by Jose Baez
When Cindy took the stand, the lead prosecutor, Linda Drane Burdick, asked her about financial problems, questions I felt were totally irrelevant to the issues relating to whether Casey should be freed on bond. Her questions appeared to be focused mainly on airing dirty laundry as opposed to accomplishing anything. Cindy had to admit that she had several judgments against her and that her wages had been garnished. I don’t know how that established anything for the state other than showing that Cindy had financial problems.
I didn’t call Casey to the stand. A lot of lawyers call their clients to the stand, but I never do that because anything and everything they say can be held against them. A smart prosecutor might push the envelope and go beyond the scope of direct examination, and a biased judge could overrule any objections that I might make. It is always a foolish move, though I see lawyers do it all the time.
That should have been the end of it. It was an open-and-shut case. Casey Anthony should have been freed on bond.
But nothing about this case ever turned out to be as simple and straightforward as it should have been. In certain cases, the judge will allow the prosecutors to call law enforcement officers to testify so they can give the judge an idea of what the case is about. However, on most occasions prosecutors just rely on the arrest report to fill the judge in on the facts alleged. In this case, Strickland allowed the prosecution to put on what amounted to a minitrial taking more than two hours. The prosecution put on a dog-and-pony show for the press, the sole purpose of which was to bash Casey.
First up was Melich, who took the stand and testified as to Casey’s actions on the day she was arrested. He listed many of the false statements she made and showed how he had disproved them. He talked about going to Universal Studios with Casey, replaying her lies. He talked about smelling the car when it was at the forensics bay. Melich said that before going into missing persons he had been in homicide, and that, based on his experience, he smelled the “smell of decomposition.”
Every cop who testifies always has the same line that “once you smell the smell of human decomposition, you never forget it.” It’s like Supreme Court Justice Potter Stewart, in his concurring opinion on Jacobellis v. Ohio, writing he couldn’t define pornography, “but I know it when I see it.”
And yet, in his five-page detailed initial report, Melich had said nothing about the smell of the car. He also testified about a stain in the trunk of the car that the crime scene investigators thought was “questionable.” I would later find out that the test was negative—not at all “questionable,” as testified to by Melich. CSI had used a product called Bluestar Forensic, a spray similar to luminol that, after applying, can reveal human bloodstains even after someone has cleaned them up. There was a small reaction in the trunk but the confirmatory test turned up negative. This is not uncommon and as an experienced detective, Melich surely should have known that.
Melich also gave testimony to finding hairs similar in color and length to that of Caylee in the trunk of the car. This is also not uncommon because the human head sheds between one hundred and two hundred hairs a day. If Casey had taken Caylee’s sweater and put it in the trunk, her hair easily would have transferred to the trunk. Or Casey could have Caylee’s hair on her clothing from dressing her and then gone into the trunk to retrieve something, transferring the hair in the process. Put simply, every trunk has hair in it. Melich failed to mention that Casey’s hair, and even animal hair, was found in the trunk as well, but no one was accusing Casey of throwing her cats in the trunk.
I took notes feverishly and listened carefully to each witness because as a defense lawyer, even if I don’t win the battle of the bail hearing, the testimony can help me win the war. Not only was I getting to hear from crucial prosecution witnesses but their testimony was on the record and locked in so they couldn’t ever change it. Having them on the record so early gave us an advantage.
When the prosecution talked about cadaver dogs and the smell coming from Casey’s Pontiac, I didn’t know how to read them. The bond hearing was the first time that anyone had made a big deal about the smell of the car. Cindy hadn’t made an issue of the smell of the car to me, so I hadn’t paid too much attention to the fact that the car allegedly had some foul odor. I thought there was still a possibility that there was some crazy woman out there who had taken Casey’s baby.
Next up was the dog part of the state’s dog-and-pony presentation. Deputy Jason Forgey, the handler of a cadaver dog named Gerus, took the stand. He struck me as someone who was slick. And I say that because ever since the Miranda ruling, defendants had to be read their rights before they could be questioned, and the police know just how far they can go to get around that law. The cops know the rules. And they know the exceptions. And, in my experience, this has developed a police culture called testilying, police slang for when they decide to embellish or omit critical testimony regarding a criminal defendant.
Why do they do it? Because they know they can get away with it. And I strongly sensed Forgey was testilying.
He got up there and recounted how he and his dog Gerus came to inspect Casey’s Pontiac. He said he deployed Gerus, who alerted Forgey to the trunk area of the car. Forgey then testified that he took Gerus into the backyard of the home, and that the dog alerted there as well. He said he then called in another dog from another county, who alerted to the same area as well.
When Forgey finished testifying, I stood up to cross-examine him. I had never had any experience dealing with a cadaver-dog handler before. On top of that, this was the first time I was hearing about this evidence, so I really had to think fast on my feet.
“Your dog alerted in the backyard?” I asked.
“Yes,” he said.
“And obviously CSI dug in the backyard and found nothing.”
“Correct.”
“And then your dog alerted in the trunk of the car?”
“Yes.”
“And obviously you didn’t find a body in the trunk.”
“No.”
“And so,” I said, “at the very best your dog was one for two, or at worst, oh for two.”
And what Forgey did—and I didn’t quite catch it at the time—was save himself by saying, “I’m sorry. I don’t understand you.”
I went over it again. I even repeated myself, but Forgey avoided answering my question by playing stupid and pretending not to understand the point I was making.
And then Strickland stepped in to save him.
“I understand your point,” said the judge. “Move on.”
So I did. But what I didn’t know—and what Deputy Forgey knew—and what the prosecution likely knew—was that the dog who came back the next day did not alert in the backyard and that they brought in the other dog, and that dog did not alert in the back yard, either. I had a hard time believing the prosecution did not deliberately hide that information from me and from the judge at that hearing.
Forgey did say, “We went back the next day.” But the prosecution didn’t question him any further. A case of “what they don’t know won’t hurt them”?
I voiced my objections throughout. As far as I was concerned, everything the cadaver-dog handler said was hearsay. I objected to the information about what the dog found. Strickland overruled me every time.
I objected to Melich’s testimony. What did his testimony have to do with whether Casey would show up in court or not?
The judge asked for arguments, and I said, “The law is the law, and we’re here to enforce the law, to follow the law. And under the law, she’s entitled to bond.”
I said, “Sure, there’s possible evidence of a possible homicide here, but they aren’t charging my client with that. If they want bond commensurate with a homicide case, they need to charge her with a murder. So long as the charges are what they are, you have to give her a bond. Treat her like anyone else. She has no prior criminal record, she has significant ties to the community, and she’s not a danger to anyone.”
I requeste
d the standard bond amount, $1,500.
I argued, “If she’s free, she can also help search for her daughter. And it will also give me an opportunity to go over things with her,” which more than anything was really what I wanted. I wanted Casey to have unfettered access to her attorney so she and I could communicate better. We couldn’t talk in the jail. I didn’t trust the police to give us the privacy I needed when I spoke with her.
The case wouldn’t have dragged on as long as it did if I had been able to meet with her more and build trust so she could feel more comfortable talking to me. But we were in the Wild, Wild West of Central Florida. Nothing doing.
Burdick, the prosecutor, rose and said, “Now that she’s a person of interest, she may run. I request a bond of $500,000.”
I almost laughed. Then I became angry.
“If that’s the case,” I said, “why are we standing here going through the motions? If you’re going to enter a $500,000 bond, that amounts to no bond at all. Why not make it a kajillion dollars? Why don’t we just pack up and go home?”
The judge ruled in favor of the prosecution, setting Casey’s bond at $500,000. Then Strickland did something very odd. He gave extra commentary. In open court he said, “Casey has not helped in any way to find her daughter.” When he said that, I thought to myself, She’s not obligated to. She may be morally obligated to, but that’s not how the law works.
Then the judge said, “Not a bit of useful information has been provided by Ms. Anthony as to the whereabouts of her daughter. And I would add that the truth and Ms. Anthony are strangers.”
The next day the headline “The Truth and Casey Anthony Are Strangers” was on the front page of the Orlando Sentinel.
Doesn’t Judge Strickland care about the Fifth Amendment? I asked myself. It was such an interesting statement considering the Fifth Amendment of the United States Constitution ensures a defendant’s right against self-incrimination. To make a statement like that to someone who’s about to stand trial in his courtroom was absurd and disturbing. Considering that Casey had never taken the stand or testified, he had zero ability to judge her statements or her ability to tell the truth.
A judge is not supposed to show any type of prejudice against a defendant, and to say in front of a national audience that Casey was a liar didn’t exactly strike me as maintaining a neutral position.
Strickland didn’t instill a lot of confidence in me that Casey was going to get a fair trial. I didn’t object, but for the first time, I thought about recusing him.
When George, Cindy, Lee, and I left the courtroom, the crush of press was absolute madness. It was then that Cindy, defending her daughter, threw out the theory of the moldy pizza smelling up the car. As bodies and cameras and tape recorders surrounded us, she said, “There was a pizza in the back of the car for three weeks. You know how hot it’s been, and that’s where the maggots came from and that’s where the smell came from.”
Riveted by her every word, the flock of reporters pressed closer until we were being held hostage. I finally had no choice but to make a deal with them.
“I’ll talk to you if you let the Anthonys go,” I said.
They agreed, and after the Anthonys made their escape, I couldn’t express enough anger toward the injustice of the $500,000 bond for a third-degree felony.
I knew at that moment we were going to appeal it. To this day I cannot understand how any court could have justified a $500,000 bond for a third-degree felony.
I went back to the Orange County jail to speak to Casey about what the $500,000 bond meant for her. I explained to her that I was going to appeal the decision, that we were going to do everything in our power to raise the money to get her out, and that her parents had agreed to help in any way they could.
During the bond hearing I began to wonder whether Casey had been telling me the truth after I heard some of the things that came out. As I was telling her about the unfairly large bond, Casey whispered to me conspiratorially, “I have something I have to tell you.”
“What, Casey?”
Because I had been concentrating on the witnesses at the bond hearing and not on her, she knew that I would be asking her about the cadaver dogs and about her lies, information that must have been terribly unsettling for her. She knew this conversation was coming, and so to head it off she said to me, “I have some things to tell you.”
“What is it?”
“After I came back from the hearing,” she said, “I was up in my cell, and one of the inmates came by, and she flashed the number 55 through the window where I could see her. She was looking at me, and I could read her lips. She was saying, “Timer 55.”
“What does that mean?” I asked her.
She said, “Caylee had had a play date with Annabelle, and they went to Jay Blanchard Park with Zenaida [Fernandez-Gonzalez] and her sister Samantha, and at one point Zenaida grabbed Annabelle and Caylee and started walking toward the car.” Casey told me that she watched as the children got into the car, and when she asked Zenaida, “What are you doing?” she said that Zenaida grabbed her by her shoulders and said, “Listen, I’m taking Caylee, because you don’t know what you have. You don’t know how lucky you are, and I’m going to teach you a lesson.”
Casey told me that she and Zenaida struggled and that Zenaida got in her car with the children, and as she was driving away, she said, “I will contact you with further instructions.”
Casey said that Zenaida contacted her and told her to change all her passwords to “timer55.” (When we looked at her computer records, the passwords to her Myspace and Facebook accounts were in fact “timer55.”)
“Why?” I asked.
“What ‘timer55’ means,” said Casey, “was that Zenaida was going to return Caylee in fifty-five days.” (If you count from June 16, the day Caylee disappeared, to August 9, Caylee’s birthday, it’s exactly fifty-five days.)
She said that Zenaida would give her instructions to go to places around Orlando, and the way she would do it was through posting on Myspace or Facebook.
“Zenaida could do this,” Casey said, “because she had the password, but Zenaida would post it and then delete it right away so there would be no trace of it.”
She looked at me with great seriousness. What I wanted to say to her was, You are nuts. That’s hands-down the most ridiculous story I have ever heard. Listen, Casey, it’s hard to believe that Zenaida was able to find someone in the jail to get to you and flash “timer55” so you won’t tell the cops what’s really going on. That’s a very powerful conspiracy theory.
But I didn’t say any of that because I wanted her to trust me. I wanted to be her helper and I wanted to find a way to get her to tell me the truth and to stop living in this intricate fantasy world of hers.
I was really struggling to respond to her, so I finally said, “This is going to be really difficult to prove.”
“I know,” Casey said quietly. “I know.”
I said, “You’re going to have to think long and hard to help me find things to help prove some of the things you’re saying, because they caught you in other lies, and if I come forward with this, it’s going to be very difficult to prove just based on your word.”
“I understand,” Casey said, “but I don’t know what to do.”
I thought to myself, Either she’s a really bad liar or this poor girl desperately needs some professional help.
I very much wanted to bring in a psychiatrist to talk to her. The problem was, I couldn’t. Every time I went to see Casey at the jail, the press would report, “Jose Baez went to visit Casey Anthony today for an hour and fifteen minutes.” Any visitor would become part of the public record and the subject of discussion in the media. I tried to picture the reaction if I were to bring in a psychiatrist to see Casey. The press would have had a field day. This was a clear example of how the public records law can hurt a case. I still wonder if my calling in a mental-health expert early on the case might have affected the outcome of the case.
At the bond hearing, Strickland had ordered two psychiatrists to see Casey in order to decide whether she was competent to stand trial. I was going to object, because that shouldn’t have been something for the state to determine. Rather, if anyone was going to make that move, it should have been mine to make. I didn’t object because I thought this might be a good time to get professionals to see her who might shed light on what her psychological problems might be.
If I had initiated it, then the media would be commenting that I was intending an insanity defense, which to a layman means, I’m not guilty because I’m crazy. Which was something I didn’t want because, more than anything, that would have hurt Casey. Plus she was sharp enough that she might have said to me, “I’m not crazy. You’re fired,” which was something else I didn’t want.
A couple days after Strickland handed down his ruling for a $500,000 bond, I filed an appeal with the Fifth District Court of Florida to have it overturned. To the best of my knowledge, this had been the very first time in the state of Florida that a defendant had received a $500,000 bond for a third-degree felony and two misdemeanors.
Clearly it was excessive. The appellate court denied our motion without a written opinion. We asked the appellate court to issue an opinion so we could take it to a higher court, but it refused. There’s a saying that “bad cases make bad law,” and I wondered whether this was an example of that.
I was in a real quandary. I was unable to communicate with Casey because the clicking of the intercom led me to believe that the police were listening to our conversations, so I needed to find a way to get her out. That’s par for the course in any case. Your clients want to get out of jail. They don’t want to sit there. Only I had the distinct feeling that unlike the rest of my clients, Casey enjoyed being in jail. When I came to see her, she was always upbeat, never depressed. She would come in feeling chipper, as though she was at a picnic rather than in jail. This, as much as anything else, really struck me as being odd. Only later would it turn out to make perfect sense.
