Loathe though I am to wade into the swamp that is the OJ Simpson mess in Las Vegas, it does raise at least one interesting legal issue. In determining the appropriate sentence for OJ in this case (in the event that he is convicted or pleads guilty, events I have no ability to foresee) could a judge sentence him more severely because she believes that he committed a double murder in Los Angeles more than ten years ago?
I don’t know what the result is under Nevada law, but it seems fairly clear that a judge could do so consistent with the United States Constitution. The Supreme Court has held that conduct of which the defendant was acquitted may be considered by a sentencing judge so long as it is demonstrated by the prosecutor to a preponderance of the evidence. Although the Supreme Court has emphasized the role of the jury in sentencing in the last several years, a number of circuit courts have recently held that, so long as the judge sentences within a range permitted by the jury’s verdict, she may consider acquitted conduct in determining where within that range to fix the sentence.
Usually, sentencing based on acquitted conduct occurs when a defendant is convicted on some charges and acquitted on others and the judge finds that the acquitted charges were proven to a preponderance. But there is nothing in the case law to indicate that a judge can’t consider acquitted conduct that occurred years before in another courtroom. Interestingly, in OJ’s case, the previous killings have already been proven to a preponderance. Given the fact that one of the charges filed against OJ, kidnapping, carries a potential life term, he could end up spending the rest of his life behind bars, in part because of the crime he was so famously acquitted of committing.
UPDATE: For a discussion of whether OJ has been overcharged click HERE
Posted by Sam Kamin on September 21, 2007 at 09:15 AM
Comments
I don’t think so, actually. What the Court actually held in Apprendi and Blakely is that any fact that increases the defendant’s possible sentence must be found by a jury and beyond a reasonable doubt. (See Scalia’s opinion on Blakely: “When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ . . . and the judge exceeds his proper authority.”)
Assuming that the Nevada statute gives the judge the authority to sentence up to life imprisonment based on a kidnapping conviction, the judge’s decision to impose a life sentence rather than a lesser one also authorized by statute could be based on a fact not proved to a jury beyond a reasonable doubt without running afoul of Blakely.
Posted by: sam Kamin | Sep 21, 2007 8:24:11 PM
Wouldn’t that run afoul of Blakely v Washington? As I understand it (I don’t do crim law), doesn’t Blakely hold that ever fact that affects the severity of punishment must be found by a jury beyond a reasonable doubt? Here, the issues in People v OJ were in fact put to a jury & he was acquitted. So, … how can a judge use People v OJ in any way to affect punishment?
Posted by: DaSarge | Sep 21, 2007 7:50:27 PM