NEWS ANALYSIS : Querying Brown a Delicate Task for Simpson Defense

O.J. Simpson’s defense team would love to erode the credibility of Denise Brown, who has presented some of the most emotional and potentially damaging testimony against the man accused of murdering her sister.

But cross-examining Brown is one of the most delicate and risky tasks that the former football star’s lawyers will face during the trial, according to legal experts.

“She is one of those witnesses defense lawyers know you have to treat very gingerly,” said Santa Monica defense attorney Gerald L. Chaleff. “If the defense makes a misstep, they could set off a nuclear bomb.”

The thorniest task may come if the defense tries to challenge Brown’s apparently changing views on whether her sister was a battered woman. Defense sources said they have scoured databases examining all the statements Brown has made to the media since the June 12 murders of Nicole Brown Simpson and Ronald Lyle Goldman.

Early on, Brown stated categorically that her sister was not the victim of chronic spousal abuse. But over time, her position evolved and by early November, she proclaimed that she had been naive, had subsequently educated herself and concluded that her sister in fact was a classic battered wife.

Later in November, she publicly declared her belief that Simpson had murdered her sister and Goldman.

On Friday, in riveting testimony, Brown, occasionally sobbing, described two incidents in which, she said, Simpson abused and humiliated her sister. She is scheduled to be back on the witness stand Monday morning for more direct examination by prosecutor Christopher Darden. Then comes perhaps the biggest courtroom moment yet for defense lawyer Robert L. Shapiro, who is expected to cross-examine Brown.

“One potential vulnerability for Denise Brown as a witness is she made many statements immediately after the murders insisting that her sister Nicole was not a battered woman,” said UCLA law professor Peter Arenella. “The defense may use these statements on cross-examination to suggest that Denise has reinterpreted the past in her understandable anger and sorrow.”

But questioning Brown about her prior statements would be extremely dangerous for the defense, according to several legal experts.

“It is a minefield,” said Los Angeles defense lawyer Albert De Blanc Jr., because there is no way for the defense to predict how Brown would respond to such questions.

Defense lawyer Leslie Abramson agreed. Despite the fact that Brown has made contradictory statements, it would be a disaster for the defense to question her about the inconsistencies, Abramson said.

For one thing, if the defense probes into this area, it would open the door to allowing Brown to express her opinions on battered women’s syndrome, something she could not do on direct examination because she is not an expert witness, Abramson said.

“If the defense walks into this, there is nothing to gain,” she said. “With another witness you might want to show bias, but not with Denise. Everyone understands she is biased. The things the defense has to refute are the incidents she describes, not her opinions.”

The way to do that is through other witnesses who could provide contradictory accounts of the same events. These include an incident in which, according to Brown, “O.J. grabbed Nicole’s crotch and said, ‘This is where babies come from and this belongs to me.’ ”

Brown sobbed openly as she related in court Friday an incident that she said began when she told Simpson he took her sister for granted:

“He started yelling at me. ‘I don’t take her for granted. I do everything for her. I give her everything.’ . . . And then a whole fight broke out. . . . He grabbed Nicole, told her to get out of his house. Wanted us all out of his house, picked her up, threw her against the wall, picked her up, threw her out of the house. . . . She ended up on her elbows and on her butt. . . . He grabbed me and threw me out of the house.”

The defense has indicated that it has witnesses who will describe those incidents very differently later in the case.

Another approach the defense might take, Chaleff and Abramson said, is to ask Brown about all the times she was with her sister and O.J. Simpson when nothing untoward occurred--such as family birthday parties.

If Brown were to deny that there were good times, then the defense team could ask the judge to allow it to show home movies displaying cheery family parties--the sort of movies the Brown family made available for its television appearances on ABC, noted Abramson, who is serving as a trial consultant to that network.

“You have to do this very carefully,” Chaleff said. “If you’re the defense, you want to let the feeling come out that Denise doesn’t want to say anything positive about O.J. You don’t do that by attacking her.”

Yet another approach for the defense is to ask Brown what she did when she witnessed the alleged incidents of abuse, said Paul Mones, an attorney who has defended several battered women who killed their husbands in retaliation for years of abuse.

Mones said a traditional question would be: “When you saw your sister being treated this way, did you ask your sister to report that to the police?” Or “Did you ask your sister to file a domestic violence complaint?”

The purpose of such questions--if the defense knows the answer is “no”--is to attempt to minimize the gravity of the incidents.

According to sources, the defense has numerous statements Brown gave to the district attorney’s office that were turned over as part of the discovery process. But it is not known whether Brown ever suggested such action to her sister.

Mones said it is conceivable that prosecutor Christopher Darden, anticipating that the defense might take that tack, would ask Brown these questions himself during direct examination in an attempt to take the thunder out of the cross-examination.

This would be a way for the prosecution to allow Brown to explain the evolution of her views on battered women’s syndrome.

Mone said this is a particularly tricky area because “this case is the mirror image of the normal battered woman murder case,” in which he would be defending an abused wife who killed her husband. In those cases, he said, prosecutors typically try to show that individual incidents of abuse were not that significant by revealing that the woman did not report them to authorities. But in the Simpson case, he said, the roles are reversed and the defense has an interest in minimizing each of the incidents.

Several domestic violence experts said it is typical not only for victims of such abuse to hide these events from friends and family, but for the loved ones to want to avoid confronting the ugly realities as well.

“I think family members have a hard time coming to grips with the fact that a relative is a battered woman,” said Marilyn Cornell, a marriage and family therapist in San Diego who has testified as an expert witness on family violence.

“It’s very easy for the family to remove themselves; it’s very painful to admit that there is a problem. Nicole may have wanted to protect her parents, protect her sisters. I’m sure the family is experiencing guilt: ‘Why didn’t I see this? Why didn’t I do something?’ ” Cornell said.

Shapiro was not available for comment Saturday on his plans for the cross-examination. Simpson’s lead trial lawyer, Johnnie L. Cochran Jr., said the defense had made a thorough database search of all Denise Brown’s media interviews and would like to ask her when she changed her mind and concluded that her sister was a battered woman.

“Was it when Gloria Allred became involved?” Cochran asked, referring to the feminist attorney who argued vigorously that members of the Brown family have a right to be in court during the trial.

But, in a weekend interview, Cochran acknowledged the defense’s dilemma: “It’s such a tough situation. . . . You have to be very careful.”

Indeed, one false move could lead to big trouble. “You don’t want to open the door to letting her talk about other incidents by sloppy questioning,” Abramson said.

A defense lawyer, she said, should try to skillfully focus on the fact that the incidents Brown described involved heavy drinking, and to draw out that drunkenness was not the usual state of affairs in the relationship.

But in the end, Abramson said, there is a clear bottom line in cross-examining Denise Brown:

“The one thing you absolutely don’t want to do is dirty this woman up, to go on the attack mode.”

The Simpson Case

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