Saturday, June 8, 2013

GateHouse: O.J. replay - his new claim may have merit

Matthew T. Mangino
GateHouse News Service
June 7, 2013

O.J. Simpson is back in the news. Before you yawn and nod-off from a recurring bout of O.J. fatigue, this Simpson proceeding might actually have some far-reaching implications.

Simpson has been enmeshed in the legal system since 1994. In fact, Simpson is probably remembered more for his legal battles than his Hall of Fame career on the gridiron.

His acquittal of murder in California was tabbed the “trial of the century.” The wrongful death civil suit that followed resulted in Simpson being liable to the estates of Nicole Brown Simpson and Ronald Goldman for $33.5 million. His arrest, and 2008 conviction, in Las Vegas for armed robbery and kidnapping of sports memorabilia dealers garnered a national television following.

The proceedings involving Simpson always seemed to be more about the personalities involved than the law, however, his current claim that his Las Vegas lawyers poorly represented him has the potential to go beyond the fanfare and personalities.   

Simpson claims that his lead counsel, Yale Galanter, never communicated a prosecutor’s plea offer made during the first day of trial. Simpson says he would have accepted the offer. Galanter contends he told Simpson about a two- to five-year plea bargain— a considerably shorter period of confinement than his sentence of nine to 33 years in prison — but Simpson said “no.”

Galanter’s co-counsel during the 2008 trial, Gabriel Grasso, testified at Simpson’s recent hearing that while Galanter told him he would talk with Simpson about a proposed plea deal, Galanter never told Grasso why he rejected it. Grasso said he didn't know if Simpson was even told, reported The Christian Science Monitor.

Last year, the U.S. Supreme Court reviewed whether a lawyer’s failure to disclose the terms of a favorable plea offer was a violation of the Sixth Amendment.

According to the Supreme Court, Galin Frye was charged with a felony for driving with a revoked license. The district attorney sent Frye's lawyer a letter offering a reduced charge and 90 days in jail. The lawyer never told Frye about the plea offer.

Frye subsequently went to court without a deal and was sentenced to three years in prison. He filed a claim alleging ineffective assistance of counsel. The Supreme Court held that "the Sixth Amendment right of effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected."

The court concluded in Missouri v. Frye that defense counsel did not communicate the formal offer.  As a result defense counsel did not render effective assistance of counsel. However, the court did not limit itself to that conclusion.

Justice Kennedy went further and suggested that defendants are entitled to effective counsel during plea negotiations. How did he define that duty?

He didn’t. Kennedy acknowledged the difficulty in defining the responsibility of counsel in negotiating a plea. According to Professor Rishi Batra, “By explicitly linking bargaining and negotiation to the duties of the counsel during the plea bargain process,” the Sixth Amendment requires not only communication of pleas but also adequate assistance of counsel in negotiating pleas.

For Simpson, if a plea was offered and never communicated to him he may be entitled to a new trial. If the court finds Simpson’s counsel ineffective for failing to pursue plea negotiations, the implication for all defendants is potentially enormous.

Defense counsel in every criminal case may be required to conduct a thorough investigation of the background of the defendant to explore any possible issue that might help in negotiating an effective plea bargain. 

Is this the dawn of “criminal negotiation counsel” working in tandem with trial counsel?  The roles of a negotiator and litigator are different, as are the skill sets, but both may soon be required to provide effective legal representation in criminal cases.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at and follow him on Twitter at @MatthewTMangino.


Unknown said...

Can't this be done simply by bringing forth all pleas to the defendant in writing by counsel and having 2 signature lines, one of accepting the plea and one for decline? That way it is part of the legal file and the attorney has proof that he was doing his job properly. I realize it may not be much good for all the past cases but for future cases this should solve the problem.

Law and Justice Policy said...

Good thought, but it may go further. Just like courts require a plea colloquy before accepting a plea-courts may need to conduct a plea offer/rejection colloquy. This will insure that the record reflects the voluntary, knowing and intelligent rejection of a plea bargain.

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