The court of public opinion found Casey Anthony (“C.A.”) guilty of murdering her own two year old daughter. Twelve jurors disagreed. The former apparently concluded that being a proven liar makes you a murderer – that doing things no rational mother would do – i.e. not reporting the child missing for 31 days, partying the day after, is enough to say she did it, even if the prosecution did not prove how she died, why she died, and what caused her death beyond a reasonable doubt. Add to the dysfunctional-meter that the father of the child is unknown, C .A.’s own father was accused of sexually abusing her; and the mother was caught lying about performing searches on chloroform. In the public court, those transgressions and her lying disfunctionalism would be enough to send C.A. to her death. The failure of the prosecutor’s expert to use accepted medical science was secondary.
We apparently have a real problem with the standard of guilt beyond a reasonable doubt when it comes to criminal guilt – even if a finding of guilt would kill the defendant. And apparently, we have a problem with the principle that the prosecutor has the burden to prove guilt according to that standard. We prefer a standard that the defendant has the burden to disprove the charges. Our criminal jurisprudence is still hailed as the gold standard in the world, but was designed long before our current social media era of digital discourse.
In the new media age, Nancy Grace was lead attorney in the court of public opinion and convinced many of the new standard – A no-rational-mother-who-was-innocent-would-do-this standard. Prior to the verdict being announced, crowds cheered the prosecutors. Grace was not showing grace as she was among the quasi-lynch mob outside the courthouse. If C.A. had walked the same path as the prosecutors, she would not have been safe.
Those who hang on the words of Ms. Graceless were apparently prepared to hang Anthony. Under the First Amendment, we are free to express our covert beliefs that someone is guilty until proven innocent. There is no penalty for pontificating about someone that you cannot actually put to death. We are not under oath. We know the defendant’s life does not hang in the balance. (No pun intended). But we also have not accurately gauged the power of the social media age. We’ve had televisions in the court room before. But we’ve never had the afterglow of social media buzz to this extent. Many within the media complained that the O.J. Simpson trial was over the top – but then we didn’t have 750 million Facebook users to fuel the fire. Twitter has been ablaze as well. Even CNN’s mid-day blonde equivalent of Grace characterized the C.A. file the day after the verdict as creating a “stunning verdict” against probably “one of the most hated people in America”.
And the fervor continues to spin out of control. At least one Florida restaurant has a sign saying “Pinellas County Jurors Not Welcome”. Some media outlets are threatening to sue to reveal the names of all the jurors, presumably to wring every remaining drop of detail out the jurors’ decision-making process. Jurors didn’t get rich from this process, but others will. Yet those jurors will be paying a price for doing their civic duty not contemplated before our social media age. Once their names are released, I can only imagine what will happen to their prior peaceful lifestyle once the tools of social media are used by the obsessed.
And what price will this new communications age have on future defendants in similar circumstances? Not all defendants will be found not guilty after the media craze. Is the sensationalism that finds one guilty first before all the facts come out going to change? I suspect not. As long as the major network coverage brings great ratings, there will be great media hype. No matter which network covers the story, CNN, NBA, or MCF (Money Comes First), the network’s corporate board of directors knows their legal obligation is to prioritize the interests of their shareholders – which most often translates into increasing share value. If being objective is boring, and being subjectively sensational brings more viewers, and more viewers brings more advertisers, and more advertisers bring more revenue to corporate networks than boring objectivity, Nancy Grace and those with the same MO have job security.
My question is: What happens when the murder charge is against a professional athlete that is also dysfunctional in ways that defy rational explanation among many Americans? Granted it is difficult to envision as sensational a fact pattern as the C.A. file. But try this hypothetical: An NBA player (“Tyree”) has a 2 year old daughter. He has custody of the daughter born out of wedlock, with the identity of the mother in doubt. Tyree says his parents were babysitting and the daughter accidently drowned in his fantabulous pool. Tyree called police 31 days after his parents said they could not find her. Tyree lied about his guns, saying he didn’t have one, but in fact he had six shotguns. He was negligent enough
to shoot himself in the leg in his own living room with the child two feet away six months before the prosecutor said Tyree killed his daughter. There is no evidence of a bullet wound in his daughter but evidence of severe trauma based on a prosecutor’s expert witness, who is not using state-of-the art theories.
When the media reports that Tyree has been charged with killing his daughter, what is the likely reaction in the public court? These facts go viral on the internet including a video showing Tyree partying at his home the night after he reported her missing. The video could be confused with a new hit rap song and some try to make it such. You watch in disgust.
Are Tyree’s chances of a fair trial better or worse after the C.A. trial? Is he more or less likely to get convicted? If there is no evidence of how the daughter died, why she died, or motive as to why he would want her dead, is there enough circumstantial evidence for a jury to convict him of capital murder? I am willing to bet Ms. Graceless would again be just as pre-judgmental as she was in the C.A. case. If anything, Grace would become even more famous. Why would any of the media all-stars, many of whom got their opportunity from defrocked athlete O.J., be less sensational now? And let’s remember the social media fires will burn more intensely in the future. Facebook will soon have video chat with Skype. Google talk has the capability, as do smart phones. I am also willing to bet, no matter how many pro-bowls, or Super Bowl rings he received, he will be unprepared for the unprecedented adverse publicity.
This whole C.A. file spurs the question: Do we have more faith in a prosecutor’s complaint than the criminal justice system that analyzes that complaint? In the public opinion court, it appears the prosecutor has an edge. And I suspect players have that opposite inference of guilt, be it C.A. or A.I. (Alan Iverson).
Remember the court of public opinion when Ray Lewis was charged with the murder of two men after in an Atlanta bar after the Super Bowl, January 31, 2000? The shootings occurred at approximately 4 am. Most of us are typically sound asleep and closer to waking up for a productive day than winding up a party so we already have the irrational conduct inferences in play. In the wake of the Ray Lewis charges, the media was brutal, as were the sports talk callers. But once evidence was rationally considered, the murder charges were dropped. So perhaps treatment depends more on the prosecutorial judgment about the appropriate charges and the evidence required to prove the case, than any public frenzy. But Ray Lewis was not charged in front of the current digital era.
Allan Iverson was not charged with murder, only domestic dispute with his wife which led authorities to file 14 criminal charges, including four felonies. He was not convicted either of those various crimes, but I suspect public opinion court said, “anybody that works that hard to show gangster is a guilty gangster – end of story.”
The point is that anyone who is dysfunctional in many areas, charged with a crime not directly related to the dysfunction, better not assume there is a safe haven in court. We are still learning the power of mobilized social networks. There will continue to be juries that can block out the outside world while they confine their deliberations to the evidence. But there just as likely to be times when much of what may influence the decision does not come from within the courtroom. There will not always be a jury brought in from a different county, as occurred in the C.A. case. And players should take even more precaution than ever before to keep themselves out of circumstances that could make them the next
C.A. story. The case would not be a game they could win on the field, and instead they would be subject to rules of which they are unfamiliar, as are we.