Ito Delays Ruling on Disclosing Jailhouse Talk

After a heated courtroom debate--enlivened when one of O.J. Simpson’s lawyers accused Superior Court Judge Lance A. Ito of mishandling Simpson’s security arrangements in jail--Ito delayed a ruling until Monday on whether prosecutors may learn the contents of a jailhouse conversation between Simpson and the Rev. Rosey Grier.

The delay leaves alive for at least a few more days a debate that has tugged at the margins of the case for nearly a month, as prosecutors have sought to learn what Simpson told Grier, an ordained minister, during an emotional jailhouse visit in November. In their final arguments on the subject Friday, prosecutors said Grier was acting more as a counselor than a minister and also maintained that by raising his voice, Simpson waived whatever confidentiality might apply to the remarks, even if made to a clergyman.

Deputy Jeff Stuart said he overheard a snippet of that conversation and informed his superiors of it, but Simpson’s attorneys have fought to keep prosecutors from learning what was said, arguing that the conversation was protected by the privilege that protects ministers from having to disclose their private talks.

In addition, Simpson’s attorneys have said that even if the deputy did hear a short comment or two, the remarks had to have been taken out of context because Stuart testified that he could not hear what came just before or after the comments by Simpson and the brief response from Grier. Simpson is accused of killing his ex-wife, Nicole Brown Simpson, and her friend Ronald Lyle Goldman on June 12; he has pleaded not guilty.

In court, defense attorney Gerald F. Uelmen offered a hypothetical example of how a seemingly incriminating comment could be misunderstood out of context. “We can imagine a situation where Mr. Simpson would say, ‘I am so depressed. I can’t imagine a situation where people I know would go on television and say I did it; I killed two people,’ ” Uelmen said. If the deputy only heard the words “I did it; I killed two people,” that would not accurately depict the conversation, Uelmen said.

Uelmen was backed up Friday by defense lawyer Robert L. Shapiro, who complained that the confidentiality issue is complicated by the fact that the visitation area where Simpson and his attorneys meet on weekends is inadequate. According to Shapiro, deputies can look over the lawyers’ shoulders at their papers and can hear conversations between the attorneys and their client even when no voices are raised.

“We were guaranteed that we would have privacy,” Shapiro said. “We did not.”

Shapiro went on to accuse Ito, who supervised the jailhouse arrangements, of bungling that job and of disingenuously suggesting in court that they were adequate.

That prompted a rare flash of anger from the judge, who at first cautioned Shapiro to watch his step. When Shapiro ignored him, Ito sharply advised him to “take a deep breath” and reconsider his line of argument. Then Ito recessed court for a long lunch break.

When court resumed, a chastened Shapiro apologized for his comments, saying he had been overcome by his zealousness in advocating his client’s interests.

“Judge Ito is a professional,” Shapiro said later, outside court. “He knows I respect him. He respects me. It was something that was said in the heat of advocacy.”

In court, Ito accepted that apology but still did not rule on the issue.

“I will hopefully issue the court’s ruling on this Monday morning,” Ito said. “Sorry to the people who expected to be out of town.”

The jailhouse exclamation has lingered as an intriguing sideshow to the trial since late November, when Ito and the attorneys mysteriously toured the Men’s Central Jail, inspecting the area where Simpson meets with his attorneys and others on weekends.

But with that issue apparently near resolution, the judge and lawyers turned late Friday to a topic at the case’s core, the DNA test results that the prosecution believes will link Simpson to the murder scene.

Simpson’s lawyers, who originally had indicated that they were prepared to wage a major pretrial battle to contest the prosecution’s DNA tests, this week shifted gears, saying instead that they preferred to hold that debate in front of the jury. On Friday, Uelmen argued that their proposed approach would save both sides time and would keep Simpson from having to pay for a hearing that could last two months or more.

Hearings over the admissibility of scientific evidence typically take place outside the presence of the jury because their purpose is to allow the judge to decide what evidence jurors should hear. Prosecutors opposed the defense motion, saying Friday that the unorthodox proposal would present jurors with mountains of evidence, much of which would be highly technical and could distract the panel from the other issues in the case.

George W. Clarke, a deputy district attorney from San Diego who is assisting the prosecution team on DNA issues, said the defense proposal could extend the period for which jurors need to be sequestered and would create a “substantial and dangerous possibility of forgetting evidence.”

Although Ito met privately with the lawyers in an effort to reach a compromise on the DNA issue, they emerged without an agreement. As a result, Ito said he would consider the various suggestions and issue a ruling by the end of the day Monday.

No court hearings are scheduled until Jan. 4, when the two sides will return with a host of issues to confront. In addition to the DNA evidence, defense attorneys are battling to keep out references to what they call “marital discord” between Simpson and his ex-wife.

Prosecutors say that evidence is relevant and prepared an 85-page legal pleading that urges Ito to allow jurors to hear it. Although that motion was filed under seal, sources who have read it say it lays out in detailed and highly charged language the couple’s volatile history.

According to those sources, the allegations extend beyond three incidents that have been most widely reported: a 1985 fracas in which Simpson was found by police wielding a baseball bat after having shattered the window of his wife’s car; a 1989 fight that ended with Simpson pleading no contest to charges of spousal abuse, and a 1993 incident in which Nicole Simpson called police for help while a man she identified as her ex-husband was smashing in a door and screaming at her.

Those incidents are documented in police files, but prosecutors also have canvassed friends of Nicole Simpson for details about Simpson’s behavior on other occasions. Candace Garvey, for instance, recalled a verbal altercation at a Christmas party last year, and other acquaintances described incidents that they either witnessed or that were described to them by Nicole Simpson, the sources said.

How much of that information will be ruled relevant in the murder trial is a decision for Ito. He has not yet indicated when he will hear arguments on that issue, but both sides expect that it will be sometime in early January.

Ito also continues to wrestle with accusations that at least one member of the jury may have committed misconduct by failing to disclose a past contact with Simpson. The juror, an employee of the Hertz Corp., has acknowledged he may have attended a company-sponsored event at which Simpson, a longtime celebrity spokesman for the firm, also was present. The judge and lawyers met in chambers for more than two hours Friday, but did not disclose what was discussed or whether any resolution had been reached.