The retrial: tougher going for O.J.

By Ros Davidson
Published September 17, 1996 10:21AM (EDT)

he's back, and this time he might have more difficulty getting off scot-free. The retrial of O.J. Simpson, which began today in a Santa Monica courtroom, takes place under very different circumstances than the previous go-around. The wrongful death suit filed by the families of Nicole Brown Simpson and Ronald Goldman -- if successful -- won't put O.J. Simpson in jail, but it could cost him a great deal of money. The civil (in the legal sense) proceedings also have, apart from Simpson, an entirely different cast of lawyers. The public will not be glued to the television for the next several months because cameras are not being allowed in the courtroom.

What other differences are there? And what are some of the high points to look for?
We talked to Peter Arenella, a professor of law at the UCLA Law School, who was a legal consultant for ABC News during Simpson's criminal trial.

Judge Hiroshi Fujisaki, who is presiding over this trial, has been widely praised for imposing a pretty strict gag order on the participants, in order to prevent, he says, a "circus atmosphere." Will it?

Not very much, despite the judge's hopes. The gag order is
really at this point a useless act because the public in this
jury pool has been exposed to so much information about the Simpson
case it's hard to believe that any further exposure can really
change someone's opinions. The question is really whether members
of the jury pool can really have an open mind about Simpson's
guilt or innocence. It's going to be terribly hard, if people are
honest, to find 12 intelligent people who have an open mind.

He clearly wants to limit media involvement, and is even excluding sketch artists
from the courtroom.

That's one example of how superfluous and silly parts of this gag order are. Also, there really is not much purpose in excluding family
members from talking to the media. Everyone knows what
Ronald Goldman's father's position is, so the notion that he needs
to be gagged or that other family members need to be gagged to
promote a fair trial is silly. Gagging the attorneys certainly
prevents them from doing their daily spins after court
to the news media and arguably there is some purpose served by
that. But these attorneys will manage to get their own spins out
there somehow through other actors.

There are completely different sets of attorneys this time. What difference might that make?

They were not evenly matched last time. It wasn't even a close call. The
"Dream Team" was a ridiculous appellation created by the media to
describe the defense team; but the truth is there were some
members of that team -- I'm thinking specifically of Barry Scheck
and Johnnie Cochran -- who on occasion were quite skilled at what
they did.

But not so the prosecution?

Christopher Darden on many occasions acted less like a trial
lawyer than someone who had such a strong emotional stake in the
setting that he couldn't act professionally: irritability, mood
swings, petulance. There were so many examples of behavior that
a good courtroom trial lawyer does not engage in. He also allowed
himself to be baited constantly by Johnnie Cochran, which never
served the interests of the prosecution.

Marcia Clark is a better trial lawyer than Christopher Darden but she had a tough time
seeing the nuances of some issues. She certainly believed and
held onto the belief that African-American women would be good
jurors for her, despite the advice of a jury consultant who made
it quite clear that they would be the worst possible. She ignored that advice to her detriment.

We're not likely to see a repeat of those mistakes -- on either side?

By reputation there appears to be a more even match this time. I do
know Dan Petrocelli who represents the Goldmans;
he is a superb trial lawyer. Robert Baker, who is
representing Simpson, has a reputation as a superb trial
lawyer, so at least in theory they should be evenly matched.

What do you think will be the high points of the trial?

That's impossible to say, apart from O.J. taking the stand. Other than that, it's
impossible to predict. It's like predicting how a play is going
to go before you've seen the actors do their parts. You can
know the entire script and not know if the play will work or not
until you see its performance. And a trial is very much a piece of
theater. What looks good in deposition might look very bad on the
witness stand because the person delivering the words does not
seem credible to the jurors.

If you were representing the Goldmans and the Browns, how would you tackle
O.J. on the stand? You're a former defense lawyer --

I'm a former criminal defense lawyer and I don't want to give
any advice to Dan Petrocelli as he knows all too well how to
handle Simpson. His greatest vulnerability so far has
been how he's handled the domestic violence evidence. And with all the coaching in the
world, if this judge allows in a considerable amount of domestic
violence evidence, I believe that Simpson's vulnerability in
how he responds to those allegations will be one of the places where the plaintiffs' attorneys can do some very good work.

How long will this trial last? We've heard speculation that it would take four months.

There's no way of knowing. Judge Ito, in his admonitions to the jurors about how long
they would be sequestered, thought the criminal trial would end by February (1995).
Well, he was off by only about 4 or 5 months. The only thing that can be said with reasonable confidence is that it probably will not last half as long as the criminal case. That means it could last as long as 4 or 5 months.

Given that we're not going to have gavel-to-gavel TV
broadcasts from inside the courtroom, who do you think might provide the best overall coverage of the trial?

Court TV has legal commentators on staff who are well
trained and versed in the law and who understand what it is they
are covering, and they also have experts whom they invite on a
rotating basis. You don't simply get the same pundit giving that
person's particular slant all the time. So I think that Court TV
will be by far the best place to look.

There have been several books published on the criminal trial, including by attorneys from both sides. Which one has been the best so far?

I think there are two that are worthy of people's
attention. One of the defense lawyers, Gerald Uelman, wrote an excellent book called "O.J. Lessons." Though he was offering a defense perspective on several issues, Uelmen has been on all sides of the fence -- a prosecutor, a defense lawyer and a legal academic. He has a very rich view of the different roles involved and he's a very smart man and very funny. The one good book written at this juncture by someone who wasn't involved directly in the case is Jeffrey Toobin's ("The Run Of His Life") You're not going to find out much that's new, but it's certainly a well-written,
careful book and it offers some rather caustic assessments of
some of the key actors.

One last question -- what do you think the outcome of the civil
trial will be?

Any legal commentator who answers a question like that
is not acting in an ethical fashion. You're free to ask it, but
for someone to answer that question is for someone to go beyond
their legal expertise and engage in crystal-ball gazing. I don't know how Simpson will perform on the stand. I have some expectations about what will happen when he is
challenged by the plaintiff's attorneys, but I might be wrong.


I think Simpson will be vulnerable in dealing
with the domestic violence evidence that will be admitted in this
case. That doesn't answer the key question, which
is that even if he is somewhat vulnerable here, will his testimony
surrounding the night of the killings nevertheless be credible?
He's going to face a difficult examination by the plaintiffs' attorneys on that.
Unless the jury finds him to be totally disingenuous on the
domestic violence evidence -- and therefore rejects his credibility totally -- it remains to be seen how he handles it.

Quote of the day

Man of the Year

"Let me put it this way. I don't believe there's a man outside of maybe Billy Graham, or whatever, that has gotten more love from America...I mean now."

-- O.J. Simpson. (From "Simpson Unbowed On Trial Eve," in the Boston Globe)

Ros Davidson

Ros Davidson is a frequent contributor to Salon.

MORE FROM Ros Davidson

Related Topics ------------------------------------------