Just Desserts: Intimate Homicide and the Civil Trial

-- By AerinMiller - 10 April 2010

I. Introduction

In 1996, the families of Nicole Brown Simpson and Ronald Goldman filed a wrongful death and survivor action civil suit against O.J. Simpson, and they won. Compensatory and punitive damages were totaled at upwards of 30 million dollars, enough to put the heirs of the deceased right, at least monetarily speaking. But the genius of the civil suit was not the punitive damage award, which could hardly compensate the families for their loss. Instead, the suit forced on the defendant an unshakable label: killer. On appeal, O.J.’s defense team accepted the jury’s finding that he had killed decedents, arguing only that the trial court erred in presenting some evidence of prior domestic abuse, and decrying the damages.

The O.J. Simpson trials exemplify the indirect route by which the victims of intimate homicide (or their survivors) can seek retribution in the face of criminal systemic malfunction. The civil trial is well suited to provide an alternative remedy in “not guilty” intimate homicide cases, because of the difficulty of meeting the criminal burden of proof given the often closeted nature of the relationships in question. There is no substitute for incarceration – the (guilty) defendant’s access to his/her children, family or significant other following a successful criminal trial is truly disconcerting. However, in terms of justice for the deceased, the civil trial offers a second chance to set the record straight.

II. Domestic Violence and Homicide

Domestic violence takes many forms, the most drastic of which is homicide. A 2009 article in The American University Journal of Gender, Social Policy & the Law, entitled “Gendered Nature of Domestic Violence: Statistical Data for Lawyers Considering Equal Protection Analysis,” cites 23.2% of all female homicide victims were killed by domestic homicide in California in 2006, making it the largest category of homicide for women when cause of death is known. 17 Am. U. J. Gender Soc. Pol'y & L. 248 (2009). Nationally, almost 30% of women killed are done so by an intimate partner. Men in both heterosexual and same-sex partnerships are also victims of domestic homicide (although to a significantly lower statistical degree).

Prosecuting a domestic violence criminal case, in those situations when a spouse does press charges, is difficult because of perjury and recanted statements. In intimate homicide cases, the closed-off nature of the home, the privacy of the spousal relationship and the inability of the deceased to tell her side of the story make a successful prosecution difficult. Although there is no statistical difference in the conviction rate of intimate and non-intimate homicides, this fact merely indicates the high threshold of proof necessary for a criminal conviction generally.

III. The Criminal Trial

The O.J. Simpson murder trial exemplifies the difficulties attending a domestic homicide prosecution, astronomically magnified. Nicole Brown Simpson and Ronald Goldman were stabbed to death in Brentwood, California on June 12, 1994. Both bodies were mutilated, but the damage to Nicole was particularly appalling. The nature of the relationship between the two victims is vague, but a romance was later implied. What was known was that Nicole’s husband O.J. was in town for his daughter’s dance recital, and he was a football player and a movie star, wealthy, talented and beloved.

In the months before the jury trial, the public was treated to a taste of the impending lunacy – slow speed chases in a white Ford Bronco, the dream team and a full tabloid sell-out by two key witnesses. By the time of the ‘not guilty’ verdict nine months later, the press had vividly re-imagined the proceedings into a soap opera everyone was watching. The validity of every piece of the prosecution’s physical evidence was somehow questionable. The lives and reputations of the witnesses, police officers, attorneys and even the judge had been fastidiously picked to pieces. The trial was, in other words, a mess, away from which walked O.J., a free man.

IV. The Civil Trial

A year later, however, O.J. was not so lucky. A civil suit has the two major benefits of hindsight and a lower standard of proof. Unlike the criminal trial, these proceedings were not televised and lasted a mere four (as opposed to nine) months. The civil attorneys were more courteous and subdued than the Dream Team and moved though the motions at a clipped pace. Simpson himself was compelled to take the stand. Having documented every sordid deal for a year, the media was no longer preoccupied with the private lives of the actors – reporting was factual and brief. The trial jury and the appellate justices, free from the mayhem, needed consider only whether the evidence stacked above the 50% guilt line, and promptly affirmed that it did just that.

V. A Comparison

The civil trial does not implicate a defendant’s freedom, or label him a criminal. What it does, and does well, is provide a second forum for victims or their families, should the criminal context fail. The civil trial has retrospection (critical in Simpson’s civil trial), and a lower standard of proof to level the playing field.

Often in intimate partner homicide cases, the prosecution must work to debunk a relationship that is extremely opaque. Even in the Simpson case, in which a history of domestic abuse was tentatively established, these factors were insufficient to meet the state’s burden in the face of a barrage of tainted evidence and witness character assassinations. But the civil trial has leeway, some extra give, which works well as a second option for seeking out a fair ruling. Although the second judgment lacks the moral condemnation of the first, the system still publicly recognizes and articulates a wrong. If articulation is not the complete justice the deceased or her family might have envisioned, it is some justice nonetheless. In a flawed system, any corrective device, however incomplete, is a welcome addition.

-- AerinMiller - 10 Apr 2010