Legal analysts were quick to rush to judgment over the blunder that Jose Baez made yesterday. His actions did seem to indicate that his lack of experience in the court room were bubbling to the surface. At issue is the possibility of the jury hearing testimony concerning the  stolen checks during the ‘missing 31 days’. The prosecution has spent much of the week picking away at Casey Anthony’s character. As a mere observer I have to admit that I think they have done a pretty good job. They didn’t have the ‘smoking gun’ of someone talking about Casey Anthony being abusive to her daughter Caylee Anthony, but they have managed to paint Casey as a party girl.

With no training in the legal game of chess that gets played out in court every day, I rely on more qualified people. I contacted two good friends of mine, Mannie Barling and John Contini. They are both veteran trial lawyers.

Simon: Mannie us mere mortals base our observations on the TV and Internet coverage, are we wrong?

Mannie: People tend to look at trials through the narrow prism of today’s testimony instead of the wider prism of the documents, videos and forensic evidence which carry a greater sense of purpose and permanence.

Simon:  Did it come as a surprise that the subject of the Bad Checks came up?

Mannie: I presumed they would come out sooner or later. There is little you can do walking that line to prevent it. On one hand you don’t want to put your client on the stand. But on the other hand you need to look for ways to admit positive testimony. In this case, I doubt there will be any.

I think Baez feels that he has nothing to lose in this case so he might as well try anything and everything. Watching Casey makes me believe that it will be a cold day in the executioner’s chair before they will let her testify. At this point, I consider the trial a formality to guarantee that a person will get a fair trial even when the jury decides the case after its first few witnesses.

Simon: It seems to me that the prosecution may have a bit of a  hammer. Should the prosecution use this hammer?

There are dangers to admitting this evidence in a case you are going to win anyway. So, the prosecution should be careful and err on the side of protecting the case on appeal. Perhaps, Baez sees this as a possible appeal issue because he can’t win the trial. This is called “inviting error” in the appeal business. It can be successful in states where the appeals courts tend to be liberal. But, Florida’s courts are known for their pro-prosecution stance and this would not likely invite reversal.

The die is cast in this case by the clear and convincing evidence.  All of these events are just day to day drama that will not impact the outcome. The real importance of the day were the 911 tapes which offered the jury the first real “demonstrative” evidence about Casey’s personality.

While viewers are always caught up in the personalities and Tait to Tait’s of the lawyers, it is the evidence that the jury is interested in.  Those 911 tapes are the most damning of all of the evidence I have read or seen. They punch the jury in the nose.

Don’t be fooled or mislead by courtroom theatrics. It is the evidence, pure and simple, that wins cases. But the fun is always watching the general public respond to day to day events like social Rorschach drawings. The responses say more about the state of our society than they do about the case.

Casey Anthony’s generation, their lifestyles and the “party, party, party” atmosphere of this generation are going to get roasted in the court of public opinion. This case is about sociology more than the death of a child. In that regard, it reminds me of the Loeb-Leopold trial in the mid-twenties when Clarence Darrow defended them for murdering their little cousin as an experiment. It was an indictment of the wealthy and the way they raised their children. This case is an indictment of the Anthony family and how Americans are raising this “entitled” generation.

This gave me food for thought. I asked well known Florida Criminal Defense Attorney John Contini for his input:

John: The defense lawyer must already know that her prior felonies are coming into evidence anyway — inasmuch as he intends to call Casey to the stand in her own defense, and prior felonies are always fair game when the defendant testifies; and if this is true that she intended to testify in any event, then he risks nothing by wisely preempting this potentially damaging issue and having the jury hear it earlier on, thereby minimizing and diffusing its importance later when she does in fact testify. He essentially steals their thunder by denying the prosecution the impact of this “revelation” later when it could hurt her the most.

Simon: But, how much damage does this evidence have?

John: Yes, this is a potentially serious problem for Casey, if the judge rules that the defense lawyer’s blunder (i.e. opening the door to impeachment evidence of prior convictions, by attempting to bolster her character) will now allow the prosecution to introduce evidence of her past criminal history; and yet this is not as serious as some of the lawyers are suggesting. These six prior felonies are really only one incident involving 6 stolen checks, and as much as they speak to the separate character issue of dishonesty, let’s face it, they are non-violent felonies that have arguably been committed on some level by several of these same jurors over the course of their own lives. The defense might even be able to turn it around and suggest that Casey desperately needed the money as a loving mom to feed her otherwise hungry child, when the grandparents were not willing to help, etc etc.

One thing is clear, nothing is clear in this case!

Where will it head? Only time will tell.

Simon

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