A Question of Death and Casey's Competency
OTR legal panel takes on the latest maneuvers by Casey Anthony's defense team
This is a rush transcript from "On the Record," June 27, 2011. This copy may not be in its final form and may be updated.
GRETA VAN SUSTEREN, FOX NEWS HOST: Is Casey Anthony competent to stand trial? Can she help her lawyers? Does she know what's going on? Now, there must be some question about her because first the lawyers huddled with the judge on court -- in court on Saturday, and then he canceled court. Then today we find out Casey just had three doctors evaluate her.
Our legal panel is here. Criminal defense attorney Bernie Grimm along with Orlando attorney Diana Tennis and criminal defense attorney Ted Williams. Ted, of course, represents Brandon Sparks, the son of the man that found Caylee's remains.
Ted, do you want to go out on a limb? Is she going to be testifying or not? And what do you think her lawyers are saying?
TED WILLIAMS, CRIMINAL DEFENSE ATTORNEY: Well, I think her lawyers are probably saying, "Boy, we are in a pickle here," because as we know, Greta, she's already told so many lies that her credibility is shot. This jury knows her credibility is shot. So even if they put her on the stand, and no matter what she says, unfortunately, it is highly unlikely that the jury is going to believe her.
VAN SUSTEREN: Diana, is she...
DIANA TENNIS, DEFENSE ATTORNEY: Well, listen...
VAN SUSTEREN: ... going to testify, do you think?
TENNIS: You know, coming into this, she was a liar. She was impeached from the get-go. If we just told every client who is a liar, "You can't testify and we don't have a shot at it," frankly, I'd go into, like, real estate law or something. I think going into that opening, there wasn't anybody else on the planet who could prove those things but Casey Anthony. And I think that this last minute competency motion is frankly bogus. It's bogus.
(CROSSTALK)
TENNIS: This is a "CYA" maneuver.
VAN SUSTEREN: Diana, I'm trying to understand...
TENNIS: It's a CYA maneuver.
VAN SUSTEREN: I'm trying to understand the defense theory. Is the defense theory -- besides the fact that I know [Casey's father] George [Anthony] molested her and all that stuff. Is the defense theory is that it was an accident, that somehow...
TENNIS: Right.
VAN SUSTEREN: ... somehow, maybe the child was buried in the backyard or something, that the meter reader sneaked into the backyard and he transferred her in some other vehicle and dumped the remains someplace else, but just fortuitously discovered the body in the backyard? I mean, is that the defense theory?
TENNIS: I think their theory is that we don't know what Dad did with the body because, you know, conveniently, Dad took over when the accident was discovered. Dad takes the body. He does whatever with it, maybe puts it in the woods, maybe doesn't. And then Roy Kronk moves it around...
VAN SUSTEREN: And he's going to let it...
(CROSSTALK)
VAN SUSTEREN: And he's going to let -- Bernie, and he's just going to his daughter take -- let his daughter...
TENNIS: Right.
VAN SUSTEREN: ... go to the death chamber because he moved the baby after an accident. I don't know. That doesn't...
BERNIE GRIMM, CRIMINAL DEFENSE ATTORNEY: Yes, no, it's a lot of hogwash. If the...
TENNIS: It's not great. It's not great.
GRIMM: If the defense is going to sell this theory that they outlined in opening, she has to testify. Usually, in any murder case, you don't want your client to testify. In a death case, you never want your client to testify because, one, the client gets convicted. And two, they will punish the client for lying to them and then give the client death. If your client doesn't take the stand, the jury might meet her halfway and just give her life.
VAN SUSTEREN: All right, now, let -- this death penalty motion that's been filed, and motion for a mistrial -- Diana, let me tell you why I think the prosecution should be -- you're the lawyer down there in Florida. Let me tell you why I think it should be -- it's a little bit of a problem, is that the death penalty has been declared unconstitutional. I take it it's statewide -- by a federal judge. So now they got a lousy death penalty -- they can't do. That's the first thing.
The second thing is, is that they had -- they -- when they chose the jury, they picked what's called a death-qualified jury because this is a death penalty case. But...
TENNIS: Right.
VAN SUSTEREN: ... if this were not a death penalty case, you cannot ask for a death-qualified jury, is that right?
TENNIS: That's exactly right. That's exactly right.
VAN SUSTEREN: All right, so...
(CROSSTALK)
VAN SUSTEREN: So if you have this fortuitous situation where now the death penalty in the middle of your trial is off the table, you've got a jury that you never in a million years could have seated before because it's a death-qualified jury in a non-death penalty case, am I right?
TENNIS: That's exactly right.
VAN SUSTEREN: (INAUDIBLE) serious problem?
TENNIS: That's exactly right. That's exactly right. And they can't fix it, meaning there's a Florida Supreme Court case that says you cannot have the jury give you the reason, the aggravators that they're using, because that fix, if the law allowed it right now as we sit here today, the judge could just fix it and say, "We're going to..."
VAN SUSTEREN: I...
TENNIS: ... change it...
VAN SUSTEREN: But you can't even fix it!
TENNIS: ... so that it meets constitutional muster. You can't fix it.
VAN SUSTEREN: But you can -- but you can...
(CROSSTALK)
TENNIS: There's no way to fix it.
VAN SUSTEREN: Ted, did you see any sign that the prosecution was they least bit distressed that this would be a motion that -- a mistrial motion that could abort this trial and start it all over?
WILLIAMS: No, I don't think that they were distressed. But I have to kind of disagree with Diana in some instances here. Look, I think that they were obligated, meaning the defense, to put forth these motions now because if they don't preserve the record now, then they may very well lose later. So they have to do what they're doing, Greta.
VAN SUSTEREN: Well, of course. I mean, you're talking about the -- of course, the death penalty...
(CROSSTALK)
VAN SUSTEREN: ... and the competency. Bernie, I mean, you raise the competency when it becomes an issue of competency. If it's the middle of the trial and she sort of gets a little bit nutty and they're worried she's not competent, they don't wait until after the trial.
GRIMM: No, of course not. This -- you have to do it now. This goes back to Jeanine's point, which -- sometime, there's a decent guess that she told her lawyers, I'm testifying, I'm fed up with this, the jury will believe me. Based on that, they huddled together and said she can't be thinking clearly.
VAN SUSTEREN: But you don't know that! But you don't...
GRIMM: It's -- I don't...
VAN SUSTEREN: It could be crazy notes that she's -- I mean, we don't have a clue why they called a competency hearing!
GRIMM: Right.
VAN SUSTEREN: It could -- it could be that or it could be something...
(CROSSTALK)
GRIMM: Well, Jeanine has talked about their whispering in the courtroom. Plenty of trials I had where clients are whispering to me that there's angels sitting on my shoulder. And the notes they pass me are things that would...
TENNIS: But don't you...
VAN SUSTEREN: Yes, Diana?
TENNIS: Don't you think it's -- don't you think it's interesting, though, that the lawyer who's least involved with her is the one that files it? He doesn't go back this morning into chambers to discuss it. And he did not stand up once. He didn't go to a single sidebar. He didn't talk to a single witness. Ann Finnell, all of a sudden, out of nowhere, in there in the courtroom at the sidebars, questioning witnesses. To me, Cheney Mason distanced himself from the entire proceeding today, from the entire defense...
WILLIAMS: Oh! You know...
TENNIS: ... and yet he's the one who filed that motion!
WILLIAMS: You know, Diana...
TENNIS: That's very interesting!
WILLIAMS: Diana, the problem -- the problem with what you're saying is what happened over the weekend. Everybody was speculating on what happened over the weekend that caused the recess. I think that this is a team. They're doing whatever they can to try to save her life. And by the way, Greta, my good friend, Michael Baden, brought up something. I need to find out what is a pupa case!
(LAUGHTER)
VAN SUSTEREN: Actually, you know, it's funny you should say that because I was going to ask Bernie. What's that purple house you're standing in front of? I thought that was -- you see that purple thing ...
GRIMM: Ted? Yes, he called me before the show. He bought a house in Orlando, so...
VAN SUSTEREN: Purple?
TENNIS: A purple house.
(LAUGHTER)
VAN SUSTEREN: Back on a more serious note, Diana, the -- Jose Baez got a lot of criticism from all of us on the sidelines. How's he doing on this trial? You're down -- you're the lawyer down there.
TENNIS: It's a mess. It's a mess. I'm very unhappy. I'm worried that an unjustice is happening. Just because you have a client who's a liar and impeachable doesn't mean you have a loser case. This is a good defense case, and it's not going well. They've got experts that they're calling that they can't get a single question out of...
VAN SUSTEREN: You know what?
TENNIS: It's a mess.
VAN SUSTEREN: I'm going to give you the -- I'm going to give you the last word, but I've never thought it was a good defense case. I mean, and I -- I could be dead wrong. We'll see what the verdict is. And we should probably have a longer discussion on it, but I thought that...
(CROSSTALK)
TENNIS: I've seen a lot worse.
VAN SUSTEREN: That may be. Her behavior is just -- those 31 days. I don't know how a defense attorney gets beyond those 31 days.
WILLIAMS: How about a pooper defense. I want the pooper defense.
VAN SUSTEREN: We'll work on it. Ted will be out of seventh grade by the time he gets back. Thank you all.
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