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Getting away with murder

POSTED July 8, 2011 9:12 p.m.

Casey Anthony killed her daughter. She may not have meant to, and she may have been much more interested in her own social life than in her daughter's well-being, but I have absolutely no doubt that she was responsible for her daughter's death.

So why was she acquitted? Could it really be a case of it is better to be rich (or at least enough of a celebrity to be well-represented) and guilty than poor and innocent, as so many of my students think? The short answer is sometimes. The long answer is that it depends as much on the skill and judgment of the prosecutors as it does on the defense.

If you want to be God, I always tell my students, go be a prosecutor. I'd like to believe that God is infallible, but I know for a fact that prosecutors aren't.

There is an old joke prosecutors tell each other about how convicting a guilty person is no great accomplishment. It's convicting someone who is not guilty that is the real challenge.

Anthony is as guilty of killing her child as O.J. Simpson was of killing his former wife and Ron Goldman. He got off — as did Anthony — because he is a celebrity (and because of the animosity among minority jurors toward the LAPD) and because celebrities are not always favored by the system.

The danger when you represent a celebrity is not that he will be treated with white gloves, but rather that prosecutors (either because they love the publicity or because they fear the pressure it brings) will go too far too fast to overcharge and overprosecute precisely because of the publicity.

The Anthony case was based entirely on circumstantial evidence. There was no real forensic proof, no cause of death, no damning DNA. The defendant was the mother of the victim — which in many ways makes the crime worse. But it also makes it even more critical, and more important, to have evidence of purposeful intent. Ditto for husbands and ex-husbands and wives and ex-wives who kill their spouses.

In all of these cases, it is far easier to conclude that the defendant caused the death — that he or she was the only person with the opportunity and motive — than it is to prove that they did so with malice aforethought, in a premeditated and purposeful way, which is what is required in a first-degree murder case. Reasonable doubt has a different meaning when it's a life or death decision.

Forgive me the pedestrian analogy, but I think the easiest way to grasp this may be by thinking about shopping. You go to the department store and try on a jacket. The tag tells you it's 70 percent off. I love it, you say, and you do. For $50 dollars, it's spectacular. For half off, you love it almost as much. At full price, even a minor flaw — a missing button, a pulled thread — is enough to end the love affair. Reasonable doubt is equally flexible.

Had the jury been asked whether Anthony was guilty of voluntary manslaughter, I think they would have been able to conclude that she was, beyond a reasonable doubt. Had O.J. Simpson been charged, as most ex-wife killers are, with either second-degree murder or voluntary manslaughter, I'd like to think he would have been convicted.

The irony is that most men who kill their former wives (and even innocent bystanders) in a fit of jealous rage serve about seven years in prison — which is less than the sentence meted out to Simpson for what otherwise would be a rather minor offense. Simpson was Caponed.

Fool me once, shame on you. Fool me twice, shame on me.

Justice is very rough, but if I were Casey Anthony (and to be honest, she is one woman I can't even imagine being), I'd watch my step from here on, very, very carefully. She may have gotten away with murder, but she won't get away the next time.

Justice may not be blind, and sometimes it seems to be deaf and dumb, but rough justice can be very rough on those who get away with murder.

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