Death Penalty Unlikely for Simpson, Experts Say : Trial: Combination of factors are cited, including the fact that spousal murder cases rarely draw capital punishment.

The odds are high that the Los Angeles district attorney’s office will not seek the death penalty against O.J. Simpson, according to prosecutors, criminal defense lawyers and other death penalty specialists.

The legal experts offer a variety of reasons for their prediction, even though Simpson is among the group most likely to be charged with capital murder and sentenced to death--African Americans accused of killing whites.

There are many reasons why he likely will be an exception: He does not have a lengthy criminal history. He has been a national hero. It has become increasingly difficult for prosecutors to obtain the death penalty in Los Angeles County. Seeking the death penalty might make it more difficult to garner a conviction. His execution would leave two young children of one of the victims without a parent.

And, finally, the death penalty is rarely imposed in spousal murders.

Indeed, of the 2,812 men on Death Row nationwide, only 34, or 1.2%, killed their wives or ex-wives.

Although he declined to speak directly on the Simpson case, veteran prosecutor Frank E. Sundstedt, who chairs the special death penalty committee in the district attorney’s office, said the office is mindful of that statistical reality.

“It is very difficult to obtain a first-degree murder conviction in any domestic violence case,” Sundstedt said. “To the extent that you need some basis for a ‘special circumstance’ in order to have the defendant eligible for the death penalty, that has to be taken into consideration,” he said.

State law is explicit about which murders are so horrifying that a jury can consider the death penalty. There are 19 such “special circumstances,” including the murders of a police officer or firefighter, murder for financial gain, murder by bomb--and multiple murders, as charged in the Simpson case.

In order to receive the death sentence, Simpson must be convicted of at least one count of first-degree murder, meaning that it was premeditated. The jury also would have to confirm the special circumstance allegation.

Even if he were convicted of the slayings of his ex-wife Nicole Brown Simpson and her friend Ronald L. Goldman--many attorneys stressed that it would be rare for the death penalty to be imposed on Simpson, a nationally known figure who for years has been held in high public esteem.

“I can’t think of anyone so beloved who has faced the death penalty,” said Santa Monica defense lawyer Gigi Gordon, who specializes in capital cases.

“We feel most comfortable sentencing someone to death when we can reduce their whole life to a single act of brutal violence,” and that simply would not happen with the former Heisman Trophy-winning USC tailback, said Bryan Stevenson, director of the Alabama Capital Representation Resource Center.

“When you’re forced to see the defendant as something more than the criminal act, it becomes much harder to say, ‘We’re going to kill you.’ O.J. Simpson has the advantage of being known for something other than allegedly killing his wife and another person. The other things he is known for are very human things, very endearing things, the kind of things that would you make feel loss or sorrow if he were dead,” Stevenson said.

“There is no way that a jury is going to return a death judgment against O.J. Simpson,” said defense lawyer Barry Levin, a former Los Angeles police officer who has handled nine capital cases. “Having had a substantial amount of experience in this area, what it boils down to is the only way a jury will kill your client is if he is a complete animal, they hate him.”

On several occasions, Dist. Atty. Gil Garcetti has asserted that Simpson’s popularity will make it more difficult to obtain a conviction. Moreover, Simpson’s life history would be a very real factor in any assessment of whether the death penalty should be imposed against him, if he were convicted of first-degree murder.

On Friday, after Los Angeles Municipal Court Judge Kathleen Kennedy-Powell bound Simpson over for trial, Garcetti said one of the first decisions his office has to make is whether to seek the death penalty.

Unlike most cases, Garcetti will be involved in the decision-making process in the Simpson case. That process promises to be a veritable minefield for him, said Loyola law school professor Laurie Levenson.

“If he doesn’t ask for the death penalty, there will be a clamor that this is special treatment for a celebrity. But if he does, there will be the traditional claims that it is arbitrary . . . used against people of a particular race. Either way, there’s going to be criticism.”

He faces a formidable critic in Los Angeles defense lawyer Leslie Abramson, a vocal opponent of the death penalty who represents Erik Menendez, 23, one of the two brothers who have admitted shotgunning their parents to death in their Beverly Hills home in 1989.

Separate Van Nuys juries deadlocked in January between murder and lesser manslaughter charges against Erik Menendez and his brother Lyle, 26. The district attorney’s office has said it will retry both brothers and is still seeking the death penalty against them.

“I don’t want the district attorney’s office to ask for the death penalty against O.J. Simpson--I am personally very sympathetic to him--but if they don’t, I will make them come into court and explain why they are trying to kill the abused Menendez boys,” Abramson said.

The Simpson situation is particularly tricky because of the current stance of the prosecutors and his lawyers, said Los Angeles defense lawyer Bradley W. Brunon. “The defense is maintaining Simpson didn’t do it. The prosecution is maintaining that he did it in a very calculated manner.”

As a consequence, Brunon said, he thought it was possible that the district attorney’s office might initially ask for the death penalty but ultimately reverse field, after further evidence about the case unfolds. “They could change their mind gracefully and go for life without possibility of parole or a straight life sentence,” Brunon said.

But most death penalty specialists said they believed that Garcetti simply will not opt for the death penalty at any time.

For strategic reasons, it might be easier to secure a conviction if jurors do not have to consider the “specter” of the death penalty, UCLA criminal law professor Peter Arenella said.

As it stands now, the Simpson case “is a domestic homicide case and sadly not an uncommon one,” said Stanford University criminal law professor Robert Weisberg. And in the overwhelming number of such cases, it is difficult to obtain the first-degree murder conviction that is a prerequisite for the death penalty, Weisberg said.

Normally, he said, the only exceptions are when one spouse kills another to try to profit from an insurance policy or when one spouse hires a hit man to murder a mate.

Beverly Hills defense lawyer Jeffrey R. Brodey said his own experience in recent years shows how unusual it would be for the district attorney’s office to seek death in the Simpson case.

Brodey said he has represented six people accused of double murders; in five of the six cases, the prosecutor sought death. The only time the district attorney’s office didn’t go for the ultimate penalty was a case of a man murdering his wife and her lover, Brodey said.

“He went into his wife’s place of business and shot her. Then he walked down the street a short way and went into the (lover’s) business and shot him.” Without any persuasion from him, the district attorney’s office decided against seeking the death penalty, and Brodey said the fact that it was a spousal homicide was the critical factor.

“They said from the beginning this is not a death case.” Rather, the prosecutor sought life without possibility of parole. Brodey argued that his client acted in the heat of passion when he shot his wife and that he “was still in the grips of rage,” when he shot the lover. The jury returned two verdicts of second-degree murder and Brodey’s client received a sentence of 20 years to life.

Moreover, several defense lawyers said they had represented defendants in multiple homicides in Los Angeles where the district attorney’s office did not seek death. They said Garcetti could present numerous such examples if he is accused of giving Simpson special treatment.

“I don’t think it would be favoritism” for a celebrity if Garcetti asked for life in this case, Gordon said. “The death penalty is reserved for the worst of the worst. What the general public doesn’t understand is there is a hierarchy of murderers--people who kill police officers, serial murderers, child killers. The death penalty has to be reserved for those people.”

The way to San Quentin starts with Section 190.2 of the California Penal Code. Though the law sets forth the 19 explicit special circumstances that can justify the death penalty, it actually is not explicit enough. It does not say, for instance, that conviction for multiple murder must lead to execution--only that it may.

Because capital cases are far more expensive than ordinary murder trials, the law thus presents prosecutors in each of the state’s 58 counties with a dilemma. They must do what the law does not--decide which cases deserve the death penalty.

As could be expected, guidelines and practices vary from county to county.

In San Diego County, for example, Dist. Atty. Edwin L. Miller Jr. decides when to pursue the death penalty. So does Arlo Smith, the district attorney of San Francisco.

In Los Angeles County, it used to be that one man also made the decision--Curt Livesay, who was a senior prosecutor under former Dist. Atty. Ira Reiner and others. Near the end of Reiner’s term, Greg Thompson, another veteran deputy, took over the job.

Garcetti, however, who took office in December, 1992, has opted for a different system.

Each Thursday morning, in a conference room on the 18th floor of the Downtown Criminal Courts Building, eight veteran prosecutors--an all-white, all-male group since its lone woman member became a federal judge--review those murder cases headed for trial.

The first issue is whether special circumstances are still appropriate. If so, the next decision is whether to pursue a penalty of death or life in prison.

Seven of the eight weigh in with comments. Then, as before, one person makes the decision--Sundstedt, the head of the committee.

The input is “exceedingly helpful,” Sundstedt said. But he added, “It is not a vote.”

A case comes to the committee after several steps up the organizational ladder. The trial deputies--in the Simpson case, Marcia Clark and William Hodgman--will write an internal memorandum that sets forth the facts, analyzes the law and urges the committee to choose either life or death.

Various supervisors will review that memo. Two weeks before the committee meets, the defense is invited to supply in writing any information it wishes to provide.

On Friday, Garcetti said that Simpson’s attorneys will be afforded the chance to submit mitigating material.

Usually, Sundstedt said, committee members are unanimous in their opinions. But debate is often spirited, he said.

Once the decision is made to opt for death, Sundstedt said, that is it--although presumably, in this case, Garcetti will have the last word.

Only once have defense lawyers been granted an appeal of that decision, and that was just a few days before jury selection began last year in the Menendez case.

That appeal was unsuccessful. Sundstedt said he felt obligated to meet with the Menendez defense lawyers because they had not otherwise had the opportunity to submit material to the committee. “They were not given special treatment because of the Menendez case,” he said. “It was just a timing deal.”

Because far more homicides occur in Los Angeles County than anywhere else in California, Sundstedt said, the committee is kept busy, usually reviewing two, sometimes three or four cases each week.

In 1993, he said, the committee looked at 200 cases. It opted to pursue the death penalty in 35, about 17%.

Since not all of those 35 cases have been completed, it remains to be seen how many death verdicts will be returned. Charles A. Gessler, a veteran Los Angeles County deputy public defender, estimated that juries come back with a death verdict in only about 10% of the cases.

The overwhelming majority of such cases involve those in which the victim is a stranger, or at least someone who does not have a long, emotional involvement with the killer, because jurors find such cases frightening, Stanford’s Weisberg said.

In Orange County, where prosecutors also use a committee system, the panel reviewed 20 cases last year. It opted to pursue the death penalty in two, said Deputy Dist. Atty. Rick King, who heads the homicide unit.

In Alameda County, where Dist. Atty. John J. Meehan heads the committee, the panel looked last year at 10 cases. It opted to ask for death in three, said Assistant Dist. Atty. Jim Anderson.

Obviously, the figures in Los Angeles County far exceed anywhere in the state--and, according to the state Department of Corrections, there are more murderers among the 383 inmates on Death Row from Los Angeles County than anywhere else, 112. The runner-up is Alameda County: 29.

But, Sundstedt said: “I don’t believe that the office willy-nilly seeks the death penalty on defendants in Los Angeles County.”

The committee, he said, actually is opting to pursue death far less often than during the Reiner years. In the three years before Garcetti took over, Sundstedt said, Los Angeles prosecutors asked for death an average of 53 times per year.

Through July 1 of this year, Sundstedt said, the committee has reviewed 86 cases and opted to ask for death 11 times.

The 11 cases, according to Sundstedt, include allegations of murder by arson, the kidnap murder of a child, the killing of a mother and daughter, the murder of two police officers--and several cases involving allegations of multiple murder.

“Far and away” the largest category of death penalty cases, Sundstedt said, are robbery-murders. Next, he said, are multiple murders.

“I would think multiple homicides is one of the considerations that most often justifies seeking the death penalty and it is one of the ones most persuasive to juries,” said Dane Gillette, head of the state attorney general’s death penalty unit.

“When you have more than one body, that makes a difference in how the case is charged, how it is tried and how it is viewed if they go to a penalty phase.”

While compelling, that factor alone, however, is not enough. The reality, several prosecutors said, is that there is no magic formula for deciding that it’s right to give a jury the option of choosing death.

“Obviously you have to have some way of differentiating, and it is difficult, because every murder involves the death of a human being,” Sundstedt said. “But the fact remains: every robbery-murder is not a death case.”

“I’m afraid it’s a bit like pornography,” said Michael Tranbarger, an assistant Los Angeles district attorney and one of the eight on the committee. “It’s hard to describe, but I know it when I see it.”

If a crime seems particularly vicious, prosecutors consider that a significant aggravating factor. The age and what several prosecutors called the “quality” of the victim also play a critical role.

“The victim is a most important thing,” said Los Angeles Deputy Dist. Atty. Peter Bozanich, who also is a member of the committee. “If you’ve got children, watch out--the jury really wants a piece of that guy. . . . If it’s a drug dealer, the jury thinks, ‘Ah, he’s got it coming,’ which is really logical.”

Nicole Simpson was the mother of two small children and her friend, Goldman, was a waiter at a trendy Brentwood restaurant. In the normal sense of how these cases are evaluated, attorneys made plain, they would be considered “high-quality victims.”

Also critical, prosecutors said, is the defendant’s background. A particularly violent past tends to tip the scale toward seeking the death penalty.

“Let’s say you’ve got a 35-year-old defendant with a long and sordid past,” said another assistant Los Angeles district attorney on the committee, R. Dan Murphy. “This guy has had 20 years to learn and he still hasn’t gotten it right.”

O.J. Simpson, of course, has only the single blemish on his record, the 1989 no contest plea in Municipal Court to charges he beat his wife.

It just seems improbable that Simpson could face the death penalty, said a member of the committee who asked to remain unnamed.

“Other than this incident,” the committee member said, referring to the slayings of Nicole Brown Simpson and Ronald L. Goldman, “there’s a perception that he’s had an exemplary life. Never underestimate the power of perceptions.”

Death Penalty Panel

These are the eight members of the Los Angeles County district attorney’s Special Circumstances Committee. All are veteran prosecutors who decide whether the office will pursue the death penalty in murder cases. Review of the O.J. Simpson case is still weeks away. When the committee takes up the matter, one member, William Hodgman, will not take part because he is a prosecutor on the case. However, in an unusual move, Dist. Atty. Gil Garcetti will take part in the decision.

* FRANK E. SUNDSTEDT, 47, is an assistant district attorney. It is ultimately his responsibility to make the committee’s decision.

* PETER BOZANICH, 50, is one of two directors of branch offices, supervising branches in the Antelope Valley, Long Beach, Santa Monica, Compton, San Fernando and Torrance.

* ROGER J. GUNSON, 54, is one of two directors of special operations. He is in charge of appeals, major fraud and organized crime divisions.

* ROBERT F. KUHNERT, 52, is the other director of special operations. He supervises the prosecution of cases involving reputed gang members as well as those involving public corruption.

* PHILLIPS W. MUELLER, 55, is the other branch director, supervising offices in Norwalk, Pomona, Pasadena and Van Nuys.

* R. DAN MURPHY, 49, is an assistant district attorney and oversees all specialized prosecution units, including the gang, major fraud, organized crime and consumer units.

* MICHAEL TRANBARGER, 48, is also an assistant district attorney and oversees office management and budgets as well as such units as crime prevention and victim services.

Source: State Bar of California, district attorney’s office