Imperfect Justice_ Prosecuting Casey Anthony - Jeff Ashton [90]
At the same time, I’ve spent the last two and half years debating the issue of the death penalty in this case, and despite the multitude of reasons that I felt that a jury could have given the death penalty, I always came back to the reality that they never actually would. Lawson’s decision was to allow the jury to decide, and I respect him for making it. Personally, I think I would have been happier if the death penalty had not been reintroduced into the case, even though on some level I think Casey may have deserved it. Simply put, I just didn’t think the jury would go there. Later on, when we were picking the jury, I chose to keep a juror I liked, even though he was opposed to the death penalty. At that time, I remember saying to Frank, “it isn’t going to matter, because she is not going to get it anyway.”
SOME MONTHS AFTER THE DECISION was made, the defense challenged our legal basis for seeking the death penalty. The law is clear in Florida that absent a showing of “bad faith” on the part of the prosecution, the court may not second-guess the decision to proceed. Bad faith is defined in such a way that it is virtually impossible to prove, absent a blatant statement by the prosecutor showing that he or she is proceeding based solely upon racial or other unconstitutional considerations. We responded to the defense’s challenge by citing the legal precedents on the issue, which prohibited the judge from forcing us to defend our decision.
Leading up to that challenge, the defense had been hitting us pretty hard in their statements to the media on this issue. We had made an officewide decision not to comment during the pendency of the case, because we felt that silence was our obligation under the rules of ethics. However, I suggested to Linda that if they wanted to know why we were seeking death, I would give them the reasons in open court. And I was looking forward to it.
I spent a great deal of time drafting what I wanted to say. I wanted to make sure that my comments respected the presumption of innocence, but I still laid it out so that it would be understood in clear and certain terms why we felt the death penalty was a warranted option. I prefaced these comments with the caveat reminding all who would hear me that the defendant was presumed innocent.
“Caylee was almost three when she died with duct tape over her nose and her mouth,” I began. “Any child of that age should have had the physical ability to remove the duct tape covering her airway and preventing her from breathing, and the evidence in this case would show that Caylee was, if not average, above average in that regard. A juror might conclude, then, that she must have been restrained, either chemically or physically. If chemically restrained, her killer prepared some substance in advance that would render her physically unable to resist, administered the substance and awaited its effect, and then methodically applied three pieces of duct tape to completely cut off the flow of air through her mouth or her nose and let nature take its course.
“At least Caylee wouldn’t have had any fear,” I continued. “How would the jurors apply those facts to the law that the court would give them? If she was physically restrained, her killer would have to restrain her arms by some means, applying tape while she was conscious as her killer looked into her face. Maybe her killer even saw her eyes as the tape was applied.
“First, one piece; then two; then three, so that no breath was possible. Could Caylee have understood what was happening to her? Did she try