Thursday, June 23, 2011

On Liberty...and prosecutors

Behold this axiom of our American justice system:
"Better 10 Guilty Men Go Free than to Convict a Single Innocent Man."

Now, many folks today use this as logic why we should not profile at airports or road checkpoint stops, etc., but I want to apply it to a specific process, one that it was originally intended to address: a courtroom, a trial -- the proper context for it (as opposed to profiling people for safety against terrorism, where no conviction is even a possibility at that point, just a way to look at certain people in more depth who fit the profiles).

I believe this was one of the BIG things our founders believed in; therefore, I have always tried to believe in it as well. It has its seminal roots in Blackstone, which is a cornerstone of our legal system. It is why we make a prosecutor prove a case beyond reasonable doubt in order to convict. And I further believe that we all need to remember this, especially those of us chosen to sit on trial juries of our peers, but also those of us watching trials and rendering judgments in the marketplace of culture.

Once, back in 1978, I sat on a capital murder trial jury. I admit, I did not want to be chosen, but I was. A baby had been beaten to a point where it had developed abdominal peritonitis and had died. The boyfriend of the mother was on trial for the murder. But, as testimony later showed, during the time period that the baby was supposed to have incurred the fatal injury (because untreated peritonitis causes a slow, painful death), several members of the mother's family had custody and were alone with the baby.

Another thing about peritonitis in a baby: the pain and sickness causes a baby to be a pain in the ass. It cries and cries, screams in pain, and never quits. I'm sorry you have to read this, but you do need to know the picture painted to the jury. It was, needless to say, an agonizing job we all endured just listening to the testimony.

When it came time to deliberate is when I learned the hard way about this axiom of legal justice. It was explained to us ad nauseum throughout the trial that this was a case entirely based almost completely upon circumstantial evidence. This basically means in practice that all evidence other than direct eyewitness testimony of the crime is indeed circumstantial, and that the way the jury navigates this is to logic out what happened using the evidence. But also given equal weight is where another result can be equally inferred using logic and the evidence. And in the end, somehow, we must arrive at a conclusion beyond reasonable doubt in order to convict.

This is where I found myself as a juror in deliberation. Sure, I could clearly see where this boyfriend, left to babysit, could have gotten ticked off at this baby and hit it. But I could also see some other scenarios involving other family members alone with the child that could yield the same result, and the prosecution never helped me dispel the likelihood of those happening with the same odds.

In other words, it began to look increasingly to me that they picked the person to indict who was the easiest in their minds of convicting. Especially when the mother was given immunity to testify against the boyfriend, thereby shielding herself from accusation, and by omission of her own testimony, her family from being accused of similar guilt.

Which was a problem, because they did not have any evidence against the boyfriend, other than he was one of several alone with the baby during the critical period of probably injury. So, my friends, as much as that baby's injury and death sickened me, I hung that jury. And it was because the prosecution had not proven its case against this one person.

Because I was sequestered and admonished not to read or see news about this, I did not know that the press was saying the same thing about this boyfriend being railroaded just to get a conviction. So while that later made me feel a bit better, I am here to tell you that it is a very hard thing to hang a jury, meaning that if it truly be your conviction to force the prosecution to prove a case, you had better cling to that tightly because you will need impressive strength. The likelihood is great that other jurors are going to be prone to just believing whatever the prosecution asserts. Getting the job done and going home is a huge motivator.

For 5 days, the other jurors went through all kinds of nasty behavior because of my stubbornness. If you have ever seen the 1957 movie Twelve Angry Men, then you might remember Henry Fonda, Juror #8. Honeys, I know know know what his character went through. There was even another juror who could have been Lee J. Cobb's disgusting character, Juror #3. If you have not ever seen this movie, I can also tell you that it is one of the most accurate depictions of what it is like to be on a jury where you are the only one to believe in the above axiom throughout. Even down to the immense sweating...

I was angrily insulted, shunned, patronized like a child, for the first 3 days...whatever anyone else thought would change my mind to the majority. But beginning on Day 4, a few others spoke up that they had begun to see what I was saying, and it was later said that my backbone and clarity of thought gave them the courage to see it as well. Without that and the time it took for some to actually think on their own, they had been just agreeing with the status quo: the prosecution's charge and then the outspoken bossy jurors who wanted to obey the prosecution and go home pronto.

During the trial, I kept a diary of it. In it, I wrote down all the names -- the accused, the mother, the other family members, the prosecution team, the defense team, the judge, the witnesses, the jurors. And I even added to this diary in the years following the trial. After the trial, I would refer back to this diary as I read news about people that triggered my memories of those names.

About 4 years later, I noticed a news story about a man who was charged with the exact same crime, except this time, the poor baby was his own child. I looked back at my diary, and the accused turned out to be the mother's brother, who was one of the family members in my trial who was alone with the baby. This time, there was no immunity and family members came forward to testify that they witnessed a beating of the child that experts then testified was such that could and probably did cause the fatal injury. There were also 3rd parties who witnessed it (and this time, the family took the baby to the hospital immediately, not weeks later). It came out that this brother had a long history of violent erratic behavior. The boyfriend? Long gone from this family.

If I ever needed to see justification that I'd done the right thing, this probably would qualify. But, in fact, I never really needed it. I had no sleepless nights over it. I never once questioned what I'd done, and that is huge, for I tend to devil's advocate most everything. To me, to my own little mind, I knew I had done what was right. I knew I had used what tiny power I had as a citizen to honor the principles we were founded upon. And, I always felt like I'd do it again if I had to.

So, why am I talking about this now? Well, it is all flooding back to me these days, whenever the Casey Anthony trial is on TV. Let me just say this: I do not think much at all of Casey Anthony as a person. Casey is a proven liar and a spoiled brat of a daughter. She is 2 years older than my own daughter, and so my sympathies go often to her parents, who, although they had a hand in creating this diva, also had to deal with the Frankenstein they created. And my heart cries for that sweet little Caylee.

But I find myself increasingly concluding that Casey's murder trial is another case of the prosecution not adequately proving its case for the specific charge of first degree murder. Further, the media has convicted Casey based upon her despicable personality and her abhorrent behavior in other areas that are not what she is accused of here. IOW, it's like, she had to have killed this child knowingly and premeditatively because she is a slut, a bitch, a liar, a cheat, a thief and hopelessly insensitive.

Believe me, I'd love to know that she indeed did as she is charged. But, my mind goes forward to the jury deliberation room, as I know firsthand what that is like. And my first question is, just what is she charged doing specifically, exactly? The prosecution says, she did it, but they cannot tell you how, or when, or why, or where. In my mind, there is a hug hole in this case where an accidental death can easily sit. Why didn't the prosecution go for that lesser charge? Maybe it is because they wouldn't even be able to prove that, so they went for broke. At any rate, there is just too much here that is unresolved, unprovable, and open to reasonable doubt.

Had the state kept first degree murder out of it, I could go there. The probability is about equal to lightning striking that there was a kidnapper or Zanny the Nanny. I think they have proven that whatever befell Caylee, it was directly or indirectly at Casey's hand or in her custody. But, they have never proven that she was a bad mother. In fact, there has been much testimony directly or indirectly addressed that proves otherwise. So, I keep asking myself, why would a proven loving mother suddenly and knowingly and premeditatively kill her child? And has the prosecution proven that?

I think a lot of folks out there trying this case in emails, on their blogs, on Facebook, in chat rooms and forums do not let themselves accept is that Casey was an attentive, loving mother who never once put her child in any testifiable harm prior to the death. That's the testimony that a juror must accept. And so should we out here in Public Opinion Land. Could she have accidentally killed Caylee by over-chloroforming her in order to see a boyfriend who banned Caylee from his home? Yep, definitely. And here is where my logical mind rests most of the time. This is what I think probably happened. The testimony is there to back this up as one logical conclusion.

Lord knows why the defense brought up accidental drowning, and I do have a rough theory developing in my mind, but feel compelled to assert that because we are not given a proved case, we in PO Land must now delve into alternate theories as to what happened. And that is the prosecution's fault. So, shall we?
Of course, one such theory IS the prosecution's, that she decided one day to finally be rid of Caylee for good and killed her, probably with the chloroform (although, again, we have no cause of death, just chloroform residue found in the trunk and Caylee's remains that no longer give medical examiners the proper clues).  I'll not get into this theory further, as it is being played out as we speak and they can prosecute from her to eternity, but as I've said, their case is missing some key elements that lacks proof beyond reasonable doubt, in part because they have gone for broke as to the charge.
Another theory is the theory the defense described in opening statements, that Caylee accidentally drowned in the pool, and that her grandfather helped to dispose of the body. I find this HIGHLY improbable, as George Anthony is a cop. And again, having gotten to know both George and Cindy Anthony enough by their statements prior to the trial, there is no way that had George been somehow persuaded to cooperate in this, Cindy never would. And the two are still together like glue. Nope, doesn't pass the smell test, just like the abuse accusation.
The prosecution's chloroform scenario brings up a third theory. This is the one I am inclined to believe more than any other. Casey, told by her boyfriend (who had a picture of a girl with a caption that read "Win her over with Chloroform", on his myspace profile) that Caylee was banned from his home, began chloroforming Caylee and would leave her to sleep it off in the car trunk while she visited the boyfriend. This, to me, reconciles two important things I cannot otherwise dismiss: that she was basically a good enough mother that she would never be able to willingly murder Caylee in cold blood, and this also sounds plausible as to why she would leave the child's body in the trunk long enough for it to decompose and smell.
Think about it: Casey is messed up in the head, to be sure. I'm thinking she could easily see chloroforming as simply medicating. She researched it on the computer thoroughly, and the boyfriend was an advocate of it. Perhaps he'd even given it to Casey before, and she lived. Hey, some people would find that proof that chloroforming can be controlled. There is no accounting for taste and intelligence.
Now, think about it again. If she'd meant to KILL Caylee with chloroform, as the state asserts, she could have found out the right amount just by asking the boyfriend. She could have also have given the child a humongous dose as well. Why do 84 searches for chloroform? find how much one could give a child of a certain weight in order to NOT kill her? Bingo!
So, if you are still with me, think about if you had medicated your child that you do indeed love, and she died? Do not focus on what dumbass would have done this to begin with! Would you not be in a state of shock, no matter how stupid or selfish or immature you were? I propose that she was struck dumb by fear and remorse and shock, but selfish and scheming to the end. She needed time to think, what to do, what to do.
Casey is, to put it nicely, a grand schemer. Her lies have shown that she goes big and then doubles down. In fact, some of the lies that she has been shown to tell are what I grew up calling "super whoppers", yet people in her life often believed them. In fact, many a liar and many a philosopher as well has reflected upon the irony that the bigger the lie, the bigger the acceptance of the lie. So, she thinks up kidnapping and Zanny the Nanny was born. Casey struggles to let as much time go by, to cover up what really happened, and so her scheme to deal with the fantasy kidnapping and *find* Caylee on her own developed. And it worked for 30 days of time, before her mother finally forced Casey's disclosure by calling 911 about the car smell. And then another call to report the kidnapping. And more time was gained while Casey stonewalled and continued to stick to the fantasy whopper.

And that tattoo she got, La BellaVida, The Good Life? Hey, that is no proof to me of her killer mind, as many just too easily conclude. For instance, Judge Jeanine Pirro said last week that the tattoo incriminates Casey because it obviously was not a commemorative tattoo, because if it was, it would say something like Caylee and her dates of birth and death. Uh....HELLO Judge. At the time that Casey got the tattoo, the child had not even been discovered missing! My Lord, couldn't you have thought that one out before speaking, Judge? Jesus, Mary and Joseph! Let me suggest that it was a melancholy choice by Casey and had little or nothing to do with Caylee's death, other than a way to pretend it never happened. I can see that just as much as I can see it being a brazen statement like, I'm free now! Let's party! And as to her uber-partying during that time, I can also see that as a way to escape from pain. Maybe it comes from my many single years of nightlife in bars: not that many people there are happy. though many smile and laugh. Most are there to wash away and party away emotional pain of some kind.

Let's now talk about Casey's lawyer, Jose Baez. Boy, he looks like an incompetent boob, but have you considered what information that he has had to work on? Who knows what stories he has been told, what wild goose chases he has been led on?  To Casey, lying is like her own skin. Baez is new to the Anthony's world. Maybe he believed things she'd told him. There are two reasons I can think of as to why he could be (unwisely in my opinion) asserting during opening statements that Caylee drowned and that George was an accessory to it. One reason would be that Casey told him this was the truth and he believed her, and realized it couldn't be disproven as well. But then, he also had to realize that if he presented an alternate theory, he would have to prove it later. Surely? Well, what if Casey told him she would provide proof, but after opening statements, he found out she was lying about it.

I sure hope that is what happened, because if not, he appears to be more than a bit stupid for not just keeping his mouth shut and rightly challenging the state to prove its case. And that brings me to the other reason, that he is just throwing spaghetti at the wall to see what sticks, that his gameplan is to assert enough doubt and chaos in the mix to get her off the murder charge because he has no fricking idea what really happened. Again, not a good way to do it, but the trial is not over yet. We've yet to see how he resolves it all.

It is possible that in Baez's closing arguments, he may tell the jury that he proposed the pool accident to show them that it is as plausible as the state's argument, because the state has no proof behind its murder charge. Just today, Cindy Anthony added more fodder for doubt. She testified that she looked up chlorophyll and chloroform on the computer for some of those searches. I just now googled "chloro" and stopped, and google did have chlorophyll as a clickable choice in the box that opens up. IOW, if you have programmed for google to finish words partially typed in, this will pop up. And Cindy laid a little more chaos in her testimony when asked if she googled the word 84 times, replying that she didn't but she didn't know what the computer did (meaning on its own).

As I type this, CNN is reporting that the Anthonys now believe Casey is guilty, when in fact, her lawyer went up to the CNN reporter earlier today to clarify some other things that he felt the reporter was exxagerating. He told the reporter that the Anthony's were in fact not decided on Casey's guilt, they were wondering if she did it or not, not convinced either way. The reporter then translated that into them believing her guilty. This is just amazing that it was caught as it was in real time. A wonderful example of just how badly the media has handled this whole thing. And I have to wonder: what else have they added their own cynical interpretation to and then presented as fact?

Do you know? Cuz if you want to convict this woman based on what you have learned from the media, you'd better know. If you are giving odds as to if she did or not, that's fine. Not what I'm talking about. If you are thinking the state has proven its case, though, and basing it on said media, well, I do not want you judging me especially if I am innocent.

Now, if you can see the logical arguments I have offered here and find them to be credible, and if you want to avoid believing the trumper-uppers in the media, I can advise a couple of things. First, Bill O'Reilly is, as he is on most topics involving children and drugs, a Catholic evangelical reactionary activist. IOW, he cops an attitude and will not budge on it. (Ditto to a lesser extent as to Hannity on these kinds of issues.) Bill gives no credence whatsoever to anyone suggesting Casey should not be convicted of first-degree murder.

Second, Judge Jeanine Pirro has been reporting on Greta Van Sustern's show and has been really pro-prosecution. Yet, last weekend, on her own show, she laid out with her version of proof what she thinks really happened. Curiously, it's the same theory that I put the most stock in. Why she defends the prosecution so much is strange to me, but maybe she has orders to color it that way while on Greta, or else she may just be pro-prosecution in general. Not delineating her views on each crime Casey is convicted of, though, paints her as just a believer of media kool-aid and not worth my time.

Greta and Geraldo are the two commenters that have given the most even coverage and discussion in my mind. Greta is pretty much saying now that the state's holes are too big to prove the murder case, which is the case they are bickering over. Geraldo has said from the start of the trial that the state's case has fatal holes in it. These are the only two commenters that I have heard who seem willing to look at this thing fairly and with a similar burden to prove belief as mine.

Are they right? Not saying that (although as of now, I think they are). Just saying, those are two places to go for the other side. From what I have seen from CNN, they are pretty much in the tank for conviction. I have not seen much from MSNBC beyond reporting the daily bits of the trial.

Another bit of advice: listen to the guest commenters' intros, as to whether they have defense or prosecutorial backgrounds. Then, weigh what each says in the appropriate light.

This BOOK I've just written is in response to emails received asking me what I thought about the Casey Anthony trial and her guilt or innocence. To reiterate, my gut says she caused the death of her child, but the state's case does not prove first degree murder. She is also charged with aggravated child abuse, aggravated manslaughter of a child and four counts of providing false information to a law enforcement officer, and I've no problem with her being found guilty of any of those charges.

I thank those who stayed with me to the end for reading!