Little Caylee, Little Justice!

What went wrong?

Or did it?

While I discuss this travesty, reflect on why I believe our Courts of Justice are more appropriately characterized as Conflict Resolution Centers.

The travesty I refer to is not that Casey Anthony was acquitted. It was the correct decision for the correct reason. The travesty is that the general public was misled as to the purpose of the trial. Because of this misperception the public outrage was misguided and misdirected.

Before I continue, a caveat: I did not watch the entire trial. Consequently, I don’t know all of the evidence. But I do know the evidence, or lack of evidence, that buttresses my position.

Invariably, people who watched the trial wanted justice for Caylee. And when Casey was acquitted, there was outrage, anger. But justice for Caylee would, at most, be a consequence of a guilty verdict.

The reason for the trial was to hold Casey Anthony responsible for her daughter’s death. But if the trial was a search for the truth, then all must abide by the rules that guide the litigants in their pursuit of justice.

Some of these rules pertain to the presumption of innocence, the burden of proof and evaluation of witness testimony. To better understand the process, it helps to demystify the trial and application of these rules. There are basically three distinct parts to a trial. Jury selection, or “ voir dire” (meaning to speak the truth), allows the attorneys to question each prospective juror in an affort to find bases to have the judge remove an unfavorable juror due to state of mind (“I can’t presume someone charged with killing their child as innocent”)or, by statute, is unable to serve ( a convicted felon). Voir dire also allows the attorneys to properly exercise peremptory challenges ( no requirement that the attorney identify the reason for striking the juror ). At the conclusion of voir dire, the jury is empanelled to hear the evidence.

The next phase-trial-permits each side to present opening statements (what the attorney’s evidence expects to establish-with the observation that a criminal defendant need not present evidence since the defendant is presumed innocent ) followed by the calling of witnesses, beginning with the prosecution. At the conclusion of all the evidence (the prosecution leads with its case-in-chief; then the defense, if it chooses, presents its case-in-chief, followed by the prosecution’s rebuttal and the defense surrebuttal ) and the trial phase ends with final arguments based on the evidence and the agreed-upon law.

The last phase- jury deliberation- occurs during  an indeterminate length of discussion after receiving jury instructions from the judge, which each attorney had reviewed and either  accepted or rejected.

If it can be argued there was a miscarriage of justice, then the blame must be placed at the feet of the prosecutors. Why? Because they chose which charges and evidence to present to the jury. They framed their “ theory ” (legal argument) as murder and lying to the police and their “theme” (factual argument) as “ mother love “ versus “ party girl”.

As an aside, if you watch any criminal trials,  you will often hear the prosecution couch their theme in everyday, common emotions ( greed, love, hate ) that everyone understands. Simple to digest.

The defense, in a stunning revelation, identified their theory as Caylee accidentally drowned, but her death was covered up. In laying out his theory, the defense stated that Casey had been sexually abused. I say this was a stunning disclosure because as a criminal defense attorney for 32 years, I don’t recall ever giving an opening statement that I was not absolutely certain I had the evidence to support it, including having prepared the defendant to testify in his defense.

Why is this so important? Because when you make an opening as the defense did, you do a couple of things you should only do with great caution. First, you assume a burden of proof you don’t have.

Second, you give the prosecution an opportunity to attack the defendant in final argument. Ordinarily, a prosecutor can’t attack the defendant in final argument  because of the presumption of innocence. Now the prosecutor can challenge the defendant’s version of what happened and, in the process, cover up or gloss over the weaknesses in their case. In effect, shift the burden by claiming the defense did not prove what it alleged in its opening statement

So, what went wrong? It certainly was not the fault of the jury. Many legal pundits are quick to blame the jury, unless the verdict is as the pundits believe it should be.  However, this was a consciencious jury that followed the law. It has been disclosed that the jury foreman, alone,  took over 400 pages of notes.

It’s not the judge’s fault. Rarely does a judge inject himself/herself into a trial regarding presenting evidence without an attorney’s objection or invitation. They are loathe to intrude in the area of “ trial strategy.”

It’s not the defense attorney’s fault. He presented an opening that was, supposedly, based on good faith (i.e. he believed the evidence permitted this interpretation).

The fault must lie with the prosecution because, from my perspective, the prosecutors went out on a limb in presenting evidence from an expert that had never been peer-reviewed by others in that field ( odor detected in the car trunk ) to establish Caylee was in the trunk, decomposing. Without peer review, the opinion has not been tested to establish the expert’s credibility. Undoubtedly, the jury was instructed they could consider the expert’s education, the bases for his opinion, what he relied on in drawing his opinion, etc.  

But the most inexcusable mistake must have occurred in the defense’s final argument. Without any evidence in the record, the prosecution allowed the defense to argue that Caylee accidentally drowned. Before final arguments, the judge ruled that the defense could not comment on Casey having been sexually abused. Why? Because no evidence existed in the record. You cannot argue facts outside the record, unless opposing counsel doesn’t object and you can defend your position as grounded in good faith.

Even if the prosecution had not moved before arguments to restrict the defense’s reliance on accidental drowning, they could have objected during final argument that counsel was arguing facts outside the record. Had they objected,  I believe the judge would have sustained the objection and prevented counsel from relying on this argument.

There was no justice for Caylee in the jury’s verdict. Nor will there be. Nobody else will be charged with her death, intentional or otherwise. There was only resolution of a conflict. The prosecution said that Casey killed her daughter; the jury’s verdict said otherwise.

Based on the evidence presented by the prosecutors-and the argument the defense was allowed to make-the jury reached the correct verdicts for the correct reasons. But this begs the question: Where is justice for a little girl who left this world in a garbage bag and may be remembered as a footnote to a controversial  trial?

Little Caylee, little justice!