Simpson and Capone, the Odd Couple

Jim Cohen in The New York Times, December 05, 2008

Simpson and Capone, the Odd Couple
By Liz Robbins

It was hard not to think of Al Capone.

O.J. Simpson was sentenced on Friday to serve at least nine years in prison for a crime less serious than the one to which he is indelibly linked: the slaying of his former wife, Nicole Brown Simpson, and her friend, Ronald L. Goldman. Mr. Simpson was tried and acquitted of murder in 1995, but found liable for their deaths in a civil suit two years later.

Capone, perhaps the premier bootlegger of his day, was sentenced in 1931 to 11 years in prison — not for being a murdering mobster or a bootlegger, but for tax evasion.

As it happens, today is the 75th anniversary of the repeal of Prohibition, so perhaps it is fitting to remember Capone, and the significance of his sentencing.

Both Capone’s tax trial and Mr. Simpson’s trial yielded convictions, which had eluded prosecutors in their earlier murder cases. But they arrived there by different routes.

In 1931, prosecutors were unable to convict Capone for his most notorious activities as a gangster, so they launched a three-year investigation into his reported income and eventually got a federal jury to convicthim of tax fraud.

“At the time it was pretty novel,” James Cohen, an associate law professor at Fordham University, said in a telephone interview on Friday. “Prosecutors would only go after you based on the crime they were interested in — they really could care less about the tax case. When they did that it was eye-opening. That was the first public example for the prosecutor focusing on related crimes, in lieu of the more serious crimes.”

“It was,” Mr. Cohen added, “a clever end-run.”

By contrast, the 12 charges in the second Simpson trial had nothing to do with the first, and there was nothing clever about Mr. Simpson, an N.F.L. Hall of Fame running back, charging into a Las Vegas hotel room with five accomplices (at least two of whom were carrying guns) in search of his own memorabilia in 2007.

“It was much more than stupidity,” a Clark County district court judge, Jackie Glass, said Friday in her Las Vegas courtroom before sentencing Mr. Simpson to a minimum of 9 years and a maximum of 33 years in prison.

She dismissed Mr. Simpson’s surprisingly emotional plea for leniency in which he repeatedly said he was sorry. Wearing a blue prison uniform and tethered by handcuffs, Mr. Simpson blinked somberly. Judge Glass insisted she was not influenced by Mr. Simpson’s infamous 1995 acquittal.

“There are many people who disagreed with that verdict, but that’s not what matters to me,” Judge Glass said before sentencing Mr. Simpson. “I’m not here to try and cause any retribution or any payback for anything else.”

Daniel Richman, a law professor at Columbia University, cautioned against looking at the cases of Capone and Mr. Simpson through the same prism.

“I think it’s the difference between irony and prosecutorial strategy,” Mr. Richman said.

He wrote a 2005 paper for the Columbia Law Review with a Harvard law professor, William J. Stuntz, entitled, “Al Capone’s Revenge: An Essay on the Political Economy of Pretextual Prosecution.”

“The so-called Al Capone strategy is one which prosecutors use either because of proof difficulties or so as not to tip their hand,” Mr. Richman said. “They bring a case that is easier to prove.”

In the Simpson case, which had kidnapping as its most serious charge, he said, “they didn’t even seriously try the greater one.”