NEWS ANALYSIS : Experts View Case as Strong but Flawed

They put on five detectives, an FBI agent, a statistician who had trouble with his addition, eight criminalists, a coroner, more DNA charts than anyone can remember and a glove-fitting that no one ever will forget.

Now the question is: What did it all add up to?

Former Los Angeles County Dist. Atty. Ira Reiner summed up the view of many legal experts Thursday when he said: “The story of the prosecution’s case against O.J. Simpson is overwhelming evidence, continually haunted by the carelessness and sloppiness of other agencies, capped off by their own monumental lapse of judgment with the glove demonstration.”

The weight of expert opinion is that the evidence offered against Simpson is more than sufficient to meet the prosecution’s burden of proof, but a flawed presentation may have obscured that fact.

“They did just fine,” said Robert Philibosian, another former Los Angeles County district attorney. “They proved their case, which is all they have to do. Equally important, they didn’t leave a hole the defense can crawl through. Could they have done it more artfully? Every lawyer in every trial second-guesses themselves. Everybody thinks they could have done a better job. But the final assessment will be the jury’s verdict.”

Defense attorney Gerald L. Chaleff said one of the great strengths of the prosecution’s case was that it followed the blueprint lead prosecutor Marcia Clark laid out more than five months ago.

“The prosecution has proven nearly everything Marcia Clark promised they would in her opening statement,” he said. “The only topic on which they didn’t quite live up to their word was in the area of domestic violence and stalking-type behavior. But it obviously was a longer and messier presentation than they expected.”

‘A Mountain of Evidence’

Some legal analysts, however, found the evidence as unconvincing as its presentation. One of the most prominent was Harvard law professor Charles J. Ogletree, who said, “The problem is that much of the evidence was confusing, some of it conflicting and a great deal of it consistent with innocence. I think they’ve given the jury a lot of evidence, but its equivocal quality may cause many of the jurors to have reasonable doubts about Simpson’s guilt.

“More important, the decision to call Dr. Lakshmanan Sathyavagiswaran, the chief medical examiner, to impeach his own subordinate, Dr. Irwin Golden; the miscalculations by statistician Bruce Weir on the DNA, and the fatal glove experiment certainly undermined the prosecutors’ ability to convince this jury of Simpson’s guilt,” Ogletree said.

But the Harvard professor was virtually alone in his dissent. The prevailing sentiment among experienced lawyers was expressed by Harland W. Braun. “It’s one of the most overwhelming cases I’ve ever seen,” he said. “The prosecutors built a mountain of evidence that points only to O.J.”

The base of that mountain, according to most observers, was the prosecution’s DNA evidence.

“The DNA evidence is conclusive,” said Vincent T. Bugliosi, who prosecuted Charles Manson. “They’ve put his blood at the murder scene and the victims’ blood in his car and at his home. That’s really the end of the ballgame.”

But some wondered whether all the jurors were still awake for the ninth inning.

UCLA law professor Peter Arenella felt there was every chance they were. Prosecutors, he said, “did a superb job of presenting that evidence. Despite its technical nature, prosecutors did the best possible job of communicating the guts of the case in a comprehensible manner. If the jury didn’t understand the DNA evidence, the fault does not lie with the prosecutors or their witnesses. It was as juror-friendly as it can get.”

Harvard’s Ogletree, however, had a different view. “From a forensic point of view the DNA evidence was quite powerful and persuasive. But with lay people I think much is lost in the translation,” he said. “I think the jurors will look at much more fundamental issues and wonder about the risk of error, the risk of contamination and the limited expertise of some witnesses. [The DNA evidence] may be powerful in a vacuum, but it may not have the resonance the government expects. It was presented in far too much detail to be clear and easily understood by jurors.”

There also was general agreement on the low point in the prosecution’s five-month, 11-day case: the botched attempt to have Simpson put on the bloody gloves police recovered from the crime scene and the grounds of his Brentwood estate.

Although some who watched the demonstration saw it as a convenient and unconvincing exercise in bad acting by the defendant, Reiner labeled it a “self-inflicted wound.”

Braun commented, “I could see a juror saying, ‘If the gloves don’t fit O.J., I don’t care about the rest of the evidence. They haven’t proved the case.’ The main problem is the prosecution stumbled and generated their own problem,” he said.

“It was obviously a blunder to have him try the glove on when they already knew the glove had shrunk and he was going to wear latex gloves,” agreed Bugliosi. “Apart from that, the gloves are a very important piece of evidence in the case. You don’t turn over a piece of evidence to the defendant and have him be the one to decide whether it fits.”

But veteran Deputy Dist. Atty. Harvey Giss, who has tried 30 homicide cases, said prosecutors have been unfairly criticized for the glove demonstration. “Sometimes you have to take chances,” he said. “If the people hadn’t done it, the defense would have and [defense attorney] Johnnie Cochran would have screamed, ‘Look what they were hiding from you. And if you can’t trust them on this, you can’t trust them on anything.’ ”

The prosecutors, said Giss, “were damned if they did and damned if they didn’t, but more damned if they didn’t.”

A number of analysts felt that the prosecution’s presentation of evidence had been inhibited from the start by an unusual defensiveness.

“My theory is the defense set the tone and agenda for the case early on,” said Loyola Law School professor Laurie Levenson. “The prosecution became defensive and let the defense dictate where the trial would go.”

Arenella agreed. “To spend eight days on coroner testimony that didn’t tell the jury anything more than what they knew at the outset was a classic illustration of defensive lawyering by the prosecution,” he said, referring to the prosecution’s exhaustive exposition of the 30-odd autopsy mistakes made by Golden, who never was called to testify. “It’s always wise to anticipate and defuse the best themes of your opponent, but the prosecutors overdid it in this case.”

Prosecution Seen as on Defensive

Reiner recalled Clark’s recent news conference in which “she said she has never seen so much evidence and that it had come in ‘beautifully.’ But the best evidence of how she really feels is how she handled the next witness--LAPD criminalist Susan Brockbank,” the former district attorney said. “She took an entire day with Brockbank playing defense--how she wrapped the package, how she unwrapped the package . . . an entire day spent on a portion of testimony that under any other circumstance she would have dispensed with in a minute or two. What she did with Brockbank is the best evidence of how she and others feel the case has gone.

“They are so defensive because they have been hit so hard, so often and so effectively by the defense going after sloppy handling of evidence. If there is one constant in this case, that is it.”

Other observers knowledgeable in the inner workings of the district attorney’s office say some of the prosecutors’ diffidence arose from the way Dist. Atty. Gil Garcetti elected to handle the case from the outset.

“There were too many personalities involved in the prosecution case,” said Braun, himself a former prosecutor. “One of the problems they had was the guy running the prosecution was not in the courtroom. So you had Chris Darden and Clark acting like puppets and the puppeteer was on the 18th floor” of the Criminal Courts Building, where Garcetti’s office is located.

One senior prosecutor, who asked not to be identified, concurred. “I’ve got guys sitting on Death Row on far less evidence than they’ve presented against this guy,” he said. “But this is no slam-dunk for them. And that doesn’t have anything to do with O.J. Simpson’s popularity or the fact that there are a lot of black people on the jury. With this evidence, you could convict Bill Cosby, and he’s a heck of a lot more popular with whites and blacks than Simpson ever was.”

Garcetti has repeatedly denied that he is “micro-managing” the Simpson case and has said the numerous meetings he has held with the prosecutors were at their request.

But the senior prosecutor insists that “this case has been tried by committee, with Garcetti calling all the shots himself. This has made the case more disjointed and less convincing than it should have been. Now the pressure is on Marcia to pull this thing out in her final argument.”

However technically sophisticated and overwhelming the evidence against Simpson may be, the prosecution’s case remains circumstantial. There are no known eyewitnesses, no murder weapon has been recovered, and the clothes Simpson is alleged to have worn have never been found. Lacking those things, prosecutors must draw the inferences from the circumstances they have established to present a coherent and persuasive explanation of how the murders occurred. The moment for that will come weeks from now, when the defense also rests.

“Final argument is critical in circumstantial evidence cases,” said former Dist. Atty. Philibosian, “because the prosecutor must tie up for the jury all the inferences of the evidence and use them to tell their story of the crime--ideally the same one they told in opening statement. Marcia Clark should be able to deliver everything in her closing argument that she promised in her opening statement. That’s the strength of their case.”

Chaleff said that “anyone who tries to judge this case now” is forgetting how crucial it is to put all the pieces of the puzzle in a convincing place. “That’s true in any circumstantial evidence case and particularly in one as complex and lengthy as this. Both sides will have a lot riding on closing argument, which creates the last impression the jury takes with them into that inner sanctum of deliberation, where the only decision that counts is made.”