Drew Peterson and the Rhetoric of Hearsay

In Session correspondents, Beth Karas and Jean Casarez, yesterday reported that jurors in the
Drew Peterson trial were taking extensive notes during the testimony of hearsay witnesses. The implication was that the jurors were extremely interested in testimony that Kathleen Savio (deceased) had expressed fear of her ex-husband.

In my previous post, I noted that hearsay evidence can be very persuasive, but I neglected to say why. The reason is: jurors assume that the judge has vetted both the witness and the testimony. Jurors think the judge gives credence to a hearsay witness and believes his or her hearsay represents the actual words of someone who isn’t able to testify.

Attorney Steve Greenberg of the Peterson defense team said yesterday that jurors will eventually take the time to evaluate for themselves the credibility of the hearsay witnesses, as well as the credibility of Kathleen Savio when she supposedly made claims to several people about Peterson’s violence toward her.

I wish I could agree with Mr. Greenberg. But from my own jury experience I know that few jurors question the validity of any of the evidence presented in a courtroom presided over by an apparently impartial judge.

In my case, during deliberations I tried to question the supposed confession of the defendant, but the other jurors told me I had no right to do that, because the judge had admitted it as true. I kid you not.

In any trial where hearsay is admitted, the judge instructs the jury that it isn’t admitted for the truth of what is said but only as evidence of something else, such as in the Peterson trial evidence of the victim’s state of mind.  Unfortunately, the jury instruction will never outweigh the emotional impact of hearing that a victim said the defendant had attacked her several times and told her he was going to kill her and make it look like an accident. The refrain, “make it look like an accident” will stick in the jury’s minds and accumulate there until it solidifies, the way drips of water from a cave ceiling solidify into stalactites.

Note to Peterson legal team: You will need to be very, very clear in your closing arguments about the reason the judge admitted this evidence. You will need to explain that—in fact—the victim’s state of mind is completely irrelevant to their task, which is to determine whether foul play was involved in Kathleen Savio’s death and, if so, who killed her. Ms. Savio’s predictions have no more truth in them than Sybil the Soothsayer’s.

Sidebar: The more I hear about Ms. Savio’s predictions, the more I wonder how it would have been possible for Drew Peterson to make them come true. If he really did threaten to kill her and make it look like an accident (which is hearsay about hearsay, BTW), wouldn’t it have been stupid of him to follow through on the threat and kill her so that it looked like an accident? And even stupider to do it on a weekend when he had to visit her home to pick up and deliver their children—so that inevitably he would be the one to “find the body”? Frankly, I believe I can make a better case for him killing Stacey and making it look as if she ran away, because he was tired of hearing her threaten to accuse him of killing Kathleen (whether falsely or not).

It doesn’t matter whether Kathleen Savio was afraid or not. I’m afraid of elevators in skyscrapers and say so all the time, but that doesn’t mean that if I travel to the top of the Sears Tower in Chicago, the elevator will fail, and I’ll fall to a horrible, squashed death. And if I also claim I know an incompetent elevator engineer who works in the Sears Tower, and I fall to that horrible death, it doesn’t mean it was his fault.

Don’t get me wrong. I believe in the jury system. But I also believe the legal profession and case law are losing sight of reality. Truth in court is now shrouded by centuries of arcane case law and meddling legislators, like the ones we have in Illinois. The jury system lives in a perpetual fog of legalese these days.

Sidebar: It’s been awhile since I plugged my trial novel, THE JUROR HANGS. I haven’t even mentioned that now not only is it available from the Amazon Kindle store, but also from numerous other e-stores, including the B&N Nook, the Apple iBookstore, and others. It’s cheap, fun read—as attested by Amazon reviewers.

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Drew Peterson—Rumor has it. . . .

Rumor has it that Drew Peterson repeatedly told his ex-wife Kathleen Savio he would kill her and “make it look like an accident.” Her sister said that she said this repeatedly, and as proof of the truth of this hearsay, the sister said that she said Ms. Savio kept all her valuable papers in a briefcase in her car, where the sister could find it in the event that “something” ever happened to her.

Sidebar: I also keep all my valuable papers in  my car trunk, but not because I’m afraid “something will happen” to me. I keep them there because I have too many such papers to fit in my fire safe (literary manuscripts, for instance).

Rumor has it that Drew Peterson’s subsequent wife Stacey said to her pastor that Peterson had killed Kathleen Savio and made “it look like an accident.”

Sidebar: I, too, remember hearing from at least one woman friend going through a divorce that her ex was going to kill her. I wonder if this is a common fear or just a common way of slandering an ex?

Rumor has it that if the pastor is permitted to testify against Drew Peterson under “Drew’s Law” (Illinois legislation that overturns centuries of common law rules of evidence and permits hearsay evidence if the supposed speaker is dead and apparently a homicide victim), the pastor will also say that Stacey said she saw Drew come home dressed in black in the wee hours of the morning when Kathleen Savio is believed to have died.

Rumor has it that Stacey’s sister will testify and say that Stacey said to her that she was afraid of Drew and possibly also say that she overheard an argument between Stacey and Drew in which one of them said something about or to the other that was incriminating.

Sidebar: Rumor has it that Stacey harassed Kathleen Savio during the weeks before her death. Having a devious mind (I write murder mysteries), it occurred to me that maybe Stacey is the one who was trying to deflect suspicion from herself by telling this tale to so many people. Maybe the reason Drew insisted on sitting in on Stacey’s police interview two days after Kathleen Savio’s death was to protect her, not himself.

Rumor has it that several months before Kathleen Savio died, Drew Peterson said to someone (a cable installer, I think I remember someone saying) that he would pay him $25,000 to kill Kathleen Savio and make it look like an accident. Rumor also has it that a second man said he heard Drew say this. Rumor also has it that both men knew Drew was a cop (and I think I heard someone say he was in uniform at the time he made this offer “to hire a hit man”).

Sidebar: Judge White, the previous Peterson trial judge, excluded this evidence (I think I heard someone say) as inadmissible “prior bad acts.” Now the prosecution has filed a motion with Judge Burmila to admit the evidence. However, I don’t see how this could possibly have been anything bad other than a bad joke. Why would a known police officer seriously try to hire a hit man? Is the cable guy well known to be a hit man on the side? And would a real hit man take an offer like that from a cop, or wouldn’t he assume it was a set up? Not to mention that if the cable guy thought it was a genuine offer, he ought to have reported it to the police immediately—maybe not the Bolingbrook police, but to the county sheriff or state police.

Rumor has it that Drew Peterson attended Kathleen Savio’s funeral and sat in the rear laughing and joking. In other words, Kathleen Savio’s brother says that Drew said inappropriate things and behaved inappropriately at the funeral.

Sidebar: The brother’s grief for the loss of sister is very real. I know how he feels. However, memory is a very slippery thing. In retrospect nothing ever appears the same. “In evidence” of this fact, the New Jersey Supreme Court recently ruled that judges must instruct juries in great detail about the pitfalls of eye-witness accounts. No matter how acute an observer, no matter how detailed a memory, time and emotions always change memories—especially memories of stressful events.

Hearsay evidence is very powerful. Having sat on a jury and heard the ultimate hearsay evidence (a forced, trumped-up confession), I know that hearsay can convict anyone of anything, given believable witnesses. For this reason, I’m beginning to suspect that Drew Peterson will be convicted, even if his defense is extremely skillful at proving a negative (that is, proving there is no proof of guilt and therefore he must be found not guilty—not necessarily innocent, but not guilty).

So, let me be the first to spread the rumor: Drew Peterson Found Guilty of Murder.

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Does the Drew Peterson Jury Object to Objections?

Stephen White, former Peterson trial judge, said today on In Session, that jurors are disturbed by constant objections and tend to think the objector is trying to prevent the other side from letting them hear about something.

I disagree, as long as it’s the defense’s objections to the prosecution’s case against their client. Jurors expect defense counsel to put up a good fight. In my single experience as a juror on a criminal trial in Cook County, IL, in fact, I couldn’t understand why the defense didn’t object to anything. If the prosecution had objected constantly to the defense, though, I would have been irritated.

In the case in which I was a juror, the defendant was on trial for kidnapping and aggravated sexual assault of a 13-year-old girl. Can you think of a less sympathetic character than that? Even Drew Peterson seems like a jovial neighborhood cop in comparison.

However, the defendant was “defended” by a public defender, that is, someone the taxpayer was paying for—and that included me. In his opening statement he literally said the defendant was guilty of aggravated sexual assault, just not of kidnapping.

After that, when a white assistant state’s attorney in the witness box read an English-language confession supposedly “written” by a Mexican who had a translator at his side when he was in court, the defense did not object. Nor did the defense object when the witness said she had taken down the statement at 2:00 a.m. long after the defendant’s afternoon arrest, when he was supposedly drunk out of his skull.

So, is the Drew Peterson jury irritated by defense counsel’s constant objections to the prosecution’s questions and witness testimony? I suspect only if they have already made up their minds that Peterson is guilty.

And that’s something they swore not to do.

IMHO, these days jurors are sensitive to the overreaching powers of the state. Before the state deprives any citizen of his rights—no matter how notorious or obnoxious he may be—they expect the state to make a very, very good case. The Illinois state legislature is one of the most-overreaching in the country. They even passed a law specifically designed to circumvent standard rules of courtroom evidence, a law that permits hearsay against a defendant when the speaker of the hearsay evidence is dead, but said it to someone who’s still living and can serve as a witness. It’s popularly known as Drew’s Law, because it was designed specifically to permit Peterson’s “missing” 4th wife to testify that she saw Peterson do some suspicious things around the time his third wife died.

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Drew Peterson—Bad Rhetoric v. Bad Behavior

On the first day of the Drew Peterson murder trial, Will County State’s Attorney James Glasgow stupidly attempted to discuss inadmissible hearsay evidence during his opening statement. On the second day of the trial, an assistant state’s attorney elicited a completely unsubstantiated accusation against Peterson from a clearly biased friend of the deceased woman.

When will lawyers take the time to study the 3,000-year old art of rhetoric?

Even the ancient Greeks understood that it is possible to argue convincingly for any position. They devised “rules” to help debaters convince an audience, which we now call “rhetoric.” The Greeks knew that the more-skillful debater at applying these rules to an argument was sure to win over his or her audience.

The adversarial system of jury trials is nothing more nor less than two opposing sides arguing before an audience of 12 jurors.

The defense team in the Peterson trial clearly understand this. In their opening statement, they did what Jose Baez did in the Casey Anthony trial: first, they explained Peterson’s bizarre behavior; second, they described the ex-wife’s anger and attributed equally bizarre behavior to her; and only then did they assert that there is little evidence of any crime being involved in her death and absolutely no evidence of Peterson’s guilt.

The rhetoric of the State’s case in the Peterson trial, though, is certainly not what they intended. They are saying: We’re desperate; we have no evidence; we have no choice but to repeatedly defy the judge’s admonitions against presenting flimsy hearsay to this jury.

Trust me: More than one juror has gotten this message loud and clear. So, even if Judge Edward Burmilla permits the trial to continue today, the best the State can hope for is a hung jury.

Sidebar: Judge Burmilla has also gotten this message loud and clear, I’m sure. If the trial continues, I wouldn’t be surprised if, after the prosecution rests and the defense asks for a summary judgment of not guilty, he grants their request.

By committing rhetorical errors, the Peterson prosecution has not only angered the judge, but also has warned the jury that if, instead of trying to pull one over on the judge, they simply tried to present step-by-step what they can prove happened, they would have to admit that all they know is this:

A divorced couple hated each other. All their friends knew it. One day, after a weekend of visitation with his children, the ex-husband took them back to their mother’s house. She did not answer the door. The ex-husband repeatedly called her home phone and received no response. The next day, rather than break into his ex-wife’s house, he asked neighbors for help in finding her. Eventually, a locksmith opened the door and admitted the neighbors to the house, where they found the wife’s lifeless, naked body in a bathtub. After an investigation, a coroner’s jury was convened. The coroner’s jury could find no evidence of foul play, although—as in many accidental deaths—there were several odd things that could not be explained. Years later, the body was exhumed after a media-frenzy involving the man’s fourth wife. Publicity-hungry pathologists claimed to find evidence of homicide on the embalmed remains.

It’s all rhetoric, folks. It’s all about the way you make your argument. If you clearly have to cheat and lie—meaning, it’s clear to the jury that you’re cheating and it looks as if you’re possibly lying—then you will never convince a jury of anything.

BTW: I dislike Peterson. I suspect he’s guilty of something, but the more I hear about his ex-wives the more I wonder if he’s actually telling the truth about what he knows or doesn’t know about their fates. Even so, as I write, I find myself trying to formulate a proper argument for Peterson’s guilt. After all, I did just say it’s possible to argue convincingly for anything. But it isn’t that easy. The prosecution needs to show that Peterson had the opportunity to kill his wife on the morning of the day he returned his children to her house. They also need some forensic evidence that someone other than his wife was in the house that morning.They claim the death scene was “staged” to look like accidental drowning—but as in the Casey Anthony trial they can’t prove exactly how else she must have died.

I guess the point is: you can argue convincingly for anything if you have at least a few convincing facts to rely on.

Sidebar: One of the In Session commentators for the Peterson trial is IL lawyer Stephen White, the retired judge who presided over all the pre-trial “hearsay hearings.” While Mr. White is doing his best to provide objective commentary on the proceedings, I can’t help but wonder if he has a fairly strong opinion about the case. The rhetoric of his retirement, IMHO, suggests that he knows the State’s case is based on nothing but hearsay and innuendo—and he didn’t want to preside over the inevitable fiasco.

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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.”

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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“No matter what that laughing man over there says”

When in his closing argument yesterday afternoon in Florida v Anthony defense attorney Jose Baez pointed to Jeff Ashton, I turned to my companion and said, “Yes.” Only minutes earlier I had seen Ashton’s smirks and eye-rolling and said,” The jury’s going to see that and not like it.”

Why? Because a lawyer’s smirks are an insult to the jury, especially when “The State” is trying to execute one of the jury’s peers—and get them to sign the death warrant.

If “The State” shows no respect to one of our fellow citizens like that, we are all in “Big Trouble.”

I think I recall during voir dire that at least one potential juror said he did not have a high opinion of law enforcement and that at least one other had some sort of background issue for which she had “paid her debt to society.” I am sure that if these citizens made the cut and were sitting in the courtroom yesterday when Baez’s indignant finger whipped out at Ashton, they silently said, “Yes,” along with me.

If you didn’t see it, in brief here is what happened:

Baez was reminding the jury of George Anthony’s schizo testimony—when answering Baez’s questions he said one thing; when Ashton’s the opposite. Ashton was laughing behind his hand. Baez called him out. Judge Perry shut the courtroom down and even sent the reporters and videographers outside.

I thought for sure Judge Perry was going to berate Baez, but when the cameras were turned on, the judge asked Ashton why he shouldn’t be held in contempt of court and expelled from the trial. Apparently there are rules of decorum in Judge Perry’s court that prohibit lawyers from making faces and gesturing so that the jury can see it.

Ashton’s smirking, eye-rolling, and heavy sighs during the defense closing elicited this comment from my companion: “That must mean his case is in trouble.” It doesn’t take an expert rhetorician to understand this concept. That’s exactly what Ashton’s behavior and Drane-Burdick’s week-long, sullen pout had made me think, too.

This morning I thought about writing to praise Jose Baez’s extraordinary closing, but truthfully Jeff Ashton’s face says it all.

Read the Bill of Rights.

Casey Anthony Story—Weird and Scary

I was going to title this blog, “Hey, Jose, Ask the Right Questions.” But having heard that the prosecution has told the judge in the Casey Anthony trial that Casey may have “gotten” the story about her child drowning in a pool and being found by her grandfather from a neighboring cellmate, I’m utterly baffled.

America, wake up!

If we continue on this path, justice in this country is doomed. This new news story is nothing but innuendo and rumor. Yet national news outlets are reporting “facts” that not only haven’t been proved, they haven’t even been alleged.

I’m not naïve. I don’t believe every tale a pathological liar tells me. I didn’t believe Scott Peterson anymore than I believe what I’ve heard so far from Casey Anthony. But in neither case do I believe the state proved or has proved so far their guilt beyond a reasonable doubt.

In Peterson’s case I believe the most likely scenario was that Amber called the Peterson house and Laci answered the phone. Later Laci confronted Scott with his philandering and they argued. He struck her and killed her—unintentionally. I even think he may have tried a C-section to save his unborn son. In the end, he wrapped the body in a blanket and tossed it in the bay. Murder, yes. First degree, pre-meditated murder, no.

I think the most logical explanation in the Casey Anthony case is that Casey used chloroform to sedate Caylee, and she died—accidentally. Then Casey concocted elaborate lies to cover up. Child abuse and murder, perhaps. First-degree, pre-meditated murder, no.

It’s hard to believe the prosecution will be able to prove the cellmate (so to speak) story predated Casey’s story to her defense attorneys. The attorneys cannot be compelled to say when she first told them the drowning story. And one has to ask whether or not the cellmate borrowed her story from Casey—apparently the woman has a long criminal record (which Casey does not, a fact no one seems to give her credit for, that is, her history of good behavior).

So—frankly—unlike the national media, this news story interests me little.

What I think is shocking is the national media. Last night, a popular talk show asked the question, “Will Caylee Anthony get justice? The Casey Anthony trial is the most-followed trial since O. J. Simpson. Will justice be served this time?”

Get real! O. J. Simpson was a major sports hero. He was a celebrity. He was wealthy. He was a mature adult. He had abused and divorced one wife before he abused and murdered a second. He didn’t just murder his wife, he butchered her and her friend while his two young children slept inside their home.

Casey Anthony is nobody. She isn’t famous except as the media has made her infamous. She is indigent. She is in her twenties and has never lived outside her parent’s home. She never abused her daughter or anybody else’s daughter. If she murdered her daughter, the evidence suggests she did so by putting her to sleep (the idea of suffocation by duct tape AND plastic bag is absurd on its face).

Sidebar: Jose, you did a great job showing that the Vass evidence of a huge amount of chloroform in the air sample was bogus. But you didn’t make it clear to the jury. In addition, you tried to claim Oak Ridge scientists have no quality controls—by using the “standards” which are in fact “controls.” The “errors” you pointed out in the tests were actually quality control. What you should have asked was, “Your research experiments are open-ended, are they not? Isn’t that the purpose of research, namely, to see what will happen?” The chemist would have said, “Yes.” Then you should have asked, “But Vass’s experiments weren’t to see what was in the air sample; they were conducted to prove the air samples came from decomposing human flesh, right?”


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Casey Anthony Trial—Rhetoric of Cross-Examining Defense Witnesses

OK. I admit it. I’m not the typical trial spectator and apparently not even a typical juror, but in trial after high-profile trial I find myself wanting to put a sock in the mouth of prosecutors when they start sarcastically cross-examining defense witnesses, especially expert witnesses.

Today in the Casey Anthony murder trial, prosecutor Jeff Ashton attempted time and again to belittle a Dutch expert in the detection of “touch DNA” by sneering at his lack of a Ph. D. (does Ashton have a Ph. D.? I do), by ridiculing the fact that his company has established its laboratory on a Colorado farm (which is known internationally as the “Crime Farm”), and calling his company a “mom and pop shop” because it was founded jointly with his wife, who is also a DNA expert.

As a Ph. D. and rhetorician, I would advise any lawyer who is cross-examining an expert witness—defense or prosecution—to show respect to all the experts who testify, especially when by definition that individual is an expert in a field in which you are not. I honestly don’t believe it takes a Ph. D. to find it distasteful to have to watch an ill-informed know-it-all try to humiliate people who have distinguished themselves in any field.

So far in the Anthony trial, I’ve gritted my teeth through Ashton’s cross-examination of a Ph. D. forensic entomologist who achieved distinction before the age of 30, a distinguished retired Ph. D. forensic botanist, and now a distinguished expert in touch DNA whose credentials include innovations in the field of DNA amplification and collection of minute, degraded samples of DNA. When Ashton belittled the young-genius entomologist I thought to myself: “He’d better hope there aren’t young jurors who admire this guy for what he’s achieved.” When Ashton belittled the female botanist, I was glad to see that her experience as a university professor and lecturer enabled her to deftly counter all his jabs so that I didn’t need to wonder if there were any retired women professionals on the jury who might find his attitude offensive.

But I’m utterly baffled at Ashton’s attitude toward Richard Eikelenboom. In voir dire, the witness said that Ashton had been rude when he presented himself at the D. A.’s office for deposition and turned him away. Of course, this testimony came outside the jury’s hearing. On the stand Tuesday afternoon, though, it seemed to me as if Ashton’s sarcasm was his last-ditch attempt to imply to the jury that they ought not to listen to his opinion that touch DNA could probably have been found in the Anthony case, especially on the victim’s clothing and the duct tape found at the scene.

Rhetorically speaking—meaning “from the standpoint of the emotional effect on the jury”—I believe Ashton’s stance will convince the jury that he’s either grasping at straws or terrified that the jury will believe Eikelenboom.

I thought about blogging on this topic earlier, because I found Jose Baez’s respectful cross-examination of all the prosecution’s experts, including Haskell (who clearly had no respect for Baez) and Vass, whom he managed to get to admit he believed in magic, to be the appropriate rhetoric.

A bit of advice to Ashton: You may show your contempt for opposing attorneys and clients, but it is dangerous to show the same contempt to distinguished experts who happen to believe that every American is entitled to present a defense and to ask a jury to decide their fate.

Rhetoric of Jury Deliberations in the Casey Anthony Trial

Today for the first time I can recall, In Session commentators admitted that they were inclined to agree with the Casey Anthony defense that it was hard to reconcile testimony and evidence in the prosecution’s case with the prosecution’s murder theory. Several lawyers debated each other on the meaning of the cadaver-dog “alerts” in the Anthony back yard, as well as the meaning of the chloroform evidence.

One lawyer commented that the jury was likely to debate these issues in deliberations, that jurors were bound to want to make sense of the evidence. I agree. In my personal experience on a criminal jury, several jurors talked at length about what had happened and how the victims must have felt at each moment—over and over again, as if telling a story.

Sidebar: The most talkative juror also forbade me from telling a story that I wanted to tell, having to do with the supposed English-language confession of a Hispanic defendant, which was written down for him by an assistant state’s attorney at 2:00 a.m.—but that is literally another story. Well, maybe not. It is possible that the Anthony jurors may be dominated by one juror who refuses to listen to anyone else.

The lawyers’ remarks reminded me of Dr. Sunwolf, Professor of Communications at Santa Clara University, who has written extensively about “the way jurors talk.” In her book, Jury Thinking, she discusses her research into the story-telling efforts of jurors during deliberations.

As a rhetorician myself (not a communicator) I also believe that the narrative both sides presents to a jury is critical to winning them over. Narrative is essential for making sense of otherwise random-seeming facts.

In the Anthony case, so far the prosecution really hasn’t presented a coherent narrative through its witnesses and evidence. Too much of what they have presented tells the jury nothing much beyond the fact that the defendant lived a strange life, told lies, and then drove around for a month with the smell of death in her car. The chloroform evidence (including today’s computer forensic analysis) adds little to this: it led the In Session commentators to suggest that Casey Anthony used chloroform to sedate Caylee in the car while she partied. (That sounds right to me, too. And it doesn’t necessarily mean that Caylee died of chloroform intoxication.)

On the other side of the case, though, Jose Baez presented a credible narrative in his opening statement, little of which has been definitely contradicted by the State’s evidence. Furthermore, Baez has done one of the best cross-examinations I have ever seen (IMHO, and I am not a lawyer)—despite his apparent deficit of courtroom experience. He avoids legalese. He says what many of the jurors are surely thinking about each witness’s testimony. He finds alternative explanations for the evidence. And he has already told the jury that Casey Anthony concealed her daughter’s death for a month and lied to police.

In trials in ancient Greece, presentation of a narrative was recognized as key to successful argument. Both sides hired rhetoricians/orators to present their case. In fact, the meaning of the Latin-origin word “forensic” is “rhetorical” or “of the public forum.”

Of course, in Greece if the prosecutor lost the debate, he had to pay damages to the person he had accused falsely.

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