Except for one thing. The not guilty verdict on the most serious of the charges has made a lot of folks, spurred on by the insufferable Nancy Grace, apoplectic. “Of course, she was guilty,” bellow these Judge Roy Bean wannabes. “That whole ‘beyond a reasonable doubt’ thing is all well and good, but I’ve got a strong feeling [not to be confused with a thought process] she dunnit.” The trouble is, “beyond a reasonable doubt” does matter. It is the foundation of our system of criminal law: the belief that it is better to allow the guilty to go free that to condemn the innocent. (Lawyer and ethicist Jack Marshall has made this point persuasively and repeatedly, most relevantly here.)
It doesn’t take any great acumen or a particular skill set to be a good juror. It requires only a willingness to pay attention, a respect for the system, and a fundamental sense of honesty and fair play. In my admittedly limited and by definition anecdotal experience, juries take their work seriously. I’ve written in the past about the importance of authority, of expertise, and I’ve got a piece simmering on the back burner in which that concept is especially foregrounded. And the experts on this case are the people who were there.
I do mean that quite literally. I happen to make my living in part by determining what behaviors are likely to make an audience believe in the truth of a moment, but that doesn’t mean other people don’t have that same facility. On a good day, I can help an actor become more believable; John Doe in the audience might not be able to do that, but he can tell you whether a performance was convincing or not. And trials are, to use the word I trot out in the Advanced Play Analysis class, performative.
One of the advantages (and disadvantages) of live theatre relative to, say, movies, is that the spectators can watch whatever they choose rather than what the director chooses to show them; jurors can not only hear the nuance in a witness’s voice, they can watch the defendant while the cameras (if a judge is silly enough to allow them) are pointing at the witness or vice versa. In my only experience as a juror, I happened to catch a glance from the junior policeman to his senior partner. It spoke to me of a desire to please a superior rather than an imperative to tell the truth. You can be sure it didn’t show up in the transcript, and even a courtroom camera, had there been one, wouldn’t have followed the line of his gaze.
I didn’t base my opinion on that split second alone, but I did look at the purported evidence against the defendant from a slightly different angle. And that led me to “reasonable doubt” about the most serious of the charges. Make no mistake, the guy was what my grandmother would call a “wrong ‘un.” He was almost certainly guilty of a fair number of crimes with which he hadn’t been charged, and probably of the ones for which he was being tried. But “probably” isn’t good enough in a criminal trial. We convicted him of the one count we were sure of and acquitted him of two others.
I am not ever—I promise—going to condemn a jury for acquitting someone. There’s a point at which we have to trust the system. (Of course, guilty verdicts when there is a clear demonstration of doubt are another matter.) Was the case a little less airtight than the moronic punditocracy would have us believe? I don’t know, and neither do you. The jury thought so. They examined all the actual evidence—you know, including the stuff that didn’t make it onto the three-minute-long “in-depth” reports on the nightly news shows—and found enough holes in the prosecution’s case to make for—here’s that phrase, again—reasonable doubt. As one juror put it, “When the prosecution rested ... I was stunned. I thought there would be more. I really did. And I was waiting for more. ... A lot of us felt that way, that there was not enough evidence to fill in the gray area that we needed to be filled in.”
But no one, apparently, told the chattering class that an acquittal when the jury is not entirely convinced by the prosecution’s case is a good thing. Instead, not only do we get death threats against jurors from the usual morons, but also the mockery of… well, whoever wants to make a point.
If you’re Alan Caruba of Tea Party Nation, the case is symptomatic of the decline in American values and tells us that President Obama is a liar in large part because he grew up in a single-parent family. It makes us wonder, moreover,
Do we have time to turn around a wounded society that allows sexual deviants to parade in our streets and preach their lifestyle in our schoolrooms?If you’re Bill Maher, an average person's voting for the Republicans “is as stupid as voting not guilty for the mom who lost her baby for a month and went looking at a wet t-shirt contest.” It’s a clever line, I suppose, but more problematic than useful. Those jurors didn’t ask to be in the limelight; they simply did their duty to the best of their ability—or at least we have no evidence to the contrary.
Do we have time to end the practice of same-sex marriages?
Do we have time to put an end to all the calls that any symbol of the Christian and Jewish faiths be removed from public display, any mention of God or any prayer in public meetings be silenced?
The most disturbing of these Casey-Anthony-was-guilty-but-got-away-with-murder-and-that’s-just-like-fillintheblank riffs, however, comes not from a fringy right-wing pundit wannabe nor from a professional comedian whose forays into politics are often more cringe-inducing than actually humorous. No, the worst of the offenders (that I know about) was Senate Minority Leader Mitch McConnell, who decided that the Anthony case was evidence for why Ahmed Abdulkadir Warsame shouldn’t be tried in a civilian court: “We just found in the Cayley Anthony case how difficult it is to get a conviction in a US court.”
There are two responses to this drivel. The first: I challenge you, Senator McConnell, to cite a single case, one, in which a suspected terrorist was tried in civilian court and allowed to walk. You say that Senator Schumer opposed trying Khalid Sheikh Mohammed in New York. Fine, he’s an idiot, too, but at least his concerns were based on things like security issues and cost, not because we might not get a conviction.
Because, of course, we can. And have. There were, depending on how you count, either 150 or 390 such cases a year ago. (The smaller number counts only those convicted of terrorism-related charges; the larger number, to those with presumed terrorist links convicted of other charges, such as obstruction or perjury.) Since then, there have been numerous others: Tahawwur Hussain Rana, Amen Ahmed Ali and Ahmed Ghailani, to name but three. True, Ghailani was acquitted of most of the charges against him, meaning he will receive only life imprisonment instead of… erm… life imprisonment.
Ah, if only this were the more compelling reason to be alarmed at Senator McConnell’s comments. At least the possibility, even perhaps probability, exists that the chances of conviction are greater in a military tribunal. And it is not an outrageous assertion that foreigners ought not necessarily expect the same rights as US citizens in dealing with our government. The more fundamental problem with McConnell’s argument is in its implicit—damned close to explicit, actually—assumption that convictions equal justice. If there really is a suspect at Gitmo whose fingerprints are on IED’s, I’m betting a civilian court would convict the SOB (just like they have in every other such case). But if there isn’t really a case, then yes, a civilian court might be more likely to acquit. And that is precisely what should happen.
But as a Los Angeles Times editorial points out, military courts require the same degree of proof as their civilian counterparts:
Before a vote is taken on the findings, the military judge must instruct the commission members “that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt.”There’s that phrase again. Dammit, where can a red-blooded fear-mongering demagogue go for a good, old-fashioned kangaroo court, with guilty verdicts whether the evidence supports them or not? Well, says that editorial, there’s always Saudi Arabia.
I really don’t care about Casey Anthony, her lifestyle, or even, in any real sense, whether she did it. The trial was instructive, however, as a sort of Rorschach test not on the American judicial system itself but on our responses to it. I don’t particularly like what I’m seeing in those inkblots.