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September 18, 2007

Is O.J. being overcharged?

I usually don't closely follow high-profile criminal cases until there is a conviction and sentencing looms. But these cases can provide a unique opportunity to watch and assess the criminal justice system in action, and the news that O.J. Simpson has been charged with ten felonies and a misdemeanor — according to this TalkLeft post, which links the complaint — has me thinking about overcharging and plea bargaining.

As many know (through few will admit), some — only a few?  many?  most? — prosecutors are willing and perhaps eager to file as many charges as they plausibly can in order to create bargaining leverage and bargaining room for inevitable plea discussions.  For a variety of reasons, including providing notice to defendants and perhaps increasing plea and sentencing flexibility, I am not sure borderline overcharging should always be discouraged or considered wholly inappropriate.  But for a variety of other reasons, including putting undue pressure on defendants and potentially biasing trials, extreme overcharging seems likely to produce injustices.  And, of course, the lines dividing proper charging, borderline and extreme overcharging (and even undercharging) are often in the eye of the beholder.

That all said, ten state felony counts for O.J. Simpson arising from just one (apparently aggressive) encounter strikes me as a lot of charges.  But this may be just how it looks from the ivory tower; I hope those who develop, and defend against, charging documents on a regular basis might use the comments to share their perspectives.    

September 18, 2007 at 07:56 PM | Permalink

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Tracked on Sep 19, 2007 6:43:10 AM

Comments

And what of overcharging and sentencing on acquitted conduct? Any studies on that?

Posted by: George | Sep 18, 2007 9:11:34 PM

Now, that we all know how prosecutors abuse their authority. Who is watching them and bringing them to court? If OJ decided to fight it, then the prosecutor will get several indictments from the grand jury to indict him knowing that only one charge have to stick, then they can punish him for all of the indictments

This system stink!

Posted by: | Sep 18, 2007 9:46:36 PM

It seems as if this is just a witchhunt aimed at giving OJ what he "deserves". The problem is, it is not up to Prosecutors and Judges to make that decision as to what an individual deserves based on personal predjudices. As someone who has had direct interaction with the criminal justice system I tend to view things thru a jaded eye, but can I be blamed? We look at instances of individuals being wrongly accused, convicted and incarcerated by rogue prosecutors and if they are lucky enough to have their appeals heard and cases overturned what happens to these prosecutors and judges who in many instances manipulated or withheld evidence? Nothing at all.

Posted by: student | Sep 18, 2007 10:51:29 PM

Speaking of overcharging, have you had the opportunity to review the details of the Jena 6 case in Louisana? It seems as if there is a pattern of overcharging minorities when they step out of line with the white community. If a black person shoots another black, it's OK to reduce charges to simple battery but if a black juvenile has a fisfight with a white kid than charge him with attempted murder as an adult. Now that is overcharging

Posted by: student | Sep 18, 2007 11:00:13 PM

It wasn't much of a fistfight, especially after the victim was on the ground unconscious and having his head stomped on by 6 assailants.

Posted by: rob | Sep 19, 2007 9:11:21 AM

Do we know how prosecutors abuse their authority? We don’t really know that much about what OJ did or didn’t do. So, to assume that the prosecutor is abusing anything is a bit of a stretch.

The following statement doesn’t make much sense:
If OJ decided to fight it, then the prosecutor will get several indictments from the grand jury to indict him knowing that only one charge have to stick, then they can punish him for all of the indictments.

First of this doesn’t really comport with my understanding of criminal procedure in any jurisdiction. You seem to be saying that the prosecutor would indict the defendant for the same transaction multiple times? Under different theories? Or for different factual scenarios? Can you elaborate on what you think their scenario would be? This seems sort of bizarre.

Please don’t make this discussion too vague. The problem with overcharging, from a prosecutor’s perspective, is it really hurts credibility. So, unless a prosecutor has a good faith belief (that he can defend with testimony and evidence), in most jurisdictions, getting a reputation for overcharging people won’t really do them any favors. Finally, if you are a felon, don’t bother responding. I don’t know if you are the same person that said that you had “direct interactions” with the criminal justice system, but if you are, I really can’t trust you.

Posted by: S.cotus | Sep 19, 2007 12:44:48 PM

Do use a sports phrase, I wonder if this is a "make-up call?"

Posted by: Jeff | Sep 19, 2007 1:23:22 PM

S.cotus

"I don’t know if you are the same person that said that you had “direct interactions” with the criminal justice system, but if you are, I really can’t trust you."

I am not that person.
Here's an example; The initial indictment is an information indictment usually used for bargaining. While negotiating, the defendant finally decides to go to trial. The prosecutor then decides to go to the grand jury for a number of indictments. We all know that the grand jury will indict most people regardless of guilt. The prosecutor then come back to the defendant and tell him, now there are more counts and if the defendant plead to x counts the others will be drop. The lawyer than advise the defendant to take the deal because if they lose at trial the maximum will be applied. But what the lawyer don't tell the defendant that even he is plead guilty to the lesser charge and the others are drop, the defendant acquitted/uncharged counts can and will be used to increase the sentence.

Now tell me that this system is fair. Remember, this scenarios applies to both guilty and non guilty.

Posted by: | Sep 19, 2007 1:30:15 PM

Counts 8 seems a bit of a stretch and Count 1 a bit superfluous, but apart from that I've seen worse complaints. In theft cases involving multiple transactions it is typical to see twenty counts. It provides leverage for the state but it also gives defendants an opportunity to negotiate the loss amount down, which at the federal level has a significant effect on their exposure.

These are very serious charges and there are two victims. Assuming that the prosecutor has a good faith basis for believing the state can prove its case beyond a reasonable doubt, I don't think this is a case of overcharging. I think the prosecutor was probably very careful in preparing these charges, given the high profile status of O.J. On the other hand, one may suspect that the typical defendant (given the underlying facts) would not have been charged as aggressively. Assuming that acquitted conduct can be considered at sentencing in NV, why would they treat OJ with kid gloves? He may have been acquitted of first degree murder but there is a civil judgment that easily establishes relevant conduct for sentencing purposes. If I remember correctly, there are also incidents of domestic disturbance following his acquittal. I doubt many prosecutors were happy with the murder verdict and these guys probably feel like they've been given a chance to lock away a murderer. There's very little incentive to treat his case like others.

To the above poster: Acquitted/uncharged counts are not necessarily used to enhance the sentence. Parties often stipulate to a factual basis, sometimes defendants plead straight up to one or more counts and the prosecutor drops the rest, etc. For example, the defendant may plead guilty to possession with intent to distribute but deny that a gun found in his apartment was related to the offense. Or the parties may stipulate to a lower drug quantity to avoid a sentencing enhancement.

Most lawyers that I know do not tell the clients that the maximum will be applied if they go to trial. They certainly tell them what their potential exposure is (and whatever mandatory minimums may apply), and that they risk that exposure by going to trial. They may even warn them about a particular judge. That's very different from telling them that a failure to plead will result in being maxed out.

Posted by: Alec | Sep 19, 2007 2:31:37 PM

First of all, it is difficult to say what a grand juries do when they decline to indict we simply won’t know about it (but it happens). While there are many prosecutorial strategies out there, I would like to see some indication of superceding indictments that seem vindictive and were much more extensive than the original indictment. Does this happen a lot? If so, maybe you can point to some indicia of this being a pattern somewhere?

No lawyer I know will tell a defendant that the “maximum” will be applied simply for not taking a deal. There are circumstances where a defendant is exposed to “maximum,” (or what a judge’s prior history is) but no attorney I know would do what you describe as a matter of course. This would also seem to raise STA issues, so perhaps you could show me a reported case which discusses why what you describe is common and permissible.

Moreover, every lawyer I know that practices in this area will advise the client of what their position will be at sentencing, and what sort of arguments can be made by the prosecution. In most jurisdictions, prosecutors have a policy of stipulating to factual matters – or even to the absence of a fact – for sentencing purposes.

Posted by: S.cotus | Sep 19, 2007 4:47:50 PM

S.cotus, perhaps, you don't know any lawyers who work deal out for their favorite defendant by rolling over the least favorite defendant or representing the prosecutor CI and you at the same time . Please don't tell me that the lawyer should have been reported to the bar. Do you honestly believe the prosecutor and the lawyer would admit to the misconduct?

Posted by: | Sep 22, 2007 3:53:05 PM

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