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NEWS ANALYSIS : Miscalculations, Bad Luck Hurt Prosecution


On the morning of her final argument in O.J. Simpson's double murder trial, Deputy Dist. Atty. Marcia Clark stepped onto the elevator outside her 18th-floor office in the Downtown Criminal Courts Building and began the usual, halting nine-floor ride down to Judge Lance A. Ito's high-security courtroom.

As she clutched a brace of green loose-leaf notebooks tightly to her chest, Clark turned to a reporter and asked, "Do you think the jurors are interested in what I have to say?" With each syllable, the concern in her voice seemed to deepen until it filled the tiny space like a cloud.

In fact, that dark pall of doubt had cast its anxious shadow across the Simpson prosecution from the start. So, even though she argued her case from atop what she repeatedly called a "mountain of evidence," Clark and her colleagues never managed to break through into the open air of clarity and confidence. From the beginning, legal analysts say, they appeared to be on the defensive, fearful of O.J. Simpson's celebrity and intimidated by his all-star defense team. They also were dogged by bad luck and a series of tactical miscalculations, including the decision to try the case Downtown, where suspicion of the police is considered higher and the impact of testimony concerning domestic violence is generally thought to be less.

"But their worst mistake," said veteran defense attorney Harland W. Braun, "was to use [former LAPD Detective] Mark Fuhrman, a witness they knew was a racist and a liar. They tried to slide him over thin ice and, when the tapes landed on them, they all fell through."

For its part, the defense--by turns audacious and tenacious--proceeded with an apparently unassailable confidence. Just days into the trial, lead defense attorney Johnnie L. Cochran Jr. confided to a reporter, "These jurors are good and honest people. I know their hearts and they know mine. And that's how I'm going to talk to them, heart to heart."

Beyond simple rapport, Braun said, the defense "got lucky by taking advantage of those prosecutorial mistakes."

"They also were able to put on a more cohesive case because their chief decision-maker--Cochran--was in the courtroom," Braun said, "and all the prosecution's important decisions were made by [L.A. County Dist. Atty.] Gil Garcetti, who wasn't."

The consequences of both sides' decisions may be with Californians for years to come, rattling the very foundations of the criminal justice system. "The real problem here is that the American justice system, the California justice system, was not designed for a defendant with $4 million or $5 million to spend to create reasonable doubt in a person," said Justice J. Anthony Kline, who was appointed to the state Court of Appeal by Democratic Gov. Edmund G. (Jerry) Brown Jr. "People will want to change protections that have worked well for 200 years. . . . The effect of this trial is probably going to be catastrophic."

In a preview of just how sweeping this debate may become, Gov. Pete Wilson called Tuesday for the elimination of cameras from the courtroom and new restrictions on the scope of defense attorneys' final arguments.

Wilson called on the California Judicial Council to devise rules to prevent lawyers in closing arguments from making political appeals to jurors, to ban cameras from state trials and to consider extending trial days when juries are sequestered.

"I find it particularly distressing . . . when lawyers do not argue the issue at hand--when they do not confine their comments to the matter of the defendant's innocence or guilt--but instead ask jurors to use a verdict as a means of sending a political message to law enforcement," Wilson said, referring to Cochran's closing arguments. The governor's proposals were contained in a letter to Malcolm M. Lucas, chief justice of California and head of the judicial council.

Where Prosecutors Went Wrong

Legal analysts generally were united in their assessment of how prosecutors lost the Simpson case, though they differed somewhat in their explanations of how the defense won. Denver's chief deputy district attorney, Craig Silverman, called the verdict "a complete repudiation of the prosecution," which he attributed to mistakes in the choice of venue and jurors, as well as "lackluster" opening statements. "The prosecution," he said, "suffered three strikes before any evidence was presented. They can complain all they want, but they created a situation where rational people could come to a verdict of not guilty."

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