These pages are generally above following the likes of the Casey Anthony trial, but now that it’s over, I call to your attention a very wise editorial by Alan Dershowitz in today’s Wall Street Journal in which Professor Dershowitz explains why the result in the trial was correct. The whole is well worth reading, but here is one part I particularly like:
A criminal trial is never about seeking justice for the victim. If it were, there could be only one verdict: guilty. That’s because only one person is on trial in a criminal case, and if that one person is acquitted, then by definition there can be no justice for the victim in that trial.
A criminal trial is neither a whodunit nor a multiple choice test. It is not even a criminal investigation to determine who among various possible suspects might be responsible for a terrible tragedy. In a murder trial, the state, with all of its power, accuses an individual of being the perpetrator of a dastardly act against a victim. The state must prove that accusation by admissible evidence and beyond a reasonable doubt….
This daunting standard finds its roots in the biblical story of Abraham’s argument with God about the sinners of Sodom.
One reason I like this passage is that it takes up an argument I have been pressing recently in these pages, namely, the difference between law and morality. When the question is no longer, What should I do?, but What should we, as a society, do?, and moreover, to answer that question we set up procedures and officials and enforce their decisions, including against people who may disagree with them, all manner of new considerations become relevant. This is why there is, and should be, a big difference between what’s moral and what’s legal. But go read Professor Dershowitz, because he says a lot of smart things on this topic.
July 7th, 2011 | 10:57 am
I agree with the point, but this paragraph is a little flaky:
“A criminal trial is never about seeking justice for the victim. If it were, there could be only one verdict: guilty. That’s because only one person is on trial in a criminal case, and if that one person is acquitted, then by definition there can be no justice for the victim in that trial.”
This ignores the obvious point that a trial can be *about* seeking justice for the victim yet be unable to actually *achieve* justice because there is no guilty person present. For example, I can make the next five minutes all “about” finding that book I mislaid the other day, but if I don’t find the book, nothing will be achieved by my picking up a different book and claiming I’ve found it. My acknowledgment at the end of five minutes that I can’t find the book does not mean my search was not really “about” finding it.
July 7th, 2011 | 11:00 am
The problem is that Dershowitz is conflating actual “justice for the victim” with the popular cry of “justice for the victim,” which actually means, “Someone has to pay.” But “someone has to pay” *isn’t* actually justice.
Having said all that, I agree that the point of a trial is to determine the guilt or innocent of a particular defendant, not to ultimately resolve the issue of the injustice the victim has experienced. But that’s not because the issue is somehow resolved better by a false guilty verdict than a true acquittal.
July 7th, 2011 | 11:15 am
To Pentamom:
I think you’re missing Dershowitz’s point.
When he says the trial is not “about” seeking justice, he means that the purpose of the proceeding is not to seek justice; the purpsoe of the proceeding is to determine whether the government has admissible evidence that proves beyond a reasonable doubt that the defendant committed the crime charged. It may be that, if this standard is satisfied and the defendant is convicted, justice will be done, but even in that case the doing of justice is a result or effect of the trial, not its purpose.
One of the many purposes of having a criminal justice system generally is to do justice, but it does not follow that the proximate purpose of every proceeding undertaken by that system is to do justice.
July 7th, 2011 | 11:37 am
Quite frankly, I think Casey Anthony murdered her daughter, and I was initially shocked at the verdict. But from the little I have heard, it seems like the jury simply felt there was not enough evidence to come to a conclusion beyond a reasonable doubt. A friend who served on a jury once told me that in the case in front of them, the jury all thought the defendant had probably committed the crime, but they also felt the prosecution hadn’t proved it. So they acquitted him. That is the right thing to do. I think that was the case with this jury.
July 7th, 2011 | 12:35 pm
Thank you for reference to the Dershowitz article. It is an antidote to the gaudy sensationalism, emotion, and mob mentality surrounding this case, which involves a real woman, a real victim, and a real family, not the fictions that loom so large in our culture’s moral imagination.
My reaction to the verdict was sober admiration. Let your faith not reside in the machinations of man: what we call “justice” in this world is a pale imitation, the crude artificial constructions that poorly mimic the Lord of Mercy.
And yet — right down to the judge’s stern warning not to celebrate or denounce the jury announcement — the verdict demonstrates a mastery over mercurial crowd passions, whether or not justice has been effected. That is rare enough in human history and should be commended it when we see it.
July 7th, 2011 | 12:44 pm
I’ve heard this type of negating argumentation for a some time now … law is not about A, B, or C. What Dershowitz and people in the legal community repeatedly fail to illustrate or even discuss is: what, then, IS the point of the law?
Stating all of the things that the law ISN’T doesn’t provide any insight on what it is and, more importantly, what it should be. In fact, the only thing I’ve heard Desrhowitz state is, via an analogy, that the law is a business (or, more specifically, lawyers and judges are “in the business of law”). I find this an extremely troubling concept.
Finally, consider this: if the point of the law isn’t to determine justice for the victim, or even to reveal the truth (as Dershowitz repeatedly states), the purported crime against the victim must ipso facto be immaterial to the proceedings. Hence, there really is no reason to try anyone for anything since the court really doesn’t care whether or not a crime has been committed … or is stating that the crime exists outside of the victim which would make testimony and evidence surrounding the victim inadmissible. In other words, Dershowitz is saying that the law exists unto itself to serve only itself. Is this true?
July 7th, 2011 | 2:05 pm
As Dershowitz points out, the Scots have a handy solution: the jury is given the option of ruling “not proven,” which tells the world that the accused is not innocent, but also that the prosecution failed to make the case.
Techinically, “not guilty” means that too, at least in the legal sense, but to the man on the street, it means “innocent,” hence the outrage.
I, too, was moved by the courage of the jury to stick to the law and not let the passions of the crowd (or even their own passions) sway them.
That said, I believe Casey Anthony is guilty of murder, and I can rely on a just God to deal with it in His own way.
July 7th, 2011 | 2:23 pm
Has a vigilante ever taken “justice” into his or her own hands, administered final justice to the original criminal because the vigilante strongly believed that the legal system would not properly penalize the original criminal, *and then* the vigilante got away with it because there was a “reasonable doubt” in the juror’s minds that the vigilante did it?
I would like to know if a vigilante has ever had the legal system work in his or her favor in this great country of the United States of America.
July 7th, 2011 | 3:59 pm
We can go on and on analyzing the legal system and how correctly it worked in this case, specially for Casey Anthony; but aren’n we missing the eeal important matter here; how did it work for the dead little girl? Has justice been served for her? Is anyone, paying for what she suffered? Does anyone care? Has ” legality” replaced ” “morality”? Are we been “forced” or ” requested” to legal above moral? Is it ok?
Beyond the justime system believe there is a higher power, and I pray for real justice
July 7th, 2011 | 4:07 pm
TUAD,
People have often been lynched in this country for real or imagined crimes and their murderers acquitted or not even charged.
July 7th, 2011 | 4:22 pm
Chris Balducci,
Give me the most prominent and well-recognized case that you know of where a vigilante had the legal system work in his or her favor?
Has there ever been a jury trial of a vigilante whereby the verdict was “Not Guilty” because the prosecution had not proven its case beyond a reasonable doubt?
Suppose a vigilante-parent killed the torturer-murderer-rapist of his/her children. Did a vigilante-parent ever get a “Not Guilty” verdict that you know of?
July 7th, 2011 | 4:34 pm
Robert Miller — I believe I said I got Dershowitz’s point, and agreed. But the way he framed it — if justice were the concern, everyone would always be found guilty — simply doesn’t follow, because it assumes that if justice is sought in a particular way, it is always possible to find it by that means. There’s just no basis for that assumption. So he’s not wrong, he just said something very silly in the process of making his point.
July 7th, 2011 | 4:38 pm
Suppose Casey Anthony gets murdered shortly after being released.
The murderer is rather intelligent and careful, knowing the legalities of law and also of crime investigation. The murderer is apprehended. The case goes to trial and the jury votes “Not Guilty” because the prosecution did not prove its case beyond a reasonable doubt.
I suppose Dershowitz would say that the legal system still worked as it was intended.
July 7th, 2011 | 4:43 pm
“how did it work for the dead little girl? Has justice been served for her? Is anyone, paying for what she suffered? Does anyone care? Has ” legality” replaced ” “morality”? Are we been “forced” or ” requested” to legal above moral? Is it ok?”
The answers are, as follows:
1. The “dead little girl” cannot any longer be served by justice. We as a society can, however, demand justice on her behalf, and in this case, her murder has not yet been dealt with by means of justice. However, we do not have absolute assurance that finding Casey guilty would have done that, either.
2. Is anyone paying for what she suffered? No, no one is. However, it would not be just for someone to pay because Caylee suffered, *if it was not the person who caused Caylee to suffer.* And apparently within the limits of human ability, it was not possible to be certain enough that Casey was that person, in order to inflict some kind of punishment on her. That’s life in a world full of humans.
3. Does anyone care? Of course people care. There was a trial as a result of an entire society caring.
4. Has ” legality” replaced ” “morality”? The two are not mutually exclusive. It is an aspect of morality that someone should not be punished unless his or her guilt is satisfactorily proven.
5. Are we been “forced” or ” requested” to legal above moral? Not legal above moral, but moral by means of legal. Again, it isn’t moral to convict someone if the government, with fantastic resources at its disposal, can’t make people believe the person is guilty.
We might all have our private opinions about Casey’s guilt, and it could in fact be that it was unjust that she was not convicted. But we shouldn’t make the simple equation “she got off therefore nobody cares” or “she got off therefore the legal system doesn’t want to hold people accountable.” It’s just that we live in an imperfect world full of imperfect people who have to make decisions with imperfect knowledge, and the best way we’ve figured out to protect all the *innocent* people who are accused of crimes, is to make it reasonably hard to convict anyone. If there’s a better solution than that, I don’t know what it is.
July 7th, 2011 | 5:34 pm
One important point that rarely is mentioned: Casey Anthony’s “not guilty” verdict is a triumph for you and me. If the prosecution does not prove it’s case beyond…then we are all so much more vulnerable and at the mercy of a powerful, structured prosecution, Hell bent on a conviction.
Verdicts such as this, give us better odds against being caught up in a wrongful prosecution and conviction. As grotesque as it may be, if a “Casey Anthony” has to be released to protect you and me, then so be it.
July 7th, 2011 | 10:49 pm
[...] I gather from today’s comments from juror #3 that the jury was in agony about not being able to convict Ms Anthony, but they did their duty and judged — correctly, as far as I can see — that the prosecution failed to make its case for capital murder. Hard to convict on that charge beyond a reasonable doubt when you don’t know how the victim died, or when, or where. See Alan Dershowitz’s essay and Robert T Miller’s comment on it. [...]
July 8th, 2011 | 7:03 am
In an action of divorce or separation, if adultery was the ground of action, it formerly had to be proved by the criminal standard -beyond reasonable doubt and by corroborated evidence. Accordingly the Court could find the defender guilty of adultery with the co-defender, but assoilzie the co-defender because there was no evidence sufficient in law to prove that he had committed adultery with the defender: Creasey v Creasey 1931 S.C. 9. The Lord President there referred to a passage in Lord Fraser’s Husband and Wife (vol. ii., pp. 1173-4),
“The confessions of the wife, defender, may warrant the Court in finding that adultery is proved against her, while, not being evidence against the co-defender, he escapes; and thus divorce may be granted against the wife for adultery committed by her with him, while he himself is assoilzied from the action.”
The outcome is, in fact, perfectly logical.
July 8th, 2011 | 12:39 pm
pentamom
The problem is that Dershowitz is conflating actual “justice for the victim” with the popular cry of “justice for the victim,” which actually means, “Someone has to pay.” But “someone has to pay” *isn’t* actually justice.
Good point, I’m sure her daughter, if she could have the choice, would rather simply have not suffered whatever it is she suffered in her last moments rather than ‘knowing’ she would be ‘avenged’ by her mom going to the chair.
On the other hand aren’t you running up against a key doctrine from Christian theology? Isn’t the whole concept of Christ built around the idea that ‘someone has to pay’ and while that someone ‘should’ be us it is actually Christ?
Patrick
Finally, consider this: if the point of the law isn’t to determine justice for the victim, or even to reveal the truth (as Dershowitz repeatedly states), the purported crime against the victim must ipso facto be immaterial to the proceedings.
The purpose of law is to set ground rules for the state. Clearly people cannot be allowed to run around killing whoever they want (either because of whim or as ‘revenge’ for previous murders). The state is empowered to stop us from doing so and punish us. The purpose of law is to set up a system of rules that bind the state as it does that and set limits on its power. Hence the state only punishes for crimes when its proveable beyond reasonable doubt.
Millie
We can go on and on analyzing the legal system and how correctly it worked in this case, specially for Casey Anthony; but aren’n we missing the eeal important matter here; how did it work for the dead little girl? Has justice been served for her? Is anyone, paying for what she suffered? Does anyone care?
Do people care? Yes. Is anyone ‘paying for what she suffered’…..well I think so. I think her mother is as well as her grand parents as well as many others who got wrapped up in the case. I’m not generally a very religious person but I do have a sense….or hunch….that nothing in the world is really free…everything gets ‘paid for’ even if we don’t realize it. I’m not that upset by the verdict then. I suspect Casey is and will pay for whatever it is she has done. I wouldn’t wish to be in her place and I don’t say this because I want people to be go vigilante on her…or even shun her. I feel she will ‘pay’ even if everyone forgets her and she lives as normal a life as anyone can.
But as a collory to this, I don’t feel that its my or anyone else’s job to ‘do justice’ here. We have a system and the system is good for its purposes but its not within our ability to set the world right. Convicting her, torturing her, killing her would not make her daughter any less dead.
July 8th, 2011 | 4:23 pm
“On the other hand aren’t you running up against a key doctrine from Christian theology? Isn’t the whole concept of Christ built around the idea that ‘someone has to pay’ and while that someone ‘should’ be us it is actually Christ?”
Well, that was rather predictable.
You’ve come up with the one exception to the general point I was making. The unique circumstances of the Incarnation change the rules a bit; it doesn’t really change the relevanat point that you, I, or anyone else other than God Incarnate who didn’t hurt Caylee Anthony could NOT do anything to help justice by “paying” for Caylee’s suffering and death.
July 9th, 2011 | 7:40 pm
Robert, why would you believe a low-life like Alan Dershowitz? Come on! This is shocking. A very wise editorial?
July 9th, 2011 | 8:21 pm
To Steve Klein:
It’s not a question of *believing* Alan Dershowitz, as if I were accepting his conclusions on his personal authority. His editorial is wise because his arguments are persuassive. This makes it quite irrelevant whether he is a “low life,” a issue on which I have no opinion, having never met the man.
July 9th, 2011 | 10:33 pm
I am confused by Dershowitz’s comment about Sodom. God eventually destroyed Sodom in the story. I assume that means that God couldn’t find 10 righteous citizens in Sodom. Maybe he found 3? So that wasn’t enough and they died too?
That isn’t the basis of the the legal standard!
That makes zero sense.
Dershowitz should have mentioned Francis Dane (maybe that’s what he meant?) who stopped the Salem Witch trials and was quoted as saying “it is better that 10 witches go free than one innocent be put to death.”
That statement makes more sense than the Biblical quote.
July 10th, 2011 | 7:47 pm
The prosecution proved nothing.
The rest of the opinions expressed are thus conjecture.
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