When ‘re­al­ity’ leaves jus­tice un­done

The Washington Times Weekly - - Politics - Opin­ion by Wes­ley Pru­den

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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