O.J. Simpson seeks new armed robbery/kidnapping trial

By Melissa Arseniuk

Published Friday, Oct. 10, 2008 | 3:27 p.m.

Updated Friday, Oct. 10, 2008 | 6:34 p.m.

O.J. Simpson wants a new trial.

The Heisman Trophy winner's lawyers on Friday cited seven reasons in a formal motion for a new trial that they believe serve as ground to have their client's 12 kidnapping, weapons, and robbery-related convictions overturned.

Simpson and his co-accused, Clarence "C.J." Stewart, were convicted on Oct. 3 following 14 dramatic hours of jury deliberations. Both have been held in isolation at the Clark County Detention Center ever since the jury returned their late night decision.

Documents filed Friday by Simpson's Las Vegas-based attorney, Gabriel Grasso, state that the court erroneously denied Simpson's challenges, restricted questioning, violated his Sixth Amendment rights by improperly restricting cross-examination of witnesses, and provided inaccurate jury instructions.

In all, Grasso provided seven reasons why he believed his client should be granted a new trial.

He and his co-counsel, Yale Galanter, represented Simpson throughout the month-long proceedings at the Regional Justice Center.

Friday's filing suggests prosecutors intentionally removed the sole African American from the pool of potential jurors. "If the state uses its preemptories to exclude African Americans from the jury in a discriminatory manner, then they have violated the defendant's rights under the Equal Protection Clause of the 14th Amendment," they said.

Though Chief Deputy District Attorney Christopher Owens and District Attorney David Roger said they had "race neutral" reasons for ejecting potential jurors 060209 and 060177 - one was a pastor and the other was also deeply religious - Simpson's lawyers argued that the State simply wanted to exclude as many blacks from the jury as possible.

Both of the defendants are African American, and a predominantly black jury acquitted Simpson in 1995 of double-murder.

The jury that delivered the unanimous guilty verdict last week had no African Americans on it, though two blacks, one man and one woman, were standing by as potential jurors in the alternate panel.

District Court Judge Jackie Glass' refusal to allow attorneys to ask potential jurors about their feelings regarding Simpson's previous civil and criminal cases was also cited as sufficient reason to grant the former All-Star running back a new trial.

"Although the court allowed defense counsel to question potential jurors on their general opinion ... the court restricted questioning to whether or not the potential juror could set aside their feelings," the filing states. "Further examination of the jurors who expressed that they believed Mr. Simpson was guilty of unrelated offenses was necessary to determine whether they were concealing a bias, or whether the amount of attention that they have paid to Simpson's past cases was so great that it rendered impartiality impossible."

Five of the 12 jurors who last week delivered Simpson's guilty decision previously indicated that they disagreed with the verdict 13 years ago.

In a strange twist of fate, the NFL Hall of Famer was remanded into custody on the 13th anniversary of his double-murder acquittal. Jurors later said that there was no "payback" involved and that it was a total coincidence that they convicted Simpson on the anniversary of his first high-profile trial.

Grasso and Galanter disagreed, and cited juror bias as one of the reasons they believed their client was wrongfully convicted. They also said they will appeal whatever sentence their client receives in an effort to have him exonerated.

Simpson has maintained that when he and six others entered the Palace Station on Sept. 13, 2007, they did so intending to retrieve personal items that had belonged to him. While other items not belonging to Simpson were taken during the run-in with memorabilia dealers Bruce Fromong and Alfred Beardsley, the defense maintained that the property was removed by mistake.

A secret audio recording of the six-minute altercation captured by middleman Thomas Ricco includes several instances where Simpson and others can be heard promising to return any items that didn't belong to them.

Despite Simpson's apparent efforts, several items that did not belong to him were taken, including 24 baseballs autographed by MLB legends Pete Rose and Duke Snider, dozens of Joe Montana lithographs, Fromong's cell phone and Beardsley's sunglasses.

While ownership is not a factor in robbery under Nevada law, Simpson's lawyers argued Friday that jury instruction 20 wherein jurors were told "a good faith belief of a right or claim to the property taken is not a defense to the crime of robbery" was not an accurate reflection of the law. This was yet another reason they cited as grounds for a new trial.

"In this case, Simpson's good faith belief that he was reclaiming his own property serves to negate the general intent element of the offense," they said. "If the jury found that Simpson intended to reclaim his own property and that in doing so he did not believe what he was doing was wrong, he could not have the intent to do that which the law prohibits."

The filing suggested that the so-called "inaccurate" juror instruction "prejudiced" the jury and prohibited them from effectively determining whether or not Simpson had the "men's rea," or criminal intent, to commit robbery.

Simpson's lawyers also asked for their client's kidnapping charges be dropped because of an apparent lack of evidence linking the kidnapping to the robbery.

Glass' 21st instruction to the jury specifically states, "In order for you to find the defendant guilty of both first-degree kidnapping and an associated offense of robbery, you must also find beyond a reasonable doubt either a) that any movement of the victim was not incidental to the robbery, 2) That any incidental movement of the victim substantially increased the risk of that hard to the victim over and above that necessarily present in the robbery; 3) The movement or restraint had an independent purpose or significance."

Kidnapping in Nevada includes the seizure or confinement of a victim against his or her will and without their consent. Simpson could be heard shouting, "Don't let nobody out of this room," during the altercation, which in turn was used as evidence that he and the others were effectively holding Fromong and Bearsley captive in the Palace Station hotel room that day.

In his filing, Grasso argues that Glass disallowed him and Galanter from conducting full and proper cross-examinations of witnesses when she prohibited them from asking questions that would have called the witnesses' credibility into question.

An example of such an instance was state witness Walter Alexander, who claimed he made his living in real estate. The defense said they had evidence that Alexander was actually a pimp, but Glass told Grasso and Galanter that Alexander's occupation was off-limits.

Simpson's lawyers initially tried to have Alexander impeached and argued that if the witness was blatantly lying to police, the court and in sworn statements, the jury should be allowed to know that. The judge, however, disagreed.

"Whether he's a real estate agent, a truck driver, a dog catcher, or anything else, and whether he admitted that he was or wasn't a pimp, doesn't go to his motive for testifying in this court," she said.

Glass' reluctance to share Simpson's central theory of his defense and explain relevant lesser charges of which he could have been convicted instead of the original charges (larceny instead of robbery, and second-degree kidnapping instead of first-degree kidnapping) were also cited as reasons for a new trial.

Stewart's lawyers have also filed documents asking for another trial. They have repeatedly requested their client be tried separate from Simpson and have already appealed previous decisions to the Nevada Supreme Court.

More than a dozen motions to sever were made during the month-long jury selection and trial proceedings, all of which were denied.

The state has 10 days to reply to Friday's filings.

Though a hearing date was originally set for later this month, court information officer Michael Sommermeyer said the date would be pushed into early November because of the judge's previously-scheduled vacation.

Glass has a cruise booked for Oct 18 and is not expected to return to the Clark Country Regional Justice Center until the first week of November, Sommermeyer explained.

Glass will rule on the motion when she returns to the bench next month.

Simpson, 61, and Stewart, 54, were both convicted of all 12 charges they originally faced. They will be sentenced on Dec. 5 and could spend the rest of their lives behind bars.

First-degree kidnapping with a deadly weapon, of which both men were convicted of on two counts, carries a possible life sentence with no chance of parole for five years, or a definite sentence of 15 years. Most other charges carry one to two-year minimum sentences, though it is unknown whether or not they will be allowed to serve their sentences concurrently.