NEWS ANALYSIS : Clash Drags Both Sides to Risky Terrain

Trial watchers in search of a historical--rather than a legal--precedent for Friday’s chaotic and dramatic events in O.J. Simpson’s double-murder trial, might want to consider the battle of Gettysburg.

There, two armies, each maneuvering to outflank the other, stumbled into a series of skirmishes that escalated until they found themselves locked in a decisive battle on ground neither side had chosen.

Something very like that occurred in Judge Lance A. Ito’s courtroom Friday, when the sparring over when and how defense witness Rosa Lopez would testify forced the judge into an unexpected and uncomfortable series of decisions.

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Consequently, most legal analysts agree, Monday’s expected testimony by Lopez, a Salvadoran immigrant formerly employed as a housekeeper by one of Simpson’s neighbors, poses either the greatest opportunity or the gravest risk yet faced by either side.

“It’s not belaboring the obvious to say that we’re looking at a very unusual situation,” said Los Angeles defense attorney Gerald L. Chaleff. “Its importance was enhanced Friday evening when the judge brought the jury into court and told (them) that he had planned to hold an unprecedented nighttime hearing, but that it would have to be deferred until Monday morning.

“When the jury now hears a defense witness testify out of order, they’ll attach an even greater significance to it. Just how great it will be depends to some degree on how Judge Ito explains this event to the jury.

“If Rosa Lopez is a credible witness--and the jury believes her--then having her testify before the prosecution has put on any evidence connecting Mr. Simpson with the crime is a tremendous advantage for the defense. That’s because the jury will be given his alibi, which if believed, totally contradicts the evidence which will follow. The defense seldom gets this kind of break.

“However, if the prosecution is able to destroy Lopez’s credibility during cross-examination, the defense will be exposed as reckless and empty before its own formal presentation ever gets under way.”

But at least one veteran deputy district attorney said that opportunity is far outweighed by the burden Ito’s ruling places on the prosecution. “It’s an interruption that distorts the people’s case,” said Jeffrey C. Jonas, a deputy Los Angeles County district attorney for 27 years.

“We have the burden of proof. We have a game plan,” Jonas said. “Not only is this a major disruption, but you’re allowing in defense evidence before we’ve even gotten to the point of our case. That is a disservice to the people, and I was shocked that Ito did it.

“The bottom line is: We’re at a disadvantage and the judge didn’t protect our rights.”

Much of the significance both sides attach to Lopez flows not only from the timing of her testimony, but also from its nature. “Alibi witnesses are very problematic,” said San Diego defense attorney Elizabeth Semel. “If they work--by that I mean if they’re believable to the jury--it can be the whole ballgame in a case. A credible alibi witness can win you an acquittal all by themselves.”

And prosecutors are well aware of that, Semel said, so they look “for every way to attack them.”

However, as UCLA law professor Peter Arenella pointed out, Ito’s decision “gives the prosecutors only one weekend” in which to do that. Moreover, he said, “Lopez clearly was at the end of her tether Friday. Now she has the opportunity to get some sleep and some coaching from the defense about what to do on the witness stand.”

Even with that help, Arenella said, “this witness is a time bomb that may very well go off in the defense’s face and taint their other efforts to create reasonable doubt in the jurors’ minds.”

Defense attorney Harland W. Braun believes that Lopez’s potential impact makes that a risk worth taking. “All the defense has to do is raise reasonable doubt with this lady. They don’t have to prove anything. If there are jurors inclined to believe O.J. didn’t do it, this would be the perfect hook on which to hang reasonable doubt. She has no personal motive to testify. She’s not a friend of Simpson’s, and she doesn’t stand to gain financially.

“At worst, she is mistaken--or she may be telling the truth,” Braun said.

“There are two competing considerations at work now,” said Los Angeles defense attorney Barry Tarlow. “Having Lopez testify out of order is an extraordinary disruption to the prosecution’s case, which already appears to me to be falling apart. Putting on an effective alibi witness would certainly knock them even further off their stride.

“Now the question is: How adequate an alibi witness is she--or in this case how stable and truthful is she? That is something we’ll only discover when she hits the stand.”

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At least one observer was struck not only by the consequence, but also by the novelty, of Friday’s stunning events.

“This is so bizarre, it’s hard not to feel like we’ve all been beamed to the planet Neptune,” said Santa Monica defense lawyer Gigi Gordon. “Who could blame the prosecutors if they felt like ‘plaintively wailing.’

“If Darden pulverizes Rosa Lopez on cross-examination, then it’s fair to say that the jury probably won’t be waiting on the edge of their chairs to hear the rest of the defense case. But if she turns out to be a great witness, than the jury may not pay much attention to the rest of the prosecution’s case. DNA or not, the game’s over and they might as well pick up their toys and go home.”