Two For The Show

FOR FOUR MONTHS THE JURORS sat through a parade of witnesses who covered the same ground that had been beaten into the nation's psyche during the criminal trial. The mountains of blood evidence, the gruesome crime-scene pictures, the tales of spouse abuse. Yet pity the O. J. Simpson civil-trial jurors who zoned out, thinking nothing had changed. By the time closing arguments in the wrongful-death suit were presented last week, they had heard a case that had changed in tone and fact from the criminal case--from $160 designer shoes to the dramatic testimony of Simpson himself. And as they began deliberations this week the biggest difference--and question--was the jury itself. Would this mostly white jury view the evidence differently from the mostly black criminal jury? And how would the nation, black, white and otherwise, interpret its conclusion?

The most remarkable thing about last week's closing arguments was the absence of a racial theme. At the criminal trial, the nation was riveted by Johnnie Cochran's racially heated invocation of Martin Luther King Jr. and the Bible. But that pitch wouldn't necessarily play for this Santa Monica jury of eight whites, one black, one Asian-black and two Hispanics. So Simpson's main defense lawyer, Robert Baker, tried other tacks, portraying plaintiff Fred Goldman as a money-grubber. He suggested that Goldman was ""selling'' his son, Ron, for $450,000--the size of his book contract. ""This isn't a fight for justice,'' Baker sneered. ""It's a fight for money.'' The assault was a calculated risk, possibly a pre-emptive strike at any damage award the jury might eventually consider for Goldman.

The plaintiffs launched their own frontal attack on Simpson, whose five days of testimony defined the trial--and may well determine its outcome. Just moments into his closing argument, lead plaintiff lawyer Daniel Petrocelli turned his back on the jury and faced Simpson. Pointing his finger at the defendant, Petrocelli nearly shouted across the hush of the courtroom: ""There is a killer in this courtroom.'' He later brought tears to family members as he recalled Goldman's relationship with his father, playing a video from a party and borrowing from a 16th-century poet the line that Fred Goldman's ""lovely living boy is no more.''

It was an emotional closing to a trial that, for better or worse, lacked the circus atmosphere of the criminal trial--both inside and outside the courtroom. While the criminal case was long and rambling, this one clipped along tightly focused--without TV cameras. On paper, at least, the plaintiffs had several advantages going into the trial. One was the mostly white jury, believed to be less sympathetic to defense claims of a police frame-up. The other was the nature of a civil trial: only nine of 12 jurors are required for a finding of liability, and the burden of proof is only a ""preponderance of evidence''--not the ""beyond reasonable doubt'' threshold required in criminal trials. And rather than finding guilt or not, the jury was asked whether Simpson is liable for the wrongful death of Goldman and whether he committed battery with malice against Nicole and Goldman (a legal technicality). If the jury found against Simpson it would set compensatory damages for Ron's parents, and then deliberate a second time to arrive at the punitive damages, which are meant to punish, for both families. He cannot go to jail (chart).

Of course, some things can't change. The heart of the case remained the physical evidence against Simpson--the mountain of evidence, in the now familiar coinage of former prosecutor Marcia Clark. Petrocelli picked up on the theme. He methodically went through evidence showing the bloody gloves; Simpson's blood at the crime scene and the victims' blood in his Ford Bronco and splattered on socks on the floor of his home--all, he said, linking Simpson to the murders. ""By their blood, they forced him to step, step, step, to leave shoe prints just like fingerprints,'' Petrocelli said.

The defense lawyers echoed the same notes of police corruption and bungling that played so well in the criminal trial. ""Our defense on the case of physical evidence is very simple,'' said Robert Blasier, the only returning Dream Team lawyer. ""You can't trust it. It's been tampered with.'' Once again he retailed images of sloppy police technicians and mysterious blood samples. ""A criminal case is not like fine wine,'' said Blasier. ""It doesn't get better over time.''

But in a way it did. The plaintiffs found an ally on the bench. Judge Hiroshi Fujisaki issued a series of rulings that limited the defense from fully pushing its theories of a racist police frame-up. Mark Fuhrman's racist murmurings weren't mentioned. The LAPD wasn't lampooned as much. Fujisaki allowed the plaintiffs to introduce new evidence against Simpson, such as testimony from Nicole's diaries. The plaintiffs also got lucky. An old photograph of Simpson apparently wearing Bruno Magli shoes, like the ones worn by the killer, was found by a photographer who gave it to the plaintiffs--after selling it to the National Enquirer. Given the new evidence, the jury would be presented with questions of a different vintage than the last one. A look at some:

The image of Simpson wearing the designer shoes at a 1993 Buffalo Bills football game is to the civil trial what the gloves were to the criminal trial--perhaps the single most important piece of evidence. ""If those photos are real, O. J. Simpson is the killer,'' Petrocelli asserted in his closing statement. Not only do they appear to link Simpson to the crime scene, but they may dent his credibility; he swore at his deposition he had never owned the ""ugly-ass shoes,'' still another phrase likely to enter trial lore.

The defense could only attack the photograph as a phony. ""It was store-bought evidence,'' contended defense lawyer Dan Leonard. Jurors may have a tough time buying that. The defense's alleged photo expert, technician Robert Groden, seemed to lose credibility when plaintiffs described him as a conspiracy buff. But worse, the plaintiffs later came up with more than 30 additional pictures of Simpson wearing the same shoes--adding to their authenticity.

This may be the plaintiffs' weakest link. Petrocelli painted a picture of the troubled and abusive relationship between Simpson and Nicole, suggesting he killed her in a rage. Fujisaki helped. He allowed the jury to hear entries from Nicole's diaries, in which she wrote how Simpson had vowed to get her. Judge Lance Ito had barred the diary as hearsay evidence.

But Baker told the jury that, far from being jealous, Simpson had broken off from Nicole. He underlined that Simpson never hit Nicole again after the 1989 abuse incident. Said Baker, ""It's a stretch . . . a part of the effort by the plaintiffs to demonize and to manufacture a motive for these killings.''

Impossible, said Baker, hitting another vulnerable part of the plaintiffs' case. By his time line, the murders occurred between 10:45 p.m. and 10:50 p.m., and Simpson was home at 10:53. ""I'm no poet,'' said Baker, ""but obviously, if you don't have the time, you most certainly can't commit the crime.'' Petrocelli said the slayings occurred between 10:30 p.m. and 10:40 p.m. He said that would leave O.J. enough time to commit the two murders, which, according to an expert witness, lasted one minute and 15 seconds, and then return home.

Prosecutors wouldn't touch the dramatic scene, fearing it might create sympathy for Simpson. But jurors this time will get to mull over evidence, such as Simpson's disguise and passport, that was found later in the Bronco. Plaintiffs argued that it showed signs of flight. Petrocelli also turned up a tape of the freeway conversation between Simpson and now retired LAPD detective Tom Lange. At one point Simpson, carrying a gun and apparently considering suicide, utters what seems an incriminating statement: ""I'm the only one that deserves [to get hurt].''

Perhaps the biggest question for the jurors was whether Simpson is believable. He remained unflappable on the stand, his charm working overtime. But Simpson's string of denials, many contradicted by others, were easy pickings for Petrocelli. The lawyer went through a litany of them, from his never hitting Nicole through owning the designer shoes. ""What kind of man says he never lied about anything and then lies about everything?'' Petrocelli asked. ""A guilty man. A man of no remorse.''

The jurors will have their say, and then the court of public opinion will weigh in with its own view. Having lived through one trial, many Americans are certain they know the players involved and are unshakably certain of what the proper result ought to be in this one, which they couldn't watch. Such are the contradictions that keep this case alive in the national imagination. Many whites see it as a chance to right an injustice. Many blacks think it's time to leave the man alone. So no matter what the verdict, somebody isn't going to be happy--again.

Because it's a civil trial, the language of the verdict itself will be different. There is no question of guilt; instead, is Simpson liable for the deaths of Ron Goldman and Nicole Brown Simpson? If he is, what are the damages? A look at the choices facing the jurors:

Did Simpson cause the ""wrongful death'' of Ron Goldman? If jurors answer ""yes,'' they can pick a compensatory lump-sum award to go to Fred Goldman and Sharon Rufo, his biological parents. Lawyers didn't ask for a particular amount, and there's no ceiling.

The estates of Nicole Brown Simpson and Goldman filed a ""survivorship'' claim against Simpson: did Simpson commit battery with malice or oppression--not wrongful death--against Nicole? A ""yes'' on malice means the estates of Nicole and Ron can collect punitive damages.

If Simpson is found liable, jurors would then reconvene to hear evidence from both sides about Simpson's net worth. He has already been deposed regarding his assets, which the court would unseal; O.J. would have to show us his money. Punitive damages are meant to punish, and the jury is free to set almost any amount, provided it bears some relation to the harm. Case law suggests damages shouldn't exceed 30 percent of net assets, but in a murder case that guideline may go out the window.

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