Casey Anthony Case: Hate the Facts, Not the Jury

Here is today’s column on the Casey Anthony trial (the print copy runs next week). Anthony is to be released in a matter of days, though the original calculation of next Wednesday appears to be incorrect.

The anger over the acquittal of Casey Anthony in the death of her 2-year-old daughter Caylee has left many angry and confused. And that’s an understatement. After all, Anthony had been convicted weeks earlier on countless cable shows, Internet sites, Facebook accounts and Twitter feeds. Not since the O.J. Simpson case nearly two decades ago has the nation diverged so greatly from a jury in the outcome of a case. The same anger was apparent as people demanded to know why the jury would allow this death to go unpunished. Of course, they were not tasked with guaranteeing punishment for a crime, but guaranteeing that only the guilty are punished. It is a distinction lost in today’s legal coverage where jurors are expected to complete the script written by commentators by supplying satisfying ends to sensational stories. Anthony had already been packaged and processed through the system as a slut, a nut, and most importantly a murderer. Everyone seemed to know except 12 people in the Orange County Courthouse in Florida.

Armchair juries

On CBS, anchor Julie Chen actually broke into tears reading the verdict while others denounced the jurors for letting a murderess walk for free. The one predictable moment came from HLN’s Nancy Grace, who was in her usual full rage and revulsion. Sputtering with anger, Grace told her audience that “Tot mom’s lies seem to have worked” and warned viewers that while “the defense sits by and has their champagne toast … somewhere out there, the devil is dancing tonight.”
It is not surprising that Grace is the face of unrequited vengeance. She was hired by CNN (HLN is under the CNN umbrella) after a controversial stint as a Georgia prosecutor during which she was accused of repeated unethical acts, including what one court described as her “disregard of the notions of due process and fairness.” Grace recently settled a case after a mother committed suicide in 2001 after Grace all but accused Melinda Duckett, 21, of killing her own son. Later, Grace would tell viewers, “If anything, I would suggest that guilt made her commit suicide.”

The fact is that the evidence against Anthony was highly circumstantial and questionable. There were certainly incriminating elements, such as Anthony’s lies to investigators and her bizarre claims that Caylee was kidnapped by a nanny named Zanny or possibly drowned. There was also expert testimony that Anthony’s car trunk showed high levels of chloroform, and an expert who testified that he found hair, including possible post-mortem hair that matched Caylee in the trunk.

It was certainly enough for a trial, but was it enough to convict a person and subject her potentially to the death penalty?

While many Americans learned about the case through ciphers like Grace and an army of bloggers who focused on Anthony’s love life and pictures of the adorable Caylee, the jurors were focusing on the evidence:

•There was no clear evidence of how the child died.
•There were no witnesses to the act.
•There was no clear evidence of a motive.

For every major circumstantial fact offered by the prosecution, the jurors had doubt as to whether it was true or whether it tied Anthony to the death. In the end, the only clear crime was lying to the police, the count on which Anthony was found guilty.

Old-school justice

This is precisely why we require jurors to be educated by the evidence as opposed to their neighbors. That was not always the case. In the 12th century, early jurors relied on “self-informing,” meaning they applied their own understanding of the facts as members of the community as opposed to hearing evidence: Think of a jury of 12 Nancy Graces.

Of course, the only problem with a trial based on proof is that it is often subject to doubts. Ironically, the most accepted system of justice was also the most abusive: trials by ordeal. Medieval courts relied entirely on God to pronounce the guilt of an accused. Defendants were drowned, burned, given poisoned bread, and subjected to other abuse to see a sign of divine judgment. Yet, trials by ordeal had one advantage: People accepted the results because one could not question the judgment of God.

Without God rendering the decision, we will always have those who find these decisions to be unacceptable and lash out at these jurors. Yet, studies have shown that lawyers and judges tend to overwhelmingly agree with juries in their decisions. Three leading studies looked at thousands of trials and found remarkable consistency with judges disagreeing with verdicts in only 5.5%, 5.6%, and 6.7% of cases. That is a remarkable success rate for any institution.

It would have been easy for the jurors to vent their anger and ignore their doubts, as do people like Grace. After all, these are citizens like those who watched on TV — citizens with the same feelings of anger and disgust over the murder of a child like Caylee. However, they take an oath to do justice. Grace may accuse them of tapping their feet to the Devil’s dance, but they were not there for the entertainment.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.

July 8, 2011

76 thoughts on “Casey Anthony Case: Hate the Facts, Not the Jury

  1. As I stated early on…when asked my feelings on this case…alls I could say was I did not have a feel that they had enough to prove guilt…and that she’d probably walk based upon what I have read…

    I was worried that she had an attorney that was so inexperienced….and that she’s be found guilty of something. And that he had built up a pretty good record for appeal in the event of a conviction…..

    So, as I close…I remember I read something some place, maybe here and still believe it to be true today… it goes something like this…words have killed more men than swords… I suppose it goes without saying…we will never know, how or why that child died that day. We may suspect who did it….but we will never know…for sure…

  2. JT:

    Out of the blue, my brother-in-law mentioned that he had read your piece in the USA Today and wondered if you had a blog. I told him about this site, but I wish USA Today would let you link the site address in your column. I noticed the GW site is linked up. Is linking here something you’d rather not do?

  3. mespo,

    People that read the USA Today are probably better educated than the rest of the population….but can you imagine a link like that would do to the explosion of poster….you know occasionally we get a nut job or two here…ok, I am included in the description…but how many nuts would it take before the tree falls….

  4. The anger over the acquittal of Casey Anthony in the death of her 2-year-old daughter Caylee has left many angry and confused.”

    I am glad that Professor Turley is spreading some light about the jury system.

    I have some ideas about why the OJ and Anthony cases have been pumped out by the media, but those ideas are not for the general public’s consumption.

  5. I did not watch one minute of this trial or the commentary on it. The only things I’ve read about it were on this blog. The accused will be under the microscope for the rest of her life. and how she chooses to live the time left to her will answer whatever questions anyone now has.

  6. I strongly agree. The jury did their job. The prosecutors choose not to spend time educating the jury on direct vs. circumstantial evidence they would present. They choose do to indict on a Tampering With Physical Evidence felony count; choose not to indict under a conspiracy or complicity with others count; choose to push the death penalty count and not give more time to the lesser homicide counts that were available, etc. I don’t so much agree with the statement that the defense won, as much as the prosecutor lost, the case. The jury reached the right verdict when based on the fact that evidence was not produced to them to prove the government’s case BEYOND A REASONABLE DOUBT by a vote of 12/12. They were not asked to return a verdict of INNONCENT OR GUILT; they were not given an alternative of NOT PROVEN; they were charged with only 2 choices; GUILTY OR NOT GUILTY BY EVIDENCE TO YOUR SATISFACTION BEYOND A RESONABLE DOUBT. The jury sysytem worked!

  7. Not much I can add that would not make this sound like even more of an echo chamber. I agree with everyone. Jury did its job; prosecutor did not. I think it was BiL that said the other day the acquittal was not due to the brilliance of Jose Baez but to the failures of the prosecution.

    As I said then, the scary part is that Jose Baez is now the “go to” guy if you are charged with murder in Florida. I am sure he is a good man who is passionate about what he does, but he had a lot of unwitting help from the prosecutor. That will not happen in all his cases.

  8. @ Jonathan Turley: “However, [the jury] take an oath to do justice.”

    Yes, they do, which is why I respectfully disagree with you, Prof. Turley.

    For me, I do not think justice was served in this case because the jury did not do its sworn duty! They did not “deliberate”! The 5 hours they spent Monday afternoon included “housekeeping” decisions about electing a foreperson, having lunch & breaks, etc. The fact that they came to court Tuesday morning all dressed up and ready to travel stated loudly that the jurors were going home, they had made up their minds.

    A not guilty verdict after real, conscientious deliberation — fine. But it seems obvious to me that the jurors had to have already decided not guilty the minute they walked into the jury room and were interested only in getting home and getting on with their own lives. In fact, just yesterday,
    Juror #3 stated quite boldly in several of the interviews she has given that the jurors were angry that they had been kept in sequestration for so long, “under guard for 24 hours.”

  9. @ Jonathan Turley: “There was no clear evidence of how the child died. There were no witnesses to the act.”

    Again, I respectfully disagree. To repeat myself:
    The baby had three pieces of duct tape wrapped around her mouth & head; she was wrapped in her Winnie-the-Pooh blanket, put into 2 trash bags & a laundry bag, & thrown into the swamp for 6 months, including a few months under water. Because the remains were so well-hidden, by the time they were found they were completely skeletonized. It was the hair matt still attached to the duct tape and bone scrapings for DNA that allowed the coroner to identify the remains.

    So, no, there was no evidence that a murder took place. It is possible that the 2 year-old either committed suicide or suffered an accident after she wandered into the woods by herself one day.

  10. @ Jonathan Turley: “There was no clear evidence of a motive.”

    Again, I respectfully disagree. Her motive was plain for all to see: “Bella Vita” — which she lived for 31 days.

    One of her main goals at the time was to be with her boyfriend, Tony, unencumbered by the responsibilities of “motherhood”. She was all about the boy and Caylee was always “in the way”. Tony made it clear he didn’t want Caylee or any child around. (Remember Susan Smith & Diane Downs?) Where did Casey take Caylee the night she left Tony’s in the middle of the night? Whatever she did worked for her and I believe she would have continued to use this method to control Caylee and keep her out of the way so she could live the “Bella Vita”. It was evident that having a life with Tony was her main goal at that time; the jury heard it via that collect call to the Hopespring residence she placed from the jail. Her only concern was getting Tony’s phone number.

  11. Zari,

    All of which were cases for the prosecution to make and they didn’t. A jury’s job in court is concise. The job of a jury is to impartially listen to the cases and see the evidence as both the prosecution and the defense presents it, not to make a case themselves based on a desired outcome or by “filling in the blanks” left by either side of the bar. That is what justice requires of them. In a criminal prosecution, the burden of proof rests with the state. There are various standards of proof that vary according to the nature of a crime. The appropriate standard of proof in murder cases is “beyond a reasonable doubt”. If the prosecution fails to meet their burden of proof (as they did in this case) it is not the job of the jury to do it for them. That would be procedurally unjust. Was justice had for the victim in this case? No, probably not, but due process isn’t about justice for the victim. Justice for the victim is a secondary consideration; a byproduct of procedural due process. Due process is about a fair trial for the accused. A fair trail requires an impartial trier of fact (a disinterested in judge) and a verdict based on the arguments and evidence as heard by a jury of her peers and their decisions thereon.

    Did the jury perform their task as defined by procedural due process requirements? Yes, they did. They heard both sides, saw the evidence as presented within that framework of argument and made a decision based upon the facts of the case as presented to reach a verdict in accordance with the law as explained to them by the judge. Did the judge perform his duty – to moderate the arguments, adjudicate admissibility of evidence and inform the jury of their legal options in deciding verdict? Yes, he did.

    Just so as it is not the jury’s job to do the prosecutions job, it is also not the jury’s job to create reasonable doubt if the defense fails to do so (as they did in this case). Her defense attorney was terrible from a technical standpoint and is in fact probably going to face a disciplinary hearing for his actions in court. The judge in fact told him as much. He didn’t win the case.

    The prosecution lost the case. They failed to present the facts of the case to the jury in such a way as to establish motive and that it was murder beyond a reasonable doubt. It’s not that the facts and forensics do not indicate this. Many people think they do. It really is that the prosecution in the instant case did not frame their argument and evidence in such a way as to convince the jury of motive and murder beyond a reasonable doubt. The jury may in fact as people think she killed that little girl. But if they don’t think the prosecution left no reasonable doubt in their presentation they had a duty to justice not to convict, irregardless of their personal feelings. Had the prosecution presented a persuasive case meeting their burden of proof, I have no doubt the jury would have convicted Anthony, but it was most certainly not their job to do the prosecution’s job for them. I also think this is why many of the jurors were upset (aside from the inconveniences of jury duty); they felt she was guilty, but they knew the could not convict on the evidence as presented.

    A Supreme Court Justice by the name of Learned Hand once compared the justice system to a “pale shadow of justice”. What he meant by that is that the justice system is imperfect. Justice for all involved is not always had. It is a system of frameworks designed to catch and prevent as many injustices as it can, but it cannot catch all of them. Technical errors. Failed arguments. Insufficient evidence. All kinds of things can and do go wrong due simply to the complexity of the system itself. That it is an imperfect system is secondary to the consideration that when it works, it works well to both prevent injustice and promote justice. In this case, the injustice of an unfair trial against the accused (where the prosecution did not meet their burden of proof) was avoided. In doing so, an injustice was had in that society does not get to punish someone for killing a defenseless little girl – a most heinous crime. As justice goes, it is a mixed verdict. As justice goes, it is imperfect. As the justice system goes though, it is proof that it works . . . albeit imperfectly.

  12. I agree with Turley. Do not blame the jury. I do not think it was a matter of folks simply wanting to go home. Remember, the jury for the OJ case returned a verdict of not guilty after four hours. It was clear that in both cases the prosecution had not done its job. Perhaps juror #3 felt that the trial was a waste of time. I believe they wanted to do right by this child, but the State put on a shoddy case, like Marsha Clark did during the OJ trial. The jury did right in both cases.

    How sad it is that little Caylee will never rest in peace because the judicial system failed her. There are no winners here. Whether she killed her or not, Casey will have to live with the fact that her daughter is dead and that she contributed to her daughter not receiving justice.

    On another note, Mike asked the question in his blog should we care about this case? Of course we should. But the question is why do we care so much? There are thousands of Caylees out there and not just white Caylees. Cases involving girls of color never get this type of attention. Or cases involving boys (an exception maybe the Susan Smith tragedy). If anything, I think a race/gender analysis is in order here. Why is it that we continually fixate on the helpless white female? If anything, this case shows that this poor child was exploited in both life and death. She was cannibalized by an insatiable media feeding frenzy which used her to boost its ratings. Shame on Nancy Grace and everyone else who profited from her death in the guise of championing victim’s rights. The media circus can only be described as a perversion of the lowest order. It is shameful and beyond sick.

    RIP baby girl. Maybe someday we will find out who did this to you.

  13. “There was no clear evidence of a motive.”


    That is true as far as it goes, but motive is not an element of any crime. The prosecution need not prove “why” a defendant committed a criminal act. It need only prove the elements of the crime and the criminal agency of the defendant. Our steady diet of cop and lawyer shows seems to imply (or maybe we just infer) that motive must be shown. For example, anyone know “why” the gunmen at Columbine High School decided to massacre their fellow students? Given the vagaries of human conduct (as we discussed quite exuberantly in a recent post) we can never fully and completely say “why” an actor decided to act criminally. Thus it would be an impossible burden to meet. We have plenty of theories but unless we are explicitly told via admission and we have corroboration, the motive is merely conjecture in many cases.

    Juries though seem to want to know “why.” If they can’t fathom the reason they tend to discount any case and especially a circumstantial case. Prosecutors always want to pander to juries and they strive to answer a question that sometimes is burdened with the simple answer that “we just don’t know.”

  14. Thanks to the resident ‘regular’ attorneys for their comments and to the seasoned criminal defense attorney, Frank Mascagni, III. Such welcomed professional legal participation is what transforms a mere blog into this fine ‘blawg’.

    Professor Turley, your legal perspective regarding this case is critical to help nonlawyers understand how this particular verdict was possible. I certainly think the jury rendered the only just verdict they could within the legal guidelines and considering the evidence presented.

  15. AY:

    “but can you imagine a link like that would do to the explosion of poster….you know occasionally we get a nut job or two here…ok, I am included in the description…but how many nuts would it take before the tree falls….”


    We’d get lots more squirrels, too.

  16. Of course she is…she is legendary in her own mind…didn’t Stern go off of Radio because he kept getting censored….hmmmmm…..

  17. mespo,

    I see in retrospect that I misspoke. Thanks for your correction. 1st Degree Murder does indeed not include the motive element. I thought Anthony was charged with Capital Murder, which in most jurisdictions can have a motive element regarding seeking a capital sentence, but the prosecution was going for 1st Degree.

    In Florida, the special circumstances are defined by TITLE XLVII CRIMINAL PROCEDURE AND CORRECTIONS, Chapter 921 SENTENCE
    921.141 Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence. Section (5) reads [ed. comments in bold]:

    (5) AGGRAVATING CIRCUMSTANCES.–Aggravating circumstances shall be limited to the following:

    1(a) The capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed on community control or on felony probation.

    (b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.

    (c) The defendant knowingly created a great risk of death to many persons. [goes to motive]

    (d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any: robbery; sexual battery; aggravated child abuse; abuse of an elderly person or disabled adult resulting in great bodily harm, permanent disability, or permanent disfigurement; arson; burglary; kidnapping; aircraft piracy; or unlawful throwing, placing, or discharging of a destructive device or bomb.

    (e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. [goes to motive]

    (f) The capital felony was committed for pecuniary gain. [goes to motive]

    (g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws. [goes to motive]

    (h) The capital felony was especially heinous, atrocious, or cruel.

    (i) The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. [could go to motive]

    (j) The victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties. [could go to motive]

    (k) The victim of the capital felony was an elected or appointed public official engaged in the performance of his or her official duties if the motive for the capital felony was related, in whole or in part, to the victim’s official capacity. [goes to motive]

    (l) The victim of the capital felony was a person less than 12 years of age.

    (m) The victim of the capital felony was particularly vulnerable due to advanced age or disability, or because the defendant stood in a position of familial or custodial authority over the victim.

    (n) The capital felony was committed by a criminal gang member, as defined in s. 874.03.

    (o) The capital felony was committed by a person designated as a sexual predator pursuant to s. 775.21 or a person previously designated as a sexual predator who had the sexual predator designation removed.


    I should have known all the smart “Regular” posters here would keep me honest.:)

    My remaining question I’ll direct to Mike Appleton as I know he’s a Florida attorney. Doesn’t the prosecution have to declare whether or not they are seeking the greater capital charge at the initial filing? Or can they hold off until the sentencing hearing?

  18. I think an important question to ask is what kind of justice should we be seeking in a criminal trial. I think what Prof. Turley is referring to is justice
    to the law. If the law is followed properly and both the defense and the prosecution do their jobs, truth should prevail. In this case, the jury felt
    the prosecution failed to meet its’ standard for resonable doubt and did
    what the law required them to do – they voted for aquittal. One can argue
    that the prosecution didn’t do its’ job or that they overcharged the
    defendant but the system worked as it should. We can see the awesome
    responsibility that the prosecution has concerning burden of proof and
    how the jury deals with a person’s innocence until proven guilty. The jury
    understood that they were held accountable to the law, they did their
    job and did it well.

  19. Gene H:

    No criticism intended. I undestood your point. I was clarifying that motive is a near impossible burden and typically not an element of any crime. There are exceptions like hate crimes, enhanced punishment crimes as you cite, and crimes involving corruption of minors but in the main motive is not a necessary element. Your points are well taken.

  20. Regarding motive as something to consider. One of the things I am most often consulted on is to tease out the difference between murder and manslaughter. The motive goes to mens rea, and can play a major role in whether it should be manslaughter or murder. I have helped the public defender get the sentence reduced by showing motive, or more correctly, lack of it.

  21. “So, no, there was no evidence that a murder took place. It is possible that the 2 year-old either committed suicide or suffered an accident after she wandered into the woods by herself one day.”

    So, Caylee wrapped her head with duct tape just before her natural death at the age of two? Casey Anthony said that Caylee died in the pool, so why wasn’t she charged [along with her father] with moving and disposing of a dead body??

    How can anyone here defend the jury after deliberting for 11 hours [not 5] and didnt request ONE piece of written testimony during deliberations??

  22. mespo,

    No criticism taken. It’s one thing I learned long ago, “More eyes reviewing data assures less error.” Thanks for the assist! Especially since I think it may have been Nancy Grace I heard harping about not proving motive on TV. I’ll let that be a lesson to me.

    Note to self: Don’t ever listen to Nancy Grace.

  23. Curt Sjostrand:

    On the first meeting of my criminal procedure class now some 30 years ago Professor Bacigal asked a simple question: “What is the purpose of criminal law?” it took a lot of us by surprise as we just accepted it as a societal necessity and most of us hadn’t really given it much thought. He explained that there are two schools of thought; The first regards the law as a means of getting to the truth about anti-social behavior and developing ways to discourage it by punishment and rehabilitation. The second dealt with the protection of the individual from the coercive powers of a governing power run amok. He went on to explain that this was a false dichotomy and both were valid purposes without being mutually exclusive. In practice though, you will tend to run into one camp or the other, he predicted.

    Throughout my practice I’ve re-run that little discussion through my head. Professor Bacigal was indeed correct that most arguments about the system spring from where you stand in the purpose debate. He was also right that the first school of thought has the most adherents both on my side and the other side of the bench.

  24. Every state should make a law stating that NOT doing everything humanly possible to find your child [calling 911, reporting to police, distributing photos and doing self-searches, etc….] is being an accessory to the murder of the child. I would support that 100%. Anyone on here disagree with that? If so, why?

  25. OS:

    That’s a good example of motive being used in enhanced or diminshed punishment crimes. While both are homicides and crimes (homicide does not imply criminality) the motive of the actor results in less punishment as we deem certain homicides less culpable if the actor is adequately provoked.

  26. Larry:

    “Every state should make a law stating that NOT doing everything humanly possible to find your child [calling 911, reporting to police, distributing photos and doing self-searches, etc….] is being an accessory to the murder of the child. ”


    Basically, I would appose it because I envision a case where a child simply wanders off in the National Park and, when not immediately found, the distraught parents are hustled off to jail for not putting up enough “Have You Seen?” posters .. or being blind and mute … or just too upset to do anything. I think you need a redraft..

  27. While the murder charge may have been a stretch, I fail to see why she was found not guilty of aggravated child abuse. The child was last seen in the custody of the mother who had sole custody and legal obligation to keep her safe. So we have a child in good health one day, and then a bag of bones on another with no explanation of how that came to be. In short, res ipsa loquitur. Please explain how she got off on that one.

  28. Capt. Erb: The prosecutor failed to connect the dots. Keep in mind the jury only saw a portion of what was discussed on TV and in print media. They lived in a kind of hermetically sealed chamber so they only saw what was presented as evidence in court. As was said previously, this acquittal was not due so much to the brilliance of the defense as to the failures of the prosecution. The prosecutor presented a case so sloppy that the outcome was a foregone conclusion. While one could argue that child abuse took place, it was never proved who did it. They could probably have made a case for abuse of a corpse, but the prosecutor did not put that in as a charge.

  29. I didn’t follw the trial because I don’t follow sensationalized trials, learned my lesson with OJ, but the discussion here has been enlightening and entertaining. I always learn a lot on a thread like this one and this one makes me wish I had followed the case a bit more.

    I would have followed the following case if it had recieved more coverage, it’s possibly a bit of a head-shaker too but I’d like to know what went on at trial:

    “Houston jury rejects rape claim by former KBR employee

    In a closely-watched case, a Houston jury on Friday rejected the claim of a former employee of military contractor KBR that she had been drugged and raped by a group of co-workers in Iraq.

    Jamie Leigh Jones had filed suit against KBR, its former parent company Halliburton, and former co-worker Charles Bortz, whom she named as one of her rapists. All three denied the allegations and Bortz insisted the sex had been consensual. Authorities had previously investigated Jones’ claims but declined to file criminal charges.”

  30. I don’t like circumstantial evidence in general because it amounts to ‘story telling’ and to me has the same perils for the accused as the Salem witch trials. Circumstantial evidence nested inside and given context through a general hysteria is the worse case scenario and that’s how I viewed the Anthony trial.
    I refused to watch any of the trial proper because of the sensationalism but did watch the closing arguments in total. I saw lots of story telling and almost zero proof. If I had been on the jury I would have come to the final deliberations dressed to go home as well as it was obvious the state had failed to prove Anthony guilty of the murder charges brought.
    I was left with the question, “Did she do it?”…my honest answer, “I don’t know.”
    Therefore, I completely agree with the jury’s verdict and am heartened that in this case they did their duty and were able to dismiss the hysteria.

  31. When I was a law student at the University of Louisville Law School in the 1970’s, like mespo727272, one of my first courses was Criminal Law. I was exposed to the following discussion regarding the “mission” of a criminal jury trial:

    Blackstone’s formulation

    In criminal law, Blackstone’s formulation (also known as Blackstone’s ratio or the Blackstone ratio) is the principle: “better that ten guilty persons escape than that one innocent suffer”, expressed by the English jurist William Blackstone in his Commentaries on the Laws of England, published in the 1760s.

    1 Historical expressions of the principle
    2 Alternative viewpoints
    3 References
    4 External links

    Historical expressions of the principleThe principle is much older than Blackstone’s formulation, being closely tied to the presumption of innocence in criminal trials. An early example of the principle appears in the Bible (Genesis 18:23-32),[1][2] as:

    “ Abraham drew near, and said, “Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it?[3] … What if ten are found there?” He [The Lord] said, “I will not destroy it for the ten’s sake.”[4]

    The twelfth-century legal theorist Maimonides, expounding on this passage as well as Exodus 23:7 (“the innocent and righteous slay thou not”) argued that executing an accused criminal on anything less than absolute certainty would progressively lead to convictions merely “according to the judge’s caprice. Hence the Exalted One has shut this door” against the use of presumptive evidence, for “it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.”[1][5][6]

    Sir John Fortescue’s De Laudibus Legum Angliae (c. 1470) states that “one would much rather that twenty guilty persons should escape the punishment of death, than that one innocent person should be condemned and suffer capitally.” Similarly, on 3 October 1692, while decrying the Salem witch trials, Increase Mather adapted Fortescue’s statement and wrote, “It were better that Ten Suspected Witches should escape, than that the Innocent Person should be Condemned.”

    Other commentators have echoed the principle; Benjamin Franklin stated it as, “it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer”.[7]
    In my practice of criminal law over 34 years (first at a state prosecutor and now as a criminal law defense attorney in state and federal courts) I have seen a “guilty” client found not guilty and a “not guilty” client convicted by a jury. But I would conclude that most of the time, the jury gets it right. I have sometimes disagreed with their verdict, but I understood it.

    I am a true believerer in the criminal justice system. I submit some of the debate mixes the law vs. morality. I am frequently asked “How can you defend that guilty client?” My answer is simple. I am not in the moral business, every citizen is entitled to a FAIR TRIAL. I am a sculpter, an architect, a fact builder or fact destroyer. My client is never “guilty” in a court of law until it concludes by comptent, admissable evidence, to it’s tsatification, beyond a reasonable doubt

  32. Sorry, I was not able to finish and correct the typos:

    My client is never “guilty” in a court of law until a jury of 12 out of 12, concludes by competent, admissable evidence, to it’s satification, beyond a reasonable doubt, that my client is in fact Guilty of the crime charged. Whether he violated a spiritual priniciple or not, that decision is for another day, at another time, in another venue,when he is judged by his “God”/Higher Power.

    Respectully submitted, Frank

  33. I am reminded of an article I read many years ago by an experienced trial judge who was asked about his views from the bench. He commented that the lawyers should relax. He noted some of the best lawyering he’d ever seen was on the losing side, and some of the worst lawyering he’d witnessed won the case. Lawyers put to much pressure on themselves in a jury trial.

    He concluded LAWYERS DON’T WIN OR LOSE CASES, FACTS DO! Food for thought as the discussion continues about this case. Jurors make decisions on the FACTS!

  34. “The baby had three pieces of duct tape wrapped around her mouth & head; she was wrapped in her Winnie-the-Pooh blanket, put into 2 trash bags & a laundry bag, & thrown into the swamp for 6 months, including a few months under water. Because the remains were so well-hidden, by the time they were found they were completely skeletonized. It was the hair matt still attached to the duct tape and bone scrapings for DNA that allowed the coroner to identify the remains.”


    You may have watched this trial as much as I have, but it seems you did it with a jaundiced eye. A report of the body was made to 911 as early as June 2008, by the eventual discover Mr. Kronk. Incredibly that call, a second call and a third call were never followed up by the police and the
    “searchers.” Give the body lying within a quarter mile of the Anthony home and the purportedly massive searches for Caylee, why wasn’t that entire close area searched more thoroughly, then perhaps much decomposition hadn’t taken place.

    Mr. Kronk’s story on the stand contained inconsistencies and yet he admitted to upending the bag an a skull having fallen out. His own son testified that Kronk had told him about his discovering Casey’s body a month before Kronk’s “final” discovery.

    The duct tape itself had no evidence of Caylee’s DNA, even though it was supposedly taped to her mouth and nose, Duct tape is an excellent medium for holding DNA and there should have been remains of it found there if that was indeed the murder weapon. Is it possible that the duct tape may have killed Caylee, of course. however, it is far from the damaging evidence you take it to be, unless your instincts tell you if the prosecution believes it, it must be true, despite any contravening evidence.

  35. mespo727272: You know, I’ve heard too many lawyers (young and old) get filled with themselves that their closing argument won the case, or some other beliefs they held about their performance in trial. All real criminal defense lawyers that really try criminal cases to a jury, all have a healthy ego and confidence of self. (Some might view it as arrogrance.) I think it is a trait that we all have. We don’t mind the spotlight and we all like a good fight, a challenge, etc. I enjoy it still as I approach 62. Enjoyed your posts as always.

  36. While motive may not be needed as an element of proof, it certainly must play a part in circumstantial evidence cases. If a man disappears from the face of the earth and his wife has no idea why, often what is needed to charge and convict is evidence going to motive. The family was in debt, he had a large insurance policy, the wife was having a torrid affair with a felon with a violent history and they lived near an extremely rural area of many square miles and little human visitation. One might see an indictment, trial and successful prosecution of the wife.

    The motive in this case was that Casey wanted to be free of her parental obligation so she could party. That might have some play to it, but is balanced by her having built-in babysitters, supporting herself and her child. Beyond that there was absolutely no evidence submitted to the fact that Casey was other than a loving and at times doting mother.

    Her behavior prior to the disappearance of her daughter was in fact highly
    normal for an unmarried mother of her age and disposition/situation. Also too I could present a plethora of scenarios that cold fit this child’s death, some not even involving Casey.

    In the end viewers were led to believe that they were watching a superb prosecution abetted by the pronouncements of legal experts and pundits basking in the glow of media celebrity. In fact the prosecution was over confident that their hypotheses based on what evidence they could supply would prevail. They blew their case through that over confidence and because of the political expediency of impressing the bloodthirsty Florida public with a ridiculous (under the proof available) Capital charge.

    As to the jury taking only eleven hours to deliberate, I’m sure if they would have come out in four hours with a conviction, those criticism the small deliberation time, would have had no problems. In this case the jury system worked as it should and the twelve jurors should be proud of their adherence to the Law.

  37. The fact is that guilt only has to be proven to a reasonable doubt, NOT all doubt. Given the fact that Casey was the last person to have custody of Caylee, and that Casey’s mother was the person who reported the child missing, and that the child turned up dead, it is more than reasonable to find that Casey was guilty of child abuse. If we insist on eyewitnesses or positive proof of child abuse, then the alien defense will become the norm is such cases. It also does the incredible and holds parents free of any responsibility for their children.

    So it can never be proven in any court, that taking a child into the Everglades and abandoning them there is child abuse. There will be no body, or very decomposed one, and no witnesses. Then the parents can use the alien defense that an illegal/legal aliens did it, or even better that a space alien abducted the child and threatened the poor parent if they reported the child missing. Since many folks believe in alien abduction, this would be an ironclad defense. I will leave it to others to decide for themselves what is reasonable and common sense. This jury had little of either.

  38. Mespo, Frank and all other lawyers here, but for the lack of a Type A personality I might have joined your ranks. Unfortunately, during my time in Law School partying outranked study, as I learned to my sorrow that you really did have to study your cases every night because night before cramming didn’t cut it.😀

  39. Mike Spindell: The world is a better place based on your contributions to it. As stated by a non-lawyer, Alfred Delp:


    I have a strong feeling that your life has had meaning. Thanks for your posts and observations. Frank

  40. This may or not apply to this case, but I think that very often the Defense will succeed by asking so many questions and raising so many “what ifs” that the jury begins to think that there is reasonable doubt when there is really only possible doubt. It may be impossible to specify precise criteria for determining where one leaves off and the other begins.

    Juries hate shades of gray. Sometimes this works to the advantage of the Prosecution. If evidence is presented to a jury framed as “proof” of guilt, jurors can breathe a sigh of relief that the case has been decided by the evidence and no longer has to be decided by them.

    But it can also work to the advantage of the Defense. Describing evidence as “circumstantial” or suggesting that it is somehow always unreasonable to infer motives from behavior on the grounds that knowledge of motives must always involve impossible feats of mind-reading obfuscates the meaning of what should constitute “reasonable doubt.”

    We already know that what a jury will find to be a believable or unbelievable story frequently depends on (often frighteningly) non-rational factors that are objectively irrelevant to the question of evidential support, and which generally remain unknown to the jurors, themselves. Yet these factors are most often omitted from post-trial analyses seeking to explain a verdict. No one really likes to consider the possibility that perhaps the best explanation for a verdict lies (far) outside the characters of the people involved (the jurors were stupid, the jurors were impatient, the prosecution behaved arrogantly, the defense identified genuine problems with the evidence, etc.)

  41. .ORLANDO, Fla (Reuters) – Casey Anthony, the Florida woman acquitted this week of killing her 2-year-old daughter Caylee in 2008, has rejected a visit from her mother scheduled for Friday evening, a jail official told Reuters.

    Cindy Anthony, a familiar fixture throughout Casey’s trial, scheduled a visit at the jail with Casey for 7 p.m. on Friday.

    “This morning under policy, Casey was told of the visit and she has declined the visit so it will not occur,” said jail spokesman Allen Moore.

    Moore said Cindy would be notified of her daughter’s decision.

    Mark Lippman, the lawyer for Casey’s parents, told Reuters during the trial that Casey had cut off communication with Cindy and George Anthony.

    Casey Anthony is scheduled to be released from jail on July 17, just over three years after she first told anyone that Caylee had been missing for a month.

    Casey, 25, was convicted of lying to detectives and sentenced on Thursday to the maximum four years in jail for sending investigators on a wild goose chase after claiming a nanny had kidnapped her daughter.

    But due to credit for the time she served awaiting trial and good behavior while in jail, Casey will be let out in little more than a week.

    Her imminent release raises questions about where she will live.

    During the trial, defense lawyers accused George Anthony of sexually abusing Casey and helping to cover up Caylee’s death. But no evidence of sexual abuse was presented, and George denied the allegations under oath.

    After the verdict, George and Cindy Anthony described Casey’s defense strategy as “baseless” but said the jury made a fair decision.

    Moore said the jail has no need to know where Casey will live, and she was not sentenced to probation so she will not have to provide an address to the probation office.

    Casey will be only the second inmate in the past 15 years to not walk out the front door of the jail lobby after being released from custody, Moore said. The jail has planned a secret exit for her protection.

    The only other inmate who got such special handling was Noelle Bush, daughter of then-Governor Jeb Bush and niece of then-President George W. Bush. Moore said the Secret Service was concerned Noelle, who was arrested on drug-related charges, could be targeted by terrorists.

    “Lisa Nowak, she walked out the front entrance,” Moore said, referring to the former NASA astronaut who drove from Houston to Orlando to attack a romantic rival.

    “And we’ve had local politicians, police chiefs and all sorts of people, and they’re all required to walk out the front entrance,” Moore said.

    (Editing by Colleen Jenkins and Greg McCune)

  42. It seems only prudent for her to refuse the visit. Her conversations are still being taped, after all. And the state is still considering a suit to recover the costs of the search, so anything she says on tape that touches on that would become evidence in the civil trial.

    I am sort of bemused by the idea that the verdict is dispositive of nothing more or less than the quality of the lawyering on either side.

  43. @ Arthur Randolph Erb: “While the murder charge may have been a stretch, I fail to see why she was found not guilty of aggravated child abuse. The child was last seen in the custody of the mother who had sole custody and legal obligation to keep her safe. So we have a child in good health one day, and then a bag of bones on another with no explanation of how that came to be. In short, res ipsa loquitur. Please explain how she got off on that one.”

    ITA with you, Arthur. In one of their several interviews, either Juror #3 or Juror #14 admitted that 6 of the jurors initially voted guilty for Manslaughter of a Child, based exactly on your reasoning. However, the juror didn’t really explain, only to say something like “it was just dropped”. One or several of the other jurors had to have overridden those 6. In addition, #3 or #14 admitted that they did not want to bring in any guilty verdict because that meant they would have to stay to continue for the Penalty phase. Wasn’t this expressly against CJPerry’s instructions that the jury was not to consider sentencing of any kind in reaching its verdict?

  44. @ Mike Spindell: “The duct tape itself had no evidence of Caylee’s DNA, even though it was supposedly taped to her mouth and nose, Duct tape is an excellent medium for holding DNA and there should have been remains of it found there if that was indeed the murder weapon.”

    You’re right, of course. However, because the remains and the tape were underwater for a few months, all the glue properties had dissolved and the cotton fibers from the tape weave had disintegrated.

  45. @ frankmascagniiii: Of course, you are right. I’m guessing that I’m older than you, which is why I don’t remember as much of my first class in Criminal Law as you do! Although I disagree with the verdict, I accept it, because I agree with John Adams:

    “It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, “whether I do good or whether I do evil is immaterial, for innocence itself is no protection,” and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

  46. @ Jude: “Having tape over one’s mouth doesn’t mean they were killed that way.”

    You’re right, of course. Dr. Jan Garavaglia: “No child should ever have duct tape anywhere on its face or head.”

  47. “The anger over the acquittal of Casey Anthony in the death of her 2-year-old daughter Caylee has left many angry and confused.”

    The anger has left many angry.

    I don’t think that sentence is how you meant it. I suspect you meant to say;

    “The acquittal of Casey Anthony in the death of her 2-year-old daughter Caylee has left many angry and confused. “

  48. The Casey Anthony distraction was happily brought to you by CNN; only one of the many corporate media masters who like to distract you from the important things that they would like you to not find out about.
    If only people would get this worked up by the state of our union and what these same corporate masters are doing to keep the lower class lower and the rich richer.

  49. “You’re right, of course. However, because the remains and the tape were underwater for a few months, all the glue properties had dissolved and the cotton fibers from the tape weave had disintegrated.”


    In any event there was no proof the duct tape was placed in such a way to murder the child. Kronks testimony was quite suspicious especially about the skull rolling out of the bag. Reasonable doubt as to cause of death.

  50. The jury is demanding $$$$ to speak!

    Why should “us” citizens not be angry that not only is the media and court getting PAID off caylee’s death, now the JURY members?

    CIVIL duty is not accepting monetary value for doing the RIGHT THiNG!

  51. Also 11 hours of deliberation???

    Did they even read the instruction manual?

    No, they were ready to go and make their millions off their interviews!

    This is really sad and I hope you feel like a moron for writing this article after seeing the jury members being soooo greedy!

  52. Beth,

    Come on now, fess up. If they would have taken 11 hours to find her guilty you would have felt they did a great job. They were there hearing the evidence. You were home listening to HLN and its’ guest commentators. Had the jury found her guilty you would have no problem with them profiting from it.

  53. Suspects are convicted all the time without a body much less a method of death. (any body remember Scott Peterson – or maybe you all think he was innocent too) The medical examiner declared it was a homocide NOT accidental based on the EVIDENCE. You people jumping on and attacking the lawyers and news commentators who got it wrong are just out for your 5 minutes of fame using 20/20 hindsite. The prosecutor did a great job – just remember this is the state that didn’t know how to use the voting system. Casey is a disgusting person and mother. A few smiling shots of her playing with her daughter does NOT a good mother make. What a joke. Pity the poor people that come in contact with her in the future not knowing what she is capable of.

  54. Motive is NOT required to prove murder, first degree or otherwise. Why do so many idiots keep stating otherwise? Including the JURY. Unreal.

  55. Just like the OJ trial, she got off with mountains of incriminating evidence against her.

    Just like the OJ trial, incompetent lawyers represented the prosecution.

    Just like the OJ trial, the accused claims “I did not do it”, yet now that she is free is not doing a damned thing to find the “real” killer….neither are the police. [Albeit it’s been 3 years since the murder, I didn’t think cops/investigators STOP searching for suspects of crimes unless it has been deemed a cold case].

    Just like the OJ trial, jurors are disgusted of their decision almost immediately after giving it.

    Just like the OJ trial, there was absolutely NO motive for ANYONE else to kill this child BUT the accused.

    We can only hope that Casey Anthony will receive justice one day [like OJ did] by serving time for holding up a 7-Eleven or stealing a purse from an old lady [ya know, something FAR WORSE than killing a child].

    Will there be a civil trial? Wrongful death suit filed by the father of the child?

  56. The not guilty verdict is great news because nobody deserves the death penalty delivered by a mob of blood-crazed Americans…not even Casey Anthony.

  57. Not Guilty???? Mother does not report child missing for 31 days??
    Mother lies where child is for 31 days?? Child is tripled bagged and found with duct tape and thrown in woods?? Mothers car smell like death which she abandons. She tells boyfriend child is with Zanny while she lives with him during these 31 days.. Mother makes accident look like murder? Yes if you had one of these things happen I can see a reason to doubt..But when you put them all together their is NO DOUBT..Jury screwed up…Oh Yeah..Motive…Caylee was starting to talk and she was about to tell everyone that Casey had no job and their was no Nanny..This would have blew Caseys world out of the water..By the way I like many through DVR watched and seen EVERYTHING the jury seen.. Its not the talking heads its the evidence..

  58. I suppose sometime the Jurors actually do get it right……

    Software Designer Reports Error in Anthony Trial

    MIAMI — Assertions by the prosecution that Casey Anthony conducted extensive computer searches on the word “chloroform” were based on inaccurate data, a software designer who testified at the trial said Monday.

    The designer, John Bradley, said Ms. Anthony had visited what the prosecution said was a crucial Web site only once, not 84 times, as prosecutors had asserted. He came to that conclusion after redesigning his software, and immediately alerted prosecutors and the police about the mistake, he said.

    The finding of 84 visits was used repeatedly during the trial to suggest that Ms. Anthony had planned to murder her 2-year-old daughter, Caylee, who was found dead in 2008. Ms. Anthony, who could have faced the death penalty, was acquitted of the killing on July 5.

    According to Mr. Bradley, chief software developer of CacheBack, used by the police to verify the computer searches, the term “chloroform” was searched once through Google. The Google search then led to a Web site,, that was visited only once, Mr. Bradley added. The Web site offered information on the use of chloroform in the 1800s.

    The Orange County Sheriff’s Office had used the software to validate its finding that Ms. Anthony had searched for information about chloroform 84 times, a conclusion that Mr. Bradley says turned out to be wrong. Mr. Bradley said he immediately alerted a prosecutor, Linda Drane Burdick, and Sgt. Kevin Stenger of the Sheriff’s Office in late June through e-mail and by telephone to tell them of his new findings. Mr. Bradley said he conducted a second analysis after discovering discrepancies that were never brought to his attention by prosecutors or the police.

  59. I suppose sometime the Jurors actually do get it right……

    And the Prosecutor did not share the evidence with the Defense…it will come to light…..

    Assistant State Attorney Jeff Ashton retiring
    July 05, 2011|By Bianca Prieto and Anthony Colarossi, Orlando Sentinel
    Just hours after the verdict was read in the biggest case of his career, veteran Assistant State Attorney Jeff Ashton announced he will retire at the end of the week.

    Ashton’s last day at the Orange-Osceola State Attorney’s Office, where he has worked for 30 years, will be Friday, a spokeswoman for State Attorney Lawson Lamar said this afternoon.

    Expert: I Warned Prosecutors Casey Anthony Didn’t Do 84 ‘Chloroform’ Word Searches

    Casey Anthony didn’t do 84 searches for the word “chloroform” and prosecutors didn’t correct the error, a computer expert says.

    John Bradley, who designed the CacheBack software used to support the 84-search assertion, now says Anthony visited the suspect website only once, the New York Times reports.The website,, gave information about the use of chloroform in the 1800s.

    Bradley redesigned CacheBack after he testified for the prosecution and learned police used a different software in 2008 that found Anthony had visited the website only once.

    Bradley says he notified prosecutor Linda Drane Burdick and sheriff’s police when he learned of the error, but jurors were never told about it. One of the defense lawyers, Cheney Mason, says they were never told either. “If in fact this is true, and the prosecution concealed this new information, it is more than shame on them. It is outrageous,” he told the Times.

    The State’s Attorney’s office did not return calls by the Times. A spokesperson for the Orange County Sheriff’s office told the newspaper, “We’re not going to relive the trial again.”

    I wonder what this really means….

  60. As far as the statement that the jury did not deliberate long enough, the Headline News comentators were all predicting the verdict was going to come the day that it came or the day prior. Most of them were prosecutors and belived the verdict would be guilty. When they predicted “the verdict wil be today or tomorrow and it will be guilty” nobody suggested that 10 hours would be too short for a deliberation for a guilty verdict. It is hypocritical for Nancy Grace to say that it is only if the person is found not guilty that the deliberations were tootooshort. If she was prosecuting a case and got a guilty verdict I am sure she would not criticize the jury afterwards if they only deliberated for an hour.

  61. “I suppose sometime the Jurors actually do get it right……”


    Thanks for that comment. What has been forgotten too in the screaming aftermath of the trial was that the defense had actually repudiated Bradley’s
    “84 times” with their own expert and Baez had referenced that refutation in his closing statement. The chloroform was a key element in making the prosecution’s case and in the absence of cause of death was inferred to
    be the key to the process of murder. There were many discrepancies such as this in the forensics evidence that were challenged by defense witnesses, but the screaming pundits commenting on the trial actually ignored them in their rush to urge a “lynch-mob” decision. This was my point in writing this, not Casey’s guilt or innocence, but the harm the reportage does our judicial system and the aftermath of trying to formulate laws named for Cayley, for blatant political gain. I bet you would love to try cases before a jury that performed so well.

  62. there were five crucial pieces of evidence that the Casey Anthony jurors were not permitted to see/hear; how is that a fair trial when you hide crucial evidence for them to decide rightfully???!

Comments are closed.