Jeff Ashton’s book about the Casey Anthony case entitled Imperfect Justice: Prosecuting Casey Anthony, which is about the murder case that captured the public’s attention, was on my summer reading list. I was eager to read Jeff’s book not only out of curiosity (how in the world did the jury acquit her?) but also because I had gotten to know Jeff when he served repeatedly on the faculty at the National College of District Attorneys in Columbia, South Carolina where I worked for six years. Jeff came to the National Center to teach prosecutors from across the country. I came to know him as a talented instructor and highly respected trial lawyer. His book proves him to also be a talented writer.
Jeff’s book provides a thoughtful analysis of how to arrange the order of your witnesses for trial based on several considerations. His book also provides an example of how a miscalculation can severely damage your case.
Jeff’s commentary on arranging the order of witnesses states: “Planning the order in which we would call the witnesses was the part of the case preparation I really enjoyed. The order can be complex, especially in a case of this magnitude. Sometimes it is driven by the consideration of legal requirements for the admission of evidence. You have to connect a piece of evidence to the case before the jury can see it. Sometimes that may require testimony from multiple witnesses. You may have to call a few cops who had casual contact with the suspect before you can get to the one who took the confession. Sometimes decisions are driven by what your choices allow the other side to do. A delay in presenting a certain part of a witness’s testimony, or leaving it out entirely, may affect the ability of the other side to effectively contradict him. You must consider the emotional impact the testimony will have and how it will affect the jury’s view of what comes next. Lastly, there is the attention span of the jurors to consider; you can’t expect them to stay awake through too much complex testimony back-to-back.
“. . . My plan was to play the case out in a mostly chronological order. We’d start with George and the events of June 16. . .”
Missing from Jeff’s discussion is this axiom for formulating the order of witnesses: “Start strong, finish strong and bury weaknesses in the middle.” Let’s concentrate on the first witness. The first witness can set the tone for the case. The first witness should grab the jurors’ attention and get them into the case. And, above all else, the first witness should be virtually bulletproof, able to withstand the best cross-examiner. A vulnerable first witness who crumbles on cross can undermine your case.
The prosecution team selected George Anthony (pictured here), Casey Anthony’s father, as their first witness despite the fact that he might not be the best choice. His invulnerability was at a minimum debatable at that time. Jeff wrote: “After we had learned about Casey’s newest accusations (against George Anthony) and Baez’s (defense counsel) newest plan of attack, we’d debated changing the order of witnesses, but ultimately we decided to still call George first. Our thinking was, if the defense was going to accuse George of molestation and covering up Caylee’s death, then opening with George was a perfect plan. It would allow him to refute the accusations right off. Although we would lose the mystery of Caylee’s whereabouts, we’d gain the jury’s savvy that everything it was hearing was thirty-one days of lies. They’d know for certain that these were lies, because they’d know Caylee was dead.”
George Anthony proved to be a significant problem for the prosecution. He was a far cry from being that bulletproof, strong leadoff witness. Defense counsel Jose Baez had gotten under George’s skin, and, on cross, George tried to quibble with counsel and became angry. Jeff had to sit there and watch the damage being done. Jeff wrote: “Baez probably wanted the jury to see George’s hostility, and George took the bait. He was not bright enough to read what was happening. I wanted to say, ‘George, just stop playing games, just answer the question,’ but I couldn’t.” Jeff came to the following conclusion about the impact of George’s testimony: “For someone who was innocent, he had a way of making himself appear suspect. I didn’t think it would seriously hurt our case, or lend any real credence to the defense’s baseless accusations, but I knew this was not the face of George that we on the prosecution team wanted to project.” (emphasis added) What an unfortunate start, particularly given that all the allegations against George were baseless, and the prosecution had seventy witnesses to select from.