Imperfect Justice

by Jeff Ashton

  CHAPTER SIXTEEN

  BEHIND THE DEFENSE

  The chaos brought on by finding Caylee’s body also spilled over to the defense team. The introduction of such vital evidence, along with our decision to make this a death penalty case, fundamentally changed the faces on the defense team. Yet through all the shifts on the defense, Jose Baez remained constant.

  Linda, Frank, and I decided early that part of my role in the prosecution was to be the person to do battle with Jose. That way, Linda and Frank could try to maintain a working relationship with him and keep the channels of communication open. That’s not to say that Linda didn’t also have her fights with him, but I was his main adversary. As such, it won’t surprise you that I must begin this portion of the story with a disclaimer, an admission of bias: I genuinely dislike Jose Baez. He has a great deal of superficial charm that can easily be appealing at first glance. I am a big movie fan, I even like musicals, and there is a line from My Fair Lady that has always reminded me of Jose. It comes when Henry Higgins describes Zoltan Karpathy, a gentleman of his acquaintance, thusly: “Oozing charm from every pore / He oiled his way across the floor.”

  It just seemed to fit.

  There is an unearned air of arrogance about the man that is incredibly frustrating to witness. I say unearned because there are lawyers who either by accomplishment, reputation, or experience have earned the right to a bit of swagger. It’s not always pleasant to be around, but at least you know that swagger comes from having done something special or at least having the reputation for being capable of it. Those who claim the right to that arrogance without the accomplishments to back it up deserve to be exposed. When we looked behind the extravagant claims, we found Baez to be a man of rather pedestrian accomplishments, with precious little experience or knowledge to back up his swagger.

  Like most people, I had never heard of Jose before this trial, but not long after I joined the case I’d poked around to get his background and learned that he was a thirty-nine-year-old criminal lawyer based in Kissimmee who’d been admitted to the Florida Bar relatively recently—after difficulties with his background investigation for eight years running. According to reports in the media, it had to do with failure to pay child support and financial irresponsibility.

  Baez was raised in New York City by a single mother. They later moved to South Florida, where he attended high school but dropped out in the ninth grade. At age seventeen, he was married with a child. Then he got his GED, joined the U.S. Navy in 1986, and was stationed in Norfolk, Virginia, for three years. After leaving the service, he attended Miami Dade Community College and the University of South Florida and went to law school at St. Thomas University School of Law in Miami.

  As the press reported it, after he was denied admission to the Bar, he tried a few unsuccessful business ventures, including two online bikini businesses, Bon Bon Bikinis and Brazilian-Bikinis.com. He also worked in some paralegal/investigator role with the Miami-Dade Police Department. Given his limited experience in the courtroom prior to this case, I figured that paralegal/investigator role was where he got the exaggerated trial experience he had listed on his law firm’s website when he began representing Casey.

  Some people go into law because they are fascinated by some aspect of the profession and love the law. For others it’s the complexity of the tax code, the chance to command a courtroom with their eloquence, or a passion to help the helpless that draws them to the law. Some people go into the profession as a business decision. I always figured Jose was in the latter group. Just as if he was selling the bikinis in his previous career, he was a consummate salesman—I have to give him that.

  That said, he was not the first attorney I’ve met whom I would describe as I have just described Jose. There’s nothing wrong with being in this job for the money or the spotlight—plenty of people are and I’ve worked with a lot of them. There are many lawyers whom I’ve done battle with in court, but when we step out of the courtroom, we are friends. Baez was not one of them—not because I disagreed with the cause he was championing but because I disagreed with the manner in which he went about doing it.

  Part of the obligation of any good attorney is to advocate for his client no matter how unpopular that cause may be. Many times that requires an attorney to passionately argue his or her client’s innocence even when the attorney may not subjectively believe it. I have no respect for a lawyer who would do any less. Between lawyers, though, honesty is key. Outside the courtroom, a lawyer’s word should mean something both to other lawyers and to the public in general. Even if you’re on opposing sides, you can’t work with someone you don’t trust.

  In my dealings with Jose, though, he sometimes seemed recklessly unconcerned about the accuracy of what he was saying, frequently filing motions he had not adequately investigated and that were not true. The word I always use in describing Jose is smarmy: somebody who is slick, underhanded, and doesn’t shoot straight.

  I tried to like him in the beginning, but every time I saw him in the media I found the appearance unethical and unprofessional. Our rules caution attorneys to avoid statements that have a likelihood of affecting potential jurors and, in fact, make it an offense subject to punishment. Unfortunately, it is a rule that, in my opinion, is rarely enforced as it should be. That is one of the reasons why we requested a gag order early in the case, which sadly was denied.

  The discovery of Caylee’s body put more of a spotlight on this already sensational case, giving more opportunities for Jose to thrust himself in front of the camera. Suddenly the stakes, already huge, grew even bigger—for everyone on both sides. We knew it, and so did the defense.

  PRIOR TO THE DISCOVERY OF the remains, a handful of lawyers had been involved with the case but nothing extraordinary—mostly Jose and a couple of associates. Adam Gabriel and Jose Garcia were associates of Baez’s firm who were each involved early on. In addition, there were Michael Walsh and Jonathan Kasen, who would later be involved in a related civil case filed by Zenaida Fernandez Gonzalez against Casey. Both Walsh and Kasen appeared briefly, but I was never really sure if they worked for Baez’s firm or just what their roles were. The bottom line was that Baez was in charge.

  The first real legal addition to the defense team came in the form of Terrie Lenamon, an experienced capital defense attorney from Miami, who joined the case in the fall of 2008 when we were originally debating whether to pursue the death penalty against Casey. At that point, of course, we didn’t have a body, but we had told the defense to provide us with any information they would like us to consider regarding the death penalty. Lenamon gave us a brief, which basically argued that Casey was a good mother and had never done anything wrong before, so therefore if Caylee was dead, the death may have been accidental. The document was not particularly helpful, since it didn’t provide any new information or allege any particular mental health concern that might have explained her behavior. In the end, it didn’t impact our decision not to seek the death penalty, and after we announced that decision in October 2008, Lenamon left the case, leaving Baez to do as he pleased.

  All that changed when Roy Kronk stumbled back into that Florida swamp. On December 11, 2008, the day Caylee’s body was found, Linda Kenney Baden entered the case. A defense attorney from New Jersey who was heavily involved with the forensic science community, Baden was the wife of Dr. Michael Baden, a celebrity forensic pathologist who was always on TV. I’d heard her name, but had never worked with her before, and my initial impression of her was not favorable. A month or so after she came on board, her new book, Skeleton Justice, coauthored with her husband, was released with much fanfare, so it was easy to speculate that she was chasing the spotlight. However, after taking witness depositions with her, I came to respect that she knew what she was doing and ended up enjoying her as opposing counsel.

  During the early days of Baden’s involvement, Baez filed more than twenty “emergency” motions with the court,
attempting to involve his experts in the processing of the crime scene and the evidence. One motion asked that their forensic pathologist observe our medical examiner, Dr. G, during her autopsy and for a second autopsy. The second autopsy was no problem for us, but Dr. G didn’t need any rubberneckers. Baez and Baden suggested that a forensic expert be appointed by the court to control the processing of the evidence. They also wanted what is called a special master, sort of an extension of the judge’s authority, to preside over their examination of the evidence, a process from which we would be excluded.

  By January 8, we were in court hearing those and sixteen other “emergency” motions, most of which were either for materials they would have eventually received in the normal course of discovery or things they would never be entitled to anyway. We figured that most of the motions were drafted by Baden since they didn’t seem to show an in-depth understanding of Florida law. Ultimately, the majority of them were denied, but we agreed to give the defense access to the crime scene when the sheriff’s office was done.

  Meanwhile, we filed a motion of our own to restrict the disclosure of photographs of Caylee’s remains. A while back we’d heard rumors that Jose had engineered Casey’s sale of photos of Caylee for $200,000 to ABC, and we did not want to see photos of Caylee’s body end up the same way. The defense agreed to the motion and so those photos were not seen in public till the trial.

  Whenever an attorney becomes involved in the financial affairs of a client aside from the payment of fees, it is a matter of concern. We had no specific information, but our concern was that if something inappropriate had occurred that Casey didn’t know about, our entire effort might be undermined. Suddenly she would have a postconviction claim against her attorney because of conflict of interest.

  We filed a motion asking the judge to hold a hearing in chambers to inquire and make sure that whatever deals had been struck, the defendant knew about them and waived any conflict. The defense was furious, and filed the first of many pleadings calling us every despicable thing you can think of. I remember that the judge seemed annoyed that we had raised the issue, but in the end I think he saw the wisdom in the precaution. The court had an obligation to ensure that counsel was free of conflict, so Judge Strickland set it for hearing.

  We all went into the jury room on the twenty-third floor of the courthouse. Altogether there were the three of us along with Baez, Casey, Judge Strickland, and the court reporter. First, Judge Strickland inquired about the sale of photos and confirmed that Casey had sold the photos and videos of her daughter to ABC for $200,000, which was being used for her defense. Baez claimed the money did not go directly to him but was eventually deposited in his trust account, saying that his fee was $89,000 and change, and the rest was for expenses.

  Baez stated that Baden had a separate contract with Casey directly, but that she had received no money yet. He indicated that he had no deals finalized for right to publication of any story nor did Casey. The judge did not make any more detailed inquiry into potential negotiations, but Casey did confirm the information provided by Baez that she had sold the photos.

  I was so disgusted by her at that moment. At the time when the sale had taken place, I was confident that Caylee was already dead and that Casey knew it. What kind of mother would sell pictures of her dead child for profit? I was also upset with ABC for participating in such checkbook journalism. I would have liked to inquire further about potential deals being cut, but clearly the judge felt that was enough and was not in the mood to press further. Ultimately, I was satisfied that we had done all we could to avoid that potential land mine.

  When Baez and company finally ran out of money in March 2010, and Casey was found indigent, it was clear that the State was not going to pay expenses for out-of-state attorneys to travel. We suspected that Baden would probably bail out, but to her credit, she stayed on through the completion of the depositions of the forensic experts, and finally withdrew in October 2010.

  EVERY TIME A NEW ATTORNEY joined the defense team, Baez touted him or her as having special expertise, whether it was in forensics, cross-examination, or procedure. The media ate it up. It seemed as though everyone who hooked up with the defense was suddenly anointed a great lawyer and part of the “dream team.” But O. J. Simpson’s, this defense was not.

  Perhaps the strangest entrant to the case was Todd Macaluso, a personal injury shark from California. As required of any attorney from another state who is not a member of the Florida Bar, Macaluso filed a motion seeking the court’s permission to enter pro hac vice, or “for this occasion.” These are motions by lawyers who have not been admitted to practice in a certain jurisdiction, but are allowed to participate in particular cases. In the filing, Macaluso was required to state that he was a member of the California Bar, in good standing, without discipline pending.

  He filed that form making that declaration, but Linda went online with the California Bar and discovered that he was under investigation for some questionable acts with clients’ money. One of our local reporters also discovered this, and asked Baez about it before we could spring it on them in court. Macaluso filed a corrected pleading, blaming his secretary for the oversight. Judge Strickland let him be involved in the case despite the pending investigation.

  Later on, at the indigency hearing where we learned that the defense was out of money, we also found out that Macaluso had bought his way into the case by giving the defense $70,000. In truth, he had very little actual involvement in the case. He spoke only once in court, to make a claim about how many searchers had looked in the area on Suburban Drive. He was eventually suspended in California over the discipline issue and withdrew from the Casey Anthony case in April 2010.

  In April 2009, when we announced our decision to seek the death penalty, the defense was required by law to have a qualified death penalty case lawyer on its team. There was talk that Terrie Lenamon would reenter the picture, but he did not want to come back on board. In an interview with Orlando Sentinel columnist Hal Boedeker in May 2009, Lenamon explained his decision. For starters, he had had few interactions with Casey. He also said that he and Baez had “a disagreement over strategy over mental-health mitigation,” a statement that I interpreted as meaning that Lenamon had suggested a route to take and Baez had disagreed with him. Because Baez was lead counsel, his way prevailed.

  In his interview with Boedeker, Lenamon went on to say that he felt media attention was going to be a problem for the case. Furthermore, Lenamon expressed concern that “the death penalty lawyer who will be brought in will be rubber-stamping a preplanned defense.” He then went on to add that “whoever that [death penalty] lawyer is has to be independent of the strategy in evaluating the case.”

  “I am hopeful they bring in some big-shot death penalty lawyer,” he said. “I will be the first one to say it’s the best move Mr. Baez has made since bringing me in.”

  In the end Baez did just that, as another lawyer, Andrea Lyon, joined the case. Andrea was a capital death penalty attorney in Chicago and a true believer in the abolition of the death penalty. She was a clinical professor at DePaul University in Chicago, and was the director of the Center for Justice in Capital Cases there. We would later learn that the center had added funds to Casey’s defense pot.

  From the start Lyon seemed quite capable; she is a big woman with a forceful presence. I remember one of my first conversations with her. Linda, Frank, and I were in the elevator and she told us that the defense wouldn’t be having any more of those unseemly press conferences that Jose was so fond of. I was briefly optimistic that perhaps things were changing. Then they quickly proceeded to hold a press conference, and then another, and many, many more. Lyon, like Baden, also had a book coming out, Angel of Death Row: My Life as a Death Penalty Defense Lawyer, coauthored with Alan Dershowitz. In January 2010, she told Today show host Meredith Vieira that Casey “didn’t kill her kid.” But Lyon declined to discuss any evidence she had se
en to support her claim. I thought that Illinois had the same rule as Florida against making pretrial statements; oh well, I guess I was mistaken.

  An Orlando defense attorney got in trouble with a local defense attorneys’ association for leaking a speech Lyon made at a death penalty conference, Life After Death, held in Orlando in 2008, where she made a very unflattering sexual reference to female prosecutors going home and putting on their “strap-ons.” We took it as a reference to a dildo—classy broad. The press had a field day, especially since the lead prosecutor in the Anthony case was a woman. Other statements Lyon made at that conference also created a stir, including her comments that judges are “ugly” and jurors are “killers.”

  To familiarize herself with Lyon, Linda reviewed the entire speech. Within the speech Lyon made repeated reference to her preferred defense tactic, creating an alternative suspect. Linda was of the opinion that Lyon was behind the defense’s campaign to attack Roy Kronk, the utility worker who had found Caylee’s remains. Shortly after Lyon entered the case, Mortimer Smith, an investigator who worked for her center, was digging into Kronk’s past.

  While Lyon was quite a charismatic adversary, the lawyer who, aside from Baez, would be there the longest arrived in March 2010. Cheney Mason was an Orlando lawyer touted in the press as having a stellar reputation. He’d made statements to the press in the past as a consultant, in which he questioned some of the things Baez was doing, so we were a little surprised, but we all knew Cheney and knew he craved the limelight. Linda, Frank, and I had each known Cheney for years and thought well of him. I can’t recall if I had ever actually done a trial with him, though I had watched Linda in trial against him a year or so earlier. Cheney was in his sixties by then and quite a character. He probably won’t like this, but we had always referred to him as Foghorn Leghorn, in that his accent and speech pattern were a spot-on match to that lovable Looney Tunes rooster. Cheney tended toward the bombastic—not really a details guy on either the law or the facts, but he could be very persuasive.