Their defendant was probably guilty too.
Ethics Alarms All-Star Lianne Best sent me this link about a member of the Casey Anthony jury who is going into hiding because of all the hate and criticism being directed at jury members and their controversial verdict. Her plight, which must be shared by other members of the much-maligned jury, highlights the unethical, not to mention ignorant, reaction of the public to the Florida ex-mother’s narrow escape from a murder conviction she almost certainly deserved.
The problem begins with publicity. We may need to re-examine the logic behind broadcasting high-profile cases. The combination of live courtroom feeds and quasi-semi-competent commentary gives viewers the mistaken belief that they are qualified to second guess the jury, and they are not. They are not because the jury is in the courtroom, and the viewers aren’t. The jury and TV watchers see different things; individuals communicate different emotions and reactions in person than they do on camera. There is only one fair and sensible way to answer those on-line instant polls that ask, “Do you think Casey Anthony should be found guilty?”, and that is “I don’t know.”
Most of all, the viewers and pundits are not present in the jury room. Without knowing what goes on in deliberations, the arguments put forth and the personalities involved, no outsider can criticize the ultimate verdict. Reginald Rose’s 1955 television and 1957 movie drama “Twelve Angry Men” is more than a classic: it should be mandatory viewing for any American who presumes to criticize a jury for acquitting when it has a “reasonable doubt” about a defendant’s guilt. (You can read a good condensation here.) You will often see a still from the film in the Ethics Alarms collage, rotating pieces of which decorate this blog.It’s been there from the beginning, and for good reason.
Henry Fonda, known in the film only as Juror #8, is the lone holdout in an initial 11 to 1 vote to convict in what seems to be an open and shut case of premeditated murder. He insists that the jury really examine the evidence, even though he admits that the defendant, who faces a death sentence if convicted, is “probably guilty.” Over the course of the deliberations, the evidence that seemed so convincing at first begins to crumble, and jurors confront their own biases that push them either to favor acquittal or conviction regardless of the real facts. Some jurors change their votes because they are weak, or because they are following a stronger personality, or because they don’t like the jurors on the other side…or because they just want to go home. Eventually, all 12 vote for acquittal, because it is clear that there is reasonable doubt—they prosecution didn’t prove its case. But as the title suggests, getting there is no picnic.
It is also clear that the defendant is still, as Juror #8 said at the beginning, probably guilty. The ending of the story, the acquittal, is a still positive one. The system worked. The system worked because the rights of the accused were properly protected, and because the jury system did its job by holding the state to its burden of proof, admittedly a difficult one, before it could deprive a citizen, guilty or innocent, of life or liberty.
The evidence against the defendant in “Twelve Angry Men” is stronger than the evidence against Casey Anthony. There is a weapon, a body, witnesses, threats, opportunity, and motive. If the trial has been on television with Nancy Grace screaming for blood, Henry Fonda might have been heading for the hills after the verdict (along with Martin Balsam, John Fiedler, Lee J. Cobb, E.G. Marshall, Jack Klugman, Edward Binns, Jack Warden, Joseph Sweeney, George Voskovec, Robert Webber and Ed Begley) just like Juror #12 on the Anthony jury.
The million or more angry fools who are protesting and signing petitions calling for the verdict to be overturned or for a new trail (and proving that they prefer mob justice to jury trials and have no clue regarding such fine points of our legal system as double jeopardy) are threatening the jury system, which is both a microcosm and bulwark of a participatory democracy.
“I’d rather go to jail than sit on a jury like this again,” Juror #12 told her husband. No wonder. If potential jurors start feeling like that because they are subjected to this kind of mindless hatred and despicable criticism from a public stirred up by the irresponsible talking heads of Grace and Marcia Clark, every single American citizen’s freedom and rights are at risk. The jury system is our best protection against abuses by prosecutors and the government, and the beyond a reasonable doubt standard is our best shield against rushes to judgment, over-zealous prosecutions and biased, incompetent or politically motivated law enforcement. It is already shamefully difficult to get qualified, dedicated jurors to make the sacrifice necessary to perform their jury duties as part of our democratic system. Abuse being heaped on the relative few that do make that sacrifice can only make this crisis worse.
And I realize I am at fault too…guilty of the same mistake as the Hang Casey Anthony mob. In my previous post about the jury I insulted the members of the O.J. Simpson jury, and that was stupid, unfair and wrong. I wasn’t in that jury room either, and they deserve our respect and gratitude as much as any jury, and arguably more. It wasn’t the jury’s fault that Chris Darden got tricked in to letting O.J. try on the gloves. It wasn’t the jury’s fault that Marcia Clark rested her whole case on a white cop who could be portrayed as racist in front of a largely black jury. I know it is common practice to impugn the wisdom of that jury, but I know it is wrong, knew it was wrong, and still insulted them. I’m ashamed of myself, and I apologize to them. and Ethics Alarms readers.
We all should thank the Anthony jury, and every jury, for doing the hard, thankless job of self-government. We must all remember the wisdom of the “Twelve Angry Men,”, and reject the hate and ignorance of the million angry fools.
Ethics Alarms 
You’re still a tad angry, aren’t you?
Nah. Annoyed. “Twelve Annoyed Men” would be a lousy title, though.
“Twelve Angry Men” — ATLA production, 1991, thanks, Jack! — was my introduction to the US jury process. Since then, I have served on a jury; only once, but it was a biggie. And while I have heard anecdotal versions of unfit and biased panels, my own experience leads me to believe it’s as fair as it’s going to get. Nothing is 100%, but I think on balance, after the jury selection process, jurors try hard to be fair, and that effort results in the most reasonable of results, within the parameters given.
Of course, I’m a hopeless optimist, and I have to believe that in the end, good wins over evil. Don’t try to convince me otherwise, because I can’t hear you! La la la la la!!
Nicely said. So sad that so many think they know the real truth. Only the the person responsible for her death knows what really happened, and they have to live with that everyday of their life.
“Henry Fonda…might have been heading for the hills…along with John Fielder…” No, they can’t go after Piglet!!!
On a more serious note, I can understand why people are angry that people cannot be tried twice for the same crime. As long and convincing evidence becomes available that might be sufficient to convict the accused it seems kind of odd that they cannot be tried again (though I am not saying that such evidence exists in this case and I know that this would be unconstitutional in the USA).
Well, but who would decide what was ‘convincing evidence’? In practice, a Casey Anthony or O.J. could be hounded into bankruptcy by an endless chain of trials until finally one jury got it “right.” Can’t have that. Also, the lack of a double jeopardy rule would encourage more premature indictments and over-charging, as in this case. What the heck? Take a shot, and if you lose, just build a stronger case and try again! 1) A citizen should have closure and the right to get on with her life. 2) The prosecution should have every motivation to build the strongest case the FIRST (and only) time. A criminal prosecution is too destructive to allow it to go on indefinitely.
You could do it the way the English do it. In England, retrials require the approval of the Director of Public Prosecutions and the agreement of the Court of Appeal to quash the original verdict. These bodies (or their American equivalents) could decide when there is convincing evidence.
The endless chain of trials is a concern. I can imagine a time when kings and tyrants might have used continuing trials to harass an unpopular person into bankruptcy, eventual conviction or suicide. I think when the common law presumption against double jeopardy evolved, it was probably a good rule for that reason. I believe that nowadays the power to try someone a second time when new evidence is obtained would not be so abused, given the general emphasis on the rights and dignity of individuals and the greater accountability of government. As far as I know, the availability of retrials has not been abused in England.
I think that the prosecution would still be motivated to build a strong case given the requirement for new, convincing evidence in order to bring a new trial, along with the difficulty of bringing a new trial if the first one fails (i.e. the Court of Appeal would have to allow it).
I don’t believe that people who have in fact killed someone, committed a grave sexual assault, etc. deserve closure (this is why I also oppose statutes of limitations for crimes like murder). If there is new, clear evidence that was not available during a prior trial that might lead to a conviction, then the accused should have to pay for his or her crimes (if they are convicted at the new trial, of course).
1. You are presuming that only the guilty would have to endure a retrial. That’s a big assumption.
2. There is no statute of limitation for murder.
3. The re-trial idea also violates the speedy trial requirement in principle. Not that it isn’t routinely violated anyway….
1. Sometimes the innocent would need to endure a retrial but the requirement for new evidence that satisfies a Court of Appeal, the public prosecutor and whatever else would serve as a gatekeeper for new trials would make this rare. Retrials should be rare, period, so a fortiori, new trials of the innocent should be rare as well.
2. I was using the idea of a statute of limitations on murder to argue against the proposition that murderers should be given closure and be able to get on with their lives. Interestingly enough, Japan had a 25 year statute of limitations on murder until last year. I was against it (not that that meant anything to the Japanese, of course).
3. You seem to have answered your own point.
Your number #1 answer is double talk. Neither the innocent acquitted nor the guilty would have any closure. You’re willing to have the innocent risk being tried multiple times so we can do t successfully to the (Rare) guilty suspect who was acquitted. But the US is traditionally willing to benefit the guilty to spare the innocent—which is the right balance.
Yes, I am willing to have the innocent being tried multiple times so that the rare guilty suspect is convicted after a second trial. I repeat that this should be rare. It would be more just than allowing a person who is almost clearly guilty based on new evidence that was unavailable at the time of the first trial. A good example would be if blood were found on an item belonging to the accused that was not discovered until after a trial (see http://www.theaustralian.com.au/news/world/double-jeopardy-left-for-dead-by-uk-trial/story-e6frg6so-1225971142493). Another example would be when the acquitted suspect subsequently confesses. The acquitted can have closure so long as he or she does not confess and so long as clear evidence is not subsequently uncovered that would almost certainly convince a jury beyond a reasonable doubt that the acquitted person committed the crime in question.
I completely agree that it is generally good to spare the innocent even if it means benefiting the guilty. I actually would have agreed with you until I read about what happened after the English abolished the presumption against double jeopardy in 2005 (I was worried about the potential for abuse of those found not guilty). It does not seem that the English have abused the power to bring second trials, so the rights of those already acquitted seem to be adequately protected.
I am always extra-wary of cross-cultural comparisons. GB is a different system. Our prosecutors are more aggressive, and our sentences are much, much harsher. And England does not value the rights of the innocent as highly as the US. The fact is that more innocent defendants are probably convicted than guilty defendants go free. I see no reason to assume scond and third trials wouldn’t just result in more of the same.
Fair enough. Your knowledge of the US justice system is superior to mine, so I’ll yield that maybe abolishing double jeopardy in the US is not a good idea (as well as being pretty much impossible anyways). Nevertheless, I think that the English way of doing things is good in principle.
The main reason the results haven’t been that bad is that new trials are rare. 1) New evidence is rare and 2) the longer the time is from the crime, the weaker the case tends to get, as memories fade, evidence degrades, and witnesses die off.
So, basically, with the exception of a civil suit, Casey Anthony can now write a tell all biography about how she killed Caylee and profit from it? Awesome.
That’s what OJ did. Nobody would buy it.
I would say that gloating about killing your daughter and getting away with it is a highly risky business plan.
Who is the executor of her daughter’s estate?
The way I see it protection against double jeopardy exists because once the prosecution is shown the holes in its argument and therefore what evidence was necessary to secure conviction then there is too much temptation to “find” or actively look for that evidence.
That automatically implies corruption and in a system weighted in favor of letting guilty people free to ensure no false convictions, then that protection is necessary.
The first time I was called to jury duty I got out of it because I was a full time student. The second time, I was really excited to go (so excited in fact, that I prepped myself by watching Twelve Angry Men the night before). I woke up extra, extra early, donned my good slacks, a buttoned down shirt and my court appropriate shoes and headed downtown. I was the nicest dressed prospective juror in the joint!
I ended up being selected for a jury pool, but was sent home because a plea was reached in the case that needed a jury. Everyone was so relieved, but I just felt like Hanukkah Harry had passed over my house without so much as leaving me a pair of socks. It wasn’t that I wanted to send someone to jail, I just wanted to participate.
After the vitriol aimed at the Casey Anthony jurors from all sides, I suspect there’s going to be fewer and fewer people like me out there.
I’ve always wanted to participate too! I never get called….maybe I should move to a high crime district? But that probably won’t work either because then there will be a higher population, so my chances won’t increase.
Jury pools tend to be pulled from voter rolls and drivers license registries. Go for the inner city, and you should be good.
I enjoyed my one jury. Everyone in the court was surprised the plaintiff didn’t strike me. At the time, I was a cleancut 19 yr old college kid, fully dressed up (Hi Marlene!), and the son of two teachers. The case was built on attempting to confuse the jury. We tried to do the 12 angry men thing, but the case kept coming out frivolous. No, you are not going to be paid for later doctor’s bills for an injury flare-up if you didn’t do ANY of the things the earlier doctors prescribed.
Fun fact: being on a first name basis with the judge was not a reason to be excised from the pool. With 50 other people and no other cases on the docket, it seemed kind of strange.
My father likes to tell the story (over, and over, and over again) of how he sat on a jury for a civil suit in Houston about 25 years ago. The case involved a man who had purchase multiple homes that he was going to flip, and he financed the purchase of each successive home with the loan taken out on the previous one. A ban eventually called in the the first loan, causing the entire scheme to collapse. The guy then sued the bank, and my father claims the 11 other jurors were arguing that the bank really was culpable for this guy’s financial troubles. *eye roll*
I absolutely dressed up when I was called to jury duty! And then for the whole juicy kidnapping / murder trial. It was fascinating and horrifying and very very satisfying. I truly believe I contributed to keeping a really bad person out of my community. I heartily recommend it! I’ve never gotten called since, and that was about 10 years ago. Well, my city is small. I like to think I’ll come ’round again!
I believed that the reason a lot of people had criticized the verdict was because Antony’s character was revealed. Indeed, she was proven, beyond a reasonable doubt, to be unfit to breed.
But, of course, the trial was about murder.
On another note, a radio show host, Bob Enyart, advocated that We should discard the failed test of proving a case “beyond a reasonable doubt,” and replace that bad idea with the proper standard of conviction based upon “two or three pieces of reasonable evidence.”
“unfit to breed” = Idiocracy (a sometimes funny, sometimes perceptive film) http://www.imdb.com/title/tt0387808/
Jack, I agree with your two posts on the Anthony and Simpson juries so completely it is not even interesting to comment, other than to offer, at the risk of appearing self-serving, a bit of praise of your analysis. Great stuff, thanks.
Thanks, Sir Knight…always enjoy your site as well. I’m grateful for some unequivocal kind words. Don’t get them much around here.
What happens if a juror dies during deliberations?
If there’s no alternate, it’s a mistrial.