The Casey Anthony trial and wrongful exonerations: how 'trial by media' cases diminish public confidence in the criminal justice system.

• Author: Battaglia, Nicholas A.
• Position: Revealing the Impact & Aftermath of Miscarriages of Justice

1. INTRODUCTION

   Even with the most protections as compared to any other criminal justice system in the world, (1) the American criminal justice system is still plagued by wrongful convictions more frequently than one may expect. (2) Without question, "[t]here is no worse error in American criminal justice than the wrongful prosecution, conviction, and incarceration of an innocent person...." (3) Judge Learned Hand acknowledged this in United States v. Garsson, when he famously proclaimed that "[o]ur procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream." (4) Currently, the United States is in the midst of what some scholars call an "Innocence Movement" focused on freeing those wrongfully incarcerated, educating the public, and lobbying for change. (5) Yet, this disdain for wrongful convictions is not new. Eighteenth-century philosopher Voltaire acknowledged that it is better to risk saving a guilty person than to condemn an innocent one. (6) Years later, William Blackstone echoed this when he infamously enunciated that "it is better that ten guilty persons escape than that one innocent suffer." (7)

   But sometimes when a guilty person--or one who the public perceives to be guilty--goes free, the public admonishes our criminal justice system for it. (8) The same is true when one who is perceived as innocent is incarcerated, or worse--executed. (9) For instance, take the trial of Casey Anthony. It generated a maelstrom of media which infected the public's perception with the biases from the sources reporting about it. (10) What is disconcerting is that the public's perception of justice is almost entirely shaped by the media, via the television. (11) This is because so "few individuals have direct experience with the system, [therefore] the overwhelming number of citizens get their knowledge of the courts and crime through the media." (12) Former New York Court of Appeals Chief Judge Judith S. Kaye concededly agrees that actual judges are undermined by the law portrayed on the television, such as Judge Judy, because "she is in their living rooms every single day. [The public] actually experience[s] her formidable personality. They know her because they see her." (13)

   This is a dangerous predicament. Particularly when the media converts the public into an "armchair jury" and such jury reaches a different verdict than the real jury because this shift in public perception has the potential to generate a negative stigma on the entire American criminal justice system. (14) And the Casey Anthony trial did just this. The majority of the public and media forcefully condemned Casey Anthony and were utterly flabbergasted when she was acquitted. In a sense, this created a "wrongful exoneration" of the defendant because the "armchair jury" had convicted her when the actual jury acquitted. Therefore, this "wrongful exoneration" created the perception that the criminal justice system is not working, it is too soft on crime, and there are incompetent participants in our system such as judges, prosecutors, defense attorneys, and jurors, even though Blackstone's ratio suggests otherwise.

   This article argues that the phenomenon of a "wrongful exoneration" is birthed primarily through a "trial by media," and imputes on our criminal justice system the same stigma that one would experience through another miscarriage of justice, such as a wrongful conviction. This is a new theory and advanced by this article in parallel to the problem of wrongful convictions. Moreover, this broader stigma is dangerous not only for the perception of the criminal justice system as a whole, but also for the individual jurors who are merely fulfilling their civic duty. Further, it jeopardizes the defendant's Sixth Amendment right to a fair trial. (15) Yet, the media still has an inherent right to cover the trial under the First Amendment, which would include obtaining the jurors' names.

   Therefore, this article also argues that there is the potential to detrimentally affect other participants in the criminal justice process, such as the jurors, and impute the same stigma that is placed upon defendants in the criminal justice system to the inarguably innocent participants. However, this article does not argue to keep the media and public out of the legal court system, nor that the wrongful convictions or exonerations should be cloaked from the public. It merely seeks to establish the existence of a stigma generated by a wrongful exoneration through the growing influence of high-profile criminal cases, resulting in the "trial by media" phenomena.

   To achieve this, Part II will evaluate the "trial by media" notion and how the Casey Anthony case illustrates the dangers which could result from aggressive media tactics. Part III discusses the stigma of actual injustice and perceived injustice in the criminal justice system generated by wrongful convictions and wrongful exonerations. Further, this section will manufacture a definition for a wrongful exoneration and highlight issues from the Casey Anthony case supporting that definition. Part IV addresses the inherent tension among the media's First Amendment right, a defendant's Sixth Amendment right, and a juror's right to privacy. Part V explains the "Innocence Movement" and how its ebb and flow contribute to the public's perception of miscarriages of justice; whether it is a wrongful conviction or a wrongful exoneration. This section also acknowledges that this contribution can have positive and negative impacts on the overall perception. Part VI serves as the conclusion.

2. "TRIAL BY MEDIA"

   Public relations has a lot to do with ... the litigation process. Whenever the outcome of that process, what happens in the media will affect [the parties] for the rest of their lives. I've had clients that have been so terribly smeared and killed in the media and never recovered from it, even though they were judged innocent or in a civil matter they won. (16) The media and litigation are so intimately intertwined, it would be impossible to separate the two at this point, at least within the parameters of the United States Constitution. The concept of a "trial by media" is a growing quandary and affects civil litigation (17) as much as criminal matters. It creates another level of hazard for attorneys, courts, jurors, and other parties who have to navigate through the criminal justice system. A "trial by media" is not a new concept by any means, (18) but has recently erupted and is currently escalating at an alarming rate. (19) Basically, this concept is that the media provides extensive coverage of a legal case through repeated news reports, analyst reports, and expert interviews. As a result, such coverage also has the potential to turn the public into an "armchair jury" who now acts as a second jury and decides another trial vicariously argued through the media.

   Since the information is provided by the media, there is a potential for a substantial bias. Particularly in criminal trials, this is significant because there is generally a strong pro-prosecution bias. (20) Notwithstanding a general lack of media support, a defense attorneys needs to find ways to counteract this effect, and to persuade the public in their favor or at least to protect the reputations of their clients. For instance, Chief Justice William H. Rehnquist stated that the defense attorney's job certainly continues outside of the courthouse because the attorney "cannot ignore the practical implications of a legal proceeding for the client.... [And] may take reasonable steps to defend a client's reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives." (21) Moreover, the Chief Justice continued by saying that "[a] defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried." (22) Therefore, to a degree, the Supreme Court has acknowledged the interplay of the media in litigation and essentially the notion of a "trial by media," but here appears to have endorsed its utility from a defense oriented point of view.

   Possibly the two all-time best known "trial by media" cases are the O.J. Simpson trial (23) and the JonBenet Ramsey murder trial. (24) Notably, a few years ago the Duke Lacrosse incident also sparked an intense swarm of media attention. (25) But the Duke case also provoked extreme backlash from critics:

   What happened to these young men was indubitably a travesty of justice, and there are important lessons to be drawn regarding how standard media routines and practices can undermine the presumption of innocence. However, these lessons do not support critiques that trace media derelictions to "liberal bias" or "political correctness." Nor should coverage as a whole be characterized as consistently slanted against the defendants. Just as it was unfair to jump to the conclusion that the prosecutor's emphatic insistence on the defendants' guilt meant they were guilty, so it is wrong to assess the media by relying on unsystematic impressions and inevitably flawed memories filtered through stereotypes of, and generalized dissatisfaction with, U.S. journalism. (26) More recently, the Casey Anthony case revitalized the controversy a "trial by media" can generate, especially when the "armchair jury" finds differently than the actual jury. The Casey Anthony case also highlights the tension between the First Amendment right of the media and the Sixth Amendment right of the defendant, while also needing to protect the privacy rights of the jurors.

   1. Casey Anthony Case Facts

      Purported as the "social media trial of the century," (27) the Casey Anthony case illustrates the passion and emotion that erupts when the public disagrees with the jury in a...