Despite witnesses, prosecutors might face tough task in Simpson kidnapping case

Despite expected guilty pleas today from two men planning to testify against him, O.J. Simpson has little chance of being put away for life on kidnapping charges.

A Review-Journal analysis of Clark County cases from 2006 shows only two of 57 defendants similarly charged with robbery, extortion, or carjacking and first-degree kidnapping have gotten life sentences.

In fact, kidnapping charges were dismissed more than two-thirds of the time, and more than half of the defendants in those cases eventually got probation or no punishment at all.

Simpson and three co-defendants face multiple counts of first-degree kidnapping, armed robbery and assault.

Charles Howard Cashmore and Walter Alexander, who were charged along with Simpson, are set to plead guilty to low-level felonies this morning in Clark County District Court. Both are seeking probation and intend to help prosecutors build a case against Simpson and the remaining defendants.

Lost in the frenzy of Simpson’s arrest are questions about the legitimacy of charging the defendants with first-degree kidnapping, a crime that carries a possible sentence of life in prison, with possibility of parole.

The Lindbergh baby case it’s not.

According to police, Simpson and his co-defendants, two of them with handguns, barged into a room at Palace Station and swiped sports memorabilia, some of which Simpson has claimed are rightfully his.

On an apparent audiotape of the incident, Simpson is heard saying, "Don’t let nobody out of this room."

To justify the first-degree kidnapping charge, District Attorney David Roger, who is prosecuting the case, used language in state law about holding or detaining victims against their will even for a brief period.

He opted against charging Simpson and the others with lower-level crimes such as second-degree kidnapping or false imprisonment.

Gabriel Grasso, Simpson’s local attorney, said he plans to file a motion to have the kidnapping charges dismissed.

"We’re going to put the kidnapping charges to a serious test," Grasso said.

No plea negotiations on behalf of Simpson have taken place, he added.

Stephanos Bibas, a professor at the University of Pennsylvania Law School who has written about the plea bargaining process, said Roger is using a common strategy to gain leverage in possible negotiations.

"A prosecutor throws in everything the law entitles him to, and then gives everyone a discount. . . . If you throw enough mud, some of it will stick," he said.

The Simpson case will advance to District Court if Justice of the Peace Joe Bonaventure finds probable cause for any of the charges at a preliminary hearing on Nov. 8 and 9.

Local defense attorney Richard Wright, who is not involved in the case, said Simpson appears to be the subject of overzealous prosecution.

"They simply loaded it up," Wright said. "This is not what the layman views as kidnapping."

Roger makes no apologies, however, for how he charges cases.

"We allege all charges we think we can prove beyond a reasonable doubt," he said in an interview earlier this year about his office’s general policy for charging cases. "I know some people suggest there’s vindictive prosecution, but if we’re operating within the perimeters of the law, I don’t think our prosecutors are being vindictive."

The newspaper’s analysis of recent cases shows Roger’s office routinely pursues kidnapping charges in robbery cases, but rarely gains convictions on them.

Most of the cases examined by the Review-Journal involved one or two defendants who played key roles in the alleged crimes.

In the 53 cases from last year that have been resolved, only one saw a defendant convicted of kidnapping at trial. Defendants pleaded guilty to the charge just three times. In 28 cases, the accused got probation or less.

The two who got life sentences were a carjacker who pleaded guilty to kidnapping and a repeat felon who was convicted at trial on other charges.

Many of the kidnapping cases from last year were assigned to public defenders or court-appointed attorneys, who are paid $100 per hour for the cases because of the possible life sentence they carry.

Formal challenges of the district attorney office’s use of the kidnapping statute have been rare because so few of the cases have gone to trial.

The occasional test, however, has shown Roger’s office might be too broadly applying the law.

The Supreme Court this year overturned a jury’s guilty verdict on kidnapping against Juan Garcia, a Las Vegas man who robbed an auto shop in 2003.

During the robbery, Garcia restrained two victims with duct tape, but the Supreme Court ruled that was not enough to sustain a kidnapping conviction.

The Garcia ruling followed an earlier state high court decision that sought to better define kidnapping.

To support a kidnapping conviction, the court ruled in Mendoza v. Nevada that movement or restraint of victims during a robbery "must substantially increase the risk of danger to the victim over and above that necessarily present" in a robbery.

The ruling was accompanied by a new jury instruction for those crimes.

Most of the kidnapping cases from last year didn’t explore the legal basis for the charges.

Samaja Funderburk’s case did.

Funderburk was charged in May 2006 with dozens of kidnapping counts stemming from a string of convenience store robberies.

Deputy District Attorney Linda Lewis argued in a written court filing that kidnapping could be charged because potential harm to the victims was increased when the defendant herded them into walk-in refrigerators or break rooms.

Funderburk’s attorney, John Parris, cited the Mendoza ruling and argued those acts were incidental to the robberies

Two months later at the opening of Funderburk’s trial, Lewis asked that the kidnapping charges be dropped.

"We have determined it would be a waste of the court’s time and resources, and ultimately if there should be a conviction, a waste of the Supreme Court’s time in reviewing the issues pertaining to the kidnapping charges," Lewis told a judge.

Lewis declined to elaborate on her decision.

Funderburk was convicted on robbery charges and is serving up to 22 years in prison.

Robert Dennis Rentzer, Alexander’s attorney, said it often is best for a client to plead guilty to a low-level felony rather than risk being convicted of a more severe crime.

"It might be in a client’s interest to enter a plea to the least significant offense … even if the person feels they were not guilty and would probably be acquitted at trial," Rentzer said.

Edward Miley, Cashmore’s attorney, said the possible penalty for a kidnapping conviction "weighed heavily" on his client during plea negotiations.

Though kidnapping charges are common, the Simpson case is about as atypical as they come because of the defendant’s past and resources.

Legal expert Bibas said the case highlights differences between high- and low-profile cases. It could play out differently because neither side has the same pressure to quickly "plead the case away," he said.

"Simpson can hire good attorneys, so there’s more likelihood it will go to trial," he said. "O.J. is not about to do prison time. … Most people don’t have a dream team, so O.J. justice is not typical justice."

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