Doubt Stalked The Prosecution -- Clark, Her Colleagues On Defensive From Start And Dogged By Bad Luck

LOS ANGELES - On the morning of her final argument in O.J. Simpson's double-murder trial, Deputy District Attorney 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 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 clear 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 Braun, "was to use (former Los Angeles police 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 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."

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 of the California Court of Appeal. "People will want to change protections that have worked well for 200 years. . . . The effect of this trial is probably going to be catastrophic."

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."

Like many observers, veteran Los Angeles Prosecutor Harvey Giss also thought the first mistake was moving the case away from nearby Santa Monica, closer to where the slayings occurred. "Had this case been tried in another part of the county, it might have been different. Let's face it, the composition of the jury is everything. What kind of person, irrespective of their race, do you expect to sit on a jury for this long? I'm an experienced prosecutor and I can't begin to understand DNA. How would you expect a jury, only one of whom is a college graduate, to do so?"

The ultimate question

Location notwithstanding, former Los Angeles County District Attorney Ira Reiner said, "The question of whether he did it was not the ultimate question. It was only the predicate to the ultimate question and the ultimate question was, would the jury be willing to convict even if they believed he had done it because of this deep reluctance to bring down a black icon."

Assuming such reflexive reservations were at work, "the prosecution was severely hampered," said defense attorney Marcia Morrissey, "by the LAPD, by the mistakes of the coroner's office and by the Fuhrman debacle, which made race an inextricable part of this trial."

". . . Taken together, these things add up to a credibility problem, which the prosecutors never took seriously and failed to address in a timely way," Morrissey said.

"The defense's strategy of attacking each piece of scientific evidence was successful," said criminal defense lawyer Gerald Chaleff. "This assault, led by Barry Scheck, gave credence to their argument that although the science was sound in principle it was flawed in execution. This attack also dovetailed with the assault on the LAPD as the root of all the problems in this case, whether through deceit or incompetence.

Impression of defense witness

Laurie Levenson, a former federal prosecutor and now a professor at Loyola Law School in Los Angeles, was one of several experts who noted that jurors apparently were particularly impressed by the testimony of the defense's most eminent forensic witness, Henry Lee.

"You have to credit Bob Shapiro who went out and hired all the defense experts at the beginning," Levenson said. "Not only did he freeze out the prosecutors from using these experts, but he also gave the defense tremendous weapons to use in their case."

----------------- A TRIAL WHO'S WHO -----------------

Following are the key players in the double-murder trial of former football star O.J. Simpson:

--------- The judge ---------

Lance Ito: Recognized as a brilliant jurist, Ito was named trial judge of the year in 1992 by the Los Angeles County Bar Association for his handling of the high-profile Charles Keating savings-and-loan case.

--------------- The prosecution ---------------

Marcia Clark: Deputy district attorney. Tough-talking courtroom combatant. Most visible prosecutor in Simpson case. Previously noted for success against insanity defense of Robert Bardo, convicted of murdering actress Rebecca Schaefer.

Christopher Darden: Deputy district attorney and the only black member of the prosecution team. Made an impassioned plea against allowing the defense to brand Detective Mark Fuhrman, the man who found a bloody glove on Simpson's estate, as a racist cop. Repeatedly clashed with lead defense attorney Johnnie Cochran Jr. Delivered a powerful closing argument in which he urged jurors not to be blinded by racism.

Rockne Harmon: Deputy district attorney from Northern California, brought in largely to cross-examination defense witnesses who casted doubt on DNA testing.

Brian Kelberg: Deputy district attorney whose background in medical-malpractice cases prepared him for the eight-day examination of a key witness: Chief Medical Examiner Dr. Lakshmanan Sathyavagiswaran.

George "Woody" Clarke: A deputy district attorney for San Diego County, recruited to help handle DNA evidence.

Hank Goldberg: A deputy district attorney who handled legal arguments for the prosecution.

William Hodgman: Deputy District Attorney known for his successful prosecution of Charles Keating Jr. in the Lincoln savings-and-loan scandal. Largely avoided the courtroom after suffering stress-related illness early on.

Lisa Kahn: Deputy district attorney specializing in legal aspects of DNA testing. Mostly behind the scenes.

Gil Garcetti: District attorney of Los Angeles County. He joined the DA's office in 1968 and won election to top job in 1992. Highly visible after Simpson's arrest but never appeared in court during the trial.

----------- The defense -----------

Johnnie Cochran Jr.: Took over early as Simpson's lead attorney. One of Los Angeles' best-known trial lawyers, he numbers riot-beating victim Reginald Denny and pop superstar Michael Jackson among his many clients. Formerly a senior member of the district attorney's office.

Robert Shapiro: Behind-the-scenes wizard who assembled Simpson's "dream team" but subsequently gave way to Cochran. Known for successfully representing celebrity clients such as TV talk-show host Johnny Carson and auto executive John DeLorean.

F. Lee Bailey: Famed trial lawyer who worked on the unsuccessful defense of Patty Hearst. Represented Albert De Salvo, the Boston Strangler. Known for flamboyance.

Gerald Uelmen: Constitutional scholar, outgoing dean of Santa Clara University Law School and former assistant U.S. attorney. Specializes in appellate rulings.

Barry Scheck and Peter Neufeld: New York attorneys who handled DNA testimony.

Robert Blasier: Sacramento-based attorney who defended some of the first DNA cases.

Carl Douglas: An attorney in Cochran's law firm, Douglas has handled discovery issues for the defense. Grabbed headlines early on with his blistering cross-examination of Simpson friend Ron Shipp that focused in part on the witness's drinking problem.

Alan Dershowitz: Harvard Law School professor specializing in appeal issues. Former clients include those of Mike Tyson, Jim Bakker and Leona Helmsley. Won a reversal of Claus von Bulow's conviction for trying to murder his wife. Rarely present in court, he served mostly as an adviser.

Reuters