Jury Instruction on Hiding Evidence Questioned in Denny Case : Trial: Panel will consider whether defendants discarded or hid clothing allegedly worn during violence.

Legal experts Monday questioned a judge’s decision to allow the jury in the Reginald O. Denny beating trial to consider whether the two defendants suppressed evidence.

Superior Court Judge John W. Ouderkirk decided to give the jury an instruction allowing it to make its own inference whether defendants Damian Monroe Williams and Henry Keith Watson discarded certain articles of clothing that are allegedly missing.

“That the items merely were not found in the house is not sufficient evidence by any standard that evidence was suppressed,” said a UCLA Law School evidence specialist who asked not to be identified. “In the absence of a preponderance of evidence, I would think it is an improper instruction.”

California law allows a jury to consider the destruction or hiding of evidence as tending to show a “consciousness of guilt.” But the alleged destruction or concealment is not enough, by itself, to prove guilt.

Prosecutors have maintained that the defendants’ clothing is a key element in identifying them on videotapes of assaults at Florence and Normandie avenues, the intersection where Denny and others were beaten as riots broke out last year.

Williams, 20, has been repeatedly identified by prosecutors as wearing blue shorts, a white T-shirt with a stain on the left shoulder, a blue bandanna and black and white tennis shoes. Prosecutors say Watson, 29, is wearing a white T-shirt with “Hooker’s Bar and Grill” on it and a black cap with a tag hanging from it.

Police found a white T-shirt with a stain and a blue bandanna when they searched Williams’ home. They did not find the sneakers or the shorts. At Watson’s home, officers did not find the Hooker’s T-shirt or the cap with a tag.

Allowing the jury to consider that the defendants may have hidden or destroyed the clothing is a risky decision, said UCLA law Prof. Peter Arenella. “That instruction is disfavored by appellate courts these days because it begs the question of (the defendants’) guilt or innocence.”

He said giving such an instruction presupposes that the videotape identification is accurate.

Southwestern University law Prof. Robert A. Pugsley also questioned the instruction. He pointed out that a detective testified that the T-shirt found at Williams’ home was among a pile of soiled clothes. That may or may not have been an effort to hide it, he said. But if Williams had really wanted to destroy it, “he would have put it in an incinerator.”

Loyola law Prof. Laurie L. Levenson, a former federal prosecutor, said courts have been somewhat leery of this instruction “because, in part, it seems to argue the case for one side. The difficult issue in this case is did the evidence ever exist (at the places searched)?”

While arguing jury instructions, Williams’ attorney, Edi M. O. Faal, made what Levenson called “a bold move” by deciding that the jury should have only two options on the attempted murder charge Williams faces--all or nothing.

Faal did not ask Ouderkirk to instruct the panel that it could consider the lesser related charge of assault with a deadly weapon against Williams for allegedly hitting Denny in the head with a brick.

Faal’s gambit leaves the jury no middle ground on the attempted murder charge, which carries a maximum penalty of life in prison. Assault with a deadly weapon carries a maximum four-year term.

Faal declined to elaborate on his decision, but Levenson said it is a strategy adopted by defense lawyers “who really want to put the jury to the test. They believe that if the jury is really forced to face the extreme charge, they may be more willing to find reasonable doubt.

“If you win, you win big. If you lose, you lose big.”

Williams also faces a possible life sentence if he is convicted of aggravated mayhem--intentionally causing permanent disability or disfigurement--for allegedly hitting Denny in the head with a brick.

Ouderkirk will tell the jury it can consider the lesser included offense of simple mayhem which carries an eight-year maximum term.

The judge said the law requires him instruct the jury on the lesser included charge. But he is not required to give such an instruction on lesser related charges--charges not included in the more serious offense--unless the defense asks him to do so.

Watson also faces attempted murder charges for his alleged role in the attack on Denny, and both he and Williams are charged with assaulting or robbing seven other people at the intersection.