Opening Statements Could Be Crucial in Simpson Trial : Courts: Arguments to begin today. Legal experts say lawyers seek to fashion a compelling narrative for jurors.

It’s the legal equivalent of opening night on Broadway.

After months of backstage maneuvering and dress rehearsals, the main act of the O.J. Simpson double murder trial is expected to begin today, with opening statements by prosecutors and defense lawyers.

Attorneys, law professors and consultants say the opening statement is the critical first point to start shaping head-on the way jurors view the case, something they have only been able to do subtly to date through the questioning of the panelists and other means.

“It’s an opportunity to create an indelible mark on the minds of the jurors before you start presenting the evidence,” said Harvey Giss, one of the most successful prosecutors in the district attorney’s office, with 30 first-degree murder convictions to his credit.

Good opening statements should offer a theory of the case, and “the closer your theory is to a common-sense explanation, the better it is,” said Paul Harris, a San Francisco lawyer and law professor.

For example, in the 1974 Watergate conspiracy trial, prosecutor Richard Ben-Veniste’s theme was that the nation’s citizens had been betrayed by a conspiracy to obstruct justice “by the most powerful men in the government.”

For a prosecutor or a defense lawyer faced with negative evidence, the task can be trickier.

“You want to tell the jury about every substantial weakness,” lest they hear about it in its most unflattering light from the other side first, said Cornell University law professor Steven D. Clymer, who was the co-lead prosecutor in the 1993 federal trial of four Los Angeles police officers accused of beating Rodney G. King.

In his opening statement, Clymer acknowledged the primary problems with his case: The victim was drunk the night of the incident, he fled from police who tried to pull him over for speeding, he was slow to obey police commands, and he was on parole for an earlier offense.

But then Clymer stressed: “Rodney King is not on trial. The issue of whether he was guilty or innocent that night is not on trial. The issue of whether these four defendants are guilty or innocent is on trial.”

A key to a good opening statement is the ability to turn a set of complex facts into a compelling narrative, according to legal experts.

‘Time for Lawyers to Be Great Storytellers’

“It’s really a time for great storytelling,” said Gerry Spence, the flamboyant Wyoming lawyer who successfully defended Imelda Marcos on federal fraud and racketeering charges. “This is not a time for lawyers to be lawyers; it’s time for lawyers to be great storytellers.”

Style, body language and a degree of drama are all important, said Thomas Mauet, who teaches trial advocacy at the University of Arizona Law School.

“You have to send off the subliminal messages--you’re good, you’re well prepared, you believe in your case, and you expect to win because you have a winning case.”

For Simpson prosecutors, the key will be to get the jury to pass judgment early “by relying on the gravity of the offense, the brutality of the murders, the character of the accused and all the threads of circumstantial evidence that tie these theories together,” said Harvard Law School professor Charles J. Ogletree.

On the other hand, the essential task for Simpson’s lawyers is to get the jury to withhold judgment and to begin to persuade the jurors that the large amount of evidence presented by the prosecution does not mean Simpson is guilty, Ogletree added.

When he takes the podium, Simpson defense lawyer Johnnie L. Cochran Jr. said that he will forcefully emphasize that police made “a rush to judgment” and that the evidence gathering was fundamentally flawed.

“It’s a time to speak from the heart and make it memorable so that when you sit down, the jury will say, ‘Wow!’ and say, ‘I can’t wait to see the evidence,’ ” Cochran said in an interview.

Dist. Atty. Gil Garcetti would not say who will deliver the opening statement for his side. But prosecution sources said two members of the team--Marcia Clark and Christopher Darden--are expected to be involved, an unusual legal gambit.

“I can imagine this will be a powerful opening statement by the prosecution,” said Miami lawyer Roy Black, who successfully defended William Kennedy Smith on rape charges. “I can imagine how long and hard they’ve worked on this for maximum impact. I’ll bet Marcia Clark is working 18 hours a day.”

Loyola law professor Laurie Levenson also was betting Clark will take the leading role.

“The bottom line is she has to win the hearts and minds of the jurors and she has to do that by giving them the story, giving them a road map, showing them how all the different pieces fit together, reminding them of the victims and establishing some credibility. This case is all about whether the jury is going to believe the prosecution evidence or discredit it the way the defense wants,” Levenson said.

Kerry Wells, chief of the domestic violence unit in the San Diego district attorney’s office, said it was very important for the prosecutor to establish credibility and to “get the jury to emotionally relate” to the victims.

The prospects for that were enhanced last week when Superior Court Judge Lance A. Ito decided to admit into evidence more than two dozen incidents of domestic abuse allegedly perpetrated by Simpson on Nicole Brown Simpson before, during and after their marriage.

“The impact of listing the extent of allegations of domestic violence is sure to have a significant impact on the jury,” said Peter Arenella, a UCLA law school professor who has been following the case closely.

Arenella said the prosecution has two likely options. “Marcia Clark could focus first on the horror of these crimes and then point out all the physical evidence linking Mr. Simpson to them. Only then might she raise the question of how a man as respected and loved as O.J. Simpson could be capable of such terrible acts and refer to the domestic violence evidence only in that context--as a way of explaining what motivated Mr. Simpson to kill.”

Alternatively, Arenella suggested, “Clark could begin by repeating the refrain of an earlier hearing that this is a case of domestic violence culminating in murder and highlight the evidence of domestic abuse at the very outset.”

Ito’s ruling clearly gives the prosecution the opportunity “to tell a much better story and present a more compelling opening statement,” Clymer said. “They can tell the whole story of the O.J.-Nicole relationship.”

The best response to that, several legal experts said, could be to announce during opening statements that Simpson will take the stand to offer his own account of the tumultuous relationship and anything he may know about the murders of his ex-wife and her friend Ronald Lyle Goldman.

But calling Simpson to testify could be perilous, said Southwestern University law professor Myrna Raeder. Although Simpson is clearly the best person to respond to allegations of domestic abuse, putting him on the stand would expose him to vigorous cross-examination and might enable the prosecution to bring in even more evidence of marital problems.

The defense has not said whether Simpson will testify. If, during opening statements, Cochran promises to put him on the stand, he had better follow through or he could lose credibility with the jury, Raeder said.

Either way, a significant part of the case will center on circumstantial evidence, particularly conventional serology tests and DNA tests of blood recovered at the murder scene and at Simpson’s Brentwood estate. It is clear that the defense will attack that evidence every way it can from start to finish.

So, from the outset, the prosecution has to explain the importance of scientific evidence, which is often complex and difficult to understand, said Los Angeles defense lawyer Leslie Abramson.

“She (Clark) has to impress them that science is smart, science answers questions, science solves problems, it explains the world, and it isn’t voodoo,” Abramson said.

On the other hand, several lawyers said prosecutors should be wary about going into too much detail about complicated DNA tests in the opening, lest they confuse the jury.

Legal experts also said they expect the prosecution’s presentation to be enhanced by dramatic crime scene photos, charts, maps, drawings of where blood was found and other visual elements.

New Weight Given to ‘Openings’

In recent years, lawyers--particularly in big cases--increasingly have utilized modern technology such as videotape and computer enhanced graphics. For example, in the civil fraud trial of millionaire swindler Charles H. Keating Jr. in Tucson, plaintiffs’ lawyer Joe Cotchett showed a video of Keating handing out hundred-dollar bills to his employees. The effect was very powerful, Mauet said.

Lawyers are not allowed to “argue” legal points in an opening statement, but they frequently try to, drawing objections from the other side, said James McElhaney, a professor of trial advocacy at Case-Western Reserve Law School in Cleveland. Sometimes, in response to such an objection, a judge will instruct a lawyer to limit the opening to what he expects the evidence to show.

In the past, opening statements were not considered as important as closing arguments. Some defense lawyers declined to even give an opening statement until the prosecution had finished presenting its case. But in recent years, lawyers have increasingly recognized the importance of the opening statement in shaping the case.

Research indicates that opening statements can have a significant impact on the way a jury views all the evidence. Conventional wisdom among some lawyers is that up to 75% of jurors make up their minds by the end of opening statements. But trial consultant Terri Waller cautioned that research used to support that theory has been misinterpreted.

“You need to remember that many cases have been won and lost regardless of how good or bad the opening statement was,” said Waller, managing partner of National Jury Project/West in Oakland.

Nonetheless, Waller said she believed that “openings,” as they are called in the legal world, play a critical role in a trial, particularly for a lawyer to highlight themes and to frame a case in a way that the jury might not think of otherwise.

Waller cited an opening given by J. Tony Serra of San Francisco during the 1989 trial of Patrick (Huti) Croy, a Native American accused of killing a police officer in Siskiyou County. “There was no denying that Huti fired the shot,” Waller said.

“But Tony focused the jury’s attention on the history of police violence against Native Americans. . . . The jury was able to understand why Huti shot at a police officer in self-defense” and he was acquitted.

Serra said Croy acted in self-defense after a group of police officers started shooting, and he stressed to the jury that they should put themselves in Croy’s shoes, to understand his state of mind and why he thought his life was in danger. Moreover, Serra immediately took issue with the allegation that the officer died in a “shootout,” a word laden with implications.

“To call it a shootout . . . is an extravagant hyperbole,” Serra told the jurors. “This was a cavalry charge. That’s what the evidence is going to show. The evidence is going to show that the police were there for one purpose, to wipe out three young Indians who had been drinking, who shared a .22 rifle.”

The Indians, Serra said, expected to die. “What was in their mind was genocide that had been perpetrated on the Indians, and the fact that 95% of all the Indians have been exterminated there by the white man between 1850 and 1900. . . . Our client did have those things on his mind.”

Abramson faced similar problems in the 1993 Menendez brothers murder trial. She had to grapple with the fact that her client, Erik Menendez, along with his brother, Lyle, had confessed to shooting their parents to death in their home.

“The only question in this case is why did these killings occur,” Abramson told the jury. “We intend to provide you with the answer to that question,” she said, previewing her theory that her client acted in response to years of physical, emotional and sexual abuse.

“Erik Menendez will tell you why he killed his parents. He will tell you the entire painful and difficult and complicated story of his life.”

Sweeping rhetorical flourishes are hardly uncommon in opening statements, but lawyers say they are most effective when they match the theme of the case. It does not hurt if they start to satisfy jurors’ curiosity as well.

In July, 1970, at the start of one of Los Angeles’ most chilling murder trials, prosecutor Vincent Bugliosi knew that the jury would want to know what could have led to the grisly slayings of actress Sharon Tate and six others.

“A question you ladies and gentlemen will probably ask yourselves at some point during this trial and we expect the evidence to answer that question for you is this:

“What kind of a diabolical mind would contemplate or conceive of these seven murders?” Bugliosi asked rhetorically. “We expect the evidence at this trial to answer that question and show that defendant Charles Manson owned that diabolical mind. . . . The evidence will show Charles Manson to be a megalomaniac who coupled his insatiable thirst for power with an intense obsession for violent death.”

Bugliosi won that case. F. Lee Bailey, now on O.J. Simpson’s defense team, has had some successes of his own with vivid oratory.

Defending Dr. Carl Coppolino on murder charges in 1966, Bailey skillfully used the theme of a venomous, vindictive woman--a spurned former lover who falsely accused his client of the crime.

He told the jury that the woman wanted Coppolino to be executed “so badly she would sit on his lap in the electric chair while somebody pulled the switch just to make sure he dies.”

Such dramatic opening statements can capture jurors’ imagination--and perhaps their loyalty as well.

“You really have to catch the jury’s attention with your side,” defense lawyer Black said. “If you fail to do that, it’s hard to get them back.”