Below is an amended draft which has incorporated some of Brook’s considerations (included in his own redraft, below).

Just Desserts: Intimate Homicide and the Civil Trial

-- By AerinMiller - 10 April 2010

I. Introduction: A Case Study

In 1996, the families of Nicole Brown Simpson and Ronald Goldman filed a wrongful death and survivor action civil suit against O.J. Simpson, and they won. Compensatory and punitive damages were totaled at upwards of 30 million dollars, enough to put the heirs of the deceased right, at least monetarily speaking. But the genius of the civil suit was not the punitive damage award, which could hardly compensate the families for their loss. Instead, the suit forced on the defendant an unshakable label: killer. On appeal, O.J.’s defense team accepted the jury’s finding that he had killed decedents, arguing only that the trial court erred in presenting some evidence of prior domestic abuse, and decrying the damages.

The O.J. Simpson trials exemplify the indirect route by which the victims of intimate homicide (or their survivors) can seek retribution in the face of criminal systemic malfunction. The civil trial is well suited to provide an alternative remedy in “not guilty” intimate homicide cases, because of the difficulty of meeting the criminal burden of proof given the often closeted nature of the relationships in question. There is no substitute for incarceration – the (guilty) defendant’s access to his/her children, family or significant other following a successful criminal trial is disconcerting to say the least. In terms of justice for the deceased, however, the civil trial offers a second chance to set the record straight.

II. Domestic Violence and Homicide

Domestic violence takes many forms, the most drastic of which is homicide. A 2009 article in The American University Journal of Gender, Social Policy & the Law, entitled “Gendered Nature of Domestic Violence: Statistical Data for Lawyers Considering Equal Protection Analysis,” cites 23.2% of all female homicide victims were killed by domestic homicide in California in 2006, making it the largest category of homicide for women when cause of death is known. 17 Am. U. J. Gender Soc. Pol'y & L. 248 (2009). Nationally, almost 30% of women killed are done so by an intimate partner. Men in both heterosexual and same-sex partnerships are also victims of domestic homicide (although to a significantly lower statistical degree).

Prosecuting a domestic violence criminal case, in those situations when a spouse does press charges, is difficult because of perjury and recanted statements. In intimate homicide cases, the closed-off nature of the home, the privacy of the spousal relationship and the inability of the deceased to tell her side of the story make a successful prosecution difficult. Although there is no gaping statistical difference in the conviction rate of intimate and non-intimate homicides, this fact merely indicates the high threshold of proof necessary for a criminal conviction generally.

III. The Criminal Trial

The O.J. Simpson murder trial exemplifies the difficulties attending a domestic homicide prosecution, astronomically magnified. From the beginning, the defense built its case around the holes in the evidence and police error (DNA samples, the bloody glove) – both of which ensured the failure of the state to meet its reasonable doubt burden. By the time of the ‘not guilty’ verdict nine months later, moreover, the press had re-imagined the proceedings into a sordid soap opera, which was devastating for the families of all involved. The validity of almost every piece of the prosecution’s physical evidence was rendered questionable, if not by the defense then by the tabloids. The lives and reputations of the witnesses, police officers, attorneys and even the judge had been fastidiously picked to pieces. The trial was, in other words, a mess, away from which walked O.J., a free man.

IV. The Civil Trial

A year later, however, O.J. was not so lucky. A civil suit following a criminal trial has the two major benefits of hindsight and a lower standard of proof - the 5th amendment bars a second murder (or lesser crime) trial via double jeopardy, but not a wrongful death/survivor action. Unlike the first trial, these proceedings were not televised and lasted a mere four (as opposed to nine) months. The civil attorneys were more courteous and subdued than the Dream Team and moved though the motions at a clipped pace. Simpson himself was compelled to take the stand. The media was no longer preoccupied with the private lives of the actors – reporting was factual and brief. The trial jury and the appellate justices, free from the mayhem, needed consider only whether the evidence stacked above the 50% guilt line, and promptly affirmed that it did just that.

V. A Comparison

Summoning the mental and financial resources to engage in successive trials for some elusive, un-promised outcome is not an easy decision. Litigation is not only exhausting, but the putative civil defendant may be judgment proof, meaning the entire operation is a guaranteed net loss. Civil trials are also often much longer than criminal counterparts, and involve hiring an attorney and building a case at the plaintiff’s expense. The utility of the civil trial in the domestic violence context is not its promise of a windfall, however. The utility is in its (relatively) plaintiff-friendly mechanisms.

Often in intimate partner homicide cases, the prosecution must work to debunk a relationship that is extremely opaque. Even in the Simpson case, in which the prosecution managed to illustrate a credible history of prior abuse, said evidence was insufficient to meet the state’s burden in the face of a barrage of tainted evidence and witness character assassinations. But the civil trial has leeway, some extra give, which works well as a second option for a fair ruling. Although the second judgment lacks the moral condemnation of the first, the system still publicly recognizes and articulates a wrong. If articulation is not the complete justice the deceased or her family might have envisioned, it is some justice nonetheless. In a flawed system, any corrective device, however incomplete, burdensome or faulty, should be recognized as a welcome addition.

-- AerinMiller - 10 Apr 2010

Just Desserts: Intimate Homicide and the Civil Trial (Revision)

I. Introduction: A Case Study

In a follow up to one of the most publicized criminal trials in American history, a jury found O.J. Simpson liable in a civil action for the deaths of his ex-wife Nicole Brown Simpson and her acquaintance Ronald Goldman, even though Simpson had previously been acquitted of their murders in the criminal proceeding. The Simpson trials provide an example of the salutary role civil trials can play in achieving some measure of justice for survivors of domestic homicides where the criminal justice system fails them.

While the Fifth Amendment forbids a defendant from being tried twice for the same offense, double jeopardy does not apply when a later action involves a different legal standard, for instance when a claim is civil rather than criminal in nature. While critics may contend that a civil penalty can be just as devastating as a criminal conviction, challenging the rationale for the exception, their objections falter relative to crimes that carry severe criminal penalties up to, and including death. Moreover, the uniquely private nature of intimate relationships makes meeting the higher burden of proof for criminal conviction especially difficult in cases of domestic violence. Therefore, civil trials are particularly well suited to providing a remedy for survivors of victims of domestic killings. Although a civil judgment is not a complete substitute for a guilty verdict, by allowing a jury to reach another conclusion from the evidence the civil trial offers survivors a chance to punish the responsible party and set the record straight.

II. Domestic Violence and Homicide

Domestic violence takes many forms, the most drastic of which is homicide. Domestic homicide represents a significant social problem, accounting for over a thousand murders each year. In 2005, approximately one-third of all women murdered in the U.S. were killed by an intimate partner. Men are also victims of domestic homicide, although much less often.

Because criminal convictions require guilt to be proved beyond a reasonable doubt, a prosecutor’s job is never easy. However, prosecuting domestic violence presents special challenges. Often victims of domestic violence suffer in silence. Even when they do seek help, prosecutors must contend with perjury and recanted statements as victims struggle with inner conflicts and intimidation. Without reliable testimony, prosecutors face an uphill battle. Evidence based prosecutions must overcome the closeted character of intimate relationships, as well as court rulings restricting the admissibility of items like prior 911 tapes. In domestic homicide cases, the inability of the deceased to testify at all makes the prosecution’s case that much harder.

III. The Civil Trial

In the People v. Simpson, the defense leveraged the ambiguities inherent in domestic homicide, creating enough skepticism in jurors’ minds to prevail under the reasonable doubt standard. A year later, however, a civil jury concluded from a preponderance of evidence that Simpson was responsible for the two deaths. As exemplified in Simpson’s case, a civil suit following a criminal trial offers two major benefits to claimants: hindsight and a lower standard of proof. The lawyers for the families of the victims were able to build on the case made by the prosecution in the criminal trial, while avoiding its costly mistakes. The trial jury was only required to consider whether the evidence tilted toward a finding that Simpson was responsible for the deaths, and they promptly determined that it did. The families of Nicole Brown Simpson and Ronald Goldman had another day in court, and this time they were vindicated.

The civil trial of O.J. Simpson underscores another important consideration supporting the conclusion that civil suits are valuable for correcting miscarriages of criminal justice. Simpson was acquitted after a highly controversial trial in which the prosecution made several serious mistakes. For this reason, hindsight was particularly valuable to the lawyers litigating the civil suit against him. Where no such mistakes are made by the state, and a defendant is acquitted, it follows that a civil jury will be less likely to reach a conclusion different from that of the jury in the criminal trial. Therefore, fears that civil actions based on the same set of facts represent another bite at the apple can be mitigated. In effect, the civil trial functions to supplement the criminal justice system where the mechanisms it has adopted to protect the innocent defendant fail to protect the innocent victim.

IV. Conclusion

Summoning the emotional and financial resources to pursue another trial is not an easy decision for survivors of victims of domestic killings. Litigation is not only exhausting, but the putative civil defendant may be judgment-proof. Nevertheless, the utility of the civil trial in the context of domestic violence is not in its promise of a windfall. It is in its plaintiff-friendly mechanisms.

In prosecuting domestic homicides, the state frequently encounters relationships that are opaque and unlikely to yield evidence sufficient to get a conviction. Even when prosecutors manage to illustrate a credible history of prior abuse, as in the Simpson case, that evidence can fail to meet the state’s substantial burden of proof in the face of sustained attacks from the defense. But the civil trial levels the playing field. A civil jury can assign responsibility as it sees fit, free from the rigorous standards imposed by the the criminal justice system. Although a civil judgment lacks the moral condemnation of a guilty verdict, the system still publicly recognizes and articulates a wrong. If a victory in civil court does not fully embody the justice the deceased or her family might have envisioned, it provides some justice, nonetheless.

-- Revision by BrookSutton - 23 Apr 2010