I am not an expert on the Legal System, nor the tactics that are used in high profile cases. But as the old saying goes, if it looks like a duck, walks like a duck, and quacks like a duck, there is a pretty good chance that it is indeed a duck!

I watched the Opening Statements with great interest yesterday. The prosecution’s lead attorney Linda Drain-Burdick gave a 2 ½ hour presentation of the case they planned to present. It was rational, and had few flaws that I could see. That is not to say that they do not have an up-hill battle on their hands. They are aiming high by seeking the Death Penalty, much is made of ‘the burden of proof’, and to ask that  a life be taken is a step that is not taken lightly. The State was conservative and convincing, a guilty verdict certainly seems reasonable, even expected, however, I for one am not sure that they have enough to secure the Death Penalty.

Much more shocking was the defense’s opening statement. Rumors have been swirling for quite some time about what strategy Jose Baez might use. However even careful watchers of this case were surprised with the veracity of the presentation.

In order to try and gain an understanding of the events I contacted well known Florida Defense Attorney John Contini. I expected him to present a pro-defense position. The ‘birds of a feather’ syndrome? I was completely wrong. John Contini is a veteran in the world of criminal defense. As the saying goes, he has no dog in this fight, and as such is free to talk in general terms. Here are his thoughts:

The prosecution will eventually argue that the defense opening statement is typical of what defense lawyers tend to do when the facts are against them. They’ll argue that the defense, like an octopus that sprays out an ink-like substance to blind its prey, will spray out enough of a smokescreen to blind the jurors from seeing or focusing on the real facts and truth.

If the defense lawyer can horrify and redirect the jurors with enough of a visual of other plausible scenarios, then the deflection technique can be quite effective, and the jurors will be focusing on those other plausible visuals and scenarios, and have a reason to doubt the prosecutions theory as to how it happened. This is classic “reasonable doubt,” which, as the judge will instruct the jury, can arise from “the evidence, lack of evidence or conflicts in the evidence.

The prosecution will also argue later in closing argument that the defense in this case did what was expected, following the same old, ‘same ole’ worn out blame game, ie, when the facts are against you, you argue the law, and when the law is against you, you argue the facts; and when the facts and the law are against you, you play the blame game and manufacture reasonable doubt where there is none, creating horrific and unrelated and made up scenarios to deflect and redirect and mislead the juror from the real truth.

The prosecution will urge the jury to take their common sense into the jury room first, before taking any of the evidence in there with them; and lastly, the prosecution will use their most effective weapon against the defense, the defense lawyer’s own words. The prosecutors will order the transcript of what the defense lawyer said in his opening statement, and will later ask the jury in closing arguments to hold the defense lawyer to what he said the evidence would show.

In most cases, at the end of the trial and after all the testimony and evidence, there is a marked difference in how things played out … quite different from what the defense lawyer represented in opening statement; which is why most seasoned, veteran defense lawyers hold back from promising too much in opening statement, focusing more on telling the jury what they won’t see and hear from the prosecution, all the forensic problems, lack of evidence from the government, expected conflicts in the prosecution’s evidence, etc. Some defense lawyers will even “reserve” their opening statement until after the prosecutions rests their case, and in that way, they don’t have to tip their hand and give the State the time and opportunity to fix their expected problems during their case presentation.

It is always very dangerous for the defense to give away too much at the beginning, or to make too big of a showing initially in a grandstanding-type of opening statement, as that typically comes back to bite the defense lawyer and the defendant at the end of the case. Be assured that the prosecution ordered a transcript of the defense lawyers remarks in opening statement and intends to jam it down his throat during closings arguments.

I am not a legal strategist, but I have to admit that John Contini makes perfect sense. The shock and awe factor used by Jose Baez could easily backfire. It may be enough to keep the Death Penalty at bay, but it comes at a steep price. Lives and careers will be forever derailed. I am no fan of the Anthony family, however I am not a fan of them being hung out to dry in the process of saving Casey from the needle. I will be interested in what the readers have to say.

Simon Barrett

John Contini, is a highly experienced, veteran criminal defense attorney, has successfully represented thousands of criminal defendants in Florida and throughout the United States over the past 23 years. Contini, a former Broward County (South Florida) felony trial prosecutor, has defended the criminally accused since 1983. His practice expanded in the last several years to include the areas of personal injury and wrongful death, but Contini is best known for his success in the area of criminal defense, including murder, drug cases, juvenile cases, white collar crimes, sex crimes, and federal criminal defense. He can be found online at JohnContini.com and Danger Road is available at better bookstores everywhere or from Amazon.

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