|Casey Anthony Trial with Jeff Ashton on the right|
The first lesson is that when you make a witness a centerpiece of your case by placing him upfront as your leadoff witness, you need to make sure the witness is bulletproof and won’t melt down on cross-examination. The dangers of selecting a problematic lead-off witness as illustrated by the Casey Anthony case can be found in a related article.
The second point that is vividly illustrated by the Anthony case is that a witness’s anger can be turned to the cross-examiner’s advantage. When the prosecutor chose George Anthony, Casey Anthony’s father, as the first witness in the state’s case in chief, he was well aware that the defense would allege that George molested Casey. Beyond that the prosecution team knew that defendant Casey Anthony had told therapists that George killed Caylee, his granddaughter by Casey Anthony.
While the prosecution undoubtedly tried to prepare George Anthony to neither lose his temper nor try to outwit defense counsel during cross, that effort failed. Jeff Ashton’s account of the cross describes how pretrial preparation on occasion fails to deter a witness from jousting with the cross-examiner, how an aggressive cross can anger a witness and how painful it is to sit by helplessly watching a melt down. Ashton’s describes what happened to George Anthony on cross-examination in this way:
“Rather than saying, ‘No, it didn’t,’ (when defense counsel Jose Baez asked George about the condition of a gas can when it was returned to him) and staying consistent with what he’d said to me only an hour or so before, George started to be difficult with Baez, answering his questions with questions for the sole purpose of frustrating him.
“This was not helpful to our case. George must have hated Jose, particularly because of the latest allegations. I think George may have believed that it had been Baez’s idea to accuse him of abusing his daughter. In George’s mind, Casey had only submissively gone along with her lawyer’s plan. None of us on the prosecution saw it that way. To us, the molestation accusation had ‘Casey’ written all over it. Regardless, one thing I was sure of was that Baez knew how much George disliked him and used it to his advantage. Baez probably wanted the jury to see George’s hostility, and George took the bait. He was not bright enough to read what was happening. I wanted to say, ‘George, just stop playing games, just answer the question,’ but I couldn’t. I’ve always wondered if on some subconscious level George was trying to look guilty. Maybe this was his way of helping Casey. I really didn’t think so, but I wondered. For someone who was innocent, he had a way of making himself appear suspect. I didn’t think it would seriously hurt our case, or lend any real credence to the defense’s baseless accusations, but I knew this was not the face of George that we on the prosecution team wanted to project.”
“Baez knew that George would continue to try to dance around the connection between the tape and his house. By now, we also had a video in which the same duct tape was being used at the ‘Find Caylee’ command center. This further made George look like he was lying. If initially he had been trying to protect Casey, now he was looking as though he was trying to protect himself, something not lost on Baez.
“Ultimately, George said that the gas can didn’t have duct tape on it when Casey brought it back. So why the game? He was playing right into Baez’s hands. I just wanted to slap him, and this wasn’t even the end of it. The next thing I knew, George was arguing with Baez about how often he mowed the lawn.
“You cut your grass every week? Baez asked.
“Well, every week, two weeks, ten week days,” George answered instead of simply saying, ‘Yeah, I cut my grass every week in the summer.’
“I could tell that George wanted to spar with Baez about anything. But not only was he not as practiced at the dance as Casey, he didn’t have a motivation to stop. Normally, a lawyer can appeal to a witness’s better judgment by saying, ‘You’re at risk of allowing the accused murderer to go free by the way you are acting.’ But George didn’t have that motivation because the accused murderer was his daughter. Instead, he was exercising his private outrage at Baez, and ended up looking like he was trying to hide something. He was only shooting himself in the foot. All we could hope was that the jury would understand that George’s anger was justified, that it was directed at Jose, and it was not indicative of complicity.”
Bottom line lessons from the cross-examination of George Anthony: Prepare your witness not to argue or get angry, and if an adverse witness is ill prepared, you can take advantage of it on cross.