THE BOOK--Playing The Percentages In Baseball

I used to be a real fan of OJ the football player. After that—as actor, promoter of Hertz—not so much. I loved one thing he once said about why he always seemed just a bit slow—taking an extra couple of seconds to get up from the ground—after a play.  “I don’t want them to know that they hurt me. I get up slow whether they hurt me or not.” That was a signature of his.

I think he was guilty as hell of that double murder. A jury of his peers found him not guilty. And the state can’t appeal a not guilty verdict. That’s the system. It’s not perfect. It’s supposed to favor the accused against an overreaching government.

I agree with you that the crime for which he has just been sentenced was over-charged or shouldn’t have been charged at all. The sentence is way out of line with any harm he did in this instance.  The only explanation is that this is the law enforcement “system” getting even for its earlier failure to convict OJ, plus the fact that OJ has no friends in high places.

Scooter Libby will probably be pardoned by Bush, for committing several felonies including perjury and obstruction of justice. And OJ will rot in jail for at least 9 years for stealing back his own stolen property from some of the most unsavory characters around.

Fargo, well said.  I don’t have any problem with some people (like the Goldman family) “rejoicing” in the fact that OJ finally got what he deserved.  Certainly there is a 99%+ chance that he was guilty of the murders.  However, I don’t like the idea of a “bad” charge and/or conviction to make up for an earlier mistake, which is clearly what happened.

Actually, it really wasn’t a “bad conviction”.  I am not sure the jury had much choice other than “nullification” (which only happens when the jury has sympathy for the defendant).  The travesty was the DA charging and pursuing these guys.  Can you imagine if an unknown guy brought some thugs (with guns) to a hotel room to collect some supposedly stolen merchandise from some other thugs.  And no one got hurt.  Do you think the police or the DA’s office would even be remotely interested?  No they would not.

I actually feel sorry for OJ’s kids and other family.

I disagree here.  The charges against OJ allowed the jury to sentence him to this length.  Past similar convictions to other people are as relevant as OJ’s past troubles with the law.  If this sentence is unfair then it’s not because of this particular case, it’s because the jury could sentence him to this length for this crime. 

One’s past criminal involvement should absolutely play a part in sentences from other unrelated crimes.  The jury was allowed to sentence him to this length and I don’t think there’s any jury that wouldn’t have done the same.  The man is a criminal.  Left out of prison, he will commit more crimes. 

I have no problem at all with this sentence.  And I’m much less certain of his guilt in the double murder than most people are.  I’m nowhere near 99%+ certain of his guilt as MGL mentioned. 

I should add that I’m in favor of much stricter prison sentences to begin with so my opinion on this case is biased by other personal opinions.

OJ received letter-of-the-law protection in his murder case, and received letter-of-the-law severity in this case.  Seems like justice to me.

In the murder criminal trial he was
found not guilty(which does not constitute guilt or innocence;rather not guilty beyond a reasonable doubt.
In the subsequent civil case,he was found guilty for wrongful death
;the propnderance of evidence to convict only being needed for conviction.

You are so right.

People should be permitted to arm themselves, charge into hotel rooms toting the weapon of their choice, point the guns at whomever they wish, and use deadly force to compel the return of property simply to make sure judgment creditors don’t get the property in which they are legally entitled.

Damn, if there was some sort of civil justice system that OJ could have availed himself to, he wouldn’t have had to barge into a room with a bunch of co-conspirators and threaten deadly force simply to get back some football memorabilia.  Yes, what this country needs is some sort of system–perhaps one administered by the courts and dictated by the rule of law–that would have allowed him to peacefully and legally gotten back the property that actually belonged to Fred Goldman.

I suppose I’m just a dreamer.

Please tell this is a bad dream, and that the site that hosts the best baseball analysis on the web couldn’t possibly be so ignorant on law and policy.

Paul, given the fact that I toiled through 4 years of law school, I doubt that I am less ignorant of the law and public policy than you are.

MGL,

Since I “toiled” through law school in the standard 3 years, I suspect you are. 

Also, given that I have “toiled” as a prosecutor for the last 10 years, litigating robbery cases similar to this on many occasions, I know with 100% certainty that naked assertions like “almost any other person probably would not have been charged as OJ was charged” is complete nonsense.

You don’t know what you’re talking about.  Period.

MGL’s original post was that OJ’s current sentence is not legally fair for what he actually did. I’ll let him and Paul debate that.

Fairness is necessary for the legal system, and for the general good of an advanced society. But it’s also true that ‘fairness’ is really nothing other that a man-made concept. It is not even remotely an element of the natural real world. This realization allows me the freedom to occasionally hold an ‘unfair’ position in my own mind, and with no accompanying sense of ‘logical inconsistency’ or ‘cognitive dissonance’.

So, rot in jail, OJ. You fu*ked up and they were all over it. And it’s even more karmic that he won’t be sitting in his cell coming to terms with what he did in the past. He’ll be sitting there all angry and bitter over how he was ‘railroaded’.

FWIW, I used to be sort of an OJ trial buff, and have read quite a few books on it. From the analytical side, I recommend Outrage..., by Vince Bugliosi, and the book on simpson by Alan Dershowitz. In fact, all of the books by the razor-sharp Bugliosi are worth seeking out.

I must say, I’ve seen many people rip mgl (fairly or unfairly, it doesn’t matter) on the web over the years, and the first line of #8 is the cleanest, sharpest, funniest I’ve ever seen.

If the glove doesn’t fit, you must acquit....

While I have my doubts that this guy is who he says he is (not that it matters), it was pretty funny, although certainly uncalled for.  The only thing I said that was questionable factually was that I did not think that anyone else who did the same thing would have been prosecuted.  I stand by that assertion, but it is not an easy question to answer.  In 99% of the cases where something like that occurrs, who is going to go to the authorities?  The guy who steals someone’s stuff?  So, I don’t even know how you would answer the question of “whether someone else (other than OJ) in the same situation would be prosecuted or not.” How would you set up that hypothetical?  If I am a thief and someone comes to my house or hotel room and forcibly with weapons tries to take their stuff back, and I call the police and tell them what happened, would the police be interested in pursuing the matter?  Is that how you couch the question?

Obviously I was not implying that no one else but OJ who tries to rob someone at gunpoint is going to be prosecuted.  That would be a ridiculous assertion.  I was mostly expressing my opinion on the conviction and sentence.  And I specifically said that my opinion was predicated on the fact that I am ignoring O.J.’s past.  So I don’t see the beef with anything I said and I definitely don’t see how anything I said has anything to do with my knowledge of the law and of public policy.

While I agree that his post was sort of funny, in a rude way, I think he got “caught” when I mentioned that I went to law school, and I think he made up the fact that he is a prosecutor.  In fact, I’ll throw down an open wager, if anyone wants to bite.  Assuming that none of the other readers knows this guy, I’ll wager $100 against your $100, to charity of course, that this guy, Paul, is NOT who he says he is.  Easy enough to verify of course.

Wow.  You’ve rebutted me with a “liar, liar, pants of fire” argument!  What’s the old saying . . .  when neither the facts nor law are on your side, attack the prosecutor.  Well done, kind sir.

You didn’t “catch” me when you said you went to law school.  Holy Lord, there are a million of us out there–literally.  A million.  Ours is not exactly an exclusive club, so playing the “I’m a lawyer” card will backfire sometimes.  Consider yourself backfired. 

Now, on to the bet. 

I am an prosecutor.  More specifically, I work for the Department of Justice in the southwest.  Before this gig, I was a state prosecutor for just under nine years, a job that indeed afforded me the opportunity to prosecute “self help” return of property cases. For the feds, I work primarily violent crime cases, mainly those occurring in the (brace yourself, I’m about to use a little legal lingo here) “special maritime and territorial jurisdiction of the United States.”

My name, however, is not Paul.  I place some value on my anonymity.  With that said, I can’t resist your offer to donate the hundred bucks.  So, I will happily email you my name.  Hell, I’ll even include my work number so you can call me to verify that I am a prosecutor.  As you aptly noted, this is not difficult to verify.  All I ask is two things: (1) you respect my anonymity by not publicizing my name and (2) you donate a $100 bucks to the American Diabetes Association.  I’m tempted to ask for an apology and an autographed copy of The Book, but that would just be taking advantage.

Please let me know if these terms are acceptable.

With regard to your last post, I don’t disagree with much of it.  Obviously, thugs oftentimes don’t turn to the police, even when they are legitimate crime victims.  Suspicion of law enforcement is a price one pays for thugdom.  But, that’s completely beside the point.  You claimed that it was a “travesty” that the DA charged this case, even when the victim did come forward.  That is . . . well, that is just an outrageous claim.  The DA was presented with a case in which a crime was alleged and, I assume, there was ample probable cause to seek an indictment.  I could be wrong–after all, I’ve only been doing this 10 years–but isn’t it our *job* to prosecute crimes where we are legally and ethically able to do so?  Hell, isn’t that our duty? 

Just because some similarly situated victims do not report like crimes doesn’t mean those who do should be summarily ignored.  Call me a dreamer, but I believe all people deserve the protection of the criminal law, even those who choose lifestyles you and I may not approve.  I rue the day when prosecutors pick and choose which crimes to prosecute because we unilaterally decree that the dude who had a gun pointed in his face isn’t worth our time and attention. 

Where’s the equal protection in that?

Paul, obviously YOU cannot accept the bet.  That should have been clear.  However, I will happily donate $100 to the ADA.  I just did on their web page.

Just because some similarly situated victims do not report like crimes doesn’t mean those who do should be summarily ignored.  Call me a dreamer, but I believe all people deserve the protection of the criminal law, even those who choose lifestyles you and I may not approve.  I rue the day when prosecutors pick and choose which crimes to prosecute because we unilaterally decree that the dude who had a gun pointed in his face isn’t worth our time and attention.

Did you even follow this case?  The “victim” did not report the crime.  In fact, the so-called victim did not even want it to be prosecuted.  It was one of OJ’s associates who “set-up” the whole thing by tape recording it in order to sell it to the tabloids and make money.  The tape, among other things, is what convicted OJ.  And the testimony of the guy who set it up as well as some of the other “thugs” who were either offered plea deals or no prosecution in exchange for their testimony.

It was really a fluke that OJ that got charged in the first place.  As I said, it is not clear to anyone not intimately involved in the case exactly what transpired, but my guess is that because it was OJ who was involved, the prosecutor’s office treated everything differently than it would have had it been another person.  Then again, if it would have been an ordinary person, none of this would ever had happened, so who knows?

I just spoke to a good friend of mine who is a local lawyer and has been for over 30 years, as well as a fed prosecutor also.  He knows OJ’s local counsel, and he closely monitored the case.  He told me that if it had not been OJ, they probably would have dropped the kidnapping charges at least, and the sentence likely would have been lighter, given the totality of the circumstances.  He said that in similar cases, at least here in Nevada (where the court and prison system is heavily burdened), they would typically have plea bargained for either no jail time or a light sentence, but could not do so because of the publicity.  And yes, they did offer OJ a plea, but it was not very generous.

So, again, I think that I am on firm ground in saying that, if you can even say anything, things would/could have been very different if OJ had not been involved.  But that is a hypothetical that is impossible to answer.

And yes, I realize that millions of people go to law school, but I also stand by my comment that I think you were “caught”.  It is not likely that a random sabermetrician has done so.  You accused me of being “ignorant of the law and policy” which is clearly not the case.  I am quite familiar, at least as compared to the average non-lawyer, and certainly as compared to the average sabermetrician, with law and with public policy, if nothing else than by virtue of my educational background.  While just about anyone with half a brain can make it through law school of course, saying that someone with a JD in law is “ignorant of the law” is like blindly saying that someone with a pHD in statistics is ignorant of stats or a pHD in psychology, like Pizza Cutter, is “ignorant of psychology.” That just makes no sense.

And nothing I said suggests any more or less “ignorance of the law” than anyone who did or did not complete law school.

That being said, not everything I say on this web site is correct or well-thought out (such as you thinking that YOU can take me up on the “bet” - why would I bet someone something that THEY know - how could I win that bet - they either are who they say they are and take the bet, or they are not who they say they are and decline the bet?). 

This statement:

The travesty was the DA charging and pursuing these guys.

I will retract.  Or at least amend to: 

“...charging and pursuing the case in the manner with which they did...”

As I said, that sentiment was agreed upon by well-known local attorney (my friend) who was very familiar with the case and the persons involved (OJ’s lawyer, the DA’s office, etc.).

And I don’t owe you an “apology” for “accusing” you of not being who you say you are.  I thought there was less than a 50% chance that you were. So what?  I was apparently wrong.  I am going to be wrong lots of times when I think that there is a 60% chance I am right.  I don’t know you from Adam.  I was not insulting you by saying that I think you were lying. Lots of people are not who they say they are on the internet. If you were somehow insulted by my “accusation”, so be it.

Here is part of the donation “receipt” from the ADA web site:

Transaction Summary

Transaction Date:

12/8/08
Gift Information

Amount:

$100.00
Your Information

Payment Information

Payment type:

Billing information same as donor information:

Gift Amount:

$100.00

Tax-deductible Amount:

$100.00

This organization’s tax ID is:

13-1623888

Tracking Code:

1098-6301-1-2001615-*******

I think Mr. Prosecutor has no idea what goes on here.

In the fall of 2002 I was kidnapped by armed thugs at a Las Vegas casino for the heinous “crime” of being a winning blackjack player, all in full view of said casino’s security cameras. After I was released by the armed thugs , I called the wonderful Las Vegas Metropolitan Police Department to report the crime that had taken place upon my person.

Not only would they not cite the perpetrators for any crime, they wouldn’t even let me file a report, and actually arrested me for “disturbing the peace” because I called out for someone to call the police when I was in the process of being kidnapped. This despite the fact that they didn’t even have the authority to arrest me (something about needing a warrant for a misdemeanor not occurring in their presence).

Not so unbelievably, I was rubber-stamped convicted in municipal court even though again, as a matter of law, the police didn’t even have the authority to arrest me. The conviction was finally overturned in District Court for the reason I stated.

Clark County has long been a home to a preferred citizen legacy. Favored perpetrators (casino employees) always get a free pass for this conduct, but a disliked perpetrator lands in prison. What happened to equal protection? To claim anyone but OJ would have been charged like that is an absolute joke, and MGL is 100% correct.

OJ’s biggest mistake was not getting hired as a Palace Station security guard before going to get his stuff. That’s not a joke.

And forget OJ, what about his co-defendant? 7 1/2 years minimum for a 53yr old man with no criminal record? Who carried no gun? Unreal.

p.s. Guys, I tried posting this from my iphone earlier today and kept getting an error message regarding the typed in text box. Is the problem on my end or is that standard?

I have no idea about iPhones and the CAPTCHA image.  I hope that if you were trying to make a long post that you cut/paste it before submitting/losing it.

# 15: Did they previously (due to your reputation as an advantage bj player),tell you to
leave and not come back,or else face the legal
consequencies?If so you have no complaint.
As the judge says ,next case please.

#15:Simpson was convicted in a civil case of
wrongful death;even though a civil conviction,still serious.
By the way the conviction was overturned in Civil Court;specificaly what was the issue or issues that overturned the decision.
By the way i bet that you will not be going back to that casino.I know that the casino has the
authority to refuse games to any advantage player.

# 15: Did they previously (due to your reputation as an advantage bj player),tell you to
leave and not come back,or else face the legal
consequencies?If so you have no complaint.
As the judge says ,next case please.

No, they did not. The casino manager’s exact words were: “Take him to the backroom, take his picture, and 86 him”. According to the laws in this state, much to the chagrin of John Ashcroft, Dick Cheney, and probably yourself, they can not force me to go to their “backroom” if I’ve done nothing illegal (which I hadn’t. Nor was there even a suspicion that I had).

As I tried to walk out the door, which was my legal right, I was attacked by six armed security guards, handcuffed, and dragged to the backroom. You know, your basic kidnapping.

Care to come up with some more false excuses for their inexcusable behavior counselor?

The case was overturned in District Court, not Civil Court (you sure you’re a lawyer?). As I stated in my earlier post, the police did not have the legal authority to arrest me.

LVHCM1, I think you are mixing up RonStevens and Paul Smith.  Paul is the lawyer.  He was talking about the civil case against OJ being overturned, not your case (I think).  I don’t think it was, at least not that I am aware of. I don’t know what he means by that. There is no such thing as a “conviction” in a civil case (there are “judgments"), and there is no such thing as a “civil court” (unless perhaps they call it that in some jurisdictions - they don’t here in Nevada).  Certain courts handle civil cases and certain courts handle criminal cases (sometimes different courts for felonies and misdemeanors), and certain courts handle both, etc.

My bad. Apologies to any offended party.

"One’s past criminal involvement should absolutely play a part in sentences from other unrelated crimes.”

Is a jury supposed to hold against a defendant a trial that resulted in him being found not guilty?  Is a jury supposed to consider the results of a civil case? 

I think I know the answer to the first question but I don’t know the answer to the second.

First of all, juries do not decide sentences other than in death penalty cases. 

Generally juries do not get to hear about a defendant’s past criminal history unless the defendant testifies.  Sometimes, however, it is allowed, particularly when it suggests a propensity to commit the crime that the defendant is being charged with.

As far as the results of a civil case, it would depend on its relevance.  In this case, where OJ was charged with robbery and kidnapping, I would guess that the results of his civil “wrongful death” trial and judgment would not be allowed.

Nevertheless, the persons on the jury as well as the judge were no doubt aware of OJ’s history. Whether that affected the outcome of the trial or not, I don’t know.  I think that OJ’s history probably affected his sentence (doled out by the judge), but I am not certain of that.  No one would be.

Ruzlinski,

Regarding when juries may hear about a defendant’s “prior bad acts,” always start off with the premise that they will not.  In the vast majority of cases, even those in which the defendant has a rap sheet a mile long, the jury is blissfully unaware of all the rotten things Joe Defendant did before getting arrested for the present crime. 

There are four exceptions, however, that allow a prosecutor to get in some “prior bad act” evidence.  Just remember, these are the exceptions, not the rules, and in most cases they do not apply:

1.  The Defendant chooses to testify.  When a defendant takes the stand to tell his tale, the prosecutor can “impeach” him with his prior criminal record.  That is to say, he can ask the defendant on cross examination, “Isn’t it true, Joe Bad Guy, that last year you were convicted of such and such crime?” There are two important caveats to this exception: first, this evidence is only allowed to establish the defendant is a liar.  It is not permissible to use it to establish that the defendant has the propensity to commit crimes.  In other words, if a defendant testifies, and I impeach him with a prior conviction, I cannot argue during closing that “he did it before, so he must have done it this time.” Disbarment would lay in my future if I did that.  I can only argue that “he’s a convicted felon, so you shouldn’t believe a word he is saying.” Second, the judge can limit my ability to impeach.  Most often, this means the judge won’t let me ask the specific crime(s) to which the defendant was convicted, only that he was convicted generally of a felony offense.  Some judges let you ask about specifics, some don’t.  That’s just the way it is. 

In any event, this is the reason most defendants don’t testify.  Their attorney doesn’t want their sordid past paraded before the otherwise ignorant jury.

2.  The defendant “opens the door” to his prior bad acts.  A defendant always has the option to present evidence that he is a good boy and would never commit a crime.  The danger in doing this, however, is that it “opens the door” for the prosecution to rebut that claim by presenting evidence that he ain’t such a good boy after all.  Most criminal defense attorneys worth their salt ensure that the door isn’t opened.  In fact, not once in ten years have I been lucky enough to have a bumbling defense attorney make this error, although I did see it happen once to a colleague. 

3.  A prosecutor can present a “prior bad act” to establish motive, knowledge, opportunity, preparation, or identity.  For example, in O.J.’s first trial, the prosecution presented extensive evidence that O.J. abused Nicole in the past, a quintessential prior bad act.  Judge Ito permitted this under the theory that is tended to show O.J.’s motive-–he killed her because he harbored ill will towards her.  This was hotly litigated prior to trial and Dershowitz was brought on board, at least in part, to handle the appeal related to this issue.  As it turned out, no appeal was necessary.  I can tell you that many, many judges would not let in that type of “prior bad act” evidence in a murder case. 

4.  Finally, in federal sex crime cases, the government can present evidence of prior sex-related convictions to establish that the defendant probably did a sex crime this time.  This is the only circumstance in American law (that I’m aware of, anyway) where a prosecutor can proudly stand before a jury and argue “he did it before so he probably did it this time.” This rule doesn’t get dusted off too much, however, because it’s pretty difficult to get arrested for a federal sex crime (the most likely is if you’re Native American and rape/molest somebody on a reservation).