Matthew T. Mangino
The Pennsylvania Law Weekly
June 4, 2013
O.J. 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, be it in California or Nevada.
Simpson is back in court and his current claims of ineffective assistance of counsel have the potential to go beyond fanfare and personalities and actually test a recent U.S. Supreme Court ruling extending the Sixth Amendment right to a fair trial to plea negotiations.
Simpson's writ of habeas corpus petition attacking his representation during his Las Vegas trial is 94 pages long and lists 22 reasons why the court should grant him a new trial. A Nevada court held a weeklong hearing at which Simpson and his former attorneys testified.
Allegation number four, that "trial counsel was ineffective in failing to communicate a plea offer," is the contention that most relies on last year's Supreme Court decision in Missouri v. Frye, 132 S.Ct. 1399 (2012).
Simpson claims that his lead counsel, Yale Galanter, never communicated the state's plea offer made during the first day of trial and that Simpson would have accepted the plea offer. The offer was for a considerably shorter period of confinement than his sentence of nine to 33 years in prison.
In Frye, the court reviewed whether counsel's failure to disclose the terms of a favorable plea offer was a violation of the Sixth Amendment.
Galin Frye was charged with a felony for driving with a revoked license. According to the opinion, he qualified for a public defender. The district attorney sent Frye's lawyer a letter offering a reduced charge and 90 days in jail. The lawyer never communicated the plea offer to Frye.
Frye subsequently made an open plea and was sentenced to three years in prison. He filed a claim pursuant to the Sixth Amendment, alleging ineffective assistance of counsel. The Missouri Court of Appeals agreed and the state of Missouri appealed.
In Frye, the U.S. 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."
Justice Anthony M. Kennedy wrote for a 5-4 majority, "The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires."
The court established a three-pronged analysis. A defendant must prove he or she would have accepted the plea bargain if not for bad legal advice; there was a reasonable probability that prosecutors would not have withdrawn the offer before trial; and a judge would have ultimately accepted the plea.
Co-counsel in Simpson's 2008 trial, Gabriel Grasso, testified at the habeas hearing that while Galanter told him he'd 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.
Simpson testified that Galanter made no mention of a plea deal. On the other hand, Galanter testified that Simpson made all of the major trial decisions, including not testifying at trial and refusing to accept the plea offer.
In Frye, the high court emphasized that claims of ineffective assistance of counsel in the plea-bargaining context are governed by the two-part test set forth in Strickland v. Washington, 486 U.S. 668 (1984). The court must find that defense counsel had been ineffective and that there was prejudice to the defendant.
The court concluded in 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.
Kennedy went further and suggested that defendants are entitled to effective counsel during plea negotiations. How did the court define that duty?
Kennedy acknowledged the difficulty in defining the responsibility of counsel in negotiating a plea. According to professor Rishi Batra of Whittier Law School in "Lafler and Frye: A New Constitutional Standard for Negotiation," "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.
The requirement to render effective counsel in plea negotiations raises another interesting issue in the Simpson case. Texas Wesleyan School of Law professor Cynthia Alkon asked on the ADR Prof Blog: "Is it ineffective assistance of counsel if a defense lawyer does not negotiate a plea offer in a case?"
Alkon suggested that "it would seem to me that negotiating a firm plea offer is something defense lawyers should be striving to do as part of their basic preparation in every case."
However, Batra went further. Counsel, Batra said, has "a duty to investigate mitigating and aggravating evidence," which, in the context of plea bargaining, would be factors that would help argue for a lower sentence.
In addition, defense counsel has a "responsibility to prepare herself with information on the going 'price' of bargains," in terms of the sentence that is usually offered for the type of crime that has been committed. Some scholars contend that this information is critical for effective plea negotiations.
If a plea was offered to Simpson and never communicated to him, he may be entitled to a new trial. However, if the court finds Simpson's counsel ineffective for failing to pursue plea negotiations, the implications for all defendants are potentially enormous.