Playing to the Crowd

By Richard Lacayo

The court of public opinion may be one of America's most maligned institutions. But in every high-profile case, it's still the place where everybody goes to plead. So with the nation largely -- and, for the most part, miserably -- poised between affection for O.J. Simpson and revulsion at the bloody slicing of Nicole Simpson and Ron Goldman, a public game is in play between O.J.'s accusers and his defenders. The aim is to persuade people that they do not know what they think they know. What they think they know is that O.J. is the world's nicest guy, a smile button on winged feet, but that the murder case against him is all but overwhelming. What they learned last week is that Simpson may not be quite the man he seemed, even as it also emerged that the evidence against him may not be all it was reported to be.

Unsettling as some of that may be, none of it can compare with the lesson prosecutors have had to accept -- that it's possible to play to the court of public opinion so strenuously that you lose the courts of law. On Friday Los Angeles County District Attorney Gil Garcetti's game plan was thrown into the air when a judge dissolved a 23-member grand jury that was considering whether there was enough evidence to try Simpson on murder charges. Superior Court Judge Cecil J. Mills, in response to an unusual request from Simpson's attorney, Robert Shapiro, concluded that some jurors may have been tainted by exposure to the deluge of publicity.

The decision was a setback for Garcetti, who had every reason to hope the panel would hand down an indictment before a preliminary hearing on June 30 that he wanted to head off. At that hearing, prosecutors will be compelled to present the evidence and testimony they hope to use at trial -- an invaluable preview of what Simpson will be up against, and an opportunity for Shapiro to have some of it disallowed. If an indictment had come down first, the hearing would have been canceled and the case gone directly to trial with the prosecution's evidence still sealed.

It's not just Simpson's fame that has made his one of the most relentlessly reported cases ever. Hoping to overcome O.J.'s advantage in public sympathy -- unusual for an accused killer -- city officials and police have played to the media every step of the way. The flood of sometimes inaccurate leaks from police about bloody gloves and a ski mask was followed by a heavy round of appearances on public affairs shows by Garcetti. It's true that he objected to the decision of the Los Angeles city attorney to satisfy a media request for release of the taped call to 911 that Nicole Simpson made after an enraged O.J. broke into her house last year. Even so, Garcetti can't have been too sorry at the impression it made when the tape was played over and over again in public. "The prosecution is in the unusual position of having to try to shape public opinion its way," says Charles Weisselberg, a criminal-law expert at the University of Southern California.

Not that Simpson's attorney has been any less adept at coaxing people to remember their affection for O.J. In a Father's Day appearance he described his client's grief at not seeing his children. At the arraignment last week, where Simpson pleaded not guilty to the charge of murder, Shapiro rested a hand on his client's shoulder, a gesture of comfort that brought to mind the arm-around-the-shoulder tactic used to good effect last year by the defense attorney for Erik Menendez.

At an evidentiary hearing the next day, Shapiro succeeded in bringing forward the question of whether the press has speculated about Simpson too recklessly. When he asked the prosecution to produce the bloody ski mask that was reportedly found by police at Simpson's home, chief prosecutor Marcia Clark told the court there was no such item on the evidence list. The question hit a sore spot. If there was no ski mask, what about the bloody glove reportedly found at Simpson's house that matched one at the murder scene? Or the bloodstained clothes supposedly found in his washing machine? For now, police aren't saying, though the fact that Shapiro did not request those as well may mean he would rather not know if they exist.

But even as that news was sinking in, someone leaked a description of the L.A. coroner's autopsy report on the bodies of Simpson and Goldman. It was a precis of butchery, in which both suffered multiple stab wounds and slashed throats. Then came new evidence of Simpson's abusive relationship with Nicole.

Using the California Public Records Act, a Los Angeles TV station obtained the tape of a 911 call that Nicole Simpson made to police on Oct. 25 last year. On that evening Simpson broke down the door of her house in a rage triggered earlier when he spotted the picture of an old boyfriend in her photo album. In a shaking voice, Nicole can be heard on the tape identifying the intruder for the operator. "He's O.J. Simpson, I think you know his record. Could you just get someone over here?!" The genial image of O.J. is hard to reconcile with the ranting of the man heard a little while later, shouting and swearing. Soon after, the transcript of another call was released, this one from 1985, when police were called after an argument between O.J. and Nicole, during which he smashed the windshield of a car with a baseball bat. Though he admitted responsibility, Simpson insisted that it was a private matter. No charges were filed.

While a weapon has yet to be found, prosecutors insist that it is not essential. Long before the case goes to trial, they will have the results of DNA testing on blood found at the murder scene. Those could provide all but conclusive proof of whether Simpson was at the scene. In that event, O.J. might resort to fallback defenses: insanity or an action in the heat of passion.

Shapiro has brought on as advisers the premium-brand attorneys Alan Dershowitz and F. Lee Bailey. But because Simpson spoke with detectives for more than three hours on June 13, shortly after the victims were discovered, he may find it difficult to change his story. Prosecutors can argue that any departure from the version of events he gave in his police interview -- when he presumably repeated his insistence that he was not involved in the killings at all -- shows that, in general, he can't be believed. Dilemmas like that are one reason for a new bumper sticker on the L.A. freeways: "Pray for O.J." If he's innocent, he'll need the help. If he's guilty, he'll need it even more.

With reporting by Jordan Bonfante and Patrick E. Cole/Los Angeles