OJ Simpson & Lawyers

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gavel I’m not a fan of OJ Simpson’s by any definition.  But, I do feel that our legal system put him into double jeopardy.  That is, he was acquitted of murder, and yet later retried for the same crime.  How is it that he was found not guilty for having murdered two people, and yet fined $33M for their wrongful death?   How does this happen?

It turns out that wrongful death is much easier to prove than murder.  “Wrongful death” only requires a “preponderance of evidence”.   Although a “shadow of a doubt” may exist, you can conclude guilty anyway.  Further, a wrongful death jury need to only have 75% of the jurors agree (9 of 12).  Lastly, you can’t “plea the 5th” in a civil case.  You have to respond on the stand.  I don’t understand why we have the 5th amendment for criminal cases and not for civil ones.  Either it’s unfair to make someone testify in ways that might hurt them or it’s not.  We can’t have it both ways.

Unfortunately, wrongful death lawsuits have nothing to do with justice and everything to do with money.  This entire branch of our legal system has been carefully carved and sculpted by lawyers for the benefit of lawyers.  Justice would have the murderer behind bars, and the public safe.  But we don’t have that.  Does Fred Goldman and his lawyers getting rich give us justice?

What boggles my mind most is why more people don’t stand up for OJ against our completely broken legal system.  He was legally acquitted.  Even if we think he is guilty, we need to let him go – that issue was concluded long ago.  If you think our system is broken for not finding him guilty, then fight for that.  But if you aren’t fighting for that, because you think our system usually works, and you think that “beyond a shadow of a doubt” is a good idea, then you absolutely must support OJ now.  This is double jeopardy, plain and simple, because everyone hates him.

I want our legal system to be about truth and justice, rather than money and appeasing public sentiment.  By allowing both a criminal and civil trial on the same issue, conducted under different rules, we are accepting hypocrisy in our system.  Stop thinking, “Oh good – OJ is getting what he deserves”, and instead think about what it means to be “innocent until proven guilty”.  OJ was not proven guilty.  Yet we treat him as though he is guilty anyway.  This pisses me off far more than whether he got away with murder or not.

After writing this, I found a few other smart people saying the same thing: Joelle Blackstarr, Miranda Tempest, etc

8 thoughts on “OJ Simpson & Lawyers

  • October 10, 2007 at 1:25 am

    Good post. I am so glad that I am not alone in my thoughts that there is something wrong when a person is found not guilty, and still must pay for what he has been found not guilty of in the first place. Just a personal thought: he didn’t do it. That’s just me. The real point is that this country is supposed to has a failsafe in the idea of the avoidance of double jeopardy, but , apparently, that is not the case. Continue to hold fast to your ideals and let no one sway you from that path. Peace.

  • October 10, 2007 at 7:42 pm

    Yeah – and whatever happened to “innocent until proven guilty”?

  • March 1, 2009 at 8:51 pm

    Mike, I know this post is dated, but I just read it and decided I had to comment. Imagine if I got hammered one night at a bar and drove myself home at the leisurely pace of 90 mph. Now imagine that I slammed into your (thankfully parked and unoccupied) Porsche. There would be criminal implications for my action (I’d be charged with a DUI, at a minimum) and civil implications for my actions (you’d have the right to sue me for damage to your car). Now imagine that the police investigating the crime scene botched the job, and the jury acquitted me of the crime of DUI. Would you still have the right to sue me for damage to your car? Of course you would! A system that deprived you of your property rights (the value of your car) just because an incompetent police force and/or prosecutor botched the criminal charge would be completely unfair. The fact that the OJ case involved human lives and not cars is of no consequence. As the bread-winner of any family knows, human lives have value. If this were not so, there would be no such thing as life insurance. Using my above hypothetical, imagine (God forbid) that you had been sitting in the Porsche when I hit it and that you were killed. In addition to being responsible for property damage to your car, I would also be liable to your family for the value of your lost income. Your death would have a very, very real impact on thier lives. As the person who caused your death, I would be liable for that loss. If you give this some thought I think you will see the system is designed to do justice and not to make lawyers rich. Some lawyers get rich trying these type of cases. That does not make them evil. Some software developers get rich building and selling software. That does not make them evil, either. Just some food for thought . . .

  • March 4, 2009 at 4:22 am

    Darryl –

    Thanks for the thoughtful response. But, your analogy is broken.

    The problem is that we don’t know who wrecked the car. We thought we knew, but he denied wrecking my car. Further, when he was tried for that crime, he was found not guilty of wrecking the car. If we don’t know who wrecked the car, how can we assign financial responsibility for fixing it?

    I am assuming you’re a lawyer. But one statement strikes me as very funny. You wrote, “just because an incompetent police force … botched the criminal charge would be completely unfair”. Certainly no lawyer actually believes it is fair!

    My point remains – this is double jeopardy, and its far more “unfair” than the alternative. This system makes the potentially innocent pay for crimes they didn’t commit. Isn’t that exactly what the system is designed to avoid?

  • March 6, 2009 at 12:27 pm

    Mike —

    Although I can see how you might read it that way, my hypothetical was not designed to take a position on guilt or innocence. I was trying to highlight the difference between criminal guilt and civil liability. They are two very different things designed to address very different concerns and they carry very different burdens of proof.

    But you are absolutely right about not knowing who wrecked the car. Even after an acquittal in a criminal trial, we still don’t know who wrecked the car. That is because the only question in a criminal trial is whether the prosecutor has established, beyond a reasonable doubt, that the defendant is guilty. That is a really, really tough standard. Imagine the burden of proof as a football field. To establish guilt in a criminal trial the prosecutor has to make a touchdown. To establish civil liability in a civil trial you only have to make it to the 51 yard line. The reason for this difference is not arbitrary. Criminal trials involve taking away freedom and liberty. We (rightly so) require an extremely high degree of certainty before we allow the government to do that to someone. Civil trials are between private citizens and only involve money and property. So we require less certainty.

    Going back to my hypothetical, imagine that after reviewing all of the evidence a jury concluded it is “more likely than not” that I wrecked the car (51 yard line), or that I “probably” wrecked the car (maybe the 60 yard line), or even that they are “reasonably certain” that I wrecked the car (maybe the 75 or 80 yard line). Any of these conclusions would be sufficient certainty of my involvement to support imposition of civil liability.

    It is entirely possible that that same jury, reviewing the same evidence, and reaching the same conclusions, would acquit me of the criminal charges. They are pretty sure it was me. If they were in Vegas they’d bet a lot of money it was me. They privately tell they friends they “know” I did it. For almost every decision-making purpose on earth, they are certain enough it was me to call it established truth. But because there is some lingering doubt, they cannot say I did it “beyond any reasonable doubt.”

    Now, what you are proposing (if I understand your position correctly) is that when a criminal prosecutor, representing the government, fails to make a touchdown, the injured party (your Porsche is now an expensive paperweight) should be denied EVEN THE CHANCE to make it across the 51 yard line. So even though you have a mountain of evidence against me, even though any reasonable person reviewing that evidence would say it is more likely than not that I wrecked your car, even though you are looking at a $60,000 loss (or more), you will never be able to recover from me and will be forever barred from having your day in court because I was acquitted of criminal charges.

    Let me just highlight the point: An acquittal in a criminal case does not mean I am innocent. It does not mean I didn’t wreck the car. And it certainly does not establish forever and all time, and for every purpose, that I didn’t wreck the car. It only means the prosecutor was not able to eliminate every scrap of doubt as to my involvement.

    One final point of a more technical nature. Double jeopardy is a fundamental constitutional right, but it does not apply to private disputes. The government cannot try someone twice for the same crime (a very good idea, even if it sometimes results in an injustice). But a second trial for civil liability does not involve the government, so due process is not implicated in any way. Yes, there are two trials, yes there are two sets of lawyers, yes much of the same evidence will be presented in both, but they are very different animals. The purpose of one is to deter criminal conduct and protect the public. It involves the government seeking to take away the freedom and liberty of a private citizen. The purpose of the other is to compensate a private person for injury caused by another. It involves only money and property.

    When the news reports things about high-profile trials that don’t immediately make sense, I know it’s tempting to throw your hands up and blame it on those “greedy, self-serving, unethical lawyers.” (Which by the way is no more true, and no less hurtful, than the stereotype that all programmers are socially inept geeks.) But regardless of your opinion of lawyers as a whole, when you consider things from all different angles, I think you will see the legal system is designed to do justice. Think of it as a software application that has been in beta test for more than 2 centuries. There may be minor bugs here and there, and it needs minor adjustments from time to time, but there are no obvious, gaping holes in basic functionality.

  • March 6, 2009 at 12:31 pm

    Oops. In the second to last paragraph, I meant to say “double jeopary” instead of “due process” — another fundamental constituional rights. Please pardon this type

  • March 6, 2009 at 12:54 pm

    Darryl – thanks for the incredibly diligent and accurate post. You’ve confirmed well how the law works today.

    But I’m stubborn and unconvinced that this is right process! 🙂

    I am grateful that our penal system requires a heavy proof before throwing someone in jail. I’m not saying it should be easier to convict on criminal charges. I’m also not saying that we should make civil disputes as difficult as proving criminal guilt. However, when you have done the heavy-vigor trial already (its a sunk cost), I don’t see how or why the same individual should be tried for a civil case on the same issue. The current system deals with multiple shades of gray – you “might” be guilty and you can be tried multiple times using different metrics to decide whether you might be guilty.

    We can wrap it in semantics all we like – but at the end of the day – the person is being tried for the same crime twice with different processes. That is double jeopardy. I realize that the current law doesn’t see it that way (the civil suit is about “wrongful death”, not murder), but that is broken. In this particular case, he was tried twice for murder, just under different rules with different consequences.

    When a dispute involves a specific, criminal event (like crashing my car or OJ’s murder case), the legal system (not sure who gets to decide here – prosecutors or victims or who) should pick whether they want the civil trial or the criminal one. If they lose the criminal case, they can’t go after the civil case, because the defendant was found not guilty. On the other hand, if they win the criminal case, then the civil case is easy – guilt is already proven – and we can all move on to just figuring out the right damages. I’d bet OJ would never have been tried criminally, and the victims and lawyers would have just gone for the money. But that is conjecture on my part. Fortunately, its relatively rare that we have multi-millionaire killers.

  • March 6, 2009 at 2:39 pm

    Mike —

    Thanks for considering my points. I’ve enjoyed our discussion and considering your position.

    I guess I can see your point that two trials for the same conduct is inconvenient for the defendant. It also increases his expenses (which are certainly not trivial), and is maybe even a little inefficient from a process standpoint. For someone who is found not guilty and not liable, I can understand the view that they had to “prove their innocence” twice, so to speak, and that somehow seems unfair.

    In my view, however, a single trial system would create even more unfairness. Given the different burdens of proof in criminal versus civil trials, implementing a single-trial rule would require that we either raise the bar for civil liability or lower the bar for criminal guilt. If the choices are (i) raise the bar for totally innocent victims to recover for their loss, (ii) lower the bar for the accused so they can be found guilty based on a preponderance of the evidence, or (iii) require the accused to provie his innocence twice, I think I’d pick number 3 as the lesser of 3 evils. It results in higher transactions costs, but ensures the competing interests of everyone involved are properly resolved and does not further victimize the victims. But this is just a matter of my opinion and I can understand where you might disagree.

    By the way, this –> [“On the other hand, if they win the criminal case, then the civil case is easy – guilt is already proven – and we can all move on to just figuring out the right damages.] is actually is place already and does provide for some efficiency in the process.

    And I competely agree with this — > “Fortunately, its relatively rare that we have multi-millionaire killers.”

    Thanks for a lively discussion.


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