DSK, Casey Anthony and the price of justice

Defense attorney Jose Baez and Casey Anthony, hug after the jury acquitted her of murdering her daughter, Caylee, during Anthony's murder trial at the Orange County Courthouse in Orlando, Fla., Tuesday, July 5, 2011. AP Photo/Red Huber

One of the most obnoxious habits of reflexive defenders of the American legal system is their tendency to respond to any and every outcome of that system with the claim that “the system worked.” After all, as long as you never define what you mean by that claim, there’s literally no outcome that can refute it. Nevertheless, it’s reasonable to argue that the acquittal of Casey Anthony and the apparently imminent dismissal of charges against Dominique Strauss-Kahn both represent examples of the system working as it should. But accepting that argument requires acknowledging deep imperfections that our legal system must tolerate, even when it does exactly what it’s supposed to do.

The most disturbing of these inevitable imperfections is a product of our supposed commitment to the principle that we prefer a large number—whether it’s 10, 50, or 100, the precise number is never clearly stated—of guilty people going free to the conviction of an innocent defendant. That is the practical significance of requiring the state to prove guilt “beyond a reasonable doubt”—a standard that, interestingly, the system always avoids defining in any but the most general, non-statistical terms.

Our commitment to this principle is tested most severely in cases involving a heinous crime, an unsympathetic defendant, and a body of evidence that strongly suggests the defendant’s guilt, while still featuring gaps that make the prosecution’s case less than completely compelling. And that is a fair description of what the jury deciding Casey Anthony’s fate had to deal with. The state proved beyond a reasonable doubt that a two-year-old child was murdered, and that her mother was, at the least, a deeply irresponsible parent with a propensity to lie to authorities. The prosecution also demonstrated, in my view, that it is far more likely than not that Anthony committed the crime. But I also believe the jury’s verdict was correct.

Since our system more or less leaves it up to each of us to decide what “reasonable doubt” ought to mean, my own standard is this: Would I be shocked to discover that in fact Casey Anthony was innocent? Not surprised, not startled, but shocked—in the way, for example, that I would be genuinely shocked to learn that O.J. Simpson did not murder his ex-wife. That, it seems to me, is a reasonable interpretation of what “beyond a reasonable doubt” should mean, if we are serious about the idea that mistaken acquittals are vastly preferable to wrongful convictions.

The case against Anthony was largely circumstantial, buttressed by arguably—yet only arguably—strong forensic evidence. But the prosecution was hampered by its inability to provide a compelling narrative explaining either how Caylee Anthony was killed or why her mother purportedly murdered her. This failure was not, as far as we know, a product of prosecutorial incompetence. The hard truth is that it is extremely difficult to successfully prosecute a murder under these kinds of circumstances—and the harder truth is that we are supposedly committed to the principle that this is, on the whole, a good thing.

The case against Strauss-Kahn presents its own collection of hard truths. Foremost among them is that sexual assault is a particularly difficult crime to prosecute—for both good and very bad reasons. The good reason it’s difficult to convict defendants accused of rape is that, as a general matter, we should be reluctant to conclude, in cases that turn exclusively on conflicting testimony, that we are certain beyond a reasonable doubt which person is telling the truth and which one is lying (social scientists have demonstrated that people tend to greatly overestimate their ability to accurately assess such things).

The bad reasons are many: As feminists have been pointing out for decades, sexual assault is a crime that is often normalized to the point of rendering it practically invisible, and one that is especially prone to generate victim-blaming. But given the circumstances, it’s hard to criticize either the NYPD or the district attorney’s office for how they handled the case. Faced with an apparently credible sexual assault accusation and a defendant who appeared to be fleeing the country, the authorities moved quickly—and when problems arose with the prosecution, they moved just as quickly to reveal them to DSK’s defense. That, after all, is how the system is supposed to work.

None of this is to deny that the outcome of both cases is not in many ways deeply disturbing. It is much more likely than not that Casey Anthony has gotten away with murder. And while we cannot be sure that a crime was committed in the DSK matter, the sight of a rich white man who has now been the subject of multiple sexual assault accusations walking away from a poor black woman’s claim that he raped her is something that should always disturb us. Yet in the end, the unsatisfactory nature of these outcomes is the price we are supposed to be willing to pay to avoid travesties such as the state of Texas engaging in something resembling outright judicial (and gubernatorial) murder. It is indeed a high price—but the price of not paying it is even higher.

Bio: Paul Campos is professor of law at the University of Colorado. The opinions expressed in this commentary are solely those of the author.

Comments