Scenes From A Bad Marriage

By Richard Lacayo

WITH OPENING ARGUMENTS IN THE trial of O.J. Simpson set to begin at last, the biggest challenge for the prosecution isn't the missing murder weapon or the reliability of DNA evidence or the makeup of the jury. It's the defendant's smile. Whatever damage has been done in recent months to Simpson's image as the world's most genial jock, it will still be hard to make jurors put aside the old impressions of him. Unless they can imagine O.J. in a murderous rage, it won't matter even if the state offers them DNA blood tests with his autograph on every drop.

That is why so much hinged upon last week's hearing to decide whether the jury should hear evidence that O.J. had beaten and threatened Nicole Brown Simpson from the earliest days of their acquaintance until just before she and Ron Goldman were slashed to death. Based upon the physical evidence alone, lead prosecutor Marcia Clark can make a strong circumstantial case. But to persuade jurors to picture O.J. with a knife in his hand, she may also need to present them with some of the uglier scenes from the Simpson marriage.

There was no shortage of these in the 85 pages of court documents, many of them sworn statements by witnesses, that prosecutors presented to Judge Lance Ito. O.J. throwing Nicole against a wall, knocking her to a sidewalk, shattering her car windshield with a baseball bat, locking her in a wine closet, drunkenly pushing her from their Rolls-Royce as it drifted through a parking lot -- one after another the alleged episodes unfolded. When violence wasn't the major theme, it was humiliation. In one scene, O.J. taunted a pregnant Nicole as a "fat pig" and demanded that she abort their child.

Some of the most chilling accusations came from a witness who won't be able to testify. In November prosecutors opened Nicole's safety-deposit box. Inside they found an archive detailing her abuse at O.J.'s hands, including a written narrative that she drew up for her lawyer during the couple's 1992 divorce proceedings. In it she describes being knocked around by Simpson as early as 1977. When she accused him that year of sleeping with another woman, Nicole wrote, "He threw a fit, chased me, grabbed me, threw me into walls." In a New York hotel room a few years later, she says, Simpson "beat me for hours as I kept crawling for the door" and forced her to have sex while he went on smacking her. The box also held Polaroids that show Nicole's face badly bruised, news clips about O.J.'s 1989 plea of no contest to charges of spousal abuse and three letters from him asking her forgiveness.

To prove that Simpson was stalking his ex-wife, prosecutors also want the court to hear from neighbors who say they saw him peering through the windows of her condo. Just five days before her murder, Nicole contacted a shelter for battered women. The district attorney's office wants the records of her conversations there.

For now the jury has heard none of this. They spent the hearings sequestered in a Los Angeles hotel, their first taste of what may be months of isolation. Scrambling to contain the damage, defense lawyer Johnnie Cochran Jr. complained to reporters outside the courtroom about "a tabloid prosecution" that took its cues from the best seller by Nicole's friend Faye Resnick. One day later, prosecutors temporarily withdrew 18 of the 62 items, including Nicole's narrative, which the defense belittled as the work of a woman marshaling her case in a divorce dispute. Though that went far to make the prosecution's presentation seem like a pitch to the headlines, Clark's team insists it was a response to Judge Ito's request that prosecutors identify evidence they wished him to rule on immediately.

In deciding what to admit, Judge Ito will have to perform a particularly fine legal operation. A centuries-old rule of Anglo-American common law holds that jurors should not be told of a defendant's past behavior that is considered too inflammatory for a jury to handle. In all states past crimes are inadmissable as evidence to show that the defendant was predisposed to commit the crime. Thus the judge in William Kennedy Smith's rape trial refused to allow testimony from three young women who each claimed that Smith had assaulted them under similar circumstances. "We fear that the jury will not be as careful in sifting the evidence if they know that the accused has committed other crimes," says Professor Stephen Gillers of New York University School of Law.

Prior crimes can be used, however, to show motive, intent or planning. More recently the law has carved out a further exception for sexual assault, spousal murder and child molestation by bringing forward evidence that a pattern of past offenses in those areas is an especially good indicator of guilt. That reasoning exasperates some legal thinkers. "You can't infer murder from abuse," insists Columbia University law professor George Fletcher. "Homicide may imply abuse, but abuse does not imply homicide." All the same, the crime bill that was recently passed by Congress allows prior behavior to be used as evidence in the small number of sexual-assault and child-molestation cases tried in federal courts. In cases of child abuse that result in death, new laws in Minnesota, Tennessee and Washington admit evidence that the accused has abused children in the past. Minnesota also allows incidents of domestic violence to be brought into evidence against accused spouse killers.

In many other states, appeals courts have issued rulings that have a similar effect. One of those states is California. In a 1986 spousal-murder case, People v. Zack, which could have serious implications for Simpson, the California Supreme Court upheld the conviction of a man accused of killing his wife, ruling that prosecutors could offer evidence that he had assaulted her repeatedly in the past. In the Simpson case, Deputy District Attorney Scott Gordon told the court, "This murder took 17 years to commit."

Simpson's lawyers fought back with the arguments that the Simpson marriage was no worse than most, and that even if acts of violence did occur, they were not comparable to the savagery of the murder. Attorney Gerald Uelman even suggested in court that the murder resembled a drug-related homicide, a scenario the defense team has been busily feeding to journalists for months. At the end of the week the defense launched its counteroffensive with an admissibility issue of its own: Will the jury be allowed to hear racist remarks allegedly made by Los Angeles police detective Mark Fuhrman, one of the officers who searched Simpson's house?

If a good part of the abuse evidence is allowed in court, it will increase the pressure on Simpson's lawyers to allow their client to testify on the stand. Next month Little, Brown will publish O.J.'s response to the thousands of letters he has received in jail, titled I Want to Tell You. Meanwhile, the star defendant has perfected a form of silent communication, grimacing from his seat at court statements that he doesn't like or mouthing "I didn't do it." And when something in the courtroom goes his way, he smiles.

With reporting by Elaine Lafferty and James Willwerth/Los Angeles and Andrea Sachs/New York