I’ve been engaged in a four-day Continuing Legal Education marathon, so I haven’t paid much attention to the Casey Anthony trial (unlike the OJ trial, which I actually used as material for the college English classes I was teaching at the time.) But last night I got seriously overdosed with it on the news and Nightline and Frontline. And once I finished working today, while checking my email, I stumbled across the proposed text of “Caylee’s Law” (which would make it a felony for parents to fail to notify police within 24 hours of a child’s disappearance or within an hour of a child’s death.) For those of you who have been residing under foreign rocks for the past 20 years or so, it has become standard American practice to respond to any really outrageous crime, especially if the victim was a child, by passing new laws to keep that particular crime from recurring, and name the law after the victim in question. This raises Mother Jones’ maxim “Don’t mourn, organize” to a new level of literality.
Well, never mind that constitutional law expert Lawrence Tribe says “Caylee’s Law” would probably not pass constitutional muster, as it seems not to further any properly authorized federal purpose. The public’s problems with Caylee’s case are pretty much the same problems they had with the OJ trial, and the Susan Smith trial, and a whole bunch of others in between. Specifically:
1) The public saw a completely different narrative of the crime than the jury did. The trial narrative the jury saw was flattened out by the exclusion of all kinds of evidence that was fair game for the media outside the courtroom—stuff that one side or the other or the judge on his own motion excluded as irrelevant, prejudicial, or just plain boneheaded, but that the public absorbed in order to formulate its understanding of what really happened. Having formed that narrative, the public either can’t understand that the jury saw an entirely different set of facts, or is also outraged that the jury didn’t get to see and hear what the rest of us did.
2) The public, like Aristotle, believes that character is destiny. It is mere commonsense to believe that bad things are done by bad people. Proving that a defendant was a bad person is sufficient to convict her of a bad act. And, moreover, even if she didn’t exactly commit that particular bad act, we are better off if she gets locked up so she can’t commit her inevitable next bad act in our community.
3) The Anthony trial certainly did a good job of proving that Casey was, if not a bad person, at least a serious wack job. So, apparently, are most of the members of her family. (BTW, who was Caylee’s father? Apparently we don’t know. If we are to believe, as Casey’s attorney tells us, that Casey was a victim of incest, is that somehow connected to the paternity issue? And why was nobody else in the family speaking to Casey’s brother? Could he have been the child’s father?) The jury may have found the oddities of Casey and her family grounds for mitigation of responsibility. The public, however, seems to think they are, if anything, factors in aggravation. Crazy people scare us. Lawyers may think that proving a defendant too wacked-out to be responsible for his crime means he should be released. The rest of us think that a defendant who is that wacked-out is too dangerous to be out on the streets. A middle position, that such a person should be locked up for appropriate treatment, is hard to sell, because most of us know just how difficult it is to get somebody hospitalized for mental illness for long enough to treat it adequately. As a result, the two largest mental health facilities in the country now are the Cook County Jail and the Los Angeles County Jail.
4) It seems most likely that the jury simply found the evidence insufficient to convict Casey of anything but lying to the police. Ever since the OJ trial, we have been hearing jeremiads about how demanding juries are getting, demanding not merely absence of reasonable doubt, but an airtight case, in order to convict. The case against her was largely circumstantial, and just about every element of the prosecution’s evidence was susceptible to explanations other than Casey’s guilt.
5) It would be interesting to run a study, over the last 40 years or so, of how judges and juries treat mothers charged with killing their children, as opposed to fathers charged with the same offense. OJ, unfortunately, was not an infanticide case, so the gallows humor with which the public followed it doesn’t necessarily prove anything, as compared with their attitude toward Casey, or Susan Smith, or even Andrea Yates. But it is easy to suspect that the double standard cuts especially hard against women in these cases.
6) Which, for some reason, brings to my mind Sir Walter Scott’s novel, The Heart of Midlothian, which turns on a Scottish law against infanticide, passed in 1690: “Any woman who shall conceal her being with child during the whole time of her pregnancy, and shall not call for, or make use of, help in the birth, is to be reputed the murderer, if the child be found dead or missing.” Sir Walter, BTW, had training in the law, and bases the novel on an actual occurrence in his day (early 19th century.) His account admittedly stretches credulity, by demonstrating that a woman could be guilty of the conduct described in the Act and still bear no responsibility for the death of the child, and indeed, that the child might ultimately turn out not to have died at all. Which is pretty much the kind of argument Casey’s attorney made, and the jury accepted, though the public didn’t.
7) But I guess what I find most disturbing was the reaction of the crowd outside the Orlando courthouse when the verdict was announced. Two generations earlier, it would have been the makings of a lynch mob. The crowd was demanding “justice for Caylee,” as if that poor child were not far beyond whatever human justice could offer, and now in the hands of the Ultimate Mercy. The prosecution kept claiming to “represent the victim,” which I believe is a serious mistake in prosecution philosophy. The victim, or some family member, is free to file a civil case against the putative criminal who victimized her, and to receive whatever justice is available in monetary terms. In increasing numbers of criminal cases, civil justice is also being pursued, and that is all to the good. But the goal of a criminal case is not justice for the victim. It is justice, and safety, for the community, which is who the prosecution is really supposed to represent. The damage to the victim, and even to her family, can never be made to “unhappen.” No amount of punishment of the victimizer will accomplish that. If we cannot accept that in some way the Holy One will someday wipe away all tears from our eyes, we have to live with the injustice and hurt that the criminal has done to the victim and to all of us.
8) The footage of the actual trial raises a couple of interesting questions:
a) Illinois is one of the few states that still forbids televising most court proceedings, on the usual grounds that the camera will bring out the ham in all the participants. I find those arguments unpersuasive. In the first place, with or without cameras, trial lawyers are hams. It is part of their job description. In the second place, most people, whether professionals or merely parties and spectators, get used to the camera enough to mostly forget about it, very quickly. And the Founding Fathers believed very strongly in public trials (as public as the technology of the 18th century could make them, anyway) for very good reasons. We need to know what our justice system is doing in our name, for our presumed benefit, and on our money. Seeing it at work should not be a privilege reserved for professional spectators such as journalists, or dedicated amateurs such as retiree law buffs.
b) And finally, the law says that the jury is entitled, or even required, to take into account, as evidence side by side with smoking guns and weeping witnesses, the demeanor of the defendant. I watched Casey go from grave to stone-faced to laughing to crying and round about again, and I wondered what conclusion the jury was drawing from her demeanor. I have heard people say that a defendant “looks guilty” for smiling, or not smiling; for showing emotion, or not; for responding with visible anger to being bad-mouthed by the prosecution and its witnesses, or not. If you get a chance, watch Meryl Streep’s performance in “A Cry in the Night” (drawn from a true incident, also about a mother accused of killing her child) and how much dislike she draws from the public for her apparent lack of emotion. But hysterics can have the same result. The problem, so far as I can tell, is that we have no idea how an innocent person behaves. Maybe this is because we really don’t believe in innocence, at least in the context of a criminal court. If the defendant is charged with Aggravated Mopery, or whatever, that generally goes pretty far to convince us she is guilty. The fact that the Anthony jury managed to transcend this presumption speaks astoundingly well for them. Maybe there’s hope for us after all.