Simpson Trial: Deja Vu With a Difference

The wailing dog will be back. So will the DNA lectures. We’ll hear again from house guest Kato Kaelin. And from limo driver Allan Park. There will be autopsy charts and bloody socks. Arthritic knees and Bronco fibers.

But when the civil trial of Orenthal James Simpson opens on Tuesday, don’t expect a gavel-to-gavel rerun of the criminal case.

The defense will likely reprise the winning tactic of attacking evidence against Simpson as planted or contaminated. The plaintiffs, however, promise both new evidence and a more streamlined presentation.

They hope to avoid the numbing detail that helped prolong the criminal trial to nine long months. They’ll explain how Nicole Brown Simpson and Ronald Lyle Goldman died--but not by presenting lengthy testimony about every stab wound. They’ll express confidence in how technicians handled the evidence--but not by citing every time they changed gloves or sterilized tweezers.

“The jurors don’t care about the minutiae; they care about the essence,” said attorney Michael Brewer, who represents Goldman’s mother, Sharon Rufo. (Like other participants in the case, he was interviewed before a gag order barred all comments to the press.)

Fresh faces on the witness stand could also ensure that the civil case is no weak echo of the so-called Trial of the Century.

We’ll hear from a photographer who claims to have snapped a shot of Simpson wearing Bruno Magli shoes--the same pricey, hard-to-find brand that tracked bloody footprints at the murder scene. And we may hear as well from a secretary who took notes on Simpson’s complaints that Nicole abused him, including an incident in which she allegedly punched him 12 times in a mysterious tiff about a postcard.

But the most dramatic new witness almost certainly will be O.J. Simpson, who for the first time will take the stand to explain in public and under oath exactly what he was doing between 9:36 p.m. and 10:52 p.m. on the evening of June 12, 1994. “Jurors are going to look at that witness and say, ‘Is that guy a killer or is he a lovable man?’ ” UCLA Law Professor John Wiley said.

The public will not get a similar chance. Superior Court Judge Hiroshi Fujisaki has banned television cameras, news photographers and radio microphones from his courtroom, so no images or sounds will reach the public directly. The gag order will prevent attorneys or witnesses from commenting on the proceedings from the courthouse steps.

Such restrictions will undoubtedly limit coverage of the Simpson case, preventing what Fujisaki called a “media circus.” The case will unfold in Santa Monica’s ocean-view courthouse, drawing from a jury pool that’s largely white and includes many well-educated, affluent professionals--a demographic group that analysts predict will be more receptive to the domestic violence and scientific evidence than the criminal trial jurors.

Attorneys estimate the trial will last about four months. And Fujisaki--who intends to retire after the verdicts--has indicated he wants to keep the pace brisk. He has a chance to seriously shorten the trial Tuesday, when he could rule on the defense request to bar all testimony about domestic violence and the plaintiffs’ plea to keep out all references to planted evidence.

Most analysts expect Fujisaki to give both sides leeway to present their cases as they think best. But that doesn’t mean he’ll tolerate a reprise of The People vs. O.J. Simpson.

“It’s going to be very different,” said attorney Peter Gelblum, who represents Fred Goldman. “Very different.”

Simpson Under Oath

Difference No. 1 will be Simpson’s testimony.

Simpson never took the stand in the criminal case. Now that he’s been acquitted, however, he can no longer invoke his 5th Amendment protection against self-incrimination. So when he’s called to testify in the civil case, he will have to talk.

“He is going to have to look this jury in the eyes and convince them that he could not murder another human being,” civil attorney Larry Feldman said. “His performance under cross-examination will ultimately determine the outcome of the trial.”

Plaintiffs’ lawyers hope to scratch away at Simpson’s suave self-confidence by pointing out inconsistencies between his version of events and other witnesses’ testimony.

For example, Simpson has sworn under oath in a pretrial deposition that the fake beard he was carrying when he fled arrest in his friend’s Bronco had been purchased to shield him from fans during a visit to Knott’s Berry Farm. The plaintiffs, however, contend that Simpson may have plotted to use the disguise to help him escape. To discredit Simpson’s version, they have elicited testimony from his closest friends that he loved public attention and never tried to hide from autograph hounds.

That discrepancy seems like a minor point, to be sure. But plaintiffs’ lawyers believe every contradiction they can dig up will rub away some of Simpson’s credibility.

For example, testimony from two of Simpson’s most loyal associates might serve to undermine his attempts to minimize allegations of spousal abuse.

Simpson contended in his deposition that Nicole fabricated tales of beatings to win leverage in their divorce. But his longtime secretary, Cathy Randa, said she considered Nicole Simpson honest and never heard complaints about invented stories. Simpson also argued that Nicole’s habit of squeezing pimples caused some of the marks visible on a photo of her black-and-blue face following a fight they had in 1989. But his best friend, Al Cowlings, described the marks Nicole left from picking at her blackheads as “little red little things,” not swollen bruises.

“We should be able to impeach [Simpson] significantly on a number of areas,” Gelblum said confidently. “That leads you to his biggest lie of all, which is, ‘I wasn’t there. I didn’t do it.”’

Of course, the defense is counting on jurors to draw the opposite message from Simpson’s testimony. They hope his easygoing sparkle will impress jurors and persuade them that--in Simpson’s own words--he’s “absolutely, 100% not guilty.”

In his 10-day deposition, Simpson showed flashes of anger and frustration, but he also demonstrated the wit and savvy that defense lawyers believe will win over jurors. He seized every opportunity to stress his innocence, too. When an attorney warned that he could overhear Simpson’s whispered consultations with his lawyer during Kaelin’s deposition, for example, Simpson replied: “Well, you can hear. No secrets. I’ve got no secrets.”

Simpson also used humor to deflect some questions. When lead plaintiffs’ lawyer Daniel M. Petrocelli asked him why a limo driver thought the estate looked dark though Simpson insisted he was packing with the lights on, he responded: “You’d have to ask God that . . . because he’s a physicist and I’m not.”

Simpson’s chief defense lawyer, Robert C. Baker, predicted in mid-July that his client would “make an outstanding witness.” Speaking on CNN’s “Larry King Live,” Baker added: “He’s a charming man. . . . And I think he will be well-received by a jury.”

The Plaintiffs’ Tactics

“An overriding tactical issue,” said plaintiff’s attorney Thomas P. Lambert, “is how much evidence do you put on?”

In the criminal case, the prosecution left out some potentially relevant evidence.

They did not present every example of violence in the turbulent relationship between O.J. and Nicole Simpson. They never mentioned the slow-speed Bronco chase or Simpson’s suicide notes. And a judicial sanction prevented them from telling jurors that fibers matching the carpet of Simpson’s white Ford Bronco were found on a knit cap near the bodies and on a bloody glove at his estate.

The plaintiffs have all that information at their disposal--and a lot more.

They boast about freelance photographer Harry Scull’s photo purporting to show Simpson wearing Bruno Magli shoes at a football game in September 1993. Simpson said in his deposition he would never wear that particular brand, calling them too ugly for his taste. Scull’s photo surfaced after the acquittals--it was printed in the National Enquirer--and the defense has suggested it might have been doctored.

The plaintiffs also boast of having elicited testimony that brings into clearer focus the dizzying twists and turns in the 17-year relationship between Nicole and O.J. Simpson.

UCLA Law Professor Peter Arenella, who has read many of the deposition transcripts, predicted this trial will offer a more nuanced reading of the on-again, off-again love affair. “It won’t be just ‘Nicole was an angel and O.J. was a demon,’ ” he said.

In fact, he said, the plaintiffs might try to establish motive by telling jurors how much Nicole Simpson angered her ex-husband. They have accumulated evidence to that effect, from allegations that she provoked him by displaying photos of other lovers, to Simpson’s own testimony that he could not abide her habits of smoking cigarettes and drinking with her buddies on the nightclub circuit.

Dramatic new evidence against Simpson could also come from his ex-wife’s diary.

The diary was considered inadmissible hearsay in the criminal case, since Nicole Simpson could not be cross-examined about it. But a new state law might allow jurors to see Nicole Simpson’s handwritten log of domestic fights. One entry, about a tax dispute with her ex-husband less than two weeks before the murders, quotes O.J. Simpson as saying: “You hung up on me last night, you’re going to pay for this, bitch. . . . You think you can do any fricking thing you want, you’ve got it coming.”

To bolster their allegation that these long-festering tensions exploded into a murderous rage, the plaintiffs will likely call on Simpson’s ex-girlfriend, Paula Barbieri, who said in her deposition that she dumped him via voice mail on the morning of the murders--another provocative bit of testimony that criminal-trial jurors never heard. Simpson denies picking up the message, but Barbieri said subsequent calls from him seemed to indicate he knew about her desire to end the relationship. Plaintiffs consider the abrupt breakup a flash point that helped push Simpson to murder.

Criminal prosecutors built their domestic violence case chiefly on two dramatic incidents: a 911 call Nicole Simpson made in 1993 as O.J. Simpson beat on her door; and a 1989 fight that sent her to the hospital. Jurors dismissed that evidence as irrelevant. Hoping to draw a clearer link between a rocky relationship and a vicious slaying, the civil plaintiffs plan to present evidence of turbulence in the months just before the murders.

“We are going to tell more of a story about the events leading up to the murders, about what was really going on in the lives of Nicole Brown Simpson and O.J. Simpson,” said lead plaintiffs’ counsel Daniel M. Petrocelli, who represents Fred Goldman. “We are going to be pinpointing more the dynamic of this relationship, especially near the end.”

Despite their apparent intention to include more evidence on domestic violence and on Simpson’s flight from arrest, the plaintiffs predict they can wrap up their case in about six weeks.

Brewer emphasized that they will try to “paint a nice big picture” instead of bogging down in details. While questioning the coroner, for example, he said he would not pick apart every little error, but would instead ask a more sweeping question: “Did any of your mistakes in any way affect your conclusions?” In the first trial, he said, “the jury got lost in the technical way the evidence was presented.”

The Defense Strategy

Even before the gag order, defense lawyers weren’t talking on the record about their strategy. But from their pretrial motions, depositions and witness list, it appears they plan to stick with the formula that proved so successful in the criminal case.

In a word: Attack.

Attack the criminalists who collected evidence. Attack the scientists who tested it. Attack the detectives who investigated the case. The plaintiffs may aim to gloss over the minutiae, but defense lawyers can bring out every error, inconsistency and contradiction they can dig up on cross-examination.

Lead defense attorney Baker “is going to go after the LAPD big time,” predicted one of his close friends, fellow lawyer John Collins. “He’s going to attack their case, and they will know they’ve had it.”

Most of the defense’s star witnesses from the criminal trial will be back in Santa Monica, ready to pound home a theme that seemed to resonate well with jurors: “Garbage in, garbage out.” In other words, even the most sophisticated DNA tests are meaningless if blood evidence has been contaminated--or if the samples have been planted.

The defense used that refrain to explain away test results showing that blood at the crime scene was consistent with O.J. Simpson’s; that blood on socks in his bedroom was consistent with Nicole Simpson’s; that blood smears in his Bronco contained genetic markers from both victims and O.J. Simpson.

To cast doubt on all that blood, Simpson’s team will likely call DNA specialist John Gerdes, who testified in the criminal trial that the Los Angeles Police crime lab was a “cesspool of contamination” and should be shut down. And they’ll bring back statistics professor Terence P. Speed, who said jurors must consider lab error rates before deciding whether to have confidence in test results.

Criminalist Henry Lee, one of the defense’s strongest witnesses, may also return to the witness stand, but not in person. Lee refused to come to California, agreeing only to testify on video in his Connecticut lab. After the criminal trial, Lee expressed frustration that his cautious testimony was taken out of context. So this time around he may be reluctant to repeat his dramatic assessment that “something’s wrong” with the blood evidence--a phrase that seemed to captivate jurors in the criminal case.

Because Simpson’s lawyers failed to turn over the names of some witnesses on time, the judge has already moved to circumscribe their case, cutting out several of the 183 witnesses they proposed to call.

They lost the chance to call Deputy Coroner Irwin Golden, who was widely criticized for errors in the autopsies. They are also barred from calling Gary Siglar, a supervising criminalist in the coroner’s office. In his deposition, Siglar said that Det. Philip Vannatter deviated from a typical homicide investigator’s routine when he came to the coroner’s office in person to collect blood samples from the victims’ bodies. Siglar’s testimony could have helped the defense raise suspicion that Vannatter--or unidentified conspirators--may have had the opportunity to daub incriminating blood on evidence such as Simpson’s Bronco.

Despite those gaps, defense attorneys will probably still push the conspiracy theory--helped along by a witness who is not even expected to show up, retired LAPD Det. Mark Fuhrman.

Fuhrman, who said he found a bloody glove at Simpson’s estate, was discredited and demonized at the criminal trial after taped interviews came to light in which he used racial epithets and boasted of misconduct. Invoking the 5th Amendment, he refused to answer questions under oath about whether he had planted evidence against Simpson.

Fuhrman has since moved to Idaho. Since parties in civil cases can only subpoena witnesses within the state, he’s effectively out of reach for Simpson’s attorneys--unless he voluntarily returns to California. “If he doesn’t want to testify, I don’t think we’ll be seeing Mark Fuhrman,” Feldman said.

But out of sight does not necessarily mean out of mind. Anyone who followed the criminal trial is sure to remember Fuhrman’s role. As civil litigator Douglas E. Mirell said, “You can’t unring that bell.” And the defense will almost certainly seek to exploit Fuhrman’s bad name.

“You know the defense is going to use his name at every opportunity,” Mirell said. “When they’re cross-examining a police witness, it will be: ‘When you got that glove from FUHRMAN . . .’ or ‘When FUHRMAN told you . . .’ I would presume every third or fourth word out of the defense lawyers’ mouths would be ‘Fuhrman.’ ”

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The Witness Stand

The civil trial of O.J. Simpson, which opens Tuesday, will feature many of the players from the criminal case. But some of the familiar faces may offer fresh testimony. And some important new witnesses will take the stand as well. A preview of probable testimony:

NEW WITNESSES

Marcus Allen

The defense contends that Allen had an affair with Nicole Simpson and that O.J. Simpson reacted calmly when he learned of it, evidence that he was not prone to jealous rages. But Allen insists he was never romantically involved with Nicole. He has accused Simpson of asking him to lie about the matter on the witness stand.

Dr. Ronald Fischman

He took a home video, introduced at the criminal trial, showing Simpson laughing with his children at a dance recital just hours before the murders. But Fischman conceded in his deposition that Simpson looked unusually subdued and tired during the recital. He also noted “a certain chilliness” between O.J. and Nicole Simpson.

Harry Scull

A freelance photographer, Scull claims to have taken a photo showing Simpson at a 1993 Buffalo Bills game wearing a pair of Bruno Magli shoes- the same hard-to-find, expensive brand that left size-12 footprints at the murder scene. Simpson has said he would not wear such shoes, calling them too ugly for his taste.

FAMILIAR FACES

Allan Park

The limousine driver who picked up O.J. Simpson on the night of the muders won good reveiws from pundits in the criminal trial, who thought he came across as honest. But jurors in the first trial disagreed. They said he did not accurately recall the number of vehicles that were in Simpson’s driveway that night, a slip that underminded his credibility.

Brian “Kato” Kaelin

In the criminal trial, prosecutors believed Kaelin shaded his testimony to protect Simpson. But Kaelin has since changed his tune. In his deposition, he described Simpson as “gloomy” and intimidating on a trip to McDonald’s shortly before the murders. Kaelin also said Nicole Simpson told him she feared Simpson would kill her with a pair of scissors and get away with it.

Henry Lee

The defense fought hard for permission to show jurors a videotaped deposition by the renowned criminalist; Lee refused to testify in person. In the criminal trial, he testified that “something’s wrong” with the blood evidence and said he spotted marks that could indicate a second killer’s footprints at the murder scene. Lee was never cross-examined after an FBI expert scoffed at his conclusions.

KEEPING QUIET--AND CONTROVERSIAL

Al Cowlings

In his deposition, Cowlings refused to answer questions about his actions during the week between the murders and Simpson’s flight from arrest in his white Bronco. But Cowlings acknowledged that he saw Simpson throw Nicole’s clothes out a window in the 1970s and heard about Simpson vaulting a wall and dumping her jewelry in a garbage can during a 1989 altercation.

Mark Fuhrman

The former LAPD detective testified in great detail during the criminal trial about his early investigation of the murders. But that was before tapes emerged of him spewing racist slurs and boasting about misconduct on the job. He is on the defense witness list, but because he lives in Idaho, he cannot be forced to testify and will probably refuse to show up.

Robert Kardashian

Simpson’s good friend and lawyer has testified in a deposition that he poked through Simpson’s golf bag two weeks after the killings, looking for traces of blood. He says he found nothing. But plaintiffs say the search suggests that even Simpson’s closest friends suspected him. Kardashian will probably invoke attorney-client privilege on all more substantive questions.

*

O.J. Simpson: Simpson did not testify in the criminal trial, but he is expected to spend days on the stand in the civil case. He will be asked to account for his time on the evening of the murders, to explain his flight from arrest in Cowlings’ Bronco and to answer allegations of spousal abuse.

Nicole Simpson: Jurors may hear from the victim herself, beyond the brief tapes of her 911 calls that were introduced in the criminal trial. A new state law permits certain written statements from the deceased to be admitted in abuse cases. The plaintiffs will try to present Nicole Simpson’s diarybasically a log of when she felt abused or threatened by O.J. Simpson.

Untangling the Lawsuit

The trial consolidates four claims against O.J. Simpson, brought by the relatives of murder victims Ronald L. Goldman and Nicole Brown Simpson. Under California law, none of the claims can seek to recover compensation for either the pain the victims endured during the attack or the emotional suffering their families have been through.

* Goldman’s parents, Fred Goldman and Sharon Rufo, are each suing for compensation for the loss of their son’s companionship.

* Ronald Goldman’s estate is suing for punitive damages. Because Goldman died without a will, both his biological parents are automatically named as beneficiaries of the estate, and they would share any damage award.

* Nicole Brown Simpson’s estate is also suing for punitive damages. Her children with O.J. Simpson are beneficiaries, but because they are minors, her father is representing them in the lawsuit.