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.