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Simpson Murder Case : Challenges to Evidence Ruling Likely to Fail, Experts Say : Procedures: Simpson attorneys would need new information to reopen issue, they say. Some contend that defense took a major risk by filing its motion early.

July 08, 1994|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

After failing in its long-shot bid to suppress highly damaging evidence, O.J. Simpson's defense team vowed Thursday to challenge a judge's ruling on that issue if the former football star is placed on trial for murder, but legal experts predicted that that will be an uphill battle too.

"The care with which the judge conducted the hearing and made her findings makes it unlikely her ruling will be overturned as the case proceeds," said Loyola University criminal law professor Samuel A. Pillsbury.

Although some defense lawyers said the decision was vulnerable, many others agreed with Pillsbury. So did Orange County Deputy Dist. Atty. E. Thomas Dunn, who specializes in evidence issues. "The chance of the defense getting a reversal of this ruling in Superior Court is virtually nil," he said.

Several lawyers said Simpson's attorneys had taken a major risk by filing a motion to keep out evidence at this stage of the case because Municipal Court judges rarely grant such requests.

"To make a motion like this so early is extremely chancy because so much more information is going to develop" that could have helped the defense had it filed later, said San Francisco defense lawyer Doron Weinberg.

Weinberg and others said the defense team may have made the bold move because they are attempting to start the trial in "the court of public opinion" and wanted to raise as many doubts as possible about the prosecution's case as early as possible before a huge audience of potential jurors watching the proceedings on television.

"My suspicion is the defense felt they needed some weapons, as a public relations gesture and as a matter of case strategy and momentum," Weinberg said.

Nonetheless, he said the defense is now in a better position to assess the strength of the prosecution's case, knowing that blood splatters found in the driveway of Simpson's estate, a bloody glove found on the grounds of the estate and blood found on the door handle of the former football star's white Ford Bronco will be admitted into evidence, barring a reversal of Judge Kathleen Kennedy-Powell's decision.

Despite the prosecution's victory, Los Angeles defense lawyer Janet Levine said the defense still could prevail somewhere along the line. "Sometimes, when you are on the defense, you only have to win one time and it doesn't matter where, but the prosecution has to keep winning."

A challenge to Kennedy-Powell's ruling would be bound by the record of testimony introduced on the suppression motion during the preliminary hearing. Defense lawyers will not be able to call any new witnesses or introduce any new evidence unless they can demonstrate exceptional circumstances, according to a section of the California Penal Code.

Conceivably, Simpson's lawyers could argue that important information was not available to them at the time of this week's first hearing, said Los Angeles defense lawyer Barry Tarlow.

Because Simpson's preliminary hearing was held so soon after the crime, "it's reasonable to believe" that such information may come to light, and that may give defense lawyers a better shot at presenting new evidence in a Superior Court hearing on the search, said San Diego defense lawyer Elizabeth Semel.

However, several experienced defense lawyers said they had never won an "exceptional circumstances" motion.

Perhaps more significant for both sides, Kennedy-Powell's decision appears to pave the way for prosecutors to use all the evidence they now have at trial--including evidence gathered by police officers inside Simpson's house after they obtained a search warrant about 10 hours after the discovery of the bloody bodies of Nicole Brown Simpson and her friend Ronald Lyle Goldman outside her Brentwood condominium.

"This is the most critical decision on the admissibility of evidence," Pillsbury said. "Even though the warrant evidence wasn't litigated at the preliminary hearing, it will probably stand or fall on the initial search because they're all connected."

Thursday's decision covered only a portion of the motion filed by defense lawyers, who also sought to invalidate the search warrant, contending that it was improperly obtained by police officers who made "material misrepresentations" to a judge. Kennedy-Powell ruled only on the admissibility of evidence obtained before the search warrant was issued; she declined to rule on evidence gathered after the warrant was obtained.

The motion asserted that Detective Philip L. Vannatter "misrepresented the nature of (Simpson's) absence" from his home by stating in an affidavit that he had left on an "'unexpected flight to Chicago in the early morning hours of June 13, 1994, when they were fully aware" that he was on a planned business trip.

The defense motion also states that at the time Vannatter made this statement, police officers had spoken to Simpson on the phone in Chicago and learned "that he was fully cooperative and indicated his intention to immediately return to Los Angeles on the next available flight."

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