Politics & Policy

Why I Wish Eric Holder Watched the Anthony Trial

Sometimes, evidence is not enough.

When the Casey Anthony verdict came in Tuesday, my mind went back to my days as a young federal prosecutor. I tried a lot of bank-robbery cases and only lost one. That’s the one I remember.

The defendant’s name was “Mutt” Matlock, and he taught me a few things about juries and “slam dunk” cases. A man who looked an awful lot like Mutt held up a bank in rural middle Tennessee. He used a Lugar pistol, had a piece of tape on his face, and made off with several thousand dollars in cash. One of the cashiers gave the police a description, and they beat a hot trail to Mutt’s door. They found Mutt, a Lugar, a piece of tape on a blanket under the bed, and several thousand dollars in sequentially numbered bills. For me, it was one of those slam-dunk cases Eric Holder likes to talk about so much.

At the trial we proved all of this. I couldn’t believe my good luck when Mutt’s lawyer put him on the stand, giving me a chance to cross examine him. But Mutt put on the good ol’ country-boy routine. He had no idea how all that stuff got to his place. I tore him to shreds, taking him through the details and the mountain of evidence against him. Mutt was just bewildered. “I’d like to help you out, Mr. Thompson, but I just don’t know,” he said. He was literally defenseless against my onslaught.

When the jury came back with a not-guilty verdict, I almost fell out of my chair. When we adjourned, I asked the foreman how they reached their result. “Well,” he said, “he was so dumb and befuddled, we just didn’t think he could have pulled off a precision bank robbery like that.” My brilliant cross examination had helped Mutt implement his strategy.

As the sportscasters say after a big upset, “That’s why they play the game. No outcome is ever a sure thing, when you’re dealing with human skills, emotions, and understanding. The Anthony case is just another reminder of this. But the sensational nature of the case aside, there are some other reminders to be drawn, some of national import.  For example:

In the first place, a trial is not about obtaining justice as much as it’s about implementing a system of rules.  Following the rules is more likely to produce justice than if you don’t. That’s why they call it the “the rule of law,” not “the rule of justice.”

Casey may have gotten off on an insanity defense. I know that this defense wasn’t pleaded as such, but, Casey’s having been caught in the most ridiculous, mind-boggling avalanche of lies, her lawyer basically argued that she did what people do when they’re as screwed up as this woman appears to be. That would explain her partying after the disappearance of her daughter and other bizarre behavior. What look like the actions of a murderer, may just be the actions of a nut-job.  Not exactly like Mutt’s case, but in the same ballpark

The prosecution had almost 400 pieces of evidence. Sometimes four is better than 400. Most of the 400 is bound to have holes in them of some sort. Pretty soon the jury is concentrating on the holes and not the solid pieces. So “how can you not have reasonable doubt with so many holes?”

Although there was plenty of it, criticism of the defense lawyers is necessarily uninformed. We don’t know what they know from their investigation. Most important, we don’t know what their client is telling them or what restrictions she is placing on them. On the other hand it doesn’t necessarily mean they did a good job just because they won. Some cases are going to be won regardless.

For example…

Sometimes a case is won or lost as soon as a jury is impaneled. Although you don’t know it at the time, and you never really know for sure, I’m convinced that if by skill or luck a defense lawyer gets one or more jurors hardwired in his favor, he’s probably going to at least get a hung jury, almost regardless of the evidence. Some people are very reluctant to pass judgment on others and will not convict upon circumstantial evidence, no matter how strong, even though the law requires it. Often a lawyer simply can’t get truthful answers about this from prospective jurors on voir dire. A prospective juror may not even know this about himself. That’s why lawyers so often rely on prejudices more than anything else: Blacks are more sympathetic. Those of German heritage are by-the-book. A young woman is likely to be harder on another young woman, etc.

Jurors sometimes confuse “reasonable doubt” with any doubt. The “any doubt” standard would require at least a confession or personally witnessing the defendant committing the crime. I say “at least,” because people sometimes admit to crimes they have not committed. And, of course, if a person witnessed the crime he would be disqualified from sitting on the jury. This makes for “easy pickins” for a competent defense lawyer, who can raise at least a smidgen of doubt about even the most reliable piece of evidence.

Until the Anthony verdict, lawyers thought that if you promise something in your opening statement and you didn’t deliver it, then you would be punished by the jury. It happened in the O. J. Simpson case, but that case was so laced with racial elements it hardly stands as precedent for much else. Casey’s lawyer promised “molestation” and “accidental drowning” and produced no evidence of either. The jury was instructed to consider only the evidence, not lawyers’ statements, but it is likely that some or all of them could not erase such dramatic and troubling images from their minds as they heard the evidence and thought about how the evidence squared with what the lawyer had said. It may have helped produce reasonable doubt. This is going to have to be addressed in Florida and perhaps other jurisdictions. Either the jury should be specifically instructed that no proof was produced and cannot be considered or the lawyer should be disciplined, or both. This is not something that lawyers should be rewarded for.

My read on the case? Guilty of murder beyond a reasonable doubt. You don’t make an accident look like a murder, and you don’t place duct tape over the nose and mouth of a child who is already dead. I simply think that you had some jurors like the ones I’ve described. These things happen. People are fallible. Our system is fallible.

Apparently our own president and attorney general don’t understand this. It is with amazement that I read that a Somali terrorist is being imported into the United States to be tried in a U.S. civil court and accorded all the rights of an American citizen — anything to keep him out of Guantanamo and the military tribunal where he belongs.

We gladly run the risk of setting the guilty free in order to protect the rights of American citizens. Now we are running the same risk for the benefit for those with whom we are at war. One principle is as old as our country. The other was invented by this administration. Clearly, they learned nothing from the Casey Anthony trial. Either that or they are willing to run the risk to us all for the sake of their rigid and misinformed ideology.

— Fred Thompson, who represented Tennessee in the U.S. Senate from 1994 to 2003, is an actor, lawyer, and political commentator. His weekly commentaries also appear on his site, Fred Thompson’s America.


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