O.J. Simpson denied new trial: why such appeals almost never work

O.J. Simpson request for a new trial was even more dubious than most such appeals, some legal experts say. The former football player was convicted in 2008 of kidnapping and armed robbery in connection with an incident at a Las Vegas hotel.

A Nevada judge has upheld the conviction of former football great O.J. Simpson for kidnapping, armed robbery, and other charges. He had appealed for a new trial on the grounds that his original lawyer had provided insufficient counsel.

The take-away, several legal analysts say, is that these kinds of appeals almost never work, and Mr. Simpson’s was more dubious than most.

“It is always an uphill battle to obtain a reversal of a conviction based upon ineffective assistance of counsel,” says J. Kelly Strader, law professor at Southwestern Law School in Los Angeles, in an e-mail. “Not only do you have to show that the counsel was incompetent, but you also have to show that this likely affected the outcome at trial. Whereas here, there seems to be substantial evidence of guilt.”

The judge spelled out the reasons for her decision.

"Mr. Simpson alleges that his attorney labored under an actual conflict, that he received ineffective assistance of counsel from both trial and appellate counsel, and that the state withheld exculpatory evidence," Judge Linda Marie Bell wrote. "All grounds in the petition lack merit and, consequently, are denied."

"Given the overwhelming amount of evidence,” she continued, “neither the errors in this case, nor the errors collectively, cause this court to question the validity of Mr. Simpson's conviction."

Simpson had asked for a new trial in May. Witnesses recounted the circumstances in 2007 that surrounded Simpson and some friends rushing into a Las Vegas hotel room, where they demanded the return of sports items.

The defense held that Simpson was trying to recover his own property, which he said was stolen. He has also said he didn't know his friends had brought guns to the hotel.

In appealing for a new trial, Simpson argued that his attorney in the first trial, Yale Galanter, provided inadequate counsel.

But such an argument may be flawed. Kevin Johnson, dean of the University of California, Davis, School of Law, writes in an e-mail: “Usually a defendant is said to assume the risk of the quality of counsel and representation, since he selected the attorney.”

Simpson’s new lawyers have hinted that they might appeal to the Nevada Supreme Court, and if he loses there, they might move on to federal court. But it appears highly unlikely that the judge's ruling will be reversed.

“[Judge Bell] took extensive testimony and made extensive factual findings,” Professor Strader writes. “The judge was able to assess the credibility of the witnesses, which an appeals court will be unable to do. An appeals court therefore is highly likely to defer to the trial court's factual findings.”

Simpson probably has continued to move ahead with legal proceedings simply because he can, some say.

“As long as he has resources he can continue to try, but I don’t think he will get a new trial or a reduced sentence,” says Robert Pugsley, another law professor at Southwestern Law School.

In fact, the percentage of these kinds of appeals across the country that are successful is less than 1 percent, according to Bruce Jacob, law professor at Stetson University College of Law in Gulfport, Fla.

Others agree that the chances of a successful Simpson appeal are slim to none.

“Realistically, this looks like the end of the road for OJ,” says Laurie Levenson, law professor at Loyola Law School in Los Angeles, in an e-mail. “I read the entire opinion: The judge set forth why she believed he was guilty and that he definitely knew guns would be involved. After that, any errors that were raised were seen as not prejudicial. I guess this is how the OJ saga ends.”