Simpson Team Attacks D.A.'s Use of Grand Jury : Courts: Defense motion seeks dismissal of murder case. Elsewhere, dispute swirls over magazine story.
O.J. Simpson’s lawyers accused the county’s chief prosecutor Thursday of abusing grand jury power and called for dismissal of the double-murder case and sanctions against the district attorney.
Meanwhile, a woman who spoke to Brian (Kato) Kaelin the night Simpson’s ex-wife, Nicole Brown Simpson, and her friend, Ronald Goldman, were killed disputed a magazine article suggesting that she and Kaelin may have withheld evidence from investigators and possibly perjured themselves during court testimony.
In their emergency motion accusing prosecutors of misconduct, five members of Simpson’s defense team said Dist. Atty. Gil Garcetti should be sanctioned for using a probe of Al (A.C.) Cowlings to investigate the slayings Simpson is charged with.
They suggest in the motion that the secret probe of Cowlings is a thinly veiled effort to get more information about Simpson from his closest friends, who would not talk unless they were subpoenaed by an official body.
“It is a firmly entrenched rule that once a defendant has been formally charged, a prosecutor may not use a grand jury’s investigative powers for the purpose of securing additional evidence against the defendant for use in the upcoming trial,” the defense motion said.
Superior Court Judge Lance A. Ito scheduled a closed hearing Friday afternoon to hear arguments on the motion. Earlier Friday, he is scheduled to release his ruling on the crucial question of whether the prosecution must share blood samples with the defense for DNA testing.
Suzanne Childs, a spokeswoman for Garcetti, said prosecutors will respond to the accusations at the hearing.
While defense scientists waited for word on whether they can begin their own tests, Simpson’s girlfriend, Paula Barbieri, appeared before the grand jury.
Prosecutors have said they are investigating whether Cowlings was helping Simpson elude arrest June 17. Cowlings, through his attorney, has said he was trying to save his friend’s life since Simpson was threatening suicide.
The defense suggested in its motion that Garcetti has no real interest in Cowlings. Garcetti said at a news conference Wednesday that the grand jury was not being used to indict but for its investigative powers.
The motion cited Garcetti’s news conference, where he said information developed during the Cowlings probe conceivably could be used in the Simpson case--or other cases--if it proved to be relevant.
“The grand jury is not empowered to conduct roving investigations or assist the district attorney in conducting his own roving investigations,” the motion said.
“The grand jury’s investigative power is limited to determining whether a public offense should be charged by indictment.”
The defense lawyers asked Ito to examine grand jury transcripts to find out whether “the grand jury was decoyed into serving primarily as a discovery device for the government’s trial preparation.”
Simpson, 47, is charged with the murders of his ex-wife and Goldman. He is scheduled to go on trial Sept. 19.
At a packed Century City news conference Thursday, Rachel Ferrara and her attorneys criticized a Time magazine article about a telephone conversation that she allegedly had with two friends. Ferrara said the magazine’s account--that she told the unnamed friends that Kaelin said during a phone call that he saw Simpson outside the guest house--is untrue.
If that story were true, prosecutors could place the former football great in the area about the time they believe a bloody glove was dropped nearby.
Kaelin, who was living in O.J. Simpson’s guest house, has testified that he was talking on the telephone with Ferrara when he heard three loud thumps on his wall June 12. Kaelin said he went outside to investigate about 10:40 p.m. and called Ferrara back, telling her that he had seen no one.
Ferrara corroborated Kaelin’s account in testimony at a July preliminary hearing and denied Thursday that she said Kaelin saw Simpson outside the guest house.
“I would never do that,” she said. “It’s so far-fetched from my character.”
One of her attorneys, George Hernandez, said: “Time magazine has attempted to make Rachel Ferrara another victim in the O.J. Simpson trial.” He accused the magazine of “reckless and . . . at worst, inflammatory” reporting.
Kaelin’s attorney, William Genego, also questioned the story. “First Time was altering the cover,” he said, referring to the magazine’s controversial darkening of Simpson’s face in a recent issue. “Now they’re altering the content.”
A Time spokesman said Thursday that the magazine stands behind its story, which reported that the two friends passed their information to police and prosecutors.
A spokeswoman for the Los Angeles County district attorney’s office declined to comment Thursday.