Citing the factors in Bergna v. State, 120 Nev. __ (2004), Mr. Galanter argued before the three justice panel that Simpson is not a flight risk because Simpson's noteriety makes it impossible for him to flee or hide without intense media scrutiny. (One can only speculate that Mr. Galanter had in mind Mr. Simpson's prior failed attempt to flee arrest in 1994.) Galanter also argued that the errors by the trial judge in Simpson's trial were "so egregious and so outrageous" that there is a high likelihood that Simpson's convictions will be overturned on appeal. Of particular note, Galanter argued in rebuttal that the trial court's failure to instruct the jury on specific versus general intent rendered the verdicts invalid.
Justice Siatta expressed concern about the public policy considerations regarding granting Simpson's bail request and the precedent it could set among all convicted appellants seeking bail pending appeal. David Rogers, counsel for the State of Nevada, reiterated Justice Siatta's concerns and emphasized the high burden placed on Simpson under Bergna given the violent nature of the crimes and the significant sentence imposed. Mr. Rogers also opined that nothing would prevent Simpson from taking "a short boat ride" from Florida to another country to escape justice.
Rogers indicated the State's Response Brief to Simpson's underlying appeal would be filed sometime within two weeks.