NEWS ANALYSIS : Death Penalty Move Alters Simpson Case Dramatically : Courts: Jury selection may now favor defense side, experts say. Garcetti could face some political fallout.

The decision by the Los Angeles County district attorney’s office not to seek the death penalty against O.J. Simpson shifts the dimensions of the closely watched case, exposes the county’s chief prosecutor to potential political fallout and dramatically alters many aspects of the upcoming trial, most notably the jury selection process.

In interviews Saturday, legal analysts and others said the decision may subtly affect future death penalty cases and may, at least in the short run, bring new attention to the issue of capital punishment by linking it to such a well-known celebrity. Its greatest impact, however, will be on the Simpson trial, where experts say it will shape the panel of prospective jurors, shorten jury selection and possibly leave prosecutors with a pool of potential jurors less inclined to convict Simpson.

At the same time, the move represents the first ratcheting down of the intensity in the Simpson case, which has galvanized national attention since the bodies of Nicole Brown Simpson and Ronald Lyle Goldman were found June 13. Simpson has pleaded not guilty to those murders.

“This takes a bit of the cliffhanging drama out of it,” said Sherry Bebitch Jeffe, senior associate at the Center for Politics and Economics of the Claremont Graduate School. “It’s still a fascinating murder mystery, but some of the soap opera is gone from it when it’s not a struggle for life and death.”

Moreover, the decision announced Friday probably means that the Simpson trial--which has sparked public discussion about hot-button issues such as domestic abuse, racism and police conduct--will not become a vehicle for prolonged debate about yet another contentious topic, the death penalty.

“Had the prosecution sought the death penalty here, it would have been an occasion to talk about capital punishment in society, about its imposition in a racist manner and about the other issues it raises,” said Erwin Chemerinsky, a USC law professor. “We’ll hear some discussion about this over the next several days, but it won’t go on for months, as it would have if the prosecution had sought the death penalty.”

In the short run, opponents of capital punishment say, the Simpson case may call new attention to their efforts, which have met with little support from the public.

“Simpson’s case has educated people about the importance of having adequate legal representation as well as having access to independent experts, and that is what is missing in so many capital cases,” said Stephen B. Bright, director of the Southern Center for Human Rights in Atlanta.

Bright cited the case of Gary Nelson, sentenced to death in Georgia in 1978 for raping and murdering a 6-year-old girl. In contrast to the high-powered team of attorneys backing Simpson, Nelson’s lawyer had never tried a death penalty case before, was paid about $20 an hour and gave a closing argument that was a minuscule 255 words.

Nelson spent 11 years on Death Row before his conviction was overturned.

In the months since Simpson’s arrest, Bright said, new attention has focused on the death penalty and its application. But he and others worried that interest may wane now that the issue is disappearing from the Simpson trial.

For Dist. Atty. Gil Garcetti, the issue is not likely to go away so quickly. Few topics in criminal justice are as charged as capital punishment, and some political analysts say that if Garcetti runs for reelection, he will have to fight off accusations that he yielded to pressure in the Simpson case.

Already, some critics have accused his office of playing politics by not seeking the death penalty against Simpson while pursuing it against Erik and Lyle Menendez, who are charged with first-degree murder in the shotgun killings of their parents.

Others attacked the district attorney for failing to seek the penalty in a case in which domestic abuse is alleged. And still others criticized him for their perception that prosecutors relied on a focus group that met last month in Phoenix to help decide whether to try to seek Simpson’s execution.

“The voters elected Garcetti to make these decisions himself, not to go to a focus group,” said author John Gregory Dunne, who described himself as “truly appalled” by that move.

“What I find most appalling is that he went to Phoenix to a focus group, and the focus group discussions indicated that a death sentence would never fly,” said Dunne, who has written about the Simpson case for an upcoming issue of the New York Review of Books. “Eisenhower didn’t use a focus group in 1944 to decide whether to attack in Normandy.”

Garcetti could face backlash from women’s groups as well. Gloria Allred, a prominent Los Angeles lawyer and president of the Women’s Equal Rights Legal Defense and Education Fund, called a news conference Saturday to issue a furious denunciation of the move.

“The D.A.’s decision in my opinion reflects a callous and conscious disregard for the value that should be placed on the life of Nicole Brown Simpson and Ronald Goldman,” Allred said. “It is apparently not enough that they were killed in a bloody and brutal slaying but now to make matters worse, they have, in my opinion, become human sacrifices on the altar of racial politics for the basest and crassest of reasons, to try to shore up the career of Dist. Atty. Gil Garcetti.”

Allred, who had urged Garcetti’s office to seek the death penalty, said that the failure to do so would endanger other women.

“The D.A. has in effect declared open season on women and issued a hunting license to men to prey upon their wives, ex-wives and lovers and terrorize them, brutalize them and even murder them and their friends without fear of the death penalty,” said Allred, who called on Garcetti to resign. “To obtain this hunting license the applicant need only be male, a multimillionaire and a celebrity, preferably an athlete, with good political connections to a D.A. who can be placed in fear of what they will do if he does not appease them.”

Garcetti’s office announced its decision late Friday and said prosecutors would not comment on it further. A spokeswoman for the office said Saturday that prosecutors would have no response to Allred’s criticisms.

Although Garcetti and his office will bear the consequences of the decision not to seek Simpson’s execution, most legal observers backed the move, saying the Simpson case did not meet the district attorney’s criteria for capital punishment.

In fact, had the decision been announced soon after Simpson was charged, most observers said, prosecutors probably would have faced little criticism.

“I really have gained a new respect for Mr. Garcetti and the people on the committee” that deliberated the issue, said Gigi Gordon, a Los Angeles criminal lawyer. “This was a losing proposition either way. They made a legal decision as opposed to a political decision. I thought they would take the cynical approach because I thought there was a greater lobby for the death penalty than against it.”

Garcetti’s office made the right call “from what I know about this case,” said Los Angeles attorney Curt Livesay, who for several years under Dist. Atty. Ira Reiner was the sole person to decide whether the district attorney’s office would seek the death penalty in homicide cases.

Livesay said his opinion is based on his assumption that Simpson is guilty and that “heat of passion” was involved in the crime--a mitigating factor. “The death penalty is seldom sought in domestic cases because of ‘heat of passion,’ ” he said.

Although he declined comment Friday, Deputy Dist. Atty. Frank E. Sundstedt, who chairs the district attorney’s special death penalty committee, said in a July interview that “it is very difficult to get a first-degree murder conviction in any domestic violence case.”

Even many observers who supported the decision criticized the district attorney’s office for not acting more quickly. Prosecutors originally had said they would have a final decision no later than Aug. 31. Simpson’s attorneys complained that the delay hampered their efforts to prepare for trial, and their concerns were echoed by the judge and other legal experts.

“They should have made the decision sooner, but as Justice Felix Frankfurter said: ‘One ought not to reject wisdom because it comes late,’ ” Livesay said. “It’s too bad the district attorney has put himself in the position of having it appear that public influence was exerted,” he added, referring to Garcetti’s July meeting with leaders of the African American community who urged him not to seek the death penalty.

By failing to disclose the reasons for their decision, prosecutors raised questions about what distinguished this case from others in which they ask for executions. The Los Angeles district attorney’s office uses 12 criteria to assess whether to seek the death penalty, but prosecutors did not reveal which of those were applied in the Simpson case.

In a letter to Simpson’s attorneys, Sundstedt said the decision was made after “consideration of all aggravating and mitigating penalty phase evidence,” but he did not amplify. A member of the committee said Simpson’s lack of a felony history was an important factor in the decision. Simpson was arrested as a teen-ager and later pleaded no contest to a misdemeanor in a spousal battery case, but he does not have an adult felony record.

“There may be a good sound reason for declination of the death penalty, but this is the wrong way to announce the decision,” said Bruce Fein, a former associate deputy attorney general under President Ronald Reagan who is now in private practice in Washington, D.C. “Our system rests on the confidence of evenhandedness, that the poor don’t take the brunt of punishment from the criminal law system. That’s why this decision coming out unexplained like immaculate conception is the last thing we want in the law. It needs to be explained, not to rest on miracles.”

Standing unexplained, Fein said, the decision is subject to a host of interpretations.

“There is nothing in the record,” he said, “that would discredit the theory (that) you don’t get the death penalty if you’re wealthy, if you have resources to fight off prosecutors with armies of attorneys, investigators, blood specialists.”

Fein said Garcetti’s action makes it clear that prosecutors “wield an enormous amount of unfettered discretion in how our criminal justice laws are administered” and that there is a need for clearer criteria on how such decisions are made.

Leslie Abramson, the lawyer for Erik Menendez, echoed that criticism, saying California courts have given prosecutors such wide latitude on whether to seek capital punishment that it may not be worth it to file a motion demanding that the district attorney drop its quest for the death of her client.

“If we had such a hearing, I don’t think we would prevail,” she conceded, while continuing to assail Garcetti for seeking the death penalty in the Menendez case.

Although the district attorney may be grappling with the fallout from the Simpson decision for months or even years, the most immediate impacts are on the coming trial. Experts say they are likely to be profound.

Although many legal analysts said they believed prosecutors partly decided against seeking the death penalty for fear that it would endanger their chances of getting a conviction, they also noted that the decision could have the opposite effect.

Prospective jurors who cannot support the death penalty are automatically excused from cases in which capital punishment is being sought. But Friday’s decision means those people may now sit on the Simpson jury.

Because they tend to be more liberal, capital punishment opponents generally are considered more likely to vote to acquit criminal defendants, and thus the decision not to seek the death penalty may work against prosecutors’ main objective: to have Simpson found guilty of the brutal double homicide.

Like several others, Charles J. Ogletree Jr. of Harvard Law School said the decision “has shifted the advantage to the defense in selecting the jury. There are many jurors, and particularly jurors of color in California, who are opposed to the death penalty and who would have been disqualified from serving. This ensures a more diverse pool of potential jurors and increases the likelihood of a hung jury or an acquittal.”

Laurie Levenson, a Loyola law professor and former federal prosecutor, agreed that the makeup of the Simpson panel could be affected by the decision not to pursue the death penalty, but added that the strategy questions were complicated by other possible advantages for prosecutors in dropping their quest for capital punishment.

“Any juror pauses before voting to convict in a case where the death penalty might be imposed,” she said. “They should not be imposing a higher standard because of the possible punishment, but I think they do.”

In fact, some observers said the decision, though it may cost prosecutors some tactical points and gain them others, was in many ways a bow to the inevitable.

“What the D.A.’s office has admitted by making this decision is that the horror of the offense is never going to outweigh the humanity of the alleged offender,” Gordon said. “You can’t dehumanize a guy who’s been sitting in your living room for 27 years. No jury would execute this man. He will never be a thing. He will always be O.J. Simpson.”