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July 7, 2011

Interview with Anthony Juror #3 confirms that pursuit of death penalty played role in acquittals

In this post right after the surprising Casey Anthony verdict, I speculated that prosecutors' pursuit of a death sentence may have primed the jurors to expect a forensic smoking gun, and that the jurors in turn may have ultimately been that much more willing to find reasonable doubt on all serious charges when no such evidence was presented.  This speculation seems to be confirmed by the first Casey Anthony juror to be speaking out about the verdict, as detailed in this report on the interview:

ABC News's much-flapped-about interview with Casey Anthony juror Jennifer Ford aired last night on "Primetime" -- and it's only going to fuel verdict fury.  That's because Ford -- who appeared even-keeled and intelligent -- answered Terry Moran's questions in a way that supports the overprosecution theory on the verdict.

The number-one complaint from those analyzing the outcome has been that the prosecution overreached, throwing out claims they couldn't support....

What it came down to, Ford reiterated again and again, was that all signs pointed to Casey being involved in Caylee's death -- but that no one managed to string the signs together.   "How can you punish someone if you don't know what they did?" Ford said.  "Do I think she's completely innocent?  I have no idea... not guilty doesn't mean innocent."

And having the death penalty on the table infinitely upped the ante.   "If I'm wrong, and I kill someone else, I can't live with that," Ford said.  "If they [the prosecution] want me to kill someone else, they have to prove it."

Recent related posts on Casey Anthony verdict: 

July 7, 2011 at 11:00 AM | Permalink


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You called it, Prof. B.

Posted by: reader | Jul 7, 2011 12:24:14 PM

Good grief, how dense can you get? The jury could have acquitted on the first degree murder charge, convicted on everything else, and the DP would be nowhere in sight. It's 100% false to say that the jury had to acquit on all the felony counts to avoid the possibility of the DP.

In addition, of course, under Ring, the jury could have vetoed the DP EVEN IF it convicted on first degree murder.

The problem was not with prosecution over-charging. The problem was with jury under-thinking.

Posted by: Bill Otis | Jul 7, 2011 12:24:16 PM

Oh, come on Bill. I think the juror’s comment summed it up perfectly: “How can you punish someone if you don't know what they did?” This explains their decision on not just the murder count, but also the manslaughter and child abuse counts.

The prosecution’s argument, boiled down to its essence, was: “Given her known lies, it’s clear Casey Anthony did something.” But what that “something” was they couldn’t prove.

Obviously, I didn’t hear all the testimony, and I am guessing Bill didn’t either. But based on what has been reported, I don’t know how the jury could have convicted, assuming they took “beyond a reasonable doubt” seriously, as it appears they did.

A lawyer friend and I were discussing this case last night, compared to O. J. Simpson. In Simpson, I think the evidence did point to guilt beyond a reasonable doubt, and you can castigate the jury for failing to see that. In this case, the evidence is much weaker.

Posted by: Marc Shepherd | Jul 7, 2011 1:29:38 PM


The juror said "How can you punish someone if you don't know what they did?".

That sums it up. That's why the acquittals.

I don't think the verdicts were easy decisions for the jury. And prosecutors dissing juries, as some have in the media, does not reflect well on the legal system.

Posted by: Rob | Jul 7, 2011 1:33:25 PM

The "prosecutors" on this blog just can't resign themselves to the fact that just because they, the prosecutor, says a defendant is guilty doesn't make it so.
They have to prove it and in this case they did not. Be thankful that we still have jurors who see through the bluster.

Posted by: Thomas | Jul 7, 2011 2:21:49 PM

hahaha. so much for deference to juries, eh Bill Otis?

Posted by: . | Jul 7, 2011 3:01:24 PM

Marc --

I was answering a very specific suggestion, to wit, that the possibility of a death sentence contributed to the acquittal on ALL felony counts.

For the reasons I stated, and which have not been rebutted, no thinking juror could have believed that the prospect of the death penalty required acquittals on all the serious charges. Only one such charge even carried the possibility of the DP. And a conviction there could not have resulted in the DP unless the jury voted for it.

Child murder is often thought of, even by those having reservations about the DP, as one of those crimes for which it should at least be available at the jury's option. The prosecution was within bounds in having it at least on the table. Most people, by what seems to have been a fat margin, thought Ms. Anthony was going to get convicted. Although this turned out to be wrong, the fact that so many thought it likely seems to me to be strong evidence that the case was not overcharged.

Ms. Anthony probably got away with murder. For some (not you), this seems to be a source of satisfaction, if not gloating. I won't be joining in.

Posted by: Bill Otis | Jul 7, 2011 3:03:34 PM

What is so hard to understand? The jury found the prosecution did not prove its case beyond a reasonable doubt. It was their duty to make this important decision. The talking heads on TV and other commentators do not render binding verdicts.

Posted by: Tim Holloway | Jul 7, 2011 3:03:59 PM


I really, honestly believe that the jury reached the absolutely correct verdict under the law. Juror #3 - I think - has said it perfectly well. The prosecution did not tie all the allegations together to make a cohesive, cogent “story” to leave the jurors with sufficient evidence that it could bear a guilty verdict. While I understand (or at least, I think that I do) what you are saying about the aggravated manslaughter and aggravated child abuse counts, even there - according to the jury - there was a reasonable doubt.

As you very well know, judicial standing to bring a suit rests on three criteria - injury, causation, and redressability. You have to keep in mind that even in civil cases, while the standard is “only” a “clear-and-convincing” basis, let me try to address these criteria (individually, although they are all interrelated) with respect to Casey Anthony's trial (to the best of my abilities):

Injury: Well, according to the jury, the prosecution has not proved how Caylee Anthony “actually” died. What was the injury? A simple death, in my opinion, cannot be classified as an injury, because a death could be natural. Was the injury because of drowning (accidental, or not); suffocation; or anything else. There was apparently much confusion over how Little Caylee actually died. All we know is that a precious little life is lost.

Causation: Even in civil cases, to prevail, you still absolutely need PROXIMATE causation (not the “but-for” causation) and the threshold for causation is far higher in the case of criminal cases. This is the question: How did Caylee die? The prosecution did not provide sufficient evidence on that question to carry the burden. Unfortunately, speculation is not sufficient. As you know, a jury is entitled to draw inferences from what the evidence purports to show. In circumstantial-evidence cases, this latitude is even wider than clear-cut cases.

Redressability: I believe that Judge Perry did the most that he could do under the law for a variety of reasons. I do not know if anyone considered that had Judge Perry sentenced Casey Anthony to concurrent terms of 1 year on all the misdemeanor counts, the State of Florida could have suffered monetary damages. This issue of consecutive sentences may still be appealable and I have not read the actual language of the indictment; so I do not know if the counts will pass the Blockburger test. Some of the lawyers on TV were stating that an appeal would be moot, but I beg to differ. It would not be moot as long as Casey Anthony has some continuing "disability" arising from these charges – e. g., probation, supervised release, civil rights, etc.) I think that Judge Perry made a “wise” decision balancing all the factors. Only time will tell.

Based on my “limited” analysis of this case, I very strongly believe that the jury did indeed reach a dispassionate, fair verdict. I really do not think that the death penalty, per se, had anything to with the jury’s finding Casey Anthony not guilty of the felony counts. In mind, this case shows that our justice system still works, albeit not consistently proving that it too is fallible.


I do have the highest regard for people like Bill Otis. He may think differently (perhaps vastly, in some instances), but it absolutely does not mean that they are meaningless and that we should not listen and hear them out. You have to keep in mind that Bill Otis was not really (at least for most of his career; Bill, please correct me if I have mistaken) a prosecutor, but an appellate attorney for the USAO. Also, it is Bill Otis's job to untangle the mess that the trial attorneys (the actual prosecutors in a case) make. Having personally been through both the trial and appellate phases of the proceedings (both criminal and civil), I can sincerely tell you that appellate attorneys have to fix everything that trial attorneys neglected, and it is is doubly difficult to do. I have personally seen cases where the appellate attorneys were the ones to admit the mistakes and they were actually "recognized" by the appellate courts for their candor, honesty, and integrity. Also, please keep in mind that appellate attorneys have to follow the USAO's policies regardles of their "personal" beliefs and convictions.

Posted by: John Marshall | Jul 7, 2011 3:05:37 PM

Mr. Dot --

"hahaha. so much for deference to juries, eh Bill Otis?"

You might trouble yourself to read what I wrote before defining my position for me. But then, you'd need to know how to read.


Posted by: Bill Otis | Jul 7, 2011 3:11:01 PM

Marc Shepard:

You are right about the comparison between the OJ and Anthony trials. The funny thing is that Marcia Clark (the lead prosceutor in the OJ case) showed up on TV and said that the Anothony trial showed far more conclusive evidence?! Does she have her head buried in the sand? Jesus Christ! She does not have standing (in my opinion) to even be on TV, much less compare OJ and Anthony trials.

Posted by: John Marshall | Jul 7, 2011 3:18:07 PM


To whose comment are you referring?

Posted by: John Marshall | Jul 7, 2011 3:18:50 PM

The prosecutors also took the DP off the table in the OJ trial and had the trial in LA rather than Santa Monica, thus getting a jury less deferential to them.

Posted by: . | Jul 7, 2011 3:26:28 PM

John Marshall --

Thank you for your typically thoughtful post. I have to say, in Thomas's defense, that it is fair to refer to my role in my former job, up to 1999, as having been a "prosecutor." You are quite right that, as the head of appeals, I was only seldom in district court, although I did get consulted on this and that. You're also right that the appellate division winds up with the headaches and arguable errors left over from the trial.

In all honesty, I most often speak up here in favor of the prosecution, but not because I was a member of the USAO. It's the other way around: I joined the USAO because I generally see things as prosecutors do, i.e., I believe people make choices and should take responsibility for them. I don't see a lot of Jean Valjean's out there. And I believe the real reason for almost all crime is the same, to wit, greed, combined with an astounding lack of empathy for the victim and an equally astounding penchant for self-justification.

Finally, I am especially grateful for your last remark. One of the reasons I use my real name here (although not the only one) is to allow people to examine for themselves the cases I litigated. There are bunches of them.

Posted by: Bill Otis | Jul 7, 2011 3:29:03 PM

"The 'prosecutors' on this blog just can't resign themselves to the fact that just because they, the prosecutor, says a defendant is guilty doesn't make it so."

More snide and deceitful tripe. No present or former prosecutor here has said or remotely implied that a defendant is guilty just because he says so.

Posted by: Bill Otis | Jul 7, 2011 3:39:08 PM


I stand corrected. I actually did not know your background until I read your Crimes and Cosnequences blog. By way of information, I was as conservative as (if not more than) you are, but somehow as I aged I have changed my views - perhaps shaped by the circumstances. I believe it is "Albeed" who also said that he was a "stauch conservative turned a libertarian" on one of the posts on this blog. I can truly understand what he means by that, because I have personally gone through that "metamorphosis."

You know, Bill, I have come across prosecutors (Federal) who were so haughty and arrogant that they said with inordinate hubris ONLY they were the givernment and no other Federal agency could be considered "governemnt." I truly felt like jumping across the aisle and slapping him silly for even saying that. I usually try NOT to generalize a profession, but Thomas is right (again, in my opinion) that prosecutors tend to be more anti-defendant (perhaps they believe that all defendants are guilty as soon as they are charged). "I do not know" may be the best answer that I could give. In fact, I said on one of other topics (I think it was on Sotomayor and Alito) on this blog that all the law-school graduates should do "residency" in prison (as medical graduates do in hospitals) so that they can develop empathy. While I might have come across as crass and crude for saying such a thing, but I honestly believe in that. There is no susbtitute for firsthand experience. (:-))

Posted by: John Marshall | Jul 7, 2011 3:54:55 PM

John Marshall --

The array of prosecutors is, not too surprisingly, much like the array of human beings in general. You get some jerks, and you get some class acts. You get some dumbells, and you some who are as smart as you'll ever meet.

Posted by: Bill Otis | Jul 7, 2011 4:06:06 PM


Yes, you are totally right. They are all only human. However, when someone is in a position of "almost unbridled" authority with a huge discretion, I wish that ALL prosecutors would hold themselves to a far higher standard than the rest. Unfortunately, some just are bad apples, and there is not much that anyone do about them (at least not sufficiently quickly). Eventually, they have to answer to their karma; i. e. what goes around comes around. Even Casey Anthony will eventually have to face her karma - both good and bad!

Posted by: John Marshall | Jul 7, 2011 4:12:04 PM

"More snide and deceitful tripe."

Your OPINION but perhaps not so with everyone LOL.

"No present or former prosecutor here has said or remotely implied that a defendant is guilty just because he says so."

And you once again, as you often do, attempt to put words in a commenter's mouth. I never said that they did. I only expressed my OPINION of the general attitude shown, in my OPINION, by those who appear to take the prosecutors side in this case. Those who appear to be on the "she did it so hang her even though the State did not prove their case" crowd. Or how about calling the jury "dense" or that "the problem was with jury under-thinking" because, in your OPINION, they didn't get it right. The jury does not owe you nor anyone else an explanation for their actions and despite the fact that I personally think that she is probably guilty, in my OPINION they got it right.

Posted by: Thomas | Jul 7, 2011 4:15:07 PM

Mr. Dot --

"hahaha. so much for deference to juries, eh Bill Otis?"

Bill: "You might trouble yourself to read what I wrote before defining my position for me."

me: Actually, he did. I realize that according to the new standard promoted by Fox News is that its unfair to use someone's exact words against them, but according to their regular meaning, your exact words - "the problem was jury under thinking" cannot be seen as anything other than criticizing the jury which before the verdict you'd say you would defer to. Thus, what Mr. Dot said was a perfectly fair interpretation of your words. And I did read your piece, but I still see no other rational way to intepret your statement "the problem was jury under thinking" other than you saying that the jury was ignorant and stupid.

Bill: "More snide and deceitful tripe"

me: Hello, Mr. Pot, have you met my good friend Mr. Kettle?

Bill: "Ms. Anthony probably got away with murder."

me: I agree with you on this, but the key word there is "probably." I admit that even though the prosecution case was extremely weak, I fully expected her to be convicted simply because she was such a bad mother who acted in a way far outside of normal human experience. I disagree that people who are agreeing with the verdict are taking satisfaction in the fact that they believe that Ms. Anthony got away with murder. Instead, I think its fairer to say that people are expressing satisfaction in the fact that the system worked - to convict someone, "probably" is not good enough - especially when the prosecution failed to even prove that a crime other than a coverup had taken place.

ginny :)

Posted by: virginia | Jul 7, 2011 5:47:37 PM

ginny --

You can't possibly be serious in mainting that I can't criticize something I respect. I have often criticized, for example, Scalia's Blakely opinion -- the doctinal underpinning of the even worse Booker opinion -- but do you think I don't respect Scalia?


I also criticized Thomas's dissent in Gonzales v. Raich (questioning the Commerce Clause theory I advocated and largely sold within DOJ when I was Counselor at the DEA).

Think I don't respect Thomas?

I'm really quite sure you understand the difference between respecting X and thinking that X got it right 100%. Same deal with juries, this one and others.

Posted by: Bill Otis | Jul 7, 2011 6:17:24 PM


Seriously, you ARE funny!

Bill Otis’s mention of Blakely elicited the following thoughts (or more aptly questions) in my mind. I would like to ask the readers (specifically, Prof. Berman):

1. Do you think if Casey Anthony had opted (assuming that she was permitted) for a bench trial, the judge – as a factfinder - would have found her guilty on one , or more, of the felony counts?
2. If yes, then is a system wherein a bench trial – in a criminal case – is allowed (or compelled?) fundamentally unfair to defendants?
3. Further, would a bench trial not be prejudicial to the defendants as regards the evidentiary standards? What I am trying to say is that in a jury trial, a judge rules what evidence is allowed and what is excluded. However, in a bench trial, the judge is the one who rules on the law of evidence and subsequently finds facts of the case. Does this not pose a conflict of interest? Even if the judge were rule out certain evidence would he/she have not already been “colored” by the putatively-excluded evidence now that he/she had seen what the evidence was in the first instance?
4. How can the judges’ finding of aggravating facts (here they are called “factors”) during sentencing be constitutional, when in fact the jury also does the same thing by distinguishing facts (now they are called “elements”); e. g., first-degree murder, aggravated manslaughter, involuntary manslaughter, etc. – in derogation of the IX and the X Amendments to US Federal Constitution? (I am afraid that I am making a feeble attempt at poking holes in the unconstitutionality of the sentencing guidelines. It seems to me that legislatures are trying to get away with this labeling these facts “factors” and “elements.” This reminds me of Justice Cordozo’s “tyranny of labels” in Snyder vs. Massachusetts and Justice Story’s opinion in Parsons vs. Bedford.)

Posted by: John Marshall | Jul 7, 2011 8:41:43 PM

"And I believe the real reason for almost all crime is the same, to wit, greed, combined with an astounding lack of empathy for the victim and an equally astounding penchant for self-justification."

This may come as a shock to Bill because I so much disagree with almost everything he preaches. However, the above is probably one of the truest statements that Bill has ever made and I absolutely and totally agree. It is the "one size fits all" approach that lumps almost every person that stands accused into the same category as those described in Bill's comment that I so strongly object to.

Posted by: Thomas | Jul 7, 2011 10:41:19 PM


Yes, indeed! It is that what you call the "one-size-fits-all approach" that bothers the heck out of me. Specific circumstances, in my opinion, play a significant role in a defendant's alleged offense. I believe that we have to take the totality of circumstances under consideration before we send defendants to the salmmer. In some instances, yes, the defendants should be sent to the slammer for a very long time. That is why I have a problem with the mandatory sentencing guidelines, too. Guidelines could be just that - "guidelines."

Posted by: John Marshall | Jul 8, 2011 12:57:34 AM

John Marshall --

It's precisely because, as you correctly point out, specific circumstances should be considered for each defendant in figuring out his sentence, that I believe it's an error to maintain the death penalty can never, ever be imposed, regards of the heinousness of the murder or the certainty of guilt.

Posted by: Bill Otis | Jul 8, 2011 1:44:33 PM

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