There are two kinds of parents of responsible for their missing and murdered children when it comes to prosecution: careless and careful, unsympathetic and sympathetic.
Careless and unsympathetic parents get charged with the crime because a) the evidence is clear, and b) a jury will hate them. For example, a meth-using five time felon beats the living crap out of his little baby girl while the mother is at work. The girlfriend comes home and finds her mashed up child barely breathing and rushes her to the hospital where she dies. The father claims at the hospital, that the one-year-old got out the door of the apartment and fell down the steps. However, all the damage is consistent with being beaten and x-rays show previous damage to the child's body. Police arrest the creep and he is found guilty in a court of law.
Parents of a missing a murdered child who are more careful to cover-up after the crime and a bit more sympathetic don't get charged with a crime because a) the evidence is not totally clear, and b) a jury won't necessarily hate them. In other words, unless there is overwhelming evidence of guilt - overwhelming - no prosecutor will take the case to court and have a jury not be totally convinced of the guilt of the parent or parents; after all, imagining condemning the innocent mother and father of a missing a murdered child to prison, further torturing the victims of a crime, and taking them away from their remaining children so that they effectively not only lose one child to the crime but all of them. And think about the remaining children; they not only would lose a sibling, but then their parents as well.
Sabrina Eisenburg, Lisa Irwin, Gabriel Johnson are still missing and many do not think they were abducted by strangers. These children have never been seen again and their bodies have never been found. The Eisenburgs claim their daughter was taken from her crib although there is no proof of an abduction. The Eisenburgs were never charged. Baby Lisa went missing from her crib. Her parents were never charged in spite of the fact cadaver dogs hit in their house. Gabriel Johnson's mother actually told the father of her little boy that she killed the baby and threw him in a dumpster. Later, she told the police that she actually gave the baby away to a couple in the park. In spite of the confession to the father of the child and the fact there is no evidence of an abduction, Elizabeth Johnson (a pretty woman who came across as a stressed and emotionally disturbed mother) has not been charged with the murder of her child; she got five years for custodial interference and unlawful imprisonment and she was released from prison in 2014.
And this is why the McCanns won't be charged with any crime, even neglect. Rarely is a parent of a missing child charged with neglect because, even if it is true, the police and many in the public feel they have already received enough punishment for their carelessness; their child has been kidnapped or murdered. As for the McCanns being prosecuted for the death of their child, barring an incredible miracle in the evidence department, the McCanns fall into the second category, a) the evidence is not totally clear, and b) a jury won't necessarily hate them.
First, let's look at the evidence for prosecution: the dog evidence is not admissible in court without something else to support it. So, there is no proof Madeleine died in the apartment. And, since there has been no body found, there is no proof the child is dead at all. There is no witness sighting of either of the McCanns removing the child from the apartment or disposing of her body. The Smith sighting is of a man who COULD be Gerry McCann, not proof that it was Gerry McCann. Neither of the parents have confessed and none of the others in the Tapas group have implicated them in harming their daughter or disposing of her body. So just as their is no solid proof of an abduction, there is no solid proof of the McCanns involvement in their daughter going missing. This does not mean there aren't many pieces of evidence that make them good suspects; my profile of the case includes many facts which support their involvement in what happened to Maddie. But, a profile (which is an analysis of facts) is not equivalent to the level of proof needed to prosecute someone for a crime.
Secondly, putting one's feelings about the McCanns aside, let's look at the couple in the eyes of the jury. The McCanns are not the scum of society; they are not welfare abusing, unemployed druggies who live in the slums, and have seven other children they neglect and abuse. What the jury will see are a respectable couple who are both doctors, who give their time to worthwhile projects, and one of them is even an ambassador for missing children. They have worked night and day to find their missing daughter (a defense attorney will make this seem true), went through the the process of setting up a fund to finance private investigators, and begged the government to sent in Scotland Yard to investigate the case. They have taken excellent care of the other two children (barring the one horrible night where their one poor parenting choice led to their daughter going missing). They have the support of their family, friends, and many in the governement, so they are upstanding citizens, people the jury can relate to.
So, without that absolute proof that the McCanns did something to Maddie, the jury is not going to take the risk of wrongly imprisoning an innocent mother and father, further punishing a suffering set of parents and leaving Maddie's brother and sister effectively orphaned. Even I, after having studied all the facts of the case and having traveled to Praia da Luz to analyze the area of the crime scene, and even after having written a profile which identifies Gerry and Kate McCann as the top suspects in the disappearance of Madeleine McCann, would have to find the McCanns "not guilty" in a court of law.
There is a big difference in believing someone has committed a crime and proving it. Scotland Yard can't prove Maddie was really abducted and we can't prove that she wasn't. Scotland Yard can give their profile of the crime, you can give yours, I can give mine....but, in the end, no one will be able to prove anything because there simply isn't enough evidence to do so, and, this case, like many other cases of missing and murdered children will remain unprosecuted.
The truth may come to light sometime in the far future and I hope it does. But barring a miraculous appearance of new evidence that will allow someone to be taken to prosecution, we will have to settle for documenting the case for posterity and hope that all of our efforts - Goncalo Amaral's, mine, and everyone who put so much time into studying and publicizing the case - will have done some good.
Criminal Profiler Pat Brown
May 2, 2016
By Pat Brown
Rating:Published: July 27, 2011
What really happened to Madeleine Beth McCann in Praia da Luz, Portugal in 2007? Was she abducted as the Gerry and Kate have claimed or did something happen to Madeleine on May 3 in the vacation apartment and the incident covered up? Criminal Profiler Pat Brown analyzes the evidence and takes the readers through the steps of profiling, developing a theory that is intriguing and controversial.