Until now I’ve paid no attention to the Casey Anthony murder trial.
Two reasons. First, as a criminal trial it was outside my civil lawsuit purview. And second, I know too much about notorious murder trials. Seventeen years ago, when I was working for criminal defense lawyers, I had an intense inside view of two.
What I learned then is relevant, awfully relevant, to the Florida frenzy (out of the home of Mickey Mouse, yet!) that flooded the country.
Ergo, I find myself with something to say.
How it began. On October 9, 1993, I read a New York Times article on a conflict between residents and cops in Washington Heights that had lead to the death of a police officer and the arrest of a local resident.
The incident, as reported, looked simple, bad and bleak. During a confrontation between a group of young Dominicans and police, some guy had thrown a bucket off a roof; the bucket had killed a cop.
By that time I’d been working for a few years for criminal defense attorneys, palpating the hard edges of life with defense sensibilities. Yet I read this news with a knee-jerk, New York style Manicheanism – good or bad cop dead/scumbag or nutcase killed him.
As it happened, the lawyer I worked for, Peter Neufeld, wound up representing the defendant in that trial, and in another one that overlapped it. So I was behind the scenes for both cases.
Our clients were Pedro Gil and O.J. Simpson.
After both trials, I was so ashamed of myself – ashamed of how I’d gotten sucked into believing that media reportage about criminal trials bore any sort of significant relationship to the facts.
I’d temporarily forgotten my senior year at New Rochelle High School, our teacher Larry Fink and his Problems in American Democracy class which, along with English grammar, gave me the most powerful lesson I got in school: how to read newspapers.
How to read newspapers. In 1960, when six or seven daily newspapers were published in New York, Larry canvassed his students and assigned us to bring in the papers our families read each day so we’d have one of each daily newspaper in class. (My family, for instance, got the Times, the old labor-lefty New York Post and tripartite merger, The World-Telegram & Sun.)
Our class entered this project with the notion that a news story was factual while a paper’s political opinion was expressed on the op-ed pages. Every day in class for at least a week, we read out loud one news story as each paper reported it, compared each paper to the others, and then parsed the stories for news, for fact, for opinion.
We were shocked. Shocked. Out of one full lead paragraph – even from the generally respected Times – we gleaned perhaps a single, spare factual sentence. The rest of the paragraph was attitude. Sure, we expected this tendency from the Daily News, the Journal American, but … The Times? Political, personal, skewed, subjective, inflammatory. So-called news reporting, even eyewitness reporting, was part bullshit.
A great and timeless lesson: if you read a newspaper without mental redlining, you’re passively consenting to being brainwashed.
The Casey Anthony case. Because of the furor, I glanced at the media coverage and mob hysteria – what else would you call it? – and reactions to the verdict, and I ponder again what I learned from the O.J. Simpson case.
Why has nothing changed? The Daily News publishes, “For little Caylee, no justice,” printed just below an unusually repulsive cartoon from the reliably repulsive Bramhall, who of course linked Casey Anderson to O.J. Simpson.
I said nothing has changed? Well, actually, something has. The Times’s analytical piece about the verdict is entitled, “Watching a Trial on TV, Discussing It on Twitter.”
Remembering the O.J. Simpson case. A few years ago, I began a book about my wild working life, entitled If Nobody’s There, I’ll Speak to Anybody. Eventually I reached the legal work stage of my life, and of course O.J. Simpson.
I needed to recall the chronology and to remind myself about that “mountain of evidence” Marcia Clark had boasted about. So I went to my local library and spent some hours squinting at the small print in the 1994 and 1995 New York Times Index, under the category “Murder – Murders,” sub-cat “Simpson.”
I had a peculiar experience. As I made notes of the abstracts for each day’s Times story, I became retro-queasy about the case. Even though I now know not only the results but the rightness of the results, I was as disturbed by reading these excerpts as I was when reading and clipping the full pieces during the trial.
According to the 1994-95 Times coverage, the defense case seemed not to be going well. And since my clock radio was tuned to an all-news station, I was awakened every morning by the grating voice of Irene Cornell, CBS’s trial reporter, with her day’s review: “In another devastating blow to the defense…” and I’d flick the radio off.
“Devastating,” “stunning” and “blow” were the media’s default words, almost always applied to the defense. “Critical” and “disaster” also appeared, but once everyone got “devastating” going, they couldn’t back out of it.
I don’t think anybody got around to escalating up to “catastrophic,” “cataclysmic” or “apocalyptic,” but I’m fairly sure someone used and mispronounced “debacle,” at least once. Whatever the modifier, it was always followed by “blow,” or some similarly assaultive synonym.
You can understand why I was feeling a little shaky about that case, especially in the morning.
After February 1994, when the Gil trial concluded, Peter was in Los Angeles almost full time so I had no day-to-day insider knowledge about the Simpson trial. And even through my defense soul filter, it sounded as if the prosecution, which was then presenting its case, was hitting home runs while the defense was being creamed.
During Peter’s calls from L.A., I carefully said nothing about the coverage and my concomitant uneasiness. One day, though, I did ask him how things were going and when he said, “Fine,” as delicately as I could I broached the Times coverage of one recent trial development. “It reads as if it didn’t go too well.”
Peter snorted. “It’s going fine.” I knew Peter well enough to have picked up any spin in his voice. There wasn’t any; it was going well.
Lawyers are exquisitely conscious of jurors; they watch them scrupulously to weigh reactions, to observe who has registered or missed important points. It’s part of a trial lawyer’s credo during the prosecution’s case that a “good day” means a cross so successful that the evidence the witness brought into the box had been discredited – the jury was mentally throwing it out. A good lawyer knows when it’s happening, when he’s had a “good day.”
As an illustration, Peter told me about the previous “good day” in court with one particular witness. When he and Barry Scheck returned that evening to their hotel to re-hash that day’s work and prepare for the next day in court, they turned on the TV and watched, incredulous.
“What they were talking about had nothing whatsoever to do with what had gone on at the trial,” Peter told me. The media had missed the significant points, the points they knew the jury had grabbed. “If you’re reading the papers or watching this on TV, you don’t know what’s going on,” Peter said.
That’s how strongly all of us were influenced by the media to assume a guilty verdict. The unbalanced accounts, the eschatological vocabulary, the gotcha shtick of the Talking Lawyer Heads who TV’d everything into entertainment mush.
I heard that the trial cut drastically into the TV audience for soaps and afternoon talk shows. Nowadays I guess that the Casey Anthony case has become actual soap opera – filling in the programming gap left when “As the World Turns” finally folded in September 2010.
This is what Americans now use for entertainment? Hideous murders, deaths, families ripped into shreds. Defendants who claim they were innocent were convicted of the crimes by the media-sparked masses long before anyone went to trial.
In the Simpson case, it was the job of Deputy District Attorney Marcia Clark and her colleagues to present actual evidence that O.J. Simpson had committed those murders. It was the job of the defense team to question rigorously each piece of evidence and demonstrate any inadequacies.
That was it, the whole It and nothing but. An It the media apparently just didn’t get. They got almost nothing right.
Shortly after my conversation with Peter, David Margolick, who covered the trial for the Times, called our office, introduced himself. “Oh, I know who you are,” I said. “I read you every day.”
Indeed, I depended upon Margolick for trial news. Although a cable station was broadcasting the whole trial, I didn’t have cable at home and we weren’t on cable at the office. All we had in the office was an old TV with lousy reception.
One station aired a segment of the trial until 2 p.m. each day (on the office TV it appeared in fuzzy fuchsia, sort of like Monet’s water lily paintings before his cataracts were removed) but I was too busy to spend my workday mornings in front of TV and in any case the TV was in Brian O’Dwyer’s office (Brian, a well-known lawyer, was our landlord), inaccessible except when he wasn’t there.
(One of the many surrealities of the O.J. Simpson case: Brian himself was a Simpson TV trial commentator. Thus, when Brian was out of his office and I did turn on his TV, there was Brian – in his office, on his TV screen. In fuchsia.)
Curious, I asked Margolick whether he was a lawyer. Instantly, he became defensive. “Of course I’m a lawyer! Just like Barry and Peter.” I think he even volunteered his law school.
I had asked the question levelly, without any implied pejorative, but he had correctly inferred one. After Peter had filled me in on the disparity between trial reportage and reality, I didn’t understand why a lawyer like Margolick wasn’t covering the trial the way lawyers prepare for court. His pad or laptop should have been divided into two columns, one for the witness’s statement, the other for the cross. As a lawyer, he should have filtered out the garbage, noted what was important: did the witness and evidence hold up after the cross?
Okay, maybe it wasn’t Margolick’s fault. Maybe his editors, in a desperate rush to compete with tabloids and TV, had skewed his pieces. Maybe it was the editors who assigned him in May 1995, five months into the trial, to write a Styles piece for the Times, fully exploring The Honorable Ito’s momentous judicial decision about how these were the “best dressed jurors I’ve seen in a long time.”
How could David Margolick, even David Margolick, Esq., resist editorial demand and peer pressure? Remember, major and minor media were crashing into each other competing for exclusives, exposing really critical truths about this murder trial. To wit: People Magazine did a hot photo essay rating the ties worn by “The Dream Team” individuals (I hated, hated that cheap term and curse whichever media smartface came up with it).
How could the New York Times, the paper of record, our great Gray Lady, not follow up all that news that wasn’t fit to print? Of course she couldn’t. Nor did she.
Not only the Times but all four New York daily newspapers covered the trial, as did every TV network, cable TV, a number of local stations, foreign media, Associated Press and Reuters, and every major newspaper in every major city in this and probably every other country and a couple of water-containing planets.
The Guide to Periodical Literature tells me that in 1994 and 1995, the following magazines reported, most of them more than once, on the trial:
America, American Health, American Journalism Review, American Spectator, American Heritage, Christianity Today, Columbia Journalism Review, Commentary, Commonweal, Ebony, Esquire, Essence, Fitness, Forbes, Gentlemen’s Quarterly, Glamour, Harper’s, Interview (with Kato Kaelin), Jet, Ladies Home Journal, Life, Los Angeles, Maclean’s, Modern Maturity, Money, Mother Jones, MS, Nation, National Review, New York Times Magazine, New York Magazine, New Republic, New York Review of Books, New Yorker, New Leader, Newsweek, Penthouse, People, Popular Science, Popular Mechanics, Popular Electronics, Progressive, Publisher’s Weekly, Reader’s Digest, Reason, Redbook, Rolling Stone, Scholastic Update, Science, Scientific American, Sport, Sports Illustrated, ‘Teen, Texas Monthly, Time, TV Guide, US News & World Report, Vanity Fair, Vogue, Washingtonian, Women’s Sports and World Press Review.
From June 1994 until October 1995 our eyes, our ears, our brains were all bombarded hourly with the language of absolute conviction: there was an pointillist arrow of blood drops leading from the crime scene into O.J. Simpson’s front door. That’s a huge mental picture. He must be found guilty.
But I knew there wasn’t the evidence to convict O.J. I had seen the crime scene photos.
Evidence. I have often imagined a scene in the L.A. District Attorney’s office, when someone, Marcia Clark maybe, first studied those same crime scene photos, then looked at the charts detailing each piece of evidence and said, “Where’s the trail of blood? There has to be a trail of blood!” And shortly thereafter – mirabile dictu! – a sort of “trail of blood” dutifully appeared on the evidence charts and out of Marcia Clark’s mouth in her far too frequent public statements about the progress of the case.
Pretty much every morning for many months afterward, an express mail package would arrive from L.A., I’d open it and remove pages of evidence charts and take them in to Peter. The chart columns were labeled by item number; collected evidence (such as “pair of socks”); where the potential evidence had been collected; what could be observed on the evidence; the size of whatever was observed on the evidence (sometimes a clumsy little sketch would be drawn of, say, a spot); a measurement of the spot; and what kind of forensic tests could or should be or had been done, blood typing or DNA analysis, for instance.
Peter and Barry poured over those charts. Only later, when I knew what they had discovered, did I grasp what really fine, thorough investigative work they’d done. By reading and digesting every line, every word, they found what and when evidence was planted or doctored. Their work taught me how to be a good, if unglamourous, paper investigator, a skill I employed successfully years later in other cases.
I remain amazed, looking at my notes, how much garbage about so-called evidence was in the press during that pre-trial period, some of it in reputable newspapers and magazines.
A murder trial is a chance to teach. The good journals, the few wise people who comment on TV, had and have an opportunity during trials to give lessons on our justice system. Do they? Let me prompt them:
The point in defense work is not whether your client might be guilty but whether the prosecution can present evidence to prove him guilty before a sitting jury, the fourth branch of our government. (I owe the preceding insight about juries to Akil Reed Amar and his quintessential book, The Bill of Rights.)
And it is the job of a defense lawyer whose client maintains that he is innocent to defend the client thoroughly, challenging every flaw in the evidence and the witness testimony, until the verdict is in.
As sloppily complex as it can look – or be made to look by the media that, along with political and religious demagogues, gin crowds up to the ignorant, violent opinions that scare the shit out of me – it is our criminal justice system.
And until that wondrous moment when the states pass laws permitting prosecutors to by-pass the system in favor of a jolly old website poll – “Do you agree with Nancy Grace? Is she (the defendant or, indeed, Nancy) guilty? Should she get the death penalty?” or a murder trial version of “American Idol” or “America’s Next Top Supermodel, Whatever” (vote for your favorite lawyer! what do you think of the prosecutor’s new hairdo?) – it remains a pretty good system.