Simpson Murder Trial Taught Plaintiffs a Lesson

No doubt about it: They’ve learned.

The attorneys pressing a civil lawsuit against O.J. Simpson are working with evidence, witnesses and exhibits recycled from the criminal trial. But their strategy is all new.

They’re protecting vulnerable witnesses. Preempting defense attacks. Putting on a brisk, crisp, just-the-facts case that has frustrated Simpson’s team and--so far, at least--kept jurors engaged.

“From what I’ve seen,” said civil attorney Brian Hennigan, “it seems like it’s going as well for the plaintiffs as they could have hoped.”

How well? Consider this: Criminalist Dennis Fung spent nine days on the stand in Simpson’s double murder trial. Nine excruciating days. The defense had him squirming and stammering and admitting so many screw-ups that his credibility--and the integrity of the evidence he gathered--was put in serious doubt. In the civil trial, Fung was on and off the witness stand in just over an hour, escaping bruised but not demolished, thanks to the plaintiffs’ tactic of focusing his testimony on the narrow issue of his work collecting blood drops, rather than his observations and actions throughout the investigation.

Former Los Angeles Police Det. Philip L. Vannatter testified for only 30 minutes in the civil case--compared to five days in the criminal trial. Again, the plaintiffs ensured minimum damage by airing just one topic. That topic--Vannatter’s handling of blood vials--was plenty controversial. But confined to it alone, without the freedom to probe Vannatter’s other actions, the defense had a tough time proving that the veteran cop was a corrupt and scheming liar, let alone the “devil of deception” that he was dubbed during the criminal trial.

The plaintiffs’ strategy boils down to a simple goal: Keep the defense on the defensive.

In the criminal trial, the defense seized the offensive from the start. Simpson’s “dream team” of criminal lawyers attacked the prosecution’s witnesses with devastating effect, and raised so many of their own theories on cross-examination that they muddled the government’s case.

The plaintiffs, led by chief counsel Daniel M. Petrocelli, have largely avoided that fate.

They have strictly limited the appearances of the witnesses who proved most problematic in the criminal trial, such as Fung and Vannatter. They have also asked questions on direct examination to inoculate their case against anticipated defense attacks. For instance, knowing that the defense would play a video of Simpson struggling to tug on the bloody crime scene gloves, plaintiff attorney John Q. Kelly asked his expert witness to explain to jurors why the fit appeared too tight. Richard Rubin, former vice president of the Aris Isotoner company that made the killer’s gloves, repeated his testimony from the criminal trial--that the leather had shrunk and stiffened so much that the gloves seemed too small for Simpson, even though in reality “they fit.”

This time, however, Rubin gave that opinion before jurors watched Simpson trying on the gloves, to prepare them for what they would see. In the criminal trial, Rubin’s testimony on the gloves’ fit came after the astounding demonstration, in an obvious effort at damage control.

“Instead of playing catch-up,” said Loyola Law School Dean Laurie Levenson, “the plaintiffs can do some preemptive strikes.”

Although they have called 10 LAPD witnesses in the first two weeks, the plaintiffs have worked hard to avoid overlap and unnecessary detail.

“They’re not getting bogged down in collateral issues,” said Robert J. Stoll, a civil litigator who handles many wrongful-death cases. The criminal trial taught them that “you don’t spend five days talking to the coroner about the angle of each stab wound,” he said. “You show the pictures, ask how many stab wounds there are, and establish that [the victims] died from them.”

The snappier pace has several positive effects, analysts said.

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In the criminal trial, the defense managed to ring up several Perry Mason moments simply by interjecting some fresh or flashy theory at the end of a tedious, repetitive segment of the prosecution’s presentation. “It would be something new,” Levenson said, so jurors would eagerly latch on to it. In the civil trial, the plaintiffs have been able to trump the defense by keeping their own case moving so quickly that the jurors always have something fresh to ponder--usually something that tends to incriminate Simpson.

“Not every minute of testimony is scintillating, but the plaintiffs do give the jury something new every day,” Levenson said. “Even if the defense is able to get in some zingers, there’s not as much time for them to settle in.”

Furthermore, with their opponents no longer wallowing in minutiae, Simpson’s lawyers “look at times as though they’re nit-picking” when they try to mount a detailed cross-examination, Levenson said.

The plaintiffs have also been able to frustrate Simpson’s attorneys by limiting their direct examination of witnesses. Because the defense can only raise topics that the plaintiffs have broached first, their cross-examinations have been cut short again and again.

Kelly questioned Vannatter on only one topic: his handling of blood vials containing reference samples from Simpson and victims Nicole Brown Simpson and Ronald Lyle Goldman. Defense lawyers, restricted to that issue in cross-examination, found themselves unable to raise the accusations that proved so effective in the criminal trial, such as blasting Vannatter for a rush to judgment or suggesting that he lied to obtain a search warrant.

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“One of the plaintiffs’ most brilliant moves was getting Vannatter on and off in half an hour, before he could be demonized by the defense,” Levenson said.

Similarly, Petrocelli confined his examination of Dr. Robert Huizenga to an analysis of the cuts and abrasions the internist observed on Simpson’s hands three days after the slayings. During the criminal trial, Huizenga had been a defense witness, talking at length about how arthritis limited Simpson’s mobility, and by implication his ability to overpower and kill two healthy young adults. But Petrocelli did not give the defense any chance to quiz Huizenga about those ailments in the civil trial.

This kind of disciplined, compartmentalized presentation “is what should have happened in the criminal trial,” said UCLA law professor Peter Arenella, who has monitored the Simpson case from the beginning. “Petrocelli is doing a terrific job.”

To be sure, the defense has managed to score some hits. The plaintiffs had to let Fung testify about all the blood evidence because he was the criminalist in charge of collecting most of the drops.

In his short but pointed cross-examination, defense attorney Robert Blasier flung some angry questions at Fung designed to undermine that evidence. He showed Fung photos of crime scene evidence that had been moved, which he said suggested tampering. He forced Fung to acknowledge sloppy paperwork. He hammered at Fung for letting a dog roam near the blood spots on Simpson’s driveway and for bringing the bloody glove found at Simpson’s estate to the scene of the killings. And he demonstrated that Fung had not refrigerated the reference vial of Simpson’s blood, but rather left it overnight in a garbage bag on a table in the evidence processing room.

Yet because the judge and the plaintiffs limited the scope of his cross-examination, Blasier did not have a chance to shred Fung’s credibility as the defense had during the criminal trial.

Superior Court Judge Hiroshi Fujisaki, displaying his vaunted no-nonsense style, stole the thunder from one of the defense’s trump cards: a video that lawyers contend shows the crime scene glove lying on a blanket that was tossed over the body of Nicole Simpson. That video, they say, proves that the evidence was hopelessly contaminated. But Fung insisted that he was not sure the dark blob on the video was in fact the crime scene glove, and Fujisaki instructed jurors not to draw any conclusions.

“The video speaks for itself,” Blasier protested.

“The video doesn’t show it’s a glove and this witness can’t identify it as such,” Fujisaki responded, admonishing jurors “not to consider it a glove unless someone comes in and proves it.”

Fujisaki’s tough stance has been shaped, in part, by another plaintiff strategy--an aggressive pretrial move to restrict Simpson’s team from raising certain defenses. With written motions and oral arguments, they persuaded Fujisaki to ban speculative or overly broad attacks on the LAPD.

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Fujisaki’s ruling barred the defense from claiming that the police overlooked evidence that would have exonerated Simpson, such as a melting cup of ice cream or a trail of blood drops on Nicole Simpson’s back. The judge also prevented the defense from launching general critiques of LAPD policies and procedures.

Defense lawyers have not tried to hide their frustration from jurors.

Conventional wisdom holds that attorneys should always try to look confident in front of juries, projecting the message that everything’s going their way. But defense attorney Robert C. Baker, a veteran litigator, appears to have adopted a different tactic.

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“Baker’s a calculating guy,” Stoll said. “If he’s showing this much frustration, he may think he can use it to send a message to the jury that ‘Wow, if you could only hear what I know, if only I weren’t being deprived by this biased judge, you’d really think my client is innocent.’ ”

Baker has vowed to bring back several of the plaintiffs’ witnesses--including Vannatter, Fung and Matheson--for a further grilling during the defense case. Analysts warn, however, that if he calls witnesses for the sole purpose of tearing them down, he might appear vindictive, or evasive.

“You want to spend your time presenting some other explanation for the evidence and the events that tend to incriminate your client,” Hennigan explained. Devote a large chunk of your case to attacking the other side’s witnesses, he said, and “you run the risk of burying your alternative explanation amid all the negativity.”

* CUSTODY BATTLE

Trial to begin on where Simpson’s children should live. B5