I had a few moments while waiting in the doctor's office to collect my thoughts and write the following essay:
Lessons from the Casey Anthony Trial
At this point we are essentially in a waiting game to see what the next moves will be by the prosecution. It appears likely charges will eventually be filed relating to either or both deaths of spouses Tammy and Charles. We simply don’t have any notion what evidence has been gathered relating to those potential homicides. As far as considering the deaths of Tylee and J.J., though, we have enough facts already to convince me we will almost certainly see charges brought for conspiracy to commit murder against both Chad and Lori in the near future.
Some people here have expressed concerns as to whether the prosecution will have enough evidence to successfully bring murder charges, reasoning that Alex Cox will be a convenient scapegoat who obviously is unable to defend himself or counter any claims. This is fair commentary and one need only look back to the trial of Casey Anthony to see some disturbing parallels. You’ll recall that Jose Baez shocked everyone when he opened his case claiming that Caylee Anthony had accidentally drowned in the family pool a full month before she was reported missing:
BAEZ: "How in the world can a mother wait 30 days before ever reporting her child missing? That's insane, that's bizarre... The answer is actually relatively simple. She never was missing. Caylee Anthony died on June 16, 2008 when she drowned in her family's swimming pool. … After Caylee died, Casey did what she's been doing all her life, hiding her pain, going into that dark corner and pretending that she does not live in the situation that she's living in... it all began when Casey was 8 years old and her father came into her room and began to touch her inappropriately and it escalated,"
Baez also claimed that Casey Anthony's father, George Anthony, found the body in the backyard pool and helped dispose of the body. The defense lawyer even suggested George Anthony planted evidence to implicate his daughter and deflect suspicion from himself.
"What makes this case unique is the family that it happened to. You will hear stories about a family that is incredibly dysfunctional, you will hear about ugly things, secret things, things that people don't speak about."
In my opinion, this is practically a road map for the defense to use for Lori and Chad. One of the jurors in the Anthony trial, Jennifer Ford, explained their acquittal as being premised on the prosecution’s inability to prove how Casey died. To her, the cockamamie story Baez told seemed more logical than the prosecution theory, which was admittedly nonspecific and thin. Here's how Ms. Ford explained her view:
"I'm not saying I believe the defense. Obviously, it wasn't proven so I'm not taking that and speculating at all. But it's easier for me logically to get from point A to point B" via the defense argument.”
In the Anthony trial the prosecution was able to put George Anthony on the stand to deny the shocking claims Baez made in his opening statement. Nevertheless, the prosecution never recovered from the inability to prove definitively how Casey died and I believe avoiding this defense trap will be critical to convicting Chad and Lori here.
A good defense attorney will likely play the “cult” card and claim that both Chad and Lori fervently believed the kids were possessed and their souls in jeopardy. It follows that the defense may argue that neither Chad nor Lori had any idea that Alex might harm the children. A clever attorney may even make the outrageous claim that Alex tearfully came forward to say that Tylee’s death was an accident or that she even killed herself, thus setting up the “Casey Anthony” defense that all the lies and dysfunctional behavior by Chad and Lori were merely misplaced reactions to what Alex told them, influenced by their bizarro beliefs.
J.J.’s subsequent death two weeks later definitely represents an exponentially greater complication for the story, but I believe the defense will try to spin it as another “accident” whereby Alex inadvertently precipitated a fatal overdose. We don’t know if the State will have more evidence about the precise cause of death, but given the length of time the bodies were buried it is possible that there simply won’t be sufficient evidence to prove how Tylee and J.J. died.
How, then, does the State avoid the missteps that led to Casey Anthony’s acquittal? I have some thoughts for what they are worth:
1) The prosecution must unload both barrels on Alex Cox as a murderer. They should convene several mock juries or shadow juries to test the most effective means to persuade the jury as to the fact murder occurred. The prosecution gets to go first, which is an incredible advantage if used properly. Many of my clients have utilized mock and shadow juries and have changed their presentation accordingly.
2) The State should file Motions in Limine at the start of trial to try and get judicial assistance to limit speculation or unfounded claims like those advanced by Baez in the Anthony trial.
3) All proof should be designed to reinforce the theory of conspiracy. This is the law of Idaho and it should be woven into the presentation of evidence explicitly:
CHAPTER 17 - CONSPIRACIES
18-1701. CRIMINAL CONSPIRACY DEFINED. If two (2) or more persons combine or conspire to commit any crime or offense prescribed by the laws of the state of Idaho, and one (1) or more of such persons does any act to effect the object of the combination or conspiracy, each shall be punishable upon conviction in the same manner and to the same extent as is provided under the laws of the state of Idaho for the punishment of the crime or offenses that each combined to commit.
In this case there is overwhelming evidence that Alex was a follower – not the leader. All his activities, movements and behaviors were coordinated with Lori and Chad. From September through December he was part and parcel with Lori and Chad and the prosecution should present them as co-conspirators.
I would hope during their opening statement the prosecution will highlight with video, audio and static boards the extent of lies told by both Chad and Lori and characterize these lies as furtherance of the Cox/Daybell/Vallow conspiracy. The more they tie the proof to this being the actions of a trio, the more likely any attempts to use the “Casey Anthony” approach will fail.
NOTE: Regarding Shadow Juries: I participated in a major civil case with multiple defendants only to have one of the defendants suddenly negotiate a settlement at the end of the first week of trial. It was always a mystery why this occurred when it did but almost six years later I was reading
Trial Diplomacy Journal and happened across an article written by the attorney who represented that defendant. The article revealed that the defense in that case had assembled a shadow jury and took over the top floor of the local Holiday Inn where they housed their jury secretly. Unbeknownst to us, the court reporter was delivering daily copy to the defense at the hotel at 6 pm every day and the shadow jury listened to all the testimony read by actors playing the parts of the attorneys, judge and witnesses in a makeshift courtroom. Each day's trial was reenacted late into the night and the shadow jury's reactions and impressions were dissected by two psychologists to learn how the evidence was being received. By the end of the week they reached the conclusion that they were likely to be hit by an eight-figure punitive award based on the shadow jury's reaction and, thus, they elected to settle the case for whatever we would accept (a much lower figure, of course).
jmo
