When Prosecutions Go Wrong

It's one of those news stories you don't really expect to hear: That three men, convicted of the gruesome murder of three children during the satanic panic of the late 1980's and early 1990's, have been freed - the so-called "West Memphis Three".  Serious doubts were raised about the case before the defendants were convicted, but it appeared that they were destined to spend their lives behind bars.

The case stands in many ways as an exercise in contrasts with Casey Anthony - instead of a reasonably attractive woman, the defendants were three teenage boys at the margins of society, easily cast by the prosecutor as having killed the children as part of a fantasized satanic ritual. One defendant, whose IQ is reported to be 72, confessed and retracted, pretty much sealing his fate. The others, implicated in the confession, were apparently convicted in no small part due to the misconduct of the jury foreman. But the evidence, including the confession, was thin - what you really had were three scary teens crossed with a popular culture that was remarkably receptive to theories of hideous crimes being committed against children by the many satanists they imagined were living among us. The prosecutor is puffing his chest and pretending that the deal that freed the three defendants is somehow made necessary by the passage of time. I'm not going to repeat the facts of the crime, but I don't believe that for a moment. If the prosecutor believed he had a strong chance of again convicting the three he would be refusing deals and insisting upon a new trial.

The problem for the prosecution is not that evidence has been lost - it's that evidence has been found. Specifically, DNA evidence implicating the stepfather of one of the boys, who just happens to be the last person to see the boys alive. If the prosecutor announced that he believed the three were innocent, he would have to explain why he was not prosecuting the most likely suspect (at this point, more likely than the three his deal just released), the answer being "Because the trial and the decades of defense of a terrible investigation and problematic prosecution have created an environment in which a conviction of anybody else would be all-but-impossible". And let's not forget, the deal the prosecutor cut pretty much eliminates the possibility of a civil lawsuit.

The case reminds me of the prosecution of Randall Adams, publicized in The Thin Blue Line. The prosecution in that case, after slipshod investigation, pursued an innocent adult with no criminal record and overlooked overwhelming evidence that the then-juvenile who committed the crime was the perpetrator. Cynics have suggested that the choice to prosecute Adams was motivated in part by the fact that, in a killing of police officers, the prosecutor wanted to secure a death sentence. I think it's simpler than that: Having focused on a particular narrative, the police and prosecutor turned a blind eye toward anything that interfered with their narrative. Was there evidence that should have caused them to reconsider? Yes - and a lot of it. But they weren't interested.

In the "West Memphis Three" case, having quickly secured a confession from one of what we might call "the usual suspects" - kids who didn't look quite right and certainly didn't behave within the expected norms of the community - there was no need to look at the rest of the evidence. Three kids disappear somewhere, the last person to see them alive is a stepparent of questionable character? That's the sort of scenario that should have the police taking a long and hard look at stepdad. But no, they were already fixated on the "evil teenage satanists".

Once you fall under the shadow of suspicion it's difficult to find your way out. In relation to the Casey Anthony case, some argued that the prosecution hadn't shown where or how a crime occurred so she shouldn't be convicted. My response remains, the evidence was legally sufficient for a conviction and for upholding the conviction on appeal. Yes, it was circumstantial, but there was sufficient evidence to support an inference by the jury of first degree murder. Casey Anthony didn't have any satanists to point at when she suggested that she had no idea how her child ended up in a shallow swampy grave, so she was the obvious suspect. What's amazing is how little of a hand wave it can sometimes take to distract your audience from what's actually happening.

Is Cheney Mason for Real?

Although I recognize that some will assert that you can't argue with success, I commented on the defense in the Casey Anthony trial,

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.

A member of the defense team argues that she did in fact believe Anthony to be innocent, although he does not offer to clarify which of Anthony's many stories he believes.

Appearing on NBC’s “Today” show on Monday, the attorney told Savannah Guthrie, “I do believe her story. I believed it from the first time I met her which was several weeks before I was formally on the team.

He denies that the opening statement contained promises that the defense had no intention of fulfilling - their client surprised them by not testifying.

And in other unexpected turns, Casey had also decided at the last minute to not testify during the trial. Mason said that it wasn’t because she was afraid to take the stand, however. She had just chosen not to, and was the only person who would ever know why.

I would be more impressed if Mason had argued that the defense knew that Anthony was not going to testify, although again that would cast doubt on the promises made in the opening statement, given that there was no indication that they built their defense with the expectation that she would testify, given that between her demeanor and her inability to open her mouth without lying she would have almost certainly buried herself within minutes, and given that it doesn't speak highly of either their trial preparation or client control that this was a surprise. (Really, the defense wanted to put her on the stand to explain that she kept garbage in her trunk for so long that her car smelled like it had a rotting corpse in the trunk, coincidentally at the time her child was missing, and that she abandoned her car at an airport because it ran out of gas? No freakin' way did they believe she was going to testify.)

Though nobody coached her on her mannerisms before the court, Mason did say that he and his lawyers did try to keep her emotions down, which he explained was “pretty hard to do when family [testified] against her and people [were] calling for [her] blood like a lynch mob.”

Nobody talked to the client about how to comport herself during court? For a first degree murder trial with a possibility of the death penalty? Seriously? Also, given that Anthony's mother gave testimony that, in my opinion, wasn't even close to credible about searching for "chlorophyll" and accidentally coming up with "chloroform", it seems she was trying to help Anthony. Did her parents get a bit angry with her when she tried to blame her partying after the death of her daughter on her supposedly being molested by her father? Or that her defense accused both of them of being somehow involved in the cover-up of her child's death and disappearance? I expect so - but are we to believe that, also, was a surprise to the defense team?

I accept this:

Mason continued to defend his client and stated that though there was no question she told a lot of stories to a lot of people, it was from a protective mechanism and not out of guilt of murder.

Whatever happened to the child, and whatever her role in the death, I have never sensed that Anthony has suffered even a moment of guilt. You will note that every single one of her lies was directional - minimizing her role in the disappearance and death, explaining away her inconsistent behaviors, attempting to blame others for the child's death and the dumping of the body in the woods and, if that failed, attempting to play "I was molested" as a trump card. As for "Casey’s demeanor and expressions, which were cold one second and crying the next," I didn't follow the trial but what I saw suggested that she became very upset when she started to feel sorry for herself. If sociopathy can be described as a "protective mechanism", I'll concur with Mason that Casey Anthony appears to have a "protective mechanism" in spades.

Given that Mason is claiming to believe that his client was ready and able to testify, implicitly with satisfactory explanations for her countless lies, and that she's now protected from retrial, I wonder when we can expect all of that information in some form of public statement that will make us recognize that this was all one big misunderstanding. No, actually I don't.

The Presumption of Innocence and American Values

If you've attended law school, "I'm a law professor" loses much of its impact as an appeal to authority, but sometimes you just have to wonder.... A law professor at Fordham University, Thane Rosenbaum, has posted an editorial at the Huffington Post that leaves me scratching my head. The gist of it appears to be that jury verdicts should always make sense to laypersons, even if they did not attend the trial, and that we could better achieve that by eliminating our adversarial system in favor of an inquisitorial trial system modeled after some unnamed country (or countries) in continental Europe. To Mr. Rosenbaum, it appears that the biggest flaw of our system is that we presume innocence, and that too many people he believes are guilty are acquitted.

Rosenbaum cites a whopping four examples of the justice system gone wrong, inevitably mentioning the O.J. Simpson case, but also mentioning the Michael Jackson trial and the more recent rape trial of two New York City police officers. Rosenbaum complains that "As civics lessons and as tutorials on the justice system", these cases "were devastating failures", but does he take the time to provide the much-needed civics lesson? To explain how those verdicts were possible within our criminal justice system? How a jury can be outraged by a defendant's conduct, see a lot of smoke, but still find that there's not enough evidence to declare that the defendant is guilty beyond a reasonable doubt? Nope. He seems to instead propose that we simply take a "Where there's smoke, there's fire" approach to criminal justice and if a verdict doesn't resonate as just with the public it can only mean that the justice system is flawed:

Many of these same confounded citizens also threw up their hands with the O.J. Simpson trial: "There was blood in the Bronco, for God's sake, and he was running away from the police!" And there were those who wondered how the plain facts of the Michael Jackson pedophilia case resulted in an acquittal: "He was sleeping in his bed with children that weren't his own!"

Let's step back and look at his examples. The O.J. Simpson case. Let's admit it, the forensic evidence was overwhelming. Even if you believe that officer Mark Furhman planted evidence at O.J.'s house, or that there was a conspiracy to convict within the LAPD, there should have been enough evidence to achieve a conviction. Does this mean that Rosenbaum is correct? That the only lesson that can be drawn from the O.J. case is that our system is hopelessly flawed in favor of the defendant? Hardly.

First, the case was anything but a typical homicide trial, as instead of having an indigent defendant trying to scrape together a defense, or (much less likely) a middle class defendant bankrupting himself trying to scrape together a defense, you had an incredibly wealthy defendant sparing no expense on lawyers and forensic experts.

Second, you had two prosecutors of average skill who were by all appearances used to the overwhelming advantage they had over defendants, and did (or could not) adjust their tactics in the face of a defense that was as well-funded as the prosecution. (Better funded? I don't think so. A prosecutor can call upon state crime labs, police departments, in-house investigators, support staff, advice and support from other prosecutors, and similar resources, and in a case like O.J.'s I would venture that the sky was the limit.)

Third, you had the presentation of the forensic evidence in a manner that was more confusing than edifying. Had the prosecution treated the evidence as routine, the jury might have understood it. Instead they presented a multi-day lecture on DNA, likely both confusing the jury and taking away from how incriminating the evidence was. Was race a factor? Some say so, but I think the leading issues were that the prosecutors simply didn't present their case well, and made a number of other errors (e.g., having O.J. try on the bloody glove without knowing in advance that it would fit) that opened up unnecessary opportunities for the defense.

The Michael Jackson case highlights the wrongheadedness of Rosenbaum's approach. Under Rosenbaum's insinuation, there is only one reason an adult male would share a bed with someone else's child (and it ain't good). So let's go with that. We have parents who (like everybody else in the nation) knew of the first set of accusations against Michael Jackson, sought out Michael Jackson, insinuated themselves and their child into his life, and knew their child was sharing Jackson's bed. Even without assuming that "there can only be one reason...", you have to ask yourself, "What were they thinking?" If you accept Rosenbaum's insinuation, does it not follow that they were thinking, "There could be big money in this for us, just like there was for the first accuser"? And they consulted the same lawyer who helped negotiate the huge settlement from the first case? Rosenbaum is truly at a loss as to how the family ended up with a credibility problem that undermined the prosecutor's case?

As he brings up the Jackson case and that of the two police detectives, perhaps Rosenbaum should be offering a civics lesson in the importance of witness credibility, and within that context also bringing up the DSK rape accusation, a case that is in many ways analogous to the accusations against Jackson. He may want to take a look at the Feministe blog post, "There Are No Perfect Accusers". Both the Jackson and DSK cases involve defendants with a history of being accused of similar sexual impropriety, defendants who claimed that people were trying to set them up (not just in the specific case, but in general), and whose defenses rest primarily upon the impression that the accuser is a grifter.

Only three weeks ago, Strauss-Kahn evoked such a possibility in an interview with French newspaper Libération when he said he thought he was under surveillance and named the three principal difficulties he foresaw if he was to stand for the presidential elections.

"Money, women and the fact I am Jewish." He added: "Yes, I like women ... so what?" He said he could see himself becoming the victim of a honey trap: "a woman raped in a car park and who's been promised 500,000 or a million euros to invent such a story ..."

If we apply Rosenbaum's, "If there's smoke, there's fire" test to that claim, would it not be reasonable to infer that DSK was worried not so much about being set up, but about proactively laying a defense against accusations that might flow from his actual past conduct? Wouldn't a man who was seriously concerned about being set up take much better precautions against such a set-up? When you have an accuser and a victim, both of whom have serious credibility issues, how do you determine which side is "glaringly right"? And given his believe in the importance of public perceptions of justice, shouldn't Rosenbaum be comparing and constrasting those in the media who argue that DSK's rather incredible account of the events in his hotel room is "glaringly right" with those who argue that the final version of events described by the alleged victim is "glaringly right"? Under Rosenbaum's standard, is justice even possible in such a case? Whatever the outcome, some number of people will be offended by the disposition and believe that it represents a travesty of justice.

What is Rosenbaum's explanation for the difference between what occasionally happens in court - a defendant everybody "knows" is guilty is acquitted - and the court of public opinion?

There is an altered reality inside courtrooms. Everyone is breathing a different kind of air. Insulated by all that marble and mahogany, the talking head noise of cable TV and the common sense word of mouth on the street are blocked out by a mute button. What makes complete sense outside of the courtroom has no bearing on the legalistic jury instructions, the narrowed presentation of evidence, the presumptions of innocence and the burdens of proof that guide criminal trials no matter how simple and plain the facts appear and how indisputable the outcome.

From outside the courtroom, the legal system often looks as if it has no grip on the truth, or even worse, any concern or respect for the truth. But, of course, legal trials are, in fact, less interested in what is true than what can be proven.

On the whole that's true, but note how Rosenbaum's language suggests that the courtroom is some sort of ivory tower, while people passively watching news coverage and forming opinions based upon meta-analysis somehow know the "real truth". Note the absence of any sense of history, or explanation of why we have constructed a justice system in which the prosecutor must prove a defendant guilty, why justice is served by rules of evidence and by allowing the defendant to confront witnesses and challenge the evidence, and in which, no matter how heated the public reaction, it is desirable that cooler heads decide the case in court. Instead, Rosenbaum complains that while "legal experts "have lectured us" on the difference between a "not guilty" verdict and a declaration of innocence, "most reasonable, sensible, decent people are still left morally outraged by this purportedly correct legal outcome, and they won't easily be persuaded to appreciate the difference -- nor should they." Note the implicit accusation: If you disagree with Rosenbaum, you probably aren't a "reasonable, sensible, decent" person.

I'm not certain if, when Rosenbaum argues, "nor should they", he is trying to suggest that people should not be "easily be persuaded to appreciate the difference" between a finding of "not guilty" and a proclamation of innocence, or if he is arguing that people simply should not accept such a distinction. If it were the former, rather than complaining about "legal experts" attempting to explain how the justice system works, he should be attempting to do a better job of educating his readers. It thus appears to be the latter. Rosenbaum appears to be arguing that we should do away with the presumption of innocence and the legal standard of "guilt beyond a reasonable doubt", and perhaps even require that criminal defendants prove their innocence. To Rosenbaum, there appears to be only one form of miscarriage of justice - the type that occurs when somebody is acquitted despite a public perception of guilt.

It bears noting that such travesties of justice happen less frequently in other western nations.

Again, this guy is a law professor? If we're talking about countries that follow the common law tradition, which roughly translates into the English speaking world, the criminal justice system is very similar to ours, save for a slightly expanded opportunity for appeals by a prosecutor, made possible by the absence of constitutional language analogous to our Fifth Amendment. At the same time those nations don't have the U.S. notion of dual sovereignty, such that a federal prosecution can sometimes follow a state court acquittal. Either way, in most cases the prosecutor only gets one bite at the apple.

Rosenbaum limits his wistfulness to inquisitorial systems from continental Europe, apparently recognizing that systems of the sort he admires have a rather dismal record of achieving justice in the rest of the world. If you're charged with a crime in China, Burma, Turkey, Saudi Arabia, or any number of other countries that purportedly follow an inquisitorial model, you're pretty much guaranteed that you will be convicted at the end of your trial's search for the "truth". How does Rosenbaum describe the inquisitorial model?

Instead of having both sides fight a zero sum game, the winner-take-all, scorch the earth contests that make American trials similar to its sporting spectacles, other countries place a higher value on having both the prosecution and the defense work to uncover the truth. After all, everyone in society benefits when the truth is known and injustice is not allowed to prevail.

Rosenbaum's first mistake is in his belief that the only people who benefit from the outcome of a trial are the litigants. Our system of justice was constructed upon the assumption that there is a benefit to society in ensuring that defendants receive a fair trial, and upon Lord Blackstone's formulation that it is "Better that ten guilty persons escape than that one innocent suffer". Otto von Bismarck is alleged to have taken the opposite view - that it's better for ten innocents to suffer than for one guilty man to go free. Perhaps Rosenbaum would attempt to distance himself from that philosophy in his endorsement of the European inquisitorial model, but it's fair to note that he failed to tell us what country he believes offers the best interpretation of that model.

Which country in Europe "gets it right", and how much more accurate in Rosenbaum's measure is their system of justice than that of the United States? Perhaps he is thinking of Italy? Probably not Bulgaria. Perhaps he's taken in by the manner in which France shields Roman Polanski from prosecution by the U.S., or how the Swiss justice system managed to deny his extradition to the U.S. in a manner that didn't create even a hint of controversy in the United States. Does Rosenbaum actually know anything about the legal systems in the nations of Europe and their imperfecitons?

A French appeals court today overturned the conviction of six people accused of participating in a pedophilia ring in northern France five years ago, unraveling one of the most mismanaged cases in French judicial history and leaving the nation asking how the court system could have gone so awry....

The case was marred by deep doubts from the beginning, said Yves Jannier, France's attorney general, speaking to the appeals court on Wednesday. He noted that the investigative report by police in July 2002 found "more doubts than certainties" in the accusations, but said, "no one had enough critical sense to stop the machine."

Sure, but how might the public have reacted had they believed that the magistrate was emphasizing the need for stronger evidence instead of seeking convictions? The French, after all, have concerns about their own system. But if you're not concerned about wrongful convictions, the influence of the wealthy and powerful on a system dependent on magistrates, or abuses that occur at the hands of the magistrates, an inquisitorial system may well seem quite appealing.

Rosenbaum concludes by strongly implying in the specific context of the Casey Anthony case, "the truth is known and injustice is not allowed to prevail". It's thus fair to ask, what is the truth in the Anthony case? Is Rosenberg claiming that he was able to sit back in his recliner, watch Nancy Grace rant and rave, and come to a precise conclusion as to when and how Caylee Anthony died? I do have sympathy for the idea that in an inquisitorial system in which the defendant's silence could be weighed against her, and in which the verdict were reached by a preponderance of the evidence, on the weight of the evidence and the massive weight of her lies Casey Anthony would likely have been convicted of some act in relation to her child's death, but the question would still remain open of exactly how the death occurred. Although Rosenberg seems to believe otherwise, absent a confession, the essential facts of Caylee's death are and will remain known only to her mother.

Perhaps the public would be satisfied with an inquisitorial splitting of the baby - "We don't know what happened, but we're going to infer from the mother's lies that she committed some act of abuse or neglect against her child and thus convict of second degree murder or manslaughter" - but such a verdict falls far short of an outcome in which "the truth is known". The distinction thus appears to be that when the truth cannot be determined, Rosenbaum would err on the side of convicting.

Can Prosecutors Appeal an Acquittal

I see that a great many people visiting this blog are wondering whether the prosecutor can appeal Casey Anthony's acquittal on murder and manslaughter charges. No, they cannot. The Fifth Amendment to the U.S. Constitution provides a defendant with a range of protections, including the right to remain silent and protection against being retried following acquittal - protection against "double jeopardy":

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In rare cases, a defendant acquitted in state court might be subject to charges in federal court, typically on civil rights charges. That is most likely to happen when the defendant is a state actor, such as a police officer who has been acquitted in state court of a serious crime against a criminal suspect. I do not personally see a basis for bringing federal charges in this case, nor do I expect a federal prosecutor to be interested in attempting a new prosecution.

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?

The Media's Morbid Obsessions... and Race

I agree with Kiri Blakeley's criticism that the media forms a morbid obsession with certain murder cases and gives them far more coverage than they deserve, and that the Casey Anthony trial falls into that category. But of all the reasons not to pay attention to the trial, I find this one to be weak:

But, most of all, I just find it—put it politely— selective. Virtually every month in New York City a young child is murdered either by his or her mother or the mother’s boyfriend or the adult responsible for the child—and hardly any of them ever gets the kind of national round-the-clock media coverage that Caylee Anthony’s death is receiving.

Look, I'm not going to argue that the media will find newsworthy a story from a wealthy suburb that might pass with little or no mention in an impoverished neighborhood. And yes, that often (but not always) means that the media lavishes on crimes against white families while giving scant coverage to similar crimes against minority families. But, as the very high-profile coverage of the Menendez brothers' murder trial helps illustrate, the issue there is more complicated than just race. Crimes against high-income individuals in low-crime areas are less common, tend to get more aggressive police investigation, and tend to involve defendants who for one reason or another are better able to defend against the charges. (Even if the defendant is poor, their defense team is apt to receive more funding and more access to investigators and experts by virtue of the associated publicity.)

I once watched part of a trial in which a mother was convicted of starving her child - in that case not to death, but otherwise similar in many ways to the case of Marchella Brett-Pierce. The author complains, "Katie Couric did a small piece on it for CBS News, but there was no national outcry along the lines of what Caylee Anthony is getting". But in the case I saw, Katie Couric didn't show up. And I doubt that she would have showed up even had the child died, even though the child was white. Very few child abuse cases, even those involving horrific circumstances, get media attention, and that largely extends to cases that result in death.

What the Caylee Anthony case has that the cases Blakeley describes is that it started with a missing child and, although you have to stretch the presumption of innocence pretty close to the breaking point, something of a murder mystery. A similar case that received significant media attention was that of D'Wan Sims, who disappeared in 1994. His mother, Dwanna Harris, told the police that her child had disappeared from a Michigan shopping mall. There was a search, and a review of videotape from mall entrances, with the video showing no sign of either mother or child. The case again received attention in 1999 when a tip about when the police investigated a tip about where the child's body might be found, and again in 2003 when a DNA comparison was conducted to determine if an unidentified child's body, found in Georgia, might be D'wan. It was not.

The decision was made not to prosecute the mother for such charges as child neglect, or for what appear to be some pretty atrocious lies to the police, so as not to risk foreclosing a prosecution to the fullest extent of the law if the child's body is ever located. But I have little doubt that the media will be all over the case if the mother is eventually charged with the child's murder.

When Blakeley complains that murders that involve no missing child, and no ambiguity about who committed a homicide, receive less attention than those involving both of those factors, the proper response is, "No kidding." Whether or not the story deserves to be front and center on the national news, the fact is that stories about missing children, lying parents and mysterious deaths will inevitably capture the public's attention in a manner in which an open-and-shut homicide case will not.

Pull The Other One

Would you believe this if you were a juror?

"I searched for chloroform," said Cindy Anthony, as jurors leaned forward, riveted, in the Orlando courtroom.

"I was searching for 'chlorophyll' because I was worried that it might affect my dogs," Cindy said. "I was worried about them eating bamboo."

I guess it's more plausible than attributing the search on a two-year-old, but really. I guess the thought process is, "My dogs were eating bamboo, I realized that bamboo contains chlorophyll, I wanted to know if chlorophyll is harmful to dogs, so I searched for 'chlorophyll' - but I didn't know how it was spelled so I ended up searching for 'chloroform'."

I suspect that most people searching for information on the possible consequences to their dogs from eating grass search for such terms as "dogs eating bamboo", and that most people who are looking for the effect of chlorophyll on dogs would search for something like "chlorophyll dogs", perhaps ending up with a twisted search term that would be of concern to PETA but not of much relevance in a criminal trial.