A Lesson From the Casey Anthony Trial

 Posted on June 12, 2011 in Uncategorized

In trial, credibility is everything. If the jury believes the criminal-defense lawyer, the defendant has a fighting chance even in the face of evidence that is on its face strong; if the jury thinks the criminal-defense lawyer is a liar, the defendant is doomed even if the facts against him appear weak.

So there is a certain logic to Orlando criminal-defense lawyer Jose Baez asking for a mistrial because evidence had been admitted that disparaged his character. The evidence in question? Jail telephone recordings of his client talking to her family members about him:

In a conversation on July 25, 2008, Casey Anthony's brother told his jailed sister that Baez's number one priority is himself."Understand your rights in this.... If at any point you want to change jockeys in this horse race, you can do it...it's as simple as you reaching out to anyone in the Corrections Department...and make it known on what you want to do," Lee Anthony advised his sister....Her brother asked her in one jailhouse interview how she came to hire him."It kind of happened at random in booking," Casey Anthony told her parents according to jailhouse tape that was played at her trial. "I heard a couple of people talking about attorneys...His name came up and I said if he's good, can you do me a favor and pass my name along...It was an inmate and there was three other people that confirmed it."Casey Anthony's parents, George and Cindy Anthony, also expressed concern over her choice of a lawyer. George Anthony questioned Jose Baez's motives on a taped conversation with his daughter from Aug. 3, 2008."I just, I hope that the compassion that he says that he has is being genuine...I hope he's not building a reputation for himself," George Anthony said.

(I'll leave to Scott Greenfield the question of the wisdom of hiring a criminal-defense lawyer based on the recommendation of people who can't even keep themselves out of jail.)

How Anthony chose Baez, and the family's opinion of Baez, seem irrelevant to any issue in her capital murder trial. How those portions of the jail recordings came in over objections under Rule of Evidence 402 (relevancy) and 403 (prejudice substantially outweighing probative value) is a mystery for appellate (if the objections were made) or habeas (if they weren't) counsel.

Preservation-of-error digression: Of course, a mistrial is not the first thing to request-first, as soon as the objectionable nature of the evidence becomes apparent, the lawyer objects to the evidence; then, if the judge sustains the objection, the lawyer moves to strike the evidence (if the jury has already seen or heard it); then, if the judge orders the evidence stricken, the lawyer asks the judge to instruct the jury to disregard the evidence; then, if the judge instructs the jury to disregard the evidence, the lawyer asks for a mistrial. If at any point the judge denies the lawyer's request, then the lawyer has done his job and preserved error, and taking the next step is redundant and unnecessary. So for example, if the judge denies the objection there is no point in moving to strike it. If the lawyer asks for a mistrial without first objecting and asking that the jury be instructed to disregard the evidence, error might be preserved only if the error could not have been cured with an instruction to disregard.

One can see why Baez wouldn't want the jury hearing that Ms. Anthony chose him based on inmates' recommendations, nor that her family was concerned that he took her case to build a reputation for himself. But that is, frankly, the least of his client's problems.

This is much more worrisome:

He appeared with Casey Anthony at a press conference in October 2008 when a grand jury was considering murder charges against her. Both she and Baez continued to claim that Caylee was missing and Casey Anthony wore a "Help Find Caylee" button.

Baez's theory at trial is that Caylee had died accidentally four months before the press conference, and had covered up the death as (according to the ABC News story) "part of a bizarre coping mechanism she developed from years of alleged sexual abuse at the hands of her father."

In preparation for the press conference, Anthony either lied to her lawyer or told him the truth. If she lied to him, that strengthens the case against her by making her more of a liar, lying not only to the media and the police but also to the guy whose job it was to defend her (if she lied so persuasively that even he was convinced, the jury might ask itself, why should we believe her now?). If she told him the truth before October 2008, that strengthens the case against her, as a practical matter, by making him a liar (if he was lying then, the jury might ask itself, why should we believe him now?).

I think it'd be better for Anthony had she lied to Baez (it fits into the "bizarre coping mechanism" theory), but I could be wrong. In any case, one of those scenarios is better than the other, and Baez is a potential witness to which it was.

I have not held a press conference. I've represented plenty of folks with pressworthy cases, but I've never felt the urge to parade them in front of the cameras to tell any sort of story. I have seen lawyers I know do it, and it has appeared to me to be for the benefit more of the lawyers than of their clients.

I wouldn't tell a story to the press, much less allow my client to tell the story, without knowing that that was the story we were going to tell in the event of a trial. I'm not, for example, going to tell the press that my client has an alibi when he might have acted in self-defense, nor am I going to tell the press that my client acted in self-defense when the killing might have been an accident. And if my story at trial might be that the alleged victim drowned in June 2008, I'm not going to hold a press conference to ask people to help her find the alleged victim.

Assuming for the sake of argument that Baez doesn't share his client's "bizarre coping mechanism" and believed in October 2008 that Caylee was missing, allowing his client to claim publicly that she was was a Bad Criminal-Defense Idea because Baez didn't know in June 2008 what Anthony's defense was going to be at trial. If Baez was acting at that moment in his own best interest-to get his face on TV-there's a special place in Hell for him. If, on the other hand, he was acting as a publicist, trying to get a distraught mother's story out to the world and help find her daughter, he should not now be representing her at trial, where a different story is called for.

The reasons are obvious, and that Baez hasn't, in three years, seen them and withdrawn to let someone else tell the new-and-improved story reflects poorly on him. We may have another Rakofsky in the making.