NEWS ANALYSIS : Experts Say Testimony Isn’t Helping Simpson

O.J. Simpson’s performance in his as-yet incomplete deposition has created new problems for his own lawyers and new opportunities for the attorneys representing the families and estates of Nicole Brown Simpson and Ronald Goldman in their wrongful death suits against the former football star, leading legal analysts said Saturday.

The Times’ publication Saturday of extended excerpts from Simpson’s five-day interrogation by Daniel M. Petrocelli, lead attorney for Goldman’s father, Fred, gave the analysts and others their first look behind the closed doors that previously had shielded from scrutiny Simpson’s first sworn account of the events surrounding the murders of his ex-wife and her friend.

Though they practice or teach law across the bar’s spectrum, the experts--many of whom have followed the case from the outset--all focused on two themes that seemed to dominate the first testimony Simpson has given while under oath: The former NFL star’s absolute denial that he ever battered his then-wife and his contradiction of limousine driver Allan Park, who was regarded as one of the most appealing and credible witnesses to testify against Simpson in the double-murder trial which ended in his acquittal.

Los Angeles County Dist. Atty. Gil Garcetti left no doubt about what he felt the impact of putting Simpson under oath has been so far. “The flower of truth unfolds when someone is questioned by a skilled lawyer,� he said. “When all is said and done, the whole truth will have blossomed.�

A pair of leading civil lawyers said the fact that these two lines of inquiry--both apparently damaging to Simpson--immediately emerged into such high relief was characteristic of the pretrial deposition process upon which the civil lawsuit relies.

“A deposition is like pinning a moth to a wall,� said Santa Monica attorney Brian C. Lysaght. “The wings may continue to flail, but the bug has nowhere to go. By definition, then, a deposition can never help the person being questioned. It can only give ammunition to an adversary. The only question is, how much?�

Another prominent trial lawyer, who asked not to be identified, said he thought it was no accident that what emerges from the 1,534-page transcript of the interrogation so far “is a wealth of information that casts doubt on the only thing that O.J. Simpson has going for him, which is his charisma, a quality most people translate into credibility. This deposition is meaningless, other than as a vehicle for letting O.J. Simpson hang himself. But I think he gave Fred Goldman’s attorneys enough rope to hang him in a civil courtroom, where a verdict can be reached on a preponderance of the evidence by as few as nine people.�

Simpson, of course, was acquitted by 12 jurors on charges that he murdered his ex-wife and Goldman. He is now at what appears to be the midpoint in his pretrial deposition for the pending civil suits. They are scheduled for trial in Santa Monica Superior Court beginning April 2.

Painting Self as Victim

But, even at this stage, a number of analysts question what some call the defense’s high-risk strategy of allowing Simpson to portray himself as the victim of an erratic and physically abusive wife, who according to him also abused drugs and alcohol.

“Trashing the victim is always a bad strategy,� said Loyola Law School professor Laurie Levenson. “People will be outraged that he’s not taking responsibility for his actions, and that he’s making accusations about Nicole, who had her throat slashed. The witnesses against him may start coming out of the woodwork.�

Publication of the deposition’s content, Levenson said, has changed the tenor of the case. “It’s no longer O.J. versus the police, who are everyone’s favorite bad guy. Now it’s O.J. versus the victims.�

Veteran civil rights attorney John Burris agreed that “it is a risky proposition to tarnish the dead unless you have independent corroborative evidence indicating Nicole Brown was, as O.J. describes her in this deposition, a hellcat.

“It is an all-or-nothing gamble to take a holier-than-thou perspective that it was her, not me, and I’ve had to take the brunt of her aggressiveness,� Burris said.

Former Los Angeles County Bar Assn. President Gerald L. Chaleff crystallized the thinking of many of his colleagues concerning what might occur if such a strategy goes awry. “As a criminal defense lawyer, the question uppermost in my mind is how potential jurors will react to Simpson’s self-centered and self-serving version of his relationship with his wife,� Chaleff said. “His adamant denial that he never used physical force and his assignment of blame to his wife for everything that happened, from their arguments to her bruises, even to the point of alleging self-abuse, seems to fly in the face of common sense. It is unlikely that jurors will accept his version of these events. If they think he is lying about this, the question is, will they believe him about anything else?

“That is a very difficult position to be in, especially when his account of his whereabouts at the time the murders were committed rests entirely on his word,� Chaleff pointed out.

Prenuptial Agreement

Joan Patsy Ostroy, an experienced Los Angeles family lawyer, pointed to what she saw as a particular problem with Simpson’s allegation that his former wife colluded with her attorneys to concoct incidents of domestic abuse in hopes of abrogating a prenuptial agreement. “Even if she made up incidents of battery,� Ostroy said, “legally it wouldn’t void a prenuptial agreement unless the prenuptial agreement was entered into under duress.

“If she was saying I’m going to smear your name all over the papers as a violent abusive man, then it makes sense. But if she is making this up for legal purposes, it doesn’t work,� Ostroy said. “First of all, we have no-fault divorce in California and domestic violence bears on custody, not on property division. You can move to set aside a prenuptial agreement on grounds of unconscionability, failure to disclose, fraud or duress, but not on the grounds that later in the relationship there was domestic violence.�

Similarly, Ostroy said she was puzzled by Simpson’s account of looking through a window and seeing his former wife and her then-boyfriend engaged in a sex act on the living room couch. “The question is: What was he doing peeping in her window? It seems to contradict his flat denial that he ever stalked or followed her.�

UCLA law professor Peter Arenella noted that “unlike the criminal trial where the defense could raise reasonable doubts about police misconduct and the reliability of the forensic evidence, the civil trial could easily turn on the jury’s evaluation of Simpson’s credibility.�

In that context, Arenella said, the former football star’s “denial that Paula Barbieri had ended her relationship with him that evening, combined with his phone call to another woman that same evening saying he was free of all attachments, will come back to haunt him. If he is telling the truth that he had not heard a message from Barbieri telling him their relationship was over, then his admitted phone call to that other woman shows a callousness toward women that might undermine the jury’s willingness to believe his description of the abuse incidents with Nicole.�

Equally important, the experts agreed, was Simpson’s testimony that appears to set him on a course for a courtroom confrontation with Park. USC law professor Erwin Chemerinsky noted that, as in his double-murder trial, the key question in the wrongful death suit filed against Simpson is “where he was between 9:40 p.m. and 10:55 p.m.�

Park is the only witness in a position to cast firsthand doubt on Simpson’s own account of his movements during that critical time period. And, to Chemerinsky, as to many other analysts, the limousine driver “seems a very credible witness. He has no motive to lie. His story at the preliminary hearing and at the trial were completely consistent. There’s no reason for him to invent a story in which Simpson told him he was asleep.�

Assuming Park testifies in the civil trial, Chemerinsky said, the jury will be placed in the position of having to decide whether “Park is lying or Simpson is lying. If they decide Simpson is lying, that undermines his explanation for where he was during the critical time period and also his credibility as to everything else.�

Burris noted that “the cornerstone of the prosecution’s case on the timeline in the criminal trial was Park’s testimony. O. J. Simpson has decided he will match his credibility with Park’s. But if there are independent records of Park calling his office [expressing concern that he was at Simpson’s house and couldn’t reach Simpson on the phone], then there is corroboration of his story. And he had no reason to lie.� In fact, records introduced during the criminal trial show Park did make such calls.

Surprised by Attitude

Other analysts were struck by what they saw as Simpson’s independence and self-possession during the course of the interview. “One can understand why Simpson’s attorneys pleaded with him not to take the stand during his murder trial,� Arenella said. “If he cannot follow his own lawyer’s advice during a civil deposition, imagine the damage he might have done under hostile cross-examination at trial.�

Defense attorney Gigi Gordon had a more pointed reaction. “Nothing that Simpson said really shocks me,� she said. “It’s clear he’s been in denial about his domestic abuse. But some of these things are completely self-serving and reflect a total incomprehension of how they’re likely to be perceived, especially with regard to domestic violence. If he were my client, he’d be getting a good kick under the table.�

Still other legal experts read the transcripts of Simpson’s deposition as a kind of tragic text. “He’s being imprisoned by his own lies,� said veteran defense attorney Harland W. Braun. “He clearly can’t talk to anyone honestly and tell them what happened. That’s why you see this tension between him and his lawyer. The old charming O.J. is slowly being killed. It’s a weird prison he’s in, a prison of his own mind.�

Jill Lansing, who defended Lyle Menendez in his first murder trial, was impressed--though unsurprised--by what she termed the “arrogance� of so many of Simpson’s responses. “This is, after all, the man who went down to talk to the police without his lawyer,� she said. “That makes him either an innocent man or one in the grip of that terrible, terrible malaise the Greeks called hubris.�