O.J. Simpson Will Go Free

August 01, 1994|By JAMES J. KILPATRICK

CHARLESTON, SOUTH CAROLINA — Charleston, South Carolina. -- O.J. Simpson will walk away from a California courtroom a free man.

That confident prediction rests upon two words: reasonable doubt. Unless the prosecution comes up with better evidence than we have read about so far -- evidence that will be admitted at trial -- a jury eventually will bring in a verdict finding Mr. Simpson not guilty.

As a matter of law, all that we really know about the case is that some person, or persons, murdered Nicole Simpson and Ronald Goldman on the night of June 12. Evidence will be admitted to establish the place, the method and the approximate time.

Now we get to the sticky part. The jury will be instructed that it may consider only the evidence actually admitted in court. At the preliminary hearing, Mr. Simpson's counsel raised serious questions about 34 items of evidence seized by police at his home. Judge Kathleen Kennedy-Powell refused to exclude the evidence.

For what my opinion is worth, I believe the judge ruled properly, but after reading a hundred appellate opinions on the exclusionary rule, I can tell you that her decision is not a sure thing. It is entirely possible that the California courts will rule that the police should have obtained a search warrant before they entered Mr. Simpson's property. If the evidence thus obtained should be excluded from the jury's consideration, there goes the famous bloody glove. The jury will never know about bloodstains found in Mr. Simpson's automobile or in his house.

Defense counsel will fight to the last citation against the admission of evidence based upon tests of DNA. This is the nucleic acid in our bodies that identifies our genes as if they were bar codes in a grocery. The theory is that each individual's DNA code is unique.

The scientific community accepts this proposition. Courts accept the theory also -- but that does not get this evidence into this court. Mr. Simpson's lawyers will question the chain of security protecting the specimens of blood and hair. They will challenge the methods used by a testing laboratory. They will scorn the statistical findings. We will see experts standing behind experts in a checkout line.

In recent months the trend has seen greater acceptance of DNA evidence. A recent Virginia case provides an example. Last September the U.S. Court of Appeals for the 4th Circuit affirmed the conviction of Timothy Spencer for murdering a woman in 1987. The DNA in Spencer's blood matched the DNA molecules extracted from semen stains on her bed. Two hairs were ''consistent with'' Spencer's hair.

Six experts testified at Spencer's trial. One of them said the odds against error were one in 705,000,000. The trial court accumulated 380 pages of testimony and argument about the validity of the DNA tests. The 4th Circuit held flatly that ''the DNA evidence was constitutionally admitted.''

Other courts have gone the other way. Of particular importance in the Simpson case is that other California courts have gone the other way. The trial of O.J. Simpson is a California case, not a federal case, and the rulings of the trial judge on admission or exclusion of the forensic evidence are just about final.

The jury will be charged with considering only the evidence admitted in court. The trial judge will tell the jurors that it is not ZTC up to Mr. Simpson to prove his innocence. It is entirely up to the state to prove his guilt -- and that guilt must be proved beyond a reasonable doubt.

On March 22, the U.S. Supreme Court handed down an opinion that will control the judge's instructions in the Simpson case. The March decision involved Alfred Arthur Sandoval. A jury found him guilty of murdering three men and a woman in gang-related crimes in Los Angeles. The key question on appeal had to do with the trial court's instructions on reasonable doubt.

California law directs trial judges in this regard. The Simpson jurors will be told that a condition of reasonable doubt is a state of mind. They should not acquit on a mere ''possible doubt.'' But unless they feel an ''abiding conviction'' that the state has proved Mr. Simpson's guilt, they should release him.

Doubts? I doubt that the greatest actor on earth could murder two persons in hot blood, and minutes later ride calmly to an airport with every outward appearance of equanimity. And that's only one doubt. O.J. Simpson is entitled to every doubt he can raise.

James J. Kilpatrick is a syndicated columnist.

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