NEWS ANALYSIS : Miscalculations, Bad Luck Hurt Prosecution

On the morning of her final argument in O.J. Simpson’s double murder trial, Deputy Dist. Atty. Marcia Clark stepped onto the elevator outside her 18th-floor office in the Downtown Criminal Courts Building and began the usual, halting nine-floor ride down to Judge Lance A. Ito’s high-security courtroom.

As she clutched a brace of green loose-leaf notebooks tightly to her chest, Clark turned to a reporter and asked, “Do you think the jurors are interested in what I have to say?” With each syllable, the concern in her voice seemed to deepen until it filled the tiny space like a cloud.

In fact, that dark pall of doubt had cast its anxious shadow across the Simpson prosecution from the start. So, even though she argued her case from atop what she repeatedly called a “mountain of evidence,” Clark and her colleagues never managed to break through into the open air of clarity and confidence. From the beginning, legal analysts say, they appeared to be on the defensive, fearful of O.J. Simpson’s celebrity and intimidated by his all-star defense team. They also were dogged by bad luck and a series of tactical miscalculations, including the decision to try the case Downtown, where suspicion of the police is considered higher and the impact of testimony concerning domestic violence is generally thought to be less.

“But their worst mistake,” said veteran defense attorney Harland W. Braun, “was to use [former LAPD Detective] Mark Fuhrman, a witness they knew was a racist and a liar. They tried to slide him over thin ice and, when the tapes landed on them, they all fell through.”

For its part, the defense--by turns audacious and tenacious--proceeded with an apparently unassailable confidence. Just days into the trial, lead defense attorney Johnnie L. Cochran Jr. confided to a reporter, “These jurors are good and honest people. I know their hearts and they know mine. And that’s how I’m going to talk to them, heart to heart.”

Beyond simple rapport, Braun said, the defense “got lucky by taking advantage of those prosecutorial mistakes.”

“They also were able to put on a more cohesive case because their chief decision-maker--Cochran--was in the courtroom,” Braun said, “and all the prosecution’s important decisions were made by [L.A. County Dist. Atty.] Gil Garcetti, who wasn’t.”

The consequences of both sides’ decisions may be with Californians for years to come, rattling the very foundations of the criminal justice system. “The real problem here is that the American justice system, the California justice system, was not designed for a defendant with $4 million or $5 million to spend to create reasonable doubt in a person,” said Justice J. Anthony Kline, who was appointed to the state Court of Appeal by Democratic Gov. Edmund G. (Jerry) Brown Jr. “People will want to change protections that have worked well for 200 years. . . . The effect of this trial is probably going to be catastrophic.”

In a preview of just how sweeping this debate may become, Gov. Pete Wilson called Tuesday for the elimination of cameras from the courtroom and new restrictions on the scope of defense attorneys’ final arguments.

Wilson called on the California Judicial Council to devise rules to prevent lawyers in closing arguments from making political appeals to jurors, to ban cameras from state trials and to consider extending trial days when juries are sequestered.

“I find it particularly distressing . . . when lawyers do not argue the issue at hand--when they do not confine their comments to the matter of the defendant’s innocence or guilt--but instead ask jurors to use a verdict as a means of sending a political message to law enforcement,” Wilson said, referring to Cochran’s closing arguments. The governor’s proposals were contained in a letter to Malcolm M. Lucas, chief justice of California and head of the judicial council.

Where Prosecutors Went Wrong

Legal analysts generally were united in their assessment of how prosecutors lost the Simpson case, though they differed somewhat in their explanations of how the defense won. Denver’s chief deputy district attorney, Craig Silverman, called the verdict “a complete repudiation of the prosecution,” which he attributed to mistakes in the choice of venue and jurors, as well as “lackluster” opening statements. “The prosecution,” he said, “suffered three strikes before any evidence was presented. They can complain all they want, but they created a situation where rational people could come to a verdict of not guilty.”

Like many observers, veteran Los Angeles prosecutor Harvey Giss also thought the first mistake was moving the case away from Santa Monica, which is closer to where the murders occurred. “Had this case been tried in another part of the county, it might have been different. Let’s face it, the composition of the jury is everything. What kind of person, irrespective of their race, do you expect to sit on a jury for this long? I’m an experienced prosecutor and I can’t begin to understand DNA. How would you expect a jury, only one of whom is a college graduate, to do so?

“If I had the chance to try this defendant on the Westside or Downtown, I’d try him on the Westside. But the logistics are easier for the front office Downtown.”

Location notwithstanding, former Dist. Atty. Ira Reiner said, “The question of whether he did it was not the ultimate question. It was only the predicate to the ultimate question. And the ultimate question was would the jury be willing to convict even if they believed he had done it because of this deep reluctance to bring down a black icon.”

Indeed Garcetti, who defeated Reiner in the 1992 race for district attorney, said that “it was clear, at least it is to me and I think to other members of the prosecution team, that this was an emotional trial. Apparently, their [the jurors’] decision was based on emotion that overcame the reason.”

Assuming that such reflexive reservations were at work, “the prosecution was severely hampered,” said defense attorney Marcia Morrissey, “by the LAPD, by the mistakes of the coroner’s office and by the Fuhrman debacle, which made race an inextricable part of this trial.”

“They also had to contend with Detective Philip Vannatter’s lies in his search warrant affidavit,” Morrissey said. “Taken together, these things add up to a credibility problem, which the prosecutors never took seriously and failed to address in a timely way.”

Defense’s Advantage

Defense lawyers, Morrissey said, benefited from their projection of “an unwavering belief in their client’s innocence.”

More tangibly, she added, “They also had the money to adequately defend against the combined resources of the county of Los Angeles, the state of California and the Federal Bureau of Investigation. Most citizens charged with crimes do not have the ability to gain an acquittal by challenging the prosecution’s evidence at every turn, as Simpson’s lawyers did.”

The defense’s unusual quantitative equality with the prosecution translated into a qualitative courtroom advantage, according to several analysts.

“The defense’s strategy of attacking each piece of scientific evidence was successful,” said criminal defense lawyer Gerald L. Chaleff. “This assault, led by Barry Scheck, gave credence to their argument that although the science was sound in principle it was flawed in execution. This attack also dovetailed with the assault on the LAPD as the root of all the problems in this case, whether through deceit or incompetence. Additionally, they successfully shifted the focus of the case away from Simpson and onto police misconduct, incompetence and even onto the prosecutors for their selective use of witnesses.”

In fact, Scheck and his partner, Peter Neufeld, who watched the verdict announcement together on television at Scheck’s apartment in Brooklyn, both stressed the fact that jurors appear to have accepted their analysis of the forensic evidence.

“When you take a reasoned review of that evidence,” said Scheck, it all adds up “to reasonable doubt. . . . It’s a cancer at the center of the case. Most citizens could not render a guilty verdict on this evidence and that’s why this is a great country.”

Neufeld said that “the bottom line was that the LAPD’s scientific investigation division was one of the most poorly trained and poorly structured in the country, and it was utterly lacking any meaningful supervision.”

“We were able to show that just because DNA is used by some top research laboratories doesn’t mean it’s practiced properly by crime labs, in particular by the LAPD,” he said.

Former federal prosecutor Laurie Levenson, now a Loyola University law professor, was one of several experts who noted that jurors apparently were particularly impressed by the testimony of the defense’s most eminent forensic witness, Henry Lee.

“You have to credit Bob Shapiro, who went out and hired all the defense experts at the beginning,” she said. “Not only did he freeze out the prosecutors from using these experts, but he also gave the defense tremendous weapons to use in their case.”

Levenson recalled Lee’s repetition of the phrase “something wrong” as he evaluated the evidence for the jury. “Something wrong works better with jurors who instinctively believe that there will be something wrong when you’re dealing with the LAPD,” she said.

Suspicion of the police was a powerful weapon in the defense arsenal, said defense attorney Braun. “What happened is that the LAPD was so discredited by the defense that the jurors disregarded any evidence that turned on police testimony,” he said. “And that was 90% of the evidence. So they were left with 10% of the evidence and an unlikely, sympathetic defendant. Usually, the prosecution enjoys the advantage of scary defendants, who frighten even their own attorneys. In this case, you had a popular defendant with an extremely likable chief counsel.”

Beyond the Courtroom

For months many criminal defense lawyers have fretted that Simpson’s acquittal might spawn measures to restrict defendants’ rights in other criminal cases. The Polly Klaas murder led to the passage of the “three strikes” initiative. The Oklahoma bombing prompted new anti-terrorism legislation in Congress. And the Simpson trial already has produced a new rule limiting what lawyers can say to the news media outside the courtroom.

While Gov. Wilson was making proposals to the judicial council, others were already thinking in terms of the initiative process. Mike Reynolds, the Fresno photographer who wrote the successful “three strikes” measure that toughened sentencing, said Tuesday that reformers might consider barring juries from knowing the identify of defendants, including their race, and requiring all defendants to be represented by public defenders to even out the playing field for lawyers.

But USC law professor Erwin Chemerinsky called the proposals “outlandish” and probably unconstitutional. He also criticized Wilson’s suggestions.

“I think this is the ultimate example of a unique case potentially making very bad law,” Chemerinsky said. “The camera in the courtroom wasn’t the reason the verdict was what it was. To blame the camera is to blame the messenger. And in terms of closing arguments, it reduces nine months of trial to an incredibly simplistic argument.”

But any proposals to change criminal proceedings could receive a boost if advocates enlist the families of the victims in the Simpson case. Fred Goldman, the father of Ronald Goldman, indicated at a tearful press conference Tuesday that he wanted to take steps to prevent a “similar tragedy” from befalling another family.

“It sounded like he was certainly open to carrying this forward,” said political strategist Arnold Steinberg. “I just hope that nobody exploits him for political purposes.”

The verdicts also are certain to prompt a re-examination of the jury system. Although the case cannot be used to support current proposals to allow for non-unanimous juries, it may spark efforts to limit the influence lawyers have in selecting jurors.

Ruben Lopez, chief consultant to the Assembly Judiciary Committee, predicted the verdicts will prompt legislators to consider ways to further limit lawyers’ role in selecting jurors, particularly through the use of jury consultants. “All the issues relevant to re-examining the jury system probably will be examined once again,” Lopez said.

Critics of the jury system have long complained that social scientists hired to help select jurors give well-heeled defendants or litigants an unfair advantage. Indeed, Cochran on Tuesday lavishly praised Simpson consultant Jo-Ellan Dimitrius for her role in the case.

But the prosecution also employed a jury consultant in the case: DecisionQuest Inc., a Torrance trial consulting firm. Philip Anthony, chief executive officer of the company, minimized his firm’s role in the trial, however. He said his firm primarily designed the prosecution’s courtroom exhibits.

Beyond the exhibits, “they did not use us to any great degree,” he said.

San Diego criminal defense lawyer Elisabeth Semel, co-chair of the legislative committee of the National Assn. of Criminal Defense Lawyers, said that changing the jury selection system because of the Simpson case would make little sense. Most defendants do not screen jurors with questionnaires, and judges, rather than attorneys, increasingly do the questioning, she said, calling the Simpson case “atypical.”

To defense attorney Gigi Gordon, most of the proposals being batted around Tuesday missed the substance of the Simpson verdict. “The D.A.s failed to appreciate the depth of distrust in the community when it comes to the LAPD,” she said. “It wasn’t just Henry Lee saying ‘something wrong,’ it was the jurors’ fear that--in Shakespeare’s phrase--’something wicked this way comes.’

“If people refuse to accept what this jury has said, then we’re in for more of what brought us here, which is the perception that business as usual means unequal justice. What this jury said is that the county of Los Angeles ought to go out of business as usual.”