Convicted or Saved By Her Silence?
Consultant for Casey Anthony's team discusses the decision not to put her on the stand as question marks still surround defense theories
This is a rush transcript from "On the Record," June 30, 2011. This copy may not be in its final form and may be updated.
GRETA VAN SUSTEREN, FOX NEWS HOST: Everyone has been wondering, "Would Casey decide to take the witness stand?" And talk to the jury? We now know that answer. That's no. Here's Judge Belvin Perry, though, asking her.
(BEGIN VIDEO CLIP)
JUDGE BELVIN PERRY, FLORIDA CIRCUIT COURT: Is it your decision not to testify, based upon consultation with your counsels?
CASEY ANTHONY: Yes, sir.
PERRY: You understand that your decision to testify or not testify is solely your decision and your decision alone?
ANTHONY: Yes, sir.
PERRY: And it is your decision not to testify?
ANTHONY: Yes, sir.
PERRY: OK. Have you had ample time to discuss this matter with your attorneys -- that is, the pros and cons of testifying or not testifying?
ANTHONY: Yes, sir.
PERRY: And has anyone used any force or pressure in making you arrive at that decision?
ANTHONY: No, sir.
PERRY: And that decision is your decision freely and voluntarily?
ANTHONY: Yes, sir.
(END VIDEO CLIP)
VAN SUSTEREN: So is the defense team's claim that little Caylee accidentally drowned in the family pool now out the window without the help of Casey's testimony?
Joining us is criminal defense attorney Jennifer Barringer. She's also a consultant to the Casey Anthony defense team.
And Jennifer, I realize and recognize that Casey does not have to prove anything at all -- at all -- because she's the defendant here -- however, that Jose Baez, in essence, in the opening statement made some promises. And you've got this incredible gap between June 16th, when the child disappeared, and this first 9-1-1 call in August. And it's sort of created this burden. So what is the defense explanation to what happened?
JENNIFER BARRINGER, CONSULTANT TO ANTHONY DEFENSE: You know, I think Jose said that at beginning. Frankly, I'm confounded at the amount of people who thought she would actually testify. As you know, it's very rare in a criminal case to begin with, and certainly with this client. I mean, Casey is -- you know, is a liar. And I think Jose bought a lot of credibility by coming out and even saying that in his opening. And basically, there's no up side. You know, you can imagine the jury is not going to believe a word that she says.
VAN SUSTEREN: Right.
BARRINGER: And...
VAN SUSTEREN: Right, but so -- so what is -- I mean, the whole business about accident -- I realize the conversation with this woman, [Krystal] Holloway [George Anthony's alleged mistress]. But as a tactical matter -- let's get down in the weeds, is that what she said was not evidence, it was simply to impeach George. And I assume there'll be an instruction on that.
But so I mean there's nothing to suggest accident other than sort of to try to have these inferences about what happened, but Jose Baez promised it.
BARRINGER: Well, you know, I don't know if he promised it as much as I think he's hoping that the inferences, as you say, play a big part in the jury's decision-making process. You know, a lot of times, the jury will be instructed not to take something into account, but you know, they've already heard it. Like, for instance, they've already heard -- no matter how many times we go through the semantics of it, they heard Ms. Holloway today say that George knew that it was an accident.
VAN SUSTEREN: Well, that...
BARRINGER: And I think he's probably relying on that.
VAN SUSTEREN: But it's a little bit -- I mean, let's face it. That's not -- if he knew that she was going to say that, then it's unethical to put her on the stand to say that, even though the jury has now heard that. I assume that he knew what she was going to say about anything -- I mean, I assume that -- I assume that he talked to her ahead of time.
But the problem is a little different. The problem here is that Jose has made, I think, an affirmative promise. And if you don't deliver on that promise, you better have a good explanation or the prosecutor is going to turn and point right at you and say, "Where is that, Mr. Baez?"
BARRINGER: No, I think you're right. I think that's exactly what they're going to do. And I think Jose is -- has backed himself a little bit in the corner in this regard. Yes, you know, we don't have burden, but it's going to be very, very hard to explain that to a jury after what he said in opening. I don't disagree. It's going to be quite a feat for him in closing.
VAN SUSTEREN: As a member of the defense team, where did Jose Baez get this child molesting thing? Because, I mean, Mark Lippman seems to think that it was Jose Baez who made it up and not Casey Anthony telling her lawyer.
BARRINGER: No, no. That would be completely unethical. That's something that you -- those are the types of things you only get from your client. You're never going to make something like that up. That would be horrific. So, yes, no, that's something that he got from Casey directly.
VAN SUSTEREN: Are you certain of that, or is that just something you assume, that a lawyer wouldn't do that?
BARRINGER: Well, I can't say that I was in on the meeting, so -- but I'm pretty certain of that, yes. That just would never happen, no.
VAN SUSTEREN: And so what is the thinking of the defense team, is that because she was molested, which George Anthony denies, that for some reason, she felt compelled to be part of this hiding this accident?
BARRINGER: I think it's a little bigger than that. I think Jose was trying to say that it's a bit more of a conspiracy, where it's -- this is a family who consistently lies and that she was taught to lie. And so that's the only way she knows how to deal with things. So this is...
VAN SUSTEREN: But there's nothing wrong with an accident. I mean, it's tragic, but it's not a crime. So why wouldn't it have been disclosed?
BARRINGER: You know, it could have been panic. It could have been...
VAN SUSTEREN: By the father, too?
BARRINGER: But what Jose is saying is that -- yes, she -- Casey isn't the sharpest tack. It's much more believable to think that an ex-police officer could create a situation that we have here, which they don't have cause of death. They have no DNA. They have nothing. If she did it, she did the perfect crime. You know, they can't trace it back to anyone. So it would be -- you know, it's a little bit more likely that it would be her father, I think.
VAN SUSTEREN: Jennifer, thank you.
BARRINGER: You're welcome.
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