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| 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.
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