Judge Bars Critical Defense Argument in Casey Trial

As the lawyers prepared for final arguments in the capital murder trial of Casey Anthony, Orange County Chief Judge Belvin Perry Jr. hit the defense with a major ruling barring them from making a key argument to the jury: that Casey had been sexually abused. Perry ruled that there was no evidence to support the allegation and therefore defense counsel Jose Baez would be prevented from even mentioning it in his closing.

Baez has been criticized for some of his actions in the trial, including his suggestion that Casey was abused by her brother, Lee, and her father. This was the critical lynchpin in Baez’s explanation of Casey’s odd behavior after the disappearance of Caylee.

Baez said in his opening statement that Casey Anthony’s brother, Lee Anthony, abused her, but “it didn’t go as far” as the abuse by her father. However, Perry ruled that there are “no facts in evidence or reasonable inferences that can be drawn … that either Mr. George Anthony or Mr. Lee Anthony molested or attempted to molest Ms. Anthony.”

I agree with the view that Baez was unable to show any evidence of such abuse. Indeed, I thought the argument was pretty weak and counterproductive. However, there is a broader question of the increasing limitations imposed by judges on criminal defendants. The failure to show such evidence tends to destroy your credibility with the jury and the prosecutors are able to show the jury that the defense failed to deliver as promised. The concern with these rulings is that judges are increasingly tailoring cases to bar arguments that were once left to the jury to weigh. With the recent changes in states like Michigan to allow judges to summarize evidence, this trend raises serious concerns over the influence and bias of judges. When such arguments are barred, it is very difficult to deal with the issue on appeal since courts rule that the defense cannot show that the argument would have clearly produced a different outcome if allowed. In this case, the defense was allowed to raise the allegations in the opening statement but was then barred from directly discussing it in the closing, including an explanation of how the evidence supports the claim. Indeed, I would think that the prosecution would want to stomp on the issue in light of the failure to back up the allegations.

This is a trial for the life of Casey Anthony and the prior view was that she should be allowed to make her own case. I tend to favor this view, though I find this a difficult question in this case due to the lack of evidence and the failure of Anthony to take the stand. I think that there is a good-faith basis for the ruling in light of the utter failure to present evidence to support the claim. Yet, if this is her view, shouldn’t she be allowed to voice it to the jury? I can understand and support the court barring some arguments that are racist or discriminatory, but when does a court do too far in preventing a person from stating her case to a jury of her peers?

What do you think?

Source: CNN

Jonathan Turley

60 thoughts on “Judge Bars Critical Defense Argument in Casey Trial”

  1. Mike S.,

    You are singing to the choir on this one…..

    Mike A.,

    This is true and this is an area of appellate law where he will or should be crushed for ineffective assistance of counsel….You don’t go into a capitol case with nothing more than hunches….as Mike S pointed out, the case has been tied to the media for media rating….

    What about the meter reader that saw the body and had to make three calls before his supervisor finally called and the Sheriffs office finally did something… In my opinion, she is guilty of something but I am unsure what it is…..stupidity is still legal as far as I know…

  2. “Of course, the prosecution should be held to the same standard in presenting its argument.”


    I don’t believe that has been the case in this trial.

  3. Let me raise this theory as to what may have happened. Casey in telling her “story” to Baez brought in the alleged abuse by her father and brother.
    To Baez, faced with a client with many documented lies and a massive exposure of extremely negative pre-trial publicity orchestrated by the prosecution fed by a sensation hunting media, he believed that the abuse could be a mitigating factor.This was predicated upon Casey having to take the stand and by his belief that he could somehow shake the Anthony clans secrecy. As the trial progressed and Casey’s lies caught up to her, painting a damning picture factually documented, he realized she would be destroyed on the stand. This was particularly so because she has proven that she lies under stress and her testimony would likely damn her further.

    Now the Judge may have made a correct ruling in barring any mention of this but as JT stated:

    “The concern with these rulings is that judges are increasingly tailoring cases to bar arguments that were once left to the jury to weigh.”

    In the Judge’s ruling Baez was precluded from even stating to the jury an apology for stating what he couldn’t prove, ameliorating it with saying words to the effect that this was a Capital Case, based on evidential holes
    in the prosecution’s theory and he was trying to establish further grounds for “reasonable doubt.” Certainly not perfect, but at least an attempt to take his incest overreaching off of the table. By barring something to this effect the Judge certainly left the defense hanging in the minds of the jury.

    Obviously I’ve watched a lot of this case and was glued to the screen yesterday and will be today. I believe based on the evidence introduced that there is ample reasonable doubt of Casey’s being guilty of premeditated murder. The charge of Murder One was overreaching by a prosecution seeking to make political capital off a sensationalized case. They have not proven cause of death beyond a reasonable doubt, have no physical evidence linking Casey (or anyone) to the crime and even their
    theory of motive is exceedingly weak, given factual testimony that Casey was a dutiful mother.

    What is a defense lawyer to do in this situation? How do you overcome a prosecution that has tried the case in the media and completely “overcharged” the defendant playing to the vengeance hungry Florida crowd? This is the type of case of which Governors or Senators are made. I
    do think Casey is guilty of something, but I can’t preclude that the rest of this proven dysfunctional family was involved in the child’s death, possibly accidental and in stupidly covering it up. Thereby, by these actions,turn it all into a media circus. I believe the odds these days are becoming more and more stacked in favor of the prosecution. Given that, the defense sides should be given as large a latitude as feasible. However, in these fear filled times, with a problematic SCOTUS, I don’t see that happening.

  4. Mr. Baez created this dilemma with his opening statement. When he introduced the sexual abuse issue, he ought to have understood that he was positing a defense that would be virtually impossible to substantiate without testimony from his client, and putting her on the stand would have been insane. Bad lawyering; correct ruling by the court.

  5. Kaye,

    I am in agreement….But it has been my experience that the Prosecutor has always been given greater deference….and if the question was asked by the party’s representative….then it is fair game….

    “Cindy Anthony answers questions about alleged sexual abuse in daughter’s trial”

    Continue reading on Examiner.com Cindy Anthony answers questions about alleged sexual abuse in daughter’s trial – National US Headlines | Examiner.com http://www.examiner.com/us-headlines-in-national/cindy-anthony-answers-questions-about-alleged-sexual-abuse-daughter-s-trial#ixzz1R8y521uh

    The defense may not like the answers….but the Prosecutor is sure to use it…

  6. AY: Neither questions nor attorney argument constitutes evidence, and the judge was correct to preclude speculative argument not based on the evidence actually introduced. Of course, the prosecution should be held to the same standard in presenting its argument.

  7. There was a movie a while back called “The Neverending Story.” This trial seems to be the sequel.

  8. mespo,

    I am feeling the need to watch the Wizard of oz….

  9. OS,

    I do not disagree…but was it talked about in the trial….was the question asked…I agree that irrelevant information should not be introduced….but hey…this is one of the reasons that the contempt hearing is to be held after the trial has concluded…

  10. Bob,

    Not sure what your experience is on the criminal side but where I hail from…the Prosecutor is given greater latitude than the defendants attorney….but about 85% of the Judges are from the same office….I remember one judge in particular that told an Assistant Prosecutor that he was going to teach him to be the best prosecutor in the office….he was going to learn him trial skills….So you tell me…I may just be tainted after I heard that…

  11. AY: “Since when is a Defendant compelled to take the stand?”

    She’s not. However, the defendant cannot make claims without supporting them with reasons. To support those claims with reasons, without taking the stand, defendant must introduce EVIDENCE (a.k.a. reasons supporting said claim) at trial. Defendant COMPLETELY failed to produce said evidence at trial, and just before the close of her case, she had one last chance to introduce evidence via her testimony alone; i.e. taking the stand. The only reason she’d be compelled to take the stand is if she felt compelled to provide reasons for her completely bald claims of sexual abuse.

    You cannot predicate that which does not exist. The defense, having failed to both produce, much less make an attempt to produce, ANY evidence of sexual abuse at trial, may not attach predicates to such claims lacking evidence during closing. If anything contrary to this were true, there would be no limits to what Defense or Prosecution could say in closing; reducing the trial to meaninglessness.

  12. AY, Bob is not arguing the point of whether she could/should take the stand. The point is, if they are going to argue in closing about some piece of evidence, it would be a good idea to have that evidence presented at trial. Had she taken the stand, it would be in evidence in the form of her testimony. Since she did not, then there is nothing to work with.

  13. The extent to which juries are presumed to be stupid terrifies me.

  14. Bob,

    Since when is a Defendant compelled to take the stand? As stated this is a lifer/death case….more discretion should be allowed…

    This is going to be one of the most expensive appeals ever….not only are they going to have IE’s claims… she will more than likely get a new trial….I may be wrong….but he counsel is facing contempt charges after the trial is over….

    Would that not put a chill in the Attorney? Why is it that the Prosecutor can play it in the press and the Defense…is basically stuck….

    I am not saying she is guilty, I am not saying she is innocent….in this case…I do not know…If I was a juror…I can tell you I would want to convict her of something…Not sure what…But since when stupidity been a crime….we elect the Stupid all the time…and even reelect them…

  15. I think this is the first time I find myself disagreeing with Professor Turley. I am with Bob on this one. If there is no bar to bringing in material not in evidence, then it is open season on the real evidence. I think the jury can sort it out, but this is a red herring, pure and simple and the judge saw through it.

  16. “when does a court go too far in preventing a person from stating her case to a jury of her peers?”

    The court did not prevent Casey Anthony from taking the stand; which was the only source of evidence left to support an alleged sexual abuse defense before the defense rested its case.

  17. JT,

    You’re scaring me.

    It would be one thing if the judge barred closing arguments regarding sexual abuse based on the ‘quality’ of evidence presented at trial; but the defense produced ZERO evidence of sexual abuse. Accordingly, commentary on the topic during closing should be as prohibited as much as discussion of how alien abduction affected the defendants state of mind in this matter.

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