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Saturday, May 11, 2013
O.J. blames lawyer, not concussions

By Lester Munson
ESPN.com

O.J. Simpson apparently has decided he'll try to get out of prison by blaming his former attorney for putting him there instead of blaming the concussions he suffered when he played football.

Simpson will walk into a Las Vegas courtroom Monday and try to convince a judge that his former attorney botched his armed robbery and kidnapping defense in 2008 and an appeal two years later.

Although it's a far-fetched strategy to get a new trial, it seems a bit more plausible than the one he hatched in April 2012, when, sitting in his cell in the Lovelock Correctional Center in Nevada, he apparently saw a chance for himself in the concussion crisis building in the NFL as hundreds of former players complained that head injuries were ruining their lives.

As the players filed their lawsuits against the league, Simpson and his attorneys sought a theory that could convince a judge that his convictions for robbery and kidnapping and the resulting prison sentence of nine to 33 years were somehow unjust and that Simpson must have a new trial. Their deliberations came only a few weeks after the family of Dave Duerson filed a headline-grabbing wrongful death lawsuit asserting that the league didn't do enough to prevent the concussions that led to the disintegration of Duerson's life and his suicide.

O.J. Simpson and attorney Yale Galanter
Former NFL star O.J. Simpson says that the attorney who represented him in his armed robbery trial, Yale Galanter, right, did a poor job and that, as a result, Simpson should be granted a new trial.

That's it, they concluded, as they connected Simpson's plight to the concussion crisis. It was the concussions that did it to Duerson and to Simpson. Simpson's concussions were responsible for everything -- the day of drinking, the bizarre plan to recapture lost Simpson heirlooms, the confrontation with two memorabilia dealers in a cramped room in a down-market hotel, the arrest, the conviction and the incarceration. Simpson and his lead attorney, Patricia Palm, quickly prepared and filed in court a sworn statement in which Simpson stated that he had suffered "numerous blows to my head and/or landed on my head violently" in his four years at USC and his 11 years in the NFL.

In an echo of the claims other NFL players were making, he added, "I was knocked out of games for such head blows repeatedly in the 1970s … and other times I continued playing despite hard blows to my head during the football games."

The Simpson defense team even hired a forensic psychiatrist named Norton Roitman, a professional expert witness who, according to papers filed in Clark County District Court, was prepared to testify for Simpson that "repetitive blows to the skull can produce a neurological impairment that involves confusion and problems with judgment that can impair processing and perception."

The expert witness added, somewhat unnecessarily, that the "combination of repetitive injury and alcohol use can produce impairment beyond each element alone."

After listening to the participants in the memorabilia raid testify in Simpson's trial four years ago and hearing the audio recording of what happened in the Palace Station Hotel room at least five times, I can attest that there were substantial "problems with judgment" and some impaired processing and perception on the part of Simpson and his gang.

But, even in the world of jailhouse lawyers and post-conviction pleas for mercy in which prisoners will routinely offer risible rationales for their innocence, the idea that the concussions caused Simpson's problems proved to be a bit much.

Although Simpson and attorney Palm filed the necessary paperwork to pursue the concussion claim in the hearing that begins Monday before Judge Linda Marie Bell, they've decided to forget about the concussions and blame everything on the lawyer who represented Simpson in the investigation of the incident, the trial and the appeal.

"We did not pursue that path [the concussions] and will not present it during the hearing," Palm told ESPN.com this week.

Like so many prisoners who persist in their pleas of innocence, Simpson will try to convince Bell that his lawyer was an incompetent whose substandard work gave the jury no choice but to convict. Simpson will testify in the hearing that attorney Yale Galanter betrayed him with advice before the raid that it would be legal and later failed to advise him that the prosecution would have agreed to a two- to five-year period of incarceration in return for a guilty plea.

O.J. Simpson
O.J. Simpson was arrested in 2007 in Las Vegas because of his role in an armed robbery. He was trying to get back memorabilia he said was wrongfully taken from him.

Simpson and Palm also will offer claims that Galanter was guilty of a series of errors of technique and strategy during the four-week trial. Simpson paid Galanter $524,000 for his work during the trial, and what I saw at the trial was that Simpson received his money's worth. Galanter may not have performed at the level that Johnnie Cochran performed in the Simpson murder trial, but very few American lawyers perform at the level Cochran did. Galanter was occasionally brilliant in his cross-examinations of Simpson's accomplices in the raid, and he made the best of a bad situation in a persuasive final argument that surprised me and others who had observed the trial.

The problem for Simpson was not Galanter's performance, it was Simpson's performance before and during the raid. In an audio recording of the confrontation in the small hotel room, Simpson is heard yelling and screaming his demands for "my stuff." As you listen to the recording, there is little doubt that Simpson's men brandished guns and frisked their targets with Simpson screaming epithets and unable to complete even a single sentence without an F-bomb.

Although Simpson and his attorneys have little to offer on Galanter's performance during the trial, there is a slim possibility of success in their claims that Galanter approved the raid and that he failed to advise Simpson of a settlement offer that Simpson, after four years in the penitentiary, now says he would have accepted.

In a sworn statement, Simpson insists that he met Galanter for dinner at the Palms Resort on the evening before the robbery and told him of the plan. Galanter said during the trial, when a similar suggestion was made, that "I wasn't there [at the dinner], and I had nothing to do with it."

The Miami-based attorney has support from Thomas Riccio, a longtime Simpson hanger-on, who told the police that he never saw Galanter and Simpson together before the raid.

Even if the judge somehow concludes that Simpson is truthful in his account of Galanter's approval of the plan, it is highly unlikely that Simpson would have told the attorney that his henchmen would be carrying guns and making multiple threats to the memorabilia dealers that they would "blow their f---ing heads off."

David Roger and Chris Owens, the prosecutors who performed brilliantly in the trial, also will tell Bell that another Simpson attorney told Simpson, when asked, that he should cancel the raid.

Roger and Owens also will insist that they never made a formal offer of a plea bargain to Simpson. In an earlier hearing before Bell, Owens said there was "discussion but no offer." According to Owens, when he asked Galanter whether Simpson would accept a sentence of 30 months in prison, Galanter replied with the possibility of a 12-month sentence. That was the end of it, Owens said.

It is a bit of surprise that Simpson's post-conviction plea has progressed to this point. Bell could have dismissed it several months ago, but she instead ordered this hearing. Does her decision mean she is impressed with Simpson's stories of Galanter's pre-raid approval and a failure to report a settlement offer? It seems unlikely, but it is possible.

Whatever happens in Las Vegas, NFL players with concussion claims should feel a sense of relief that the first courtroom decision on the issue of concussions ruining lives will not come in a case pursued by O.J. Simpson.