People v. State

fairly undermining public confidence in the administration of justice
Subscribe

Norm Pattis and “Strike Lawyer” on the Casey Anthony Verdict

July 06, 2011 By: John Kindley Category: Casey Anthony, John Regan, Norm Pattis

First, Norm Pattis:

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. If Mr. Baez had tried the case according to the textbook, he might well have lost it.

According to Norm, these two unconventional things were: (1) laying out in opening statement and arguing for in summation a theory of how Casey’s daughter died, even though he kept Casey from testifying and wasn’t able to offer any actual evidence supporting this theory at trial; and (2) arguing to the jury that the case against Casey was not strong enough to support a penalty of death, even though punishment is not supposed to be a consideration during the guilt phase of trial.

Real the whole thing, as well as Norm’s initial reaction to the verdict yesterday.

Second, “Strike Lawyer”:

Reasonable doubt is more tricky than the talking heads I have seen let on so far. The way it works is not that you just point out holes in the prosecution’s case and tell the jury they don’t know, so they have “reasonable doubt”. You have to – and this was part of the brilliance of the defense strategy here – offer a competing narrative, and preferably a competing villain as well. Here the defense did both: they had a competing narrative (the accidental drowning) and the competing villain (George Anthony), of whom the one alternate juror that has answered questions said that he was “hiding something”.

Read the whole thing.

As I see it, the defense didn’t need to offer actual evidence supporting its competing narrative, so long as its competing narrative wasn’t refuted beyond a reasonable doubt by the evidence that was offered. It made sense for Baez to assert his competing narrative in opening statement, even if he knew that Casey wouldn’t testify and that George would deny on the stand the narrative’s truth (and that therefore Baez would be unable to offer actual evidence supporting the narrative), because it was probably best to get the competing narrative in front of the jury as early in the trial as possible, and because George’s denial of the narrative’s truth was in a way itself equivocal evidence supporting the narrative. You expect a villain to deny his villainy.

I didn’t see the jury voir dire in this case, but the same expectation — that a villain will deny his (or her) villainy — is commonly used to explain to prospective jurors why they shouldn’t hold it against the defendant if the defendant doesn’t testify: “What would the defendant have to gain by testifying? Regardless of her guilt or innocence, she knows that you know that of all the people who will appear in this courtroom during the course of this trial, she has the greatest motive to lie.”

So presumably the jury had been conditioned by Baez not to hold it against Casey if she didn’t testify, and George’s denial of the narrative’s truth didn’t count for much with the jury for the same reason Casey’s affirmation of it wouldn’t have.

It wouldn’t have been sufficient, though, to simply argue in summation that the competing narrative could have happened, and that the prosecution hadn’t proved beyond a reasonable doubt that it didn’t. Baez needed to assert that it did happen, even if the balance and bulk of his summation was spent pointing out the holes in the prosecution’s case. In an important sense, then, he was Casey’s star witness, and it was probably by winning the credibility contest with prosecutors that he won the case.

1 Comments to “Norm Pattis and “Strike Lawyer” on the Casey Anthony Verdict”


  1. John: I think you get it. Ordinarily you don’t do so much in an opening statement, but here, if Baez hadn’t laid it out at the beginning, the jury looks at all that evidence and has no other context in which to view it other than the prosecution’s. So, you know, the rule still is that you open carefully and sparingly. But sometimes you take chances.

    It helps that in Florida they require a lot of discovery in criminal cases apparently, so that you pretty much know what the prosecution is going to do. So Baez knew there was nothing they had that would completely refute what he said in his opening. That is not true in other places.

    Also, while I have some quarrels with what the prosecution did, for the most part they put on an honest case. They didn’t appear to have over-coached the witnesses. They had some jail house snitch type testimony and they didn’t use it, which I give them tentative credit for: maybe they were so confident they felt they didn’t need it, but maybe they had an appropriate disdain for garbage evidence.

    1


Leave a Reply

*

  • "[T]here is just nothing wrong with telling the American people the truth." - Allen v. United States

  • Lysander Spooner

    Henry George

    Harriet Tubman

    Sitting Bull

    Angelus Silesius

    Smedley Butler

    Rose Wilder Lane

    Albert Jay Nock

    Dora Marsden

    Leo Tolstoy

    Henry David Thoreau

    John Brown

    Karl Hess

    Levi Coffin

    Max Stirner

    Dorothy Day

    Ernst Jünger

    Thomas Paine