Around the Blawgosphere: Bloggers Sound off on Casey Anthony Trial, Verdict, 'Caylee's Law' Proposal

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Many legal bloggers took time this week to post on the wind-up, verdict and aftermath of Casey Anthony’s murder trial. Many expressed a degree of satisfaction that the tone of the extensive media coverage of the case didn’t have an impact on the jurors’ decision to acquit the 25-year-old mother of Caylee Anthony of the most serious charges.

“Legal commentators are now stepping all over themselves to backtrack on their disgraceful commentary during the case and try to claim they are oh-so-pleased that the Constitution worked today,” Miami lawyer Brian Tannebaum wrote at Criminal Defense. “I hope someone will compile all the comments of the media throughout the case so that we can all watch the summary, and make it a required lesson in every journalism school in America.”

While jurors were deliberating, litigation consultant Matt McCusker expressed concern at Deliberations about what kinds of precedents might be set if Anthony were convicted because many of the forensic techniques utilized have been deemed inadmissible by prior courts. “A cause of death that cannot be determined by the State’s medical examiner, but can be asserted on the stand by an anthropologist who has never done an autopsy. The morphing of a projected child’s photo into a picture of her skull. The description of a colorless decompositional fluid (which is typically black). Air samples that contain ‘the smell of death.’ A phantom image of heart sticker that ‘disappeared’ before the examiner could return to photograph it.” A win based on those techniques would increase the chance of their being used in future trials.

At Sentencing Law and Policy, Ohio State University law professor Douglas Berman theorized that the prosecution’s decision to pursue the death penalty may have led the jury to believe that prosecutors had a “smoking gun” that they didn’t really have. “When no such smoking gun was presented by the prosecution, the jurors may have ultimately been much more willing (and perhaps even eager) to find reasonable doubt on all serious charges.” Berman felt his suspicions were confirmed by the first juror who spoke to the media, and notes her comments in a later post.

Marquette University law professor David R. Papke wrote at the Marquette University Law School Faculty Blog that he thought the “CSI effect” was at play, giving jurors unrealistic standards for forensic evidence. “I don’t know if Casey Anthony killed her daughter or not, but I am confident that primetime television drama helped her to walk.”

After the verdict was reached, a petition campaign launched, urging the creation of a federal “Caylee’s Law” that would make it a felony for a parent not to report a child’s death within an hour or report a child missing within 24 hours. At Simple Justice, New York City lawyer Scott Greenfield predicts that politicians are likely to support the law even though its existence wouldn’t have changed Caylee’s fate and it doesn’t offer much of a deterrent. “If a parent was inclined to murder her child, would fear of a prosecution under this law stop her? Would the sentence be death plus a year?”

CUNY School of Law professor Ruthann Robson writes at Constitutional Law Prof Blog that the petition “does not state a constitutional ground for Congress to exercise the power of enacting a general law.” Most criminal laws are within the province of states, but Congress has enacted some criminal laws by way of the commerce clause, including the Gun-Free School Zones Act of 1990, which criminalized gun possession in “school zones” and was ruled unconstitutional by the U.S. Supreme Court in 1995 because it didn’t cover an activity that “substantially affected” interstate commerce. “If possession of an article of commerce such as a gun was insufficient to support a commerce clause power in [U.S. v.] Lopez, it is difficult to see how a parent’s failure to report a missing child to local police authorities would ‘substantially affect’ commerce.

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