Imperfect Justice: Prosecuting Casey Anthony (38 page)

“That is not the story that we have been given,” I told Mark. I also informed him that Jose’s claim that we were investigating George was a complete and utter lie. I believe my exact words were “That’s a fucking lie.”

I was outraged. Cindy and George hadn’t been the most helpful people throughout our investigation, but no one deserved to be treated like this. I was appalled that Baez would dare to tell these anguished parents a fat, blatant lie, while simultaneously hiding from the real, horrifying accusation that he was likely to make in open court. It shouldn’t have amazed me. From the moment I joined the case, I found myself saying over and over again, “I can’t believe he did that.” I kept trying to think the best of Jose and kept finding out how wrong I was.

I told Mark we weren’t investigating George, although sadly there was more bad news. But I had to get back to him about it. Linda and I discussed the best way to handle the therapists’ reports and we decided to invite Mark, Cindy, and George to our office. I gave Mark a call.

“We would like to speak with your clients,” I told him. “Have them come to our office with you. What Jose is telling Cindy is not true. I understand that the Anthonys may not trust us, but if they would like to read the transcripts we now have in our possession, they can see exactly what Casey is saying about what happened.” I didn’t give Mark any indication of what I knew, beyond that the transcripts were from mental health experts.

Mark started guessing what it might be. “Are they saying that George disposed of the body?” he asked.

“No, it is worse than that. It is worse than you can imagine,” I said.

Mark had a conversation with Cindy and George, telling them about Baez’s fabrication. Cindy was furious. Mark later told us that she called Baez and cursed him out for lying to her, she then told him she was coming to see us to read the psychiatrists’ transcripts for herself.

When Baez found out that Cindy was coming to our office to see what the doctors had said, he immediately shot off an e-mail to Judge Perry, essentially accusing us of violating Perry’s order.

Linda said that Judge Perry’s order indicated only that the transcripts would not be made public documents; it never restricted our ability to investigate the story, and there was no way we were going to let Jose’s lies go unchallenged. Baez would later attack us on this point, but the judge agreed with us.

What we decided was that if the depositions were sealed, we would just discuss our notes and our recollections with the Anthonys. At this point, we felt we had to tell them. They needed to know the truth about what was going on. We were prepared for the defense to accuse us of all manner of witness tampering, but we were willing to take the risk. We felt a moral obligation to George and Cindy, even though we didn’t know where their loyalties lay. We never deluded ourselves into thinking that anything we could do would bring Cindy out of her denial, but we figured that maybe if Cindy wasn’t willing to come out of denial for Caylee, she might be for George.

George and Cindy were visibly upset when they arrived, polite but very apprehensive. They were not very talkative. We made the usual introductions, “How are you, nice to see you,” that kind of thing.

I hadn’t seen them in a while. The last time I had any conversation with either of them was with George at the Frye hearing. Generally, when we saw them at the hearings, there would be a polite nod exchange, though sometimes not even that.

Before the meeting, we’d told Mark that we would speak to him privately and share what we knew with him. Then it would be up to him to decide what to tell the Anthonys. We put Cindy and George in the conference room and took Mark into the office with us.

Linda and I carefully told him the story the shrinks had told us, as he jotted everything down on his legal pad to keep the story straight. He was in complete disbelief. He looked at us and said, “I cannot believe Jose lied to Cindy like that.” Mark asked us a couple of questions for clarification, but not many.

“It’s your decision what you tell your clients,” Linda and I said. “We are going to give you privacy. You tell them that we will wait for them. When you are done, if they have any questions, we will speak to them, but we are not going to interrogate them or ask them any questions.”

Mark left and went to the conference room to talk to the Anthonys for what seemed like twenty to thirty minutes. Linda and I were in a nearby conference room when Mark came to find us. Cindy and George had questions, and we accompanied him back to the conference room. Cindy was sitting at the table just looking down. George was next to her, his face bright red. Cindy looked angry. George looked like he had been crying, like someone had just killed Caylee all over again. He was just devastated.

“I just want you to know that none of this is true,” George said to us.

Cindy patted him on the hand and said, “It’s okay, George. Nobody believes this.”

His words would catch in his throat as he assured us one more time, “I just want you to know that everything I told you is the truth and I am not changing any of it.”

I remember Cindy saying something like, “I don’t know what’s wrong with her,” referring to Casey. At least she was finally willing to admit that there was something not right about Casey. How it would affect her testimony at trial, though, was anyone’s guess.

That said, I didn’t get the sense of hostility I had in the past. I think the realization that Caylee had in fact died in Casey’s custody, at the very least, changed their animosity toward us. While they didn’t turn into supporters of the prosecution, they were not quite as obstinate.

Of course, the Anthonys weren’t the only wild cards in the deck. By now, we also knew to expect some kind of a “surprise” witness from Baez in the middle of the trial; all we could do was hope that whatever it was, we’d be able to handle it on the fly. Over the years, we’d all become pretty good at that, since Baez was not the first defense attorney to practice the ambush tactic. Part of the frequency of these ambushes comes from an unfortunate flaw in Florida’s discovery rule: it is extremely rare that discovery violations by the defense during the trial are punished by the exclusion of that evidence. Most defense attorneys know this, so the risk to the client is minor. A few years ago, the state added contempt against the attorney as one of the punishments in the judge’s arsenal, but unfortunately it is rarely used. As prosecutors, all we could do was adjust and try to prepare for the unexpected.

Heading into the trial, there was no telling how it all would play out. We had confidence in our case. We knew what evidence we had on our side. We knew what evidence they had on theirs. We also now knew what their defense was going to be, and that without the therapists on the stand to be the mouthpiece for Casey’s version of events, Casey herself was going to have to testify. Linda would be ready for the cross-examination.

It all came down to the jury now. Could we get a jury with a modicum of intelligence that would see through the bombast and the lies? Could we get a jury that would care enough about Caylee to put in the work necessary to see the truth, to see Casey for who and what she was? It was anyone’s guess. As good as we felt about where we were, the jury was, and always is, a crapshoot—the one part we couldn’t control.

P
ART
III

C
HAPTER
N
INETEEN

JURY SELECTION

S
aying that Florida is familiar with high-profile legal cases is a gross understatement. In many ways, our state’s laws regarding the media are tailor-made for precisely this kind of court case: our discovery laws release information to both the defense and the media simultaneously, and our court system allows cameras inside the courtroom. But even in a state that had seen its fair share of media trials, this was unlike anything we’d ever experienced.

The clamor for new information was unparalleled. Usually, in sensational cases, the media would request copies of discovery, but because of the overwhelming demand and the huge volume of documents (over twenty-five thousand by the end), we had to create a special website so that media outlets could easily access the latest batch of photos or documents that we’d provided to the defense. Even during the slower years when we were simply taking depositions and filing motions, it seemed like barely a night went by without some mention of Casey Anthony in the news.

Sometimes this extensive coverage of the case’s minutiae would work to our advantage. While the defense was all too comfortable using the media to get their message out, we had determined in the beginning that we would not respond publicly to their comments. However, because the media would always cover the motions and responses that were filed by either side, we allowed ourselves to present a different kind of public response. I took personal delight at times in crafting lines in motions that I knew the media would pick up and run with. Ordinarily the motions would have gone by unnoticed, but in a case where literally every document was scoured, this was as close as we could come to putting out formal statements. In the end, it was the only way we had to respond.

It amazed me the way some people followed this case on the Internet. There were bloggers who read every single word of all twenty-five-thousand-plus documents. We would frequently get e-mails from people with suggestions for things to look into. Most of these were about as helpful as you’d expect, but occasionally there would be a gem that actually was of use. Likewise, there were regular blogs and websites that featured very well-considered commentary on the evidence, while others were just mean. The cycle of consuming new information and digesting it into analysis was incredibly fast. People came up with outrageous theories online one day and then moved on to something else the next. As a result, I think the defense actually used the blogs as sort of an informal focus group to test potential defenses. In my opinion, that may have made blaming George an appealing defense. It would have been fascinating to watch, if I hadn’t been so busy living it.

Fairly early on, this overwhelming amount of pretrial publicity made it clear that we would need to face the issue of changing venues. When it appears to the court that a fair and impartial jury cannot be found in the county where the crime occurred, the law permits the court to move locations. There are some appellate opinions that suggest that the court should at least attempt to select a jury in the home venue before moving on, but most of the time that is a futile gesture.

In my career, I’d had five trials change venue to five different counties all over the state. In each of those instances, it was pretty obvious that the level of pretrial publicity was too high for a fair trial to take place. So when the issue first came up in this case, it was a no-brainer. There was a news report on this case almost every day; even the most trivial things would warrant mention in the news. Once they even ran a story on what items Casey was buying in the jail commissary. There was no way we were going to get a jury from Orlando, and anyone we would get, we wouldn’t want.

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.

S
HORTLY 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.