NEWS ANALYSIS : Ito’s Task: Ruling on Relevance of Domestic Violence

Starting today, Superior Court Judge Lance A. Ito will be called upon to make some of the most challenging decisions he has to render in the O.J. Simpson trial--rulings that could dramatically affect whether the jury views Simpson as an affable former football star wrongly accused or as a longtime wife-beater whose propensity for violence culminated in a murderous rampage.

The hearing on admissibility of domestic violence evidence is of critical importance because to prevail, “the prosecution has to strip away from Mr. Simpson the one major advantage he has over most criminal defendants: That is the difficulty most jurors would have of believing he could commit such horrendous acts,” said one observer, UCLA law professor Peter Arenella.

Simpson is charged with murdering his former wife Nicole Brown Simpson and her friend Ronald L. Goldman on June 12. He has pleaded not guilty.

Although legal motions on the issue remain sealed, the prosecution is expected to try to persuade Ito to admit evidence that Simpson beat his wife in 1989 and on other occasions.

Prosecutors also will ask Ito to allow jurors to hear testimony that Simpson stalked Nicole Simpson repeatedly after they separated in 1992, and allegedly broke down her door in an October, 1993, incident that is the subject of a 911 tape broadcast worldwide last summer.

And they probably will seek admission of testimony from a former boyfriend of Nicole Simpson who told the county grand jury that Simpson had stalked his ex-wife and spied on her as she engaged in a sexual encounter in her condo.

In all, there are “two dozen discrete issues and incidents” that will be debated at the evidentiary hearing, Ito said last week.

Simpson’s attorneys are expected to try to keep such allegations away from the jury, contending that they show nothing relevant about the double murder and would unduly prejudice the jury by falsely suggesting that Simpson had a propensity toward violence.

But prosecutors Lydia Bodin and Scott Gordon, members of the district attorney’s family violence division who were brought in to argue for the admissibility of that evidence, are expected to assert that the incidents show that Simpson had a motive to kill his ex-wife and was in a position to do so.

Such evidence could be critical to buttress a case that is based predominantly on circumstantial evidence--such as DNA tests--with no known eyewitnesses and no murder weapon located. In particular, it would enable prosecutors to present the jury with a coherent narrative of the crime.

Prosecution sources also have indicated that the district attorney’s office will attempt to introduce expert testimony and argue that the murders were the culmination of a history of domestic violence by Simpson. Bodin and Gordon have reviewed numerous academic studies about wife-beating, including a 1992 report done for the Canadian government titled “Woman Killing: Intimate Femicide in Ontario, 1974-1990.”

The defense is expected to argue vigorously against the admission of expert testimony, contending that there is no proven link between domestic violence and murder.

While there is a growing body of research on domestic violence, most experts say it is very difficult to predict which batterers will end up killing their spouses.

“We do know that men who kill their wives generally have a long history of abuse, but many men who have a long history of abusing their wives don’t kill them,” said Jeffrey A. Fagan, associate professor at Rutgers University’s school of criminal justice and co-author of a National Academy of Sciences study on spouse abuse.

But the prosecution will try to get Ito to look backward, Loyola law professor Laurie Levenson predicted. “The prosecution believes the relevant question should be how many people who killed their spouses have previously beaten them, not how many people who beat their wives end up killing them,” she said.

Whatever Ito’s ruling on expert testimony, the prosecution will attempt to introduce as much evidence as possible about the Simpsons’ marital troubles--including the 1989 incident that led to Simpson pleading no contest to misdemeanor charges of wife-beating--and incidents that occurred after they separated in 1992.

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Under California law, evidence of previous “bad acts” cannot be introduced simply to sully a defendant’s character or to show a propensity toward violence. But such evidence can be introduced if it is relevant to showing motive, opportunity, intent or planning.

That legal distinction is often difficult to discern, making the judge’s task thorny, said UC Davis law professor Edward J. Imwinkelried, author of a book on prior-misconduct evidence.

He said the judge has to “play amateur psychologist” and make a determination that jurors will consider information only for a limited purpose--for example, motive--rather than seeing it as part of a pattern that proves a defendant has criminal propensities.

“The essential task facing the prosecution is to convince the judge that they are not simply offering this as ‘bad character’ evidence or evidence that the defendant is a violent person and that increases the likelihood that he committed the violent act alleged against him,” Imwinkelried said.

“The prosecution has to come up with a ‘non-character’ theory of logical relevance” for each piece of this type of evidence it seeks to introduce, he added.

If the judge decides a particular incident is relevant, he then has to determine whether its value as proof outweighs the possible prejudice to the defendant.

In some instances--such as the 911 tape--that could be a tough call for Ito. On that tape, an agitated Nicole Simpson tells a dispatcher that O.J. Simpson is breaking into her house and that she is afraid he will harm her.

“Hearing a live voice of a murder victim, screaming in panic, can be very prejudicial to a defendant,” said USC criminal law professor Charles Weisselberg. Levenson agreed: “The tape is very inflammatory. It leaves a lingering impression on your mind that may be impossible to overcome.”

Weisselberg said that if Ito concludes that the tape is relevant but is worried about it having too dramatic an impact, the judge could rule that the tape may not be played but that the jurors can be given a transcript.

Judges can consider whether the previous acts involved the same victim, when the incidents occurred and how similar they are.

There is no hard and fast rule, but generally incidents close in time to the crime are considered more relevant--and they also are more prejudicial, Levenson said.

In recent years, California courts have made it increasingly easy for prosecutors to introduce evidence of previous bad acts, reflecting the concern of judges “that the rules of evidence have prevented juries from hearing all evidence that really is relevant to their decision,” Levenson said.

Among the cases Simpson’s prosecutors are likely to rely on is People vs. Daniels, a 1971 California Court of Appeal decision, which held that “evidence showing jealousy, quarrels, antagonism or enmity between an accused and the victim of a violent offense is proof of motive to commit the offense.”

The prosecution also is expected to cite a 1986 state Court of Appeal decision upholding the murder conviction of George F. Zack on a charge of beating his former girlfriend to death in Ventura.

Jurors were told that the couple had a stormy relationship, that Zack used force on the woman numerous times, leaving her with black eyes, and that he threatened to kill her if she left him.

Zack’s lawyers appealed, citing an earlier decision that such evidence was only admissible if prosecutors could show a criminal used a “distinctive modus operandi.”

“Given the brutal and unique nature of the murder,” the appeals court ruled, it would be illogical to compel the prosecutors to show such a modus operandi because “one cannot kill the same person twice.”

The defense is likely to argue that the facts of the Simpson case are distinguishable from the Zack case and that the Zack decision should be interpreted as narrowly as possible. The defense attorneys are expected to urge Ito to pay heed to other court decisions that required prosecutors to show a clearer “non-character” link between previous acts and the crime at issue.

Los Angeles defense lawyer Marcia Morrissey said she expects that Simpson’s attorneys would contend that the evidence the prosecution wants to introduce--including the 1989 beating, the 911 call and the stalking allegation--”are all quite different in terms of behavior than what we have involved in the deaths” of his former wife and Goldman.

But defense lawyer Harland W. Braun disagreed: “In this case, the premeditation element is the most important. . . . The prosecution argument is: ‘We have to prove premeditation. How do we show premeditation unless we show there is a long history of run-ins?’ That’s their strongest argument.”