Lawyers Test Cases During Simpson Jury Selection

The goal is clear: to pick 12 people who can judge the O.J. Simpson civil trial fairly. But the jury selection process now slogging along in Santa Monica has picked up an important subtext as well.

Lawyers on both sides use their interviews with prospective jurors to tease out tips about the effectiveness of their arguments and the credibility of their witnesses.

In effect, it’s become a focus group. And it’s revealed some surprising trends.

Just sitting in on a few hours of jury selection makes it clear that the criminal trial made so many indelible impressions that the plaintiffs start at a disadvantage with many panelists, even though many have promised to give both sides a fair hearing. Loyola Law School Dean Laurie Levenson, who has attended many of the sessions, said the process “tells the plaintiffs that they have their work cut out for them.”

For starters, many prospective panelists believe the police work in the Simpson case was sloppy at best, and perhaps downright inept. Even some pro-plaintiff panelists who say they are fairly certain that the football hall of famer killed Nicole Brown Simpson and Ronald Lyle Goldman have said the police flubbed their way through the investigation. A few were open to the notion that racist police may have boosted their chances of nailing Simpson by planting some evidence against him.

From those responses, it’s become clear that even before they present one bit of testimony, the plaintiffs are up against widespread skepticism of the police personnel who collected, tested and analyzed crime-scene evidence. “They cannot pretend they can smooth over questions about how the police collected evidence,” Levenson said. “The issue is there before they get started.”

The plaintiffs also might have to battle negative impressions of their witnesses.

Again and again, potential jurors expressed distrust about one important plaintiff witness, guest house tenant Brian “Kato” Kaelin. “An indecisive moocher,” one man called him. “He’s withholding evidence,” a woman said. “Not believable,” a third person insisted.

The plaintiffs were counting on Kaelin to provide damning testimony about Simpson’s schedule and demeanor on the night of the slayings. But given how much the public seems to scorn him, “his testimony probably won’t have as much of an impact on jurors as [the plaintiffs] would have hoped,” UCLA law professor Peter Arenella said.

Los Angeles Police Det. Philip L. Vannatter, a lead investigator on the case, also got soundly panned by jury candidates. A few white panelists did go out of their way to praise him as an honest officer, but at least eight black prospective jurors described Vannatter as untrustworthy or suspicious, and several others criticized his actions without naming him directly.

Vannatter, in fact, drew nearly as many negative comments as former LAPD Det. Mark Fuhrman, who was widely branded by prospective jurors as an arrogant, racist liar.

Doubts about the plaintiffs’ witnesses extend even to relatives of the victims.

Fred Goldman, who has grieved and seethed in televised news conferences about the slaying of his son, was described by some panelists as greedy, vindictive or obsessed. Denise Brown has also come in for criticism, as some prospective jurors indicated that her tears during her criminal trial testimony seemed phony.

Superior Court Judge Hiroshi Fujisaki promptly dismissed all panelists with biases against the Goldmans or the Browns. But Levenson said other potential jurors might be concealing similar resentment of the plaintiffs because “it’s not polite to tell the father of a murdered son, ‘I don’t like you and I don’t trust you.’ ”

Some veteran lawyers--who call themselves optimists--said they thought the plaintiffs could overcome skepticism about their witnesses because jurors would be instructed to disregard previous impressions and evaluate the case based solely on what they hear and see in the Santa Monica courtroom.

But to other analysts, such faith in the jurors’ open-mindedness sounds hopelessly naive.

“I’d be worried if a large number of prospective jurors had already made up their minds about key witnesses, finding them not credible or not likable for some reason,” said civil lawyer Charles Mazursky, past president of the Consumer Attorneys Assn. of Los Angeles. “I don’t know how you rehabilitate a witness like that. You’re starting off in the hole” before he even takes the stand.

To be sure, many of the prospective panelists pronounced Simpson “probably guilty” of murder despite bad impressions of some witnesses.

But few of them could back up their belief in Simpson’s guilt with details retained from the criminal case. Instead, they tended to cite a vague notion that DNA evidence pegged him as the killer or that domestic violence plagued the relationship between O.J. and Nicole Simpson and could have escalated into murder.

Those who believed Simpson innocent, in contrast, got quite specific in defending their views.

They talked of Vannatter transporting a vial of Simpson’s blood across town instead of booking it immediately into the lab. Several mentioned a video that the defense contends casts doubt on when bloody socks were collected from Simpson’s bedroom. Others referred to photos the defense introduced to argue that a blood drop on the back gate of Nicole Simpson’s condo appeared mysteriously, days after the slayings.

“We assumed everyone knew something about the case, but the depth of their knowledge and the strength of their opinions are surprising,” Levenson said. “You close your eyes and you can hear [criminal defense attorney] Johnnie Cochran’s closing argument.”

That command of detail could present a problem for the plaintiffs, who have long said they hope to win the case by presenting a compelling “big picture” instead of focusing on the nitty-gritty. Attorney Peter Gelblum, who represents Fred Goldman, described that strategy in an interview before a judicial gag order was imposed: “We plan to put on our case simply, sweetly and shortly,” he vowed, “and let [the defense] raise whatever fuss they want to.”

Yet the jury selection process has demonstrated that the defense’s pointed attacks in the criminal trial were not just a distracting “fuss.” Rather, they were devastatingly effective.

They convinced not only the 12 jurors hearing the criminal case, but a good many members of the public as well. And although civil trial jurors must promise they will set aside their opinions about the criminal case, analysts predict that Cochran’s powerful presentation will be hard to forget.

Attorneys noted that when jurors hold firm beliefs about a case, they tend to hear and remember mainly testimony that bolsters their point of view. “It’s like a bell goes off when they hear the evidence that gives further support to their preconceived ideas,” said respected civil attorney Larry Feldman.

Of course, pro-plaintiff jurors will bring their own biases to the trial.

They may reject the defense theory of a police conspiracy to frame Simpson without taking time to analyze the evidence, for example. Or they may reflexively respect DNA technology, dismissing defense warnings about contamination as irrelevant. One woman was excused from the panel after admitting she thought the defense was simply “blowing smoke” and would have a hard time shaking that impression.

“I don’t know that ultimately it’s within any lawyer’s power to shake people [on either side] from their preconceived notions,” Feldman said.

The strongest point of the plaintiffs’ case has always been the blood trail they contend led from the crime scene to Simpson’s bedroom. But person after person said during the selection process that DNA testimony in the criminal trial was too confusing for them to follow. What’s more, several said they did not trust the expert witnesses who took the stand to explain it.

Given those comments, Levenson said, the plaintiffs “don’t necessarily have the tools they thought they had” to persuade jurors in the civil case that the blood evidence identifies Simpson as the killer. “It’s not so easy,” she added.

Judge Fujisaki has excused prospective jurors he believes have the strongest, most inflexible biases, as well as those who insist they will not be able to forget the criminal trial. But many of the people who remain in the pool clearly have opinions about witnesses, evidence and Simpson’s culpability. The current of jury questioning focuses on exposure to publicity about the case; those who survive will fill out questionnaires probing more general topics such as race, celebrity and domestic violence.

With jury selection expected to last at least another few weeks, both sides have time to adjust their tactics and work with their witnesses as they come up with presentations that might knock down some of the doubts prospective panelists have voiced.

“[The lawyers] should thank their lucky stars that they can learn so much about the jury pool,” Levenson said, “because they’re really finding out the weaknesses of their case.”