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O.J. Simpson back in court; Day 4 of bid for new trial

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Steve Marcus

O.J. Simpson listens to testimony at an evidentiary hearing in Clark County District Court Thursday, May 16, 2013. Simpson, who is currently serving a nine-to-33-year sentence in state prison as a result of his October 2008 conviction for armed robbery and kidnapping charges, is using a writ of habeas corpus to seek a new trial, claiming he had such bad representation that his conviction should be reversed.

Updated Thursday, May 16, 2013 | 3:30 p.m.

O.J. Simpson Hearing Day 4

O.J. Simpson appears at an evidentiary hearing in Clark County District Court on Thursday, May 16, 2013. Launch slideshow »

The lead defense attorney in O.J. Simpson's armed robbery trial had a conflict of interest because he could have been a witness in the case, a lawyer who worked on Simpson's unsuccessful appeal to the Nevada Supreme Court testified Thursday.

Witness Malcolm LaVergne said that defense attorney Yale Galanter's conflict was that he had given Simpson legal advice regarding his plan to confront sports memorabilia dealers at a Las Vegas hotel in 2007 and take back what he believed was his property.

"Mr. Galanter may not have agreed with it, but he enabled him to do it," LaVergne said during a hearing on Simpson's bid for a new trial.

Simpson testified earlier that Galanter told him he was within his rights to take back his property as long as there was no violence and he didn't trespass. "I followed what I thought was the law," the 65-year-old former NFL star and actor said Wednesday in his first testimony about the Las Vegas incident.

LaVergne said that had Galanter's involvement been known he would have had to declare a conflict of interest and step out of the case. In addition, he said, Galanter's exorbitant fees meant he was putting his own financial interest ahead of the interest of his client.

"From what I know now, absolutely. There's no doubt about it," LaVergne said under questioning by Simpson lawyer Patricia Palm.

LaVergne took over as Simpson's local counsel for an appeal in 2010, after another Las Vegas lawyer bowed out in a dispute over fees with Galanter, a Miami-based attorney who is scheduled to testify Friday.

LaVergne said he found Galanter wasn't open to any suggestions in the case.

"Yale was going to have it his way," LaVergne testified in the fourth day of hearing before District Judge Linda Marie Bell, who will determine whether Simpson was improperly represented in 2008 and deserves a new trial.

Simpson is serving a sentence of nine to 33 years in prison.

The focus since Monday has been on Galanter's promises, payments and performance while representing Simpson at trial and staying with the case through oral arguments in a 2010 appeal that was rejected by the Nevada Supreme Court.

"Mr. Simpson was very cordial to Mr. Galanter, and Mr. Galanter ran the show," LaVergne said, recalling his first meeting with the two.

LaVergne said Simpson went along with what Galanter wanted. But he said he later found out that Simpson was unaware of any of the legal issues being raised in his appeal and had not seen copies of the briefs submitted on his behalf.

LaVergne said Simpson wanted him and Galanter to split oral arguments before the state high court, but Galanter rejected that.

Palm entered into evidence about seven pages of June 2010 emails between the attorneys about the issue.

LaVergne recalled that at one point in the exchanges, he told Galanter he was being "disrespectful" to him and Simpson. He said when he reported later to Simpson that Galanter made the oral presentation, Simpson was surprised.

Palm asked LaVergne if Galanter ever discussed "a conflict in his representation" with Simpson, and LaVergne said no.

"I was concerned," LaVergne said. "The biggest concern was that Mr. Simpson's appeals were not going well and another set of eyes could look at his case."

After the appeal was denied, Galanter wanted to skip any other possible state appeals and go directly to federal court, witnesses have asserted.

LaVergne said that was when Simpson broke with Galanter.

On Wednesday, Simpson testified that LaVergne and "jailhouse lawyers" were telling him at the time that he was throwing away his last chance to claim ineffective counsel.

Earlier Thursday, there was testimony by a lawyer who has hounded Simpson to collect a multimillion-dollar civil judgment after Simpson's "trial of the century" acquittal in the 1994 stabbing deaths of his ex-wife, Nicole Brown Simpson, and her friend, Ron Goldman.

Attorney David Cook said items taken in the hotel room heist didn't really belong to Simpson.

Cook, testifying for the state, said his client, Ron Goldman's father, still has ownership rights to nine airless "game" football mementos that a California judge ordered returned to Simpson in 2009.

"We have some right to the footballs if they appear on the market," Cook said.

But Simpson testified Wednesday he would never sell what he termed his "stuff." His lawyer Ozzie Fumo, on cross-examination Thursday, made Cook concede that the footballs were returned to Simpson's attorney — along with neckties, awards and an autographed photo of Simpson with former FBI Chief J. Edgar Hoover.

Cook has been representing Fred Goldman since 2006 in efforts to collect a share of a $33.5 million judgment awarded in February 1997 to the estates of his son and Nicole Brown Simpson.

H. Leon Simon, attorney for the state, called Cook to the stand to rebut Simpson's testimony that he only wanted to retrieve personal belongings when he and five men confronted the sports collectibles dealers.

Outside court, Cook said the original judgment of $19 million to the Goldman estate, with accumulated interest, is now more than $45 million. He said only some of it has been recovered.

"This is an eternal odyssey," Cook told The Associated Press. "There is no closure here. Fred Goldman rejects closure."

The state on Thursday also called a psychiatrist, Dr. Gregory Brown, to rebut testimony from a psychiatrist, Dr. Norton Roitman, who suggested that Simpson's perception of what happened in the hotel room may have been narrowed by sleeplessness, stress and the effects of several hours drinking alcohol before the confrontation.

Brown said he saw no obvious evidence that Simpson was impaired.

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  1. OJ says -- His lawyer advised him he could not be convicted.

    My comment - No attorney in his right mind would say that... in the worst case it's a he said / she said issue... can't be proved unless you have a witness or something in writing.

    OJ says -- It was my stuff. I followed what I thought was the law.

    My comment - It does not matter what you think, it's what you do. Any idiot know you can't go into a private place and remove property that is claimed and is actually up for sale by someone else. The only legal way to recover alleged stolen property is to contact the authorities. And given OJ was recorded as saying "Don't let nobody out of here" (Kidnapping)... well, that's what sealed his fate.

    OJ says -- He was never told that Galanter was having ...discussions...about a potential plea deal

    My comment - He said / she said ... no way to prove it either way... and OJ does not have a stellar character (not anymore, anyway).

    OJ says -- Simpson did acknowledge...that he didn't have a legal right to take some things...that didn't belong to him.

    My comment - That's robbery (armed robbery because of the guns).

    Can't wait until Galanter comes to the stand.