Simpson team at a crossroads // Go to jury, or put on a defense
Richard Price; Jonathan T. Lovitt
06/22/1995
USA Today
FINAL
Page 03A
(Copyright 1995)
LOS ANGELES - An old tenet among criminal lawyers holds that the best
defense is no defense - a bold strategy for use when they believe prosecutors fail
to prove guilt beyond a reasonable doubt.
So now, with the prosecution in the O.J. Simpson murder trial planning to wrap
up next week, a debate has erupted across the nation: Should defense lawyers
present a case? Or should they send the whole thing to the jury right away?
The latter choice may sound wildly dramatic, and it's sure to fuel suspense and
speculation over the remaining days of the prosecution case.
But many experts following the trial think the defense should at least consider it.
Their reasoning: The defense holds a huge advantage with the jury, particularly
after the prosecution fiasco last week when Simpson appeared to struggle to
squeeze his hands into gloves tied to the murders.
They also say DNA test results that were supposed to be the heart of the
prosecution case apparently aren't registering as airtight evidence - at least based
on the lukewarm assessment from recently dismissed jurors.
"I would rest without doing anything more," says criminal defense lawyer
Harland Braun. "The prosecution's own case has established that the police are
not so great, the coroner is incompetent . . . and the gloves used in the killing
were too small for O.J. Why risk messing that up?"
Agreed, says jury consultant and lawyer Robert Hirschhorn. "There are a lot of
land mines out there every time you put on a case. Why should they run the risk
of something exploding? The tide clearly has turned in their favor."
Hirschhorn was a consultant for the successful defense of William Kennedy
Smith in a rape trial. The defense case consisted of one expert and the defendant
- put on the stand, Hirschhorn says, only because prosecutors did a good job with
what amounted to a weak case.
Simpson's lawyers don't have that problem, he says. "O.J. doesn't have to testify
because he already did in dramatically successful fashion when he couldn't get
those gloves on."
Not that the no-defense strategy is free of risks. For one thing, it requires an
educated guess about the jury's state of mind. The defense could guess wrong.
Better, some say, to widen whatever advantage the defense now enjoys.
"They have everything to gain by presenting a case," says lawyer Leo Terrell,
who is close to the defense. "If they just wanted a hung jury, they could get that
right now. But they want an acquittal. For that, they need to hammer away at the
most vulnerable spots in the prosecution case."
Unless he's simply hedging, defense lawyer Johnnie Cochran Jr. appears to
agree. On Wednesday, he was still talking as if he will present a case. But it's
also clear he is tightening the scope, which suggests that a decision is still
evolving.
"Less is better," Cochran said. Two other revealing comments: "Our witnesses I
don't expect will be long" and "I don't want to give (prosecutors) much room for
rebuttal."
Ten days ago, he told USA TODAY he would hit hard on an alibi for Simpson
and on the police misconduct charge. But he was cool on several other areas,
notably the idea of Simpson taking the stand and the need to rebut prosecution
testimony about Simpson's history of domestic violence.
Cochran indicated Wednesday he is even less inclined to touch the domestic
violence issue now that prosecutors have dropped their plans to call new
witnesses on the subject. Analysts say that means pro football player Marcus
Allen's argument against testifying for Simpson - a battle he won in court
Wednesday - likely is a moot issue at this point.
Most, including Terrell, agree the defense should stay away from domestic
violence, or treat it in a very restricted way, careful to avoid testimony that
would let prosecutors present more damaging material.
If the defense puts on a case at all, analysts say, it should be lean and fast.
Among recommendations for a lineup:
-- A medical expert who will say the murders could have been committed by two
assailants with two knives, at least one of whom was left-handed. Simpson is
right-handed.
-- A DNA expert who will dispute the statistical validity of DNA test results.
-- A forensic scientist who will testify that blood taken from the back gate of
Nicole Brown Simpson's condo three weeks after the murders was too fresh to
have been deposited there the night of June 12. That would bolster the defense's
conspiracy theory.
"Believe me, there's an expert out there who will say that," says criminal lawyer
Don Wager. "He'll be the best expert money can buy."
-- A crime expert who will explain why sloppy techniques in collecting evidence
make test results suspect.
-- A credible witness who can support an alibi or an other-suspects theory.
In the end, Simpson may decide, because he is reputed to be the very hands-on
leader of his defense. He's also itching to give his side, which is why experts
think he'll vote for an aggressive case.
"He's been a winner by carrying the ball," says Wager, "and he's going to want to
get up there and run with it."
Contributing: Gale Holland
PHOTO,color,Vince Bucci,AP; PHOTO,color,Sam Mircovich,Reuters;
PHOTO,b/w,AFP; PHOTO,b/w,Cliff Schiappa,AP