- The Washington Times - Friday, July 8, 2011


Rarely has a criminal trial and its verdict broken so many hearts or showered so much abuse on everyone connected to a case. The jury that found Casey Anthony “not guilty” of killing her beautiful little daughter seems to have invited calumny from nearly everybody.

Caylee Anthony, who would have been 3 next month, was the picture of perfect innocence, her unlived life taken away by a villain unmoved by the decencies and instincts that guide the rest of us - rich, poor, male, female, bright, slow-witted and everyone else. Most of the abuse is aimed at the Florida jury. How could 12 good men and true (plus women, too) have been so dense, so unfeeling, so indifferent to “justice for little Caylee”?

The jury could have made a dreadful mistake. Juries sometimes do that. Only God (and maybe a few ambitious prosecutors) knows how many innocent men have gone to the gallows, the firing squad or the electric chair, or have ridden the poisoned needle to eternity. But it’s possible, if not probable, that such outrage is misplaced. If those who feed such public outrage - prosecutors, lawyers, reporters and above all those charged with editing news accounts in newspapers and television broadcasts - would do a better job of educating as well as commentating, the public could be more selective, and thus more effective, with its outrage.

So what happened to the case against Casey Anthony, by all accounts a young woman whose airy head was filled only with cotton, hay and straw so as not to interfere with her mindless pursuit of pleasure? Nothing out of the ordinary: The jurors waited for the prosecution to present the evidence that she was guilty, guilty beyond a reasonable doubt, and the prosecutors never quite did. They apparently thought the crime was so heinous, the circumstances so obvious to a sympathetic juror eager to avenge a horrific crime against a little girl, that proving the case was not even necessary.

“A criminal trial is neither a whodunit, nor a multiple-choice test,” said Alan Dershowitz, the Harvard law professor and sometime attorney for high-profile defendants who can afford him, in the Wall Street Journal. “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 a [person] of being the perpetrator of a dastardly act against a victim. The state must prove that accusation by admissible evidence beyond a reasonable doubt.”

That’s the high standard lawyers have held to since the founding of the republic. The public has lately become so addicted to “reality” shows that it expects real life to conform to the structure of events marching across the little screen in the corner of the living room. First the murder, then the arrest, then the trial, and three minutes after the last commercial break we get the verdict. An acquittal is invariably followed by a celebration of a finding of “innocent.” In real life, the newspapers and television newscasts usually call it that.

But juries in America can’t render verdicts of “innocent” because the law does not empower juries to render such verdicts. “Not guilty” does not mean “innocent,” and newspapers, for example, were once meticulous in preserving this distinction. “Innocent” is two spaces shorter than “not guilty” and thus a great boon to headline writers, who on deadline regard even one space as a jewel beyond price. (I’ve been there myself.) Thus a precious distinction died.

Casey Anthony was found not guilty, but hardly innocent. This is the distinction that, though often misunderstood, is the bulwark, rampart and glory of the Anglo-Saxon law that was successfully implanted on these shores. Marcia Clark, the lead prosecutor in California v. O.J. Simpson, learned to her considerable pain something about a failed prosecution. She thinks the failure of the prosecution of Casey Anthony is similar to what happened in the trial of O.J. Simpson: “The jury didn’t necessarily believe Casey was innocent, but weren’t convinced enough of her guilt to bring in a conviction.”

Because television’s reality shows nearly always solve the crime, there’s keen disappointment when a jury returns a verdict of not guilty. But media “reality” is not always real life. A criminal trial is not a search for truth, nor even for justice for the victim, no matter how much we crave to see that justice done and a bad guy dispatched for punishment. “A criminal trial,” observes Prof. Dershowitz, “searches only for proof beyond a reasonable doubt.” May it ever be thus.

Wesley Pruden is editor emeritus of The Washington Times.

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