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Hard To Prove Criminal Intent: Legal Cliche' or Reality?

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Criminal Intent
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Don't tell O.J. Simpson that criminal intent is hard to prove. I'm not talking about his murder case where his three-Michelin star defense team got him off the hook for slicing up his ex-wife and her lover. I'm talking about the case where he and several of his armed body guards barged into a Las Vegas hotel room to recover his personal trophies and sports memorabilia that he claimed were stolen from him.

Regarding his state of mind at the time, Simpson did not think he was doing anything wrong. In fact, he believed he was within his legal rights to retrieve merchandise that was stolen from him. To buttress his lack of criminal intent, he quoted his Florida attorney, Yale Galanter, who told him, "You have a right to get your stuff."

And in an interview with the L.A. Times after his arrest, Simpson maintained his innocence, saying, "I'm O. J. Simpson. How am I going to think that I'm going to rob somebody and get away with it?... You've got to understand, this ain't somebody going to steal somebody's drugs or something like that. This is somebody going to get his private [belongings] back. That's it. That's not robbery."

Ironically, this time O.J. wasn't lying, at least not to himself. Nevertheless, his veracity and lack of criminal intent didn't impress the jury; they found him guilty of armed robbery and assault, and O.J. got nine years in prison, a stark contrast to his earlier murder trial.

Which begs the question: Is the case against Donald Trump that much more difficult to prove? Over the last few weeks, there seems to be a schism between the top attorneys in the country. Laurence Tribe, for example, a prominent Harvard constitutional law professor, believes unequivocally Trump should be indicted and is "guilty of various forms of criminal conspiracy."

But Renato Mariotti, a legal affairs columnist for Politico Magazine, believes it would be a difficult task to find Trump guilty, writing: "A federal judge recently found that it was 'more likely than not' that Trump had corrupt intent, relying on the fact that Pence and others told Trump that Eastman's plan to set aside valid slates of electors and send the process back to the states was illegal. But in the context of a federal jury trial, Trump would only need to convince one juror that there was reasonable doubt."

I've also heard some craven attorneys and pundits say that it would not set a good precedent to criminally charge a former president or that there could be turmoil or violence if Trump is tried or found guilty. Therefore, we should just let him go.

The truth is, whether the case against Trump is a difficult one to prosecute or win, or whether it causes civil unrest, or whether it is impossible to find 12 impartial jurors to sit in judgment of him, is irrelevant. It must be done! If nothing else, karma demands it!

For example, in the O.J. Simpson murder case, the evidence was overwhelming that he was guilty but he got off because he had a better team of lawyers than the prosecution. But in the Simpson sports memorabilia case, he was found guilty because he was broke at the time and had an inferior lawyer. I would also argue that the jury had it in for him, as payback for his first criminal trial. And the fact that his state of mind lacked criminal intent had no bearing on their verdict.

If, for example, O.J. had never killed his wife and her lover, do you think the jury would have been so harsh on him during the second criminal trial? "By golly," I could hear a jury member say to the press, "if someone stole my precious trophies and sports memorabilia I'd want them back, too. Besides, O.J. didn't really have any criminal intent when he entered the motel room and no one actually got hurt."

Not that I'm basing our jurisprudence system on karma, mind you, but jurors are human, all too human, and they will react to information and images that stir their emotions. And what could stir their emotions more than one man's malicious, narcissistic attempt to lead a violent takeover of the U.S. government?

So far most Trump followers haven't read or listened to anything other than right-wing propaganda and Fox News lies about Jan. 6; nor have they watched the congressional hearings. So obviously they would not be the kind of jurors a prosecutor would choose for trial. Unfortunately, the prosecutor may not have many good choices available since a sizeable percentage of Americans still support Trump and would be happy to be in the jury pool.

But even a Trumper clever enough to wise-guy his way through the voir dire process and make it to the jury might have an epiphany about his dear leader when he sees the cold hard facts of the case laid out objectively and graphically before him in a court of law for the very first time. It might even cause him to have a religious experience!

And if that's the case, he won't give a rat's ass about the legalese of criminal intent. He'll vote guilty, the same way the jury did in O.J. Simpson's second criminal trial. Perhaps it's wishful thinking to believe that a Trump acolyte will turn on his master after hearing the unvarnished truth, or that Trump's lifetime of bad karma and screwing people over will finally catch up with him.

But remember this: Like Trump, O.J. Simpson was also a narcissist who felt indestructible. After all, he had literally gotten away with murder! But in the end, his luck ran out and he went to jail. Let's hope that Trump suffers the same fate. Somehow, though, I don't think the pudgy, fair-haired ex-president who grew up with a silver spoon in his mouth will do as well in prison as the former NFL star who fought his way out of the ghetto.

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John F. Miglio is a freelance writer and the author of Sunshine Assassins, a dystopian political thriller. His articles have been published in a variety of periodicals, including Los Angeles Magazine and LA Weekly. His most recent articles (more...)

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