Delay of Trial and Bail Denied for Simpson

In a stunning change of tactics, lawyers for O.J. Simpson on Wednesday requested a yearlong delay in the superstar athlete’s murder trial but made it contingent on his release on bail--a move they sought to allow publicity to subside before a jury hears evidence.

Despite an impassioned defense argument, however, Superior Court Judge Lance A. Ito denied the request--although he will allow Simpson’s attorneys to renew it later. As a result, the flurry of activity accomplished little beyond temporarily rocking the murder trial, where jury selection has been under way since late last month.

“This is an unprecedented case that requires an unprecedented remedy,” said Simpson lawyer Robert L. Shapiro, forcefully asking Ito to “take charge” of the case and grant bail. Simpson’s other lead attorney, Johnnie L. Cochran Jr., appealed to Ito’s sense of grandeur, asking him to grant bail despite a dearth of case law supporting such a move.

“This affords Your Honor a place in history,” Cochran said. “This is your opportunity.”

Deputy Dist. Atty. Marcia Clark responded by proposing a three-month delay but vigorously arguing that no bail was warranted. Under California law, defendants in capital cases are not entitled to bail, a fact that Clark cited to the judge in warning against defying judicial precedent.

“The defense invites this court into the chasm of disaster,” she said of Simpson’s effort to win bail.

The afternoon bombshell in the Simpson proceedings came amid a day of fast-moving developments, some of which unfolded in open court, others behind closed doors. Among them:

* In a closed courtroom Wednesday morning, Simpson addressed the judge. Although transcripts of that hearing have not yet been released, Cochran said later that Simpson told Ito that he was not fleeing on the day of his arrest, when the nation watched as he and close friend Al Cowlings led police on a low-speed pursuit through Orange County and Los Angeles.

* Ito appealed to television programs to hold off on broadcasting interviews with Faye D. Resnick, author of a controversial new book that purports to detail the last months of Nicole Brown Simpson’s life. Two of three programs said they would go ahead despite Ito’s request, but CNN’s “Larry King Live” agreed to wait.

* Ito put in place a new system for questioning prospective jurors, one that had been proposed by Deputy Dist. Atty. William Hodgman last week. Under the new system, jurors will be questioned singly and will be asked about their exposure to the book as well as other issues that might make it difficult for them to be impartial.

From the opening days of the Simpson case, publicity has dogged the proceedings, creating a series of flare-ups as Ito has attempted to insulate prospective jurors from being tainted by prejudicial publicity.

But the issue exploded anew this week with the release of “Nicole Brown Simpson: The Private Diary of a Life Interrupted.” The book was co-authored by a National Enquirer columnist and Resnick, who describes herself as the dead woman’s best friend while painting a seedy and controversial portrait of her.

After the book’s release, Shapiro said he no longer believed that Simpson could receive a fair trial. Prosecutors disagreed, and both sides met with Ito in a series of conferences Wednesday in an effort to find a way to guarantee a fair trial.

“Measures can be taken to ensure a fair and impartial jury,” Clark said during one break in the proceedings. “We’re exploring them now.”

When the two sides returned to court Wednesday afternoon, however, the defense argued that the drastic remedy of a long delay was the only way to protect the jury from contamination. That represented a dramatic turn in the defense position, which from the start has been to argue for the speediest possible trial.

Indeed, even while asking for the delay, the defense made it clear that it only wanted a postponement if Simpson would be allowed to go free on bail. That posed a difficult argument for Simpson’s lawyers, however, because California law generally does not allow for bail in cases such as this.

Under California law, a defendant is presumed ineligible for bail in a capital murder case unless the defense can show that the proof of guilt is not evident or the presumption of guilt is not great.

In recent years, two California appellate courts have ruled that the statutory presumption against granting bail to a defendant in a capital murder case also applies in a special circumstances murder case, even if the district attorney is not seeking the death penalty.

Seeking to persuade Ito to ignore the precedents, the Simpson lawyers called on him to rise above case law and “become a jurist.” At one point, they compared him to Earl Warren, a former chief justice of the U.S. Supreme Court.

Among other things, Simpson’s lawyers maintained that their client is entitled to bail because, contrary to prosecution arguments, he had not shown any intention to flee. Cochran referred to a session in which Simpson apparently addressed the judge directly on that subject.

Although transcripts were not immediately available from that session, the remarks attributed to Simpson would be his most extensive in the case, since his comments to date have been limited to perfunctory responses and his brief statement upon entering his plea--when he famously proclaimed that he was “absolutely 100% not guilty.”

Cochran’s comments indicated that Simpson had told Ito that he had not intended to flee June 17, the day that he first failed to surrender as scheduled and then ultimately was arrested at his Brentwood home after leading police on a long, low-speed highway pursuit. As evidence, Cochran said Simpson cited the fact that when he was spotted on Interstate 5, he was headed back toward Los Angeles, not away.

Clark countered, however, that Simpson was in fact attempting to escape that day and only changed plans when he realized that he could not succeed. She also confirmed for the first time news reports by The Times and KNBC-TV that Simpson had a large amount of cash and a passport when he was arrested.

“A man in possession of a gun, passport, and $7,000 or $8,000 . . . and a disguise reasonably leads a logical person to conclude that a flight was attempted but unsuccessful,” Clark said. Later, she added: “The People are asking that this defendant not be given the opportunity to succeed where previously he had failed.”

As Clark spoke, Simpson shrugged and shook his head, visibly indicating his disagreement with her portrayal of his actions that day.

After briefly recessing to review the law and recent cases, Ito turned down the defense motion. He did so without prejudice, however, meaning that Simpson’s lawyers can renew their request later if circumstances change.

“I agree with you that this is a highly unusual situation,” Ito said. “And I appreciate the call to judicial greatness. . . . But a trial court has to be guided by statutes and the case law.”

Legal experts said Ito was on solid ground in that ruling.

“The idea of granting a continuance for a year to deal with pretrial publicity was seriously misguided because the publicity would simply have heated up all over again as we approached the new trial date,” said UCLA law professor Peter Arenella. “Moreover, there is always the possibility that during the delay more damaging prejudicial information will come out, which would irretrievably taint all prospective jurors.”

Myrna Raeder, a Southwestern University law professor, agreed.

“I can understand (the defense) position,” she said. “But it’s a difficult one under the law, particularly where the prosecution can point to Mr. Simpson’s low-speed chase--from the prosecution’s point of view a risk of flight.”

Although Ito’s decision Wednesday at least temporarily heads off the chance of a trial delay, it does not resolve the judge’s continuing concerns about publicity in the case, particularly in light of this week’s release of the Resnick book. Referring to the book Wednesday, Shapiro said it was widely available, adding: “They’re selling the books on the courtroom doorsteps.”

Although some analysts believe that Ito is overreacting to the book--noting that it is just the latest in a long series of unsubstantiated accounts about the relationship between O.J. Simpson and his ex-wife--the judge has made it clear that he considers its publication potentially devastating.

As a result, Ito launched an extraordinary campaign to mute its effect, sending letters to the president of CBS News, as well as to talk show hosts Larry King and Maury Povich, asking them to not air scheduled interviews with Resnick. That request raised delicate questions of media restraint, and it produced a mixed response: CNN agreed to hold off, while Povich and CBS said they would go ahead with their scheduled broadcasts.

“The interview of Ms. Resnick, no matter what its content, will serve only to fan the already raging fires of adverse publicity and further jeopardize the parties’ right to a fair trial,” Ito wrote. “I hope you will find it in your conscience, corporate and otherwise, to cooperate with this request and delay this program’s broadcast until after the jury in this case has been selected and sequestered.”

In the book, Resnick writes that Nicole Simpson’s ex-husband threatened to kill her on numerous occasions, some in the months immediately before her murder.

Ito did not threaten action against organizations proceeding with interviews, but his request did pose a challenge to exercise restraint. It raised issues about whether programs should give credence to Resnick’s account despite a judge’s request that they hold off and about whether responsible news organizations would be undermining important constitutional principles in pursuit of a racy story.

“At some point news organizations have to stop citing the 1st Amendment as giving them an imprimatur to do whatever they want,” said Jeff Greenfield, a media and political analyst for ABC. “I do believe there are times when journalists use the 1st Amendment the way a diplomat uses his passport when he is stopped for drunk driving. We have to go beyond asking ‘Do we have the legal right to do this?’ and ask ‘Are there other things at stake?’ ”

Greenfield declined to comment on the merits of Ito’s request, but some lawyers and media experts said they considered it a reasonable one.

“When we in the press stand behind the 1st Amendment and say ‘protect us’ because we wish to air a story on Ms. Resnick, who has co-authored a book with a National Enquirer writer for money . . . we undermine our argument that we are advancing democracy,” said Ken Auletta, media critic for the New Yorker.

Laurie Levenson, a Loyola law school professor and frequent commentator, said she too thought Ito’s request was understandable, given the intense publicity that surrounds the Simpson case.

“I think it’s a reasonable request,” she said. “He’s asking them to show some responsibility. What a novel concept.”

But Everette Dennis, executive director of the Freedom Forum for Media Studies at Columbia University, said he fears that by drawing more attention to the book, “Judge Ito has given it greater credibility. It’s become the forbidden fruit now.”

Indeed, two of the affected programs showed little interest in abiding by the judge’s request.

“Ms. Resnick’s book has been the focus of a great deal of media attention, and the contents of the book have been widely publicized,” CBS News President Eric W. Ober said in a letter sent to Ito on Wednesday. “Accordingly, while CBS News appreciates and respects your commitment to safeguarding Mr. Simpson’s 6th Amendment right to a fair trial, we believe that broadcasting Ms. Chung’s interview with Ms. Resnick is fully consistent with responsible journalism.”

Povich said he too had considered the judge’s request but ultimately decided that broadcasting the interview carried little risk of influencing the trial.

“The Resnick book is available in bookstores,” Povich said. “There has been all kinds of media coverage already on the book. There are other interviews scheduled. And besides all that, the judge has already instructed his potential jurors not to watch television, listen to the radio or buy newspapers, magazines or books. So I think he’s solved his own problem.”

In addition, Povich’s show is the only scheduled appearance for Resnick before a live audience. The audience, Povich said, was “very skeptical” of Resnick’s claims and peppered her with questions about her drug history and her motives for writing the book.

But only CNN’s “Larry King Live” agreed to postpone its broadcast.

“In light of the court’s fair trial concerns, in this case CNN has decided to exercise its 1st Amendment right and will delay telecast of the interviews,” the network’s public relations office in Atlanta said.

When jury selection resumes today, Ito intends to question jury panel members about any exposure to the book or to coverage of it.

Times staff writers Jim Newton, Robert J. Lopez and Daniel Howard Cerone contributed to this report.

* ‘PRIVATE DIARY’: Scandalous, hastily written book opens a new, lurid chapter in case. B1