May 19, 2013
Is OJ providing a high-profile test case for the application of Lafler and Frye?I have not been following closely the Nevada state habeas proceedings in which convicted armed robber and kidnapper (and acquitted murderer) OJ Simpson is contesting his convictions and sentences. But this recent Christian Science Monitor article spotlights how "The Juice" is now, yet again, in court bringing attention to notable lawyering and criminal legal practice issues:
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.”...
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.
“O.J. might have the good luck to rely on the Supreme Court’s decision last term in Missouri v. Frye. Timing is everything,” says Laurie Levenson, a professor at Loyola Law School in Los Angeles....
Simpson maintains that advice from Galanter not to testify in 2008 is, in fact, part of the reason for this week’s appeal....
The appeal is taking place in Las Vegas, and this is Simpson's last chance under Nevada law to prove that he was wrongly convicted. A federal court appeal is still possible.
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.”
A few recent related posts on Lafler and Frye:
- "Two Rights to Counsel"
- A prosecutor's potent perspective on Lafler, Frye and the future of plea bargaining
- A potent response to a prosecutor's perspective on Lafler, Frye and the future of plea bargaining
May 19, 2013 at 05:15 PM | Permalink
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