“When you have excluded the impossible, whatever remains, however improbable, must be the truth.” — Sherlock Holmes The Casey Anthony trial was not the first high-profile trial tried in a central Florida courtroom in which an infamous defendant charged with perpetrating horrible crimes against a child was, in the words of a reporter covering the trial, able to “squeeze through the door of reasonable doubt.” The other trial to which I refer is Florida v. Gettys; that fictional trial in Gainesville, Fla., takes place in the opening and closing scenes of the semi-cult classic The Devil’s Advocate. I will resist the temptation to take the parallels of the two cases to the next level. Nancy Grace, commenting on the evening of the Anthony verdict perhaps unwittingly did take the comparisons to the next level, when she told her national television audience something to the effect that “somewhere the devil is dancing.” This summer, I had the pleasure of teaching an evidence course at Catholic University of America Columbus School of Law. The summer session started just as the Anthony trial was about to start. Although the case had been in the news since 2008, I really had not focused on it — although I recall clicking the cable remote looking for a ballgame, and hearing several blaring references to “tot mom” that did not appear to be a term of endearment. From an evidence-class standpoint, the Anthony case was quite interesting, even apart from the tabloid fascination with the cover-girl-beauty defendant, and the ghastly death of the doe-eyed adorable child. The case also raised several fascinating questions of substantive criminal law, procedure and trial tactics, all areas of academic interest to me. One of the cardinal principles of evidence law is that “we judge the acts, not the person.” From the outset, that concept was not easy to square with the mountain of evidence presented against Casey that seemed directed to prove that she was a horrible person, a possible misuse of character evidence despite the prosecution’s contention the evidence was probative of Casey’s consciousness of guilt. This theme would resonate throughout the trial, the verdict and some of the jurors’ post-verdict comments. The case was also chock full of scientific and expert testimony, some of which had not been subject to peer review, and other evidence was based on somewhat novel techniques, to say the least. The expert testimony offered in the case would have made good exam questions. The ability to cross-reference the course materials to what was unfolding in that Orlando courtroom made for a lively summer semester, playing out in real time. An evidence course also focuses on several interrelated aspects concerning the burden of proof. A trial is not just about getting evidence admitted. No one wins a trial by simply having all of his or her evidence admitted. Rather, the evidence must be of sufficient weight and credibility to satisfy the requisite burden of proof. This case was also ultimately about the burden of proof and whether the government carried that burden. Although the trial was replete with issues deserving of searching examination, I will primarily focus on two topics — the jury’s evaluation of the circumstantial government’s case, and the defense counsel’s “game changing” opening statement. CIRCUMSTANTIAL EVIDENCE In Casey’s case, the prosecution clearly provided more than enough evidence, circumstantial or otherwise, to prove beyond a reasonable doubt that she was guilty of some form of murder. Prisons throughout the country, death rows included, are full of persons convicted on far less evidence. Some defense lawyers, during the banter of happy-hour shoptalk, opine that they would trade the burden of proof for the final rebuttal in closing argument, so used are they to seeing defendants convicted in circumstantial-evidence cases on far less evidence. In the same vein, they are envious of prosecutors who get that unrebutted “last word” coup de grâce in the final phase of closing argument. The handful of legal commentators who support the Anthony verdict as correct (not just approving of the “process” and the majesty of our jury system) are understandably exuberantly gratified that, in their view, the Anthony verdict represents one of the few times the jury actually properly applied the burden-of-proof standard in a criminal case. In my view, the jury verdict in Casey’s case resides just barely inside the fenceline of rationality (more on that later). Some jurors who have spoken have noted that the first straw polls of the jurors at the outset of deliberations were 10-2 in favor of acquittal on the murder counts, and 6-6 on the aggravated child abuse count, which would have supported some form of lesser homicide liability. What happened to those initially pro-prosecution-leaning jurors? The jury deliberated for a total of approximately 10 hours over two days — there was not even one single full day of deliberation and the jury did not request to review any exhibits or have any testimony read back. In law school, and reflected in rudimentary “circumstantial evidence” jury instructions, circumstantial evidence is often simplistically illustrated with the hypothetical that if you go to bed and it is dry on the ground — and when you wake up there is snow on the ground — using circumstantial evidence and common sense — you can conclude beyond a reasonable doubt that it snowed last night. Obviously, this case was not that simplistic or straightforward. A more difficult situation is illustrated when you wake up in the morning and your front lawn is wet. Did it rain last night or is it just the morning dew? Reason and a common sense understanding of the world makes this a paradigm case of reasonable doubt since the morning-dew theory represents a plausible alternative theory even in the absence of evidence adduced by the defense. The defense, in effect, sought to characterize the Anthony case as presenting this type of reasonable doubt, but the “accidental drowning” theory was utterly unsupported by any evidence or common sense and did not present a plausibly reasonable alternative theory. The Anthony case, in my view, can be encapsulated with the following third scenario. You go to bed at night and it is dry outside. You wake up in the morning and the grass is wet, the pavement is wet and there is what only can be described as the aftermath of raindrops on your car parked outside. Up the street 25 yards is a fire hydrant. Last summer, during a heat wave, the fire department opened the hydrant and water sprayed all over the place. You even have a picture of that event. This does not create a reasonable doubt about whether it rained last night. The suggestion that the fire hydrant was opened last night and was the source of all the water is speculation that is devoid of any evidentiary support. The conclusion that it rained last night has been established beyond a reasonable doubt. As an assistant U.S. attorney, I once obtained a conviction against a marijuana grower, based largely on circumstantial evidence. At the appellate argument, defense counsel started his argument by snapping his suspenders and cockily announcing this was “merely a circumstantial evidence case.” Before he could get in another word, the lead judge intoned, “and it is mighty strong circumstantial evidence if you ask me.” The affirmance of the conviction was on my office desk before I got back from San Francisco the next day. The Anthony trial was an intricate circumstantial evidence case, but it shouldn’t have flummoxed a jury of even borderline intelligence. Why did these jurors so lack the courage of their convictions (literally) that they were not willing to fight for their convictions for even one full calendar day? It seems to me that the jurors collectively certainly did not carefully evaluate the evidence in the manner that this circumstantial evidence required — when such careful examination could have resulted in a guilty verdict. None of the reported comments of the several jurors who have communicated, in one form or another, has said anything that inspires confidence that they knew what they were talking about, understood the difference between inferences that could be drawn from evidence as opposed to mere speculation or properly understood what the prosecution was required to prove. Don’t get me wrong. I respect the jury system and, in some philosophical sense, respect the verdict although I disagree with it. But part of that “respect” is respect for the system that I understand is designed to sometimes yield inexplicable verdicts, and is based on the fact that the verdict is unimpeachable — and speaks, or should speak, for itself. The more the jurors talk — and make tragically incorrect, dare I say uninformed, statements such as that the case lacked “hard” evidence, that the time of death and manner of death was not shown and that the jury largely ignored all of Casey’s lies as having nothing to do with the case because it shed no light on the specific day that Caylee died — the less their verdict and decision-making deserves to be respected. The more they make public comments, whether or not for compensation, the more they set themselves up for constructive criticism in the cacophony of public debate. The prosecution is not blameless here. It has to take responsibility for helping select this jury. It also has to take responsibility for frittering away four hours of closing argument without adequately explaining to the jury how to properly evaluate a circumstantial evidence case. But that is really a separate topic deserving a separate discussion. I suspect that, in all likelihood, none of the jurors probably has ever seen any of the versions of the cinematic classic Twelve Angry Men. Although legally flawed in many ways — so much so that if the microlessons were actually followed by a real jury, a mistrial would be a certainty if the antics were discovered prior to verdict (as a trial judge, U.S. Supreme Court Justice Sonia Sotomayor reportedly told prospective jurors not to follow the example of the Twelve Angry Men jurors) — the macrolessons of the film are nevertheless a timeless testament to searching examination of the evidence, and the type of pressing, reasoned debate that could make jurors change or rethink their initial positions. The government’s case, when viewed properly, should have carried the day. What reasonable doubt was there? Poor little Caylee was not abducted by aliens and then deposited, dead, a short distance from home, with duct tape over her face. The universe of possible persons who killed Caylee was small. The evidence established that. A juror initially inclined toward conviction who possessed the courage of his or her convictions would have pointed out, among other things, that Casey was last seen with Caylee. She inexplicably abandoned her car that reeked of decomposition. She hid and lied about Caylee’s whereabouts for more than a month, and then continued to lie to law enforcement so as to impede their investigation and ultimately delay for several months the recovery of her body. The unprecedented series of lies, coupled with her narcissistic, uncaring behavior, was strong circumstantial evidence of her consciousness of guilt and unrepentant state of mind. The prosecution proved — by excluding the possibility that anyone else searched the Anthony home computer for chloroform — that Casey undertook that search. Unusually high levels of chloroform were found in the trunk. And so it went. The point is not that every rational person had to conclude that everything happened the way the government theorized. The point was that one juror should have had the backbone to stand firm and require the necessary mosaic-like inquiry. What other reasonable possibilities were there? If Casey didn’t intentionally kill her daughter, could she have done so accidentally with a dose of chloroform? Either way, she should have been convicted of some form of homicide that had been charged. The prosecution can be criticized for both overcharging and undercharging the case. They overcharged in the sense they went “all in” for a premeditated capital murder theory. They undercharged in the sense they chose to forgo other alternative theories of lesser criminal liability — maybe some lesser manslaughter charge or some obstruction counts. Perhaps they were not comfortable with alternative theories — some prosecutors think it tacitly shows a sign of weakness in the most serious charges. But even so, where was the reasonable doubt? Many theorize the jury seemed to think Casey’s father, George, was hiding something and came across as not credible? So what? The accident theory — that Caylee drowned and George orchestrated a cover-up to make it look like a murder, and that Casey knew about it but did nothing because she had been a lifelong victim of child abuse — makes no sense. To say it was based on speculation because no evidence was presented on the alleged parental child abuse is being far too kind. The possibility of an accident can only be explained by accepting the sex-abuse theory that allegedly so paralyzed Casey to the point of mindless compliance with the cover-up. However, the trial court properly ruled that the sex-abuse claim was utterly without proof — and could not be argued to the jury — and that should have fatally uncoupled the accident theory as well. Somehow, the poison of the statements made in the opening statement further improperly poisoned the jury in the manner in which they further and irrationally viewed George with suspicion. But the prosecution had it right when it argued that the defense was sending the jury down the rabbit hole to a world of bizarre unreasonableness. A medical examiner testified at trial that in 100% of accidental-drowning cases involving a child, 911 is called. Not here. Why would George retrieve Casey’s car? It would have been imminently crushed at the junkyard. Why would he use the same duct tape on Caylee’s body that he used in putting up “Missing Caylee” signs? If he wanted to make it look like a murder by a stranger unconnected to the family, why would he hide the body such a short distance from home? And why would he risk framing his daughter for capital murder for which she might have been executed? Thus, George’s supposed involvement in a cover-up of an accident becomes an “impossibility” in the legal sense that George’s purported involvement in Caylee’s death does not create a reasonable doubt in this case. Why didn’t one juror press these matters during deliberations? In a circumstantial case, there are always unexplained tidbits and gaps in the evidence. The creepy meter reader. George’s alleged mistress. But many mosaic pieces can be missing and one can still figure out — with absolute certainty — what the picture is. How many letters can be missing when you are absolutely certain of the “Wheel of Fortune” word puzzle? The jury never did this. Don’t tell me the jury didn’t have to because the prosecution simply did not prove their case — it was their burden, and so on. Using an appropriate amount of poetic license, that takes us back to the Sherlock Holmes comment at the beginning of this essay. When you exclude the impossible, whatever remains, no matter how improbable, is the truth. Maybe I wouldn’t use those exact words in a prosecution closing argument because defense counsel might jump on the word “improbable” and try to transform that alone into reasonable doubt. But the concept is spot on. There was a finite universe of possibilities as to what happened to Caylee. When you rule out the impossible, the prosecution’s proof — sufficient to support a conviction — becomes irrefutable. Too bad not one juror saw fit to press that view for even one full day. Had the jury deliberated for a longer period of time, the verdict would have likely been better received because it would have indicated the jury at least seriously evaluated all the evidence and tried to put the puzzle together. As I said before, the jury verdict resides just inside the fenceline of rationality. I suppose a rational jury, exhausted after a long and thorough evaluation of the evidence, not convinced of intentional murder and somewhat unclear on aggravated child abuse via the chloroform theory (perhaps believing that Casey’s mother did the computer search and perhaps somewhat sidetracked as a result of the government’s all-in approach to intentional murder; or perhaps questioning whether Casey, a high school dropout, had the ability to make chloroform) might have eventually concluded guilt was not established beyond a reasonable doubt. Again, I would have respectfully disagreed with the verdict, but it would have been easier to stomach if there was evidence of a longer, more careful and thoughtful deliberation. THE OPENING STATEMENT Our criminal justice system will survive this unpopular verdict. The defense counsel’s tactics are far more troubling and need to be reviewed carefully. Casey’s defense counsel delivered an opening statement which now, in retrospect, has been characterized by many of the commentators who closely followed the trial as “game changing.” However, the opening statement was at best, ignoble, and at worst, ethically troubling. Jose Baez was a relatively inexperienced defense lawyer apparently recommended to Casey by fellow inmates while she was incarcerated but before Caylee’s remains had been found. Had Casey been convicted of murder, Baez would likely have faced deafening criticisms of incompetence. Well, as the saying goes, “winning changes everything.” Not so fast. In Baez’s opening statement, he made outrageous accusations that Casey had been a victim of repeated child rape by her father, which somehow was the cause of her inability to tell the truth and disclose that Caylee had accidentally drowned. Eminent legal ethics scholar Stephen Gillers has noted that “the legal profession has the most trouble dealing with the apparent conflict between client confidentiality and protecting the court when the lawyer’s client is a criminal defendant.” Here, Baez waded into this difficult ethical quagmire. Baez offered no evidence to back up this claim, and was ultimately instructed by the trial judge that he was prohibited to make any reference to this allegation in closing argument. The losing prosecutors, understandably, have withheld criticism on this ground, lest it sound like sour grapes from losing prosecutors. Many in the media, but not all, have stopped their criticisms of Baez, instead choosing to hail him as the next superstar defense lawyer. I would hold off on this coronation, at least for a little while. Even in a criminal case, defense lawyers must follow certain ethical rules — our system is not “win at all costs” — even if the boundaries of those rules are often ill-defined. Criminal defense lawyers, like all lawyers, cannot knowingly make use of testimony they know is false. Virtually every criminal defense lawyer will say he has never even had one case in which he really “knew” when a client’s proposed testimony was false. Under most state and model attorney professional conduct codes, the wiggle room that permits our criminal justice system to operate as we know it is provided by the necessarily amorphous dividing line in determining what exactly constitutes “knowing” as opposed to reasonably believing testimony may be false. Criminal defense counsel have a corollary obligation not to rely on knowingly false testimony as the foundation of their opening statement. The Florida Rules of Professional Conduct provide that “legal argument based on a knowing false representation constitutes dishonesty toward the tribunal.” The U.S. Supreme Court, in Nix v. Whiteside, held that the right to counsel includes no right to have a lawyer who will cooperate with planned perjury. Presumably, Baez’s opening statement was based on something Casey told him, a conversation protected by the attorney-client privilege. However, did defense counsel undertake any good-faith investigation concerning George Anthony’s alleged child abuse and child rape (such as checking school records or medical records), or did counsel just uncritically take the word of Casey, a conceded pathological liar, and surmise that all inquiry of his actions would effectively be thwarted because of purported privilege against self-incrimination concerns? We don’t know. Baez may think that he can never be forced, in any forum, to disclose his conversation with his client, but, certainly in other contexts, privileged communications are disclosed in camera, upon an appropriate showing. Some state codes already provide that the lawyer’s duty of candor to the tribunal appear to trump the duty to protect even a criminal client’s confidential communications. One should not overreact to this opening-statement defense tactic. Our jury system is strong enough to withstand the verdict in this case, no matter how unpopular. Moreover, criminal defense lawyers have been overselling their case in opening statements and failing to deliver the promised evidence for years. Most times, their failure to deliver on their promises redounds to their detriment come verdict time. The odd, perhaps sui generis confluence of factors in this case, such as the oddly convenient scapegoat father who was called back to the stand so many times he appeared to be a yo-yo, are unlikely to be repeated. How many defendants in high-profile cases will be willing to make outrageous criminal accusations against a parent under circumstances in which the parent is apparently viewed with a general suspicion? Nonetheless, one should not underestimate the possibility that the Florida Bar or Legislature might consider altering the boundaries of how defense counsel must act in these types of situations. We now live in the age of “pop tart” legal proposals, fueled by the Internet and social media. At least two other legal proposals have been floated in the immediate aftermath of this shocking and unpopular verdict. “Caylee’s Law” proposals, which make it a crime to fail to report a missing child or the death of a child within a certain time period, are already being circulated. Within a week of the verdict, a Florida legislator proposed a law that would prohibit a juror from financially benefitting from jury service for 270 days after the verdict. In a similar vein, it is within the province of state legislatures and bars to modify the attorney rules on professional conduct. The attorney-client privilege is not of constitutional dimension, and state legislatures possess the authority to modify its contours, even imposing stronger investigation requirements on criminal defense lawyers to establish their good-faith basis on what they state in opening statements, and also permitting ex parte proceedings that could require, under particular circumstances, some disclosure of attorney-client communications (procedures which, to some degree, already exist under some circumstances). Of course, any legislation of this type would be vigorously challenged as unconstitutionally impinging on a criminal defendant’s right to effective assistance of counsel. However, this is murky and uncertain legal terrain, and, if carefully drawn, candor to the tribunal might well trump any arguable constitutional right-to-counsel considerations. Although it may seem unlikely in the immediate aftermath of the verdict, it would be ironic if the lasting legacy of Casey’s defense is a spate of redrafted attorney ethical rules that circumscribe and add additional obligations of criminal defense counsel. The defense bar would not loudly cheer that outcome. In the end, Casey Anthony was found not guilty of all of the serious homicide charges. Whether she is “innocent” is an entirely different matter. In the ground-breaking sixties-era television series Judd for the Defense, which served as my early inspiration to become an attorney, the wise and venerable criminal defense attorney played by actor Karl Betz, intoned in one episode that “guilt is a matter of law, innocence is a matter of conscience.” It is a classic line, I have never forgotten it and I repeat in to my criminal law class every semester. Casey’s “innocence” will be adjudicated before a different tribunal that presides on a much higher floor. My favorite lawyer cartoon, from The New Yorker, has been posted outside my office door for years. A lawyer, surrounded by reporters and cameras on the courthouse steps, proclaims that “My client has been convicted by the media, but I am confident that his conviction will be overturned on appeal by the three major networks and the ‘Times.’ ” Casey Anthony was found not guilty in a court of law but stands convicted by the media. Her reversal in the court of public opinion is not likely soon forthcoming. Meanwhile, fictional “ tot mom/hot mom” missing-child characters have already made their way to the small screen. In a recent episode of the cable television series The Glades, set in Florida, a young attractive single mother has lost her young child. These writers opted for the happy ending, the child had been abducted but turned up safe on a boat. The writers for another popular cable series, also set in Florida, are probably thanking their lucky stars that an entire story arc has practically been written for them. If they and the lead character stay true to form, they likely will opt for a more grisly resolution in their season finale. Meanwhile, I prepare for the fall semester. The casebook seems so dull right now. Adam H. Kurland is a professor of law at Howard University School of Law in Washington and of counsel to Coburn & Greenbaum in Washington. He is the author of numerous law review articles and a book on dual sovereignty and double jeopardy. He is a former assistant U.S. attorney, and he has also represented federal criminal appellate defendants across the country for the past 21 years. He has experienced the sense of relief and gratitude of a guilty verdict while serving as a prosecutor. He has also experienced the sheer exhilaration of a not guilty jury verdict while serving as defense counsel.