Los Angeles Times

March 1, 1995, Wednesday, Home Edition

NEWS ANALYSIS;
SIMPSON’S FATE MAY RIDE ON DEFENSE TEAM’S CREDIBILITY;
TRIAL: ATMOSPHERE CREATED BY FAILURES TO DISCLOSE EVIDENCE COULD BE REFLECTED IN JUDGE’S RULINGS, EXPERTS SAY.

BYLINE: By HENRY WEINSTEIN and TIM RUTTEN, TIMES STAFF WRITERS

SECTION: Part A; Page 1; Metro Desk

LENGTH: 1286 words

By failing to provide key evidence to the opposition, O.J. Simpson’s frac-tured defense team has further jeopardized its credibility with Superior Court Judge Lance A. Ito. The ultimate loser, a wide array of legal experts predict, could be Simpson himself.

“This could be a turning point of the case,” said Wyoming defense lawyer Gerry Spence. “If a judge doesn’t believe a lawyer, he reflects that all through the trial, consciously or unconsciously. It will be reflected in his rulings on the evidence and in his instructions to the jury.”

Ito already has punished defense lawyers once for violating California’s so-called reciprocal discovery laws, which require each side in a criminal case to swap evidence and witness statements.

The prosecution has demanded additional sanctions for this week’s violations, which involve failure to turn over a tape-recorded interview with alibi witness Rosa Lopez and a written statement. Ito may rule on that request today.

To date, Ito has given defense lawyers considerable leeway in presenting their case. But many legal experts believe the judge, confronted with a second apparent violation of the laws governing the sharing of evidence, may no longer be so understanding.

“Whenever a judge believes that the lawyers on one side haven’t been honest with him, it can’t help but affect his view of any future issues that turn on their credibility,” said Los Angeles defense attorney Gerald L. Chaleff. “Those sorts of issues will come up again in this trial.”

Simpson’s lawyers — primarily team leader Johnnie L. Cochran Jr. and his partner Carl Douglas — have maintained that their violations of discovery stat-utes were innocent mistakes rather than willful acts, as alleged by lead prose-cutor Marcia Clark.

However, defense lawyer Albert De Blanc Jr. said the defense’s conduct amounts to “sandbagging, whether intentional or negligent.”

San Diego defense lawyer Elisabeth A. Semel said she expects Ito to levy new sanctions against Simpson’s lawyers. But she cautioned that “the judge has to be very careful that in any order he crafts to punish the lawyers, he doesn’t pun-ish the defendant in a way that interferes with his 6th Amendment rights to a fair trial.”

Washington, D.C., defense lawyer Greta Van Susteren echoed that sentiment. “Whatever Judge Ito does, the people who should pay the piper are the lawyers, not O.J. Simpson. The dangerous thing about a sanction is that it normally af-fects the defendant.”

In this instance, Ito may deem the discovery violations particularly severe because there are discrepancies between the information the defense initially handed over and that which was withheld.

In a July 29 report by defense investigator Bill Pavelic also known as William Bill Pavelic and Zvonko Bill Pavelic, there is a refer-ence indicating that Sylvia Guerra, a housekeeper who works near Simpson’s Brentwood estate and is an acquaintance of Lopez, could corroborate Lopez’s statements.

But in the subsequent Aug. 18 report of a Lopez interview by Bill Pavelic and an-other investigator, there is no reference to Guerra. This is the statement that was originally provided to prosecutors. The defense only turned over the July statement on Monday.

“It suggests that the defense is trying to hide something,” Van Susteren said. “How can they say that was accidental?”

Van Susteren said she found implausible the defense’s initial explanation that Guerra’s name had been left out of the August statement because she was an illegal immigrant Lopez had asked them to protect. “The defense is not in the business of protecting an illegal immigrant, they’re in the business of protect-ing their client’s rights.”

Some analysts said they doubt that defense team members deliberately withheld evidence from the prosecution — especially since Ito had warned them in the trial’s opening days about failing to reveal information to the opposition.

Attorney Marcia Morrissey, for one, said she believes the apparent violations of evidence-sharing rules resulted from poor communication among the attorneys and their staffs.’

“It doesn’t have the appearance of a cover-up,” she said. “It has the appear-ance of sloppiness — investigators who aren’t talking to the lawyers and law-yers not talking to the other lawyers.”

For months, sources close to the defense camp say, attorneys Shapiro and Cochran have been harshly critical of each other behind the scenes, hampering communication at a time when they should be working closely together because of the case’s relatively swift pace.

“There is no question that there is great personal animosity between Bob Shapiro and Johnnie Cochran,” said a source close to the defense, who asked not to be identified. “Their relationship is just terrible. For that reason, I’m in-clined to think that this failure to provide discovery was not intentional.”

As recently as January, sources say, the defense’s voluminous files were re-moved from Shapiro’s office and provided to Cochran as he cemented control over the case. “This was a pretty traumatic event for Bob, since it essentially rati-fied his loss of control over the case,” the source said.

The interviews with Lopez were conducted by Bill Pavelic, a private detective hired by Shapiro, and were among the documents shipped to Cochran’s office, “so they may very well have gone unnoticed until the last moment,” the defense source said.

Relations between Simpson’s two high-profile lawyers has become so soured, according to other sources, that Shapiro is frequently absent from crucial de-fense strategy meetings — including one in which the content of Cochran’s open-ing statement was discussed. In the course of that statement, Cochran revealed that his side planned to call more than a dozen witnesses and introduce addi-tional evidence of which the prosecution previously had been unaware. Lopez was one of those witnesses.

Still other observers seeking to explain the defense’s laxity on discovery issues say that the bad blood between the lawyers has been complicated by the unprecedented rush with which the case has been brought to trial.

“I suspect that the mess you’re looking at now is the product of a confluence of bad blood and excessive speed,” said an attorney who knows both Cochran and Shapiro well. “There is a tension — constant tension — between them, often ex-pressed, that undoubtedly impedes the kind of coordination a case like this re-quires.”

Well-informed sources say that tension has been exacerbated recently over at-tempts to alter the payment of fees to defense lawyers. Simpson’s financial ar-rangements with his defense attorneys differ from the normal arrangement under which most criminal defendants pay their lawyers before trial, usually in a lump sum or several large payments.

Simpson’s lawyers are being paid in much smaller increments because, as one source put it: “O.J. has assets, but he has a cash-flow problem.” He has de-clined, for example, to sell his Brentwood estate to raise money for his de-fense. As a consequence, his attorneys are being paid from other business in-come, including the proceeds from his best-selling book, “I Want to Tell You.”

Recently, Simpson’s longtime personal lawyer, Leroy (Skip) Taft, and friend Robert Kardashian reportedly have sought to readjust the dispersal of that in-come so more money can go to Bailey, who has taken an active part in cross-examining prosecution witnesses, and less to Shapiro, whose role has diminished. That attempt reportedly has engendered additional dissension within the so-called “Dream Team.”

The retainer agreements between Simpson and his defense lawyers were drawn up by Larry R. Feldman, one of California’s leading trial attorneys. Tuesday, he was unavailable for comment on the matter.

LOAD-DATE: March 2, 1995

LANGUAGE: ENGLISH

TYPE: Analysis