It is shaping up as a long, hot summer for prosecutors and cable-television pundits. First came last week’s collapse of the chambermaid rape case against French financier Dominique Strauss-Kahn (and the resulting public humiliation of Manhattan District Attorney Cyrus Vance Jr.), and now Tuesday’s astonishing acquittal of Florida party girl Casey Anthony in the death of her 2-year-old daughter, Caylee.
In both cases, the accused was pilloried in the court of public opinion—instantly adjudicated guilty by reality-show righteousness and tabloid justice even before the evidence was in and the jury was out—only to be let off by the legal system.
SiriusXM radio host Judith Regan—the famed former publisher who interviewed accused murderer O.J. Simpson for a controversial (and canceled) television special and quasi-confessional book titled If I Did It—chalks up the shortcomings in the criminal-justice system to profound flaws in human nature.
“There is vast incompetence everywhere, and a rush to judgment by the media,” Regan said, “which is piling on with the arrest and humiliation, the perp walk, all of it very premature and unfair, especially if you have a high profile. This is America, and you’re supposed to be innocent until proven guilty.”
Regan, who has been publicly skeptical about the case against Strauss-Kahn since the beginning, said she recently was called, but not picked, to serve on a jury in a murder trial, and was deeply disheartened by what she saw.
“The judge interviewed 300 prospective jurors, and I cannot tell you how many stupid people there were,” she told me. “The judge spent an hour and a half explaining the concept of impartiality, and then people said things like ‘I can read his face, your honor, and I know he’s guilty’ and ‘I can just tell by looking at him.’ We are an attention-deficit nation, and we have dumbed ourselves down so much that people don’t understand the simplest of things.”
Regarding the Casey Anthony verdict, Regan said, “I’m not surprised. I expected it.” She speculated the jurors’ reasoning went as follows: “They looked at her and thought she was cute and they didn’t want her to get the death penalty. They couldn’t figure things out, so they just decided to say not guilty because they probably didn’t feel the prosecution had proven it—the ‘reasonable doubt’ thing. I, however, have no reasonable doubt that this woman was an atrocious criminal mother who is responsible for the death of her child.”
While the DSK developments might be easier to swallow, given the dubious background and behavior of his accuser, Tuesday’s Anthony verdict rocked the jurisprudential establishment. After the verdict was live-streamed on cable and the web—with the pretty, 25-year-old defendant convicted only of lying to the cops after skating on first-degree murder, manslaughter, and aggravated child abuse charges—I talked to a variety of courtroom observers and practitioners. Depending on which expert witness was testifying, this summer’s narrative of American justice is either cause for alarm (the majority view) or grounds for celebration.
Only prominent jury-selection consultant Joshua Dubin, a former trial lawyer who now works exclusively with defendants, was completely satisfied with Tuesday’s outcome.
“This case is good for the criminal-justice system and here’s why: if people actually read the jury instructions about reasonable doubt, there would be a lot more acquittals,” Dubin told me. “What this verdict does is demonstrate that unless the prosecution is able to show us how, why, when, and where the crime was committed, a jury is not going reach a decision that could end up sending a defendant to his death. My initial reaction is that 12 men and women in a very high-profile case came up with a courageous verdict.
More common was the reaction of veteran New York Supreme Court judge and writer Edwin Torres, whose popular crime novels such as Carlito’s Way have been adapted into feature films starring Nick Nolte, Sean Penn, and Al Pacino.
“Holy shit! I’m in shock—I can’t believe this!” Torres exclaimed when I informed him of the Anthony verdict. He added that while the direct evidence was slim (especially a lack of forensic material such as DNA and fingerprints), the circumstantial case against Caylee’s mom was strong: her constant lies and evasions; her hard-partying weeks after the little girl’s disappearance; the suspicious provenance of duct tape discovered on the mouth and nose of Caylee’s decomposing skull; the “death smell” of the defendant’s car trunk; and the disposal of the body, wrapped in a garbage bag, in a swamp near the Anthony home.
“Juries usually prefer circumstantial evidence to direct evidence,” the judge said. “This should have been a slam-dunk.”
But juries are notoriously unpredictable and occasionally irrational. Torres recalled presiding over a double-murder case in which the handsome, charming defendant—a bouncer at a brothel—was accused of shooting two prostitutes to death and stealing cash from the establishment before fleeing out of state. Despite eyewitness testimony by his girlfriend, who drove him to the airport, the madam who witnessed the crime, and a john who heard the commotion, the jury believed the defendant’s testimony that the murders were committed by unidentified Mafiosi who robbed the brothel—and found him not guilty.
Torres was outraged by the acquittal, and was hardly mollified when, a day later, the female foreperson and an older male juror visited his chambers to explain the verdict. “The woman said, ‘I’d rather run into [the defendant] in a dark alley than that dirty whore’—referring to the madam. And the old man told me, ‘Your Honor, I wanted to hold out for guilty, but it was already getting to be 4 o’clock.’ ”
Former Westchester County judge and district attorney Jeanine Pirro was equally appalled. “I have two words to describe my reaction: ‘shocked’ and ‘speechless,’” said Pirro, who sat in the Orlando courtroom as a Fox News host and commentator through most of the six-week trial. “When a jury returns such a curious verdict, it points up the national obsession we have with CSI and DNA, and I think it has destroyed our ability to employ common sense. The use of circumstantial evidence in this age of technology is becoming more and more questionable. But what happened to Caylee? Did she get justice? I almost feel like I’m living in the twilight zone. The bottom line is that the mother was not held accountable in any way, shape, or form.”
Even star criminal-defense attorney Gerald Shargel, a Daily Beast contributor, was taken aback by Tuesday’s verdict, which the jury reached after a mere 11 hours of deliberation. “From a distance,” he said, “no sense can be made of it.”