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. “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.

  2. 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.

  3. “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. “

  4. @ 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.”

  5. @ 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.”

  6. @ 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.

  7. @ 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?

  8. 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.

  9. .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)

  10. 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.)

  11. 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

  12. 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. 😀

  13. 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.

  14. 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.

  15. 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.

  16. “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.

  17. Frank! How dare you tell a Type A personality that we don’t have complete control of every situation and every personality in the room. 😀

  18. 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!

  19. 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

  20. 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

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