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October 4, 2008

Now that OJ Simpson has been found guilty, should his sentence be enhanced based on his (acquitted) prior killings?

As detailed in this AP article, late yesterday OJ Simpson was found guilty in state court of robbing two sports-memorabilia dealers in a Las Vegas hotel room.  Here are more particulars from this Los Angeles Times article:

Simpson and his codefendant, Clarence Stewart, were both convicted on all 12 counts.  As the court clerk read "guilty" 24 times shortly before 11 p.m., Simpson grimaced and then nodded slightly, quickly regaining his composure. From the gallery, his sister, Carmelita Durio, wept on a friend's shoulder.   Both defendants were handcuffed and taken into custody.  Durio's weeping became wailing as marshals escorted Simpson from the courtroom.

The verdicts mean that Simpson, 61, faces a possible life sentence for a six-minute confrontation with two sports memorabilia dealers last year at a down-market casino hotel. Sentencing will be Dec. 5.

Among other issues, it is interesting to speculate whether Simpson should and will have his sentence on these new convictions based on his prior double killing, despite his acquittal on murder charges.  After all, a civil jury found Simpson guilty of these killings by a preponderance of the evidence, which is enough to satisfy any due process requirement for enhancing a sentence based on acquitted conduct. 

Thus, under existing federal constitutional law, the state judge sentencing Simpson on these new robbery convictions could enhance his sentence based on Simpson's prior killings.  Whether he will (either formally or informally) is a different question.

Some related posts on acquitted conduct enhancements:

UPDATE:  I see that Eugene Volokh covers this fascinating OJ sentencing issue in this new post at The Volokh Conspiracy.  I am glad to see that I am not the only one intrigued and bemused by the fact that OJ might receive the short end of modern acquitted conduct sentencing rules.

October 4, 2008 at 04:16 PM | Permalink


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Yes - and there is a better argument for it than in other acquitted conduct cases mentioned in this blog. Simpson had the benefit of a jury trial when he was found liable for the killings - this is not simply a judge deciding that the government's proof fell between the civil and criminal standards of proof.

Suppose a defendant was being sentenced for a sexual assault. Would the fact that in a prior civil case he had been found liable for sexual harassment be relevant to his correctional needs? What about a drunk driving fatality case where the defendant has previously been found to have caused a serious accident by reckless driving? Don't we want judges to be able to consider all relevant conduct (good and bad) in fashioning a sentence?

If the purpose of a criminal trial was simply for the jury to determine "the truth" then acquitted conduct should never be used. (If this was the purpose we have created a particularly poor system to achieve such an objective.) This, of course, is not the purpose of a criminal trial. The purpose is to resolve the government's accusation against the defendant in a way that our system, through experience, believes will produce reasonably accurate results and protect fundamental rights of the defendant. A criminal jury's determination that the defendant should be acquitted is a verdict on what the government did or did not do at trial. It is not a verdict on what the truth is. People who attack the use of acquitted conduct are treating it as a finding that something didn't happen. That treatment doesn't track with how our system works.

There are many things that a judge might consider in fashioning a sentence that have never been subjected to a jury trial. Suppose the defendant has been released pretrial and picks up several violations of his release - drinking and not checking in regularly. At sentencing the PSR recommends a harsher sentence because the violations of pretrial release conditions makes the report writer think probation won't work with this defendant (after all - he couldn't do what he was told on pretrial release). Should there be a jury trial on the defendant's pretrial compliance before the judge considers it? What if the judge considers the defendant's employment history (or lack thereof) in deciding a sentence? Should we have a jury trial to decide when, where, and how much the defendant has worked? How about a judge who finds the particular offense conduct of the defendant to be extreme? Should the jury have to be advised of what the range of conduct is and make a finding as to where on the continuum this case falls?

If acquitted conduct as a sentencing factor is an intolerable evil then virtually everything that factors into a sentence is likewise an intolerable evil. The only solution is for judges to impose a single mandatory sentence for each offense. In such a system the judge is simply carrying out the legal requirements of the jury's verdict and there is no other fact finding involved - of acquitted conduct or anything else.

I wouldn't want to live or prosecute under such a system. Would you?

Posted by: Alan O | Oct 4, 2008 7:03:34 PM

Doug: I think You and Volokh are off base on this proposition. Or maybe you are just mixing apples and oranges. My understanding is that a Court can make a finding at sentencing using the preponderance standard on charges that were part of the Government's instant prosecution, but not on a prior prosecution on which the Court has not heard evidence. When considering prior record information however, a long line of case law states that the sentencing Court can consider any information that has a sufficient indicia of reliability---in imposing sentence. Thus, without ever mouthing the words "I find Mr Simpson guilty of the murders of Nicole Brown and Ron Goldman, the Court use his/her sense of that case to impose any sentence up to the statutory max for his counts of conviction.

Posted by: mjs | Oct 5, 2008 8:04:25 PM

Why should it be relevant to sentencing Simpson in this case whether or not he killed Nicole Brown? THat matter was dealt with in a criminal trial and in a civil trial. WHat is the theory that permits his prior bad acts - prior acts wholly unrelated to the conviction in the present case - to be relevant to his sentencing for the kidnappaing/robbery conviction?

Posted by: John | Oct 5, 2008 10:16:59 PM

mjs, to answer your question, I would have to say that prior bad acts could prejudges a jury to find an otherwise innocent person guilty; basically finding someone guilty of a previous violation, not of the current charge. When it comes to sentencing though, he’s already been found guilty. A first time offender may benefit from the possibility that he simply made a one time mistake. Subsequent charges or convictions simply show that the defendant didn’t learn the first time.

I find it amusing that Mr. Simpson got away with murder 13 years ago only to face a life sentence for his poor judgment on how to retrieve merchandise that may, in fact, have actually belonged to him.

Posted by: tmf | Oct 6, 2008 4:14:40 PM

Enhancing a current conviction sentence based on a prior, unrelated court case, that criminally found the defendant not-guilty seems like double jeopardy. It would be one thing if he was found guilty, became a felon, and therefore, he couldn't own a firearm. Thereby, enhancing the sentence due to the commission of a crime by a felon with a firearm.

Bringing in the civil case seems nonsense (totally irrational). Why stop there? What about other civil offenses, or perhaps unsportsman like conduct on the football field?

I might of missed something from the '90's, but I don't recall robbery, false imprisonment as charges the LA DA level against OJ.

That's just my 2 cents as an engineer working Michigan.

Posted by: Paul | Nov 4, 2008 1:55:16 PM

Absolutely agree with mjs.

It doesn't matter if The Juice is a homicidal maniac.

He did (or didn't do) what they acquitted him for in criminal court, and found him responsible for in civil, and now that's done.

The fact that a civil court found him responsible (and even less the fact that he merely **seems** to have been guilty without having been found so) does not have any bearing on this prior trial or sentencing.

The only time a previous conviction should have bearing on sentencing is if it's a 2nd or 3rd conviction for the same crime, OR if the previous conviction has some bearing on how the person should be housed.

Previous NON-convictions (which is what you have addressed in parts of your post, guy above Alan0, should never have any bearing on criminal proceedings, nor on sentencing, excepting housing of the prisoner. (E.g., if it was quite clear that a brutal, repeat "joy" killer got off on a technicality in the past, you might house him in a different manner simply based on evidence that never resulted in a conviction.)

Those are the only situations and manners (very limited) in which you can look at these sorts of things, and that's as it should be.

Nobody should get years tacked on because they committed an unrelated crime sometime in the past.

Posted by: Justin | Nov 7, 2008 12:38:02 PM

The "people" seized the opportunity to charge ... then squeeze co-defendants ... to secure a belated criminal conviction ...
after a silly keystone cops, soap opera incident that barely warranted a police report.

Revenge justice may not be pretty ... but it does satisfy a basic animal instinct.

Posted by: Kelly | Nov 18, 2008 6:10:42 PM

I'm a retired civil lawyer, mainly construction and land use in my former private practice, but with an additional wide variety of civil representation when I worked for a small California County. Not much criminal law, though.

It seems to me finding a coherent legal principle regarding acquitted conduct enhancements in Simpson's case is stunningly difficult. Conceptually, the first jury could have found proof in the criminal trial far surpassed the preponderance standard even though narrowly failing to extinguish all reasonable doubt, while the second civil jury could have found the proof actually reached a reasonable doubt standard, but the jury wasn't asked. With those assumptions, the civil verdict clearly would warrant enhancing the sentence. But the converse assumptions yeild a converse conclusion. Suppose the criminal acquittal was due to a complete failure of all proof even to reach a preposderance standard and the civil verdict was based on a narrow margin and the jury's awareness they were dealing with mere money, not possible capital punishment. Surely this warrants no enhancement.

If we also assume the judge in Las Vegas should not substitute her judgment for the quality of the evidence considered by each jury under Res Judicata, then where is any criterion by which to decide? What principle is controlling? Yet how could Simpson be allowed to escape justice twice?

Are we in the realm of "Natural Law," such as in Nurenburg? There was no prohibition of "Crimes against humanity," but "Humanity" knew them when they saw them. "Hard cases make bad law?"

Thanks, Lee Humes

Posted by: C. Lee Humes | Nov 18, 2008 7:27:41 PM

OJ Simpson had it all, I don't possibly know how he messed up so badly. His past shouldn't factor in at all, whether he did it or not, because he was found not guilty.

Posted by: National Sports Memorabilia | Jan 20, 2009 11:56:28 AM

All Jurors are told to consider wether a witness had a previous history that might cast doubt as to his or her reliabliity as a witness...
Simpson , as a whole , should not be considererd with any less carefullness and thought, but should himself be regarded as the Sum of all parts of his recorded Psychological makeup

Posted by: Martin | Apr 2, 2009 4:04:20 AM

I am considered a racist by some because I think that inter racial dating and marriage is against GODS word, but I believe OJ Simpson was set up by crooked cops, and Ron Goldmans father. I think all the crooks who turned witness on OJ Simpson was paid off by Goldman. If I was OJ Simpson when if ever I was let go, I would really be swinging a huge blade this time on a bunch of corrupt self righteous people.

Posted by: CA | Apr 25, 2009 2:21:42 PM

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