If you could ask a prospective juror one question, what should it be?

Self-insights are usually few and far between, but recently thanks to the Casey Anthony trial I’ve had several.  Perhaps the most significant is an insight into why this “Hanged Juror” can’t find many judges or prosecutors to admire.

Sidebar: If you’ve read The Juror Hangs you know the last two characters in the novel to figure out what really happened are the judge and the prosecutor. Even the meter maid who tickets jurors’ cars outside the courthouse figures it out sooner.

Until yesterday’s epiphany, all the furor over the Anthony jury’s verdict and over the defense attorneys’ bills, and the utter bafflement of the judge and prosecutors, made no sense to me. What was I missing that everybody else in America saw? Why was I once-again so out-of-the-mainstream?

Then—flash! I got it. It isn’t me that’s missing something. It’s all those people out there who have never served on a criminal jury, especially one involving a serious crime: civil trials don’t put the same stresses on jurors; civil judges have less stake in the outcome; there are no prosecutors in civil trials, only plaintiffs.

1995 B. J. D. (Before Jury Duty)

Before I served on a criminal-trial jury, like everybody else I followed O. J. Simpson’s murder trial. I learned about hair-and-fiber experts, about blood-spatter experts, and all about DNA evidence—for the first time. I fell under the spell of CSI evidence. I was convinced that wife-beater O. J. did it, and I was shocked like 80% of the public when he got off.

2011 A. J. D. (After Jury Duty)

But by the time I served on a jury in 2005, the media had already sensationalized family tragedies of ordinary citizens (Laci Peterson’s family), investigators had already proven their incompetence (the murder of JonBenet Ramsey), and prosecutors had already over-reached (the Nanny Murder Trial).

So I was already skeptical when I raised my hand and swore “by the eyes of the all-seeing God” (I kid you not) to follow the law as the judge explained it to me. Of course, at that moment I still believed the judge would also explain to me the statutes as written by my elected representatives.

What This Juror Thinks

Yesterday I realized what it is about judges and lawyers that drives me crazy: they all want to tell me what to think. Not just tell me what to do—although they clearly want to be in charge, too.

Big Brother

Everyone in a courtroom except the defendant and the jurors thinks it’s their job to tell everybody else what to do. Who in a courtroom isn’t involved in law or law enforcement? Even the clerk of the court probably loves telling everybody, “All rise.”

Sidebar: I suppose the court stenographer isn’t particularly interested in telling anyone what to do or think. Instead I suspect that anyone who spends most of their productive, waking hours listening to and transcribing what other people say has a thought-avoidance problem. For what other reason would a sentient being want to make a career of transcribing other people’s thoughts?)

All the denizens of the courtroom believe it’s their job to tell the jury what to think and what to do. And that’s why Judge Perry and the prosecutors in the Casey Anthony trial are still baffled by the verdict. They told the jury to find her guilty of first-degree murder and aggravated manslaughter, and the jury just ignored them. They believe the jury must not have understood the science. They must have fallen asleep by the end of the trial. They must have engaged in improper speculation. Their minds must have been poisoned by the defense’s baseless accusations in the opening statement.

The jury very definitely did not think what they were told to think.

The End of a Trial

At the end of every criminal trial, the prosecution sums up its case against the defendant. The message of all such summations is: “The mountain of evidence we have shown you proves beyond a reasonable doubt that the defendant is guilty. You must find the defendant guilty of each and every one of these charges.”

Then the defense sums up its case: “The prosecution has not fulfilled its obligation to prove guilt beyond a reasonable doubt. One or more of the charges is highly questionable. You must not find the defendant guilty. You swore an oath to be fair.”

Then the judge reads a long, arcane list of instructions, the gist of which is that the law states that the crime in question consists of several elements, all of which the prosecution has shown to be present: “You must follow the law as I have just read it to you and reach a true verdict.”

But here’s what goes through every juror’s mind at the moment when the judge sends them into the deliberation room:

“The judge must believe the prosecution did its job properly, or he wouldn’t have let the trial go on to this point. The judge has tried to be fair to the defense, but clearly something isn’t right about what the defense attorney said. I was hoping the prosecution and the defense would both put on better cases, clearer evidence, more witnesses. I’m sure the defendant did something wrong, but I’m not sure it was exactly what the prosecution said it was. In fact, I’m thoroughly convinced it wasn’t what the prosecution said it was. Now the judge and all the lawyers have told me what I’m supposed to think, but none of it is what I think.”

Jury consultants of the world, I promise you this is what every juror thinks. And that leads me back to the title of this blog: If you could ask a prospective juror one question, what should it be?

If you’re on the defense team, you should ask every prospective juror this question:

How do you feel about being told what to think?

The jurors you want on your jury are like me. They’ll say, “I hate it.” Then let the prosecution try to excuse such an individual “for cause.”

A Modest Proposal for Casey Anthony et al.

Yesterday, Tim Miller, President of Texas Equusearch filed a suit against Casey Anthony for reimbursement of expenses incurred during the unnecessary search for her daughter—unnecessary because Casey Anthony knew she was dead and probably knew where her body was.

In an interview with InSession, Mr. Miller explained that not only had his charitable organization spent over $112,000 to help Casey find her daughter, but some of his biggest donors had withdrawn their support. Specifically, they told him that he was not using their money wisely, since it was obvious “the mother” was involved in the child’s disappearance.

I heard that Casey’s lawyers have said they would seek to have the suit dismissed and, besides, their client was indigent.

Here’s a clue Casey et al., not only is it the right thing to do to reimburse Texas Equusearch, but a promise now to do so is your ticket to a reality show titled “Footloose and Free: Casey Anthony.”

No, I’m not kidding. Think about it: you know that right now reality show producers would kill to follow you around with a camera day and night. Unfortunately, though, some may fear the public would resent it if they found out how much they were willing to pay you for the rights to Casey Anthony’s private life.

However, if they could say that $150,000 or so of the production’s revenue would go to Texas Equusearch to pay what you owe them plus an additional tax-deductible donation, they would look like heroes.

With your own reality show, you could also pay Zanny some fair compensation for her troubles.

And you would all still come out ahead.

However, if you litigate the lawsuits, all you will do is incur substantial lawyers’ fees and court costs—and you know you can’t possible win.

The End of Justice for All

If InSession talking heads had their way Casey Anthony would be the last defendant to be tried before a jury of her peers. A few days ago, one of the TV show’s commentators suggested that it was time for “professional jurors,” as if a trained jury would—of course—have found her guilty, in other words would have made the correct decision.

I once served on a criminal-trial jury. Before that experience I would likely have opted for a bench trial if I ever got in trouble with the law. I thought my fellow citizens would operate irrationally and not be capable of giving me the benefit of reasonable doubt. I thought a better-educated judge would be more likely to understand that I was not guilty.

Boy, was I wrong! The judge in the case I heard was a bigoted, illogical, autocrat. My jury peers were all thoughtful people who wanted to give the defendant every break they could, because it was so obvious that the judge and the prosecutors were not interested in justice.

The assumption is that a professional juror would be a sort of mini-lawyer. What a horror!

Professional Jurors

Recently in Great Britain proposals for abolishing jury trials or at least for professional jurors have been trotted out, and now, I guess, we’re going to have endure the same debate here. Proponents in the U. S., though, will have to cope with a little stumbling block called the Bill of Rights—something they don’t have in Great Britain, as you know if you know anything about the American Revolution.

British courts operate differently from American courts. I have read that jurors are summoned to hear more than one case over a certain period of time, such as two weeks. Jury verdicts need not be unanimous, even in murder cases, but neither is there a death penalty in Britain. (Because of Google’s obnoxious way of trying to search for Britney Spears every time I begin a British search string, I’m afraid I can’t give you a link for further information.)

What is “a professional juror”? In Britain the idea is to call jurors from the general public, train them, and pay them well to sit in judgment on numerous jury panels for an extended period of time. As I understand it, the idea is not to have people whose sole profession is juror.

The question is: What sort of training would make a “good juror”? Some types of training would be helpful to jurors, but other types of training would only be helpful to judges and prosecutors.

Juror Training

As a former criminal-trial juror I would have found helpful training in the role of the foreperson, selecting a foreperson, deliberation, consensus building, eliciting discussion from reticent participants, understanding the jury instructions, and understanding the charges and the elements of a crime. I suspect some jurors would also benefit from a quick tutorial on the Bill of Rights.

When I served, the only training we were given was a ten-minute video delivered to the prospective jury pool. It told us how jury panels would be called by number at random, what to do if our number was called, what to do if our number wasn’t called, and how much we would be paid per day. Nothing else.

Once we were interviewed by the judge, she gave us some simple instructions: don’t talk about the case, follow her instructions, that she would read the indictment but we would never see it or hear it again, that we could take notes but must leave them in the deliberation room, and that we were about to be sworn in.

But there were a number of instructions and a lot of training that I would have strongly disliked if the judge had tried to deliver it to me: training in interpreting CSI evidence, interpreting testimony, or legal terminology, especially the meaning of “reasonable doubt,” which I am eminently better qualified to interpret than any lawyer in any courtroom in this land.

Any effort to turn jurors into amateur lawyers and judges like that would be a disaster.

The real problem with professional jurors, it seems to me, is that a professional isn’t a true peer of the ordinary citizen, at least not in the court system, which is run by lawyers. The reason the institution of the jury arose in the first place, more than two millennia ago, was to provide a check on political and legal institutions so they could not arbitrarily take away the rights and property of ordinary citizens.

Jury Reform

The American Bar Association has a long-standing Commission on the American Jury Project, which has published a number of recommendations for jury reform. Unfortunately, no one has suggested judicial or prosecutorial reforms as well. And if you listen to the lawyers commenting on the Casey Anthony verdict you know that none of them think their profession needs any tweaking, let alone reform.

I have a huge problem with the current, highly politicized judiciary and state’s attorneys offices. Theoretically, the citizenry elects judges and state’s attorneys, but in many jurisdictions the judicial system is so large that even the most-informed of voters can’t possibly know enough about candidates for judgeships. Of course, the county state’s attorney is subject to a great deal of public scrutiny, but not the assistant state’s attorneys, who are more numerous than judges and who are all appointed and hired by the political state’s attorney.

Many judges seek higher office. Every state’s attorney I’ve ever heard of seeks higher office. As a consequence, it is in their best interests to prosecute high-profile defendants to the maximum extent of the law and to adjudicate high-profile cases and sentence convicted defendants to the max.

With the advent of live broadcasts from the courtroom, more and more trials of non-high-profile defendants are going to become circuses. It won’t take jurors long to figure out that if they find a high-profile defendant like Casey Anthony not guilty, they will be the ones who pay with their lives—either literally from stalkers or figuratively in that they will lose their jobs, alienate their friends, and worse.

The Casey Anthony jury did effect justice. They did not ignore any of the judge’s instructions in finding her not guilty. They did not “speculate,” despite what InSession says—what they did was understand the difference between speculation and proof; in deliberations when one of them wandered off into speculation, his or her peers drew the conversation back to what was proved. They did understand the “scientific” evidence—they understood it wasn’t scientific and therefore wasn’t proof.

They understood that in the evidence and testimony the dots were not connected. Yes, there were a lot of dots leading to the child’s remains—there just was no dot labeled Casey Anthony. The only person who claimed to have seen Caylee on June 16, 2008, with her mother was George Anthony, and as the foreman of the jury said, George couldn’t seem to remember important facts and incidents; all he remembered clearly was what everybody was wearing three years ago.

The private life is dead–Dr. Zhivago

If the Anthony family saga demonstrates anything it is that “the private life is dead.”

Look at how many private lives were aired during the Casey Anthony trial—not only the entire Anthony family’s but all of her many boyfriends’, girlfriends,’ an innocent bystander named Zanaida, and even the private lives of the Anthony home-water-meter reader and his son.

The trial was nothing but a reality show. The only people satisfied with the outcome are the media.

No, that isn’t quite right. It was a reality show but not “nothing but,” because the Anthony trial was the first-ever state-sponsored reality show. The trial served no purpose other than to provide content free of charge to the media. The O. J. Simpson trials weren’t state-sponsored reality shows the way the Anthony trial was, because by the time he went on trial O. J. Simpson was already a celebrity who had made his life a public spectacle from which not only the media but he had profited as well.

But before the circus was staged by the State of Florida the Anthonys weren’t celebrities. Now I fear a new celebrity has been born—Casey Anthony. You don’t have to be beloved to be a celebrity. Casey Anthony is now the celebrity everybody loves to hate. She may need a bodyguard to go out in public, but then so does every celebrity.

When I first saw the movie Dr. Zhivago years ago and then read Pasternak’s novel, it was during the Cold War against Soviet Communism. For me, Dr. Zhivago was little more than a romance and a slightly flawed criticism of the U.S.S.R. I found it difficult to empathize with the tragedy of a wealthy physician’s family who had lost their privacy. That tragedy paled in comparison to the millions of people the Soviets imprisoned, tortured, and killed.

Only now do I understand the horror of Zhivago’s pronouncement that the private life is dead.

Having endured the Communist Revolution in Russia, Pasternak understood full well that the confiscation of private property by the state was the end of all liberty. When the Communists seized everything in the name of the People, they were lying. Property of the People is property of the state. When property belongs to everybody, it belongs to nobody but the state.

When the state can force its way into your home (‘warrantless search and seizure”) it means an end to your privacy—your inner-most thoughts and feelings become public property.

I can hear you now: but the State of Florida had a warrant when it seized all of Casey Anthony’s shoes.

Yes, but when did the State of Florida obtain a warrant to search a young man named Tony Lazaro’s intimate moments with his lover?

When did the State of Florida obtain a warrant to the private life of a woman named Crystal Holloway? Why did she have to appear on world-wide-broadcast TV and reveal the number of “relationships” she was having at a certain time?

The circus that was the Casey Anthony murder trial won’t be the last state-sponsored reality show.  The media has found a way to generate cost-free content: all they have to do is lurk around police stations in Florida waiting for another beautiful, young nobody to step out of the back of a patrol car in handcuffs and follow her inside the jail. When an assistant state’s attorney finds out that the media are interested in her, she’ll find herself brought up on capital murder charges. And then the airwaves will be awash in “Casey Anthony II—The Sequel.”

Florida, wake up! Your “Sunshine Laws” are unconstitutional: It’s unspeakably evil to broadcast videotapes of a prisoner being interrogated, of a family communicating with their daughter in jail, of photographs of the private property of innocent citizens (their closets, their bedrooms, their laundry room, their back yard). It’s wrong to broadcast prospective jurors’ voir dire. It’s wrong to broadcast the gallery and spectators at a trial. It’s wrong to broadcast testimony of law-biding citizens whose only crime was being acquainted with someone charged with murder.

Sidebar: The prosecutors in the Anthony trial were wrong to subpoena Casey Anthony’s friends and force them to testify about their perfectly lawful interactions with her. None of her friends reported any illegal activity by Casey Anthony; none of them reported suspicious behavior; none of them reported anything remotely resembling evidence of “her state of mind at the time of the crime.” If I were them and I could afford it, I would sue the State of Florida for defamation and illegal search and seizure of my private life.

None of us are immune. None of us know when a friend or family member is going to fall afoul of the law. I’d be willing to bet that there’s no one reading this who doesn’t know someone with legal problems: nasty divorces, brutal child-custody battles, IRS audits, property-line disputes, cease-and-desist orders, law suits, drug busts, a DUI, or worse.

What will you do when the state comes knocking on your door with a subpoena?

The Casey Anthony trial is truly the end of the private life in America.

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Letter to the Casey Anthony Jury

Dear Jurors,

Thank you for following the law as the judge explained it to you. Thank you for respecting Casey Anthony’s rights as an American. Thank you for having the courage of your convictions.

As a former criminal-trial juror (sexual assault and kidnapping) I know what you must have gone through. Every night of the trial (and there were only three for me) I dreaded eventually entering into deliberations, convinced that I was going to be the lone holdout against the kidnapping charges. I feared I wouldn’t have enough courage to vote not guilty in the face of my eleven peers.

When court-watchers reported that you had returned to the courtroom on the second day of deliberations smiling and looking relaxed and confident, I knew that meant you had learned the night before that not only were you all in agreement on the capital murder charges but you had decided Casey Anthony was not guilty of first-degree murder, and you would not have to sit through a guilt-phase trial in which you would have to decide whether or not to sign a death warrant for one of your fellow human beings. Only a ghoul would be smiling at that prospect.

I predicted that if a jury did not convict Casey Anthony of first-degree murder and that even if a jury found her guilty of lesser charges, the media and the ignorant public would vilify them, no matter what the evidence in the trial proved or disproved. I also predicted that the attorneys for the losing side would turn on the jury. Of course, I was thinking most likely the defense attorneys would be the losers.

I have heard Jeff Ashton’s assessment that you just didn’t understand the forensic science and that the trial was too long for you to maintain your concentration. And I suspect now that Linda Drane-Burdick is launching an investigation to look for violations of the sequestration laws and inappropriate behavior in the deliberations.

But Jeff Ashton is the one who didn’t understand the science and couldn’t even tell the real science from the junk science. Jeff Ashton is the one who suffered most from the length of trial: as the defense case progressed he grew less confident and began squirming and making faces.

As for Ms. Drane-Burdick, it’s her job to make sure the jury isn’t guilty of misconduct, but I still think it’s incredibly unfair in this situation. I didn’t hear as much of the testimony or see as much of the evidence as you did, but even I became convinced there was no proof of murder, no proof of child abuse.

And, if you search the web for what happened to the jury foreman in the La Vegas trial of O. J. Simpson, you will see that Simpson’s attorneys caused the foreman to have to appear before a judge to explain himself when he spoke to the press after the trial.

By refusing to talk to the press you spared yourself from that sort of misconduct charges. And I hope that the State of Florida doesn’t bother to go after its own citizens who were just doing their civic duty. It can serve no purpose. Nothing can put Casey Anthony back on trial.

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I’m really tired of the seemingly endless ignorance of law.

The Casey Anthony verdict and sentencing has produced nothing but idiocy from the media and public in chat rooms and on call-in broadcast programming. This country is in very serious trouble. Ignorance of the law is what causes stupid people to stumble into law-breaking, to fall into the hands of unscrupulous law enforcement officials who may seek to lure them into speaking to them without an attorney, to serve on juries without any idea of what the defendant’s rights are, and for the press to publicly vilify citizens without basis.

But when people who claim to be lawyers go on TV and say stupid, incorrect things about the law, that is when you know that there may be no hope for the future of American justice.

This morning I heard so much stupidity, I didn’t manage to retain it in my short-term memory long enough to process it into long-term memory. Only two statements stuck:

1. Two lawyers asked, “If you lie under oath in a civil deposition can you be charged with criminal perjury?”

Yes, that is what they said they didn’t know. I am not a lawyer but even I know you cannot lie under oath in any legal proceeding without being liable for criminal perjury. That’s the definition of perjury, I’m quite sure. Perjury is a crime. What law school did these people attend?

2. “What you [an intelligent caller to a TV show] are saying is that you can never prove a circumstantial case without the evidence of the body [such as Caylee Anthony’s], and that would mean that you could never have proved Laci Peterson was murdered even though her body was found in the bay.”

The lawyer who said this hung up on the caller before she could respond. So I will respond on her behalf:

You can never prove a circumstantial case without sufficient circumstantial evidence. A little bit of speculation about a little bit of possible evidence won’t cut it.

The mere fact that a woman’s child’s body is found in the vicinity of duct tape and a plastic bag is not evidence that the woman murdered her child. It is sufficient evidence to prove that someone disposed of the body improperly. It is not sufficient evidence that the woman murdered the child with duct tape, especially when other circumstantial evidence suggests (not proves) that the woman killed the child with chloroform, and there is some limited circumstantial evidence that suggests (not proves) that the child may have drowned in the backyard pool. (Noticeably, by the time closing arguments came around the prosecution dropped their initial claim that Caylee was suffocated by chloroform, duct tape, and being in a plastic bag.)

Furthermore, there is absolutely no circumstantial evidence that Casey Anthony is the person who deposited the remains, the duct tape, and the bag in the woods. There is only some circumstantial evidence that the body was ever in her car, but she is not the only person with keys to the car, and the car is in her parents’ names. The fact that George Anthony knew how long the car had been abandoned at the bank before his daughter had an opportunity to tell him is circumstantial evidence that George Anthony knew when the car was abandoned in the parking lot all along.

The prosecution’s investigators were unable to find any circumstantial DNA evidence anywhere relating to Casey Anthony. This is not an unimportant fact, for several reasons in this age of DNA evidence:

  • People have been exonerated of murder by DNA evidence, especially when the defendant is male and the murder involves sexual assault. (Women have no such “presumption or proof of innocence” so if Caylee had really been kidnapped and raped, there would have been no exonerating semen to help Casey.)
  • DNA evidence of an unknown person’s DNA in a place where it should not be has also exonerated people. The investigators in Casey Anthony’s case did not look for DNA profiles of anyone other than the Anthony family, which—given Casey’s early claims of kidnapping is inexcusable. They behaved like the guy found crawling on his hands and knees under a street lamp looking for his car keys there, because it was too dark in the parking lot to find them there. And this is the primary reason why the remains could not possibly provide sufficient circumstantial evidence of guilt.
  • There is also circumstantial evidence that the meter reader moved the skull around in August, disturbing the evidence and possibly destroying the evidence of the person who deposited the remains—even if it was Casey. In addition, the meter reader testified that he saw the skull at least twice, maybe three times, in August and in December and at no time did he say there was duct tape anywhere near it. This is the second reason the “body” in this case could not provide sufficient circumstantial evidence of guilt.
  • The fact that George Anthony gave the police a wiped-down gas can on which no fingerprints could be found is circumstantial evidence that George Anthony did not want the police to find anyone’s fingerprints on the can.

The caller who was hung up on also said she suspected Casey Anthony had used chloroform as a babysitter, and that’s what killed Caylee. I suspect the same. However, the defense conclusively proved to me (and I know something about computers) that the computer search for “how to make chloroform” was made only in response to a MySpace comment of one of her boyfriends concerning “how to win girls with chloroform.”

Another stupidity—I just remembered—is the way all these lawyers are speculating about how and when Casey will be forced to tell the truth. Folks, she doesn’t have to say anything to anyone ever again.

In the civil suit against her brought by the horribly defamed Zanaida Fernandez-Gonzales all Casey has to say in the deposition is this: how and why she chose the name, even if it was something such as she found a document with the information on it, liked the name, and decided to use it as her fantasy nanny’s name. She made this decision in 2006, as I recall, two years before the prosecution claimed she premeditated her daughter’s death. She dreamed up the nanny as an excuse for taking Caylee with her when she wanted to spend the night with friends and not leave her with her parents or when she could not leave her with them because they were working. End of story. Zanaida Fernandez-Gonzales is exonerated in the eyes of the world, and Casey probably owes her damages.

Can we please quit this endless whining about Casey Anthony’s fate? How about a little media coverage of the Bill of Rights and how it protects every citizen—every resident—of this country from this kind of witch hunt?

Why I think the jury decided as they did

Did the Anthony jury not care that somebody stuffed an adorable child’s body in a trash bag with duct tape stuck in her hair and then threw her away in a trash dump?

Of course not. Of course they cared. Of course they knew someone had committed some kind of crime against the child, if nothing more than not caring that she died and then disposing of her body in a horrible, criminal manner.

Jean Casarez of In Session claims that the jury has just told murderers they need to bury their bodies well. She says the jury ignored the cadaver dog evidence, ignored the evidence of the remains, and the computer searches for chloroform.

She must not have listened to the same evidence and testimony I did. All the cadaver dog evidence showed was that a body was probably in the Anthony back yard at some point and that the body was probably in the car at some point. The dogs did not tell anyone who died or who put the body in the car and why.

The evidence of the remains proves that someone wanted to hide the body, but there was no forensic evidence of who wanted to hide the body. That the manner of death was homicide is likely, but not conclusive, because no one knows the cause of death—not even the famous Dr. G.

And the computer searches? Only someone completely ignorant of technology could think that was evidence of anything other than curiosity about something someone said on MySpace. The search on “how to make chloroform” came after a MySpace page on which one of Casey’s boyfriends made a remark about winning girls with chloroform.

Casey Anthony isn’t getting away Scott-free. She will be hounded by crazy strangers all her life, by the media all her life, and the odds are that she won’t be able to cope with this even as well as O. J. Simpson did. She needs therapy. She needs to get a life. It’s unlikely that will happen.

Actually, the reason Jean Casarez and all the In Session commentators are appalled at the jury is that they are all former prosecutors, and, frankly, I am sure that all prosecutors and many judges wish there were no juries.

What I don’t understand at all, though, is why George and Cindy Anthony could not bear the sight of their daughter being spared a lethal injection and had to escape from the courtroom before the judge even pronounced her not guilty.

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Baez’s Closing

You would be justified to say I need to get a life and forget about the Casey Anthony murder trial. But sometimes it’s a relief to worry about other people’s problems instead of your own.

When listening to Jeff Ashton’s closing yesterday I realized it was the prosecution, not the defense, that had no coherent narrative. I knew it the minute he began his presentation with a silent video of Casey playing with Caylee—the video the defense had introduced to show that the shorts found with the body were shorts she had worn a year earlier. It was a shameless appeal to the emotions. It told me and everyone in the audience that Ashton had nothing to use to appeal to the jurors’ rational, reasonable minds.

And when that was the very first point Jose Baez made in his closing, I knew he was going to be able to make his case and save his client from Death Row.

Jose Baez did what I have seen no other attorney do: he used the phrase “beyond a reasonable doubt and to the exclusion of any doubt” as a battle flag, but his real argument was that “The state must prove each and every element of its charges against her. The defense has to prove nothing.”

Then he proceeded to tell a clear, coherent story about an emotionally disturbed young woman who made terrible mistakes and did awful things when her precious daughter died accidentally. He made the aftermath of Caylee’s death the central plotline of his story, and he made the state of Florida’s investigation of the crime the villain.

Key Defense Evidence That Had Previously Eluded Me

Mr. Baez walked through each of the elements of the alleged crimes and the evidence or lack of same that had been presented by the prosecution. Many of the points he highlighted were news to me. No, I’m not one of the poor jurors who was forced to sit through each and every excruciating moment of the trial. No, I didn’t watch or listen to more than perhaps half of the trial. Still, I thought I had heard the most important evidence. But some of what Mr. Baez explained yesterday was quite enlightening and even shocking.

1. The stench in Casey’s car trunk was not there eight days after both sides claim the child died.

During the period after June 16 when the prosecution claims Casey first put the body in the trunk, two people road in the backseat of the car to eat at McDonald’s and neither one smelled anything. On June 20, Casey’s boyfriend filled the gas tank of her car using a gas can. He stood within inches of the open trunk and smelled nothing. When the car was found in July abandoned in the parking lot of a bank, the banker who asked the police to tow it smelled nothing but the trash in the bin beside the car. The police officer who towed the car smelled nothing. The tow-yard operator later inspected the car and said he smelled “human remains.” It took him several days to identify the car’s owners and send them a notification (they being George Anthony). When asked by someone (tow-yard operator?) how long the car had been abandoned at the bank, George Anthony correctly replied “three days.” When George Anthony went to pick up the car, he told Mr. Baez he had muttered under his breath, “I hope it isn’t my daughter or granddaughter” when he smelled the stench. Then he got in the car and drove it home, but did not alert the police to his fears for his missing daughter and granddaughter, and instead just went to work as if nothing had happened.

2. The trash/garbage bag found in the trunk in mid-July cannot be proven NOT to have been the source of the stench, because the CSIs dried its contents out. (Sorry about the double negatives, but after all what the state is asking the defense to do is prove a negative.)

3. There is no so-called “stain of human decomposition” in the car trunk.

Several stains in the car trunk were there when Lee Anthony used the car. One stain not that old could NOT be analyzed to contain anything recognizable—certainly not human body fluids.

4. All that is known for certain is that the only evidence of carrion insects in the car was found in the dried trash bag; these included maggots, which would certainly have contained Caylee’s DNA had they fed on her flesh, but the state did not extract any DNA from any of the insects in the case, including those at the recovery site.

5. The neighbor who claimed Casey had borrowed a shovel from him had initially NOT been certain on which day this occurred, he believed it was June 20 (four days after Caylee died) and in any case it had been less than an hour before she returned it.

6. The defense presented more FBI-expert testimony than the prosecution did—because “the best crime lab in the country” couldn’t find any incriminating evidence. Crime lab evidence can be used to exculpate people, too, but clearly that isn’t what the state wanted them to do for Casey.

7. The chloroform evidence was entirely bogus (and that was clear even to me before he said it, and I trust the jury to understand this, too, even if Ashton doesn’t.)

Sidebar: As I write this Jeff Ashton is claiming that a quantitative analysis of the trunk air would have been meaningless, so when his own witness said that there was minimal chloroform in the sample he tested it meant nothing because it wasn’t anything like the air when the trunk was first opened. Duh? Excuse me. This is a non-sequitur. This guy needs to study logic.

8. The computer search report was doctored and flawed and not even produced by the witness who testified about it.

Computers are something I know a fair amount about from my past lives in the industry. It didn’t take Mr. Baez to point out to me how inappropriate it was for the police to search a hard drive looking for a specific search term, in this case, “chloroform.” And I knew that the reason they had done so was because Dr. Vass had told them he had found “shockingly high amounts of chloroform” in the air from the car trunk. But I didn’t realize the extent of the stupidity and deception involved in that so-called forensic computer analysis of the Anthony family’s hard drive.

Sgt. Stinger apparently first tried unsuccessfully to hunt for the term using “Netanalysis” software in August of 2008. A year later at a conference he learned about software called “Cashback” and tried to run the data he had through it. He couldn’t make it work, so he asked the company’s owner who was at the conference to search for the term. The owner spent three nights working on the problem and finally produced a report with a single search: “how to make chloroform.” Sgt. Stinger then used that information to run another report in which a reference to chloroform appeared on the MySpace page of one of Casey’s boyfriends. However, in the new report he erroneously picked up every hit on the boyfriend’s MySpace page as a new search for chloroform, when it is simply a redisplay on the Anthony computer of the boyfriend’s web page. On the stand, Sgt. Stinger claimed to have found 84 searches for chloroform. Mr. Baez had to call the Cashback programmer to the stand to explain that.

BTW: I first learned about that MySpace page when researching Cashback. A press release from the software company mentioned it. Apparently the page had a photograph with a caption something like “How to Wind Girls with Chloroform.” If my boyfriend had posted something like that, I would search for “how to make chloroform,” too.

There is a computer professional on the jury. He will understand this.

9. The police ignored evidence that Caylee drowned on June 16, 2008, which they had in July of 2008.

June 15, 2008, Cindy Anthony and Caylee swam in the backyard pool. June 16 is the day Caylee allegedly drowned. On June 17 at work, Cindy Anthony told co-workers that she thought “yesterday” someone had been swimming in her pool and she saw the ladder up. On July 16, Cindy Anthony told detective Yuri Melich about the ladder incident and also said she had taken the ladder down on June 15. The door to the backyard had no child-safety locks and Caylee could open it, as shown by a photograph. (When I saw that photograph days ago, it also struck me as odd that a former policeman and a nurse would permit this to happen.)

10. The duct tape is clearly associated primarily with George Anthony, not anyone else in the family.

The duct tape came from a manufacturer in Ohio where the Anthony’s lived while Casey was a toddler. It was no longer sold after 2007, and apparently never sold in Orlando. The first time a strip of that duct tape appeared on items of evidence was near the beginning of August after Casey was arrested, when George Anthony handed a gas can over to the police. The police photographed it and tested it for prints (none were found). In the photograph the duct tape is visible and is being used as a vent cover. Early in 2009 under oath, George Anthony told Ashton that he didn’t recognize the can. Then under oath in the trial he told him that it was his gas can, and he had used the duct tape to prevent fumes from escaping and becoming a fire hazard. He soon changed his story and told Mr. Baez in the trial that he didn’t know how the duct tape had gotten there or when. In a TV news videotape on August 15, 2008, a large roll of the duct tape is shown lying on a table under a tent for search volunteers where George Anthony was supervising. On the stand, George Anthony said not only that he didn’t know whose tape it was, but the TV station was mistaken about where the video had been taken. 

11. George Anthony bought a gun while Casey was under house arrest in August 2008, in direct contradiction of the court order that permitted her to leave jail.

The state and George Anthony claim that he bought the gun to threaten Casey’s friends, because he thought they knew something about where Caylee was. Huh?

12. The child’s body was found without socks or shoes, which proves she died at home.

Testimony proves that Caylee always wore shoes outside the house and that she enjoyed trying to tie her own shoes.

13. Roy Kronk knew about the remains for four months before finally getting the cops to believe him, and his conflicting statements prove that he tampered with the recovery scene.

On August 10, 2008, Roy Kronk pointed out a skull to co-workers, who promptly collected a dead snake instead. The next day at 4:28 p.m., Roy Kronk called the police and said he had found a white skull. On August 12, he called the police again and said they could locate the skull by a tree with a white board over it. In November he told his son that he had found Caylee’s remains and that he expected to collect the reward. But he didn’t call the police again until December 11, when he was once again at the scene. On that day, there was no white board over the tree, and it took two Crime Scene Investigators to move the fallen tree, because the remains were concealed beneath it—two men, not a slim 22-year-old young woman. In statements after December 11, Roy Kronk first said he had picked up the bag and the skull fell out (so how did he see the skull in August?). He also said he had poked a stick into the eye socket. Then he changed his story. This is what you call “staging.”

As I write this, Ashton is completely misstating what Mr. Baez said in his closing about this; Mr. Baez is objecting; and the judge is over-ruling him. I don’t get it. Mr. Baez did not say that Roy Kronk took the remains home with him, put the duct tape on the skull, and then returned it to the scene. He said that Roy Kronk admitted disturbing the skull, which was subsequently found with the duct tape attached to the hair from the top of the skull and that the tape could have originally been used to seal the black plastic bag with her hair caught up in it. If I were a juror I would be growing increasingly angry at Ashton. I would think he’s either very stupid or he thinks everybody else is.

Mr. Baez concluded by saying the case against his client was comprised of “fantasy forensics” and “lies.” “You must have an abiding conviction of guilt,” he said, in order to convict Casey Anthony of any of the crimes with which she is charged.

I could be wrong. The jurors may be as gullible and ignorant of reality as Ashton seems to be and could convict her of manslaughter. But I can’t believe there are twelve thoughtful people who could sign Casey Anthony’s death warrant based on the state’s shabby investigation and presentation.

Either way, I believe the jury will be able to reach a verdict in four hours. They will only need to argue among themselves about one or two points. Specifically, I think they might talk about whether or not Casey’s admission that she neglectfully permitted Caylee to go outside and get into the pool (that she didn’t actually supervise her properly) was manslaughter. They might also discuss the charges of lying to investigators, which Mr. Mason argued came about through coercion. But that will take only four hours.

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