How did Jose Baez, the lawyer for Casey Anthony, win this most difficult of trials? The chattering class wants to know. Pundits from one end of the coast to another had her convicted and on her way to death row. They’re all hungover today, nursing a sense that something, they are not quite sure what, went horribly wrong.
The folks best able to tell us what happened in that courtroom aren’t talking. It was refreshing to see all 12 of the jurors in the case boycott the post-trial press conference organized to take place the verdict was reached. CNN showed row upon row of empty seats in an empty room. One commentator seemed offended that jurors had not chosen to remain to participate in the national sport of navel-gazing.
Two things struck me from afar about why the defense won this case, and both come down to rules broken by Casey Anthony’s lawyer. It Mr. Baez had tried the case according to the textbook, he might well have lost it.
First, in his opening statement, Mr. Baez laid out a theory of how Ms. Anthony’s child died: She drowned in her grandparents’ swimming pool, then Ms. Anthony’s father, a former homicide detective, disposed of the body. He managed to keep a lid on this deceit by trading upon the terror he induced in Ms. Anthony incident to his abuse of her as a child.
It was a gripping tale. The trouble is that there was no evidence offered in support of this theory at trial. Ms. Anthony’s father denied the drowning, and denied abusing his daughter. When Ms. Anthony did not testify, the pundits shuddered: How would the defense honor the promise it made in its opening statement to offer this evidence? Wouldn’t the jury hold this failure against the defense?
That’s what conventional wisdom holds.
Screw convention, however, and court orders as well: Mr. Baez argued his defense theory even if the evidence was not exactly there to support him. It was a good example of guerilla lawyering, the doing of what ever is necessary to advance your client’s interest in a knife fight. An insider’s lawyer, some bar association tight-sphincter looking to move on up the feeding chain to a judgeship, might have quaked and walked away from this defense theory. Mr. Baez just kept on sining, and the jury apparently listened.
The next unconventional move is related to the first: Mr. Baez kept Ms. Anthony from the witness stand. Many lawyers would have insisted that she testify as she was the only witness who could have supported some of the promises unfulfilled in the defense opening statement.
Of course, in any case, the decision to testify belongs to the client, and the client alone. A lawyer is reduced to the role of making mere recommendations. We will never know what discussions Ms. Anthony and Mr. Baez had. But I have to believe that Mr. Baez recommended against Ms. Antony’s testifying. She is a liar, after all. The prosecution would have had a field day with her. The defense sensibly took its hit and gambled that the jury would listen to what Mr. Baez argued, even if Ms. Anthony did not take the stand.
Good lawyers know that a jury’s ways are unfathomable. It is often the case that jurors decided cases not because they agree with one side or the other. Jurors may reject the theory present by the prosecution and the defense, and decide the case based on theories all their own, theories not even presented in evidence. Experienced trial lawyers recognize the signs of a jury energized by the evidence. Sometimes the smartest thing a lawyer can do once a case has taken flight is to get out of the way.
Finally, Mr. Baez knew enough not to permit himself to be trapped in the law’s rigid forms. He argued to the jury that the case against Ms.Anthony was not strong enough to support a penalty of death. But he did this during the guilt phase of the trial, when death was not even on the table. in bifurcated proceedings, a jury first decides guilt or innocence; if the jury decides guilt, then the question of punishment is the subject of separate proceedings. Mr. Baez argued punishment prematurely, and wisely.
I did not see much of the trial on television. But I heard the scathing reports about Mr. Baez. This was his first capital trial. He was said to stumble, to tangle unnecessarily with the judge and the state. Some went so far as to call him unschooled in the art of trial. It seemed as though there was a wish that he would fail, a wish entertained by fellow criminal defense lawyers. Behold the cattiness of the bar.
But unconventional tactics, and seeming naivete, won the day. My cousin Vinnie, you say? No. Make that My cousin Jose. He worked a miracle for his client. In the end, that is all that matters.