by Jose Baez
What they found was amazing. They did criminal background checks, and we’d know if a juror was lying when asked if ever arrested for a crime. They’d find books a juror reviewed on Amazon. They’d find items they purchased, and they’d read websites if they had them, look up domain names, and find car registration. We even searched social media websites. We certainly live in the information age.
We were really on top of things, rocking and rolling with the seven volunteer law students cooped up in a hotel room with Dorothy leading the way.
It’s a good thing we were able to find the criminal records of the jurors, because at the start the prosecution was not sharing that information with us. Usually the prosecution runs background checks and shares that information with the defense. Not in this case. It was waiting until after the questioning of the juror was done, and only then would they bring it out. It didn’t matter. Thanks to Dorothy and her interns, we had the information ourselves.
During the first couple days of jury selection, we were working around the clock, questioning potential jurors individually. Hundreds were excused for hardship, meaning they couldn’t be sequestered in Orlando and leave their homes for two months, or leaving their job was a financial hardship. We had to be in court at eight thirty in the morning, and we would not stop until seven at night. The process seemed endless.
By the time we got back to the hotel, it was eight at night, and then we held meetings to discuss what had happened that day, what jurors we liked, what jurors we didn’t like, and what our plan was going to be for the next day. And when our meeting was over, I’d grab a bite to eat, and then I’d meet with Jim and his partner Tyler Benson, and we’d go over designing graphics for my opening statement.
I had planned out my opening statement, but now that I had a graphics expert at my disposal, I had to start from scratch, because I now could incorporate a visual presentation that was going to make the opening so much more persuasive and impactful. We had to pull photos and other exhibits to make a complete visual presentation.
We’d finish around two in the morning, and then I’d go to bed, and I had to be up at seven so I could be in court again at eight thirty.
After a couple days of this, I began to get sick from exhaustion.
After a session in court, we took a break, and I started to feel nauseous. I went into the bathroom and started vomiting. Cheney came in to see if I was all right, and I almost passed out.
“That’s it,” he said, “We have to stop.”
He saw I couldn’t continue.
Cheney went and told Judge Perry. I was able to straggle into his chambers, and Judge Perry was very, very considerate—surprisingly considerate. He took one look at me, and he canceled court for the day right then and there.
Casey was having lunch, and she was brought back to court. I told I her that I wasn’t feeling well. The media wasn’t told anything.
I took a little medicine and got into bed. I awoke a couple hours later, and decided, I’m just going to stay in bed all day.
After a couple more hours, I turned on the television to see what was on the news about the case.
It was pure madness. One station speculated that I was driving to the appeals court to appeal one of Judge Perry’s rulings. Another was replaying a video of Casey talking to me at the defense table. The reporter, trying to read her lips, decided what she was saying was, “Get me a plea.” They were sure our objective now was to get Casey a plea deal. A third television station stated unequivocally that I had quit.
What the hell, I said to myself.
I sent texts to a couple reporters I dealt with saying, “None of the rumors are true. We ended court today on a private matter. Jury selection will resume tomorrow.”
That then made the news, accompanied by commentary that went something like this:
“He’s lying.”
“Do we believe him?”
“Maybe he’s not telling the truth.”
Jesus, I said to myself, why did I even bother?
When I got back to court the next day after being sick, Judge Perry took me aside, and he was very gracious and nice. He asked me if I was feeling better; it was truly the nicest he had ever treated me.
I always wanted him to like me, and at times I felt he did, but unfortunately more times than not I had the feeling he hated me. I still don’t know why.
The hardest part about jury selection for me was the fatigue. There was even one point when I was selecting the jury when I made a Freudian slip and asked to use one of my peremptory challenges to remove Judge Perry, who got a chuckle out of it. But the reason that happened was the fatigue. Once the trial itself began, I was fine. But until then, I was working around the clock picking the jury and redoing my opening argument. It was almost too much to bear.
IN PREVIOUS HEARINGS, Casey was an excellent client in the courtroom. She did what she was told. She took notes. She didn’t make facial reactions. She didn’t speak out loud. She didn’t do anything.
The moment we sat down to do jury selection, Casey just broke down in tears. It was as if the reality that this case was going to trial had finally come.
Judge Perry read his instructions, “You’re here for the State of Florida versus Casey Marie Anthony. The state has elected to seek the death penalty.” When Casey heard this, she broke down crying.
The prosecutor asked for a sidebar, complaining about her crying.
We were pissed.
“She’s on trial for her life,” I said. “What do you expect her to be doing? Laughing?”
“I can’t prevent someone from crying,” said Judge Perry wisely.
I WAS AMAZED at how many jurors we felt to be stealth jurors, meaning people who wanted to be on the jury for reasons having nothing to do with justice. Either they wanted to be famous, or they planned to write a book, or they wanted to be on the jury so they could find Casey guilty. We looked for any signs, and we were especially wary of those who wanted to be on the jury too badly.
In addition to the stealth jurors, we struck a few others. There were several potential jurors who had been arrested and didn’t put it on their sworn questionnaire.
Dorothy and her researchers discovered that one potential juror had gone on Amazon and bought a toy action figure sitting in an electric chair! He had also written a couple of pro–death penalty blogs, but on the stand he was giving all the right answers as it related to the death penalty. Fortunately, this guy had also had a DUI, and he neglected to put it on his questionnaire.
THE INSANITY NEVER WENT AWAY. One day the court was questioning a juror when a heavyset woman with blonde hair by the name of Elizabeth Ann Rogers got up from her seat in the gallery and began shouting, “She killed her child, for Christ’s sake. She killed her child.”
She was arrested immediately, and Judge Perry held her in contempt. He threw her in jail for two days.
A prospective juror wanted to get out of serving, so he walked up to a news reporter and asked how he could get out of it. He found out quickly. Judge Perry held him in contempt and fined him a couple hundred bucks.
Then there was Patricia Young, the sixty-five-year-old EquuSearch volunteer from St. Petersburg who appeared on the jury list. We had her on our witness list as well. We wanted her to testify she had searched the area months before Caylee was found and never saw a thing. She had also been a protester outside the Anthony home. Because we listed her, the experts speculated we were going after George, because one evening George came out of his house and pushed her, which the media captured on tape.
Young was in the jury room, and she was telling people, “I volunteered for EquuSearch, and I wonder if this is for the Casey Anthony case.”
Linda Drane Burdick was the one who recognized her name. She brought it up to me and said, “Do you think this is her?”
“It could be,” I said.
And then the judge called her into chambers, and wouldn’t you know it, it was the same Patricia Young. She was the only woma
n from Clearwater on the witness list. What were the odds?
WE WERE ALLOWED ten peremptory challenges—in other words, challenges without cause—for the twelve jurors, and we were given a couple more for the five alternates. In most criminal trials, the judge also would give the defense a few extra peremptory challenges just to eliminate any issues on appeal as it relates to jury selection issues.
Here’s the thing about jury selection: In order for you to preserve any right of appeal for being denied striking someone for cause, you have to first exhaust all your peremptory challenges. Thus ninety-nine point nine, nine, nine percent of all trial lawyers will exhaust their peremptory challenges, and then if there is a juror you feel should be excused for cause, you then ask for an additional one. The judge always gives it to you, because he knows exactly what you’re doing—creating a record for an appeal. This is especially true if the reason for excluding that juror is borderline. To eliminate that, the judge will say, “Okay, we will give you another one.” At a certain point, if you object, and your reason isn’t very good, he will then say, “Denied,” and then you are left with a weak appealable issue.
This case was very different. Judge Perry gave us not one single extra peremptory challenge, which shocked me. But what could I do? I preserved the issue and moved on.
WHEN PICKING THIS JURY, my first priority was choosing jurors who were good as they related to the death penalty. Step one for a defense lawyer in a capital case is always to save the client’s life. Step two is to find good jurors for the guilty or innocent phase. Many times you come across jurors who are really good on the guilt or innocent phase but bad for the penalty phase, and you have to get rid of them. As a result, you end up with plenty of jurors you really like, but if they are proponents of the death penalty, you must get rid of them. This is the reason why death-qualified jurors are so conviction-prone.
In the end we ended up with twelve jurors and five alternates. Even though their names have been released, I refuse to publish their names for the purposes of this book. They have a right to their privacy, and I will do what I can to keep it that way.
Juror number one was an elderly Caucasian woman, sixty-seven years old, and a retired nurse. We liked that because nurses are generally nurturing people. She was extremely pleasant, mild-mannered, and didn’t feel very strongly about the death penalty.
When I was questioning her, she made the statement that trials fascinated her because a trial was about solving a mystery. At that point I wanted to make clear that she understood that a trial is not a two-sided affair.
“This is the prosecution’s show,” I said to her, “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.
Juror number two was a forty-five-year-old African American male who worked as an IT person for Pinellas County. His wife was a registered nurse, which we liked. We also knew we were going to bring the jury technical evidence with respect to computers, and we felt it would be good to have his expertise on that jury.
I also liked the fact he wasn’t big on the death penalty, but one time when I was questioning him, trying to educate him, he made a really bad facial expression, and I became really angry at myself because I knew I had pissed him off.
I really liked him as a juror anyway, but I worried about the face he made; it turned out he would be the last holdout for a manslaughter conviction, until he finally gave in.
And so while I liked him, out of all the jurors, he was the one I was concerned about most.
Juror number three was a thirty-two-year-old Caucasian female, a Democrat who had no children. What we really liked about her was she was a volunteer at Camp Torreya, a camp for lesbian, gay, bisexual and transgender (LGBT) teens. That told me a lot about her. It told me she was compassionate, and it told me she understood the nature of discrimination.
For me, this juror would be critical to us as to how this case was going to be tried. I knew the prosecution was going to try to get the jury to discriminate against Casey by citing the decisions she made and the lifestyle she led. I knew this because the prosecution didn’t have any evidence of a murder.
You might wonder why the prosecution didn’t know and why they didn’t ask to remove her. I don’t think they knew. Having Dorothy and her staff of crack researchers really did give us a big advantage in this regard.
Juror number four was a fifty-four-year-old African American woman. She was a Democrat, and she was married, and she made the comment that she didn’t like to judge people, a comment the prosecution jumped on, using it to try to exclude her. She was using it, it turned out, in a religious context.
The prosecution tried to exclude her with one of its peremptory challenges, and I objected, noting that this was part of a pattern on their part to exclude all African Americans from the jury.
We asked the prosecution to give us a race-neutral reason for excluding her under Batson v. United States, but the reason they gave wasn’t satisfactory to Judge Perry, and he refused to remove her from the jury.
The next day the prosecution asked the court reporter to transcribe her answers, and they renewed the motion to kick her off the jury. We renewed our objection, and the judge again denied their motion.
The reason the prosecution was trying to kick all the African Americans off the jury is because, as a rule, African Americans have been victims of discrimination for a long time, and they are less trusting of it.
And because they realize the finality of the death penalty, African Americans are generally against it. Prosecutors know this, so in death penalty cases they systematically exclude them. The end result is that whites make up the death case juries, by in my opinion this by definition makes the death penalty unconstitutional in its practice. In theory, the proponents of the death penalty say it’s not unfair, that it works; in practice, it does not. This was the one occasion that having an African American judge may have helped. Even the conservative Judge Belvin Perry Jr. must have felt discrimination in his lifetime, and if the prosecution was going to exclude potential jurors because of their race, it was going to be harder than usual to do that with Judge Perry on the bench.
We loved juror number four. She wasn’t too crazy about the death penalty. On a scale of one to ten, for us she was a ten.
Juror number five was a seventy-one-year-old Caucasian woman who was retired. She was also a Democrat. She didn’t own a computer, so I knew she wouldn’t be affected by the hate on the blogosphere. She was just a nice laid-back lady. She wasn’t crazy about the death penalty either, and what we also liked, she didn’t have young children. We knew she’d be fair.
Juror number six was a thirty-three-year-old Caucasian male, who worked as a chef. His only downside was he had two young children living at home, but we liked him because he appeared to be fair, and we thought that since he was a chef, he’d bring an artistic quality to the jury. Even though he was a Republican, we felt he’d be on the liberal side. We figured if we were going to get a parent with small children, it should be a male. This juror didn’t grade high, but for us he was adequate.
Juror number seven was a forty-one-year-old divorced Caucasian female. She was another Democrat, an executive assistant and a youth counselor, so she was another person who we felt would be tolerant, wouldn’t be so judgmental. We did the research on the place where she worked—this was where Dorothy and her crew were so phenomenal—and their mission statement said, “We base our concepts on a belief in God, and the uniqueness and inherent worth of each individual.” Not exactly pro-death penalty there.
Juror number eight was a sixty-year-old Caucasian woman who was a service representative at Verizon Wireless. She was midd
le of the road for us. She had had prior jury service, and we noticed that a few times she smiled at Cheney. I even told him, “Flirt with her. She likes you.” She didn’t have any small children, of course, and we had a good vibe about her. Also she was not very pro-death penalty.
Juror number nine was a fifty-three-year-old Caucasian male. He was unemployed, I assumed because he was retired, but he once had been a logger. He was very laid-back, seemed like a very nice guy, and again he wasn’t too pro-death penalty. For a short while we had a concern he might be a stealth juror, but we didn’t feel that strongly about it, so we kept him on.
Juror number ten was a fifty-seven-year-old Caucasian male who also worked for Verizon Wireless. He was a customer service representative, and we were concerned that he knew juror number eight. He didn’t. I went to a sidebar with him, and I found him to be a nice gentleman.
During a trial there is usually one juror with whom you make the most eye contact, and for this trial it was this juror. Most people avoid eye contact, but he was the type of person who would look you in the eye. I felt a very good connection with him.
Juror number eleven was a thirty-eight-year-old Caucasian physed teacher at a high school. He was a Democrat, a very good-looking guy who some in the media called “George Clooney.” Burdick certainly seemed smitten by him. We also liked him because he wasn’t crazy about the death penalty.
I remember liking him immediately because of something unique that he said.
During the questioning he was asked, “Did you think when you saw the media coverage that Casey was guilty?”
