Casey Anthony’s ‘Wrongful Acquittal’

Three years on and she can’t show her face in public:

Anthony now lives in an undisclosed location in Florida and doesn’t go out of the home she is living in because of the public hate and continued threats to her life, Mason said.

“She has to live constantly on guard. She can’t go out in public,” Mason said.

By her own choice, she works inside the home, Mason said, and is living as “a housekeeper, clerk, secretary and stuff like that.”

“I think Casey has a lot of world left to have to deal with. She hasn’t been freed from her incarceration yet ’cause she can’t go out. She can’t go to a beauty parlor, she can’t go shopping to a department store, she can’t go to a restaurant, she can’t even go to McDonald’s. She can’t do anything,” he said.

Maybe the CNN story is a beginning for the media to take responsibility for their role in whipping up a public frenzy for a hanging.  I’m not holding my breath, though.  They still note with barely disguised astonishment that Anthony’s attorney Cheney Mason continues to believe that “…the jury got it right and the rest of the country got it wrong.”  As if that’s impossible.

Bottom line is, she might as well have been in prison for past three years.  She might as well have been convicted. 

I can’t improve upon my previous suggestions regarding the ‘wrongfully acquitted’ in a high profile case.  Give them a pile of money and they leave the country to live in obscurity somewhere else.  Their lives in this country are ruined, and the acquittal – obtained at enormous cost – can’t fix that.

Their lawyers should get a pile of money, too:

After that meeting…Mason decided to join the team pro bono. He said the unpaid time he spent on the case “was well over a million dollars” and cost him tens of thousands of dollars out-of-pocket.

but then who gives a damn about them?



Filed under Media incompetence/bias, wrongful convictions

27 responses to “Casey Anthony’s ‘Wrongful Acquittal’

  1. Agree. Just reading Jose Baez’ book. It’s eye opening, to say the least. Looking forward to Cheney Mason’s. The general public continues to be in denial of what really goes on, especially in high profile cases.

    Seems once the media draw first blood on a case, the public is addicted. And we all know addictions are hard to cure. Acknowledgment is the first step, so “they” say! But sadly, we’re a long way from that even.


  2. Kent

    Hours before the verdict came down I told a group I was with that the jury will find her not guilty on all counts except for the perjury. They all said I was nuts and I replied, “What proof is there that she committed any crime other than perjury?!” The jury certainly did get it right, the attorneys should have been widely hailed by the public, and there should have been a public apology by both the public and the media. Years later she is still in agony, both over her lost child and her lost life., but yet the media and public still can’t live with the real truth.


    • Meanwhile, although convictions seem to make everyone happy, we are increasingly learning that a lot of them are wrong:


    • You may disagree, but I didn’t believe the jury would come back with a guilty verdict in the Jodi Arias trial either. Though it may sound like there was a lot of hard “evidence”, in essence, there wasn’t. The palm print, as I understand it did not prove Jodi killed Travis, only that she was there, and when can also never be determined. The photos look very much like they’ve been photo shopped and manipulated in some way. No weapons were ever found. And on and on. OH wait, but she LIED. And she lied, at least when Juan Martinez says it, in a way no innocent person has ever lied before! And often! And then there was the photo of the gruesome and sad slice of Travis’ Alexander’s throat that Juan Martinez threw up “accidentally” a few times, and on purpose a few times to the jury. And on and on….But wait, did I mention, Jodi lied?


  3. Jessie

    Not to justify the media’s behavior in this case, but Florida does have extremely broad public records laws. For example, everything in discovery is automatically public. I support of broad public records laws, and even I think that’s going too far. So the press got a hold of all kinds of crap that was never evidence in the trial because it had no value. There was a whole parallel media narrative going on.

    And as badly as the media behaved, a lot of the public frenzy came from social media and individual websites — which, at least in theory, could have gotten hold of the discovery materials as easily as the press did. Media attention alone doesn’t seem to really whip up the mob the way media-attention-plus-Internet does.

    And a huge — I would say the definitive — factor is that the prosecution took place in this country. You’d be hard-pressed to name a high-profile trial in this country where a wide cross-section of the public believes in the defendant’s innocence. For that to happen, it has to be overseas. We have a desperate need to believe our own system works.

    Florida had far less evidence than they do in—well, I won’t go there. But it would have been difficult for Florida to have LESS evidence. At one point, they were prosecuting her for murder before they had a body. And they never did have a cause of death. I have no idea whether she killed the kid or not, but they had less than shit for evidence. I don’t see how they even had enough to bring charges against her.


    • Hi Jessie. Two things, just to augment your comment because I really don’t think you would disagree.

      I think saying you have ‘no idea’ goes a bit too far. There has to be a strong presumption against a mother killing her toddler, beyond even the presumption of innocence. A lot of evidence can overcome it, but as you point out here there really wasn’t any evidence. In that situation the presumption holds, and it can be stated with a fair amount of confidence that she didn’t kill her own child.

      Second, the system also works, of course, when it acquits, although too many people appear to believe otherwise.


      • Jessie

        I’ve staunchly refused to have an opinion about Casey Anthony’s guilt or innocence. Because for months, I couldn’t go anywhere without someone asking, apparently just to make sure I was on the same team. So my stock answer has been, “How the hell would I know?” It seemed the entire country had a religious level of certainty in their opinions about it, as if they were on a first-name basis with all the parties involved.

        But, statistically, if a toddler is dies by unlawful means, it’s most likely to be at the hands of a parent or step-parent. So, in that sense, no, there really isn’t a strong presumption at all against a mother killing a toddler — assuming the state could prove it was a non-accidental death, which was kind of tough when they didn’t even have a body.

        However, I’m not a juror, so I don’t have any obligation to presume innocence. I don’t see how they had enough evidence to charge her, but I don’t have any idea whether she did it or not. Those aren’t the same thing.

        I think it’s important to distinguish between legal and factual innocence. Failing to distinguish between them is what leads people to think that acquittals should only happen in the event of factual innocence. By contrast, I’m saying it doesn’t matter whether Casey Anthony killed her kid or not; acquittal was the right thing because they had no case against her. It’s very important to differentiate that from actually believing her innocent.


        • Actually, you’re right in a way. I keep forgetting that when the toddler winds up dead under suspicious circumstances there’s a likelihood that one of the parents is to blame. We have this case down in Georgia right now, for example.

          But, you know, “likelihood”.

          I guess the idea is a rebuttable presumption. And one idea behind legal presumptions is to pre-empt the natural tendency to the contrary. Thus the presumption of innocence is to counter the usual presumption that accusations are not made for no reason.

          What you have here are competing presumptions. The presumption that toddlers dying under suspicious circumstances implicates one or more parents versus the presumption that it’s highly unnatural for a mother to kill her child. Neither one of these is a legal presumption, so far as I know, but I think they are legitimate presumptions in terms of assessing evidence.

          Is it important to distinguish between legal and factual innocence? Yes, up to a point. The processes we have, though, are supposed to match the two up. When it doesn’t, it has failed in that purpose. When it fails in the direction of proclaiming the innocent guilty, though, the failure is catastrophic. Like the Challenger blowing up in mid air.

          But I think I could live with the proposition that not convicting the guilty is also a failure of sorts. As a practical matter, of course, that’s not really a problem. Convicting people is pretty easy to do.


          • Jessie

            Well, no, when a toddler dies under suspicious circumstances, it’s usually an accident. That’s the leading cause of death in that age group. When a toddler dies under unlawful circumstances, it’s usually the act of (or neglect by) the in-home caregiver, and usually that’s a parent or stepparent (few other people even have access to toddlers).

            Now, I admit, I’m not conversant in the minutiae of the Casey Anthony case. Because there was no minutiae. The entire case was:
            Parents killing their kids is common.
            Not calling for help is uncommon.
            The End. Guilt by tautology.

            There wasn’t even any evidence, let alone proof, to suggest how the kid might have died. So, sure, it could have been murder (because it could have been anything). But it is entirely possible it was a murder. Completely within the realm of plausibility. A garden-variety case, even.

            It’s just that none of that matters because the state had no case. Ergo, legal and factual innocence are two separate things. The defendant may be guilty, but if the state can’t prove it, factual guilt isn’t supposed to matter.

            Since I have no obligation to presume innocence, I’m agnostic on the guilt or innocence of Casey Anthony.


            • kent

              My thoughts is that the child died by accident and someone panicked, whether it was grandpa George or Casey or someone else. No evidence whatsoever the child was murdered, and I would think if the child was murdered and the body was found there would be SOME evidence of foul play.


              • Jessie

                By the time the little girl’s remains were found, there was nothing left but bones and hair. That gave investigators no means to determine a cause of death.

                So it’s actually worse than no evidence of murder — there wasn’t any evidence that a crime had been committed at all! If I recall correctly, she was charged with murder before the child’s remains were even found. That’s a major element of the crime missing to justify that charge. No body=no way to prove the alleged victim is even deceased, let alone murdered.

                Granted, finding the remains in the woods was very, very suspicious. It’s possible to explain that innocently; it’s difficult to do so plausibly. But it doesn’t matter. Without a body/cause of death, it’s impossible to prove a murder happened.

                I’m curious, John: If the little girl’s remains had not been found, would a judge have been virtually obligated to dismiss the murder charges? Let’s say I shoplift at a gas station and I get caught, and the prosecutor up and charges me with murder. No court would let that stand, would they? Would they even be allowed to let it stand?

                Or here, let’s make the example less ridiculous: I shoplift at a gas station in the middle of the night. I’m caught red-handed on the security cameras. But then the attendant on duty disappears that same night. No witnesses, no weapon or blood found, and no body found, though it can be proven the attendant was still in the store at the time I stole, but at no time afterwards. The cameras show him stepping away from counter looking calm….and then he just vanishes. The state charges me with murder. Could the court allow that to proceed when a definitive element of the crime — that a death occurred at all — cannot be proven?


              • Well, Jessie, in the first example if the only facts alleged are those that fit with shoplifting then the murder charge should be dismissed, but there are technical considerations involved. Any cause or case before a court has to be “commenced” by filing some sort of document with that court. If there was an indictment by a grand jury on a felony the indictment is filed. If it’s some lesser offense the prosecutor files what is called an “information” containing the necessary factual allegations and the charge. If the factual allegations don’t add up to the crime charged the information or indictment can be dismissed.

                In the second example, there have been cases where murder is charged and a conviction is obtained without a body. These would be highly circumstantial cases. I think in that Scott Peterson case out in California (remember the frenzy on that one?) he was charged with murder before they found the body.

                I guess the “proof” of homicide is that people don’t just vanish for no reason. If there is no other plausible explanation and they have you as the last person known to have seen the vanished person alive and there’s a motive they can build a pretty good circumstantial case.

                Of course they run the risk that they get their conviction and some day the supposedly murdered person surfaces. This winds up being pretty embarrassing. That has actually happened:



              • Jessie

                Well, of course, adults DO disappear all the time for no apparent reason, but I suppose I don’t need to tell you that. And I will grant the State of Florida that toddlers generally don’t disappear for no criminal reason.

                So what exactly is required for a criminal case to commence? How many elements of the charge have to be reasonably present for the court to agree to hear the case? Are there any rules about such things?

                I assume in my first example — I’m caught shoplifting and the state charges me with murder — that no court in the country would accept that case. It’s just too far afield of that the charge.

                But what’s to actually prevent it? How many elements of the crime does the state have to show they have reason to believe for the court to take that case?


              • I guess the bottom line is that in criminal cases there are almost no circumstances where dismissals before trial “on the merits” are authorized. Your first example would be one, where the accusatory instrument (information, indictment) was insufficient “on its face”. But the second one, assuming that all the elements of the crime are alleged, there might have to be a trial.

                This is quite unlike civil cases, where “summary judgment” is often granted to dismiss lawsuits brought by private individuals.

                A criminal case is commenced with the filing of an information or an indictment. If it alleges – even without evidentiary support – all the required elements of the crime charged you’ve got a very big problem, and no matter how bogus the case really is you might have to stand trial.

                The system relies on prosecutors not to pursue charges that plainly have no merit. This is an apparent mistake.


              • Jessie:

                Here’s a topical news story from north of the border:


                Thought that might interest you.


              • Jessie

                I was just about to post here and say thanks for always answering my questions, and here you have this link (**). That is interesting….I don’t know if I’m way off-base here, but it seems like a significant problem that a person can be charged with a crime without first establishing….let’s call them certain “definitional” elements of the crime (to distinguish it from the totality of what the state has to prove). For example, that a death occurred in order to bring a murder charge.

                I can understand why “proof of death” might not necessarily be bodily remains. Because what are “remains”? My blood in enough quantity would be proof that I must be dead. That seems to be the assertion in this Canadian case. (A person could lose a lot of blood without dying, but in enough quantity it would have to be definitive proof of death.) Finding chunks of my brain or heart would probably do the trick too.

                And I’m not talking about evidence here, but specific elements that define the what the crime is: To charge me with a drug crime, there must be an illicit drug. That’s not so clear anymore with designer drugs changing formulas faster than state and federal laws can keep up. There are people facing prison and civil forfeiture over substances that are not, technically, illegal — i. e., missing an element that defines what the crime is.

                Am I way off-base here? Is there some perfectly legitimate reason why it’s….in the interests of justice, let’s say….to be able to charge me with arson without needing to formally establish first that there was ever actually a fire?

                **BTW, thank you for always answering my questions 🙂


              • Well, you’re really asking a technical procedural question. At least I think you are.

                An accusatory instrument starts the criminal process ball rolling. It must contain allegations that add up to the crime charged, and that’s all. Assuming it is brought in good faith, the prosecutor must have some evidentiary basis to make the allegations, but depending on a number of things, such as his or her intelligence and/or diligence, the evidentiary basis may be weak or or even non-existent. I had a post a while back noting a prosecutor’s comment, in relation to a guy he’d convicted of killing his baby, that the guy “looked guilty” and “doctors cried” on the stand when testifying about it. These were such surpassingly stupid remarks that I thought he should have his license revoked, not that what I think matters.

                In any case, if it turns out there’s no reasonable evidentiary basis for the charges the prosecutor is supposed to drop them. If he doesn’t drop them, though, many judges would be of the view that at that point the matter must be tried.

                In a civil case, in the same circumstance, there’s a remedy called “summary judgment”, where a case can be dismissed without a trial, on the rationale that the civil case defendant – who is in reality almost every time an insurance company represented by a presigious firm – should not have to go through the strain and anxiety of defending itself when there’s no good basis for the claim.

                Criminal defendants have no such remedy. Not yet, anyway.


              • Jessie, just following up you might find this dissenting opinion by Justice Stevens illuminating:


                That case, Albright v. Oliver, is very troublesome for a lot of people. Especially me.


              • Jessie

                Well, no, that’s still not quite what I’m getting at, which really has nothing to do with whether the prosecutor is bringing the case in good faith nor whether the prosecutor can prove the case.

                It precedes that, and most of the time, it would be pretty obvious. We can safely assume that no prosecutor — even in bad faith — would bring arson charges and then not be able to prove that any fire happened at all.

                And, if I’m understanding you correctly, there doesn’t have to be proof of a fire, because we can safely assume that’s part of the prosecution’s case in virtually any circumstance. With murder, that’s obviously problematic, at least often enough to have a list on Wikipedia, but those are still probably a slim number of overall murder cases.

                Applying that same principle to drug cases, though, gets really sticky. To be clear, I’m getting at the difference between (a) the state having to prove that an illicit drug was possessed, sold, manufactured, etc. vs. (b) that an illicit drug was even involved to begin with.

                If, say, that drug is heroin, both sides are going to agree that heroin is a Schedule 1 drug. Whatever the defense is, it’s not going to be that heroin is legal.

                However, when it comes to synthetic drugs, that’s not clear. People are either making this stuff in their garage (like meth) or importing it from China (like bath salts). As soon as one formula becomes illegal, the manufacturers change formulas. They can do this faster than the law can keep up, so both state and federal courts are charging and convicting people over substances that are not, technically, illegal.

                If that point had to be accepted by the court before charges could even be filed, I don’t see how that could happen. It’s the only instance I can think of where it could possibly create such a widespread problem. I think most of us non-lawyers just assume that the most basic defining element of the crime has to be there for charges to even be filed, so the only question is whether the defendant did “it,” not whether “it” happened at all, by any means, criminal or otherwise.


              • Jessie, we may not be understanding each other correctly. But let me see if I can address your point anyway. Or at least one point. In the case of new drugs that might not exactly fit the formula of known controlled substances, the prosecution would preumably produce some lab technician or analyst or expert who would say that it’s heroin, or crack cocaine, or methamphetamine, or whatever. That would be the “proof”. If there were some issue about it, the defense would presumably produce its own expert to say that the substance was too different to be classified as whatever. Then the jury would resolve the issue.

                In favor of the prosecution.

                See, there are allegations and there is proof. Maybe you should read Miller v. Pate, 386 US 1 (1967) where a prosecutor produced a pair of blood stained shorts, obtained his murder conviction, and then it tuned out later that the “blood” was red paint and the prosecutor knew it.

                So I don’t agree that we can safely assume stuff. Anything can happen, unfortunately.


              • Jessie

                I’m sure the problem is that what I’m bringing up is, in a legal sense, idiotic. What’s happening in drug cases is actually worse. At the federal level, they’re prosecuted under the Analog Act, which is so vague it’s meaningless. Any drug that’s “substantially similar” to a Schedule 1 drug is, under this law, a Schedule 1 drug.

                The problem is obvious: Hundreds of legal substances are “substantially similar” to illegal ones. Painkillers are opiates. Cold medicine is so similar to amphetamines, it’s an ingredient of meth. So federal prosecutors pick and choose which drugs they go after. (Why is this not an FDA matter anyway? Isn’t that what we have them for? But I digress…)

                At the state level, it’s even worse. Let’s say the State of…Wherever You Live…seizes from you AM2201**, one of a zillion forms of synthetic pot. AM2201 is on the agenda in your state legislature, where it will unanimously sail onto the list of scheduled drugs. But they haven’t actually voted on it yet.

                States are just prosecuting it anyway — quite successfully, which I’m sure won’t surprise you — even though at the time you were caught with it, it was not illegal to possess it, under either state or federal law.

                Clearly, the state has a legitimate interest in regulating the ability of people to make drugs in their outhouses. But isn’t all this an enormous constitutional problem? And no one really cares because the drugs seem so much more dangerous. I would argue that they are not.

                Sorry to drug-jack the Casey Anthony thread. At least I’m not talking about Amanda Knox 🙂 But I do think a lot of the problems that you talk about in your blog were exacerbated by, if not created by, the Drug War. I guess I’m curious what you’re hoping lawyers will do about. So, what is the Lawyer Strike?

                **This is a bad example because AM2201 is actually federally scheduled now, but for a long time, it wasn’t. Work with me here…I wouldn’t touch these drugs with a 10-foot pole. But, like I said….isn’t this what the FDA is for??


              • I think you’re right about the pernicious side effects of the drug war. I suppose the states have a legitimate interest in curtailing drug use, too, but criminalizing might be a cure worse than the disease. After all, drugs weren’t illegal at all until about the 1930’s, and although it was a habit rightly frowned upon, there were actually people who functioned as (for example) heroin addicts, in addition to people who just collapsed in every way. Maybe the problem isn’t the addiction itself, but we needn’t go down that rabbit hole.

                I’m deeply concerned, both from a professional and personal standpoint, about the institutional failure of the legal profession. I marvel that I am apparently the only lawyer in the country who has figured out and proven that the Department of Justice minimizes or even justifies the deliberate use of perjury before Grand Juries, and idea that has been bouncing around and “confusing” the courts of the nation for over 20 years. There are law professors, federal public defenders, state public defenders, criminal defense specialists. How is it that none of them noticed before I did? That is a question that needs to be answered at some point. I don’t think the correct answers are easy, either to formulate or to hear.

                The Lawyer Strike. Well. Seems lawyers in the US don’t like the idea, or at least the lawyers that dominate the internet law blogs. I’ve never heard a counter-proposal, other than keep doing more of the same stuff we’ve been doing, but then the whole idea on every blog in the first place is that more of the same isn’t working nearly as well as it must.

                Of course this makes no sense. And lawyers not making sense is a serious problem, and not just for lawyers.

                The strike idea is that an especially unjust and wrongful ruling by a judge would prompt one against that judge. Give him something to worry about besides whether the police and district attorneys associations will endorse him. As it is now there is no countervailing worry to that one, and the systemic results are perfectly consistent with that state of affairs. So striking, or the threat of striking, might balance the scales a little.

                I know we don’t do perfect, in the legal profession or anywhere else. But simply imperfect is far, far superior to the reality of the criminal justice system, which has become extremely dysfunctional.

                I haven’t had any other meaningful thoughts about what lawyers, as a group, can do about these things.


          • Jessie

            I have a question for you, John, that really has nothing to do with Casey Anthony, but I don’t know where else to post it: How much good do character witnesses do at a criminal sentencing?

            If the defendant has been convicted, and people who know the convicted individual testify at sentencing that s/he is a good person and there are all of these reasons why the court should consider leniency in sentencing, does that ever work?

            Assume for the sake of simplicity that the court is not constricted by mandatory sentencing guidelines.


            • Does it ever work? Sure. Does it often work? No.

              It depends on the judge, and on a lot of other things.

              Is it worth a try? Definitely, even though it may make no difference, and depending how you calculate “worth”.

              Other than that it’s hard for me to give you an intelligible answer, if indeed this has been one.


              • Jessie

                Thanks. Yes, that was an intelligible answer 🙂 If you don’t mind my picking your brain a bit more on this….in what circumstances do you think character witnesses are helpful?

                Again, setting aside mandatory sentencing restrictions and, just to remove another wild card, let’s set aside the personal proclivities of the judge. Obviously, a judge who is more open to leniency in the first place is going to be more inclined to consider the testimony of character witnesses.

                But let’s say you’re the defense attorney. Your client wants to call these witnesses at sentencing, and the witnesses are agreeable to being called. Is there any reason you wouldn’t do it? What would you look for in those types of witnesses? Are you aiming to persuade the trial court judge or hoping that an appeals judge might notice that testimony down the road (or both)?

                The downside that comes to my mind is that you would have to prep each of those witnesses and that’s a lot of work for something that may have little or no benefit your client. But perhaps that’s not much of a consideration. It’s just the only reason I can think of not to bother with them, unless they have criminal records themselves or you have reason to think their testimony would be dishonest or harmful. Am I on the right track?


              • Well, as far as a lot of work with little chance of success, this is criminal defense in a nutshell in every aspect. If you are deterred by long odds and lots of work you can’t do criminal defense at all. Statistically speaking, your chances of winning an acquittal are always less than 10%, usually considerably less. Statistics aren’t all there is to it, of course. But it’s a reality you dare not ignore just the same.

                Are you on the right track? Absolutely. Indeed it’s important to recognize that almost anything you try to improve things also carries the risk that it could hurt. What if the character witnesses are unsavory themselves, or appear to be fine and upstanding but harbor some secret from the past that you can’t find out about but the prosecution can? A character witness can backfire, just like any other witness, and in criminal defense your witnesses are far more likely to backfire than your opponent’s.

                The client wants the witnesses called. So what? If the client knew what to do he wouldn’t need you. The client tends to be a poor judge of the quality of evidence, and this is especially true when the client is innocent, which of course is when the client most wants to proffer all the evidence of his innocence he can think of.

                Of course you wouldn’t refuse to call a witness because it’s a “bother”. When the outcome is poor – which in criminal defense it usually is – and the attorney hasn’t done this or that the client wanted him to do, the client often concludes that it’s because it was too much trouble. That’s almost never the reason.

                I’ve been fortunate to almost always get good outcomes in criminal defense, so these questions haven’t often arisen for me. They only arise when the outcome is poor.


  4. Jessie

    Speaking of public records law….this is why I’m reluctantly against cameras in courtrooms. I want to be for them. I’d love to see C-SPAN-like local stations that air what’s going on at the courthouse. It would be good for accountability — assuming anyone tuned in, and that’s the problem.

    Most court hearings are very dull. No one would watch those, even though it’s when, arguably, the most important stuff happens that we should be paying attention to. But cameras in courtrooms are used almost exclusively for high-drama portions of high-drama cases, watched largely by people outside the jurisdiction and threatening the integrity of the entire process.

    Until that changes (and I’m not holding my breath), I’m against cameras in courtrooms.


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