Tears of Deception from Casey Anthony? Will the Accused Florida Mom Testify?

Published June 13, 2011 | On the Record | On the Record

Special Guests : Attorneys Bernie Grimm and Ted Williams, Jim Hammer

This is a rush transcript from "On the Record," June 13, 2011. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Well, the big question: murder or an accident? Was little Caylee murdered by her mother Casey or not? The jury saw Casey weep when the pictures of her decomposed child were introduced into evidence. What do you think the jury thought of the weeping mother?

Our legal panel is here. Joining us is criminal defense attorneys Bernie Grimm and Ted Williams along with former San Francisco assistant D.A. Jim Hammer. Ted, she cried and the jury no doubt saw it. As a defense lawyer, what do you think?

TED WILLIAMS, CRIMINAL DEFENSE ATTORNEY: Well, if the jury believed that the tears were contrived and made up, it could be held against Casey. On the other hand, if the jury let's say should find her guilty and believe that the tears were real, this very well could be somewhat considered remorse. And it may, may save her life.

VAN SUSTEREN: Bernie, is there evidence or the reasonable for instance from the evidence of accident?

BERNIE GRIMM, CRIMINAL DEFENSE ATTORNEY: I guess the inference right now is from the opening statement, and as Ted and Jim know, that's not evidence. So they have to deliver something there with respect to the accident.

I think the facts are too sketchy. The child is gone for 31 days. Evidence in the trunk found later on to suggest that it is accident. No inference if Dr. Baden told me there was chlorine found in the lungs, then I could make an inference. But I don't see it here.

VAN SUSTEREN: When Bernie can't find a reasonable inference that should be terrifying for the defense team. Can you help him? I know you are a former prosecutor. Can you help him any reasonable inference of accident?

JIM HAMMER, FORMER SAN FRANCISCO ASSISTANT D.A.: What I heard in Bernie was the tone. He's one of the best fighters. He can defend the worst of the killers. The problem is the defense has laid out a specific theory. They don't have to put on a defense but the jury is waiting for it.

HAMMER: They told you she drowned, I was afraid and I was molested, so I hid my baby. You go figure that one out.

VAN SUSTEREN: The only way you can prove that, and the defense doesn't have any obligation to prove it, but once you lay it out there, it is wise.

HAMMER: They need testimony -- I'm sorry. Go ahead, Greta.

VAN SUSTEREN: They need Casey to testify or the father. Somebody has to supply that.

WILLIAMS: Absolutely. And, Greta, I don't believe that Casey is going to take the stand. And I don't believe that Casey, the liar that we know she is, would be able to stand a withering cross-examination. The father has already testified that he did not molest Casey. It is going to be very difficult, I think, but Jose Baez has to deliver something to this jury. This jury is looking for something.

VAN SUSTEREN: Bernie, if she takes the stand, the father is the only one who can say it is an accident. If she takes the stand, she doesn't have to. If I were the prosecutor on cross-examination I would take her carefully and quietly through every single one of those 31 days and take her through every party and bar and tattoo and everything I could to show that -- to try to defeat the defense. Is that what you would do?

GRIMM: Oh, you would melt it like an iceberg in front of the jury. You would bring out a calendar and say on this day were you in a car listening to a radio. Did you think about your baby? You were dancing, drinking, singing. Were you thinking about your baby? She is not going to be able to survive this.

This is a classic question that many defense lawyers have in a death case. Am I trying to save my client's life or am I trying to win the case? Sometimes, as Jim knows this, those are two different things. If you are trying to save your client's life, she should not get up on the stand.

VAN SUSTEREN: Jim, that means if she doesn't get up on the stand and George Anthony doesn't testify to the accident, that leaves zero people testifying to the accident. His choice is to rest at this point. What else can he do?

HAMMER: That's all he can do. The most dangerous thing we didn't talk about. Prosecutors can't say look at this poor girl. Imagine yourself dying this way but they effectively did it with that image of her alive and recreating the tape around her. Every juror in those moments imagine wad it was like to suffocate in her mother's hands. I cannot imagine anything more devastating than that. I don't know how the defense recovers from that image.

WILLIAMS: Greta, it wouldn't surprise me if Jose Baez is trying this case for the penalty phase. I know he wants to win. But it is very difficult. You said and I agree that circumstantial evidence in this case is very strong. He may very well when he talks about the sexual nature of the father, perhaps attack the daughter. He may be using that in mitigation for the penalty phase of the case.

VAN SUSTEREN: Except that he could do that in the penalty face. Bernie, if George doesn't testify, if the defendant doesn't testify, and then Jose Baez may call a couple witnesses but rest, how does he handle the fact in closing argument that he didn't put on evidence to support what he said in opening statement, if that happens?

GRIMM: He's going to have a hard way to go. I can hear Ted and Jim in my ear right now. Jim, a prosecutor would say we were here four weeks ago he promised you these things, where are they? They don't have the burden. But when he promises things, it is bad. They don't have a burden under the law, but when I say I'm going to deliver something, you better deliver something.

HAMMER: Bernie, the worst part is he has ruined his credibility. He has to stand up in front of the jury and defend her from the death penalty. They won't believe him. And that is the most devastating thing, I think.

WILLIAMS: Absolutely.

VAN SUSTEREN: Tomorrow, we expect the defense could begin or the following day. We'll find out whether Casey is going to testify or not. Thank you all.