Commentary

Prosecution is off and running on Day 1 at O.J. trial

Originally Published: September 15, 2008
By Lester Munson | ESPN.com

LAS VEGAS -- If O.J. Simpson lands in jail on the robbery and kidnapping charges for which he's on trial here, it will be the result of his own rage-induced blunders and a pair of prosecutors who are impeccably prepared and opened the proceeding on Monday with a powerful presentation of their case.

The first of Simpson's blunders, the early evidence strongly suggests, sparked the police investigation that is leading four friends and acquaintances to testify against him. The second forms the basis of the prosecution's argument that Simpson's intentions were those of a violent criminal and not the angst of a man whose personal mementos had disappeared.

[+] EnlargeO.J. Simpson
AP Photo/Jae C.HongAfter the first day of his trial, O.J. Simpson appears to be up against some strong evidence of guilt.
Clark County Deputy District Attorney Chris Owens included in his opening statement a number of audio clips of Simpson on tape -- one made at a meeting when Simpson's group was planning its confrontation with a couple of memorabilia dealers in a Las Vegas hotel room, one made during the actual incident, and one made during a telephone call after the incident -- that presented compelling evidence about Simpson's purpose and understanding of what he was doing. The jury will hear more of those tapes as the trial continues.

On Monday, the tapes indicated that as Simpson and memorabilia dealer Thomas Riccio planned the move designed to recapture photos, footballs, ties and other memorabilia Simpson felt had been stolen from him, the former NFL star made his first big mistake.

If the memorabilia was stolen, Simpson calculated, then the people who had it would not call the police when he took it from them. They would not dare report it, he reasoned on the tape, because they would then be admitting they were in possession of stolen property and could face arrest themselves. In a number of the tapes the jury will hear during the next few days, Simpson can be heard repeating his conviction that no one will call the police about his stolen property.

Simpson misjudged that situation and the people involved. Turns out, the property was not exactly stolen. After a jury in a civil trial issued a unanimous verdict in 1997 that Simpson was responsible for the deaths of his former wife, Nicole, and her friend, Ron Goldman, and assessed damages of $33.6 million, Simpson tried to hide his memorabilia to avoid paying the judgment. His then-manager, Mike Gilbert, and his sister, Arnelle, removed a truckload of things from the Simpson estate on Rockingham Drive in Los Angeles and put the items in storage facilities throughout California.

Later, Gilbert and Simpson argued over money that Simpson may have owed Gilbert. In interviews with police as well as the National Enquirer, Gilbert said he took some of the things that had been stashed and sold them to Bruce Fromong, one of the dealers from whom Simpson's crew took the memorabilia.

[+] EnlargeChris Owens
AP Photo/Jae C. HongDeputy District Attorney Chris Owens brought a load of compelling multimedia evidence to his opening statement.
When Simpson learned the two dealers in Las Vegas had his things in a hotel room, he thought he could take everything back without fear that the authorities would be called. In his rage against Gilbert, Simpson apparently didn't realize that the two dealers weren't involved in any theft of his property and had simply bought what was available. Gilbert's testimony against Simpson will be one of the highlights of the robbery trial.

Simpson's assessment of the situation was wrong. In a six-minute transaction allegedly involving two guns, threats and force, he regained possession of his things. But the two dealers from whom he took them immediately called 911, something Simpson thought they could not and would not do. That started a police investigation which resulted in 11 felony charges and the possibility of a life sentence for Simpson.

Even after the incident, Simpson was incredulous that the dealers had called 911, the tapes indicate. He was stunned that two people who allegedly had been held up at gunpoint would call the police.

Simpson's other blunder came in the continuing litigation with the Goldman family. Only a few months before the Las Vegas incident, Simpson answered written questions under oath about his assets. The Goldman family's attorneys check on Simpson frequently in their search for the money Simpson has not paid.

Simpson told the Goldman attorneys he had no assets, nothing except his house in Florida and a life insurance policy. Then, in meetings with his Las Vegas crew recorded on tape, he says again and again, "This is my s---. It belongs to me." As Owens told the jury in his opening statement, "Mr. Simpson swore under oath that he had no assets, and these are the assets that he swore he did not own."

This kind of conflicting statement may keep Simpson's attorneys from allowing him to testify in the robbery trial. If he testifies, he would have to try to persuade the jury that he was not involved in a robbery of material that belonged to others; rather, that he was instead involved in a recovery of things that belong to him.

Although Simpson demonstrates impressive personal charm as he visits with people at the courthouse here, he would have serious difficulty explaining to the jury his sworn statements in the Goldman litigation. And, of course, the Goldman element brings the 1994 double murder directly in front of the jury in a way that Simpson would be powerless to stop.

[+] EnlargeOJ Simpson and Yale Galanter
AP Photo/Jae C. HongSimpson's attorney, Yale Galanter, didn't have a substantive counter for the prosecution's presentation in his opening statement.
If those blunders aren't enough to send Simpson to prison, the opening statements made here on Monday are a signal that the prosecution is ready and able to present a powerful case against him.

Using audiotapes and videotapes, photographs, impressive graphics and slick PowerPoint presentations, prosecutor Owens outlined the evidence against Simpson in compelling detail. It was a seamless narrative highlighted with images from security cameras of Simpson and his crew hauling out both his memorabilia and other valuable items they took from the dealers. It was a 54-minute statement that developed momentum and rhythm, and Owens piled up tape upon photo upon document. If trials were scored like baseball games, Owens' opening statement would be a leadoff, stand-up triple.

Combining his own understated verbal presentation with loud and profane clips from audiotapes of Simpson and his cohorts, Owens set the stage brilliantly, with all 18 jurors (including six alternates) appearing to follow every word. At one point, Owens placed Simpson's mug shot on a large screen next to Simpson's statements about "my stuff." In a major breach of courtroom decorum, Simpson saw what Owens was doing and turned first to one of his lawyers and then to the other, apparently expecting them to do something. The lawyers did nothing, and continued to watch Owens perform.

Yale Galanter, Simpson's lead attorney, seemed unable to reply with the same level of substance and could not match the slick presentation of the prosecution. He spent most of his opening statement trying to knock down what Owens had done, and finally acknowledged that Owens' statement was "extremely eloquent."

[+] EnlargeCJ Stewart
AP Photo/Daniel GluskoterAlong with Simpson, co-defendant Clarence "C.J." Stewart might have difficulty pursuing an appeal in Nevada on the merits of the jury's racial makeup.
A NOTE ABOUT THE JURY: The all-white jury selected for the trial remains a serious issue for Simpson and his co-defendant, Clarence (C.J.) Stewart. Both complain that the jury's makeup is the result of systematic exclusion of African-American jurors by prosecutors David Roger and Owens. But Judge Jackie Glass watched closely as the jury was selected and concluded that the all-white jury was a statistical accident and not the result of racist exclusion of potential jurors.

If Simpson and Stewart want to pursue the issue on appeal, they face an obstacle in the highly unusual structure of the Nevada court system. Most states (all but 11) have intermediate appeals courts that review what happens in trial courts, with a supreme court as the court of last resort. In Nevada, however, there is no intermediate appellate court, and all appeals must go straight to the Nevada Supreme Court. It substantially lessens any chance Simpson and Stewart might have to do something about the all-white jury by eliminating one possibility for relief, and leaves only an overworked Supreme Court to review what was done in Judge Glass' courtroom.

Stewart and his attorneys are caught in the backwash of Simpson's celebrity and notoriety and cannot seem to do much about it. Robert Lucherini, one of three attorneys representing Stewart, begged the jury in his opening statement to understand that Stewart and Simpson were not friends, "merely networking acquaintances." Lucherini tried to tell the story of Stewart's involvement in the incident, and badly botched the names of the characters (including Simpson's) and the hotels and the timeline to the point that Simpson's lawyer was objecting to a co-defendant's opening statement.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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