Trial, Retrial and Contradiction

National attention has turned three times in the 1990s to high-profile serial trials in Los Angeles: the two trials of the officers for beating Rodney King; the two trials of the Menendez brothers for killing their parents; and the two trials of O.J. Simpson. These cases have followed a strikingly similar pattern. In each, the result of the first trial was intensely unpopular. There was harsh criticism of the juries that acquitted the officers who beat King, that could not reach a decision concerning the Menendez brothers and that acquitted O.J. Simpson. In each instance, there was a second trial that came to a different result that proved far more politically and socially acceptable.

The pattern is troubling because it raises concerns over the extent to which the second verdicts were a result of public pressure and not impartial justice.

It is important to emphasize that all of the second trials were legally and morally justified. None was a case of double jeopardy. The Supreme Court long has held that it is permissible for the federal government to initiate a second prosecution regardless of the outcome in a state court action. The federal government is an independent sovereign that cannot have its powers diminished by a state government’s actions. Likewise, it is constitutionally acceptable to have a second trial after a first ends in a hung jury. Nor is there any double jeopardy bar to a civil case following a criminal acquittal. The failure of the government to prove guilt beyond a reasonable doubt never has been held to preclude private parties from suing to recover for their injuries and proving by a preponderance of the evidence the defendant’s liability.

Although none of the second actions violated the prohibition of double jeopardy, all raise the same concerns that underlie this constitutional provision. The framers of the 5th Amendment, which contains the double jeopardy clause, were worried that the government could keep trying its case until it found a successful strategy and a jury willing to convict.

In each of these recent high-profile cases, there is no doubt that the prosecutors and the plaintiffs in the second action benefited enormously from the first failure. The police officers’ and the Menendez brothers’ second trials featured vastly different prosecution strategies as the prosecutors learned from the mistakes in the first cases. Similarly, in countless ways, the plaintiffs’ lawyers in Simpson’s second trial learned immensely from the first and presented a much more focused, streamlined case.

There may be cause for concern about how juries in the second trials were influenced by the intense public criticism of the first trials’ outcomes. Unfortunately, there is no way to measure this factor.

Most troubling is the sense that the judges in the second trials altered their rulings, consciously or unconsciously, in ways that shaped the different outcomes. In the Menendez case, probably the single most important factor was Judge Stanley Weisberg disallowing the defense that had been relied on in the initial trial. In the first trial, Weisberg permitted the defendants to argue “imperfect self-defense”--that they acted based on a fear, even if irrational, for their safety. But in the second trial, Weisberg denied the defense that argument and thus helped to ensure the guilty verdicts. Likewise, Judge Hiroshi Fujisaki’s rulings consistently favored the plaintiffs in the Simpson civil case, perhaps most notably in denying the defendant key evidence, such as Detective Mark Fuhrman’s testimony, concerning the alleged police conspiracy. Whatever the judges’ motivations and whatever the legal merits of their rulings, there is at least the appearance that the rulings might have been in response to the criticisms of the first results.

It would be a grave error to oversimplify any of these outcomes. Many factors account for the contrasting results. For example, in the Simpson saga there were many crucial differences, including Simpson’s testimony and the availability of new evidence in the civil trial, the differences in the standard of proof between criminal and civil cases, and the difference in the racial composition of the juries. It would be a mistake to point to any single explanation to the exclusion of the others.

I am not making these observations to criticize the initiation or outcome of any of the second cases. There was more than ample evidence to justify the jury’s verdict in each instance. The point is to identify a pattern that merits reflection and concern. It is imperative that courts decide cases based solely on the evidence and never on public sentiment, however strong. I worry that, however much I agree with the verdicts in the second trials, at least the appearance of impartial justice is a bit tarnished.