What next for Simpson? Defense must deal with denials, possible conflicts

Jonathan T. Lovitt ; Richard Price

11/27/1996

USA Today

FINAL

Page 01A

SANTA MONICA, Calif. -- O.J. Simpson's 12 hours on the stand at his

wrongful-death civil trial was a single battle in a very complicated war that's far

from over.

But one thing is certain: When he ended the first round of his testimony Tuesday,

his defense team changed its strategy.

And analysts say that's the first step in a long list of moves he and his lawyers

must make to repair the damage from his examination by lawyers for the families

of murder victims Nicole Brown Simpson and Ronald Goldman.

Simpson's lawyer, Robert Baker, had intended to question Simpson Tuesday, a

standard strategy to rehabilitate a defendant after questioning by plaintiffs.

But when the time came, Baker backed off. ``I'm sorry, your honor, I've changed

my mind,'' Baker said. ``I will put Mr. Simpson on, and put on his side, in our

case in December.''

Because Simpson's testimony was loaded with denials that could conflict with

upcoming testimony from other plaintiff witnesses, Baker is forced to play a

wait-and-see game.

It's a risky step because, as criminal and civil lawyer Howard Price puts it, ``the

problem in civil cases is . . . the first impression is the lasting impression,'' and

this jury saw Simpson struggling for answers.

Says Robert Pugsley of Southwestern University's law school, Baker also ``has to

worry about all the times that (Daniel Petrocelli, the Goldmans' lawyer), got

``denials or vague answers. Behind each of those doors lies a potential rebuttal

witness waiting to refute Simpson. . . . It's like setting up the bowling pins for

the rolling of the bowling ball. . . . Baker wants to see what all this is.''

Petrocelli questioned Simpson as a hostile witness. When questioning a hostile

witness, a lawyer can ask leading questions and demand yes-or-no answers.

Petrocelli did that repeatedly, loading the record with dozens of ``nos'' and

``nevers'' from Simpson that he can challenge through rebuttal witnesses.

Baker can expect to see a long list of them, including some new to the case.

Among them:

Wayne Hughes, an old Simpson buddy, will testify that Simpson told him that

when he injured Nicole during a 1989 beating incident, he said she was hurt

because he ``caught too much backhand.'' Simpson denied ever slapping her or

hitting her.

Simpson's business manager, Skip Taft, ostensibly will testify that he saw more

than one cut on Simpson's hand the day after the murders. Simpson said he had

only one.

Leslie Gardner, the costumer for Simpson's exercise video will testify that

Simpson took home a dark sweatsuit. Simpson denied that. Fibers from a dark

sweatsuit were found at the crime scene.

Baker will try to rebut as much of that as he can. He might try, for example, to

get Hughes to concede Simpson never actually said he hit Nicole. Baker could

suggest the backhand was delivered accidentally as Simpson and Nicole

wrestled.

Moreover, Petrocelli can't deliver a witness for every denial Simpson made, and

Baker may be able to score some points by detailing overstatements from

Petrocelli.

For example, at one point, Petrocelli suggested that Simpson knew Nicole had

dropped him from a family dinner after daughter Sydney's dance recital the night

of the killings. Dinner had been scheduled at a restaurant where Jason, Simpson's

oldest son, is chef. But Nicole canceled and went elsewhere, leaving Simpson

out.

In testimony, Simpson denied knowing anything about the plans for dinner.

Petrocelli, citing Jason's pretrial deposition, suggested that Jason might testify in

court that he told his father. But in his deposition, Jason never said he told his

father. Baker could call Jason to make the point.

Baker also must deal with all the times Simpson said, ``I don't know.''

For example, he couldn't explain most of the physical evidence, such as why his

blood was at the murder scene and how his ex-wife's blood wound up on his

socks.

Most analysts believe the defense will handle that by sticking with a police

frame-up defense. That was part of how Simpson won an acquittal in the

criminal case, and lawyers aren't likely to abandon it. Beyond that, ``I would try

to present . . . other people and things to explain what he couldn't,'' says Price,

adding Baker needs some fresh evidence on contamination of evidence, too.

Some of Simpson's statements may not be salvagable. How, for example, will the

defense rebut Petrocelli's point on the Paula Barbieri question? Simpson says he

never got a Dear John message from her the morning of the killings. But

Petrocelli produced four independent sources -- phone records, a statement to

police, notes taken by his own psychologist and tapes of three messages he left

on Barbieri's phone -- suggesting he did get the message.

The message is important because the plaintiffs characterize it as the emotional

trigger leading to murders. Analysts have few answers for Baker on that one. His

only option, says criminal defense lawyer Thomas Mesereau, may be to ignore it

and ``choose his own witnesses who maximize the defense message.''

He and others recommend that approach on the question of the lie-detector test.

The jury learned Monday that Simpson had failed one. Mesereau calls that

``devastating.'' Maybe too devasting. Many analysts believe the judge's decision

to let it in handed Baker his best chance for an appeal. Reason: Lie detector

results traditionally have been considered so prejudicial as to be unfair.

Another problem for the defense: Notes from psychologist Lenore Walker that

threaten Simpson's alibi. Simpson testified he was at home when he made a call

to Barbieri at 10:03 p.m., just 37 minutes before the estimated time of the

killings. But the notes suggest he told Walker he was out driving in his Bronco.

Each defense problem demands a distinctive counterattack. Example: Simpson

probably sustained some damages from revelations in the diary of his ex-wife,

who wrote that Simpson beat her in 1989 and spoke to her bitterly in the days

before her death. To deal with that, the defense will characterize Nicole as a liar,

which was part of their case going into the trial.

Then there's the defendant himself. Although many rate Simpson's performance

on the stand as poor, some of it will help him later. He never wavered in strategy

or style.

He denied everything, which sometimes can overcome circumstantial evidence.

Although he looked tired and occasionally nervous, he never lost his composure

or temper. And he offered almost no new information, which didn't give the

plaintiffs fresh areas to explore.

For jurors, average citizens who may expect guilty people to crack,

a la Perry Mason, Simpson may have survived the test.

``I think the object of the exercise here was to see if Simpson would crack, and

he didn't,'' says criminal defense lawyer Gigi Gordon. ``Proving he's a liar does

not make him a killer. There is something to be said about a person who for three

days stands up there adamantly denying everything and doesn't completely

disintegrate into random particles.'

The next time he takes the stand, probably near the end of the defense, Simpson

faces Baker. He'll tell his side his way and probably avoid many of the nastier

areas explored by Petrocelli. ``You can't go over the same plowed ground,'' says

Price. ``Next time they'll bury you in it.''

That will be his biggest opportunity for a comeback. But when Baker's done,

Petrocelli will cross examine.

``I think Simpson felt intimidated by Petrocelli,'' says Laurie Levenson, dean of

Loyola law School, ``and there's not many people who can intimidate O.J.

Simpson.

Contributing: Gale Holland

TEXT OF INFO BOX BEGINS HERE

The night of the slayings

Simpson's account of his time

10:03 p.m.

Simpson says he phoned his girlfriend whi;e strolling in the vacinity of his

house.

After 10:03, before 10:45 p.m.

Says he chipped golf balls in his yard, went back into the house, turned off the

downstairs lights and headed upstairs.

10:39 p.m.

Simpson says he was in the shower when he heard his limo driver's call.

10:55 p.m.

Says he placed his luggage outside and went back inside the house.

Police/prosecution witnesses timeline

10:03 p.m.

Simpson previously told Dr. Lenore Walker he called his girlfriend from his

Bronco.

10:22 p.m.

Limo driver waiting to pick up Simpson says he didn't see the Bronco.

10:39 p.m.

Limo driver buzzes Simpson's intercom, fails to get an answer.

10:40 p.m.

Neighbor walking his dog hears ``Hey, hey, hey'' from direction of Nicole Brown

Simpson's house. Thought to be time of the murders.

10:55 p.m.

Limo driver sees figure cross Simpson's yard and enter front door.

GRAPHIC, Color, Grant Jerding, USA TODAY (Time line); PHOTO, Color,

Fred Prouser, Reuters; Caption: Testimony over: O.J. Simpson and lawyer

Robert Baker leave court Tuesday.