For the moment, please accept my definition of “petard” as a “weapon.” (The word has a rich etymology.)

Yesterday CNN’s InSession presented a nice survey of the “capital or otherwise infamous crimes” most likely to dominate legal news this year. At the head of the list was Casey Anthony.

I have no doubt that the Anthony case will be our next trial of the century, because Ms. Anthony is incredibly photogenic. Before being caught up in a sensational child murder, she appears to have realized this and to have tried to worm her way into the club scene in Florida and to have claimed some sort of entertainment-world connection by lying that she worked for Disneyworld or Universal. (It isn’t really worth being too precise, because Ms. Anthony had no visible means of support and no real connection to anything of substance.)

Now her good looks are being used to skewer her. It’s not only that the jail where she’s housed has the legal right to record her every move, it’s that in Florida a “sunshine law” permits the justice system to release all these tapes to the media, and as a result the entire country is forced to watch endless video of Ms. Anthony whining to her parents.

Courtroom Gambits

As I have said before, IMHO (and I am not a lawyer) the prosecution in a criminal trial no longer has the burden of proof. The burden has shifted to the defense because of so-called “scientific evidence,” which forces a jury to assume the truth of the accusation as a premise to be undermined by the defense.

Despite this obvious situation, courtroom rules remain unchanged. The prosecution speaks first and last.

A criminal trial is governed not by the U.S. Constitution and Bill of Rights; it’s governed by centuries’ old traditions, known as common law and “the rules of evidence.” The common law derives ultimately from principles established by the Greeks, the Romans, and medieval feudalism. The rules of evidence derive from a pre-modern understanding (or misunderstanding) of natural laws and processes.

Casey’s Case

The Bill of Rights: Casey Anthony’s name was a household word long before her daughter’s body was ever found, and it wasn’t because anyone believed her child had been kidnapped. She was convicted of murder in the media (without “due process”). She has not been indicted by a grand jury (“No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger”).

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The Supreme Court: Casey Anthony’s family has been scrutinized and vilified in the press despite liable and slander laws protecting people who are not public figures. She has been subjected to more adverse pretrial publicity than Dr. Sam Sheppard ever was.

The Burden of Proof of Innocence

Once the Anthony case goes to trial, it will be the defense’s burden both to prove that the prosecution’s case is severely flawed and to prove that Anthony is innocent of murder (they may have to admit child abuse and neglect). But she is not the first defendant who has had to overcome that burden. I believe most defendants have that problem.

Once in court, Anthony’s attorneys will have to be incredibly clever in the way they approach the jury—never mind their problems with the judge and the vindictive prosecutors. They have it in their power to make the jurors their allies or their enemies. And, IMHO (non-lawyer) the last defense they should use is “reasonable doubt.” (That’s the way to alienate the jury.)

To overcome a jury’s inclination to believe that the cops caught a bad guy and the state is prosecuting a bad guy, a defense must present:

• a complete and coherent story.

A Complete Story

Aristotle taught us what a complete story is: it is a story with a beginning, a middle, and an end. Until I started writing fiction, I didn’t really understand the wisdom of this incredibly simple statement.

• A beginning is “why” as well as “when.”
• A middle is “what happened next.”
• An end is “how” we got to this final place, the court.

A Coherent Story

Coherence comes from the “why,” the sequence of events, and the “how.”

Casey Anthony’s defense must tell a complete and coherent story to the jury—not to the prosecutor or the judge. The story must be both Casey’s story and her daughter’s story. They must present a substantial defense with at least one witness to contradict each prosecution witness. The defense must tell a believable story, even if the story doesn’t paint Ms. Anthony as a loving mother. (IMHO, it would be a big mistake to try to make her out to be sympathetic in any way.)

Yes, the defense must rigorously cross-examine every prosecution witness to plant the seeds of reasonable doubt in the jurors’ minds about the quality of the police investigation. And, yes, the defense case must put on expert witnesses to contradict all of the prosecution’s “forensic” evidence.

But in the end, what the jury is really going to want to know is: What was Casey Anthony doing in the 30 days before her mother called 911? 

The prosecution seems to be believe that what Ms. Anthony did was party, that she didn’t think anyone would notice that her child had vanished. But this is an incomplete and incoherent story in itself.

It’s almost impossible for this former juror to imagine that a young woman would be partying and expect no one to notice that her child had vanished. So, it should be possible for the defense to present a believable story, if they don’t cling to the arcane principles that guide most courtroom presentations these days.