Athletes Behaving Badly
OJ To Take The Stand; 3 Major Questions To Be Drawn From His Testimony
OJ Simpson will take the witness stand this week to testify that Yale Galanter, the Florida lawyer who received nearly $700,000 in legal fees, is to blame for his Nevada armed robbery and kidnapping convictions in 2008 and his failed appeal to the Nevada Supreme Court in 2010. His new defense attorneys argue that Simpson received ineffective assistance of counsel from his former defense attorney and that he should receive a new trial.
The Clark County judge will be looking at three key issues regarding Galanter’s representation before making her decision whether to grant Simpson a new trial. The decision will be made by the judge alone, there is no jury involved.
The three major questions the judge will want to answer are:
1) Did Galanter convey any plea offers from the Clark County District Attorney’s Office to his client OJ Simpson?
A criminal defense attorney has an affirmative obligation to convey any plea offers to his or her client, and the key to the entire hearing may be whether there was in fact an “offer” and whether Galanter told Simpson about it.
Retired Clark County District Attorneys Chris Owens and David Roger were both asked Tuesday about whether there was in fact a plea deal offered to Simpson. Roger said he talked with Galanter once in his office before a preliminary hearing and once during trial.
The first time, “He said, ‘Unless you’re prepared to stipulate to probation for my client, there’s nothing to talk about,’” Roger said. “I said, ‘You’re right, there’s nothing to talk about.’”
The second time, Roger testified, Galanter said that his client would entertain on offer of 24-months.
Galanter returned shortly thereafter, saying Simpson would take no more than 12 months, and Roger said he took Galanter’s response to mean that he had spoken with Simpson and that he did not want to make a deal.
“There were no further negotiations,” he told Fumo.
Both prosecutors testified that they believed any conversations they had with Galanter amounted to simply “conversations” and that there were never any actual “offers.”
Simpson will likely testify that he was not informed of any offers, but the key testimony here will be whether Galanter believed there was a firm offer. If Galanter and the District Attorneys all agreed that there was no offer, and testify as such, it will be very difficult for a party who was not present for these discussions to affirmatively say after-the-fact there was definitely an offer on the table.
2) Did Galanter ban OJ from testifying at trial against his wishes?
The decision whether a defendant will testify is at the sole discretion of the defendant. An attorney may not deny a client the constitutionally guaranteed right to testify on his own behalf. However, an attorney may counsel a client on the pros and cons of testifying and hold considerable influence over whether that client ultimately takes the stand.
It is very common for a defense attorney to tell a client not to testify. The burden of proof in a criminal matter is on the prosecution to prove EACH element of a charged offense beyond a reasonable doubt. If the defense attorney does not believe that the State has satisfied its burden then there is no reason to risk putting the client on the stand and subjecting him or her to cross-examination. A defendant’s decision to testify also opens the door to a considerable amount of character evidence that a defense attorney would much rather the jury not hear.
According to testimony Tuesdsay from Galanter’s former co-counsel Gabriel Grasso, the decision not to have Simpson testify was made by Galanter.
“Mr. Galanter told him, ‘This is the way it’s going to be.’” Grasso said.
“I could advise O.J. all day long, and he was very respectful of me,” Gabriel Grasso told the court. “But if I advised him of something different from what Yale said, he would do what Yale said.”
Under questioning from chief deputy Clark County District Attorney H. Leon Simon, Grasso acknowledged the trial judge, Jackie Glass, specifically asked Simpson if he wanted to testify.
“O.J. did say he did not want to testify,” said Simon on Tuesday.
It will be difficult to overcome the oral waiver provided by Simpson during his trial. Ultimately it appears Simpson made a knowing decision to trust his attorney and told the court on the record that he did not to testify. It will take strong testimony from Simpson or an acknowledgment by Galanter to overcome that waiver.
3) Did Galanter neglect to hire experts that could have helped Simpson’s case?
An ineffective assistance of counsel argument may have tread if testimony shows that Galanter had the opportunity to hire experts, and these experts could have changed the result of the trial, but instead the attorney decided to keep the money for himself.
Tuesday’s hearing included the telephonic testimony of Leroy B. Taft, Simpson’s former personal and business attorney that represented Simpson for over 40 years. Taft handled most of Simpson’s finances and was the person to whom Galanter submitted his bills. Taft testified that Galanter never provided a detailed accounting of his services despite Taft’s requests. This evidence cuts against Galanter because he is unable to show which funds went to attorneys fees and which went to the specific aspects of Simpson’s defense. This is where an accurate accounting of services rendered would have saved Galanter a significant amount of trouble.
We will hear from Galanter later this week and we expect a lot of questions about potential experts that were or were not considered necessary or helpful for the defense.
There are a few other issues to be considered in the case.
Why did OJ receive much more time than any of the other defendants in the case? Was he punished for the murder case against Nicole Brown and Ronald Goldman in which he was famously acquitted? Did that former trial prejudice this case? Goldman’s name was brought up several times in the Las Vegas trial. Alternatively, Simpson was allegedly the mastermind of the robbery so that would usually lead to a greater penalty.
Did Simpson reasonably believe that he had a right to recover his own personal property and did his attorney Yale Galanter tell his that he was legally allowed to retrieve it? Simpson lawyer Ozzie Fumo asked retired Clark County District Attorney David Roger, who prosecuted Simpson, whether investigators ever determined if Galanter helped Simpson plan the 2007 hotel room confrontation with two memorabilia dealers and was in Las Vegas the night before the heist.
“He said he did not advise Mr. Simpson to commit armed robbery,” Roger said.
“And he said he wasn’t there?” Fumo asked.
“Yes,” Roger replied.
However, Fumo revealed phone records Tuesday showing that Simpson and Galanter spoke up to ten times in the days leading up to the robbery.
Prosecutor Leah Beverly countered by suggesting that Simpson and Galanter were friends and it is not unusual for friends to call one another when they are in the same city.
Simpson is serving a nine-to-33-year sentence that makes him first eligible for parole at age 70.
Ryan Kerns, Esq., Wild About Trial with contributions by AP Writer Ken Ritter
Copyright 2013 Wild About Trial. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.