A MATTER OF JUSTICE : Preparing the Defense : Assembling a Team and Devising a Strategy to Defend Simpson

For more than a week, the case of The People of the State of California vs. O.J. Simpson has been hijacked by the media’s helicopters, mobile units and kleig lights. Restoring law and order to the proceedings is now a must. Toward that end, Simpson’s attorney, Robert L. Shapiro, must now assemble a strong legal team to defend against charges that carry sentences of life in prison without parole or even the death penalty.

On the prosecution side, Dist. Atty. Gil Garcetti, in a break with his predecessors’ track record, has chosen the “right” attorney for the job. Many consider Deputy D.A. Marcia R. Clark the best of the current generation of prosecutors. Yet, Garcetti’s choice of Deputy D.A. David P. Conn to work with Clark also points up the lack of depth in the prosecutor’s office: Conn was preparing for the Menendez retrial.

Garcetti must recognize that not only Simpson’s fate is at issue in this case. Already, Garcetti and Shapiro have aggressively pursued trial by media, with neither exercising much restraint in seeking to influence potential jurors.

The release last week of 911 tapes purportedly revealing Nicole Brown Simpson’s attempts to deal with her angry ex-husband represented a despicable new low in this war to manage public opinion. Not only are the tapes inadmissible in court. They also falsely suggest that past domestic problems can predict a future murder. And in an unprecedented action late last week, Presiding Superior Court Judge Cecil Mills, concerned that all the pretrial publicity may have tainted its deliberations, dissolved the grand jury considering Simpson’s indictment.

Money, usually a problem in presenting a defense, may, in this case, crimp the prosecution. Shapiro’s client is a multimillionaire--the judge in Simpson’s 1992 divorce from Nicole valued his estate at $10 million. The defense bill will easily start at a million dollars. By contrast, Garcetti’s budget is so tight that many hard-core D.A.’s were transferred to the Family Support Division last year because that unit receives federal matching funds. Taxpayer cost, at a minimum, will be about $500,000, if the trial runs 50 days. This figure does not include security expenses, which could run as high as $250,000.

It is unclear whether the prosecution’s case rests solely on circumstantial evidence or whether there are witnesses who can place Simpson at or near the crime scene. Highly important is what Simpson told the police after he returned from Chicago, since it may be inconsistent with the physical evidence and undercut his defense.

In legal circles, Shapiro is considered a consummate diplomat, an exceptional negotiator and a mensch whom people instinctively like on being introduced. He is also a good trial lawyer who has never tried a potential death-penalty case. Death is different--always.

By contrast, Clark “made her bones” last year when she obtained a death sentence against Albert Lewis and Anthony Oliver for murdering two worshipers in a South-Central church. Before that, she successfully prosecuted Robert Bardo, who stalked and killed actress Rebecca Schaeffer. Clark made her major-player debut as second chair in the murder prosecution of James Hawkins Jr., once celebrated, along with his Watts grocer father, for their running battle against street gangs.

Clark has a reputation for toughness. Superior Court Judge Marsha N. Revel, who presided over the nine-month Hawkins trial in 1987, considered it the single ugliest judicial proceeding she has ever participated in.

In assembling his defense team, Shapiro must play to his and Simpson’s strengths and weaknesses. His first question is “What are the rules of engagement?” Shapiro has stated Simpson is innocent in the murders of his wife, Nicole, and Ronald Lyle Goldman. From that premise, the objective is acquittal by a jury rather than conviction of a lesser offense. What follows is based on preparing for this objective.

On his legal team, Shapiro needs a fighter, a writer and a “rabbi.”

The fighter . Shapiro must be the offensive strategist but the first half of a criminal trial is pure defense. His strength is that people tend to believe him. His “fighter” must be skilled in making people disbelieve the prosecution.

On defense, there is a single objective: Destroy the wall of evidence that the prosecutor has built. The job: make sure that no day is a good day for the D.A. Job requirements: a) be a good second --the second chair should be invisible, unless Shapiro wants it otherwise; b) good “chemistry”--unlike non-capital cases, death lawyers usually work in teams, and the good teams are virtually telepathic, creating a whole far more powerful than either defender can create separately; c) experienced in defending murders where pathology (dead bodies), serology (blood) and tool-mark identification (what was the weapon?) are central issues in the evidence, and d) a long history of defending in capital trials.

In a CNN interview Friday, F. Lee Bailey said he and Alan M. Dershowitz are joining the Simpson defense team as consultants. The two are perhaps the best-known criminal defense attorneys in the United States. Bailey’s clients have included Patty Hearst and “Boston Strangler” Albert DeSalvo. Dershowitz’s clients have included boxer Mike Tyson and socialite Claus von Bulow.

Lawyer Robert G. Kardashian, a longtime friend of Simpson’s, who read aloud the long letter written by the former football player, could also play a key role in the defense effort. He would probably be most effective as a “translator”--interfacing between his old friend and the lead lawyers.

The writer. Pretrial motions and writs to appellate courts are critical in murder cases, especially high-profile potential death-penalty cases. For this job, Shapiro has chosen Gerald F. Uelmen, retiring dean of the University of Santa Clara Law School and a highly respected criminal-constitutional scholar. Job requirements: a) a photographic memory for appellate cases; b) an instinct for seeing where legal problems develop, and c) an ability to make the prosecutor hear the footsteps of “reversed for misconduct” in the background, and cause her to drop the ball.

The rabbi . This is the person who Shapiro will call at 1 a.m. to talk to and get advice. Generally, defense attorneys perform this function for each other as a courtesy. In Simpson’s case, however, Shapiro may want to have a “rabbi” in waiting. The pressure on him is almost unprecedented.

The mandatory “special teams” for cases like Simpson’s include a jury consultant, pathologist, criminalist, tool-marks specialist, psychiatrist (although this tips a change in defense strategy) and investigators. The pathologist--Dr. Michael M. Baden, former chief medical examiner of New York City--and serologist--Dr. Henry C. Lee, director of the Connecticut state police forensic science lab--have already been chosen. Shapiro may pair up Lee with Carol Hunter and Steve Schliebe at the California Laboratory of Forensic Science in Tustin. Among defense lawyers, the two have provided the laboratory of choice. They also have a record of instinctively knowing what law enforcement may be withholding.

The choice for jury-selection specialist would seem to be obvious. Jo-Ellan Heubner Demetrius has played this role in one successful case after another for three years, most recently in the trials of Rodney G. King and Reginald O. Denny. Focus groups and shadow juries should soon be forming.

Tool-mark experts (whether instrument “A” caused mark “B”) can be critical, because they deal with identifying weapons. One of the best is considered to be retired LAPD Sgt. David Butler, who ran the department’s ballistics and firearms laboratory.

Finally, there are the investigators. Zvonko G. (Bill) Pavelic, Shapiro’s investigator, has a reputation for thoroughness and dedication. He may be supplemented by a retired LAPD homicide detective, such as Marvin G. Engquist, since defense lawyers regard the LAPD as infamous for playing hide-the-ball with evidence.

So far, the legal skirmishing between the two sides has involved whether an indictment will be obtained. With the dismissal of the grand jury last week, the next step will be a preliminary hearing, which is, by nature, adversarial, set for June 30.