Judge Says Simpson Must Testify Friday
SANTA MONICA, Nov. 21 (Evening) -- After an abbreviated day in court, plaintiffs attorneys hunkered down to prepare for their most important witness -- O.J. Simpson. Although Simpson's lawyers made a last-minute attempt this morning to delay his testimony, the ex-football star will take the stand Friday morning.
Before the jury came into the courtroom, lead defense attorney Robert Baker asked Judge Hiroshi Fujisaki to reschedule Simpson's testimony until Monday because of strain from his custody trial. "Let Mr. Simpson get his head on straight before these lawyers start attacking him," Baker asked the judge. But Fujisaki denied the request.
The crowds have yet to gather outside the courthouse -- a steady rain has kept onlookers away. But there is certainly a sense of anticipation here, as hordes of reporters arrive and begin to set up for tomorrow. Television crews are building platforms, installing lights, and constructing sets for their anchors. Inside the courtroom, guards this morning were stricter than usual, forbidding reporters and spectators from milling around in the back of the room.
While Simpson's testimony is drawing world-wide attention, what he says will ultimately be weighed by only 12 people. And there is little doubt that Simpson's words will be the focal point of the entire trial.
"This is the single most important piece of evidence in the trial," says Paul Rothstein, who teaches civil and criminal litigation at Georgetown University's law school in Washington, D.C. "The jury will make up its mind on his testimony,"
Although Daniel Petrocelli, who represents Fredric Goldman, will take the lead in examining Simpson, the Brown's lawyer, John Kelly, and Sharon Rufo's lawyer, Michael Brewer, will conduct some of the questioning. Because Simpson was acquitted in his criminal case, he cannot invoke his Fifth Amendment right not to answer questions.
Simpson's testimony presents a number of strategic considerations for the plaintiffs attorneys, who are calling him as their witness even though he is an adverse party to their case. In reality, the plaintiffs examination will be a cross-examination. Simpson will automatically be declared a hostile witness, which will allow the plaintiffs to ask him leading questions. Leading questions give the effect of an attorney testifying for the witness, and they usually require a yes-or-no answer. For example, the plaintiffs could say: "You were in a rage that night, Mr. Simpson, isn't that correct?"
Legal analysts say the plaintiffs must carefully determine the scope of their questioning. Limiting the scope will hinder defense lawyers because they can only cross-examine Simpson on what he has been asked by the plaintiffs. Simpson was deposed earlier this year for ten days. The depositions allow the plaintiffs to impeach Simpson every time he strays from his story. They also give the plaintiffs a map for their examination at trial. The plaintiffs presumably now know which questions upset Simpson and which questions he is adept at answering. The plaintiffs also must avoid asking Simpson broad questions, thus giving him an opportunity to make long speeches and befriend the jury. Simpson -- a sports hero, celebrity and corporate spokesman -- has a knack for being charming.
"I would try to combat that charisma by trying to ask some things that he's going to get agitated about and lose his cool," says Rothstein.
Much of the plaintiffs examination is expected to focus on questions that go to Simpson's credibility. His alibi has mostly stayed consistent. But the plaintiffs have presented a number of witnesses who contradict Simpson's story. For example, Simpson said in his deposition that on the night of the murders he walked the dog, chipped golf balls, and watched television. But Brian " Kato" Kaelin told jurors that Simpson never walked the dog. Kaelin also testified that he normally could see a reflection in the window from Simpson's television, but he did not see one the night of the murders. Another inconsistency: Limousine driver Allan Park said on the stand that Simpson claimed to have overslept for the trip to the airport. Simpson denies that.
Simpson will also be interrogated about his actions the entire day of the murder. The time period between about 9:30 and 11:00 p.m. -- when Simpson claims to have been alone -- will likely be the most scrutinized.
Expect very detailed questions on the cuts on Simpson hand. Before he left for the airport, Simpson claims he saw some blood on his finger. He told police that his hands were often bleeding, and he might have reopened a cut by handling his cellular phone. The morning after the murders, in his Chicago hotel room, Simpson says he cut his finger again after police called to tell him his wife had been killed and he broke a glass in the bathroom.
The plaintiffs have already laid the groundwork to question Simpson about domestic violence -- but they are likely to proceed cautiously. In opening statements, Petrocelli described Simpson's intense jealousy and need to control his wife. The plaintiffs also introduced photos of a bruised Nicole Brown Simpson and presented testimony about three separate occasions when police were called to settle disputes between the couple. But this line of questioning could give Simpson the opportunity, on cross-examination, to cast blame on Nicole Brown Simpson's alleged drug use and sexual promiscuity. Simpson denies ever beating his former wife, claiming that she beat him.
The plaintiffs' attorneys also have to decide how to approach the witness. Do they come out swinging, or carefully and methodically elicit his testimony? Experts say the plaintiffs need to work slowly, and feel Simpson out on the stand a little before hitting him hard.
"My first instinct would be to start to lull him, because I don't think he is the sharpest tool in the shed," says Barbara Allen Babcock, a former assistant attorney general in the Justice Department's civil division. "Ask him a lot of questions that don't seem to be going anywhere . . . little details, nothing really emotional, and nothing chronological for the first two or three hours."
In the trial this morning, the only testimony came from FBI footwear expert William Bodziak, who was cross-examined by Phil Baker -- lead defense attorney Robert Baker's son. Young Baker used his questioning of Bodziak to make several points: that the bloody shoe prints show that the attack took longer than the plaintiffs say because it took time for the blood to gather into a pool; that members of the Los Angeles police and the FBI went to all 40 stores in the United States that sell Bruno Magli shoes, but never found a receipt that showed Simpson purchased a pair; and that Bodziak was unable to identify more than 20 footprints at the crime scene as Bruno Maglis -- suggesting that there could have been two people at the murders.
-Robert Schmidt
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