Hatfields and McCoys

At 10 a.m. on October 3, 1995, everyone at Chapman Warwick Advertising crowded around the TV in our conference room to watch the conclusion of the O.J. Simpson trial—along with more than 150 million viewers, or 57% of the country at that time. As the foreman read the verdict, there was loud collective gasp among the all-white staff.

Simpson had been tried on two counts of murder for the June 12, 1994, brutal deaths of his ex-wife, Nicole Brown Simpson, and her friend, Ron Goldman. The not guilty verdict he received was instantly hailed or condemned almost universally along racial lines.

What, exactly did that verdict mean? Did Simpson not commit these heinous crimes?

Not necessarily. It simply indicated that the jury could not unanimously agree, beyond a reasonable doubt, that the testimony and other evidence presented at trial was sufficient to convict Simpson.

As criminal defense attorneys often state, it's really the government that's put on trial to ensure all police and prosecutorial actions are lawful and sufficient to support a verdict. In the Simpson case, serious questions were raised about the quality of crime lab work as well as indications of racial bias on the part of certain investigators. There were also numerous tactical blunders made during the trial by prosecutors.

As an aside, normally getting convictions is a slam dunk for prosecutors, who often face underfunded and unprepared attorneys representing lower income clients. In the Simpson case, prosecutors were steamrolled by a "Dream Team" of high-priced, preeminently qualified celebrity lawyers.

Whether Simpson did it, perhaps only he and God will know.

In 1996, Fred Goldman and Sharon Rufo, the parents of Ron Goldman, brought a civil suit against Simpson for wrongful death. Brown's estate, represented by her father Lou Brown, filed a survivor suit. The jury in the civil trial awarded Brown and Simpson's children $12.6 million from their father as recipients of their mother's estate. The victims' families were awarded $33.5 million in compensatory and punitive damages—thereby finding Simpson "responsible" for the respective murders. But not guilty of murder.

In an Al Capone-like legal maneuver, prosecutors finally achieved their goal of imprisoning Simpson. On October 3, 2008—exactly 13 years to the day since he was acquitted of the murders of Brown and Goldman—Simpson was found guilty of all 10 charges related to a hotel room robbery where he attempted to reclaim some of his own sports memorabilia.

Was justice done?

In a procedural sense, justice was done in all three cases, barring errors on appeal. In a moral sense, there is still widespread disagreement.

So here's what the rule of law is really about: To establish accepted procedures to handle civil disputes and crimes, and to follow those procedures in a perceived fair manner to achieve conclusive results.

The key words here are "perceived fair manner." People will always disagree about the outcome, but enough of them agree to accept the results to prevent civil unrest. If the process is deemed unfair by enough people, riots and violence can erupt—as in the Rodney King case and many other racial conflicts with police since then.

Remember the Hatfields and McCoys?

Operating in a lawless environment following the Civil War, this interfamily feud escalated in endless retribution and increasing cycles of violence for more than a decade. For details, see the link below.

Tit for tat is not a sound procedure for resolving disputes and punishing crime. It's based on emotion or political gain, not established and followed fair procedures. It does not achieve a conclusive result accepted by most people. Instead, seeking revenge—payback—for perceived injuries undermines the very essence of the rule of law, which is itself the foundation of our constitutional republic.

This brings us to the Kavanaugh Supreme Court nomination.

Under the U.S. Constitution, Article II, Section 2, “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.” On top of that are layers of laws, Congressional rules and committee precedents. And on top of everything is a general sense of fairness.

IMHO, the most troubling thing about the Kavanaugh confirmation is the failure of process and fairness. I don't know all the rules. Maybe the witness vetting process is clearly defined but wasn't followed. Maybe the rules are vague and need to be clarified.

For example, there should be a widely publicized Judiciary Committee process that (1) calls for witness testimony from any source as soon as a nominee is announced, (2) establishes a 60 day submission period with a clear cutoff date, (3) reviews that evidence privately for 30 days and (4) submits a confidential report to the committee for review. The committee then decides in private session how to proceed with the final report, including which parts to make public and which witnesses to call, if any.

Politicians and citizens know the rules ahead of time and respect them. After the cutoff date, no further submissions are allowed. Such a rule, like the related concept of statutes of limitations, achieves both fairness and finality. With such a transparent and objective process, last minute claims will be considered patently uncredible. Why go through all this? Without a fair process, the best qualified candidates will never seek higher office.

So let's take this one more step: MeToo.

Arguably we have laws and procedures in place to handle allegations of sexual misconduct. But the reality is there are a hodgepodge of inconsistencies across state and federal government. And most of these laws clearly don't work in today's MeToo environment.

What if we follow the same logic I suggested above about Supreme Court nominee vetting. Maybe we need a need body of law and a new court system. It's been done before: The FISA Court was established in 1978 to oversee requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence agencies.

Regarding MeToo accusations, a key aspect of a fair process would be to protect the anonymity of both the accuser and accused—enforced by severe civil and criminal penalties. More broadly, timeframes and standards of evidence should be widely accepted as consistent and fair across all jurisdictions.

Right now, in the U.S., simply being accused of sexual misconduct can ruin your life, especially when publicized by a sensation addicted media. It's hard to imagine all the repercussions. There will be even greater gender conflict. Men will be less inclined to court women and seek marriage. And they will increasingly avoid being alone with women, and children for that matter.

There's some logic to taking Pence-like precautions until all the rules of this new era get sorted out. But at what point will men prefer to buy a sexbot and leave childrearing to donor-inseminated single mothers? This is no joke—billions of dollars are being spent on AI that will replace any form of "risky" human interaction. Or will society go old-school and insist women wear burqas and keep the sexes completely separated?

Ideally, men will be retrained to properly control their sexual urges. And women will learn how to avoid threatening situations, and if they occur, file properly documented complaints. In my opinion, that would be the most desirable outcome. However, as a species, we haven't figured out how to stop violence and murder, much less overcome narcissism and self-centeredness. Then there's the issue of how cultures and religions subjugate women to men. When and how is that going to change? We can only hope as Martin Luther King Jr. said, "The arc of the moral universe is long, but it bends toward justice."

Does the current system ever work? Ask the victims of convicted comedian Bill Cosby. Unlike the Simpson murder trial, there is a general agreement across all demographic lines that the result was fairly and conclusively reached.

When done right, the rule of law works.

Appointments Clause U.S. Constitution
Bill Cosby sexual assault cases
Cosby is Not O.J.
FISA Court
Hatfield-McCoy feud
Kavanaugh Supreme Court nomination
O.J. Simpson murder and civil cases
O.J. Simpson robbery case
Rodney King

Comments? Send to: tedkseastrom@gmail.com

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