The AP reports:
O.J. Simpson was arrested Sunday and faces multiple felony charges in an alleged armed robbery of collectors involving the former football great's sports memorabilia, authorities said....
The charges against Simpson will include robbery with a deadly weapon, conspiracy to commit robbery and burglary with a firearm, all felonies, Dillon said....
Simpson, 60, has said he and other people with him were retrieving items that belonged to him. Simpson has said there were no guns involved and that he went to the room at the casino only to get stolen mementos that included his Hall of Fame certificate and a picture of the running back with J. Edgar Hoover....
I'm not an expert on Nevada state sentencing rules. But I can say that, if Simpson is convicted, and the judge is making a discretionary sentencing decision about Simpson's sentence, the federal Constitution would (1) let the judge take into account any past crimes on Simpson's part, (2) using a preponderance of the evidence standard, (3) even if Simpson had been acquitted of those crimes. This means that a judge could increase the penalty all the way up to the statutory maximum for the crimes of which Simpson is convicted, far beyond what the norm would be for a typical armed robbery, burglary with a firearm, or what have you.
The theory behind modern American sentencing, after all, is that while guilt is about what the defendant did in this case, sentencing may (and should) in part turn on the defendant's general character. That's why first offenders are often treated leniently, but people with long criminal history records are punished more harshly.
Moreover, proof beyond a reasonable doubt has never been required at sentencing. Historically, judges could make decisions based on facts that hadn't been proven in any formal way; certainly facts shown by a preponderance of the evidence suffice. For this very reason, judges could consider alleged past criminal conduct of which the defendant had been acquitted: The acquittal simply shows that the conduct couldn't be proven beyond a reasonable doubt, and doesn't preclude proof by a preponderance of the evidence.
The Supreme Court has held that in presumptive sentencing guidelines schemes, all facts relevant to enhancement (except those which can be proven through a record of criminal convictions, and civil judgments likely wouldn't suffice) need to be found by a criminal jury. But the Court specifically held that judges could find such facts whenever they are making discretionary decisions, rather than decisions under presumptive guidelines schemes.
Simpson has been found guilty by a civil jury of killing his ex-wife and Ron Goldman. (If I'm not mistaken, the jury's award of punitive damages involved a finding of guilt by clear and convincing evidence, though I don't think this is necessary to my analysis.) It's possible -- I'm not sure -- that a judge could simply rely on this past finding; but a judge could certainly enter such a finding himself based on his own review of the evidence.
And given this finding about Simpson's past conduct and therefore his moral character, the judge would be legally allowed to impose a higher sentence than he would on a typical robber, burglar, or what have you. I'm not sure whether a judge would indeed act this way; but the federal Constitution would let him act this way if he so chose.
These are my tentative thoughts; please let me know whether I'm mistaken, though I think I'm right on the constitutional question. Please also let me know what Nevada state law rules might bear on the subject, if you're knowledgeable about Nevada law.
In fact, even when sentencing is not discretionary, the Court may make findings of prior convictions without submitting the issue of prior conviction to the jury. Of course, that assumes the prior conviction was a criminal case with right to trial by jury and proof beyond a reasonable doubt. For those puroses, I assume a civil judgment wouldn't count.
Zathras: Since bail was denied in his case, I can't help but wonder if the past crime had been taken into account
If it was taken into account, it should be of record, with evidence presented to the Court (probably just the judgment). If the judge denied bail based on general knowledge of news reports, that would be a problem (and a highly unlikely one).
I had the same thought - and images of a white bronco cruising down the freeway come to mind...
OJ fled from police in of the biggest media spectacles of the past few decades, which I would consider pretty significant. The judge might not want to a see a white Ford Bronco fleeing down the strip with OJ at the wheel and might have taken that into account.
On a quick skim, I don't see a definition of this term, either in statute or case law, that would exclude acquittals.
I think the answer to your question depends on whether or not the crime was committed with malice aforethought.
"We conclude, therefore, that NRS 200.380 defines robbery as a general intent crime which is meant to include all violent takings from the person or presence of another. The district judge did not err in refusing to give the requested specific intent instruction." Litteral v. State, 97 Nev. 503, 508 (1981), rev'd on other grounds, Talancon v. State, 102 Nev. 294 (1986).
Professor Volokh's discussion of sentencing factors is completely correct. Or as defense lawyers' gallows humor puts it, "innocence is a factor that will be taken into account during sentencing".
Dilan: I agree that a plea bargain is the most likely conclusion, but Simpson may think that he's above the law or may decide to fight because he legitimately thinks that the stuff he stole was his.
But is a judge permitted to take into account certain "facts", when as a matter of law, the opposite is true? A jury has found Simpson not guilty of murder, so how can a judge say that he will enhance the sentence based on him committing those same murders?
Not to be too hyper-technical here, but I don't think he was found guilty by that civil jury, but rather was found liable.
The only fact that's true as a matter of law is that he's not guilty of homicide, not that he didn't kill two people.
On a side note to the main question that Professor V. has posited, if the law prevents a judge from taking the past murder allegations into account in terms of sentencing if a potential guilty verdict comes through, then there is no reason to have judges or human judgement in the law. We might as well have chimps or a computer calculate the sentence based on past actual convictions. No need for human judgment, reasoning or common sense in that case. Just pure mechanical calculations.
My feeling is that the OJ jury brought the right verdict; not 'he didn't do it' but that the state had failed to prove he did.
I don't think that's right. OJ would be on trial for robbery. After briefly reading the statutes on point, the jury would then make a finding of whether a firearm was used in the commission of the offense. If so, they would double the sentence for the underlying offense of robbery, which is anywhere between 2 and 15 years.
("This section does not create any separate offense but provides an additional penalty for the primary offense, whose imposition is contingent upon the finding of the prescribed fact.") NRS 193.165(2)
But this exchange is missing the larger picture here. If anyone is in danger of not having a fair trial, it is the state/people, not O.J. I think too many people will try to bend over backwards to make sure that the state has an even greater burden of proving guilt than normal, in a morally naive attempt to prove to themselves that we have a 'fair' system by knowingly letting a guilty person go free (thus ironically proving that the system is in fact not fair. Too many people close to the legal profession define 'fairness' as the ability of the defendant to walk. That is silly. Any definition of fairness must be tied to an objective sense of justice. If the guilty go free for whatever reason, that is equally 'unfair' as the innocent being punished.
Not to the innocent being punished or to those who sympathize with the innocent being punished.
If you're wondering how this works into the plot, the 'Antigua, Penny, Puce' of the title is a unique and valuable postage stamp fought over by a brother and sister over many years, and the sister -- who claims ownership -- retrieves it at a public auction where her brother -- the possessor -- has arranged to have it sold, and where it is lying on a table in front of the auctioneer. Once she is possessor, he has to sue her to get it back, and the ownership question can be hashed out in court without having to worry about the seven-year-limit.)
Of course, Graves was not a lawyer, and the British law of ownership and possession in 1936 may not have much resemblance to American law in 2007, but still I wonder: is there any such distinction in American law?
It is great that you think you could separate preconceived notions of OJ from your judgement about this crime. But I don't think many jurors would be able to do so. And I didn't miss your "larger picture", that Simpson cannot receive a fair trial favors Simpson in many ways.
You point seems to be that of course OJ's first trial wasn't fair b/c he obviously did it and how could any "fair" trial have occurred that produced the verdict that it did. Our system of "fairness" demands that the jury goes into trial with the belief that the defendant is innocent. Only after the prosecution has convinced me that this initial belief is wrong do I convict.
Here, the point is that from the outset, there are going to be biased jurors looking to settle the score, believing him guilty. So the lack of fairness in the first trial was then the opposite, that they went in thinking that he was innocent? I can't say that I have a problem with that.
Apparently the Founders didn't share your view of justice. The Constitutional protections afforded criminal suspects and defendants express a clear preference for freeing the criminal over punishing the innocent.
Of course, in sentencing on these charges, the judge could also take into account his single season rushing record with Buffalo, and his winning the Heisman trophy by the widest margin ever. After all, isn't being a great football player the surest sign of moral character? They are all role models, right?
Oh, I dunno if it's silly. All I did was reaffirm my belief in the maxim that it's better that 10 guilty people go free than that one innocent person be convicted. The comment I questioned equated one innocent person going to prison with one guilty person getting acquitted.
Here is Breyer, J. summarizing the holding in his dissent:
The Booker remedial opinion and Rita reaffirmed that a majority of the Supreme Court, indeed all of the justices to some extent will allow a judge to use acts not submitted to in an indictment to increase sentencing, facts found by a propenderance of the evidence, so long as the defendant could legally have been given that sentence had those facts not have been found. As long as Nevada law would allow OJ to get the statutory maximum in the absence of the finding that he was responsible for the murder, a judge may use that finding as a basis to choose to impose the sentence.
And how exactly does such variability in sentancing as what is described here pass the test of "Due Process, of Law"? After all, a law is a generalized prescription that if you fit criteria X and do Y, then Z will happen. A reasonable and informed person can know that if they do something, what the legal consequences will be.
Beyond that, I thought that certain determinations of fact were a right reserved by the people as expressed through the jury? Or is that only in civil suits?
Voting any idiot that would do such a thing out of office.
And how exactly does such variability in sentancing as what is described here pass the test of "Due Process, of Law"?
The professor would know better than I would know, but "due process of law" at the time the 5th or the 14th were adopted would easily include giving a judge wide latitude in deciding the sentence.
We try to shield the process and the jury from passion, thinking that the judge would be the best person to dispassionately dispense justice. When we don't do that where would it stop? The judge doesn't properly have the discretion to find for sentences, but does have the discretion to interpret whether evidence is more prejudicial than probative.
The state knows how much discretion and power it has given these judges. We also just have to trust that whoever the judge is in this case will be professional and evenhanded. If it turns out that we can't deal with this trust, then we go to sentencing guidelines, which are just as arbitrary in many cases (three strikes rule anyone?).
Also, according to Greta and the guy at TMZ (I could be wrong on the TMZ initials as I was only half listening) one of the perpetrators with OJ was wired. His own idea. I don't know why you would go to a robbery wearing a mike, but he did. They have the tape. They have the whole thing on tape including time before the robbery. I think OJ is in a heap odf trouble. What I heard of the tape was pretty damming. I believe there are witnesses to the guns and he also took stuff that clearly was not his, such as something related to Joe Montana. As I said, I was only half listening. I don't think you have the right to retrieve your belongings by force especially not at gunpoint. He should have called the cops. But if he did that, the Goldman's would have found out and made him sell the stuff and give the money to them. There was also talk of some lawyer helping OJ hide his money offshore to get around the civil judgement. I think there is a lawyer sweating bullets somewhere tonight.
It was likened to a druggie getting a longer sentence on a minor crime even though he was acquited on a more serious charge. Beware large maximums and multiple counts, it gets ugly quick on the wrong side of that line...
I hear that OJ has only paid 10K of the multi-million civil jugdment against him. I bet he stole what he claims is his property so that he can pay his debt. And I bet some will believe him.
The truth is probably precisely the opposite, of course. OJ said he did not seek police help to retrieve his property because the police in general are unwilling to help him these days. But the cynical might suspect that the real reason OJ used self-help instead of the police to regain his property was to avoid having it attached to satisfy the civil judgment against him. He knew that if he went to the police, the dispute was bound to come to the attention of the holders of that civil judgment and they would go after the disputed property. So instead OJ got together his own posse and tried to retrieve it himself. That way he could secrete it back to Florida and dispose of it surreptitiously so that he or others of his choice gained the proceeds.
And sure enough, now the property is in the hands of the police and its existence has become public knowledge, Fred Goldman, one of the holders of the civil judgment as father of one of the murder victims, is having a lawyer attempt to go after the property to satisfy the judgment.
Bruce Hayden wrote:
I can't remember, but was O.J. allowed out on bail prior to his acquittal for the murders of his ex, et al.? That would have been the time to flee - at least here, even if convicted, he may ultimately see sunlight.
No one seems to have answered this explicitly, so:
Other than trips to and from court, OJ sat in isolation in a cell with a tv parked in front of it for the duration of the murder trial until the day of his acquittal. He wasn't going to get bail after the Bronco flight even though (as I believe without checking it out) bail was technically available under California law since it wasn't a capital case.
This is no different than vigorously prosecuting Al Capone for tax evasion and giving him the maximum sentence over it - even though everyone knows that the only reason his tax portfolio was scrutinized as much as it was by the feds was because he was a bootlegging ganster who always escaped justice. It would still be silly to say that Capone didn't get a 'fair trial' on his tax charges.