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06.21.09

The Evidence You’re Not Allowed to See

Because of Florida’s ironically named “Sunshine Law,” we may not get to see the very evidence that could convict Casey Anthony of murdering her daughter.

A Florida judge released the autopsy of murder victim Caylee Anthony on Friday. Her grandparents, George and Cindy, had asked the judge not to release the report until trial, claiming it would cause the family "great anguish." (I'm wondering why they didn't max out on anguish when they learned the child was dead.) Maybe the "anguish" claim is cover for a different strategy: keeping the autopsy from the public so the Anthonys could continue their charade of stories about how a mystery "nanny" person kidnapped the child. Now that the autopsy has been released, we can finally be certain the "missing child" nonsense was a distraction.

Reading news stories about the evidence through the lens of the law's exceptions, with a particular understanding of how the law hides information, offers a much clearer view of the case.

Here's why.

The medical examiner said that plants and roots were found "growing into [little Caylee's] vertebrae" indicating "the body was placed there months prior to being found," which is consistent with "the body being placed there soon after the date of [Caylee] being last seen alive"—sometime around June 15, 2008.

Caylee's mother, Casey Anthony, has professed her innocence, but she's facing first-degree murder charges and the death penalty because of the following evidence:  Her failure to report her daughter missing for more than a month; her repeated lies to police about the circumstances of Caylee's disappearance; the discovery of hair and decomposition material from the child's body in the trunk of Casey's car; and the fact that Caylee's remains showed up in a swamp close to the Anthony home. These facts weigh heavily in favor of Casey's guilt, and new information from the autopsy adds a bit more to the pile.

Nevertheless, there's a good chance Casey will be acquitted if that's all the state has.

It pains me to say this because when children are murdered, my "mother bear" comes out. Hearing about Caylee's little bones being "intermingled" with plant growth makes me sink my teeth into any evidence that points at guilt because, like most people, I want someone to pay for what happened to this defenseless little girl.

But I call 'em like I see 'em. If there's reasonable doubt, I'll say so—even if it means a dangerous criminal walks free.

So if the only evidence against Casey Anthony is that which we've read about in the press, I believe she will be found not guilty. The state can't possibly prove the charges without some evidence suggesting when, how, where and why Casey killed her child.

Sad, I know. But before you drop your head in your hands, read on.

Despite everything I just said, Casey will probably be convicted because I believe the state has much more evidence than any of us are privy to.

It is highly likely that a mountain of evidence is being withheld from public view under one or more exceptions to Florida's "Sunshine Law," a statute that presumptively requires disclosure of all government-held information, such as evidence in criminal cases. Sounds great—except that the law is so fraught with exceptions, it's a wonder we've been allowed access to anything.

Reading news stories about the evidence through the lens of the law's exceptions, with a particular understanding of how the law hides information, offers a much clearer view of the case.

The language of the statute itself provides that all records held by the state are "public records" that must be released to the public upon request. In a criminal case, an exemption applies so long as a "criminal investigation" or "active prosecution" is under way. This exemption does not apply to evidence that has been shared with a person who has been charged with a crime. In other words, any discovery, document, or piece of information given by the prosecution to Casey Anthony's attorneys is not covered by the exemption and must be released.

Good, you're thinking. It was recently reported that the defense "has everything the prosecution has," so the public should be entitled to see the entire investigative file—including police reports, drug tests, witness statements, search warrants, etc.—right?

Not so fast.

Even when evidence has been made available to the defense, it will continue to be withheld from public view if disclosure might "jeopardize the safety of a... witness," including the defendant, or "impair the ability of a [prosecutor] to locate or prosecute a codefendant." Translation:  If Casey's family was threatened by other people involved in Caylee's death, as Casey's mother has said and some of the evidence suggests, these exceptions would kick in and most of the evidence would not be released prior to trial.

Even if there were no threats and nobody else was involved, the vast majority of damning evidence against Casey would still be kept secret under another broad-sweeping exception adopted by the Florida Supreme Court, which provides that evidence in criminal cases can be withheld from the public "to protect the defendant's Constitutional right to a fair trial." In short, almost every piece of evidence that proves Casey's guilt need not be shared with the public prior to trial.

This doesn't mean we can't glean certain bits of information from that which has been released. But we have to think about the case with a heavy emphasis on what isn’t being said.

For example, in an interview with one of Casey's friends early in the investigation, police stated that they would "not discuss on the record" certain leads regarding other people who might be involved in Caylee's disappearance. Maybe those leads went nowhere. But shielding the names of potential witnesses so early in an investigation, at a time when the identities of so many people associated with Casey were readily available to the press, raises interesting questions. What reason did police have for keeping certain leads secret? Why have those names still not been revealed after nearly a year? If the leads went nowhere, there's no reason for continued secrecy. And if the names are being withheld under one of the exceptions of the "Sunshine Law," can we infer that Casey did not act alone? At the very least, can we assume that unidentified others know important information about how and why Caylee died?

Here's another interesting tidbit that gets a little clearer when seen through the lens of Florida's not-so-sunny "Sunshine Law": It was reported recently that drug tests on hair from Caylee's remains produced negative results. FBI scientists conducted tests to determine whether benzodiazepines were present and the results indicate that either nothing was found or the traces were so small, they were not detectable.

Sounds great for the defense at first blush. But an important question needs to be asked and answered before we chalk one up for team Casey: Why was law enforcement looking for benzodiazepines in the first place?

We know that benzos are popular with child-sex offenders and child pornographers because they inhibit memory and render kids cooperative without knocking them out (a knocked-out child is less appealing to perpetrators and child-porn users than one who is conscious, if sedated). We should be talking about why cops focused on this particular type of drug.

Were the bones and bone marrow tested for drugs? What were the results? Experts uniformly agree that bones and bone marrow can easily be tested to determine whether an individual had benzodiazepines in her body at the time of death. The tests are effective even years after death, and even after significant decomposition. Benzos are less stable in hair, especially hair that has been affected by water. So even when drugs appear in bones, it would not be unusual to receive a negative result on drug tests in hair that has been submerged in water. We should have access to all the test results that relate to drugs of any kind that might explain how and why Caylee died.

Here's another good question: Given that the public has been allowed access to the negative test results on hair found with Caylee's remains, what inference can we draw from the fact that we've been denied access to other drug-related information?

More importantly, why does the lab report on the negative result indicate that tests were conducted after a "conversation" between the medical examiner in Florida and the FBI lab in Virginia that did the actual testing?

Having served as a prosecutor, as well as independent counsel to the chief medical examiner in Massachusetts, I can tell you that when a forensic pathologist investigating cause and manner of death asks an outside lab to conduct specific drug tests, it is because the initial autopsy and related investigation materials produced reason to believe drugs would be found. We also know that a search warrant in the case authorized police to seize sedatives from the Anthony home and that a judge cannot issue such a warrant without cause to believe such drugs are related to Caylee's death. In other words, the concern about benzodiazepines being associated with Caylee's death did not come from nowhere.

Many more aspects of this case should be analyzed based on what isn't being reported and it bears repeating the obvious that if the most damning evidence against Casey is being withheld, the case may well be rock solid.

I know it's awkward to assess evidence based on what we aren't being shown, but it's doable. We just have to ask different questions. Instead of "what does this evidence mean?” we should ask things like, "what seems to be missing?" and "what more do I need to know to make sense of this piece of information?”

For instance, we know that Casey's computer and cellphone records were seized and searched. The results of her cellphone activity were released to the public, but not the search results related to her computer. We also know that Casey deleted a lot of information from her computer around the time that Caylee went missing. Why can't we see the reports that explain what cops were looking for on Casey's computer and what, if anything, they found?

It's tough enough to ensure that the legal system works as it should when a powerless child is a crime victim and her family is on her side. When the victim's parent is also the accused, the rest of us have to step up to the plate more aggressively to make certain that justice is served and the full truth is told. Sometimes the law helps us along by facilitating full disclosure of information. But sometimes, as Shakespeare once said, the law is an ass. What else would you call it when a statute with the nickname "Sunshine" functions more like a tornado—to distort rather than elucidate the truth.

There will be no justice for Caylee if we allow ourselves to be misled by dark clouds and partial truths—where we might start to believe in things like houses falling on witches, and little girls dropping dead for no apparent reason.

Wendy is a former child-abuse and sex-crimes prosecutor who teaches at New England Law/Boston. Her expose of the American legal system, And Justice For Some, came out in 2007. A former NFL cheerleader and visiting scholar at Harvard Law School, Wendy lives outside Boston with her husband and five children.