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Allan Favish is a Los Angeles-based attorney whose focus is on General Insurance Defense and Litigation Insurance Coverage/Reinsurance & Bad Faith Litigation.  A UCLA graduate, he received his J.D. at Hastings College of Law in 1981.

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Who Spoke for the Children?

On December 20, 1996, Orange County Superior Court Judge Nancy Weiben Stock awarded custody of Justin Simpson, age 8 and Sydney Simpson, age 11, to their father, Orenthal J. Simpson, thereby terminating the guardianship of the childrens' grandparents, Lou and Juditha Brown.

Stock did this after preventing the Browns from introducing evidence or posing questions in the guardianship trial about whether Simpson unjustly killed their daughter--the childrens' mother--Nicole Brown and Ronald Goldman.

According to California Family Law Sec. 3041  and case law, in order to keep Simpson from obtaining custody of his children the Browns had to prove by clear and convincing evidence that granting custody to Simpson would be "detrimental" to the children and granting custody to them was "required to serve" the children's "best interest."

Stock did not make a finding about the "best interest" of the children because she ruled the Browns "failed to demonstrate by clear and convincing evidence that custody of the minors by their father would be clearly detrimental to their well being."

There is no law that prevented Stock from having the parties litigate the killing issue as long as it was relevant to the case and not unduly prejudicial. Nor is there a law that prevented Stock from making her own finding on the killing issue, independent of what the criminal and civil case juries found. Once the issues of possible detriment to the children and the childrens' best interests arose, the killing issue became relevant to the case and from that point forward Stock had the power and duty to hear evidence about it.

California Evidence Code Sec. 775 states that the "court, on its own motion ... may call witnesses and interrogate them the same as if they had been produced by a party to the action...." According to the California Supreme Court in People v. Carlucci, 23 Cal.3d 249, 256 (1979) (quotations omitted):

[A] judge is not a mere umpire presiding over a contest of wits between professional opponents, but a judicial officer entrusted with the grave task of determining where justice lies under the law and the facts between the parties who have sought the protection of our courts ... The law of this state confers upon the trial judge the power, discretion and affirmative duty, predicated upon his primary duty and purpose to do justice, to, in any proceeding, whether criminal or civil, with or without a jury, participate in the examination of witnesses whenever he believes that he may fairly aid in eliciting the truth, in preventing misunderstanding, in clarifying the testimony or covering omissions ... and in eliciting facts material to a just determination of the cause.

How could Stock "do justice" and elicit "facts material to a just determination" in the guardianship case without resolving several key issues:

  • Whether the children will experience a significant difference in the degree of bonding with Simpson in future years depending on who wins custody.
  • The likelihood the children will someday be exposed to credible evidence causing them to believe Simpson committed the killings.

  • The mental effect such evidence would probably have on the children. Would it lead to psychological and moral conflict? Would it lead to avoidance and suppression techniques like cognitive dissonance? Would it lead to a chronic state of stress and anxiety for the children?

  • Can the negative consequences of such a mental effect be reduced by lessening the degree to which Simpson bonds with his children over the next ten years?

  • Will the degree of bonding Simpson would achieve from having custody be enough to cause detrimental psychological consequences for the children should they become more knowledgeable about the killing evidence?

  •  Will the degree of bonding Simpson would achieve from the Browns having custody be enough to cause detrimental psychological consequences for the children should they become more knowledgeable about the killing evidence?

  • If the children eventually believe they must reject Simpson because of their belief that he is responsible for the killings, will it be more or less painful to them after having lived with Simpson rather than with the Browns?

  • Which custody situation will give the children the best chance of realizing the truth about what happened to their mother and managing their relationship with Simpson in the most healthy way?

  • Does Simpson have the requisite love for his children and concern for their welfare to keep his custody of them from being detrimental to them?

  • Is a person's responsibility for the unjust killing of a child's mother irrelevant to the issue of the degree of love and concern that person has for the child?

  • How can Simpson's degree of love and concern for his children be adequately measured without determining his liability for the killings?

How can Stock make a valid prediction about possible future detriment to the children without considering whether Simpson committed the killings?

How can she adequately assess whether a possible future belief by the children that Simpson committed the killings, would be psychologically detrimental to them under the competing custody situations, without allowing the mental health professionals to testify and be vigorously cross-examined on these issues?

Regardless of what the parties requested, Stock had an affirmative duty to ensure that these issues were fully explored by the mental health professionals and litigated by the parties. She failed to perform her duty.

Attorneys in the case agreed to be interviewed for this article. Marjorie Fuller, the court-appointed attorney for the children, says "she never requested that Simpson's liability for the killings be litigated in the guardianship case." She says this was "because of the evidence, Simpson's acquittal in the criminal case and the opinions of mental health professionals" who she says found Simpson's possible liability for the killings irrelevant. However, she says "if Stock wanted to have the issue litigated and all the parties were given proper notice under all applicable rules, she would not have objected."

According to the Browns' trial attorney, Natasha Roit, she tried to get the killing issue litigated but Stock kept deferring a decision on whether to allow it. Roit says her pretrial witness list did not include the killing issue witnesses because Stock had not yet ruled on whether the issue could be litigated.

Fuller denies Roit made any request before the trial to litigate the killing issue, but says Roit may have said something to the effect of "I may have to litigate a murder case," to Stock during a pretrial conference in early November, 1996, approximately two weeks before trial.

Both Roit and Fuller say that at this pretrial conference Roit requested a postponement of the guardianship trial until after the Simpson civil trial and Fuller opposed the request. Stock denied the request according to both attorneys.

After Roit cross-examined Simpson on the stand shortly after the trial began, she reserved her right to recall Simpson if Stock ruled the killing issue could be litigated, according to Roit. Fuller says she does not have a definitive recollection of this, but does not dispute Roit's claim.

Both Roit and Fuller agree that at trial Roit asked a psychiatrist if her opinion would be different if she knew that Simpson committed the killings; Fuller objected and Stock sustained the objection.

In her guardianship ruling Stock noted she "did not receive any evidence in the trial concerning allegations of murder by Simpson," explaining:

This raises the issue of whether this Court should have granted a mid-trial request by respondents that this Court do whatever has to be done procedurally, to allow the homicide case to be put on in the custody trial. This request came weeks after the respondents had submitted a witness list of 42 individuals and an exhibit book, none of which contained any of the homicide witnesses or evidence. The request came after all counsel has completed trial preparation, submitted witness lists and after all of the appointed and retained experts had completed their evaluations and submitted their results.

The request was denied by the Court as untimely. The Court concluded that after 11 months of pretrial delay and in consideration of the considerable risk to the children of further damaging publicity that would accompany an unprecedented third "homicide trial" of Mr. Simpson, that terminating the custody case and continuing it indefinitely so that this matter could be re-tooled into a homicide trial, would be not in the best interest of the children.

Stock did not cite any evidence to support her conclusion about "the considerable risk to the children of further damaging publicity that would accompany an unprecedented third 'homicide trial' of Mr. Simpson."

Most significantly, she did not cite any evidence to indicate she compared that risk to the risk of damage to the children that could arise if she granted Simpson custody and he was the killer--a conclusion she easily could have reached had she ordered the issue to be litigated.

On January 31, 1997, Stock refused to grant a stay of her guardianship order.

On February 4, 1997, all twelve jurors in the civil case found Simpson liable for the attacks on Nicole Brown and Goldman and shortly thereafter found Simpson liable for $25 million in punitive damages.

If the children someday come to believe Simpson unjustly killed their mother and her potential rescuer, left her virtually decapitated body within their unsupervised discovery zone and lied to them for years about his guilt while most of the country believed Simpson to be a double murderer, they will be educated enough to write letters to all the custody trial participants. What might they say in such letters? What should they say?

What should the voters of Orange County say now?

[Judge Weiben Stock was reversed by the California Court of Appeal in Guardianship of Simpson

[A heavily edited version of this article was published in the Los Angeles Daily Journal (and its sister publication, the San Francisco Daily Journal) on March 20, 1997, at page 6. This is the full version. The title in the Daily Journal version was "Simpson Judge Had a Duty To Consider Additional Evidence."]

Downloadable documents:

Guardianship of Simpson, 67 Cal.App.4th 914, 79 Cal.Rptr.2d 389 (1998) (84 KB)

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