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NEWS ANALYSIS : Determining Time of Death Is Imprecise Science at Best : Simpson case: 'Quincy Syndrome' has set unrealistic expectations. But defense will try to exploit doubt.

March 19, 1995|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

Burning candles. Melting ice cream. Barking dogs. Thumps in the night. A shadowy figure moving through the dark.

As the O.J. Simpson murder trial moves past the high-stakes cross-examination of LAPD Detective Mark Fuhrman, it returns to those detective novel-style clues that surround a critical issue: When did Nicole Brown Simpson and Ronald Lyle Goldman die?

It is a question that medical science, even under the best of circumstances, is unable to answer precisely. And the circumstances are far from the best in the Simpson case, in part because police failed to summon a coroner to the scene until hours after the bodies were found.

That has created a significant problem for prosecutors, who must confront what trial lawyers call "the Quincy Syndrome."

Named after the popular television show about a medical examiner, it is the unrealistic notion that a coroner can establish to the minute when a crime victim died.

Absent an eyewitness or a wristwatch fixed in time by a bullet, nothing could be further from the truth, according to forensic experts and experienced criminal lawyers.

"Time of death is one of the most recurring issues in murder cases, but I know of no subject in the entire arena of forensic pathology that is so rife with misunderstanding," said James E. Starrs, professor of law and forensic sciences at George Washington University.

In fact, during his cross-examination of Fuhrman, defense lawyer F. Lee Bailey acknowledged that "no doctor can ever say (a) victim died at 32 1/2 minutes past the hour. It's not that precise."

But because the burden of proof is on the prosecutors, anything that happened during the investigation to make it more difficult to assess the time of death becomes their problem at trial.

"I don't think you will have much more narrowing of the time of death than we have now, and that benefits the defense," said Los Angeles lawyer Barry Levin, a former LAPD officer who has represented numerous defendants in homicide cases. "The defense will argue that Simpson shouldn't be penalized because the coroner didn't get there sooner."

Because of the nature of Simpson's alibi, an accurate assessment of the time of death is critical, Levin said.

The issue is so important that prosecutors have already called seven witnesses to testify about when they heard Nicole Simpson's Akita start barking, to buttress their contention that the dog's howls are perhaps the most precise indicator of when the murders occurred. That, in itself, is ironic in a case in which some of the prosecution's most significant evidence depends on high-tech DNA blood testing.

The battle over the time of death has been a low-tech one so far. The defense has tried to suggest that a cup of melting ice cream at the scene indicates a later time of death, but the ice cream was never tested by authorities. A prosecution witness said the cup contained the lumpy part of chocolate chip cookie dough ice cream, which does not melt like the creamy part.

Defense lawyers also chided officers for failing to perform tests to determine how long candles had been burning throughout Nicole Simpson's condo on the night of the murders.

The prosecution, which so far has made much of the barking dog, is expected to move soon into testimony about when Simpson guest house tenant Brian (Kato) Kaelin heard a sharp thump near his room. Prosecutors also are expected to call to the stand limousine driver Allan Park, who has previously testified about seeing the shadowy figure of a tall black person striding across the lawn of Simpson's estate, toward the front door, a few minutes before 11 p.m.

Both Kaelin and Park could be called this week, depending on how long LAPD Detective Philip L. Vannatter remains on the stand. With the appearance of Kaelin and Park, the focus on time of death--and how it relates to Simpson's alibi--will take center stage.

"Determining the time of death is a very inexact art, to say the least," said Dr. Paul Herman, a respected Oakland pathologist, expressing a widely held view that prosecutors Marcia Clark and Christopher A. Darden would like the jury to adopt.

The reason is simple: If there are limitations on how precisely the time of death can be pinpointed, it helps prosecutors minimize miscues made by police and the coroner's office.

Prime among them were the LAPD's decision to keep coroner's staff away from the crime scene for nearly 10 hours after the bodies were discovered, the decision of the coroner's office to send an investigator rather than an experienced medical examiner to the scene, and an assistant coroner's failure to preserve Nicole Simpson's stomach contents.

"There is no question that it sounds absolutely terrible that the coroner did not come for 10 hours," said Southwestern University law professor Myrna Raeder. "People I talk to from other jurisdictions are appalled.

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