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If you can’t do the time . . .



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I’m proud to be one of what seems to be the very few lawyers in America who didn’t follow a bit of the Casey Anthony case. Okay, okay, one time, when I was in the car headed to something that was of actual interest to me (my son’s baseball game), I heard some radio report that she was a mother on trial for the murder of her child, and that the prosecutors (I think) had called as a witness some guy she got a tattoo from very shortly after the child’s death. I don’t recall the details — although I do remember that my stud hurled four shut-out innings and struck out nine in a big win.

I make only three observations (besides the caution, that should always apply but apparently hasn’t in the coverage of this case, that talking-head lawyers should avoid addressing the merits of cases they know little or nothing about):

1) Forensic cases are very, very difficult for the prosecution. I distinguish forensic cases from the broader general category of circumstantial cases. Notwithstanding the media nattering about how some trial or another involves “only a circumstantial case,” most prosecutors prefer a solid circumstantial case because the strands that point to the defendant’s guilt are too numerous to explain away convincingly. A good circumstantial case also undermines the defendant’s best advantage in a criminal trial: the burden of proof. Even good defense lawyers get lured into trying to provide an alternative (innocent) interpretation of circumstantial evidence — and, even though the government still bears the burden of proof beyond a reasonable doubt, once it becomes the prosecutor’s story versus the defense lawyer’s story, it’s often a big advantage for the prosecutor. (Prosecutors are narrative builders and defense lawyers are narrative destroyers — and each can get in trouble trying to play on the other’s turf.) By contrast, cases based on “direct” evidence usually rely on an eyewitness or, more commonly, an accomplice, whose credibility is deeply suspect — if there is not strong corroboration, those cases are apt to blow up on the prosecutor unless the problem witness holds up well on cross-examination. (These cases play more to the defense counsel’s strength — he can compellingly tell a jury, “You can’t in good conscience send someone to prison based on this scoundrel’s testimony,” without having to come up with a plausible alternative explanation of the prosecution’s evidence.)

I always found forensic cases especially frustrating because the various “sciences” involved are not always generally accepted by the scientific community and, worse, the experts always hedge — no matter how bulletproof their scientific testing seems to be. There were a number of cases in which I decided, for example, not to get fingerprint analysis done on guns that were seized from places I could tie to defendants. The reason: if it didn’t have prints, that would not mean the guy hadn’t used the gun (the pros know how not to leave prints); yet by ordering the tests, I would have given the defense the argument that I knew my case was weak so I tried to shore it up with prints and didn’t find any. And even if I was lucky enough to get a print, the fingerprint expert would often testify that he was 90 to 95 percent certain it was the defendant’s — which, to some jurors might say, “that means there’s a 5 to 10 percent chance it wasn’t him” . . . even if the other evidence in the case made that implausible. That is, sometimes, even where it seemingly increases the probability of the prosecution’s theory of guilt, forensic evidence can suggest doubt. If you have a case that is built primarily on forensics, good defense lawyers are going to be able to sow doubt all over the place. I don’t know whether that’s what happened in this case — I just gather from the commentary this morning that forensic evidence played a huge role in the case. 

2) Juries, in general, are much more responsible than they are given credit for being. They tend to follow judges’ instructions very conscientiously. In high profile cases, judges tell them not to taint their fact-finding by reading, watching, or listening to the coverage, and they comply. More significantly, they really do follow the directive that the defendant has a right not to testify and that they therefore cannot draw an inference of guilt from a defendant’s decision not to take the stand. This is a truly remarkable thing. Before absolving someone of committing a terrible crime, people want the defendant to look them in the eye and convince them that he/she did not do it. Yet, we tell jurors that to take that commonsense position is to violate a defendant’s constitutional rights. So, hard as it is, jurors usually bend over backwards not to hold a failure to testify against the defendant.

Just to be clear, I’ve never liked this interpretation of the Fifth Amendment, which is a “refinement” of the criminals’ rights revolution of the sixties and seventies. To me, the Fifth Amendment means an accused has a right not to be compelled to testify, not that the accused has an additional right to deny the jury, the prosecutor, and the court the ability to draw the perfectly reasonable conclusion that, if there were a plausible explanation consistent with innocence, the accused would have provided it. But that ship sailed half a century ago, and even though it remains a perfectly reasonable conclusion to draw, the law says jurors can’t draw it . . . and it is a law that jurors scrupulously follow in my experience.

3) Last thing: I love the bumper sticker Rush suggested at the top of the show today: “If you can’t do the time, do the crime in Florida!”



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