NEWS ANALYSIS : As Simpson Trial Nears, Strategies Become a Gamble
With just over three weeks left before the scheduled start of O.J. Simpson’s murder trial, a rapid-fire series of developments has brought the case into sharper focus, narrowing some of the options for defense attorneys and forcing both sides to gamble as they build their trial strategies.
In the last week alone, several of the building blocks have been set in place in the case against Simpson, who has proclaimed his innocence in the face of charges that he murdered his ex-wife, Nicole Brown Simpson, and her friend Ronald Lyle Goldman. Each new development subtly alters the emerging strategies of the two sides, which are moving at breakneck speed to bring the case to trial Sept. 19.
The strategy considerations are complex, in part because the case is moving to trial before all the evidence has been gathered and analyzed. Moreover, the high level of publicity creates an especially tricky situation for Simpson’s attorneys, who are conducting the delicate dual task of trying to challenge every potential weakness in the government case without signaling to prospective jurors that they are in any way desperate.
“That is a very, very real concern to us,” Robert L. Shapiro, Simpson’s lead attorney, said in an interview Saturday. “As lawyers we have a legal obligation to raise all legal and factual issues as they are presented. There is a risk that members of the public who do not have a complete understanding of our obligation will think that this is some sort of diversionary tactic.”
Among the recent developments shaping strategy for both sides are revelations that the latest round of DNA tests points to Simpson as the source of a blood drop at the scene of the killings and that hair samples from a knit cap discovered near the bodies resemble Simpson’s. An eagerly awaited ruling from Superior Court Judge Lance A. Ito on Friday also cleared the way for prosecutors to go ahead with their DNA testing, a setback for defense attorneys that some experts nevertheless believe may ultimately work in Simpson’s favor.
The defense has scored most of its points by relentlessly attacking the government case--detectives have been accused of lying, prosecutors of deceiving, and analysts of performing slipshod work. That may be undermining the confidence that prospective jurors have in the evidence, legal analysts said.
Some experts credit Simpson’s defense team with vigorously contesting the government lawyers at every opportunity and with using the pretrial hearings to erode the sense that police and prosecutors have built an open-and-shut case against the former football star.
“That’s their job,” Barry Levin, a criminal defense lawyer and former Los Angeles police officer, said of the defense camp. “They have to watchdog the government case and to challenge it at every turn.”
All that is true in every criminal case. But part of what makes the coming Simpson trial different is that the football Hall of Famer’s legal team is conducting its work under the eyes of a nation seemingly unable to tear itself away from the legal drama unfolding in Ito’s courtroom.
That makes the all-out attack strategy an especially risky one, some legal experts say, because observers may grow weary of the challenges to witnesses and come to conclude that Simpson’s lawyers are prepared to vilify anyone who offers evidence against their client.
“Even to me, as a defense attorney, it seems that they look more and more like they’re defending a guilty guy,” lawyer Harland W. Braun said. “That’s something they need to be careful about.”
Laurie Levenson, a Loyola Law School professor and former federal prosecutor, agreed the defense approach could send inadvertent messages to potential jurors.
“That’s always the danger of the shotgun defense,” she said. “It seems hard to believe that everyone associated with the case made a mistake or is out to get O.J. Simpson. It’s contrary to your common sense.”
Although the most recent developments in the Simpson case have largely gone against him, courtroom victories often break two ways, and legal experts predicted some of the prosecution triumphs in recent days could work in Simpson’s favor.
By winning the right to begin DNA testing at a Berkeley lab, prosecutors headed off a likely defense challenge to the test results. Simpson’s DNA experts have previously challenged tests done by Cellmark Diagnostics in Maryland--where most of the samples have been sent--and have suggested that they are preparing to do the same in this case.
Ito’s ruling makes that more difficult because a state Department of Justice lab will conduct its own tests. If those tests confirm the Cellmark findings, it will be much harder for Simpson’s lawyers to contend that the findings are the result of laboratory errors.
But sending the samples out to two labs is, in one respect, a risky gambit by prosecutors. The two labs could produce inconsistent findings, and that would open a hole in the government case that Simpson’s attorneys would be sure to exploit.
“There’s a chance one takes when one submits evidence to two different experts,” said Milton Grimes, an Orange County defense attorney who has handled numerous capital murder cases and who represented beating victim Rodney G. King in his lawsuit against Los Angeles. “They could get some inconsistency.”
In fact, some experts believe that the Simpson defense team was lucky not to win its motion seeking access to half the blood samples, a point the attorneys aggressively contested for weeks. If the defense had won that motion, they would have received blood evidence that they could have subjected to their own DNA testing.
But what if the results had mirrored the prosecution findings? Defense attorneys would not have been obligated to present that evidence in court, but they would almost certainly have faced a barrage of questions from the media about failure to disclose the results.
Meanwhile, the defense, faced with difficult-to-explain DNA results thus far, has subtly shifted its approach, de-emphasizing its attacks on the Cellmark lab and focusing instead on the Police Department employees who collected the evidence. The hearings last week gave defense attorneys a chance to question some of those workers and yielded a few nuggets that could help Simpson’s case when it comes to trial.
One of the police employees admitted to mislabeling one sample, while another testified that the Simpson case was only the third time she had ever collected crime scene evidence in the field.
“What you’re seeing is that the defense strategy appears to be to argue that at every stage of this case, there was either mishandling of the evidence or unfairness to O.J. Simpson,” said Erwin Chemerinsky, a USC professor of criminal law. “That means they have to find as many opportunities as possible to make that point.”
Johnnie L. Cochran Jr., Simpson’s other lead counsel, agreed, adding that the hearings have allowed defense lawyers to learn of mistakes in the case that they otherwise might never have known about.
“These are skirmishes getting ready for the main attraction,” he said Saturday. “We have to do everything we can to preserve our client’s right to a fair trial, and we found out some interesting things at these hearings. We didn’t win all our motions, but we learned some things. That helps us.”
And whatever the risks, Cochran said, he and his colleagues intend to press ahead with their aggressive defense strategy.
On Monday, they will be back in court to argue for access to police personnel records and other documents that they hope will undermine the credibility of the detectives at the center of the LAPD investigation.
The coming weeks will see a string of issues debated that will set the final parameters for the Simpson trial, defining what evidence jurors will be allowed to hear and what weight they may attach to various clues.
Of particular interest is a sure-to-be-contentious debate over the admissibility and significance of any DNA test results that the prosecution hopes to use as evidence.
If the final results of those tests point to Simpson as the likely source of blood found at the crime scene, prosecutors would vigorously argue that the jury needs to hear that. Simpson’s attorneys would almost certainly respond by suggesting that the evidence was so mishandled that it should not be allowed into evidence.
It will be up to Ito to decide how much DNA evidence is admissible and what statistical information the jury will get to hear about it. For instance, if the blood drops “match” Simpson’s blood, what are the odds that the drops could have come from someone else? Are they 1 in 100, a relatively modest statistic that would leave tens of thousands of Southern Californians as possible sources? Or are they 1 in 1 million? Or even greater?
Although those questions could form the backbone of the case, other highly significant issues will be hammered out in the coming weeks. The prosecution may seek to introduce evidence about the sometimes stormy relationship between Simpson and his ex-wife. They may seek court permission to introduce a 911 tape in which Nicole Simpson called police to protect her from a man she identified as her angry ex-husband. And they may ask for permission to tell the jury about what Simpson said to police when he was questioned the day after the murders.
For their part, Simpson’s attorneys will attempt to have the evidence seized at Simpson’s home excluded from the case. They allege that evidence was gathered illegally because, they say, police improperly searched the property without a warrant and lied in the affidavit later used to obtain a warrant.
Defense attorneys also will probe the histories of the officers and the other investigators, and they are expected to attack the reliability of the Los Angeles County coroner’s examination of the bodies.
Those issues and others will define the limits of the coming trial, and many of them will be hotly contested. On Saturday, attorneys for both sides were at work, busily preparing for Monday’s hearing and beyond.