Revisiting Casey Anthony, because some just don’t give up

The search terms keep coming in. People just will not let go of the Casey Anthony trial. There’s even a website called, which allows you to sign a petition regarding Caylee Anthony:

We the undersigned demand justice in the murder of little Caylee Anthony.

It is our belief that Casey Anthony should be found guilty of homicide in a US Federal Court. Under the Dual Sovereignty Doctrine, we believe that a Federal homicide case can be pursued against Casey Anthony.

We hereby demand that Federal Prosecutors pursue a homicide case against Casey Anthony.

In addition, we demand the the FBI release all case information to the US Attorney’s Office at the Middle District of Florida. so they may determine if they have a viable homicide case against Casey Anthony.

And there are sites with a pre-formatted letter to send off to the Federal Bureau of Investigation (why?) and the United States Attorney General’s Office calling for a Federal prosecution against Casey Anthony, also citing the dual sovereignty doctrine. Thankfully prosecuting authorities, at all levels, don’t take a case simply because the people want them to take the case. There’s a bit more going on behind that decision.

And at least they’ve dropped the idea of getting the “Not guilty” verdict overturned – probably after finally being convinced that such a move is impossible. Instead they’re citing something new: the dual sovereignty doctrine. Some people just don’t give up…

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Dual sovereignty is not a novel concept. Every person within the jurisdiction of any State is simultaneously subject to the jurisdiction of the laws of that State and the laws of the United States of America – i.e. State code and United States Code. An exception are the several Indian tribes. While Federal jurisdiction supersedes State jurisdiction, where the Federal government has jurisdiction at all via their enumerated powers, often it is State jurisdiction that is exercised first, and almost always exclusively.

If there is an overlap, a case where the Federal government has exclusive and shared jurisdiction, the Federal government will often exercise only its exclusive jurisdiction. Two cases where this occurred were the prosecutions of Timothy McVeigh and Terry Nichols, convicted conspirators in the Oklahoma City bombing.

Now with the case of Casey Anthony, the two laws in question that apply are 18 USC § 1111, the Federal definition of murder, and 782.04 [f.s], the Florida definition of murder.

So why doesn’t the United States Attorney take jurisdiction with every murder that occurs? In short, they don’t have any claim to jurisdiction over most murders as most murders don’t fall under the exercise of Congress’s enumerated powers. As such the Federal government will typically only prosecute murders for which the States do not have any claim of jurisdiction, such as those committed against Federal officers and employees.

For example, with the Oklahoma City bombing, both Oklahoma and the United States had jurisdiction claims: the United States since it occurred on Federal property with Federal employees among those killed, and Oklahoma since non-Federal employees were also killed.

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There is something quite disheartening and disturbing in the many petitions calling on the Federal government to take up this prosecution. And I feel it is only part of a more disturbing trend in the US. I’ve talked before about the presumption of innocence and the extreme lack of it in the United States. People are not willing to let a case be just between the accused and God if the person is found ‘Not Guilty’ by a jury. They are so desperate to see vengeance carried out in this life, to take every legal avenue possible – the evidence be damned – and, possibly, some not-so-legal avenues if the situation seemed to call for it.

The fact Casey Anthony is in hiding following what authorities called numerous, credible threats to her life is certainly evidence of this.

Wanting to see justice for Caylee is one thing. And who doesn’t want that? Yet it seems that when there is a case involving a child, people completely throw rationality out the window and let their emotions take control.

This sentence in the above-quoted petition is key: “It is our belief that Casey Anthony should be found guilty of homicide in a US Federal Court.” Let’s just think about this for a minute. The people who sign this petition (and one of the many others like it on the Internet) are calling for Casey Anthony to be convicted. Not just for her to be tried, but convicted.

And what would happen if a Federal trial were to commence and Anthony again acquitted. The possibility is certainly there, especially given the acquittal she’s already had in State court. How would those wanting her to be prosecuted by the Federal government respond if such a prosecution were to result in another acquittal?

The people who sign petitions like this one are pretty much demanding a second trial for Casey Anthony at the Federal level and demanding she be convicted on the charges. This is a comment that came into this blog recently regarding dual sovereignty:

The Federal Government can charge her and try her.  Hopefully they will, and you could count on a guilty verdict if this were to happen.

Actually they can’t, but let’s explore this.

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In 1986, US Army Master Sergeant Timothy Hennis was tried and convicted and sentenced to death in 1986 in the State of North Carolina for the murders of Kathryn Eastburn and her two daughters Kara and Erin. He appealed his conviction and it was vacated and a second trial in 1989 resulted in an acquittal. After the acquittal, he continued serving in the Army, which left him open to military jurisdiction under the dual sovereignty doctrine.

Eventually cold case detectives managed to gather additional evidence against him. The earlier trials at the State level relied almost entirely on eyewitness testimony. Hennis left the Army in 2004, but the Army recalled him to active duty in 2006 for the purpose of placing him under Army court martial where he was ultimately convicted in April 2010 and sentenced again to death. He has appealed his conviction, and as he was sentenced to death, there is an automatic review by a military commission.

Why have I provided this anecdote?

The Federal government will rarely take up prosecution of a case where prosecution in a State court resulted in an acquittal unless there is new evidence, provided they have the requisite jurisdiction. Do you think the military would have court-martialed MSG Hennis if they had not obtained new evidence against him? Okay with him it wasn’t exactly new evidence, but the re-examination of existing evidence using newer technology. But it was still new evidence with regard to the fact that it could further solidify the case the government was attempting to present.

Even if they had jurisdiction, without new evidence in regard to Casey Anthony, the United States Attorney would only be rehashing what the State of Florida has already done, meaning the outcome is likely to be the same. If you want to guarantee a chance at a change in the outcome, you need additional new evidence not already presented at the State level. The District Attorney that tried the Anthony case even said that she was acquitted for one simple reason: they could not establish cause of death. In other words, they could not show conclusively that Caylee’s death was the direct or indirect consequence of any action by her mother.

All you have to do is read the various statements given by the jurors. Everyone who has spoken about the case has said, rather pointedly, that the prosecution just didn’t support their case. Why would a Federal jury provide a different outcome given the same evidence? There is little reason to think they would.

Very rarely will the Federal government (or Court-Martial of the United States with regard to military personnel) take on a case for which a State trial resulted in an acquittal without any new, compelling evidence. If it does occur absent new evidence, it is typically due to some kind of demonstrated corruption in the trial process. The jury is always presumed incorrupt and impartial, as are the officers of the Court. If the jurors from the Casey Anthony trial can be shown to have been corrupted or in any other way not impartial when they considered the evidence and rendered their verdict, then that could prompt the Department of Justice to take up the case. That, however, appears highly unlikely.

Whenever the Federal government does take up prosecution against someone acquitted at the State level, the cases end up mired in controversy. Even though the Supreme Court has said numerous times that doing so does not violate the Fifth Amendment’s prohibition on double jeopardy, the presence of a power does not unto itself warrant exercise of that power. And given the risk of acquittal already presented at the State level, the Department of Justice will likely opt to avoid this case unless and until new evidence warrants a prosecution attempt.

Note: Please read my follow-up on the possible Federal prosecution of Casey Anthony

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In the aftermath of the Casey Anthony trial there has been a profound lack of the presumption of innocence. And it is extremely infuriating and disturbing. People seem to have developed this idea in their minds that courts should listen to public opinion. And as Casey Anthony was convicted in the court of public opinion long before her acquittal, they feel she should have been convicted in a court of law as well. Thankfully that is not how it works. The Constitution is designed to protect us from mob justice, yet mob justice seems to be what the people are after.

It seems the idea of “alternate explanations fitting the evidence” doesn’t occur to anyone either. And if there is an alternate plausible explanation that also fits the evidence, the jury must acquit. It matters not whether you believe the explanation. The question is whether the explanation fits the evidence, or whether it is contradicted by it. To satisfy their burden the prosecution must show evidence for which there is only one interpretation: the accused is guilty.

In the first episode of Season 6 of Bones, skeletal remains of a toddler-age child were discovered, the hands and feet of the child were bound and the child was buried in a shallow grave wrapped in what was initially called a “blanket”. At the same time, there was a prominent missing child case that had received a lot of media attention and many in the media were convinced the remains were that of the missing child.

While they could demonstrate the remains were not that of the missing child, it was still a missing child, and the case still looked like a homicide. Was it child abuse that went too far? Did the mother kill the child so she could go out and party whenever she wanted, as Casey Anthony has been so accused? No. The case in the end was an accidental death and the mother panicked and disposed of the body. The bound hands and feet were a cultural custom (the mother was North Korean).

People do things like this. Accidents can turn into panicky situations. And how bad the situation may look after the fact has no bearing on whether the death is an accident or a homicide. A woman who does not report their child as missing and is stoic and remorseless when that child later turns up dead may be presumed guilty by the public. But looking guilty is not the same as being guilty, and presuming guilt is not the same as proving guilt.

You will never see a prosecuting attorney argue public opinion before a jury, and that is something of which we should all be thankful. You will also never see a prosecuting attorney argue appearances before a jury, something of which we should also be thankful.

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Just as Federal prosecutors tend to avoid revisiting acquitted State cases without good reason (i.e. new, compelling evidence provided they have jurisdiction), I typically don’t revisit topics without a good reason. On the argument of getting Casey Anthony’s acquittal overturned, the matter is settled: it cannot happen. The dual sovereignty doctrine, however, was something I’d never encountered previously, so it was worth investigating.

But for those desperately looking for any way to get Casey Anthony back on trial for the death of her daughter, even that falls short. The Federal government will typically not exercise their jurisdiction under dual sovereignty unless there is new evidence that arises after the acquittal or there is clear evidence of corruption in the trial. The absence of both with regard to the Casey Anthony trial means there is no reason for the Federal government to waste taxpayer money and the Court’s time prosecuting a trial that has a high likelihood of producing the same outcome.

The aftermath of the Casey Anthony case is about one thing only: mob justice. That is the only thing prompting these online petitions and calls for the Federal government to exercise its dual sovereignty. They don’t care about justice. If they did, they’d let this case go. They care only about vengeance. A little girl is dead and a mother was stoic and seeming unremorseful at the thought of her death, including the fact it took her a month to report her as missing. She was crucified in the press and media long before her trial started. And now that she’s been acquitted, people want vengeance guised under the word “justice” because “justice for Caylee” sounds much more appealing than “Casey must pay for what she did”.

Dr. Martin Luther King, Jr., once said “Injustice anywhere is the threat to justice everywhere.” And there is no greater injustice than throwing a person in prison or death row for a crime that cannot even be proven to have been committed just to satisfy a mob’s calls for “justice”.

But one that comes close is when a prosecutor uses the media in a one-way campaign to turn the people of not just a county or State against a particular defendant, but the entire nation. People of America, you have been used by the media for many things. They’ve turned you either toward or against certain public policies through one-sided reporting, and they’ve turned you against a 20-something woman in Florida through the same one-sided reporting.

You saw only what the prosecution wanted you to see. That is why you were so appalled by the outcome of the trial. In your minds, you were thinking the case was open and shut, but in the minds of the jury, things were a bit more complicated. They made a decision based on facts, while too many people acting under the guise of “justice for Caylee” are calling shots based on emotions and nothing more.