Establishing guilt: the prosecution’s strategy The prosecution’s case for premeditated murder in the trial of Casey Anthony

to the defence ( Ashton, 2012 ). Given the volume of pretrial publicity, it was considered that an impartial jury could not be found in Orange County (where the alleged crime had occurred), so a jury was selected from nearby Pinellas County instead. The jurors were taken to Orlando for the trial and ‘sequestered’ (isolated from the public and the media) for its duration. The trial began on 24 May 2011 and lasted for six weeks ( Ashton, 2012 ).

Establishing guilt: the prosecution’s strategy

In criminal cases, the prosecution is under a legal obligation to prove the defendant’s guilt beyond a reasonable doubt. Social scientists Bennett and Feldman (1981) argued that the prosecution’s strategy is underpinned by presenting the evidence in the form of a story (see Chapter 2 ). That is, the jury compare and contrast the competing stories of the defence and the prosecution, and the story that is judged to be true or truer depends on how well organised, coherent and believable it is. The present chapter, however, is concerned not so much with the story as with the underlying strategies that support the prosecution’s story. We utilise the trial of Casey Anthony to illustrate how these strategies are employed, and importantly, how the manner in which they are employed may strengthen or weaken the prosecution’s case. The prosecution’s strategy focuses on a small set of categories that are the requisites for establishing guilt: presence, state of mind and action. Presence refers to the scene of the crime (thus showing that the defendant was situated at the scene of the crime at the time that the off ence took place); state of mind refers to the defendant’s intention to commit the crime and in law is known as mens rea (the mental intent to carry out the crime); and action refers to the execution of the act that constituted the crime, and in law this is known as actus reus (whereby the prosecution must prove that the accused carried out the act) ( Clarkson, 2005) .

Ideally, these requisites must be established by direct evidence: ‘Evidence which requires no mental process on the part of the tribunal of fact [the jury] in order to draw the conclusion sought by the proponent of the evidence’ ( Murphy and Glover, 2009 : 17). For example, the accused being chosen from an identity parade by someone who witnessed the crime, or the testimony of a witness claiming to have fi rst- hand knowledge of the accused committing the crime both represent direct evidence. However, direct evidence may not be available in all cases and the law also accepts circumstantial evidence which ‘helps us indirectly establish a criminal intent or criminal act’ ( Lippman, 2013 : 117), or presence at the scene of the crime. Circumstantial evidence supports an inference. For example, a fi ngerprint of the accused found at a crime scene or the testimony of a witness claiming to have seen the accused near the scene of the crime ( Murphy and Glover, 2009) are circumstantial indicators of presence, showing that the accused had the opportunity to

Table 1.1: Criteria for direct and circumstantial evidence to establish guilt

Dimension of the crime Direct evidence Circumstantial evidence

Presence

State of mind

Action Situatedness Opportunity

Intention Motive

Execution Capability

commit the crime. And just as opportunity is the circumstantial equivalent of situatedness, motive and capability are the circumstantial equivalents of intention and execution (see Table 1.1 ).

To avoid confusion, we will hereafter refer to presence, state of mind and action in the circumstantial form of opportunity, motive and capability. For example, in order to convict Casey Anthony of fi rst- degree murder, the prosecution needed to prove that:

• Casey Anthony (actor) • had the opportunity • and was motivated to murder • and had the capability • to cause the death of Caylee Anthony (act)

However, the strategy further requires that opportunity, motivation and capability be specifi ed in suffi cient detail so that a clear link between the actor and the act are established. For example:

1. Actor– motive– act: Casey Anthony was motivated and did wilfully and knowingly intend to murder Caylee Anthony. 2. Actor– capability– act: Casey Anthony had the capability and means to accomplish this and chloroformed and suffocated the victim,

Caylee Anthony. 3. Actor– opportunity– act: Casey Anthony had the opportunity and committed the said act on or after 16 June 2008 in Orlando, Florida.

Exercise 1:

Imagine you are the lead prosecutor in the trial of Casey Anthony. Remember that your goal is to secure a conviction. Using Bennett and Feldman’s model of the three requisites for establishing guilt, how would you attempt to:

1. Construct an argument for establishing that Casey had the motive to murder Caylee? 2. Construct an argument for establishing that Casey had the opportunity to murder Caylee? 3. Construct an argument for establishing that Casey had the capability / means to murder Caylee?

The prosecution’s case for premeditated murder in the trial of Casey Anthony

We will now analyse how the prosecution attempted to establish that Casey was guilty of premeditated murder using the three circumstantial requisites for establishing guilt ( opportunity, motivation and capability). For their part, in any criminal case the defence team are under no obligation to prove their client’s innocence because the burden is on the prosecution to prove the defendant’s guilt beyond a reasonable doubt. In order to create reasonable doubt, the defence need only show the omission of one of the requisites in the prosecution’s case (for example, that motivation has not been demonstrated), or inconsistencies between the requisites for establishing guilt (for example, that the alleged opportunity would not have allowed the defendant to deploy their specifi c capability for committing the crime). According to Bennett and Feldman (1981) , the defence can challenge, redefi ne or reconstruct the prosecution’s story . Interestingly, as we will see, Casey’s defence pursued all three of these strategies to weaken the prosecution’s case and strengthen theirs. We will examine how the prosecution’s theory of motive was challenged and their evidence for capability was redefi ned. We will explore in detail how the defence capitalised on the unknown cause of Caylee’s death which ultimately enabled them to reconstruct the story. Thus, the defence attempted to redirect the jury from the scenario of Caylee’s premeditated murder to that of a drowning accident that ‘snowballed out of control’ ( Baez, 2011 : defence closing statement).

Opportunity and motive It might be argued that, because Casey was Caylee’s mother, there would have been many instances in which the two of them were together, therefore providing Casey with the opportunity to murder Caylee. Indeed, the prosecution began their closing statements by explaining the ‘point’ of the story, which connected the mother and daughter in a confl icted way: the responsibility- free life which Casey allegedly wanted to live, and the burden that was her daughter, Caylee. This enabled the prosecution to link the opportunity with a motive for the crime:

It’s easy to be a parent. Sometimes. It’s easy to be a parent when you’re playing with your children. It’s easy to be a parent when children are a joy, when children are fun. But we all know that being a parent is so much more than just playing with your children. Being a parent is about sacrifi ce. Being a parent is about sacrifi cing your time. About sacrifi cing your love and about sacrifi cing your dreams and sacrifi cing your life. When you have a child, that child becomes your life. This case is about the clash between that responsibility and the expectations that go with it and the life that Casey Anthony wanted to have. When Caylee was born, Casey was saddled with expectations and responsibilities. ( Ashton, 2011 : prosecution closing statement)

The prosecution and defence both acknowledged that Casey was aware of her daughter’s death during her month’s stay with her boyfriend Tony. They also agreed that Casey behaved as though nothing had happened following the death of her daughter. The prosecution argued that this could be understood in the context of Casey’s motive to murder her daughter; she appeared to be living a life that was free of parental responsibility. Indeed, within three weeks of Caylee’s disappearance, Casey had the words ‘Bella Vita’ (Italian for ‘beautiful life’) tattooed on her left shoulder ( Ashton, 2012) . However, after the trial alternate juror 2 Russell Huekler told NBC’s Today show ‘Just because Casey was a party girl it did not show why she would possibly kill Caylee’ ( NDTV, 2011 ), suggesting that the prosecution could not establish the motive convincingly enough. For their part, the defence argued that Casey’s behaviour could be understood in the context of what they alleged was her sexual victimisation at the hands of her father. They claimed that this experience taught Casey to lie and thus, knowing that Caylee had drowned in an accident, she was able to behave in a way that concealed this fact from everyone else ( Baez, 2011 : defence closing statement).

Exercise 2:

Now, imagine that you are the lead defence attorney for Casey. Your goal is to achieve an acquittal. How would you challenge the prosecution’s argument that Casey had the motive and opportunity to murder Caylee?

Challenging opportunity and motive The jury might have accepted that Casey had the opportunity to murder Caylee but the defence argued that the prosecution was not able to off er a clear explanation of where and when the murder took place. Defence attorney

Baez said in closing statements, ‘They want to give you the “who” without the “where,” “when” and “how” ’ ( Baez, 2011 : defence closing statement). This dilemma was echoed in a post- trial interview with Juror No. 2 who said, ‘We don’t know when she died. Technically, we didn’t even know where she died’ ( Thalji and LaPeter, 2011) .

The defence also challenged the prosecution’s explanation for motive . During his closing statement, Baez reminded the jury that witnesses testifi ed to Casey’s good parenting behaviour and claimed that the loving mother could never kill her own child in cold blood. In addition, Baez referred to the charge that Casey had subjected Caylee to child abuse, emphasising that no evidence could be found to support it ( Baez, 2011 : defence closing statement). Furthermore, photographs made public of Casey and Caylee and descriptions by friends and family gave the impression of a healthy and happy relationship between the two. For example, Casey’s boyfriend Tony appeared to accept Casey’s child in his life (direct examination of Tony Lazzaro: Lazzaro, 2011). No evidence was presented to show that there was any previous child abuse or neglect or any other indication that Casey was a bad mother. Although Casey’s mother called the police to report her granddaughter missing, it appears that she did not suspect her daughter of any wrongdoing at the time. Rather, it appears that she believed Casey’s kidnapping story. In his book written after the trial, prosecutor Jeff Ashton (2012) suggested that once Casey was suspected of being involved in Caylee’s death, Cindy chose her daughter over her granddaughter, perhaps to protect her daughter who was, after all, going on trial for capital murder. Thus, Cindy would not testify against Casey. Ashton (2012) argued that interviews with Cindy’s co- workers revealed that Cindy had her doubts about Casey’s parenting, but the evidence was not admissible in court because it was considered hearsay. Therefore, Ashton argued, without Cindy’s testimony, the motive for Caylee’s murder was more diffi cult to establish.

Capability The prosecution presented forensic evidence to the jury to support the theory that Caylee’s death was the result of premeditated murder and that Casey had the capability of carry out the killing. The results from a forensic test revealed a high level of a chemical in a piece of carpet from the car that Casey had been driving. The FBI later confi rmed that the substance was chloroform, although the source of the chloroform could not be established ( Ashton, 2012) . Computer forensics determined that on two afternoons three months prior to Caylee’s death, someone had used the family computer at the Anthony home and searched on Google for ‘chloroform’ and ‘how to make chloroform’. Work records showed that Cindy and George Anthony were not at home when these searches were

conducted ( Drane- Burdick, 2011 : prosecution rebuttal), making Casey the prime suspect.

Other evidence that supported the prosecution’s theory of premeditated murder and that Casey had the capability to carry out the crime included:

• A witness for the prosecution, Dr Arpad Vass, forensic anthropologist and an expert in the fi eld of odour mortis, used a gas chromatograph to test the odour coming from the trunk (boot) of the car that Casey had been driving. He testifi ed that the results were consistent with the odour of a decomposing body. In addition, a specially trained dog detected the scent of human remains in the car. • Two days after leaving the house with Caylee on 16 June, Casey returned and asked a neighbour, Brian Burner, if she could borrow a shovel. She returned it an hour later and the shovel appeared not to have been used.

The prosecution hypothesised that Caylee’s body was in the trunk of the car and it was Casey’s intention to bury her in the back garden of the Anthony home. However, the prosecution argued that she changed her mind, returned the shovel and later disposed of the body in the local woods, which was where Roy Kronk would later fi nd Caylee’s remains. • Karen Lowe, senior analyst in the Trace Analysis Unit of the FBI Crime

Laboratory Division, analysed a nine- inch light brown hair found in the trunk of the car. Although it could not be conclusively proved, evidence showed that the hair was most likely from Caylee. The hair had an unusual dark band near the root and although it is not understood why this banding occurs, it has only been found in hairs taken from decomposing bodies. • Dr Haskell, forensic entomology expert, testifi ed that ‘coffi n fl ies’ (fl ies that live on decaying matter) were found in the trunk of the car. • Caylee’s skeletal remains were found with an unusual make of duct tape over her nose and mouth, a Winnie the Pooh blanket and laundry bag.

The prosecution argued that all of these items belonged to the Anthony household ( Ashton, 2012).

Exercise 3:

As the lead defence attorney, how might you question this evidence and reinterpret it so that the jury might have reasonable doubts about the prosecution’s case? Also, imagine that you are able to reconstruct an entirely different story about what happened to Caylee, such as the accident claimed by the defence. What sort of story might you tell to the jury?

Redefi ning capability As well as disputing much of the evidence that the prosecution presented, the defence also off ered a diff erent interpretation for some of it. For example, Baez off ered an alternative explanation for the search for chloroform on the Anthony’s home computer. He argued that Casey was curious to fi nd out what chloroform was after she had visited her previous boyfriend’s (Ricardo Morales’) Myspace page where he had posted an icon about chloroforming women. The defence also had to contend with the issue of the duct tape found with Caylee’s skeletal remains. It was not a piece of evidence that they could dispute was there (unlike their insistence that the trunk of the car was not emitting any sort of odour). Thus, another explanation for the duct tape was required. In fact, two alternative explanations were off ered. First, Baez suggested that, when he found the skull, Roy Kronk took it home and later returned it with the duct tape (although Baez did not explain how Roy Kronk might have gained access to duct tape that was the same as that found at the Anthony’s house). Second, it was argued that George Anthony had put the duct tape there when he allegedly disposed of Caylee’s body. Baez further argued that George had deliberately used the duct tape to stick up ‘missing’ posters for his granddaughter and did this so that he could later frame Casey for the death ( Baez, 2011 : defence closing statement).

Reconstructing the story The specifi c cause of Caylee’s death could not be determined primarily because she was skeletonised by the time she was discovered. Having charged Casey with fi rst- degree murder, the prosecution set itself the task of proving that Caylee’s death was a homicide. They were helped by Dr Garavaglia’s opinion that the cause of Caylee’s death was ‘homicide by undetermined means’ but hindered by the absence of evidence regarding those means. Failing to establish the cause of death meant that they were vulnerable to the defence constructing an entirely new and diff erent story: that Caylee’s death was caused by an accidental drowning. The defence claimed that Caylee had drowned in the family swimming pool while at home with Casey and her grandfather, George. Casey was woken in the morning by George telling her that Caylee had drowned, that it was her fault and that he would cover up the accident because otherwise ‘you’ll go to jail for the rest of your frickin’ life’ ( Baez, 2011 : defence closing statement). For the next 31 days, the defence argued, Casey was in a ‘fog’, not knowing really what she was doing or why. The ‘Bella Vita’ tattoo, suggested the defence, was meant to represent the irony that her life had been anything but beautiful. The reason that Casey had been persistently dishonest during the 31 days, the defence