The people vs. Casey Anthony

Mr. Right came into the office this afternoon after three days off. Mr Peepers promptly shuffled over to his desk and asked what he thought of the Casey Anthony verdict. "Two words," Mr. Right answered, "Professional. Jurors." And so one stupid young woman has seemingly united a nation across the widest ideological chasms, for just a short time earlier my friend and frequent correspondent Crhymethinc had told me that the Anthony case had reinforced his own longstanding desire for at least professional standards for jurors. These two personalities may agree on nothing else, but they shared a widespread dissatisfaction with last Tuesday's verdict. I heard the first hint of it the moment the verdict was announced, in the gasps from the office people gathered around the TV set in answer to every "Not Guilty." Not since O. J. Simpson was acquitted in 1995 has there been such anger directed at the American criminal justice system. Anthony's trial had been televised and analysed ad nauseum, and while few viewers saw and heard everything the jurors did, many feel entitled to draw their own conclusions and deem them superior to the jurors'. From them we hear that the jurors were stupid, cowardly, sentimental, too easily manipulated by improper appeals to emotion or false standards of reasonable doubt. Outside the courtroom, Casey Anthony is self-evidently guilty of killing her daughter. For many if not most observers that's the only reasonable inference or deduction, and inference and deduction, so the consensus seems, should form a reasonable basis for conviction in criminal trials.

Perhaps predictably, some experts argue otherwise. Alan Dershowitz, one of O. J. Simpson's "Dream Team," insists that "the system worked," even if it offends a majority of people. To prove his point, Dershowitz must assign the narrowest possible scope to criminal trials, in order to allow the maximum scope to "reasonable doubt."

A criminal trial is neither a whodunit nor a multiple choice test. It is not even a criminal investigation to determine who among various possible suspects might be responsible for a terrible tragedy. In a murder trial, the state, with all of its power, accuses an individual of being the perpetrator of a dastardly act against a victim. The state must prove that accusation by admissible evidence and beyond a reasonable doubt.

Even if it is "likely" or "probable" that a defendant committed the murder, he must be acquitted, because neither likely nor probable satisfies the daunting standard of proof beyond a reasonable doubt. Accordingly, a legally proper result—acquittal in such a case—may not be the same as a morally just result. In such a case, justice has not been done to the victim, but the law has prevailed.

Dershowitz had already noted that a criminal trial is "never about seeking justice for the victim," but he will add that "justice" can be had through civil suits, as was arguably the case with Simpson. What "justice" is remains elusive in this account. Is it a court saying to a defendant, "you are responsible?" Is it a payment of compensation to a plaintiff or her survivors? More problematic for many readers, I assume, is the distinction drawn between "justice" and "law." Shouldn't they be synonymous? The distinction does much to explain the hostility felt toward lawyers by laymen, especially since the basis for the distinction is nearly as vague as the definition of justice.

We may get a hint of Dershowitz's own distinction in the quote above, when he refers to "the state with all its power." It may be that law, for Dershowitz, is a set of rules for the state, while a criminal trial is concerned less with whether the defendant deserves to be punished than with whether the state is entitled to punish her. Anglo-American legal traditions have been especially concerned with constraining the state, imposing tests to ensure that governments, through courts, do not act arbitrarily or rush to judgment based on prejudice. Dershowitz himself finds biblical roots for the principle that freedom for ten guilty men is preferable to the false conviction of one innocent, but historically the bias in favor of the individual and the presumption of innocence has been strongest in the Anglo-American tradition, despite numerous prejudicial exceptions, because of an adversarial tradition toward the state dating back at least to Magna Carta. These constraints probably appear less necessary, or reasonable, in democratic countries -- and indeed, normally anti-statist types in America seem as likely as anyone else to denounce Anthony's acquittal.

People grow impatient with the state's self-constraining standards of evidence (and let's not get into whether all doubt is reasonable) when they perceive self-evident enemies (drug dealers, gang members) in their midst. The distinction between the "criminal" and the "enemy" has been strongly asserted during the "War on Terror," but many Americans wonder why some people are labelled "enemies," and are thus able to be dealt with fewer apparent scruples, and some are not, and thus must be handled with questionably justified care. A lot of the confusion probably has to do with who gets to define the "enemy." Some have questioned anyone's right (apart from Congress) to define an enemy if that means stripping the presumed enemy of legal protections, while others simply feel that the "enemy" label would be better applied where it might enable people to deal more decisively with presumably more obvious enemies. Laws appear to obfuscate truths in many cases, and Dershowitz himself insists that "a criminal trial is not a search for truth." But many Americans know it to be "true" by deduction that Anthony killed her daughter, that Simpson killed his wife, that someone is a gang member and someone else is mobbed up. They expect their government to be able to act on those "truths," which are proven to many minds beyond any doubt they consider reasonable. Such "truths" render defendants enemies of the people, against whom the state has no good reason to hesitate before taking just legal action. It could be argued that this was the unspoken logic behind many a lynching in the bad old days, but that observation shouldn't be a conversation stopper. A middle ground between paralysis and absolute license has to be possible.

I made a concerted effort to avoid the Anthony trial. My position has always been that local trials of such limited scope have no business being national news. Thanks to my ignorance of the case, I'm not going to attempt to say whether the Anthony jury was justified or not. But if the trial provokes a sustained national conversation on what the rule of law should mean in a modern democratic republic, the coverage it's received may prove worthwhile after all.