Sources Say Ito Will Drop ‘Moral Certainty’ Jury Rule

In what could be a significant victory for the prosecution, Superior Court Judge Lance A. Ito has told lawyers in the O.J. Simpson case that he plans to drop a requirement that prosecutors prove Simpson’s guilt “to a moral certainty” to win murder convictions, sources told The Times.

Ito made known his plan to drop the phrase from a standard jury instruction during a closed-door session with lawyers from both sides, the sources said.

Prosecutors and defense attorneys contacted late Thursday would not discuss what Ito decided to do on the issue, and the judge is expected to announce today what his instructions to the jury will be.

The prosecution had sought to delete any reference to “moral certainty” from the jury instructions, and the defense had fought to keep it in, according to court papers.

Jurors in criminal cases in the United States have been instructed for nearly 150 years that a conviction should be based on a finding that guilt had been established “beyond a reasonable doubt and to a moral certainty.”

The latter part of that phrase, however, has come under attack in recent years, and non-binding opinions critical of it were issued last year by both the U.S. and California supreme courts.

Legal experts said Thursday that the recent high court opinions paved the way for Ito and other judges to do away with the phrase because it has the capacity to confuse jurors, making them think that a defendant’s personal morality is more at issue than the facts presented to them.

If Ito has decided to do away with the phrase in the Simpson case, said Loyola law professor Laurie Levenson, it is a “very, very prudent move and the wise course to take.”

The action would “not have the power to bind other courts,” Levenson said, but she added that it would have a far-reaching effect on judges who have been sitting on the fence on the issue.

Simpson has pleaded not guilty in the June 12 murders of his ex-wife Nicole Brown Simpson and her friend Ronald Lyle Goldman.

In discussing the issue of jury instructions, experts said they are not surprised by Ito’s apparent decision to delete the “moral certainty” phrase because, as one said, it is vague and evokes a “gut” response rather than one based on the evidence.

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In the past, it has been defense lawyers who objected to the term, legal experts said, because it was felt to be biased against defendants.

In the Simpson case, said UCLA law professor Peter Arenella, the defense could benefit if the phrase remained in the instructions because jurors might think in moral terms and “acquit if they have any doubts or unanswered questions.”

The phrase “to a moral certainty” has been part of standard jury instructions since at least 1850, Levenson said.

In a motion seeking its deletion, prosecutors in the Simpson case quoted a 1994 U.S. Supreme Court opinion in which justices voiced reservations about the phrase but did not require state courts to stop using it.

The justices noted that the common meaning of the phrase has changed over the years. They also concluded that jurors could construe it to mean that they could employ a standard of proof lower than the law requires or that they could consider anything other than the evidence presented in court.

After that opinion was published, the California Supreme Court reached the same conclusion, again without explicitly changing the rules.

“Although modifying the standard instruction is perilous and generally should not be done,” the state court wrote, “today it might be more perilous for trial courts not to modify it in a narrow and specific manner.”

The same reservations voiced by the high courts have been increasingly debated in the legal community for at least a decade, said USC law professor Edwin Chemerinsky.

“It has caused some states to drop ‘moral certainty’ language,” he said. “In California, I have heard that judges have dropped it in certain specific cases.”

In its motion, the defense did not explain why it is seeking to retain the “moral certainty” phrase in the instructions, and it did not explain its reasoning.

Johnnie L. Cochran Jr., who has emerged as the lead courtroom attorney on the Simpson defense team, used the term repeatedly during oral questioning of jurors in an attempt to make sure that the then-potential jurors understood the standard of proof required of the prosecution.

Cochran could not be reached for comment Thursday, but another lead defense lawyer, Robert L. Shapiro, said the use of the term is proper.

“We think it’s a clarifying term that has been used in every criminal case since I have been practicing law and since Johnnie Cochran has been practicing law,” Shapiro said. “We’ve talked to the jury about it in voir dire. We think that’s the best way to explain what reasonable doubt is.”

In the motion, the defense also asked Ito to give the jury special instructions on DNA evidence and DNA matches, but it could not be determined how the judge would rule on that issue.

DNA evidence involving blood and hair samples found at the murder scene and at Simpson’s Brentwood estate are expected to figure prominently in a case in which there are no known witnesses to the crime.

The defense might want Ito to instruct the jury that the statistical accuracy of so-called DNA matches is a matter of debate, Arenella said.

In addition to resolving the jury instruction issues today , Ito is expected to announce if he will sanction the prosecution because it dragged its feet in informing the defense about scores of witnesses it plans to call.

Another issue that Ito must resolve before Monday, when opening statements are scheduled to begin, is what, if anything, the lawyers will be able to say in their presentations about Detective Mark Fuhrman of the Los Angeles Police Department.

The detective testified during Simpson’s preliminary hearing that he found a bloody glove at the rear of one of Simpson’s guest houses that matched a glove found at the murder scene two miles away.

Since the preliminary hearing, Simpson’s lawyers have aggressively challenged Fuhrman’s credibility and hope to be able to raise questions about it before the jury.

Specifically, the defense wants the jury to hear about racial slurs the detective allegedly made as part of a disability hearing more than a decade ago, racially derogatory statements he allegedly made to a South Bay real estate agent, and his alleged improper actions during the arrest of a robbery suspect in 1988.

Ito has said in court that he is not inclined to admit statements that Fuhrman allegedly made to two city psychologists on separate occasions or the allegations from the 1988 incident.

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Ito indicated, however, that he might rule in favor of the defense on the alleged comments made to the real estate agent, who provided the defense with a written statement after she learned that Fuhrman was involved in the Simpson case.

In that statement, Kathleen Bell said she met Fuhrman in 1985 or 1986 while visiting a Marine recruiting office in Redondo Beach. During a conversation, she said, he told her of a distaste for interracial relationships and of his willingness to frame people involved in them. Bell said he used a racial slur used to denigrate black people.

Fuhrman has denied vehemently that he used racial slurs in interviews with the psychologists or with Bell or that he made other comments she attributed to him.

His lawyer repeated those denials Thursday at a news conference called to refute television reports linking him romantically to Nicole Brown Simpson.

“That totally infuriated Mark,” Robert H. Tourtelot said of the allegation made in the program “A Current Affair” that Fuhrman met Nicole Simpson for coffee once a week and that he stopped by her home frequently to make sure she was OK.

“It’s obviously had an effect with his wife, and it’s absolutely untrue. It’s a vicious lie,” Tourtelot said. “The story was a rumor six months ago, and it was checked out by everybody.”

Times staff writer Ralph Frammolino contributed to this story.

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