Begging The Question

[A disclaimer: Nothing in this post is legal advice, either for the Los Angeles District Attorney, O.J. Simpson, or anyone else. It's just an idle thought or two combined with about five minutes' Googling. Take it for what it's worth, i.e., nothing.]

I caught this Slate item about the ghostwriter of the recently-pulped O.J. Simpson quasi-confession book. The focus of the piece is whether O.J. really confessed in the book, and Tim Noah makes a pretty good case that a confession is exactly what the book was meant to be. But what really stuck with me is something Noah said in passing: "An additional intriguing detail is that a friend of Simpson's, whom Simpson/[ghostwriter Pablo] Fenjves calls 'Charlie,' was with Simpson in Nicole's yard."

I'm sure O.J. felt comfortable "writing" this book because he was pretty sure that he's never going to face criminal liability for the Simpson/Goldman murders. After all, he was acquitted in state court, so principles of Double Jeopardy, statutes of limitations, and simple logistics would make it very unlikely he could ever be tried again for murder.

But the purported existence of "Charlie" raises the possibility that Simpson had an accomplice. Whether "Charlie" participated in the act itself, he may have been present as a lookout or getaway driver. And that raises the possibility that O.J. could be tried for conspiracy to commit murder. The state would have to prove that an agreement existed between O.J. and someone else to commit the murders. I didn't follow the case closely, but I don't recall anyone looking into this because everyone assumed O.J. acted alone until he got his friend A.C. Cowlings to assist in the famous low-speed white Bronco chase.

My limited research was into the question whether Double Jeopardy would bar a conspiracy prosecution. (I'm assuming there are no statute of limitations issues because I don't know California law.) The answer is, I don't think so. The critical test is the famous "Blockburger" test, asking whether the two crimes require proof of different elements. And there seems to be ample precedent for the proposition that conspiracy to commit an offense is not the same as the underlying offense because conspiracy requires proof of an agreement (but not necessarily an overt act), whereas a conviction for the act itself wouldn't require proof of an agreement (but would, of course, require proof of the act).

Most of the precedents seem to be drug cases, where the state went after someone both for distribution and conspiring to distribute. But there's no reason to think these rules wouldn't apply to a murder case as well. For cites to the major cases, see U.S. v. Felix, 503 U.S. 378 (1992), and U.S. v. Bayer, 331 U.S. 532 (1947).

The minor catch with the Bayer rule is that Double Jeopardy will bar a subsequent prosecution if the acquittal in the prior case necessarily means some element of the second charge was decided in the defendant's favor. An example: an acquittal on a continuing criminal enterprise charge may bar a later trial on conspiracy to commit one of the predicate CCE acts, because the CCE charge included conspiracy as an element. See e.g., Rutledge v. U.S., 517 U.S. 292 (1996).

So, assuming that Simpson's original murder charges did not include a conspiracy element, I don't think there is a Double Jeopardy bar to trying him for conspiring with "Charlie" to commit the murders. There are certainly major questions as to whether the state could provide independent corroborating evidence (aside from O.J.'s statement to the ghostwriter) to prove the existence of "Charlie" and the existence of an agreement to commit murder. I don't think those hurdles are insurmountable, but difficult enough to make the chance of a conspiracy trial little more than an academic exercise. But that's what I'm here for.

Now, a seriously law-nerdy aside. Just a couple of weeks ago, in U.S. v. Resendiz-Ponce, the Supreme Court held that a charge of "attempt" necessarily included a charge of the overt step in furtherance of the act itself. Today, in U.S. v. Omer, the Court denied cert in a similar fraud case, after the United States argued that a charge of "fraud" necessarily included the element that the concealed fact or misrepresentation was material.

Justice Scalia dissented in Resendiz-Ponce and wrote a sharp opinion (2-page pdf) regarding the denial of cert in Omer, criticizing the Court's "new some-crimes-are-self-defining jurisprudence." In the Resendiz-Ponce dissent, Justice Scalia suggested that conspiracy charges are not fundamentally different from attempt charges: they both require the conspiracy/attempt to commit some other crime.

So, let's tie this all back to O.J. Justice Scalia raises the specter that these new cases could change the way conspiracies are charged, if the Court were to extend Resendiz-Ponce and hold that a bald charge of conspiracy necessarily includes a charge of some overt act in furtherance of the conspiracy. If that were the case (and I think it's unlikely the Court would go that far, and I think there are doctrinal differences between attempts and conspiracies), then O.J.'s acquittal on murder charges would necessarily mean that he had been acquitted of that overt act, and couldn't be tried for conspiracy. In other words, the elements would overlap and the prosecution would fail the Blockburger test.

(More precisely, the overlap wouldn't be complete -- the charges wouldn't "merge," in the parlance -- but O.J. would be able to say he had been acquitted on a necessary element in the second case. The precedent here is Ashe v. Swenson, 397 U.S. 436 (1970). There, the defendant had been acquitted of robbing one of six men at a poker game. He was later charged with robbing one of the other poker players, but the Court held that the prior acquittal established that he hadn't been present, and couldn't be tried again. Technically, this is collateral estoppel, which the Court said was embodied in the Double Jeopardy clause. In the O.J. hypothetical, if the conspiracy charge required proof of an overt act, and O.J. had been acquitted of committing that act in the murder trial, he couldn't be tried for conspiracy now.)

To reiterate, I think the chances of any of this applying to O.J. Simpson in the real world are essentially nil. But I do hope the authorities take a look into whether this "Charlie" character really existed, and what his role might have been. Also, even though it wasn't where I was going when I started this post, it's worth considering whether Resendiz-Ponce and Omer could significantly alter Double Jeopardy principles.

The O.J. case is an extreme outlier, but it's not altogether uncommon for defendants to be charged with attempts/conspiracies and the completed underlying crimes, especially in drug and gun cases, and, like Resendiz-Ponce, attempted re-entry immigration cases. To ponder: If Resendiz-Ponce had been acquitted of attempted re-entry, and the Court says that includes the overt act element, would that mean he couldn't later be tried for actual (completed) illegal re-entry? If that's so, that seems like kind of a big deal. But if I'm wrong about any of this, I hope some Double Jeopardy expert(s) will correct my misunderstandings.

(The title to this post comes from the Grateful Dead song "Mr. Charlie," which O.J.'s accomplice story reminded me of.)

Now Mr. Charlie told me,
Thought you'd like to know,
Give you a little warning
Before I let you go.

Chuba-chuba, Wooley-booley,
Lookin' high, Lookin' low.
Gonna scare you up and shoot you
Cause Mr. Charlie told me so.

Milbarge @ 11:19 PM | |