Imperfect Justice

by Jeff Ashton

  On Tuesday, July 5, I slid into work feeling pretty good. It had been 1,085 days since Cindy Anthony first called 911. The morning was uneventful. No one was expecting anything that soon. That afternoon, Linda, Frank, and I grabbed lunch. No sooner had I returned to my office than my phone rang. The jury had reached a verdict. I hustled over to the courthouse, where I learned the jury’s decision: not guilty of first-degree murder, aggravated manslaughter, and aggravated child abuse; guilty of all four counts of lying to police.

  AFTER THE VERDICT, MEMBERS OF the prosecution team met in a conference room with all of the investigators and State Attorney Lawson Lamar for a private discussion before meeting with the press. The defense team also appeared before the cameras for a press conference of their own. As hard as I may have been on Jose Baez in these pages, I thought his posttrial comments showed class and professionalism, and I commend him for them. Mason, however, indulged in some rather childish comments directed toward legal commentators who had dared to point out errors committed by his team. Again, the irony was rich, since Mason himself had once been one of those commentators. I might have written it off to the adrenaline rush of a verdict that he was not expecting, but shortly thereafter the childishness continued as he was photographed “flipping the finger” to media folks filming him and the team in a rather unseemly champagne party at a bar across the street from the courthouse. If he had wanted privacy, perhaps he should have partied in private. I would have expected a man of his age and reputation to have shown a bit more class.

  As soon as the press conference was over, I was off to New York to break the silence that we had held for three years. Since then, I haven’t stopped talking about the case.

  When I returned from New York, I took a few days to wrap up and pack up my desk. People throughout the office came up to me to express their frustration in the “not guilty” verdict, and to let me know that they were on my side, Caylee’s side. Then, I left the office I had worked in for thirty years for the final time. Where I was headed, I couldn’t say.

  Disappointing though the verdict was, I refused to let it overshadow what I’d accomplished with the State Attorney’s Office. As with any retirement, there was a bittersweet air to things. I had used every skill I’d developed in my thirty years to get the jury to see the big picture. The team of investigators, prosecutors, and assistants did all that was humanly possible to do the same. Once that is done, all you can do is rest with the knowledge that you did everything anyone could do. As they say in sports, we left it all on the field.

  A few weeks later, Linda and another friend, Sara Freeman, organized a retirement party for me at a local establishment. Many old friends from my homicide days in the nineties were there, men and women who had since retired. Seeing all those old and familiar faces, it was great to reminisce—not only because of how much fun it was, but also because it reminded me that this was not my only murder case. There were many other stories that I’d told to juries, many other crimes that I’d taken pride in bringing justice to. Looking at everyone from throughout my legal career gathered together, I was reminded that, in spite of all the difficulty this case had put me through, it might not have even been my hardest. And as much as it felt like an end, it might not even be my last.

  During one of the rare moments I had to myself that night, I sat down at a small table on the periphery of the party. Glancing over the crowd, I thought back to that lunch with Linda three years before at the Daily News Café. In retrospect, it would have been so easy for me to simply turn her offer down, to say I wasn’t interested and quietly wait out until I’d hit my thirty years. It would have been so easy for me to pass the case on to someone else and simply coasted by. I certainly would have saved myself a lot of frustration.

  But I’d wanted the case then. Now, sitting at my going-away party and knowing the outcome, I still understood why. I hadn’t wanted the case because of the spotlight. I hadn’t wanted the case for a shot at glory. In my past cases, I’d had both of those things. Alone, neither was enough to get out of bed in the morning, and they certainly weren’t enough to justify putting up with Jose Baez for three years.

  No, I’d wanted the case because I thought it was worth fighting for. I was going to go out either way, and I can’t think of a better way to go out, than fighting for little Caylee Marie Anthony.

  EPILOGUE

  In the wake of the verdict, a lot has been said about every aspect of the Casey Anthony case. Most vocal are the people expressing outrage at how this verdict was possible, reserving a uniquely powerful ire for Casey and, in at least one poll, naming her the most hated person in America. Perhaps a bit less loudly, people have criticized the jury for the decision they reached, wondering how it was possible for them to hear the evidence and reach such a surprising conclusion.

  Likewise, people have found room to criticize our efforts in the prosecution. As a prosecutor who has taken part in cases like this before, I try not to put too much stock in the Monday-morning quarterbacking that goes on, but at the same time, I know it’s inevitable. In listening to the anger and the frustration that people have displayed, it’s been hard for me not to chime in in agreement, but I also know that these decisions and the forces that create them never have any easy answers. People around the country who passionately believe Casey was guilty still struggle with just how this woman was able to get away with it. It’s a frustration I share, and while there’s nothing to alleviate that, I do have some thoughts that might help put it in perspective.

  Simply put, I think Jose Baez won in spite of himself. Time and time again, I saw how his lack of procedural knowledge hampered his ability to effectively represent his client. His defense was disjointed, his presentation questionable. Even now, after reviewing three years’ worth of motions, depositions, and witnesses, the defense’s strategy is nearly impossible to discern. Throwing everything out there and seeing what sticks has never been a viable defense strategy, in my mind. To say it was all smoke and mirrors implies there was some grand illusion that the defense worked the whole time. I think that gives them too much credit.

  In many ways I think the defense came to mirror the client they represented. Just as Casey reacted when she reached the end of the hall, Baez took each leg of the defense as far as he could, and when he finally ran out of options, he just grabbed on to the next available thing—whether that thing was Zanny, Roy Kronk, or George Anthony. Standing back from it all, it’s very hard to find any aspect of their case credible when so much of it was dependent on Casey, the world’s least reliable narrator.

  Of course, if Baez’s defense didn’t lead to the verdict, then what did? In the months since the verdict was handed down, I’ve asked myself that question about once an hour. There are no easy answers, but in hindsight, my belief is that the evidence as well as the makeup of the jury played large roles in how this decision was shaped.

  First, to the evidence. As I’ve said before, you can only try a case with the evidence and the facts that you get from investigators, and in this case, despite the exhaustive efforts of the investigators and our experts, the evidence we had was entirely circumstantial. Now, plenty of murder cases gain convictions with purely circumstantial evidence; however, the caveat when trying a murder case with circumstantial evidence is that you need the jury to be willing to do a lot of work.

  Furthermore, we’d always known that there were a couple of spots in the evidence that were problematic for us. Chief among them was not having a cause of death, but also we on the prosecution team could never effectively say exactly how Casey went from a search for chloroform in March to killing Caylee in June. We had our theories, of course, but there was never anything that we could say definitively and prove in court. Similarly, another barrier was that Casey, according to all the testimonies of her friends and family, had been a loving mother. If this were true, how did she become a cold-blooded killer?

  Of course, there was no way for
us to suddenly come up with a cause of death or prove that the events between March and June led to Casey killing her daughter, but the claim of Casey being a loving mother was an area where a more complete and candid testimony from Cindy could have been really beneficial. As Cindy’s coworkers had shown in our interviews with them, Cindy had her doubts about Casey as a mother. Because these interviews were based in hearsay and therefore inadmissible, Cindy alone had the power to show this to the jury. If Cindy had chosen Caylee over Casey, we might have been able to use Cindy’s testimony to make a stronger case for Casey as an irresponsible parent with more of a motive for murdering her daughter.

  However, even with those shortcomings, we had an incredibly strong case. I’d always felt (and still do) that the presence of the duct tape showed clearly that this was first-degree murder. Couple that with Casey’s pattern of lies, her total lack of emotional response to the “accidental” death of her child, the smell in the trunk, Caylee’s hair, and the cadaver dog’s reactions, and I feel this demonstrates an undeniable level of guilt on Casey’s part.

  While I believe that the evidence proves Casey is guilty of first-degree murder, it is possible to see why the jury might have disagreed with that specific charge. Perhaps they felt the burden of proof was just too high for murder one, which would carry the possibility of the death penalty. If that were the argument, I’d beg to differ with it, but on some level I could at least understand that response. But there were lesser charges the jury could have convicted on that would still have reflected Casey’s responsibility for her daughter’s death. What I find truly baffling though is that somehow they did not see the proof enough to convict her of a lesser murder charge or even manslaughter.

  In the wake of the verdict, a frequent criticism has been that the state attorney should not have made this a capital case. Without the death penalty, the thinking goes, the jury would have almost certainly returned a “guilty” verdict, because they just couldn’t bring themselves to rob George and Cindy of their only daughter when they’d already lost their granddaughter. Of course, the obvious problem with this logic is that the jury would have been fully within its right to reject first-degree murder in favor of a lesser murder conviction that did not carry the death penalty. If they’d really felt she was guilty but did not want to award the death penalty, a lesser murder charge would have conveyed that point quite well. This verdict, however, was not the work of a jury that was concerned about the punishment; instead, this decision was the work of a jury who didn’t believe she deserved to be punished at all. To me the biggest legacy of this decision is not that Casey wasn’t convicted of first-degree murder, but that she got away scot-free.

  Ultimately, it is this piece of the jury’s decision that I absolutely cannot understand: how could they disregard so much evidence showing that Casey had played a large role in Caylee’s death? Looking through the testimonies that we presented at trial, one thing that seems quite apparent is that, either through her own deliberate actions or through some kind of negligence, Casey was involved in her daughter’s death. There is simply too much evidence tying Caylee’s dead body to the car Casey was driving for me to believe that Casey herself was completely uninvolved.

  Our case was not a slam dunk; we knew that from the start. It required work from us, it required work from the witnesses we’d called to present our evidence, and it required work, not to mention common sense, from the jury. From the moment our jury had been fielded back in May, we’d had concerns over their apparent absence of strong opinions as well as over the amount of effort they seemed willing to expend on this. In retrospect, I think those concerns were justified.

  My worst fears from jury selection manifested themselves in the verdict. This jury needed someone to tell them exactly how Caylee died. Piecing it together from circumstantial evidence was not good enough for them. They wanted the answers on a silver platter, but we didn’t have the evidence to serve it that way. It’s not just the verdict that tells me this, but also the manner in which it was reached. The fact that they didn’t request any materials to review. The fact that they didn’t have any questions for the judge. If the statements that the foreman of the jury made to the media are true, ten of these twelve jurors felt that ninety minutes of deliberation was sufficient to fully weigh, consider, and reject four weeks’ worth of testimony that we on the prosecution used to establish that this was first-degree murder. The rest of the thirteen hours of deliberation had been spent trying to convince the two holdout jurors of the decision.

  Juror Jennifer Ford, the only juror to identify herself, later said in an interview that “no one showed them how Caylee died.” My question would be: How hard in those ninety minutes did you look for it? The jurors had to put the pieces together and apply some common sense to the notion of how people do and don’t act. This jury was not willing to do that, so in a sense we lost before we started.

  I AM FIRST AND FOREMOST a lawyer, and as such I believe in the system of trial by jury. It’s the best we have. That system can’t work if jurors aren’t free to follow their consciences and do what they think is right, without fear of condemnation. The system can’t work without it. But at the same time they take a sacred oath to honestly try the case and follow the law. We expect them to take that obligation seriously, and we entrust them to do their very best. The system can’t work without that, either.

  We will never know if the jury followed the law in this case. We weren’t in the jury room with them. Judge Perry told them that George’s statement to River Cruz could not be used as evidence of how Caylee died. Did they follow that instruction and ignore that piece of evidence? Similarly, the Judge told them that what the attorneys say is not evidence, so they should have ignored most of the defense’s opening statement. Did they ignore the unsubstantiated idea that George had abused Casey? Absent some strong evidence to the contrary, I believe they followed the law.

  Three of the jurors have given statements to the media, two anonymously and one by name. Having reviewed them all, I am pleased that it appears they did follow the court’s instructions. None of them seemed to give any thought to the unproven allegations of molestation or any of the other outlandish claims made by the defense in their opening statements. Along the same line, the defense’s repeated attempts to paint Casey as a victim ultimately fell on deaf ears, and no one seemed to believe Roy Kronk was seriously involved in anything beyond his discovery of the body.

  Assuming they did follow the instructions, the question becomes one of reasonable doubt. We tell jurors that burden of proof is beyond a reasonable doubt, but defining that term is difficult. A reasonable doubt is not a speculative, imaginary, or forced doubt. We use concepts like “abiding conviction of guilt,” which ultimately means that the definition of “reasonable” is up to them. They must apply common sense, that knowledge of how people act by having lived in the world, to reach their own conclusion.

  They presumably felt it was reasonable to believe that a mother would react to the accidental drowning of her young daughter by making no effort to revive her. They presumably felt it made sense that the mother’s next act would be to stuff her in a garbage bag and throw her in a swamp. If the jurors felt that those were “reasonable” reactions in keeping with what they knew about human behavior, then they had every right to feel that way and we have every right to disagree with them. I’d always said that if the jury saw the photograph of Caylee’s remains with duct tape over her nose and mouth and didn’t see in it what I did, then so be it. To me the duct tape was the one thing that could never be lied away, the one thing that said murder beyond a reasonable doubt, the one thing for which the defense had no explanation, and the one thing for which none of the jurors had any explanation in their post-trial interviews. Clearly, though, they disagreed, and we have no right to condemn them, no matter how angry the outcome may make us.

  Throughout the weeks of the trial, I kept thinking that justice for Caylee would be su
fficient to make the jury work harder and care enough to really think through what was reasonable. From the instant we showed the photo of Caylee’s remains with the duct tape and were met with no discernible emotion from the jury, I knew that it would be a struggle to make them care. Maybe there is something we could have done to make them care more or motivated them to think a bit harder about the evidence that we did have, but if there is I can’t think of it. We just couldn’t make them care more.

  And perhaps that is the saddest part of all of this, that right up until the end so few people were willing to care about Caylee. Caylee got lost. I believe she was lost to Casey when she got in the way of the “Bella Vita.” She was lost to Cindy when Cindy chose to get behind Casey rather than lose her. And finally, I fear she was lost in the trial and never made it into the hearts of the jury members in the deliberation room.

  There have been many cases in the past where juries have convicted people of murder based on less evidence, cases where the exact cause of death was unknown, or even cases where the body was never found. Part of it always comes down to the random and unpredictable variable of who shows up for jury duty. I do think that the outcome was influenced by the publicity and the difficulties it created for us in jury selection that I talked about before. I remember a conversation I had when we were debating whether to try and pick a jury here in Orlando and I said, “You might be able to get a jury here, but you’re not gonna like what you end up with.” I guess what applied to Orlando applied to Pinellas County as well. Maybe we should have gone farther away. Maybe to the moon.

  IN SEPTEMBER, GEORGE AND CINDY Anthony gave their first televised interview since the verdict when they appeared on Dr. Phil. Watching both of them together, I found myself thinking of that day at our office when they came in, and we’d explained to them via their lawyer what Casey would be accusing George of at trial.