If common sense is factor, then O.J. co-defendant might have chance

The state Supreme Court works in a world of case law and facts, procedure and precedent, and that's as it should be.

But in the court of my opinion, sometimes common sense should trump case law.

I was reminded of that as I listened Monday to arguments for post-conviction bail before a three-justice Supreme Court panel on behalf of O.J. Simpson and C.J. Stewart. Justices Michael Cherry, Mark Gibbons and Nancy Saitta listened as defense attorneys Yale Galanter and Brent Bryson spoke on behalf of Simpson and Stewart, respectively.

District Attorney David Roger countered arguments that Simpson and Stewart deserved to receive bail pending their appeals of robbery and kidnapping convictions in connection with the 2007 confrontation in a Palace Station hotel room over the former football star's memorabilia. Simpson was sentenced to nine to 33 years, Stewart to 71/2 to 27 years.

The thoughtful justices will make their determination on the bail issue in a few weeks, no doubt dovetailing it into their work on the larger appeal issues. There are mounds of facts and substantial case law to weigh.

But there is also common sense to consider.

Going on horse sense alone, Stewart should be granted a new trial because District Court Judge Jackie Glass failed to sever his trial from the notorious Simpson. Frankly, I don't think Mother Teresa of Calcutta could receive a fair trial sitting next to the guy.

It's probably unwise to read too much into the justices' language and tone, but I was left with a couple of impressions:

First, the panel clearly indicated it was willing, perhaps even eager, to consider Bryson's solid severance argument on behalf of Stewart. Few co-defendants, Bryson said, could have been worse for Stewart: "Charlie Manson, maybe? Dahmer? Hitler? Satan?"

His hyperbole raised a salient issue. If you find yourself next to O.J. Simpson in a criminal trial, you're in a lot of trouble. The chance of picking up a certain notorious stench is all but guaranteed.

Bryson estimated he raised the issue of severance 40 times at trial, but Cherry wondered why he hadn't appealed to the state's high court during the tempestuous criminal proceeding.

When I asked Bryson why he hadn't appealed for severance during trial, he said, "We were in high gear trying this case."

Galanter appeared sincerely dismayed at the predicament of Stewart, who has been described as no better than a bit player in the sordid affair.

"I think the fact C.J. Stewart is in prison is just horrible," he said.

For his part, Galanter argued the "quality and strength" of the evidence were suspect, jury selection was flawed, and the trial judge's errors give his client an excellent chance to win a new trial. But he had no strong comeback for Roger's retort that Simpson was captured on video and audiotape and buried by witnesses as the ringleader of "The Gang That Couldn't Think Straight."

Now, for the second intriguing possibility to emanate from Monday's hearing: Did I detect a ray of daylight from the court regarding Simpson's kidnapping conviction?

If it were to be overturned, Simpson might have a chance to celebrate a birthday on the outside while he can still blow out the candles.

"I think the trial, with all due respect to Judge Glass, was a sham," Galanter said, once again showing a lack of due respect for Judge Glass.

If Galanter sought encouragement from the court on the bail issue, I don't think he found it. He argued in part that Simpson, because of his international celebrity, was no flight risk.

"If there was ever anybody who deserved a bond, it's O.J. Simpson," Galanter said.

I'm sure the justices had their minds on loftier legal thoughts, but I couldn't get the image of a certain white Ford Bronco out of my head. And when Roger argued that Florida resident Simpson, despite the confiscation of his passport, could easily hop a boat and be in a foreign country, I wondered if Broncos came in amphibious models.

"He's probably the one individual on the planet who's got nowhere to go and nowhere to hide," Galanter said.

It was a nice try.

If it's any solace, counselor, that argument wouldn't have worked for Manson, Dahmer, Hitler or Satan, either.

John L. Smith's column appears Sunday, Tuesday, Wednesday and Friday. E-mail him at Smith@reviewjournal.com or call (702) 383-0295. He also blogs at lvrj.com/blogs/smith/.