Early Setbacks Put Prosecution on the Defensive

O.J. Simpson’s defense team had two dramatic victories this week, the dismissal of a grand jury and the grudging public admission by a prosecutor that a potentially key piece of evidence--a bloody ski mask--does not exist. These developments have put the prosecution on the defensive, but their long-term impact remains unclear, legal experts say.

On Friday, Los Angeles County Superior Court Judge Cecil J. Mills dismissed the sitting grand jury because members may have been tainted by hearing television broadcasts of 911 tapes from last October in which a man identified as Simpson is heard screaming at his wife. Mills said he dismissed the grand jury to protect Simpson’s rights to due process of law.

Defense attorney Robert L. Shapiro said he was pleased by Mills’ decision and that he looked forward to starting a preliminary hearing in the case Thursday, something he first asked for at Simpson’s arraignment earlier in the week.

Several attorneys and law professors said that Mills’ action is unprecedented. They also said his decision and other developments this week shifted the short-term momentum of the case in Simpson’s favor.

The developments also show that the high-powered defense team Shapiro has assembled is having an effect. He consulted with famed Boston criminal lawyer F. Lee Bailey and Harvard law professor Alan Dershowitz as well as with Santa Clara University Law School Dean Gerald Uelmen in preparing Friday’s motion on the grand jury.

In the brief, defense lawyers cited a landmark Supreme Court decision that Bailey won, reversing the murder conviction of a Cleveland doctor because of unfair publicity. In that case, Bailey said, the prosecutor “repeatedly made evidence available to the news media that was never offered at trial.” Shapiro contends that his client has already been victimized by leaks of misinformation that will never see the light of day in court.

Mills’ action means that Dist. Atty. Gil Garcetti “will be forced to show his hand at a preliminary hearing next Thursday, something he obviously wanted to avoid by presenting the case to a grand jury,” said UCLA law professor Peter Arenella.

“Mr. Shapiro now has an opportunity to get a firsthand look at some of Mr. Garcetti’s trial witnesses and trial evidence, as well as an opportunity to cross-examine some government witnesses,” which cannot be done in a grand jury hearing.

Veteran Los Angeles criminal defense lawyer Janet Levine agreed. She said the defense lawyers could begin questioning the police about forensic evidence and how it was gathered. “You start to ask about blood splatters. How many officers were on the scene? Where were they stepping? Did any of the police officers have cuts? You can start to create doubts about the evidence,” Levine said.

Garcetti tried to put a distinctly different spin on Friday’s events. He said he had initiated the process that eventually led to the dismissal of the grand jury. He said he went to Mills because he was concerned about the “pervasiveness of the coverage” in the case. “I’m interested in justice.”

But some lawyers challenged Garcetti’s statement that he acted nobly. “Despite his efforts to backpedal and avoid responsibility, Garcetti has to recognize that his morally and strategically bankrupt approach to this case is to blame for this fiasco,” said Barry Tarlow, a Los Angeles criminal defense lawyer. He referred to the district attorney’s frequent television appearances, including ones in which he speculated that Simpson might eventually admit killing his ex-wife, Nicole Brown Simpson, and her friend Ronald Lyle Goldman but would claim a defense similar to that of the Menendez brothers.

Still, some experienced criminal lawyers said that Friday’s events might not impair the prosecution in any major way. They stressed that the district attorney’s office did not have to present “that much evidence (at a preliminary hearing) to bind someone over for trial.”

Additionally, the prosecutors may get a “first look at how well their witnesses fare on cross-examination,” said Los Angeles criminal lawyer Bradley W. Brunon, who has defended 35 accused murderers. He also said “some of the defense’s strategy may become apparent in the preliminary hearing.”

Stanley Goldman, a Loyola University law professor, also said it is likely negative information about Simpson would emerge publicly at a preliminary hearing, and that this would benefit the prosecution.

Moreover, as a result of a 1990 ballot initiative, Proposition 115, police officers and certain other individuals can give hearsay testimony at a preliminary hearing. This means, for example, that an officer can relate what another individual told him--something that cannot be done at a trial.

Levine said a preliminary hearing in the Simpson case might last a week, and would not be nearly as long as the one in the McMartin Pre-School case, in which proceedings dragged on for months.

Earlier this week, the defense was able to gain another advantage.

Shapiro, in his first courtroom effort to get information turned over by prosecutors, asked if the prosecution had provided everything in its possession. Deputy Dist. Atty. Marcia Clark said yes and referred Shapiro to a list of material turned over to the defense.

Shapiro, knowing what was on that list, then went out of his way to note the discrepancies between what the prosecution had turned over and information that had been provided to the news media. “So then there is no ski mask?” he asked, referring to media accounts that investigators had found a bloody ski mask at Simpson’s house.

Clark responded that papers given to Shapiro listed all the evidence in the district attorney’s possession. Then, Municipal Court Judge Patti Jo McKay asked Clark, “So you are saying there is no ski mask?”

Clark responded, “There is no ski mask.”

Shapiro had hammered home the point that a potentially devastating piece of evidence did not exist and cast doubt on the existence of other evidence that has been leaked by the police, Arenella said. “He reminded the community that they can’t believe everything they read in the newspapers or see on television,” Arenella said.

The prosecution suffered another embarrassment this week when it was forced to drop a witness, Jill Shively, who had been paid by a tabloid television show for an interview. Shively had testified before the grand jury. On TV, she said that she had seen Simpson driving near his ex-wife’s condominium at a time when he claimed he was at home, waiting for a limousine to take him to the airport.

Criminal defense lawyer Marcia Morrisey said she was not sure how significant a loss Shively is to the prosecution. “Any witness that will . . . go out and be paid by a TV tabloid show is not a very good prosecution witness,” because her motives can be easily impeached, Morrisey said.

On the other hand, some attorneys said the fact that the district attorney’s office did not seem to know that Shively had been paid for her interview was a sign that prosecutors clearly did not have sufficient control over their witness, and that this could be a harbinger of other problems.

“Increasingly, you can rely on the district attorney’s office to help your case,” said defense lawyer Danny Davis, who successfully represented Ray Buckey in the McMartin Pre-School case.

The ultimate legal significance of the 911 tapes that led to Friday’s dramatic court hearing remains unclear, and any attempt by prosecutors to use them at trial will be contested by the defense. said

The basic issue on the tapes’ admissibility is whether their value as evidence exceeds the potentially prejudicial impact they could have on the jury, according to Brunon.

“The general rule is you can’t discuss previous incidents just to show the defendant has bad character, but if it is relevant to motive or intent it can be admitted,” said Los Angeles criminal lawyer Harland W. Braun. “And in recent years, California courts have become more lenient about admitting such evidence.”

Times staff writers Richard Lee Colvin, Andrea Ford and John L. Mitchell contributed to this story.