Answering the five key questions after Simpson's guilty verdict
SI.com legal analyst Michael McCann answers the key questions following the guilty verdict of O.J. Simpson on all 12 counts of armed robbery and kidnapping.
1. Was it a mistake for Simpson to have not testified on his behalf?
Whenever a criminal defendant declines to testify on his or her own behalf, jurors are instructed to not associate the absence of testifying with guilt. Some jurors may nonetheless find it hard to ignore their intuition: that the defendant did not testify because he or she is guilty. To the extent the jury associated Simpson's lack of testifying with guilt, Simpson's legal team seemingly erred. One might go a step further and opine that given Simpson's acting and interviewing skills, he would likely have been well suited to address the judge and jury.
On the other hand, hindsight is 20/20, and the decision to not testify can sometimes prove wise, especially since it prevents the prosecution from cross-examining the defendant. Simpson, of course, did not testify in his murder trial and thus avoided prosecutors' questioning. The strategy worked then.
2. Could the jury have come to a guilty verdict as "payback" for Simpson's not guilty verdict in 1995?
As a legal matter, the jury had no right to find Simpson guilty for crimes relating to the incident in Las Vegas on the basis of a belief that Simpson should have been convicted for the murders of Nicole Brown Simpson and Ronald Goldman. The jury was convened for a specific and limited purpose: to assess whether Simpson should be convicted on 12 counts stemming from the Las Vegas incident. Irrespective of the merits of the jury verdict in Simpson's murder trial, that verdict is final and under the doctrine of double jeopardy, Simpson cannot be retried for murder. In the highly unlikely event it could be shown that this jury viewed the robbery charges as an opportunity to re-write history, Simpson's attorneys would immediately challenge the jury's verdict as faulty.
As a practical matter, Simpson's legal team should have used the jury selection process to exclude potential jurors with actual or potential bias against Simpson. Before a jury is selected, potential jurors are normally questioned by the attorneys and the judge as to their life experience and background, as well as to their knowledge and attitudes on various issues. Through what's called "voir dire," attorneys can challenge the inclusion of potential jurors on the basis of cause-such as if the juror appears biased; attorneys also enjoy a limited number of peremptory challenges in which no justification for exclusion need be given. Presumably, Simpson's attorneys were able to exclude potentially hostile jurors through this jury selection process.
Then again, the jury selection process is famously imprecise and it requires the candor of potential jurors. Though it seems unlikely that a juror would ever admit to convicting Simpson as payback for the past, it also seems unlikely that a juror could entirely dissociate his or her attitudes about what may have been the most famous (or infamous) criminal trial in U.S. history.
3. Could race have played a role in the jury's guilty verdict?
Hopefully not. The jury consisted of nine men and three women, none of whom were African-American. The obvious temptation is to compare the racial composition of this jury with that of the jury impaneled in Simpson's murder trial, which featured nine African-Americans, two Caucasians, and one Latino. Keep in mind, the jury selection process in both cases should have led to the exclusion of potential jurors who expressed attitudes that linked a defendant's race to presumed guilt or innocence.
Then again, some might argue that even if none of the jurors in this case consciously harbored negative attitudes towards African-Americans, they may have been subject to "implicit attitudes," which refer to attitudes that shape opinions, beliefs, and actions in ways that evade conscious detection and thus do not reveal themselves during the typical jury selection process. Implicit attitudes have received considerable attention by legal scholars in recent years, and early findings suggest that such attitudes are often negatively-oriented towards African-Americans. Whether those attitudes played any role in this case is entirely speculative, however.
It should also be stressed that the jury heard from 22 witnesses over 12 days of testimony and took over 13 hours to reach a verdict. It thus appears the jury expended significant energy and thought in reaching the verdict.
4. What will happen at Simpson's sentencing on December 5?
Even if she opts to impose the most lenient possible sentence under discretion, Clark County District Judge Jackie Glass will sentence Simpson to at least 15 years in prison. His conviction alone of first-degree kidnapping with a deadly weapon carries a minimum sentence of 15 years, with the possibility of parole after five years, and a maximum sentence of life of prison with the chance of parole. Judge Glass could run the sentences for each of the 12 charges concurrently or consecutively, the latter of which would be disastrous for Simpson, as he would then serve time for each sentence, one-after-the-other.
Working in Simpson's favor is that judges normally refrain from imposing the maximum possible sentence for first-time offenders and, despite the many controversies surrounding him over the last two decades, Simpson has not previously been convicted of a crime (though he did plead no contest in 1989 to a spousal abuse charge, meaning he neither contested the charge nor admitted guilt). Then again, at age 61, there is a strong probability that, absent a successful appeal and regardless of Judge Glass' leniency, Simpson will spend the remainder of his life in prison.
5. Will Simpson appeal?
Simpson's lead counsel, Yale Galanter, has already pledged that Simpson will appeal. Galanter and other members of Simpson's legal team will likely attempt to identify an alleged error made by Judge Glass in her interpretation of the law or in one of her procedural decisions during the trial. Two common sources of appeal are when a judge overrules a defendant's motion to prohibit the admission of certain evidence or when a judge overrules a defendant's motion objecting to the jury instructions. Interestingly, Judge Glass overruled Simpson's objections to various pieces of evidence and to the jury instructions.
Michael McCann is a visiting law professor at Boston College Law School, a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.