OJ Simpson's damages - 14 February 1997

Before we leave the subject, I hope forever, I ought to add a postscript about the second Simpson trial in response to listeners’ curiosity on two points.

The first question is quite simply how did the jury assess the ability of OJ Simpson to pay the enormous sum in combined compensation and punitive damages of $33.5 million dollars, and is he likely to pay it?

The jury looked over Simpson’s record: the money he’d earned in acting, the bigger money in television commercials, which derived of course from his dazzling national fame as a star, for a time the star American footballer. They computed also the several millions he’d earned from his book, from audiotapes he’d sold since he was first charged with the murders. And they no doubt estimated what he was worth in investments.

The defence lawyers maintained that Simpson was bankrupt and that his present notoriety would never again earn for him the million a year his fame had earned. Clearly the jury did not believe the defence’s plea of poverty and must have taken into account the plaintiff’s wish to punish Simpson through his future earnings.

Well the short and pretty certain answer is no, he will not have to come up with anything like $33.5million.

In the history of civil trials, following on a criminal trial, the record is solidly against the hopes of the victims’ families. First, it’s up to the trial judge to adjust the jury’s assessment and it’s rarely left standing. After that, and unfailingly, the appeals courts drastically reduce the award, especially of punitive damages.

In two fairly recent cases – one of a single murder, the other of a murder of several people by random firing in a subway (underground) train, the juries awarded damages – $78million in one case, 43 millions in the other. Both awards were reduced to less than a million.

The second listeners’ question is a large one and deserves at least a whole talk to itself, but I hasten to say isn’t going to get one: how can a second trial in a criminal case be squared with the Constitution’s ban on a person’s being tried twice for the same crime, the so-called "double jeopardy clause"?

Well it doesn’t quite say that. Here are the actual words, "Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb?" In other words, only once may a man face a trial in which the verdict could condemn him to death, but there’s nothing against a trial, many trials if you like, whose verdict is anything but a death sentence.

The idea of not being put twice in jeopardy of life or limb goes back to Ancient Greece and Rome and is in most of the legal systems that derive from them. But every word of that simple sentence in the American Constitution has been tapped and tested and strangulated for every possible meaning, and the most learned book on the subject concludes, "The clause is one of the least understood in the Bill of Rights and the Supreme Court has done very little to remove the confusion".

I will not torture you with the five quite separate principles, moral and legal, that have been deduced by one court or another as being the only one that matters. I’ll say simply that the Supreme Court never decided a double jeopardy case until 1969 and then left no helpful judgment.

Remember that each state has its own criminal code and all of them have developed their own statutes about civil trials. It’s only in the past few years that the fashion, and it is that, the fashion has developed of disappointed plaintiffs trying again through a civil trial.

The second Simpson trial has so glaringly advertised the practice, which has been slumbering there for 200 years, that it has suddenly come alive in the public consciousness; and more and more plaintiffs who saw the defendant acquitted are going to sue again. This time not for life and limb, but for money – or, let’s say, for revenge masquerading as justice.

Sooner than later, I’m saying, the Supreme Court is going to have to make a decisive judgment about the practice of second trials and the jeopardy clause – a judgment that could be as historic as the court ruling on the integration of the races 43 years ago, or the legalising of abortion 23 years ago.

The President of the United States, any president, makes during his term, one term of office, two really important speeches. One is the speech he delivers in front of the capital as soon as he’s taken the presidential oath, the inaugural. The second is his so-called State of the Union address to a joint session of Congress.

Until the First World War, all but two presidents – that’s in about 140 years – sent their thoughts to be read aloud by the clerk of the house. But Franklin Roosevelt, most notably, was not a man to let his words be parroted by a second party, and the custom is now firm that as soon as a new Congress is sworn in, the President shall call both houses and himself deliver his State of the Union address.

Well President Clinton has done both his inaugural (in which he’s supposed to declare the crusade he means to lead) and the State of the Union in which he lays down the laws whereby (he hopes) to accomplish the crusade.

I have for once not commented on either speech because, for once, both of them received brutal notices from the commentators, the papers, the Republicans, and even quietly from many of the Democrats, Mr Clinton’s own party.

I thought it would be mean and pointless to elaborate on these criticisms. Suffice it to say that the general complaint was that the inaugural, which used the word "challenge" eight or nine times, never produced an idea that challenged anything; that it was variously condemned as cliché-ridden boilerplate rhetoric.

As for the State of the Union speech, as one national paper put it, he asked Americans to rise to the decisive moment and then read off a laundry list of risk-free initiatives.

In the middle of that laundry list, it must be said, there was one big proposal which I suppose Mr Clinton could fairly describe as a new crusade. It had to do with education: a range of tax credits and grants to help parents put their young through college.

What was immediately noticeable about this is that it could hardly be taken as a helping hand for the poor. Four years is the normal length of a college education and nowadays, and in many, perhaps most, other colleges and the Ivy League universities, it costs each student between twenty and thirty thousand dollars a year.

It took a little time to see what Mr Clinton’s proposal would mean and cost if it became law. No doubt something, something pale, a compromise, will come out of it, but not much. For two reasons. Chiefly is the deep and old and far-ranging American distrust of the government in Washington getting into education.

Unlike the systems of most other countries, even of a federated government like Switzerland, the educational system of the United States is highly decentralised. There is no national system. In reality, the United States has 50 systems of education and the rumble is already being heard that President Clinton wants to apply national standards to what has always been the proud preserve of each state.

The other objection, which will reinforce the first, is that at a time when the president has declared for reforming welfare and the whole system of what are called “entitlements”, the president proposes a huge entitlement costing a billion dollars or more for the middle class.

So now the president is off around the country campaigning for his education plan. Usually when a president presents a bold legislative plan, he follows up at once with hounding and cajoling the congress for action. Yet Mr Clinton goes off in effect campaigning. But he’s already president, is he not? He is, but he doesn’t love the presidency so much as running for president.

What strikes me most about the general disappointment in both the inaugural and the State of the Union speeches is an extreme case of the disappointment that’s bound to follow on fancy rhetoric, resounding phrases that don’t pay off in action.

The American love of superlatives, it’s an old tradition. Tom Paine, the pamphleteer of the War of Independence with his trumpeting phrases, “Give me liberty or give me death.” He got liberty, but was bored by the thought of building a new nation. He was a professional revolutionary and went off to start one in England and was thrown out.

Dickens noted in the 1840s, the day after he sailed into New York, how everybody congratulated him on visiting the greatest nation, the most flourishing democracy on earth.

The president said his new plan for education would make the American educational system the best in the world. How much more impressive it would have been if he’d said, “In an international survey of educational systems, the United States came 18th in the world in science, 23rd in mathematics. Let’s begin to get good.”

The United States Senate is, of course, the most influential legislative body in this country, yet week in/week out, year after year since I’ve been here, you’ll hear some senator, especially when angry or scared, thunder through the chamber that, “This is the greatest deliberative body in the world!” Always so-called by men who have never been to New Delhi or Paris or London or Ottawa or any of the Scandinavian countries.

When I hear a senator under full steam or a president chanting swelling phrases, I think of the late, small, modest, some used to say mousey Clement Attlee, Labour Prime Minister of Great Britain and responsible as much as anybody for acting out the promises of the welfare state.

A friend of his once suggested that at the opening of a new parliament, he might well copy the practice of the President of the United States – make a fine, swelling speech on the state of the nation. Attlee snapped, “Certainly not. I shall say what’s on my mind.”

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