FRONT PAGE CONTRIBUTOR
Casey Anthony and the Law And Order Effect
I’m a conservative, not a libertarian. Generally speaking I’m all in favor of putting asses in jail. What I’m not in favor of is the life, liberty, and property of American citizens being treated as some sort of a game. That is why the Casey Anthony trial makes me angry.
Much of the commentary on the Casey Anthony trial has centered on what is being called the “CSI effect”: the alleged belief that juries require more scientific evidence, like that routinely developed on the television conglomerate CSI: Whatever (where apparently jaywalking rates investigation by a half dozen lab tech cum SWAT members). I disagree. If anything the Casey Anthony trial showed that juries aren’t necessarily overawed by scientific hoohah. If anything, I think the Casey Anthony verdict was a direct result of the Law and Order effect.
The power to charge a fellow citizen… a fellow human… with a crime that could see them strapped to a prison gurney and given a lethal injection or confined to prison for the remainder of their life is a truly awesome one. It is a power that every jurisdiction in this country entrusts to a district attorney or similarly named individual who may be either appointed or elected. That position is probably best known to potential jurors through the television series Law and Order in the character Jack McCoy.
I’m old enough to separate reality from television but the tactics of Jack McCoy have always been very unsettling to me. I’ll leave it to Wikipedia to encapsulate my queasiness with McCoy as a prosecutor:
He quickly establishes himself as a more unconventional, ruthless litigator than his predecessor, Ben Stone (Michael Moriarty); he often bends—and sometimes breaks—trial rules to get convictions, finds tenuous rationales for charging defendants with crimes when the original charges fail to stick, and charges innocent people to frighten them into testifying against others.
I believe this paragraph tells you all you need to know about the Casey Anthony trial.
No one doubts the death of Caylee Anthony was a tragedy. The child is dead. The mother has spent three years in jail awaiting trial. She has been exposed both as one of the worst mothers in history – not that it will prevent her from dropping another kid in a year or two – and as a callous and promiscuous young woman. The grandfather has been publicly shamed as a pedophile. Various experts have beclowned themselves. And, for many, their faith in our criminal justice system (which a lawyer friend once told me neither a system nor justice but it is definitely criminal) was damaged.
But what we don’t know is the circumstances under which the child died. Was she killed with premeditation? Was she killed in anger? Was she killed inadvertently? Did she die in an accident? Based on this glaring, bonejarring lack of evidence one wonders how any human being would feel justified placing another on trial for their life based on the rankest speculation?
If an adversarial system of justice is to survive there must be a sense of propriety and proportionality observed by both sides. When the prosecution takes a case that is very nebulous and spends an inordinate amount of time and money on its prosecution one has to wonder why? Orange County, FL has over 100 homicides a year and the selection of this case for the attention it received gives the impression it was done for no other reason than chumming for headlines. When the prosecution embraces pushing the limits of the law – in its best light – or approaches the trial as a media event it simply encourages bad behavior on the part of the defense bar. Worse than that, we citizens begin to see ourselves as part of nothing more than a process of boosting prosecutorial egos and careers if we come into contact with the criminal justice system.
A responsible DA, in my view, would have looked at the evidence and circumstances and decided what charge was consistent with both. Not what charge you’d really, really like to prove but which charge the evidence supports. Unfortunately for the DA, in their zeal to turn this case into a death penalty trial – for reasons which I can only speculate but book deals, movie rights, upward political mobliity and swordfights with other Florida DAs would probably fit in there someplace – they overlooked a basic fact. Before you can judicially kill someone you have to prove a crime actually took place.
We don’t know what happened to Caylee Anthony and the odds are we never will. What we do know is that the acquittal of Casey Anthony was not because of some fanciful desire by the jury for mo’ better forensic evidence. The reason she was acquitted was because she was charged with a crime for which there was zero forensic or commonsense evidence.
A jury of twelve citizens weighed the state’s case. Unlike the prosecution they were cognizant of the truly awesome power of life and death in their hands and rightfully decided that despite what they may have felt in their gut there was no evidence that warranted convicting the defendant of a capital crime.