Casey Anthony Acquitted - Should it Be a Surprise?

I have not followed the Casey Anthony murder trial, although I suspect you would have to live in a hermitage to have avoided picking up some of the details. I read a summary of the case on CNN today, and... wow. It's easy to see why somebody would be surprised by the acquittal. But should you be shocked? Outraged?

E.D. Kain provides a perspective on the case, comparing the acquittal to various wrongful conviction cases. Wrongful conviction cases are not usually given much media attention for a number of reasons, not the least of which is the fact that the defendants are rarely either photogenic or "nice people". Chalk it up to human nature - it's easy to rationalize away that type of failure of the system with some combination of, "It couldn't happen to me," and "A guy like that deserved some time in prison, anyway." It's a rare wrongful conviction case that forces people to directly confront the fact that, yes, it can happen to you and nobody deserves prison time for a crime they did not commit - and it seems that people would rather have those cases be over in a blink, "Justice was finally served, on to the next story," as opposed to dwelling on their uncomfortable implications.

I mentioned recently that the Anthony case reminds me of a similar missing child case from the Detroit area - never prosecuted. If a body were found the prosecutor would likely face similar issues to the Anthony case - a skeleton, no clear evidence of cause of death, not much to point to except the mother's history of lies. You and I don't have to give the defendant either a presumption of innocence or the benefit of the Fifth Amendment: we can hold their silence against them. It's not unreasonable for us, looking at the same evidence as the jury, to conclude "It's pretty much inescapable that she did it," but the jury has a harder job - finding guilt beyond a reasonable doubt.

One of the difficult calls for the prosecutor in a case like this is how to charge the defendant: You believe it's a first degree murder case, but do you go for the maximum charge and potentially complicate your case or do you go for a lesser charge and ensure that the defendant will get off with a lesser conviction and penalty than you believe she deserves. The Anthony case specifically reminds me of a trial an appellate defender once described to me, reversed on appeal, in which a man was convicted of "negligent homicide" in the disappearance and presumed death of his girlfriend. The only fact that could be established was that he was the last person who could be confirmed to have seen his girlfriend alive. The prosecutor's closing argument admitted that nobody knew what happened, but the prosecutor argued that based upon what was known of the defendant and of similar cases it could be inferred that the victim died cruelly, that she suffered enormously, etc. The jury obviously inferred that the defendant killed her, but with absolutely no evidence of how they came back with a verdict that made no sense, and was not supported by even the prosecutor's argument, hence the reversal.

This case, similarly, reminds me of the first Blogjevich trial and how, following the presentation of a relatively complicated case, the jury hung on most major charges. The retrial presented a simpler, more streamlined case and resulted in conviction. There won't be a retrial in the Anthony case, but it could be that had the prosecutor settled for treating the case as a culpable death resulting from child abuse they could have presented a more direct, less fanciful case and by honing in on how the evidence could not be explained away by accident they might have achieved a conviction. But by making the case about a mother who intentionally killed a child in order to get "freedom", instead of a perhaps more plausible case of a mother who was using inappropriate, abusive means to keep her child quiet (duct tape over the mouth, "where can I get some chloroform"), they allowed the defense too much latitude to explain away the incriminating details or to emphasize how they did not fit with the prosecution's express theory.

I very much question the defense strategy of either promising to present evidence to the jury that they were unsure they would in fact be offering, or outright lying to the jury in order to get certain arguments before the jurors that they knew would not come into evidence. Many lawyers take the position that you should never promise to prove something to the jury unless you know you can deliver. It's such a role of the dice that it's difficult for me to conceive of a lawyer intentionally following this strategy unless he knew the defendant to be guilty. (Why is it, I rhetorically wonder, that lawyers are so rarely picked for juries.) If Anthony's attorney believed his client to be innocent and yet deliberately promised to the jury that he would offer evidence he had no intention of introducing, victory or not, I wouldn't hire him to walk my dog.

One of the most absurd defenses of Anthony's actions after her daughter's disappearance (which Anthony would have known was in fact her child's death) is offered by Dr. Keith Ablow, resident armchair analyst for Fox News.

Some emotionally vulnerable people can experience mania—the “high” phase of bipolar disorder, essentially the opposite of depression—in the setting of unthinkable trauma or loss.

Even if you despise Casey Anthony, you have to admit that the death of her daughter (if she did not kill her) would qualify as such a trauma or loss. Symptoms of mania could then ensue, including: overspending, hypersexual behavior, sleeplessness and a sense of euphoria (which would be seen in photographs as seeming joy).

No, seriously, the explanation offered by the defense for Anthony's living the high life was that she had supposedly been sexually abused as a child. I expect that Anthony was examined by any number of forensic psychologists, and that the defense (and prosecution) would have been presenting their testimony at the death penalty phase had Anthony been convicted of capital murder. Had there been anything to the notion that she snapped into a manic phase, we would have heard about it. Ablow states, "I’m not saying that anything really happened this way, but it could have. Really." Maybe it could have with somebody else; just not with Anthony.

Anthony can now safely tell the world what happened - she can't be retried on the homicide or child abuse charges. It is my expectation that she won't, for the same reason that she chose not to testify in her own defense: her story won't hold up to even casual cross-examination.

I have spoken with a number of people who followed the trial closely and not one has said that she would have brought back a verdict for first degree murder. The typically thought process is, "I think she did something that accidentally killed the child...." And without the jury's obligation to presume innocence, it's more than fair to infer from that feeling and from the evidence that Anthony did kill her child. I believe the evidence was ample to support the prosecutor's case, such that even had the jury returned a verdict of first degree murder the evidence would have been found sufficient on appeal. But that's different from stating that the jury should have convicted. They're supposed to give the defendant the benefit of the ambiguities in the evidence, even if those ambiguities exist only because of the defendant's silence.

It's unfortunate that this case is more likely to be perceived as a failure of trial by jury rather than a success, as once you get past any perception of "sleazy lawyers" or "unsympathetic defendants" the fact is that our system is designed to err in favor of acquittal. The jury is to find proof beyond a reasonable doubt, something that's hard to quantify but is often expressed in terms of, "It's better that ten guilty men should escape than that one innocent man be condemned." I know that I would be frustrated if asked to serve as a juror in a case in which the only thing keeping me from knowing what happened was the defendant's tapestry of lies, compounded by her subsequent exercise of her right to remain silent. I can't mind-read the jury, but I expect that if they were to give statements they would acknowledge that frustration, but attest that it was their job to put aside those feelings and focus on the evidence admitted at trial.

Update: Jeralyn Meritt at TalkLeft does a nice job explaining the wide range of meanings that can be derived from a "not guilty" verdict.

Criminal trials should not be equated with a search for the truth. They are merely a process for the testing of evidence: Can the state prove the charges against a defendant by proof beyond a reasonable doubt?