There is very little room for sympathy for Simpson who literally got away with murder in California — largely due to the worst prosecution team ever assembled by mankind. However, there are a couple of troubling elements here. First, the prosecutors in my view over-charged the case and a life sentence would be far out of line with the actual crime here. While the jury rejected his claim that he was seeking to retrieve his own property, it is notable that this was not some strong-arm robbery. Simpson did not hide his identity and openly sought to take back his property. He used the wrong means, but committed a crime — and a tort if sued later. However, the count stacking in the case seems driven by his celebrity status.
Second, I am very bothered by the anniversary. The court should have timed the case to avoid such a potentially prejudicial coincidence. Recently, I had a judge specifically schedule a trial to avoid any possible chance that the trial would occur around 9-11 due to some terrorism elements. Clark County District Judge Jackie Glass should have done the same. To her credit, she refused to allow attorney David Cook to testify. Cook, an attorney for the family of Ronald Lyle Goldman, was asked by the prosecution to search for Simpson’s assets to satisfy the $33.5 million civil judgment against him.
It was very unlikely that Simpson could be acquitted on all of the counts — particularly when he refused to take the stand. If this was a simple mistake in method, the jury probably expected to hear him say that on the stand.
Simpson could be sued civilly in this matter as he was for the murders. The common law allows owners to protect their property with the use of relatively low levels of force that is not calculated to cause death of serious injury. However, the use of force is greatly discouraged in cases where there is a dispute over ownership between individuals. In some ways, it resembles the case of Kirby v. Foster in 1891 in Rhode Island, where there was a dispute between an accountant and a business owner over 50 dollars. The owner of Providence Warehouse Co. deducted the amount from the bookkeeper’s pay when the books came up short. The bookkeeper then took out the same amount after he was entrusted with money to pay staff. He did so under the assumption that he had a right to self-help after consulting with a lawyer. The owner used force to recapture the chattel. The court ruled that some force could be used to to recapture stolen chattel, but not in such an “honest” dispute where the defendant could rely on the legal process.
Ironically, while the common law does not allow the defense of property with force calculated to cause serious injury or death, you can use such a level of force if (in the course of protecting property) your life is threatened (converting defense of property into defense of self).
Simpson was clearly wrong to use this level of force both criminally and civilly. However, the normal sentence for such a crime would far less than life. There is no room for opportunistic sentence: where a later crime offers a convenient opportunity to sentence Simpson for “the one that got away.”
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