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O.J., Stewart lawyers argue appeals

8/3/2009

LAS VEGAS -- A trio of Nevada Supreme Court justices focused
Monday on whether O.J. Simpson and a former golfing buddy received
a fair trial in a gunpoint hotel room heist and whether the case
was so unique that the two men should be freed from prison while
their appeals are considered.

"This is post-conviction. That's what concerns me," Justice
Michael Cherry declared during rare oral arguments by lawyers about
whether the former football star and co-defendant Clarence "C.J."
Stewart should be allowed to post bond while their appeals are
pending.

Cherry, the chairman of the three-judge panel considering the
bond request, didn't say how long he and justices Mark Gibbons and
Nancy Saitta might take to decide.

It appeared unlikely a ruling would come before an Aug. 12
deadline for Clark County District Attorney David Roger to file a
written answer to Simpson's appeal.

Roger, who prosecuted Simpson and Stewart, argued Monday the men
got a fair trial, a Nevada jury had spoken, and the pair should
continue to serve their sentences for kidnapping and armed robbery.

It is unusual for the Nevada Supreme Court, the state's only
appeals court, to hear oral arguments about bond, and it would be
even more unusual for Simpson or Stewart to be released. The last
such high-profile appellant to get such a chance in Nevada skipped
town after posting $100,000 in 1978.

The justices are weighing whether Simpson or Stewart might flee,
whether they pose a danger to the community, and if they have a
good chance of winning their appeals.

The question of their possible success was the key point of the
hearing, and inquiries from the justices shed light on the issues
they're considering.

The justices asked each of the defense attorneys what was
different about this case to warrant bail on convictions that
carried mandatory prison time with no option of probation.

"I've been waiting for you to use the word severance!" Cherry
declared, interrupting Stewart lawyer Brent Bryson when he said his
client "should have never been tried with Mr. Simpson."

Bryson asked the court to consider the many times before and
during trial when he asked Clark County District Court Judge Jackie
Glass to separate Stewart's trial from Simpson's.

"Her response was, 'Severance is dead,' " Bryson said.

"I was waiting for you to come up to the Supreme Court with
that," said Cherry, who wrote a benchmark high court opinion
several years ago on the issue.

Bryson, his voice rising, recalled Glass' responses as,
"'Denied.' 'Sit down.' 'We're going forward,' " and " 'You're not
going to get a separate trial.' " He told the court he believed he
couldn't divert his efforts to defend Stewart during trial to
continue to fight Glass' rulings.

"In the history of jurisprudence who else could we possibly
imagine would be more prejudicial?" Bryson asked rhetorically
about his client being tried with Simpson. "Charlie Manson, maybe?
Dahmer? Hitler? Satan? Who else sitting next to someone they have
on trial? It was extremely prejudicial."

Simpson, 62, was acquitted on murder charges in the 1994 slaying
of his ex-wife, Nicole Brown Simpson, and her friend, Ron Goldman,
in Los Angeles. After the sensational criminal trial he was found
liable for the deaths in civil court.

Simpson is serving nine to 33 years for kidnapping and assault
with a deadly weapon in the September 2007 confrontation with two
sports memorabilia dealers in a Las Vegas casino hotel room.
Stewart, 55, is serving 7½ to 27 years.

Neither was in the courtroom in Las Vegas on Monday while their
attorneys argued neither had received a fair trial.

Simpson lawyer Yale Galanter insisted that Simpson would abide
by any conditions the court set for his release, and that the NFL
hall-of-famer, actor and celebrity criminal defendant couldn't
possibly disappear.

Galanter also spoke of Simpson's uniqueness in "American
jurisprudence."

"He is probably the one individual on the planet who's got no
place to go and no place to hide," Galanter said.

Galanter, who told the court he had been making arrangements for
Simpson to live in Nevada and seek state residency, said afterward
that he was optimistic the court would free Simpson pending his
appeal.

"The trial, in all due respect to Judge Glass, was erroneous
and just a sham," Galanter said. "If ever there's someone who
deserves release it's O.J. Simpson and C.J. Stewart."