CNN reports:
O.J. Simpson faces the prospect of spending the rest of his life in prison after he and co-defendant Clarence "C.J." Stewart were found guilty on 12 charges, including armed robbery and kidnapping....
The case involved a Las Vegas, Nevada, hotel room confrontation over sports memorabilia. Simpson said the items had been stolen from him....
Prosecutors charged that Simpson led a group of men who used threats, guns and force to take photographs, footballs and other items from memorabilia dealers Bruce Fromong and Al Beardsley in September 2007....
So when the judge is deciding on Simpson's sentence, may he take into account Simpson's killing Nicole Simpson and Ron Goldman, and give Simpson a longer sentence than he'd give a first offender charged with the same crimes?
Yes (as I mentioned last year), at least as a matter of federal constitutional law. In sentencing, a judge may take into account any past crimes on Simpson's part, using a preponderance of the evidence standard, even if an earlier jury had found that Simpson's guilt of those crimes hadn't been proven beyond a reasonable doubt.
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 the judge in this case would indeed act this way; but the federal Constitution would let him act this way if he so chose.
Now there might be some Nevada rules that prohibit this; I did a quick search and couldn't find any, but if any of you know Nevada law on the subject and can enlighten me, I'd be much obliged. But as a matter of federal constitutional law, a judge may (for instance) sentence Simpson to (say) life in prison for the robbery and kidnapping -- based partly on Simpson's past misconduct -- even if the judge would have sentenced a first offender only to (say) 10 years in prison.
How exactly would the judge here apply a preponderance of the evidence standard to a trial that happened 13 years ago? Does he just say "oh yes, I remembered when Simpson was acquitted in '95, what a miscarriage of justice that was" and just apply the enhancement? Or does he have to review all of the facts and evidence again in some way?
Thanks in advance—-I'm honestly curious how this would work.
That's not quite right. All facts that can increase a sentence beyond the statutory maximum (e.g., top of the guidelines) must be found by a jury. Consequently, if the sentencing judge uses the Juice's priors to enhance his sentence but doesn't exceed the stat max, there's no 6A issue.
SHOULD the judge consider the killings and give a harsher sentence? Is he not doing his job optimally if he does not?
> How exactly would the judge here apply a preponderance of the evidence standard to a trial that happened 13 years ago?
I would think they could use the civil case for proxy. There the jury found by preponderance of the evidence that OJ did it.
he was absolved of murder , how can you take in account guilt in that case?
That means he will be judged twice for the same felony.And in no western country the double jurisdiction allow to avoid the double jeopardy
h
The more interesting consideration is what someone mentioned re increasing the sentence beyond the statutory maximum requiring a jury trial. This is certainly true as we've seen in Booker and its application to state sentencing schemes...e.g. Crawford in CA.
The real question is how Neveda's sentencing scheme works; is it like CA's where it would trigger Booker and Apprendi issues whenever the judge goes beyond a determintive presumption? Or, is it entirely at the discretion at the judge? If it's at the judge's discretion then he can certainly consider the fact that OJ was arrested and tried for the double murder, that a jury found him guilty of it by the preponderence of the evidence, and his conduct since his criminal acquittal. To answer the other person's question, in sentencing the judge would have before him a rap sheet of all of OJ's contacts (arrests, not just convictions) with the police and surely the prosecution in its sentencing memorandum may put before the judge the civl judgment.
Hypothetical: There is NO question that X is your property. Without the use of guns or other weapons--using only your powerful body and the minimum force required to achieve your end--you retrieve X from the person you KNOW took it in violation of the law, something about which, retrospectively, proper judicial authorities concur with you.
Have you broken any law? What CAN you do without breaking the law? Have we been reduced to being required to "call the authorities" for every infraction of our rights?
Please note: while the second OJ trial raises these questions, I'm in no way suggesting the hypothetical fact pattern laid out above corresponds to the facts of the second OJ trial.
I don't remember whether Simpson was found liable for an intentional tort or just negligence. It was likely the former, but it didn't have to be.
The question is, what is the man's character? The court is free to rummage around pretty much anywhere (including prior legal proceedings) to find evidence on that subject.
I don't know that you are allowed to use force to take your stuff back from a thief, but most (all?) places allow for a citizen's arrest. Early media reports (always suspect) suggested that there may have been an honest dispute about the ownership of the relevant items, i.e., that the memorabilia dealers came upon them legally (or thought they did).
Relieving a party of your/his property and then leaving, is a whole different thing than using force to hold the party for the police. I'm still not clear on why OJ couldn't have let the police handle the whole deal. It sounds like he was--at best--convicted of felony stupid.
I also seem to recall complaints by Simpson that on previous occasions he had attempted to get police assistance with memorabilia issues and was laughed off.
Is enhancement moot? The Dallas Morning News claims he faces a life sentence. Seems possible if he has been found guilty of kidnapping.
The then governor, Pat Brown (Jerry Brown's father) wanted to commute the sentence to life imprisonment but the law then required that a majority of the California Supreme Court had to concur and only three of the seven justices were willing to do so. Chessman was then executed. (I have asked several classes of law students whether they had ever heard of Chessman, and virtually no one had--but circa 1960 he was subject of headlines internationally.)
Subsequently the California Supreme Court has overturned the precedent about kidnapping that had been upheld in People v. Chessman, and the incidental detaining of someone while committing another crime is, I think, no longer kidnapping in California--at least it is treated in some lesser way.
I mention this only because my casual perusal of news articles about Simpson suggests that any kidnapping he may have done is similar to the Chessman "kidnapping."
Why should the law be a fool?
Angus
Yeah, that's why it took them 13 hours to reach the verdict. Because all they said was "let's convict him for what he did in 95." And that is why the convicted his co-defendant on all charges, because they were getting revenge on OJ.
I'm too lazy to Shepardize these so take this with a big grain of salt.
As for whether the white people on the jury wanted "payback" for 15-year-old murders: I can't peer into their minds but that seems like a big thing to accuse them of. The alleged (and now proven) crime was pretty much all on tape; if it set forth the elements of the crime, that was probably enough. Everything else (cross-examining the scummy witnesses) was just window dressing. Perhaps it pushed them over the line though: often you see juries say "a pox on all their houses, the victims are scum" and come back with lesser verdicts or acquittals, but here they had reason to think OJ was as bad or worse than the witnesses against him. I don't know if that makes his trial "unfair," certainly you can't argue a famous defendant can only be tried by jurors completely unaware of their existence. Recall too, that several years ago OJ was tried and acquitted by what I'm assuming what a mostly white jury in Florida in a road-rage case.
Also I admit the little bit of this I heard from highlights and summaries made it sound like a bullshit case, to judge from the "quality" of the witnesses against him. Again- I assume the tape was determinative.
From the little I've followed this case in the press it sounds like he has a decent Batson argument. The prosecutor's justification for tossing black jurors sounded awful flimsy.
Incidentally, Apprendi shouldn't be an issue here -- it sounds from media reports like the judge has more than enough ability to keep Simpson in jail for life by stringing together authorized sentences for different counts consecutively, making it unnecessary to use alternative sentencing enhancement authority to exceed the statutory max.
OJ acquitted of murder, October 3, 1995
OJ guilty of kidnapping/armed robbery October 4, 2008
"Hypothetical: There is NO question that X is your property. Without the use of guns or other weapons--using only your powerful body and the minimum force required to achieve your end--you retrieve X from the person you KNOW took it in violation of the law, something about which, retrospectively, proper judicial authorities concur with you.
"Have you broken any law? What CAN you do without breaking the law? Have we been reduced to being required to "call the authorities" for every infraction of our rights?"
Generally, if your property is in someone else's possession, you can only recover it by self-help if that self-help does not involve a breach of the peace. For example, you can't repossess a car (even if they buyer has stopped making payments) by breaking into a garage and taking it. You can only repo from the street.
Further, you can't just call the cops, convince them, and have them go and take the stuff back under the threat of arresting the thief (a point on which a lot of cops are confused - I forgot the name, but there's a Supreme Court case on this involving the Cook County, IL sheriff). The cops *can* arrest a thief, and they *can* decide not to if he gives the stuff back, but what they can't do is deliever the stuff to you over the thief's protest. The only thing you can do is sue the thief and get a judgment for possession.
In some ways this seems unfair, but the point is that no government can allow people to engage in private wars, even private just wars. Thats the fundimental differene between government and anarchy.
If the disputed property is likely to disappear, as in this case, could the putative owner, such as O.J., obtain a temporary order seizing it ex parte?
Yes. Every state's law with which I am familiar provides for some sort of ex parte seizure, subject to a later, more deliberate resolution. Typically this sort of seizure is only allowed if one posts a substantial bond, like double the value of the property being seized.
I've counselled a number of clients who've wanted to use this sort of procedure, until faced with the necessity of putting their money where their mouth was. Odd that.
Additionally, there is no Apprendi issue. As part of the verdict, the jury found the use of a deadly weapon (which is an enhancement under Nevada law) with respect to the kidnapping, robbery, and coercion counts. Under Nevada law, using a deadly weapon while committing most felonies results in a consective sentence equal to the underlying sentence on each count where the weapons enhancement is found.
Wikipedia identifies 12 charges against Simpson. For First Degree Kidnapping (2 counts), Simpson faces either a 5 to 15 year sentence on each count or 5 to life.
Each Robbery count (2 counts) carries a sentence of 2 to 15 years.
Assault with a Deadly Weapons (2 counts) has a 1 to 6 year sentence (but no addditional consecutive sentence for the weapon).
Burglary While Possessing a Firearm carries a sentence of 2 to 15 years (but no additional consecutive sentence for the weapon).
Coersion has a 1 to 6 year sentence on each of the two counts.
Two of the three Conspiracy counts carries a sentence of 1 to 6 years. The third one carries a possible one year sentence.
The bottom line, simple math version when all is aggregated is that the trial judge could effectively sentence OJ to 70 years to life if she wanted, since she has the discretion to run sentences consecutively if she chooses.
On the other hand, the MINIMUM sentence that OJ could receive under Nevada law, if all sentences ran concurrently would be consecutive sentences of 5 to 15 years, meaning an effective sentence of 10 to 30 years in prison.
I suspect OJ will get something in between those two—and given his age (61) even a minimum sentence makes it highly probable that he will die in prison.
The problem, as I see it, is that if nearly every robbery is also defined, as a matter of legal technicality, as kidnapping, the transparency of the system to non-lawyers suffers. The system is left with the following unattractive options:
1. Sentence every robber to a term longer than the rules provide for robbery;
2. Sentence those who plead guilty to the robbery sentence, and punish those who go to trial by tacking on kidnapping. This has the added bad feature of "letting them off easy" in a plea bargain, at least as seen by the (understandably upset) victim. Of course, it is easier on the lawyers and judges.
3. Make the sentence for robbery much less than would be justified by an ordinary robbery/kidnapping. Problem then is that ordinary citizens who just look at the letter of the law would think that robbery is underpunished, because they don't understand that essentially all robberyis a double crime.
Of course, one way out of the problem would be to rely on prosecutors to use their discretion to not double-charge unless there are, in common understanding rather than legal technicality, two separate crimes. Problem with this is that most prosecutors seem to be victims of a political Gresham's Law, with the clear political demand on the side of more convictions and longer sentences, irrespective of mere facts in particular cases.
Any prosecutors care to comment on these views?
Dave N's post tells us why these other charges were added: According to him, "using a deadly weapon while committing most felonies results in a consective sentence equal to the underlying sentence on each count where the weapons enhancement is found." Thus, at a minimum, he's looking at 10 to 30. That sounds like a fair sentencing floor for a robbery case.
I often wonder if it is not a stratgey to include a number of charges just so the jury has the opportunity to find guilt somewhere.
An insightful ABA Journal article written on the subject this past August is available here.
I wonder the same thing. When he received the advance for his book "If I Did It," OJ apparently set up a shell corporation and had the publisher pay the corporation rather than himself to avoid having the money seized as part of the outstanding civil judgment. Also as a non-lawyer, I'm not sure why this doesn't qualify as money laundering but regardless, it makes him an arrogant scumbag. That's something the judge should be able to take into account, I would think.
Here's a note I sent to some friends about the trial, which may be of interest to some here.
I would add that thinking that a sentencing judge would ignore all of OJ's, um, cutting-edge past would be the same as thinking that most jurors would ignore some material relevant remark made in court which they are told to ignore by the judge.
************
Guys
How will OJ be able to continue his hunt for Nicole’s killer now that the law has put him in jail?
Jeepers, Fate gave "The Fugitive" enough the time to catch the bad guy. Not fair.
PS: I’m sure that a lot of folks had the same thought &may’ve expressed it somewhere.)
PPS On a serious note, another old guy with no “priors” who did what OJ did would be thought of as just a jerk in a caper &would probably have been able to avoid any trial &just plead guilty to Jerkdom in the First Degree with no jail time but lots of do-good "community service" like teaching golf to minorities )-:. Just think of this as OJ’s lifetime-achievement award.
And don't forget Rae Carruth. That's quite a "triplets" there.
Drackman (again): Anyway, a long sentence won't matter, come the last days of an Obama administration, Jan 2013 or 2017, he'll get a Pardon.
The POTUS can only pardon people convicted of federal crimes. This is a Nevada state case, so the governor of Nevada would be the one to pardon OJ.
Generally, if your property is in someone else's possession, you can only recover it by self-help if that self-help does not involve a breach of the peace. For example, you can't repossess a car (even if they buyer has stopped making payments) by breaking into a garage and taking it. You can only repo from the street.
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Just to be clear, can't you repossess chattels during hot pursuit? In fact, can't you use a reasonable degree of force when repossessing chattels during hot pursuit? Obviously, this exception wouldn't apply to OJ. But still, if some guy steals my car, I wanna be confident that I can run him down and beat him up to take it back.
On the first point, the judge refused to make the finding the prosecutor wanted. On the second point, the law was clear, and he could not get acceptance of responsibility. Even on the first point, I think the judge may have been on thin ice. I left before the case went through the Circuit Court, but I would not be at all surprised if it were remanded for the court to make a finding on the two counts on which the guy got acquitted.
The principle only applies from one criminal case to other criminal cases and similarly from a civil case to other civil cases. It does not cross between civil and criminal.
Thus in the OJ Simpson case any criminal court will be estopped from treating him as though he were guilty of the 1995 murders. Thus the judge in Las Vegas will be bound by law to find that he did not commit the murder in any criminal consideration.
Samstone4
Sorry - I'm not sure I can give you the confidence you seek that "hot pursuit" is OK. For one thing, "hot pursuit" is essentially a doctrine in the law of war - and PRIVATE WARS ARE NOT LEGAL in any state. This isn't just some liberal pantywaist innovation - its been a foundational principle of every post-feudal government that I know of.
In the second place, many (though not all) states don't allow the use of deadly force in defense of property. This doesn't come up much, because in most cases of attempted robbery there is a credible threat to the person of the victim. However, in many states you may not, for example, shoot someone from your porch if the are breaking into your car on a public street. See for example Oregon Revised Statutes 161.229. You could, in Oregon and I expect in most states, chase them down and attempt to make a citizen's arrest. However you would not be justified in using deadly force to do so, and if you are dealing with people likely to resist violently you would be putting yourself in a dangerous physical and legal position.
So, I'm sorry but you can't legally chase down amd beat up other people in civil society, even if they are bad guys.
Wikipedia disagrees with you:
One may use force in order to recover a chattel only if the wrongdoer is either in the process of taking the chattel or the owner of the chattel is in "hot pursuit" of the chattel.
See Wikipedia, "Convesion, http://en.wikipedia.org/wiki/Conversion_(law).
All of your observations concerning deadly force are well taken, but I don't think beating someone up is deadly force. Perhaps if I smacked him repeatedly over the head with a blunt object it would be, but that would be more than simply beating him up, now wouldn't it?
As far as hot pursuit of chattels goes, I'm thinking this refers to the fact that if someone steals your purse, you're perfectly justified in giving chase and knocking them over to recover your property, and no one is going to prosecute someone who does that.
Furthermore, I don't think it would mean you could beat them to a pulp or purposely harm them in any substantial way. I'm sure there are some interesting legal cases that have come from this concept.
Personally, I don't mind if the judge can look back at some of OJ's previous misdeeds-- I assume this would also include arrests for abusing Nicole prior to the murder trial and trying to sidestep the civil trial judgement, as someone else mentioned, through shell corporations. There's also that book he published where he said how it would've gone down IF he did it.
I think the police and prosecutors in this case already overreacted to this particular incident in question-- I've heard the police even bragged about being able to finally get OJ at the scene afterwards-- and the prosecutors were clearly laying it on thick with so many charges. The kidnapping in question here is not what anyone would consider kidnapping if asked about it separately. Now that it's done with, he is obviously guilty of committing this incident whatever one considers it to be, and the judge should be able to consider the man's whole life.