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 7 1/2 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."