If it could convince the public, it figured, it could convince a jury.
The only difference, of course, is that for a jury to find Casey guilty of murder, the prosecutors had to come up with something called evidence. They would be hard-pressed to do so. Instead, the prosecution called her friends in an attempt to find her morally corrupt.
The first of the Fockers was Cameron Campana, one of Tony Lazzaro’s two roommates. By calling Cameron, the prosecution was trying to show the jury that naughty Casey was living with three guys in a small apartment. I objected to his line of questioning, but Judge Perry overruled me.
I wanted to make a strong statement with the first witness, so that the jury could see how irrelevant these witnesses were, and in this case less was more.
“Where you in Casey’s home on June 16, 2008, when Caylee drowned?” I asked Cameron.
“No,” he said.
“Thank you,” I said. “No further questions.” The courtroom was stunned with a moment of silence—expecting much, much more. But the brevity of it made an impact.
The next witness was Nathan Lezniewicz, the third of the roommates. When Nathan took the stand, Ashton went to show him a photo of Casey at the Fusion nightclub as she was participating in a hot body contest.
I objected.
“This photo is clearly to show bad character,” I said.
Judge Perry overruled me.
My co-counsel Cheney Mason then rose and moved for a mistrial under the Mena v. State case.
“This photo is not related to consciousness of guilt,” said Cheney.
“Denied,” said Judge Perry.
Frank George then asked Nathan whether he ever saw Casey distraught, depressed, scared, angry, or worried.
He said no.
“Did she ever go look for Caylee?” asked George.
“No.”
On cross I got Nathan to admit that during the few times he saw Casey with Caylee the little girl was well fed, well taken care of, and that Casey never yelled at her.
A final question: “Were you present on June 16, 2008, at the Anthony home when Caylee drowned in the pool?”
“No.”
George then questioned Clint House, who at one time lived with Tony and Cameron. Clint testified that Casey seemed like a “fun, party girl.” George then wanted to ask him about a photo of Casey dancing.
I objected, but was overruled.
Maria Kish, who was Clint’s girlfriend at the time, was next, and George got her to say that Casey really didn’t have much to do with the shot girls, and then at the end of the testimony he gave me a special gift. He asked Maria a question that he didn’t know the answer to.
George asked her, “Did you ever have occasion to ride in her car?”
Maria said yes.
“When was that?”
She said she couldn’t remember, but it was while Casey was staying with Tony, which was the time period that the prosecution was arguing Caylee was decomposing in the trunk. She said she rode in the backseat of Casey’s car with Tony and Clint.
Now it was my turn to cross-examine.
“When you sat in the backseat,” I asked, “did you smell any foul odor?”
“No, sir.”
“And Clint was with you in the backseat?”
“Yes.”
“And did Clint say something stinks back here or anything like that?”
“No, sir.”
“Okay, what about Tony. Did he say, ‘Boy, does this car stink?’”
“No, sir.”
And that really hurt them badly. It made the smell coming from the garbage a much more plausible explanation.
I had no idea Maria was going to testify to that. I never really thought, based on their sworn statements to law enforcement, that any of the Focker witnesses were very important to our defense. Until then.
It was a blunder on their part, a gift from the prosecution.
THEY CONTINUED TO CALL more Fockers, and I was able to get each one of them to testify to what a great mother Casey was. The Fockers were relatively insignificant witnesses up to the point where they put Tony on the stand. Tony talked a great deal about what Casey did during the thirty days Caylee was missing, and he testified to the issue of her not having any remorse, acting like nothing was wrong.
Then the prosecution asked Tony to discuss the “party photos.” These were photos of Casey at the club Fusion having a good time. In one photo, for everyone including the jury to see, Casey was entered in a hot body contest. How those pictures were relevant to anything, I don’t know, but I kept objecting, and Judge Perry kept overruling me. It didn’t seem fair.
Under the law, the prosecution is not allowed to show evidence to show a defendant’s lack of remorse because it’s so subjective and unreliable. It is not only irrelevant; it is contrary to the law and is reversible error. A reversible error is an error serious enough to cause a reversal on appeal.
Not only did they show that hot body–contest photo, but they showed photos of Casey shopping at various stores like J. C. Penny, Winn-Dixie, and Blockbuster, in an attempt to show that after Caylee died, she carried on her life as though nothing had happened to her.
When I cross-examined Tony Lazzaro, I decided to make my point about how irrelevant those photos were to the case by taking my questions to the next level. I wanted the jurors to understand just how irrelevant those photos were and how ridiculous it was for the prosecution to ask him about them.
“I want to ask you about these photographs,” I said to Tony. “You realize you’re here to testify in a first-degree murder case, do you not?”
“Yes, sir.”
George objected, arguing the question was beyond the scope.
“Sustained,” said Judge Perry.
“It’s irrelevant,” said George.
I asked Tony, “In the first photograph that was taken, did Casey Anthony talk about murdering anyone?”
“No.”
“Did she talk about murder she was planning on committing in the future?”
“No.”
“Did she borrow duct tape from anyone there at the party?”
“No.”
“Did she get any weapons, knives?”
“No.”
“Guns?”
“No.”
“Did you see a gun in her dress?”
“No.”
“Did you have the opportunity to see her with any weapons on her?”
“No.”
“Okay,” I said, “as to the second photograph, did she talk about murdering anyone on that day?”
“No.”
“Third photograph,” I said. “Did you talk about murdering anybody on that day?”
“No.”
“Did she wear a gun or did you have the opportunity to see if she had any weapons on her?”
“Nope.”
“Did she borrow any duct tape from anyone?”
“No.”
“Did she borrow any knives from anyone?”
“No.”
“Guns?”
“No.”
“Did she borrow anything that you think she could use to commit a murder on any of these three occasions from anyone?”
“No.”
“That you could see?”
“No.”
“What about when she went to JC Penny’s with you. Did she buy any duct tape there at JC Penny’s?”
“No.”
“Did she buy any plastic bags?”
“No.”
“Did she buy any chloroform there at the JC Penny’s?”
“No.”
“Did she go to the sporting goods department and look at the guns?”
“No.”
“Did she buy any weapons there at Blockbuster?”
“No.”
“Did she maybe snag a box cutter or something that you could see?”
“No.”
“Did she talk about murdering anybody?”
“No.”
“Did she talk about any murder she had previously committed?”
“No.”
“She didn’t buy any duct tape?”
“No.”
I was making an important point. What I was doing was taking the silliness of the irrelevant evidence to the next level. I decided that the more irrelevant their evidence of bad behavior was going to be, the more atrocious my questions were going to be.
My point: the party photos had nothing to do with the murder of Caylee Anthony. Nothing.
Even though it’s contrary to law, I can understand how people can talk about her lack of remorse. But as I saw it, the party photos were an obvious attempt by the prosecution to paint her negatively. So my goal was to do the polar opposite, to be extreme, just to show how ridiculous they were and to bring everyone back to the fact that this was a first-degree murder case.
Let’s talk about the murder.
And I was making this point with Tony Lazzaro, because he was such an important witness.
After Tony told the jury what a good mother Casey had been, I asked him about an incident at the pool of his apartment complex. On direct George had asked Tony about the first time Casey brought Caylee to his apartment. He testified the three of them went to the pool. George quickly moved on, but it opened the door for me. This is a perfect example of why knowing the facts is so important. If George had known about the pool incident, he never would have gone in that direction and opened the door.
Tony testified that Caylee was going near the pool and Casey went after her and stopped her. He testified that Caylee really loved the pool.
During his deposition Tony had been very wishy-washy about what Casey had told him about her being sexually abused. He clearly remembered what she said about her brother, but he was unsure whether she said her father had physically abused her or sexually abused her.
During direct examination, Frank George had asked Tony whether the two of them shared secrets. In other words, was their relationship so close that she confided in him; he said yes. That was a perfect opening for me to start asking about the secret of the abuse of Casey by Lee and her father.
On cross-examination I asked Tony whether he and Casey had shared secrets, and he said they did. I asked him whether Casey had told him about the abuse by her father.
He said yes, and the prosecution rose and shouted their objection.
They wanted a proffer, meaning they wanted to know ahead of time what we were going to ask the witnesses. And the judge kept upholding the objections, and we had to go to sidebar and the jury had to leave.
In the end Tony testified that Casey told him her brother Lee had felt her up, but he wasn’t sure what she had said about the father, whether it was physical or sexual abuse.
It didn’t matter. The innuendo was very strong, so I left it alone. I let the jury ponder the extent.
FROM THE START OF THE TRIAL, during my opening and afterward, I noted the behavior of prosecutor Ashton, who everyone could clearly see was mocking me by laughing and making strange faces whenever I made my presentation. My feeling was that was just Ashton being Ashton, that he wasn’t able to control himself. Among the members of the defense team, we had a nickname for him.
We called Ashton Tourette’s Boy.
My wife, Lorena, had another opinion. She said she thought he was deliberately trying to distract and embarrass me. I’m not sure I buy that. I just don’t think he was able to control himself.
If you remember, during a pretrial hearing, he had flipped out, and I knew that once the trial came, he would not be able to control himself.
Prior to the start of the trial, Judge Perry had sent us an order on court decorum, and in it was the warning, “No lawyer shall make any facial expressions,” and what Ashton kept doing was a clear violation of his order. I was really hoping Judge Perry would lash out at him in front of the jury.
I had worked with the guy for two-and-a-half years, and so I knew his lack of decorum was going to play to our advantage, so I had an intern document every time he laughed or made a face, and I made a video of his disrespectful actions. The whole trial was on TV, so it was easy to do. I wanted to document his behavior for Judge Perry, hoping Judge Perry would stop attacking me and maybe start attacking him.
I was sure the jury would notice his behavior and realize how insensitive he was for smiling and laughing during the death penalty case of the death of a child. There was nothing funny about it, and it wasn’t the time or place to be laughing or making jokes when you’re talking about the death of a baby.
Later in the trial, my co-counsel, Lisabeth Fryer, would say to me every time we went to sidebar, “Do you notice that Ashton has these skinny, long fingers? They’re like rat hands.” Whenever I talked to Lisabeth about him, I would call him, “Rat Hands.”
But generally within the team we preferred to call Ashton “Tourette’s Boy.”
CHAPTER 26
DAVID FINDS HIS ROCK
AT THE START OF DAY FOUR of the trial the prosecution filed a brief with the court in order to stop me from asking witnesses about Casey telling them if she was sexually abused. Their argument was that they noticed that Tony Lazzaro’s testimony about abuse, while short, was powerful, and they wanted to know in advance when it was coming. I answered that the motion was untimely. Also it was a perfect move for the prosecution to try to stop me cold. I mean, the prosecution paraded witness after witness to the stand to talk about Casey’s spending the night with men, her sexual partners, innuendos like a bruise one of them saw over Caylee’s eye, all designed to bring in information totally irrelevant to this case. What does this have to do with how Caylee died? And now they wanted to preclude me from undoing their character assassination.
“To limit our cross-examination of a witness clearly obstructs the truth finding process,” I argued.
“They’re very capable prosecutors,” I told the court. “They don’t need advance notice of what the witness is going to testify to.”
I told the court that the trial didn’t have a script. I wanted to know, “How could I know in advance what questions I wanted to ask? Why should I have to hand the prosecutors the gift of telling them in advance what I want to ask?”
“We have a theory of defense, judge,” I said. “We need to have the right to explore it, and we need to be able to have these witnesses on the spot and ask them specific questions. If there’s an objection to the question, the prosecutors are more than capable of objecting—and this certainly does not require us to stop, proffer, and give them advance notice of what is going to be asked a particular witness.”
I got nowhere with Judge Belvin Perry, who granted the state’s motion.
I then renewed our motion for a mistrial based on the impermissible evidence of Casey’s supposed lack of remorse that the state kept jamming down the throat of the jury.
“So far,” I said, “the state has put on a case solely dealing with the bad character of my client, or the attempted character assassination of her past conducts, boyfriends, people she slept with, things that have absolutely nothing to do with the crimes charged, and has put us in a position where we are significantly prejudiced as to some of the impermissible character evidence that they have been successful in introducing.”
Judge Perry stopped me. “Mr. Baez,” he said, “How many times have you asked in cross-examination of witnesses whether or not Ms. Anthony was a quote, good mother, unquote?”
“Many times,” I replied. “And I don’t think one has anything to do with the other.”
He said, “That can be construed as a question dealing with character evidence, which the state has objected to and I sustained the objection.” Judge Perry asked me if I was familiar with the case of Greenfield v. State.
“No, I am not,” I said.
He explained while I looked on in disbelief that the question I asked about her being a good mother was not a pertinent character trait permissible as character evidence.
�
�You motion for a mistrial is denied,” he said. We never expected him to grant it; however, in order to preserve the issue for appeal, the trial lawyer must make the motion for a mistrial. The theory being, why are you asking the appellate court now for a new trial when you never asked for one during trial.
THE NEXT WITNESS after Tony was the second appearance of George Anthony. I could see that the more time I spent cross-examining George, the more frustrated he was getting. This was why Jeff Ashton’s decision to limit my cross the first time was an incredibly bad move. I had more time to develop my crosses, and I also was afforded more opportunities to see what angered George on the witness stand.
George kept wanting to fight me toe-to-toe, and I noticed that when I’d order him to come down from the witness stand and write things on my exhibits, he would become infuriated.
We were engaged in a psychological battle in which a man who couldn’t have hated me any more was having to follow my instructions, even one as simple as writing something down on a calendar. I knew right then I getting under his skin, and because of that I also knew I was going to keep asking him to write things down on the board.
The purpose of his taking the stand this time was to talk about the fight he had with Casey over the gas cans. The idea was for the jury to believe that she had taken them and therefore she was responsible for putting the duct tape on them, and therefore she was the one who killed Caylee by putting duct tape across Caylee’s mouth, supposedly because Caylee was keeping her from partying.
The key piece of the state’s “evidence” was the duct tape on the gas cans, but I always felt the gas cans benefited the defense much more than the state. On cross-examination I wanted to introduce photos of the gas cans. They were entered as exhibits, but the prosecution was being slick by deliberately not introducing those photos.
Presumed Guilty: Casey Anthony: The Inside Story Page 36
