March Madness

We have come to the conclusion of another preliminary round, to the  now rapidly approaching main event in the case against Casey Anthony.  The recently completed evidentiary motion hearings, together with next week’s commencement of the Frye hearings (the battle over the admissibility of forensic evidence) will arguably be the most critical of the pre-trial skirmishes.  Having attended the motion hearings and the arguments of counsel, I have a few observations and a prediction or two.

First the observations:  Let’s start with the differences in the approach taken by  the Defense and the Prosecution, which could not have been greater.  The State obviously wants all of the statements made by Casey Anthony to be presented to the jury at trial.  Her statements, which, as we all now know, are replete with lies. Further, Ms. Anthony’s statements and conduct presented a pattern of behavior, together with a state of mind, totally inconsistent with an anxious mother, distressed that her little girl has gone missing for thirty plus days.  The State, however,  is mindful that Ms. Anthony had provided a written statement to law enforcement which contained a majority, if not all of the lies she later verbalized to the police investigators.  Lacking a legal basis to attack her written statement, the Defense has not moved to exclude it.  Therefore, the State will move it into evidence during trial for the jury’s consideration.  And, remember, the State knows with certainty that any statements by Ms. Anthony admitted into evidence over defense objection will become an issue on appeal.  Therefore neither the State nor the judge would run the risk of knowingly creating an appellate issue that might result in a conviction reversal and a complete re-do of the trial

The Prosecution then, attacked the defense motion to suppress with surgical skill, methodically addressing the issues raised by the Defense, painstakingly setting forth all of the facts surrounding each of Ms. Anthony’s statements, and finally, arguing the State’s position with relatively little emotion and no histrionics.  The Prosecution cited cases whose facts were as close as possible to the facts surrounding Ms. Anthony at the time she made the various statements at issue.  In addressing the judge in final remarks, the Prosecution included a solid factual recitation, resisting the temptation to “cherry pick”  only the facts favorable to the State’s position.  That approach was dictated by both the State’s ethical responsibility to do justice, rather than just gain a conviction, and perhaps from a more pragmatic view, to steer away from leading the judge into committing reversible error by playing fast and loose with the facts, or the case law.

The Defense lawyers’ objectives, based upon their motion to suppress, are quite different and basically twofold.  In the first instance, the Defense wants as much evidence excluded from jury consideration as possible.  This will increase the likelihood of a successful argument to the jury for an acquittal based upon reasonable doubt.  Remember,  just prior to its deliberation, the jury will be instructed by the judge,  among other things,  that a reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence, or the lack of evidence.  Failing in the first instance, the Defense, as any seasoned trial lawyer, would want to preserve the record on appeal so that an argument can later be made to the appellate court that the trial judge erred in letting the evidence go before the jury, and thus  a new trial ought be ordered.

The Defense took more of a scatter-shot approach in its motion to suppress, and, cherry picked the facts most favorable to its position.  Case law cited was generic, standing for general rather than specific principles of law, and argument employed emotion, some theatrics, with a dash of hyperbole for good measure.  The Defense has the luxury to do this however.  Their ethical responsibility is to their client, the Defendant.  They are charged with representing Ms. Anthony to the fullest extent of their abilities, employing any legitimate tools at their disposal in the process, just as long as they do not intentionally mislead the Court.  In these hearings, the Defense did what they needed to do  and they did it in an ethical way.  And, from my viewpoint, they did a good job, considering the facts they had to work with.

One final observation:  over the months many have asked why Casey Anthony has not dismissed Jose Baez, citing his lack of experience, frequent gaffs both in and out of court and other criticisms which I won’t detail.  Having observed Mr. Baez over the course of this case, and having heard witness testimony during the recent hearing, questioning his earlier decisions at the beginning of his representation of Ms. Anthony,  it is now clear to me.  One may question or criticize Mr. Baez’ experience and his handling of his client’s defense.  However, clearly, one cannot find fault with, nor speak poorly of, his loyalty, commitment, and determination  to his client and her defense.  In fact, Mr. Baez’ resolve at times clearly appears to work to his own detriment.  And, upon reflection, do not these characteristics go toward forming the basis for what one would absolutely want for his or her criminal defense lawyer?  These attributes could not be any more important than to one charged with possibly the most monstrous of acts:  the cold-blooded murder of one’s own little daughter.

As to the predictions:  Judge Perry will not admit any statement into evidence that he believes could serve as a basis for an appeal, and a possible reversal of any conviction.  This judge has handled numerous first degree murder cases of varying difficulty, none  that I am aware of have been reversed on appeal because of one of his rulings.  Additionally, he is well read, clever, and surpassed by none in his legal research abilities.  So, as to statements made to law enforcement: motion denied.  Ms. Anthony was not in custody or the functional equivalent of same, at the time she made her verbal statements.  Possible exception:  the statements made by her at the end of the “Universal Studios tour” at which time a reasonable person might not feel free to leave.

Statements made by George, Cindy and Lee Anthony: motion denied.  None was acting as agents for the police when Casey Anthony made statements to any of them.

Statements made to Robyn Adams in the form of written correspondence: motion denied.  Police involvement did not deny Ms. Anthony either her fifth or sixth amendment rights.

Disclaimer:  for the legal purist, I admit that there is a lot more law involved in reaching these decisions.  My terse explanations of my predictions is to spare the reader from the tedious task of learning how sausage is made, which, isn’t after all the point of this blog.

However, God forbid, should I be wrong, and Judge Perry does suppress any and all of Ms. Anthony’s statements, will that damage the State’s case?  The answer is no.  Refer to our second paragraph addressing Ms. Anthony’s written statement, replete with falsehoods, and, all of the evidence of her guilty knowledge.

WJS

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