Routine Hearing Expected to Be Anything but Routine

All that stands between O.J. Simpson and a murder trial is a routine legal proceeding called a preliminary hearing whose purpose is to eliminate “utterly groundless” cases.

Used in California since 1880, most “prelims” are held with no audience and last 30 minutes or less. Some can be completed in 10 minutes with only one witness.

Not this one.

Lawyers are estimating that Simpson’s preliminary hearing will last a week, maybe two, and it will be covered gavel to gavel on nationwide television.

But although the hearing is expected to be lively, even hard fought, many legal experts believe Simpson probably will be held for trial. That’s because the basic legal standard--whether there is probable cause to believe that a crime was committed and that the defendant committed the crime--is so easy to meet that charges are rarely thrown out at a preliminary hearing.

That is a dramatically lower standard than the one for convicting a defendant at trial--guilt beyond a reasonable doubt.

Santa Monica criminal defense lawyer Charles L. Lindner and others noted that only perhaps 5% of defendants have their cases dismissed at the preliminary hearing level.

All prosecutors have to do is “throw the ball into the ballpark; they don’t have to throw a strike,” Lindner said.

For defense attorneys, the tactics at a preliminary hearing are not as clear. Obviously, the best result from their point of view would be dismissal of all the charges. Failing that, defense lawyers try to find out as much as possible about the evidence against their client and to assess the strength of witnesses for the prosecution.

However, defense attorneys must be careful not to overplay their hands. As a consequence, it is often difficult to assess how the defense performs during the hearing, attorneys said.

“It is impossible to judge what a defense lawyer is doing at a prelim,” said Los Angeles criminal lawyer Harland W. Braun. By not asking certain questions, for instance, “a lawyer could look like a nitwit at a prelim and in reality be brilliant” for not revealing his strategy, Braun said.

Sometimes, defense lawyers go on the offensive, putting on an “affirmative defense.” They call their own forensic experts to attempt to cast doubt on the state’s findings. Simpson’s lead defense lawyer, Robert L. Shapiro, has indicated he may pursue that option.

Regardless of whether he takes that approach, Shapiro--joined by colleagues Gerald F. Uelmen and Sara L. Caplan--issued a strong signal Wednesday that he will aggressively challenge the prosecution’s case: He filed a motion seeking to keep out of evidence everything taken by police during a search of Simpson’s house in the hours immediately after the murders.

No matter how long and hard such issues are fought in the Simpson preliminary hearing, it is unlikely ever to overtake the 18-month record set in the McMartin Pre-School case.

The multimillion-dollar proceeding spawned efforts to change the preliminary hearing process, which culminated in 1990 when voters passed Proposition 115. The ballot measure streamlined the hearings by enabling police officers to give hearsay testimony; for example, a detective might describe a witness’s account of a burglary suspect running out of a house with a television set.

That cannot be done at trial. The witness would have to testify directly.

Although the streamlining allows for such shortcuts during prelims, Deputy Dist. Attys. Marcia Clark and William Hodgman are expected to go well beyond the minimum requirements because of the extraordinary nature of the Simpson case.

It is anticipated that they will call to the witness stand police officers, forensic experts and the person who discovered the bodies of Simpson’s ex-wife, Nicole Brown Simpson, and her friend Ronald Lyle Goldman.

“In a case of this notoriety, I would expect the prosecution to put on a solid outline of the case and do their best to present a solid outline of the inferences that the accused did it,” said Curt Livesay, a San Pedro attorney who was one of the top officials in the Los Angeles County district attorney’s office for many years.

Livesay also said he expects “some searching cross-examination” of prosecution witnesses by Simpson’s lawyers.

The defense team’s motion challenging the prosecution’s right to introduce the fruits of the search of Simpson’s house shortly after the killings may afford the defense an opportunity to question police about their actions in the first 24 hours after the bloody bodies were found outside Nicole Simpson’s Brentwood condominium.

Defense lawyers, however, noted that it has become increasingly difficult to prevail on such motions in recent years. “The law used to (be) better for defendants than it is now,” said veteran criminal defense lawyer Gerald Chaleff, who is president of the Los Angeles County Bar Assn.

Municipal Judge Kathleen Kennedy-Powell could consider the motion at the start of today’s preliminary hearing or she could take it up when prosecutors first seek to introduce any evidence recovered during the contested search.

The overwhelming volume of media coverage may also be a factor in prosecution and defense strategies during the hearing.

“Public opinion is an issue,” Los Angeles criminal lawyer Marcia Morrisey said. “You choose your jury from the public, so you have to be mindful of what the publicity is. You may make decisions about what to do because of that.”

Simpson’s defense team has at least one advantage that their counterparts in other preliminary hearings usually do not have. In most instances, the defense goes into a preliminary hearing knowing little about the prosecution’s case, defense lawyers noted.

In the Simpson case, though, Shapiro and his colleagues have had the benefit of reviewing the transcripts of hearings before the grand jury that was taking evidence before the presiding judge of the Los Angeles County Superior Court disbanded the panel, ruling that it may have been tainted by publicity about the matter.

Even though the odds are against it, charges are occasionally dismissed after a preliminary hearing.

Sometimes it happens when a prosecution witness simply fails to show up, said Deputy Public Defender Jeffrey R. Graves, who does hundreds of preliminary hearings a year.

Other times, the key witness is unable to identify the defendant.

In still other instances, a judge may choose to whittle a case down. In fact, Kennedy-Powell did that in a case just two months ago, said Deputy Public Defender Thomas B. Ahearn, who is representing a man accused of kidnaping for robbery and carjacking.

Powell ruled that there was insufficient evidence that Ahearn’s client intended to steal the car and she dismissed the carjacking count, Ahearn said. “It was a courageous decision,” he said. “She’s not unduly pro-prosecution or pro-defense. She’ll call (it) like she sees it.”