Jury Heard Much Different Case in Civil Trial

They didn’t get Mark Fuhrman’s voice spitting out racial epithets on tape. Or Denise Brown sobbing on the witness stand. They didn’t hear testimony about O.J. Simpson’s dark dreams. Or learn that he suffers from hobbling arthritis.

Instead, they learned that an FBI agent, supposedly objective, put a framed picture of Fred and Kim Goldman on his desk. And that retired detectives signed book deals. They heard--though they were told to forget it--that O.J. Simpson flunked a lie detector test. And that Nicole Simpson called a shelter in terror a few days before her murder.

Indeed, the jurors who found O.J. Simpson liable for the deaths of Nicole Brown Simpson and Ronald Lyle Goldman in civil court sat through a profoundly different case than the one presented to the jurors who acquitted Simpson on criminal murder charges in October 1995.

And the 12 panelists in the civil case unanimously came to the opposite conclusion to the one reached by their counterparts in the criminal trial: On Tuesday, they concluded that Simpson owed Goldman’s parents $8.5 million in compensatory damages for the same slayings the other jury acquitted him of committing.

The standard for a judgment in a civil trial is different--liability is determined by a preponderance of the evidence, not guilt beyond a reasonable doubt. But a more supportive judge and shrewd tactical decisions also helped the plaintiffs, especially their strategy of limiting their witness’ testimony to throw the defense off stride and keep the case moving. Hindsight, of course, also was invaluable; this time, no one was about to ask Simpson to try on the bloody gloves.

“The criminal trial was a great rehearsal,” said analyst Larry Feldman, a top Los Angeles litigator. “They knew what was going to work and what wasn’t, what would play and what wouldn’t.”

Thus the plaintiffs could counter the airhead image that Brian “Kato” Kaelin developed in the criminal trial by making sure he answered questions succinctly, without rambling. They could scratch Denise Brown off their witness list, since her tearful testimony was dismissed as phony by many viewers of the criminal trial. And they could counter the defense’s DNA expert with their own scientist, who declared he saw absolutely no signs of contamination in the blood evidence.

The plaintiffs also benefited from the structure of civil cases. By questioning witnesses under oath in pretrial depositions, the plaintiffs locked many people into stories early on, before the significance of every detail became clear. That, in turn, helped them to pit even some of Simpson’s best friends against him.

Al Cowlings, Leroy “Skip” Taft and Robert Kardashian all gave deposition testimony that the plaintiffs ended up using against Simpson. Taft, for example, testified at his deposition that he noticed at least two cuts on Simpson’s left hand the day after the slayings. But Simpson told jurors he had just one cut. Similarly, Cowlings said in his deposition that Simpson was worried the police were looking for him after a 1989 fight with Nicole. Simpson denied knowing that he was wanted on suspicion of spousal battery.

In the criminal trial, the prosecution did not have the luxury of depositions. And the case moved to court so quickly that investigators were still developing evidence and performing DNA tests even as the trial progressed.

“This case was tried the way it should have been,” said analyst Steven G. Madison, a Los Angeles attorney. “There was a much more thorough analysis and investigation of the underlying facts and a sense that the plaintiffs were much more prepared [than prosecutors had been] and understood the entire case through and through.”

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The single most dramatic difference of the civil trial was Simpson’s testimony. For four full days, he sat on the witness stand and answered questions under oath. He looked directly at jurors and told them that he was innocent. But he also walked through the 17-year history of his relationship with Nicole and every last detail of his alibi.

Lawyers for the plaintiffs hammered on inconsistencies in Simpson’s various accounts; they mocked his contention that he had never beaten Nicole Simpson; they forced him to repeat over and over that he could offer no explanation for evidence that seemed to implicate him in the double homicide.

Lead plaintiffs’ attorney Daniel M. Petrocelli repeatedly cited Simpson’s fuzzy testimony about how he got cuts and scratches on his hand, for instance, as proof that the defendant could not be trusted to tell the truth. “He lied and lied and lied,” Petrocelli told jurors. “And he got caught, got caught, got caught.”

Simpson’s testimony helped set up one startling development that emerged in the civil trial: the discovery of 31 photos of him wearing Bruno Magli shoes.

In his deposition, Simpson had vehemently and memorably insisted that he would never wear the Bruno Maglis displayed during the criminal trial. “Ugly ass shoes,” Simpson sneeringly called them.

Then the photographs surfaced.

“If those photos are real,” Petrocelli said in his summation, as he fixed Simpson with a hard stare, “then you’re looking at the person who killed Ron and Nicole.”

Dismissing the photos as fakes, the defense offered jurors testimony from an amateur photo analyst who found a dozen anomalies in one of the negatives. But the analyst, who makes his living studying the John F. Kennedy assassination, did not return to the stand to challenge the other 30 photos when they emerged over the Christmas break. Instead, the defense simply argued that “they came too late and cost too much,” suggesting someone dummied them up to sell them to tabloids.

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As they built a new case against Simpson, plaintiff’s lawyers subtly but importantly shifted their approach to presenting the evidence of domestic violence.

In part, that too was a lesson of the criminal trial: After that case ended, jurors said they saw no link between domestic violence and murder. They simply did not believe the prosecution’s description of Simpson as a simmering fuse crackling ever-closer to an explosion.

Instead, the plaintiffs argued that flashes of violence did not mean Simpson was working himself up to kill Nicole, only that he could not control his temper. When she rejected him for good in the spring of 1994, they contend, he erupted in the same uncontrollable rage that had caused him to lash out at her in the past--only this time, he was brandishing a knife.

“You saw human drama in this case” instead of isolated incidents of abuse, said Loyola Law School Dean Laurie Levenson. “You could really tell how everything was falling apart at the end [of Nicole’s life]. In the criminal trial, you didn’t see how things were decaying at the end. The prosecution never put the [abuse allegations] into a story.”

Superior Court Judge Hiroshi Fujisaki, whose stern management of the civil trial contrasted with Superior Court Judge Lance Ito’s more lax supervision of the criminal case, helped the plaintiffs tell their story of domestic violence by permitting them to introduce evidence that was banned from the criminal trial.

He let jurors see excerpts from a letter Nicole Simpson wrote her husband accusing him of beating “the holy hell” out of her and telling him she called the police to save her life during a bruising fight in 1989. He also allowed into evidence Nicole Simpson’s diary, which recorded that O.J. Simpson cursed her and threatened her the week before the slayings.

In addition, Fujisaki permitted testimony from a hotline counselor who told jurors that a woman she believed to be Nicole Simpson called a battered women’s shelter in fright, terrified that her ex-husband was stalking her, five days before the murders. Ito barred that evidence from the criminal trial, ruling that it was inadmissible hearsay.

Fujisaki’s rulings on domestic violence were just one instance in which his judgments helped the plaintiffs. Time and again, the judge in the civil trial blocked the Simpson defense from pursuing theories that had helped the defendant in criminal court.

The judge would not let the defense mention former LAPD Det. Mark Fuhrman’s alleged racism. Or theorize that the killings could have been tied to drug debts. The notion of a Colombian hit squad was out. So was any mention that Nicole Simpson had sheltered a cocaine-using friend in the weeks before the murders.

“One thing that can’t be ignored is that the court’s rulings have favored the plaintiffs all throughout the case,” Madison said.

Barred from raising some potent themes, defense attorney Robert C. Baker tried to expose the police--as well as FBI agents and state Department of Justice scientists--as hopelessly biased against Simpson. He pointed out that nearly every law enforcement officer testifying in the case spent hours holed up with the plaintiffs, often without billing them a cent. One FBI agent, hair analyst Douglas Deedrick, even acknowledged having a picture of the Goldmans on his desk.

The plaintiffs parried the defense’s conspiracy argument by raising a simple question: Why? Why would so many police and federal agents commit illegal acts to frame an innocent man, especially a well-liked celebrity?

Without the Fuhrman tapes to suggest racism as a possible motive, Baker had a hard time answering that question.