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NV vs. Simpson – Closing Arguments – Roger

Posted by thedarwinexception on October 2, 2008

 

This morning begins after the judge and the lawyer have fashioned the jury instructions behind closed doors (boo), and they come into court to make a formal record of their various objections to different instructions. The State has no objections to the instructions, which is a good sign for them – apparently the judge took all their suggestions for amendments and strikethroughs. Galanter has objections to a few words of number 6 and the last sentence of number 20, which deals with the claim of ownership of property. Bryson joins in Galanter’s objections. 

Galanter argues on the record that the defense is not arguing that claim of right of ownership is a defense to robbery in the state of Nevada, that they are simply arguing that this goes to his client’s mental state – that Simpson could not have had the mental intent to commit a robbery if he had a good faith basis to believe that the property was his. 

Which is a fairly good argument, actually, since intent is always an element of a crime. If you don’t intend to commit a robbery – can you commit a robbery? Do your actions show intent – or do you have to have a specific mindset? 

Galanter then gets on the record that he had several proposed instructions which were denied and that the defense wanted the jury to have specific instructions regarding intent and burden of proof. 

The judge says his proposed instructions were denied because they were not consistent with the law. 

Assault was added as a lesser included to the assault with a deadly weapon charge. 

The judge then reads the jury instructions to the jury – and she does it in her same auctioneer style. The jury is going to need to go back, take these things out and go over them. Don’t expect a verdict Friday – if they do, you’ll know they didn’t apply the law, because just reading through and understanding the subtle wording of 41 instructions is going to take half a day. 

simpson-stewart-jury-instructions

We then begin the closing arguments with Mr. Roger for the state. 

He begins by reminding the jury that these are charges against the state of Nevada – brought by the State of Nevada. This is not Beardsley or Fromong against Stewart and Simpson – this is Nevada vs Stewart and Simpson. [This is to defuse the defense’s argument of “Look! The victims aren’t even victims! And they don’t even want to bring charges!“]

Roger then re-introduces the jury to the co-conspirators in the case. And he goes through the mug shots of the defendants and former defendants. 

And he then goes through each of the charges against Stewart and Simpson, the jury instruction that applies to each one – smart, since the judge just hurried through the instructions – and explains how each charge has been proven by the state. 

The first three counts of the indictment are conspiracy to commit burglary, robbery and kidnapping – and Rogers goes through what a conspiracy is, exactly, and what the jury instructions say about conspiracy. 

Roger explains that in any conspiracy, the agreement is a secret one. People who engage in conspiracies are friends – they agree to keep it a secret. Rogers then shows the jury the mug shots of Simpson and Stewart, and explains that the two men were friends – and he goes through all the co-defendants, explaining their relationships to the others, and that they were all associated in one way or another.

He then says that all these men had one thing in common – they didn’t give a crap about OJ’s memorabilia – only OJ did. He is the one who put these crimes together – he is the one who put these men together to commit these crimes. 

Roger then goes through the elements of conspiracy – telling the jury that a conspiracy is an agreement by two or more people to commit a crime. He says that  when people come together to commit a crime they don’t always commit the same acts together – for example, one corners the victims in the far side of the bedroom – one has a gun – one is by the door making sure no one leaves the room – and the ringmaster  is yelling orders “Don’t let anyone leave this room!”- but even though they don’t all commit every crime –  there is an agreement among them to commit the overall crime and they are all equally responsible for the acts of the other.

 

 

Roger then shows the jury instruction on liability of co-conspirators  – the act of one is the act of all – and he says that there is ample evidence that there was an agreement between these people to take this property. An agreement to take back property through force or violence. And once that is proven they are all liable for the acts of the others.  

Rogers explains that by their very nature, conspiracies are secret agreements and difficult to prove – but when, as in this case, you have a coordinated series of acts by individuals you may infer that this is a conspiracy. If all the state had in this case was the video surveillance cameras recording these men going in the room and then out of the room with armfuls of property, that would be enough to prove their case – but Rogers says the state has more and has shown this jury much more.  They have the recordings  of these events – recordings of meetings, recordings of Simpson’s secret meetings with McClinton and Alexander – so the state has evidence of more than a series of acts – they have words that come out of the defendants mouth. 

Scotto testified that they had been talking about this plan for a long time – he said it was several weeks. The plans were finalized at the pool and you heard the recordings – there is no question that OJ was in the middle of all of this and establishing the plans. And Stewart was present as well. Even though Scotto tried to establish an alibi for Stewart, he failed, but we did get from his testimony that the Scotto’s received their marriage license at 2:53 and we know that the average wait time that day was 9 minutes. That takes us back to 2:44. If it took 15 minutes to get from the Palms to the License office, that’s 2:29. So 2:29 is the time they would have left the hotel. 

The last reference to Stewart on the recorded conversation at the Palms pools was at 2:12 so, there was plenty of time for Stewart to be at the Palms Pool and then leave to go with the Scotto’s. We know that according to Lockheart, there was an attorney from New Orleans with Stewart that afternoon, and this attorney is also on the recording from the Palms Hotel – being introduced to Riccio. You can hear on these tapes from the Palms pool Stewart saying that they would use his truck and Stewart’s truck is the one they used – so this establishes that Stewart was, indeed, there. 

So these co-conspirators met at the pool and the recording starts at 1:30, and they are all there talking about taking this property – deciding if they should get adjoining rooms, and deciding to lure the victims to a place where they are secluded. You heard about Ehrlich posing as a buyer. A feigned buyer and Ehrlich was going to, as the feigned buyer, go into the room and identify the property and then call the rest of them in so they could muscle the victims and take the property away from them. Those are the words of the defendants in this case. Roger then plays the portion of the pool side tape that has OJ talking about “his boys” – who are the co-conspirators. 

Roger then plays the part of the pool tape that has Stewart speaking about having to lug the property through a crowded hotel lobby, and telling Riccio to come up with a cover story in case the sellers get “nervous” about moving from place to place and not having the deal at their own location. Stewart tells Riccio to tell the sellers that the buyer is going to have a bunch of money on his and doesn’t want to go too far. 

Roger says there is no doubt that Stewart was actively involved. He then plays another portion of the tape – where Stewart offers up his own vehicle to use. Roger says when people agree to commit a crime that everybody has a role – and Stewart’s role was to be the getaway driver. To use his truck. 

Roger explains that Stewart was an active participant in the planning – he plays the portion of the tape where Stewart is talking about getting Ehrlich to call them once Ehrlich is in the room and has determined that there is property in there to take. Roger then plays a portion of the tape where he has transcribed that Stewart says “You ain’t playing my gun” [This part confused me – because is that even a sentence?? What does that mean? IS it some sort of street slang?] But Roger says that this is Stewart talking about guns, proving that he knew guns were going to be involved. [I think this is the weakest part of his argument so far.]

Roger also points out that it’s Stewart who brought McClinton and Alexander into the conspiracy. Stewart called Alexander that afternoon and told them that OJ wanted to see them – and then OJ met with McClinton and Alexander in his room and he enlisted them in this plan. And it was Simpson who asked them to “bring heat” after Alexander tells Simpson that McClinton has a CCW permit and McClinton shows it to him. OJ tells them “I want you to come – and look menacing.” 

Roger then plays the portion of the Little Buddha McClinton tape that has OJ admitting that he asked “CJ” to bring some guys and that he told them to look “menacing”. McClinton testified about OJ using that words – menacing. Those were OJ’s words. 

Roger then goes on to tell the jury that in order to “tune up” McClinton and Alexander and get them up to speed with the plan, they met in the parking lot outside the palace station – they had dropped Cashmore and Ehrlich off at the lobby and then met alone together. And OJ had a reason for that –  he and Stewart didn’t want to talk about the guns in front of Cashmore and Ehrlich. Simpson didn’t know who was going to be in that room- but Simpson told McClinton and Alexander that there might be guns in the room – and he did that to pump them up – he wanted them to look menacing and be on their toes. 

Then we see the tape of all the conspirators marching to the room in the Palace Station. There is an abundance of evidence that these conspirators went to that room to commit a robbery. But there are other theories of liability. 

A person who commits all of the elements of a crime him or herself is called the principle and has principle liability. There can be co-conspirators who can each agree to commit the crime and have a different role in the crime – and then there is another theory of liability – the aiding and abetting liability – this is different than conspiracy because you don’t have to show that there was an agreement to commit a crime –  but aiding and abetting, as the court showed you, is a little bit different, although the end result is the same. They are all responsible for the crimes. Aiding and abetting is someone who, with the intent to commit the crime, plays a role in the crime, whether it’s a getaway driver, or a lookout, or someone who carries property away during the commission of a robbery. So this is a third theory of liability. 

So if a person knowingly and intentionally assists in the commission of a crime, even though there may not be an agreement, they are equally responsible for the crimes charged. 

Roger then goes onto the next charge in the indictment – burglary with a deadly weapon. Roger explains that burglary doesn’t have to happen in the middle of the night, which is what jury instruction number 10 states. It says “Every person who, by day or night, enters any store or other building with the intent to commit assault, robbery or kidnapping, is guilty of burglary.” It is the entry into a building or structure with the intent to commit a crime which establishes the elements of burglary. 

Roger says that the evidence in this case suggests that they had formed the intent to commit a robbery and kidnap the victims and had formed the intent to commit the assault – the plan was already hatched when they entered the Palace Station.  So when they walked through the doors they had met the elements required to be guilty of burglary. 

Roger then goes on to kidnapping in the first degree – one of the crimes charged that carries a life sentence. 

 

Roger explains the term “inveigle” to mean “to lead away by persuasion or trickery”- which is exactly what the state believes happened in this case. They lured the victims to this room, to a secluded corner of the far back portion of the hotel, with the intent to rob them of their property. And that’s kidnapping, under the law. But there’s another way to commit kidnapping, and that’s to detain the victims with the intent to commit robbery. When they forced the victims to the far side of the room to be frisked, and pulling out guns, and with OJ yelling to not let anyone out of the room, six very large people detaining these two victims with the intent to take their property through force or violence  – that’s kidnapping in the first degree.

They were lured to the room, .and OJ was yelling “Don’t let anyone out of here.” There is no question that these victims were not getting out of this room – Clarence Stewart was right on top of them, Walter Alexander was right on top of them, McClinton was by the door with a gun, OJ was between them and the door, Cashmore and Ehrlich were guarding the door – that’s kidnapping. 

Roger then goes on to Robbery – and this is the jury instruction that Galanter and Bryson had objected to, because of the inclusion of the last sentence. 

 

Rogers explains the instruction, saying that robbery is the unlawful taking of personal property from the person of another with the threat of force or violence – or inducing fear. Roger refers to Fromong’s testimony, and Fromong saying he wasn’t scared. But Roger also says that when the State pressed Fromong that he did say he felt his life was being threatened. Roger says that the conspirators were loud and imposing, and that their size alone would induce fear. And that is robbery.  

 

Roger then explains that last sentence – that a good faith belief of a right or claim to the property taken is not a defense to robbery. Roger says that this is common sense – that the State of Nevada doesn’t want people taking the law into their own hands. Nevada is a civilized community. The state doesn’t want people running around with guns trying to get back property that they believe is theirs. That’s robbery! If there is a property dispute, the course of action that should be taken is to go to the police or file civil complaints. That’s the reason they have this law. The state does not want people acting in violent ways. Simpson says on one of the tapes that he has to be at his :”intimidating best” in a few hours. Roger says that was his state of mind at the time of the robbery and why the State doesn’t want people to run around conducting their own recovery efforts. So it doesn’t matter who the property belonged to. There’s sufficient evidence to establish that Mr. Fromong’s property was taken, Mr. Beardsley’s property was taken, but ANY of the property can not be taken through force or violence, that’s the crime of robbery. 

Roger plays the tape where Riccio is suggesting having security officers there – and OJ tells him No, we’ll have about five guys there. Then Riccio suggested taping the event – and OJ rejected that as well, because, says Roger, he didn’t want to tape a crime. He knew it was a crime and didn’t want to create evidence against  himself. Roger also says that OJ believed none of the victims would call the police – and that he was wrong about that, because moments after he and his co-conspirators left the room, the victims did call the police. Roger then plays the tape of Stewart saying “They don’t know who we are.” and instead of interpreting that as a threat or boast of “not knowing what we are capable of”, Roger interprets this as a question of “Hey, OJ, they can’t identify us, can they?” Roger says that unfortunately for the robbers, the victims did know who they were, and they knew what was going on – Intimidation, Force and violence, and that’s robbery.  

In the Palms Hotel OJ talks about how he’s going to take all of the property, and sell it. Roger plays the portion of the tape where OJ says “take it all away and let him sell a lot of it – let him sell the memorabilia.”  Then after the robbery, at the Little Buddha, OJ is telling McClinton that he knew that the Goldman’s would get it, so he gave it to the guys and just said do whatever you want with it. Roger says that because OJ said he was going to give back property, that has no legal significance in this case. That this tape proves that he was going to sell it or give it to others to sell. 

And Stewart kept the victims property – and went police officers went to execute the search warrant, looking for the property, it wasn’t at his house, it was hidden at a different location. 

Roger then explains to the jury that in order for them to find the defendants guilty of both Kidnapping and Robbery, they must consider an additional element. Because in order to rob someone, there has to be a detention. You have to detain someone to rob them. So, kidnapping, could be included in any robbery charge. So there has to be a special element to convict of both kidnapping and robbery, the jury has to find that one of the following is true:

1. That any movement of the victim was not incidental to the robbery  

2. That any movement of the individual substantially increased the risk of harm to the victim over and above that necessarily present in a robbery

3. The movement or restraint had independent purpose or significance. 

Roger says that the state has proven that there was an independent reason for luring the victims to the Palace Station. It was to get the jump on them, to lull them into a false sense of security in a hotel room – and  they wouldn’t have time to react once the co-conspirators came into the room. If they had committed this robbery out in the parking lot there was a chance of detection, so they had to lure them to another area. And this movement increased the risk of harm – the victims could have fought, the guns could have been discharged during a struggle in that small room. 

Roger then goes on to the deadly weapon enhancement. He tells the jury that if they find that these defendants committed crimes, they must also decide if a deadly weapon was used. According to the jury instructions a firearm is a deadly weapon. 

Were there guns used in the commission of the crime? According to the law the gun doesn’t have to be used, “proof of it’s deadly capabilities is not required”. 

 

That the gun was displayed in this crime is enough to convict on it’s use. 

So whether McClinton held the gun out or waved it around, none of that matters. The guns were displayed for the purposes of intimidation. In the surveillance video you can see that when the conspirators are entering the room, their suit coats are buttoned, and as they walk out of the room, their suit coats are unbuttoned – that’s because they were displaying the guns in the room. It doesn’t matter who had their guns drawn, or if they were waving them around – only that they were displayed to induce intimidation for the purposes of committing the crimes. 

 And who is liable for this enhancement? Are Simpson and Stewart not liable because neither carried a gun? Are they responsible? Yes. Under the law there is the unarmed defendant liability. 

If you find that Stewart and Simpson are guilty of the crimes of kidnapping and robbery, then since McClinton and Alexander have already admitted that they were present and that they had firearms and they were part of this robbery, then Stewart and Simpson are guilty of using a deadly weapon if they had knowledge of a use of a firearm. 

And OJ was the one who asked the gunmen to “bring heat.” McClinton testified that OJ asked him to bring the gun, and Simpson was the one who primed McClinton and Alexander out in the parking lot, telling them that there may be a weapon in the room, and it was Simpson who told McClinton to take the gun out as they entered the room – and to look menacing. 

Stewart was talking about guns out at the pool, saying that you aren’t going to “fuck with my gun” Rogers tell the jury to remember their visit to the room, and how small that room was. Roger suggests that for OJ to say he didn’t see a gun is nonsense. Stewart was on the far side of the room looking over in that direction – and he was taking property off the bed – these defendants talked about guns, asked the gunmen to bring the guns and everyone saw guns in that room. 

There was a lot of commotion in that room, but Fromong said he heard someone say “Put the gun down” and that he saw OJ making  a motion with his arm for someone to lower something – and Alexander, who had no contact with Fromong, said in his statement to police that he heard OJ say “Lower the gun.” These defendants were aware of the presence of guns. 

There is an additional charge in this case – “Assault with a Deadly Weapon”. The elements of this crime are met by the mere fact that McClinton and Alexander pulling out their weapons. Assault with a deadly weapon is defined by placing a person in fear of immediate danger or harm by using a deadly weapon. 

Finally, Roger explains to the jury consciousness of quilt. Roger says that Beardsley immediately called 911. And Ehrlich and Riccio are on the phone and Riccio is saying that Fromong and Beardsley called the police. Officer Tucker arrives at the Palace Station and while he is talking to Riccio, OJ calls Riccio on the phone. He is telling Riccio to tell everyone that there were no guns involved, and Riccio tells OJ that he has already told the police there were guns present, and OJ is sullen. OJ then asks Riccio “Well, did you tell them where I was staying?” And Riccio says that he did, and OJ is more sullen. And he says to Riccio “Put the officer on the phone” And immediately he “:turns it on”, his demeanor is totally different and he is laughing and joking with the officer. 

And then OJ starts prepping his witnesses, telling them all “there were no guns”, recognizing that now, contrary to what he thought earlier, that the victims would not call the police, there was going to be an investigation. 

Ehrlich explained how upset he was after this robbery and how mad he was that his good friend OJ put him in this predicament, and that he had brought people to muscle the victims and how he had brought guns into the situation. And Ehrlich told you how he went to OJ’s room after the robbery and OJ said “I fucked up, I’m going to need a bail bondsman.” And when Ehrlich asked OJ “How could you do this to me?” OJ said  “I don’t know why I brought those guys.” If Simpson knew that he wasn’t guilty of a crime, why would he need a bail bondsman? 

You can hear on the McClinton tape from the Little Buddha OJ saying to the accomplices “You can’t say you touched anybody – that’s robbery.” 

And you can also hear on that tape where OJ asks McClinton “You didn’t pull the piece out in the hallway, did you?” recognizing that cameras cover those hallways. 

Roger then wraps up with accountability – saying that the case boils down to accountability. People who go into hotel rooms with guns to rob people of property must be held accountable for their crimes. We all must be accountable for our own actions. There’s been a lot of finger pointing in this case  But the fault doesn’t lie with Riccio – or McClinton or Alexander – they didn’t care about OJ’s property. The fault doesn’t lie with Ehrlich. He just came to town for a party who gets brought into this conspiracy to commit robbery.  The fault doesn’t lie with the police department – they were just doing their jobs. The fault lies completely with Stewart and Simpson. 

 

 

 

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One Response to “NV vs. Simpson – Closing Arguments – Roger”

  1. JayDee said

    Your comment on intent went right to the heart of the defense effort to confuse the jury. Gallanter has been arguing that intent to commit a crime is the issue. In fact, when the act is a crime, the intent necessary is intent to commit the act. Whether you think the act is a crime or not doesn’t matter. The criminal justice system would collapse if the perp. could say, “Yeah, I held up the liquor store at gunpoint, but I didn’t intend it to be a crime, I was just working toward economic justice by redistributing wealth”.

    I was biting my fingernails before the final argument, hoping the prosecution would make that point simply and clearly. I think they did a nice job of diffusing Yale’s smoke. Guess we’ll see.

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