Closing statements: was it premeditated murder or not?

claimed, was because her father had sexually abused her as a child and so she was trained to deceive others ( Baez, 2011 : defence closing statement).

In order to support the new and diff erent story, the defence questioned Casey’s capability for committing murder by principally attacking the prosecution on their forensic evidence, referring to it as ‘fantasy forensics’ which refl ected their ‘level of desperation’ ( Baez, 2011 : defence closing statement). In addition, Baez argued that the forensic evidence was irrelevant since it did not reveal how Caylee had died. Spotting the weakness in the prosecution’s case enabled the defence to emphasise their theme of an ‘accident that snowballed out of control’. The gap in the prosecution’s story appeared in other critiques developed by the defence. For instance, Baez accused the prosecution of trying to make the jury angry and emotional, arguing that ‘Casey’s character has nothing to do with how she [Caylee] died’ and that the prosecution’s evidence relating to the trunk of the car also did not reveal how Caylee died ( Baez, 2011 : defence closing statement).

Closing statements: was it premeditated murder or not?

Inability to off er an irrefutable cause of Caylee’s death appears to be at the heart of the prosecution’s failure to establish guilt. For instance, the prosecutors vigorously argued that Casey was guilty of premeditated murder but this was at odds with their fi ling of three diff erent charges. Casey was charged with fi rst- degree murder, aggravated manslaughter and aggravated child abuse. However, even the charge of fi rst- degree murder proved problematic because in Florida there are two ways in which a person can be convicted of this crime: premeditated murder and felony murder (2015 Florida Statutes). To prove premeditated murder, the State had to prove beyond a reasonable doubt that Casey murdered Caylee after consciously deciding to do so. To prove felony murder, the State needed to prove beyond a reasonable doubt that Caylee’s death occurred as a consequence of committing a felony, in this case, aggravated child abuse or attempted aggravated child abuse by Casey. Thus, the prosecution explained to the jury that they could fi nd Casey guilty of either premeditated murder or felony murder. More than one version of motive and capability was off ered and we would argue that this strategy was detrimental to the prosecution’s case. The point is illustrated in Jeff Ashton’s closing statement:

Our position is that this was a pre- meditated murder of a young child but we know that you can reconstruct the events in any way that you want. So you also need to know what felony murder is. ... The reason that we talk about this is that you can postulate a number of diff erent hypotheses in this case. Some might say well maybe Casey put the duct

tape on Caylee to keep her quiet. Maybe she was being loud. Maybe she put it on to keep her quiet and she put it on too tight and Caylee died by accident. I would submit it’s not really consistent with what we have here but you know, someone could think that. The reason I bring that out is because if that is what you think happened, that is felony murder. That’s also fi rst degree murder. Or if you think she used the chloroform to sedate Caylee so that she could spend time with her boyfriend – as bizarre as that seems. Let’s say that she used the chloroform in the trunk of the car to sedate Caylee so that she could go have a good time with Tony on the 16th and that Caylee accidentally died. It’s still fi rst degree murder. ( Ashton, 2011 : prosecution closing statement)

These comments made it seem as if the prosecution were trying to off er diff erent versions about what happened and they did not fi t together very well: that Casey deliberately killed her daughter, and that Casey seriously harmed Caylee through aggravated child abuse leading to her death. Multiple charges meant that the prosecution off ered the jury diff erent possibilities, but they revealed a tactical weakness because they showed that the prosecution could not be sure of what happened. It gave the jury the message that the prosecution thought that the act was murder but if they did not ‘buy’ it then it could have been manslaughter because Casey had the intent to harm her daughter while not exactly intending to kill her. Indeed, if the jury did not ‘buy’ that, it would not be a problem because the prosecution had off ered them the charge of aggravated child abuse, that is, there must at least have been child abuse because Casey neglected her daughter and allowed her to die. The prosecution’s argument would have been more consistent if they had focused on one argument only, and they appeared to lower their probabilities of success by off ering more than one version of opportunity , motive and capability. Multiple charges and possibilities meant off ering three separate constructions of events for the same crime (the death of Caylee). To prove the charge of aggravated child abuse, the State needed to establish that Casey knowingly or wilfully committed child abuse upon Caylee and in doing so caused great bodily harm, permanent disability or permanent disfi gurement. To prove aggravated manslaughter of a child, the State needed to establish that Casey’s act(s) caused the death of Caylee, or that the death of Caylee was caused by Casey’s culpable negligence. Judge Perry instructed the jury that culpable negligence ‘is a course of conduct showing reckless disregard of human life … culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury’ ( Perry, 2011) . The judge further instructed that, for the jury to fi nd Casey guilty of aggravated manslaughter of a child, then it must determine if the State had proved that Caylee was a child whose death was caused by

the neglect of Casey, a caregiver. The judge instructed that ‘caregiver’ ‘means a parent, adult household member, or other person responsible for a child’s welfare’ ( Perry, 2011) .

In fact, the lesser charges encountered the same problems as the charge of fi rst- degree murder because there were still gaps in the evidence relating to opportunity, motive, capability and the cause of death. If the prosecution had tried to prove the charge of aggravated manslaughter, it would remain diffi cult for them to establish opportunity (when and where the act took place). It would also be diffi cult to show motive in the absence of compelling evidence to indicate previous child abuse. Indeed, proving capability would present the same problems and issues as those presented in the case for proving fi rst- degree murder. The forensic evidence would be disputed in the same way. Again, the charge of aggravated child abuse also presented the same problems and issues, particularly in relation to motive given the absence of evidence that there was similar behaviour in the past. Capitalising on these problems, the defence began their closing statements by emphasising that the prosecution could not prove how Caylee had died. Baez argued that this problem was also relevant to the aggravated manslaughter and aggravated child abuse charges:

Here we are at the end of our journey and I have to tell you that I think you probably have more questions than you have answers. And if you recall at Opening Statements, the fi nal thing that I told you, at the end of the day with everything said and done, the one question that will never be answered, the key question in this case will never be answered … it can never be proven … and that is how did Caylee die? That’s why we’re all here. Really, there’s no dispute that Caylee has passed on. There’s no dispute whatsoever about that. So really, the key question as it relates to all manslaughter, child abuse, and murder charges that you’re going to be presented with is how did she die? What happened to her? What is proven beyond and to the exclusion of every reasonable doubt? Not just some but every single one and those questions were never answered [by the prosecution]. That evidence was never presented to you. ( Baez, 2011 : defence closing statement)

To add weight to the defence’s emphasis on the problematic issue concerning the unknown cause of death, Baez introduced his own expert to criticise the autopsy carried out by Medical Examiner Dr Garavaglia and during closing statements Baez described the autopsy as ‘botched’. Furthermore, he off ered an example of courtroom rhetoric employed in the art of persuasion (see Chapter 6 ) by focusing on and criticising the prosecution’s choice of words:

Mr Ashton gets up here and says ‘we can only hope she issued the chloroform’. ‘ Hope?’ They’re hoping they’re going to get a conviction