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
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.
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.”
http://www.rawstory.com/rs/2011/07/08/houston-jury-rejects-rape-claim-by-former-kbr-employee/
Maybe the opposites apply here,”hate the jury not the facts”
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.
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.
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. ”
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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..
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.
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?
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.
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.
“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??
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.
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.
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.
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.
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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?
Of course she is…she is legendary in her own mind…didn’t Stern go off of Radio because he kept getting censored….hmmmmm…..
Never watched the Nancy Grace show..is she somebody important?
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….”
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We’d get lots more squirrels, too.
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.
“There was no clear evidence of a motive.”
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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.”