The Ten Percent Solution

As you read this Casey Anthony is a free woman, having been acquitted by a jury in Florida of any criminal liability in the death of her two-year-old daughter, Caylee. As a rule, I don’t pay attention to such things, but I happened to catch the closing argument of the lead prosecutor, then, mesmerized, I listened to the defense argument. Then I got up early on July 4th to listen to the prosecution’s rebuttal. The State of Florida had a powerful case — 22 year old Casey had partied for over a month after her daughter’s death, while telling her parents and others that Caylee was still alive. The remains of the little girl were found six months later, badly decomposed, with the duct tape over the mouth and nose that surely killed her. There was strong evidence that Casey had carried her daughter’s corpse around in the trunk of her car until the odor became so bad that she presumably disposed of the body in the swamp.

The defense led off with an opening statement that endeavored to use the “abuse excuse,” claiming there would be evidence that Casey had been molested by her father, George Anthony. No evidence to that effect was ever presented, and Casey herself never took the stand. Casey had told wildly conflicting and invariably false tales explaining her daughter’s absence, including the alleged abduction of Caylee by a fictional nanny. But in closing argument the defense structured their case on the absence of proof as to the cause of death (something the prosecution, strictly speaking, does not have to prove) and the “motive” for a mother to kill her young daughter — an interesting feature of any CSI case, but again, not something the prosecution has to prove.

I joined with many others in outrage at the acquittals. In fact, one juror stated that the verdict left her sick to her stomach. But my disappointment was tempered by the knowledge, after many years of litigation, civil and criminal, on the defense and on the prosecution, that juries are peculiar organisms that are utterly unpredictable. The one constant that I’ve found is that if juries decide early on who they “like” and who they don’t like, the potential for a skewed verdict grows exponentially. That feeling may stem from the appearance, attitude, and gestures of one of the parties (like the defendant), or the lawyers, or sometimes both. Defendants who are, or seem likable, or sympathetic, have a giant leg up. Conversely, defendants who snarl, sneer, smirk, or are otherwise unappealing, can do more to torpedo their own case than the best prosecutor in the business. An old law school professor of mine (gee, I guess they’re all old by now), once told me something that has proven true time and again. “The key to effective advocacy,” he intoned, “is to get the jury to want to rule in your favor. That’s ninety percent of the game. The other ten percent of the task is for the lawyer to give them a legal excuse to go with their hearts.” That’s what happened in the O.J. Simpson case–a Heisman Trophy winner, NFL superstar, movie actor and comedian–that jury would likely have acquitted him if the murders had been witnessed by the College of Cardinals broadcast live from Yankee Stadium at high noon. They did not want to convict a national icon, and so the phantasmagorical image of a racist cop tampering with the DNA evidence gave them the 10% legal excuse they wanted.

So maybe Casey Anthony should take up golf. Then she and O.J. can shoot a few rounds together and hunt for the still-missing killers of their family. They gotta be out there somewhere.