Presumed Guilty: Casey Anthony: The Inside Story (50 page)

I
N PREVIOUS HEARINGS
, Casey was an excellent client in the courtroom. She did what she was told. She took notes. She didn’t make facial reactions. She didn’t speak out loud. She didn’t do anything.

The moment we sat down to do jury selection, Casey just broke down in tears. It was as if the reality that this case was going to trial had finally come.

Judge Perry read his instructions, “You’re here for the
State of Florida versus Casey Marie Anthony
. The state has elected to seek the death penalty.” When Casey heard this, she broke down crying.

The prosecutor asked for a sidebar, complaining about her crying.

We were pissed.

“She’s on trial for her life,” I said. “What do you expect her to be doing? Laughing?”

“I can’t prevent someone from crying,” said Judge Perry wisely.

I
WAS AMAZED
at how many jurors we felt to be stealth jurors, meaning people who wanted to be on the jury for reasons having nothing to do with justice. Either they wanted to be famous, or they planned to write a book, or they wanted to be on the jury so they could find Casey guilty. We looked for any signs, and we were especially wary of those who wanted to be on the jury too badly.

In addition to the stealth jurors, we struck a few others. There were several potential jurors who had been arrested and didn’t put it on their sworn questionnaire.

Dorothy and her researchers discovered that one potential juror had gone on Amazon and bought a toy action figure sitting in an electric chair! He had also written a couple of pro–death penalty blogs, but on the stand he was giving all the right answers as it related to the death penalty. Fortunately, this guy had also had a DUI, and he neglected to put it on his questionnaire.

T
HE INSANITY NEVER WENT AWAY
. One day the court was questioning a juror when a heavyset woman with blonde hair by the name of Elizabeth Ann Rogers got up from her seat in the gallery and began shouting, “She killed her child, for Christ’s sake. She killed her child.”

She was arrested immediately, and Judge Perry held her in contempt. He threw her in jail for two days.

A prospective juror wanted to get out of serving, so he walked up to a news reporter and asked how he could get out of it. He found out quickly. Judge Perry held him in contempt and fined him a couple hundred bucks.

Then there was Patricia Young, the sixty-five-year-old EquuSearch volunteer from St. Petersburg who appeared on the jury list. We had her on our witness list as well. We wanted her to testify she had searched the area months before Caylee was found and never saw a thing. She had also been a protester outside the Anthony home. Because we listed her, the experts speculated we were going after George, because one evening George came out of his house and pushed her, which the media captured on tape.

Young was in the jury room, and she was telling people, “I volunteered for EquuSearch, and I wonder if this is for the Casey Anthony case.”

Linda Drane Burdick was the one who recognized her name. She brought it up to me and said, “Do you think this is her?”

“It could be,” I said.

And then the judge called her into chambers, and wouldn’t you know it, it was the same Patricia Young. She was the only woman from Clearwater on the witness list. What were the odds?

W
E WERE ALLOWED
ten peremptory challenges—in other words, challenges without cause—for the twelve jurors, and we were given a couple more for the five alternates. In most criminal trials, the judge also would give the defense a few extra peremptory challenges just to eliminate any issues on appeal as it relates to jury selection issues.

Here’s the thing about jury selection: In order for you to preserve any right of appeal for being denied striking someone for cause, you have to first exhaust all your peremptory challenges. Thus ninety-nine point nine, nine, nine percent of all trial lawyers will exhaust their peremptory challenges, and then if there is a juror you feel should be excused for cause, you then ask for an additional one. The judge always gives it to you, because he knows exactly what you’re doing—creating a record for an appeal. This is especially true if the reason for excluding that juror is borderline. To eliminate that, the judge will say, “Okay, we will give you another one.” At a certain point, if you object, and your reason isn’t very good, he will then say, “Denied,” and then you are left with a weak appealable issue.

This case was very different. Judge Perry gave us
not one single extra
peremptory challenge, which shocked me. But what could I do? I preserved the issue and moved on.

W
HEN PICKING THIS JURY
, my first priority was choosing jurors who were good as they related to the death penalty. Step one for a defense lawyer in a capital case is always to save the client’s life. Step two is to find good jurors for the guilty or innocent phase. Many times you come across jurors who are really good on the guilt or innocent phase but bad for the penalty phase, and you have to get rid of them. As a result, you end up with plenty of jurors you really like, but if they are proponents of the death penalty, you must get rid of them. This is the reason why death-qualified jurors are so conviction-prone.

In the end we ended up with twelve jurors and five alternates. Even though their names have been released, I refuse to publish their names for the purposes of this book. They have a right to their privacy, and I will do what I can to keep it that way.

Juror number one
was an elderly Caucasian woman, sixty-seven years old, and a retired nurse. We liked that because nurses are generally nurturing people. She was extremely pleasant, mild-mannered, and didn’t feel very strongly about the death penalty.

When I was questioning her, she made the statement that trials fascinated her because a trial was about solving a mystery. At that point I wanted to make clear that she understood that a trial is not a two-sided affair.

“This is the prosecution’s show,” I said to her, “and if we sat back and did nothing and if the prosecution failed to deliver the goods, you cannot convict.”

During my entire jury selection I wanted to educate the jurors about the burden of proof and about what it meant to be certain of guilt beyond a reasonable doubt. While questioning them, I wasn’t looking for answers as much as I was educating them about the fact that the defense didn’t have to prove anything.

Juror number two
was a forty-five-year-old African American male who worked as an IT person for Pinellas County. His wife was a registered nurse, which we liked. We also knew we were going to bring the jury technical evidence with respect to computers, and we felt it would be good to have his expertise on that jury.

I also liked the fact he wasn’t big on the death penalty, but one time when I was questioning him, trying to educate him, he made a really bad facial expression, and I became really angry at myself because I knew I had pissed him off.

I really liked him as a juror anyway, but I worried about the face he made; it turned out he would be the last holdout for a manslaughter conviction, until he finally gave in.

And so while I liked him, out of all the jurors, he was the one I was concerned about most.

Juror number three
was a thirty-two-year-old Caucasian female, a Democrat who had no children. What we really liked about her was she was a volunteer at Camp Torreya, a camp for lesbian, gay, bisexual and transgender (LGBT) teens. That told me a lot about her. It told me she was compassionate, and it told me she understood the nature of discrimination.

For me, this juror would be critical to us as to how this case was going to be tried. I knew the prosecution was going to try to get the jury to discriminate against Casey by citing the decisions she made and the lifestyle she led. I knew this because the prosecution didn’t have any evidence of a murder.

You might wonder why the prosecution didn’t know and why they didn’t ask to remove her. I don’t think they knew. Having Dorothy and her staff of crack researchers really did give us a big advantage in this regard.

Juror number four
was a fifty-four-year-old African American woman. She was a Democrat, and she was married, and she made the comment that she didn’t like to judge people, a comment the prosecution jumped on, using it to try to exclude her. She was using it, it turned out, in a religious context.

The prosecution tried to exclude her with one of its peremptory challenges, and I objected, noting that this was part of a pattern on their part to exclude all African Americans from the jury.

We asked the prosecution to give us a race-neutral reason for excluding her under
Batson v. United States
, but the reason they gave wasn’t satisfactory to Judge Perry, and he refused to remove her from the jury.

The next day the prosecution asked the court reporter to transcribe her answers, and they renewed the motion to kick her off the jury. We renewed our objection, and the judge again denied their motion.

The reason the prosecution was trying to kick all the African Americans off the jury is because, as a rule, African Americans have been victims of discrimination for a long time, and they are less trusting of it.

And because they realize the finality of the death penalty, African Americans are generally against it. Prosecutors know this, so in death penalty cases they systematically exclude them. The end result is that whites make up the death case juries, by in my opinion this by definition makes the death penalty unconstitutional in its practice. In theory, the proponents of the death penalty say it’s not unfair, that it works; in practice, it does not. This was the one occasion that having an African American judge may have helped. Even the conservative Judge Belvin Perry Jr. must have felt discrimination in his lifetime, and if the prosecution was going to exclude potential jurors because of their race, it was going to be harder than usual to do that with Judge Perry on the bench.

We loved juror number four. She wasn’t too crazy about the death penalty. On a scale of one to ten, for us she was a ten.