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Civil Trial Left Many Puzzled It Was Legal To Try O.J. Again, But Some Ask Whether It Was Fair

SUNDAY, FEB. 9, 1997

For many non-lawyers, last week’s $8.5-million civil verdict in the O.J. Simpson case caused a lot of head-scratching.

How, some ask, can you be found liable for the death of someone you’ve been found not guilty of murdering? Isn’t that double jeopardy, or in some way unfair? If not, why don’t we see these cases more often?

Successfully winning civil damages from an acquitted murder suspect, while not unheard of, is rare.

Some reasons are obvious. Most people charged with murder wind up being convicted. And most aren’t wealthy. If not already indigent when arrested, they usually are broke by the time they have paid their legal bills.

And if the funds aren’t there, plaintiffs aren’t likely to invest time, money and emotion in a civil case.

“Usually, there’s not sufficient assets to go after,” said A. Charles Peruto Sr., a prominent Philadelphia defense lawyer. “People in my position usually make sure of that - all in the interest of justice, of course.”

Richard Fink, a well-known Bucks County, Pa., lawyer, estimated that only “a half of a percent” of the criminal defendants he has represented have funds worth going after in a civil suit.

Criminal and civil trials can produce different outcomes because they use different standards of proof, different rules of evidence, and different jury procedures, among other things.

Simpson’s criminal acquittal, for instance, did not mean he had been found innocent, as some have argued. Rather, the jury decided there was not enough evidence to find him guilty beyond a reasonable doubt.

In civil cases, a less stringent standard applies. Simpson’s civil jury needed only to find him liable by a preponderance of the evidence - that he more likely than not was responsible for the deaths.

In a criminal trial, the jury’s decision to convict must be unanimous. In Simpson’s civil trial, liability could be established on a 9-to-3 vote.

Simpson also had a constitutional right not to testify at his criminal trial. But he had no such option in the civil case.

“That, to me, was the critical difference,” said Bernard W. Smalley, president of the Philadelphia Trial Lawyers Association.

“Certainly some of the things that came out in (Simpson’s) testimony were things that the jury had a problem believing, and that had an effect.”

The law does not consider Simpson’s second trial to be double jeopardy. The Constitution protects people from being prosecuted twice for the same offense, but courts have not interpreted a second civil trial to be a violation of that principle.

It may be legal, but it’s still unfair, argues Philadelphia defense lawyer George H. Newman. “I just see it as piling on. It creates the possibility of abuse. Someone throws all their resources into defending themselves in a criminal trial - and wins - and then gets whacked in a civil trial.”

Being able to observe Simpson’s criminal trial also gave civil lawyers an edge in planning their case, Newman added.

“The civil lawyers essentially were able to let the prosecutors do a dry run for them,” he said. The prosecutors “did a dress rehearsal, tried the case rather badly, and the civil lawyers were able to see where the bugs in the case were.”

The National Victim Center, a non-profit tracking organization founded by Martha von Bulow’s children, has noted “a dramatic increase” recently in wrongful-death civil cases resulting from criminal actions.

It estimates that more than 2,500 such cases were filed in 1995, about one-tenth of them against individual defendants.


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