THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Sunday, October 15, 1995 TAG: 9510130097
SECTION: DAILY BREAK PAGE: E1 EDITION: FINAL
SOURCE: BY ANN G. SJOERDSMA
LENGTH: Long : 105 lines
IT'S NOT OVER yet. Not by a long shot. The halfback is still running the plays that Coach Johnnie Cochran sends in from the sidelines. But now there's a new opposing team, with new rules, playing in a new stadium.
O.J. Simpson, part II, civil lawsuit, has begun. In civil court, where compensation of victims, not punishment of defendants, is the main concern, Americans, both black and white, may finally encounter O.J., the man, not the myth.
Stay tuned.
The not-guilty verdict that bitterly divided this nation nearly two weeks ago did not speak to Simpson's innocence, only to his criminal culpability. That verdict stands, unassailable. Simpson did not commit legal ``murder.''
But he may have killed two people.
Terms such as murder, guilt, reasonable doubt and double jeopardy have specific legal meanings not generally understood by courtroom outsiders. ``O.J. Simpson, part II'' no doubt seems confusing to people accustomed to a superficial mass-media interpretation of ``justice.'' Is it double jeopardy? No. Why? Herewith, a quick primer:
Despite his acquittal, Simpson may still be found ``liable'' - responsible as a matter of civil law - for the ``wrongful deaths'' of Nicole Brown and Ronald L. Goldman. He may be ordered by a civil jury or judge to pay millions (called ``damages''). And some of those damages may be punitive in nature; the rest are ``compensatory'' - for loss, calculated in a number of ways, of the deceased person.
And you thought DNA fingerprinting was hard to understand.
The judicial system consists of state and federal courts, which function independently of each other. Each court system has a civil and criminal division; each division has its own laws, rules and standards. The protection against double jeopardy, found in the Fifth Amendment along with the familiar self-incrimination clause, applies only to criminal prosecutions, not to civil lawsuits.
Civil liability has nothing to do with criminal guilt. Simpson is not being tried twice for the same offenses. New rules, new stadium.
The three actions filed, respectively, by Nicole Brown's estate, Goldman's mother, and Goldman's father and sister jointly (all are ``plaintiffs''), allege that the former football star (still the ``defendant'') wrongfully and intentionally caused Brown's and Goldman's deaths.
Wrongful-death actions, defined by state statute, are more commonly filed in cases of alleged negligence, such as in fatal traffic accidents, than in intentional torts like this one. (A ``tort'' is a civil wrong or injury; assault and battery are torts, as well as crimes.)
While Simpson's acquittal may weaken the civil lawsuit, it does not preclude it. When homicide is at issue, plaintiffs more often sue convicted murderers, than acquitted defendants. Then again, few murderers have such deep pockets as O.J. Simpson.
Complex? Confusing? Yes. Anyone following this case should understand that. Much more money will be spent, and obfuscation created, in O.J. Simpson, part II. Plaintiffs can be quarrelsome.
But before true justice - a moral philosophy, not a legal outcome - can be had, Simpson should be forced to explain himself, under oath, to adversaries adept at questioning. No more Cochran-coached TV spots (Larry King); no more self-serving, uncontested books.
Before he was muzzled by his lawyers, Simpson spoke in a highly publicized ``suicide note'' about the ``real O.J.'' and the ``lost person'' that he had become. After the slayings, he suspiciously fled, with cash, passport, fake beard and gun in hand, looking far more in control than any suicidal person I've ever known.
But neither Simpson nor his comrade-in-flight Al Cowlings ever testified in court; the jury never heard an explanation for the Ford Bronco melodrama. No psychiatrists testified to the defendant's mental state. Simpson remained a mute figure of apparent tragic dimensions, evoking sympathy, not horror. He was unreal.
The civil action should change that. Simpson can no longer avoid tough questions by asserting the Fifth Amendment; his acquittal means he cannot incriminate himself. He can be subpoenaed by the plaintiffs to give sworn testimony in pre-trial ``depositions'' - question-and-answer sessions conducted by counsel in a law office, not in court. Depositions are part of the court record, which is public, unless the judge seals it.
If the case goes to trial - and the victims' families have every reason to reject a money settlement and force a public airing - he can be compelled to testify. I expect Cowlings to be questioned, rigorously, and other witnesses, such as Nicole Brown's friends, to surface.
Evidence that may have been deemed too prejudicial for admission in criminal court, because of the higher stakes, can come into the civil trial - evidence about Simpson's ``prior bad acts,'' for example.
The focus will be on the evidence itself, not on the jurors' state of mind. The plaintiffs' lawyers will try to persuade jurors that a ``preponderance of the evidence'' supports Simpson's liability. This standard is not nearly as tough as ``beyond a reasonable doubt.'' Basically, the jurors must be satisfied that the existence of a disputed fact is more probable than not. And only 10 of the 12 jurors need concur for a verdict.
After Simpson finishes his eventual run of Cochran-coached public appearances, he'll be back in court, shielded by counsel, but not necessarily protected. The rules have changed. O.J. Simpson, part II, could be most enlightening. ILLUSTRATION: Color photo
While Simpson's acquittal may weaken the civil lawsuit, it does not
preclude it. When homicide is at issue, plaintiffs more often sue
convicted murderers, than acquitted defendants.
KEYWORDS: ANN G. SJOERDSMA IS A LAWYER AND BOOK EDITOR FOR THE
VIRGINIAN-PILOT. by CNB