THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Sunday, April 28, 1996 TAG: 9604260078
SECTION: DAILY BREAK PAGE: E9 EDITION: FINAL
TYPE: Opinion
SOURCE: BY ANN G. SJOERDSMA
LENGTH: Medium: 86 lines
AN EYEBROW-RAISING item relevant to the continuing quest for justice in the matter of one Orenthal James Simpson ran recently in the nation's newspapers, but few probably noticed it. It was brief.
ITEM: April 16, 1996, Los Angeles, The Associated Press reports:
``During deposition testimony in the wrongful death lawsuit brought against Simpson (Al ``A.C.'') Cowlings refused to answer questions about events from June 12 to June 17, 1994, invoking his Fifth Amendment right against self-incrimination.''
Remember the white Bronco ``chase'' down L.A.'s crowd-lined freeways? Remember the gun held by ``the bereaved ex-husband'' to his head? Remember the fake beard, the passport, the cash? . . . Remember the man at the wheel?
On the count of three . . . one, two, three, raise those eyebrows! A.C. Cowlings, O.J.'s partner in flight, has something to hide. And he believes it amounts to crime.
Or, at least, he's willing to abuse the Fifth Amendment in order to avoid telling the truth.
Contrary to popular opinion, the Fifth Amendment privilege against compulsory self-incrimination is not to be invoked casually by witnesses who simply don't care to answer questions. Or to look bad. It is designed to protect witnesses from being coerced into self-incrimination - as in implicating one's self in a crime.
People who use the privilege, usually criminal defendants, have real reason to fear incriminating themselves. They're not just squeamish about talking.
Remember L.A. police officer Mark Fuhrman, who shielded himself with the ``Fifth''? He feared a perjury charge.
How does the Fifth Amendment privilege, which reads ``No person . . . shall be compelled in any criminal case to be a witness against himself,'' apply to Cowlings?
It doesn't.
When he ``took the Fifth,'' Cowlings was giving sworn testimony in a civil lawsuit, not a criminal case. Lawyers for the Brown and Goldman families were not compelling him to give self-incriminating evidence. He could have refused to answer, risking at most a civil contempt action, which the plaintiffs' lawyers would have to initiate.
Cowlings' lawyer Donald Re reportedly said that his client was concerned his words could be used against him by prosecutors.
But how can that be? Didn't the L.A. District Attorney's office investigate Cowlings' role in the slayings of Nicole Brown Simpson and Ronald L. Goldman and decide not to prosecute him?
Yes, but in deciding whether to charge Cowlings with harboring a fugitive, prosecutors lacked evidence of his criminal intent. A.C. wasn't talking then, either.
O.J. watchers have long wondered why the damaging flight evidence - including Cowlings' involvement - was never admitted at trial. It seemed vital to the prosecution's case. Cowlings' decision to invoke the Fifth proves that it was.
Why? Because Cowlings believes he can incriminate himself - even though Simpson was acquitted of murder.
One can't be an accessory after the fact of murder, or an aider and abettor, if no murder legally occurred.
One can, however, commit one's own crimes.
Did Cowlings kill Brown and Goldman?
Or, more likely, did Cowlings know Simpson was a fugitive and try to help him to escape?
Al Cowlings' refusal to speak about events from June 12, the day of the killings, to June 17, the day of the Bronco chase and Simpson's arrest, is highly suspicious. He is withholding incriminating evidence, in the absence of any governmental coercion, and the law - so far - is allowing him to do so.
This is not the intent of the Fifth Amendment privilege, which grew out of a time in England when suspects were tortured into false admissions of guilt.
The coercion of confessions continued into modern times and no doubt still occurs, even though safeguards, most dating to the U.S. Supreme Court's Warren era of the 1960s, are in place.
But Al Cowlings, sitting comfortably in a lawyer's office, responding to deposition questions, with his well-paid counsel by his side, hardly needed constitutional protection.
When the Brown/Goldman wrongful death lawsuit finally gets to trial, the fact that a key witness took the Fifth just might raise some eyebrows - in the jury box and on the bench.
What is Al Cowlings hiding? MEMO: Ann G. Sjoerdsma is a lawyer, and book editor of The Virginian-Pilot. by CNB