The D.A. on The Defensive

By Jill Smolowe

For those keeping score, the Simpson defense team played pretty good offense last week, while District Attorney Gil Garcetti's office seemed to be stumbling all over the field. Some of the moves by Simpson's legal team were largely theatrical: attorney Leroy Taft set up a toll-free number and a $500,000 reward for tips leading to the arrest of the "real killer." Potentially more damaging, the Los Angeles County coroner's office, pressured by media leaks, admitted that 16 pieces of evidence in the Simpson case had been mishandled. Though most of the errors were minor (a container of bile temporarily mislabeled as urine), the admission presented an opening for the defense to press its contention that every step of the investigation has been sloppy. And press it did. Shapiro filed a motion charging investigators with failing to pursue witnesses and physical evidence that might buttress Simpson's claim of innocence.

The coroner's foul-up was particularly painful to some in the D.A.'s office who had opposed using deputy medical examiner Irwin Golden to head the coroner's investigation. Citing Golden's reputation for sloppiness, several deputy D.A.s had urged lead prosecutor Marcia Clark to get someone else assigned. "It'll be O.K.," Clark responded. She soon learned otherwise. Among the errors that forensic experts see as most serious: the contents of Nicole Simpson's stomach, which would have been useful in pinpointing the time of her death, were discarded, and her bloody clothes were improperly placed in a communal drip pan that may have contaminated blood samples.

But the D.A.'s office has little time to dwell on such setbacks. It is in the midst of an intraoffice debate over whether to pursue the death penalty for Simpson. If Garcetti's office opts for death, it risks an acquittal by jurors who don't want to see Simpson executed. If it rejects a capital trial, Garcetti can expect some people to accuse him of granting Simpson preferential treatment. Though sentiment in the office is currently against seeking the death penalty, there are strong opinions on the other side. Says a deputy D.A.: "How do we justify not asking for the death penalty if we really believe that O.J. Simpson premeditated the murder of two people? On the straight facts alone, if this case does not qualify for the death penalty, I can't imagine what case will ever justify it."

More depressing for many seasoned prosecutors is the mounting sense that Simpson has a good chance of walking free. They regard the addition of Johnnie Cochran to the defense team as a major blow. "It's going to be all these white people up there against O.J. and Cochran," says a deputy district attorney. "This is a downtown jury and there are going to be a number of black people on it." Last week a number of senior deputy D.A.s gathered socially, and the talk invariably turned to the Simpson case. An air of resignation immediately overwhelmed the room. "It is not a winnable case," said an attorney. "My prediction? Hung jury, bail, retrial, hung again, dismissed." As he spoke, his colleagues listened in gloomy silence -- and nodded.

With reporting by Elaine Lafferty/Los Angeles