NEWS ANALYSIS : Defense’s Chances Lie in Seeds of Doubt

It’s all about doubt.

Some philosophers call doubt the beginning of wisdom; pragmatic criminal defense lawyers know it as the seed from which victory springs.

That’s because when Americans stand accused of crimes, their fates are decided not by what “everybody knows,” but by what 12 ordinary men and women cannot “reasonably doubt.”

Now that O.J. Simpson’s lawyers finally have rested their case, the question is: Did they create enough doubt in the jurors’ minds to break just one link in the chain of circumstantial and scientific evidence prosecutors say stretches from the walkway where Nicole Brown Simpson and Ronald Lyle Goldman died to the foot of the former football star’s bed?

Over 11 fitful weeks, Simpson’s attorneys marched more than half a hundred witnesses to the stand, including a dog lover who details cars, a chiropractor, a physician who worries over football players’ sore knees, a songwriter, a screenwriter with lawyers but no film credits, biologists, one mathematician who studies trees and another who evaluates nuclear reactors, some of the forensic science community’s most revered elder statesmen, a couple of FBI agents and two guys from Boston who once made their living collecting accounts receivable for the financial services division of an unsavory fraternal organization.

But, in the end, 12 long-suffering jurors may choose to balance the scales of justice by weighing not only what the former football star’s defense said, but also its silences.

The silence of Mark Fuhrman, the disgraced former LAPD detective who sought shelter in the 5th Amendment rather than submit to further cross-examination, may arouse the jurors’ suspicions. The silence of the accused, O.J. Simpson, may tantalize them. And the long, wearying, unexplained silences that marked the trial’s chaotic final phase may lead at least some of them to vote their spleens rather than their consciences.

‘Pouring Water Into an Overflowing Glass’

When lead defense attorney Johnnie L. Cochran Jr.’s stubborn refusal to rest collided with Judge Lance A. Ito’s immovable resolve to put witnesses before his restive jury, it sent the case spinning off into a procedural never-never land in which the prosecution’s rebuttal witnesses testified before Simpson’s lawyers actually closed their case.

“All this disintegration of the order of proof here at the trial’s end is maddening to anyone trying to maintain some semblance of a coherent memory of what this case is about,” said defense attorney Gigi Gordon. “It’s sure to irritate the jurors. It’s like pouring water into an overflowing glass. There comes a point when no human being is capable of taking in any more information. The public reached that point long ago, but we don’t know about the jurors.

“And there is no way to know,” Gordon added. “For example, one of the most frequently cited signs of juror interest is note-taking, which is indicative of nothing. I do it myself in court sometimes just to keep from dozing off or going mad from boredom.”

Defense lawyer and author Brian C. Lysaght was of a similar mind. “This jury wants to get into the jury room as quickly as possible,” he said, “and anything that stands in their way is an impediment and anybody who puts it there is the enemy.

“The last substantial event that occurred in this trial was the Kathleen Bell/Natalie Singer/Laura Hart McKinny sequence,” Lysaght said, referring to witnesses who testified that Fuhrman made racist remarks. “Ever since then, from the jury’s point of view, it’s been a waste of time. The best favor Ito did for the defense was to prevent them from putting on any more witnesses. When you’re ahead on points in the fourth quarter, you don’t go to the air. You run out the clock.”

And while that clock is still ticking, the consensus among legal analysts is that the defense does appear to be ahead on points.

“I think O.J. Simpson got his money’s worth from the Dream Team,” said Loyola law professor Laurie Levenson, a former federal prosecutor. “They’ve kept the prosecutors so busy, so distracted, so much on the defensive, that all they could do was put out fires created by the defense.”

Denver Deputy Dist. Atty. Craig Silverman cast that metaphor in starker terms. “The defense case has been tremendous in its effect,” he said. “They set the prosecution case on fire and the prosecution seemed intent on throwing gasoline on it.”

UCLA law professor Peter Arenella evoked a horticultural image: “The defense did a terrific job in sowing several different seeds of reasonable doubt, not all of which have to flower to secure an acquittal.

“Their expert testimony, especially that of microbiologist John Gerdes and forensic scientist Henry Lee, raised questions about whether any evidence that went through the LAPD can be trusted because of the risk of cross-contamination or more deliberate mishandling.

“The Fuhrman tapes destroyed his credibility and raised the specter that other officers might be willing to cover up Fuhrman’s misconduct,” Arenella said. “And what better way to close than with Roderic Hodge, an African American, who was, in fact, mistreated in a racist manner by Fuhrman.” And although Ito--because of a Court of Appeal ruling--did not tell the jury why Fuhrman did not return for further cross-examination, “pillow talk during the weekly family visits, as well as common sense, might well lead jurors to figure out that Fuhrman has taken the 5th Amendment,” Arenella said.

Harvard law professor Charles J. Ogletree, another of the prominent legal academicians who has followed the trial closely, points out that “the defense has had a narrow focus, which is to challenge critical elements of the prosecution case. I think they’ve executed it masterfully.

“They’ve raised doubts about the forensic evidence, the reliability of the prosecution timeline and--most important--have been able to seriously challenge the credibility of the government’s most important witness, Detective Fuhrman.”

Defense attorney Gerald L. Chaleff was more reserved in his appraisal. “They started strongly with Simpson’s family,” he said, “then stumbled with the timeline and orthopedic section [on Simpson’s physical condition], then finished strongly with medical examiner Michael Baden and Lee and, of course, Fuhrman. The only drawback to their conclusion was how it became attenuated by delays and hearings.

“However, in evaluating how the defense did, it’s important to remember that the jury did not hear all that the public did,” Chaleff said. “For example, they are supposed to know nothing about the 5th Amendment controversy or Fuhrman’s alleged involvement in police abuse.”

Simpson Provides Dramatic Moment

One of the greatest topics of speculation during the defense case was the question of whether Simpson would testify on his own behalf. On Friday, outside the presence of the jury but before a national television audience, he waived that right in an emotional statement in which he once again insisted on his innocence and expressed confidence in the jurors’ fairness.

It was a dramatic moment and, analysts said, a smart tactical move.

“The defense was wise not to put Simpson on the stand because they had too much to lose,” Chaleff said. “Exposing him to cross-examination would have opened the areas of domestic abuse and his prior statement, which is not wholly compatible with this defense.”

In the end, Harvard’s Ogletree said, the much-discussed decision to not have Simpson testify may not matter much. “Johnnie Cochran has been a much better witness for O.J. Simpson than Simpson ever would be for himself. In a sense, Simpson has been testifying every day. His mannerisms, his gestures, his emotional reactions to some of the physical evidence and the testimony are factors that this jury will weigh in determining whether he’s been guilty beyond a reasonable doubt.”

Veteran defense lawyer Harland W. Braun also believes Cochran’s dominance of the courtroom has been a critical factor for the defense. “Cochran is always the center of gravity for the defense and is very likable. Black jurors have to look at him and be proud. He started his career by attacking police misconduct, and he understands all the nuances and racial issues that issue involves. A lot of blacks view the LAPD the way Jews view the SS. The D.A.’s office never understood that. There’s no center of gravity on the prosecution.

“From the beginning,” added Braun, a former prosecutor, “Cochran has understood something the D.A.s never have: You try high-publicity cases at two levels--the factual and the symbolic. The defense did only moderate damage to the prosecution’s factual case but Cochran dominated the symbolism and basically made a guilty verdict the same as a vote for Mark Fuhrman.”

Team of Experts a Defense Advantage

Levenson credits another member of the Simpson team, Robert Shapiro, with giving the defense another critical advantage. “The smartest thing Bob Shapiro did,” she said, “was to go out and hire all those experts--Dr. Henry Lee, Dr. Michael Baden, Fredric Rieders, Herbert MacDonell and even people the jurors haven’t seen, such as Dr. Sol Faerstein, Ed Blake and Lenore Walker. That gave them tremendous expertise to examine the prosecution witnesses and place some of the top names in forensic science and domestic abuse research immediately off limits to the prosecution.”

The key to that process, pointed out defense attorney Marcia Morrissey, was Simpson’s personal wealth. “Because they had those funds, the playing field was more level than it usually is in a criminal case,” she said. “The quality of their experts and investigators made the difference in this case. Without their investigator Pat McKenna, for instance, those tapes never would have surfaced in time for the jury to hear them--and that was the defining moment of this trial.”

Braun cited a less tangible element that also worked for the defense. “Some people ask, is it better to have a lawyer who is lucky or good? The defense in this case was very lucky. The glove could have been found by a veteran black policeman who was a member of the NAACP or a white racist who hadn’t made any tapes. They also were lucky that not one of the people who stepped forward to expose Fuhrman was a policeman, even though we know now that there are lots of policemen out there who knew he lied. That supports Cochran’s charge that there is a ‘conspiracy of silence.’ ”

There also were mistakes in the defense case that may yet come back to haunt them. “At the outset, the defense case was a complete disaster,” said Lysaght, “actually managing at one point to prove that a white utility vehicle--dare we say, Bronco--sped away from the Bundy crime scene about the time of the murders.”

Morrissey, too, said that the defense was injured not only by Robert Heidstra, who testified about the white utility vehicle, but also by “Dr. Robert Huizenga and Richard Walsh, the exercise video maker, all of whom did the defense at least as much harm as good.” In fact, the outtakes from Walsh’s video seemed to show that Simpson believed that wife beating could be a laughing matter.

Morrissey also believes some jurors may be troubled by promises made in the defense’s opening statement that went unfulfilled.

“The jury didn’t see Rosa Lopez and Mary Anne Gerchas [the maid and the former jewelry shop owner who were supposed to give exculpatory evidence], or Lenore Walker [a noted expert on the battered woman syndrome]. They heard nothing about hitting golf balls in the dark on the night of the murders, and they never heard from Kary Mullis, the Nobel Prize winner.

“The prosecutors will remind the jury of this in their final argument. It’s a standard prosecutorial move to go back and see what was proved and what was not proved.”

Georgetown Law School professor Paul Rothstein wondered if the weight of the entire defense case ultimately may be less than the sum of its parts. “The defense has successfully raised sound questions about each of the building blocks of the prosecution’s case--that is each particular piece of evidence,” he said. However, he added, while each question raised by the defense makes sense when considered alone, “it may be difficult for a jury to buy that so many things happened negligently or purposefully to implicate O.J.”

Veteran Miami defense lawyer Albert J. Krieger said that for all the questions it has raised about the prosecution case, the defense has not advanced “a coherent theory” of why Simpson is not guilty. The defense, he maintained, has been characterized by “chaos with charisma.”

On the other hand, San Diego defense lawyer Elisabeth Semel said that although it is very helpful for a defendant to present a plausible alternative scenario, it is not essential. “It’s not uncommon for jurors to vote to acquit when they simply are not satisfied that the prosecution has proved its case, despite the fact that they are left with a feeling of dissatisfaction that they can’t explain who did it or exactly what happened.”

Semel also said she thought the defense team is vulnerable because it thus far has been unable to account for Simpson’s whereabouts during a critical 75- to 80-minute period when the murders may have occurred.

Then there are those legal analysts who wonder whether the entire defense exercise really was worth the effort. Some believe that the defense had established sufficient reasonable doubt simply through its cross-examinations of the prosecution’s own witnesses. “I’m not convinced that they should have put on a defense--even after hearing it,” said Gordon.

“They got some great theater out of their effort, particularly when they marched Fuhrman on stage for his cameo and the Fiato brothers on for whatever that was.

“But the question is: Was there more of a mystery before the defense presented its case than there is now?

“This case will be won or lost in the scientific evidence. And the defense’s best attack on that was during Barry Scheck’s cross-examination of the prosecution’s scientific experts. He turned it into a referendum on whether there is such a thing as objective science, and showed that, if there is, it isn’t in the forensic division.

“That’s where the reasonable doubt has to start,” Gordon said. “It’s like throwing a rock in a pond. The pond where you need to make real waves is called science. I didn’t think it could be done, but I saw Scheck do it.”