Saturday, June 11, 2011

To Convict Casey Anthony: Prosecute With Authority

The Casey Anthony trial in Florida has once again put the American jury system into the spotlight. I will immediately divulge my bias, or pre-judgment: I am convinced that this young woman is guilty of homicide. Whether she is found guilty, however, will depend upon a number of factors, few of which have to do with her culpability, but rather they have to do with the ability of the prosecutor or defense lawyer to establish authority in the eyes of the jury.

This last week the prosecution shot themselves in the foot when two of their experts disagreed over the amount of chloroform found in the Anthony car. This may not seem problematic, but it is. Not since the O.J. Simpson case have I seen such confusion in a prosecution. While every lawyer must expect the unexpected, such stark differences in testimony are something that should be known of before witnesses take the stand. Then witnesses are either not called or issues are dealt with in direct examination, rather than allowing a defense attorney to make the prosecutors look inept, or worse, deceitful.

I knew that, were the case tried in the district where I live and by our District Attorney, it would be smoothly run and smoothly won by him and his colleagues. Our D.A. is an outstanding trial lawyer and he does not mess around, especially in a capital case. He tries cases just as Vincent Bugliosi did when he convicted Charles Manson, he puts in thousands of hours to convict. No playing to the gallery, just business. Unfortunately, we are a couple of states to the north and so this could not happen.

At the outset of the case I told several people I believed it could be, depending upon how it was handled, a slam dunk for the prosecution. The defense attorney, Jose Baez, made a tactical decision to announce in his opening statement that Casey Anthony was abused by her father and that her father was responsible for helping cover up the drowning death of the victim, a beautiful young girl named Caylee. Those were incredibly bold, brash, and to my mind foolish statements that would be very hard to follow through on. “Why?” I asked “would someone with no burden of proof essentially create a burden of proof for their side”. Those were rooky mistakes that may well, thankfully, have sealed the fate of the defendant.

I have had some experience with juries. Juries are just like us, that is actually a fatuous statement, they are us. I have even served on a jury in a criminal case; this was a tremendous educational experience for me. How they are selected and who serves will, obviously, make all the difference in the world to the outcome.

When selecting a jury, a competent attorney will use effective questioning, and analysis, to determine whether the people chosen to serve will follow their oath (commitment-consistency), and listen to the evidence. Also, among other characteristics we look for, we will seek to discover how the jurors will respond to those in authority. This is something that should be done discreetly, but it must be done.

When looking for experts, therefore, you want someone who will not confuse the jury and who will testify with authority. This is a golden rule that the prosecutors in the Anthony case, it seems, neglected to follow. They put on experts who contradicted each other. In the eyes of the jury, they each questioned the authority of the other and diminished the prosecution.

Why do we want authoritative experts? We want people who will be authoritative because most people, especially the ones we want on juries, have a deep-seated respect for, and desire to follow those in authority. This is a characteristic that has been instilled in us since birth- "listen to and follow those in authority". Sometimes it helps us survive, sometimes it hurts us!

The very best example of this deference to authority was demonstrated by Professor Stanley Milgram in what is now known as the "Milgram Experiment". Most people are familiar with the experiment where volunteers were asked by the “project leader” to administer electric shocks to people in another room. In reality the people being “shocked” were actors and were not actually on the receiving end of any electric charge; the volunteers, however, did not know this.

Alarmingly, the majority of volunteers administered “shocks” even when the victim was screaming to be released and begging for the experiment to end – they continued because they were ordered to do so by the leader. How do we know this was the case and they were not just sadists? Because, when the roles were reversed and the identified experiment leader was the one receiving the “shocks”, not one volunteer continued after being told by said leader to stop, even though an actor with a clipboard was telling them to proceed. Again they followed the leader. Milgram showed us that people are programmed, for want of a better word, to follow authority.

It has now been over two decades since I first went through interrogation training in the UK. When learning, we were taught that the very first step in an interrogation, different from an interview, was to directly confront the subject and let them know that I knew they did what they were accused of. These words were, I was told, to be spoken with authority and then further steps ensued in the process. As was explained to me then, “if you do not speak with authority, they won’t believe you and won’t follow you.”

This lesson from the interrogation field is highly instructive, indeed vital, for trial lawyers, who should speak, and act with authority and never over-promise. It also applies to experts, who should be properly vetted and prepared before trial to ensure they will testify clearly and authoritatively.

When faced, as the prosecutors are in the Anthony case, with a defense attorney who makes over the top promises, objects to matters that have already been ruled on by the judge, who asks far too many questions that he does not know the answer to, and who has only been practicing a very short time, the prosecution just needs to establish their authority (there are simple ways to do this) run a tight ship and methodically walk Casey Anthony to death row. That should not be too tough a task for them, if they are prepared.

I am afraid, however, that two things, at least, have happened already to the prosecution in the Anthony case. First the prosecution case looks muddled and confused, and that alone can create reasonable doubt. Second, and far more important, the prosecutors and their witnesses have lost a part of the authority they should have in the eyes of the jury – that can be fatal for the prosecution case, for authority once lost is very hard, if not impossible to regain.

Jose Baez, is himself now in the media spotlight for his past, which includes allegations of unpaid child support and denial of admission for him to practice in the state of Florida for a number of years. Baez recently moved for a mistrial on the basis that his character was being attacked because people were pointing out his past “issues”. It seems therefore that both he and the prosecution are aware that damage to credibility equates to damaged authority and can make a jury reluctant to follow a lead. That makes the prosection's issues of this past week even more alarming.

The job of the prosecution must now be to ensure there are no further mishaps like those of this past week. They need to prepare, prepare and prepare again. They must regain the high ground, re-establish their authority and lead this jury to the correct, in my contention, conclusion, that Casey Anthony is a heartless killer who must be found guilty.

From my perspective it will be a grave injustice if Casey Anthony goes free. I only hope the prosecution can regain the ground it has lost and get justice for Caylee Anthony.


  1. Excellent analysis, although I believe most of your experience was in the civil arena, it crosses over. You make a very valid point that attorneys must make their mark early on in the trial and keep confidence in them and everything they say high throughout.

  2. You should just wait for the outcome. I think there has been a rush to convict Casey in the media and that when the defense gets their chance a lot is going to come out.

  3. Your support for the death penalty is just wrong. An eye for an eye makes everyone blind, vengenace is for GOD not for man.

  4. Milgram Experiment. I am impressed, you clearly know your stuff when it comes to persuasion and influence and mix science, arts and law expertly. I wonder on one point though whether Mr. Baez may turn out to be crazy like a fox!

  5. Angie, Washington DCJune 11, 2011 at 6:45 PM

    Beautifully written and well researched again. This case is so very disturbing in many ways, I do hope though that the case is decided on the facts. Your eloquence in commentary reinforce my earlier posts.

  6. This piece is very clearly set out and very well researched. I like it and, as a trial lawyer, I am now interested in learning more about the process of interrogation and influence and how it can teach lessons for litigation. I am assuming there is more to be learned. Thanks for posting this and I hope you might turn this into a CLE and offer it down here in Florida.

  7. i think it is wrong for anyone to be prejudice and say she killed her baby. we have not heard everything yet and there may be much that will make you sorry you wrote this. you really are a sorry bastard beating up on this woman and her lawyer!

  8. Mark, Manchester UKJune 11, 2011 at 7:26 PM

    Brilliant!! Really useful and useable info. Thanks for sharing!

  9. So the multi-millionaire former suer of doctors and businesses decides to bully a less successful lawyer. Very brave of you, I am sure.

  10. I think Casey Anthony will be found guilty no matter how badly the prosecutors fumble because of the overwhelming evidence against her.

  11. Would the British intell services or special branch, cia / fbi get a cut of your earnings if you are using their stuff to win trials? I bet waterboarding witnesses is a bit difficult in a case against a doctor.

  12. Another fun fact about the Milgram experiment, those in a subservient positions in society were more likely to deliver the shocks, like women. It sounds right when explained like that, but to think that women in the 60's would be more likely to shock someone is interesting. It adds an interesting dimension to that study's relevance to this case.

  13. Great reference to the Milgram Experiment!
    It is interesting to see that the judge is really getting fed up with the shenanigans from the defense as well. I'm glad he's trying to reign this case back in, but I'm afraid that both sides have damaged their strategies. However, even though the prosecution has had some conflicting testimonies from expert witnesses, the defense is clearly have some issues of their own...which I am hoping the jury sees as enough to cancel out any "reasonable doubt" and win a conviction.

    Great post! I'd love to see more analysis as the trial goes on!