July 7, 2011

Take a Lesson from the Casey Anthony Verdict: It Is the Story, and Not Just the Evidence

By Dr. Ken Broda-Bahm –

HandcuffsCasey Anthony was sentenced today to four years for lying to authorities with credit for the substantial time she has already served.  Instead of facing life, or possibly death, for the murder of her daughter Caylee, she will be free as of next Sunday (July 17th), though it is hard to use the word “freedom” in connection with the life she has ahead of her.  After three years in the national spotlight, to say this outcome is not popular is the understatement of the year.  Current polling shows that more than 80% of the public disagrees with the verdict.  For this post, I am not writing about whether the jury was wrong or right, and definitely not writing about whether Casey Anthony did it or not.  There is no shortage of that kind of commentary already.  Instead, I want to focus on the lessons litigators – especially those on the civil side who aren’t trying “crime of the century” cases – can draw from this very public and very contentious verdict.  Based on what we know so far, I believe the main lesson comes down to the role of narrative:  jurors, and the public at large, are reacting to a mixture of evidence and story. Effective attorneys need to take that into account.  

In the immediate aftermath of the reading of the verdict on Tuesday, the hopes of hundreds of media organizations were dashed when court personnel announced jurors would not be speaking to the press.  Since then, one alternate and two jurors have spoken out, and if you believe the media reports, juror number #6 has offered his story in exchange for cash.  As we learn more, there may be additional lessons, but these are the most important takeaways on my mind.

Lesson One:  Gaps Matter

While most of the jurors still aren’t talking at the time of writing, the focus from juror #2 (whose name is still withheld), from juror Jennifer Ford and from alternate juror Russell Hueker comes down to a belief the state did not prove its case because it could not prove how Caylee died.  As Ford told ABC News, “I have no idea what happened to that child,” and “If you cannot prove what the crime was, you cannot determine what the punishment should be…”  Juror #2 also emphasized, “I wish we had more evidence to put her away.”  It turns out the prosecution’s main barrier was neither a credible defendant nor in a wily defense team, but in the forces of nature.  Human decomposition made it impossible to prove the mode of Caylee’s death with certainty,  a gap the jury couldn’t live with in a capital case.   While the jury could have, like the public, drawn reasonable inferences from circumstantial evidence (the 31 days of partying before authorities were alerted, the lies during the investigation, the duct tape, and the chloroform), the jury wanted to connect all the dots.

In all cases, gaps matter.  Any litigant who is trying to convince jurors to accept a general narrative favoring their case (which is every litigant) needs to focus on whether a missing element to the story prevents a clear conclusion, whether that missing element bears on a required legal element or not.  It is the story and not just the evidence that jurors need to understand in the end.

Lesson Two:  An Alternate Story in Opening Can Look A Lot Like Evidence

Of course, we know the judge will always instruct the jury that the statements of attorneys, including opening and closing, are not evidence.  This is true in a legal sense, but not in a narrative sense.  In his opening statement, Defense attorney Jose Baez told the story which became the centerpiece of the defense:  Caylee Anthony drowned in her pool, and in a twisted response to years of abuse, Casey conspired with her father George to hide the accident.  Aside from the opening statement, what testimony was actually presented in favor of Baez’s theory?  It didn’t come from George — he denied every point of the story.  It didn’t come from Casey, because she didn’t testify.  The closest we came to testimonial support for this theory came from Krystal Holloway, aka River Cruz, who claimed to be George Anthony’s mistress. She testified George had tearfully told her that Caylee’s death was an “accident that snowballed out of control.”  It was left unclear, however, whether she actually was George’s mistress (again, George denied it), whether this was an expressed belief (rather than knowledge) in the days prior to Caylee’s body being found, or whether Krystal Holloway is a credible witness to begin with.  Before testifying, she had already sold her story to the National Enquirer, and had earlier denied some key elements of her testimony when speaking to investigators.

The probability is the jury didn’t so much believe Krystal Holloway (none of the jurors speaking so far have mentioned her in their comments), as much as they believed the possibility of an alternate story, which itself created some reasonable doubt.  Narrative plays a quasi-evidentiary role: Huekler believes that “it was probably a horrific accident, that Dad and Casey covered up.  And unfortunately it did snowball, and got away from them.”  When the interviewer directly asked what evidence there was in favor of the theory, Huekler stammers and then simply turns back to the story:  “well, from what we understand, through the testimony – was that there was — ah, well, it was such a horrific accident, that they didn’t know how to deal with it.  The family appeared to be very dysfunctional, and instead of admitting ‘look, there was an accident,’ they chose to hide it, for whatever reason.”  Juror Ford was more direct in saying that she didn’t feel this defense theory was proven, but still she relies on the story:  “it’s easier for me logically to get from point A to point B” via the defense argument.  The structure of this rival narrative came not from George, from Casey, or from Holloway, or from other evidence, but from defense attorney Jose Baez in opening statement – a fact that doesn’t prevent the jury from relying on it as a way to see reasonable doubt.

Lesson Three:  The Story Extends Beyond the Jury

In Casey Anthony’s case, the jury’s verdict in defiance of public opinion might turn out to be a Pyrrhic victory.  She could change her name and probably her look and live quietly,  or she could embrace the notoriety, but it will still be hard to live a semblance of a normal life in the aftermath.  In this case, there is a broad and deep public story that does not end neatly with the reading of the jury’s verdict.  There are clear parallels in civil litigation.  Think, for example, of BP’s defense in thousands of lawsuits stemming from the Deepwater Horizon spill in the gulf or Mexico, or more recently of ExxonMobil’s ruptured pipeline that has contaminated miles of the Yellowstone River.  In cases like that, convincing a jury is one thing, and convincing the public is quite another.

For high profile cases like these, the clear need is for an integrated approach focusing on both public relations and trial preparation.  Instead of separate teams with different and potentially hostile goals, the PR and trial teams need to work on common messages that will resonate consistently for these different audiences.  The purpose of the PR is not to influence the jury pool.  After all, if a juror can be found (Ford) who had not heard of the Casey Anthony trial prior to being selected, then a juror can be found who is immune to just about any prior communication.  Instead, the PR is directed at the court of public opinion and can be more important than any jury’s verdict.  Ultimately, it is the big story that matters, not just the evidence in court.

As this story plays out in the media and on the blogosphere, those are the main lessons for litigators I see so far.  I can’t end this post without mentioning one other part of the story:  the particular courage of the Casey Anthony jury to reach a deeply unpopular verdict.  In response, a lot of rage has been directed against members of the jury.  In particular, Nancy Grace has emphasized the jury has tossed Caylee Anthony away like she was garbage, and that “devil is dancing” over the verdict.  Ford was even asked on camera how she sleeps at night by Nightline anchor Terry Moran.  Reasonable minds can differ on whether the jury had the ingredients for proof beyond a reasonable doubt or not.  Whether we would agree or disagree with that verdict is beside the point.   No one else — not the public, the media, the bloggers and tweeters, Nancy Grace, or anyone else —  was in the same role as the jurors who believed after hearing both sides that the state had not met its high burden of proof.

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Photo Credit:  The.Comedian, Flickr Creative Commons

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