But the Conquered, or their Children, have no Court, no Arbitrator on Earth to appeal to. Then they may appeal, as Jephtha did, to Heaven, and repeat their Appeal, till they have recovered the native Right of their Ancestors, which was to have such a Legislative over them, as the Majority should approve, and freely acquiesce in.
-John Locke

Wednesday, July 6, 2011

My Views On the Casey Anthony Trial

So much has been written about this case already, but there are a few aspects that I would like to address.

1) The attorneys.  One rule of trying to assess trials that you aren't part of is that you need to keep in mind that you do not know everything that the lawyers involved in the case know.  Their trial strategy may at times seem strange or ill-advised to viewers, but it is important to temper criticisms by remembering that it's their case and know better than you.  So, critiques of trial strategy should be taken with a grain of salt.  That said, I had trouble watching the prosecutor's facial expressions during the trial.  First, it's unprofessional and unbecoming to behave like that during opposing counsel's time; it demeans the tribunal, it demeans our system.  Second, as the prosecutor, he is charged with representing the people; he is asking the jury to find a defendant guilty where the death penalty is on the table.  That's serious stuff, so I feel it's important to conduct one's self accordingly.  Those types of cheap theatrics are distracting to juries and do nothing to endear you to them.  Poor form by the prosecution.

2) The case.  I have tried over a dozen murder cases to juries.  I was shocked at the close of the evidence that this was all they had.  the verdict did not surprise me; as the alternate juror pointed out, the prosecution simply did not give the jury the material to find her guilty.  Maybe Florida is different, but the overwhelming majority of prosecutors that I have worked with would never have brought that case as a death penalty case; most would not have wanted to take that kind of garbage to trial and would have made a plea offer.  Murder trials only happen in a limited number of circumstances: unreasonable client; legal or factual issue that the case turns on; unreasonable offer by prosecution/nothing to lose by trying the case.  Every murder trial I have done has gone to a jury because there was an actual issue that needed to be resolved via trial - examples: degree of culpability; ID issue - or because my client either had nothing to lose by going to trial or was unreasonable in the face of overwhelming evidence. 

Plea offers work in two ways: there are the negotiations in which a defendant might get a decent offer for a reduced charge and/or jail time because he is saving the prosecutor the trouble of having to try the case, and there are the cases where everyone is hedging their bets because the prosecutor's case may have problems.  In short, iffy cases should be negotiated.  In this case, either the plea offer - if there ever was one - was unattractive (read: unreasonable) or the defense felt confident that the evidence was going to be as lacking as it was.  Every trial attorney I know will tell you that going to trial is the result of the two sides being unable to see the case similarly, and none of them relish the unknown quantity that is the jury trial.  I cannot help but wonder if this was a case where the elected state attorney ordered his assistants to go full-bore with a crappy but high-profile case.

3) The Media.  I have to agree with the defense team that the media earned the grade: F.  I found it unbecoming that attorneys on TV were falling over themselves to critique the case and the attorneys trying it, rather than focusing on explaining what was happening.  They were lousy cheerleaders and demeaned the profession.  They also didn't know what they were talking about in many cases.  Nancy Grace once again proved that she does more harm than good in the world.  I suppose it's better that she's confining herself to maligning people on TV, instead of prosecuting defendants in a courtroom.  Just as an aside, she has twice been reprimanded by the GA Bar for unethical practices as a prosecutor.  I cannot overstate how difficult and rare it is to get a State Bar Assn to sanction a prosecutor.  Nancy achieved that twice in a 10-year career.  But, before you think we can talk about a major case without bringing up OJ, the lead architect of his criminal acquittal chimed in to try to buff some of the tarnish off of her reputation.  Sorry, Marcia, but this case was not nearly as strong as the case you had and bungled against OJ.  Your infamy shall endure.

4) The public outrage.  Is it sad that Caylee is dead?  Of course it is.  However, it is important to remember that justice and vengeance are not the same.  This trial was not about justice for Caylee.  It was about justice for Casey - whether that meant acquittal or being found guilty.  We admit evidence into trials, not righteous indignation.  This trial was about Casey.  Do we have to like her?  No.  Can we think she did it?  Sure - we can think anything we want to.  Did the prosecution carry their burden? No. 

Nancy Grace claimed that the Devil was dancing because Casey was acquitted.  Wrong.  Our system contemplates that there will be instances when a guilty man goes free.  It is a bedrock of our system that Constitutional protections trump incriminating evidence - fruit of the poisonous tree, for example.  As such, we accept that there are limitations to how well our system can work.  However, it is abhorrent when an innocent man is convicted.  I submit that the Devil saves his dancing for the instances when an innocent man is convicted, because that is the truest example of when our system fails.

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