I wonder what effect watching on television the public vilification of the jurors who rendered the not-guilty verdict in the Casey Anthony trial might have on future jurors in future cases. As Juror No. 12 told her husband before going into hiding: “I’d rather go to jail than sit on a jury like this again.” But hey, why go to jail or into hiding when you can just convict?

After all, when is the last time a jury was publicly excoriated for convicting someone the State told them to convict, even though there are undoubtedly many juries who deserve such excoriation?

The words of one of the jurors, Jennifer Ford, should give encouragement that many of our neighbors can rise above the Madame Defarge lynch-mob mindset. As Ms. Ford so well expressed it: “If they want to charge and they want me to take someone’s life, they have to prove it. They have to prove it, or else I’m a murderer too.”

Marion, Indiana, 1930 (H/T Lawyers on Strike)

Two things struck me from afar about why the defense won this case, and both come down to rules broken by Casey Anthony’s lawyer. If Mr. Baez had tried the case according to the textbook, he might well have lost it.

According to Norm, these two unconventional things were: (1) laying out in opening statement and arguing for in summation a theory of how Casey’s daughter died, even though he kept Casey from testifying and wasn’t able to offer any actual evidence supporting this theory at trial; and (2) arguing to the jury that the case against Casey was not strong enough to support a penalty of death, even though punishment is not supposed to be a consideration during the guilt phase of trial.

Real the whole thing, as well as Norm’s initial reaction to the verdict yesterday.

Second, “Strike Lawyer”:

Reasonable doubt is more tricky than the talking heads I have seen let on so far. The way it works is not that you just point out holes in the prosecution’s case and tell the jury they don’t know, so they have “reasonable doubt”. You have to – and this was part of the brilliance of the defense strategy here – offer a competing narrative, and preferably a competing villain as well. Here the defense did both: they had a competing narrative (the accidental drowning) and the competing villain (George Anthony), of whom the one alternate juror that has answered questions said that he was “hiding something”.

Read the whole thing.

As I see it, the defense didn’t need to offer actual evidence supporting its competing narrative, so long as its competing narrative wasn’t refuted beyond a reasonable doubt by the evidence that was offered. It made sense for Baez to assert his competing narrative in opening statement, even if he knew that Casey wouldn’t testify and that George would deny on the stand the narrative’s truth (and that therefore Baez would be unable to offer actual evidence supporting the narrative), because it was probably best to get the competing narrative in front of the jury as early in the trial as possible, and because George’s denial of the narrative’s truth was in a way itself equivocal evidence supporting the narrative. You expect a villain to deny his villainy.

I didn’t see the jury voir dire in this case, but the same expectation — that a villain will deny his (or her) villainy — is commonly used to explain to prospective jurors why they shouldn’t hold it against the defendant if the defendant doesn’t testify: “What would the defendant have to gain by testifying? Regardless of her guilt or innocence, she knows that you know that of all the people who will appear in this courtroom during the course of this trial, she has the greatest motive to lie.”

So presumably the jury had been conditioned by Baez not to hold it against Casey if she didn’t testify, and George’s denial of the narrative’s truth didn’t count for much with the jury for the same reason Casey’s affirmation of it wouldn’t have.

It wouldn’t have been sufficient, though, to simply argue in summation that the competing narrative could have happened, and that the prosecution hadn’t proved beyond a reasonable doubt that it didn’t. Baez needed to assert that it did happen, even if the balance and bulk of his summation was spent pointing out the holes in the prosecution’s case. In an important sense, then, he was Casey’s star witness, and it was probably by winning the credibility contest with prosecutors that he won the case.

As Lew Rockwell writes (in a post quoted by the Atlantic):

I wonder: even if this woman were guilty, what is to be gained by turning her over to the greatest killing, torturing, and looting machine on earth, government, as if it were some moral authority? We need private judicial proceedings, restitution and not retribution, and not exaltation of the dullards and thugs who compose government. It is never right for them to judge anybody on anything.

This attitude is consistent with, rather than contrary to, my view (for which I’ve been excoriated a fair amount in the criminal defense blogosphere) that the role of the criminal defense attorney is to “do justice,” notwithstanding my acknowledgement that losing for those we think innocent is more devastating than losing in general.

By turning this case into a capital prosecution, prosecutors ensured jurors would have to be “death qualified” and thus would know from the outset that prosecutors wanted Anthony executed for her alleged crimes.  Though sometimes death-qualified juries may show a greater willingness to convict, here I suspect that the death-qualification process could have primed the jurors to expect a forensic smoking gun showing conclusively that Casey Anthony murdered her daughter in cold blood.  When no such smoking gun was presented by the prosecution, the jurors may have ultimately been much more willing (and perhaps even eager) to find reasonable doubt on all serious charges.

Bryan Brown:

Today’s verdict is yet another sign on the road to national perdition.  The circumstantial case agaisnt Casey was very strong — darn near ironclad.  I doubt the jury actually doubted that Casey killed her baby.  They just get it –  it is o.k. to kill your babies in modern America if you want to.  No, not the best thing to do, or the nice thing to do, or even the right thing to do.  But hey, it is nothing to kill someone over, so Casey walks.   I guess little Caylee should just be thankful she had any life at all, that her mother “just chose life” and did not take Caylee to an abortionist.

“Strike Lawyer” (whose coverage of the trial was the best out there):

It boils down to one thing, in my view.  The case is won or lost in the closing arguments.  Baez was just extremely effective, he believed in his case and he was sincere.  And critically, and somewhat amazingly, he succeeded in turning the tables in the credibility contest.  He appeared to be honest and earnest, and he made the prosecutors look like overbearing and shallow assholes who trafficked in slogans, like “100% of accidental deaths are reported” and “two words:  pathological liar”.  Baez was a hell of a lot more likeable, and without a trace of theatricality or phoniness, so when he came up with a pithy phrase like “They’re trying to make you hate her because she’s a lying slut, appealing to your anger and emotion.”, it didn’t sound like sloganeering.  It sounded like he really meant it.