Simpson’s Peculiar Behavior Could Aid in His Defense

The thorny task of defending O.J. Simpson on charges that he murdered his former wife and her friend may have been aided by Simpson’s peculiar behavior Friday, when he failed to surrender and led police on a two-hour journey from his ex-wife’s Orange County grave site to his Brentwood home, according to legal experts.

“Somehow it seems to have generated a lot of sympathy for him,” said Loyola University law professor Laurie Levenson. “I don’t think the public will hold it against him that he took the police on this excursion, and the defense can use this bizarre behavior” to its advantage.

Other experts agreed. But they cautioned that it is likely to be at least several weeks before it becomes clear whether Simpson will maintain his innocence or decide to contend that he was mentally disturbed at the time of his ex-wife’s slaying.

“Assuming that the prosecution’s forensic evidence tying Mr. Simpson to the killings cannot be effectively undermined by defense experts, it is very likely that the defense strategy at trial will be to focus on Simpson’s mental condition at the time of the killings,” said UCLA criminal law professor Peter Arenella.

“His irrational behavior Friday may help support psychiatric testimony about his confused and disturbed state of mind at the time of the killings,” added Arenella. This evidence, he said, might be offered to reduce Simpson’s culpability from murder to manslaughter.

Still, Arenella noted that California law states that flight can be used as evidence of “consciousness of guilt.” And Dist. Atty. Gil Garcetti has made it clear that the prosecution intends to use Friday’s events to its advantage.

On Friday, after Simpson failed to abide by his prearranged surrender to Los Angeles police, his lawyer, Robert Shapiro, released a letter in which Simpson proclaimed his innocence. Shapiro has said that Simpson was at his Brentwood mansion the night of June 12, when Nicole Brown Simpson and Ronald Lyle Goldman were killed at her condominium, two miles away.

Before making a firm decision on his defense strategy, Shapiro will have to find out just how strong the evidence against his client is, according to several lawyers.

“Bob has to find out what, if anything, ties O.J. to the crime,” said Los Angeles criminal defense lawyer Donald M. Re, who is representing Simpson’s friend Al Cowlings, who has been charged with aiding and abetting Simpson’s flight on Friday.

Re said he does not know the details of the case against Simpson. But he said the evidence could include blood samples, gloves found at Simpson’s house and his wife’s condominium, and witnesses’ statements, among other things.

While he awaits that information, lawyers say, Shapiro must deal with all the negative publicity the case already has generated.

“He has to re-establish the presumption of innocence,” because his defense is off to “a terrible start,” according to attorney William Kunstler of New York, who has represented many high-profile defendants.

“The presumption of innocence has been badly damaged,” Kunstler said, although a poll on ESPN television Saturday reported that 72% of the viewers expressed the hope that the former USC and NFL football star is innocent.

Kunstler said that in many cases a lawyer can try to create a more positive image of a client by arguing vigorously that a suspect should be released on bail because the person is of good character and not a flight risk. But there is not even a dim chance that Simpson would be freed after what happened Friday, according to every lawyer The Times interviewed.

Las Vegas attorney David Chesnoff said Shapiro, at the very least, should launch a counteroffensive “to promote the idea that there has been a rush to judgment” about Simpson’s guilt in the media, based on leaks from the police.

If Shapiro ultimately decides to make a full-scale defense that Simpson is not guilty, then the forensic evidence is likely to be “a major battleground,” according to Re and others.

Samples of blood taken from the scene of the crime match Simpson’s blood type, according to police sources. Those sources also said blood samples taken from Simpson’s home match the blood type of Nicole Brown Simpson.

However, that is not proof that Simpson was involved, because millions of people have those blood types.

The police are also using DNA tests to attempt to more closely link Simpson to the crime.

If the forensic evidence turns out to be strong, Shapiro is likely to take a different approach--some sort of defense dealing with Simpson’s mental state.

“There may be sufficient extenuating circumstances to mitigate the offense to something less than first-degree murder,” according to Bradley Brunon, a West Los Angeles criminal lawyer who has tried 35 murder cases.

There was a split of opinion among attorneys about how soon Shapiro must decide which course to pursue.

“I think the lawyer has a critical decision he has to make right away,” said Robert J. Hirsh, a Tucson lawyer who is among the nation’s most successful in using the defense of temporary insanity.

The longer Simpson maintains his innocence, the more difficult it will be for him to later claim that he killed his wife “in the heat of passion” after seeing her with another man, or some similar defense, said Hirsh, who in 1982 successfully represented a man who stabbed his wife 27 times and was acquitted on the grounds that he was temporarily insane. That case was described in the book, “The Death of a Jewish American Princess.”

Arenella disagreed. “If the defense ultimately turns” on Simpson being mentally disturbed, “then all of his protestations of innocence can be viewed as the tragic attempt of a man to deny to himself the horrible act he has perpetrated,” he said.

“Viewed from that perspective, his lawyer’s statements to the media that Simpson was home at the time of the crime is simply taking his client at his word,” Arenella added.

But if Shapiro launches a mental-state defense, Simpson’s entire life becomes an open book, “everything is fair game,” said Johnnie L. Cochran Jr., a Los Angeles lawyer. Cochran said rumors that he would join Simpson’s defense team were unfounded.

Part of that open book would be whatever Simpson said in a 3 1/2-hour interview with police last week. Sources said that Simpson’s first lawyer, Howard Weitzman, advised Simpson not to speak to the police, but his advice was not heeded.

Cristina Arguedas, an Emeryville criminal defense lawyer, said that one problem with making a mental defense is that a second victim allegedly was killed by Simpson.

She said Shapiro would have to argue “that the actions against the second victim would be swept up in the heat of passion. It’s like one act with two victims.”

Another problem that Simpson faces stems from the 1989 incident in which he beat his wife. Documents released Thursday by the Los Angeles Police Department, including the original police reports of the incident, said officers found Nicole Brown Simpson cowering in the bushes, bruised and bloodied and afraid for her life.

A veteran prosecutor, speaking anonymously, noted that a 1986 decision of the California Court of Appeal said that evidence showing a history of jealousy, quarrels or antagonism between the accused and the victim of a violent offense can be used in a trial as proof of motive to commit that offense.

Despite all the problems he potentially faces at trial, defense lawyer Shapiro has one critical element in his favor, according to several attorneys.

“Perhaps the most significant aspect of this case is that you have O.J. Simpson as a defendant,” said prominent criminal defense lawyer Barry Tarlow. “He is beloved. The public does not want to accept that he committed this crime.”

Tarlow added: “He has led a decent life; he overcame adversity. He is an American icon, perhaps deservedly so. He is the most important asset you have in the case.”

Attorney Brunon agreed. “Shapiro’s client is not only well known, he’s well liked,” he said. “There is not the prejudice that is normally associated with someone who is accused of a shocking offense. Also Mr. Simpson is articulate and personable and will be able to present his side of the case in an effective manner if he chooses to do so.”

Prof. Levenson said that because Simpson is so popular, the prosecutors will have to take some additional steps if they are going to prevail.

“There are different approaches the prosecution can take,” Levenson said. “One is trying to convince the jury that there are two O.J.s--one who is the popular figure scoring touchdowns and selling rental cars, and another who has a very unpredictable and violent side. The public is just now learning about that from the 1989 (wife-beating) conviction and the allegations tying him to this case.”

Levenson said that thus far there has been considerable focus in the media about Simpson and his shattered life. “If the prosecution is going to succeed, they have to get the focus on the victim and the crime and to say no one is above the law,” she said. “That is what Gil Garcetti did in his press conference Friday,” when he announced that Simpson was a fugitive.

Prosecution, Defense Players

Here is a look at the people expected to play key legal roles in the prosecution and defense of O.J. Simpson:

THE DEFENSE

* ROBERT L. SHAPIRO

* Role: Replaced Howard Weitzman as Simpson’s lead attorney shortly after Simpson was questioned by police.

* Background: A noted criminal defense counsel to the stars, whose clients have included Darryl Strawberry, Tina Sinatra, Johnny Carson, F. Lee Bailey, Ivan Nagy, Christian Brando, former Costal Commissioner Mark Nathanson and, briefly, Erik Menendez.

* HENRY C. LEE

* Role: A world-renowned forensic scientist hired by Shapiro to review findings.

* Background: A native of China and former police captain in Taiwan, Lee is director of Connecticut’s State Police Forensic Science Laboratory. He has investigated more than 5,000 homicides and was retained by lawyers in the William Kennedy Smith rape trial. At New York University, he earned a master’s degree in science and a doctorate in biochemistry. He has assisted investigations in all 50 states and about a dozen countries. He testifies at about 100 trials a year, and sometimes three trials in one day.

* DR. MICHAEL BADEN

* Role: New York State Police pathologist hired by Shapiro to review findings of the Los Angeles County coroner’s office.

* Background: Former chief pathologist for New York City, now works for the New York State Police as a forensic scientist.

THE PROSECUTION

* MARCIA CLARK

* Role: Lead district attorney assigned to the case, before an arrest was made.

* Background: As deputy district attorney, she prosecuted Albert Lewis and Anthony Oliver, who were sentenced to death for the shotgun murders of two worshipers inside a church in 1989. Prosecuted Robert Bardo, who stalked “My Sister Sam” actress Rebecca Schaeffer and shot her to death. A more recent case was the prosecution of two Russian immigrants for the shooting deaths of two of their countrymen, whose fingers and thumbs were hacked off after the murder. Graduated from UCLA and Southwest University School of Law.

Solving the Crime

Investigators are looking at several types of evidence in the slayings of Nicole Simpson and Ronald Lyle Goldman. O.J. Simpson, arrested in the slayings, maintains that he had nothing to do with the crime.

THE INVESTIGATION

Police sources say:

* Bloodstains at the scene of the crime include samples with a blood type that matches Simpson’s.

* Bloodstains in a sink at Simpson’s home match the blood type of Nicole Simpson.

* A matching pair of gloves, one found at the murder scene and one outside Simpson’s home, are being examined.

* Clothing and shoes taken from Simpson’s home are being examined for blood and to see whether the shoe treads match tracks at the scene.

* Bloodstains from upholstery from Simpson’s Bronco are being examined.

* A jogger passing through the neighborhood just before the time of the killings spotted a car that she said resembles Simpson’s Bronco.

* Interviews with friends and family of Nicole Simpson--as well as Simpson’s note to the public--reveal details about the relationship between the athlete and his ex-wife. One key detail: O.J. and Nicole Simpson had recently given up the hope of reconciling, which detectives suspect may have been the motive for the killing.

A KEY QUESTION

How did the murderer or murderers manage to kill Nicole Simpson and Goldman without either of them making enough noise to draw the attention of neighbors? Police are trying to re-create the crime in detail in order to answer that question.

SIMPSON’S STANCE

* Simpson’s lawyer, Robert Shapiro, says his client was at home waiting for a limousine when the murders occurred. Police have interviewed the limousine driver, who may be able to prove or disprove that contention.

* Simpson, in a letter read at a news conference Friday, maintained his innocence: “First, everyone understand I had nothing to do with Nicole’s murder. I loved her, always have, and always will.”

NEXT

Investigators will continue testing the blood samples for DNA matches. That process is far more definitive than blood typing. Prosecutors will present their evidence to a grand jury, seeking Simpson’s indictment.