OJ Simpson is back in the news today. And I can’t help but thinking that the SOB should be in jail for a double murder.
Now, as I understand it, he can’t be tried again because that’s what the Constitution says. But the Constitution also allows for amendments, and if anything cries out for an amendment, this does.
My understanding is that the original thinking behind the double jeopardy clause is to curb prosecutorial misconduct and abuse of power. Good idea. But, when it’s PC you can be tried by the state, get acquitted, and be tried in federal court. And there’s still plenty of room for vicious prosecutors. Try googling Duke and Lacrosse for a cite or two.
If the defense attorney loses there are endless appeals. If the prosecutor blows a case it’s tough luck for the public. Kind of reminds me of the Olympic Basketball Finals - 1972.
Can this at least be debated? Or is it enough for educated citizens to say “Can’t do it. It’s unconstitutional.”
The purpose of the doulbe jeopardy clause, as I understand it, is to make jury trials meaningful. If the jury says “innocent”, then the defendant is innocent. If prosecutors can go back for a second trial, then the first jury trial doesn’t really mean anything. Furthermore, poor and middle class folks may not have the cash to get a decent lawyer for two trials.
Wouldn’t this be detrimental to the ideas of due process and innocent until proven guilty? If a person is accused of a crime, the state has one opportunity to prove them guility before saying “that’s it, you can go about your life without fear of further disruption.” Why should we permit a person to have forever hang over their head a charge once-disproved?
Count me on the side of not wanting the Constitution changed to allow double jeopardy. There are good reasons even if I can’t enunciate them why the prosecution only gets one try.
Besides, if OJ Simpson is guilty of the murders–and I’m willing to grant you that that seems likely–I’m ok with him living the life he’s living outside of prison. He was once a popular celebrity. Now he’s pathetic-- his largest claim to fame is the non-guilty in criminal court but guilty (or liable) in civil court and the whole “did he or didn’t he” push and pull of truth only he knows–and time may have blurred.
At any rate, you’d have to show me that OJ Simpson–rather than being a largely unique rich famous person getting a favorable outcome in a media circus of a courtroom–is in fact part of a trend towards susceptable juries, too ready to let the guilty off the hook, to change my mind-- and even then I think I’d urge reform within the system, perhaps more trials before a judge, perhaps more separation of those who watch CSI and believe that drops of blood can be turned into DNA evidence out of the jury pool, perhaps something that wouldn’t occur to me, before I’d want to allow Double Jeopardy. At present, prosecuters know they only get one try and so know they have to make it count.
Sure sometimes bad things happen–but that’s because of human nature, and changing the Constitution wouldn’t change human nature.
I think if anything cries out for a Constitutional amendment, it’d probably be banning the death penalty. But then, I also think that we need double jeopardy as a legal protection.
To tie those things together: one of my problems with the death penalty is that poor defendants are at a greater risk. They have fewer resources with which to defend themselves. Removing double jeopardy protections would create a similar problem: the government could keep trying and re-trying people until they were drained and convictions were easier to get.
This would have quite an impact on plea-bargaining as well. If the options were “cop a plea for a crime you didn’t commit, or we’ll keep trying you until somebody convicts,” wouldn’t it be possible that a lot of innocent people would wind up in jail?
A jury does not return a verdict of “innocent”. They may return a verdict of “not guilty”, which means that the State has failed to prove its case beyond a reasonable doubt.
And, for the OP, amend the Constitution is never something that should be done in a moment of public outrage. The process is difficult for a reason–ie, to prevent bad ideas from taking effect. IMHO, removing double jeopary protection is a horrible idea. I don’t really see much to debate. The State has bottomless pockets, endless manpower, and a sizable advantage throughout the trial process. One shot is all they should get. Make it count, and dot every “i” and cross every “t”, or the defendant walks.
OK, so the one with greater resources has one shot; the other guy can keep appealing. Fair enough. In OJ’s case the single citizen had much greater resources than the prosecutor…
In the Scottish legal system (distinct from the English even after the Act of Union), the jury has the third option of returning the so-called “Scots verdict” of “Not proven” – which has been translated as “Not guilty and don’t do it again.” Maybe we need something like that – it makes no difference legally but it allows for a small measure of, as it were, venting.
Most cases are affirmed on appeal. And even OJ did not have more resources than the prosecution. He was able to hire top talent, and pay for experts to aid in his defense, which many defendants can’t do.
I doubt very much he spent more on that trial than the state did, if you take police man-hours into account, which you should (private attorneys certainly bill for all the time they spend investigating and gathering evidence).
The state of New South Wales is going to amend the law (it’s not in our constitution, I don’t believe) to allow a second (and subsequent, I guess) prosecutions if significant new evidence comes to light. This was mostly as a result of the arrival of DNA evidence on the scene, but it seems a reasonable balance to me. Double jeopardy arose to protect the individual from just being accused time after time of the same crime, so the state just wears out the defendant’s resources. But if it is only allowed when genuine new evidence comes to light I have no problem with that.
In a way, the Double Jeopardy clause guarantees the right of habeas corpus. What would prevent the state from effectively locking someone up forever under the guise of numerous trials for the same offense? (“Honestly, your honor, we’ve found another police officer willing to testify that Jake murdered that guy! I swear!”)
If the state is willing to abuse this power, you could see “new and significant” evidence drifting in every year. The person could be ruined by trial after trial even though the new evidence isn’t enough to prove guilt.
Currently, we have a government that authorizes torture, that locks up people with no chance for a trial, etc., etc. And you want to put another arrow in its quiver by negating Double Jeopardy?
Put yourself in the defendant’s spot:
You were accused of a crime, tried, and found not guilty.
But the DA hates your rosy red ass and manufactures new evidence for a 2nd trial, and keeps at it until you’re convicted.
Do you really want that kind of power in the hands of bad people?
I was just as crushed at OJ getting off as you, but I’ve gotten over it (well, almost) and I still prefer that he walks free rather than the alternative you suggest.
