Plaintiffs Ask Judge to Bar Simpson Defense Theories

Maneuvering to gut O.J. Simpson’s defense, the lead lawyer pressing a civil lawsuit against the former football star has requested that jurors not hear a word about racist cops planting evidence, sloppy technicians contaminating samples or detectives rushing to frame Simpson for a gruesome double murder.

Attorney Daniel M. Petrocelli, who represents Fred Goldman, the father of murder victim Ronald Lyle Goldman, asked a judge to bar Simpson from even raising the theory that he was framed for the slashing assaults on Nicole Brown Simpson and Ronald Goldman on June 12, 1994.

“Despite two years of extraordinary investigation and discovery by teams of defense lawyers, experts and investigators, Simpson has produced no evidence to back up his wild, desperate assertion,” Petrocelli wrote in motions made public Tuesday. “The court should not permit this trial to be diverted down such paths.”

Petrocelli’s 18 motions sketch out, for the first time, his strategic vision of the civil trial. He hopes to block the scattershot approach that worked so well for the defense in the criminal trial by preventing Simpson from insinuating that every bit of damning evidence could have been planted, contaminated or compromised in the collection process.

Meanwhile, Simpson’s defense lawyer has filed a separate stack of motions detailing his own attack plan: he hopes to strip the plaintiffs’ case of its emotional punch by precluding evidence about domestic violence, stalking, and infidelity in O.J. and Nicole Simpson’s long and troubled relationship.

Although a gag order bars attorneys from commenting on any aspect of the case, all documents filed in court remain public records.

Superior Court Judge Hiroshi Fujisaki will have to sort out the competing demands. He has the discretion to decide, for example, whether the defense should be allowed to link the murders to drug debts, or whether the plaintiffs should be permitted to describe O.J. Simpson as a wife beater.

But while the details are up to Fujisaki, a broad trend is already clear. Both sides have learned lessons from the criminal trial. And neither is eager for a nine-month rerun in civil court.

“The defense wants to pare this down to as boring a scientific case as it could possibly be and hope that this jury turns off it as quickly as the jurors did in the criminal trial,” Loyola Law School Dean Laurie Levenson said.

Although the jurors in the first trial did not put much stock in the domestic violence evidence, the defense is taking no chances this time around. Lead defense counsel Robert C. Baker wants to exclude it all, especially the powerful tapes of 911 calls Nicole Simpson made eight months before the murders, while O.J. Simpson beat on the door and hollered in the background.

As for the plaintiffs, Levenson said, “They clearly studied the films from the criminal trial. . . . They want to keep the trial focused on O.J. Simpson” instead of on the criminalists who collected evidence or the lab technicians who conducted DNA tests.

Indeed, Petrocelli requested permission to prove that the evidence was well-tended by simply introducing police logs documenting the chain of custody, instead of by calling each person who handled a blood drop or a strand of hair.

Petrocelli proposed using only two witnesses to prove chain of custody: criminalist Susan Brockbank and police chemist Gregory Matheson. Both presented dry, rather dull testimony during the criminal trial. Most importantly, they did not leave themselves open to the kind of blistering cross-examination that shredded the credibility of witnesses Dennis Fung and Andrea Mazzola, the two criminalists who picked up most of the evidence at the murder scene.

In other motions, Petrocelli asked the judge to block the defense from hinting that the murders were connected somehow to the drug habits of one of Nicole Simpson’s friends, admitted cocaine abuser Faye Resnick.

He also requested a ban on all testimony about the allegedly racist attitudes of former Los Angeles Police Det. Mark Fuhrman, who reported finding a bloody glove on Simpson’s estate. And he asked the judge to make sure jurors do not find out that Fuhrman invoked his Fifth Amendment right to avoid self-incrimination when asked under oath whether he planted evidence.

Finally, Petrocelli moved to keep jurors from hearing two of the defense’s most impressive witnesses: Henry Lee and John Gerdes. Both had used memorable phrases that damaged the prosecution in the criminal case. Lee, a respected forensic scientist, told jurors that “something’s wrong” with the handling of blood drops; Gerdes, a DNA expert, called the LAPD lab a “cesspool of contamination.”

To justify most of his motions, Petrocelli returned again and again to a simple refrain. “Simpson,” he wrote, “has no evidence.”

“[The defense] cannot simply speculate that a mysterious, unknown person conceivably could have obtained Simpson’s blood and planted it,” Petrocelli wrote. Without stronger proof that he was framed, Petrocelli argued, “Simpson cannot be permitted to unnecessarily prolong the trial, confuse the issues and mislead the jury.”

Petrocelli’s plea to restrain the defense and keep the trial tightly focused could appeal to Fujisaki.

The judge has already made clear that he intends to run a very brisk trial. He announced that he will not read any motion longer than five pages. He said he will not listen to oral arguments that merely rehash written motions. He banned cameras from the courtroom. And he forbade lawyers to speak with the press.

Still, analysts speculated that despite his impulse to keep the trial short, Fujisaki would be unlikely to limit the case as severely as either the plaintiffs or the defense hope.

“You can’t just invent wild stories [as evidence]--you can’t just say a Martian saucer was responsible for the murders,” said UCLA law professor John Wiley, an expert on evidence rules. “On the other hand . . . it would be quite extreme for the judge to deny the defense [permission to put on] its theory of defense. It would be hard for the judge to say, ‘That’s a completely unbelievable theory’ when one jury believed it.”

Attorney Paul R. Kiesel agreed. In arguing that the defense proof is flimsy, he said, “Petrocelli is being the judge of the evidence. The court’s probably going to say, ‘Let’s let the jury make that determination.’ Otherwise, what’s the point of having a jury?”

If the judge does allow the defense to present its conspiracy theory, Petrocelli already has a backup plan.

He contends that Simpson’s lawyers refused to give him adequate answers to hundreds of written questions he submitted during the pretrial discovery process, when each side is allowed to probe the other’s evidence.

Petrocelli has asked the judge to sanction Simpson’s lawyers for their non-responsiveness--by barring them from presenting their conspiracy theory.

In weighing the various requests to exclude evidence, Fujisaki does not have to make an all-or-nothing determination. He can accept some of the plaintiffs’ motions and some of the defense’s. And he does not need to decide right away.

In the meantime, experienced litigators said both sides were right to fire away with all the ammunition they could muster, seeking to limit their opponents’ case as severely as possible.

“You know the old philosophy that you never get it unless you ask for it,” said civil litigator David E. Wood. These types of motions, he said, “are limited only by the creativity and the imagination of the lawyers. . . . You might as well ask for the stars, because you may end up getting the moon.”