ADR Prof Blog by Andrea Schneider, Michael Moffitt, Sarah Cole,Art Hinshaw, Jill Gross and Cynthia Alkon.
OJ Simpson will be back in court this week in Las Vegas bringing an appeal from his 2008 armed robbery and kidnapping conviction in 2008. He has apparently filed, through his new lawyer, a 94-page petition for a new trial—which reportedly includes 19 specific issues that the court has agreed to hear “mostly claiming that lawyer Yale Galanter provided such poor representation that Simpson deserves a new trial.” For more information, see here.
One interesting point is the issue of whether Simpson’s lawyer failed to convey a plea offer. Simpson is reportedly stating that if the offer had been conveyed, he would have taken it rather than going forward with trial. This is essentially the same scenario of Missouri v. Frye, a case the US Supreme Court decided in the last term in which they held that the failure to convey the offer constituted ineffective assistance of counsel. I blogged about that decision here.
The twist in the current OJ Simpson appeal is that the prosecutor is reportedly denying there were serious plea negotiations which would mean Simpson’s defense lawyer did not fail to convey any offer as there wasn’t a specific offer made. This might lead to an even more interesting question: Is it ineffective assistance of counsel if a defense lawyer does not negotiate a plea offer in a case? Clearly there are cases where the prosecutor will make no offer due to the charges (murder cases are frequently in this category). But, Simpson’s case doesn’t seem to fall into the category of the type of case where no offer would be made. In these circumstances, is it the defense lawyer’s duty to negotiate an offer, even if their client says they don’t want one? I know that when I was a public defender I considered it my job to negotiate the best offer possible for every case. I had a lot of clients who initially told me “no deals” but when confronted with the reality of going to trial became very willing to take a deal. 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.
But, the Simpson appeal may not reach this question.
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