OJ Simpson & Casey Anthony Trials -- Landmark Success for American Judiciary?
Feb. 20th, 2015 Osceola County Bar Speech
In my elevator speech I introduce myself as an investigative
journalist for Harvard’s Nieman Foundation for Journalism,
Random House, and the Financial Times. In the past six months
I’ve researched, written, edited, and published full length books
for attorneys from Australia to Boston.
I usually close my introduction by saying“I inform and change your perspectives.”
Assomeone I spoke tojust a moment ago said, Changing minds about O.J.
Simpsonand Casey Anthony is going to be a tough sell.”
I have the good fortune to work with top professionals who
support the work of trial attorneys. One friend is the best private
investigator in the country, Pat McKenna; my other associate is
one of our best jury consultants, Dr. Amy Singer.
As it happens, Pat and Amy worked for the defense on both the
O.J. Simpson and Casey Anthony trials. The football star was
charged with stabbing to death ex-wife Nicole Brown-Simpson
and friend, Ron Goldman. Casey Anthony was charged with
capital murder for the unreported death of her two-year-old
daughter, Caylee.
Those trials lend themselves to comparison for a couple of
reasons. One obvious similarity is they are both “trials of
the century.”
Another similarity is that their juries shocked prosecutors, the
country {and probably the defendants} by their acquittals. Of
course there was another court in judgment of them: the court of
public opinion who believe they got away with murder. The two
defendants remain objects of public derision despite their
acquittals in our courts of law.
As remarkable as these case similarities are, so too are their
contrasts.
O.J.’s jury was sympathetic, but the Casey Anthony jury wept
when they realized their decision would free the single mom
who never reported the death of her two-year-old daughter.
Simpson was a celebrity, and Casey Anthony was an unknown,
pretty much average single mom living in Orlando’s suburbs.
Assistant Prosecutor Jeff Ashton recalled first impressions in
the final case of his career as a prosecutor in his excellent book,
Imperfect Justice.
"There had never been any trouble at the house, even when
Casey and her older brother, Lee, were at the height of their
teenage years. The Anthonys seemed the definition of blissful
suburbia, especially with the addition of the angelic, bright-eyed
baby girl, {Caylee}.”
I researched these trials from a legal journalist’s perspective and
concluded, incomprehensibly to some, that both trials are in fact
landmark successes for the American judiciary. I have the task
today to try and win your agreement that in a big picture sense,
it’s not even a close call.
In researching the O.J. case I wondered how many defense
attorneys have silently prayed for a jury that would nullify a law
in cases where police, even if unintentionally, spoiled or lost
critical evidence that was exculpatory for their client?
I invite you to join me in a retrospective snapshot that takes a
fresh look at that trial, to see if we can agree the jury was
justified in using its authority to nullify California’s law against
murder.
The issues of jury nullification today are settled law. In
researching the subject I was surprised to learn how the
competing arguments about it have shaken out into a sort of
uneasy truce between the authority of judges and the power of
juries. Simply put, in a court room environment, a judge
instructs and a jury decides.
Criminal jury instructions will contain a strong admonition from
the judge that the jury must follow the law as she states it and
apply the law to the facts presented by the evidence.
But at the same time, courts have held that jurors can vote their
conscience without punishment.
As Dougherty said, there is “an unreviewable and
irreversible power in the jury, to acquit in disregard of the
instructions on the law given by the trial judge…” See United
States v. Dougherty, 473 F.2d 1113, 1132 (D.C. Cir. 1972)
Risks from nullification are self-evident. If criminal juries were
informed of their right to disregard the law a moment after
receiving a case from the trial judge, each courtroom would
become a law unto itself. Judges would become managers in
effect working under a new system of jurisprudence in each new
case they heard, albeit in their own court room.
So as a check on the unreviewable authority of juries to nullify a
law, neither judges or counsel can advise the jury of that power.
Trujillo said, “We can’t encourage jurors to violate their oath.
Neither the court or counsel should encourage jurors to violate
their oath.”
Some loose ends in the character and scope of a jury’s authority
were addressed in Thomas,
The court observed,
"the power of juries to `nullify' or exercise a power of
lenity is just that -- a power; it is by no means a right or
something that a judge should encourage or permit if it is
within his authority to prevent,"
1
Florida, to its credit, has been unambiguous in its treatment of
jury nullification. Florida case law leaves no doubt on the basic
issue of nullification.
1
In Sanders v Florida the court said,” jury nullification as a right
is without legal foundation; it requires a jury to violate its oath
and ignore the court’s instructions on the law. Sanders v.
State, 946 So.2d 953, 957-58 (Fla. 2006)
I looked at how Florida treats jury pardons; meaning where the
jury acquits on a higher charge with the intent to convict on a
lesser charge, thus the higher charge being in effect, nullified.
State v Montgomery: “A jury must be given a fair opportunity to
exercise its inherent ‘pardon’ power by returning a verdict of
guilty as to the next lower crime.” State v. Montgomery, 39 So.
3d 252 (Fla. 2010)—
Finally, I looked at the issue of free speech and a jury’s right to
be informed of its authority in regards to nullification.
Title 18 U.S.C. Sections 1503 and 1504 prohibit influencing
jurors either verbally or in writing.
Pennekamp v Florida established that “due process requires an
impartial jury, free from outside influences.”
There actually was a violation during the Casey Anthony trial
involving an advocate for jury nullification. Judge Perry
sentenced him to jail for distributing literature outside of the
judge’s prescribed area for free speech.
Most instances of individual juror nullification are not supported
by law. A member of the venire who privately supports
nullification is an example. If asked during voir dire, ”Do you
have any beliefs that prevent you from reaching a decision based
strictly on the law?” If she answers “no,” she can be charged
with perjury, among other things.
So the institutions of justice seem in balance. The likelihood of
jurors effectively creating a new law by nullifying an existing
law are remote indeed, if not unheard of altogether. Still the
authority for juries to acquit an accused because of what they
perceive as an unfair application of the law is real. We know it
exists because it surfaced most recently in the 1995 O.J.
Simpson trial.
It is remarkable upon reflection that twelve members of the
community, strangers to one another, from diverse cultural and
economic circumstances, picked by a prosecutor to serve
together as a jury, could ever choose en masse to reject a law
against murder. The Simpson jury acted out of a conviction
that our system of justice unfairly applied California’s law
against murder to the person they were impaneled to judge.
The jury acted in spite of the evidence and rejected the law
because of the way it was applied against the defendant.
They felt compelled by what they heard from prosecution
evidence in the four corners of Judge Ito’s courtroom to acquit
the defendant even if the evidence strongly suggested the
defendant in fact may have committed a double murder.
Unanimous jury nullification is rare. Its occurrences are
generational. So when unanimous jury nullification happens, it
counts for something, and deserves our attention.
Before the Simpson trial in 1995, Rodney King was beaten by
Los Angeles police. The four white police officers were later
charged in the incident. The original judge, Bernard Kamins,
sent a private message to prosecutors, “Don’t worry, you can
trust me.” He was removed as judge for bias. Los Angeles
Mayor Tom Bradley said his city had a history of racially
motivated incidents in the police department.
It was significant that white police officers involved in the King
beating were acquitted by white jurors. Less than two hours after
the acquittal was announced Los Angeles suffered the worst
riots in its history: 100 people died and over 2000 were injured.
It was not missed on the minority jury in O. J.’s trial that lead
detective, Mark Fuhrman, was called to the stand and asked if he
planted evidence to frame O.J. Detective Fuhrman responded
by taking the Fifth Amendment under advice from his attorney.
Fuhrman was later convicted of perjury for denying he ever used
racist language.
An O.J. juror recently told a national TV audience that the
credibility of the evidence was so problematic for jurors they
reached a point that they couldn’t believe anything investigators
said and lost confidence in the state’s evidence midway through
the trial. They believed police did plant evidence to convict
Simpson.
Once in the deliberation room, the O. J. jury judged the system
of laws in Los Angeles as they were being applied to African-
Americans, and found them egregious. The jurors believe to this
day they made the right decision to unanimously nullify the law
of murder Simpson was charged with regardless of
overwhelming evidence against him.
A little known case from the federal 4th circuit spoke to the
Simpson jury’s decision. The court said it recognized “the
undisputed power of the jury to acquit, even if its verdict is
contrary to the law as given by the judge and contrary to the
evidence. If the jury feels that the law… is unjust…for any
reason which appeals to their logic or passion, the jury has the
power to acquit, and the court must abide by that decision.”
U.S. v Moylan, 417 F.2d 1002,1006 (1969)
After Simpson’s acquittal, investigations into prosecutions in
LA resulted in 100 criminal cases being reversed and $100
million paid in damages to defendants. An independent report
described the LAPD as “a paramilitary organization that was a
bastion of racism and bias.”
Public trust in the administration of justice in the African-
American community plummeted to an all-time low. The DOJ
won a consent decree to address patterns or practices of
excessive force, false arrests, and unreasonable searches and
seizures by LA police.
Bill Bratton was brought in to be police commissioner. By the
time he left, six years later, the LA Times reported,“ The Los
Angeles police force is better trained, more diverse, better
disciplined and better led than the one that betrayed the city's
trust in 1990’s.”
The jury spoke for our American judiciary in its acquittal of O.
J. Its decision to acquit turned a new page in how our laws are
administered for the African American community all across the
country. Unanimous jury nullification, though rare, is something
the legal community should pay attention to and embrace.
As a legal journalist, I see a nexus between the power of juries
to unanimously nullify laws and the constitutional relationship
of citizens to their government which maintains government as
its servant and not the other way around.
The legal community is sometimes conflicted over the issue of
whether our legal system is about justice. The famous Learned
Hand and Oliver Wendell Holmes Jr.’ colloquy reflects that
fissure. Judge Hand advised Justice Holmes Jr. to “Do justice
sir.” And Holmes replied, “That’s not my job, I apply the law.”
Professor Alan Dershowitz, a member of Simpson’s Dream
Team has famously said, “a criminal trial is never about seeking
justice for the victim.”
As a writer, I am not so much persuaded by the structural cracks
in our criminal justice system that I feel compelled to give up
the ideal of justice as the main business of our legal system.
After listening closely to the Simpson juror on CNN recently, I
was heartened. I see the history of unanimous jury nullification
as a rare and noble effort by ordinary people to remind judicial
institutions of the need to stay attentive to the idea of justice as
your main business.
Ultimately, a judge establishes the rules for trial in her court, but
it’s a jury of citizens who ultimately determine guilt or
innocence for the accused.
Which brings me to Casey Anthony.
On television everyone saw the same pictures: A single mom
who knew her two-year-old child had been killed and never
reported it. She didn’t appear to grieve. When her mother called
the sheriff to arrest her, she lied to investigators. It seemed
assistant prosecutor, Jeff Ashton, spoke for all of us when he
said in words the entire country seemed to second: “If a mother
doesn’t report the death of her child, she’s guilty.”
Caylee’s death was a tragedy that gripped the nation. Ashton’s
comment summarized neatly the theory of prosecutors and he
also won the public’s agreement that the young mother’s
behavior was damning consciousness of guilt.
In the court of public opinion, the question was asked, “what
mother would not report the death of her child, and then go to
a nightclub and pose for pictures? How could a mother lie to
police about where she worked and make up a story about a
fictitious nanny who she said kidnapped Caylee?” It seemed
like she didn’t care about her own daughter’s death. Early on in
the court of public opinion, it was “case closed.”
The prosecution’s theory was that Casey Anthony tired of being
a single mom: she wanted to party. In short, she was a horrible
mother, and killed her child for that reason.
I have researched my book exclusively from trial evidence. I
read all the prosecution interviews and witness statements,
several times. In the event, I have grown to admire the
prosecutors’ skills. Still, as a writer I have to note there was no
evidence in support of that theory. In fact, all the evidence
gathered, and it is voluminous, argued the exact opposite.
More than a dozen close friends, many single moms with their
own children were interviewed by detectives and asked to
describe what they observed in Casey’s relationship with her
daughter, Caylee. They volunteered anecdotes of her unique and
protective bond with Caylee. They told investigators Casey
Anthony was an good mother. They were right.
Before addressing the issue of her behavior after Caylee’s
death and consciousness of guilt, let me say for those who recall
details of the trial, I will address those during Q & A.
Such things as hair banding, an odor of death in the car, and
chloroform evidence in the trunk, these are all explained in my
book. I can say this: If the sum total of evidence brought against
the accused were interpreted in a light most favorable to the
state, {a standard the defense does not have to meet} there
would still be nothing that ties any of that evidence to the
defendant.
It was a circumstantial evidence case. The state’s most important
physical evidence related to the car she drove. But the title was
not in her name, and her father, George, had his own set of keys
and drove the car during the 31 days when Caylee’s
disappearance went unreported. It’s a note of some significance
that both George and Casey were home when Caylee was killed.
It could have been either who removed the body from their
home and left her in a swamp only a block away. But I digress.
For the state in Judge Perry’s court and for the media’s court of
public opinion, it was the behavior of the defendant after her
child’s death that led to the conviction she must be guilty. If her
behavior didn’t demonstrate consciousness of guilt, then what
would?
Of course consciousness of guilt behavior, although admissible,
is circumstantial and needs corroboration to meet a criminal
standard of “beyond a reasonable doubt.”
Courts have said the following: “Acts of concealment by an
accused are competent to go to the jury as tending to establish
guilt, yet they are not to be considered as alone conclusive, or as
creating a legal presumption of guilt; they are mere
circumstances to be considered and weighed in connection with
other proof, with that caution and circumspection which their
inconclusiveness when standing alone require.”
Hickory v. United States, 160 U.S. 408 (1896).
However, the same court said, “attempts on the part of the
accused to suppress evidence, to suggest false and deceptive
explanations, and to cast suspicion without just cause on other
persons…tend somewhat to prove consciousness of guilt, and
when proved exert an influence against the accused.”
Hickory v. United States, 160 U.S. 408 (1896) (citing Commonwealth v. Webster, 5 Cush. 295, 316 (1850)).
Another federal court said, “It is truthfully said by learned
counsel that there is no standard as to how a defendant upon trial
for an infamous crime ought to demean himself; that exhibitions
of shame, temperament, and nervous strain are likely to be
interpreted as signs of a guilty conscience. The same
observation, however, may be made as to a person's demeanor
when arrested or suddenly charged with crime. There is no
standard as to how a person ought to behave under such
circumstances. Conduct will vary according to sex, age,
temperament, and past experience. Still demeanor on such
occasions has always been held competent evidence as bearing
on the question of the defendant's consciousness of guilt.
See Waller v. United States, 179 F. 810 (8th Cir. 1910).
So in discussing the Casey Anthony case, it seems
important to frame the discussion at the outset by
understanding that the state’s case was circumstantial.
The essential evidence against the accused was
consciousness of guilt behavior after the death of her
child. As it turned out all of the state’s evidence in total
could have just as easily pointed to another member of
the Anthony family.
As noted, my sources are exclusively from trial evidence.
In the event, I discovered an explanation for her behavior
that argues strongly in support of the jury’s acquittal. I also
discovered the identity of the person or persons that
withheld information from detectives and wanted her
charged with Caylee’s murder.
There were two people home when Caylee was killed:
Casey and her father, George. There are three
independent sources who said George knew more than he
admitted to detectives about Caylee”s death.
As an investigative journalist, I am burdened by an open
mind. I don’t find it difficult to consider the possibility that
the killer of two-year-old Caylee was some other member
of the Anthony family and not Casey.
The acquitted defendant was evaluated and interviewed
by nine different forensic psychologists over a two-year
period. They reached a consensus that she was not a
sociopath, or a psychopath. Whatever else one thinks
about her, it is for certain her behavior was a reaction to
the traumatic death of her child, Caylee, a death she says
was caused by her father.
The nine forensic psychologists reported that there was no
DSM-4 category of mental illness that applied to her.
One psychologist who had worked on 2000 death penalty
cases told a national TV audience on Dr. Drew that she
was not capable of killing her daughter. That is also what
her friends told detectives. It was simply out of the
question for those who knew her, many since she was
eight-years-old.
I uncovered new evidence. The most startling is the role
that Casey’s mother, Cindy, played in the narrative of this
case.
There is rich irony in this trial of the century. Nobody liked
the defendant {after she was charged}. I found three
sources that didn’t want to support her innocence, but
were compelled by their commitment to tell the truth and
did support her innocence.
First, her friends wanted to distance themselves from her,
and were not happy to be in the media’s eye when called
in by detectives to be interviewed about the case.
However, they eagerly reported she was a good, caring
mother.
Second, one of the psychiatrists wanted to be excused
from his subpoena to testify about his evaluation of her.
He was concerned the media might report he was
advocating her innocence.
Prosecutors learned she said her father, George, abused
her beginning when she was in third grade, and they
asked a top psychiatrist who evaluated her directly if there
was any reason he did not believe what she said. He told
assistant prosecutor Jeff Ashton, “No, there was no
reason not to believe her.”
Third, the jury cried when they realized their decision to
acquit would not be understood by their friends and
neighbors, but they voted as Judge Perry instructed them
anyway. One of the jurors literally was forced out of town
when the trial ended because of the public’s reaction to
their verdict.
I am sure there are defense attorneys who pray for a jury
that can ignore wholesale media attacks on a defendant
and deliberate solely from the evidence presented within
the four corners of the court room. That is what the Casey
Anthony jury did. It was the social media trial of the
century, and this jury’s decision stands as a landmark
success for the American judiciary.
See power point attached