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Thursday, July 7, 2011

Weak Evidence Trumps Bad Advocacy: The Casey Anthony Trial

Jim Gailey is the principal in the Miami Beach criminal defense and civil litigation firm James R. Gailey & Associates. He is also a NITA instructor and a trial team coach for the University of Miami School of Law in Coral Gables, Florida. Although he labors under the handicap of being a Miami Dolphins fan, he is nonetheless a great teacher and an astute observer of human nature. These are some of his observations about the Casey Anthony Trial.

The Quality of Advocacy at Trial

With the exception of the rebuttal final arguments (which were very good), the advocacy level went from good to below average. The prosecution advocacy was overall much better than the defense advocacy. Of course, at the end of the day it did not matter because the lack of any proof of HOW the child died, effectively intercepted any consideration of WHO did "it" (begs the question of what "it" actually was). So I suppose the lesson is that advocacy cannot substitute for evidence, and poor advocacy by your opponent will not save a case with no proof.

Much of what I saw could only serve as a model of what not to do ("would you please explain" questions on cross, etc.) (not quite as bad the in-court demo by the prosector in OJ case with the glove, but at least the prosecution lost and it provided a "teaching moment" on what not to do).

Not sure how we implore our students to only lead on cross or have a consistent theme, etc. when this did not affect the ultimate outcome.

What the Alternate Juror's Comments Teach About the Case

Here are some of the comments that the alternate juror made in an interview within an hour or two of the verdict.

"It was probably a horrific accident that Dad and Casey covered up and it snowballed and got away from them"

Since there was no evidence of an accident or a cover-up, the interviewer asked the obvious question: "What evidence was there that is snowballed and got away from them."

After some stuttering and stammering he then repeated that it was "such a horrific accident that they didn't know how to deal with it. And the family was very dysfunctional and instead of admitting to the accident they chose to hide it, for whatever reason." He was then asked why George Anthony would allow his daughter to face a potential death penalty instead of admitting to the horrific, innocent accident. In response, the alternate juror laughed and said "that's a really good question that has to be answered by George. He was very combative and I personally thought he was hiding something that he chose not to answer."

When asked about all the lies that she told for the 31 days after the child was last seen, he said that it "did not affect him much at all because of what came out at trial about how dysfunctional the family was." While this "dysfunction" was the suggestion by the defense opening statement, there was no actual testimony about this "dysfunction."

Until the deliberating jury decides to "cash in" on their new found fame, we will not know what the thought process of that jury was. The comments by the alternate however, do provide some insight into the workings of this particular jury and this particular trial. To me, it reemphasizes the special importance of the opening statement. The question of ethics aside, the jurors were "shown" a despicable picture of the defendant's father by accusing him, among other things, of molesting his daughter. Though the juror admitted that there was never any proof of this and consciously they did not reach the conclusion that he was in fact a child molester, it did create an image of him that colored how they viewed his testimony. (He was "combative" and was "hiding something.") Further evidence of the importance of the opening statement was that for 6 weeks both sides tried this circumstantial case with multiple experts and a great deal of forensic evidence. Nevertheless, the jurors deliberated without any questions and without any interest in hearing back any of this technical testimony or any of the videotaped statements or 911 calls. Their gut "told" them (or caused them to speculate) that there was more to this story than the prosecution had shown them and as a result, they outright rejected the notion that the defendant mother committed any crime in connection of the child's death.

I am sure that more will come out in the coming days and weeks and eventually, many of them will appear and the case will be analyzed more fully from their perspective. At this point, however, the result and the comments that we have heard thus far, seem to suggest that although we tend to glamorize the closing argument portion of the trial as making the difference, in many cases, the jury has pretty much made up its mind by that point in the trial and the less "glamorous" opening statement, shapes the lenses through which the jury will view the evidence and consequently affects the outcome in a more significant way. (Having myself served as a juror in a 1st degree murder trial while a law student, what i learned inside that particular jury room has shaped everything that I have done as a trial lawyer.)


--Jim Gailey. jgailey@gailey-law.com


  1. I think Jim's comments about the opening statement are fascinating. Conventional wisdom is that a jury will punish an attorney for over-promising and under-delivering in an opening statement. I felt certain that would happen in this case. Instead, the defense opening framed the issues at trial.

  2. Chris—I agree with Mr. Gailey that the opening statement is more important than the closing argument. At least, that has been my experience. Had it been me, I would have moved the judge to instruct the jury that the defense: (1)had failed to prove up the assertion that George Anthony had molested Casey Anthony; (2) that it was improper for counsel to assert a fact in opening that he does not later prove; and (3) it would be improper for the jury to give any consideration to counsel’s statement re: George Anthony. I have successfully sought such an instruction in the past.

  3. I'm bemused. As I understand it (from a half world away) this was a murder trial, 'Mum kills her kid and the notions of accident, insanity, provocation do not arise'.
    It seems ( from above article and comments) that the Defence asserted in his OPENING that the accused had been abused/molested by another family member. How is that relevant to the issue in this trial? Did the prosecutor just sit there and do nothing as the defence counsel swept on to his next point?

    Oh, and did the Defence raise with the Prosecution's witnesses this issue of abuse/molestation during his cross of them?

    As I said, I'm bemused and I hope to be corrected.