Presumed Guilty: Casey Anthony: The Inside Story (45 page)

In the end, Strickland had no choice but to recuse himself. If he had stayed on, we would have appealed his decision to the appellate court, and it was clear we had made a strong case for him to step down.

It was a question of his fairness, and he was unable to stand up to the storm of criticism that came from the media when they learned of his relationship with Marinade Dave.

Rather than just step down, Strickland wrote a scathing order in which he ripped me and worse, ripped the defendant. Under the law this man was supposed to be impartial. When we saw his comments, we were appalled and knew we made the right decision.

Cheney refused to take it lying down. He filed a motion to strike his comments and added his own commentary, arguing that a judge should not have any relationship with the media, including bloggers. It was inappropriate, he argued. The two of them went at it.

After the not-guilty verdict, Strickland became a commentator and one of our strongest critics. I was on a plane watching
Nancy Grace
and couldn’t believe that he was her guest. It turns out that Strickland and Nancy Grace were classmates at Mercer University School of Law. He also granted an interview with a local TV station in which he said he disagreed with the verdict.

I couldn’t believe what he was doing. Strickland’s appearances caused a major stink in the local legal community. I was getting calls from lawyers who threatened to complain to the Judicial Qualifications Committee (JQC), which regulates Florida judges. They wanted the JQC to know what Strickland was doing. Shortly thereafter, he resigned as a judge. My suspicion is that he resigned because of those complaints.

When Strickland stepped down, Cheney, who had been on the circuit a long time, had a strong suspicion that the judge who was going to replace him would be Judge Belvin Perry. He was the chief judge of the Ninth Judicial Circuit Court of Florida and didn’t have any active cases. Perry had more of an administrative role. He filled in for trials and presided over some of the more important cases. He was a former prosecutor who had tried death penalty cases. His father was the first African-American police officer in Orlando. Cheney had a wonderful relationship with Perry; the two of them were old colleagues, and Cheney considered him a friend.

We thought we had finally caught a break. We had important motions coming up, motions Strickland was sure to shoot down. We were optimistic that Perry wouldn’t hold the same strong prejudices against us that Strickland had held.

We were also more confident about Perry’s expertise in criminal law; Strickland had mostly been in workman’s compensation during his career, and we wanted someone more sophisticated and more fair.

Initially, I really liked Perry. My first interactions with him were extremely positive. When we had our first sidebar, I felt relaxed. He was very pleasant, and I sensed he was going to listen to both arguments and make his decision based on the law, despite what everyone in the media was saying about him.

Hard-nosed, no-nonsense
is what the press said. Some local lawyers were calling my move to recuse Strickland a “huge mistake.” One said it was “the dumbest move Jose Baez ever made.”

Just before Perry came on board, we made a motion to declare Casey indigent. It was necessary because we could no longer pay for the experts we needed to defend her, and if she were declared indigent, then the expenses would be borne by the state. Our motion was granted by Strickland, and we were gratified when Perry gave us most of what we were asking for.

Going into the trial, I felt relieved
. Finally
, I thought,
I have a shot at a fair trial. Wow, we’re finally on a level playing field. We’re going to be able to make things interesting.

I was about to find out I couldn’t have been more wrong.

As time went by, the media kept portraying Perry as a no-nonsense judge, saying he wasn’t going to put up with Jose Baez’s crap. The media was setting the stage as it waited for me to do something that would incur Perry’s wrath. I don’t really know whether that had anything to do with the way he would treat me, but I felt it was certainly a strong possibility.

In hindsight, I should have left well enough alone. We were hoping the new judge would be a breath of fresh air, but at the end of the day, the verdict would have been the same. It’s just that I would have been spared a lot of humiliation and distress.

There had been a lot of criticism that the case was taking a long time to get to trial. The critics, however, don’t know the first thing about murder trials. On average it takes two to three years for a murder case to go to trial. If it’s a death penalty case, it’s closer to three years, and can be even longer, depending on the circumstances.

As hard as I was working, I still wasn’t able to accomplish all that needed to be accomplished. There were depositions of my experts I had to take. I had to depose law enforcement. The prosecution kept piling on more and more discovery, knowing I was short-handed. There were depositions relating to forensics, and we had a slew of pretrial motions we had to prepare.

When Strickland was presiding over the case, the prosecution had suggested that he set a deadline for taking depositions and filing motions. Based on those suggestions, Strickland set a trial date of May 9, 2011. It was more than a year away.

When Perry took over and announced he would enforce the deadlines, trial preparation jumped from first to fifth gear. If I had been under pressure before, now I was under the gun to do the impossible.

The average complicated case has about a thousand pages of discovery. This case had
26,000
pages! It had more than three hundred hours of audio and video. Given the limited resources we had, I didn’t think there was any way this case could have gone to trial in three years. It did, but I was working seven days a week, fourteen hours a day to prepare for it.

It’s a lot harder to defend a case than to prosecute one. The work is much more intensive. At times I would get so frustrated, I wanted to pull my hair out. If I have any regrets, it’s that I didn’t come forward and tell the court I was being ineffective because we were pushing so hard and moving so quickly.

For Perry to push us that hard was borderline sacrificing Casey’s right to a fair trial and competent counsel.

The other problem I had was that the prosecution knew I was short-handed, that my financial resources were severely limited, and prosecutor Jeff Ashton, an admitted street fighter, did everything he could to make my job as difficult as possible. One thing we had to do was go through the prosecution’s witness list and take depositions. Ordinarily the list is broken into A witnesses (the important ones), B witnesses (less important), and C witnesses (those who probably won’t be called). But the prosecution had a policy where it rated every single one of its witnesses as an A. The prosecutors refused to tell me which ones weren’t going to be called, increasing my workload considerably.

I regret not going before Perry and telling him, “Listen, I’m being ineffective because I’m working seven days a week, fourteen hours a day, and I just can’t do it anymore.” I know he would have taken control of my calendar, asking me who I was interviewing and what I was doing.

But I have an ego and didn’t want to look bad. I didn’t want to be honest, and looking back, I’m ashamed of myself for it. I didn’t stand up and say, “I’m being borderline ineffective here. I’m cutting corners, and it shouldn’t be that way.”

T
HEN ISSUES
dealing with discovery arose. The whole no-nonsense judge theme carried out by the media gave Ashton, the prosecutor in charge of the forensic evidence, an opening. It created an advantage for him that was really sneaky, but brilliant. He kept filing motions claiming we weren’t living up to our obligations in discovery. In essence, he wanted Perry to think that we weren’t following his orders. He filed a motion asking the judge to make us give him a list of each expert, the expert’s field, and what opinions he or she was going to render at trial.

It seemed reasonable on its face, but in Florida we take depositions, which provides for a lawyer to put a witness under oath with a court reporter and ask the witness questions before trial. Using depositions, a lawyer can prepare for trial with no surprises. If the witness testifies differently at trial, the lawyer can impeach him with the testimony from the deposition transcripts. It’s a great tool and prevents a trial by ambush.

If the prosecution wanted to know what my experts were going to testify to, all Ashton had to do was take their depositions.

Instead, Ashton cleverly made a motion asking that we provide him with an outline of what my experts were going to testify to ostensibly so he could
prepare
for their depositions.

And Perry made my life immeasurably harder by granting that, just as he would grant almost all of the prosecution’s motions.

Understand, this isn’t ordinarily what happens. In a common criminal case, you take the deposition, file your motions, and have your hearings—end of story. What Perry did by issuing that order was to create new rules of procedure for the Casey Anthony case.

It all added to our already overwhelming workload. I was drowning in an avalanche of work. Now I had to sit down with our experts and come up with an outline explaining who they were, what their fields were, and what they were going to testify to.

I thought it was a ridiculous request, but I did it anyway because I was ordered to and had no choice. The information I provided was very general; I certainly wasn’t going to do Ashton’s work for him.

After I handed in the information, Ashton filed a motion saying it wasn’t good enough, that I hadn’t explained enough. Perry issued another order, granting his motion to make me explain even more.

Here’s what Ashton wanted from me:
Tell us the questions you’re going to ask them and tell us what they’re going to say.

I said to Cheney, “Help me out here. I’m not going to give Ashton our entire direct examination,” which was essentially what he wanted.

Unlike a movie, a trial is not a scripted event, and I wasn’t about to hand over a script to him when I didn’t know what may or may not happen in the trial.

Cheney and I took one more crack at giving Ashton what he wanted. I emailed it to Cheney and said, “Look it over and let me know if it’s okay, because this is what I’m going to send them.”

“Have you ever run into something like this?” I asked him.

“I’ve been trying murder trials for forty years,” said Cheney, “and I’ve never heard of such a thing.”

I sent it to the prosecution. It was much more detailed. And of course it still wasn’t good enough for Ashton, so he filed a motion to hold me in contempt.

By now I was so angry I couldn’t see straight. I knew Perry was probably at his wit’s end, but I knew that, rather than order the state to take the experts’ depositions, he was going to order me to do something more, fine me, or hold me in contempt. I thought if Cheney handled the motion, arguing with his experience that this motion was a first for any defense lawyer, that Perry might understand the unreasonableness or the laziness of Ashton’s request.

It didn’t matter. Perry fined me $600 for the hours it took Ashton to file the motion and ordered me to produce something even more detailed. And then Perry went further.

He said, “I order that all your experts file reports. And I’m going to order them to be handed in within a certain period of time. And any opinions not in the report or deposition will not be testified to in trial.”

Essentially, by doing that he was narrowing the defense.

I was livid, of course.

I went back and wrote it up again, adding very little, because there wasn’t much left for me to write. It wasn’t all that much more than what we gave the prosecution in the first place. And this time it was acceptable to Ashton, which led me to believe this was all gamesmanship on his part.

I still had to go back to each of my experts and ask them for reports, even though ordinarily this isn’t something they’re obligated to do. Now I had to ask these people, the top people in their field working for minimum wage, to submit reports under a hard deadline. It was difficult, but we had to do it, and we did, on top of all the other things we already had to do. Perry was putting my feet to the fire to get in these reports.

What Ashton was doing on his part was very clever. I had to give him that. He knew he held a winning hand and he kept playing it. He knew if he kept it up, Perry would get angrier and angrier with me. The judge would think I was thumbing my nose at the court, not paying attention to his orders, when nothing could have been further from the truth. I was working around the clock trying to get it all done and I was overloaded with work.

Then Ashton did something that can only be characterized as sneaky, underhanded, and calculated. Since my experts had hard deadlines to get their reports in, they were not as long and detailed as they could have been. I had told them all that I really just needed to get the broad strokes of what their opinions were.