“TOD” = Trial Order of Dismissal
When the prosecution rests, the defense can argue, basically, that no reasonable jury could find guilt beyond a reasonable doubt on one or more of the charges based upon the proof offered, and that such charge or charges should be dismissed. The defense asks, in other words, for a trial order of dismissal.
As a practical matter, such motions are always made, and they are always denied.
In the one in one million times that such a motion might be granted, in most places the prosecutor can appeal. More than half the time the prosecutor will win such an appeal. That doesn’t sound like favoritism until you consider that defendants’ appeals are effectively never granted.
News reports of this lawyer formalistic jousting are ignorant of the dynamics involved. The motions are made not because the defense thinks there is any real possibility they will be granted, but because certain appellate rights are often considered waived if the motion isn’t made. The appellate rights are themselves meaningless, because the appeals are never granted either – unless the convicted defendant is a cop, in which case they often are. So you wonder why everyone goes through the motions at all. But that’s what you do at a trial.
But just to pretend that there is a legitimate process here for a moment, and assuming there would be any interest in what I thought about it which I know is a big assumption, and based upon what I know about the evidence that was introduced, and if I was the judge, I would rule….for the prosecution, reluctantly.
I think their case is basically shit, a very sloppy-reasoning “dirty up the defendant” kind of prosecution that is both distasteful in itself and made possible only because of the gross favoritism normally accorded the prosecution.
But the question when it comes to a TOD is, could a reasonable jury conclude beyond a reasonable doubt that the defendant is guilty of, say, intentional murder, if you accept all the evidence as true and give the prosecution the benefit of every possible inference from the evidence in their favor? (Note, you might argue that such predicates themselves are faulty, and I think they are, but that is the law.)
And the answer to that question is yes. If the jury believes everything the prosecution could possibly want it to believe based on the evidence, it could find the defendant guilty of intentional murder. I’ll tell you I think it is a close call. You basically have to accept the worst possible interpretation of the evidence. I strongly disagree with that interpretation, I think it is borderline fanciful. I think if the defense, in its case in chief, offers plausible proof of an alternative inference it may well be that a motion for a judgment of acquittal at the close of the defense case would be appropriate and should be granted.
But for now I happen to agree with Judge Perry. Just this once. And that does not mean I don’t think there are other issues where there should have been a mistrial, but we’ve been over that.
Update: Something occurred to me that is more than worth mentioning, as it reinforces a point I have previously made.
In personal injury cases, a “good” case is when you have a serious, even devastating injury. One problem you run into is that a seriously injured person has traumatic amnesia and cannot remember exactly how the injury occurred. This is true in the majority of cases.
So what you do is “methodically” build a circumstantial case, just like the prosecution does in a murder trial, where the main witness – the deceased victim – is by definition unavailable.
Judges have no trouble concluding in those situations that you don’t have enough evidence to get to a jury, and I have had several cases where I was not allowed to try the case, even though the proof I had was every bit as good as the prosecution’s case against Casey Anthony. Better, really. The cases were tossed on “summary judgment”.
Facing a motion for a trial order of dismissal, or a motion for summary judgment, you’re supposed to get the benefit of every favorable inference a jury might be inclined to draw. Prosecutors get that benefit. Personal injury plaintiffs do not.
And yet we are taught that the prosecution’s “burden” is more onerous. That’s bullshit, yet another thing the Casey Anthony matter illustrates.