Imperfect Justice_ Prosecuting Casey Anthony - Jeff Ashton [88]
In addition, when deciding if going after the death penalty is appropriate, there is a vital linguistic distinction to be made. The media likes to use the phrase “the state is seeking the death penalty.” When making the decision about whether to pursue the death penalty, the prosecution sometimes adopts a similar shorthand. More properly put, what we do is decide that the jurors should be allowed to consider the death penalty as an option based upon their individual interpretations of the facts. In other words, we say, “This case merits giving the jury the option of a death sentence.” That distinction is particularly important in this case. None of us presumed to decide what Casey’s fate should be. I have had cases in the past that were so egregious that I felt justice could be served only by a sentence of death, but I did not feel that way here. The real question for us was whether we should decide her fate, or allow a jury to make that determination. For that assessment, we must look to the facts.
It was against the backdrop of this body of law that we analyzed Casey’s case. So what could a juror take from these facts? First, as to the category dealing with the victim, it seemed clear to us that Caylee was a child who’d been killed by her mother. That alone was an aggravating circumstance all by itself, but according to my interpretation of the case law, it was unlikely to be of sufficient weight to sustain the death penalty. I know many may be shocked by that comment, but in weighing the factors, we look to how common that type of crime is and how it is generally treated, a process the court refers to as “proportionality.” Regrettably, infanticide is not that rare, and as such, it almost never results in the death penalty. So while that factor is entitled to some weight, it is not sufficient by itself. This was why we’d been unable to seek the death penalty prior to the discovery of the remains.
The new information we had to take into account concerned the remains and the condition in which they were found. I believed that if a juror saw in those photographs what I saw—three pieces of duct tape covering the nose and mouth of a two-and-a-half-year-old child—he or she would conclude that little Caylee was suffocated. “Suffocation while conscious” is considered by the court an unnecessarily torturous way to die. The physical pain and fear involved is unimaginable, and for a small child, unthinkable. So, if the jury were to believe that Caylee died by suffocation while she was conscious, then there would be two aggravating circumstances present, which would be in line with other death penalty cases the court had addressed in the past.
Of course, if the jury were to find that Caylee was unconscious at the time the tape was applied, then the “torture” aggravator would not apply. But why would she be unconscious? There were no skull fractures, so there was no evidence that she was rendered unconscious by blows to the head. How about the chloroform? The chemical element had been found in the trunk of the car and the word “chloroform” in Casey’s hard drive searches. Yes, a jury could conclude that Casey knocked her out with chloroform and then applied the tape to humanely dispatch her daughter. If so, then the “torture” aggravator also would not apply, but the cold planning and premeditation could. So either way, we would be back to two aggravating circumstances and sufficient weight to justify death, if the jury should so choose.
Having determined the existence of aggravation, we must then look to mitigation, which generally examines the defendant’s past: any mental health history or any surrounding context for the reason or the manner in which the crime was committed. To this point, we have still been given