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