Defense attorney Jose Baez rocked the criminal-defense world — not to mention Orlando's legal community — when he told jurors in Casey Anthony's trial that the death of his client's daughter was not a murder but due to an accidental drowning.
He also blamed Anthony's lying on her family's deep dysfunction and the abuse she suffered at the hands of her father.
It was a spectacular way to start a trial. But since then, criminal-defense experts in Florida and the country have called Baez's opening statement in court a high-risk and dangerous move. After all, his client faces a possible death sentence if convicted of killing her young daughter.
Along with a series of courtroom bumblings played out on live TV, Baez's performance during the first two weeks of testimony has some observers wondering whether he knows what he is doing.
"The defense's handling of this case is not representative in any way of the standard I hold my profession to," says Mark NeJame, longtime Orlando attorney and legal analyst for WKMG-Channel 6. NeJame at one time represented Casey Anthony's parents, George and Cindy.
Prosecutors are effectively laying out the timeline of their largely circumstantial case, NeJame said. "The defense, on the other hand, has come across as unprepared and disjointed," he said. "I've not seen one round go to the defense."
Veteran criminal-defense attorney Bill Sheaffer likened this trial to a boxing match, one that prosecutors are winning with methodical, sustained attacks rather than knockouts.
As for Baez, "He'll go 15 rounds, but he'll still lose the decision," said Sheaffer, who is scoring the case for WFTV-Channel 9."Now, the case is the state's to lose."
Everyone wants to see Casey Anthony get a fair trial, Sheaffer said. And he noted that Baez appeared to score some points questioning state witnesses Saturday. But such small flashes will not be enough in this case, he said.
Baez, who was admitted to The Florida Bar in 2005 and has no prior experience leading a death-penalty defense,"did not grow into this job" and has so far not made much use of a defense team that includes veteran trial lawyer Cheney Mason, Sheaffer said.
"I'm concerned that I'm seeing a viable issue regarding competence," Sheaffer said.
When asked Saturday after court how he thought he was doing, Baez smiled behind his sunglasses, silently shook his head and walked away with his entourage.
Everyone interviewed for this story noted that Baez has not yet had his chance to present his defense, and that he may yet make the case he promised.
In court, Baez often exudes confidence in the way he strides, speaks and even sits at the defense table. But consider some recent courtroom mishaps:
- Chief Judge Belvin Perry has reminded him to stop questioning a witness about an item not in evidence.
- Perry has told him it is the judge — not Baez — who gets to tell witnesses to step down from the stand.
- Perry has had to inform Baez he will not delay the trial because the defense does not know which witness the state will call next or because he does not have that witness's file in court.
Perhaps more important than the procedural flaws may be what other lawyers are seeing as strategic miscalculations.
Last week, Baez failed to persuade Perry to block jurors from seeing portions of recorded family jail visits with Anthony in 2008. Prosecutors and Perry noted that the deadline for raising such issues was in December.
As a result, jurors saw hours of video in which Casey Anthony shows no hostility toward the father she accuses of sexually abusing her. In fact, she describes him as a "great" father and the "best grandfather."
George Anthony, meanwhile, appears to be a genuinely concerned grandfather, desperate to find his granddaughter, Caylee — not someone who had knowledge of her drowning, as Baez claimed in his opening statement.
Beyond those concerns, Casey Anthony appears in the video to be lying to her crying mother and worried father as they beg her for clues in locating the child. And when her mother shares a rumor that Caylee was dead and had drowned, Anthony responds with sarcasm, saying, "Surprise, surprise."
Marcellus McRae, a trial lawyer in Los Angeles and a former federal prosecutor, said that once an attorney creates a specific "exit door" with a detailed opening like the one Baez gave, "What you cannot do is have inconsistent or criss-crossing paths."
Lawyers also cannot make promises to jurors on the assumption that certain evidence will not come in during the trial. "Assume the worst, absolutely," he said.
In light of Baez's opening, a number of experts contacted by the Orlando Sentinel last week questioned whether Baez had reviewed those videos thoroughly and realized how they might be viewed if seen by jurors.
Why would Anthony say those things to her father from jail if she were the victim of molestation? McRae asked. And he questioned why Baez raised the molestation issue at all.
"Never, ever, ever over-promise," McRae said. "It's better to have a streamlined, classic opening. By under-promising, whatever you score by way of the evidence is a victory. You over-promise, and the prosecution is sitting there keeping copious records of everything you've done."
If Baez cannot keep the promises he made, prosecutors will remind jurors of that during their closing arguments, McRae and others said.
Leslie Yalof Garfield, a professor at Pace Law School in White Plains, N.Y., teaches criminal law and attended college and law school at the University of Florida.
"I think Jose Baez is interesting but quite risky," Garfield said of the lawyer's opening statement. "People don't take such great risks unless they're desperate. I don't know that I would do it that way. … He tipped his hand by giving that opening statement."
South Florida lawyer Kendall Coffey, a former U.S. attorney for the Southern District of Florida, said he was less troubled by the drowning story than the accusations against George Anthony.
"I think there's a huge risk in accusing George Anthony of being a child molester, unless there's clear and convincing evidence to back it up," Coffey said.
Many suspect Baez' opening forces him to call Casey Anthony to testify, another dangerous move.
By testifying, she would be subject to aggressive questioning by prosecutors, but she also would be asked to explain the series of lies she told her friends, family and law enforcement.
"It may be great theater if she does testify," Sheaffer said. "But do you think the jury is going to believe a word she says?"
Body-language expert and jury consultant Susan Constantine said she thinks the defense strategy changed late in the game.
"I think he [Baez] is playing with Casey Anthony's life," Constantine said. "I'm looking at it, saying, 'This woman is getting creamed.' "
Soon after the jury was selected last month, Baez walked into a Clearwater Panera and spotted a Sentinel reporter preparing to write a story before heading home.
Baez acknowledged the reporter, explained he could not take questions, went to the counter to give his order and soon walked out. Moments later, he shot back in and asked, "How do you think I'm doing now?"
It was classic Baez: brash, confident and optimistic about his odds in the case.
It was also premature: Baez had not yet started defending his client before the jurors who will decide her fate.