An Error in Other Professions, but Smart Tactics in the Courtroom

In the court of public opinion, the prosecution team won a huge victory Wednesday with a barrage of lurid charges against O.J. Simpson.

But on Thursday, after thoroughly battering Simpson’s character, the prosecutors struck from the evidence list some of their most damaging allegations, generally those where there was no corroborating testimony.

Significantly, the single most potentially damning piece of evidence remained on the list. That involved a call placed by Nicole Brown Simpson to a battered women’s shelter five days before she was killed. According to the prosecution, she said that Simpson was stalking her.

Deputy Dist. Atty. Chris Darden made it clear that all the accusations, even those deleted from the list, may be used later. The prosecution, he said, was not withdrawing them but was merely letting “the court know we have this evidence and that it will be used when the time is proper.”

Whatever the fine details of what happened in court Thursday, the move sounded like something that we in journalism call a skinback. When we mess up a story, we come back the next day with a new and, hopefully correct, version--the skinback.

It’s a real embarrassment to have to write one. In the law, however, a skinback is apparently considered smart tactics.

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The prosecution’s focus Wednesday on Simpson’s alleged history of spousal battery was one of the most dramatic moments of the trial.

Seeing the dangerous course the hearing was taking, the defense team looked unhappy. Simpson shook his head, smiled, silently laughed and rolled his eyes upward during Deputy Dist. Atty. Lydia Bodin’s presentation. He looked more like an adolescent denying he violated a parental rule than a man grieving for his dead wife.

Television reporters went on the air. Print reporters hit the phones to their editors. The accusations led television evening news shows and made Page 1 in the newspapers. The good guy image Simpson had cultivated since USC was being shredded.

Thursday’s skinback was a compelling second act to Wednesday’s drama.

Simpson continued to look unhappy at the course of the trial, despite the prosecution’s revisions of its evidence list. He read documents and made notes, as if he were writing an angry legal brief.

He seems to love to talk and he chattered away to members of his legal staff. At times, Simpson gestured to his lawyers, ordering them to come close to him for a whispered conversation.

“Could the court direct the defendant not to make comments during my argument,” Bodin said. Shapiro spoke to Simpson, who nodded. Afterward, Simpson remained silent but his face occasionally became a picture of studied disbelief when the prosecutors said something damaging.

At a press conference after Thursday’s morning court session, defense attorney Johnnie L. Cochran Jr. said the prosecution, in releasing the accusations Wednesday and scaling down its list Thursday, was engaged in “character assassination pure and simple and it’s not going to work.”

The prosecution, he said, was engaged in a “clear and orchestrated attempt to influence public opinion.”

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Cochran knew what he was talking about. Not that the defense lawyer is privy to the prosecution’s tactical plan. But earlier in the trial, he showed himself to be a master at clear and orchestrated efforts to influence the public.

That was when the defense went after Los Angeles Police Detective Mark Fuhrman, one of the cops on the scene after the bodies of Nicole Brown Simpson and Ronald Lyle Goldman were found.

Defense attorneys accused Fuhrman of planting evidence and of being a racist. These charges were potentially libelous. But made in court, they were libel-proof and were reported by the media, brutally tarnishing Fuhrman’s reputation.

Just why this is taking place when the jury is sequestered is unclear. But a lot of lawyers think that putting a spin on the news, and shaping public opinion, has a subtle effect on what happens in the courtroom as well as the public at large. They believe that judges and lawyers react to the news, just as politicians do.

Whatever the prosecution’s reason, its actions in the last two days have changed the dynamics of the trial and given us a look at just how tough the prosecution intends to pursue its case.

The prosecution message, as expressed by Deputy Dist. Atty. Darden at his press conference, was clear: “It is O.J.’s life. It has come back to haunt him.”