Many people were astonished that Casey Anthony was found not guilty of murdering her child.  How could this happen when it appeared to people who followed the trial that she was obviously guilty?

I’ve posted four reasons previously and offer a couple more here:

Reason #5  The prosecutors are incompetent or distracted.

The best example of this problem occurred in the OJ Simpson trial.  Many people were convinced he was guilty, but after a year-long trial a jury found him Not Guilty.

The prosecutors didn’t have a direct eye-witness case, but they had strong circumstantial evidence.  Juries can find a defendant guilty with either direct or circumstantial evidence if it’s proven beyond a reasonable doubt.

My own assessment of the trial is if the prosecutors had put their evidence before the jury in a shorter time–a few weeks–they probably would have won.  The longer they dragged-out the trial, the more time and opportunity the jury had to find reasonable doubts.

They also did things that not even an inexperienced prosecutor would do–asking OJ Simpson to try on the “famous glove.”  It gave Simpson a wonderful opportunity to pretend the glove didn’t fit–and there wasn’t one thing the prosecutor could do to counter that mistake.  It was such an inept move it even gave the defense their mantra for the rest of the trial:  If the glove doesn’t fit, you must acquit.

Although the lead prosecutor was experienced, I think the presence of TV cameras, the press, and the celebrity of the defendant all distracted the prosecution team and they blew it.

In my own, less notorious experience, I tried a case as a defense lawyer where the defendant was charged with possessing some stolen sound equipment.  He essentially admitted it during his testimony, but the prosecutor led the jury to believe the defendant was a major criminal fencing huge amounts of stolen goods.  When her evidence didn’t prove that, the jury acquitted him.

Reason # 6  A good defense lawyer.

When I was first out of law school learning how to try cases, I held many of the local trial lawyers in awe.  They seemed to have a magic touch and could get anyone off.

Years later, I’ve changed my mind–to a degree.

Even the best defense lawyer must work with the evidence the government has.  Regardless of how smart or good a defense lawyer is, if the evidence proves beyond a reasonable doubt his client is guilty, the jury will convict.

However, a good lawyer can do a few things to change the equation:

1.  They can exploit the weaknesses in every prosecution case.  Even one flaw may cause the jury to have a reasonable doubt about the defendant’s guilty.

2.  They can exploit technical details of law that weaken the prosecutor’s evidence.  For instance, if the search of a defendant’s house was unconstitutional, any evidence seized at the house can’t be used in the trial and is never presented to the jury.

3.  They can prevent certain critical pieces of evidence from going to the jury because of the way they’re offered in the trial.  The rules of evidence dictate the proper and legal way to introduce evidence to a jury and may be violated by prosecutors.

Reason # 7  Sympathy

In my experience, sympathy for a defendant usually doesn’t get a Not Guilty.  Jurors are specifically warned by the judge not to allow sympathy to play a role in their decision.

However, in close cases where the government’s case is weak, I think jurors would prefer to “give the accused a break” rather than convict.  Maybe this isn’t sympathy, but it comes close.  If the defendant seems to be the underdog, jurors have all the human emotions which can lead to a not guilty.

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The first two reasons can be:

1.  The prosecutor must prove an accused guilty beyond a reasonable doubt; the accused is presumed innocent.

2.  The prosecutors sometimes lack enough evidence to convince a jury beyond a reasonable doubt.

3.  Even if a prosecutor starts a trial with enough evidence, during the trial, the case and evidence may fall apart.

Here’s an example:

I prosecuted the live-in boyfriend of a woman who’s two daughters said he sexually assaulted both of them.  We were all convinced the guy was guilty and the young girls maintained their story through our questioning and to their therapists.  We went to trial.

Things were going well until the girls were called to testify in open court.  They both answered the questions well until I got to the critical questions of what the boyfriend did to them.  Even using anatomically correct dolls for the girls, neither of them were able to say to the jury what happened.  They couldn’t say the “magic words” that described how they were sexually assaulted.

The jury found the boyfriend not guilty.

Although we had used trained female counselors to prepare the girls for their testimony, when they got in front of the jury, they froze.  Faced with a situation like this, a prosecutor tries to fix the problem but often can’t.

4.  Prosecutors make a “rush to judgement.”

The charging of the IMF president, Dominique Strauss-Kahn is an example of this reason.

Prosecutors assembled evidence quickly including the sexual assault victim’s statement, forensic evidence, and photos of the crime scene.  For some reason (New York DA Cyrus Vance, Jr. says they were worried that Strauss-Kahn would flee the country and elude prosecution) the prosecutors charged the case quickly and had Strauss-Kahn arrested.

As it developed, their main witness had serious credibility problems to the point the prosecution realized their evidence would be tainted and they’d be unable to prove the case to the jury.  They dismissed the charges.

In most criminal cases, the prosecutor has adequate time to assess the strength of the evidence and, even if they think the accused is guilty, when they can’t prove it beyond a reasonable doubt at trial, they should dismiss.  Prosecutors have an ethical duty to do so.

Most states allow the prosecutor to re-charge the a person later if more solid evidence is obtained.  In the Strauss-Kahn case, I think the prosecutors made a rush to judgement and moved too quickly without full and adequate investigation of their evidence.

It’s also an example of how social and political pressures affect the decision to prosecute or not.

Next post, we”ll look at the OJ Simpson trial and why the prosecutors blew that case when they may have been able to convict him easily.

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How could this happen?

In my 30+ years of trying criminal cases, both as a prosecutor and defense lawyer, I can tell you that it’s rare, but it does happen.  Why?  How can a seemingly guilty person (like O.J. Simpson) “get off?”  Here are seven possible reasons why this happens, including the Casey Anthony case.

Reason #1  The burden to prove guilt is on the government, not the accused

The key to understanding why guilty people sometimes “get off” is to remember what happens in a trial.  It’s not the balancing of two sides, each with their own version of the facts, in order to determine who’s correct.  For you parents, think of your kids getting into a fight with each other.  You intervene and listen to both sides and, like an arbitrator, decide who’s guilty and who’s innocent.

A criminal trial is much different.

Remember that every accused person is presumed innocent all during the trial and that will only change if the jury decides to do so.  That means even after all the evidence and been presented to the jury and they’re deliberating, the accused must still be presumed innocent.

The question the jury wrestles with is whether or not the evidence presented by the government during the trial has convinced all twelve jurors beyond a reasonable doubt that the presumption of innocence should be removed and the defendant found guilty.  They don’t balance the prosecutor’s evidence against the defendant’s evidence to determine which tips the scales the most.

The accused doesn’t have to present any evidence and may not even say a word–as  Casey Anthony chose not to testify in her trial.  In American law, the jury cannot “hold this silence against” an accused person and think she’s hiding something.  The burden to prove guilt remains with the prosecutor.

In 90+% of trials, the prosecutors meet this burden and juries find defendants guilty.  But sometimes, they don’t as in the Anthony or OJ Simpson cases.

Reason #2  Prosecutors don’t have enough evidence.

In the United States, once a case has been investigated, the prosecutors have the authority to charge a person with a crime.  Before they do so, the prosecutor must believe they have enough evidence to convince a jury.  Sometimes, they don’t.

For instance, in the Casey Anthony trial, the prosecutor’s case was built on circumstantial evidence–that’s because no one directly witnessed the death of the child.  Circumstantial evidence is as valid as direct but it makes for a more difficult case for a prosecutor.  It’s like seeing smoke–you’d think there’s a fire, but until you actually see the fire itself, you can’t say beyond a reasonable doubt that a fire exists.

Any good prosecutor will try their best to assemble enough evidence through investigation, witnesses, and forensic proof, to convince a jury, but sometimes that’s still not enough–which is probably what happened in the Anthony trial.

I’ll continue looking at the reasons why this could happen in my next post.

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