The OJ Simpson trial: How the Juice Got Loose

Thanks to the new mini series and 30 for 30; there's alot of renewed interest in the OJ trial. I've been asked about it alot. Did he do it? How can his lawyers live with themselves? How did he win? How did the prosecution lose? I haven't watched any of the recent OJ material, so if any of it is duplicate information, my apologies.

As Denzel Washington's character (Alonzo Harris) said in Training Day: "Its not what you know. Its what you can prove". This is true in all cases, but especially so in the OJ trial. Very very few people think OJ was actually innocent. But that isn't the standard. A criminal defendant MUST be presumed innocent, and proven guilty beyond a reasonable doubt. The jury panel, in all their interviews said just that - the prosecution didn't meet their burden. 

Without a doubt, this is a case the prosecution should've won. There was the history of domestic violence, DNA evidence at the scene, motive, opportunity, etc. But the police and the prosecution fell to a common error - trying to turn a good case into an air tight case. They paid for it with a loss, and their careers.

The direct evidence they had (OJ's blood at the scene, etc) was torn apart by the defense team, because the police did a terrible job handling the evidence. Mark Fuhrman was a known racist, and should've never been the lead detective on the case; or any case for that matter. There were allegations of evidence being planted. When asked about it on the stand, Fuhrman plead the fifth. Someone pleads the fifth when their answers to a question could result in them incriminating themselves. Even though noone can say definitely - the only possible outcome one can deduce given the response was that Fuhrman had planted evidence.

Also the prosecution drug their part of the trial out far too long. The more they presented, the more holes the defense team tore in the case. As a wise judge once told me while I was arguing a motion early in my career, "Mr. Ashley, if you'll just be quiet, I'll go ahead and rule for you".

Its always best to prove your case as efficiently as possible. Anything else is a waste, and opens up weaknesses that aren't there otherwise. In fact, many of the openings they gave the defense team was by putting on iffy testimony that wasn't even necessary. It seemed like the prosecution's ego demanded they try to out wrangle the dream team rather than putting on their best case.

We all remember the moment where Darden requested OJ put on the glove; which was a spectacular failure. Like I said above, this was totally unnecessary. The glove itself was plenty good enough. Plus its a good teaching point for all lawyers - never swing for the fences unless you KNOW its going to work. No way this should've been attempted, because there was no way Darden could've known if the glove would fit or not. It didn't, and it became the basis for the theme in Cochran's masterful closing - "If it [the glove] doesn't fit, you must acquit",

Nothing wrong with having a good case. But bad things happen when you try to take a good case, and stretch it into a great case. This was a perfect example.

Speaking about the dream team, here are some of the important players:

• Robert Kardashian: Yes, believe it or not, there was a time when Kardashian wasn't a household name. Now hes famous for being Kim's dad, the man was also on the dream team, but wasn't really much of a cog in the defense wheel. Kardashian was a long time friend of OJ, and was used more of a liason/handler than an attorney. In fact, when he became part of the dream team, Kardashian hadnt practiced law in 20 years, and had NEVER tried a criminal case. 

• Robert Shapiro: Known more for his negotiating than his trial expertise, Shapiro already had a reputation for negotiating star athletes out of legal trouble. Shapiro was also a master at dealing with the media, and was held in high regard by Judge Lance Ito. Although Shapiro was initially lead counsel, he eventually fell out of favor with the rest of the dream team; likely due to the fact he wasn't a prominent or skilled trial lawyer. 

• Barry Scheck: Much more low key than most of the dream team. However, some thing Scheck was the most important member defending Simpson. Known for having a masterful grip on the law and procedure. This was especially important in those days, before the internet made legal research much more efficient. Even more important, Scheck was an expert in challenging DNA evidence. This was crucial, because Scheck devastated the prosecution's witnesses when it came to the handling of the all important DNA evidence collected at the crime scene. His cross examination was 1 of the 3 important keys to the defense victory. Scheck started the innocence project, which uses DNA evidence to free wrongfully convicted death row inmates.

• F. Lee Bailey: Clearly in the twilight of his career at the time. Yet Bailey was widely regarded as the best criminal trial lawyer who ever lived. A true legend in the art of cross examination. His powerful cross examination of Mark Fuhrman was the 2nd of 3 keys to the acquittal. F. Lee Bailey was subsequently disbarred and no longer practices law. 

• Johnnie Cochran: The charismatic Cochran rose to fame during the trial probably more so than any other of the dream team. Cochran eventually overtook the role of lead attorney from Shapiro, much to the disdain of Shapiro. Cochran delivered the masterful closing, which included "if it doesn't fit, you must acquit"; the 3rd of what I believe were the keys to the defense victory. He died in March of 2005.

How can a lawyer live with winning a case when the client is guilty? Personally, I never ever ask the client if they're guilty. May sound crazy, but whether they did it or not really doesn't matter. It just matters what the government can prove. If I ask that question, then it may make it harder to practice my case objectively; and being able to objectively evaluate my case at all times is extremely important. 

I've won many trials I thought I should've lost. Not because I thought my clients were guilty. In fact, I wont try a case if I think my client is guilty as charged. But because the resources of the state/federal government are vast, and they are excellent at prosecuting a case. Trust me, you do NOT want to be in their cross hairs; especially without an excellent lawyer by your side. 

After the OJ case, both Kardashian and Shapiro expressed their doubts about OJ's innocence. F. Lee Bailey maintains OJ is innocent. To my knowledge, neither Cochran nor Scheck have commented on the topic. 

In the end, you cant buy freedom. However by hiring the best lawyer(s) possible, you can definitely increase your odds at winning; which is the next best thing. The defendant is presumed innocent, and only guilty if proven beyond a reasonable doubt. Remember, "Its not what you know. Its what you can prove".

Pets and Estate Planning (The basics)

When I die, what will happen with your pets? Who gets them? Will they be cared for?  If I die before I wake, who will feed "Jake"? Huge, legit concerns. And one of them made for a pretty fine country song back in 1991. I'm not telling you which.

In Kentucky, and most states - when someone dies (decedent), a court procedure must be initiated to ensure their belongings are disposed of properly. This is probate. In Kentucky, the rules for disposing property differs depending on if the decedent had a will (testate), or not (intestate); and if the property is real estate (real property/realty) or personal (chattel).

As with many areas of the law, probate uses terminology that sounds like something right out of Game of Thrones. This is mainly because most of the terms came over from England; and have somehow stuck around. I'm not even joking.

In the eyes of the law, pets are considered personal property.

If the decedent died intestate, there are statutes that clearly and strictly govern how property is to be disposed. This is called "intestate succession", and trust me - you don't want to read about it because its incredibly boring. But....the important part is you have absolutely no control over who gets your pets. None. The law is clear, its followed to a tee, and no one will have any ability to deviate from it. Not what you want.

If the decedent had a will, courts GENERALLY follow it; with some exceptions that I wont go into for fear of putting you to sleep. Your will, gives you the tools you need to care for your pets after you die. You can name who you want to care for your pet, leave money for that person to care for your pet, etc.

My favorite pet friendly estate planning vehicle? Trusts; testamentary trusts (OK Im allowed one lame Bond/estate planning joke per piece). A trust is a legal entity created by law, where one person (Grantor) places property (corpus) in the possession of another (Trustee), for the benefit of someone/something (beneficiary). A testamentary trust is a trust created by a will.

Why do I like it better? Wills go through probate, probate goes through court, and a probate case must be eventually closed. Also, if you will money to someone to care for your pet; there's no legal requirement they use the money properly. They could go buy a new car, new clothes, etc.

A trust on the other hand, doesn't require judicial oversight; and it's perpetual until the money runs out or the purpose for the trust ends. Plus the trustee has a fiduciary duty to use the money as directed in the trust, pursuant to the restrictions/guidelines in the trust document and state law. Finally it lets the will go through probate, and the probate be closed while the trust continues on.

I prefer trusts, but they too have their own limitations. Each state and each case is different; so definitely consult with an attorney to discuss which choice would be best for you and your pet.

The UL Sex Scandal: On the Verge of a Break

A few days ago, Katina Powell and her daughters made the media rounds, and provided loads of documentation and evidence backing up their version of events. This information was also independently verified by Outside the Lines through an independent investigation.

That day, and the days that followed, were a PR nightmare for UL. Nearly every talking head in the industry called for Pitino's resignation. The remainder, acknowledged the severity of the scandal and predicted he wouldn't survive professionally.

Then came news Pitino was not going to the ACC media days, instead students would be sent like lambs to the slaughter. More PR nightmares ensued. That is, until yesterday.

Starting yesterday, it all changed. Local sports personalities suddenly changed their tune, all at the same time. This is no coincidence. But what does it tell us?

It tells me that UL thinks they have a plausible theory they're about to release; and I expect Forde to be the one who breaks it. Remember my predictions when the story first broke? I predicted McGee would fall on the sword, and UL let Forde break the initial story because that would make him more credible later on in case UL needed to float a questionable story. 

McGee resigned his position last week, which means he is no longer under the control of UMKC. This was step 1 to having him fall on the sword. I THINK the local sports writers are just batting lead off; and they're about to let Forde come in for the clean up with some theory about inappropriate relationships with Powell and McGee; and hope it gets traction. Or that McGee paid for prostiutes for the guardians without the recruits present. Those are the only angle that makes sense, given the new direction taken by the local personalities. Especially so since at least one story attacked the "in other places" portion of Powell's story.

So in the coming days, keep an eye on Forde; because he'll be the one who breaks it.

The UL Sex Scandal. What to know. What to expect.

I rarely write about sports. The rare exception is when my experience as an attorney and crisis manager may give useful insight to the casual observer. This is one of those times.

In case you missed it, news broke late Friday evening that a book was about to be released by a Louisville Madam who claims she was paid for her and her friends to perform sexual acts for current and prospective UL basketball players. Allegations included the pay for sex with prospective players was to entice them to sign with UL.

Explosive is an understatement. But lets break down exactly what we know, what it means, and what to expect.

1) Pat Forde broke the story late Friday evening. Anyone in PR/crisis management knows Friday evening is the time to dump bad PR news. That way there's an entire weekend news cycle before Monday hits. Typically, weekend news ratings are very low. Plus there's always the good chance another big news story will break over the weekend, which gives people something else to talk about on Monday. For example, this weekend will be Hurricane Joaquin.

The other important part, is letting Forde break the story. Forde is a long time friend of the UL program and Pitino. Forde even co-authored at least 2 books together. So he's hardly an unbiased reporter. By letting Forde break the story, he becomes the "authority" to the casual observer. This means he can be used to later filter in the UL side of things later, without the casual observer knowing any better. Its already happening, with Forde saying Pitino had no knowledge. Maybe Pitino did. Maybe he didn't. But don't believe it just because Forde says so.

2) The press conference was a disaster. Jurich and UL knew about the allegations since August. They almost surely fed Forde the information, and coordinated with him about its release (remember it was Friday evening). So its not as if this was totally unexpected. Yet it went terribly, which speaks volumes. This likely means they think the allegations are true, or mostly true.

There was also an important interchange between Pitino and a reporter. During the exchange, a reporter tried suggesting that Pitino was saying the allegations weren't true. Pitino quickly and sternly corrected him, and explained that he was not saying they weren't true. This likely means Pitino was mindful of avoiding any language which may result in a defamation suit. This leads us to the next point.

3) There was likely negotiations to keep this information private. Blackmail/extortion is illegal. However, its legal to offer the sole and exclusive right to publish the book to anyone who's willing to pay the asking price; including Pitino, Jurich, or any of the players. Of course that means the book would never be published, but that's the point. Why do I think this?

Players were contacted months ago about this book. Pitino and Jurich knew about it since August, and there's even been an investigation. Yet there's been no leak and the Friday press conference looked a little surprised, given all things. Why wouldn't the story break before now? The publisher certainly would not choose to release this book Friday night. There's really no other explanation except negotiations had been ongoing, but suddenly fell apart; so Jurich and company went preemptive.

4) Jurich and UL are incredible at protecting information. Players knew for months. Jurich and Pitino knew since August. Compliance knew. Private investigators knew. Thats alot of people to know about such explosive allegations. Pretty incredible noone leaked it.

5) McGee almost certainly did not act alone. Im not saying Pitino knew about it. But someone almost certainly funded this operation. We may never know, unless this case ends up in the legal system; which is a definite possibility. But there's almost certainly a bank trail, since the book mentions McGee getting money from ATM's.

6) What to expect. There are several factors to consider. Pitino is a legend, with his legacy at risk. McGee is on the move up, but is a true company man. The 2013 national title is in jeopardy. Jurich will be untouchable, short of the money being traced back to him. As of now, UL thinks the allegations are true.

I would have McGee take the fall, claim Pitino had no knowledge, admit to major infractions; but only following the 2013 season. McGee is on the way up, but is still expendable in this scenario. This somewhat saves Pitino's legacy, which will be tarnished regardless. It would save the 2013 banner. Jurich is safe regardless. Based on what we know right now, its what Id do. I think its what they'll do too.

Critters and the Court System

In certain areas, the law greatly lags behind society. This is true in technology, social media, and pets in divorce actions. In a typical divorce case, the two main disputes concern custody and property distribution. Currently, under the law there are two types of property: real and personal. Real property includes all real estate, and attachments. Personal property covers everything else; including pets.

In cases with children, usually the pets go with the children. In other cases, it isn't so easy.

In most states, personal property and debt must be distributed equitably. I'm often asked: "whats an equitable property division?" Its different in every case; but it often isn't equal. Not much of an answer, I know. This is especially difficult with pets. After all, how can you enjoy 1/2 of a pet? Or split up pets? Neither are good ideas.

Even worse, the method for distributing personal property is based on its fair market value. Fair market value is usually the price a willing buyer would pay to a willing seller for the property; in this case the pet. This is particularly devastating to pet owners, because the fair market value of a pet doesn't begin to reflect the actual value to the owner. Yet under the current state of the law; courts cant take that into consideration.

Of course there are whispers of cases where Judges have deviated and applied the "best interest" standard to pets, which is normally reserved for children. "Best interest" standard, means the court looks at whats best for the children, rather than the interests of the parties. But applying that standard to pets is extraordinarily rare, even in the more progressive local jurisdictions.

A growing number of states (30, according to www.animallaw.info)  give pets particular protection in domestic violence cases. Neither Kentucky nor Indiana do, as of the date of this article.

What if you aren't married? Then you get to file a personal property lawsuit, which most jurisdictions call "trespass to chattel". If you doubted me when I wrote this area of law is seriously lagging, using words like "chattel" should remove all doubt.

How to navigate this minefield? The law may change, which could govern pets much like children. But that's far from certain. At best custody of pets is an area of the law in flux and underdeveloped in many jurisdictions; and non existent in others. This is particularly difficult, because it doesn't give an attorney much indication on how a court is likely to rule. Which segues into my next point.

In litigation, although an attorney may have an idea; noone cannot control or accurately predict what a court will do. Otherwise, there would never be litigation. So the outcome is always unknown; and dealing with the unknown is always tricky. This is especially true when dealing with something as valuable as pets. The best way to control the outcome, especially regarding pets, is through an agreement via settlement.

There are four different types of agreements: Cohabitation, Prenuptial/antenuptial, Post nuptial, and property settlement agreements. Cohabitation agreements would be appropriate when the parties wish to live together, without considering marriage at that time. Prenuptial is before marriage, in consideration of marriage. Post nuptial is post marriage, but pre-divorce. Property settlement agreements are after marriage and with a divorce pending; in which the agreement resolves the property issues in the case.

Agreements avoid the unpredictable outcomes associated with litigation; reduce litigation costs; and help provide a set schedule for when/where each party can enjoy time with their pets. Finally they can also help parties appropriate veterinarian costs; which is often litigated more frequently than actual pet custody/visitation. Any pet owner knows, vet bills can be very, very expensive.

Which agreement fits your situation? Well, it depends. Typically, its best to reach an agreement early as possible. I know, I know - nothing says romance like a good prenup or cohabitation discussion. Am I right? Even so, an agreement while both parties are still amicable, are the easiest and least expensive. There's more agreeing, and less fighting. Plus it gives you both a degree of comfort and stability on the issue moving forward. Those are always good things.

Attempting to negotiate agreements after litigation ensues means litigation costs were already incurred, and a vindictive spouse can attempt to leverage the pet issue for purposes of negotiating a favorable settlement on other issues.

So get the pet issue resolved as early on as possible. Agree on something while you're both still happy; and reduce it to writing. Its a cheaper more predictable outcome in every situation.

The Confederate Flag Conundrum

Recently a young man who'd previously posed with a confederate flag carried out a vicious shooting attack on African American members of a Charleston area church. As a result, many politicians, companies, and citizens decided to ban the confederate flag; citing the flag as a divisive symbol of racism.

I carry no love for the notion of the confederacy, or its flag. In fact, I was surprised to learn it is/was flown at many state capitals/monuments across the south. I'm also vigorously opposed to the notion of discrimination or racism, on any level. Hate is a terrible thing. However, the flag controversy is a very slippery slope. 

1) The first amendment makes it unconstitutional for any state actor to ban or inhibit speech based solely on its content. Hate speech is even protected, for the most part. While the first amendment clearly doesn't apply, due to the outcry being from individuals, I think the values of free speech should still apply. 

Its dangerous social precedent to ban speech/symbol, based solely on content. Maybe this time, you're on the popular side of the issue. But what happens when you're not? What happens when society wants to silence you, based on what you're saying? Because this starts a slippery slope. Whats next to be banned because people don't approve? Our society thrives on the concept of free flowing ideas. Not only the ones we agree with. 

2) History is history. The good, the bad, and the ugly. The flag was a symbol of seceding states (which, frankly, I'm surprised doesn't offend people) and used by racists only in the past few decades. Even though its often seen as a symbol of hate, its still history.

Our nation's history definitely has its warts. From the awful acts of slavery, to the trail of tears, to the internment of Japanese-Americans during WWII. We cant afford to forget history just because its bad. In fact, one might argue this type of history is MOST important. 

George Santayana correctly stated the famous line: "Those who do not remember the past are condemned to repeat it." Yes its awful. Yes people get emotional, upset, angry, etc; and I understand why. But by learning about the ugly parts of history, we can be better situated to not repeat these mistakes. This is even more true for the monuments, and historic sites; which politicians are now clamoring to ban.

If you're fighting for this flag because it represents your racist view fueled by hate, then you're the problem. Even so, I think its a dangerous precedent and a very slippery slope when we begin censoring people and editing history; just because we don't like what they say.

Social Media: A Blessing and a Curse

Recently I read an article discussing the difficulties of maintaining a marriage. A key issue discussed was the impact of social media on relationships. It struck me as being extremely accurate. But it also made me look beyond relationships, and consider the impact of social media on our lives in general.

Social media is both a wonderful benefit, and an incredible burden. Its removed the humanity, from being human. We can digitally connect with anyone in the world, yet we've stopped personally connecting altogether. Wonder how your old friend from high school is doing? In the past you'd call them up, have lunch, etc. Now, just check Facebook.

We're always accessible anywhere, anytime; especially if you're a small business owner. I LOVE the fact my clients/prospective clients can contact me anywhere, anytime using Facebook. My clients will agree. I'm always accessible through social media, and its often times the most efficient way to communicate. My clients' phone numbers may change, but their Facebook stays the same. However some people really struggle with having to "always be on". While I appreciate the business aspect of it, I somewhat struggle with it in my personal life.

It destroys our self esteem. I've seen a quote floating around that says "don't compare your 'behind the scenes' with other people's 'highlight reel'". Incredible observation. We're all guilty of it; both ways.

If someone looks at my Facebook/Instagram; it probably gives the appearance of a world traveler. While I've certainly traveled, this couldn't be further from the truth. I post pictures of nice meals at nice restaurants; but I leave out pictures of times I've eaten from the dollar menu at McDonald's, or eaten a turkey sandwich at home because I'm short on money. We're all guilty.

The other side of that coin is we're all guilty of comparing everyone's social media highlights to our real lives. We look at pictures others' cars, travels, homes, etc. and think: "boy, I wish I was that financially successful".

We look at marriages/relationships and think: "I wish my marriage/relationship was that perfect". I call that the "Wheel of Fortune relationship". When Pat Sajak asks the contestants about their life, they always say "I have a wonderful wife/husband". We know that's not always true. 

In reality, we're all basically in the same boat. We all have our ups and downs. We all struggle. We've all held our breath, and hoped our debit card wouldn't be rejected at the grocery store.

We've all had rocky times in relationships. But no one posts THOSE pictures or statuses. I'm still waiting on the first contestant to say, "I have a husband; and he's gained alot of weight. But he's still OK; I guess." Or "I have a husband, but he won't work or help me with the kids. He sucks."

We all know these things to be true. So why let it effect us in such a way?

My goal for the past few months has been less social media interaction and more personal interaction. Lets put down our phones, log off Facebook, Twitter, etc; and start paying attention to the person across from us, to the people in the room with us, and to the experience we're having. We don't really need a Snapstory of your entire night out; and neither do you. You don't have to Periscope/Meerkat everything. Just enjoy the moment. The memory is far more valuable than the amount of likes it brings on Instagram.

I've been trying, and truthfully, its not been easy. Anyone who knows me, knows I love Twitter as much as any material possession. So its a work in progress. Still, I'm working to return to the days where human interaction was a major part of being human. Where social media was a great tool, rather than a giant crutch. Where we don't feel the need to portray ourselves as better than we are. Where we aren't always "on". Where we can enjoy an event or experience without making the entire night a Snapstory. Where life isn't reduced to the number of "likes".