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Cincinnati Restaurateur Doesn't Serve Notorious Killers:

The Cincinnati Enquirer reports:

Jeff Ruby isn't a big O.J. Simpson fan.

The Cincinnati restaurateur made that clear last week when he asked Simpson to leave his steakhouse in Louisville because the former football great and murder defendant makes him "sick to my stomach."

But does disliking a guy give Ruby the legal right to deny him a steak?

Civil rights lawyers say it does.

"It's his business," said Cincinnati lawyer Lou Sirkin. "He's got the right to do that."

Indeed.

The newspaper further reports, "Simpson's lawyer has said he might pursue legal action and accused Ruby of excluding Simpson on the basis of his race." Indeed: If Ruby has been serving notorious white killers, but rejected O.J. because he's black, that's illegal. But somehow I doubt that this is what was happening.

Good work, Mr. Ruby.

Thanks to Ethan Hahn for the pointer.

Chris 24601 (mail):
Actually, it was a Louisville restaurant, though a Cincinnati restaurateur.
5.9.2007 10:32pm
Eugene Volokh (www):
Voops, sanks! Zey didn't teach us American geography zat vell in KGB school. Corrected eet.
5.9.2007 10:41pm
e:
1. Probably not racial, and that claim is nonsense.

2. Okay for the restaurant to not like certain people.

3. Call me crazy, but I won't call him a notorious killer after the criminal jury found otherwise. Notorious, fine, but we already have too many people who distrust everything about the gov't and think of it as the other, and I won't go down that road.
5.9.2007 10:42pm
Eugene Volokh (www):
e: Why prefer the criminal jury's finding to the civil jury's? The criminal jury found there was reasonable doubt about whether he killed Nicole Simpson and Ron Goldman; the civil jury that awarded punitive damages found, unless I'm mistaken, that there was clear and convincing evidence that he killed them. Clear and convincing evidence strikes me as good enough for me to call him a killer, even though it isn't good enough to get him thrown in prison as a killer.
5.9.2007 10:48pm
Henry (mail):
e: How does it increase trust in the government to act as if a verdict was correct when it obviously wasn't? That wouldn't make sense even if it were appropriate to equate a jury with the government.
5.9.2007 10:49pm
BruceM (mail) (www):
I find it unfortunate that people found not guilty by a jury still have to carry around the stigma of being considered guilty. I find it incredibly unfair that people charged with crimes have absolutely no recourse to clear their name. A "not guilty" verdict is not the same as an "innocent" verdict. A defendant should have the right to have a jury declare him innocent of the crime (which would preclude civil trials after the fact on a res judicata theory). The next jury trial I do I am going to request an "innocent" option for the jury to pick, under "guilty" and "not guilty"... how else can such a stigma be cleared up? I don't want any of my acquitted clients to be barred from a restaurant on the theory that their innocence has not been shown.
5.9.2007 10:51pm
Edward A. Hoffman (mail):
e:

The criminal jury did not find "otherwise". It never ruled that Simpson was innocent; it simply decided the prosecution had not proven his guilt beyond a reasonable doubt. There's a big difference. Jurors who believe a defendant is guilty but have such doubts must vote for acquittal, even if they feel that they are thereby freeing a killer. The verdict in Simpson's criminal trial is thus very far from a finding that he is innocent of the charges.

On the other hand, the jury in Simpson's civil trial did find that he is a killer.
5.9.2007 10:53pm
rlb:
If that jury had declared OJ "100% innocent," he'd still be a notorious killer, unless you believe a jury can nullify reality as well as law.
5.9.2007 10:54pm
Lou Wainwright (mail):
"Nullify reality"...nice.
5.9.2007 11:07pm
Henry (mail):
Regarding BruceM's suggestion, I think that juries would be confused by the instruction to find the defendant guilty, not guilty, or innocent. How about, guilty beyond a reasonable doubt, guilty but with a reasonable doubt, and innocent? The defendant would, of course, be acquitted by the middle choice. That choice could benefit defendants because it would make explicit to juries that, absent a reasonable doubt, it must acquit even if it believes the defendant guilty. Under the current system, I fear, juries are reluctant to acquit when they think the defendant did it, even if they have a reasonable doubt.

A separate question for BruceM: do acquitted defendants generally carry the stigma of being considered guilty? Or is O.J. Simpson a special case? I doubt if many defendants are acquitted who are as obviously guilty as he was.
5.9.2007 11:09pm
Andrew Okun:
I believe California has pretty stringent civil rights law called the Unruh Act with a fairly open-ended definition of discrimination that draws into question almost any arbitrary exclusion. And yet I bet booting OJ for being a noxious killer would be fine in California.

A question: Given he was acquitted of murder but found liable for wrongful death, is it questionable either from the semantic or legal standpoint to call him a murderer, as opposed to a killer? He could sue, in theory, if called a convicted murderer, but does the same go for "murderer" without the modifier?
5.9.2007 11:10pm
Steve:
There would seem to be little incentive for OJ to go around suing people, since the proceeds of any successful lawsuit would surely be subject to a lien in favor of the Goldmans. Talk about an unsympathetic plaintiff, though.

On the other hand, it's entirely possible that Jeff Ruby is the real killer, and he's just trying to keep OJ away for fear of exposure. I'm surprised OJ's attorney didn't suggest that possibility.
5.9.2007 11:15pm
Henry (mail):
Andrew Okun: "Murder" has non-legal meanings. We call Hitler and Stalin murderers; one can even murder the English language. If Simpson sued for defamation for being called a murderer, the defendant would win because truth is a defense.
5.9.2007 11:20pm
Jason Fliegel (mail):
Mr. Ruby was almost certainly not motivated by prejudice against blacks (or, for that matter, retired professional athletes) since the table vacated by Mr. Simpson was given to Michael Jordan.
5.9.2007 11:24pm
great unknown (mail):
If a criminal jury had the option of finding a defendent innocent, and did so, would that defendent then be immune from civil claims for the same actions?

BTW, Ruby has pictures of sports stars in his restaurants and once had those of OJ on the walls. He removed them after the not-guilty verdict.

The only crime I can think of here is slander by Simpson's attorney. Why is he allowed to make an accusation of racism with no evidence? But then again, I'm only an innocent civilian bystander, simply observing the just and ethical actions of attorneys, sworn officers of the Courts.
5.9.2007 11:29pm
Henry (mail):

If a criminal jury had the option of finding a defendent innocent, and did so, would that defendent then be immune from civil claims for the same actions?


We don't know, of course, because a criminal jury doesn't have that option; rules would have to be promulgated. The difficulty would be with burden of proof and standard of proof. A civil plaintiff has the burden of proving liability by a preponderance of the evidence. In a criminal case that allowed a finding of innocent, who would have the burden of proving innocence? Obviously not the state, because it is attempting to prove guilt. But it couldn't very well be the defendant either, at least not in the same proceeding, or the jury instructions would get awfully confusing. If, however, a defendant did prove his innocence by a preponderance of the evidence, or by a higher standard, then that might preclude a civil suit.
5.9.2007 11:39pm
Dave N (mail):
I am not sure how a defendant proving "innocence" might preclude a civil suit since the parties are different. In OJ's criminal case it was "The People of the State of California" whereas in the civil case it was the "The Estate of Ronald Goldman" though OJ was the defendant in both cases.

That said, how could the actions of the "The People" preclude a third party (Goldman) from suing since there is no privity between the prosecution and the Goldman estate?

On the other hand, OJ WAS a party both times--and had he been found guilty in the criminal trial, the Goldman Estate would have won either on the pleadings or via summary judgment since under this scenario OJ contested the facts and they were found AGAINST him by a higher level of proof ("beyond a reasonable doubt") than required for a civil judgment.

The converse is not true because the criminal jury COULD have found clear and convicing evidence of OJ's guilt and still have been required to acquit him if they felt guilt was not established beyond a reasonable doubt.
5.9.2007 11:56pm
Daryl Herbert (www):
There would seem to be little incentive for OJ to go around suing people, since the proceeds of any successful lawsuit would surely be subject to a lien in favor of the Goldmans.

OJ's lawyers could win legal fees in certain types of anti-discrimination suits (so they would have incentive to sue)

And OJ would get to bully this guy so, in the future, people wouldn't bother him.
5.9.2007 11:56pm
Mike Friedman (mail):
Since all of Simpson's money is supposed to go to the Goldmans how does he have money to have a lawyer?
5.10.2007 12:19am
Martin Ammorgan (mail):
The thing is: it was a steakhouse.

Sushi and chopsticks is one thing, but do you really want O.J. at the next table with a steak knife?
5.10.2007 12:24am
BruceM (mail) (www):
Yes, if a jury found a defendant "innocent" it would act as collateral estoppel and res judicata for civil claims stemming from the same set of facts.

I don't believe for a second juries would be too confused by having an "innocent" option along with the "not guilty" option. Jury instructions and clear statements during voir dire can clear that up. I have a trial on monday and I'll request an innocence option for the jury, on the theory that due process requires an accused to have the opportunity to have his name cleared of the charges brought against him. I'll let you know what happens.

I'm fairly sure OJ is factually guilty, but I have doubts. I am confident that the state of california did not prove his guilty beyond a reasonable doubt, and that's all that matters. Those prosecutors were miserably stupid, while OJ's lawyers were extremely bright and always many steps ahead of the prosecutors. At the end of the day, the state has to prove guilt, not rely on a "come on of course he did it!" mentality to get a conviction. They were lazy. And they spent WAY too much energy focusing on prejudicing the jury against OJ with allegations he was abusive rather than, say, showing the jury that when OJ was fleeing in the Bronco he had a disguise with him, matching blood on him, etc. A lot was left out. I have no problem with a guilty person going free because the prosecutors screwed up. That means the system works. Juries should not convict by default.

Here is the question I have. Should a defendant have to put on SOME evidence to be entitled to an "innocent" option on the jury charge? Like with a self-defense instruction, a defendant has to put on SOME evidence that self-defense is an issue in order to be entitled to submit s-d to the jury. Likewise, may a jury find a defendant INNOCENT if the defendant puts on absolutely no evidence, or is it limited only to a not guilty vedict?

My initial feeling is that a defendant should have to put on some evidence, but I'm not sure. If the state's key witness falls apart on cross-examination and admits to making up the entire charge, assuming the state does not dismiss, the jury should be allowed to find the defendant innocent even if the defendant puts on absolutely no testimony and rests right after the state rests.

Another problem I have is that a not guilty verdict has to be unanimous. That puts the burden on the defenant to convince 12 jurors he is not guilty. The state must prove the charge beyond a reasonable doubt. If 12 jurors cannot agree, it should be an acquittal, not a mistrial/do-over. How did we ever come to the present system where a not guilty verdict has to be unanimous. I've never understood that, and it's always seemed plainly erroneous to me. We presume the jurors are reasonable (unreasonable jurors are disqualified during voir dire). So if 12 reasonable jurors cannot agree on guilt, after sufficient time to deliberate, how can anything be said other than the state did not meet its burden? Why a mistrial? Why does the state get to do it over again? If it can't convice all the jurors beyond a reasonable doubt, it lost. The defendant should be acquitted. To require an acquittal to be unanimous puts a burden on the defense which is not supposed to be there.
5.10.2007 12:31am
BruceM (mail) (www):
One other good thing worth mentioning about having an 'innocent' option on the jury charge is that jurors quite often "settle" on a middle ground. With 10 charges and 3 lesser included offenses for each, the state has long had a compromise verdict mean a guilty verdict. If there were three options, guilty, not guilty, and innocent, the pendulum would swing the other way and jurors would sometimes settle on the middle ground of not guilty. That would be a good thing. We have too many people in prison as it is.
5.10.2007 12:33am
RainerK:
Good work, Mr. Ruby.

EV,


You are schooled in the law. I'm puzzled. Mr. Simpson was acquitted by a jury according to the rules of law. Should he not be treated as being innocent? You declare him guilty based on the verdict of a civil jury. What gives? I totally agree with BruceM: What does an acquitted defendant have to do to be regarded innocent? Why not do away with criminal jury trials altogether if a defendant can still be convicted in another court? Strikes me as de facto double jeopardy. The fact that the conviction was obtained by a private plaintiff and not the State, it still was obtained with the aid of the law and is enforced by the power of the State. Only legal formalism can spin the facts facing a defendant by pointing to the difference between criminal and civil procedures. This difference matters little to Mr. Simpson and, moreover, it easily slides into cognitive indifference as evidenced by the post of Mr. Hoffman.
It is my opinion that a justice system founded on the great ideals of the Constitution and the laws enacted in their spirit is being debased by formalism in this instance.


I do believe that Mr. Ruby has the right to refuse service to Mr. Simpson, albeit based on the fact that the restaurant is his property. He could refuse to admit me if he didn't like my nose, but I would reserve the right to alter the shape of his nose in response to the insult.
5.10.2007 12:38am
Michael B (mail):
link

"Ruby said the steakhouse was crowded with diners who gave him a standing ovation for telling Simpson and his party of 12 to leave. 'By the morning I had emails from across the country commending me for the convictions I had for doing the right thing,' Ruby said."

Hear, hear.

Simpson, in several respects, is a large presence and it takes no mean or small person to stand up to him; Ruby is deserving of respect. Simpson is deserving of anathema, but in the face of power and the spectral success power begets, such is dismissed as an awkwardly trite, even impudent and impotent, moralizing. Essentially, tribal instincts and associations lauding such "success" and prevailing over more principled stands.
5.10.2007 12:44am
Joe Bingham (mail):
We're all talking about O.J., but God (yes, I'm invoking His name), it pisses me off so bad that anyone had to ask a civil rights lawyer whether I have a right to refuse a steak to someone I don't like.

Pisses me off and scares the heck out of me. How is that a serious question?!?!?!

(apologies for what I hope is an unusually unrestrained post.)
5.10.2007 12:46am
RainerK:
Overlawyered reports that minutes after evicting Simpson, Jeff Ruby admitted Michael Jordan. Doesn't look good for the racism claim.
5.10.2007 1:00am
Jerry Mimsy (www):
Not claiming anything about Simpson here, but wouldn't it be more appropriate to say that "If Ruby has been giving notorious acquitted white defendants with a civil judgment against them the benefit of the doubt, but believes O.J. did it because he's black...."

If a business owner refuses service to people they believe are killers regardless of race, but are more likely to believe that a black man is a killer than to believe a white man is, is that illegal discrimination or is it too far removed?
5.10.2007 1:25am
Edward A. Hoffman (mail):
One problem with giving juries an "innocent" option is that the defendant would often end up bearing the burden of proof on this point. Defendants are presumed innocent at the outset, but once the prosecutor has made a prima facie showing of guilt a defendant who wants to be found innocent would probably have to make a showing of his own to counter the prosecution's case. Generally, this would mean that he would have to testify and deny his guilt -- something the Fifth Amendment says cannot be required of him. I don't think a system that says a defendant can be found innocent but that, in many cases, he will have to take the stand in order to win such a verdict would be constitutional.

Some defendants could make such a showing by calling other witnesses and not testifying personally, but even that is more than a defendant must do under the current system. A defendant is entitled to present no case at all and simply argue that the government has failed to prove its case beyond a reasonable doubt. A very large percentage of defendants actually do this. Making an entire class of verdicts available only to defendants who are willing to forfeit their Fifth Amendment rights is very much at odds with our present system of justice.

And yes, I realize that it is possible to argue actual innocence without putting on a case and that some defendants will be able to offer persuasive evidence without seriously impinging on their rights. But the fact that this problem would not arise in all cases does not alter the fact that it would arise in many -- probably in most. The factors that would determine whether a particular defendant can make this type of showing will often have little to do with whether he is actually innocent or not. Offering an "innocent" verdict which factors unrelated to innocence will often preclude is fundamentally unfair.

Then there is the question of what standard of proof we would require. Must a jury be persuaded of the defendant's innocence beyond a reasonable doubt? Would a preponderance of the evidence be enough? Or how about clear and convincing evidence? How could we choose among these options? And how could we justify the choice we make?

Then there is the problem of paying for this sort of proof. Should an indigent defendant be entitled to seek a verdict of innocent at public expense? If not, do we want a system in which effectively the only defendants who can be found innocent are those who can afford a lawyer?

Another problem: if a defendant who fails to get a verdict of "innocent" is going to be stuck with the same "not guilty" verdict available now, and he would likely be stigmatized even more than acquitted defendants are today. After all, a defendant who could not win a judgment of innocence even though one was available is more likely to be guilty than one who never had this option. Because only a small fraction of defendants would likely be able to prove their innocence, this type of change would only reduce the stigma on a few while increasing it for the vast majority of those acquitted.

Another problem, of course, is that no matter how the process would unfold it would require proof of a negative. This would be doable in some cases (the negative could never be absolutely proven but sometimes could be shown beyond a reasonable doubt, by a preponderance of the evidence, or by other standards of proof) but usually such a showing would not be feasible. Whether it is feasible in a given case will often be a matter of chance, but if we are going to make an "innocent" verdict available we surely don't want chance to play a large part in its use.

One way to mitigate some of these problems would be to give a defendant who has been acquitted an option to prove his innocence in a subsequent proceeding. Maybe he could try to persuade his trial jury in a new phase of the trial that doesn't begin until after the not guilty verdict has been read. Or perhaps it should be an entirely separate proceeding started well after the trial; such a system would put less pressure on a defendant with limited resources to divert some of them away from his defense.

Here in California, state court judges can rule that an acquitted defendant is actually innocent but the procedure involved is, well, quite involved and is seldom invoked. It even more seldom succeeds. Offhand I don't know enough about it to offer any details.
5.10.2007 1:31am
I like tasty steak:
I know this is unrelated to the legal discussion, but I just wanted to mention that Jeff Ruby runs one heck of a steakhouse. I have been to pretty much every top steakhouse in the northeast and the midwest (including all of the big ones in New York and Chicago), and the meal I had at his Cincinnati location was one of the best I have ever eaten.
5.10.2007 2:27am
Bill Poser (mail) (www):
Does anyone know about the experience of the courts of Scotland? As I understand it, in Scotland a jury may return one of three verdicts: "guilty", "not proven", and "not guilty". "not proven" is to be returned when the jury thinks that the defendant may well be guilty but that the evidence does not meet the standard for a guilty verdict. "not guilty" is to be returned when the jury does not believe the defendant to be guilty. OJ would presemably have received the "not proven" verdict.
5.10.2007 3:01am
happy lee (mail):
A property owner invokes his right to exclude a cold blooded murderer and the murderer's attorney pulls the race-card and claims it is "race" based discrimination? I'm sorry, but I don't want to live in a country where an honest restaurant owner is forced to serve a cold-blooded killer.

The attorney who pulled this race card bull should be hauled before some ethics committee, if such things exist anymore.
5.10.2007 3:23am
JB:
Y'all are going about this wrong. OJ, rightly or wrongly, was acquitted. This is a case about free association for Jack Ruby, not about the kind of treatment OJ should get.
5.10.2007 3:46am
BruceM (mail) (www):
JB: nobody is saying Ruby does not have the right to refuse to serve whomever he wants at his own private restaurant. Unless it's based on race, of course.

Edward: I addressed some of that in my last post.

One problem with giving juries an "innocent" option is that the defendant would often end up bearing the burden of proof on this point. Defendants are presumed innocent at the outset, but once the prosecutor has made a prima facie showing of guilt a defendant who wants to be found innocent would probably have to make a showing of his own to counter the prosecution's case.

In reality, defendants are presumed not guilty, rather than innocent. If the state does not rebut the presumption of innocence, the jury must return a verdict of not guilty, not a verdict of innocent. I'd like to change that. I addressed in my previous post whether a defendant would have to put on some evidence (it would not have to be his own testimony, i.e. a friend who says he was out of town the day of the crime) to be entitled to an 'innocent' charge. My initial feeling is yes, but the more I think about it, I don't believe a defendant should have to put on evidence to get an 'innocent' option in the jury charge. It's not like a self-defense instruction where it's only relevant once raised. Innocence is always relevant. A defendant can put on absolutely no evidence and a jury can still find the charges absolutely implausible and find the defendant innocent, not merely just 'not guilty.'

When we say "guilt/innocence" phase we should mean it. It should be the guilt/not guilt/innocence phase.
5.10.2007 4:50am
David M. Nieporent (www):
BruceM: it would seem to me that if the evidence of innocence were so overwhelming that a jury would actually chose that over "not guilty" -- a term that in my mind would definitely confuse jurors -- the case isn't going to get to a jury at all. It will end with a dismissal.

Regardless, I don't see how you get collateral estoppel even from a finding of innocence, since the civil plaintiff wasn't a party to the original case and the elements of the criminal charges and civil cause of action are unlikely to be identical.


RainerK:
You are schooled in the law. I'm puzzled. Mr. Simpson was acquitted by a jury according to the rules of law. Should he not be treated as being innocent?
By the government, certainly. Private parties are not required to give someone the presumption of innocence, before or after a trial.
You declare him guilty based on the verdict of a civil jury. What gives? I totally agree with BruceM: What does an acquitted defendant have to do to be regarded innocent?
The same thing any person has to do in any situation "to be regarded as" something. What does your neighbor have to do to be "regarded as" a nice guy?

To an extent, you're echoing Ray Donovan's question: "Where do I go to get my reputation back"? The answer is that the government doesn't control private people's opinions.
Why not do away with criminal jury trials altogether if a defendant can still be convicted in another court? Strikes me as de facto double jeopardy. The fact that the conviction was obtained by a private plaintiff and not the State, it still was obtained with the aid of the law and is enforced by the power of the State. Only legal formalism can spin the facts facing a defendant by pointing to the difference between criminal and civil procedures.
"Legal formalism" is pretty important. It's the basis of our system. A defendant can't be "convicted" in another court. He can be found liable, by a preponderance of the evidence (or clear &convincing evidence, depending on the circumstances), to a third party and ordered to pay damages.

Think of it this way: let's suppose your wife's surgeon screws up and kills her. You can sue him, right? He can be found liable for causing her death, right?

Now let's suppose that, before you get a chance to sue, an overzealous prosecutor swoops in and secures an indictment for manslaughter against the surgeon. The case is flawed, and the jury finds him not guilty. Do you think you ought to now be precluded from suing the doctor, because a jury found him not guilty? Even though the prosecutor was bringing a different charge against the doctor and you had no opportunity to be a party to his case?
5.10.2007 6:26am
Alan Gunn:
Is the California standard of proof in civil cases "clear and convincing evidence"? In most states, it's just "preponderance of the evidence (i.e., "more likely than not"), except for special cases like fraud, so if a jury thinks it's 51% likely that the plaintiff is right on an issue, that issue is decided for the plaintiff.
5.10.2007 8:26am
Hank:
BruceM writes: "I'm fairly sure OJ is factually guilty, but I have doubts. I am confident that the state of california did not prove his guilty beyond a reasonable doubt, and that's all that matters."

I remember Marsha Clark convincingly pointing out in her closing that, even if you rejected everything else, the DNA evidence established proof beyond a reasonable doubt.
5.10.2007 9:03am
Lou Wainwright (mail):
Isn't it a pretty narrow window where the evidence would be such that the Jury would find 'innocent', and yet the case would go to verdict? Cases generally only go to verdict when there is at least some decent amount of evidence supporting the charge. If the evidence was so uncompelling that the jury would find 'innocent' doesn't it also imply that the prosecution or the judge should have dismissed the charges?

Obviously, many people who are found 'not guilty' are, in fact, innocent (not OJ though), I just doubt there are a lot of cases in which a jury would be able to reach the conclusion of 'innocent beyond a reasonable doubt'.
5.10.2007 9:39am
Justin (mail):
"Cases generally only go to verdict when there is at least some decent amount of evidence supporting the charge."

Except when you have a public defender. I've seen some of these cases come up on appeal, and they are often pretty thin - oten more so in the criminal context than the civil context.
5.10.2007 9:49am
quasimodo (mail):

"it's entirely possible that Jeff Ruby is the real killer, and he's just trying to keep OJ away for fear of exposure."


You'd understand the truth of what you are saying if you ever paid for a meal at one of Ruby's places.
5.10.2007 9:55am
AppSocRes (mail):
Bill Poser beat me to the punch: The Scottish common law allows verdicts of "not proven" when the jury believes that the defendant is probably guilty but the prosecution has not met its burden of proof. It seems to me that this has some obvious advantages over the English common law's requirement of a binary choice for juries.

I prefer the Scottish system to previous posters' suggestions of adding an "innocent" finding to the current choice of "guilty" or "not guilty" for two reasons: First, the Scottish system is time-tested. Second, my experience suggests that no one over the age of two is innocent.
5.10.2007 9:56am
Charlie (Colorado) (mail):
JB: Jack Ruby was someone else.
5.10.2007 10:10am
Mr. Bingley (www):
Marsha Clark had no hope against the Chewbacca Defense.
5.10.2007 10:11am
Houston Lawyer:
Didn't someone also exclude Johnnie Cochran from a restaurant on similar grounds years ago based upon their dislike of his OJ trial antics?
5.10.2007 11:07am
Paddy O. (mail):
Seems to me that while all the talk about jury acquittal is nice there is one big distinction about the OJ case. It was televised. Meaning we could all watch it and get the same kind of info that the jury received. The whole country became a jury, even if only twelve could decide officially. He won according to the formal legal process but by including everyone on it we all can form our own valid opinions, though not legally binding opinions.

Makes me wonder what his life would be like had the cameras been barred from that courtroom. I suspect a lot more pleasant.
5.10.2007 11:32am
JB:
Sorry Charlie, indeed that was a brain misfire on my part.

My point still stands: This isn't about OJ's guilt or innocence. This isn't about race. It's about whether a restaurant can reserve the right to kick anyone out for any reason at any time, or whether it can't.
5.10.2007 11:56am
Sparky:
Justin: Completely unwarranted public defender bashing!

"I've seen some of these cases come up on appeal" -- Oh, yeah? Well, criminal appeals are my daily bread. Obviously, there are exceptionally good and bad individuals in any line of work. But if I'm ever charged with a crime, I'd rather have a randomly selected public defender than randomly selected private defense counsel any day.
5.10.2007 12:01pm
Dave N (mail):
Jack Ruby was someone else.

Not only that, but Jack Ruby was convicted of murder.

Couldn't resist the snark--and yes, I think OJ did it.

On another note, I agree with Sparky. In my professional experience as a prosecutor, public defenders are often more skilled than their private-practice counterparts.

Unfortunately, the perception is that contained in Justin's snark, that public defenders are somehow not "real lawyers" because their clients don't pay for them.

I have seen criminal defendant's "fire" their public defender and hire a private attorney with fewer legal skills than the lawyer being replaced. I just shake my head and smile because my job has become easier.
5.10.2007 12:14pm
Hank:

Makes me wonder what his life would be like had the cameras been barred from that courtroom. I suspect a lot more pleasant.

If cameras had been barred, then Judge Ito might not have let the defense get away with their shenanigans and Simpson might be in prison today.
5.10.2007 12:31pm
dll111:
I live in Cincinnati, I've been to steakhouses all across the country, and I've never had a better steak than the ones at Ruby's places. The Precinct is his best, though all his restaurants have about the same steaks.

Ruby is a consummate jock sniffer and many of his menu items are named after Cincinnati Bengals players - most of them African American. There's no way he's a racist.

I ate at The Precinct in '04, a little before the election, and we were sitting at a table in a back room that had only one other group in it. Sitting at the only other occupied table were Bill Dewitt and Mercer Reynolds (Cincinnati businessmen that own the St. Louis Cardinals and are huge republican fundraisers - Reynolds was W's ambassador to Switzerland, I believe) and none other than Karl Rove, Dick Cheney, and Rob Portman. Ruby kept coming in and backslapping and giving them expensive wine. It was pretty surreal.
5.10.2007 12:34pm
great unknown (mail):
"Menu items...named after Cincinnati Bengals players..."
The ones without arrest records, no doubt.

Sorry, couldn't resist.
5.10.2007 1:24pm
Bob_R (mail):
I'm with Martin. The thought of O.J. cutting into a rare steak...I wouldn't want to be in the room.
5.10.2007 2:29pm
BruceM (mail) (www):
Yes, in many cases where the evidence is strong that the defendant is innocent, the prosecutor will dismiss. Often times they will dismiss during trial when things are not going as they planned, their cop witnesses are being more honest than the prosecutors thought they'd be, or the defense cross-exams go very well. But often times they wont, they have nothing to lose. They're not gonna be fired if the jury returns a not guilty verdict.

I think upon an "innocent" verdict (as opposed to not guilty) the state should have to pay the defendant's attorney's fees. The state should have to have SOME penalty and SOME moral hazard against prosecuting innocent people. Like a deductible.
5.10.2007 2:38pm
Dick King:
EV got it right.


... If Ruby has been serving notorious white killers, but rejected O.J. because he's black, that's illegal. But somehow I doubt that this is what was happening.


OJ has been found to be a killer, but not found to be a murderer.

-dk
5.10.2007 2:52pm
KeithK (mail):

I am not sure how a defendant proving "innocence" might preclude a civil suit since the parties are different. In OJ's criminal case it was "The People of the State of California" whereas in the civil case it was the "The Estate of Ronald Goldman" though OJ was the defendant in both cases.


It might not as a matter of common law for the reasons you cite. But the State of California could certainly pass a statute declaring that an individual who is acquitted of a the crime of murder can not be held civilly liable for the deceased's death.
5.10.2007 3:07pm
Damian P. (mail) (www):
Your post reminds me of one of David Letterman's "Top Ten Ways to Tell Your Neighbour is a Serial Killer": "You're perfectly happy killing one person, but he insists on killing more."
5.10.2007 3:09pm
r78:
Being acquitted of a crime has nothing to do with whether or not you have some "right" to be served a steak.

When my wife used to run a restaurant, she refused to several people just because they were assholes. Her right to do so.
5.10.2007 3:37pm
Dick King:

It might not as a matter of common law for the reasons you cite. But the State of California could certainly pass a statute declaring that an individual who is acquitted of a the crime of murder can not be held civilly liable for the deceased's death.


Seems wrong, because the elements of the crime are different. Murder requires intent.

There are tens of thousands of wrongful deaths that are not murders in this country every year. Think "traffic accidents".

Very few of these get tried as murders, but surely some do. If some beserk prosecutor had tried a high-profile traffic accident [perhaps like the one that Al Sharpton managed to inflate into a riot a few years back?] and gotten slapped down by the jury, you would still want the widow of the guy who got run over to be able to recover.

-dk
5.10.2007 3:45pm
Hans Bader (mail):
O.J. WAS found to have committed murder by the civil jury that ordered him to pay millions of dollars in punitive damages.

Punitive damages in California requires proof by clear and convincing evidence (a simple preponderence of the evidence, by contrast, is required for liability and compensatory damages).

So he was found guilty in the civil case by clear and convincing evidence.

The criminal prosecution didn't meet the even higher burden of showing him guilty beyond any "reasonable doubt," but the civil jury did find him liable by clear and convincing evidence.

O.J. can't sue for discrimination, because there's no evidence of racism being behind his being kicked out of the restaurant. Federal laws such as 42 USC 1981 require a showing of intentional discrimination (i.e., racism) for a racial discrimination claim by a customer.

State law might or might not permit recovery under a lesser showing -- such as "disparate impact" -- but there isn't any racially disparate impact here, because (a) you can't based a disparate impact claim on a single decision (see, e.g., Coe v. Yellow Freight (1981)), and (b) this restaurant is known to serve plenty of black people, and the kicking out of O.J. Simpson was a rare event based on his notoriety as a murder who escaped justice, not part of a policy of excluding all people with arrest records (which might or might not have a sufficient disparate impact, depending on local demographics).
5.10.2007 4:01pm
lpdbw:
BruceM:

On Jury unanaminity: I was the lone holdout in a civil trial, where we deliberated longer than any other jury in the judge's recollection. I finally caved, and awarded damages to the plaintiff, even though I think it was wrong. I just needed to go home.

Since you want criminal trials with 11 convict vs. 1 acquit, do you want civil trials the same way? 1 holdout enough to find in favor of the defendant?

Just askin'.
5.10.2007 6:27pm
A.S.:
What we need is a federal law prohibiting this heinous discrimination against killers. We have a law prohibiting discrimination on the basis of race, national origin, religion, sex, etc. There is legislation in COngress now that would expand those protected categories to include sexual preference. Likewise, we should also include as a protected category killers. Dotcha think?
5.10.2007 6:51pm
BruceM (mail) (www):
lpdbw: I don't want nonunanimous convictions. I want nonunanimous acquittals. In your case, if it were a criminal case, your holdout would have meant the state did not meet its burden (because it didnt convince you beyond a reasonable doubt) and thus the defendant is entitled to a verdict of not guilty. I'm certainly not saying a conviction should be allowed from a split jury. No way.
5.10.2007 7:35pm
Dodd (mail) (www):
I go to Jeff Ruby's fairly often (the bartender's a friend and treats me like a rock star) and I can state without reservation that the patrons welcomed there come in all shapes, sizes, and colours. The fact that he kicked OJ out just makes me a more loyal customer.
5.10.2007 7:40pm
dwf:
"Cincinnati Restaurateur Doesn't Serve Notorious Killers"

"I'll have the notorious killer, rare, with a side of sauteed mushrooms, please."

"Sorry, sir, we don't serve those here."
5.10.2007 10:02pm
whit:
"Why not do away with criminal jury trials altogether if a defendant can still be convicted in another court? Strikes me as de facto double jeopardy. "

jeapardy basically means you risk jail/prison. if you can't get incarcerated, it's not "jeapardy".

if you want to talk about double jeapardy, look at how the LAPD cops were treated in the rodney king incident. found not guilty in state court of criminal charges.

then, prosecuted for essentially the exact same thing in federal court. but that's NOT double jeapardy!!

riiiight
5.11.2007 12:09am
Amy (mail):
Surprised no one has brought up the book. Ruby refused to serve him b/c of his attempted marketing of "If I Did It, Here's How it Happened." If he wasn't already, the book put him beyond the pale.

Courier Journal article
5.11.2007 4:52pm
Jeremy T:
BruceM,

Your suggestion that an "innocent" verdict would have a future preclusive effect in civil litigation is a bit absurd. A civil party would not be bound by the findings of a proceeding in which he or she was not a party and could not have been a party.
5.12.2007 4:47pm
Jeremy T:
And I should add, wrongful death is not entirely coexistent with unlawful killing. So your suggestion is just plain faulty. Sorry.
5.12.2007 4:48pm