Closing arguments in the Casey Anthony trial are currently scheduled for Sunday. In every televised criminal trial I’ve seen, closing arguments make or break one side or the other, and it’s usually the defense that’s broken.
The only closing argument I can remember that “made” the defense was Johnny Cochran’s in the murder trial of O. J. Simpson. Every other defense closing makes one of two fatal errors: either (1) they fail to connect with the jurors as common-sense human beings when they make complex or incomprehensible appeals to “reasonable doubt” or (2) they skip over at least one big gap in the defendant’s story. In Casey Anthony’s case, I suspect the defense wants to skip over the gap between the swimming pool and the woods.
The Rhetorical Impossibility of Reasonable Doubt
I’m a Ph. D. in English Language and Literature, which is a way of saying I’m an expert in English rhetoric and narrative. In my expert opinion (yes, I’ve written articles in peer-reviewed journals and taught college courses in these fields), it is impossible to explain the concept of reasonable doubt to contemporary Americans who speak English, because it is a nonsensical term. (Please see my posts in this blog’s “Reasonable Doubt” category.)
Any defense attorney who tells a jury they must acquit a defendant based solely on “reasonable doubt” will end up convincing the jury that he has no case for innocence and that therefore his client must be guilty of something, even if it isn’t exactly what the prosecution claims. Furthermore, a defense focus on the reasonableness of doubt forces the jury to fall back on their common sense, which will tell them that everything in their experience is different from what the defense claims happened.
Think about it: have there ever been twelve jurors all of whom found themselves standing over a body holding a smoking gun, a bloody knife, or duct tape? Of this fact there can be no reasonable doubt.
Here’s another way to understand the problem for the defense in every murder trial: doubt is an emotion, not a logical process; emotions are not reasonable—ever; consequently jurors can’t honestly say they have any doubts that are reasonable. Doubts, yes. Reasonable ones, no, and therefore they can’t argue in favor of their doubts to the rest of the jury during deliberations.
To see that I’m right, all you have to do is read through the post-trial statements jurors make to the press. In every case, at least one juror will point to an item of evidence that the prosecution made little of and the defense made nothing of, and he or she will say, “We talked about that a lot and concluded the defendant’s claims about it did not make any sense.”
For example, in the trial of Raynella Dossett-Leath, one juror pointed to the location of a telephone on a nightstand as proof the defense was lying (note: I use “defense” instead of “defendant” purposely, because the defendant did not take the stand.)
The Casey Anthony jurors will require Baez to connect the ALL the dots, not just the ones about which there can be no “reasonable doubt.”
Gaps in Narrative
Other than Johnny Cochran, I’ve seen no defense attorney who knows how to tell a good story in closing arguments. That’s what “narrative” is, a good story. Jose Baez told a good story in his opening statement in the Casey Anthony trial, but the case he presented to the jury after that has big gaps in it, gaps that destroy the narrative.
Narrative isn’t something that only fiction requires. Narrative is necessary in all human interactions. If either the prosecution or the defense doesn’t tell a good story in their closing arguments, the jurors will have to fill in the gaps for themselves. Believe me, no lawyer should want that to happen during deliberations. I’ve seen what happens when jurors are left with huge questions—they start talking about possibilities. Some start rambling and can’t be stopped. An no jury instruction to avoid speculation will make any difference.
One reason narrative is important is that it is the foundation of memory. Without a narrative—a logical, compelling story to our lives and all events in our lives—our memories become scrambled and vague. In a trial, jurors easily forget what the point is unless the attorneys keep reminding them of it.
Take the Casey Anthony trial as an example. The prosecution’s narrative was the timeline from early May 2008 to December 11, 2008, when the remains were found. But, unfortunately for prosecutor Ms. Drane-Burdick, that timeline is an investigation’s narrative, a process completely unfamiliar to the average person. It isn’t a compelling story.
Commentators present in the courtroom reported that during the prosecution’s case, which was highly technical, jurors took lots of notes—at least at first. This was because their memories were being overloaded with seemingly meaningless details.
Commentators also reported, though, that the jurors quickly stopped taking notes during the defense case. This, IMHO, was because Jose Baez gave them a compelling story up front. They knew where he was headed. His attack on the prosecution’s forensic evidence was effective (as it had also been during cross-examination of prosecution witnesses). The jury already understood Baez’s most-technical arguments.
But the Casey Anthony defense rested without being able to present some key evidence of its own, namely, evidence that Casey had told at least two of her boyfriends “secrets” about allegedly incestuous behavior of her father and/or brother. This is a huge gap in the narrative, which the defense will have to fill in the closing statement—or at least provide an explanation to the jury of why they didn’t present this evidence.
Sidebar: Judge Belvin Perry excluded this testimony as hearsay. But the logic of the hearsay laws baffles me, as I have written elsewhere. Under the hearsay exception, “excited utterances” of a suspect may be used to show “state of mind” at or near the time of the crime. Under this rule many judges admit the hearsay words of a defendant. So why can’t the Anthony defense present her excited utterances about incest, especially when the defense is accusing Casey Anthony’s father of being an accomplice in the cover-up of her daughter’s death.
I, for one, expected at minimum a psychologist’s assessment of Casey Anthony’s pathological lying to fill in this gap in the evidence.
George and Cindy Anthony’s Story
Baez will certainly need to remind the jury of the dysfunction of the Anthony family, especially the bizarre behavior surrounding Caylee’s birth, George’s abandonment of the family for a period when Caylee was an infant, Cindy’s changing “medication” (which severely affected her memory of critical events while testifying and which was also referred to by Ms. Drane-Burdick), Cindy and George’s ability to compartmentalize and hold mutually exclusive ideas in mind at the same time, etc.
I think the jury will want the defense narrative to begin in early May 2008 when Casey and Caylee essentially left the Anthony home:
- Why did Cindy hound Casey by phone after that?
- Why did no one in the Anthony family check out the mysterious Zanny the Nanny before she had a chance to mistreat their granddaughter (if they truly believed she existed)? Why didn’t they check her out if they believed Casey wasn’t responsible enough to choose an appropriate caregiver?
- Why did George Anthony drive the odiferous car home and then go to work, while his wife called her son Lee to come to the house and smell the trunk for himself?
- Why did Cindy call 911 and first claim Casey had stolen money from her and had stolen her car, before she told the operator that car smelled like it had a dead body in it?
- Why did she tell the policeman who showed up afterwards that Casey had fraudulently used her credit card and then had him handcuff Casey and put her in the back of his patrol car?
- Why did it take Yuri Melich in July to call Casey’s bluff on working at Universal Studios when her parents claimed they thought she had worked there at least since January—when George decided to check up on Casey’s story that she also had a part-time job at Sports Authority, which he discovered to be untrue?
Casey Anthony’s Story
Even with an emphasis on the Anthonys’ bizarre behavior, it is still going to be very difficult for Jose Baez to fill in several gaps in the defense narrative.
Gap 1: I believe Baez can point to evidence and testimony for all defense claims up to and until Casey went next door to borrow a shovel. I’ve thought and thought about this. What keeps coming to mind is the fact that the Anthonys had several shovels in a locked shed, for which Casey had no key. I can’t be the only person who concludes that’s why she needed to borrow the shovel. Frankly, the shovel is a smoking gun: what possible purpose could Casey have wanted to put a shovel to on the day she claims her daughter died—other than to bury the body. (The jury won’t buy an argument that the neighbor was mistaken or lying.)
Being prone to fantasize, I finally dreamed up a possible scenario, but I don’t know whether the judge will allow Baez to make these arguments. Surely the prosecution will claim “it assumes facts not in evidence.” My narrative is that George Anthony, as a former policeman, instructed Casey to borrow the neighbor’s shovel to bury the body rather than using an Anthony-family shovel because that use would leave forensic evidence.
Gap 2: The next gap in the narrative is how the body got into the trunk of Casey’s car, which I’m convinced it did. Baez has refuted all the “voodoo” scientific evidence of human decomposition in the trunk based on odors, but he has not (IMHO) refuted the testimony of the tow-truck yard operator, who said he had ample experience with both garbage and human decomposition, and who said the odor in Casey’s car was clearly human decomposition.
As an expert in narrative, my advice to Jose Baez to admit that the body ended up in the trunk—but not in the way the prosecution claims. If he does so, he also needs to provide a coherent alternative, such as:
- George Anthony put the body in the trunk wrapped in a blanket and drove around with it while body fluids seeped into the trunk carpeting. He was out of his mind with grief. Then he finally realized he needed to bury the body, so he returned home, planning to wrap the body and blanket in plastic and secure it with tape.
- Or, George Anthony thrust the dead body of his granddaughter into her mother’s arms and told her to get out the house and to dispose of the body so her mother wouldn’t find out that the two of them had neglected the child all morning and then found her drowned in the pool.
But, any explanation other than a commonsensical explanation of the body being carted around in the trunk of the car for some period of time will not fly with a jury. Of this I am certain.
Gap 3: Another potential gap in the defense narrative has to do with the gas can with the duct tape on it. Baez has conclusively shown that the duct tape on the gas can was a special brand not available in Florida and only from a supplier “up north” where the Anthony’s once lived. The defense has also pointed out the oddity that all fingerprints had been erased from the can and its handle before George Anthony gave it to the police the second time.
I suspect the jury has already filled in some of the “duct-tape gap” as it relates to the three pieces of duct tape found with the remains. The jury knows that only people in the Anthony household had access to the duct tape—a fact that points to the defendant. The jury also knows that George Anthony has tried to distance himself from the duct tape; in fact, the jury probably think he lied on the stand about recognizing the brand. But the jury also probably assumes he’s only lying about the duct tape because he doesn’t want to be associated with the crime.
There’s a Catch-22 here for the defense, however. In order to prevent the jury from buying the prosecution’s argument that Casey may have suffocated Caylee with duct tape, Baez will have to explain the three pieces. As I understand it, they are fairly short strips, not the lengthy tapes used by the Anthony family to bury their pets and certainly not the lengthy tapes necessary to secure a black plastic bag around a child’s body. Three short strips of duct tape are somewhat reminiscent of the Jonbenet Ramsey case, in which a child was found murdered with duct tape across her mouth and a ligature around her neck: is it possible to claim that Casey and/or George Anthony wanted to make it look as if an intruder had drowned Caylee in the pool? Hmm. No. I don’t think this will fly with the jury either. It’s too late to claim the duct tape was part of Casey’s attempt to blame the child’s absence and death on kidnappers.
But the jury has not yet filled in the “gas-can gap,” because the defense has not explained it: Who used the gas can for a purpose that would cause them to erase all fingerprints from the can? Was George Anthony wearing gloves when he handed the can over to the cops? Or did they collect it from him themselves and in such a manner (with gloves, say) so as to preserve all the fingerprints on it? And, if so, why? What did they suspect the can had been used for? No one disputes that Casey used the cans to fill her gas tank.
Baez has to fill in this gap somehow. Maybe he can claim that George Anthony had to have been the one to wipe the can down and, if so, that showed he had used the can or the gasoline in it for some guilty purpose. What could that be? Was he planning to cremate the remains?
Gap 4: From his opening statement, I (and probably all the jurors) believe Baez will claim at a minimum that the meter reader who found the remains moved them from their original location. The problem is the logical gap this puts in the defense narrative. If, as Baez claims, Casey was present when Caylee drowned in the Anthony pool, then she must have knowledge of where the remains were originally deposited. Did Casey and George try to bury the remains “decently” (so to speak)? Did the meter reader stumble across their “clandestine grave” and dig everything up?
The Narrative Is Too Flawed
Without some explanation for these gaps in Casey’s narrative, the jury will be forced to conclude that one of the prosecution’s explanations of events is correct.
At this point, I don’t see how the jury can fail to find Casey guilty of manslaughter at the very least. Of the three murder weapons the prosecution has argued for, the least offensive is chloroform. Unfortunately, Baez has already convinced me that there’s no real evidence of significant levels of chloroform that can’t be explained by combinations of co
mmon household cleaning products, let alone as an ancillary product of decomposition.
Of course, Baez could drop the drowning claim and argue instead that Casey used chloroform to sedate Caylee, not kill her, and that she died of that “accidentally.”
Frankly without a more coherent narrative of events, Caylee’s accidental death during chloroform sedation is far less horrific to contemplate than a death by suffocation at her mother’s hands. And we can be sure that Drane-Burdick’s summation is going to focus on the many horrors in this case, not the least of which is the idea of Casey Anthony driving around with her child’s rotting corpse in the trunk, stinking to high heaven.
So instead of providing a narrative, Baez will likely pound away on the reasonable-doubt argument. He’ll show how shoddy the state’s investigation was, how police entrapped Casey into lying and failed to read her her rights until she was in over her head, how sloppy the CSIs were, how George lied on the stand, how Casey was a great mother until the unthinkable happened (whatever that was), how Casey was always well-liked and loved by everyone but her parents, and how the only thing the state has proven beyond a reasonable doubt is that she lied to cover up her daughter’s death.
Is It Hopeless?
In one very high-profile trial (Texas v. Robert Alan Durst) the defense was able to convince the jury that there was no proof that the defendant murdered the victim in cold blood and that his story of self-defense was equally probable. The defendant claimed he was afraid that no one would believe him, because he had been accused of murder twice before (a novel defense, worthy of a novelist). As a result he attempted to cover up the victim’s death by dismembering the body and dumping it in Galveston Bay.
If I was Jose Baez I’d study the closing arguments in that case. But, then, Texas jurors may be very different from Florida jurors, and Baez might have to apologize for accusing George Anthony of conspiring to cover up his granddaughter’s death.
Below is the only coherent story I can think of, and I imagine the jurors are hoping Baez will give them an excuse like this to vote not-guilty on the first-degree murder charges:
Casey left home on June 16, 2008, with Caylee; she used chloroform to sedate her—for some reason like shopping—so she could leave her in the car for a couple of hours. When she returned, the combination of heat and chloroform had killed the child. She knew she would be sent to prison for negligence and manslaughter, so she decided to concoct the story. Casey isn’t a particularly rational person—maybe her father’s abuse is a partial excuse—but we all know jurors won’t buy “the abuse excuse” for murder. Casey can only claim she feared her parent’s wrath for what she had done.
So, she returned home to get the plastic bag and duct tape from the unlocked garage and then went next door to borrow the shovel. She drove around for awhile after that trying to decide where to bury the body and finally decided on the wooded area. She carried everything deep into the woods, where she buried the body in a shallow grave, as decently as she knew how (which was the way the family buried pets). Crazy? Yes. But no one thinks she’s particularly sane. (BTW: Ms. Drane-Burdick asked Cindy Anthony whether she would ever have buried a pet in a swamp. Obviously, it wasn’t a swamp when Casey left the remains in the woods.)
As soon as she left, animals dug up the grave. The bag kept them from consuming the remains immediately. As time passed a few tears appeared in the bag, insects invaded it, and finally animals got at it, too. Everything was scattered and moved closer to the road and path through the vegetation.
In August the meter reader spotted it—specifically a white skull. He moved things around. And then he tried to get someone to believe him. Because he knew he would never collect a reward if he took the items away to show someone as proof of his claim, he backed off. It rained. Everything was covered in water for a number of weeks. In December the meter reader had another chance to report the remains, and that’s what he did.
It’s better than leaving the jury wondering how Casey Anthony can expect them to believe any other story that’s full of holes.