O.J. Simpson appeal: racial makeup of jury and judge conduct questioned

O.J. Simpson lawyer: "Mr. Simpson really believed he was recovering his own property."

The racial makeup of the jury and the conduct of the judge who oversaw O.J. Simpson'sconviction have emerged as key issues in the former football star's appeal for the Nevada Supreme Court to overturn his conviction in a gunpoint Las Vegas hotel room heist.

"Mr. Simpson really believed he was recovering his own property," Simpson attorney Yale Galanter told a three-justice panel hearing oral arguments in Las Vegas on Friday. "Our theory of defense was never put before the jury."

Clark County District Attorney David Roger called the September 2008 trial contentious but fair, and the sentences just. He urged the justices to deny both appeals.

After Galanter characterized Simpson's conviction as prejudicial "payback" for his 1994 double-murder acquittal, justices Michael Cherry, Mark Gibbons and Nancy Saitta posed pointed questions about whether convicted co-defendant Clarence "C.J." Stewart received a fair trial alongside Simpson.

Both men were convicted of kidnapping, armed robbery, conspiracy and other crimes for what Simpsonmaintained was an attempt to retrieve family photos and mementoes. Four other men took plea deals and received probation after testifying for the prosecution.

Stewart's lawyer, Brent Bryson said a 2001 poll found 72 percent of Americans believed O.J. Simpson was wrongly acquitted in the 1994 slayings of his ex-wife, Nicole Brown Simpson, and her friend Ron Goldman in Los Angeles.

Bryson reminded the three Nevada high court justices that they denied his pretrial appeal for severance, but instructed Clark County District Court Judge Jackie Glass to be vigilant during trial to ensure that Simpson'spast didn't unduly affect Stewart's future.

"Even after the admonishment by this court, the trial (judge) stated in open court, 'Severance is dead,'" Bryson said. "That was a clear violation of this court's mandate, well-established Nevada and United States Constitutional law."

Neither Simpson nor Stewart were in court for the oral appeals. Their attorneys previously lost a bid for their release from prison until their appeals are settled.

Simpson, an National Football League hall-of-famer, actor and advertising pitchman, is serving nine to 33 years at a state prison in the northern Nevada town of Lovelock.

Stewart, a former Simpson golfing partner from North Las Vegas, is serving 7 1/2 to 27 years at High Desert State Prison northwest of Las Vegas.

Roger said Nevada law doesn't let people commit felonies to recover their own property, and he dismissed assertions that a plan for one of Simpson's friends to pose as a collectibles buyer before Simpson and others burst into the room to confront the two collectibles dealers was an innocent escapade.

"He went in to that room and said, 'Don't let anybody out of here.' 'Pack this stuff up.' 'Give me my stuff,'" Roger said. "That's robbery."

Justices questioned the dismissal of the last two black women from the prospective jury before the panel was seated with no blacks. Both Simpson and Stewart are black.

Roger denied race was a factor. He said both women claimed hardships and religious beliefs that would make jury service difficult, and reported experiences that could have made them biased against the state.

Bryson said several other jurors said they went to church and had interactions with police.

"What's the major difference? Skin color. That's it," he said.

Galanter and Bryson both also blamed the judge for belittling defense attorneys in front of the jury with frequent commands to be quiet and sit down, although Roger told the justices he thought Glass was equally tough on all parties.

Las Vegas defense attorney Lisa Rasmussen, who watched Friday's court arguments, said the justices could overturn both the Simpson and Stewart convictions.

"They're focusing on the racial makeup of the jury and the conduct of the trial judge infecting the proceedings," said Rasmussen, who has argued dozens of cases before the Nevada Supreme Court and the 9th U.S. Circuit Court of Appeals in San Francisco.

"If there's a Batson issue, its automatically reversible," Rasmussen said, citing a U.S. Supreme Court standard set in the 1986 case Batson v. Kentucky.

"The third issue is the failure of the trial judge to allow the defense to present a theory of defense to the jury."

Rasmussen said Bryson's severance argument gave Stewart a better chance at a new trial than Simpson.

"C.J.'s counsel is absolutely correct. There is no co-defendant like O.J. Simpson," she said. "And if C.J. hadn't been tried with O.J., he would have been able to present issues and defenses that were potentially adverse toO.J."