corner.

  I told him that I first wanted Baez to file a pleading in court detailing what he intended to challenge, in compliance with the court’s original order. I suggested that it was as easy as repeating the language he had spoken in open court. Also, I wanted an apology for the personal attacks Jose had made on me.

  “If that is done, I will withdraw my request to find Mr. Baez in contempt of court,” I told Mason. “But Jose must apologize in open court, and I will be happy to withdraw the contempt request.” I’d had enough. For two years I’d been putting up with his abuse, while he said whatever he felt like saying. He was going to apologize to me in the same place where he had attacked me so many times before.

  I had to hand them a copy of the transcript of the prior hearing, and Dorothy Sims wrote out in longhand on a piece of yellow legal paper exactly what Jose had previously said in court on the matter. The handwritten paper served as the new motion. It was presented to Judge Perry, and Baez, as the lead defense counsel, signed it. I looked it over and said I was fine with th
at.

  Back in court before Judge Perry, I explained to all the people present, “Judge, we’ve resolved the matter. We have agreed that if Mr. Baez apologizes and complies with the original order, we will agree to drop the contempt motion. The defense is going to file a pleading in compliance with the court’s order.”

  Baez then presented Judge Perry with the signed yellow piece of paper, which documented that Baez would limit the scope of his challenge to Dr. Vass. He stood before the court and apologized for what he had said about me, crediting it to the deep passion he felt for his client. While it hadn’t started out as much of an apology, he did acknowledge that the things he’d said were not appropriate or true. I accepted his apology and shook his hand, thinking the issue was resolved. I could now prepare for the Frye hearing knowing exactly what the issues were. Or so I thought.

  When the Frye hearing came along in early April 2011, I experienced the most bizarre episode in my thirty years in court. As the hearing progressed, Baez began to challenge everything Vass had done, as I had originally feared he would do. He completely abandoned the limitations he himself had placed on the issues when he’d signed that handwritten piece of yellow legal paper. I was dumbstruck, and so was the judge. After two or three attempts to broaden the scope of the issue were denied, Baez actually complained that he had been coerced into signing the yellow piece of paper that Dorothy Sims had given him, and that he should not be held to what it said. He even claimed that I had coerced him into signing it.