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.
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.
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