After failing in its long-shot bid to suppress highly damaging evidence, O.J. Simpson's defense team vowed Thursday to challenge a judge's ruling on that issue if the former football star is placed on trial for murder, but legal experts predicted that that will be an uphill battle too.
"The care with which the judge conducted the hearing and made her findings makes it unlikely her ruling will be overturned as the case proceeds," said Loyola University criminal law professor Samuel A. Pillsbury.
Although some defense lawyers said the decision was vulnerable, many others agreed with Pillsbury. So did Orange County Deputy Dist. Atty. E. Thomas Dunn, who specializes in evidence issues. "The chance of the defense getting a reversal of this ruling in Superior Court is virtually nil," he said.
Several lawyers said Simpson's attorneys had taken a major risk by filing a motion to keep out evidence at this stage of the case because Municipal Court judges rarely grant such requests.
"To make a motion like this so early is extremely chancy because so much more information is going to develop" that could have helped the defense had it filed later, said San Francisco defense lawyer Doron Weinberg.
Weinberg and others said the defense team may have made the bold move because they are attempting to start the trial in "the court of public opinion" and wanted to raise as many doubts as possible about the prosecution's case as early as possible before a huge audience of potential jurors watching the proceedings on television.
"My suspicion is the defense felt they needed some weapons, as a public relations gesture and as a matter of case strategy and momentum," Weinberg said.
Nonetheless, he said the defense is now in a better position to assess the strength of the prosecution's case, knowing that blood splatters found in the driveway of Simpson's estate, a bloody glove found on the grounds of the estate and blood found on the door handle of the former football star's white Ford Bronco will be admitted into evidence, barring a reversal of Judge Kathleen Kennedy-Powell's decision.
Despite the prosecution's victory, Los Angeles defense lawyer Janet Levine said the defense still could prevail somewhere along the line. "Sometimes, when you are on the defense, you only have to win one time and it doesn't matter where, but the prosecution has to keep winning."
A challenge to Kennedy-Powell's ruling would be bound by the record of testimony introduced on the suppression motion during the preliminary hearing. Defense lawyers will not be able to call any new witnesses or introduce any new evidence unless they can demonstrate exceptional circumstances, according to a section of the California Penal Code.
Conceivably, Simpson's lawyers could argue that important information was not available to them at the time of this week's first hearing, said Los Angeles defense lawyer Barry Tarlow.
Because Simpson's preliminary hearing was held so soon after the crime, "it's reasonable to believe" that such information may come to light, and that may give defense lawyers a better shot at presenting new evidence in a Superior Court hearing on the search, said San Diego defense lawyer Elizabeth Semel.
However, several experienced defense lawyers said they had never won an "exceptional circumstances" motion.
Perhaps more significant for both sides, Kennedy-Powell's decision appears to pave the way for prosecutors to use all the evidence they now have at trial--including evidence gathered by police officers inside Simpson's house after they obtained a search warrant about 10 hours after the discovery of the bloody bodies of Nicole Brown Simpson and her friend Ronald Lyle Goldman outside her Brentwood condominium.
"This is the most critical decision on the admissibility of evidence," Pillsbury said. "Even though the warrant evidence wasn't litigated at the preliminary hearing, it will probably stand or fall on the initial search because they're all connected."
Thursday's decision covered only a portion of the motion filed by defense lawyers, who also sought to invalidate the search warrant, contending that it was improperly obtained by police officers who made "material misrepresentations" to a judge. Kennedy-Powell ruled only on the admissibility of evidence obtained before the search warrant was issued; she declined to rule on evidence gathered after the warrant was obtained.
The motion asserted that Detective Philip L. Vannatter "misrepresented the nature of (Simpson's) absence" from his home by stating in an affidavit that he had left on an "'unexpected flight to Chicago in the early morning hours of June 13, 1994, when they were fully aware" that he was on a planned business trip.
The defense motion also states that at the time Vannatter made this statement, police officers had spoken to Simpson on the phone in Chicago and learned "that he was fully cooperative and indicated his intention to immediately return to Los Angeles on the next available flight."
The judge did not consider Vannatter's affidavit in making her decision because Deputy Dist. Atty. Marcia Clark did not attempt to introduce any evidence from the search of the house. But the judge listened to his testimony and that of Detective Mark Fuhrman, who talked at length about the officers' feelings that "exigent circumstances" made it necessary for an officer to scale a five-foot wall at Simpson's estate before obtaining a search warrant.
In a key finding, the judge said she believed the officers. "The court finds that they were, in fact, acting for a benevolent purpose in light of the brutal attack and that they reasonably believed that a further delay could have resulted in the unnecessary loss of life."
That finding is critical if defense lawyers challenge the judge's ruling or if they attempt to have the search warrant invalidated, according to legal experts.
"The judge made several factual findings. Unless they are clearly erroneous they are not reviewed by the Superior Court judge," Levine said.
However, she said the Superior Court judge can review the legal conclusions Kennedy-Powell made, based on the facts presented at the preliminary hearing.
If Simpson is bound over for trial, the defense could file new motions seeking to reverse Kennedy-Powell's ruling and to overturn the warrant.
To get a full-blown hearing on the validity of the warrant, the defense has to make a substantial showing in writing that the police officer lied or made representations in his affidavit that were in reckless disregard of the truth, according to Dunn, the Orange County prosecutor.
If the defense can make such a showing, then it could call the officers and others to the witness stand.
If a Superior Court judge rejects defense motions on the warrantless search or on the validity of the search warrant, the defense could file a writ seeking relief from a state court of appeals.
"Generally, those writs are denied summarily by postcard," said Los Angeles defense lawyer Andrew M. Stein. He said the California Supreme Court also routinely rejects such pretrial appeals.
Of course, the defense could challenge the legality of the warrantless search and of the search warrant as part of an appeal if Simpson is tried and convicted.