OJ Simpson is in a Nevada courthouse this week to argue that his kidnapping and robbery convictions should be overturned. The appellate brief outlines 22 separate grounds on which the judge may find that OJ's trial was flawed. The major point raised on appeal, and the point I want to focus on here, is OJ's claim of "Ineffective Assistance of Counsel", or "IAC" for short.
As we all remember, OJ Simpson was arrested in 2007 on suspicion of several robbery and kidnapping-related offenses. He was accused of leading a group of men who entered a hotel room to demand the return of some memorabilia from a collector. OJ claimed that the items had been stolen from him and were his rightful property. During the confrontation, two members of OJ's group brandished firearms while OJ threatened the collector. He was convicted of 10 felony counts the following year and was sentenced to 33 years in prison. OJ will become eligible for parole in 2017 after serving at least 9 years in custody.
OJ's new legal team will now argue, among other claims, that the former USC standout did not receive a fair trial because his former attorney acted incompetently. The 6th Amendment to the US Constitution assures that criminal defendants have the right to assistance of counsel. Over the years, that assurance has been interpreted by the courts to mean "effective" assistance of counsel, not just a warm body to sit at the table next to the defendant. Whenever a criminal defendant is represented by a licensed attorney, that attorney is presumed to be competent and "effective". The very heavy burden of proving IAC, then, falls on the appellant (the person seeking to overturn his conviction).
In order to prove IAC and win a retrial, the appellant must prove 2 things:
1) That the attorney's conduct fell below an "objective standard of reasonableness", and
2) That, but for the attorney's unprofessional conduct, there is a reasonable probability that the outcome of the trial would have been different.
These two elements are called the "Strickland Standard", because they were first elaborated in the case of Strickland v. Washington, 466 U.S. 668 (1984). The argument is raised often on appeal because everybody sitting in jail blames his or her attorney. IAC claims are rarely successful, though, because of the very high burden of proof that is placed upon the appellant.
The first prong of the Strickland test requires the appellant to prove that his attorney's conduct was "objectively unreasonable". This requires some showing that the attorney either acted under some actual conflict of interest, or else that his conduct was so outrageous that NO competent attorney ANYWHERE would EVER engage in such unprofessional behavior. The court will generally afford great deference to an attorney's strategic, game-time decisions and will not second-guess a lawyer's judgement calls just because those decisions turned out poorly. Attorneys often take calculated risks that don't obtain the results we had hoped for. This is the legal equivalent of pulling your goalie toward the end of the game -- risky, but not necessarily crazy if there is some articulable explanation for taking that risk. The appellate court will not find IAC just because, with the benefit of hindsight, we now know that a particular strategic decision was a bad one.
If the court finds that the first prong is satisfied and that OJ's former attorney, John Galanter, acted extremely unprofessionally, the analysis doesn't end there. Now we move on to the second prong. Did Galanter's bad decisions really affect the outcome of OJ's trial? Remember, it's not enough just to show that your attorney acted in an "objectively unreasonable" manner. The appellant must also show that, if his attorney had demonstrated basic competence, there is a good chance that the appellant would be on the golf course and not in a jail cell. This is harder to prove than it sounds. Courts have denied IAC claims even where defense attorney was drunk during the entire trial, where the attorney slept while the prosecutor cross-examined the defendant, and where the attorney suffered from delusions and mentioned his delusions during opening remarks. In those cases, courts found that the attorney did, in fact, commit unprofessional conduct, but that the conduct probably did not affect the ultimate outcome of the trial.
We'll be watching closely to see how this all plays out. If we've learned anything from history, it should be that legal analysts are almost always wrong when the Juice is in the backfield.
Did John Galanter commit some unprofessional misconduct? If so, did that misconduct actually affect the outcome of OJ's trial?
Stay tuned for updates as they become available. Thanks for reading.
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