Last week, in a 100-page opinion, a Las Vegas judge denied O.J. Simpson's multi-pronged motion to set aside his 2008 Las Vegas kidnapping and robbery convictions. They arose from Simpson's ill-conceived -- self-help, gun-assisted -- plot with his conspirators (who testified against him) to recover his football memorabilia from a Las Vegas hotel room where certain individuals were, ostensibly, wrongly holding it. His sentence was nine to 33 years. The principal basis for Simpson's challenge to his conviction -- ineffective assistance of counsel by his trial attorney, Yale Galanter.
In the current skirmish, in which Simpson basically testified against Galanter, who responded with his own testimony, Simpson might have seemed to the presiding judge (and the public) a far more sympathetic figure if only he hadn't previously been found liable (at least, civilly) of killing his wife, Nicole, and her friend Ron Goldman in 1994. And that, parenthetically, is a reality of life -- however fair-minded the judge and the public might seek to be, O.J. Simpson is a man who appears to have literally gotten away with murder.
No matter. Even, admittedly, not knowing Galanter's abilities or practice in counseling clients, probably no one really believed O.J.'s claim that, the night before the Las Vegas hotel episode, Galanter okayed his taking matters into his own hands to retrieve the memorabilia, in the face Galanter's contrary testimony (and advice to Simpson that he instead contact the police or hotel security). Specifically, Simpson testified that Galanter told him that it was actually okay to recover his long-ago-stolen football memorabilia, as long as he didn't commit a trespass or physical force against the people holding the property. (Simpson's trial testimony that he didn't know his confederates would be "packing heat" was credibly contradicted by his co-conspirators.) His new attorneys even argued that Galanter never should have acted as trial counsel; rather, he should have had Simpson testify that using self-help to recover the property was an acceptable option. One might view Simpson's version of these events somewhat astonishing -- the judge deciding Simpson's latest motion presumably did.
Even putting aside the pre-break-in "advice" and the gun issues, small wonder that Galanter didn't call Simpson to testify in his own defense during the criminal trial. Simpson's claim was that he had wanted to testify but that Galanter failed to call him because it would have shed a light on Galanter's "bad advice." Even if a lawyer felt that a jury would actually find credible a client's story that he believed it was okay to retrieve his belongings with the means Simpson ultimately chose, Galanter's ethical obligations would have indeed caused him to discourage his client from testifying, when he actually knew that Simpson's story would have to be false concerning his state of mind when the plot was finally hatched (because it would have had to omit Galanter's then-privileged advice that Simpson recover the items via the police). Galanter could neither suborn perjury nor permit his client to commit perjury.
There's an overriding issue here, though -- the spectacle of a client, in open court, blaming his lawyer for not having stepped up to the plate to proclaim that the lawyer himself was the reason for the client's conviction. Meaning, if the lawyer had given the client correct legal advice -- and allowed him to testify in his own defense at trial -- the armed robbery/kidnaping convictions for which Simpson now will have to continue to serve his full sentence would never have occurred. And, of course, the spectacle of the lawyer basically telling the court, in his own defense to a claim of ineffectiveness, that the client is a liar -- that Simpson lied about the advice he imparted to him the night before the crime and that the (former) client's story of what happened was false. While the public doesn't particularly mind a client blaming a lawyer for his plight, a lawyer essentially stabbing his client in the back, as it were, rubs everyone the wrong way -- maybe even if the client is the man who many believe notoriously got away with murder years earlier.
But what's a lawyer to do? Must he fall on his sword and allow the client to perpetrate a fraud on the court while the lawyer stands mute in the face of the accusation? Should he let the former client publicly accuse him of malpractice, just to give the client another bite at the apple? Or to give merit, or gravitas, to an appeal? Stated more succinctly, must the zealous advocate stand behind his (former) client no matter what?
Loading up the questions this way, the answers seem exquisitely clear. Even though the canons of ethics don't specifically articulate it, doesn't the lawyer have the right -- even an obligation -- to protect himself and his reputation? If, however, the lawyer chose to bite the bullet, to say nothing in the face of fairly wild allegations made by his former client, would he still be obliged to come forward to the court to offer to face down Simpson's testimony, even if neither side were to call him to testify? Not so clear.
This much is evident, however: If Simpson were still perceived by the public as an iconic football hero, Hertz rental car spokesman and movie star -- and not the "murderer" he is instead known for being -- his former attorney's seemingly Judas-like behavior in undermining his motion for a new trial would be the subject of general derision. Who among us wouldn't be disdainful of a lawyer willing to toss a publicly revered client under the bus after allegedly giving bad advice that blew up in the client's face, perhaps causing the client to have to spend years in jail?
Maybe, then, it take the likes of an O. J. Simpson, albeit in his current status as a demonized public figure, to let the public perceive the true miscarriage of justice that might result if a client -- disappointed in how his case turned out -- were free to give even a false account of his lawyer's advice in order to get a second (post-conviction) chance at freedom.
A lawyer is indeed obliged to zealously stand behind and maintain the confidences of his client (or former client). But not when the client, with nothing left to lose, is willing to throw caution to the wind and take the lawyer down in his place.
For many, probably a great majority, the truth didn't prevail when Simpson was tried for murder 19 years ago. One expects however that this go round -- over a seemingly inconsequential episode given who the actual "victims" of the robbery were -- the truth has probably prevailed. It's too bad, though, that the truth had to be pointed at Simpson by his own lawyer.