Defense Dealt Setback in Simpson Case

Their tactics restricted by an impatient judge, O.J. Simpson’s defense lawyers on Monday struggled to raise their trademark questions about police work--only to find themselves barred from suggesting a rush to judgment or an incomplete investigation.

In cross-examining three members of the Los Angeles Police Department, the defense tried again and again to demonstrate that the first officers to discover the bodies of Nicole Brown Simpson and Ronald Lyle Goldman failed to follow up on some obvious clues.

But Superior Court Judge Hiroshi Fujisaki stuck to his pretrial ruling that Simpson’s team must focus its attack on the evidence collected and not speculate about what could have been done differently.

Sustaining objections from the plaintiffs, Fujisaki cut off defense lawyers when they tried to ask why officers did not call a police dog to follow bloody paw prints on the sidewalk outside the crime scene, why they did not hunt through the neighborhood for the killer and why they did not collect or preserve a cup of melting ice cream found at the scene.

Infuriated, lead defense counsel Robert C. Baker protested that such questions form the crux of his strategy. “We’re saying the LAPD did not do their job regarding the evidence,” he told the judge. “We say the reason there’s only one suspect is because of what they didn’t do.”

The crime scene evidence that the LAPD overlooked might have exonerated Simpson, Baker argued, citing in particular a string of blood drops on Nicole Simpson’s back and a triangular piece of paper that the defense contends could contain a second killer’s footprint. The fact that police officers saw the evidence and neglected to collect it “tells us about a rush to judgment,” Baker said.

Fujisaki disagreed. Such an argument might have won the day in Simpson’s criminal trial, he said, but it was not admissible in a civil liability case. Instead of blasting the LAPD in general, he told the defense to focus on the specific evidence against Simpson.

“You’re not defending against criminal accusations by showing the shortcomings, if any, of the police investigation,” he chided Baker. “You’re not trying to raise reasonable doubt. [And] this is not a case of the defendant suing the LAPD for failing to pursue evidence that could have proved his innocence.”

Legal analysts said Fujisaki was well within his discretion as trial judge to block questions he considers irrelevant or speculative.

In criminal trials, where the defendants are up against the government and fighting for their liberty, judges tend to give attorneys plenty of leeway. But in civil cases, where only money is at stake, the judge often sets tight parameters for the defense.

“[Fujisaki] may be saying [to Simpson’s team]: ‘I’m not going to let you mislead or confuse the jury. If you have something specific, point to it, but I’m not going to let you raise the specter of smoke and mirrors as happened in the criminal case,’ ” said Steven G. Madison, a trial attorney who works on both civil and criminal cases.

Fujisaki made his position clear in mid-September, when he ruled on pretrial motions.

Still, Baker raised the very issues the judge had declared off-limits--condemning the LAPD for failing to follow clues and collect evidence--in his emotional opening statement to jurors. Now, analysts said, he may find himself in the awkward position of having promised much more than he can deliver.

“In your opening statement, you’re asking jurors to trust you about what evidence you’re going to produce,” said Brian Hennigan, a former federal prosecutor who now works as a civil litigator. If Baker is unable to follow up on his opening rhetoric, Hennigan said, he will “run the risk that the jury is not going to have faith in what’s going on” at the defense table.

“You don’t want to get up in opening statements and go out on a limb with something you’re not sure you can get [admitted],” Madison agreed. “If someone does that, a smart opponent will stay quiet and let the lawyer hang himself with the rope he’s spinning.”

Despite the judge’s restrictions, Baker and his colleagues elicited some contradictions in police testimony through cross-examinations Monday.

Officer Miguel Terrazas and Sgt. David Rossi identified different stains on the back gate of Nicole Simpson’s condominium as blood, for example. And Rossi insisted that the first officer on the scene, Robert Riske, never told him that “O.J. Simpson was somehow involved” in the homicides--even though Riske had earlier testified to making that very statement.

Though the day featured repetitive, technical questions about officers’ movements, the jurors appeared interested, jotting notes throughout. Fujisaki seemed less patient, repeatedly checking the clock, twiddling with a pen and shaking his head in apparent frustration as lawyers took the officers step by step through their actions at the scene.