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Stuart Taylor, Jr.

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NewsHour: O.J.’s Civil Trial – November 15, 1995

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JIM LEHRER: Now, the differences between civil and criminal court cases. It’s relevant because of a civil court hearing that began today in Santa Monica, California, concerning O.J. Simpson. The former football star was acquitted last month in criminal court on charges he murdered his ex-wife and her friend. Stuart Taylor is here to explain the differences in the two trials. He’s a senior writer at "American Lawyer" and "Legal Times" and a regular on this program. Stuart, welcome.

STUART TAYLOR: Nice to be here.

JIM LEHRER: Set the situation for us in this O.J. matter, the civil court case. What, who brought it? What do they want?

MR. TAYLOR: The families of the two murder victims here of Nicole Brown Simpson and Ronald Goldman are suing and in essence, they’re suing for money, which is the only thing they can sue for, but Mr. Goldman, at least, Frederick Goldman, the father of that victim, has made it clear that his real objective is to render O.J. Simpson penniless, if he can, not so much to make himself rich.

JIM LEHRER: Why does the double jeopardy thing not apply in this matter? The man’s already been acquitted of murder. Why can this be allowed?

MR. TAYLOR: Double jeopardy only applies to criminal prosecutions. The historic purpose of it was to prevent the government from coming back at you again and again after you get acquitted. In a civil case, there’s a different standard of proof. For example, there are a lot of differences, and the purpose is to enable the victims of a civil wrong to get compensation.

JIM LEHRER: So they are essentially suggesting or charging in a civil way that O.J. Simpson did, in fact, murder these two folks. Now what do they–how do they have to prove it? You say there’s a different burden of proof or a different element of proof. What’s the difference?

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Captives of the Cops

by Stuart Taylor, Jr.

What do FBI Director Louis Freeh, Attorney General Janet Reno, former Philadelphia Mayor W. Wilson Goode, Los Angeles prosecutor Marcia Clark, and just about every big-city police chief in the nation have in common?

Hint: Ruby Ridge, Waco, a police helicopter’s fatal firebombing of a Philadelphia row house, detectives Mark Fuhrman and Philip Vannatter, and "testilying."

The common thread is that those who are supposedly running our law enforcement organizations are, in fact, more often run by them. They are prisoners of the lies frequently told by people ranging from cops on the beat to high-level officials at the Federal Bureau of Investigation. They also feel pressure to secure their own standing with their troops, and to bolster morale, by pretending that police lying, brutality, racism, and corruption are less widespread than they are.

Examples:

• Freeh’s promising start in 1993 has been derailed by his blindness to an apparent FBI cover-up of high-level responsibility for the fatal fiasco at Ruby Ridge, Idaho, in August 1992. Freeh initially decided not to dismiss any of those who helped craft illegal, shoot-on-sight rules of engagement and to limit discipline of his close friend, Larry Potts, to a wrist-slap censure. In a March 7 letter to Deputy Attorney General Jamie Gorelick, Freeh wrote:

[F]or you to increase the proposed discipline [of Potts] inevitably sends the wrong message to both the public and the employees of the FBI…. It will also lead to the implication that the FBI and the [Justice] Department dispute the credibility of the employees involved [including] Mr. Potts… [I]t is likely to do profound damage to the relationship between the Department and the FBI [and] be perceived by the rank and file of the FBI as an unjustified attack.

Freeh also warned that Gorelick’s proposal to give Potts a 30-day suspension would cause "damage to my personal credibility."

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Clinton: Jailing the Ghetto for Votes

by Stuart Taylor, Jr.

"Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question," Alexis de Tocqueville wrote in 1835.

And these days, it sometimes seems, scarcely any judicial question arises that is not resolved, sooner later, into a racial question.

So it is that the draconian federal penalties for nonviolent drug offenses have finally attracted a bit of public notice-not because they are called "savagely severe" by people like Richard Posner, the Reagan-appointed judge of the U.S. Court of Appeals for the 7th Circuit, but because they are called racist by people like Jesse Jackson.

Some of these penalties are racist. But that’s not the heart of the problem. The heart of it is that Congress has adopted-and President Clinton and his equally gutless attorney general, Janet Reno, are perpetuating-a regime of grotesquely excessive mandatory minimum prison terms for drug defendants of all races.

This regime has wrecked the lives of thousands of small-time, nonviolent drug offenders. It has done little to dent the drug problem; makes no sense as policy; and is being maintained by politicians for the most cynical of political reasons.

The especially egregious unfairness of one aspect of this sentencing regime-its requirement that each gram of crack cocaine be treated as though it were 100 grams of powder cocaine-was obliquely acknowledged both by Clinton, in his Oct. 30 announcement of his deplorable decision to reject the U.S. Sentencing Commission’s proposal to eliminate the 100-1 ratio, and by Reno, in an Oct. 26 press conference.

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The Politics of Hanging Judges

by Stuart Taylor, Jr.

Buried in a little-noticed Feb. 22 decision by the Supreme Court is an illuminating statistic. It speaks volumes-although the Court pretended otherwise-about the incapacity of many elected state judges, in the current climate, to do justice to persons accused of (capital crimes.

"Alabama’s sentencing scheme has yielded some ostensibly surprising statistics," as Justice Sandra Day O’Connor delicately broached the matter in her majority opinion in Harris v. Alabama. "According to the Alabama Prison Project, there have been only 5 cases in which the [trial] judge rejected an advisory [Jury] verdict of death, compared to 47 instances where the judge imposed a death sentence over a jury recommendation of life."

These numbers are more than "ostensibly surprising." They are stunning. Alabama’s trial judges override jury recommendations to spare the lives of convicted murderers almost 10 times as often as they override jury recommendations of death.

And it’s not just a one-state phenomenon. The same pattern holds in the other two states that allow elected judges to override jury sentences in death penalty cases-although it is especially pronounced in Alabama, perhaps because judges there have more discretion and face partisan elections every six years. In Florida, trial judges opted for death in 134, and life in only 51, of the 185 death penalty cases in which they overrode jury sentences between 1972 and. early 1992. In Indiana, the ratio was eight judicial overrides for death to four for life between 1980 and early 1994.

Why are elected judges dramatically more likely than juries to favor executions? After all, the same citizens who elect the judges sit on the juries- except that juries in capital cases, from which death penalty opponents have been systematically removed (for cause) by prosecutors, are likely to be less sympathetic to defendants than the typical voter.

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Marching With Hate

by Stuart Taylor, Jr.

Only people tortured by a terrible thirst could have been assembled in such numbers at the behest of so detestable a demagogue as Louis Farrakhan, the white-bashing, Jew-hating, violence-threatening, sexist, homophobic leader of The Million Man March.

The thirst is understandable. It’s a thirst for leadership, and for hope of breaking the cycle of poverty, despair, and self-destruction that so disproportionately afflicts African-Americans.

But how much hope can be derived from an event at which (according to a Washington Post survey of 1,047 people) 87 percent of the participants queried had a "favorable" view of Farrakhan? This is a man who just days before had bared his fangs by smearing Jews as "bloodsuckers," a man whose history is littered with the vilest kind of hate speech and visions of violence against Jews and other whites.

And how much reconciliation and atonement can be derived from an event at which souvenir stands did a brisk business in T-shirts celebrating the acquittal of a black man who (the overwhelming evidence shows) had viciously murdered two white victims?

To understand the void now being filled by the ascension of Farrakhan, we might start with a look at President Bill Clinton’s speech on Oct. 16 (Farrakhan’s big day). While making some reasonable (if pallid) points about the need for interracial understanding, the president displayed the sort of pious hypocrisy that has stripped him of any standing to exercise moral leadership when he lamented "unequal treatment" of black people by the criminal justice system:

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NewsHour: Supreme Court Decision on Gay Rights in Colorado – October 10, 1995

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GALE NORTON, Colorado Attorney General: Our position has been that Amendment Two preserves the status quo, that it allows the people of Colorado as a whole to make the decision about the issue of sexual orientation, and the Justices, through their questioning, saw that issue as being one of the primary concerns.

SUZANNE GOLDBERG, Lambda Legal Defense: The Constitution forbids the singling out of one group of people for different political rules, and today, through our briefs and argument, we made that clear. Amendment Two is a patent of the Constitution for all of the reasons we’ve discussed, but it’s also absurd. And I think that many of the questions today pointed that out.

MS. FARNSWORTH: Now, legal analysis of today’s case. Stuart Taylor, senior writer at "American Lawyer" and "Legal Times," is with Charlayne Hunter-Gault.

MS. HUNTER-GAULT: Stuart, thank you for joining us. What is at issue in this case?

STUART TAYLOR, The American Lawyer: Basically, the state’s voters by initiative adopted what almost comes down to a right of the people to discriminate against homosexuals. It’s more complicated than that. What had happened is that some of the cities in Colorado, Boulder, Denver, and Aspen, had passed gay rights laws. You can’t be fired for being a homosexual. You can’t be denied housing for being a homosexual. The voters of the state basically wiped out those laws with this referendum and said, localities cannot adopt gay rights laws, cannot adopt laws banning discrimination against gays, and nor can the state legislature. So if homosexual people want to get relief from discrimination in Colorado, they have to pass a constitutional amendment getting rid of this one, which apparently doesn’t seem politically likely.

MS. HUNTER-GAULT: That’s Amendment Two, and then something like 57 percent of the voters of Colorado voted for it.

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Looking Right at the Justices

by Stuart Taylor, Jr.

"Conservatives on Supreme Court Dominated Rulings of Latest Term." "High Court Rulings Hint Move to Right." "The Year the Court Turned to the Right." "The Conservative Majority Solidifies."

If these remind you of the headlines you were reading about three months ago, think again. They were actually taken from end-of-term wrapup pieces in The New York Times in 1984, 1988 (I wrote that one), 1989, and 1991, respectively. Go back to 1972, and you’ll probably find something similar.

So the headline on the July 2, 1995, New York Times wrapup-"Farewell to the Old Order on the Court: The Right Goes Activist and the Center Is a Void"-was not exactly unprecedented.

Nor were those on the 1995 wrapup pieces in The Washington Post ("Court’s Conservatives Make Presence Felt"), USA Today ("High court makes ‘dramatic’ shift: Fall schedule will test court’s conservatism"), and The Los Angeles Times ("1995 Rulings by Supreme Court Herald Dawn of Rehnquist Era").

The journalistic consensus, it appears, is not only that the Court is Turning Right, to borrow the title of Los Angeles Times correspondent David Savage’s fine 1992 book on the Rehnquist Court, but that it has been turning right for a long time, harder and harder as time passes.

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Why So Many Lawyer Jokes Ring True

by Stuart Taylor, Jr.

You may have heard the one about why some medical labs have started using lawyers instead of white rats in their experiments.

Three reasons: There are more lawyers than rats; lab technicians sometimes get attached to rats; and there are some things a rat just won’t do.

Like most lawyer jokes (and Polish jokes, and so on), this one depends on unfair stereotyping. But the punch line also rings a little bit true-truer, at least, than it would if the class being stereotyped were, say, bankers, or doctors, or corporate fat cats, or journalists, or even used-car salesmen.

It rings true in a way that helps explain why lawyers in this country-unlike those in Germany, or France, or Italy, or perhaps even England-have been so roundly vilified as a class, for so long, by so many people.

See, e.g., Will Rogers ("I have always noticed that any time a man can’t come in and settle with you without bringing his lawyer, why, look out for him."); H. L. Mencken ("[T]heir professional aim and function [is] not to get at the truth, but simply to carry on combats between ancient rules."); Carl Sandberg ("Why is there always a secret singing/ When a lawyer cashes in?/ Why does a hearse horse snicker/ Hauling a lawyer away?"); Ambrose Bierce ("Lawyer: One skilled in circumvention of the law…. Liar: A lawyer with a roving commission."); Mark Twain ("What chance has the ignorant, uncultivated liar against the educated expert? What chance have I….against a lawyer?"); Benjamin Franklin ("God works wonders now and then/ Behold! a Lawyer, an honest Man!").

Some leaders of the bar have suggested that lawyers are unfairly vilified because they often defend unpopular people or causes. That may be part of the explanation, but not the biggest part.

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Gingrich the Executioner

by Stuart Taylor, Jr.

When barbaric, demagogic, idiotic, patently unconstitutional proposals emanated from members of the once impotent Republican minority in the House of Representatives, it was no big deal.

But when such proposals spew from the mouth of House Speaker Newt Gingrich, the most powerful congressional leader in decades, they must be taken seriously. And one of his latest-a mandatory death penalty for importers of illegal drugs, enforced by mass executions of "27 or 30 or 35 people at a time"-is real cause for alarm. Despite the unlikelihood of any such proposal surviving judicial review, the fact that a savvy (if cynical) politician like Gingrich can predict that it would win popular approval by an 80-20 margin evidences the sad state of the body politic. So the bill that Gingrich plans to introduce in September should not be written off as just another boyish excess.

Here’s how he put his idea at an August 25 fund-raising dinner in Athens, Georgia:

If you import a commercial quantity of illegal drugs into the United States, it is because you have made a personal decision to get rich by destroying our children. I have made the decision that I love our children enough that we will kill you if you do this. The first time we execute 27 or 30 or 35 people at one time, and they go around Columbia and France and Thailand and Mexico, and they say, "Hi, would you like to carry some drugs into the U.S.?" the price of carrying drugs will have gone up dramatically. Perhaps Gingrich would like to commemorate the first of his mass executions by personally bulldozing 30 or so drug mules into a mass grave-sort of a Newt-style ribbon-cutting ceremony.

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Making Juries Look Like America

by Stuart Taylor, Jr.

‘State constitutional policies … require a trial court to consider racial demographics in exercising its authority … to change the venue of a criminal trial or to impanel a foreign jury."

So held the Appellate Division of the New Jersey Superior Court on June 12 in State v. Ambrose Harris, in which a black man is charged with raping and murdering a white woman. The court said that Harris-who had won a motion to import a jury because of inflammatory publicity in the racially diverse city where the crimes had occurred-had a right not to have the jury imported from a 98 percent-white suburban county.

Was the New Jersey court just crafting a rule for those rare cases in which venue is changed or jurors are imported? After all, a black defendant might not feel much better about facing an all-white jury if the reason was that his alleged crimes had been committed in a 98 percent-white county. So there is reason to wonder whether the New Jersey ruling may be a first step down the road toward some kind of right to a jury of one’s racial peers, enforced by racial quotas in jury selection.

Such quotas have, in fact, been urged by a few scholars, including Professor Sheri Johnson of Cornell Law School, who has written that black defendants should have a right to juries that include at least three black members.

Whatever the rules should be, it’s becoming increasingly clear that the jury system will be in grave peril if we cannot reverse our society’s drift toward ever deeper racial polarization and tribalism. The staggering racial divisions over the O.J. Simpson case-with 78 percent of whites in one recent poll believing him to be guilty of double murder, and 71 percent of blacks believing him to be innocent-do not bode well.