O.J. Simpson’s current appeal for a new trial has the potential to shed light on an issue that affects countless lesser-known defendants in the US court system: bad lawyering. Along the way, he might get a helping hand from the US Supreme Court.
Mr. Simpson is seeking a ruling overturning his conviction of armed robbery and kidnapping of sports memorabilia dealers in 2007. He says his counsel was inadequate and that his lawyer misled co-counsel.
"I had never sold any of my personal memorabilia, ever,'' he testified Wednesday, dressed in prison blues.
Squabbles between lawyers and their clients and co-counsels are not uncommon, says Robert Pugsley, a professor at Southwestern Law School in Los Angeles.
“Most clients in this situation are so poor or low on the economic scale that their bad lawyering doesn’t get much attention, and so the issue remains largely unnoticed,” he adds. “Whether Simpson prevails or not, this proceeding has a great chance to put the spotlight on this widespread problem.”
Yet appeals like the one Simpson is bringing only rarely meet with success.
“He actually has a case with merits, but these are extreme, uphill battles because you are asking a court to substitute its own judgment, years later with faded memories, for that of the judge at the time,” says Rene Sandler, of Sandler Law LLC in Rockville, Md., who has two decades of experience in such cases.
Simpson’s claim of ineffective assistance of counsel “will predictably devolve into a ‘he said, he said,’ conflicting, fact-based narrative by Simpson and his former attorney,” says Professor Pugsley. Simpson's counsel in the robbery case that went to trial in 2008, Yale Galanter, has refused to comment publicly but is scheduled to testify Friday.
Potentially working in Simpson’s favor is a US Supreme Court ruling last session (Missouri v. Frye) that held that the guarantee of “effective assistance of counsel” extends to the consideration and negotiation of pleas – Simpson’s key complaint.
Co-counsel in the 2008 trial, Gabriel Grasso, said on the stand this week that while Mr. Galanter told him he'd talk with Simpson about a proposed plea deal, Galanter never told Mr. Grasso why he rejected it. Grasso said he didn't know if Simpson was even told.
Although the decision is to be made by a single judge rather than a jury, the perceived veracity of Simpson is important. How did he do?
This is the first time Simpson has testified at any of his trials, going back to 1995’s so-called “trial of the century,” in which he was acquitted of murdering his ex-wife, Nicole Simpson, and her friend Ron Goldman. He was later convicted in a civil trial and ordered to pay more than $35 million to the two families, but again, never testified.
Though this trial is unrelated, "He's been wanting to tell his story. He's excited about telling his story," Simpson's current attorney, Ozzie Fumo, told the Associated Press.
Simpson maintains that advice from Galanter not to testify in 2008 is, in fact, part of the reason for this week’s appeal.
“While prison has had a major effect on his physical appearance, with weight gain, puffiness, and graying hair, O.J. Simpson did not show any signals of deception as he testified," writes Lillian Glass, author of "Toxic People: 10 Ways Of Dealing With People Who Make Your Life Miserable,” in an e-mail. “He is fluent and doesn't hesitate and appears plausible. O.J also sounds and shows plausible signs with regards to his not using weapons.”
“He appeared forthcoming, especially about his drinking and his drinking at breakfast and throughout the morning. O.J.’s explanation of security makes sense,” she says.
However, the standard of proof is so high that Simpson is unlikely to meet it, even if the judge believes everything he says, says Norman Garland, a professor at Southwestern Law School.
“Simpson has to prove not only that the advice given to him was deficient, but that he was prejudiced by that deficiency,” says Professor Garland. “The requirements for demonstrating ineffective assistance of counsel are demanding, and the defendant must overcome a strong presumption that counsel’s performance was within the range of competent representation in order to prevail.”