Each Side Tries to Sway Ito on Defense Sanction Ruling

In motions that reflect this week’s acrimonious debate over evidence-sharing, prosecutors and lawyers for O.J. Simpson submitted sharply contrasting suggestions Friday for what the judge should tell jurors when Simpson’s lead defense lawyer resumes his opening statement.

Prosecutors, infuriated by the defense’s late disclosure of more than a dozen witnesses, asked that jurors be told the defense violated a court order, impeded the search for the truth and caused the delay in the trial. Defense attorneys submitted a far milder instruction admitting no intentional wrongdoing and essentially suggesting that jurors merely be reminded that opening statements are not to be considered as evidence.

The competing suggestions came on a day of assorted developments. Among them:

* Simpson’s new book was released in bookstores. Despite critical early reviews, Simpson’s “I Want to Tell You” sold briskly, especially at Los Angeles area bookstores.

* Deputy Dist. Atty. William Hodgman was released from a hospital after being admitted earlier in the week with chest pains.

* A lawyer for Detective Mark Fuhrman refused to issue a public apology demanded by a lawyer representing Simpson attorney Johnnie L. Cochran Jr. for statements that Fuhrman’s attorney made.

* Sources revealed that outtakes from an exercise tape made by Simpson two weeks before the murders have been turned over to prosecutors pursuant to a subpoena and that they contain clips that could benefit either side.

Some of the roughly 18 hours of outtakes feature Simpson raising his arms and ably performing exercises, according to people involved in the production. But in other clips, “he couldn’t get his arms above his shoulders,” said fitness trainer Richard Walsh, who performs with Simpson on the tape.

The tape and the outtakes were sought by prosecutors to rebut the Simpson camp’s contention that the former football star was so weakened by injuries and arthritis that he could not have carried out the June 12 killings of Nicole Brown Simpson and Ronald Lyle Goldman. He has pleaded not guilty.

Amid the various developments Friday, however, the most eagerly anticipated failed to materialize. Superior Court Judge Lance A. Ito had said he hoped to rule by the end of the day on a prosecution request for a 30-day delay in the trial--a request that legal experts believe Ito is highly unlikely to grant. Late in the day, a court spokeswoman said the ruling was not complete.

Cochran had been delivering his opening statement Wednesday when a bitter dispute over evidence disclosures by the defense caused a two-day interruption in the trial and threatened the much longer postponement. Prosecutors accused Cochran and the defense team of intentionally withholding details about more than a dozen defense witnesses and only disclosing them after opening statements were under way--a move Deputy Dist. Atty. Marcia Clark derided as “disgusting.”

Prosecutors then asked for the 30-day delay so they could investigate the newly disclosed witnesses. Although that request struck many observers as unreasonable, especially because a jury is sequestered, Ito also is considering reading a special instruction to the jury about the late disclosures.

Ito asked each side to submit proposals for that instruction, and what he got Friday were strikingly different suggestions. Prosecutors submitted a detailed instruction telling jurors that Cochran had violated a court order to turn over material related to defense witnesses and that conduct such as that “impedes the search for the truth.”

The prosecution also asked Ito specifically to admonish the jury regarding Cochran’s suggestion that some witnesses might not appear in court because they were afraid. Prosecutors say that remark was unfair because it suggested that potential defense witnesses had reason to fear the police and prosecution team.

“Mr. Cochran’s remarks regarding the possibility that witnesses may not appear because of fear were improper,” the proposed admonition stated. “There is no evidence before you that any witness will not appear or testify because of fear. Mr. Cochran’s remarks are stricken from the record, and you are ordered to disregard them.”

Not surprisingly, the proposed jury instruction drafted by Cochran’s office was far less strident, not once referring to misconduct or any violation of court orders and not proposing that any part of Cochran’s statement be stricken. Instead, the defense proposal merely repeats that opening statements are not evidence and that jurors should not consider them evidence. In addition, Cochran pledged to advise the jury that “counsel inadvertently failed to turn over to the prosecution a witness statement in its possession as the discovery rules require.”

Ito did not rule on which, if either, of the proposed admonitions he might read. Prosecutors also have asked for the chance to reopen their opening statement in order to respond to some of Cochran’s remarks.

As prosecutors have fought back against what they consider the unethical and illegal moves by Simpson’s lawyers, they have been hampered by the absence of Hodgman, the senior member of the government team who fell ill Wednesday evening after a stressful court day.

Friday, doctors said Hodgman did not suffer a heart attack or show signs of heart disease, and he was allowed to check out of the hospital. It was not immediately clear when Hodgman would be able to rejoin the prosecution team.

Even without Hodgman, prosecutors continue to amass evidence in their case. The exercise video and the outtakes address one issue raised by Cochran during his opening statement--namely, the contention that Simpson was too restricted physically to carry out the crimes. The outtakes, which prosecutors received recently, also were subpoenaed to see whether Simpson might have made incriminating remarks during the filming.

A Long Island firm that recently bought the rights to the exercise video hopes to capitalize on the O.J. health issue by repackaging the tape, including 30 minutes of subpoenaed outtakes, and re-releasing it in late February or early March.

A lawyer for the firm said Friday that the updated video will include an outtake in which Simpson, during an exercise routine in which he and Walsh perform shadowboxing motions, makes an ambiguous statement about fighting with one’s wife. In recent interviews, Walsh, a veteran personal trainer and former host of a cable television workout show, has characterized Simpson as having made statements “in real poor taste” during the outtakes of the video.

As the two shadowboxed and ran in place, Walsh said, Simpson turned to him and said “something to the effect of, ‘If you hit your wife, you can just blame it on the video.’ ”

Walsh said that Simpson made a similar statement moments later after a brief break in the video shoot.

But Pasadena attorney Marvin Rudnick, who represents Allwork Enterprises, the video distribution firm releasing the tape, released what he described as a transcript of the interchange that was less clear-cut. According to the transcript, Walsh and Simpson are shadowboxing and running in place when Walsh jokes, “O.J., I’m warning you, if you come near me, this left hand. . . .”

A laughing Simpson replies, “I’m telling you, you just got to get your space in if you’re working out with the wife, if you know what I mean. Then you can always blame it on--working out.”

Walsh says about 18 hours of outtakes were made during the video shoot on May 25 to May 27. The killings occurred on June 12.

“A lot of times when you watch the tape his arms are above his shoulders,” Walsh said. “But in some outtakes, they just didn’t work. He couldn’t get his arms above his shoulders.”

At one point on the tape, Simpson explains how office workers can reduce stress.

“I sit down, take some deep breaths, and I think of Mt. St. Helens,” he says. “You know, I think of the explosion and all of that energy building up and I see it exploding and shooting all of the dust and stuff into the air and I just get all of that energy exploding out of me.

“Then I see that dust begin to settle and I see it sitting there. Then I visualize some cool breezes coming and blowing that dust away. Then I see the grass, just a blade of grass, beginning to grow. Then I see a whole hillside, green, coming back in. I know it sounds silly, it sounds a little stupid. But it works for me.”

Meanwhile, as the opposing sides girded to begin questioning witnesses, perhaps as early as next week, lawyers hired by the lawyers continued an acerbic feud over the defense’s attacks on Detective Fuhrman. His lawyer, Robert H. Tourtelot, has wasted few opportunities to blast the defense for its efforts to discredit his client, who testified that he found a bloody glove at Simpson’s house and his since been the subject of withering scrutiny.

Tourtelot has called the attacks on his client part of a “malicious, deceitful and despicable defense strategy,” among other things.

Steven E. Moyer, a lawyer working for Cochran, gave Fuhrman’s attorney until 5 p.m. Friday to apologize “for each and every defamatory statement and/or publication by you.”

But the deadline came and went with no apology from Tourtelot, who called the threat a “humorous attempt to silence me.”

Moyer declined to comment in detail and would not say what his next move would be. But he stressed that Cochran would not be distracted from the Simpson case by the dispute with Tourtelot.

The two sides are scheduled to be back in court Monday morning, at which point Cochran is expected to complete his opening statement. Depending on how Ito rules on the prosecution request for a delay, the prosecution will then either begin calling its witnesses or will be granted time to do additional research.

Times staff writer Jim Newton contributed to this article.