Spoiled juice

O. J. Simpson is complaining to the Associated Press about civil trials, claiming that when they come on the heels of criminal acquittals, they constitute an incarnation of double jeopardy that ought to be reviewed by the Supreme Court. Of course, Mr. Simpson has a slight self-interest to be served in making these comments, but since it isn't a horribly unique argument and we are in the midst of a relatively slow news cycle, I thought I would take a few moments to set the former Trojan running back straight.

The fifth amendment to the constitution, which is where the entire notion of double jeopardy derives, states, “...nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb...” The ellipses aren't hiding anything relevant here – it is a lengthy amendment and the parts about due process, Grand Juries and maritime law aren't pertinent to the question of double jeopardy under any sane reading of the text.

First, let's play with penumbras for a moment (just a moment, I promise) and contemplate what the Founding Fathers were trying to accomplish here. Simply put, history shows they were looking for an assurance that the government wouldn't vindictively prosecute people repeatedly for the same crime until an agreeable jury could be empaneled. Once a jury of your peers – or a judge – has let you off the hook, the idea is that you should be able to move forward freely, no longer bogged down by previous accusations.

So is a civil trial an abridgment of that post-acquittal liberty? Not quite. The amendment says “life or limb,” which are presumably things only the government may justly take via a judicial process. The word “property” is conspicuously absent and it is no coincidence.

Moreover, the accusers in criminal trials and civil trials are different people. In an age when people too often talk about “victim's rights” at trials, it is important to note that victims have no rights vis a vis criminal trials. The state – and the state alone – may elect to bring or not bring charges, and it is the state that is doing the prosecuting. The person who was robbed, battered or carjacked is not permitted to cross-examine witnesses – criminal trials are not supposed to be about personal retribution. Rather, they are a mechanism for protecting the peace. The state is concerned that it has a criminal amongst its ranks and, ergo, it is in the interests of the entire state – or at least a majority of it, in theory – to put that person away, rehabilitate that person or otherwise mete out justice as a corrective and/or deterrent means.

But if the state's primary concerns are law and order, then there appears to be a gap between such interests and those of a victim. A victim, after all, has been wronged in some capacity. Civil court – where we see a plaintiff in lieu of a prosecution – is a vehicle for making that victim whole again; or at least as close as is civilly possible. Whether you were robbed, assaulted or emotionally disturbed by the wrongful act(s) of another, you have a right to personally confront that person in an attempt to force them to make you whole again. And the state, through its judicial system, is willing to be the vehicle for that confrontation so that we don't descend into a Wild West state of chaos.

There is a fundamental trade off being made here, though. If victims forfeit all rights in a criminal trial – they cannot orders charges brought or dropped – and we are willing to acknowledge that they are victims (if a jury of their peers says so, at least), then don't we need a mechanism for them to personally seek justice? Otherwise they are left at the mercy of the state – something that would, ironically, only serve to deny the sort of personal rights the first ten amendments sought to ensure. And, more notably, they are left in a victimized state.

And so the civil process is necessary. Really, it makes perfect sense.

I'm guessing that Mr. Simpson didn't get much of a legal education at USC. And while I have no clue as to whether or not he is guilty, to paraphrase Stewie Griffin, I wouldn't want to be in his Bruno Maglis. But that hardly seems a reason to ask the Supreme Court to review individual liberties.

And remember – no one is found “innocent” in a criminal court; they are merely determined to be “not guilty.” It may seem semantic, but the difference is decidedly substantive.