NEWS ANALYSIS : Determining Time of Death Is Imprecise Science at Best : Simpson case: 'Quincy Syndrome' has set unrealistic expectations. But defense will try to exploit doubt.

TIMES LEGAL AFFAIRS WRITER

Burning candles. Melting ice cream. Barking dogs. Thumps in the night. A shadowy figure moving through the dark.

As the O.J. Simpson murder trial moves past the high-stakes cross-examination of LAPD Detective Mark Fuhrman, it returns to those detective novel-style clues that surround a critical issue: When did Nicole Brown Simpson and Ronald Lyle Goldman die?

It is a question that medical science, even under the best of circumstances, is unable to answer precisely. And the circumstances are far from the best in the Simpson case, in part because police failed to summon a coroner to the scene until hours after the bodies were found.

That has created a significant problem for prosecutors, who must confront what trial lawyers call "the Quincy Syndrome."

Named after the popular television show about a medical examiner, it is the unrealistic notion that a coroner can establish to the minute when a crime victim died.

Absent an eyewitness or a wristwatch fixed in time by a bullet, nothing could be further from the truth, according to forensic experts and experienced criminal lawyers.

"Time of death is one of the most recurring issues in murder cases, but I know of no subject in the entire arena of forensic pathology that is so rife with misunderstanding," said James E. Starrs, professor of law and forensic sciences at George Washington University.

In fact, during his cross-examination of Fuhrman, defense lawyer F. Lee Bailey acknowledged that "no doctor can ever say (a) victim died at 32 1/2 minutes past the hour. It's not that precise."

But because the burden of proof is on the prosecutors, anything that happened during the investigation to make it more difficult to assess the time of death becomes their problem at trial.

"I don't think you will have much more narrowing of the time of death than we have now, and that benefits the defense," said Los Angeles lawyer Barry Levin, a former LAPD officer who has represented numerous defendants in homicide cases. "The defense will argue that Simpson shouldn't be penalized because the coroner didn't get there sooner."

Because of the nature of Simpson's alibi, an accurate assessment of the time of death is critical, Levin said.

The issue is so important that prosecutors have already called seven witnesses to testify about when they heard Nicole Simpson's Akita start barking, to buttress their contention that the dog's howls are perhaps the most precise indicator of when the murders occurred. That, in itself, is ironic in a case in which some of the prosecution's most significant evidence depends on high-tech DNA blood testing.

The battle over the time of death has been a low-tech one so far. The defense has tried to suggest that a cup of melting ice cream at the scene indicates a later time of death, but the ice cream was never tested by authorities. A prosecution witness said the cup contained the lumpy part of chocolate chip cookie dough ice cream, which does not melt like the creamy part.

Defense lawyers also chided officers for failing to perform tests to determine how long candles had been burning throughout Nicole Simpson's condo on the night of the murders.

The prosecution, which so far has made much of the barking dog, is expected to move soon into testimony about when Simpson guest house tenant Brian (Kato) Kaelin heard a sharp thump near his room. Prosecutors also are expected to call to the stand limousine driver Allan Park, who has previously testified about seeing the shadowy figure of a tall black person striding across the lawn of Simpson's estate, toward the front door, a few minutes before 11 p.m.

Both Kaelin and Park could be called this week, depending on how long LAPD Detective Philip L. Vannatter remains on the stand. With the appearance of Kaelin and Park, the focus on time of death--and how it relates to Simpson's alibi--will take center stage.

"Determining the time of death is a very inexact art, to say the least," said Dr. Paul Herman, a respected Oakland pathologist, expressing a widely held view that prosecutors Marcia Clark and Christopher A. Darden would like the jury to adopt.

The reason is simple: If there are limitations on how precisely the time of death can be pinpointed, it helps prosecutors minimize miscues made by police and the coroner's office.

Prime among them were the LAPD's decision to keep coroner's staff away from the crime scene for nearly 10 hours after the bodies were discovered, the decision of the coroner's office to send an investigator rather than an experienced medical examiner to the scene, and an assistant coroner's failure to preserve Nicole Simpson's stomach contents.

"There is no question that it sounds absolutely terrible that the coroner did not come for 10 hours," said Southwestern University law professor Myrna Raeder. "People I talk to from other jurisdictions are appalled.

"All that being said, however, it would be exceedingly difficult under the best of circumstances to come to a decision on the time of death within a half-hour, and that's what they are fighting about in this case," Raeder said. "The question is whether the prosecution will be able to explain that to a jury."

The prosecution's theory is that the murders occurred about 10:15 or 10:20 p.m., when Nicole Simpson's Akita started wailing plaintively, according to seven witnesses. That scenario would have given O.J. Simpson enough time to flee, discard a weapon and his bloody clothes and return to his nearby estate to meet limousine driver Park at 10:55 p.m.

Nicole Simpson was last known to be alive at 9:40 p.m. on June 12 when she talked to her mother on the phone. Goldman was last seen by some friends at 9:50 p.m., leaving work to deliver some eyeglasses to Nicole Simpson. Her neighbors found their bodies at 11:55 p.m. that night. That sets a period of two hours and 15 minutes during which the killings could have occurred.

Simpson, who maintains his innocence, has said through his lawyers that he was chipping golf balls in his yard and possibly napping at the time the prosecutors say the murders occurred. But no one has come forward to corroborate where he was in the 70 minutes between 9:45 p.m. (when he and Kaelin returned to his home from getting hamburgers at McDonald's) and 10:55 p.m. (when he met Park, who drove him to Los Angeles International Airport).

"This is a case where minutes will make a drastic difference in the guilt or innocence of O.J. Simpson. If he is the killer, his ex-wife and Goldman had to have been murdered before a certain time," said attorney Levin.

"If the defense lawyers are precise in asking an expert witness, 'Isn't it reasonable, doctor, to say from a scientific standpoint that these two people could have been murdered as late as 11 p.m.?' and if the doctor says, 'Yes,' then you have reasonable doubt," Levin said.

Simpson's lawyers want to convince jurors that the murders occurred long after 10:15 p.m., closer to 11 p.m., eliminating his window of opportunity to have committed the crimes, or at the very least persuade the panel that there is not a reliable time of death because of shoddy work by police and coroners, thus entitling Simpson to an acquittal on grounds of reasonable doubt.

But the prosecutors would like to convince the jury that even if the authorities had done everything perfectly, they could not have narrowed the time of death much more than they now have--to the two hours and 15 minutes.

Clark foreshadowed the prosecution's approach in her opening statement:

"The coroner can never really be that precise. A coroner . . . can usually bring it down to a range of within three hours--between 9 and midnight, between midnight and 3--but if you want to pinpoint the time to within a minute, 10 minutes, a half-hour or even an hour or two hours, a coroner solely by his examination of the body cannot do it.

"We always have to rely on the testimony of other witnesses, witnesses who will tell you when the victims made a phone call or when they heard the victim leaving the house or when they last saw the victim," Clark added.

But Simpson's lead lawyer, Johnnie L. Cochran Jr., promised jurors in his opening statement that he would call to the witness stand "one of the leading pathologists in the United States," Michael Baden, who he said was able to pinpoint the time of actor John Belushi's death to within one hour.

It remains to be seen if Baden will attempt to discus the Belushi case during his testimony. But defense lawyers may ask Baden about another of his cases.

In 1988, he helped secure the murder conviction of a man whose wife's frozen body was found in a car trunk 11 days after she disappeared in Albany, N.Y. In that case, Baden may have pushed the limits of forensic science by narrowing the time of death to one hour based on an examination of the woman's stomach contents, which included undigested potatoes with still-visible serrated knife marks.

Apparently unaware of that case, LAPD Detective Tom Lange, responding to a question from Clark, testified that he had never heard of a pathologist being able to narrow the time of death closer than a range of two to three hours based on stomach contents.

Baden acknowledged in an interview that the circumstances of the Albany case were "unique."

But Simpson's lawyers probably will attempt to persuade jurors that if the LAPD had immediately notified the coroner about the homicides, as California law requires, pathologists could have made a more accurate assessment of the time of death, potentially clearing their client. Instead, Cochran said scornfully, prosecutors are relying on "a dog's wail when a man's life is at stake."

Most of the time, according to noted Pittsburgh pathologist Cyril Wecht and other medical examiners, narrowing the time of death to two hours and 15 minutes would be very good, in part because bodies are normally not found as soon as they were in this case.

But that may not be good enough in the Simpson trial, Wecht said. That's because the police and the coroner's office did enough things wrong to give Simpson's lawyers ample opportunity to raise doubts about their findings, according to Wecht, other pathologists and criminal lawyers.

Then there is Dr. Irwin Golden.

When he testified at the preliminary hearing, Golden, who performed the autopsies, had his credentials ridiculed by Simpson attorney Robert L. Shapiro, and prosecutors are concerned about how a jury will react to him, a district attorney's source said.

At the July preliminary hearing, Golden conceded that he discarded Nicole Simpson's stomach contents. Numerous experts said he should have saved the contents, a potential aid in determining time of death.

Golden testified that the murders were committed "somewhere between 9 (p.m.) and midnight," and acknowledged on cross-examination that the normal measurements used to make that assessment would have rendered more precise results if taken sooner.

The prosecutors' burden was heightened this month when Juan J. Jimenez, a coroner's official, blasted the LAPD for failing to get his colleagues to the crime scene soon enough to do their job properly.

"Ten hours. Then we get there and you want to tell us when he died?" Jimenez said after a speech at a forensics conference. "They dropped the ball. They've done this on numerous occasions."

Cochran promptly said he would call Jimenez as a defense witness.

There is expected to be a lively debate over how much difference it would have made if police had called the coroner promptly.

Pathologists say they review several factors in attempting to assess time of death: the temperature of the body (algor mortis), the degree of rigidity (rigor mortis), the degree of discoloration of the skin (livor mortis), the degree of decomposition of the body and chemical changes in the eyes.

Dr. Lester Adelson, longtime chief deputy medical examiner in Cleveland, said body temperature is the most reliable indicator because it drops about 1.5 degrees per hour after death, depending on the air temperature.

"If you find a warm body in a snowbank, you know the person hasn't been dead very long. Some of this is just common sense," said Adelson, author of the textbook "The Pathology of Homicide."

In the Simpson case, all the measurements were delayed at least eight hours. Still, expert pathologists differ over how much impact that delay had on assessing the time of death.

Ultimately, of course, it will be up to the jury to assess the significance of the glitches and the experts' calculations and to analyze this information in the context of all the other evidence.

"No case is won or lost on one piece of evidence, but there are several pieces of evidence on which there may be doubt, and this is one on which there is a lot of doubt," said Dr. Werner U. Spitz, former chief medical examiner of Wayne County, Mich., who has consulted on many high-profile cases, including the 1969 drowning death of Mary Jo Kopechne and the congressional investigation into the assassination of President John F. Kennedy.

On the other hand, the defense may still have problems even if the police and coroner's office fare poorly on the time issue.

"Let's assume this was the most screwed-up investigation in history," said defense lawyer Gerald L. Chaleff. "The defense still has to explain (DNA test results indicating) O.J.'s blood (was) . . . at the murder scene."

* THE SPIN: A talk with parolees reveals insights into Simpson case from those who know the justice system. B1

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