Concerning reasonable doubt and exculpatory evidence

Did the prosecution grossly cheat in the Caylee Anthony case?

When Casey Anthony was acquitted of murdering her 2-year-old daughter, the verdict was widely denounced by law-‘n’-order types. Having not paid any attention to the trial, I didn’t venture an opinion; at a glace, my best guess is that she probably did it in fact but that the jury didn’t see enough evidence to convict “beyond reasonable doubt.”


Update: Two commenters note, correctly, that the evidence is consistent with the death of the child via parental neglect, or even excusable accident, and a panicked scramble to cover it up.

An essay by Marcia Clark, the prosecutor who bungled the O.J. Simpson trial made me wonder what they’re teaching in law schools or testing for on the bar exam: if “reasonable doubt” means anything, it must mean that there exists a coherent, reasonably plausible view of the evidence consistent with innocence. That is, if the jury has a reason to doubt guilt, the verdict must be not guilty. That wasn’t in fact true in the O.J. case, where a murderer skated because he hired a brilliant defense team and drew a lousy prosecutor and a lying investigator. But it seemed to be true of Casey Anthony.

That was then. This is now. And now we learn that a key piece of prosecution evidence – the claim that Anthony had done 84 computer searches for choloroform – was false, and known to be false by the prosecution a week before the case went to the jury, because a prosecution witness, the designer of the software on which the police testimony was based, had told the police and the prosecutor that the result in question was wrong.

That’s an outrage: it’s hard to imagine that the expert’s opinion didn’t constitute “exculpatory evidence,” and it’s an absolute rule that exculpatory evidence known to the prosecution must be disclosed to the defense. An even bigger outrage was this bit of slime-and-defend from the sheriff’s office:

Capt. Angelo Nieves, media relations commander for the Orange County Sheriff’s Office, said Mr. Bradley had a vested interest in coming forward since his software was used in the investigation.

“We’re not going to relive the trial again,” Captain Nieves said. “We are not prepared to do that nor are we going to participate in that.”

“Vested interest”? Huh? “Not going to relive the trial”? You mean, not going to review the gross misconduct of your organization which might have railroaded Caylee Anthony to the gas chamber?

Alas, courts have made police and prosecutors (and judges) immune from civil suit for cheating in the courtroom. And it’s possible that the passive refusal to accord a defendant her clear legal right to exculpatory evidence doesn’t actually constitute a crime. So the sheriff’s deputies involved will probably survive to cheat again, with no career damage at all. Ironically, since Anthony was acquitted, there’s no chance to use the appellate process to force the truth into the open. But if I were the prosecutor in this case, I’d be very, very worried about keeping my bar card.

Footnote And yes, she still probably did it. Her failure to call 9-1-1 after her child “disappeared” is pretty much a smoking gun. [Update: Unless what really happened was an accident followed by a cover-up.]

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

22 thoughts on “Concerning reasonable doubt and exculpatory evidence”

  1. Well, yes, she probably did it, but exactly what “it” was remains a mystery. It could involve anything from cold-blooded murder to a clumsy, stupid attempt to cover up some kind of accident. We’ll simply never know. But we do know that the Orange County Sheriff’s Department, apparently with the full support of the prosecutors, used fraudulent evidence in an attempt to put her on death row. And this will only help their careers

  2. Not so fast. I didn’t follow the trial either, though several reasonable people I know who did are pretty sure she did it.

    But if I accidentally killed someone, I wouldn’t necessarily have faith in the system either, such as to call the authorities right away. I hope I would, but I’d probably call a lawyer first, honestly. I don’t think that’s much of a smoking gun.

  3. I have not followed the facts of this case and do not have any judgment regarding whether or not Ms. Anthony “did it.” I am, however, often wary of the criminal justice system’s apparent proclivity to investigate guilt rather than truth. Consider for a moment the monumental injustice that has been done to this woman if indeed she is innocent. Or if not her, consider other falsely accused persons that are tried in the media.
    As an example on a much smaller scale, several years ago a good friend of mine was accused and arrested of triple attempted homicide. (The actual crime involved disturbing attacks on three different women on three different occasions). I know beyond any shadow of a doubt that my friend is innocent. (I was sitting in a car with him nearly 500 miles away from the scene at the time of one attack.) However, some very circumstantial evidence pointed to the possibility that my friend may have matched some of the facts that identified the attacker. It was terrifying to see the police and prosecutors shift into a mode where they were certain they had their man. After the SWAT team kicked down his door and forensics poured over his home, the investigation focused on every piece of evidence that pointed to guilt – or even some evidence that suggested suspect behavior (such as taking a college course on abnormal psychology?). The fact that my friend had 30+ rock-solid alibis was never investigated, nor as far as I could tell were any other facts related to his innocence. This did not stop the prosecution from releasing mug shots and scary accounts to the press, which quickly forgot to include the word “alleged” before the descriptions of my friend’s heinous behavior. In the end, it all went away. But the public humiliation and the psychological impacts that resulted from a perfectly innocent member of society nearly getting thrown under the bus were astonishing. For me, the result has been that every time I see a perp in handcuffs accused of some horrid crime, my first thought is, “gee, I really feel sorry for that guy if it turns out that he didn’t do it.”

  4. Mark:
    I believe you may have the name of the victim and the accused backwards. Casey was on trial. Caylee was the daughter.

    Absolutely outrageous behavior by the Prosecution.

  5. In addition to calling for sanctions, that’s just stupid. No way it wouldn’t have come out if there had been a guilty verdict.

    But I’m a little unsure on Mark’s definition of reasonable doubt. Does “coherent” mean that someone has to come up with a “reasonable” alternative theory to have legitimate reasonable doubt? Or is it sufficient that a person be able to articulate how the prosecution’s theory of the crime strikes them as insufficient? (One problem with the standard as I’ve seen it presented during jury duty is that it’s specifically about whether the prosecution has proved its case, so that even if the jurors are convinced to a moral certainty that the defendant did it, that’s not enough if the prosecution didn’t do its job.)

  6. A criminal trial is not a search for truth; it is a test of the government’s evidence. In Ms. Anthony’s case, the State proved a boatload of post-mortem bad conduct. The charges involving post-mortem bad conduct (lying to police) accordingly resulted in convictions.

    The State failed to prove the manner of death. The cable TV commentariat should not have been surprised with the verdict. Keep in mind, however, that those clowns are in the business of selling viewers’ eyeballs and eardurms to advertisers. The easy way to do that is to gin up outrage. Nancy Graceless and her ilk are misery’s pimps.

    If John Bradley’s comments in the linked New York Times article are correct, we have a prosecutor who deserves to be disciplined.

  7. Mark: “And yes, she still probably did it. Her failure to call 9-1-1 after her child “disappeared” is pretty much a smoking gun.

    The failure to report the disappearance shows a guilty conscience and indicates she probably did something illegal, but it’s not at all clear that it was intentional murder. I suspect it’s more likely that Casey Anthony left the toddler alone at home, she died from a negligent lack of supervision, and Casey Anthony panicked and tried to cover it up. From what I’ve read and heard about the case, I don’t see any strong evidence of intentional killing. The prosecution went way too far in charging Murder One, which they had to have known they couldn’t prove beyond a reasonable doubt. Had they stuck with a lower charge, they might have had a better chance of getting a conviction.
    Yes, I know the other charges were available as lesser included offenses, which brings me to a question I’ve been wondering about. Suppose the jury had concluded, based on the evidence adduced at trial, that Casey Anthony was, beyond a reasonable doubt, guilty *either* of negligent homicide (the scenario I conjectured above) *or* second-degree murder (say, she lost her temper and hit/shook the baby to death with no premeditation). But they can’t determine which of the two it was. Are they supposed to acquit, or to convict of the lesser included offense?

  8. Lesser charges were not available to the jury in this case. The prosecutor chose to charge intentional murder on flimsy evidence when he could’ve chosen a lesser charge. The reason why, presumably, is that’s a capital crime, and therefore the jury pool would be limited to law and order types who accept the death penalty.

    It backfired. Under FL law, defense gets to choose whether lesser charges are included, and the defense rolled the dice and said no lessers. Bet paid off for D – evidence that could’ve convicted on a lesser charge was insufficient for intentional murder. Society loses if D was actually guilty of lessers.

    So two ethics violations for P – concealing exculpatory evidence and biasing the jury pool. Only the former is likely to cause him problems, though. He just retired, but may try to practice.

  9. @Josh G: Given both options, the lesser included would be the choice. That is, if there is proof of intentional actions that resulted in death but where there is no proof of premeditation to kill, second degree murder is perfectly plausible. (I don’t know why we have to use New York definitions other than the fact that it’s the basis for TV plots.) Second degree generally is nothing to sniff at–it’s still homicide. Then you have two other definitions that pop up in other state–negligent homicide (manslaughter in some jurisdictions) and reckless homicide (knowing that one’s careless actions are likely to result in death even if there is no intent to kill, but there is no care NOT to kill either).

    In Anthony case, the prosecution did not have sufficient evidence of a murder. It might have been manslaughter, it might have been deliberate or reckless homicide or it might have been a non-prosecutable accident. Post-mortem actions are only evidence in a murder case if there is evidence of the actual murder–only then would an attempt to mislead be construed as evidence toward (but not necessarily of) guilt. But if there is no evidence of murder, the post-mortem actions are nothing more than lying/perjury. One cannot even divine assistance after the fact because there is no fact!

    The problem is that the local cops are in this case are just as stupid as the alleged criminals. The difference is that police lies are less frequently uncovered. The expert also has some culpability because instead of telling his findings directly to the prosecution–who are obligated to share exculpatory evidence (and who normally would not bring false evidence at trial–but, then, see under “Roger Clemens”)–rather than to the police who are at least one step removed from that obligation (although, of course, they are obligated to give correct information to the prosecution). In this case, since the claim was made in court, someone committed perjury and can be prosecuted–not merely sanctioned–for it. The prosecution cannot present evidence. Only witnesses can. If the prosecution entered an exhibit that included expert testimony and this was not challenged by the defense (at least to produce the expert), then the defense is just as inept. If the prosecution made the claim in isolation, they guilty of several misconducts, as they argued evidence that was not presented (without challenge! i.e., another possible defense error) or they knew the evidence was false. But if a witness testified to enter this evidence into the record, then the witness–either the expert or the police–is guilty of perjury. Whatever the case, several heads should roll. But this also the case where a defense error might have contributed to the problem but did not cause a negative outcome for the client. This is a warning to all lawyers–just because you won a case does not mean that your performance was flawless. I’ve seen several trials where one side was badly presented and should have lost on facts, but the jury found the other side unsympathetic and gave the case to the bad lawyers. This is a problem that cannot be fixed even with the best lawyers, but the best lawyers will remember to object in time to preserve issues for a possible appeal.

    Finally, I find Mark’s post disturbing. Even for someone who claims to have no clear facts of the case and someone with no direct interest in the outcome, it is still very tempting to opine on guilt or innocence. I would just as well Mark avoid the temptation and just present the case without offering the Footnote (or other comments indicating his opinion of likely or possible guilt or innocence). That’s the point of a jury trial–once you’ve been acquitted, the trial is over. We can disapprove of her behavior, but we should stop trying to divine the correctness of the verdict or, for that matter, the charges. Casey Anthony is not the only case where such attempts should be abandoned. DSK case in New York presents a similar problem. DSK, of course, has never been acquitted–we merely have reason to question the credibility of one of his accusers. But this is a legal issue–in fact, we have no moral reason to discount her version of events, which is consistent with DSK’s past behavior (when he DID get away with it). What I find odd is that there are now two camps–one where people are convinced of DSK’s guilt and see it as a moral outrage if he is not convicted, let alone prosecuted and one where people are convinced not so much of a fabrication as of the inferior character of the accuser without ANY regard to the character of the accused (which is less than stellar).

    The point I am making here is that we should always consider credibility of both sides along with the facts that they present. If the facts are not present, no amount of lack of credibility of the accused should overcome this in a trial–which means that the Anthony verdict was a correct one. Unfortunately, a lot of people want to convict on credibility alone without any regard to facts. And guessing as to guilt or innocence only contributes–if unintentionally–to this mess. So it’s better to say that it’s unfortunate that we don’t know what happened, the case outcome appears to be correct, despite the unsavory character of the accused and acquitted defendant. That is all. Don’t add, “Well, she’s probably guilty, but we can’t convict her.” It’s not helpful!

  10. In the second paragraph, I forgot to mention that there are also two options for each of the possible causes–it’s possible that Casey Anthony was the agent for any of these causes, or it could have been another party either known or unknown to Casey Anthony. That gives 15 different possible scenarios for the actual events (five types of cause of death and three types of agency). The prosecution offered only two of these (first or second degree homicide by Casey Anthony), so the defense could either poke holes in the evidence to create doubt about the case or to construct any one or more of the other 13 scenarios and they did a good job of doing just that. The defense has no obligation to construct an alternative theory of the crime to demonstrate reasonable doubt, but it certainly helps. In this case, the doubt was cause by the prosecution failing to built a convincing case, not by defense suggesting alternative explanations. As such, this may be a case where the jury did an unusually good job of analyzing the totality of evidence.

    One more thing–“Cayley’s Law” is a remarkably BAD idea, irrespectively of the specific time limits that it might impose. Legislators should ride out the moral outrage and resist the temptation to introduce laws that are more likely to cause grief to innocent people than to catch anyone who’s actually guilty of anything untoward.

  11. It backfired. Under FL law, defense gets to choose whether lesser charges are included, and the defense rolled the dice and said no lessers.

    Ah so. That was a helluva gamble, but it paid off this time.

  12. For what it’s worth, in California the standard jury instruction on reasonable doubt defines the term like this:

    “Proof deyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.”

    Of course, “an abiding conviction” is pretty nebulous itself, but that is the basic consequence of asking twelve people to reconstruct history from snapshots in time and fragments of memory. It’s at least some comfort to know that policy makers are, in fact, capable of demonstrating a little epistimological humility from time to time.

  13. I suspect that the prosecutors announced their intention to seek the death penalty here as a tactical move. Research has shown that jurors whose scruples would not permit them to impose a sentence of death are more likely to acquit. In order to serve as a juror in a capital case, a venireman must be willing to consider imposing a death sentence.

    Some prosecutors whose case is factually weak will accordingly file a death notice in order to seat a death qualified jury, which is statistically more likely to find guilt unanimously than a jury which may include one or more death penalty opponents.

    My own conjecture is that Ms. Anthony knows what happened to her child

  14. Excuse me. I hit submit too soon. I suspect that Ms. Anthony knows what happened to her child and bore some culpability for the death. Common sense suggests that a mother who has not caused or contributed to her child’s death would cooperate in the investigation thereof. That is a far cry, however, from proof beyond a reasonable doubt of an intentional killing.

    I wonder whether Florida has statutes prohibiting abuse of a corpse or failure to report a dead body.

  15. John Herbison: in one of the old true-forensics-for-kids books, there’s a case that ended in a conviction for unlicensed carriage of human remains (I guess only undertakers are allowed to move bodies in some states). The perpetrator fell asleep drunk, woke next to the body of his spouse, assumed he had killed her in a blackout, and tried to hide the body…

  16. “Reasonable doubt” is always going to be troublesome, & we should probably shrug & accept it as a cost of doing business in the justice realm. Mark mentioned OJ, & it’s worth recalling that two men acknowledged as pretty good legal minds, or at least standing tall in the pantheon of American lawyers these days — Vincent Bugliosi and Alan Dershowitz — wrote diametrically opposing books about the verdict. After reading both books I concluded that Bugliosi could probably have convicted OJ, but Dershowitz certainly justified reasonable doubt in relation to the case actually presented by the prosecution.

  17. Paul: That may be the case. I have not researched it, but after my second wife’s body was cremated, the funeral director furnished a permit for me to transport the ashes home following the memorial service.

  18. I think OJ was guilty, but I would have voted to acquit. Of course there was reasonable doubt– the LAPD crime lab was unreliable and the guy who found the key evidence was a racist perjurer.

  19. Shows again why we either need to get rid of the death penalty or remove judicial and especially prosecutorial immunity in any case where death verdicts could arise.

    Prosecutors all across the land, but especially in death states, have shown a disgusting venality and lust for career-enhancing victories, ratcheting upward with each year of media crime hype. Until judges and prosecutors can be disbarred or even imprisoned for this kind of thing, we’re going to see more of it, because the incentives are all there to cheat, and the rewards far outpace the risks and sanctions.

  20. Suppose Casey Anthony is actually innocent of any crime relating to causing the death of her daughter. Hardly anyone believes it, and the few people willing to entertain the possibility can hardly have any confidence that it’s true. So her life is basically over. If she had gotten off on a technicality, that would be rough justice, but if she is actually innocent, she is screwed and has no recourse — unless OJ can help her find the real killer. (Speaking of which, what if OJ didn’t do it?)

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