OJ Simpson's Chances For A New Trial

OJ Simpson's bid to get a new trial in his Nevada convictions for 19 various felony counts ranging from kidnapping, assault, robbery and the use of a deadly weapon, resulted in a five-day evidentiary hearing from May 13 to May 17, 2013, last week.  Simpson's Petition was filed with the Clark County District Court over a year ago on May 12, 2012.  Various witnesses testified, including Simpson himself, a first in any of his criminal prosecutions, and Simpson's trial attorney, Yale Galanter, whom Simpson claims was ineffective at trial, entitling Simpson to a new trial.  At the evidentiary hearing, Galanter passionately denied any error or omission on his part during Simpson's trial.

Simpson's claim of ineffective assistance of counsel is not uncommon when convicted criminal defendants have exhausted all their appeals as of right.  The claim is filed in the form of a Petition for a Writ of Habeas Corpus and is based on an allegation that the petitioner's Sixth Amendement Constitutional right to assistance of counsel was violated and thus unvalidates the petitioner's conviction.  The petition must first be filed in the trial court.  The standard for showing ineffective assistance of counsel rising to a level that violates a defendant's constitutional rights to such a degree that would require a defendant to obtain a new trial is set forth in the 1984 United States Supreme Court decision of Strickland v. Washington, as adopted by the Nevada Supreme Court.in the case entitled Warden v. Lyons.

Under the Strickland standard, in order to establish a claim of ineffective assistance of trial counsel sufficient  to invalidate a judgement of conviciton, Simpson is required to denonstrate (1) that his counsel's performance fell below an objective standard of reasonableness and (2) that his counsel's errors were so severe that they rendered the jury's verdict unreliable.  The Nevada Supreme Court has held that the severity of the errors must have prejudiced the defendant to such a degree that but for the errors, the verdict would probably have been differenct.  According to Nevada case law, in deciding the petition the trial court need not address both components of the inquiry if Simpson makes an insufficient showing on either one.

The Strickland test is a high bar for a convicted defendant to overcome, and in Nevada, defendants' petitions have been denied even in cases where trial counsel admitted to embezzling large amounts of their clients' money, and in cases where a juror subsequently provided an affidavit indicating he witnessed the defendant's trial counsel sleeping during the trial.  Statistically speaking, it is not likely that Simpson's petition will be granted, so we may see an appeal before the Nevada Supreme Court in the future.

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Ninth Circuit Finds NY Attorney Entitled to Additional Fees for Value of Referring Case to Nevada Law Firm

The Ninth Circuit has remanded a fee dispute case between attorneys to the trial court for a recalculation of the fees the referring New York attorney is entitled to for the referral to the Nevada law firm that successfully settled the case.

New York attorney Brian Fitzgerald referred a medical malpractice case to the Nevada law firm and alleged that there was an oral agreement to share the fees 50/50. The trial court rejected this argument, instead awarding Fitzgerald fees based on quantum meruit in an amount totaling one third of the added value to the client for Fitzgerald convincing the Nevada law firm to lower its contingency fee arrangement with the client. Fitzgerald appealed both the rejection of the oral agreement and the award under the theory of quantum meruit. The Ninth Circuit affirmed the trial court's rejection of the oral agreement, but remanded the case for the trial court to recalculate the quantum meruit award. The Court concluded that the trial court did not properly consider the value to the Nevada law firm of Fitzgerald's referral of the case to the firm.

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Nevada Supreme Court Denies OJ's Request for Bail Pending Appeal

September 4, 2009

OJ Simpson will remain incarcerated while his appeal is pending.  In a two-page Order, the Court concluded that Simpson had not met his "heavy burden" to convince the Court he is not a flight risk in light of the "serious, nonprobationable, violent offenses" that Simpson was aquitted of.

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Nevada High Court Hears Oral Argument on OJ's Request for Bail Pending Appeal

Today, the Nevada Supreme Court heard oral argument from Yale Galanter, counsel for OJ Simpson, in Mr. Simpson's request for bail pending his appeal of twelve guilty verdicts, including armed robbery and kidnapping. The Nevada convictions stemmed from the well publicized events of September 13, 2007, in which Simpson and others accompanying him forced their way into a Palace Station hotel room, carrying guns and demanding the occupants turn over OJ Simpson football memorabilia. On December 5, 2008, the trial court sentenced Simpson to 15 years to life with the possibility of parole in six years.

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.

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Ninth Circuit Reverses Las Vegas Judge's Grant of Rule 50(b) Motion

On March 3, 2009, the Ninth Circuit published the opinion, Tortu v. LVMPD, reversing a decision of the U.S. District Court District of Nevada, Hon. Robert C. Jones presiding. The plaintiff sued the Las Vegas Metro Police Dept. and several Metro Police officers for unreasonable force when plaintiff was arrested at McCarren International Airport. The jury found in favor of two of the officers and found a third officer, Engle, liable to the plaintiff. Engle filed a Rule 50(b) motion for judgment as a matter of law and, in the alternative, a Rule 59 motion for a new trial. The court granted both motions.

The Ninth Circuit reversed, stating that Engle was not entitled to file a Rule 50(b) motion without first having filed a Rule 50(a) motion prior to submission of the case to the jury. The Court cited the plain language of the Rule and the 1991 advisory committee notes stating, "This provision retains the concept of the former rule that the post-verdict motion is a renewal of an earlier motion made at the close of evidence."

The Court also reversed the district court's grant of Engle's Rule 59 motion for a new trial. The Court concluded that the district court abused its discretion because the weight of evidence was not against the jury's verdict. Contrary to the district court's reasoning that finding for the other two officers conflicted with the jury's finding for plaintiff against Engle, the Ninth Circuit conluded only that plaintiff had not met his burden of showing excessive force by the other two officers, particularly where separate evidence as to Officer Engle was given. Moreover, the district court was not entitled to substitute its evaluation of the evidence for the jury's, simply because it would have arrived at a different verdict. Thus, the jury's verdict was not irreconcilable, and Engle could have been found liable while the other two officers were not found liable.
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