But the truth is there are plenty of things Anthony could have been charged with already under Texas state law if the crime had occurred here. Instead, in the Anthony case prosecutors thought it more important to grab headlines and "send a message" by charging things they couldn't prove in court instead of settling for convictions for crimes a jury might accept. Let's assume for a moment, along with the rest of the country, that Casey Anthony really is guilty of something. Sans concrete evidence of capital murder, the question is guilty of what?
Over at the Texas District and County Attorneys Association' user forum, Williamson County DA John Bradley asked his fellow prosecutors: "So, let's say you have the Casey Anthony case. And, since you have visionary powers, you already know that a capital murder charge will not get a conviction. What would you charge under Texas law? Be creative." A prosecutor wrting under the handle "LH" replied:
I haven't figured out why they charged capital murder to begin with. That's an awfully high bar to reach in a child homicide case. It's an interesting dynamic that I've seen happen several times over the years in child abuse cases--some jurors just don't want to believe that any parent would INTENTIONALLY kill their own child.Another prosecutor, frequent TDCAA user forum commenter Martin Peterson, opined that:
Under Texas law I would have probably charged Injury to a Child and alleged all 4 culpable mental states. Abandoning or Endangering a Child under P.C. 22.041 would also be a consideration. 2nd Degree Tampering With Evidence under P.C. 37.09 might also fit based upon the disposition of the body.
One with visionary power should certainly be capable of creativity. Since the Anthony indictment never even identified the manner of death involved, it seems basically a foregone conclusion that proving Casey acted "from a premeditated design to effect the death of Caylee" was likely doomed to failure. To me, proof of intent to kill under Texas law might have been a bit easier, but still no piece of cake, without a more precise theory than "suffocation somewhere, somehow." The second allegation, "did knowingly or willfully cause" serious bodily injury seems more reasonable, but even alleging willfully would likely just cause confusion and you still need a manner of death or good idea about the nature of the conduct. The third theory: "did by culpable negligence fail or omit to provide with the care, supervision and services necessary to maintain health," seems difficult to prove also, when you cannot identify what was necessary.Judging from these comments from Lone Star prosecutors, Texas law doesn't really need any new crimes created to cover situations like Caylee Anthony's, despite Sen. Harris' good intentions. Prosecutors just need to make smarter charging decisions than their counterparts in Florida and avoid pandering to the media, overreaching to allege crimes they cannot sufficiently prove.
I know it is possible to prove culpability even without proof of exactly how someone died or was killed. But, frankly, I am not sure how you say proof of recklessness is any easier than knowingly when the nature of the conduct remains a mystery. But, I somehow think it would be harder to defend against a reckless allegation. So, my vote would be for manslaughter, or to make it more case specific, reckless injury to a child. Tampering with evidence would be a worthwhile choice if you gave up on proving who or what caused the death.