Imperfect Justice

by Jeff Ashton

  So for almost two years we knew that we would be arguing this case before a jury from somewhere other than Orange County. At one point, the defense filed a motion for change of venue and Baez suggested, big surprise, Dade County, where he was from (the judge denied his request). Our laws give the judge some guidance in choosing the new venue, and demographic similarity is to be considered in the selection process. As a practical matter, though, the venue change is more about who will take us than where we want to go. A high-publicity trial from out of town can be a very disruptive affair. Judge Perry would have to schmooze his fellow chief judges from around the state to get one of them to help us out, but if anyone was up for the job, he was. Of the five out-of-town trials I’d done, four were with him. He knew what was involved in the process.

  Wherever the trial took place, we knew that the jury would be sequestered, meaning that once the jury was selected, they would be shielded from any outside influence whatsoever. They would literally be prisoners in a gilded cage. There was no way we wanted to take the chance of a juror going home at night and seeing something on the news or overhearing someone talking about something they shouldn’t hear and causing a mistrial. As discussion about the change of venue progressed, we had a thought: since we were going to have to sequester the jurors anyway, we argued and the judge agreed, we might as well have the trial in Orlando and avoid the expense of putting all of us up in hotels in another city, too. So it was decided: we would pick a jury somewhere else and bring them to Orlando. That way, I would only be away from Rita and the kids for a week or so for the jury selection, as opposed to six weeks or so for the trial.

  SHORTLY AFTER HE’D JOINED THE case, Judge Perry had told us he was going to keep our eventual location a secret until right before the trial. His main concern was that if the media got hold of the location, they would be on the streets days before jury selection began, doing man-on-the-street interviews and further tainting any prospective jury pool. As we got closer to the trial, the lead time the judge said he would give us to make arrangements at the new location kept getting shorter. First he said we would find out two weeks before the trial, then one week, then finally it was the Thursday before the start of the trial. From time to time, Judge Perry would drop little clues, and then smile that mischievous smile of his. I was pretty sure he was messing with everyone, but he really enjoyed pulling your leg sometimes.

  Judge Perry also created a process whereby the media could, by signing a confidentiality agreement, get the location a day in advance. This would allow them to get their equipment in place but prevent them from publicizing the location. It was a nice thought, but some of the news outlets appealed the order, and the district court agreed with them that the court couldn’t force them to sign an agreement as a condition to finding out where we were going. Instead the ruling stated that the judge didn’t have to tell them where we were going at all. So he didn’t.

  Finally, the Thursday morning before the start of the trial, Linda was called to the judge’s chambers with Baez to get the news. First Judge Perry made them sign copies of his order specifically naming those involved in the case or those who would need to make the travel arrangements and ordering us all under pain of contempt not to reveal the location. Linda came back to her office where Frank and I were waiting. She smiled like the Cheshire Cat as she entered.

  “Where is the best place you can imagine we’d go?” she asked.

  “Tampa,” I said.

  She looked at me and said, “Pinellas County.”

  So for all of Baez’s efforts to get this jury from his old stomping grounds, we were going to get them from mine. I was going home.

  Though the criminal courts complex had been built since I moved away, one of the trials I had done with Judge Perry in the past was there, so I knew the layout. The courthouse was out near a little regional airport halfway between the two largest cities in the county, Saint Petersburg, where I grew up, to the south and Clearwater to the north. We went up and told Lawson and, authorized by the order, he immediately called the state attorney in that circuit, Bernie McCabe. It turned out that he had known about it for months from his chief judge. He was most gracious and offered the use of his office and any assistance we would need.

  The next day the defense filed an objection to the chosen venue, and I liked the way Judge Perry handled it. We had a hurriedly called hearing in chambers with all the attorneys present and a court reporter. When the defense began to complain about the demographics issue—apparently Pinellas has a smaller percentage of Hispanic residents than Orange does—Perry looked at them and said, “Well, the only other place I can think of that can accommodate us on such short notice is Jacksonville. You want to go there?” Located in the northeastern corner of Florida, Jacksonville is thought to be a more conservative area politically, and thus was not the first choice of the defense. They withdrew their objections, and we left to pack.

  On that Friday the St. Petersburg Times was reporting unusual activity at their courthouse: extra deputies being brought in, additional food for the courthouse cafeteria, and parking spaces being roped off. The logistics alone had tipped them off, and while no one was confirming it, the media pretty much knew. My sister Judy, who had followed the case, sent me a text when the article came out asking if it was true. I told her I couldn’t answer till Monday.

  In a way I was kind of relieved that they had a clue where we were going. We had nightmares of the media camped outside our homes waiting to follow us to the location. I had decided not to drive, so Linda agreed to pick me up in her car. She showed up Sunday morning dressed casually for the drive over. It’s always weird seeing people that you encounter every day in a business suit suddenly dressed differently. She was wearing an odd-looking shirt with a number on it, white pants, and white sunglasses. I packed up the car and off we went. The drive to Pinellas is about two hours, so we talked about the case a bit on the way but mostly just chitchatted.

  We arrived at our hotel after Frank, who had already checked in. He met us in the parking lot. When Linda got out of the car, Frank laughed and said, “Nice outfit.”

  “Finally,” Linda responded. “Someone who is observant. I’ve been riding with this dummy for two hours and he hasn’t noticed a thing.”

  What had escaped my attention was this: When Casey was arrested, a photo of her being escorted in handcuffs by the police had been taken that had been shown a thousand times. In it, she is wearing a blue hooded short-sleeved shirt with the number 82 on the front. It was one of the items she bought with her friend Amy’s forged checks, along with a pair of white sunglasses. I had forgotten that early in the case Linda had gone out and bought the identical shirt and glasses. So the entire drive, she’d been in her Casey costume. I totally missed it. They had a good laugh at my expense, and at that point I think we all needed a good laugh.

  Once we were all assembled, Linda had an interesting suggestion. We were still trying to keep a low profile since the word wasn’t out officially that we were in town. Linda wanted us to sneak over to the courthouse and get a group picture to commemorate the occasion. Frank and I thought it was a great idea. After dinner, we went over to the courthouse and scouted out a place for our picture. There were too many news trucks already near the building itself, so we cruised through but didn’t stop. I kept thinking we were going to get stopped by some cop thinking we were up to no good. Finally we settled on a sign on the road at the other end of the parking lot. Linda pulled off on the shoulder, and we all got out and posed—Linda in her Casey costume, Frank in jeans and a T-shirt, and me in my favorite flowered Hawaiian shirt—next to a sign that said Pinellas County Criminal Justice Center. (And in case you were about to flip to the photo insert, no, that picture is not in this book. Some things are just for us.)

  The next morning we arrived early for the first day of jury selection. We were warmly greeted by Beverly Andringa, the chief assistant state attorney and sort o
f second in command at the office, who then introduced us to Tom Diebold, the lead investigator in the office. Both Beverly and Tom were extremely helpful and offered us a conference room to use. Throughout the selection, Tom continued to assist us during the times when it became necessary for us to investigate what jurors told us about their backgrounds. In addition to offering us the use of their helpful staff, the state attorney’s offices were quite convenient, as they were located in the same building and on the same floor as the courtroom. It was just a matter of going out a door, and we were just down the hall.

  The chief judge of the circuit allowed us to use their largest courtroom for the public proceedings and an adjacent room normally used by their grand jury as a waiting area for the potential jurors. The courtroom was huge. It could easily seat a hundred and fifty spectators.

  During the lead-up to the trial, Judge Perry had frequently said that we would be using an unusual method for jury selection. To understand the importance of the change he was referring to, you must understand a little about the usual method of jury selection. First, the name is a little misleading. It makes it sound as if you get to look at a list of available options and choose the ones you like, like picking from a menu. The more proper name would probably be jury exclusion. Instead of being able to choose people you like, you actually can only exclude people you don’t. The normal procedure begins by questioning the jurors as a group all seated in one room. When all the jurors have been questioned, they are then individually offered to each side according to their order on a seating chart until the required number has been selected. This process gives the attorneys the advantage of knowing who the next juror will be, should they choose to exclude someone presently on the panel.

  While this is the system that’s commonly employed, Florida law does not mandate this exact system. The judge has the ability to use alternate systems for selection, so long as the process does not unduly restrict the ability of both sides to ask relevant questions and does not prevent either side from excluding jurors up until the time the jury is sworn to hear the case. Sometimes judges get frustrated with attorneys using these rules in a tactical way to get a better jury. Throughout the jury selection Judge Perry kept changing the way he was doing it. We started with a group of one hundred potential jurors, and he began by discussing hardship, trying to weed out those who, because of economic or other personal issues, just could not serve for six to eight weeks. We lost about half the panel on that. With the pool that was left, he then brought them in individually to discuss publicity, the death penalty, and then any other topic that seemed fitting.

  For the next day and a half we repeated that process over and over again. It was incredibly tedious. I must confess I hate jury selection, especially in a capital case where you hear the same questions over and over again. Ann Finnell, who would be handling that portion of the case for the defense, had a series of eleven questions that she asked of every single juror, and as you can imagine, by the fiftieth juror I could recite the questions from memory. By the two hundredth juror, I wanted to pull my hair out. To her credit, she accomplished all these questions with a terrible cold. I felt sorry for her; then I caught it from her. I was coughing for a month, while she was better in a few days.

  When we got through the first hundred jurors on the hardship issue, the judge called up another group of fifty to question. As Linda passed some of the jurors in the hallway she took a long look at one small-framed older woman. Then she came up to me and told me that she thought she recognized her from the case. Linda had done many of the depositions of the EquuSearch searchers by herself. She asked me if I remembered a story of two older ladies who had come over from Pinellas County to volunteer in the search, one of whom was a real gabby character—the kind of person who if you ask her what time it is, she’ll tell you how to make a watch. I had a vague recollection of the story, and Linda then said she thought one of those women was on the jury panel. If this was the lady she described, we were in trouble. Our fear was that, being the gabby type, she would have discussed her involvement in the case with other jurors.

  Linda told the defense and the judge. We brought the potential juror into court and confirmed that Linda was correct, this woman had indeed volunteered for EquuSearch. We began to speak to the other jurors and our fears were confirmed: she had told anyone that would listen about her involvement. Just to be safe, the judge struck the whole group. Since we had no other jurors to question, we lost the remainder of that day. What are the odds that of the almost nine hundred thousand residents of Pinellas County, the one person who was involved in our case was called in for jury duty on that particular day? Like so much else in this case, it was the strangest of coincidences.

  The questioning dragged on through the first week with little progress. We’d get to court early, eat lunch in the cafeteria, work until six, and return to the hotel for dinner and sleep. It is a grueling schedule. Judge Perry, who thought we would be able to pick the jury in a week, was getting visibly frustrated with our lack of progress and made us work on Saturday. On Saturday afternoon Rita and the kids came over, and I sure needed the break. It was such a relief to see them. We took the kids to the beach on Sunday morning, and they left by midafternoon. By three that afternoon I crashed—we were all exhausted, and eventually the process got to everyone. On Wednesday of the second week, we had to break at midday because Baez was throwing up in the bathroom. The way he was sucking down Red Bulls and energy drinks, I’m not surprised he got sick.

  Tedious as it was, this was the most technologically advanced jury selection I had been involved in. We used the Internet extensively. Our greatest concern was having a juror who was looking to cash in. We actually smoked out a couple of potential jurors through Facebook and Twitter postings.

  As the days of jury selection wore on, we came to the realization that the amount of publicity here was almost as bad as back home. Almost everyone had heard about it. As if the rigors of six to eight weeks away from home weren’t bad enough, the publicity eliminated most of the jurors that we felt we wanted. It wasn’t just that they’d heard about it; many had formed strong opinions about it. The problem was that the prosecution needed people who formed strong opinions.

  This was still a circumstantial case where the defendant’s guilt would be proved by connecting pieces of evidence that told a story. Most murder cases are circumstantial. Murders are rarely committed in front of witnesses; most are secret crimes. Sometimes circumstantial evidence is the only way to answer the question of the whos, whys, or hows of a crime.

  Though some in the media speak derisively about a case by referring to it as circumstantial, a well-connected chain of circumstantial evidence is often stronger than an eyewitness case. The downside to circumstantial cases, however, is that they require more of the jury—more thought, more attention, and often more intelligence. Of the seventy murder cases I have brought in my career, the vast majority of them were circumstantial. Most of the people who sit on death row today were convicted on circumstantial evidence.

  Think of it this way: In this case we needed jurors who cared about what goes on in the world and were willing to do something about it. Not necessarily activists who go out and protest, but people who would give a damn about what happened to a little girl. We needed jurors of intelligence who could comprehend the evidence we were going to be giving them—not just the scientific evidence, but the evidence as a whole. No one was going to give them this case on a silver platter; we didn’t have the evidence to serve anything up nice and easy. The jurors were going to have to put the pieces together and apply some commonsense understanding of how people act and don’t act. It wouldn’t require a formal education, but it would take intelligence. Last, we needed jurors who believed in following the law and were willing to take on the responsibility of making important decisions.

  The difficulty we found was that the people who cared about what was going on in the world around them were t
he very people who had watched the case in the media. And because they were moved by what had happened to Caylee, they’d followed it even more. As intelligent people who’d listened to the evidence as it had been revealed in the media, they’d followed that evidence to its logical conclusion. As people who believed in the law, they were honest about their previously formed conclusions when they were asked about them. The end result was that anyone who would see the evidence the way we wanted them to had already seen the evidence and drawn the conclusions we drew. Those conclusions reflected the attitude in the court of public opinion, but in the real court they had to be disqualified.

  In the end, it took us eleven days to get the jury selected. We struck down many, and the defense did as well. When all was said and done, the jury was made up of five men and seven women, with one African-American woman and one African-American man. Their backgrounds were as follows:

  JUROR 1: An older woman who was married, as I recall. She had been trained and worked as a nurse for many years, but now she was in retirement, working as a counselor. She seemed nice, but not a take-charge kind of person. When it comes to juries, older folks tend to be judgmental, but people involved in counseling generally are not, so that combination made her hard to read. She had no major minuses for us, but gave us no great enthusiasm.

  JUROR 2: An African-American gentleman who I believe had heard about the case and candidly admitted that he thought Casey was guilty. However, he said he could keep an open mind. I liked him. He seemed levelheaded. I didn’t think he’d be the foreman, but I thought he’d listen to us. I was surprised the defense didn’t strike him after his admission that he believed Casey guilty.