Attorneys for Simpson Build Defense

The O.J. Simpson civil trial resumes today, and with it, the defense strategy of connect the dots.

Simpson’s main defense, just as in the criminal trial, is to contend that he was set up for the slayings of Nicole Brown Simpson and Ronald Lyle Goldman. But he has no direct evidence of the frame-up. No one saw anyone plant anything anywhere--at least, no one willing to take the witness stand.

So Simpson’s lawyers must piece together their conspiracy theory from circumstantial evidence: blood missing from a vial, cops deviating from standard procedure, police logs reflecting inaccurate times, new evidence turning up months after the slayings. The defense contends that linking those dots reveals a picture of Simpson as an innocent man wrongly accused. The plaintiffs insist that the correct drawing unmasks Simpson as a killer.

It will be up to jurors in the deliberation room to decide just how to connect the dots. But in the meantime, Simpson’s lawyers are working hard to nudge them toward the defense version.

Throughout the defense case, Simpson’s attorneys have spiked their questions with liberal doses of their conspiracy theory. Since they won’t get help from the witness stand, they have taken it on themselves to broadcast their contentions from the podium--even if they have to do it by asking questions that the judge rules inappropriate.

Lead defense attorney Robert C. Baker “is trying to get his theory in front of the jury the only way he can,” Los Angeles civil attorney Deborah David said.

Take, for example, Simpson’s Ford Bronco.

Several people have testified that they peeked into Simpson’s Bronco within days of the slayings and observed no bloodstains on the side of the console. Yet blood was collected from that location months later--and it proved to be highly incriminating, as it contained DNA consistent with both Goldman and O.J. Simpson.

Those are the dots. Baker connected them--with a dramatic flourish--while quizzing Los Angeles Police Officer Daniel Gonzalez, who responded to the crime scene early in the investigation. “The reason you don’t recall seeing blood in [that area of] the Bronco is because it was subsequently planted?” Baker demanded.

Baker also pounced on Gonzalez’s description of a blood “smear” on the Bronco door to alert jurors to another defense theory: that a rogue cop, namely retired LAPD Det. Mark Fuhrman, swiped blood there with a damp glove he had pocketed from the crime scene. “If some blood drops were smeared there, that certainly could be done with a bloody glove, correct?” he asked Gonzalez.

Baker did not get answers to either of those queries. The plaintiffs objected to both. And Judge Hiroshi Fujisaki upheld the objections, decreeing the questions inappropriately “speculative” because they required the witness to guess about something he had not witnessed.

Still, Baker could chalk up a tactical victory: He had managed to inject his hypotheses into the case, though no witness backed it up.

“You can embroider the question to the point where the jury gets just about all the information you wanted to convey,” Santa Monica civil attorney Brian Lysaght said. “The point is the question, not the answer.”

In the two weeks since they launched Simpson’s defense, Baker and his colleagues have given jurors plenty of provocative questions to mull over. For example:

* After eliciting the information that Fuhrman wandered away from other officers at Simpson’s house, and was out of sight for about a half-hour, Baker asked co-lead Det. Tom Lange: “Do you know whether Det. Fuhrman was leaving . . . so he would have the opportunity to plant a glove?”

* After pointing out that Det. Philip L. Vannatter carried a vial of Simpson’s blood across town in an unsealed envelope, unmonitored for several hours, Baker attempted to arouse jurors’ suspicions: “From 2:30 p.m. to 5:17 p.m. . . . you had the vial unsealed, with only you in possession of it?” he demanded of Vannatter.

* After reminding criminalist Andrea Mazzola that she originally testified she had put her initials on the bindles of blood evidence, defense attorney Robert Blasier told her that DNA analysts recalled seeing no initials when they unwrapped the packets at their labs. “That would indicate that they weren’t the same bindles, correct?” he asked, suggesting someone had switched the evidence in the lab.

Even though the defense never got answers to those questions, analyst Stan Goldman said asking them was good strategy.

“My theory is that after a long trial, jurors cannot distinguish between the questions and the answers,” said Goldman, a Loyola Law School professor who follows the Simpson trial. “I don’t think jurors will be able to remember that Baker asked the question about planting evidence, as opposed to it just being part of the evidence in the case.”

By the time deliberations begin, Goldman added, “jurors have already assimilated the information . . . [without] remembering exactly where it comes from. Lawyers are forever taking advantage of this.”

Well aware of such tactics, judges routinely admonish jurors that they cannot consider lawyers’ questions as evidence.

Judge Fujisaki reminded the Simpson jury of that instruction just before Christmas break, when he chastised a plaintiff’s attorney for implying through his questions that a defense witness was a crook.

“The attorneys, both plaintiffs and defense, cannot establish evidence by innuendo,” Fujisaki told the jurors. Turning to the lawyer who had offended him--Goldman family counsel Peter Gelblum--the judge said: “Why can’t you ask a question as a question instead of as an accusation?”

Despite his evident frustration, Fujisaki did not sanction Gelblum. Nor has he threatened any of the other attorneys with discipline.

Judges do have the authority to punish lawyers who deliberately ask inappropriate questions; in extreme cases, they can even call a mistrial. But practicing attorneys say they rarely suffer worse than a verbal spanking. And though no lawyer likes to be scolded in front of jurors, most find it beneficial to take risks now and again. “You’ve got to push the envelope,” said attorney David Wood. “You can’t be intimidated by the judge.”

In the Simpson trial, both sides have pushed hard to argue their cases through questions, even at the risk of drawing a rebuke from the judge. A classic example was the tactical duel during the questioning of LAPD videographer Willie Ford.

Ford testified that he did not see any socks at the foot of Simpson’s bed while filming the room the day after the slayings. Defense lawyer Phil Baker immediately sought to put a sinister spin on that testimony by suggesting the socks were subsequently planted there. “Someone must have put [the socks] there after you left?” he asked. The question was shot down as speculative, and Ford never got to answer.

But just a few minutes later, plaintiff attorney Gelblum countered with a speculative question of his own: “So the socks weren’t there because they’d already been picked up [by a criminalist]?”

Analysts said that question was just as inappropriate as the defense version, because it too forced Ford to speculate about an action he did not witness. Yet Baker failed to object. So Ford was free to answer--which he did with a crisp “yes, sir.”