Ito Orders DNA Hearing, Disallows Jail Remarks : Simpson trial: Argument over use of scientific evidence could delay opening statements until February.

Prosecutors will not get to ask what O.J. Simpson told Rosey Grier during an emotional jailhouse outburst last month, but they have prevailed in their efforts to win a full-scale hearing on the admissibility of DNA evidence, Superior Court Judge Lance A. Ito ruled Monday in a pair of decisions that will frame the pace and order of the trial.

The DNA order virtually assures that opening statements will not begin before early February--some experts, in fact, predict that it could be months before that phase of the trial is under way. The other order means that prosecutors will be forced to try their case without the benefit of Simpson’s impassioned exclamation to Grier, who is an ordained minister, on Nov. 13.

Sources have said that the short comment--a sheriff’s deputy who overheard it testified that it was three to five seconds long and consisted of two sentences--was arguably incriminating but also vague and so stripped of context that its relevance would certainly have been challenged.

Monday, Ito ruled that Simpson waived the privilege that normally protects communications with clergy by raising his voice. But the judge nevertheless concluded that the remark should remain confidential, in part because Simpson had been led to believe that the area where he meets with his lawyers on weekends--the same location where he and Grier met that Sunday afternoon--was private.

“Counsel for Simpson now argue Simpson was lulled into a false sense of security in regard to the confidentiality of his communications in the . . . visiting area,” Ito wrote in his ruling. “Under the highly unusual and apparently unique factual setting in this case, with regard to this single incident, the argument is well-taken.”

The conversation between Simpson and Grier has been the object of legal tussling and public speculation for weeks, but has never played a significant role in the case itself. Even if Ito had allowed prosecutors to learn what the deputy allegedly overheard, it would not have cleared the way for the statement to be introduced at Simpson’s trial.

Although the jailhouse remark has never been much more than a sideshow in the case, DNA test results are a mainstay of the prosecution case against Simpson, who has pleaded not guilty to murdering his ex-wife, Nicole Brown Simpson, and her friend Ronald Lyle Goldman on the night of June 12.

In his brief, three-paragraph order, Ito rejected a novel defense suggestion that jurors be allowed to sit in on the debate over admissibility of DNA test results, a proposal that had offered several strategic advantages to Simpson’s camp but one that legal experts had widely predicted Ito would reject.

Ito did not spell out his reasons for rejecting the Simpson team’s DNA motion. He did, however, direct the court clerk to notify the 24 jurors and alternate jurors who have been sworn in to hear the case that they no longer need to report for service on Jan. 4; instead, Ito ordered that they appear on Jan. 18.

That could be premature, however. Most experts predict that the DNA hearing will be an exhaustive one: Prosecutors have estimated that it will take four to eight weeks, while defense estimates have ranged from a few weeks to several months.

Howard Coleman, the founder and president of a Seattle-based DNA laboratory, said he would expect the hearing to last at least three months.

“The idea that this is going to last five to eight weeks is a fantasy,” Coleman said. “We’re talking about three months minimum.”

The complexity of the coming hearing is magnified by the fact that authorities in the Simpson case have made use of at least four different types of DNA tests in preparing their case--and all the various tests are subject to defense challenge, potentially creating a series of overlapping challenges, each with important implications for the conduct of the trial.

The most established brand of DNA analysis, known as RFLP testing, has been performed on some samples, including blood drops found at the scene of the crime.

RFLP tests have been admitted in evidence and accepted by California appellate courts, and few legal experts believe that Simpson’s defense team will have any success in keeping those results from being presented to the jury. But at least three other types of DNA tests are being performed on samples taken from the crime scene, as well as Simpson’s home and car.

Authorities hope to show that blood from the car or from Simpson’s property came from the victims. If so, it could force Simpson’s team to explain how their client’s possessions came to be stained with blood that shares genetic characteristics with a pair of stabbed and slashed murder victims.

But the various types of DNA tests have some drawbacks. So-called PCR analysis, which is being performed on a number of samples, is especially vulnerable to contamination, and Simpson’s lawyers have argued from the start that authorities mishandled samples, making any findings inherently unreliable.

“Contamination is the Achille’s heel of the PCR test,” Coleman said, while adding that he nevertheless believes that most of the DNA test results offered by the prosecution will be allowed into evidence.

Monday’s orders bring a temporary end to the court action in the Simpson trial. The two sides are slated to return Jan. 4, and Ito has indicated that he would like to tackle the DNA issue first.

Once that debate is settled, the two sides will turn to the admissibility of information about the sometimes stormy relationship between O.J. and Nicole Simpson, who were divorced in 1992. Prosecutors hope to have jurors hear that evidence, but Simpson’s attorneys have downplayed the significance of it and have argued that it is irrelevant to the murder charges that their client faces.

The Simpson Case

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