Creators: What Does It Take To Be The 'Trial of the Century'

Matthew T. Mangino
Creators
May 28, 2024

This week we can expect a verdict in New York v. Donald Trump. This might be the most important criminal trial in the history of our country — a former president and current frontrunner in the race for another shot at the White House is on trial in Manhattan accused of falsifying business records to cover up a tryst with a porn star.

We have heard talk in the past of "trials of the century." The People v. Simpson generated some renewed interest with the recent death of O.J. Simpson. In 1994, the football Hall of Famer's ex-wife, Nicole Brown, and her friend Ronald Goldman were stabbed to death outside her home in Los Angeles. After more than a year of mesmerizing television coverage, Simpson was acquitted.

The Simpson trial riveted the nation. Every moment of the trial was televised on cable news channels. News programs and talk shows analyzed every facet of the trial. The same is not true for New York v. Trump. The lack of cameras has contributed to a lack of interest.

The criminal prosecution of a former president seems to have generated less interest than the 2022 civil trial involving Johnny Depp and his ex-wife, Amber Heard. According to Axios, from April 4 to May 16, 2022, news articles about the trial had generated more social-media interactions per article in the United States than the leaked Supreme Court draft opinion on abortion, Elon Musk's acquisition of Twitter, and the Russian invasion of the Ukraine. Live streaming is the difference between the incredible interest in Depp's trial and the ho-hum view of Trump's trial.

The 20th century had more than one "trial of the century." In fact, exactly 100 years ago, there was a murder trial splashed across newspapers nationwide.

Two men accused of murder, and their names have withstood the test of time even without livestreaming.

In 1924, Nathan Leopold Jr. and Richard Loeb, two wealthy University of Chicago students, rented a car and stocked it with tools to commit the "perfect crime." They drove to a nearby Chicago park and waited for the perfect victim. They found Bobby Franks.

The two young men lured the 14-year-old Franks into the car. They were subsequently accused of murdering and mutilating Franks for the thrill of the kill.

Although the prosecution of Leopold and Loeb was heralded as the "trial of the century," the case was not really a trial at all. Renowned criminal defense attorney Clarence Darrow changed the young men's pleas from not guilty to guilty and focused his efforts on preventing their execution.

Darrow chose to focus on saving the lives of Leopold and Loeb, his two young sadistic clients. Darrow asked the judge, "Why did they kill little Bobby Franks? Not for money, not for spite; not for hate. They killed him as they might kill a spider or a fly, for the experience. They killed him because they were made that way."

He continued to argue, "Kill them. Will that prevent other senseless boys or other vicious men or vicious women from killing? No!"

Darrow's condemnation of the death penalty concluded, "Your Honor, what excuse could you possibly have for putting these boys to death? You would have to turn your back on every precedent of the past. You would have to turn your back on the progress of the world. You would have to ignore all human sentiment and feeling — you would have to do all this if you would hang boys of 18 and 19 years of age who have come into this court and thrown themselves upon your mercy."

Leopold and Loeb were saved from the death penalty and sentenced to life in prison. Trump is not facing the death penalty, but maybe the death of his political ambitions. Can his lawyers save the life of his campaign?

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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O.J.'s former attorney F. Lee Bailey lives above a beauty salon

Now that O.J. Simpson is out of jail, no one involved in the O.J. spectacle  has taken as big a fall as F. Lee Bailey.

Bailey joined Simpson’s defense team with a courtroom résumé that even Perry Mason would be jealous of. Bailey got neurosurgeon Sam Sheppard a new trial on charges he brutally killed his wife — and a not-guilty verdict. He defended fugitive newspaper heiress Patty Hearst, the “Boston Strangler” and scores of other accused murderers. He was rich, flew on private jets and even played himself in a movie.

Today he lives with a hairstylist in Maine. Last year, Bailey filed for bankruptcy after a string of scandals inside and outside the courtroom left him disbarred and shamed. He was accused of misappropriating funds from his defense of an alleged drug dealer.

Here’s what he had left: a 1999 Mercedes station wagon.

Unable to practice law, Bailey runs a consulting business above his girlfriend’s hair salon.

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O.J. Simpson's Case May Impact Plea Bargaining

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. 

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