One of the best kinds of jurors you can get in a criminal case, from a defense perspective, is someone who is open minded and likes a “whodunit”. These jurors are interested and involved in the evidence. They are more likely to perceive and acknowledge holes in the prosecution’s case. This is in contrast to the majority of jurors, who go with the flow – which means a conviction.
But there’s a danger. What if, at the end of the day, you don’t really have an answer for the questions posed? The accusation has been leveled but you don’t know if it’s true or not?
It’s very clear under such circumstances that you find the defendant “not guilty”, but at the same time the jury’s determination is referred to as a “verdict”, meaning “truth”, and the not guilty verdict in those circumstances means that no one knows what the truth is. That’s the only truth you get.
On many levels this is a very unsatisfying result. It will leave even the most defense friendly juror unsatisfied. You cannot find the defendant guilty, but neither can you exonerate them.
One advantage when the defendant testifies is that a “not guilty” verdict at that point has all the appearances of a vindication for the defendant. But when the defendant does not testify, even a not guilty verdict, although a win for the defense, leaves the stain of the accusation hanging over the head of the defendant forever.
April has been a very active and intelligent commenter on many of the Casey Anthony posts on this blog and she comes from a pro-prosecution perspective. And she is also unusual in that she shows an ability and willingness to understand opposing arguments, without necessarily changing her opinion.
One interesting exchange and disagreement we have been having is over the significance of alternative theories of what may have occurred that led to the death of Casey Anthony’s toddler. April has taken the position that the prosecution’s contentions are obviously convincing, and the very fact that the defense, or me on this blog, feel compelled to offer competing theories is a concession to the strength of the prosecution’s case.
One objection to this reasoning is that offering a competing theory grounded in the same facts is probably the best way to call the original theory into question and render it unconvincing. Logically speaking, this is a very good and very effective argument to rebut an accusation. And in many cases it might be the only argument there is. Perry Mason, for those old enough to remember it, always delivered the real culprit at the trial. In real life, that is almost always impossible.
Yet while the competing theory argument is logically sound and intellectually effective, it is not a powerful argument, for want of a better word. It does not yield answers, but rather more questions. It leaves a big hole where the truth should be.
Justice Holmes accurately captured our collective character in the operation of our legal system many years ago: experience, and not logic, is the life of the law.
But how ironic. A jury trial is an event in which some people sit in judgment over other people and events and in which, by definition, they can have no experience whatever. Evidence gathered after the fact is presented to them, and they are asked to decide what the truth is – in light of logic, yes, but also in light of the experiences they have had in their lives, that will presumably help them evaluate the evidence they are given.
Are experience and logic in conflict, or in harmony?
The quote from Holmes implies conflict.
When the defendant doesn’t testify, the defense is really asking the jury to favor logic over experience. Because their experience tells them that where there’s smoke there’s fire; the government doesn’t bring criminal charges without cause, or frivolously, or without knowing that they are warranted; that “100% of accidental deaths are reported to authorities”; that innocent mothers don’t go out and party when their children have recently died or gone missing; that “duct tape” goes hand in hand with psychopaths; that pathological lying makes a person more likely to be an aberrant murderer.
It is only logic that leads one to question these assertions. The prosecution says: trust your experience. The defense says: question your experience with your mind, think it through.
Since the industrial revolution we have lived in a dogmatically empirical intellectual climate. Holmes was one of its most prominent representatives.
This is very much in contrast to the tradition of western thought. Western thought virtually began with empirical skepticism. Do not trust the senses, said Parmenides, because they can trick you. This started the intellectual discussion in ancient Greece.
We have a markedly different take on it now, but it’s the same discussion. And in a way that at least to me is profoundly interesting, the legal guilt or innocence of Casey Anthony hinges upon it.
Lawyers on Strike 
I think this post is somewhat a follow up to the discussion on your last post, using the thoughts in this post. Also, I just want to say, as a new reader to this blog and discussion, I find it highly stimulating and I am glad to have stumbled upon it. By the way, I found it by Googling “Judge Perry Anthony Trial bias.”
I think that in order to win over the jury, either side needs to use logic and experience. For example, the prosecution wants to say that A+B+C+D=first degree murder. In order for the prosecution to establish that, they must prove that the chain of events is logical AND they must prove A and B and C and D individually are consistent with the experiences of the jurors. For example, in this case, and as you stated, the prosecution wants you to believe that innocent mothers don’t go out and party when their children have gone missing or have just died. Many people would say, you know I lost someone close to me and I couldn’t even get out of bed or I cried the whole time. Because the way she acted is inconsistent with my experience, she must not be innocent. Now if the prosecution can relate an experience common to the juror own with each element of their logical chain, they will have persuaded the juror. Therefore, it takes logic and experience in order to convince the jury.
Now the defense can either seek to attack this in a number of ways. In this trial, from what I have seen the defense has sought to do a number of different things:
1. To basically say that “A” didn’t happen, most notably by establishing that the duct tape allegedly placed on the child’s mouth and nose was never on her face;
2. To basically say while many would act a certain way after an event and your human experience tells you this, but it is perfectly within reason that a person would act a way outside of what your experience tells you, most notably through the grief expert testimony; and
3. Offer a whole new logical chain of events
While specifically in this case I think the defense has offered enough evidence that satisfies their defenses of 1 and 2, it is 3 that is the weakest and lacking. This is where the argument that Casey should have testified comes in. She can directly tell the jurors the full story of 3. However, this puts a lot of pressure on her and if she screws up, she is done. She basically has to be able to tell a logical story and have the jury believe those elements of her story through the eyes of their experiences. This is tremendous pressure on her and if she fails, she will be found guilty.
In the end, I would rather have the jury saying, “I just don’t know who did it and what story to believe. I am unsatisfied that we can’t solve this mystery, but because I don’t know, not guilty” than having Casey testify and removing doubt that she is not guilty because she couldn’t tell her logical story in a way that relates to the jurors’ human experiences.
All of this of course does not take into account the other nuances of the trial like credibility of the attorneys and any over bias by the Judge.
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Glad to have you here, and that you find it stimulating and worthwhile.
What you or I would rather a jury do is hardly determinative of what they will do.
Now, since these things come to resemble horse races and sporting contests I’ll make a tentative and tenuous prediction:
I think Baez probably did a lot of damage to George Anthony that the media never picked up on. If I’m right, and he does a good job in his closing statement of bringing this out, then the jury will hang on the homicide charges and probably convict on everything else. But if I’m not right, or Baez doesn’t do a good job on the closing argument, then they’ll convict on at least a manslaughter and probably on the murder charge.
If the trial had been fairer there might have been a shot at an acquittal on the homicide charges; but just from what I’ve read about the trial I don’t believe a jury will be able to unanimously overcome the institutional momentum in favor of convicting on some kind of homicide.
So basically, at this point, I would say it’s between a hung jury and a conviction with respect to the homicide charges generally. They could acquit on the death penalty murder charge just because they don’t want to go there, or because they make a deal between those who want to fry her and those who are absolutely opposed to that or want to acquit her of any homicide at all, but in that instance they would still convict her of a homicide.
I will be very surprised if they acquit on all homicide charges, no matter what happens from here. And please note, I believe an acquittal on the homicide charges is the only satisfactory outcome.
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Thank you for this article and this blog. I live in Central Florida and it is embarrassing to see the spectacle made of this sad event. It’s even worse to think this woman will be convicted when the case against her is so weak. But not for the media hype it’s unlikely that anything more than some sort of negligence charge would ever have been brought.
I wanted too to bring up an insight I had the first day George Anthony testified. Mr. Anthony gave testimony that led me immediately to believe he knew the day his granddaughter died that it was the last time he would see her again. Let me explain: Jeff Ashton asked Mr. Anthony to describe June 16th under direct examination. Most of the questions were about the normal routine in the household. Something extraordinary–but subtle–then occurs. Mr. Ashton asks very specific questions about June 16th 2008. Mr. Anthony’s recall is astonishingly lucid and full of detail. He says that morning is “forever etched” in his memory. He remembers the Food Channel program he was watching; he remembers Caylee “coming out of Casey’s room dressed in a pretty pink top”; he remembers her “blue jean shorts and white sandals and pink socks”; he also remembers her “white sunglasses…backpack…and her hair pulled back”; he remembers their conversation and says that Caylee stated, “I’m going with mommy to see Zanny!”; he remembers it all like it truly is “etched in his memory forever.”
There’s just one problem: he claims that he didn’t know at the time that it would be the last time he would see her alive. Think about that for a second. Is it credible that he remembers these details after the fact of her death over 30 days later?
Here’s an analogy: You and I are best buddies who meet almost everyday at 7-Eleven to buy lottery tickets. One Thursday we buy tickets just like always and say good-bye. Friday comes around and I don’t meet you to play the Lotto. You don’t think much of it. Often a day or so will go by and I won’t meet you. A week goes by and you are on your own buying your tickets. Two, three, four weeks go by. You have been worried about me so you are relieved to get a call finally and I tell you that I in fact on the day we last met, I bought a winning ticket and have already claimed the jackpot.
Are you following me? You would absolutely NOT remember the clothes I was wearing on the last day we met because after all you expected to see me again sooner or later. Even though something big happened that day, you were unaware of it until over a month later. The last time we met was a routine day for us. We met we bought lottery tickets, we joked around, we went on about our business. NOTHING about the day was memorable. It is absurd to think a person would have that memory etched in their memories!
If something happens to me that is of import–something tragic, something exciting–I very well may etch it in my memory but …. I have to be aware that it is extraordinary, atypical, life-changing. To find out, for example, that a traumatic event happened to you over a month ago and expect you to remember the details of that 30-day-old event is just plain silly.
If George Anthony has vivid memories of that day it is because something big happened that day that he was aware of AT THE TIME.
Watch the YouTube video of these questions and tell me it isn’t farcical. The testimony video is here: http://www.youtube.com/watch?v=lq3fEjFwcaY&NR=1
This trial is full of such moments of absurdity. Someone should–and probably will–write a book about it. 🙂
Keep blogging strong! You are doing important work. And thank you for allowing me to post. I had to get that off my chest.
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Thanks for that link. I really haven’t watched the video of the trial, but from what I know this was right after the opening statements.
Let me fill you in a little. What was happening there was that the prosecution knew what the defense was going to open with, but they didn’t tell the defense that their very first witness was going to be George. All they have to do is put him on the list; they don’t have to tell the defense that he’s going to be the first one called.
So calling George first was a tactical move by the prosecution to catch the defense off guard. It worked to some extent, but overall from the brief clip I think Baez did a good job bouncing back.
Next, one thing that was really impressive to me was that they kept panning over to Casey Anthony and her reaction was consistent with someone who is listening to a witness testifying against them and believes the witness is lying. Sort of classically consistent with that, the head shaking, the look of astonishment. Hard to describe, but I’ve seen it, and that’s what it looks like.
That doesn’t mean George was lying or even that she believed he was lying. She could have been acting. But she would have to be a pretty good actress.
Finally, what you have described is exactly the kind of thing that should be pointed out in a closing statement. It’s a very good point. It makes George look even creepier than he already did, but as you say it is a very subtle thing. Stuff like that does come up at trials. You have to pay attention, but you don’t fight with the witness then and there. You make a note of it and save it for your closing argument.
To some extent we live in a society that focuses on superficial things. But at trials you have the chance to get beyond the superficial, precisely by having the chance to reflect on what has been said or presented and how it has been said. Then the kind of thing you point out can become obvious, but only in retrospect. The crucial thing is to pick up on it, if not at the time, then at least in time to point it out to the jury.
And here’s the nightmare from the lawyer’s point of view: what if you miss a point like that, and if you miss it everyone else is likely to miss it too? And then your client is convicted even though there was something there, that if you had noticed it the conviction would not have occurred?
There’s a lot about George that isn’t right. This is one thing, and I think there are others, and if Baez does a good job on his closing it may be enough.
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Me too, thanks for the link. I had missed this part of the prosecution presentation.
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George is lying and Cindy is lying. Unfortunately, so much of what we supposedly ‘know’ about this case is from the self serving statements from the liars.
For a while, I wondered if LE was lazy stupid or corrupt, have to go with corrupt
on that one, but what the heck, it is politics and career advancements are on the line. Need a conviction, never mind justice, the media incited mob must be appeased, truth, justice or fair trial be damned.
And the media whores, Nasty Grace, Jane Mitchell and the rest of that pack of hyenas, I cannot begin to express the level of my contempt for those lying whores, with the ‘poor innocent victimized grandparents schtick’.
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By the way, I am expecting those ‘poor victimized grandparents’ to be cashing in
via book deals and movie rights the instant Casey is convicted.
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