The Casey Anthony Trial and the Rashomon Syndrome

by Norman Berdichevsky (August 2011)

Until the second week in June, I lived in a downtown Orlando condo apartment, a few blocks away from the Orange County Court House and media circus of the Casey Anthony trial, with its hoards of media staff, satellite dishes, cameras, and an ever growing crowd of trial groupies or junkies and the fixed daily attention of tens of millions of Americans living beyond this building. My move was not to get away from the presence of these actual events but related to the mundane needs and decisions of my own requirements for more spacious housing and financial considerations. I was also very occupied with trying to publicize my two recently completed books, one of which was just published by New English Review Press.

Now that the trial is over but the repercussions and din of continued debate are still evident on much of the talk time of pundits and public reaction, I debated with myself whether or not to depart from my usual array of essay subjects and add my two cents to an issue that has seared the raw flesh and nerves of so many Americans. I wasn’t able nor did I have the inclination to follow the continuous coverage in every detail but as fate would have it, my wife and I went to a performance of the play Rashomon a few days after the conclusion of the trial and in an instant upon leaving the theater, I felt the compelling need to add my thoughts and emotions that had accumulated over the past 40 years – embracing much of the time I lived abroad. This is also about the time that had elapsed since I first (and last) saw the Japanese film Rashomon, a film that has remained vivid in my memory and that I consider to be one of the greatest contributions to the millennial old issues of justice, evil, human behavior and frailty.

If you haven’t seen the modern play or the film, the story line is briefly this: Three witnesses to the death (murder, accident?) of a samurai warrior testify in the Japan of a thousand years ago. They were participants and ergo eye-witnesses (although one, is a medium, who claims to speak for the dead man claiming the warrior committed suicide). Each one, the warrior, his wife and a notorious bandit, Tajemoru, with a reputation for lechery and theft and great courage tells his own tale and incriminates himself. Tajemoru accepts the charge of killing the warrior in heroic combat; the warrior speaking through a medium explains he did the only thing possible to recover his honor – suicide; and the wife admits that she must have killed her husband who had regarded her with scorn and contempt (she was the daughter of a kitchen maid) leading to a struggle and her losing consciousness.  BUT there is a fourth witness, a wood cutter in the forest who was a chance passer-by and saw the events as they actually transpired. His conclusion that in fact, the death of the warrior was the result of an accident is of course, “unbelievable,” yet he is the only one who has no self-interest of reputation and pride to protect.

He admits that he did not testify because he did not want to “get involved” and his story provokes the anger of a priest who has lost faith in his ability to influence and guide the local people who have sought him for moral and spiritual guidance. It is another passer-by at the temple, the totally unscrupulous and cynical wigmaker who immediately resolves the dilemma that the honored magistrates of the court had in deciding the verdict. It is his life experience and knowledge of the foible and frailties of the human condition that makes him conclude that the wood cutter is telling the truth – not because he is in any sense more of a moral person that the others, but simply because his story has the “smell of truth.”

Ah yes, the smell – that was the same smell as the stink of human decomposition – unmistakable and in the locked trunk of the mother's car, she being the only one who had the keys, the only one who had the motive, the only one who had the right to refuse to testify and as we learned long ago in the trials of O.J. Simpson and Black Panther Mumia Abu-Jamal, there is no amount of either circumstantial or even concrete physical evidence that can outweigh the reasonable doubt of today’s juries and moral climate in the United States when the accused poses as a victim.

We have all been taught a myth reinforced in such films as Twelve Angry Men and many similar Hollywood creations that the guilt of the accused must be challenged if the person charged with a heinous crime is a woman, a racial or ethnic minority, illegal immigrant, disabled or gay person no matter how conclusive or what type of evidence. This was documented in what must still rank as the most damning indictment of our so called criminal justice system by Tammy Bruce in The Death of Right and Wrong. Bruce was the Director of the National Organization For Women for a decade and openly a lesbian and therefore a heroine of the Left until she refused to abase her sense of morality, decency and common sense and had to think outside the box. In so doing, she issued a challenge to the cultural elites of this country that has never been refuted but only emerged in even sharper and more grotesque relief since the book was published in 2003. The Casey Anthony case has only lent her words the aura of a prophet without honor in her own country…..”The Left elite has worked for years to brainwash us into a sort of 'values  lobotomy'; We are not to judge those who kill, if the guilty are people of color or women; we are to excuse those who destroy lives as victims of a racist, sexist and homophobic world, or now, on a global scale, the unfair and oppressive multinational corporate world. We are to blame the innocent and lionize the guilty.” (p.17)

The trial reached a new low in the lengths to which defense attorneys are willing to go including what must be the total denial of the principle of “innocent until proven guilty.” Without a shred of evidence and in contradiction to his many years of service in police related work that speaks on behalf of his character, the father of the accused, George Anthony, was accused in the opening statement (along with the brother of Casey Anthony) of sexual abuse of his daughter and of being a co-conspirator in the death and hiding the remains. Although the Judge later instructed the Jury to avoid all these allegations, the fact remains that in our system, people who are not charged with any crime can be the subject of libel, slander, insult and humiliation before a televised audience of tens of millions of people.  

The angry and tormented comments and expressions of disgust on the faces of hundreds of passers-by at the Court House are duplicated across this country by a moral majority that realizes the truth of these words and the abomination of the defence team’s celebration of their “victory.” Perhaps I am deluding myself and speak only of my own “senior” age group who were born and grew up in this country before the advent of the turbulent 1960s and so remember when common sense rules applied which were based on values that most of us absorbed from our parents and religious upbringing. Nevertheless, the outrage seemed to be equally apparent too on many of the faces of those younger people who followed the trial and were interviewed on the street.   

The performance of Rashomon was executed brilliantly in a small, highly professional theater, The Mad Cow, recognized as one of the finest in Orlando and was followed by a “Talk Back” in which the audience is free to ask the actors to comment and answer questions on the play and their roles. A number of questions and comments referred to the Anthony trial for its relevance. Since the 1950 Japanese film, the plot has often been cited as an example of why it may be very difficult to come to a conclusion even when purported eye-witnesses give their testimony that is inherently self-serving. In the play, all those involved are questioned but the most obvious choice is the bandit for whom suspicion was paramount, given the simplest motives of lust and theft to explain the murder of the Samurai warrior, husband of a beautiful and desirable girl.    

In the Anthony case, Casey does not speak – the most damning evidence of all for people whose innermost being expects (and yearns for) a mother to state with total conviction “I DID NOT KILL MY CHILD.” The provisions against being forced to testify and our Fifth Amendment were instituted to prevent the possibility of torture but no one can deny that the innocent must have a RIGHT and DUTY which is even greater – to speak out in their defense. 

What I do know and have the advantage of knowing is that in many parts of the world including democracies with respect for human rights and distinguished judicial systems, the grotesque results and single minded addiction of our courts to protect the rights of the accused are regarded as conducive to anarchy.

I lived and worked in England for seven years and had several occasions to act as an interpreter in court cases. The one that left the strongest impression on me demonstrated the fallacies of the Anthony trial in the jury’s conclusions regarding what it considered the lack of MATERIAL EVIDENCE or EYE-WITNESSES.

Following my evening at the theater, I found a few notes I had taken at the trial and they convinced me beyond any doubt (even a shadow of a doubt) that the British system I experienced was the better way at arriving at the truth of a case. The charges against two accused Danes (each of whom accused the other for organizing and instigating the crime) for smuggling hard drugs into the U.K. from Turkey resulted in a three way trial (The Prosecution against both of them and each one against each other). Each one had his own lawyer defending himself and trying to find evidence with which to convict the other one. These two had operated as partners in crime until they were apprehended.

I will call the two Arne and Bent. Arne was in his late thirties and ran a night club in Copenhagen. He had previously been arrested and charged for smuggling drugs but had not been convicted. He was quite well off with a considerable income and money in the bank, He travelled widely and spoke several foreign languages (and pretended not to know English, a fact I uncovered during the trial but could not reveal). He had made many prior trips to Turkey and was known to the Turkish police as a dealer (based on hearsay). His girlfriend was a successful lawyer in Denmark who had helped him beat several raps before. Bent was a 20 year old high-school drop-out, the classical 'loser', who lived with his parents in a small boring, provincial town, had no employment prospects and been receiving the standard generous Danish unemployment and welfare benefits for some time. He knew no foreign languages and had never travelled outside of Denmark.

Bent was caught in possession of a considerable amount of drugs (they were in his suitcase). His fingerprints were on the plastic bags containing the drugs. All the tickets and travel receipts for his trip and stay in Turkey were in his name. He explained that when he and Arne were arrested upon entering the U.K. at the airport, Arne had made a sign of slitting his throat and had warned him in Danish that if he revealed Arne’s role as the instigator, he could expect to be killed. Bent’s parents (who knew no English and were grateful to have the service of an interpreter so that they could follow the trial) explained to me how he had been the patsy and duped by the promise of easy money working for Arne. 

Arne’s lawyer took pains to convince the jury that his client simply befriended Bent on the journey and helped show him the sights. He stressed again and again that the case against Arne was completely 'circumstantial'. In this case at least ten of the twelve jurors needed to agree on a verdict. Although this is permitted in certain cases in a few American states, it is the exception to the rule that unanimity is required. The judge explained to the jury (echoing the summation of the case by Bent’s attorney) that the expression “circumstantial evidence” was to be understood as the preponderance of evidence that all pointed in the same direction excluding other reasonable inferences of alternative explanations. 

The jury took a very short time to reach a verdict finding both defendants guilty of the charges but with a 11-1 vote against Arne and a 10-2 vote against Bent. The judge commended the jury and sentenced Arne and Bent to 5 and 3 years imprisonment respectively. I had the opportunity to speak with the attorney for “The Crown” (i.e, the prosecuting attorney who had succeeded in getting the guilty verdict against both). His views reflected my own and are a credit to the British system.  He conceded that the lone vote in favor of Arne for acquittal was in all likelihood cast by the youngest member of the jury who had little life experience and lacked the maturity to weigh the significance and relevance of the evidence. He added that he was indeed glad not to have had to prosecute Arne in an American court. The jury members knew from their own life experience that even without material evidence (fingerprints, DNA or whatever), Arne had to be the instigator and that it made no sense to suppose that Bent could have undertaken such a venture without direction, encouragement, instructions, and funding. No other interpretation made sense (common sense).

Last month, Rebecca Bynum in her article about disgraced Congressman Anthony Weiner made the critical point, albeit in a case that pales into insignificance compared to the murder of a child by her mother that…

…one of the most disturbing aspects of observing the general abandonment of religion and morality in our society, is the all too common spectacle of some public figure, who, having behaved in an immoral fashion, must then must go through thoroughly predictable motions, undoubtedly originating in a public relations office somewhere, which requires that person to a) make a public confession of their unseemly acts (and don’t leave out the details), and/or b) to toddle off to some rehab clinic for “therapy,” implying that their moral failings were not actually moral failings at all, but the result of disease, some psychic or physical (usually an ill-defined “genetic”) disorder. Alcoholism, to be sure, contains elements of both: a genetic predisposition coupled with free will action. Alcoholism definitely cannot be said to be purely the result of moral failure, but the alcoholism model has now seemingly been extended to the entire moral realm.

This “all too common spectacle” was defense attorney’s Jose Baez’s opening statement to transfer the blame to an abusive father and a dysfunctional family that resulted in Casey’s being overwhelmed, disoriented and thus explains her irrational and outrageous behavior following the death of her child and her subsequent attempts to mislead the police (and thousands of volunteers) by sending them on costly and time consuming wild goose chases and elaborate lies about mythical baby-sitters. As far as admission of guilt as a step on the road to repentance goes, FORGET IT. Already many in the media with a liberal/Leftwing bent are concerned for the welfare of a new “victim” and the issue of providing for a new identity, sanctuary, protection from public wrath, indignation and revenge. Perhaps a collection will be taken up. 

Nobody has said it better since Tammy Bruce wrote a decade ago: “We must ask ourselves when did defending the accused before a jury devolve into attempting to deceive the jury on behalf of the accused? When did the right to a defense turn into a sport where lawyers count ‘wins,’ where getting a client off, regardless of guilt, became the goal? It is with the Death of Right and Wrong that these became paramount and eclipsed fairness and justice itself.”

 

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