For those of you who have not yet had your fill of wallowing in O.J. Simpson cases, at least one big question remains: Should Simpson now be hit with a perjury prosecution for lying under oath at his civil trial?
"Oh, no." I sense you groaning, "enough is enough!"
Well, perhaps. But let's think it through. A Feb. 6 Wall street Journal editorial urged California's attorney general to explore a perjury prosecution even if Los Angeles County District Attorney Gil Garcetti won't. And in the words of Eugene Volokh, an associate processor at UCLA Law School, "The fact that you're acquitted for murder doesn't give you a license to lie in court in future cases."
There is ample evidence that Simpson lied rampantly and shamelessly under oath in his civil trial and deposition. Indeed, the evidence is so strong and so widely known that a decision not to prosecute might teach the deplorable lesson that lying- even under oath-is both expected and condoned.
There would be no apparent legal impediment to a perjury prosecution. It would not be double jeopardy: The alleged crimes-lying under oath in 1996 and 1997 about facts material to the civil case-took place after the criminal jury's 1995 acquittals of Simpson for the 1994 murders.
To be sure, the criminal jury's acquittals would bar a perjury prosecution of Simpson for denying that he committed the murders. This conclusion flows from the principles of Ashe v. Swenson (1970) , in which the Supreme Court held that the double jeopardy clause gives rise to a collateral estoppel rule that a defendant cannot be prosecuted for perjury (or any other crime) based on allegations that are necessarily inconsistent with a previous jury verdict acquitting that defendant.
But that rule would not bar a perjury prosecution based on Simpson's denials, for example, that he ever hit or slapped his former wife, or that he ever received his girlfriend Paula Barbieri's message breaking up with him the day of the murders, or that he ever owned "ugly ass" Bruno Magli shoes of the type that left bloody footprints at the murder scene.
That's because the factual allegations and evidence on which a perjury prosecution would be based-that Simpson did hit Nicole Brown Simpson, and did get the Barbieri phone message, and did own Bruno Magli shoes, and so on-would not necessarily be inconsistent with the first jury's findings in Simpson's favor on the murder charges.
The Supreme Court has made it clear that not every link in the prosecution's evidentiary chain in a trial that ends in acquittal is foreclosed from being used in a subsequent prosecution for a different crime. In Dowling v. United States (1990) , for example, the defendant had been acquitted of breaking into a woman's house, but the Court allowed the use of evidence that he had been inside the house at the time in a subsequent prosecution, reasoning that the acquittal could have rested on a finding that the defendant had been there with the occupant's consent.
But while there would be no legal bar to a perjury prosecution of Simpson, what about public perceptions? Would it create so strong an appearance of double jeopardy, especially to the many black people who say Simpson was framed by corrupt police, as to be an unwise exercise of prosecutorial discretion?
This is a serious concern. Indeed, a lot of people even have trouble understanding why it was not double jeopardy to put Simpson through a civil trial for wrongful death after his murder acquittals. That should be easy enough to understand: Both the Fifth Amendment double jeopardy clause and the precedents make clear that a civil suit following a criminal acquittal is not double jeopardy, in part because our law properly makes it far easier to impose civil liability than criminal punishment.
A perjury prosecution would surely give rise to even louder complaints of double jeopardy. But prosecutors should be wary of too readily accepting erroneous public perceptions as a basis for giving a pass to a perjurer.
This is all the more true here because OJ. Simpson's partisans tend to apply a race-based double standard: Not many of them complained of double jeopardy when the Clinton Justice Department prosecuted four police officers for beating Rodney King after their acquittals by the state court jury in Simi Valley.
Such successive state and federal prosecutions are, of course, allowed by the Supreme Court's longstanding (if anachronistic) "dual sovereignty" end run around double jeopardy principles. But the federal prosecution of the Rodney King cops was in some ways more offensive to the spirit of the double jeopardy clause, and thus a more troublesome exercise of prosecutorial discretion, than a perjury prosecution of Simpson would be. The federal prosecution was based on exactly the same conduct and incorporated exactly the same allegations of excessive force that had driven the state prosecution leading to the Simi Valley acquittal.
Nor is it clear that there was anything corrupt or fundamentally flawed about the Simi Valley trial. It was unfortunate that such a racially charged case ended up before a mostly white jury. But even assuming that a mostly black jury would have returned guilty verdicts, the Simi Valley acquittals were hardly a case of race-based jury nullification. Indeed, the Simi Valley jury's deliberations were a model of cool rationality compared with those of the jury that acquitted O.J. Simpson after three hours.
(On the Simi Valley trial, see Roger Parloff, "Maybe the Jury Was Right" The American Lawyer. June 1992. Page 7. and D.M. Osborne. "Reaching for Doubt," The American Lawyer. Sept. 1992. Page 62.)
Part of a prosecutor's job should be to educate the public through reasoned argument, rather than yield to public prejudices. But prosecutors have to pick their battles. And despite my intense desire to see Simpson punished, I doubt that a perjury prosecution would be a smart battle to pick, for several, cumulatively weighty reasons:
• It might smack of selective prosecution because perjury-although extremely common-is rarely prosecuted, and perjury in civil trials is hardly ever prosecuted. Part of the reason is that (unfortunately, in my view) most people, including jurors and even prosecutors and judges, simply don't see lying to save one's own skin (or fortune) as a very serious moral offense. Part of the reason may be that if prosecutors went after all suspected perjurers, they would have time for little else.
Tempting as it might be to make an example of Simpson in order to teach the public a lesson about the seriousness of perjury, a lot of people might take away the wrong lesson and see the murderer as the victim of a vendetta.
• The perception of selective prosecution would be especially strong in this case, in the wake of the no-jail plea bargain that the California attorney general gave former Detective Mark Fuhrman last October for his perjury at Simpson's criminal trial. For denying that he had called anyone a "nigger" in the past 10 years, Fuhrman got probation and a mere $200 fine. While the cases are distinguishable- Simpson's lies were clearly "material." and Fuhrman's arguably were not-the distinction would seem legalistic to many.
• Even a conviction might bring a relatively trivial sentence. California Attorney General Dan Lungren explained Fuhrman's sentence by saying that "the few persons who are actually convicted of perjury typically do not receive prison sentences or jail time."
• There would be something a bit incongruous about prosecuting an acquitted murderer for lying about his shoes or about whether he ever had beaten his wife.
• To the extent that the real impetus for a perjury prosecution would be to punish Simpson for the murders, that truly would conflict with the spirit of the double jeopardy clause. And the Justice Department's politically tinged decision to put the Rodney King cops through a second prosecution is not, by itself, a reason to do the same to Simpson. Two wrongs don't make a right.
• Perjury is notoriously hard to prove. While the evidence of some lies by Simpson (like the one about the shoes) seems overwhelming, he might be able to wriggle around other charges by hiding behind alleged lapses of memory or ambiguities in his testimony-like his admissions that he had "wrestled" with Nicole and was "responsible" for her injuries even though he denied "hitting" her.
• For these and other reasons, any prosecutor who brought perjury charges against Simpson would run some risk of acquittal. And that would be a disaster, inviting further distrust of and derision for the legal system.
• Yet another O.J. Simpson circus-perhaps preempting yet another State of the Union address-would be too much to bear.
• Simpson deserves to be prosecuted for perjury. But the social costs of such a prosecution, and the risk of an acquittal, may simply be too high.