Decision Near on Seeking Death in Simpson Case

The Los Angeles County district attorney’s office will decide by the end of the month whether to seek the death penalty against O.J. Simpson, a lead prosecutor in the case said Tuesday during a far-ranging court session.

Superior Court Judge Lance A. Ito urged both sides to quickly prepare proposed jury questionnaires for what is expected to be a grueling, closely scrutinized jury screening process scheduled to begin Sept. 15. After filling out the forms, potential jurors could be questioned beginning the following week about hardships that might prevent them from serving on a case that could go through Christmas.

Jury selection and the debate over whether prosecutors will seek the death penalty against the former football great are among the most pressing questions in the double murder case that has captivated national attention since the bodies of Nicole Brown Simpson and Ronald Lyle Goldman were discovered June 13.

Discussion of those issues highlighted the hourlong hearing Tuesday, but there were other developments as well:

* Ito met for 30 minutes behind closed doors with the attorneys to discuss jury issues and prosecutors’ request to see the contents of a mysterious envelope produced by Simpson’s lawyers during last month’s preliminary hearing. After the closed-door meeting, Ito announced that he would delay any further action regarding the contents of the envelope until Aug. 19. A partial transcript of that session also revealed the extraordinary measures Ito is preparing to take to shield the jury from publicity.

* Prosecutors endorsed a suggestion by acting Secretary of State Tony Miller that the trial be suspended for two days around the coming November election. Miller asked for the recess so the trial will not distract voters from going to the polls, and lawyers on both sides of the case said Tuesday that they did not want to interfere with the state’s electoral process. Ito did not rule on the matter, but said he would take it up when he drafts a more complete trial schedule.

* Kelli L. Sager, an attorney representing The Times and other media organizations, urged Ito to grant reporters access to photographs of the crime scene and transcripts from closed sessions during the preliminary hearing. Her motion was opposed by a rare alliance of defense attorneys and prosecutors. Ito took the matter under submission and said he would rule Friday.

* Prosecutors and Simpson’s lawyers continued their sniping, accusing each other of leaks that have fueled a flood of news reports, some of them inaccurate and others focused on issues with marginal relevance to the case. At one point, Deputy Dist. Atty. Marcia Clark denied that prosecutors have been the source of news reports but accused defense attorneys and police of leaking information, an allegation that angered high-level officials at the Los Angeles Police Department.

Since Simpson’s arrest June 17, among the most politically charged aspects of the case has been the question of whether prosecutors will seek the death penalty against the Hall of Famer. Some prominent African Americans have expressed concerns about whether Simpson can receive a fair trial and about the all-white panel of prosecutors who will decide whether to ask for the death penalty.

At the same time, some women concerned with issues of domestic abuse have demanded that Dist. Atty. Gil Garcetti pursue the harshest possible sentence against Simpson.

The decision rests with an eight-member panel of the district attorney’s office headed by Assistant Dist. Atty. Frank E. Sundstedt, a respected senior prosecutor in the office. In an unusual move, Garcetti has said he too will participate in the decision.

Most experts say prosecutors are unlikely to seek the death penalty, but the fact that Simpson is charged with a double homicide would be enough to warrant the filing of special circumstances allegations if prosecutors elected to follow that course.

In response to a question from Ito during Tuesday’s hearing, Deputy Dist. Atty. William Hodgman, one of the lead prosecutors in the case, said his office expects to make a decision regarding the death penalty soon.

“The normal procedures are under way,” Hodgman said. “I would anticipate around the last week of this month, we would have that determination for the court.”

With the Simpson case moving forward at unusual speed, Ito urged attorneys for both sides to complete proposed jury questionnaires and submit them to him by Tuesday. He scheduled a hearing for the following day.

Although almost never used in run-of-the-mill trials, jury questionnaires often are employed in cases that have attracted unusual publicity. They are intended to weed out potential jurors whose knowledge of the case or feelings about it might make it impossible for them to serve impartially.

In recent years, for instance, questionnaires were used in the case of the young men accused of attacking Reginald O. Denny and others during the opening hours of the Los Angeles riots, and in the state and federal trials of the four Los Angeles police officers charged in the Rodney G. King beating. The questionnaires sometimes are highly personal and detailed--in the federal civil rights trial of the LAPD officers, prospective jurors completed a 53-page document that probed their views on such topics as interracial marriage and their reactions to the riots that rocked Los Angeles in 1992.

The Simpson case has attracted such enormous publicity that lawyers expect jury selection in the case to be a major challenge. Among other things, they are concerned about prospective jurors who may have been influenced by pervasive news reporting of the case, who may have strong feelings about domestic abuse or the criminal justice system’s treatment of minority defendants, or who may try to lie to get on the panel in order to sell their stories later.

Meeting behind closed doors with the attorneys Tuesday, Ito disclosed that he already is contemplating strong steps to find unbiased jurors and to shield the panel from publicity. The judge said he expects to initially summon 1,000 prospective jurors for questioning and to warn them that their service may extend through Christmas.

Ito told attorneys that he plans to partially sequester the jury during the trial, meaning that they will be “gathered up, brought to the courthouse, kept apart during the lunch hour and then taken home.”

“I am contemplating sequestering them completely for deliberations,” Ito added.

According to the transcript from the closed session, Ito said he also intends to seal the jury questionnaires before the trial and to have his staff make videotape collections and clip press coverage of the case--an unorthodox but not unprecedented notion. The package of coverage would be given to jurors after they complete their service, which Ito said he hoped would “keep them from the temptation of reading the (National) Enquirer during the trial.”

Although prosecutors and Simpson’s lawyers have fiercely contested almost every issue in the case so far, Tuesday’s hearing saw them united in one respect: They joined sides to oppose a media request for transcripts of closed-door sessions during the preliminary hearing and for permission to inspect but not reproduce photographs from the crime scene.

Sager, an attorney representing a host of news organizations, argued that in almost all circumstances court hearings should be presumed to be open to the public--a right she said is guaranteed by the U.S. Constitution and affirmed by U.S. Supreme Court rulings. Only in situations where lawyers can demonstrate a compelling need to close a proceeding should the public be excluded, she argued, and in those situations the judge’s order should be as narrowly tailored as possible in order to allow the press and public as much access as can be afforded without jeopardizing a fair trial.

“This is not something to be taken lightly,” Sager said, noting that the press had been given access to evidence in Los Angeles trials as celebrated as the Charles Manson murder prosecution, the trial of Sirhan B. Sirhan for the assassination of Robert Kennedy and the John Z. DeLorean drug case, which ended in the automotive entrepreneur’s acquittal. Each of those cases attracted enormous public interest, and yet the judges found that the defendants could get fair trials, Sager said.

Her argument was opposed by Clark and Simpson lead attorney Robert L. Shapiro, who managed to join forces against the media even as they blamed each other--and the LAPD--for leaking damaging information to the press.

“The Constitution of the United States provides that an individual should have the right to a trial by a jury,” Shapiro said. “There is no such right that the press has the right to try an individual. And that’s exactly what counsel is seeking here.”

Shapiro added that statements by police and prosecutors, as well as the release of grand jury transcripts, had “in a cumulative way resulted in Mr. Simpson being in a position where he cannot get a fair trial.”

Although seconding Shapiro’s position on the release of the documents and photographs, Clark bridled at his suggestion that prosecutors have endangered Simpson’s ability to get a fair trial by releasing information to the media.

“This case has been punctuated by a number of leaks, both from the defense and from what has been indicated earlier as ‘police sources,’ none from the district attorney’s office,” she said. “Some of the outrageous and unfounded accusations that have been publicized by the defense have only fed the media frenzy.”

Clark’s comments drew angry retorts from Simpson’s defense team and the LAPD--the agency in charge of the Simpson investigation.

Shapiro said in court that no defense attorney has ever discussed evidence in the case with any reporter--on or off the record--an assertion belied by numerous press accounts attributed to defense lawyers. LAPD Cmdr. David J. Gascon, meanwhile, said: “It’s our position that we should not be commenting on things that are said in the courtroom by the attorneys or the judge or witnesses. However, we are somewhat concerned with a comment that was made today. We will discuss our concerns with the district attorney’s office. We think that discussion is better conducted behind closed doors.”

Simpson did not address the court during Tuesday’s session, which touched briefly on the DNA testing that promises to figure prominently as the case progresses.

Clark said that DNA tests of blood samples were proceeding and that more samples may be forwarded to the lab for testing. Shapiro renewed the defense’s objections to the testing process, which does not provide for Simpson’s camp to receive splits of the samples as defense attorneys had requested.

Also Tuesday, Ito informed both sides that state-of-the-art technology would be made available to them during the trial, including computerized court reporting that makes transcripts instantly available and high-tech video equipment to present exhibits such as charts.

In addition, the judge at one point held up an envelope containing medical records for Nicole Simpson from St. Johns Hospital and Health Center in Santa Monica. After reviewing the records, Ito gave copies to both sides, who pledged not to disclose anything contained in the file.

Trial Calendar

Here are some key upcoming dates in the O.J. Simpson murder case:

* Friday--Superior Court Judge Lance A. Ito is scheduled to rule on media requests to inspect photos of the murder scene that were shown to witnesses--but not to the courtroom audience--during Simpson’s preliminary hearing last month. Ito is also expected to rule on whether transcripts of closed sessions held during the preliminary hearing should be made public.

* Aug. 16--Deadline for prosecution and defense lawyers to submit proposed questionnaires for potential jurors in the case.

* Aug. 17--Both sides are to appear in court for the next scheduled hearing. They are to update the judge on whether prosecutors are complying with informal defense requests for information.

* Aug. 19--Ito is scheduled to rule on whether the prosecution has the right to know the contents of a mysterious envelope that the defense turned over to the court during the preliminary hearing.

* Sept. 15--Jury screening is scheduled to begin with distribution of questionnaires.

* Sept. 19--Jurors will be questioned about hardships that could prevent them from serving through Christmas.