Why OJ Simpson Is Unlikely to Receive a New Trial on the Kidnapping and Robbery Charges of Which He Was Convicted

By JONNA M. SPILBOR

Tuesday, Nov. 04, 2008

Thirteen years to the day after OJ Simpson was acquitted, he was convicted. The acquittal, of course, was for the double murder of his ex-wife Nicole Brown-Simpson and her friend Ron Goldman, after a trial that catapulted Simpson into infamy, convincing most of the nation - but not the jury - that he was guilty. The conviction, a verdict handed down on October 3 of this year, was for kidnapping, armed robbery, and 10 other charges stemming from the alleged robbery of two sports-memorabilia dealers at gunpoint in a Las Vegas hotel room.

Simpson and co-defendant Clarence "C.J." Stewart, who lost a bid to sever his trial from Simpson's, were each found guilty on all counts. After a month-long trial, the verdict came after thirteen hours of deliberation. Following the verdict, presiding Judge Jackie Glass revoked Simpson's bail pending sentencing - a bit of an unusual move, but an understandable one, in light of Simpson's infamous flight from L.A. after his wife's murder. Simpson was promptly cuffed and carted to jail where he awaits his December 5th sentencing date.

The stakes are high indeed for OJ, as he faces the possibility of life in prison. But as is so often the case in the realm of criminal defense, it ain't over til it's over. Lawyers for Simpson filed a motion requesting a new trial for OJ, giving the judge seven reasons why their unsympathetic client should get a do-over. This is standard procedural fare in the criminal defense world; such motions are frequently filed, but vary in validity. In this case, most of the grounds are valid. But, for reasons I will explain, the motion will most likely fall flat.

The Possibility of a New Trial: Fact or Fiction?

To begin, it's important to understand that any new-trial motion is a longshot at best.

Most states have procedural provisions that afford a defendant the opportunity to ask for a new trial. Nevada is no different, although its time limit for making the motion - just seven days following a verdict of guilt -- is atypically short. New trial motions in criminal cases must be made prior to sentencing - a sensible rule since, if successful, they would obviate the need to move to the sentencing phase. Typically, new trial motions are a use-it-or-lose-it proposition. A defendant must make the motion within the time period required, or lose the opportunity to ever make the motion in the future.

Successful motions for new trial are as rare as UFO sightings (I mean, real UFO sightings). And, if one considers the true object of a new trial motion, it's no wonder.

A motion for new trial is submitted to the same judge who presided over the "old" trial, and often, granting such a motion would require that judge to acknowledge that she did something wrong. A new trial motion might argue, for instance, that the judge made an incorrect ruling, denied the defendant a right to which he was entitled, or made a host of legal errors that contributed the jury's (erroneous) verdict.

As one might imagine, judges do not like to admit they've made a mistake so big it affected the outcome of a trial - indeed, they enjoy doing so about as much as men typically enjoy asking for directions. In essence, granting a motion for new trial puts an invisible mark on that judge's record (much like having a case overturned on appeal), and perhaps for this reason alone, the number of new trial motions granted are few and far between.

What Does It Take To Get A "New Trial" in Nevada?

What would OJ Simpson need to prove to get a new trial in his recent armed robbery/kidnapping case? The Nevada Revised Statute setting forth the grounds for filing a new trial motion is pretty nebulous. Essentially, NRS §176.515 says the court can grant a new trial if "required as a matter of law" or on the ground of "newly discovered evidence." OJ's lawyers filed their motion on the former ground: that a new trial is legally compelled.

Simpson's lawyers claim that the court erred in at least seven crucial areas. First, they say the court erred in allowing the State to exclude African-Americans from the jury. The problem with a challenge like this, though, is that it is hard to show racism in jury exclusions given the relatively small jury pool. A pattern of excluding African-Americans from the hiring of a 1000-person company would be comparatively much easier to prove.

Next, Simpson's attorneys claim the court should have permitted defense counsel greater latitude in voir dire --- the process through which jurors are questioned to elicit any facts that would prevent them from serving impartially, and to allow lawyers to use their peremptory strikes, by which they can force potential jurors off the jury panel without giving any explanation for doing so. Specifically, OJ's lawyers say they should have been allowed to question jurors on their feelings regarding OJ's previous California cases (both the murder trial where Simpson was acquitted, and the subsequent wrongful death civil suit wherein OJ was found liable).

Also according to counsel, OJ was denied his right to present his theory of the case, and denied his right to present requested jury instructions. The final two arguments claim that there was insufficient evidence to support the kidnapping convictions, and that Simpson was denied his Sixth Amendment right to conduct a "full and complete cross- examination" of certain State witnesses.

These grounds, if true, would give rise to granting the motion for a new trial. The problem, however, with Simpson's motion is that it's devoid of supporting evidence. Essentially, the defense is asking the judge to reconsider legal questions she already decided, without giving her any new evidence that might change her mind.

However, this absence of evidence might not have been entirely counsel's fault. Counsel noted on page three of OJ's motion for a new trial that the motion was filed "under circumstances which prevent the defense from fully presenting and briefing the grounds for a new trial due to the Court's denial of an extension of time to file this Motion." Specifically, Judge Glass refused to give the lawyers any time beyond the exceedingly short seven-day limitation to file the motion, despite the voluminous trial transcript.

"I've sat through the trial," Judge Glass said. "If you want a motion for new trial, send me something." That's a pretty curt statement, considering the consequences of the trial for Simpson, and one that is surely not music to any defense lawyer's ears. As a defense lawyer myself, I feel strongly that if one is going to send another to prison for life, it had better be based on a correct verdict. Judge Glass should have welcomed the motion for a new trial as a chance for her to make doubly sure she was right. Instead, she forced OJ's attorneys to complete in seven days a task that might reasonably have taken several weeks.

The Two Strongest Arguments In Simpson's Motion for a New Trial

To me, the two strongest arguments in support of a new trial for OJ are these two: First, there is his argument that grounds that the court erred in restricting voir dire questioning regarding Simpson's California cases. Second, there the related claim that Simpson was denied his Sixth Amendment right to a full and complete cross-examination of the witnesses against him.

It's undeniable that Simpson's acquittal in the brutal double-murder "trial of the century" is the proverbial elephant in the room - so much so, that to not fully question jurors about their possible bias arising from that trial and its result, and to not allow Simpson's attorneys to fully cross-examine certain witnesses on the subject affects Simpson's right to a fair trial. To see this, consider whether you would think that Simpson's attorneys had committed malpractice had they not brought up the prior trial in voir dire or cross-examination. Surely, that would have been a grave mistake. For the judge to prevent these approaches from being used was also a grave mistake. It meant that Simpson lost his main - perhaps his only - defense.

It seems completely implausible that OJ's famous murder trial - in which most Americans think he got away with murder - was not on the minds of the police who investigated the later Nevada allegations, and the prosecutors who prosecuted him on them. Indeed, during the trial, the jury got to hear a recording of a police employee exclaiming, "This is great. ... California can't get him. ... Now we'll be able to." Police detective Andy Caldwell conceded during his testimony that the comment was made as a team of officers examined the scene of the crime. However, Caldwell attributed the remark to a civilian employee of the police department, not a sworn officer.

Still, that's a pretty powerful statement, and one that can't be ignored. If this statement embodies the general feeling of not only the police, but also the jury and even the prosecutors, it may turn out that OJ Simpson is too infamous to ever get a fair trial, anywhere.

More evidence of potential bias is found is the prosecutors' decision as to which offenses to charge. The kidnapping charges were a major stretch in what was essentially an armed robbery case - but they are the most serious in terms of sentencing. The decision to prosecute for kidnapping was essentially a decision to put OJ away for as long as possible.

A Note from the Jury Shows that At Least One Member May Have Felt that Simpson's Infamy Made His Trial Unfair

The jurors themselves raised a similar question in a note to Judge Glass. (Nevada, unlike many other states, allows jurors to ask questions during criminal trials.) Their note read: "Was there any reason other than Simpson being a famous person that delayed the investigation?" The answer by the witness was "No."

In sum, there's no doubt that Simpson's sordid past found its way into the investigation, the trial, and maybe even the jury box. If Simpson's past or any personal biases swayed the verdict, he is absolutely entitled to a new trial. The question is, can his lawyers prove it?

My feeling is no, at least not now, in the motion for a new trial. Judge Glass's curt comment showed she is less than receptive to the motion, and she has already ruled on a number of these issues before, rejecting Simpson's attorneys' contentions. Simpson may be more successful once these issues, and perhaps others, are raised on appeal. At least this way, lawyers can include more substance in making their arguments, for the schedule for appellate briefing will doubtless be reasonable than the schedule for this new trial motion.

Yale Galanter, one of Simpson's lawyers, reacted similarly after the verdict when he told reporters, "His only hope is the appellate process." I couldn't agree more.


Jonna M. Spilbor is an attorney and legal analyst on "Kelly's Court", airing daily on the Fox News Channel. Jonna is also the legal expert and co- host of the Coop & Tobin radio show Thursdays on WPDH FM, and a frequent guest commentator on MSNBC, Court-TV and other television news networks, where she has covered many of the nation's high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney's Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units. In 1998, she earned certification as a Court Appointed Special Advocate with the San Diego Juvenile Court. She is a graduate of Thomas Jefferson School of Law, where she was a member of the Law Review.

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