OJ and double jeopardy

By Legal Eagle

Well, I can’t resist getting up on my soapbox about this one. A reader of the Soapbox sent me an article last week about OJ’s plans to release a book called “If I Did It“. The premise of the book was OJ’s quasi-confession: “I’m not saying I did kill my wife, but if I did, here’s how I did it.” Apparently, after outraged protests, the book has now been cancelled.

I have to say that I’ve never been able to watch those Naked Gun movies again after OJ’s trial. The man just repulses me, and I feel sick when I see his “goofy but lovable” act. He seems to have absolutely no shame, as this book indicates.

OJ was acquitted in the 1995 criminal trial for his wife’s murder because he was black, the jury was primarily black and the defence cleverly shifted the focus of the trial on to issues of race (and away from the question of whether OJ actually “did it”). Los Angeles was still smarting after the Rodney King riots, the acquittal of the police officers involved in beating King, and the brutality and racism of the LAPD. According to Wikipedia, the case still divides America along racial grounds, with most white Americans believing that OJ is guilty and most black Americans believing that OJ was framed. There is no doubt that LAPD had a problem with racism and brutality towards black Americans, but OJ was hardly the average African American with no resources and little education. OJ’s case makes a mockery of those African Americans who have genuinely been discriminated against in the American justice system.

It’s never good for the criminal law when a case like OJ’s occurs. Should OJ be able to be tried again? I have to say that from a purely non-legal standpoint, I’d be sorely tempted. I strongly suspect that OJ got away with murder…literally. However, we have a rule in common law countries about “double jeopardy” – you can’t be tried for the same crime twice. As a lawyer, I find the logic behind the rule compelling. The reasoning is as follows:

  • it forces prosecutors and police to put forth the best case possible first time around;
  • otherwise, police and prosecutors could just keep trying someone until they got the result they wanted;
  • it embodies the notion that a person should not go through life with the constant possibility that they may be charged with a crime for which they have already been acquitted;
  • we entrust juries to make determinations about guilt or innocence, and should not “second guess” whether or not they have made the correct decision.

There were some suggestions by the Federal Attorney-General a few years back that the double jeopardy rules in Australia should be amended. However, no consensus could be reached between State and Federal Attorneys-General. The Model Criminal Code Officer’s Committee released an interim report in March 2004 on the subject, which merely agreed that further investigation needed to be made into the possibility of allowing retrials where a trial has been “tainted”.

However, NSW has recently amended its double jeopardy rules. On 17 October 2006, legislation was passed which abolished the rule against double jeopardy in certain specified cases. The Director of Public Prosecutions may make an application to the Court of Criminal Appeal seeking a retrial in certain circumstances. The Court may order a retrial where:

  • Someone has been acquitted of a “life sentence offence” (murder, violent gang rapes, large commercial supply or production of illegal drugs) and there is “fresh and compelling” evidence of guilt;
  • Someone has been acquitted of a “15 years or more sentence offence” and the acquittal was tainted (by perjury, bribery or perversion of the course of justice); and,
  • Someone has been acquitted in a judge-only trial or where a judge directed the jury to acquit, if the acquittal involved a question of law alone.

The Federal Government has been pushing for other States to enact similar legislation. It will be interesting to see how often the NSW legislation is used and whether the Court of Criminal Appeal will be willing to order retrials in many cases.

In any case, even if there were legislation such as the NSW legislation in place, it would be unlikely that OJ could be retried pursuant to such legislation.

However, another interesting legal issue occurred to me this morning. OJ had already been paid a $3.5M advance for the book, which he admits to having spent. This immediately put me in mind of the case of Attorney-General v Blake, where the British government successfully sued an ex-spy for the advance he received for his memoirs detailing his defection to the Russians. The case can be distinguished because OJ was acquitted in relation to the criminal trial (whereas Blake was found guilty of his crime – he subsequently escaped to Russia). However, OJ has been found liable in the civil case…and has not paid his ex-wife’s family or the Goldman family the money he owes them. Could the families sue him for restitution of profits made from wrongdoing? Hmm, interesting question.

One Comment

  1. iain
    Posted November 26, 2006 at 10:19 pm | Permalink

    I wonder if another publisher will pick up the book?
    Double Jeopardy does give some one protection against a never ending series of court cases but there are times, it seems, when compelling new evidence comes up that another prosecution can be justified but the question is should we change what has been a successful concept for those few cases? A tough one for which I have no answer.

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    […] ill gotten-gains Jump to Comments I’ve posted before about O.J. Simpson’s book, If I Did It, and the resulting furore. In fact, in my previous […]

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