The Casey Anthony Trial: A Prosecutorial Bridge Too Far?

Those of us who are lawyers (which includes all of us on Mirror of Justice) and who have litigated cases in court (which includes many of us) are all too aware of how unfairly uneasy is it to play the role of Monday morning quarterback and question another lawyer’s litigation strategies and advocacy style in a trial.  When the case is one as notorious as the Casey Anthony child murder trial, and when our law school colleagues and neighbors are talking about it and inviting our comments, the temptation is even greater.  (The day before the verdict, I predicted to friends that the jury would not find Casey Anthony guilty of premeditated murder.  Lest you think me too perceptive or prescient, however, I must admit that I did think she would be convicted of a lesser homicide charge.)

And when one believes that the outcome is unjust, the temptation to pontificate becomes irresistible.  (By unjust, I mean it in the moral sense of just desserts, rather than necessarily suggesting that the jury's verdict is unjustifiable under the appropriately high standard for conviction in a criminal case -- the subject of Marc DeGirolami's post immediately below.)  Could the trial have unfolded differently so as to bring about what I and most Americans believe would have been a just conviction and a long prison sentence to Casey Anthony?

And so here I go, indulging in post hoc speculation and asking "what might have been."  Still, I hope what I set out below rises to something more than mere second-guessing of trial tactics and closing argument rhetoric.  What I want to suggest is whether the prosecution reached too far, gambled too much, and, as a result, lost it all.  And I wonder whether this episode fits within a general pattern of prosecutorial aggressiveness and lack of wise restraint that we have seen so often around the country today.

In most instances, the tragedy of undue prosecutorial zeal has been visited on the accused, who may be subjected to a higher charge than the exercise of wise prosecutorial discretion would counsel or who may receive a more severe sentence than the accused’s culpability warrants.  On this particular occasion, however, the present-day prosecutorial tendency to seek the highest charge that probable cause can justify may have produced a different tragedy.  By shooting too high, and falling so low, justice has been denied to the most vulnerable of victims by not holding the wrongdoer to account.

As I and others have commented in the past on Mirror of Justice, we live in an era of criminal justice in which the wise and just exercise of prosecutorial discretion too often has been abandoned.  In an earlier era, more prosecutors understood their job to include the weighing of persons and circumstances so as to make a charging and sentencing decision calibrated to the just outcome in an individual case.  Not every person who has committed a criminal act, especially when he or she has not committed a violent act and the harm to any identifiable person is low, should be subjected to the full sanctioning power of the state, even if the evidence would support a successful prosecution.  Not every person who has been convicted of a crime should be subjected to the longest possible sentence, simply because the statute authorizes a sentence of that length.  Justice often calls for prosecutorial restraint.

But, today, from the Department of Justice in Washington, D.C. to the local county attorney's office, the presumption for too many prosecutors appears to be that every charge supported by probable cause should be pursued, that every case should be framed around the highest possible charge, and that the longest sentence possible for a conviction should be demanded.  As a consequence, too many lives have been permanently destroyed through felony records and long prison terms, causing long-term harm to society, while too many non-violent, lower-level offenders are being ware-housed in overflowing prisons.

After the Casey Anthony trial, perhaps prosecutors will now begin to rethink that automatic reach for the highest charge, even if for a different and self-interested reason.  Overcharging may cause harm not only by excessive sanction to the accused but by undermining the success of a prosecution.  Probable cause, while a substantively important limitation on prosecutorial power, is a rather low standard.  Obtaining an indictment or issuing a criminal information on probable cause is not difficult in most cases where some modicum of evidence exists.  But prosecutors should instead be thinking about the wisdom of relying merely on probable cause to go forward – and now perhaps prosecutors will be pressed to do so to preserve their conviction rate, even if not moved by moral appeal.

Having watched some of the Casey Anthony trial and dutifully read summations of daily presentations of witnesses and evidence, I was left with a definite and firm conviction that Casey Anthony indeed had played a substantial role in the death of her daughter.  After the verdict, I think Casey Anthony's former fiancee summed it up well:  "Casey was the last person to see Caylee alive and [then] her body was dumped in the wood."

But the case was built entirely on circumstantial evidence.  Of course, circumstantial evidence can be sufficient, both legally and practically, to obtain a guilty verdict.  But when the crime is one of intent, reliance on circumstantial evidence may leave nagging questions of motive and method percolating.  Did Casey Anthony kill her daughter deliberately and with premeditation, as the prosecution argued?  Did she really plot to kill her child so that she could party every night and live a frivolous life of superficial pleasures?  The images of Casey Anthony gleefully drinking and dancing while her child was missing (and presumably dead) are most disturbing.  Together with the series of lies she told to family and police, this evidence could reasonably have been relied on by a jury to reach a verdict of guilty.  But the evidence did not compel a guilty verdict on a charge based on premeditation and intent.  After all, as many of us thought and the jury may have wondered, couldn't Casey Anthony more easily have freed herself of the burdens of motherhood by leaving the child with the grandparents or by turning the child over to state protective services?  Most of the evidence is consistent with a death by neglect or resulting from an episode of anger or recklessness that led unintentionally to death, followed by a cover-up.

By charging Casey Anthony with capital murder and seeking the death penalty, the prosecution had to convince the jury of Casey Anthony's premeditated intent to kill.  While lesser included offenses were before the jury, the focus of the prosecution case was on that greater culpability and the aggravating circumstances that would support imposition of the death penalty.  As a result, the prosecution could not simply stress the more powerful circumstantial evidence that Casey Anthony was responsible for the child, that the child had never been taken away from her by a fictional nanny, and that the child was now dead – evidence of Casey Anthony’s criminal blame for the death of her child.  Instead, the prosecution had to emphasize the weaker lines of evidence allowing an inference that she was a sociopath who hated her child for interfering with her pursuit of pleasure and who had devised a scheme to murder that child while escaping responsibility.  That proved to be a bridge too far – at least for this jury. 

Consider how things might have unfolded had the charge against Casey Anthony been limited to unintentional homicide.  What might have happened had the prosecution placed its primary emphasis on the more solid evidence that little Caylee’s death had occurred on Casey Anthony’s watch?  While the evidence of Casey Anthony’s strange behavior and litany of lies still would have come out at trial, the purpose would have been to show the implausibility of Casey Anthony’s stories that Caylee had been taken by someone else before her death.  Without the additional need to shape the evidence into a story of a mother plotting to murder her child to live the free life of the partier, the focus would have been on the wrongful death of the child rather than on the purported evil mind of her mother.  Although we can never be sure of such a counter-factual, a conviction on a lesser charge of homicide might have followed.

To be sure, a jury might still have been swayed by suspicions of involvement by her father, as suggested by the defense, but the power of that suggestion would have been weakened by a different framing of the case.  And if the prosecution had not been so committed to proving premeditation and deliberate killing, it might have more effectively responded by stressing that Casey Anthony's fictions about a kidnapping nanny effectively negated the possibility that her father was involved.  Without the distractions of a case built to show a malign plot to murder her own daughter, the basic facts of Casey Anthony's responsibility might not have been lost.

Hindsight is always 20/20.  The pressures brought on the prosecution by an outraged community to seek capital murder were great.  The circumstantial nature of the case was no fault of the prosecution or police.  The evidence from which an inference of premeditated intent could be drawn certainly satisfied the requirement of probable cause.  I have no doubt that the prosecutors genuinely believed that Casey Anthony had done exactly what they accused her of doing.  And they may even have been right.

But the circumstantial vagaries of the case and an appreciation for the high standard of proof beyond a reasonable doubt suggest that a charge of unintentional homicide better fit the limited evidence available.  The prosecutors were dealt a difficult hand, but they then bet everything on the chance that they could still wind up with a Full House.  Settling for a pair here might have been the wiser choice, and Casey Anthony would be heading now for prison.  And the message to prosecutors everywhere to act with restraint in charging – that discretion truly is the essence of virtue – will hopefully be heard.

Greg Sisk