The Burden of Evidence

By DAVID VAN BIEMA

When it was all over, the defense counsel spoke. Sad-eyed, indignation banked to a mere smolder, Robert Shapiro argued that all the accusations laid against his client were the worst kind of circumstantial evidence -- evidence that could be read as innocence as well as guilt, and the court should have "little difficulty in deciding that this certainly is not a case of any premeditated murder by anyone." In fact, he declared, there was insufficient proof that O.J. Simpson was guilty of anything.

Rising to respond, Deputy District Attorney Marcia Clark, stern-faced and methodical, ticked off her evidence, piece by piece. The glove at the crime scene. Its mate on Simpson's path. The blood trails to Simpson's house. The Ford Bronco with traces of blood. That's how circumstantial evidence works. Put him on trial.

This was a preliminary hearing. It was billed as such -- a routine presentation of evidence to show probable cause that the defendant should be tried for murder. Instead, it turned out last week to be a sensational mini- trial and, in the minds of some television viewers, the unofficial conviction of Simpson.

After 21 witnesses, mind-numbing disquisitions on evidence gathering, soul- numbing descriptions of violence, the defendant wiping away tears as the coroner described in antiseptic detail the innards of his ex-wife Nicole Brown Simpson and of Ronald Goldman, and the impassioned final statements of both lawyers. Municipal Judge Kathleen Kennedy-Powell needed only 30 minutes or so to issue her ruling. Simpson would go to trial. There would be no bail. Legally, of course, he remains innocent until proved guilty. The real trial is still to come.

The sense that the hearing was the main event rather than just a prologue had mounted inexorably over its entire length, but crested during its peculiar second week. The prosecution had opened with the testimony of limousine driver Allan Park and Simpson houseguest Brian ("Kato") Kaelin. Park, whose ferrying of Simpson to the Los Angeles airport at around 11:15 on the night of the murder had been part of Simpson's alibi, reported that O.J. did not answer his intercom until around 10:56. Shortly before that, Park added, he had glimpsed a 6-ft. 200-lb. African-American figure rushing across the lawn into the house. Kaelin, an aspiring actor who had boarded first at the home of Nicole Simpson and now at O.J.'s place, reported being interrupted in the middle of a telephone conversation at 10:40 by a banging and shaking on the wall of his guest house.

Gradually, prosecutor Clark's direction became evident: she was clearing a large enough block out of O.J.'s June 12 schedule to accommodate a murder. Now her witnesses had established a plausible 76 minutes during which Simpson could have driven the two miles to Nicole's condominium, killed and returned; bumped into Kaelin's wall while re-entering his property via a service path; and been spotted by Park as he crossed back to the main house. The clincher in the scenario was an especially dramatic piece of evidence: a bloody glove found on the service path -- the apparent mate to one dropped near the bodies.

It was that glove that defense lawyer Shapiro wanted ruled out of bounds. Shapiro argued that it had been collected during a search without a warrant. According to the exclusionary rule, which enforces the Fourth Amendment's prohibition of unlawful searches and seizures, illegally procured evidence cannot be admitted at trial, however vital it may be to proving guilt. Thus for two days, the hearing turned itself inside out as investigating detectives found themselves having to explain their own actions rather than Simpson's.

The prosecution took refuge in one of the exclusionary rule's exceptions: such evidence is admissible if the searchers can show that they stumbled upon it while responding to a perceived emergency. Homicide detective Mark Fuhrman maintained that he and three colleagues had driven from the murder scene to O.J.'s home not to investigate but simply to inform him of Nicole's death and arrange for their children's care. The detectives, puzzled to see lights on in the mansion at that hour (5:10 a.m.), received no answer through the intercom at the gate. When Fuhrman discovered what he thought was a spot of blood on the haphazardly parked Bronco nearby, he vaulted a 5-ft. fence onto the property -- intent, he said, on foiling the Bronco's driver in the event that he might be stalking Simpson or his guests.

Midway through this he encountered Kaelin, heard his tale of bumps in the night, rushed to the service path and discovered the glove. "My heart started pounding," Fuhrman told the court. "I realized what I had finally found" -- presumably the possible key to a double murder. The officer stressed that it was not something he had been looking for: "I was kind of taken aback by the whole event," he said. "We didn't go up there for this."

Judge Kennedy-Powell believed him. Explaining that she could find "no holes" in the detectives' claims, she declared the Fourth Amendment "alive and well" and untainted. She accepted the glove as evidence. In the spectator section, Nicole Simpson's father wept with relief.

Although no one admitted it at the time, the hearing was decided at that % moment. The defense's main strategy was dashed. The prosecution had tipped at least part of its hand, and the judge had tipped hers. After such a rousing affirmation of the police and their judgment, it was unlikely that she would consign their case to legal limbo. From then on, Clark's presentation of her witnesses seemed less like that of a prosecutor fighting for her case than of a victorious poker player laying down a royal flush, card by card.

On the final day of the hearing, Clark displayed her most critical card when a forensic expert declared that Simpson's blood type resembled that of the stains that marked the murderer's departure from the crime. The match was remarkably close: only 0.43% of the population shares the same chemistry. Before this court, however, Clark could not, or would not, link O.J. definitively to the carnage. Detectives admitted that they could find no footprints at his estate to match the bloody ones leading from the murder. Nor could a slit be found on the much prized glove to correspond with a cut on Simpson's finger. On Friday, Simpson cried as a coroner reviewed diagrams of the victims' dozens of wounds; but the descriptions posed a new puzzle: Could a lone assailant have done all that damage that swiftly?

To which a fascinated nation added several questions of its own: What will blood DNA tests show? What other evidence will the prosecution spring? Will the police find another suspect? What kind of defense will be mounted by Shapiro, a lawyer who usually gives good value for his hourly rate? What's in the mysterious manila envelope? Can a jury in cop-wary Los Angeles ever convict Simpson? And -- the question looming over all the other questions -- if Simpson is convicted of murder, will he be condemned to die or to spend the rest of his life in prison?

With reporting by Patrick E. Cole and Elaine Lafferty/Los Angeles and Andrea Sachs/New York