By RICHARD MEEHAN
The Cool Justice Report
Nov. 10, 2007
EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com
O.J. Simpson, former NFL great whose gridiron moniker was The Juice, is back in a familiar place-seated at a courtroom table with a defense attorney. Now 60 and no longer a threat to break the big one for a TD, Simpson sits and watches, with that same detached stare that filled our TV screens for weeks in the 90's during his infamous murder trial.
This time Juice is facing prosecution for kidnapping and armed robbery in a dispute over stolen memorabilia. The state of Nevada maintains that Simpson and armed co-defendants entered a hotel room occupied by some sports memorabilia collectors with the intent to hold those men against their will and rob them of items that once belonged to Simpson.
Simpson, who doesn't deny being there, claims he was merely securing property that had been stolen from him. O.J.'s defense: No crime was committed; how can you rob someone of something you already own?
That is unusual enough. This current round in the proceedings is unusual for many reasons. This is a preliminary hearing, not a trial, The distinction is that in a preliminary hearing the prosecution must demonstrate only enough evidence to show probable cause for the arrest.
A finding of probable cause, under Nevada law, and in keeping with constitutional requirements under the Fourth Amendment to the United States Constitution, is always required before an individual may be detained and held for trial.
In many states finding probable cause is left to a judge reviewing an arrest warrant. Once issued there is no need for a preliminary hearing. In those states requiring a grand jury indictment and in the federal criminal system a warrant alone does not suffice to allow an accused to be held for trial. There must either be a judicial finding of probable cause after an evidentiary hearing or an indictment by a grand jury.
In our Connecticut state courts we had long ago eliminated probable cause hearings for most felonies and grand juries. Only in cases where an accused person faces life or capital punishment is there a right to a probable cause hearing. In all other cases it is sufficient if a judge finds probable cause, either by the issuance of an arrest warrant, or in the case of a warrantless arrest, after reviewing affidavits from the arresting officers. There are times when police have to make spot decisions without the luxury of seeking a formal arrest warrant. Even so, those arrests must be supported by probable cause.
Probable cause simply stated is a reasonable belief that a crime was committed and the individual whose arrest is sought is reasonably believed to have committed it. The burden on proof for probable cause is the lowest standard in our legal system, known as a scintilla of evidence. Derived from Latin it means a tiny trace or spark of a specified feeling. It exists in deep contrast to the burden necessary to convict-proof beyond a reasonable doubt
In those systems that require a grand jury indictment the preliminary probable cause hearing is an alternative. Either the evidence is presented to a panel of grand jurors, usually in a secret proceeding, generally not attended by the accused, or a full, public hearing is conducted before a judge.
The election belongs to the prosecution. On the one hand they can present evidence, unchallenged by the defense to a captive audience of grand jurors, or expose their case and witnesses to discovery and cross examination by the defense. Most prosecutors will always opt for the grand jury rather than give the defense a shot at their witnesses.
Many defense counsel love preliminary hearings. They are a dry run on the trial and serve to expose the state's evidence. Skillful cross examination can expose weaknesses in the prosecution that are now immortalized. The transcript of the sworn testimony can be utilized at the later trial if the witness testifies differently.
There are instances when seasoned defense counsel will waive a probable cause hearing. Once a witness testifies and is subject to cross examination, that transcript can be used at trial if the witness is unavailable, a common situation in street shootings. B y waiving the hearing the burden remains on the state to locate and produce that witness. The defense is gambling that the witness will not appear or can't be located by the time a trial occurs. In sensational cases, like the recent Cheshire triple homicide, experienced practitioners do not want to pollute the potential jury pool by the publicity that would be generated by a parade of witnesses that may recount grisly or damaging testimony.
Now having read this one would wonder why would the State of Nevada expose their witnesses, especially some of the shady characters they are calling, by opting for a public hearing rather than the grand jury? Every decision made by lawyers is based on the search for a tactical advantage. Certainly the defense has gained an apparent advantage. But what of the prosecution? Are they seeking to create a negative image of O.J. in the minds of potential jurors? That hardly seems necessary since he has worked for a decade to be reviled Or is this another lucky stroke for Simpson whose last criminal victory was as much do to tactical blunders by the prosecution as it was to artful representation by the defense?
Marcia Clark, one of the losers in the Simpson murder case, is now attending the Nevada hearing covering it for television.
Another unique element is the judge, a Justice of the Peace, Joseph Bonaventura, Jr. He is 31 years old and four years out of law school. Wearing a stubbly beard and long flowing black pony tail he is reminiscent of what judges must have looked like when Nevada was part of the Wild West in the 19th century. His father was a fixture on the Nevada bench, known for his flamboyant ways in high profile cases. Judge Bonaventura the younger, despite his youth and lack of experience, has already proven himself in the early stages of this hearing to be diligent, organized and focused on the issues.
If you have had a chance to watch this or go to www.CourtTV.com you can catch up with video, you will see lawyers jousting as if this was a trial of guilt or innocence. In the end probable cause is a simple threshold to cross for the state. Absent something dramatic, the Juice should be assuming the same position months from now when it really counts. He knows the drill very well by now.
Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website, www.meehanlaw.com