Casey Anthony's Guilt Not Proved

Friday, 08 Jul 2011 08:52 AM

By Alan Dershowitz

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What is the function of a criminal trial? That profound question has been raised by the recent acquittal of Casey Anthony and the crumbling of the case against Dominique Strauss-Kahn.

“This case [is] about seeking justice for Caylee . . .” So argued the prosecutor in the Casey Anthony murder case. He was wrong, and the jury understood that. A criminal trial is never about seeking justice for the victim. If it were, there could be only one verdict: guilty. That’s because only one person is on trial in a criminal case, and if that one person is acquitted, then by definition there can be no justice for the victim in that trial.

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 this 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.

For thousands of years, western society has insisted that it is better for ten guilty defendants to go free than for one innocent defendant to be wrongly convicted.

That is why a criminal trial is not “a search for truth.” Scientists search for truth. Philosophers search for morality. A criminal trial searches for only one result: proof beyond a reasonable doubt.

A civil trial, on the other hand, seeks justice for the victim. In such a case, the victim sues the alleged perpetrator and need only prove liability by a mere preponderance of the evidence. In other words if it is more likely than not that a defendant was the killer, he is found liable, though he cannot be found guilty on that lesser standard.

That is why it was perfectly rational, though difficult for many to understand, for a civil jury to have found O.J. Simpson liable to his alleged victim, after a criminal jury had found him not guilty of his murder. It is certainly possible that if the estate of Caylee Anthony were to sue to Casey Anthony civilly, a Florida jury might find liability.

Casey Anthony was not found “innocent” of her daughter’s murder, as many commentators seem to believe. She was found “not guilty.” And therein lies much of the misunderstanding about the Anthony verdict. This misunderstanding is exaercabetat by the pervasiveness of tv shows about criminal cases. On television, and in the movies, crimes are always solved. Nothing is left uncertain.

By the end, the viewer knows whodunit. In real life, on the other hand, many murders remain unsolved, and even some that are “solved” to the satisfaction of the police and prosecutors lack sufficient evidence to result in a conviction. The Scottish verdict “not proven” reflects this reality more accurately than its American counterpart “not guilty.”

Because many American murder cases, such as the Casey Anthony trial, are shown on television, they sometimes appear to the public as if they were reality television shows. There is great disappointment, therefore, when the result is a not guilty verdict.

On the old "Perry Mason" show, the fictional defense lawyer would not only get his client acquitted but he would prove who actually committed the murder. Not so in real life.

The verdict in the Casey Anthony case reflected the lack of forensic evidence and heavy reliance on circumstantial inferences. There was no evidence of a cause of death, the time of death or the circumstances surrounding the actual death of this young girl.

There was sufficient circumstantial evidence from which the jury could have inferred homicide. But a reasonable jury could also have rejected that conclusion, as this jury apparently did. There are hundreds of defendants now in prison, some even on death row, based on less persuasive evidence than was presented in this case.

Juries are not computers. They are composed of human beings who evaluate evidence differently. The prosecutors in this case did the best they could with the evidence they had, though I believe they made a serious mistake in charging Casey Anthony with capital murder and in overtrying the case by introducing questionable evidence such as that relating to the “smell of death.”

The defense also made mistakes, particularly by accusing Casey’s father of sexually abusing her. That sounds like the kind of abuse excuse offered to justify a crime. But a criminal trial is not about who is the better lawyer. It is about the evidence and the evidence, in this case left a reasonable doubt in the mind of all of the jurors. The system worked in the Casey Anthony case.

It also seems to be working, if a bit late, in the Dominique Strauss-Kahn case, where the issue is not whether the defendant did or did not rape the unnamed hotel worker, but whether the evidence is sufficient to warrant a criminal trial.

Based on the accuser’s history of lying — even about alleged rape — the answer seems clear. That is why the charged will almost certainly be dismissed, following an earlier rush to judgment by the prosecutor, the media and the public.

Would a dismissal be just or a truthful reflection of what actually happened? I don’t know. What I do know is that it would be the legally correct result.


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