Seeds of Doubt in Casey Anthony Case?
Will questions about forensic evidence, Caylee Anthony's remains prevent a conviction?
This is a rush transcript from "On the Record," June 21, 2011. This copy may not be in its final form and may be updated.
GRETA VAN SUSTEREN, FOX NEWS HOST: Judge [Belvin] Perry, as Jeanine just said, lashes out at the defense again. It looks like he's sort of had it with the defense. But are the lawyers just doing their job, being aggressive advocates for their clients, or do the lawyers deserve a tongue-lashing from the judge?
Well, let's ask our legal panel. Joining us are Orlando attorney Diana Tennis and criminal defense attorneys Bernie Grimm and Ted Williams. Ted represents Brandon Sparks, the son of the man who found Caylee's remains.
Diana, let me ask you first. Judge -- judge out of line giving the defense hell?
DIANA TENNIS, CRIMINAL DEFENSE ATTORNEY: I think that the judge has gone way overboard. I have never seen a murder case in this town or any other, particularly with prosecutor Jeff Ashton, who did not have the prosecution taking depositions -- it was obvious that he did not take depositions of important experts because he got in reports where he thought, You know what? This seems a little thin, and I'm going to try to keep them narrowed down to what's in this report. I'm not going to take depositions. Even when they showed up at his office over last weekend, he's, like, No, never mind, I don't want to take it.
I think that is playing games. Obviously, you can't put five hours of testimony in a report. In Florida, experts typically don't do reports at all. You have to rely on depositions. We all do it all the time. I never get expert reports. I think the state is playing games every bit as much as the defense is negligent and incompetent.
VAN SUSTEREN: And I'll take -- Bernie, I'll actually take a little -- I actually -- I'm surprised at the judge here in the sense that, you know, whether Jose Baez failed to do something in a report, it doesn't really affect the integrity of the trial. They can take some time to do the deposition on the side. And for the life of me, it's, like, I can't ever remember having a trial where I didn't get yelled at for something.
BERNIE GRIMM, CRIMINAL DEFENSE ATTORNEY: Yes, no, I'm actually with you, Greta. I had actually witnessed some of those myself, and I thought you were going to need me as counsel.
(LAUGHTER)
GRIMM: But yes. I don't know why the judge -- somebody's life is at stake here. There's someone -- a child that's been killed. There's a woman who's looking at...
VAN SUSTEREN: And the focus is on whether the lawyer did -- I mean, something that could be remedied! That's the thing.
GRIMM: The focus is on whether there's a technical violation of some rule.
TENNIS: Right!
GRIMM: And Diana and Greta are both right. Take a timeout. Sit down. Do the deposition. Give each side as much time as they want. But if a violation -- if a contempt violation is essentially out of bounds, you need to try a case with dust on your shoes. And I don't know what --- contempt violation is like the bogeyman. Everybody's supposed to run? I mean, I've had my share of contempt checks that I wrote.
VAN SUSTEREN: I think both sides -- I mean, I've seen prosecutors get yelled at by judges! I mean, everyone's so seized upon it a little bit. The judge gets mad. Like, what's the big deal? People lose tempers in trials.
(CROSSTALK)
TENNIS: Where's the prejudice?
VAN SUSTEREN: Well, that's -- take a break. But Ted?
TED WILLIAMS, CRIMINAL DEFENSE ATTORNEY: Well, yes, but I also have to believe that Judge Perry is doing something here, and that is he must maintain control of this trial. He doesn't want this thing to be the O.J. Simpson-Ito...
VAN SUSTEREN: Wait a second! You can take a recess, for God -- you can take a recess and tell the state, you know, Yes, the defense should have notified you of this. Go take an hour and depose him. I mean, like - - instead make this big circus, where he shuts down the trial for a day and there are all the commentators are seizing upon it! It's (INAUDIBLE)
WILLIAMS: Well, that may be true. But the judge put out an order, and he expected the lawyers to follow that order. They didn't follow that order. So that's the reason he came down on them.
VAN SUSTEREN: Maybe -- maybe he's never practiced law because you know what happens at 5:00 o'clock? He goes home and he has the evening off! Every single prosecutor and defense lawyer has to work until midnight preparing witnesses...
WILLIAMS: I know.
VAN SUSTEREN: ... getting ready for the next day! It's a lot easier to be the judge on these cases than the prosecutor and the defense!
WILLIAMS: I would have to agree. I'm going home and prepare for a trial tonight when I leave here.
VAN SUSTEREN: Diana, tell me a little bit about this judge, although you practice there, so maybe --
TENNIS: No, are you kidding? No holds barred, at this point. You know, Judge Perry is great. I've never seen him act this -- I'm sorry -- biased against a litigant. He really does seem to come down hard on Baez. He knows Jeff Ashton. And Jeff Ashton is a fabulous prosecutor. I've been up against him a million times. We've both been yelled at. Sometimes I've been yelled at more than he's been yelled at.
But he knows Jeff is going to out-smart and out-lawyer Jose Baez every time because he's got the wealth of experience and he's got the skill set. And he knows that that was game playing not to take those depositions.
And to talk about giving an instruction to the jury to not trust this witness because the defense didn't follow the rules is unbelievable to me. You're basically telling them, You don't have to believe this forensic doctor because Jose Baez screwed up. That's what he's talking about telling the jury. And I'm -- I think it's going too far.
VAN SUSTEREN: Let me switch gears, Bernie, to this April Whalen witness that the prosecution wants to call in a rebuttal, maybe, that Casey Anthony may have had a conversation with her in jail in which she said that her child had drowned and the grandfather found him and that somehow supplies a defense that somehow ends up in Jose Baez's opening statement.
GRIMM: Right. The state has a fairly air-tight circumstantial case. Why they want to inject into it this into it at this point is just crazy. I think Ted wrote it down on one of his notecards right here -- yes -- I'll rob this -- "Much to do about nothing."
(LAUGHTER)
GRIMM: I mean, Whalen -- Whalen won't even appear as a witness. She's not going to admit she told Anthony those facts. It's not so unusual that you couldn't make that story up.
VAN SUSTEREN: That's what I don't get. I mean, in looking at this case, I think from afar -- and we haven't heard all the evidence -- but that's a strong circumstantial case. I mean, there's no explanation for where that child was from June 16th to the time they found her in December, you know, that -- you know, and although -- although the burden is not on the defense, I mean, there's something that's certainly peculiar (INAUDIBLE) So why would they infect it with sort of collateral issues and -- and -- I mean, that's what I don't get, what the prosecutor...
(CROSSTALK)
WILLIAMS: You ever her the word "overtrying" a case?
VAN SUSTEREN: Marcia Clark.
WILLIAMS: In this case, I believe that the prosecution is overtrying this case. They're doing what we would in Lake Charles, Louisiana, call voodoo science. They're bringing in the smell test. Come on! Give me a break! And now they want to bring in Whalen? This is desperation! It is hearsay! She's never going to testify in this case! This is more of a media sensation than anything else!
VAN SUSTEREN: Although, Diana, let's also admit it, the judge's job is so much easier than the defense lawyers. The only job that's easier than the judge's is ours, sitting around, being -- sort of commenting on what they're doing.
(LAUGHTER)
VAN SUSTEREN: It's even easier for us to judge it, isn't it.
TENNIS: Absolutely right. Absolutely right. But Judge Perry -- he's been through this a million times. He knows how to walk these waters. And he's said three or four times in the last 24 hours, Don't make me do something that's going to bring this back on appeal. This is getting close to coming back on appeal.
Well, that's pretty easy, Judge. Just don't do those things. Make it clean. Make the state prove the case. And give the defense a frickin' break so that we don't have to do this a second time.
VAN SUSTEREN: And -- and I've been -- I've been in the chair in the courtroom. I know how much easier my job is than trying the case. I acknowledge that. Thank you all.
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