OJ Verdict Was Watershed for Justice System By SHELLY GARCIA Senior Reporter Jonathan J. Kissel had a client who insisted the Ecstasy he was arrested with wasn’t what police claimed. So Kissel had the substance re-tested. “It wasn’t Ecstasy,” Kissel recalled. “It was something close to it, but it wasn’t an illegal substance.” Welcome to criminal defense lawyering in the post-O.J. era where little, if anything, is taken at face value. Not government-run lab tests; not expert witnesses or the testimony of authority figures; and perhaps least of all, not the integrity of defense attorneys. “As a general proposition, the O.J. case cast a very negative pall over the entire criminal justice system and probably over criminal defense attorneys in particular,” said Kissel, a sole practitioner based in Tarzana. The double murder trial of O.J. Simpson six years ago may have been a spectacle hardly representative of the way the criminal justice system usually works, attorneys say, but it nonetheless changed the way that system is perceived, by the defense, the prosecution and by juries alike. In some cases, such as that involving Kissel’s Ecstasy, that has proven a boon to defense strategy. In others, it has been a hindrance. Either way, the lessons of the Simpson trial and the subsequent revelations about the Los Angeles Police Department brought on by the Ramparts scandal have irrevocably changed the way criminal prosecutions and defenses are conducted. “There’s been a sea change,” said Gerald Fogelman, an Encino-based criminal defense attorney. “O.J. put DNA on the map. If I could say there’s a good thing that came from O.J., I would say that DNA can be a valuable defense to the defense. But it’s just not going to be swallowed whole unless you follow all your protocols.” The Simpson trial exposed just how much room for error there can be in government-run laboratory testing. It revealed police bias and, at least for those who thought Simpson was guilty, pointed up the ways in which an expensive defense can manipulate the system. “It’s kind of a subtle thing,” said Robert A. Schwartz, a sole practitioner whose defense practice ranges from DUI cases to gang-related crimes and murder. “Most of us are extremely careful about not doing anything the jury is going to perceive as being misleading or deceitful. Most of us have always operated under the principal that candor with the jury is a virtue. That’s been reinforced since O.J.” Cases that are difficult to prove are now far less likely to go to trial because Simpson’s criminal acquittal was considered a very public failure by prosecutors, defense attorneys say. Other cases, especially those involving domestic violence, end up in courtrooms far more often. “You go around the courthouses in cases involving violence and there’s a high percentage of guilty verdicts, and the message of all that is the public in general has a very low tolerance for violence, for games and for people who don’t take responsibility for their lives,” Schwartz said. One reason for the increase in guilty verdicts, attorneys say, is simply that prosecutors have become far more selective about the cases they choose to bring to trial, picking those in which the evidence is so overwhelming, a guilty verdict is almost assured. By the same token, some of the rules have changed since the O.J. trial, particularly when it comes to domestic abuse. “Before, they had a tremendously valuable tool to deal with domestic violence diversion,” said Fogelman. “I used to divert them and they would go through counseling, and at the end they’d be better for it. Now because of O.J., it’s not available. They still have to go through the program, but they have to be convicted.” Traditionally, those involved in domestic violence have been “diverted” to counseling and anger management classes, but no such condition was placed on Simpson after he pleaded no contest to wife beating charges in 1989. In the aftermath of Nicole Simpson’s murder, domestic abuse became a political football. “There was a tremendous overreaction, and it stems from the fact that O.J. beat the crap out of her numerous times and nothing happened,” said Schwartz. “Now prosecutors are afraid that if they’re too lenient that the guy is going to go out and murder her, so I think they err on the side of harshness and I don’t know if that’s ever going to change.” But if the Simpson criminal trial closed some options for defense attorneys it also opened others, especially where DNA and other laboratory testing is concerned. The trial pointed up the ways in which all kinds of tests can be mishandled, opening the door to new strategies for the defense. “One thing that Simpson’s case proved was that the reliability of the laboratories, the state-run laboratories, is way over-placed and can be easily challenged,” said Kissel. Such challenges can increase the price of a defense two-fold, but attorneys point out that, in many cases, DNA or other testing done early can save the far more expensive cost of a trial if it exonerates their client. Not that the system always works that way. “Just recently one of my clients screamed that the substance which he was arrested with was not entirely methamphetamine,” said Kissel. “He insisted on having a portion of the evidence re-tested, and he was right. It wasn’t meth. It was cocaine, so he got into more trouble.” The problem with many of the new options available to the defense, these attorneys say, is that some clients convince themselves that they are unfairly accused, and if they insist on these tests, a defense attorney has little choice but to go along with the client’s wishes. “What you can’t do is create an adversarial atmosphere with the client,” Kissel said. Still, the more careful scrutiny being given all evidence by jurors as a result of the O.J. trial has proven to be helpful in many defenses, these attorneys say. Criminal attorneys have always believed that police and other expert testimony should be evaluated just as any other witness report, but prior to the Simpson case, they were also acutely aware that putting forth a defense around the idea that such testimony was mistaken or false could backfire. Juries were inclined to believe the testimony of authority figures without question. The Simpson trial, in which police and experts were discredited by the defense, went a long way toward changing that. So did the Ramparts scandal, although attorneys say that the pendulum may now be swinging back in the aftermath of the terrorist attacks of Sept. 11. “When your client presents a defense that the police are being untruthful, you are much more likely to put that defense forward than you would before,” said Fogelman.