Before O.J. Simpson tried on the glove that didn't fit, before former Detective Mark Fuhrman was discredited, before police criminalist Dennis Fung stumbled through his trial testimony, prosecutors made a key decision that critically handicapped them from the start, many legal experts say.
They filed charges against Simpson in a Downtown court instead of in Santa Monica.
Juries drawn for the Santa Monica courthouse are more affluent, better educated and have a different ethnic mix than those at the Downtown courthouse. A Westside jury in the Simpson double-murder trial, legal experts say, would have been much more receptive to the prosecution's case.
The wrongful-death lawsuits that have been filed against Simpson are scheduled to be tried next spring in Santa Monica, which will give plaintiff's attorneys a tremendous advantage and will, once again, highlight the prosecution's decision in the Simpson case, the experts contend.
In two of the biggest cases ever tried by the Los Angeles County district attorney's office--the Simpson case and the Simi Valley trial of four Los Angeles Police Department officers accused of beating Rodney G. King--the location of the trial was a crucial factor.
Both trials revealed the chasm between Southern California's white and black communities and showed that in a multiethnic, polarized city such as Los Angeles, where a case is tried may be as important as how it is tried.
When Dist. Atty. Gil Garcetti faces reelection in March, his decision to file the case Downtown may come back to haunt him. Garcetti's political opponents already have blasted him for micro-managing the Simpson case, and have criticized a number of key decisions made by him and his team of prosecutors, including not filing the case in Santa Monica.
"Where you try the case, and who you have on the jury, has everything to do with the outcome," said Robert Pugsley, a Southwestern University law professor. "The exact same case--in Santa Monica--absolutely could have been a hung jury or a conviction."
Garcetti defended his decision in a recent interview, contending that the case would have been moved Downtown even if he had filed it in Santa Monica.
"We always knew this case was going to be tried Downtown," Garcetti said. "We knew it couldn't be tried in Santa Monica. . . . It was a given . . . based on our experience and the history of big cases."
Although a number of current and former judges disagree, Garcetti cited several reasons: The Santa Monica courthouse suffered tremendous damage during the Northridge earthquake, the facility is too small, its court calendar was "grossly overcrowded" and it did not have adequate security to handle a long-term, high-profile trial. He added that the county had spent more than $1 million renovating courtrooms on the ninth floor of the Criminal Courts Building for high-profile cases such as Simpson.
"We took the position that it was automatic" that the case would be moved Downtown, Garcetti said.
But Judge Robert M. Mallano, presiding judge of the Los Angeles Superior Court at the time of the trial, said moving the case "would not have been automatic." Mallano said the decision would have been left to the judge who supervised the county's criminal courts at the time, Judge Cecil J. Mills, who refused to comment about the Simpson case.
While a trial of the magnitude of the Simpson case might have strained the resources of a relatively small facility such as the Santa Monica courthouse, it could have been held there, said a number of current and former Downtown and Santa Monica judges. After all, those judges noted, the Michael Jackson civil trial was scheduled to be tried in Santa Monica before it was settled out of court. In addition, the major courthouse damage from the earthquake was repaired by the time the Simpson trial began.
There also were compelling legal reasons to try the case in Santa Monica, the judges said: It is the jurisdiction where the crime occurred and the jurisdiction where the suspect lived. It is also where Simpson, an affluent celebrity, could be judged by jurors many of whom are his peers in every respect except race.
"The case belonged in Santa Monica," said retired Superior Court Judge Leonard Wolf, presiding judge in Santa Monica from 1986 to 1989. "And to say the case couldn't have been tried in Santa Monica is simply wrong--it could have been tried there. . . . A number of major criminal cases have been tried in Santa Monica."
Before the trial began, according to sources, Garcetti had said privately that he was concerned that a conviction handed down by a mostly white Westside jury would "lack credibility." He also said that the "perception of justice" was very important in this case. At the time, sources said, Garcetti was convinced that prosecutors had overwhelming evidence against Simpson and did not think a Downtown jury would be a handicap.
Garcetti denied in a recent interview that the racial composition of the jury pool influenced his decision to file the Simpson case Downtown.
Although Garcetti said race was not a factor in the decision, some legal experts believe it was his responsibility to consider it. In Los Angeles, they said, the district attorney has a broader role than simply to seek a conviction in a racially charged trial--because deadly rioting was sparked by the Simi Valley jury that acquitted the officers charged with beating Rodney King.
"I do think the D.A. should consider not just justice, but the appearance of justice," Southwestern's Pugsley said. "The district attorney has an additional burden not carried by a defense attorney, whose sole responsibility is to his client. Garcetti may have feared for the long-term race relations of the city."
But Laurie Levenson, a professor of criminal law at Loyola Law School and a former federal prosecutor, said it is the district attorney's job to do everything legally possible to win cases. Prosecutors, she said, cannot afford to give up any advantage.
The 6th Amendment states that a trial should be held "in the district" where the crime is committed. This is important, Levenson said, because a crime is not just against an individual but also against the community.
Several deputy district attorneys said in interviews that even if the odds were against keeping the Simpson case in Santa Monica, they would have filed it there anyway. If a supervising judge decided to move the case, they would have fought the decision.
"Any time you have a tactical advantage you're a damn fool to give it up," said Deputy Dist. Atty. Harvey Giss, a veteran prosecutor. "You argue like crazy to remain in a particular locale if you think it is to your advantage. It's like baseball. You play your percentages. That's what the game's all about."
But, Giss added, with such a massive, complicated case, and with so many prosecutors involved, it was much easier to coordinate the Simpson case from Downtown, where the district attorney's main offices are located.
Garcetti has contended that when prosecutors made the decision to take the case to the grand jury, instead of presenting it at a preliminary hearing, that meant the case would be tried Downtown. He said he wanted a grand jury indictment because it would have brought the case to trial faster, which he believed gave prosecutors an advantage. Judge Mills, however, dismissed the grand jury because members may have been tainted by hearing television broadcasts of 911 tapes in which a man identified as Simpson is heard screaming at his wife.
It is true that the vast majority of grand jury cases are tried Downtown, according to the judges interviewed. But it turned out to be a blunder taking the case to the grand jury, legal experts said.
"The decision to take the case to the grand jury ended up backfiring," Levenson said. "Garcetti ended up with a preliminary hearing anyway. And all the grand jury did was lock some witnesses into testimony that came back to haunt the prosecution."
A Santa Monica jury would have been far more advantageous to prosecutors for many other reasons than race, said Richard Gabriel, one of four jury consultants who worked for Simpson's attorneys. A Santa Monica jury, Gabriel said, would have given much more credence to two crucial elements of the prosecution's case: domestic violence and DNA evidence.
How a jury regards domestic violence and DNA evidence is more a matter of education and income level than race, Gabriel said. For example, he recently worked on a case in West Virginia where a low-income, all-white jury had the same attitudes about domestic violence as jurors in the Simpson case.
After the Simpson verdict, several jurors said they dismissed the importance of Simpson's history of domestic abuse, with juror Brenda Moran calling the domestic abuse issue "a waste of time."
An aspect of the case that might have been overlooked by prosecutors initially, Gabriel said, is the race of the victims. Many white jurors will identify and empathize with white victims to a greater extent than will black jurors, he said.
"If the crime was committed in the community where you live, you'll have a much stronger gut-level reaction," said Gabriel, who now heads a jury-consulting firm in Sherman Oaks. "Seeing justice done will be much more important to you."
Criminal defense attorney Harland W. Braun, a former deputy district attorney, said a Santa Monica jury would have viewed the LAPD much differently than the jurors in the Simpson case.
The Simpson jurors, he said, were convinced that police were out to get Simpson because he is black. But Santa Monica jurors, Braun said, would have realized that because of his celebrity, he transcended race. Simpson was even given special treatment by Mark Fuhrman years earlier. Fuhrman and other officers did not arrest Simpson after he had smashed the windshield of Nicole's Mercedes-Benz with a baseball bat, Braun noted.
"If my wife was driving out of the driveway and I smashed her car with a baseball bat, Fuhrman would have had me on the ground so fast it would have made my head swim," said Braun, who represented former LAPD Officer Theodore J. Briseno in the King federal civil rights trial in which two LAPD officers were convicted.
"If you're from West L.A., the idea that the police were out to get O.J. is preposterous. You realize he is a celebrity and that celebrities get special treatment. But Downtown, the case was about race."
The racial composition of a Downtown jury is markedly different than a Santa Monica jury. The Santa Monica courthouse draws the majority of its jurors from the Superior Court's west district, an area with a jury pool that is about 79% white, 7% percent black and 7.5% Latino, according to a study by the county's urban research division, based on census data. The boundaries are La Cienega Boulevard to the east, the ocean to the west, Jefferson Boulevard to the south and Mulholland Drive to the north.
The Downtown courthouse draws the majority of its jurors from the Central District, an area with a jury pool that is about 30% white, 31% black and 29% Latino. The boundaries of the Central District are the Ventura Freeway in Glendale to the north, Manchester Avenue to the South, La Cienega to the west and the outskirts of Montebello to the east.
The courts draw the majority of jurors from their districts, jury officials say, but also draw some jurors from outside their districts, as long as they live within a 20-mile radius of the courthouse.
The general policy of the district attorney's office is to file a case in the district where the crime occurred. But a prosecutor is entitled to file a felony case anywhere in the county.
"Once it was determined that the case was going to be tried Downtown, the outcome was . . . almost a fait accompli-- that jury was not going to convict O.J. Simpson," said Donald Vinson, who heads DecisionQuest, a Torrance jury-consulting firm that briefly assisted prosecutors in the case. "The civil trials in Santa Monica will be an entirely different story."
Some deputy district attorneys said privately that a key reason Garcetti wanted the case Downtown was so he could better oversee prosecutors and be more accessible to the media. They criticized him for attempting to micro-manage the case.
"Garcetti didn't like having the Menendez case out in the Valley because he couldn't control the whole thing," said one longtime prosecutor. "When they filed the Simpson case Downtown, it struck me as a dumb decision. When we heard all the reasons Garcetti gave afterward, we laughed. A lot of those reasons didn't make sense."
Deputy Dist. Atty. Malcolm Jordan, who is running against Garcetti for district attorney, said the various reasons Garcetti has given for filing the case Downtown will hurt him in his reelection bid.
"With the shifting rationales for moving the trial Downtown, Garcetti has lost a lot of credibility," said Jordan, who is one of several candidates running for district attorney. "I don't think he's been candid or truthful. If it had been my call, I would have filed the case in Santa Monica. And I don't think it would have been moved."
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A Comparison of Juror Pools
The ethnic makeup of Superior Court districts in Los Angeles can vary widely. Here is a comparison of the West District, which has its courthouse in Santa Monica, and the Central District, which uses the Downtown courthouse:
Boundaries: La Cienega Boulevard to the east, the Pacific Ocean to the west, Jefferson Boulevard to the south and Mulholland Boulevard to the north.
Asian and Pacific Islander: 6.3%
Boundaries: The Ventura Freeway to the north, Manchester Boulevard to the south, La Cienega Boulevar to the west and the outskirts of Montebello to the east.
Asian and Pacific Islander: 9.2%
Note: Although courts draw the majority of their jurors from their districts, they can draw some jurors from outside the area as long as they live within a 20-mile radius of the courthouse.
Source: Los Angeles County's Urban Research division, based on 1990 census data