I dislike being an apologist for Casey Anthony or any defense lawyer, but…

By now everyone still obsessed with Casey Anthony knows that Orange County police admitted yesterday that they failed to find on the Anthony family’s computer a supposedly incriminating Google search dated on the day that little Caylee supposedly died. See the ABA Journal article

I have written extensively about why I think most computer-search evidence should be barred from courtrooms, so I won’t repeat it here. What I do want to point out is how exaggerated yesterday’s media coverage of this “discovery” was and how biased.

Since I’m no longer following the Casey Anthony reality show, I first learned about this story on Fox News’ The Five. All five of the five commentators declared that the search proved Casey’s guilt, because the search was conducted after the time when George Anthony had left for work and only Casey was in the house. Apparently, this time was established by a reporter named Tony Pipitone.

Please read what Pipitone had to say in the Orlando Sentinel before you read the rest of this post.

Another Interpretation or Two

There is another way to interpret Pipitone’s timeline, and it doesn’t require you to accept Jose Baez’s statement that the search was time-stamped at 1:51 instead of 2:51.

Sidebar: Baez’s computer forensics expert is Larry Daniel, a professional for whom I have the greatest respect. If he said the timestamp was 1:51, I believe him. Please read his post on this subject on his blog, Ex Forensis.

Let’s assume that Mr. Daniels is wrong about the time stamp and the search did take place at 2:51. By George Anthony’s sworn testimony, Casey took Caylee out of the house at 1:30.

If George was telling the truth, then Caylee was alive at 1:30. To have conducted the search at 2:51 Casey would have had to wait until her father left the house, then returned, searched for a way to “sufficate” her daughter in a foolproof way, then located information about duct tape, chloroform, and plastic bags, obtained all these substances, killed her daughter, wrapped her up, thrown her in the trunk of the car, and driven away before her mother came home from work that afternoon. Quite a swift accomplishment.

After that Casey would have had to leave the body in the car trunk long enough for decomposed bodily fluids to leak out of the plastic bag, which could only have been after Casey drove her friends around in the car some 2 weeks later (I believe). Then only when the car began to stink did she abandon it.

In other words, this computer search isn’t evidence of Casey’s guilt. It doesn’t matter who searched for suffocation methods or when they did. Whoever conducted the search that afternoon could as easily have been searching for a way to make the child’s death look like a kidnapping and murder, rather than an accident, because he or she was afraid of Cindy Anthony more than the cops. This person could have been terrified that if Cindy found out Caylee died accidentally in his or her care, she would literally scream bloody murder, and that would be the end of “the happy little family,” even if Cindy didn’t have the culprit immediately charged with negligence and manslaughter. (By the way, that’s in essence what she did when she called the cops about the stinking car.)

But, like Mr. Daniels, I believe this isn’t the issue. The outrage over the incompetence of the police is in this case is entirely justified. They were sloppy. And their sloppiness did lead to the acquittal of Casey Anthony. But that’s the way the American system of justice is supposed to work. The police have to be competent and honest, because incompetence and corruption can lead to false convictions as often as acquittals based on insufficient evidence.

“Ten guilty men should go free, lest one innocent man suffer.” The Bill of Rights protects you as well as Casey Anthony. And I’m sure you would never break the law. You could be arrested, though.

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“Presumed Guilty” by Jose Baez (Picking a Jury)

One of the most-striking revelations of attorney Jose Baez’s Presumed Guilty, Casey Anthony: The Inside Story is Chapter 23, “Picking a Jury.” At least it struck me, a former juror on a criminal trial, who was terrified during voir dire and who after the trial was so upset I wrote a novel about the jury experience (The Juror Hangs).

As most of you know, attorneys in high-profile criminal trials and high-stakes civil trials generally hire professional jury consultants to help them choose which jurors to challenge during voir dire. In my case, the trial was as far from high profile as you can get: although the trial was held in one of Cook County Criminal Courthouse’s largest courtrooms, with the judge elevated on a bench ten feet above the floor, during the three days of the trial, the only spectator was a man in a baggy suit whom I assumed to be a detective. Even the defendant wasn’t there, according to the judge because he “chose not to be present in the courtroom.” After the trial the jury learned he had also chosen not to be present in Chicago or Illinois: he had jumped bail. So, no one but the attorneys and the judge questioned me.

If any defendant needed the help of a good jury consultant, it was Casey Anthony, but, as Baez explains in chapter 23, Baez’s jury consultant, Richard Gabriel, resigned shortly before the trial. (While Baez gives no reason, I can’t help but wonder if he was getting out of the case while the getting was good, since he must have been concerned about the change of venue, which proved to be very problematic for jury selection.)

By the time it came to pick a jury, everyone in America had seen Casey’s narrow face and big eyes peering through a jailhouse window at her family, who did half the prosecution’s job for them by asking her incriminating, leading questions on video. They also helped make Casey America’s most-hated defendant since O.J. Simpson.

According to Baez, other people also helped to make the choice of objective jurors extremely difficult. Judge Belvin Perry granted Baez’s request for a change of venue to a locale other than Orlando, but he refused to move the trial and instead chose to select jurors from a nearby Florida jurisdiction, St. Petersburg/Clearwater, which is virtually a suburb of Orlando. The judge’s idea was to ensure that the jurors could easily be bused to Orlando, where the trial and voir dire took place.

Besides the proximity of the two cities, Judge Perry put another landmine in Baez’s path: he refused to tell either legal team where the prospective jurors would come from until a week before the trial—a week. That meant that neither the prosecution nor the defense would have time to review the jury questionnaires in consultation with jury consultants.

Of course, by that time Baez had no jury consultant, so he had to come up with some clever means of vetting the Clearwater jury pool. For instance, his legal team went to Clearwater, where they convened at a local restaurant. Baez left his colleagues at the table and sat down at the bar, where he chatted with the locals gathered there. To his surprise, he discovered that Clearwater wasn’t as obsessed with Casey Anthony as Orlando was. One woman he spoke to didn’t even recognize him, although she claimed to watch the news avidly. “I was shocked,” Baez writes. “I’m not getting the dirty looks I get in Orlando.”

After that, with jury questionnaires in hand, attorney Dorothy Clay Sims and interns from the College of Law at Florida A&M turned to the web, where they investigated the backgrounds of the potential jurors through social media and even by reading book and product reviews the prospective jurors had written on Amazon.com. It turned out that one of the prospects had recently purchased a toy “action figure” seated in an electric chair.

I wrote about voir dire in the Casey Anthony trial at the time: incredibly, it was televised. While the TV cameras weren’t permitted to photograph the jurors’ faces, they did pick up their voices. They were clearly identifiable to their family, friends, and coworkers. However, the spectacle also gave us court-watchers a great deal to ponder. For example, Juror Number One said that a trial was “about solving a mystery.” I gasped. Jurors are expressly forbidden from conducting investigations on their own (hence the URL of this blog: http://cfc.309.myftpupload.com) or from interpreting the evidence in any novel way.

After she made the remark Baez said to the juror:

“’This is the prosecution’s show . . . and if we sat back and did nothing and if the prosecution failed to deliver the goods, you cannot convict.’ During my entire jury selection I wanted to educate the  jurors about the burden of proof and about what it meant to be certain of guilt beyond a reasonable doubt. While questioning them, I wasn’t looking for answers as much as I was educating them about the fact that the defense didn’t have to prove anything.”

If I had been Baez, I wrote in this blog, I would have dismissed this woman ASAP, not only because of that remark but also because she was a nurse. Baez, however, believes that nurses make good jurors, because they are “nurturing.” That is true, but in my experience nurses are also know-it-alls who like to give medical advice that ought to come from a doctor and are never happier than when they’re telling other people what to do: “Roll up your sleeve.” It seemed to me that Juror Number One would listen to the testimony of the medical experts and then decide that she knew better (which, I suppose, was just as well, given the prosecution’s biased pathologist witnesses).

In the end, after the verdict Baez congratulated himself on how well he had educated the jury during voir dire. I don’t know whether other trial attorneys take this stance, but if they don’t they ought to. It clearly worked in Jose Baez’s defense of Casey Anthony.

The verdict was “Not Guilty,” not “innocent”: All of Baez’s detractors ought to take a step back. The state should not be permitted to take anybody’s life without proof beyond a reasonable doubt. And even then I believe America would be a better place without the death penalty.

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