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07.05.11

Worse Than O.J.!

While the stunning Casey Anthony acquittal defied logic, O.J. Simpson prosecutor Marcia Clark details how juries often delude themselves—and why this verdict trumps even her case.

Sick, shaken, in disbelief. As I listened to the verdicts in the Casey Anthony case, acquitting her of the homicide of her baby girl, I relived what I felt back when court clerk Deirdre Robertson read the verdicts in the Simpson case.

But this case is different. The verdict is far more shocking. Why?

Because Casey Anthony was no celebrity. She never wowed the nation with her athletic prowess, shilled in countless car commercials, or entertained in film comedies. There were no racial issues, no violent Rodney King citywide riot just two years earlier.

Because of those factors, many predicted from the very start in the Simpson case—in fact, long before we even began to pick a jury—that it would be impossible to secure a conviction.

There was no such foreshadowing here, and few who predicted that a jury might completely acquit Casey Anthony of the killing of her daughter.

The trial itself, despite bumps and turns, never introduced any unexpected bombshells that blew up in the prosecution’s face (à la detective Mark Fuhrman’s racially charged interview tapes with a novelist). All things considered, it went pretty smoothly. Judge Belvin Perry was fantastic—a model of even-tempered, no-nonsense control who kept the flow of evidence orderly and succinct, and who never let the lawyers run amok. He even jailed and fined a spectator for acting up in court.

So there was no racist cop, no questions about evidence collection, and no endless cross-examination on irrelevancies like Colombian necklaces and drug cartels. And while there was significant media coverage before the trial, it didn’t come close to the storm that permeated the Simpson case for months prior to jury selection.

Gallery: The Trial's Photo Evidence
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The prosecution presented this photo (right) of Casey and Caylee, with the toddler wearing a 'Big Trouble Comes in Small Packages' T-shirt. The lettering (left) was significant to their case, as remnants of the same lettering were found near Caylee’s remains. (Joe Burbank, Orlando Sentinel, MCT via Getty Images)

As a matter of fact, the coverage we did see of the Casey Anthony case leaned heavily in favor of conviction. The photographs of a half-clothed Casey dancing in a Hot Body contest days after her daughter died, getting tattooed with the words “La Bella Vida” (Beautiful Life), Casey’s apparent celebration of freedom now that her baby was dead, the videotape of her spitting fury at her parents while in custody, and most important, her endless lies for a solid month about what had happened to her daughter.

Those lies were—most people agreed (myself included)—the proverbial noose around her neck. What mother sees that her child has drowned in the pool and not only fails to call 911, but then duct tapes her mouth and nose, hides the body in the trunk for days, and then dumps it in the woods? And then goes out to party and lies for a whopping 31 days about where the baby is? Who but a killer mother does that?

The defense had to come up with a plausible reason for that behavior. One that would persuade the jury that the death was accidental. One that would show the lies were not evidence that Casey was a psychopathic killer but would instead show that they were merely the irrational behavior of a troubled but ultimately innocent mother.

And so her lawyer, Jose Baez, came up with a shocker—the twist that ensured this case a primetime spot on cable, and occasionally network, television: He claimed that Casey Anthony’s despicably callous behavior in the wake of her baby’s death could be explained by the fact that she’d been molested by both her father and her brother.

I’m not so sure the logic follows. Even if it did, I never saw one shred of proof to back up the claim. Zilch.

We got a bit of innuendo in one brief reference to the fact that the FBI gave paternity tests to both brother and father—the intended point being that Casey had made the molestation claims early on. But with no evidence as to when those tests were performed, the intended implication was all but lost. Certainly, it was too weak to support Baez’s claim.

In the end, after all the incendiary bluster of his opening statement, Baez never even tried to sell that story in any real way. (And there was a chance he could have: If the judge allows it, an attorney can put on a psychologist to give a general discussion of child abuse accommodation syndrome, even if he doesn’t claim the defendant on trial suffers from the syndrome.)

Nor did the defense make any serious inroads on the prosecution’s physical evidence.

After the verdict was read in the Simpson case, as the jury was leaving, one of them, I was later told, said: “We think he probably did it. We just didn’t think they proved it beyond a reasonable doubt.”

But then again, it didn’t need to. Because this case wasn’t really about the physical evidence. Caylee’s body was too decomposed to offer much information. Cause of death was undetermined. All the coroner could say was that it was a homicide, but that conclusion wasn’t based on science so much as logic: The body was found wrapped in plastic bags and dumped in the woods. In fact, the most compelling aspect of the medical examiner’s testimony (who was, by the way, a great witness) was not medical but merely logical: that when a baby drowns—and she said that’s a common cause of death for babies—the mother or father calls 911 every single time; and if the baby had merely died accidentally, then why put duct tape over the baby’s face?

Video screenshot

So it was a circumstantial case. Most cases are. But the circumstances were compelling. Maybe not sufficient to prove premeditated murder—and I never believed the jury would approve the death penalty—but certainly enough to find Casey Anthony guilty of manslaughter at the very least.

Why didn’t they? My guess, since I’m writing this before the inevitable juror cameos, is that the jury didn’t necessarily believe Casey was innocent but weren’t convinced enough of her guilt to bring in a conviction. The thinking goes something like this: Sure, Casey’s behavior after her daughter's death looks bad—dancing, partying, lying—but that doesn’t mean she killed the baby. Sure, that duct tape was weird, but that could’ve been done after the baby was already dead—no way to know who or when that tape was put on the baby’s face. Sure, the chloroform computer search seems damning, but that may not even have been done by Casey (her mom took the fall for that one).

And so, every bit of evidence presented by the prosecution could’ve been tinged with doubt. At the end of the day, the jury might have found that they just couldn’t convict her based on evidence that was reconcilable with an innocent explanation—even if the weight of logic favored the guilty one.

Jury instructions are so numerous and complex, it’s a wonder jurors ever wade through them. And so it should come as no surprise that they can sometimes get stuck along the way. The instruction on circumstantial evidence is confusing even to lawyers. And reasonable doubt? That’s the hardest, most elusive one of all. And I think it’s where even the most fair-minded jurors can get derailed.

How? By confusing reasonable doubt with a reason to doubt. Some believe that thinking was in play in the Simpson case. After the verdict was read in the Simpson case, as the jury was leaving, one of them, I was later told, said: “We think he probably did it. We just didn’t think they proved it beyond a reasonable doubt.” In every case, a defense attorney will do his or her best to give the jury a reason to doubt. "Some other dude did it," or "some other dude threatened him." But those reasons don’t necessarily equate with a reasonable doubt. A reason does not equal reasonable. Sometimes, that distinction can get lost.

In Scotland, they have three verdicts: guilty, not guilty, and not proven. It’s one way of showing that even if the jury didn’t believe the evidence amounted to proof beyond a reasonable doubt, it didn’t find the defendant innocent either. There’s a difference. And maybe that’s what today’s not-guilty verdict really meant. Not innocent. Just not proven. The jurors will eventually speak out and tell us.

Meanwhile, although I must accept their verdict, I don’t have to agree with it. Because I did follow this case, and I have to be honest: If I’d been in that jury room, the vote would’ve been 11 to 1. Forever.