Ito Rejects Bid to Reopen Issue of DNA Credibility

After a week of mostly bad news for the prosecution in the murder trial of O.J. Simpson, Superior Court Judge Lance A. Ito handed the government team an important victory Friday by denying the defense the right to challenge the scientific credibility of DNA tests conducted in the case.

The DNA rulings were handed down late Friday afternoon on a day in which the judge and lawyers were confronted with a new chapter in the running public commentary by an excused juror, Jeanette Harris. Harris reappeared on television Friday to clarify descriptions of her statements by KCAL-TV Channel 9, the station that has offered her a platform for much of the week.

Among other things, Harris detailed animosities among jurors and what she described as racially disparate treatment by the Los Angeles County sheriff’s deputies entrusted with monitoring the sequestered panelists.

While Harris’ controversial statements have dominated public discussion of the Simpson trial for two days, Ito’s actions on Friday are likely to have a more substantial and lasting impact on how the trial unfolds.

On Jan. 4, Simpson and his lawyers waived their right to challenge the scientific validity of DNA tests, but in a recent motion renewed some of their objections. If they had prevailed, it could have resulted in a long halt to testimony before the jury while Ito considered the validity of certain DNA tests.

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Legal experts had given the defense little chance of winning that motion, and Ito’s ruling resoundingly rejected the novel attempt by Simpson’s lawyers to revisit the issue, at least in order to challenge test results that came back after Jan. 4. When Simpson waived his right to a hearing at which his lawyers could have challenged the foundations of DNA testing, he gave up the right to later raise that same issue, Ito ruled.

“The defense’s argument that their waiver of a pretrial . . . hearing applies only to DNA tests completed up to the time of the waiver is not persuasive,” Ito said in his ruling.

At stake Friday were batteries of DNA tests known as RFLP and PCR--two types of the testing that have been used throughout the investigation. Under Ito’s ruling, the prosecution may introduce those test results, and the defense may not question the scientific validity of those two types of DNA testing.

Simpson has pleaded not guilty to the June 12 murders of Nicole Brown Simpson and Ronald Lyle Goldman, but the prosecution has said that DNA test results will tie him to the scene of the crime. According to prosecutors, blood drops at the crime scene have genetic characteristics matching those of O.J. Simpson, while blood from his car and estate resembles that of the two victims.

Deputy Dist. Atty. Marcia Clark referred to many of the DNA test results in her opening statement, saying repeatedly that various tests “matched” Simpson’s blood or that of the victims. Simpson’s lawyers later objected to that term, saying that a DNA test result only yields a statistical probability that a sample came from a particular person and cannot ever definitively “match” that person.

Ito ruled Friday that while prosecutors would be required to submit evidence about the statistical significance of any “match,” use of that term is not improper.

Although Ito’s DNA rulings strongly favored the prosecution, the judge did find that the government lawyers must still demonstrate that the DNA tests in this case were performed properly before introducing the results into evidence.

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Moreover, although Ito did not rule on a prosecution request to limit the cross-examination of the government’s expert DNA witnesses, he did clear the way for Simpson’s lawyers to pose some difficult questions to the deputy medical examiner who performed the autopsies on the two murder victims.

Simpson’s lawyers will be allowed to ask the examiner, Dr. Irwin Golden, about mistakes he made in two prior autopsies, both of which involved his misidentification of wounds. Ito will not, however, allow the defense to pose more personal questions to Golden, who on July 21 allegedly brandished a gun--whether it was a real or fake one is disputed--and said: “We ought to kill nine or 10 of those lawyers.”

Defense attorneys alleged that Golden’s remark was directed at them and indicated his bias against Simpson. Prosecutors responded by saying that the comment was a joke and that it reflected a general social distaste for lawyers, not a specific bias against the defense team.

Johnnie L. Cochran Jr., Simpson’s lead trial lawyer, welcomed Ito’s ruling allowing the defense to question Golden about his past mistakes, saying he considered it “very appropriate that we be able to cross-examine him fully on other instances where he has failed to properly diagnose cause of death and has been accused of other mistakes.”

But Cochran said the defense disagreed with Ito’s prohibition on posing questions regarding the alleged gun incident. He declined to comment on Ito’s DNA rulings, saying he wanted to consult with Simpson’s DNA specialists first.

The defense has mounted a multilayered challenge to the physical evidence in the Simpson case, suggesting that police may have planted some of it while at the same time attacking the collection of it as so sloppy that any results of subsequent tests should not be trusted.

Although Ito’s ruling limits the defense’s ability to mount yet another attack--curbing its room to argue to the jury that DNA testing itself is unreliable--it does nothing to limit the other approaches, which the defense has used to score potentially important points in recent days.

While the courtroom remained dark on Friday, the case was still generating controversy with the latest appearance on KCAL by the dismissed juror, Harris.

This time, she denied reports by that station that she had said during an off-camera interview that jurors were talking about the case and that some panelists had made up their mind about the verdicts. Although the station stood by its story, Harris stressed that she has no evidence of jurors discussing the case among themselves or with outsiders--only that there were opportunities for them to do so.

“I never said that I personally heard any of the jurors talking about the case,” she said, adding that she had spoken with Ito’s office to clarify her comments. “I have no knowledge of any jurors talking about the case. The only things that I said were possibilities, that the possibility did exist.”

Harris was dismissed from the jury for allegedly failing to disclose a past incident of domestic abuse, an allegation she denies. In a 1988 request for a restraining order, she accused her husband of shoving her and forcing her to have sex with him.

But she has defended her failure to mention that on her jury questionnaire by saying that she did not remember the incident described in the court papers and by stressing that her husband never struck her, so she did not consider herself a domestic abuse victim.

“If there was to be a questionnaire right this very moment, I would say no,” she said. “I’ve never been a victim of domestic violence.”

In her most recent appearance, Harris, who has become the latest person to occupy the roving spotlight of the Simpson murder trial, stepped up her criticism of the Los Angeles County Sheriff’s Department, saying that deputies gave white jurors preferential treatment.

She backed up that allegation by accusing the deputies of allowing white jurors more shopping time at a pair of local stores, Target and Ross, during a recent jury outing.

“There are little things, like I said, that added up,” she said. “For example, we went shopping the other day at Target and Ross. . . . A couple of the white females got up and went into the hallway with the sheriffs, and as they were coming back, we could hear them saying: ‘OK, you can go 30 minutes to Target, 30 minutes to Ross.’ So we were sitting there and we said: ‘Well, why is it that we can only go to one or the other, and they can go to both?’ ”

Even more galling, said Harris, deputies stopped her and other jurors from shopping after an hour, while the two white women were allowed to continue for another 30 minutes.

Harris acknowledged that the complaint might sound trivial, but said it was just one example of disparate treatment by the sheriff’s deputies responsible for protecting the jury. She also said deputies gave white jurors different telephone privileges, among other things.

“After day after day after day after day of things of that nature, it gets on your nerves,” she said. “It makes you angry.”

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Sheriff’s Department officials have denied any disparate treatment of the jurors, but some of the deputies guarding the panel and working in Ito’s courtroom have been criticized by reporters, lawyers and others for their brusque manner. Friday, the Sheriff’s Department declined comment, saying only that Ito was investigating allegations raised by Harris.

Harris also described a brief litany of childish behavior by jurors, including one white juror whom she accused of kicking her and stepping on another juror’s toes as she passed her in the jury box. Harris said she sent a note to Ito about that incident, but never heard back.

Ito did adjourn court one day with a special admonition to the panel, urging them to treat each other nicely.

Although Harris’ latest remarks keep the Sheriff’s Department on the spot, they may reduce the fear of a mistrial in the case, as her most recent comments make it clear that she is not accusing other jurors of violating Ito’s orders.

In her initial interview, Harris expressed sympathy for Simpson and some disdain for Denise Brown, the sister of murder victim Nicole Simpson. Harris said Brown, who broke down in tears several times on the witness stand, “did things that came across as ‘I’m acting.’ ”

Harris also questioned Los Angeles Police Detective Mark Fuhrman’s credibility and spoke glowingly of the defense lawyers, particularly Cochran. But in her latest appearance, Harris stressed that she had not made up her mind about Simpson’s guilt or innocence.

“The burden of proof is on the prosecution, and that’s where I stand,” Harris said. “He walked in an innocent man. And to this point, as far as I’m concerned, in my opinion, which I’m entitled to, which does not make me racist, he’s innocent until they prove him guilty.”

Harris’ dismissal from the jury and her subsequent stream of comments prompted Ito to launch his own investigation to determine whether the remaining panelists are tainted.

Friday, Cochran said he had not yet been apprised of the status of that investigation.

“We’ll know more about the judge’s investigation next week,” he said. “The problem is how do we have the Sheriff’s Department investigating the Sheriff’s Department. . . . There is something wrong with that. There needs to be an outside, independent, unbiased agency doing this.”

There was no court session Friday, but the cancellation was unrelated to that probe or to Harris’ dismissal. Rather, three jurors were recovering from bouts with “stomach flu.” According to a spokeswoman for the Superior Court, the prognosis for all three panelists was good and their condition was improving. No other jurors have reported feeling ill, she said.

Court is scheduled to resume Tuesday with the cross-examination of police criminalist Dennis Fung, who already has admitted that the crime scene investigation was less than perfect and has acknowledged that evidence in the case might have been compromised as a result.

Prosecutors may also press their effort next week to put a member of Simpson’s legal team on the witness stand. Robert Kardashian, a lawyer and longtime friend of Simpson, was seen carrying a bag away from Simpson’s estate on June 13, the day after the murders.

Prosecutors want to question Kardashian about what he did with that piece of luggage, as well as Simpson’s golf bag, which Kardashian allegedly picked up from the airport. Kardashian is resisting the government’s attempt to have him testify, however, and in a motion unsealed Friday, his lawyer argues that prosecutors actually want him to take the stand in order to embarrass the defense team.

“It is . . . clear that the prosecution seeks to call Mr. Kardashian, not to elicit facts to present to the jury, but rather to have the opportunity to attack his credibility and at least implicitly therefrom attack the credibility of the entire defense team,” Kardashian’s attorney, Janet I. Levine, said in her motion.

Although Kardashian was not an active member of the bar when the murders took place, he has reactivated his status and is now a member of the Simpson defense team whose conversations with Simpson are therefore privileged, Levine added. To bolster that argument, she included a copy of a recent photograph from New Yorker magazine in which Kardashian and two of Simpson’s better-known lawyers, Cochran and F. Lee Bailey, are pictured in Cochran’s offices.