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Guilt

Jury Gullibility in Orlando

Why Casey Anthony Got Away With Murder

As a recovering Court TV addict, I was finally able to break my dependency on non-stop trial-watching when the network became TruTV and cut back dramatically on its trial coverage. I therefore resisted the lure of the Casey Anthony murder trial, as I knew that once I sipped from that wine it would be difficult if not impossible to put the bottle back in the cabinet. My resolve crumbled, however, when I discovered that TruTV's sister network, the HLN network--which might better be renamed the JCA (Justice for Caylee Anthony) network--was covering the Orlando trial 24-7, led by its star commentator, Nancy ("Madame Defarge") Grace. In the last weeks of the trial, I joined the millions of people around the country obsessed by it. In line with the 90% of viewers who told pollsters they believed Casey Anthony to be guilty, I became convinced that she was the only person responsible for the death, and disposal, of little Caylee. However, unlike the pundits who all predicted a guilty verdict, I knew that one should never underestimate what the late true crime writer Dominic Dunne, in characterizing the jury decision to acquit O.J. Simpson of murder, termed "the power of stupidity."

In my 2009 book Annals of Gullibility, I devoted a section to the topic of jury gullibility. This term refers to the process by which a jury--or at least one member, given the requirement for unanimity--is persuaded of a defendant's innocence in spite of very substantial evidence of guilt (in theory, the opposite can occur, but that happens mainly when a defendant gives a false confession, something which most laypeople have a hard time understanding). I used the analogy of a Piagetian "conservation" experiment, in which the task is to keep in mind the equivalency of two objects in spite of a created illusion (such as by rolling one ball of clay into a cigar shape while leaving the other one round) of non-equivalency. In the case of the Casey Anthony trial, the jurors' task was to conserve the substantial evidence of her guilt in spite of the illusion of innocence--or at least reasonable doubt--created by diversionary "evidence," such as (unsupported) allegations against Casey's father George and the meter reader who discovered Casey's remains.

Psychologists and others who are jury consultants engage in what Kressel and Kressel--he a social psychologist, she an attorney--termed "stack and sway" (the title of their 1996 book), in that their two main activities are: (a) helping to stack a jury with jurors likely to favor a particular side and (b) helping to craft arguments which are most likely to sway jurors who might be on the fence. Obviously, the type of juror one favors depends on the nature of the evidence which one has to try and dispute. In a circumstantial case, especially one where the main evidence of guilt involves forensic science, as a rule the prosecution will try and select a smart (or at least educated) jury while the defense will try and select a "dumb" (or at least uneducated) jury. Certainly that goes a long way, other than prosecutorial incompetence, in explaining why O.J. got away with murder. The real problem with O.J.'s jury lay not in the proportion of minority members but in the fact that not a single member possessed a college degree and most lacked even college courses. The jurors' absence of experience in thinking abstractly, understanding probability or reasoning from evidence rather than emotion, made them susceptible to specious arguments such as "if the glove does not fit you must acquit."

Sometimes, lawyers miscalculate in deciding what kind of jury to seek; this usually happens when the attorneys fail to understand fully the weakness of their own case. This happened in the Louise Woodward ("British Nanny") trial in Massachusetts in 1997, when the lawyers for the young au pair (who was convicted of child abuse resulting in death, but was released anyway by the judge) mistakenly sought a smart jury, when in fact a dumb jury would have been much more likely to acquit their client. The "power of jury intelligence" can be seen in a different Massachusetts case, involving Dirk Greineder, an eminent physician who went on trial in 2001 for murdering his wife while they were out walking their dog. In spite of some mistakes by the investigating police officers, the highly educated jury found the defendant guilty after the foreperson, a woman with advanced training in science and math, conducted an independent statistical analysis of the evidence, and convinced her fellow jurors of the overwhelming probability, bordering on absolute certainty, that Dr. Greineder was guilty.

My motive for writing this column came when I was watching TV the day after the Anthony trial ended and watched an interview with Richard Gabriel, who served as the jury consultant for Casey Anthony's defense team. Mr. Gabriel told the interviewer that "we were looking for jurors who were strong and independent and able to resist the public pressure." Hogwash. They were looking for jurors who lacked the ability to tell the difference between good and crap science, who could not engage in probabilistic reasoning, and who lacked the intellectual strength to resist the defense's obfuscatory tactics. The defense got the jury they wanted because the (unusually forceful) judge resisted several attempts by the state to remove specific jurors and because seating jurors (from a different county) unfamiliar with this high profile case meant seating jurors remarkably lacking in intellectual curiosity. This likely would have been a difficult case for the prosecution to fully "win" (i.e., obtain a First Degree Murder conviction for) anyway, even with a smarter jury, mainly because of the absence of a known cause of death. But a stronger jury--including not only more educated members but members with the kind of independence Richard Gabriel claimed to want--would, in my view, have come in with at best a compromise (e.g., Manslaughter) verdict and, at worst, a hung verdict. Various media talking heads have argued that the outcome of this trial showed that "the legal system works." In my view, what the trial outcome actually showed is that "collective gullibility is still alive and well."

Copyright Stephen Greenspan

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