Playing The Victim Card

ANY HOLLYWOOD PRODUCER KNOWS the formula for a sequel: take the basic story and add a little twist to keep the folks happy. And so it is with the civil installment of the O. J. Simpson murder case. The wrongful-death case, which opened last week, had the same feel of the criminal trial. Simpson, more pounds on his frame and gray in his hair, alternatively grimaced and smiled like he had the last time. His family members sat behind him (""Great birthday present, huh?'' Simpson said of his mother's 75th). Nicole Brown's family listened carefully, and so did Ron Goldman's parents and sister, who sobbed at times. And as the new lawyers laid out their cases in opening statements, there were the now familiar stories of domestic abuse, DNA evidence and Kato Kaelin.

Yet the lawyers unveiled enough tantalizing goodies to ensure that O.J. II isn't going to be a total rehash. The lawyers representing the Brown and Goldman families made it clear they didn't feel bound by the prosecution's failed strategy. Their plan: offer new evidence and use Simpson's own words and actions--in his statement to police, in his suicide letter and in his Bronco chase--to nail him for the double murders.

But Simpson's lawyers added the biggest, and riskiest, wrinkle. If lawyer Robert Baker's opening argument is any guide, the defense is plotting an all-out attack on Nicole Brown Simpson's reputation--a blame-the-victim defense. Employing a mixture of code words and direct language, Baker managed to tell the jury that Nicole had had an abortion, partied with prostitutes and drug-users, had ""many boyfriends'' and had oral sex with a man while her children were sleeping upstairs. As Laurie Levenson, a dean of Loyola Law School, put it, ""It was as close to calling her a slut without using the word.''

Smearing the victim is a well-honed strategy by criminal defense lawyers. In rape cases they routinely try to probe the victim's sexual history, raising the notion that the victim deserved what she got. Even in murder cases, and especially when a husband is accused of killing his wife, ""it's the oldest trick in the book,'' says Susan Estrich, a law professor at the University of Southern California. ""What's unusual here is that Simpson says he didn't do it. Normally, the husband admits the murder but then claims she deserved it.'' In the bad old days, she added, this tactic was called the ""honor defense.''

Of course, smearing the dead mother of two children could easily raise the ire and disgust of jurors, one of the reasons even Simpson's criminal defense lawyers shied away from a frontal assault. But Baker seems willing to take that chance, because his attack on Nicole's character offers him several possible advantages.

For this trial Judge Hiroshi Fujisaki has barred the defense from introducing wild theories of who killed Nicole and Goldman, such as unnamed Colombian drug lords. That left jurors without another suspect to blame. But Baker may be able to get around that obstacle by conjuring up, through implication, a wild, hard-living lifestyle that might have put Nicole in the path of a killer. Nicole, he told the jury, invited ""drug users and prostitutes into her house.'' She was ""drinking excessively'' and friendly ""with people with severe problems.''

Painting Nicole as a drug-taking, sexually adventurous woman also allows the defense to deflect Simpson's alleged motive for the murder. The plaintiffs argued in their opening statement that a violence-prone Simpson killed Nicole shortly after she ended their relationship. But Baker asserted it was Simpson who ended the relationship, implying Nicole's wild parties and lifestyle upset Simpson and kept them apart. Indeed, he said, it was Nicole who pursued Simpson, turning to him--not her parents or sisters--for comfort when she became pregnant by a lover. Baker also suggested that Nicole's lifestyle helps explain Simpson's explosive behavior. Simpson was ""hot,'' said Baker, because he was angry at the ""prostitutes and drug users in his house.''

That's certainly a different spin to the image of Simpson as rampaging wife beater. Do victim-smear tactics influence juries? Maybe. As is the case with negative political ads, Estrich says, people may not like them, but they often work. The idea is that ""you take juror sympathy away from the victim so that if there is doubt in their minds, they feel more comfortable finding him not liable.'' And even if jurors find Simpson liable for the murders, they may be inclined to award less money to the family if they don't feel kindly toward the victim. The downside for the defense, Estrich adds, is that ""this is 1996, and a lot of women find this particular game very offensive.'' Seven women sit on the jury.

The defense wasn't alone in embarking on a risky strategy. The plaintiffs offered a time line of the murders different from the one prosecutors had last year. The state, citing the wailing dog, had contended that the murders took place around 10:15 p.m., which would presumably have given Simpson enough time to return home and clean up for a 11 p.m. ride to the airport. But plaintiff lawyer Daniel Petrocelli said the murders took place later, between 10:35 and 10:40 p.m. He's apparently decided to place his bet on Robert Heidstra, a neighbor, who testified on Friday that he'd heard a dog barking and a male voice shout ""hey, hey, hey'' at around that time. Heidstra also helps because he said he'd seen a white utility vehicle, similar to the Ford Bronco, speeding away from Nicole's condominium. But by moving back the time of the murders, the plaintiffs allow Simpson's lawyers to ridicule the theory that he could have returned in time for his ride to the airport. This sequel, like any good one, must have a few twists on themes that once seemed as comfortable as a pair of Bruno Magli shoes.