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July 5, 2011

Should Casey Anthony's lawyer be grateful for, not critical of, Florida's use of the death penalty?

I caught a snippet of the comments made by Casey Anthony's chief defense lawyer, Jose Baez, shortly after a Florida jury returned not guilty verdicts on all of the felony charges against his client.  I was especially struck when Baez asserted this case showcased why the death penalty should be abolished; I actually believe the pursuit of capital charges against Anthony may help explain why the jurors refused to convict her on the homicide and abuse charges.  Let me explain my thinking.

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.

Similarly, by seeking a capital conviction, prosecutors made it that much harder for the jury to return a compromise verdict in which Casey Anthony got some (but not complete) blame for her daughter's death.  Because the prosecution pushed an intentional killing theory for conviction to support its capital charge, jurors believing that Caylee Anthony's death was perhaps an accident would be pushed to vote not guilty in response to the prosecution's contentions.

And, not to be completely discounted, perhaps many members of the jury were exhausted by the whole process and concluded that it would be near impossible to get a unanimous verdict on the serious charges with talk of the death penalty and/or a life sentence hanging in the air.  Jurors eager to get back to their regulars lives may have concluded that a quick not guilty verdict was the surest means to this end.

Of course, none of this has any impact on the pros and cons of the death penalty in cases in which factual guilt for a murder is not in dispute.  Still, if the death penalty gets jurors to take their responsibilities extra seriously, maybe defense attorneys like Jose Baez should be somewhat less critical of its impact on the criminal justice system in some cases.

July 5, 2011 at 08:36 PM | Permalink


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I agree, to which I would add two points.

The availability of lesser charges opened the jury to a “compromise verdict” that wouldn’t have been available had the state charged murder, and nothing else. The decision to try those charges may have been a tactical error, given that the murder conviction was what they really wanted, and the other offenses were comparatively small potatoes.

Also, sequestered jurors tend to resent the prosecutors (who are, in effect, their jailers). It’s no surprise that they reached a verdict so quickly. The same thing happened in the O. J. Simpson case.

Personally, I would have been very uncomfortable with the death penalty in this case, given the heavily circumstantial nature of the government’s evidence.

Posted by: Marc Shepherd | Jul 5, 2011 9:11:46 PM

Assuming arguendo the speculative claim that it was a strategic blunder for the prosecution to but the DP on the table in a case where there was no confession or, indeed, any direct evidence of how the victim died, it's ridiculous to assert that such a thing means, as Baez claims, "the death penalty should be abolished." The state will have plenty of cases with stronger and more direct evidence than it did here.

Posted by: Bill Otis | Jul 5, 2011 9:15:40 PM

"Ridiculous" and BIll Otis do go well together.

Posted by: Steve Prof | Jul 5, 2011 10:28:28 PM

Steve Prof at his analytical best.

Posted by: Bill Otis | Jul 5, 2011 11:21:02 PM

Not sure I agree.

I just believe the State's Attorney Office pressed a charge the evidence couldn't sustain.

Noting their weaknesses, they prosecuted the case in the press after indictment, before trial and during the trial... failing miserably.

The State could only prove inference and supposition, not premeditation.

The lack of physical evidence and unremarkable autopsy results made pressing 1st degree murder & death penalty a leap even the esteemed Evel Knievel couldn't make.

Posted by: ih8tofly | Jul 5, 2011 11:42:07 PM

Utter rubbish by a wishfull thinking anti-DP advocate. The DP had nothing to do with the Jury finding her not guilty. Does anyone believe she would have been sentenced to death even if she was convicted? There was too much doubt what her direct role was. To say the DP influenced the other charges makes little sense.

By the way why no news on Humberto Leal's execution and how the entire appeal is, according to Judge Orlando Garcia, ...Leal's claims are "utterly lacking in arguable merit." and the fact that Senator Leahy has INTRODUCED legislation is "little more than highly speculative predictions from a variety of political science professors and a handful of hopeful executive branch and congressional officers."

Like it or not, professor, stare decisis says Leal fate has already been decided by Medellin in 2008. nothing has changed. Q:Where's the legal logic in this appeal? A:There is none, its all politics.

Posted by: DeanO | Jul 6, 2011 8:11:44 AM

I agree with Bill Otis that this case does not support the argument for abolishing the death penalty. Casey Anthony would have been a poor candidate for it, even had she been convicted; but there clearly are much more compelling cases.

However, Prof. Berman wasn’t making that argument. He was merely pointing out that the prosecutors may have erred tactically by seeking death in this case. Personally, I dislike the rule that the prosecution must announce in advance whether it intends seek the death penalty: it has a distortive effect, as it did in this case.

Posted by: Marc Shepherd | Jul 6, 2011 8:38:39 AM

I have rarely disagreed so completely with everything in one of Professor Berman's posts, but everything about this post is just wrong.

First, the jury didn't just acquit Casey Anthony of first-degree murder. They acquitted her of aggravated manslaughter of a child and aggravated child abuse. If the jury was going to compromise they would have found her guilty of manslaughter. Second, juries do not acquit someone of murder because they are tired and want to go home. Maybe if this was a 6 week shoplifting trial, but there is no way 12 jurors would lean to acquit her of murdering a child because of exhaustion. Third, prosecutors have always used overcharging as a tactic, both to induce a plea and to produce a compromise verdict to a more appropriate charge. Fourth, the idea that there are jurors who "take their responsibilities seriously" in a death case but not in an ordinary, non-death murder shows ignorance of jurors. Most people selected to serve on a jury have never served on one before. If they have served on a criminal jury, the chances are that prior jury was a misdemeanor or low-level felony. Any murder will be by far the most serious case almost everyone on that jury has ever heard. No juror I have ever interviewed has felt casual or laid back about a murder even if it wasn't a death case; they always view a murder trial as one of the most serious and horrible things they have ever seen.

But this post also minimizes how death-qualifying the jury biases them towards conviction. Removing the jurors who oppose the death penalty removes the 10 to 30% of the venire most likely to acquit. So by seeking the death penalty the prosecution obtained a jury significantly more likely to convict Anthony. Also because jury selection in a capital case focuses so much on a potential juror's views on sentencing, it causes the jurors to focus on sentencing and to assume guilt.

There is no competent defense attorney in the country who thinks the State seeking the death penalty gives the defense an advantage at trial. Which I believe is part of Baez's point: seeking death increases the chance of a conviction, regardless of whether the person is guilty or innocent. Mentioning a case like McVeigh where guilt is clear doesn't rebut his point, because the death penalty is not limited to McVeigh's case.

Posted by: Paul | Jul 6, 2011 10:54:24 AM

DeanO --

The Leal case and DOJ's feckless intervention are covered here:

What makes DOJ's pious invocation of the supposed risk of roiling Mexico's feelings ridiculous is that the killer, Leal, now an adult, left Mexico at the age of 2. If he even remembers Mexico, or in any way thinks of himself as Mexican, I have no evidence of it.

And when Texas executed the Mexican killer Medellin three years ago, over exactly this kind of DOJ bluster, the reaction is Mexico was.......zzzzzzzzzzz.

This is nothing more than DOJ's attempt to illustrate the Texas law counts for nothing compared with not ruffling feathers at the next black tie only bash at the Mexican Embassy.

Posted by: Bill Otis | Jul 6, 2011 11:17:44 AM

On one point I agree with Paul. I once served on the jury for a burglary case, and we took it awfully seriously. I cannot imagine the jury in a murder trial, with or without the specter of execution, would be any less serious.

But I do think sequestering a jury for a lengthy period, as was done in this case, takes a significant emotional toll, and could cause jurors to behave differently than they would otherwise. Given the complexity of this case, the verdict came awfully quickly.

Posted by: Marc Shepherd | Jul 6, 2011 11:29:20 AM

You make many sound points, Paul, but a few refinements may show we agree more than we disagree.

First, the aggravated manslaughter of a child and aggravated child abuse charges required proof that Casey Anthony caused her daughters death or physical harm willfully or with culpable negligence. If jurors thought the child's death was an accident, later poorly covered up, they could not compromise on those counts either. Of course, if this was the jury's view, perhaps it would not have been able to convict of any violent crime under Florida law.

Second, I agree that jurors do not acquit just because they are tired. But I do think jurors are disappointed when a prosecution promises strong proof of murder and then fails to have evidence of how, when and why the defendant killed the victim. My point with my final comment was that even if some of the jurors were close to being convinced of guilt, they may have realized they would have a hard/impossible time talking others out of reasonable doubt given the absence of any direct evidence put forward by prosecutors.

Third, I do not mean in any way to demean the serious work done by serious jurors in all criminal cases. I do mean to suggest that in a capital case, jurors may be inclined to give the opaque proof standard of "beyond a reasonable doubt" some extra bite so that it comes to be understood functionally by some (or all?) jurors as "beyond all doubt." As many comments in this thread highlight, even experienced prosecutors like Bill Otis see how this case was a DP stretch in light of the evidence presented. If objective prosecutors look at the evidence and hesitate to view this as a capital case, it stands to reason that jurors might be uniquely put off (or uniquely inclined to give extra attention to their doubts) when prosecutors push for the DP on this record. (Also, the horror of Caylee's death and Casey's party attitude were already well covered before the trial started, and thus the jurors here perhaps ended up surprised that Casey before Caylee's death seemed more like a regular single mom than like the devil monster the media suggested she was.)

Fourth, I understand and have read research supporting the claim that "death-qualifying the jury biases them towards conviction" in many and perhaps nearly all DP cases. But this was hardly a typical DP case, either as to the evidence or as to the media attention. Beyond the fact that very few women get the death penalty, I can think of very few capital cases involving only one death and lots of questions surrounding the circumstances of that death. Thus, while I accept your assertion that "no competent defense attorney in the country ... thinks the State seeking the death penalty gives the defense an advantage at trial," I also think it is not unreasonable to assert that in this unique case the decision by prosecutors to seek the death penalty here may have, in the end, advantaged Casey Anthony.

None of this means that Baez or other defense attorneys are wrong for opposing the death penalty in general, and this point is not meant to assail DP abolitionists for their zealous advocacy. My chief point in this post was that, as we try to make sense of the jury's obviously pro-defendant verdict, it seems possible that this particular jury in this particular case really ended up more pro-defendant rather than more pro-prosecution because they were death-qualified.

Posted by: Doug B. | Jul 6, 2011 11:43:21 AM

It's a good deal less than certain that the prosecution would have even asked for the DP if a first degree murder conviction had been returned. Personally, the evidence left me with no reasonable doubt the she had some kind of criminal involvement in her daughter's death. But the specifics just weren't there. I doubt that I, as a member of the jury, would have voted for the DP, given how much about the details of the killing was never proven. And if I'm not voting for the DP, there ain't gonna be no DP.

Make no mistake about it, though, this woman is a bad person, real bad. She is not done with the criminal justice system, not by a longshot.

Posted by: Bill Otis | Jul 6, 2011 1:06:44 PM

Professor, even accepting that your argument is focused solely on Casey Anthony I still disagree. You would never have argued seeking the death penalty would benefit Casey Anthony before the verdict, and if you had no one would have agreed with you. You are extrapolating far too much from one data point.

I would also strongly disagree with you that jurors would apply a higher effective burden of proof. If we consider generic murder v. shoplifting, my experience is that a jury will always apply an effectively lower burden in the shoplifting trial than in the murder trial, because the emotional dimension of a shoplifting trial is so much less. If a jury finds a defendant not guilty of shoplifting then there is a chance someone got away with shoplifting; to a juror, the emotional response is "so what." If a jury finds a defendant not guilty of murder, then there is a chance that that they are letting someone get away with murder. Considering the jury cannot hold anyone else accountable, if they vote not guilty then no one will ever be held accountable for someone's death.

Consider Bill Otis's response. He says he has no reasonable doubt that Casey Anthony was involved in Caylee Anthony's death, but he has no specifics. Had he been on the jury he would have found her guilty of first-degree murder but not voted for death. I assume he would have found her guilty of first-degree murder because without that he would never get to vote on whether she lives or dies. Florida statute 782.04, the first-degree murder statute, requires either proof of premeditation or various special circumstances, and the first-degree murder indictment against Casey Anthony alleged she killed Caylee Anthony with premeditation.

I don't mean to pick on Bill in particular. His post just happened to be conveniently placed. But despite only knowing that Casey Anthony was somehow involved in Caylee Anthony's death, without knowing the specifics, he would find the prosecution has proven beyond a reasonable doubt that Casey Anthony committed premeditated murder. That is how the presence of a dead body erodes the burden of proof at a murder trial.

Posted by: Paul | Jul 6, 2011 3:05:07 PM

Paul --

"Consider Bill Otis's response. He says he has no reasonable doubt that Casey Anthony was involved in Caylee Anthony's death, but he has no specifics. Had he been on the jury he would have found her guilty of first-degree murder but not voted for death. I assume he would have found her guilty of first-degree murder because without that he would never get to vote on whether she lives or dies."

It's a hypothetical, Paul, and two different issues.

I try to choose my words carefully. I did not say that I would have found her guilty of first degree murder. What I said was that the "evidence left me with no reasonable doubt the she had some kind of criminal involvement in her daughter's death." In that belief, I am far, far from alone, and there are many gradations of criminal homicide.

She's up to her ears in it, I just don't know how, and without that knowlegde, the DP should not be imposed. Morally, some things require dead-on certainty, and the DP is one of them.

Posted by: Bill Otis | Jul 6, 2011 3:45:05 PM

Otis...so now you make up your mind about the evidence based on snippets on TV about the evidence. You are indeed ridiculous. How can you possibly know the evidence without sitting through the entire trial? Only idiots spout off about lack of reasonable doubt without knowing all of the evidence in a case...yo and your soulmate Nancy disGRACEful ought to be ashamed of yourselves.

Posted by: Steve Prof | Jul 6, 2011 8:52:28 PM

Just watching Casey Anthony prosecutor, Jeff Ashton, what a class act. He refuses be critical of the jury. Otis , you could learn a few things from him.

Posted by: Steve Prof | Jul 6, 2011 9:31:17 PM

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