This is a tautology, of course, since nothing is ever the same, but when spoken by a Socialist politician who admires Marshal Tito (Yugoslavian dictator under the Soviet Union), it sends chills down the spine, does it not?

In the United States the media generally ignore what’s going on in the rest of the world. If an American wants to know what’s happening outside this country, she has to watch BBC World News, and then most of what she learns is how stupid the EU is, not what’s happening around the world. But, of course, I understand why this is: Americans don’t think the rest of the world matters, even Americans who would like to see “One World.”

Sidebar: Have you ever noticed how TV weather maps show storm boundaries sliced off at the Canadian and Mexican borders?

Remember the Bosnian War?

Under President Bill Clinton, NATO intervened in the genocidal war among Balkan nations that resulted from the breakup of Yugoslavia after the fall of the Soviet Union. At the time, American media was awash in the bloodshed and horror. It inspired me to write a short story, “At the Foot” (now in my historical-mystery short-story collection THE EVIL THAT MEN DO (Light Pages, 2009). When I finally published the story in 2009, I figured it counted as historical, because nobody in America would remember the war.

American memories are very short (and getting shorter, as far as I can determine because high schools don’t teach any history after World War I).

Since the beginning of this century I hadn’t heard a word about Bosnia or Kosovo or Serbia until this weekend when I picked up a copy of The International Herald Tribune as I boarded a plane at Heathrow and found an article by Dan Bilefesky, “Bearing West, Serbia his a bump,” which ends with the chilling quote above from Ivica Dacic, interior minister of Serbia, now running for president. Dacic is a populist and nationalist, which is another way of saying he’s anti-democratic and believes in Marx’s “dictatorship of the proletariat;” as the lyrics of his theme song says, “All you heroes, get ready for battle.” (In addition to Tito, the article claims that Dacic’s other heroes include Vladimir Putin and Barack Obama!)

A few days ago, in a completely un-American media moment, The Miami Herald published an article by Jonathan S. Landay , “20 Years After War Bosnia Grows More Divided.” Please read it.

Why Should You Care?

Because Serbia is a member of the United Nations, which now seems to dominate American foreign policy. Because Serbia has applied for EU membership. Because the EU is bankrupt. Because the EU is begging us to bail it out. Because American law and government must not adopt the EU or the UN as our model.

According to my Cassell’s New Latin Dictionary, “litigo” is Latin for “to quarrel, dispute, brawl.” Of course, the most disputatious, quarrelsome brawlers in America are lawyers; therefore, IMHO, the fear of lawyers ought to be called “litigatophobia.” I suppose, you might quarrel with me and say the term ought to be “litigatorphobia,” but that might too easily be mistaken for alligator-phobia, and I really think the similarity of lawyers to alligators is much less than to many other non-human creatures I can think of. (Most are reptiles, but not all.)

My Advice: Fear Lawyers

My novel The Juror Hangs is a cautionary tale about jury duty. It is also—I now realize—the world’s first courtroom drama in which the really bad guys are the lawyers.

In one of my favorite cable shows, Ghost Hunters, the “investigators” claim that evil, angry spirits feed off both EMT (electro-magnetic transmissions) and human pain and suffering. I wonder if lawyers feed off EMT, too, because clearly they make their living from human pain and suffering.

Have you ever read Charles Dickens’ Bleak House? It’s a novel about how lawyers quarrel over a will until it’s entirely eaten up by their fees. Until I became involved in probate court myself, it seemed like a sort of cynical joke. No, it’s not a joke.

So, while I have dedicated this blog to warning prospective jurors about the perils of jury duty—and simultaneously defending the jury system against the lawyers who run the courtroom—I’m now adding a theme: beware the perils of probate court.

My Advice: Never Agree to be an Executor

Why should you never agree to be the executor of a will (or “personal rep,” in some states)?

• Unless the size of the estate is small, you will be required to work through a lawyer, even when it’s only a matter of posting a bond because the deceased did not die in the state where you reside. The lawyers’ fees for this minimal assistance will be substantial and may have to come out of your own pocket.
• The lawyer will require you to sign a contract stating that you are personally, financially responsible for any of the firm’s fees and expenses that exceed the value of the estate.
• No matter the value of the estate, anybody in the world can contest the will for any reason they can think of; when that happens you have to work with the probate court through a lawyer.
• If a will is contested, it’s likely to be contested by someone you know well or a family member; this instantly destroys your relationship (if any) with that person; the heir or heirs will blame you as much or more than the “quarreler.” In other words, there will never again be any peace in the family, and some of your loved ones will disown you.

So, if granny tells you one day that she has written a new will and named you as the executor:

1. Ask her to let you read the will, perhaps in the presence of her lawyer, and see who is named as the alternate executor. If it is a responsible person, then find out if it is too late for her to change the name of the executor to that person, so you don’t have to resign in his favor when the time comes.
2. If granny has named a cad as the alternate executor, then you need to be prepared for what you’re going to do when granny dies. Find out roughly what the estate is worth and likely to be worth when she dies. Learn about estate tax laws. Read up on probate in her state of residence. Determine what your liabilities will be if you become the executor of her will when she dies.
3. Consider what you would do if you had to resign as executor after her death, and decide whether you might be wise to plan to contest the will so the cad can’t run slipshod over the rest of the family.

Probate court is nothing but an excuse for lawyers to line their pockets for doing nothing. I hear from certain reputable investment firms that revocable trusts can avoid probate altogether. That’s what I’m looking into these days—that is if I survive the stress of handling a will as executor in which I am not even an heir.

Long ago I promised Mr. Paul Connelly, foreman of the 2008 jury in the trial of O. J. Simpson for robbery and kidnapping, that I would publicly apologize for my ignorant post about him. The time is long past for that, so I not only apologize profusely for mischaracterizing him in this blog but also for taking so long to correct my stupid mistake.

I hope Mr. Connelly knows that Google searches no longer turn up my uninformed post about him (and after I’m sure this blog article is posted, I will unpublish the earlier posts and comments). In fact, Google searches no longer turn up much at all about the O. J. Simpson trial except to list Simpson’s prison address and to state that in 2011 the Nevada Supreme Court denied Simpson’s appeal and all of his reasoning, including his complaint against the jury and jury foreman specifically. In addition, Google has recently redesigned YouTube so that it is impossible to find anything on it other than paid advertising, so none of the videos of the Nevada trial that YouTube once featured so prominently are easy to find.

I hope now Mr. Connelly is able to return to his private life. I know from personal experience how hard that is to do after serving on even an obscure jury. Serving on a jury is traumatic for anyone with integrity, a belief in the American system of justice, and a love of the Bill of Rights.

The Book

Mr. Connelly told me he had written a book about his experiences with O. J. Simpson’s lawyers, the press, and the judges. It still sits in a drawer somewhere, because he was wise enough not to make it public. I believe I told him I had once considered writing a true-crime book about a case involving a woman convicted of murder whom I believe to be innocent. I contacted the attorneys at the Author’s Guild (of which I am a member), and they kindly informed me that I would need not only liability insurance but also to find an attorney who specializes in vetting manuscripts before publication.

Naturally, I decided against writing the true crime book. Since that time, I have also decided not to blog about the case any further, because really I know very little about the people involved. Most of their behavior is more inexplicable than any fictional character I have ever dreamed up. I wish them all well, but it’s best for a juror or other bystander in these matters just to keep quiet and try to go on with their own lives.

The Fate of the O. J. Simpson Foreman

Mr. Connelly posted public comments on this blog. I have researched and confirmed what he told me. Here it is:

After the verdict was in, the foreman, Mr. Connelly, agreed to speak to the media in the courtroom. BIG MISTAKE. The reporters, cameramen, and sound crews were—as usual—unruly.

Mis-speaking to the Media

Someone asked a question about what sentence was appropriate for Simpson.

Mr. Connelly replied: "That is up to the judge and the court to decide. It is not up to this panel of jurors."

The reporter pressed on, saying,"Many people are of the impression that OJ Simpson should have been found guilty and sentenced to life in prison 13 years ago and that surely every one has opinion on this case."

Mr. Connelly mistook the reference of the pronoun “this” as “opinion”, and replied, "and that was my opinion, that it is up to the court and the jury to decide."

I told Mr. Connelly that it was legitimate to interpret his statement to mean that he thought OJ Simpson was guilty and ought to have been sentenced to life (the former English teacher in me speaking, not the former juror). However, I do believe him when he says that was not what he meant. The Nevada Supreme Court also agree that was what he meant.

This is an object lesson for all future jurors: Never speak to the media. Jurors are not trained to address the media. It takes years of formal education to be competent to deal with the media.

False Rumor

The media reported that the foreman, Mr. Connelly, had pressed the jury to continue deliberating late into the night in order to deliver a verdict on the 13th anniversary of Simpson’s famous not-guilty verdict.

Mr. Connelly swears that no one on the jury, not even he, knew that the date was the anniversary. The reason they pressed on was that they had first deliberated over Mr. Simpson and had reached agreement on his guilt, but they had not deliberated on Mr. Stewart. If they had adjourned for the evening, they were worried that the Simpson guilty verdicts would leak out; so rather than risk that they pressed on.

To quote Mr. Connelly’s comments on this blog:

“As for the foreman deciding to press on into the night on the 13th anniversary, not a single juror had a clue as to the significance of the day. Certainly the defense attorneys did, and they could have postponed closing arguments another day. . . . We had no idea that it was the 13th day of the trial; we deliberated 13 hours; and it was the 13th anniversary of his [Simpson’s] famous trial. He also committed the latest crimes on the 13th of September the year prior. My original juror summons number was 32, which is his jersey number, [and] he was also once jailed here in Vegas in cell 32. Is this my fault?”

It’s an interesting observation, don’t you agree? And surely it is no coincidence that “the defense attorneys” later cited Mr. Connelly’s remarks and behavior as grounds for their appeal.

Mr. Connelly also wrote:

“As for no black jurors on this trial: 18 jurors sat through this trial. Juror #13 is an African American male, and juror#17 is an African American female. The judge wanted to do a lottery of sorts to decide the 12 deliberating jurors. This method would have certainly given one of the African American jurors a chance to deliberate. However, the defense lawyers did not want the lottery, as they asked the judge to have jurors 1 [through] 12 as the jury and 13 [through] 18 as alternates.”

In Mr. Connelly’s opinion, the defense attorneys did this in order to guarantee an all-white jury and, so, provide another grounds for appeal if the verdicts were guilty. I’m sure he is correct.

Media Are Destroying the Jury System

Mr. Connelly was forced to testify before the court about his alleged misconduct. Simpson’s lawyers tried to have him charged with perjury for his answers on the juror questionnaire. His family was harassed by the media. I can’t begin to imagine how horrible all this was for his family.

The State of Nevada owes him an apology, in my opinion.

You know this is true: in every high-profile trial, the only verdict the media will accept is “Guilty.” Any “Not Guilty” verdict is blamed on the jury system and the ignorance, stupidity, or corruption of the jurors.

Pray you are never the defendant in a high-profile trial of any kind. I say “pray,” because your fate is out of your control. Perfectly innocent people are arrested all the time.

But you can do something to help yourself from serving on a high-profile jury. If you don’t feel it’s ethical to ask to be excused from jury duty, then be very sure you don’t ever talk to the media.

On Tuesday, a headline graphic above the Wall Street Journal’s masthead read, “The Power of Lefties.” Naturally, being a proud lefty myself, I turned immediately to page D1 where I was slapped in the face with this headline: “The Health Risks of Being Left-Handed.”

Sidebar: If any business but a newspaper had been so misleading, this would have been an instance of illegal bait-and-switch.

I have read a great deal about the health hazards of left-handedness: the worst, IMHO, is the tendency of a left-handed driver to swerve into on-coming traffic in an emergency, rather than to the right, out of harm’s way. But there’s also a huge risk of cutting yourself when you use a knife (which you have to use with your right hand because of the bevel on the blade, which is right-biased).

The WSJ article claimed, however, that lefties face a greater risk of ADHD, dyslexia, and even schizophrenia than right-handed people. Supposedly, “researchers” have conducted statistical studies to this effect and have also concluded that lefties have 10% lower IQs than righties. They claim the only possible cause of the disease of left-handedness is pre-birth trauma to mothers, who apparently suffer from surges of nasty chemicals in their systems. “Proof” of this comes from studies of identical twins who do not share the same “handedness.”

One such pair of identical twins are my maternal aunts. I have always attributed their divergent brain wiring to the original split of the embryo, which produced what my mother called “mirror twins.” I guess that idea is beneath modern “scientists.”

As for dyslexia, the fact is that I do believe it is related to left-handedness. When I was first learning to read and write, I wrote backwards and had a very hard time reading words with certain letter combinations. For instance, I remember that the word “scissors” baffled me, and it took me forever to figure out the difference between p’s and q’s. Once I realized that the rest of the world read in a different direction than I did, I was able to sort it out. However, to this day I can write backwards like Leonardo da Vinci, and I can also write upside down and backwards simultaneously with both hands. (I guess that makes me either an idiot savant or schizophrenic or both.)

As for the IQ of lefties, anyone who’s left-handed will tell you that he or she has never met another left-handed person who wasn’t brighter and more creative than average. Please don’t forget that our current president is left-handed and so is Bill Clinton. Tell them that the Bush righties are 10% smarter than they are.

Ancient Bias Against the Sinister Side

The word “sinister” derives from the Latin word for the left side. A “bar sinister” on a medieval coat of arms indicated that the owner was descended from a nobleman’s bastard son. I’ve been told by someone who has lived in Moslem countries that it is taboo to use one’s left hand in public, especially for eating, because the left hand is supposed to be used only for certain filthy, self-maintenance tasks.

I  have just completed a novel set in 1929, the Year of the Stock Market Crash, tentatively titled Snow Ghost, in which the protagonist is a left-handed typesetter. She explains to another character that parents and teachers often try to force a left-handed child to change hands, because left-handedness is highly suspect, not healthy, and improper. When I wrote that, I thought contemporary readers would be surprised to learn that left-handedness was once so despised. Foolish me.

Coming Soon: The protagonist of The Juror Hangs, Iris Ginge, is also left-handed. Now available only on the Kindle, in the first quarter of 2012, it will be available for the iPad on the iBookstore, as well as the Nook and the Sony Reader.

When recently, after the Casey Anthony acquittal, legal pundits called for “professional jurors,” they probably didn’t know it, because they probably aren’t well-enough educated to know it, but the idea of a superior class of American individuals who are more-capable than the average American is a concept first articulated in the early 1900s (I won’t say ‘early 20th century,’ because legal pundits think the latter era is right now) by Social Darwinists, and ‘ “[e]litists, utopians and so-called ‘progressives,’”as Edwin Black explains in “Horrifying Roots of Nazi Eugenics,” a chapter from his War against the Weak.

Eugenics

Until very recently I naively believed that eugenics had been thoroughly debunked as quackery decades ago. Then someone very close to me made this chilling statement about a little girl we know:

“You have to understand: some people are just worthless; nothing can save them; nothing can even help them. They’re born that way.”

The person who said this claims to be a scientist, to understand Darwinism and genetics—thus giving him the right to make such statements. (As I have asserted before, many people who claim to be scientists are nothing but very superstitious—their superstitions involve bogus statistics rather than mysticism.)

If you have any doubts that the U.S. has long been a hotbed of eugenics, please read Wikipedia’s article on the topic, which correctly notes that one “darling” of contemporary progressives, Margaret Sanger (promoter of the birth control pill and abortion and founder of Planned Parenthood, which is now a government-funded NGO), was a eugenicist.

Sidebar: I am a proponent of “a woman’s right to choose” as a privacy issue. I’m not arguing against the right to abortion. Nor am I disparaging religious opposition to abortion on moral grounds. What I’m saying is that there have always been a large number of people who favor abortion as a means of genetic engineering. Is it a mere coincidence that, according to the Center for Disease Control in 2000, the ratio of abortions-to-live-births for African-American women is 3 times that of white women?

Eugenics in Law and Literature

Margery Allingham (1904-1966), British author of the Albert Campion mysteries, was also a eugenicist. As late as 1963, she wrote a mystery novel about a series of crimes committed by a genetically flawed child born during the Nazi bombing of London in 1940-1941. The novel is The China Governess.

In The China Governess, the mystery kicks off with a young man’s search for his genetic roots. An orphan (adopted by a gentleman of the landed-gentry, whose roots extend back to the Norman Conquest) learns just before his marriage to a wealthy heiress that he was born in the worst slum in London. Until then, he had thought he was the wealthy adoptive father’s “bastard,” as he puts it. It  panics him to think he might have inherited “tendencies, weaknesses” from an unwed, poverty-stricken mother.

Of course, in the end we learn the hero isn’t a defective after all. His mother and father were married, middle-class, and educated. His mother died in child-birth, and his father was separated from the infant during the London evacuation. The criminal in the mystery is revealed as the true child of the slums, “a poor type. . . not necessarily an imbecile. . . ,” though barely human, more “reptilian” than anything.

Now, since many modern murderers seem barely human to me, too, you might think I would find this attitude acceptable. But, saying that someone doesn’t behave up to the standards of humanity is very different from saying there are classes of humanity, some of which are inherently, grossly inferior to others. No, I would not have thought this villain was genetically inferior just because he was born in a slum or that he was destined for a life of crime.

Worse yet, Allingham also extended her class of genetic inferiors to the working classes. Here’s how the heiress fiancée of the hero describes her unexpected encounter with the masses in a tobacconist’s shop:

“Many of the women were factory workers. . . . They were . . . all hot, and laughing aloud. The brutal noise, meaningless as a bird call, reached an intensity which stunned her. . . . The uniformed factory women were imitating their men folk and swearing as they never did in the normal way when each was as it were a private person. The trickle of dirty fantasy threading through the crackle produced a shocking sound which she had not met before, and which gave her the illusion that there were no individuals present, only a single merciless personality. As the queue fed her relentlessly into the dark shop the stale, sweaty smell of leather and newsprint met her in a wave . . . .”

That’s right. She had never been inside a shop that sold tobacco and magazines before. I repeat: this was written in 1963. John F. Kennedy was President until November of that year—the heyday of liberalism, one would have thought.

Another eugenicist was poet Edgar Lee Masters (1868-1950) (The Spoon River Anthology), a lawyer and Clarence Darrow’s law partner in Chicago, when Darrow was accused of jury-tampering (a Los Angeles jury hearing a case of union violence against a newspaper).

Edgar Lee Masters wrote two epic-length, blank-verse works on the subject of eugenics, crime, and juries: Domesday Book (1920) and The Fate of the Jury (1929). In my quest for literature about juries and jurors, several years ago I found copies of these (first and only editions) at an online antiquarian bookseller’s website. Inside the front cover of the Domesday Book was the slip of paper reproduced to the left: it is Masters’ autograph. It reads: “For Alice Woodward’s copy of Domesday Book. Edgar Lee Masters  September 25-1933.” (If I were a graphologist I think I would call his handwriting rigid and say that the cross on his T looks like a whiplash.)

Sidebar: I don’t know why he called it the Domesday Book, rather than the Doomsday Book, but he did. Frankly, my guess is he pompously thought the spelling was more authentic and medieval.

The Domesday Book is a murder mystery in blank verse, which, as far as I know, makes it unique in literary history. A young woman is found dead in Illinois’ Starved Rock State Park (which has had its share of notorious murders, including “The Starved Rock Murders” of 1960.) The detective in the story, so to speak, is a coroner who calls together a jury of the leading professional men of the community to determine whether she died accidentally or as a result of homicide. In the end, it turns out that the young woman was genetically inferior and promiscuous. Her behavior had so horrified her father that the thought she might bear him a genetically inferior grandchild out of wedlock drove him to kill her. In Masters’ mind, the tragedy seems to be what the father was driven to do to save the bloodline from contamination. (Hmm, maybe that’s what George Anthony was trying to do by testifying against his daughter.)

In The Fate of the Jury, Masters follows up on how the jurors were impacted by their experience on the coroner’s jury (something that more writers ought to pay attention to). The coroner himself, unfortunately, ultimately falls in love with a “neurotic” young woman who ought not to have children for fear she would produce equally defective children.

Professional Jurors

The idea of professional jurors is an abomination. Everyone who signed the Declaration of Independence and everyone who wrote the Constitution and the Bill of Rights would roll in their graves if we permitted a class of professional jurors to decide guilt or innocence. As a consequence, I imagine there would be another earthquake on the East Coast where, as far as I know, all the Founding Fathers are buried.

Just imagine what such a class of people would be like: They would be well-educated in the law and little else, like lawyers. Paid by the state, they would be obliged to side with the state. They would feel duty-bound to make sure justice was meted out to every guilty person, and they would be able to recognize a guilty person from a mile away.

I’ve always thought lawyers were people who chose their profession so they could tell other people what to do. I’ve never been to law school, but I’m beginning to think that Law 101 must be a course in the inborn superiority of people who can tell other people what to do.

The tabloids are still full of Casey Anthony gossip, but no mention has been made of the fate of the jurors in her murder trial. After all the cries of outrage at the verdict, after all the bubble-headed pundits who saw the verdict as a sign that jury trials were obsolete, after Judge Belvin Perry, Jr., wrote to the Florida Attorney General about the folly of the “sunshine” law that compelled him to release the jurors names, now no one cares what happened to the jurors—no one but me, apparently.

Wisely, most of the jurors seem to be hiding. Foolishly, one juror has hired a publicist.

In an insightful article about the so-called “scientific evidence” presented in the Anthony trial, Matt McCusker of the American Society of Trial Consultants explained very clearly that the Anthony jury served the role it was intended to serve; it applied common sense to the arcane machinations of the law (my interpretation of Mr. McCusker’s article).

Among the so-called scientific experts who testified against Casey Anthony was the media darling, Dr. G (medical examiner Dr. Jan Garavalia—warning, link is a noisy ad). Dr. G testified that the manner of death was homicide, based on the presence of duct tape in the vicinity of the skull and the fact that the body was transported to a wooded area in a garbage bag, a.k.a. trash bag.

Of course, this is nonsense. It’s fallacious reasoning. No real scientist would draw such a conclusion. The only conceivable reason an intelligent woman would make such a claim is that she was biased toward the state’s argument, because she is a state employee. It was clearly in her self-interest to support the state’s case, and it would clearly have been personal and professional suicide to go against public opinion.

Coroners v. Medical Examiners

The office of coroner goes back almost to the Norman Conquest in England. The coroner (or “crowner”) was the king’s representative in the counties and, as such, handled legal matters. The coroner conducted inquiries into crimes in the form of trials (inquests) in which testimony was presented to a jury. In matters of unexplained deaths, the coroner’s jury decided whether the death was of natural causes, accidental, or homicide.

Sidebar: I took the photograph above earlier this year in the city of Westminster, which is a borough of London. Westminster is the seat of the British government. I found it interesting that in Westminster there is a coroner’s court, not merely a medical examiner’s office.

Medical examiners are forensic pathologists who, like coroners, are appointed at the county level in the United States. Coroners are not forensic pathologists; they can be any citizen.

Apparently, the first medical examiner’s office in this country was established in New York City in the 1940s; board-certified forensic pathologists were first recognized in 1959. Since then, the trend has been away from coroners toward medical examiners—based on a common assumption (or perhaps mythology) that medical examiners are more objective in their judgments than the layperson.

I contend that Dr. G proves otherwise.

Coroners must convince a jury of their judgments about cause and manner of death. Medical examiners need only convince a prosecutor, a lawyer who generally knows nothing about the scientific method.

When a medical examiner pronounces a death to be a homicide, then the State is free to step in and take away the liberty of any citizen it chooses to blame.

In the Casey Anthony trial, the jury played the role of a coroner’s jury and declared that the cause of death was not proven to be homicide. The cause of death could have been accidental. It could even have been natural. The medical examiner did not have sufficient evidence to determine the cause of death, and, without a cause of death, the manner of death can never be proven.

It may rankle the mob, but that is why we have a Bill of Rights.

I’ve written several times that the only two chairs in a courtroom worse than a juror’s are the defendant’s and the witnesses’. I could wish nothing worse for my enemies than being forced to testify in front of a judge. I would never wish my enemies to be charged with a crime for fear that crime would be strangling me. Now I’m faced with the possibility of having to testify in a hearing, and the thought of it has sent me into a complete panic.

I suppose I’m not even supposed to talk about the issue that may require my testimony, so I’ll just say I’ve found proof of life after death in probate court.

Why am I so afraid of swearing an oath and testifying? I’m told that a lawyer would never understand that. I’m told that most people wouldn’t mind a bit. I’m told that most people think a reluctance to testify indicates a person has something to hide. Well, I have nothing to hide. I don’t feel I need to lie about anything. That isn’t the source of my anxiety.

Fear of Telling the Truth?

The belief behind the idea is that guilty people fear telling the truth, so they lie. But it’s also possible to fear making a mistake and inadvertently lying or even to fear that when you tell the truth you may not be believed.

I would never agree to take a lie detector test, for that reason, and that doesn’t make me guilty of anything. Even the law recognizes that lie detectors are not reliable determiners of veracity. Lie detector results aren’t allowed in court. But if a situation arose in which the cops felt it was a good idea to strap me into a lie detector, the situation would have to be dire, and as a consequence I would no doubt be as distraught as I am right now. That distress would undoubtedly register with the lie detector. The lines would jump up and down like crazy, even when they asked me my name.

Ken Alder’s The Lie Detectors is a fascinating, novelistic account of the invention and promotion of the lie detector among law enforcement. Alder concludes that “The lie detector and its progeny have been repeatedly denounced by respectable science—but since when has that stopped millions of Americans from believing in something, especially when the public media breathlessly extol its successes?”

Fear of Swearing an Oath

I wouldn’t like to be told to raise my right hand and swear to tell the truth, the whole truth, and nothing but the truth—whether it was “so help me, God” or not. I’m a word-monger and a literalist. I take words very seriously. I could swear to tell the truth, but only as I know it; since I’m not omniscient I would have some trouble with the simple oath to “tell the truth.” I could not swear with an easy conscience to tell “the whole truth,” not only because I lack omniscience but also because I know the whole truth is very complicated and it would take me a very long time to tell the whole truth as I know it and I doubt that any judge would sit idly by while I rambled on and on (as I am now). And I would feel uneasy about telling “nothing but the truth,” since I might inadvertently tell something untrue or half true.

When I was sworn in as a juror, the clerk recited a very bizarre oath, which I must say I swore to “with mental reservations,” in the old sense of the word.  It had something to do with the “eyes of the all-seeing God.” I said, “I do,” when I didn’t have a clue what she meant by that, and I was literally sweating the whole time. A lie detector would have jumped off its chart.

Historically, “mental reservations” were the “out” used by Christians to avoid punishment for refusing to swear an oath. Mental reservations were a way of crossing your fingers while you hand was raised to swear an oath. By holding mental reservations, the Deity would understand that you intended to tell the truth or perform an honorable act (such as taking a high office) but that you did not necessarily mean the words of the oath literally.

In time, the authorities caught on and added to every oath the words “without mental reservation.” That precipitated a crisis of faith for some people. Many Protestants did not believe in oaths of any kind. The swearing of an oath was an act of faith for Catholics and some Protestants but a denial of faith for others. It’s rather like the controversy now over whether or not to lay one’s hand on the Bible (or Koran) when taking the oath of office.

So, I’m not the only person who starts shaking when asked to raise her right hand and swear. And I’m not the only person who would flunk a lie detector test even if all I was asked was my name or who would refuse to take one in the first place.

Honestly, if I’m called to testify I’ll have to take Valium to get through the experience.

When I was 11 years and 1 week old, my father died in an auto accident. For whatever reason, my mother (who died this year) refused to discuss him or his life or his family with me. She lied to me and said my father’s half-brother refused to attend the funeral (although I now know he was a pallbearer), and she refused to take me to the funeral. Not only that, she would not take me to visit his grave, although almost 40 years later my sister said she visited the grave with my mother often.

Last week I discovered that Marquette University owns a scrapbook of my uncle’s that contains 43 of my father’s letters from World War II. He fought in the Battle of the Bulge and received a battlefield commission, which was awarded at Fontainebleau.

I’ve just begun reading my father’s letters. To me, as a child, he was a rather formidable father, not a person. Now I’m learning about his love of his parents and brother, whom he called “my bud.” I’m learning who he was as a person. He writes about his father, a “peculiar man” who was the son of a U. S. Deputy Marshal in Indian Territory. He worries about his mother, a Native American woman who “passed” for white and who ultimately was excluded from his wedding to my mother, because my mother’s mother was a racist (and, ironically, discovered in time that she had married a Jew).

I am overwhelmed.

Voice of Sanity tells me:

“Decomposition. ‘Not by trauma’ means no signs of cutting. There's been considerable discussion of this in BC. The head and limbs don't bloat up like the torso so they tend to sink, however the runners provide some flotation. It's still very puzzling.” (He also recommends this Wikipedia article, which is indeed very interesting: http://en.wikipedia.org/wiki/Salish_Sea_human_foot_discoveries )

The actual quote by the coroner Stephen Fonseca to which I referred was: “Foul play was not suspected because there was no sign of trauma.” Since I have a low opinion of medical examiners, I failed to note that the idiotic remark was made not by a medical examiner but by a “coroner,” who may or may not be a physician or pathologist.

It is obvious that the people in question who lost their feet did so after they were dead, and the only way they could possibly have died was after a traumatic event. Drowning is a trauma. Drowned bodies show signs of the trauma in their lungs and eyeballs, so obviously there would be “no sign of trauma” on a drowning victim’s feet. One of the feet was in a hiking boot. The least sinister explanation for this is that a hiker on a cliff overlooking the shore slipped and fell to his death. This trauma could have resulted in the same trauma a person would suffer by jumping to their death from a tall building—but much trauma, nonetheless, and not likely to the feet.

It seems to me that the only way anyone’s foot could rot off their submerged body is if they first suffered a traumatic event.

It is absurd to say that  there is no reason to suspect “foul play.”

Sidebar: If Dr. G. had testified in Casey Anthony’s murder trial that the manner of death was “some form of foul play,” I would have agreed. A reasonable person could easily conclude that a crime had to have been committed when a child’s body was found in a trash bag in a wooded area near her mother’s home. (But it could have been merely improper disposal of a body.)

As in the Anthony case,  the causes of death for the athletic-shoed feet are unknown and, therefore, so is the manner of death: they could have died accidentally of drowning, or as a result of suicide, or homicide.

However, since few people wear athletic shoes while swimming, it is highly unlikely that they all drowned accidentally. Yes, some people do wear athletic shoes instead of boat shoes when boating, and people on cruise ships might wear them on deck. But such people would have been reported missing, and DNA testing could match the feet with the victims.

Most of the explanations provided in the article have not been scientifically proven to be possible. For instance, how does anyone know a foot could travel 1000 miles on ocean currents?

The idea that the feet may have come mainly from the 2004 tsunami isn’t reasonable, either. Two of the feet have been tentatively identified as belonging to people from British Columbia. Two of the feet are from the same woman, and the odds of two feet from a tsunami victim winding up in the same place are astronomical.

In addition these feet have all been found in the past four years and all in a relatively small area given the enormity of the oceans on this planet and the length of their shorelines.

I think a better remark from a coroner might have been: “Foul play cannot be ruled out in any of these cases.”

I was preparing a blog post about the decades’ long problems with medical examiners in Knoxville, TN, when an article on a CNN blog caught my eye: “Canadian Floating Feet Mystery Deepens.” I urge you to read it, if you have any reasonable doubt that juries ought to listen to medical examiners’ courtroom testimony with a great deal of skepticism. (Think Dr. G’s claim that Caylee’s remains proved the manner of death was homicide.)

If you don’t care to read such a gruesome article, here is the punch line:

“For the 11th time in the past four years, a human foot in a sport shoe was found on a Pacific Northwest shoreline. . . . ‘These human remains did not show any evidence of trauma whatsoever,’ CBC quoted [Medical Examiner Stephen] Fonseca as saying.”

Okay, doc, exactly how did the foot become detached from the ankle if it was not by trauma?

Ever asked yourself why Borders is bankrupt? No, I haven’t either, because I know why it’s bankrupt: their supplier, the American publishing industry, is intellectually and morally bankrupt. American publishers have been shoving garbage down America’s throats for decades and gifting their friends with 6- and 7-figure book deals while paying only pennies to serious professional writers.

You don’t agree?

Casey Anthony prosecutor Jeff Ashton has announced a book deal with William Morrow for a 256-page hardcover titled Imperfect Justice: Prosecuting Casey Anthony. It will go on sale before Christmas so we can all give copies to our friends and relatives. (What a nice gift to find under the Christmas tree!)

Sidebar: I suspect William Morrow is hoping for a holiday hit, but the year-end holidays aren’t the top holiday for book sales. That’s Mother’s Day (I kid you not). Hmm. Casey Anthony on Mother’s Day.

Since Ashton and his publisher have already decided on a list price and know the total number of pages, that tells us he finished the manuscript weeks ago.  The verdict in the trial was announced only 8 weeks ago on July 5. Assuming Ashton spent six weeks full-time on the manuscript and that the average 300-page book is about 60,000 words, then Ashton cranked out about 1,429 words per day with no breaks.

On a good day, I can write 2,000 words, but I spend a horrific amount of time on revisions after the manuscript is done. Anyone who reads this blog knows that I can’t whip out 500 good words in a morning. But, of course, maybe Ashton is some kind of “savant” and, of course, I’m no Jane Austen.

Why Ashton and Not Baez?

Jeff Ashton will go down in history—if at all—as a loser. The only reason William Morrow gave him a contract is for the cache of Casey Anthony’s name. Ashton is feeding at the same trough as all the other exploiters of the death of Caylee Anthony.

The person they ought to have offered a book deal was the lawyer who pulled off one of the greatest coups in legal history, Jose Baez (who appears to be in talks with agents now). I might read a book by winner Baez; clearly he’s taking his time to do it right. He also understands that anything he says or writes now, during the appeals, can only hurt his client. (I wonder if Ashton gave any thought to how his book might affect the appeal of the lying charges.)

Linda Drane Burdick could probably write a good tell-all behind-the-scenes book, too, about how Ashton flubbed it. Early on in the trial, media commentators said, “This is really her case, not Ashton’s.” Then, as the trial progressed, it became obvious that Ashton loved the limelight too much to sit in the background while she handled “her case” quite competently. Instead, Ashton relegated Ms. Drane Burdick to the role of arguing the law before Judge Perry while the jury was out of the courtroom.

Ashton lost the case. He made a mess of the forensic evidence. The jury knew this.

Sidebar: One of my favorite moments in the trial was when Jose Baez cross-examined forensic entomologist Dr. Neal Haskell and nagged him into making the incredibly stupid claim that “There’s a difference between garbage and trash.” I’m sure everyone on the jury thought as I did that the scientist must think we’re all incredibly stupid to try that one on us. But Jeff Ashton believed it and repeated the testimony during his closing.

Even so, a Jose Baez book could not have saved Borders. Not even a book by the infamous evil-doer herself could have done that. By the time any of us first heard of Casey Anthony, Borders was doomed, because American publishers publish very little worth reading.

Some time ago in response to my statement that (like one of the jurors who spoke to the press) I suspected Casey Anthony might have used chloroform as a babysitter, blogger “Voice of Sanity” contacted me:

'Easy' to concoct is arguable - it is 'easy' to accidentally produce phosgene, a deadly gas, instead. DuPont had a release from their plant, killing a worker. VOS

Two chemistry professors in this video clip from In Session disagree: they claim that not only is it easy to concoct, chloroform is also released from chlorinated swimming-pool water and lingers for a very long time in enclosed spaces, such as a car trunk and a sealed can (used by Orlando CSI’s to capture the gases in the air of the trunk and later tested at Oak Ridge National Labs and the FBI lab). (They also admit that pure chloroform is hard to make, but for most people’s purposes the purity is irrelevant.)

Two pieces of evidence presented at trial hinted that Casey Anthony might have used chloroform to sedate her daughter:

• a computer search for “how to make chloroform” found on the Anthony-family computer
• a minute amount of chloroform detected in the air in the car trunk

Unfortunately for the prosecution, the evidence did nothing more than hint; the defense thoroughly shredded the forensic analysis of both the computer search and the air in the trunk—and the jury understood this.

Now that I’ve had time to think about it, the chloroform junk should never have been admitted into evidence. It was nothing but hot air. I am absolutely certain now that chloroform played no role in Caylee Anthony’s death, but not because of the difficulty or ease of concocting it at home.

The idea that chloroform might have been used as a murder weapon came initially from a poorly conducted computer forensics analysis of the Anthony hard drive. First, a police officer created a report listing all the Google searches on the hard drive. He found nothing sinister other than a single search on “how to make chloroform.” Because he did not know how to use the analysis software properly, he put the report he had generated aside for almost a year before asking a real software expert to look at, but he did initiate an investigation into the presence of chloroform in the remains and the “crime scene” (the wooded area and the car). The remains and the wooded area produced no hint of chloroform.

Some time later, forensic anthropologist Voss from Oak Ridge examined the air in the trunk in hopes of discovering it contained gases that would prove a human body had decomposed there, one byproduct of which is chloroform. He ran a test on the air using a gas chronometer/mass spectrometer: an instrument that determines the chemical makeup of a substance. Voss found chloroform in the sample—as expected, since he had been told that a body had decomposed in the trunk.

But he did not conduct a test to determine how much chloroform or any other single chemical was in the sample. Instead, all he did was determine that chloroform was present and was the dominant gas in the sample.

And here is where logic flew out the window: Voss assumed the air was filled with the gases of human decomposition, but his studies of the gases of human composition had never before shown that chloroform was the dominant gas. Therefore, he concluded, most of the chloroform in the car trunk sample must have come from some other source than the victim’s body.

Since he was also told that chloroform intoxication was suspected as the cause of death (because of the Google search), he ran to the prosecution with his GSMS readouts—and a theory of the crime was formed.

Let’s look at the prosecution’s syllogism again:

1. The gas in the car trunk was from the decomposing body of a child killed with chloroform (a faulty premise).
2. The gas in the car trunk was composed of too much chloroform to have come entirely from the process of decomposition (if you believe Voss’s database).
3. Ergo: chloroform was the murder weapon.

What?

There was nothing fishy about the Google search for “how to make chloroform,” because it was made in the context of someone’s visit to the Facebook page of one of Casey Anthony’s boyfriends who had written a remark about winning girls over with chloroform.

There was nothing fishy about the findings of a very, very minute amount of chloroform in the air of a smelly car trunk. Chloroform is present in many common household products and produced by the decomposition of mammal flesh, such as pork chops. It’s even present in pool water in which the child could have drowned, as the defense claimed.

Casey Anthony’s bizarre behavior after her child’s death compels me to believe she felt guilty about something. Her mother’s apparently false testimony about being the one who searched for “how to make chloroform” makes me wonder if she doesn’t suspect Casey used chloroform as a babysitter.

But there is no evidence at all—not a shred—that chloroform had anything to do with Caylee Anthony’s death.

So, I still feel Casey Anthony felt responsible for her daughter’s death—even if it was because she didn’t keep an eye on Caylee when she most needed to, and Caylee sneaked out of the house one June morning to go swimming alone.

The Casey Anthony trial should be a wake-up call to the forensic science community: a few more public spectacles like it will sour the public on the whole profession. “Forensics” may produce intriguing clues the likes of which Sherlock Holmes would delight in, but clues aren’t evidence. Detectives need to get back to basics. Prosecutors need to learn to respect juries and present them with solid cases.

This post has nothing to do with crime or courts. It has to do with laws, though, and specifically the laws surrounding death.

In the past five years I’ve had to manage the deaths of two members of my immediate family. I use the word “manage” advisedly, because neither of them died instantly—no car wrecks, no heart attacks, no strokes. They died slowly while enmeshed in bureaucratic red tape.

Because of government regulations, my loved ones died traumatically.

Through this process I learned that while Alan Grayson may have been correct when he said Republicans want us all to “Die Quickly!,” the flip side of the death coin is that Democrats want us all to “Die Slowly!” and according to the rules set out by government agencies.

Sidebar: I have tried to warn everyone I know about the horrors awaiting them when their elderly parents begin to die, but no one will listen. Most people assume their parents have “taken care of things already”: that they have insurance, they have a living will, they have a regular will, they have siblings or relatives or neighbors who are watching out for them, or “they have long-term health-care insurance.” But I guess you have to go through it to understand that none of those “preparations” are a parachute. The government takes charge, no matter what the living will says, or the will says, or the insurance policies say, or even what the dying person says. So, I’m writing this as a public service. Ignore this post at your own peril!

Americans are not free to choose the way they die, any more than a condemned murderer can choose between the gas chamber and lethal injection.

Conventional wisdom says that when a person knows she’s going to die and her family knows, then mercifully they all have time to “come to terms” with the end of life. Conventional wisdom believes dying slowly is a good thing.

As usual, conventional wisdom isn’t wise. Dying slowly is just one damn thing after another.

Hospitals and Terminal Illness

When a person is admitted to a hospital for diagnosis of a serious problem, one of several bureaucracies tells the patient’s doctor what to do:

• if the patient has private insurance, then the insurance company takes charge
• if the patient is uninsured and eligible for Medicaid, then Medicaid takes charge
• if the patient is insured through the Veterans Administration or Medicare, then the VA or Medicare takes charge

In all cases, the doctor’s first task is to diagnose the illness as quickly and inexpensively as possible. If the diagnosis is that the patient has a terminal illness, the doctor’s next task is to make a prognosis: how long will the patient live?

How Long Has He Got?

The nature of the terminal disease is all important in determining how long it will take for a patient to die. A patient with heart disease or cancer is especially problematic, because few definitive tests are available. Most doctors can only estimate how long it will take for a given patient to die, and the estimate is just that—an estimate.

This is the first catch in the system: unless the estimate is that death is imminent (6 months or less) the patient cannot be put into hospice care immediately, even though that is the most-humane thing to do. Why? Because the insurers and the government don’t cover hospice care if the patient could live longer than that. (And, BTW, Alan Grayson is sadly mistaken if he thinks the people in charge of hospice care are Republicans.)

Discharge from a Hospital to Hell

If the patient has private insurance, then an accountant in the hospital will consult the insurance company to determine what treatments are covered and how many days’ stay in the hospital are covered. Normally, no insurance covers hospital stays unless their purpose is for diagnosis and treatment. As soon as a terminal prognosis is made, the patient is promptly discharged from the hospital and for a limited time sent to a skilled-nursing home of the patient’s choice (approved by the insurance company) for “recuperation” from the hospital visit.

Sidebar: A friend told me that when her uncle was diagnosed as having a terminal illness, at his bedside and in front of him the doctor told her, “He can’t die in the hospital.” After that she had to scurry around to find a suitable nursing home for recuperation.It makes you wonder why state governments bother to collect statistics about the recovery rates at hospitals, doesn’t it? They kick out anybody who’s dying. 

If a hospital patient is on Medicaid or VA benefits when a terminal prognosis is made, a Medicaid or VA social worker will take charge. The patient will be discharged to a Medicaid-or-VA-approved skilled-nursing home for a limited period of time—if the patient is on Medicare, then to a Medicare-approved skilled-nursing home.

Recuperation in Skilled Nursing Facilities

Every stay in a nursing home for recuperation from a terminal prognosis by a hospital is a bureaucratic sham.

It is also a waste of money.

But that’s what our wonderful government insists on. The way the bureaucracy sees it: if you go into a hospital with a serious illness, then you cannot go home immediately even if you want to so you can die in privacy. You have to go into a bureaucracy-approved skilled-nursing home to lie in a hospital bed in a ward filled with other dying people so there can be no doubt in your dying brain that you aren’t long for this world.

Why does this happen? The government makes money from this: each skilled nursing home is licensed by the state and approved by the bureaucracies for a fee. The state and the bureaucracies employ thousands of people, including social workers, to inspect these facilities; they employ thousands of managers to oversee the social workers and other employees; and they collect income taxes from the money the dying pay or cause insurers to pay to these facilities.

Catch 22: You can never recuperate in a skilled-nursing home if you are dying.

So what happens when the social worker in the nursing home figures out that you aren’t getting any better?

Well, it’s simple: the social worker notifies the insurer, whether a private company or a government bureaucracy such as the VA, Medicaid, or Medicare. When the insurer hears that the patient isn’t getting any better under the care of the skilled nurses (surprise, surprise), then the insurer cuts off benefits.

Let me stress this fact: decisions about benefits are not made by doctors, nurses, or patients but by social workers and accountants. And “benefits” are all those things you need to die painlessly.

When benefits are cut off—usually with only a few days notice—the patient has to leave the nursing home or find a way to pay for an extended stay out of his or her own pocket. This is where the patient with private insurance is really screwed, because such patients usually have an estate (property, savings, investments) that disqualify them from Medicaid benefits that would permit an extended stay at government expense.

This is also where long-term health care insurance can kick in if the patient has it. The problem is that every elderly person I’ve known who enters a nursing home wants to leave it as soon as possible, not lie there and rot in a ward of dying people. Everyone would prefer to die at home in their own bed with hospice services.

Limbo

At the point when a dying patient is dropped by the insurance company or government insurance agency, the family (if there is one) suddenly finds themselves in a horrible bind. (Not that they weren’t suffering already.)

In my experience, though, it is at this point that the family realizes they have few, if any, options. Not many people have the wherewithal to take responsibility for the care of a dying person in their home or the patient’s home. (The friend I mentioned earlier actually took care of her uncle in his home with the help of a paid companion until hospice services could be provided for him there. That a family should choose to do this is rare. Most families in that situation would have to endure months of a heavy burden with a dying relative in their own home.)

This is also the point at which the family may understand for the first time that they’ve been railroaded—by the doctors, the hospitals, the nursing homes, the social workers, the bureaucrats. All along most of these people have been smiling at them and saying, “There’s nothing to worry about. We deal with these issues all the time. Let us take care of things. You don’t have to contact Medicare (or Medicaid or the VA or the insurance company); we do that. We bill them directly. Everything’s covered,” and the naive family member sighs with relief.

Then the bill comes in the mail, and the notice of termination of benefits, and the demands for a personal guarantee of the patient’s pharmaceutical costs—with a requirement that your signature be notarized and witnessed by two other people.

Suddenly the bureaucrats turn blank stares upon you, when you ask where exactly the patient should go now that he or she can’t stay in the nursing home any longer.

Where to Die for More Than Six Months?

This is the single most-important question everyone should ask themselves today: where will I go to die?

Over a decade ago I heard for the first time about hospice care. Someone close to my mother died in hospice care. It sounded like a wonderful institution. But I didn’t give it any more thought than that—and this was a huge mistake.

Hospice care isn’t a place; it’s a service. Hospice workers go into a dying patient’s residence when the prognosis is that the patient has six months or less to live.

Hospice is only available through an insurer. In other words, if a patient has private insurance, then the insurer must cover hospice care or else hospice care isn’t available at all. If the patient is elderly, then hospice care is covered by Medicare or if destitute by state-specific Medicaid. There’s no such thing as private hospice, because of Medicare and Medicaid reimbursement requirements. It’s the law.

Remember, hospice is only available if the patient has less than six months to live. If the attending physician can’t make that determination, then the dying patient has to go somewhere without the benefit of hospice-workers’ assistance. That means in many cases that a family member must care for the dying patient until a hospice social worker or nurse can be convinced that the patient’s condition has deteriorated sufficiently.

“That should be easy to do,” you say. Oh, yeah?

When my mother was diagnosed with a form of cancer that is inevitably fatal and was already in terminal, stage four, the doctors and nurses caring for her said, “To look at her you wouldn’t know she was sick at all.” The doctors gave her from “a few months to two years to live.” Hence, no hospice.

VA Hospice Benefits

One of my dying relatives was covered by the VA. Because I didn’t know anything about skilled nursing homes or hospice at the time, the terminal illness became a bureaucratic nightmare. If you have a relative who may be eligible for VA benefits, find out now. Find out what end-of-life care coverage the patient is entitled to.

VA hospitals don’t want anyone to die in the hospital any more than private hospitals do. They will try to kick your loved one out as fast or faster than a private hospital will. But to make things worse, there is no length to which the VA will not go to be able to ship the patient off to a nursing home if the patient has no living will that permits them to withhold life-sustaining treatments or is competent and requests treatment. (Some people don’t want to die, you know.)

My veteran relative became convinced—as a result of poor communication skills on the part of the case social worker—that because the VA would cover several weeks recuperation in a skilled nursing facility, it meant the disease was not terminal after all.

When Hospice Kicks In and You Kick the Bucket

My recent experience with hospice was not a good one. The hospice “team” (as they called themselves) bullied us all into doing what they wanted us to do, not what we wanted to do. At one point they even told me that I would not be “a good person” unless I followed their instructions—instructions that would have put a huge strain on my whole family’s emotional resources. I bowed to their demands.

The determination that hospice-care was called for, in this case, came from the administrator of the retirement community in which my mother lived—a bureaucrat, not a doctor. She contacted a hospice service (of her choice, not the patient’s or the patient’s family). As it turned out, my mother died in less than two weeks after the hospice care was initiated; and no one could tell that death was imminent until less than 48 hours before she died.

After the administrator’s first call, a hospice admissions nurse then visited the patient to make sure she was going to die soon enough. After that a social worker called me to introduce herself as the “team manager.” She demanded to know the most-intimate details of the patient’s life and our family. She also asked whether a pastor should visit the patient, but, even though I recommended no such visit, a “sister” soon showed up at the bedside to pray and sing hymns, which—had the patient been conscious at the time—would have disturbed her immeasurably.

Every day, a hospice nurse called me to describe the patient’s condition. Among the “comforting” tidbits the nurses shared with me was that dehydration (from lack of fluids) and starvation (because the patient’s stomach was involved in the cancer) cause the brain to produce endorphins, thus making dehydration and starvation pleasant. The nurses and social worker also decided when and what medications to administer. When the patient fell unconscious and began moaning, they decided more pain medication was unnecessary; instead they administered anti-anxiety drugs.

Finally, the social worker decided when a vigilant was required at the bedside. She also ordered my brother and I to get there as quickly as possible and to do some other things I would rather not discuss in public.

I was so distraught at that point that I blindly obeyed. It wasn’t until my mother died that I realized what bullshit it all was.

My dying mother and her family had no say whatsoever in how she was cared for after she was diagnosed with terminal cancer. Accountants and social workers made all the decisions. All of them. And at each step they decided to spend the least amount of money they could, to provide the least amount of care they could, and to administer the least amount of medication they could. They even decided that a woman who could best be described as a wiccan should have a Catholic nun pray and sing at her bedside.

The justice system only works if criminals are “brought to justice.” When crimes are committed by mobs of criminals, there’s little hope of that ever happening. While the media continue to fret over Casey Anthony’s “freedom,” mobs of violent criminals are storming through the streets here and in England—and getting away with murder more certainly than she did.

I suppose that’s what troubles me most about the American justice system these days: prosecutors and judges can’t distinguish between law-breakers who make serious mistakes for which they should be duly punished (not executed) and law-breakers who have no concept of the law at all. The justice system is so heavily politicized that it gravitates to sensational, personal tragedies in which beautiful young women are involved as either the criminal or the victim. The system can’t recognize, let alone cope with, national tragedies and the breakdown of social cohesion.

The media, of course, can only deal with simple, little things—like a plastic bag with a child’s bones in it or the disappearance of beautiful blond girls on the island of Aruba. And they are obliged for profit purposes to cover only crimes committed in states where cameras are allowed in courtrooms. So, whatever happens in Florida is big news, but crimes in Illinois are nothing (even when the fourth governor since 1973 is now in jail, three of whom were Democrats, not Republicans).

But Casey Anthony was never anything more than a disturbed girl who neglected or abused her child to death and then tried to cover it up. We’re ignoring whole cultures of young people who are committing violent crimes against not only individuals but society who never will be brought before a jury for justice.

London Riots

Last week I was in London and a nearby town on the nights of rioting. I don’t know how the riots were covered here in America, but the media coverage in England was very, very strange.

At first when the riot was contained to the Tottenham Court neighborhood, the media chewed their white knuckles and puzzled over the reasons why young people would do such things: “Why? Surely this isn’t going to continue. This isn’t the beginning of a rebellion, an English Spring?”

Tottenham Court is a central tube station in London—not a slum neighborhood. While buildings burned overhead at street level, I and hordes of other tourists passed through the station. The trains didn’t stop at Tottenham Court. Instead the conductors said, “A fire alarm has been sounded at the next stop. The train will stop but not open its doors.” And “Due to circumstances at this time there will be no service to Tottenham Court.”

The next day, video of the riots showed that the rioters weren’t just any and all young people. They were minorities who clearly were of immigrant families from former English colonies in Jamaica and South Asia or the Middle East. The victims were also minority immigrants. These weren’t race riots against white oppressors. They weren’t riots against austerity measures—because the rioters aren’t affected by Britain’s budget cuts.

They were riots of “pensioners,” young people “on the dole,” “on benefits,” people with no jobs—not because they can’t find work. They don’t want to work. Why should they? They don’t need to work, because they are given everything they want.

The next night the riots spread to cities like Nottingham, which I visited several years ago. In those days, there was a riot every Friday and Saturday night in Nottingham. Nothing burned; the young people got drunk and went wilding. In the lobby of the hotel where I was staying a brawl broke out at a wedding party. In smaller cities like Nottingham, for many years the young people have behaved as if it was Spring Break in Fort Lauderdale every weekend.

In the small city where I was last week, Colchester (the oldest town in England), the proprietor of the bed and breakfast where I stayed was so concerned about street violence that he closed the English Civil War-era shutters (last used in the Siege of Colchester in the seventeenth century) for the first time since he had owned the building. Fortunately, there were no riots in Colchester. But neither is there a large immigrant population, and its young people tend to be serious students at the highly technical University of Essex. (Yes, they got drunk and staggered through the streets at night, but they did no harm.)

Eventually the London media learned that the London mayor and chief of police had told the cops during the Tottenham Court riots not to arrest anyone “lest they hurt someone.” As a result, of course, the rioters did not get hurt—only innocents did. Several young people were killed. Some were raped. Businesses were destroyed so that their employees can now enjoy the “benefits.”

Soon afterwards the Prime Minister called on his cabinet to return from their vacations to deal with the crisis. A few of them came home to London. Many did not. The mayor of London finally issued orders to arrest rioters. The rioting promptly stopped.

Over the next few days they began to identify the looters and most violent of the criminals from CCTV surveillance videos. One of the arrested rioters was a 15-year-old boy whose young mother “didn’t know where he was at two in the morning.” (The media were careful to say, though, they “did not want to stigmatize single mothers.” I guess they would have treated Casey Anthony with more respect, too.)

The victims were identified, too—young people who were murdered, rape victims, the owner of a modest family-run department store that was burned to the ground. This is significant—it wasn’t Harrad’s or Selfridges that burned. It was a smallish store, but one just big enough to look as if its owners were richer than the rioters.

Eventually the Prime Minister and others began to call for a withdrawal of “benefits” from the rioters. For those who don’t know, in England no one has to work or pay for their own homes. The government provides not only a living stipend to anyone who wants it but also any home they want to live in. For instance, it was revealed last week that a refugee Somali family was living in a 2 million pound home in the neighborhood of actress Emma Thompson at taxpayer expense (the pound is worth more than the dollar is today). How many unemployed people do you know who live in a $2 million home? Or for that matter how many employed people?

Kristallnacht All Over Again

In Nazi Germany in 1938, one night gangs of youths stormed through Jewish neighborhoods, rioting, looting, smashing shop windows, killing. That night was known as Kristallnacht (Crystal Night) because of the shattered glass that lay everywhere afterwards.

Kristallnacht was one of the most evil events in modern history. It happened because the Nazi government in Germany made it crystal clear to the youthful thugs of the era that they were entitled to take whatever they wanted as long as it was from Jews, to destroy anything Jews had, to rape and kill Jews.

In England the government has made it crystal clear to youthful thugs that they don’t have to get a job, they don’t have to do anything, and everything is theirs to destroy or take, as they choose.

I have been to England several times over four decades. This most-recent visit was the first time I hated being in London. I hated walking on the streets, because the crowds of young people wouldn’t even acknowledge my presence; they shouldered and elbowed me aside; they bashed me with their handbags; they pushed me through turnstiles. The underground was a nightmare: it was hellishly hot; half the stops were under construction and inaccessible because of “upgrades” for next year’s Olympics; several times I found myself in long, narrow, low-ceilinged tunnels pressed up against crowds of people who were at a complete standstill because there weren’t enough trains. It was even worse than my memories of New York City in the Sixties and Seventies. (In those days, it was before anyone ‘ed New York.)

And all the English politeness and exactitude was gone, too. No one seemed to know what they were doing. The trains were all late. The signs displaying times and destinations were wrong. No one knew how to get from point A to point B. Every question and request for assistance or directions was met with a sigh, a head shake, a rebuke: “What does the sign say? Isn’t that what the sign says?”

For the first time, I came home to the Chicago area feeling relieved to be out of England. Then, guess what happened?

Kristallnacht came to Chicago, but now it isn’t only Jews who are the targets—it’s everybody who owns anything.

A group of men “of mixed ethnicity” (or a flash mob, if you prefer) forced their way into a private home in broad daylight less than three blocks from my suburban home. Apparently the home was picked on a whim by a carload of thugs who just happened to be passing by on the Illinois state highway that runs through Chicago’s western suburbs. It isn’t a road that looks like a highway; it’s a very old road that connects with a nearby interstate, only two lanes with a 25-mile-per-hour speed limit. The town is Victorian-era.  The street is residential and lined with ancient oaks and elms.

(The local police chief is now playing down the incident. Instead of portraying it as a home invasion as he originally did, he’s now claiming it was one of a previously unreported series of “ruse burglaries” in which burglars claim to be utility workers in order to gain access to homes. My, that really calms my fears.)

I knew that for the past year Chicago’s “Gold Coast” area along Lake Michigan had been targeted by flash mobs of youths from the South Side. But I had never before heard of a flash mob invading a private home. Have you?

In Chicago the flash mobs get on the subway and ride up to North Michigan Avenue where the most-exclusive shops and luxury hotels are. They flood into designer-clothing shops and in plain view of surveillance cameras try on clothes and then just walk out with them. As in London, the cops are being told to “let it be.” The mayor has pulled most of the cops off the streets because of budget issues, and retailers have to employ private security firms for protection.

Why do they do it? Because they can. Why did the Somali family move into actress Emma Thompson’s neighborhood? When asked they claimed not to speak English and refused to explain why.

The real question is why do politicians let people get away with this kind of behavior? IMHO, it’s because politicians aren’t incented to do anything but get reelected—just as prosecutors and judges aren’t incented to do anything but convict and execute high-profile defendants.

Chicago flash mobs clearly feel entitled to spread the wealth around as they see fit. They clearly do not respect private property. I can only suppose their thinking goes like this: if it’s offered for sale to the public and the flash mobbers are the public, then they must be entitled to the goods, even if they can’t pay for them.

On the East Coast, I’ve heard that flash mobs are targeting 7-Elevens and other quick-stop stores. It isn’t surprising, is it? If it’s okay to take luxury goods, it must be okay to take cheap stuff, too.

But what made the flash mob that invaded the home in my neighborhood think they were entitled to what was inside a randomly chosen suburban house? I guess we’re back to the days of “Eat the Rich,” but now “the rich” are anyone who has more than you do—even if it’s more they earned by selling Slurpies at a 7-Eleven.

This is anarchy. These criminals will never be brought to justice. No jury will ever hear their side of the story. The victims will never be compensated. Meanwhile, in Florida, law enforcement and the justice system whine on and on about Casey Anthony and how her jailors stupidly signed papers admitting she served her probation for a minor check fraud crime while being held on other charges.

Self-insights are usually few and far between, but recently thanks to the Casey Anthony trial I’ve had several.  Perhaps the most significant is an insight into why this “Hanged Juror” can’t find many judges or prosecutors to admire.

Sidebar: If you’ve read The Juror Hangs you know the last two characters in the novel to figure out what really happened are the judge and the prosecutor. Even the meter maid who tickets jurors’ cars outside the courthouse figures it out sooner.

Until yesterday’s epiphany, all the furor over the Anthony jury’s verdict and over the defense attorneys’ bills, and the utter bafflement of the judge and prosecutors, made no sense to me. What was I missing that everybody else in America saw? Why was I once-again so out-of-the-mainstream?

Then—flash! I got it. It isn’t me that’s missing something. It’s all those people out there who have never served on a criminal jury, especially one involving a serious crime: civil trials don’t put the same stresses on jurors; civil judges have less stake in the outcome; there are no prosecutors in civil trials, only plaintiffs.

1995 B. J. D. (Before Jury Duty)

Before I served on a criminal-trial jury, like everybody else I followed O. J. Simpson’s murder trial. I learned about hair-and-fiber experts, about blood-spatter experts, and all about DNA evidence—for the first time. I fell under the spell of CSI evidence. I was convinced that wife-beater O. J. did it, and I was shocked like 80% of the public when he got off.

2011 A. J. D. (After Jury Duty)

But by the time I served on a jury in 2005, the media had already sensationalized family tragedies of ordinary citizens (Laci Peterson’s family), investigators had already proven their incompetence (the murder of JonBenet Ramsey), and prosecutors had already over-reached (the Nanny Murder Trial).

So I was already skeptical when I raised my hand and swore “by the eyes of the all-seeing God” (I kid you not) to follow the law as the judge explained it to me. Of course, at that moment I still believed the judge would also explain to me the statutes as written by my elected representatives.

What This Juror Thinks

Yesterday I realized what it is about judges and lawyers that drives me crazy: they all want to tell me what to think. Not just tell me what to do—although they clearly want to be in charge, too.

Big Brother

Everyone in a courtroom except the defendant and the jurors thinks it’s their job to tell everybody else what to do. Who in a courtroom isn’t involved in law or law enforcement? Even the clerk of the court probably loves telling everybody, “All rise.”

Sidebar: I suppose the court stenographer isn’t particularly interested in telling anyone what to do or think. Instead I suspect that anyone who spends most of their productive, waking hours listening to and transcribing what other people say has a thought-avoidance problem. For what other reason would a sentient being want to make a career of transcribing other people’s thoughts?)

All the denizens of the courtroom believe it’s their job to tell the jury what to think and what to do. And that’s why Judge Perry and the prosecutors in the Casey Anthony trial are still baffled by the verdict. They told the jury to find her guilty of first-degree murder and aggravated manslaughter, and the jury just ignored them. They believe the jury must not have understood the science. They must have fallen asleep by the end of the trial. They must have engaged in improper speculation. Their minds must have been poisoned by the defense’s baseless accusations in the opening statement.

The jury very definitely did not think what they were told to think.

The End of a Trial

At the end of every criminal trial, the prosecution sums up its case against the defendant. The message of all such summations is: “The mountain of evidence we have shown you proves beyond a reasonable doubt that the defendant is guilty. You must find the defendant guilty of each and every one of these charges.”

Then the defense sums up its case: “The prosecution has not fulfilled its obligation to prove guilt beyond a reasonable doubt. One or more of the charges is highly questionable. You must not find the defendant guilty. You swore an oath to be fair.”

Then the judge reads a long, arcane list of instructions, the gist of which is that the law states that the crime in question consists of several elements, all of which the prosecution has shown to be present: “You must follow the law as I have just read it to you and reach a true verdict.”

But here’s what goes through every juror’s mind at the moment when the judge sends them into the deliberation room:

“The judge must believe the prosecution did its job properly, or he wouldn’t have let the trial go on to this point. The judge has tried to be fair to the defense, but clearly something isn’t right about what the defense attorney said. I was hoping the prosecution and the defense would both put on better cases, clearer evidence, more witnesses. I’m sure the defendant did something wrong, but I’m not sure it was exactly what the prosecution said it was. In fact, I’m thoroughly convinced it wasn’t what the prosecution said it was. Now the judge and all the lawyers have told me what I’m supposed to think, but none of it is what I think.”

Jury consultants of the world, I promise you this is what every juror thinks. And that leads me back to the title of this blog: If you could ask a prospective juror one question, what should it be?

If you’re on the defense team, you should ask every prospective juror this question:

How do you feel about being told what to think?

The jurors you want on your jury are like me. They’ll say, “I hate it.” Then let the prosecution try to excuse such an individual “for cause.”

Yesterday, Tim Miller, President of Texas Equusearch filed a suit against Casey Anthony for reimbursement of expenses incurred during the unnecessary search for her daughter—unnecessary because Casey Anthony knew she was dead and probably knew where her body was.

In an interview with InSession, Mr. Miller explained that not only had his charitable organization spent over $112,000 to help Casey find her daughter, but some of his biggest donors had withdrawn their support. Specifically, they told him that he was not using their money wisely, since it was obvious “the mother” was involved in the child’s disappearance.

I heard that Casey’s lawyers have said they would seek to have the suit dismissed and, besides, their client was indigent.

Here’s a clue Casey et al., not only is it the right thing to do to reimburse Texas Equusearch, but a promise now to do so is your ticket to a reality show titled “Footloose and Free: Casey Anthony.”

No, I’m not kidding. Think about it: you know that right now reality show producers would kill to follow you around with a camera day and night. Unfortunately, though, some may fear the public would resent it if they found out how much they were willing to pay you for the rights to Casey Anthony’s private life.

However, if they could say that $150,000 or so of the production’s revenue would go to Texas Equusearch to pay what you owe them plus an additional tax-deductible donation, they would look like heroes.

With your own reality show, you could also pay Zanny some fair compensation for her troubles.

And you would all still come out ahead.

However, if you litigate the lawsuits, all you will do is incur substantial lawyers’ fees and court costs—and you know you can’t possible win.

If InSession talking heads had their way Casey Anthony would be the last defendant to be tried before a jury of her peers. A few days ago, one of the TV show’s commentators suggested that it was time for “professional jurors,” as if a trained jury would—of course—have found her guilty, in other words would have made the correct decision.

I once served on a criminal-trial jury. Before that experience I would likely have opted for a bench trial if I ever got in trouble with the law. I thought my fellow citizens would operate irrationally and not be capable of giving me the benefit of reasonable doubt. I thought a better-educated judge would be more likely to understand that I was not guilty.

Boy, was I wrong! The judge in the case I heard was a bigoted, illogical, autocrat. My jury peers were all thoughtful people who wanted to give the defendant every break they could, because it was so obvious that the judge and the prosecutors were not interested in justice.

The assumption is that a professional juror would be a sort of mini-lawyer. What a horror!

Professional Jurors

Recently in Great Britain proposals for abolishing jury trials or at least for professional jurors have been trotted out, and now, I guess, we’re going to have endure the same debate here. Proponents in the U. S., though, will have to cope with a little stumbling block called the Bill of Rights—something they don’t have in Great Britain, as you know if you know anything about the American Revolution.

British courts operate differently from American courts. I have read that jurors are summoned to hear more than one case over a certain period of time, such as two weeks. Jury verdicts need not be unanimous, even in murder cases, but neither is there a death penalty in Britain. (Because of Google’s obnoxious way of trying to search for Britney Spears every time I begin a British search string, I’m afraid I can’t give you a link for further information.)

What is “a professional juror”? In Britain the idea is to call jurors from the general public, train them, and pay them well to sit in judgment on numerous jury panels for an extended period of time. As I understand it, the idea is not to have people whose sole profession is juror.

The question is: What sort of training would make a “good juror”? Some types of training would be helpful to jurors, but other types of training would only be helpful to judges and prosecutors.

Juror Training

As a former criminal-trial juror I would have found helpful training in the role of the foreperson, selecting a foreperson, deliberation, consensus building, eliciting discussion from reticent participants, understanding the jury instructions, and understanding the charges and the elements of a crime. I suspect some jurors would also benefit from a quick tutorial on the Bill of Rights.

When I served, the only training we were given was a ten-minute video delivered to the prospective jury pool. It told us how jury panels would be called by number at random, what to do if our number was called, what to do if our number wasn’t called, and how much we would be paid per day. Nothing else.

Once we were interviewed by the judge, she gave us some simple instructions: don’t talk about the case, follow her instructions, that she would read the indictment but we would never see it or hear it again, that we could take notes but must leave them in the deliberation room, and that we were about to be sworn in.

But there were a number of instructions and a lot of training that I would have strongly disliked if the judge had tried to deliver it to me: training in interpreting CSI evidence, interpreting testimony, or legal terminology, especially the meaning of “reasonable doubt,” which I am eminently better qualified to interpret than any lawyer in any courtroom in this land.

Any effort to turn jurors into amateur lawyers and judges like that would be a disaster.

The real problem with professional jurors, it seems to me, is that a professional isn’t a true peer of the ordinary citizen, at least not in the court system, which is run by lawyers. The reason the institution of the jury arose in the first place, more than two millennia ago, was to provide a check on political and legal institutions so they could not arbitrarily take away the rights and property of ordinary citizens.

Jury Reform

The American Bar Association has a long-standing Commission on the American Jury Project, which has published a number of recommendations for jury reform. Unfortunately, no one has suggested judicial or prosecutorial reforms as well. And if you listen to the lawyers commenting on the Casey Anthony verdict you know that none of them think their profession needs any tweaking, let alone reform.

I have a huge problem with the current, highly politicized judiciary and state’s attorneys offices. Theoretically, the citizenry elects judges and state’s attorneys, but in many jurisdictions the judicial system is so large that even the most-informed of voters can’t possibly know enough about candidates for judgeships. Of course, the county state’s attorney is subject to a great deal of public scrutiny, but not the assistant state’s attorneys, who are more numerous than judges and who are all appointed and hired by the political state’s attorney.

Many judges seek higher office. Every state’s attorney I’ve ever heard of seeks higher office. As a consequence, it is in their best interests to prosecute high-profile defendants to the maximum extent of the law and to adjudicate high-profile cases and sentence convicted defendants to the max.

With the advent of live broadcasts from the courtroom, more and more trials of non-high-profile defendants are going to become circuses. It won’t take jurors long to figure out that if they find a high-profile defendant like Casey Anthony not guilty, they will be the ones who pay with their lives—either literally from stalkers or figuratively in that they will lose their jobs, alienate their friends, and worse.

The Casey Anthony jury did effect justice. They did not ignore any of the judge’s instructions in finding her not guilty. They did not “speculate,” despite what InSession says—what they did was understand the difference between speculation and proof; in deliberations when one of them wandered off into speculation, his or her peers drew the conversation back to what was proved. They did understand the “scientific” evidence—they understood it wasn’t scientific and therefore wasn’t proof.

They understood that in the evidence and testimony the dots were not connected. Yes, there were a lot of dots leading to the child’s remains—there just was no dot labeled Casey Anthony. The only person who claimed to have seen Caylee on June 16, 2008, with her mother was George Anthony, and as the foreman of the jury said, George couldn’t seem to remember important facts and incidents; all he remembered clearly was what everybody was wearing three years ago.

If the Anthony family saga demonstrates anything it is that “the private life is dead.”

Look at how many private lives were aired during the Casey Anthony trial—not only the entire Anthony family’s but all of her many boyfriends’, girlfriends,’ an innocent bystander named Zanaida, and even the private lives of the Anthony home-water-meter reader and his son.

The trial was nothing but a reality show. The only people satisfied with the outcome are the media.

No, that isn’t quite right. It was a reality show but not “nothing but,” because the Anthony trial was the first-ever state-sponsored reality show. The trial served no purpose other than to provide content free of charge to the media. The O. J. Simpson trials weren’t state-sponsored reality shows the way the Anthony trial was, because by the time he went on trial O. J. Simpson was already a celebrity who had made his life a public spectacle from which not only the media but he had profited as well.

But before the circus was staged by the State of Florida the Anthonys weren’t celebrities. Now I fear a new celebrity has been born—Casey Anthony. You don’t have to be beloved to be a celebrity. Casey Anthony is now the celebrity everybody loves to hate. She may need a bodyguard to go out in public, but then so does every celebrity.

When I first saw the movie Dr. Zhivago years ago and then read Pasternak’s novel, it was during the Cold War against Soviet Communism. For me, Dr. Zhivago was little more than a romance and a slightly flawed criticism of the U.S.S.R. I found it difficult to empathize with the tragedy of a wealthy physician’s family who had lost their privacy. That tragedy paled in comparison to the millions of people the Soviets imprisoned, tortured, and killed.

Only now do I understand the horror of Zhivago’s pronouncement that the private life is dead.

Having endured the Communist Revolution in Russia, Pasternak understood full well that the confiscation of private property by the state was the end of all liberty. When the Communists seized everything in the name of the People, they were lying. Property of the People is property of the state. When property belongs to everybody, it belongs to nobody but the state.

When the state can force its way into your home (‘warrantless search and seizure”) it means an end to your privacy—your inner-most thoughts and feelings become public property.

I can hear you now: but the State of Florida had a warrant when it seized all of Casey Anthony’s shoes.

Yes, but when did the State of Florida obtain a warrant to search a young man named Tony Lazaro’s intimate moments with his lover?

When did the State of Florida obtain a warrant to the private life of a woman named Crystal Holloway? Why did she have to appear on world-wide-broadcast TV and reveal the number of “relationships” she was having at a certain time?

The circus that was the Casey Anthony murder trial won’t be the last state-sponsored reality show.  The media has found a way to generate cost-free content: all they have to do is lurk around police stations in Florida waiting for another beautiful, young nobody to step out of the back of a patrol car in handcuffs and follow her inside the jail. When an assistant state’s attorney finds out that the media are interested in her, she’ll find herself brought up on capital murder charges. And then the airwaves will be awash in “Casey Anthony II—The Sequel.”

Florida, wake up! Your “Sunshine Laws” are unconstitutional: It’s unspeakably evil to broadcast videotapes of a prisoner being interrogated, of a family communicating with their daughter in jail, of photographs of the private property of innocent citizens (their closets, their bedrooms, their laundry room, their back yard). It’s wrong to broadcast prospective jurors’ voir dire. It’s wrong to broadcast the gallery and spectators at a trial. It’s wrong to broadcast testimony of law-biding citizens whose only crime was being acquainted with someone charged with murder.

Sidebar: The prosecutors in the Anthony trial were wrong to subpoena Casey Anthony’s friends and force them to testify about their perfectly lawful interactions with her. None of her friends reported any illegal activity by Casey Anthony; none of them reported suspicious behavior; none of them reported anything remotely resembling evidence of “her state of mind at the time of the crime.” If I were them and I could afford it, I would sue the State of Florida for defamation and illegal search and seizure of my private life.

None of us are immune. None of us know when a friend or family member is going to fall afoul of the law. I’d be willing to bet that there’s no one reading this who doesn’t know someone with legal problems: nasty divorces, brutal child-custody battles, IRS audits, property-line disputes, cease-and-desist orders, law suits, drug busts, a DUI, or worse.

What will you do when the state comes knocking on your door with a subpoena?

The Casey Anthony trial is truly the end of the private life in America.

Dear Jurors,

Thank you for following the law as the judge explained it to you. Thank you for respecting Casey Anthony’s rights as an American. Thank you for having the courage of your convictions.

As a former criminal-trial juror (sexual assault and kidnapping) I know what you must have gone through. Every night of the trial (and there were only three for me) I dreaded eventually entering into deliberations, convinced that I was going to be the lone holdout against the kidnapping charges. I feared I wouldn’t have enough courage to vote not guilty in the face of my eleven peers.

When court-watchers reported that you had returned to the courtroom on the second day of deliberations smiling and looking relaxed and confident, I knew that meant you had learned the night before that not only were you all in agreement on the capital murder charges but you had decided Casey Anthony was not guilty of first-degree murder, and you would not have to sit through a guilt-phase trial in which you would have to decide whether or not to sign a death warrant for one of your fellow human beings. Only a ghoul would be smiling at that prospect.

I predicted that if a jury did not convict Casey Anthony of first-degree murder and that even if a jury found her guilty of lesser charges, the media and the ignorant public would vilify them, no matter what the evidence in the trial proved or disproved. I also predicted that the attorneys for the losing side would turn on the jury. Of course, I was thinking most likely the defense attorneys would be the losers.

I have heard Jeff Ashton’s assessment that you just didn’t understand the forensic science and that the trial was too long for you to maintain your concentration. And I suspect now that Linda Drane-Burdick is launching an investigation to look for violations of the sequestration laws and inappropriate behavior in the deliberations.

But Jeff Ashton is the one who didn’t understand the science and couldn’t even tell the real science from the junk science. Jeff Ashton is the one who suffered most from the length of trial: as the defense case progressed he grew less confident and began squirming and making faces.

As for Ms. Drane-Burdick, it’s her job to make sure the jury isn’t guilty of misconduct, but I still think it’s incredibly unfair in this situation. I didn’t hear as much of the testimony or see as much of the evidence as you did, but even I became convinced there was no proof of murder, no proof of child abuse.

And, if you search the web for what happened to the jury foreman in the La Vegas trial of O. J. Simpson, you will see that Simpson’s attorneys caused the foreman to have to appear before a judge to explain himself when he spoke to the press after the trial.

By refusing to talk to the press you spared yourself from that sort of misconduct charges. And I hope that the State of Florida doesn’t bother to go after its own citizens who were just doing their civic duty. It can serve no purpose. Nothing can put Casey Anthony back on trial.

The Casey Anthony verdict and sentencing has produced nothing but idiocy from the media and public in chat rooms and on call-in broadcast programming. This country is in very serious trouble. Ignorance of the law is what causes stupid people to stumble into law-breaking, to fall into the hands of unscrupulous law enforcement officials who may seek to lure them into speaking to them without an attorney, to serve on juries without any idea of what the defendant’s rights are, and for the press to publicly vilify citizens without basis.

But when people who claim to be lawyers go on TV and say stupid, incorrect things about the law, that is when you know that there may be no hope for the future of American justice.

This morning I heard so much stupidity, I didn’t manage to retain it in my short-term memory long enough to process it into long-term memory. Only two statements stuck:

1. Two lawyers asked, “If you lie under oath in a civil deposition can you be charged with criminal perjury?”

Yes, that is what they said they didn’t know. I am not a lawyer but even I know you cannot lie under oath in any legal proceeding without being liable for criminal perjury. That’s the definition of perjury, I’m quite sure. Perjury is a crime. What law school did these people attend?

2. “What you [an intelligent caller to a TV show] are saying is that you can never prove a circumstantial case without the evidence of the body [such as Caylee Anthony’s], and that would mean that you could never have proved Laci Peterson was murdered even though her body was found in the bay.”

The lawyer who said this hung up on the caller before she could respond. So I will respond on her behalf:

You can never prove a circumstantial case without sufficient circumstantial evidence. A little bit of speculation about a little bit of possible evidence won’t cut it.

The mere fact that a woman’s child’s body is found in the vicinity of duct tape and a plastic bag is not evidence that the woman murdered her child. It is sufficient evidence to prove that someone disposed of the body improperly. It is not sufficient evidence that the woman murdered the child with duct tape, especially when other circumstantial evidence suggests (not proves) that the woman killed the child with chloroform, and there is some limited circumstantial evidence that suggests (not proves) that the child may have drowned in the backyard pool. (Noticeably, by the time closing arguments came around the prosecution dropped their initial claim that Caylee was suffocated by chloroform, duct tape, and being in a plastic bag.)

Furthermore, there is absolutely no circumstantial evidence that Casey Anthony is the person who deposited the remains, the duct tape, and the bag in the woods. There is only some circumstantial evidence that the body was ever in her car, but she is not the only person with keys to the car, and the car is in her parents' names. The fact that George Anthony knew how long the car had been abandoned at the bank before his daughter had an opportunity to tell him is circumstantial evidence that George Anthony knew when the car was abandoned in the parking lot all along.

The prosecution’s investigators were unable to find any circumstantial DNA evidence anywhere relating to Casey Anthony. This is not an unimportant fact, for several reasons in this age of DNA evidence:

• People have been exonerated of murder by DNA evidence, especially when the defendant is male and the murder involves sexual assault. (Women have no such “presumption or proof of innocence” so if Caylee had really been kidnapped and raped, there would have been no exonerating semen to help Casey.)
• DNA evidence of an unknown person’s DNA in a place where it should not be has also exonerated people. The investigators in Casey Anthony’s case did not look for DNA profiles of anyone other than the Anthony family, which—given Casey’s early claims of kidnapping is inexcusable. They behaved like the guy found crawling on his hands and knees under a street lamp looking for his car keys there, because it was too dark in the parking lot to find them there. And this is the primary reason why the remains could not possibly provide sufficient circumstantial evidence of guilt.
• There is also circumstantial evidence that the meter reader moved the skull around in August, disturbing the evidence and possibly destroying the evidence of the person who deposited the remains—even if it was Casey. In addition, the meter reader testified that he saw the skull at least twice, maybe three times, in August and in December and at no time did he say there was duct tape anywhere near it. This is the second reason the “body” in this case could not provide sufficient circumstantial evidence of guilt.
• The fact that George Anthony gave the police a wiped-down gas can on which no fingerprints could be found is circumstantial evidence that George Anthony did not want the police to find anyone’s fingerprints on the can.

The caller who was hung up on also said she suspected Casey Anthony had used chloroform as a babysitter, and that’s what killed Caylee. I suspect the same. However, the defense conclusively proved to me (and I know something about computers) that the computer search for “how to make chloroform” was made only in response to a MySpace comment of one of her boyfriends concerning “how to win girls with chloroform.”

Another stupidity—I just remembered—is the way all these lawyers are speculating about how and when Casey will be forced to tell the truth. Folks, she doesn’t have to say anything to anyone ever again.

In the civil suit against her brought by the horribly defamed Zanaida Fernandez-Gonzales all Casey has to say in the deposition is this: how and why she chose the name, even if it was something such as she found a document with the information on it, liked the name, and decided to use it as her fantasy nanny’s name. She made this decision in 2006, as I recall, two years before the prosecution claimed she premeditated her daughter's death. She dreamed up the nanny as an excuse for taking Caylee with her when she wanted to spend the night with friends and not leave her with her parents or when she could not leave her with them because they were working. End of story. Zanaida Fernandez-Gonzales is exonerated in the eyes of the world, and Casey probably owes her damages.

Can we please quit this endless whining about Casey Anthony’s fate? How about a little media coverage of the Bill of Rights and how it protects every citizen—every resident—of this country from this kind of witch hunt?

Did the Anthony jury not care that somebody stuffed an adorable child’s body in a trash bag with duct tape stuck in her hair and then threw her away in a trash dump?

Of course not. Of course they cared. Of course they knew someone had committed some kind of crime against the child, if nothing more than not caring that she died and then disposing of her body in a horrible, criminal manner.

Jean Casarez of In Session claims that the jury has just told murderers they need to bury their bodies well. She says the jury ignored the cadaver dog evidence, ignored the evidence of the remains, and the computer searches for chloroform.

She must not have listened to the same evidence and testimony I did. All the cadaver dog evidence showed was that a body was probably in the Anthony back yard at some point and that the body was probably in the car at some point. The dogs did not tell anyone who died or who put the body in the car and why.

The evidence of the remains proves that someone wanted to hide the body, but there was no forensic evidence of who wanted to hide the body. That the manner of death was homicide is likely, but not conclusive, because no one knows the cause of death—not even the famous Dr. G.

And the computer searches? Only someone completely ignorant of technology could think that was evidence of anything other than curiosity about something someone said on MySpace. The search on “how to make chloroform” came after a MySpace page on which one of Casey’s boyfriends made a remark about winning girls with chloroform.

Casey Anthony isn’t getting away Scott-free. She will be hounded by crazy strangers all her life, by the media all her life, and the odds are that she won’t be able to cope with this even as well as O. J. Simpson did. She needs therapy. She needs to get a life. It’s unlikely that will happen.

Actually, the reason Jean Casarez and all the In Session commentators are appalled at the jury is that they are all former prosecutors, and, frankly, I am sure that all prosecutors and many judges wish there were no juries.

What I don’t understand at all, though, is why George and Cindy Anthony could not bear the sight of their daughter being spared a lethal injection and had to escape from the courtroom before the judge even pronounced her not guilty.

I was even right that it wouldn’t take the jury long to decide. I was right that the reason the jury took few notes in the second half of the trial was that they didn’t buy the state’s forensic science evidence.

I love the jury system! God bless America!

You would be justified to say I need to get a life and forget about the Casey Anthony murder trial. But sometimes it’s a relief to worry about other people’s problems instead of your own.

When listening to Jeff Ashton’s closing yesterday I realized it was the prosecution, not the defense, that had no coherent narrative. I knew it the minute he began his presentation with a silent video of Casey playing with Caylee—the video the defense had introduced to show that the shorts found with the body were shorts she had worn a year earlier. It was a shameless appeal to the emotions. It told me and everyone in the audience that Ashton had nothing to use to appeal to the jurors’ rational, reasonable minds.

And when that was the very first point Jose Baez made in his closing, I knew he was going to be able to make his case and save his client from Death Row.

Jose Baez did what I have seen no other attorney do: he used the phrase “beyond a reasonable doubt and to the exclusion of any doubt” as a battle flag, but his real argument was that “The state must prove each and every element of its charges against her. The defense has to prove nothing.”

Then he proceeded to tell a clear, coherent story about an emotionally disturbed young woman who made terrible mistakes and did awful things when her precious daughter died accidentally. He made the aftermath of Caylee’s death the central plotline of his story, and he made the state of Florida’s investigation of the crime the villain.

Key Defense Evidence That Had Previously Eluded Me

Mr. Baez walked through each of the elements of the alleged crimes and the evidence or lack of same that had been presented by the prosecution. Many of the points he highlighted were news to me. No, I’m not one of the poor jurors who was forced to sit through each and every excruciating moment of the trial. No, I didn’t watch or listen to more than perhaps half of the trial. Still, I thought I had heard the most important evidence. But some of what Mr. Baez explained yesterday was quite enlightening and even shocking.

1. The stench in Casey’s car trunk was not there eight days after both sides claim the child died.

During the period after June 16 when the prosecution claims Casey first put the body in the trunk, two people road in the backseat of the car to eat at McDonald’s and neither one smelled anything. On June 20, Casey’s boyfriend filled the gas tank of her car using a gas can. He stood within inches of the open trunk and smelled nothing. When the car was found in July abandoned in the parking lot of a bank, the banker who asked the police to tow it smelled nothing but the trash in the bin beside the car. The police officer who towed the car smelled nothing. The tow-yard operator later inspected the car and said he smelled “human remains.” It took him several days to identify the car’s owners and send them a notification (they being George Anthony). When asked by someone (tow-yard operator?) how long the car had been abandoned at the bank, George Anthony correctly replied “three days.” When George Anthony went to pick up the car, he told Mr. Baez he had muttered under his breath, “I hope it isn’t my daughter or granddaughter” when he smelled the stench. Then he got in the car and drove it home, but did not alert the police to his fears for his missing daughter and granddaughter, and instead just went to work as if nothing had happened.

2. The trash/garbage bag found in the trunk in mid-July cannot be proven NOT to have been the source of the stench, because the CSIs dried its contents out. (Sorry about the double negatives, but after all what the state is asking the defense to do is prove a negative.)

3. There is no so-called “stain of human decomposition” in the car trunk.

Several stains in the car trunk were there when Lee Anthony used the car. One stain not that old could NOT be analyzed to contain anything recognizable—certainly not human body fluids.

4. All that is known for certain is that the only evidence of carrion insects in the car was found in the dried trash bag; these included maggots, which would certainly have contained Caylee’s DNA had they fed on her flesh, but the state did not extract any DNA from any of the insects in the case, including those at the recovery site.

5. The neighbor who claimed Casey had borrowed a shovel from him had initially NOT been certain on which day this occurred, he believed it was June 20 (four days after Caylee died) and in any case it had been less than an hour before she returned it.

6. The defense presented more FBI-expert testimony than the prosecution did—because “the best crime lab in the country” couldn’t find any incriminating evidence. Crime lab evidence can be used to exculpate people, too, but clearly that isn’t what the state wanted them to do for Casey.

7. The chloroform evidence was entirely bogus (and that was clear even to me before he said it, and I trust the jury to understand this, too, even if Ashton doesn’t.)

Sidebar: As I write this Jeff Ashton is claiming that a quantitative analysis of the trunk air would have been meaningless, so when his own witness said that there was minimal chloroform in the sample he tested it meant nothing because it wasn’t anything like the air when the trunk was first opened. Duh? Excuse me. This is a non-sequitur. This guy needs to study logic.

8. The computer search report was doctored and flawed and not even produced by the witness who testified about it.

Computers are something I know a fair amount about from my past lives in the industry. It didn’t take Mr. Baez to point out to me how inappropriate it was for the police to search a hard drive looking for a specific search term, in this case, “chloroform.” And I knew that the reason they had done so was because Dr. Vass had told them he had found “shockingly high amounts of chloroform” in the air from the car trunk. But I didn’t realize the extent of the stupidity and deception involved in that so-called forensic computer analysis of the Anthony family’s hard drive.

Sgt. Stinger apparently first tried unsuccessfully to hunt for the term using “Netanalysis” software in August of 2008. A year later at a conference he learned about software called “Cashback” and tried to run the data he had through it. He couldn’t make it work, so he asked the company’s owner who was at the conference to search for the term. The owner spent three nights working on the problem and finally produced a report with a single search: “how to make chloroform.” Sgt. Stinger then used that information to run another report in which a reference to chloroform appeared on the MySpace page of one of Casey’s boyfriends. However, in the new report he erroneously picked up every hit on the boyfriend’s MySpace page as a new search for chloroform, when it is simply a redisplay on the Anthony computer of the boyfriend’s web page. On the stand, Sgt. Stinger claimed to have found 84 searches for chloroform. Mr. Baez had to call the Cashback programmer to the stand to explain that.

BTW: I first learned about that MySpace page when researching Cashback. A press release from the software company mentioned it. Apparently the page had a photograph with a caption something like “How to Wind Girls with Chloroform.” If my boyfriend had posted something like that, I would search for “how to make chloroform,” too.

There is a computer professional on the jury. He will understand this.

9. The police ignored evidence that Caylee drowned on June 16, 2008, which they had in July of 2008.

On June 15, 2008, Cindy Anthony and Caylee swam in the backyard pool. June 16 is the day Caylee allegedly drowned. On June 17 at work, Cindy Anthony told co-workers that she thought “yesterday” someone had been swimming in her pool and she saw the ladder up. On July 16, Cindy Anthony told detective Yuri Melich about the ladder incident and also said she had taken the ladder down on June 15. The door to the backyard had no child-safety locks and Caylee could open it, as shown by a photograph. (When I saw that photograph days ago, it also struck me as odd that a former policeman and a nurse would permit this to happen.)

10. The duct tape is clearly associated primarily with George Anthony, not anyone else in the family.

The duct tape came from a manufacturer in Ohio where the Anthony’s lived while Casey was a toddler. It was no longer sold after 2007, and apparently never sold in Orlando. The first time a strip of that duct tape appeared on items of evidence was near the beginning of August after Casey was arrested, when George Anthony handed a gas can over to the police. The police photographed it and tested it for prints (none were found). In the photograph the duct tape is visible and is being used as a vent cover. Early in 2009 under oath, George Anthony told Ashton that he didn’t recognize the can. Then under oath in the trial he told him that it was his gas can, and he had used the duct tape to prevent fumes from escaping and becoming a fire hazard. He soon changed his story and told Mr. Baez in the trial that he didn’t know how the duct tape had gotten there or when. In a TV news videotape on August 15, 2008, a large roll of the duct tape is shown lying on a table under a tent for search volunteers where George Anthony was supervising. On the stand, George Anthony said not only that he didn’t know whose tape it was, but the TV station was mistaken about where the video had been taken. 

11. George Anthony bought a gun while Casey was under house arrest in August 2008, in direct contradiction of the court order that permitted her to leave jail.

The state and George Anthony claim that he bought the gun to threaten Casey’s friends, because he thought they knew something about where Caylee was. Huh?

12. The child’s body was found without socks or shoes, which proves she died at home.

Testimony proves that Caylee always wore shoes outside the house and that she enjoyed trying to tie her own shoes.

13. Roy Kronk knew about the remains for four months before finally getting the cops to believe him, and his conflicting statements prove that he tampered with the recovery scene.

On August 10, 2008, Roy Kronk pointed out a skull to co-workers, who promptly collected a dead snake instead. The next day at 4:28 p.m., Roy Kronk called the police and said he had found a white skull. On August 12, he called the police again and said they could locate the skull by a tree with a white board over it. In November he told his son that he had found Caylee’s remains and that he expected to collect the reward. But he didn’t call the police again until December 11, when he was once again at the scene. On that day, there was no white board over the tree, and it took two Crime Scene Investigators to move the fallen tree, because the remains were concealed beneath it—two men, not a slim 22-year-old young woman. In statements after December 11, Roy Kronk first said he had picked up the bag and the skull fell out (so how did he see the skull in August?). He also said he had poked a stick into the eye socket. Then he changed his story. This is what you call “staging.”

As I write this, Ashton is completely misstating what Mr. Baez said in his closing about this; Mr. Baez is objecting; and the judge is over-ruling him. I don’t get it. Mr. Baez did not say that Roy Kronk took the remains home with him, put the duct tape on the skull, and then returned it to the scene. He said that Roy Kronk admitted disturbing the skull, which was subsequently found with the duct tape attached to the hair from the top of the skull and that the tape could have originally been used to seal the black plastic bag with her hair caught up in it. If I were a juror I would be growing increasingly angry at Ashton. I would think he’s either very stupid or he thinks everybody else is.

Mr. Baez concluded by saying the case against his client was comprised of “fantasy forensics” and “lies.” “You must have an abiding conviction of guilt,” he said, in order to convict Casey Anthony of any of the crimes with which she is charged.

I could be wrong. The jurors may be as gullible and ignorant of reality as Ashton seems to be and could convict her of manslaughter. But I can’t believe there are twelve thoughtful people who could sign Casey Anthony’s death warrant based on the state’s shabby investigation and presentation.

Either way, I believe the jury will be able to reach a verdict in four hours. They will only need to argue among themselves about one or two points. Specifically, I think they might talk about whether or not Casey’s admission that she neglectfully permitted Caylee to go outside and get into the pool (that she didn’t actually supervise her properly) was manslaughter. They might also discuss the charges of lying to investigators, which Mr. Mason argued came about through coercion. But that will take only four hours.

When in his closing argument yesterday afternoon in Florida v Anthony defense attorney Jose Baez pointed to Jeff Ashton, I turned to my companion and said, “Yes.” Only minutes earlier I had seen Ashton’s smirks and eye-rolling and said,” The jury’s going to see that and not like it.”

Why? Because a lawyer’s smirks are an insult to the jury, especially when “The State” is trying to execute one of the jury’s peers—and get them to sign the death warrant.

If “The State” shows no respect to one of our fellow citizens like that, we are all in “Big Trouble.”

I think I recall during voir dire that at least one potential juror said he did not have a high opinion of law enforcement and that at least one other had some sort of background issue for which she had “paid her debt to society.” I am sure that if these citizens made the cut and were sitting in the courtroom yesterday when Baez’s indignant finger whipped out at Ashton, they silently said, “Yes,” along with me.

If you didn’t see it, in brief here is what happened:

Baez was reminding the jury of George Anthony’s schizo testimony—when answering Baez’s questions he said one thing; when Ashton’s the opposite. Ashton was laughing behind his hand. Baez called him out. Judge Perry shut the courtroom down and even sent the reporters and videographers outside.

I thought for sure Judge Perry was going to berate Baez, but when the cameras were turned on, the judge asked Ashton why he shouldn’t be held in contempt of court and expelled from the trial. Apparently there are rules of decorum in Judge Perry’s court that prohibit lawyers from making faces and gesturing so that the jury can see it.

Ashton’s smirking, eye-rolling, and heavy sighs during the defense closing elicited this comment from my companion: “That must mean his case is in trouble.” It doesn’t take an expert rhetorician to understand this concept. That’s exactly what Ashton’s behavior and Drane-Burdick’s week-long, sullen pout had made me think, too.

This morning I thought about writing to praise Jose Baez’s extraordinary closing, but truthfully Jeff Ashton’s face says it all.

Read the Bill of Rights.

The defense summation in the Casey Anthony murder trial can neither weave a coherent narrative from the evidence nor appeal to reasonable doubt. All they can do is keep it very, very simple.

Tell the jury what is obvious:

1. The prosecution has not proved Caylee Anthony’s cause of death and therefore can’t prove that her mother murdered her with chloroform, duct tape, or a plastic bag.

2. The prosecution has not proved Caylee Anthony’s manner of death was homicide rather than accident.

3. The defense has presented evidence suggesting the cause of death was drowning and the manner of death was accident—not proof, but evidence, nonetheless.

4. No one knows how Caylee’s body ended up in the trunk of her mother’s car, except Casey Anthony.

5. No one knows how Caylee’s remains ended up in the wooded area, except possibly Casey, possibly George Anthony, and possibly the meter reader.

As a result, all that the prosecution has proven is that Casey Anthony attempted to cover up her daughter’s death and lied to the police.

Closing arguments in the Casey Anthony trial are currently scheduled for Sunday. In every televised criminal trial I’ve seen, closing arguments make or break one side or the other, and it’s usually the defense that’s broken.

The only closing argument I can remember that “made” the defense was Johnny Cochran’s in the murder trial of O. J. Simpson. Every other defense closing makes one of two fatal errors: either (1) they fail to connect with the jurors as common-sense human beings when they make complex or incomprehensible appeals to “reasonable doubt” or (2) they skip over at least one big gap in the defendant’s story. In Casey Anthony’s case, I suspect the defense wants to skip over the gap between the swimming pool and the woods.

The Rhetorical Impossibility of Reasonable Doubt

I’m a Ph. D. in English Language and Literature, which is a way of saying I’m an expert in English rhetoric and narrative. In my expert opinion (yes, I’ve written articles in peer-reviewed journals and taught college courses in these fields), it is impossible to explain the concept of reasonable doubt to contemporary Americans who speak English, because it is a nonsensical term. (Please see my posts in this blog’s “Reasonable Doubt” category.)

Any defense attorney who tells a jury they must acquit a defendant based solely on “reasonable doubt” will end up convincing the jury that he has no case for innocence and that therefore his client must be guilty of something, even if it isn’t exactly what the prosecution claims. Furthermore, a defense focus on the reasonableness of doubt forces the jury to fall back on their common sense, which will tell them that everything in their experience is different from what the defense claims happened.

Think about it: have there ever been twelve jurors all of whom found themselves standing over a body holding a smoking gun, a bloody knife, or duct tape? Of this fact there can be no reasonable doubt.

Here’s another way to understand the problem for the defense in every murder trial: doubt is an emotion, not a logical process; emotions are not reasonable—ever; consequently jurors can’t honestly say they have any doubts that are reasonable. Doubts, yes. Reasonable ones, no, and therefore they can’t argue in favor of their doubts to the rest of the jury during deliberations.

To see that I’m right, all you have to do is read through the post-trial statements jurors make to the press. In every case, at least one juror will point to an item of evidence that the prosecution made little of and the defense made nothing of, and he or she will say, “We talked about that a lot and concluded the defendant’s claims about it did not make any sense.”

For example, in the trial of Raynella Dossett-Leath, one juror pointed to the location of a telephone on a nightstand as proof the defense was lying (note: I use “defense” instead of “defendant” purposely, because the defendant did not take the stand.)

The Casey Anthony jurors will require Baez to connect the ALL the dots, not just the ones about which there can be no “reasonable doubt.”

Gaps in Narrative

Other than Johnny Cochran, I’ve seen no defense attorney who knows how to tell a good story in closing arguments. That’s what “narrative” is, a good story. Jose Baez told a good story in his opening statement in the Casey Anthony trial, but the case he presented to the jury after that has big gaps in it, gaps that destroy the narrative.

Narrative isn’t something that only fiction requires. Narrative is necessary in all human interactions. If either the prosecution or the defense doesn’t tell a good story in their closing arguments, the jurors will have to fill in the gaps for themselves. Believe me, no lawyer should want that to happen during deliberations. I’ve seen what happens when jurors are left with huge questions—they start talking about possibilities. Some start rambling and can’t be stopped. An no jury instruction to avoid speculation will make any difference.

One reason narrative is important is that it is the foundation of memory. Without a narrative—a logical, compelling story to our lives and all events in our lives—our memories become scrambled and vague. In a trial, jurors easily forget what the point is unless the attorneys keep reminding them of it.

Take the Casey Anthony trial as an example. The prosecution’s narrative was the timeline from early May 2008 to December 11, 2008, when the remains were found. But, unfortunately for prosecutor Ms. Drane-Burdick, that timeline is an investigation’s narrative, a process completely unfamiliar to the average person. It isn’t a compelling story.

Commentators present in the courtroom reported that during the prosecution’s case, which was highly technical, jurors took lots of notes—at least at first. This was because their memories were being overloaded with seemingly meaningless details. 

Commentators also reported, though, that the jurors quickly stopped taking notes during the defense case. This, IMHO, was because Jose Baez gave them a compelling story up front. They knew where he was headed. His attack on the prosecution’s forensic evidence was effective (as it had also been during cross-examination of prosecution witnesses). The jury already understood Baez’s most-technical arguments.

But the Casey Anthony defense rested without being able to present some key evidence of its own, namely, evidence that Casey had told at least two of her boyfriends “secrets” about allegedly incestuous behavior of her father and/or brother. This is a huge gap in the narrative, which the defense will have to fill in the closing statement—or at least provide an explanation to the jury of why they didn’t present this evidence.

Sidebar: Judge Belvin Perry excluded this testimony as hearsay. But the logic of the hearsay laws baffles me, as I have written elsewhere. Under the hearsay exception, “excited utterances” of a suspect may be used to show “state of mind” at or near the time of the crime. Under this rule many judges admit the hearsay words of a defendant. So why can’t the Anthony defense present her excited utterances about incest, especially when the defense is accusing Casey Anthony’s father of being an accomplice in the cover-up of her daughter’s death.

I, for one, expected at minimum a psychologist’s assessment of Casey Anthony’s pathological lying to fill in this gap in the evidence.

George and Cindy Anthony’s Story

Baez will certainly need to remind the jury of the dysfunction of the Anthony family, especially the bizarre behavior surrounding Caylee’s birth, George’s abandonment of the family for a period when Caylee was an infant, Cindy’s changing “medication” (which severely affected her memory of critical events while testifying and which was also referred to by Ms. Drane-Burdick), Cindy and George’s ability to compartmentalize and hold mutually exclusive ideas in mind at the same time, etc.

I think the jury will want the defense narrative to begin in early May 2008 when Casey and Caylee essentially left the Anthony home:

• Why did Cindy hound Casey by phone after that?
• Why did no one in the Anthony family check out the mysterious Zanny the Nanny before she had a chance to mistreat their granddaughter (if they truly believed she existed)? Why didn’t they check her out if they believed Casey wasn’t responsible enough to choose an appropriate caregiver?
• Why did George Anthony drive the odiferous car home and then go to work, while his wife called her son Lee to come to the house and smell the trunk for himself?
• Why did Cindy call 911 and first claim Casey had stolen money from her and had stolen her car, before she told the operator that car smelled like it had a dead body in it?
• Why did she tell the policeman who showed up afterwards that Casey had fraudulently used her credit card and then had him handcuff Casey and put her in the back of his patrol car?
• Why did it take Yuri Melich in July to call Casey’s bluff on working at Universal Studios when her parents claimed they thought she had worked there at least since January—when George decided to check up on Casey’s story that she also had a part-time job at Sports Authority, which he discovered to be untrue?

Casey Anthony’s Story

Even with an emphasis on the Anthonys’ bizarre behavior, it is still going to be very difficult for Jose Baez to fill in several gaps in the defense narrative.

Gap 1:  I believe Baez can point to evidence and testimony for all defense claims up to and until Casey went next door to borrow a shovel. I’ve thought and thought about this. What keeps coming to mind is the fact that the Anthonys had several shovels in a locked shed, for which Casey had no key. I can’t be the only person who concludes that’s why she needed to borrow the shovel. Frankly, the shovel is a smoking gun: what possible purpose could Casey have wanted to put a shovel to on the day she claims her daughter died—other than to bury the body. (The jury won’t buy an argument that the neighbor was mistaken or lying.)

Being prone to fantasize, I finally dreamed up a possible scenario, but I don’t know whether the judge will allow Baez to make these arguments. Surely the prosecution will claim “it assumes facts not in evidence.” My narrative is that George Anthony, as a former policeman, instructed Casey to borrow the neighbor’s shovel to bury the body rather than using an Anthony-family shovel because that use would leave forensic evidence.

Gap 2: The next gap in the narrative is how the body got into the trunk of Casey’s car, which I’m convinced it did. Baez has refuted all the “voodoo” scientific evidence of human decomposition in the trunk based on odors, but he has not (IMHO) refuted the testimony of the tow-truck yard operator, who said he had ample experience with both garbage and human decomposition, and who said the odor in Casey’s car was clearly human decomposition.

As an expert in narrative, my advice to Jose Baez  to admit that the body ended up in the trunk—but not in the way the prosecution claims. If he does so, he also needs to provide a coherent alternative, such as:

• George Anthony put the body in the trunk wrapped in a blanket and drove around with it while body fluids seeped into the trunk carpeting. He was out of his mind with grief. Then he finally realized he needed to bury the body, so he returned home, planning to wrap the body and blanket in plastic and secure it with tape.
• Or, George Anthony thrust the dead body of his granddaughter into her mother’s arms and told her to get out the house and to dispose of the body so her mother wouldn’t find out that the two of them had neglected the child all morning and then found her drowned in the pool.

But, any explanation other than a commonsensical explanation of the body being carted around in the trunk of the car for some period of time will not fly with a jury. Of this I am certain.

Gap 3: Another potential gap in the defense narrative has to do with the gas can with the duct tape on it. Baez has conclusively shown that the duct tape on the gas can was a special brand not available in Florida and only from a supplier “up north” where the Anthony’s once lived. The defense has also pointed out the oddity that all fingerprints had been erased from the can and its handle before George Anthony gave it to the police the second time.

I suspect the jury has already filled in some of the “duct-tape gap” as it relates to the three pieces of duct tape found with the remains. The jury knows that only people in the Anthony household had access to the duct tape—a fact that points to the defendant. The jury also knows that George Anthony has tried to distance himself from the duct tape; in fact, the jury probably think he lied on the stand about recognizing the brand. But the jury also probably assumes he’s only lying about the duct tape because he doesn’t want to be associated with the crime.

There’s a Catch-22 here for the defense, however. In order to prevent the jury from buying the prosecution’s argument that Casey may have suffocated Caylee with duct tape, Baez will have to explain the three pieces. As I understand it, they are fairly short strips, not the lengthy tapes used by the Anthony family to bury their pets and certainly not the lengthy tapes necessary to secure a black plastic bag around a child’s body. Three short strips of duct tape are somewhat reminiscent of the Jonbenet Ramsey case, in which a child was found murdered with duct tape across her mouth and a ligature around her neck: is it possible to claim that Casey and/or George Anthony wanted to make it look as if an intruder had drowned Caylee in the pool? Hmm. No. I don’t think this will fly with the jury either. It’s too late to claim the duct tape was part of Casey’s attempt to blame the child’s absence and death on kidnappers.

But the jury has not yet filled in the “gas-can gap,” because the defense has not explained it: Who used the gas can for a purpose that would cause them to erase all fingerprints from the can? Was George Anthony wearing gloves when he handed the can over to the cops? Or did they collect it from him themselves and in such a manner (with gloves, say) so as to preserve all the fingerprints on it? And, if so, why? What did they suspect the can had been used for? No one disputes that Casey used the cans to fill her gas tank.

Baez has to fill in this gap somehow. Maybe he can claim that George Anthony had to have been the one to wipe the can down and, if so, that showed he had used the can or the gasoline in it for some guilty purpose. What could that be? Was he planning to cremate the remains?

Gap 4: From his opening statement, I (and probably all the jurors) believe Baez will claim at a minimum that the meter reader who found the remains moved them from their original location. The problem is the logical gap this puts in the defense narrative. If, as Baez claims, Casey was present when Caylee drowned in the Anthony pool, then she must have knowledge of where the remains were originally deposited. Did Casey and George try to bury the remains “decently” (so to speak)? Did the meter reader stumble across their “clandestine grave” and dig everything up?

The Narrative Is Too Flawed

Without some explanation for these gaps in Casey’s narrative, the jury will be forced to conclude that one of the prosecution’s explanations of events is correct.

At this point, I don’t see how the jury can fail to find Casey guilty of manslaughter at the very least. Of the three murder weapons the prosecution has argued for, the least offensive is chloroform. Unfortunately, Baez has already convinced me that there’s no real evidence of significant levels of chloroform that can’t be explained by combinations of common household cleaning products, let alone as an ancillary product of decomposition.

Of course, Baez could drop the drowning claim and argue instead that Casey used chloroform to sedate Caylee, not kill her, and that she died of that “accidentally.”

Frankly without a more coherent narrative of events, Caylee’s accidental death during chloroform sedation is far less horrific to contemplate than a death by suffocation at her mother’s hands. And we can be sure that Drane-Burdick’s summation is going to focus on the many horrors in this case, not the least of which is the idea of Casey Anthony driving around with her child’s rotting corpse in the trunk, stinking to high heaven.

So instead of providing a narrative, Baez will likely pound away on the reasonable-doubt argument. He’ll show how shoddy the state’s investigation was, how police entrapped Casey into lying and failed to read her her rights until she was in over her head, how sloppy the CSIs were, how George lied on the stand, how Casey was a great mother until the unthinkable happened (whatever that was), how Casey was always well-liked and loved by everyone but her parents, and how the only thing the state has proven beyond a reasonable doubt is that she lied to cover up her daughter’s death.

Is It Hopeless?

In one very high-profile trial (Texas v. Robert Alan Durst) the defense was able to convince the jury that there was no proof that the defendant murdered the victim in cold blood and that his story of self-defense was equally probable. The defendant claimed he was afraid that no one would believe him, because he had been accused of murder twice before (a novel defense, worthy of a novelist). As a result he attempted to cover up the victim’s death by dismembering the body and dumping it in Galveston Bay.

If I was Jose Baez I’d study the closing arguments in that case. But, then, Texas jurors may be very different from Florida jurors, and Baez might have to apologize for accusing George Anthony of conspiring to cover up his granddaughter’s death.

Below is the only coherent story I can think of, and I imagine the jurors are hoping Baez will give them an excuse like this to vote not-guilty on the first-degree murder charges:

Casey left home on June 16, 2008, with Caylee; she used chloroform to sedate her—for some reason like shopping—so she could leave her in the car for a couple of hours. When she returned, the combination of heat and chloroform had killed the child. She knew she would be sent to prison for negligence and manslaughter, so she decided to concoct the story. Casey isn’t a particularly rational person—maybe her father’s abuse is a partial excuse—but we all know jurors won’t buy “the abuse excuse” for murder. Casey can only claim she feared her parent’s wrath for what she had done.

So, she returned home to get the plastic bag and duct tape from the unlocked garage and then went next door to borrow the shovel. She drove around for awhile after that trying to decide where to bury the body and finally decided on the wooded area. She carried everything deep into the woods, where she buried the body in a shallow grave, as decently as she knew how (which was the way the family buried pets). Crazy? Yes. But no one thinks she’s particularly sane. (BTW: Ms. Drane-Burdick asked Cindy Anthony whether she would ever have buried a pet in a swamp. Obviously, it wasn’t a swamp when Casey left the remains in the woods.)

As soon as she left, animals dug up the grave. The bag kept them from consuming the remains immediately. As time passed a few tears appeared in the bag, insects invaded it, and finally animals got at it, too. Everything was scattered and moved closer to the road and path through the vegetation.

In August the meter reader spotted it—specifically a white skull. He moved things around. And then he tried to get someone to believe him. Because he knew he would never collect a reward if he took the items away to show someone as proof of his claim, he backed off. It rained. Everything was covered in water for a number of weeks. In December the meter reader had another chance to report the remains, and that’s what he did.

It’s better than leaving the jury wondering how Casey Anthony can expect them to believe any other story that’s full of holes.

In the Casey Anthony trial, prosecutor Jeff Ashton has finally accomplished what I thought would be impossible: he elicited testimony today from George Anthony that momentarily made me wonder if the defense theory about his involvement in the cover-up of little Caylee’s death and his reason for attempting suicide was wholly fabricated.

But only momentarily. When the trial recessed for lunch, I had a chance to think about what George Anthony said—it made no sense at all.

George Anthony testified that before he swallowed blood-pressure medicine and a six-pack of beer he bought a gun with which to threaten some of “Casey’s friends” whom he thought had information about Caylee’s whereabouts.

Huh?

Which of Casey’s friends was of a murderous frame of mind or a kidnapping frame of mind in January 2009? Which of her friends had something to hide or something that George thought they were hiding? It couldn’t possibly have been the friends who testified at the beginning of the prosecution’s case, because they were all extremely up-standing citizens, including a politician’s staffer.

Why would a former police officer (George Anthony) decide to take the law into his own hands by committing a felony, namely, assaulting people with a deadly weapon?

Let’s face it: what George Anthony said about the gun purchase is very, very strange—as strange as his claim that he visited a woman named “River Cruise” or “Cruz” at night because she had cancer and he was being charitable.

Just when you thought it was safe to go into the water, the shark-attack siren sounds.

On Tuesday in the Casey Anthony trial most of the witnesses and a few of the attorneys behaved in rather unexpected ways—unexpected at least by this mystery maven.

For fear of defaming any individual, I’m not going to be specific. But one thing I feel I learned from Tuesday’s testimony is that a lot of people have no qualms about lying under oath on TV in a high-profile trial. In addition, a lot of family members have no qualms about contradicting one another on the stand—family members who clearly love one another.

I think I’m safe in characterizing the attitudes of the attorneys, however. Prosecutor Drane-Burdick was sullen all day—as she was yesterday. Prosecutor Ashton was prissy and IMHO disingenuous in his constant surprise at the defense.

While the “chatters” on the various live-video websites were unanimously condemnatory of the defense team, I felt defense attorneys Baez and Mason behaved appropriately. They hammered away at their client’s accusers, including George Anthony and Roy Kronk.

Many interesting witnesses appeared outside the jury’s hearing, as well. Many of them won’t be permitted to testify—apparently. And I must say—as a former criminal-trial juror—it’s what the judge doesn’t let you hear that drives you wild after the trial when you find out about it.

But the jury did hear important evidence today and yesterday about the way in which Caylee Anthony’s remains were discovered. If I were on the Anthony jury—and obviously I am not—I would be very troubled by Roy Kronk’s testimony today and by Lee Anthony’s testimony about his mother’s sending a detective to investigate a psychic’s lead about the possibility that Caylee’s remains were in the woods near the Anthony home.

I’m not saying I would believe the defense theory that Kronk moved the remains around (other than his statement that he lifted the plastic bag and the skull fell out at his feet—which casts serious doubt on the CSI evidence). I’m saying that if I were asked whether Casey Anthony deposited Caylee’s remains with duct tape in the woods near her home, I would have to say I have a reasonable doubt.

But I want to be very clear: I am not an average person in any way. I am not an average juror. What I’m saying is that I was surprised to find that I served on a jury of other non-average jurors. There may be one of us on the Casey Anthony jury.

So, despite the foul-mouthed chatters on the various trial websites, I don’t think Casey Anthony is coming off as a cold-blooded killer.

Yesterday’s testimony of Lee Anthony in the murder trial of his sister explained a great deal to me about the family’s interpersonal relationships—or, rather, I should say more precisely, inspired my writer-me to add a dimension or two to my Casey-Anthony-look-alike character.

Having toyed with my character’s family overnight, I have now decided that she should have an older brother who also lives in their parents’ home after graduating from high school and who lives in the home when my character becomes pregnant.

In my novel’s plot line, the brother would be the first in the household to notice she was pregnant—sometime in her late-sixth month. It took him this long to notice, because he spent little time with his family. He has serious conflicts with his parents. They often criticize him for “not getting a life,” while at the same time demanding that he contribute to the household budget and act as “the man of the house” when his father abandons them for other women—as he does from time to time.

I don’t mean that in my novel the mother literally says any of these things to her son. Instead she implies these obligations. Mothers have ways of saying things without ever saying them—saying multiple, contradictory things.

All his life, my character’s brother has felt responsible for his little sister. He feels this way to this day. When he realized she was pregnant he “confronted” his mother with the fact. Her response was not only dismissive, she told him in no uncertain terms to butt out. For almost three months, as his sister’s belly grew and grew, his parents gave him the cold shoulder, refused to discuss the impending “big event” and treated him as a non-person. He came and went. He spent as little time in the house as he could—and that little time was primarily at night in his bedroom.

A few days before my character gives birth, her brother raises the issue one last time. His mother completely shuts him out. He understands that he isn’t even welcome in the hospital after his niece is born.

No one else in the family comments. The mother-son relationship is too well known.

But, you say, isn’t this unrealistic? Incomprehensible? Improbable?

No, I reply. It is the well-known psychological phenomenon of “parentizing” of children. In an unhealthy household, parents and children are often co-dependent. The parents demand, in effect, that one or more of their children take care of them instead of the other way around. The children, though, are entirely dependent upon their parents and cannot act in loco parentis (a legal term that means “in place of parents”). As a result, the victimized children lose all self-esteem; they know they are incompetent to do what their parents want them to do. They learn to feel more and more responsible for their parents and siblings.

Because my character’s parents have always been “over-the-top,” immature people, they really never wanted to have children. They had children only to fulfill society’s expectations of them. They would have preferred to remain footloose and fancy free forever. When their first child was a boy, naturally they said they were “thrilled.” When their second child was a girl, naturally they said they were “thrilled.” But the first thing they did after the birth of my character was to make it clear to the boy that as the older brother it was his job to “watch out for his little sister.”

And that’s what he tried to do all his life.

So, when he discovered that my character was pregnant “out of wedlock,” he knew his parents would blame him for not taking adequate care of her. Furthermore, he actually felt that he had let her down in some big way.

My character, though, is secretly glad that her pregnancy has caused her mother to get angry at her older brother. She always thought that her mother preferred him to her—she thought that was why her mother never gave her any love, that is, that her mother expended all her love elsewhere.

I’m still working on the complexities of this fictional family’s relationships. I think I will probably develop a backstory in which brother and sister are extremely close in childhood, best friends, in fact. At some point they “play doctor” or my character’s brother says, “I’ll show you mine if you show me yours.” My character will participate in these normal games, but subconsciously something will fester in her like an infection. She will feel deeply guilty about these games and the feelings they engender in her. I’m not sure why yet: either it will be because of her mother’s rather prudish attitude toward sexuality or her open resentment of her husband’s extramarital affairs, or it will be because of her father’s sexual abuse of her—or maybe all of the above.

The dream of criminologists is to find a physical characteristic or set of characteristics that can predict with certainty which children will grow up to be sociopaths. In particular, the issue is what causes “bad seeds," that is, individuals who are predestined to commit crimes, especially murder.

Psychologists have long studied people who lack emotional responses to other human beings, the sort of people that tend to be criminals. In high-profile televised trials, mental-health and FBI profiter commentators typically identify these people as displaying “a flat affect” when confronted with proof of human suffering. You may recall, for example, psychologists describing Scott Peterson’s flat affect (expressionless face) when confronted with photos of his wife’s torso. (Since the Peterson trial was not televised, we have only these commentators’ word for how the defendant looked.)

For over a century, biologists have attempted to find specific defects in the human brain that lead to anti-social behavior. Neurologists in particular have wanted to determine whether genetic defects can be identified in young children.

Why would anyone want to predict criminality in a child? Dr. Adrian Raine of the University of Pennsylvania says, “[I]f I could tell you, as a parent, that your child has a 75-percent chance of becoming a criminal, wouldn’t you want to know and maybe have the chance to do something about it?”

Dr. Raines does not offer any advice for parents of such children, however.

Recently The Chronicle of Higher Education reported that Dr. Raine has proposed that he has found two or three physiological brain defects that are early-childhood indicators of “dangerous minds.” According to Dr. Raine’s theory, sociopaths can be spotted in infancy and sometimes even in the womb.

Studies of the heads of criminals date back to the 1800s. Phrenologists mapped the bumps on human skulls and claimed to be able to determine personality traits of individuals based on their unique bump patterns.

Anthropologists compared human skulls and purported to be able to identify racial differences in bones and particularly in skulls. Paul Broca developed craniometry and believed he could predict personality based on the size and shape of a skull. In addition, this field of anthropology proposed some racist theories about intelligence, too.

During the 20th century, numerous studies were conducted of possible biological causes of aberrant human behavior. In the 1990s, neuroscientist Dr. Antonio Damasio demonstrated that the size of the amygdala (a part of the brain responsible for many emotions) is a predictor of certain behaviors in humans.

In 1997 Dr. Raine applied both Damasio’s theory and another of his own observations involving damage to the prefrontal cortex of the human brain: Raine PET-scanned the heads of 41 convicted murderers with those of 41 “normal” people. Dr. Raine looked at the number of convicted criminals from “good homes” who also had brain abnormalities. He concluded that genetic and biological factors were more influential on criminal minds than were “nurture” factors. In other words, the criminals he studied were born bad. (I have no idea how he defined a “good home.”)

Earlier in his research career, according to The Chronicle of Higher Education, Dr. Raine studied the possibility of predicting specific acts of violence by criminals. He taped electrodes to a number of convicts heads and then locked himself in the back of a van with them. At that point—with prison guards stationed outside to rescue him if necessary—Raine proceeded to do his best to irritate the prisoners in hopes they would snap and try to beat him up. He believed he could predict the moment they snapped using their brainwaves. The experiment was a failure: nothing he did got a rise out of any of them.

In addition, Dr. Raine has found what he refers to as a “hole” known formally as a cavum septum pellucidum. He has found this hole in fetal scans as well as scans of adult criminal brains.

To What End?

First, I would like to point out that Adrian Raine is a private-sector researcher. He conducts his research under the auspices of universities (and in this context even state-owned universities are not public-sector). In addition, while Raine’s research is potentially applicable to forensics, it is not intended to produce evidence of criminality that can be presented in court. His aim is to help caregivers (parents, teachers, mental health professionals) identify potentially problem children in order to provide therapy before they develop sociopathy.

However, it is inevitable that his studies (and similar ones) will be used for highly dubious social engineering purposes. The only acceptable use for this research IMHO is in gene therapy to prevent the development of fetal brains that exhibit these abnormalities.

Casey Anthony’s Mind

I suspect that if the State of Florida could produce brain-scan evidence of Casey Anthony that demonstrated she had a small amygdala, a large frontal cortex, and a hole between the  halves of her brain, they would. Both Ms. Drane-Burdick and Mr. Ashton appear to me to have a visceral dislike of Casey Anthony. And this is what most troubles me about their prosecution of the case:

Why do the prosecutors not want Casey Anthony to be able to put on a defense? Why do they object to almost every witness for the defense and to almost every item of evidence the defense puts forward?

If I were on the Casey Anthony jury, I would resent what seems to me to be the prosecution’s attempt to prevent me from hearing her side of the story.

A commentator on In Session’s Casey Anthony trial coverage recently claimed that if trial attorneys present too much detail about CSI evidence, jurors would likely ignore it all. (Of course, this same commentator claimed earlier that these days jurors expect to hear a lot of CSI evidence.) The Casey Anthony trial likely provides support for both of these claims.

For this one-time criminal-trial juror, the mountain of CSI evidence presented by both sides is beginning to amount to a big yawn. Unlike the In Session commentator who was critical of defense-expert testimony, this endless discussion of post-mortem hair-banding and disgusting fumes rising from a square of auto carpet convinces me that the State of Florida wasted a great deal of taxpayer money on forensic examinations.

Why? To try to convince a jury that they had solid evidence against Casey Anthony—when in fact they do not.

Junk Evidence

In order to develop its forensic-science case against Casey Anthony, the State of Florida found that local crime labs were inadequate to process the mountain of evidence (hairs, fumes, stains, leaves, twigs, fibers, clothes, shoes, shovels, dirt, duct tape, plastic bags, cloth bags, trash, garbage, DNA, body fluids, bones, bugs, stickers, and the lack of same).

So they sent most of this junk to the FBI lab in Virginia and some to a federal research lab in Oak Ridge, Tennessee. The FBI lab costs U. S. taxpayers roughly $8 billion (with a B per year; Oak Ridge National Laboratory, which provides the U. S. with critical research into energy and technology (not merely crime-solving) costs roughly $1.65 billion (less than one-quarter of the FBI Crime lab). The Florida Department of Law Enforcement has an annual budget of roughly $1.4 million (with an M).

For their share of these funds, what have Florida taxpayers received in evidence to prove that Casey Anthony willfully, maliciously murdered her daughter?

1. An Oak Ridge Lab anthropologist’s crackpot theory that the results of a gas-chromatography/mass spectrometry analysis, which showed relatively high levels of chloroform in a gas of unknown origin found in Casey Anthony’s car, was highly suggestive of human decomposition (although an Oak Ridge Lab chemist explained that relative amounts of any chemical in a gas of unknown origin is meaningless, even if in fact chloroform is one of 30 to 80 possible emissions from human decomposition)

2. That only three peer-reviewed studies have been conducted on the gases emitted from decomposing human flesh, and that two of them were authored by an Oak Ridge Lab anthropologist who also believes in divining rods

3. One FBI hair-analyst’s opinion that a single hair found in Casey Anthony’s car was “consistent with” and could not be “excluded from” coming from the head of Caylee Anthony and furthermore that the hair displayed post-mortem hair-banding, which she did not choose to show to the jury by means of photographs taken of the hair

4. Less than a dozen peer-reviewed articles have been published in forensic-science journals on the topic of post-mortem hair-banding

Sidebar: In the thesis (not peer-reviewed article) on hair-banding linked above,  “the author suggests that during the forensic investigator’s examination of a decedent with an unknown PMI [post-mortem interval], a sample of 25 head hairs should be collected and saved for evaluation. The slow decomposition rate of hair, relative to other soft tissues, makes it a valuable source of information in older forensic cases.” Please note that Caylee Anthony’s hair mass found with the skull contained a sample of 25 hairs, but they were unusable for a hair-banding analysis, and the hair found in the car was only a single hair and there was no known PMI.

5. That the FBI lab has an on-going study of whether hair-banding can occur in ante-mortem hairs (that is, hairs from living people) which is so far inconclusive but which has begun to suggest that hair-banding may not be an exclusively postmortem event

6. That the only relevant, usable DNA recovered from any of the evidence was one sample of mitochondrial DNA from a hair, but all that this evidence proved was that females descended from Caylee Anthony’s great grandmother had at some time ridden in Casey Anthony’s car

7. That the FBI lab does not test for “touch DNA,” although it is well-established in Europe

8. That multiple FBI examinations of three pieces of duct tape,  one of which piece was stuck the hair remains, turned up no evidence of anything other than that the FBI lab contaminated the tape on two spots

9. That fly and insect remains found in the car trunk and at the site of recovery showed that flies and insects that are attracted to rotting meat (human and pork) were present. These bugs included “early colonizers” (that is, ones that show up during the early stages of decomposition) and “late colonizers” (that is, ones that show up during later stages). The fact is that Caylee Anthony’s remains completely decomposed—and that’s why nothing but bones and a little hair were ultimately recovered, but there is no CSI proof-positive that anything decomposed in the trunk of the car other than some unknown meat. (The best evidence of human decomposition came from a tow-truck yard operator, not a crime lab.)

10. That a shovel Casey Anthony borrowed from a neighbor was found to have soil on it, but as soon as the remains were found the FBI Lab ceased its examination and never compared the shovel evidence to the soil in the wooded area where the remains were found—so there is no evidence that Casey Anthony borrowed the shovel to bury the body. In fact there is no evidence that Casey Anthony borrowed the shovel to bury anything.

11. That none of the public laboratories found any stains or any substances on anyone’s clothing or shoes. Nothing of evidentiary value.

12. That no fingerprints were found at all.

13. That a bag of garbage from the Anthony car was dried out in order to preserve the organic materials in it, and as a result numerous experts were forced to testify that there were no wet materials or “food” present in the trash when they examined it

14. That a bag of garbage from the Anthony car was odiferous when discovered, but subsequently smelled less strongly after it was dried out.

15. When instructed to search the Anthony family’s computer hard drive (not the defendant’s laptop hard drive), a computer forensics expert on the Orlando police force failed to recover any useful evidence. Then a software developer from Canada recovered a series of searches that took place within a few minutes on an afternoon in March 2008 when supposedly only Casey was at home. No thorough, comprehensive analysis of either hard drive was ever conducted.

I could go on, but it bores me. The fact is that investigators in the Caylee Anthony murder case did not cleverly use CSI evidence to prove what killed her, let alone whodunit.

At this point, the only “evidence” that Casey Anthony did anything wrong is that she lied about her daughter’s whereabouts after she must already have been dead. A reasonable juror would conclude from this that Casey knew Caylee was dead.

But that doesn’t prove how she died.

If the jurors in the Casey Anthony trial have ceased to take notes, this is why. When they retire for deliberations, they will discount most of the physical evidence and be forced to rely on witness testimony. Note that I said “discount,” not “ignore.” The jurors will discuss that fact that for every CSI clue presented, an equally convincing counter was also presented.

And you don’t have to be a Ph. D. to understand this.

It seems to me the taxpayers of Florida would have been better served to have all the evidence in this case analyzed by privately-owned labs, rather than government-owned and run labs, which have an inherent prosecution bias.

In Peterson’s case I believe the most likely scenario was that Amber called the Peterson house and Laci answered the phone. Later Laci confronted Scott with his philandering and they argued. He struck her and killed her—unintentionally. I even think he may have tried a C-section to save his unborn son. In the end, he wrapped the body in a blanket and tossed it in the bay. Murder, yes. First degree, pre-meditated murder, no.

 

I was going to title this blog, “Hey, Jose, Ask the Right Questions.” But having heard that the prosecution has told the judge in the Casey Anthony trial that Casey may have “gotten” the story about her child drowning in a pool and being found by her grandfather from a neighboring cellmate, I’m utterly baffled.

America, wake up!

If we continue on this path, justice in this country is doomed. This new news story is nothing but innuendo and rumor. Yet national news outlets are reporting “facts” that not only haven’t been proved, they haven’t even been alleged.

I’m not naïve. I don’t believe every tale a pathological liar tells me. I didn’t believe Scott Peterson anymore than I believe what I’ve heard so far from Casey Anthony. But in neither case do I believe the state proved or has proved so far their guilt beyond a reasonable doubt.

In Peterson’s case I believe the most likely scenario was that Amber called the Peterson house and Laci answered the phone. Later Laci confronted Scott with his philandering and they argued. He struck her and killed her—unintentionally. I even think he may have tried a C-section to save his unborn son. In the end, he wrapped the body in a blanket and tossed it in the bay. Murder, yes. First degree, pre-meditated murder, no.

I think the most logical explanation in the Casey Anthony case is that Casey used chloroform to sedate Caylee, and she died—accidentally. Then Casey concocted elaborate lies to cover up. Child abuse and murder, perhaps. First-degree, pre-meditated murder, no.

It’s hard to believe the prosecution will be able to prove the cellmate (so to speak) story predated Casey’s story to her defense attorneys. The attorneys cannot be compelled to say when she first told them the drowning story. And one has to ask whether or not the cellmate borrowed her story from Casey—apparently the woman has a long criminal record (which Casey does not, a fact no one seems to give her credit for, that is, her history of good behavior).

So—frankly—unlike the national media, this news story interests me little.

What I think is shocking is the national media. Last night, a popular talk show asked the question, “Will Caylee Anthony get justice? The Casey Anthony trial is the most-followed trial since O. J. Simpson. Will justice be served this time?”

Get real! O. J. Simpson was a major sports hero. He was a celebrity. He was wealthy. He was a mature adult. He had abused and divorced one wife before he abused and murdered a second. He didn’t just murder his wife, he butchered her and her friend while his two young children slept inside their home.

Casey Anthony is nobody. She isn’t famous except as the media has made her infamous. She is indigent. She is in her twenties and has never lived outside her parent’s home. She never abused her daughter or anybody else’s daughter. If she murdered her daughter, the evidence suggests she did so by putting her to sleep (the idea of suffocation by duct tape AND plastic bag is absurd on its face).

Sidebar: Jose, you did a great job showing that the Vass evidence of a huge amount of chloroform in the air sample was bogus. But you didn’t make it clear to the jury. In addition, you tried to claim Oak Ridge scientists have no quality controls—by using the “standards” which are in fact “controls.” The “errors” you pointed out in the tests were actually quality control. What you should have asked was, “Your research experiments are open-ended, are they not? Isn’t that the purpose of research, namely, to see what will happen?” The chemist would have said, “Yes.” Then you should have asked, “But Vass’s experiments weren’t to see what was in the air sample; they were conducted to prove the air samples came from decomposing human flesh, right?”

It’s METHOD, not PROTOCOLS.

OK. I admit it. I’m not the typical trial spectator and apparently not even a typical juror, but in trial after high-profile trial I find myself wanting to put a sock in the mouth of prosecutors when they start sarcastically cross-examining defense witnesses, especially expert witnesses.

Today in the Casey Anthony murder trial, prosecutor Jeff Ashton attempted time and again to belittle a Dutch expert in the detection of “touch DNA” by sneering at his lack of a Ph. D. (does Ashton have a Ph. D.? I do), by ridiculing the fact that his company has established its laboratory on a Colorado farm (which is known internationally as the “Crime Farm”), and calling his company a “mom and pop shop” because it was founded jointly with his wife, who is also a DNA expert.

As a Ph. D. and rhetorician, I would advise any lawyer who is cross-examining an expert witness—defense or prosecution—to show respect to all the experts who testify, especially when by definition that individual is an expert in a field in which you are not. I honestly don’t believe it takes a Ph. D. to find it distasteful to have to watch an ill-informed know-it-all try to humiliate people who have distinguished themselves in any field.

So far in the Anthony trial, I’ve gritted my teeth through Ashton’s cross-examination of a Ph. D. forensic entomologist who achieved distinction before the age of 30, a distinguished retired Ph. D. forensic botanist, and now a distinguished expert in touch DNA whose credentials include innovations in the field of DNA amplification and collection of minute, degraded samples of DNA. When Ashton belittled the young-genius entomologist I thought to myself: “He’d better hope there aren’t young jurors who admire this guy for what he’s achieved.” When Ashton belittled the female botanist, I was glad to see that her experience as a university professor and lecturer enabled her to deftly counter all his jabs so that I didn’t need to wonder if there were any retired women professionals on the jury who might find his attitude offensive.

But I’m utterly baffled at Ashton’s attitude toward Richard Eikelenboom. In voir dire, the witness said that Ashton had been rude when he presented himself at the D. A.’s office for deposition and turned him away. Of course, this testimony came outside the jury’s hearing. On the stand Tuesday afternoon, though, it seemed to me as if Ashton’s sarcasm was his last-ditch attempt to imply to the jury that they ought not to listen to his opinion that touch DNA could probably have been found in the Anthony case, especially on the victim’s clothing and the duct tape found at the scene.

Rhetorically speaking—meaning “from the standpoint of the emotional effect on the jury”—I believe Ashton’s stance will convince the jury that he’s either grasping at straws or terrified that the jury will believe Eikelenboom.

I thought about blogging on this topic earlier, because I found Jose Baez’s respectful cross-examination of all the prosecution’s experts, including Haskell (who clearly had no respect for Baez) and Vass, whom he managed to get to admit he believed in magic, to be the appropriate rhetoric.

A bit of advice to Ashton: You may show your contempt for opposing attorneys and clients, but it is dangerous to show the same contempt to distinguished experts who happen to believe that every American is entitled to present a defense and to ask a jury to decide their fate.

The Casey Anthony murder trial highlights the rampant misuse of CSI evidence in American courts. Both sides in the case have trotted big-name forensic scientists to dazzle the jury. Yet little of the forensic-science evidence presented has clarified any of the mysteries surrounding the death of little Caylee Anthony. Only the eye-witness testimony has shed any light on this case.

The problem arises from the term “forensic science.” The word “forensic” in this term means “relating to debate and argumentation.” The “science” in this term is a misnomer like most terms involving the word “science” (such as social science and political science). More apt would be the words “arts” or “craft.” For example, no one would claim to study “legal science,” because all lawyers know that practicing law is an art and craft—a skill, one that varies in quality according to the abilities of each practitioner.

Forensic science provides support for one of the sides in a legal debate or argument. It produces evidence present to bolster an argument, such as: Caylee Anthony had duct tape applied to her mouth and nose, thus suffocating her.

By definition, forensic science can also supply support for the argument that the duct tape was not applied to Caylee Anthony’s face at all but rather to something else, such as the neck of one of the bags found near her remains. Forensic science can even supply support for the argument that the duct tape became stuck to the hair at some point after the remains were dragged around by carnivores. I can think of a very long list of possibilities that forensic science could be used to support.

It isn’t science. Science is the study of nature to discover facts that lead to an understanding of the truth. Science has a specific methodology, which is vastly different from the methodology of forensic science. Science’s methodology begins with the understanding that the truth is not known; a hypothesis about the truth is proposed; and then an almost endless series of experiments is conducted to confirm or deny the hypothesis.

Forensic science begins with an assumption (not a hypothesis). The assumption in the Anthony case is that Casey Anthony murdered her daughter, carried her around in the trunk of her car for several days, concocted a kidnapping tale, then wrapped her daughter’s dead face in duct tape and stuffed her into a plastic bag (or, if that can’t be proven, that she suffocated her daughter with duct tape or maybe by putting her in the plastic bag—although you can’t have it both ways), and then discarded her like trash in a nearby wooded area. All of the FBI laboratory investigators and all of the Orange County investigators proceeded from this assumption to try to find evidence supporting their claims.

But one only bothers to go to the extraordinary effort of looking for a needle in a haystack if you know in advance that a needle is there to be found.

Science is currently looking for a needle in a haystack using the multi-billion-dollar Large Hadron Collider at CERN, a research center in Switzerland. The needle science is looking for is the Higgs Boson, an incredibly small particle that is assumed to exist and must exist if other physics concepts and equations are to be believed to be correct.

Note: I did not say that science and the governments of the world all agreed to spend billions of dollars trying to find evidence to support an assumption. The Higgs Boson is an hypothesis at this point, but it is an hypothesis derived from over a century of scientific research.

In other words, if Casey Anthony’s guilt were a scientific hypothesis instead of law-enforcement assumption, the so-called forensic scientists working on the problem would likely still be working on it until Casey Anthony dies a natural death at a ripe old age.

Unfortunately for American defendants in murder trials these days, no one in the courtroom seems to understand that forensic evidence ought not to be labeled scientific and ought to be understood by everyone—especially the judge and jury—as simply one or two people’s interpretations of a phenomenon they observed.

No amount of forensic science can tell the Anthony jury whether or not the smell and stain in the trunk of Casey’s car was from human decomposition or from pork-chop juices.

Note to blog subscribers: I inadvertently published the wrong draft of this post. I apologize for erroneous information included in that draft. It should never have been published. I have absolutely no knowledge about the Casey Anthony murder trial, other than what I have read or heard in the press.

Yesterday after the prosecution in the Casey Anthony trial rested its case, Judge Belvin Perry denied the pro-forma defense motion for a directed acquittal for several reasons, all but one of which made perfect sense. As I understand it (and I am not a lawyer, thankfully), Judge Perry reiterated several fundamental principles of U. S. law:

• The jury, not the court, is the finder of fact.
• When considering a motion for acquittal, a trial judge must always view the people’s case in the most favorable light.
• The prosecution had demonstrated that the defendant had motive, means, and opportunity to commit the crime.

Sidebar: Judge Perry also explained that under Florida law multiple acts of life-threatening child abuse is a first-degree murder crime.

Of everything he said, only one concept strikes me as completely illogical, even though I’m sure he’s right about it being the law, namely, that the last person with whom a murder victim is seen is “whodunit.”

It seems to me this is chop logic, a tautology. The last person with whom a two-and-a-half-year-old child is usually seen is her mother. It’s only suspicious when it’s someone other than a parent.

In this case, the last person who saw the victim with her mother is the grandfather—which makes George Anthony the defendant’s primary accuser. It wasn’t as if Caylee was last seen with Casey by a crowd of strangers with no stake in the issue.

Judge Perry cited several child-murder cases in which the principal evidence against the defendant was the fact of having been the last person seen with the victim. If I’m not mistaken, though, none of the defendants were the children’s parents. I’m sure that in at least one case the defendant was an estranged boyfriend of the mother.

Sidebar: The motive in one boyfriend case was, apparently, to seek revenge on the child’s mother for dumping him. Oddly, Judge Perry said that the prosecution had demonstrated that Casey’s motive was “her relationship with her mother,” meaning Cindy Anthony. I suppose he meant that Casey was jealous of Cindy’s domineering affection for Caylee, but try as I might I can’t see how a daughter who loved her mother so much that she would be jealous of her mother’s love for her own daughter would to want to kill the daughter, whom she also loved. Was Casey hoping to regain her mother’s affection by doing away with her chief rival? It seems to me that—in fact—there is literally no love lost between Cindy and Casey. If Casey wanted to kill anybody it would more likely be her mother. (And, by the way, don’t we all know a few mothers and daughters who don’t get along?)

One case the judge cited was from Massachusetts, I believe. He noted that it was not the law of Florida but was nonetheless illuminating or illustrative or some such word. He read the circumstances to the court:

A boy was found injured in the basement of an apartment building, naked and moaning. The boy was hospitalized and eventually released to the custody of someone in the building (a parent? I’m not sure. Why the cops did not arrest someone when the boy was first found—obviously the victim of abuse or neglect—is a complete mystery to me.) Anyway, eventually the boy was murdered and the last person he was seen alive with was convicted of his murder, based solely on the fact that he was the last person the boy was seen alive with.

This is a real puzzle. There is absolutely no similarity between the Massachusetts case and the Anthony case—unless the judge was saying that in his mind George Anthony’s highly questionable testimony about seeing Caylee last with Casey was sufficient evidence to convict Casey. The most critical difference is that there was a history of abuse in the Massachusetts case, but there was also a difference in that the victim was found murdered in the apartment building where he lived.

Of course, Caylee was last seen with her mother. Every witness including George and Cindy Anthony said that Casey was never seen without Caylee until she disappeared. And Casey admits that she was present when Casey died.

It’s issues like this that make me wonder what lawyers learn in law school. It sure isn’t logic.

“The evil that men do lives after them,” according to William Shakespeare. But I now believe that the evil men do is far greater than even a mystery writer can imagine or a police detective can ever prove.

Yesterday I was bludgeoned with more evil than I had ever imagined. The blunt force trauma I received was my own fault: I spend much too much time following high-profile trials and watching TV “magazine shows” like Glenn Beck.

Freud pointed out the need for human beings to pass on bad news. That’s what I’m about to do in this blog. In fact, now that I think about it, that’s all I’ve ever done in this blog—try to get bad news off my chest.

Glenn Beck’s program yesterday focused on slavery in the Arab world—in the place where the United States has for decades expended its treasure and blood. Specifically, Beck reported on advocates of slavery in Kuwait and Egypt. For instance, he played a videotape of a Kuwaiti woman who thought the Moslem world should import women and children from Chechnya, where they are taken as prisoners of war, for use as sex slaves.

But to make matters worse, I learned after the program that it isn’t only Islamists in the Middle East who advocate slavery; the fact is that slavery is practiced, even in pro-Western, secular countries. In Libya, for instance, before Qaddafi, under King Idris, slavery was openly practiced—even Americans who lived and worked on American military bases in Tripoli knew about slaves there. In other words, the U. S. government, including the Department of Defense and the Department of State, have an ongoing policy of propping up regimes that tolerate slavery.

Yesterday’s testimony by Casey Anthony’s mother was another evil spectacle I witnessed yesterday. Cindy Anthony was so drugged up she couldn’t even remember the events she was supposed to be testifying about. I can understand why the courts permit defendants to take drugs to remain calm, but I cannot accept a court system in which witnesses for the prosecution are permitted to take the stand on drugs.

The family of accused murderer Casey Anthony is portrayed in the press as if they were a normal, loving family with the misfortune to have produced a monster daughter.  But if I were writing a murder mystery about a family like the Anthonys I would portray them very differently.

Sidebar: I usually write about trials from a juror’s perspective, but what I have to say now is strictly from my perspective as a novelist. While I’m not a psychologist (as some writers are in real life—Elizabeth George, for instance), I like to think I’m perceptive. Everything I plan to say in this blog post is strictly based on my ideas of fictional characterizations. I’m not pretending to be able to read the Anthonys’ minds or to know anything about their lives.

A Portrait of a Casey Anthony Look-alike Before June 16, 2008

If I were creating a fictional character who behaves as Casey Anthony does, I would treat her as a young woman who lived as a virtual prisoner in her parents’ home.

She would be a bright, popular high-school graduate who inexplicably decided not to leave home and go to college, but instead found a job taking photographs of visitors to an amusement park. I say inexplicably decided not to go to college, because all her high-school friends and friends she met after high school left home to attend college. Yet my character continues to sleep in the same bedroom in which she slept as a child.

Within a year of graduation, my character would become pregnant without knowing for sure which of her boyfriends was the father. She would choose not to terminate the pregnancy, not only for religious reasons but because she really, really wanted to have a child—someone to give her the love she had never received from her parents.

She is eager to have her condition known—hoping at last her parents will treat her like an adult—and simultaneously fearful of their reaction. She especially fears her mother will be shocked that she can’t even name the father and will call her a slut.

My character is a naturally slim girl, but oddly she doesn’t begin to show for over seven months—or at least she’s able to hide her condition in loose-fitting clothes until then. This despite living in a house with a nurse, her mother.  Even after her bulging belly is obvious, her mother and father both seem oblivious to the situation.

Not until the family attends an in-law’s wedding does the truth begin to come out. An uncle notices that she’s pregnant. He confronts my character’s father, who argues heatedly against the idea that his daughter is pregnant. Oddly, for several weeks after that he doesn’t even inquire of her who the father is.

My character loses her job at the amusement park at some point during her pregnancy, but doesn’t tell her parents. She’s too ashamed. Again, though, they are oddly oblivious of what is going on in their daughter’s life and fail to notice that she no longer has a pay check or that their own checking accounts begin to diminish mysteriously. Checks are cashed in her mother’s name, but—apparently—the mother never bothers to balance her checkbook and so never notices.

When my character finally begins to see an obstetrician for prenatal care, her mother always goes with her. When an ultra-sound is scheduled to determine the child’s sex, both parents go into the examination room with her, and her father—while a bit disappointed it isn’t a boy—is nonetheless thrilled soon to be a grandfather, or so he later claims. Of course, he still doesn’t know who the child’s other grandfather will be, but that’s irrelevant to the family, for some mysterious reason.

My character finally gives birth—but even in the delivery room she isn’t permitted to do the work on her own. Both her mother and her father are there with her. That means she has to endure childbirth while carefully watching her tongue. She can’t shout curses at the man who did this to her—perhaps because she might blurt out that she blames her father.

When the beautiful baby girl is born she is named Caylee, a combination of my character’s name (Casey) and her brother’s name (Lee). In other words, the grandparents name the child, not my character—and they name her the same thing they named their own two children. It’s creepy. It’s almost as if they believe Caylee IS one of their children.

The grandparents dote on Caylee. They buy her everything she could desire—a playhouse, for instance. When they are at home—which isn’t often—they spend all their time with the child. The mother even sleeps with her.

My character becomes dejected. Her hopes have been dashed. Her parents didn’t suddenly treat her like an adult when she became a mother. Instead they called her a “bad mother” and took complete charge of the child’s life.

All my character can think about now is how to escape from her parent’s house with her child. She desperately desires a life of her own.

Taking care of an infant is time-consuming, and she enjoys every minute of it. She breast-feeds the child—one of the few things her mother can’t do for her.

At some point my character decides to find a job outside the home. Her parents later imply that she did so only because they told her she needed a job to support her child. In reality she wants a job more than they want her to have one—a job that will be her ticket to a real life.

So she tries to get the amusement-park job back, but she fails. After that she’s at something of a loss. She doesn’t have any real people skills to speak of or many practical skills either. Her whole life, the only way she had related to people outside her family was to be a chameleon: she took on the personality of the person she was with at any given time. The problem is that it’s impossible to do that when the person you’re with is a stranger, such as a prospective employer.

Let’s just say she doesn’t interview for jobs well. Prospective employers sense that she’s lying about her qualifications.

When my character fails to find a job, her parents don’t notice—or at least they turn a blind eye for months and months.

Eventually my character gives up looking for a job and instead makes up an elaborate fantasy life in which she’s an event planner for an amusement park and part-time salesperson at Sports Authority. She leaves home every day for “work” and takes her child to an imaginary nanny—to fool her parents. She hopes that this fictitious life will magically transform her in their eyes. Now, she thinks, they’ll have to respect me.

Her family is suspicious, though. They don’t think my character is really a capable person. They don’t trust her—for reasons we can only guess at. Why should parents be suspicious of the behavior of a child the outside world has always seen as bright, popular, and attractive? It isn’t as if my character had a troubled adolescence, was using drugs and alcohol, or got into trouble with the law. In fact, she always went out of her way to be well-liked by teachers and peers alike.

From the beginning, the parents question my character about how she could have found a nanny whose services she can afford. They even spy on her at the sports-equipment store and learn that she does not work there and never has. Afterwards, though, they don’t confront her with the fact.

Finally, in the spring of 2008 my character decides to make a break with her family. She begins spending the night with friends, helping them with their housework, and even contributing to their work-related projects. She and her daughter effectively move out of the parent’s home, visiting only occasionally, for instance, to let the child play in the swimming pool.

My character’s mother can’t abide this. She can’t stand it that her daughter has custodial rights over the child. She threatens to take her to court to take the child away, if she doesn’t bring the child home. Later, at the trial, her friends will testify that her mother often called her on her cell phone; my character always took the calls outside their hearing, but afterwards she told them that she was arguing with her mother.

Despite what the mother and father may think, my character has no intention of going home or of abandoning her child to her mother. Why? Because in May 2008 she believes she has found a man capable of taking care of the both of them. She’s thinking about getting married.

Then the unimaginable happens. The child dies.

I haven’t decided yet how the child dies—except it isn’t first-degree, premeditated, intentional murder. That is the absolutely last thing my character would ever do. The child is the only thing that validates her.

Fast Forward—Trial Testimony

My character’s parents both testify for the prosecution in their daughter’s murder trial. Her mother claims she last saw Caylee around June 6th or 7th. Her father claims he last saw Caylee on the morning of June 16, a Monday. At that time Caylee told him she was going to the house of the imaginary nanny.

No one explains to the jury why the mother last saw the child ten days earlier than the father did. No one asks the mother why she didn’t make an effort to see her granddaughter during that period.

At one point, it seems to the jury, the mother or father or someone mentioned a pool party in the back yard on the afternoon or evening of June 15, after which a ladder up to the above-ground pool was accidentally left out. And then there’s the odd circumstance of cadaver dogs alerting to an area in the back yard. The jury is confused.

On the stand, my character’s mother says she spoke to my character late in the afternoon of June 16, the day the defense agrees the child died; she claims my character was taking Caylee to spend the night at the nanny’s and that she would likely spend the night there with her, too. The mother claims that, under the circumstances of her and her husband’s schedules, that made sense to her—even though in past months she had repeatedly argued with my character about the way she’s sleeping around and the way she’s keeping the child away from home.

During the mother’s testimony the prosecution plays 911 recordings in which she tells the 911 operator that she wants my character to be arrested for stealing money from her bank account and for stealing her car. In another recording, she tells the operator that her daughter’s car smells like there was a dead body in it and she can’t find her granddaughter.

My character’s brother testifies that around the time of these 911 calls the mother demanded of my character, “What have you done?”

The father’s testimony is equally bizarre. He didn’t know anything was amiss with his daughter—despite all the forewarnings he’d had. He claims he spent time with Caylee “every day of her life”—when he obviously could not have: he had walked out on his wife and family for a period of time, he worked long and irregular hours as a security guard, and his daughter had often slept away from home and kept her child with her.

It’s obvious that these people disbelieved most of what my character told them, at least since the birth of their granddaughter. Nonetheless, they claim at the trial that they had believed the nanny really existed and that their daughter was paying for her out of wages from two jobs she did not have. In fact, they were so convinced this nanny existed that they spent months searching for her in hopes she would shed light on the fate of their granddaughter.

In testimony, my character’s mother told the jury she had been looking for the nanny from July 2008 until six weeks before her trial testimony in late May 2011. Is this credible?

Giving Away the Ending

If I were writing about a family like the Anthonys, I would trust my readers to figure out that something’s not right with characters like these—all of them, not only my character.

I’m not sure, though, which of my other characters would be the protagonist in this mystery. It would be nice if a prosecutor would catch these people in their lies, rather than blaming everything on my character. It would be even nicer if the detective in charge of the case had solved it before it made its way into court.

I’m not sure, now, that a defense attorney is going to be able to unravel the mystery.

Frankly, though, my feverish mystery-writer mind would never concoct two parents who would take the stand as witnesses for the prosecution in the capital murder trial of their own daughter.

I imagine that this weekend the Casey Anthony jurors badly needed to talk to somebody. Since they’re forbidden to do so, the religious individuals among them probably prayed a lot and the others started talking to themselves in the privacy of their hotel rooms.

At some point in a trial, I believe all jurors must be hit with reality. In most trials, that probably occurs during the defense case when they realize how flimsy the defense is. But not in this case. I bet that realization hit the jurors this weekend. At least it did for me.

In the Casey Anthony trial, defense attorney Jose Baez took a risk and provided an opening argument that the defendant had concealed the accidental death of her child and then lied to investigators because of a mental disorder caused by her father’s sexual abuse. It sounds plausible to me, even now. I believe that tactic made it possible for jurors to mentally counter-argue along with Baez during the prosecution’s case—until this weekend.

Being able to see the flaws in a State’s case is very reassuring to a  jury, who would usually prefer not to vote guilty in a serious felony trial. Most jurors understand that the State’s powers are almost limitless, and jury trials are among the few situations in which citizens are empowered to dispense justice.

I was a juror in such a case: the defendant was charged with sexual assault and kidnapping of a 13-year-old girl. From the very beginning I was frightened by these charges. I assumed the State must have solid evidence, but I hoped the defense would put up a good fight showing that the crime had not, in fact, been rape and kidnapping.

The defense attorney’s opening statement, like Jose Baez’s, claimed that something a bit less heinous had occurred: he said the defendant had gotten drunk celebrating an important life event, had spotted a girl who looked older than 13 whom he wanted to grab and kiss, and had pulled her aside, off a sidewalk, in broad daylight. It sounded plausible. It gave me hope I might be able to vote guilty to the lesser charges, but not the kidnapping charge.

It was a three-day trial. I went home the first night very unhappy to have been forced to serve on a criminal jury in the infamous Cook County Courthouse, once the busiest criminal courthouse in America. But by the second night, after I had heard most of the State’s case, I was what you might call “highly conflicted,” and I needed to talk to somebody about it.

Since I couldn’t tell my husband anything, I just cried. It was pretty clear by then that I was going to be put in a position of voting guilty on the sexual assault charges and—worst of all—I was going to have to vote not guilty on the kidnapping charges, which I believed meant I would need to have the courage of my convictions and be the lone holdout.

The second day of the trial was a turning point. The little girl testified, and even a year and a half after the incident she barely looked thirteen. The defense’s opening argument was obviously flawed.

On Saturday morning I listened to Anthony trial testimony live on my CNN iPhone app while I took care of chores. I had been disturbed by Medical Examiner Dr. G’s testimony on Friday (and not for the reasons you might suppose; I wondered why Baez had failed to ask her more questions about the meaning of “homicide” as a “manner of death”).  That was not the turning point in my thinking about the appropriate penalty for Casey Anthony’s crimes.

At that point, on Friday afternoon, I still thought Baez had a chance of convincing the jury during the defense case that Caylee Anthony drowned in the family pool, that George Anthony was responsible for the duct tape found on the remains, and that a utility meter reader had somehow obtained the remains and eventually dumped them in a wooded area near the Anthony home in order to claim a reward.

But everything had changed for me by Saturday morning when the criminalists testified about collecting evidence from the Anthony home in December, 2008. A photograph of heart-shaped stickers was introduced into evidence, stickers shaped like the heart-shaped imprint on the duct tape.

Before that, a forensic entomologist Dr. Neal Haskell had testified about the flies found in the white “trash” bag, in the trunk of the car, and associated with the remains in the woods. While I think his work may have been a bit flawed (opening a few doors for the defense to contradict it), one thing he said made sense to me, namely, that the remains had to have been in the woods for many weeks, if not months. In other words, if a meter reader did leave the remains in the woods, he had to have done so many weeks, if not months, before December 11, 2008.

I don’t believe that any juror at this point can imagine a narrative in which Casey Anthony isn’t responsible for disposing of her daughter’s remains callously. The jurors this weekend had to have been wanting desperately to talk to somebody and praying they weren’t going to have to convict her of capital murder.

I can, however, envision a narrative in which Casey Anthony disposed of the body in this way in order to shift the blame for what happened to her child (even accidental death) to the phantom nanny, “Zanny.” Technically, I suppose, this would be the crime of lying to investigators (with which she is charged).

Unfortunately, I don’t think the punishment for that charge is adequate for a person who lies about a complete stranger and does so with the intention of sending her to Death Row for kidnapping and child-murder. And I must admit that I now feel as if the only reason Casey would have concocted a lie about murder is that she was trying to avoid being found guilty of murder herself—not merely being afraid of neglect charges.

False accusations are a horror. In the Judeo-Christian tradition it is a sin: Thou shalt not bear false witness against thy neighbor. (I should point out that lying per se is not a sin. What’s a sin is calumny, lying in order to libel an innocent person.)

For the remainder of the State’s case in the Casey Anthony trial, I suspect there will be few jurors who are willing to give her the benefit of the doubt. When the defense case begins, Jose Baez will be in an untenable position, even worse than his current position. He will need to address his client’s staging of a brutal murder and blaming someone else—before he tries to rehabilitate her in the jury’s eyes, as the victim of a heinous crime, not the perpetrator. Maybe he’ll even need to get his client to tell him the truth, the whole truth, and nothing but the truth at last.

But I am not a lawyer.

Or so says an In Session commentator about the lines of restless public citizens waiting to be given a seat in the Casey Anthony trial courtroom.

Mobs are always blood-thirsty. There’s an endless supply of Madam Defarges knitting in the gallery and shouting their verdict of “Guillotine!”

Apparently lawyers and police officers are as heartless as the common mob, if the In Session commentators are representative of them. According to lawyer Casey Jordan on In Session, Casey Anthony’s tears are unbelievable. Viewers of the show are supposedly making remarks about the amazing, eternally dry tissue Casey Anthony holds and the indelible mascara she supposedly wears.

Well , I watched portions of the trial yesterday and this morning on a 50-inch, plasma, HD monitor, and I have no doubt Casey Anthony’s tears are real. She doesn’t seem to need mascara to look good. Her nose is bright red, her eyes are red, she has red splotches on her face and neck. She often quivers. This is a woman on the edge.

Saying that, I don’t pretend to know what is going through Casey Anthony’s mind to cause this near-panic state. She could be terrified that the medical examiners’ testimony is condemning her to death, but it’s absurd for anyone to claim her tears are not genuine.

I’m also disgusted by the suggestion that the jurors will think Casey Anthony’s behavior in court is fake. I suppose lawyers and police officers always believe a defendant’s behavior is suspect; I guess they would prefer that the defendant not be present in the courtroom where he or she can deceive the jury.

But having been a juror on a criminal jury—a jury of 12 people who were neither lawyers nor police officers—jurors do not care how the defendant behaves. They don’t even care if the defendant “decides not to be present in court,” as was the case in “my” trial. They may care during a penalty-phase trial, but all a juror worries about during a criminal trial is whether or not the prosecution has proved its case so she can vote guilty in good conscience.

Jurors know they must not decide whether or not the defendant proves her innocence or—as in the Anthony trial—whether or not she proves her father molested her. If, by the end of the prosecution’s case the jury isn’t entirely convinced of Casey Anthony’s guilt they may hope to hear testimony and see evidence that actually contradicts the prosecution’s case so that they can feel more certain, but they won’t expect Casey Anthony to prove she did not murder her child in cold blood. At most they will find her guilty of manslaughter.

Mobs are cruel and blood-thirsty. Jurors are not. Especially jurors in a courtroom over which presides a perspicacious, real-worldly judge, such as Judge Belvin Perry, Jr.

• Sidebar: Unbelievable! Somebody has bought the URL belvinperry.com. This is why everybody should own their own .com.

I haven’t been involved in the computer industry for several years, so I may not be apprised of the all the current buzz words, but yesterday a computer forensics expert (John Bradley) testified in the Casey Anthony trial about “decoding” a portion of the Firefox 2 search cache on the Anthony family’s computer in December 2009: “decoding” isn’t something I had ever heard a computer scientist or programmer (a.k.a. coder) talk about. So I did a Google search of my own to try to “decode” the man’s testimony. What I learned has—once again—troubled me about the way computer-search information is used in American courtrooms.

An April 13, 2011, story by Adam Long of CFNews13.com explains that two Orlando police officers attempted in the summer of 2008 to extract search information from the Anthony family computer using a product called CacheBack (designed by Bradley) and failed. When Sgt. Kevin Stegner met Bradley at a 2009 conference in Orlando, he asked for Bradley’s help. (It sounds to me—this is just a hunch—that Stegner didn’t understand that he could have demanded Bradley’s help in 2008, since Bradley’s product was not performing as advertised. I understand there’s at least one computer-industry professional on the jury who is likely to realize this, too.)

In any case, as Bradley stated in a 2010 deposition, he gladly worked late into the night for three nights on the problem. He resolved the issue and now calls that effort “decoding” the search database. IMHO as a former computer programmer of sorts, what he did was debug CacheBack’s inability to extract search strings from the Firefox 2 data written to the cache on the Anthony hard drive.

Jose Baez yesterday attempted to impeach Bradley by implying to the jury that the bug was in the reported data, rather than the program. He also pointed out Bradley had a strong financial interest in being able to satisfy the Orlando police department about the quality of the product he had sold them. This first implication is misleading. Nothing I read in the deposition suggested that the report contained errors, but the second implication does resonate with me.

Why? Because the police told Bradley what results they were seeking from his efforts and why. That’s right. You read that correctly. The police told Bradley they wanted to find search strings involving “chloroform” because they were investigating the Casey Anthony case.

Surely I don’t have to tell anyone that it isn’t “scientific” to specify the results of an experiment before you conduct the experiment.

No wonder Jose Baez asked at least one prospective juror if he understood why you can’t prove a negative. The Casey Anthony jury is being presented with a situation where Casey Anthony has to prove that 1) she did not run a search on “chloroform” on her family’s computer and 2) even if she did she was not searching for “how to make chloroform” because she wanted to make and use chloroform on her child.

That’s having to prove a negative.

Bradley didn’t “decode” all the search engine data on the computer, by his own admission. He did not look at data from several other browsers that were present on the computer. He did not work on the issue of whether the computer had several “users” with separate passwords. He did not look for any string of characters other than “chloroform,” so he did not turn up any search results that might have supported Casey Anthony’s contentions about how Caylee died.

Very, very bad use of computer forensics. I’m disgusted.

Today for the first time I can recall, In Session commentators admitted that they were inclined to agree with the Casey Anthony defense that it was hard to reconcile testimony and evidence in the prosecution’s case with the prosecution’s murder theory. Several lawyers debated each other on the meaning of the cadaver-dog “alerts” in the Anthony back yard, as well as the meaning of the chloroform evidence.

One lawyer commented that the jury was likely to debate these issues in deliberations, that jurors were bound to want to make sense of the evidence. I agree. In my personal experience on a criminal jury, several jurors talked at length about what had happened and how the victims must have felt at each moment—over and over again, as if telling a story.

Sidebar: The most talkative juror also forbade me from telling a story that I wanted to tell, having to do with the supposed English-language confession of a Hispanic defendant, which was written down for him by an assistant state’s attorney at 2:00 a.m.—but that is literally another story. Well, maybe not. It is possible that the Anthony jurors may be dominated by one juror who refuses to listen to anyone else.

The lawyers’ remarks reminded me of Dr. Sunwolf, Professor of Communications at Santa Clara University, who has written extensively about “the way jurors talk.” In her book, Jury Thinking, she discusses her research into the story-telling efforts of jurors during deliberations.

As a rhetorician myself (not a communicator) I also believe that the narrative both sides presents to a jury is critical to winning them over. Narrative is essential for making sense of otherwise random-seeming facts.

In the Anthony case, so far the prosecution really hasn’t presented a coherent narrative through its witnesses and evidence. Too much of what they have presented tells the jury nothing much beyond the fact that the defendant lived a strange life, told lies, and then drove around for a month with the smell of death in her car. The chloroform evidence (including today’s computer forensic analysis) adds little to this: it led the In Session commentators to suggest that Casey Anthony used chloroform to sedate Caylee in the car while she partied. (That sounds right to me, too. And it doesn’t necessarily mean that Caylee died of chloroform intoxication.)

On the other side of the case, though, Jose Baez presented a credible narrative in his opening statement, little of which has been definitely contradicted by the State’s evidence. Furthermore, Baez has done one of the best cross-examinations I have ever seen (IMHO, and I am not a lawyer)—despite his apparent deficit of courtroom experience. He avoids legalese. He says what many of the jurors are surely thinking about each witness’s testimony. He finds alternative explanations for the evidence. And he has already told the jury that Casey Anthony concealed her daughter’s death for a month and lied to police.

In trials in ancient Greece, presentation of a narrative was recognized as key to successful argument. Both sides hired rhetoricians/orators to present their case. In fact, the meaning of the Latin-origin word “forensic” is “rhetorical” or “of the public forum.”

Of course, in Greece if the prosecutor lost the debate, he had to pay damages to the person he had accused falsely.

A society is in serious trouble when an expert witness is permitted to testify about divining rods, and then the news media tells the public that the expert’s testimony was equivalent to the first introduction of DNA evidence.

I am so shocked by media coverage of Monday’s testimony by Dr. A. Vass in the Casey Anthony trial that I’m almost blog-less. I don’t know what to write.

I can only assume the reason I know about divining rods is that I’m actually educated, and that makes me rare in America. 

Yesterday when Dr. Vass said he used divining rods and taught a class in their use, my jaw dropped. I thought it was a defining moment. I thought everyone in the courtroom must be as shocked as I was. But apparently not.

I now wonder about Oak Ridge National Laboratories hiring policies. I’m shocked that my tax dollars are going to Dr. Vass’s “research” into the odors of decomposition. In theory he is attempting to develop a device to assist cadaver dogs in finding clandestine graves, which sounds like a good idea—but I hope the device isn’t going to include a divining rod. Worse yet, I can’t imagine how such a device could work. Is it a small, hand-held gas chromatograph—mass spectrometer? Is he an engineer of scientific instruments? Why are other gas chromatograph—mass spectrometers so big? BTW: Just because you file a patent application doesn’t mean you have really invented anything; and even if the Patent Office grants you a patent it doesn’t mean your invention really works.

What is a “divining rod”?

It is an ancient, magical object—as magical as a wizard’s wand.  It is a Y-shaped object that a conjurer holds by the top of the Y and points at the ground. As the conjurer walks across ground he waits for the divining rod to quiver, which tells him that something he’s looking for is buried there.

I kid you not. Once I was touring the stone circles in England (Stonehenge and others) and the tour guide pulled out a divining wand and “taught” me to use it to find magnetized rocks in the dirt. I walked around like a fool for awhile because I was on vacation and had nothing better to do. The rod never quivered for me—because I’m not a witch, no matter what some people may think.

America In Jeopardy

Most of the Anthony trial jurors are younger than I am, so I now must assume they are as ignorant as people like “Judge” Jeanine Pirro, whom last night I heard extol Dr. Vassa’s testimony.

It is beginning to look to me as if Casey Anthony will be convicted by a jury that probably learned all it knows about science from what it read in the Harry Potter books.

--- and I don’t mean the trunk of Casey Anthony’s car.

I’m sorry Judge Perry, but I think you made a mistake by admitting the testimony of Dr. Vass into the Casey Anthony trial.

There appears to be absolutely no way for the defense to assess the results of the tests Vass ran and the conclusions Vass reached, because no one other than Vass has access to the database he uses in his research, including the defense. That means the defense can’t even hire an expert to express an opinion about his conclusions.

Worse yet, Vass’s tests were qualitative rather than quantitative, but nonetheless he expressed opinions about the quantity of certain chemicals in the air sample as compared to other chemicals.

Until I heard the Vass believes in divining rods, the biggest shock in the cross-examination is learning that Vass isn’t a chemist, even though he is testifying about chemicals. He’s a forensic anthropologist. That’s a scientist who studies human remains. But he didn’t test human remains in this case: he tested the gases that were emanating from some pieces of carpeting.

Yes, you read that correctly: Vass believes in divining rods! That means that I was right—the prosecution is presenting superstition as scientific evidence.

If I were able to cross-examine Dr. Arpad Vass I would ask only a few questions. But I’m not a lawyer, just a struggling mystery writer. Here’s how I might write a courtroom drama in which Dr. Vass presented his first-ever expert testimony in a murder trial:

Me: Good day, Dr. Vass. I have only a few questions for you. First, do you adhere to the scientific method in your research?

Vass: Certainly.

Me: Please explain to the jury what the scientific method is.

Vass: Gladly. First a scientist makes an observation of something, such as the fact that decomposing human flesh emits an odor, a gas. Next the scientist poses a question about the phenomenon, such as “Is the gas unique and therefore identifiable?” Then the scientist forms a hypothesis, such as “The composition of the gas emitted by decomposing flesh is unique to itself and can be distinguished from other gases and therefore other odors.” Next the scientist performs experiments from which he collects data and then organizes the data meaningfully. The next step is to interpret the data. Next the scientist refines the original hypothesis and repeats the remaining steps until he is certain his hypothesis is correct. In the world of science, he publishes his findings and permits the scientific community to replicate his experiments. Over time, the hypothesis either becomes generally accepted or is disproven.”

Me: And how many times has the scientific community at large replicated your experiments?

Vass: None. I am the only scientist engaged in this research.

Me: So, that must mean your hypothesis has never been disproven.

Vass: That is correct.

Me: And it also must mean your research has never been replicated and is, therefore, not generally accepted.

Vass: Technically, that is correct, but I have published articles about it in peer-reviewed journals and my work is respected.

Me: Of course. You wouldn’t be employed at such a well-respected laboratory if not. But “technically” is what your testimony is all about. Technically your hypothesis that the odor of human decomposition is unique, identifiable, and also dependent upon the length of time the body has been rotting isn’t generally accepted science, is it?

Vass: Not yet.

In the Casey Anthony trial Judge Belvin Perry, Jr., has ruled that the use of gas chromatography—mass spectrometry to analyze the foul odors in the trunk of Casey Anthony’s car is established science and can be admitted into evidence.

And he is right. Right about that, but not about Dr. Arpad Vass’s use of these techniques to draw conclusions about how advanced the decomposition of a human body is based on the mix of gases found in an air sample. His technique relies on a database he collected himself through the use of gas chromatography—mass spectrometry. There are no other scientists attempting to develop a database of the gases emitted by decomposing human flesh, so there is no independent verification of his conclusions.

And multiple independent research studies must be conducted to confirm any scientific theory. That’s what the scientific method is all about.

This is exactly the sort of “science” the Supreme Court ruled inadmissible in the Daubert decision. Vass’s technique and theory are not widely accepted in the scientific community. The doctor himself may be well respected, but that isn’t the same as saying his research is established science. A single database is incapable of being “generally accepted,” by definition.

This trial is my candidate for the worst use of forensics in history. The prosecution is trying to dazzle the jury with “science” instead of presenting solid evidence that Casey Anthony intentionally murdered her child. Even if Dr. Vass can “prove” the smell in her car trunk came from a rotting body, it still doesn’t prove she put the body there or that she killed her child.

That’s how they used to test witches: if they floated it was witchcraft; if they sunk they were innocent.

On Saturday morning superstition was entered into the trial of Casey Anthony as evidence. Her attorney, Jose Baez, tried to explain to Judge Belvin Perry that “hair banding” isn’t science, but failed. Baez apparently isn’t a very experienced trial attorney and was unable to find legal precedents for his objection to the evidence, but he was right in everything he said.

I’m not a lawyer and certainly not a scientist, but I understand how legal  precedents work (or, as is usually the case, do not) and I also understand the scientific method. There’s very little science in most so-called “forensic science.”

What I am is an expert in reading English language texts, which apparently none of the lawyers in the Anthony courtroom are, or they would have understood the following passage in the National Academy of Sciences report titled “Strengthening Forensic Science in the United States”:

“In cases where there seems to be a morphological match [between hairs] (based on microscopic examination) it must be confirmed using mtDNA analysis; microscopic studies alone are of limited probative value. The committee found no scientific support for the use of hair comparisons for individualization in the absence of nuclear DNA. Microscopy and mtDNA analysis can be used in tandem and may add to one another’s value for classifying a common source, but no studies have been performed specifically to quantify the reliability of their joint use.”

Hair Bands (not the accessory)

On Saturday I witnessed one of the least scientific, most superstitious presentations it is possible for a prosecutor to make: the State introduced an FBI hair-and-fiber examiner to confuse the jury with a nine-inch-long hair that may or may not have been the victim’s and may or may not have exhibited a phenomenon known as “hair banding”—and without even  presenting a photograph to show the jury what the hair really looked like.

Hair banding is nothing more than a discoloration of a human hair near the root. It only appears in some hairs, not all. No one knows what the chemical reaction is that causes the discoloration. Hair banding has occasionally been found in hairs taken from a decomposing human body. When a hair from a decomposing body displays this discoloration, it may or may not be the only hair from that body that displays this characteristic. The hair may or may not still be in its follicle when the banding occurs; the hair may or may not have been pulled out of the body when it occurs; the hair may or may not have fallen out of the body when it occurs. Hair banding “usually” occurs 2 to 4 days after death, according to less than 5 research studies—if it occurs at all.

The FBI witness said she had heard of a banded hair being observed 8 hours after death. She did not tell the jury what the longest time after death she had heard about in which hair banding had occurred—so for all we know it could be weeks or months later, nor do we know yet whether Caylee Anthony’s remains included any banded hairs. Or any hairs at all, for that matter.

And, if I’m not mistaken, the FBI expert said that the lone hair in question was the first hair she had ever examined when she did not know what body it had come from. In other words, all the other banded hairs she examined were plucked from or had fallen from a KNOWN DEAD BODY!

Let me be clear about this: the FBI expert had previously expressed an opinion about hair-banding only when she knew for a fact whose body it had come from.

She has only used banded hairs for purposes other than to claim a specific dead body had been in a specific location. (In other words, she had never used hair analysis to identify a dead body.) The Anthony case is the first time she ever did what she did.

In the Anthony case, a hair found in a specific place is suspected of coming from a dead body, but the FBI expert can’t tell which dead body it came from. The prosecution doesn’t know whose dead body it came from. It’s a hair that looks similar to hairs found in Caylee’s hair brush. But the FBI expert has always before studied hairs from known corpses in the custody of the authorities. (In fact, Baez tried to introduce testimony about a case in which another FBI expert mis-identified a banded hair using this same faulty methodology, which resulted in a false conviction, but the judge didn’t seem to understand this, and Baez wasn’t able to make it clear.)

Sidebar: Much as I admire Judge Perry, several times in this trial I have observed him to mistake scientific instrumentation for scientific method. (More about that later.)

There is no scientific data about such discoloration occurring in hairs pulled or fallen from living human bodies. You heard me right: no scientist, forensic or biologist, has ever researched the possibility of living people shedding hairs which subsequently display hair banding. None. No “peer-reviewed journal articles.” Given the gazillion hairs out there today on Planet Earth, the odds are, folks, that a living person’s hair has at some time discolored once it left its nurturing, little follicle.

The fact is, forensic science does not know whether hair banding is a phenomenon exclusive to human decomposition or not.  They cannot say whether hair banding occurs in all mammals. And until they figure out what the chemical process is that causes hair banding, they cannot even say whether it is a real process or just a random event—and random events do occur in nature.

But don’t confuse the FBI alchemists with logic.

The discoloration of that nine-inch hair, which forensic “scientists” call “hair banding,” is actually the least of the logical fallacies I heard presented by the FBI expert and the prosecutors during Saturday morning’s testimony, but in this blog I want to focus on it, because Baez raised issues taken from the above National Academy of Sciences report on the failings of forensic science and its misuse in court. This report should be studied by every criminal court judge and every trial lawyer.

In 2009 the National Academy of Sciences (which is something like a standards board for the scientific method) issued a report warning the justice system in this country of abuses of forensic science as evidence in trials. The report stressed the value of DNA evidence, when properly used, and the fallaciousness of many other forms of forensic evidence, especially “hair and fiber” evidence, for which there are no analysis tools. (Using a microscope to peer at a hair is not an analysis tool; it is a tool of art and craft; its value is entirely dependent on the skill of the observer. Real scientific instrumentation does the job itself and prints out a report—I’m also an expert on this because I was once an editor for The Astrophysical Journal.)

In other words, hairs and fibers can be chemically analyzed, but all that such chemical analyses will tell an investigator is that a hair is a human hair and a fiber is a fiber of one type or another. No scientific analysis can tell a jury that a given hair came from a given person unless the hair root contains nuclear DNA. Mitochondrial DNA (mtDNA) can be used to tell whether the hair came from a person with a specific matrilineal ancestry. In a case such as the Anthony case, a hair root might be able tell whether or not the hair came from Caylee, Casey, or Cindy, or even Cindy’s mother, but not which one of them it came from. Logically, though, if the hair had been colored or chemically treated, that would rule out Caylee, but not the adult women.

But the nine-inch hair did not have sufficient root present to contain any DNA—therefore, there is no scientific way to prove it came from the victim in this case.

It ought not to have been used as evidence before the jury, if you understand the NAS report.

By now it should be obvious that I don’t believe there’s sufficient evidence to convict Casey Anthony of murder. However, from listening to the jury voir dire in this case I also don’t think there’s anyone on the jury who will understand how bogus this hair banding evidence is. Nurses are not scientists, although they probably think they are. At this point, the defense has to hope that someone on the jury will understand all the other illogical assumptions the prosecution is making about this lone hair among all the other hairs found in the Anthony car and about the car itself. (There’s at least another blog to be written about those absurdities, too.)

Reread the above statement taken from page 161 of the NAS report: There is no scientific literature (peer- reviewed journal articles) that says it is possible to identify a person using a lone hair without so much as mtDNA. Let me make this even clearer: no scientist would bother to use a microscope to compare hairs if he or she did not also have DNA samples for confirmation.

Yet the Anthony jury heard testimony that such a hair was consistent with Caylee’s hair and could not be ruled out as possibly being Caylee’s hair—that’s identification, folks.

If were Jose Baez, the first witness I would call in the defense case would be a member of the National Academy of Sciences whose expertise is in the scientific method.

Most of us want to be told lovely lies. The truth is rarely as lovely as lies. All her life Casey Anthony told people lies they wanted to believe, so she got away with it. Then one day she told someone lies that he didn’t want to hear, a detective named Yuri Melich—and Casey’s fantasy world evaporated.

What are the jurors thinking about all these lies?

In my humble opinion as a former juror, they are thinking one of two things: 1) I’ve never heard of such a scheming liar, or 2) she reminds me of fill-in-the-blank-with-the-name-of-the-person-who-betrayed-you-the-most-cruelly.

In my case, Casey reminds me of No. 2, and I bet there’s at least one female juror who’s thinking the same thing as I am.

From testimony and evidence presented in the Orlando courtroom over the past two weeks, it’s clear that Casey Anthony was a genius at lying. She persuaded dozens if not hundreds of people that she was a super girl, a super mom, a super lover. She was well-liked in high school, made life-long friends, and was loved by many people, too.

But Casey seems to have felt she could only win and keep their admiration and love by lying about who she really was.

When did the lies start? Jose Baez says they started when she was eight. Funny, but that’s roughly the age when my No. 2 seems to have started lying and manipulating, too. Baez’s suggestion rings true with me.

Sidebar: It just occurred to me that I often write about incest as a motive for murder (The Juror Hangs). It isn’t because I have any personal experience with incest, only that I’ve sensed some unhealthy relationships in others. Once as a college teacher a student wrote an essay justifying incest and then confided in me about his own experience. And many of the high-profile murder trials I’ve followed seem to have an unhealthy sexual element as well. I guess I have to admit that I believe childhood abuse and molestation leads to lifelong mental disorders, which often end violently.

Even if the Casey Anthony jurors are withholding judgment about whether or not she lied from the age of eight, they have to ask themselves, why did Casey feel she had to lie so much as an adult? Why did Casey tell her family she had a nanny named “Zanny” to whom she took Caylee when she left home to spend the night with friends, but instead she took Caylee with her to the friends’ homes and slept with Caylee in the same bed as her friends?

Did something change in May, 2008?

Because the prosecution’s case begins in May, I assume something changed for Casey and Caylee at that time. Until then, according to her parents, she left Caylee at home to sleep in Cindy Anthony’s bed (or she in Caylee’s) whenever she went out with friends.

But, no, that isn’t exactly what George Anthony testified. I believe I heard him say that Zanny the nanny was a fact of Caylee’s life in the first half of 2008, too. Although he also said he spent time with Caylee every single day of her life—well, almost. No, every single day.

Strange Lives, Messy Lives

I’ve probably not lived an entirely normal life—why would a normal person want to write murder mysteries? Unfortunately I have known several Casey Anthony’s. Most were female. A few were male.

Liars are almost like people with multiple personalities (ever see the old flick “Three Faces of Eve”?). Totally compartmentalized. More than one personality living in one skull. The lies they tell create multiple realities—multiple “worlds” as Jose Baez calls Casey’s.

I believe they also recognize each other. And that’s fundamental to their success. They’re almost a secret society. Only honest people can’t see them for what they really are until it’s too late to do anything about it—they’ve already trapped you in their web, and it’s very difficult to back out.

Jailhouse Videos

Sidebar: First, I have to say that Florida’s “sunshine” laws, which gave the jailhouse videos to the press even before they appeared in court, are absurd. This practice must be abolished. It is my hope that Judge Perry will one day communicate in some way to the Florida Supreme Court that the videos played yesterday in the Casey Anthony trial were entirely prejudicial, with absolutely no probative content. Everyone who appeared on camera knew they were on camera and knew the entire conversation would be played on the nightly news. Everybody was “acting,” especially Casey Anthony. Unfortunately for her she didn’t play the right part—and now the prosecution is using her poor performance to condemn her. I hope the jury will take these videos for what they really are: a big nothing.

The bizarre jailhouse videos of her family quizzing Casey for “clues” about Caylee’s whereabouts show three people who are entirely different from the people who got on the stand to testify against her. In my opinion—non-legal, non-psychologist—it’s possible all of the Anthony’s are very good at compartmentalizing.

In those videos, Casey’s persona is clearly crumbling. She’s incompetent. Her lies barely work and she knows it. (Did you hear the gasps between her sobs. An odd sort of counterpoint. I’ve actually heard those same gasps in a telephone conversation with a woman who was also a liar and in very big trouble.)

In my opinion, that’s the essence of Casey Anthony: she’s a weak, scared, incompetent human being who one day discovered her child was dead—the child that had validated her, that had made her mother tolerate her for the first time, the child who was the first person who truly loved her.

Yuri Melich saw through her lies, but I don’t think he understood what she was all about. And I think that’s what Jose Baez was attempting to demonstrate in his cross-examination. Melich suspected Casey was lying from the beginning, he had ample evidence that her story was false, and he even seemed to egg her on in her lies. What was that trip to Universal Studios all about if it wasn’t an attempt to trap Casey in her lies?

Sidebar: And why didn’t he read her her Miranda rights from the beginning? This is a capital murder case and it was a possible kidnapping from the start. I thought that’s what Miranda warnings were all about. Everybody questioned in a criminal matter (which this clearly was from the beginning) must be read their rights, because the cops can’t assume anybody knows their rights or even knows how to speak English well enough to be interviewed.

I’m more convinced than ever that this trial should never have taken place. Casey Anthony is not a scheming murderer. A schemer, yes, but a murderer? So far the prosecution has proven only that her crimes were fairly petty: lying, cover-up, improper disposal of a body.

For some reason she felt she couldn’t live in her family’s house. She tried over and over to find a way out.

All Casey Anthony is is an incompetent human being who had control of a child and lost the child (whether through accident or neglect). She’s no Ted Bundy, even if the prosecution can prove that she committed pre-meditated murder.

This is a domestic tragedy, but it isn’t epic because it isn’t all that uncommon—messy and strange, but not uncommon.