Ito Interviews Ex-Juror in Misconduct Probe : Simpson trial: Dismissed panelist tells about racial divisions but denies that jurors had talked about the case.

As a prosecution witness continued to flounder on the stand Wednesday, Superior Court Judge Lance A. Ito launched his investigation into allegations that the jury in the murder trial of O.J. Simpson is bickering and divided, sometimes along racial lines.

Los Angeles police criminalist Dennis Fung spent another day on the witness stand Wednesday, but Ito dismissed the jury a bit early and took sworn testimony from an excused juror and a journalist in a closed courtroom. Afterward, several people present said the dismissed juror, Jeanette Harris, told Ito about racial divisions on the panel but denied that she had information indicating that panelists had spoken about the case or that they already had formed opinions about Simpson’s guilt or innocence.

Simpson has pleaded not guilty to the June 12 murders of Nicole Brown Simpson and Ronald Lyle Goldman.

KCAL-TV Channel 9 reporter David Goldstein reported last week that Harris told him some jurors had talked about the case and expressed opinions about it. Goldstein also testified Wednesday and defended the accuracy of his story, although Harris disputed it.

Johnnie L. Cochran Jr., Simpson’s lead trial lawyer, described the session as “very productive” but declined to elaborate. Milton Grimes, the attorney for Harris, said his client spent 35 or 40 minutes on the stand and said she testified that she has “never told anyone at any time that jurors were talking about the case,” which would have violated one of Ito’s regular admonitions to the jury.

Grimes said Harris did remind Ito that about six weeks ago, she reported to him that a juror was overheard remarking that he would ensure a hung jury. That panelist since has been removed, Grimes said.

Although Harris said she was unaware of jurors having come to conclusions about guilt or innocence, Grimes added that his client described testy racial divisions among the panelists. Among other things, Grimes said Harris testified that black and white jurors often disagreed about what movies to watch at night and that white jurors complained that they were frequently outvoted by black counterparts.

Harris told Ito that deputies from the Los Angeles County Sheriff’s Department provided separate movie-viewing rooms, Grimes said. But she related that those in the room where white jurors congregated got first choices of movies, Grimes said. Alleged indignities such as that and others, which Harris described in televised interviews, deepened racial animosities among the panelists, Grimes said his client testified.

In a transcript of a sidebar conference released Wednesday morning before Harris took the stand, Ito seemed to give little weight to an earlier allegation in which she described a white panelist kicking her and stepping on the foot of another jury member, both of whom are black.

“People being outraged and offended by somebody perhaps crossing over them and inadvertently hitting them--I mean, this initially struck me as something so trivial (as) to be unbelievable,” Ito told the lawyers.

Deputy Dist. Atty. Marcia Clark echoed Ito’s reaction and added a dig at Harris by reminding the judge that she “is also the woman who claimed that another juror pushed her.”

But Cochran, who fought unsuccessfully to keep Harris on the panel, warned Ito not to treat her accusations lightly.

“I want to make this as clear as I can,” Cochran told the judge during the sidebar conference, according to the transcript. “I think you should not underestimate this from the standpoint of this case and people’s perceptions.”

After the session, Grimes said Ito seemed to take the kicking incident more seriously after hearing Harris’ testimony about it, especially her characterization of it as part of a disturbing pattern. The woman who allegedly kicked Harris and the other panelist remains on the jury. According to Grimes, his client testified that the same juror also expressed misgivings about being in the company of African Americans.

Harris’ comments after she was released from the jury last week stirred concern and prompted Ito to initiate an investigation into whether the panel was tainted and whether any members of the jury had disobeyed any of his orders--including his admonition not to talk about the case with one another or anyone else. His inquiry and Harris’ remarks--particularly her comments about groups forming within the jury and about deputies allegedly fostering racial divisions within the panel--generated a wave of speculation that a mistrial in the Simpson case is likely.

With so much at stake and with Harris’ comments contradicted in some respects by the statements of two of the other dismissed panelists, experts generally agreed that Ito would almost certainly not declare a mistrial at this point. But they also said it was prudent for Ito to launch some sort of investigation to determine for himself whether jurors had been tainted.

In the transcript, Ito revealed how he intends to go about that. The judge told the lawyers that he intends to start by questioning Harris and the other two members of the panel that she said were involved in the kicking that she described.

Harris was interviewed in a closed courtroom, but Simpson was allowed to attend while she was questioned. Simpson was also permitted to be present when Ito questioned Goldstein.

That ended the first round of Ito’s jury inquiry, but in the transcript from the sidebar conference he added that he intends to question each of the jurors individually over the next several days.

Meanwhile, Fung wound toward the end of his exhaustive cross-examination at the hands of defense lawyer Barry Scheck. Scheck battered Fung with more questions about his actions during the investigation of the Simpson case, suggesting that Fung bungled his record-keeping and that he may have misrepresented when he received a vial of Simpson’s blood.

Using different approaches, Scheck tried to show that Fung received that blood vial on the morning of June 14, not the afternoon of June 13, as the criminalist and Detective Philip L. Vannatter both testified. If Scheck could convince the jury of that, he could raise doubts about both witnesses’ credibility and could expand the amount of time that Vannatter had Simpson’s blood.

The day ended without Scheck completing that line of questioning because the court session ground to a halt over his attempt to grill Fung about a videotape in which Fung and his junior partner, Andrea Mazzola, are pictured walking out of Simpson’s house.

Earlier, Fung had testified that he thought he had carried Simpson’s blood sample to his truck in a metal case, a paper bag or a gray envelope. In the videotape, Fung can be seen holding several paper bags, which Scheck implied contradicted his testimony. But Deputy Dist. Atty. Hank Goldberg disagreed and protested the use of the tape, which he said was sprung on prosecutors during Wednesday’s session.

Responding to the complaint about the tape’s late disclosure, Ito allowed prosecutors to review it overnight before Fung can be questioned about its significance.

The suggestion that police improperly handled Simpson’s blood sample is potentially extremely serious, as it fits together with the defense contention that police could have stained items of evidence with Simpson’s blood during the hours after taking that blood from him June 13.

Scheck hinted at that approach in yet another way Wednesday by eliciting Fung’s acknowledgment that a cabinet where blood samples were stored overnight was left unlocked. Fung tried to clarify that, but clashed with Scheck when he did so.

“The cabinet was unlocked. However, the door to the evidence processing room was . . . “ Fung began.

“Was the cabinet unlocked?” Scheck interjected.

Ito then intervened, ordering Scheck not to interrupt the witness.

Prosecutors have derided the defense argument about allegedly planting evidence as unsupported by any facts and have submitted bloodstained items for tests that the government lawyers maintain will put the defense contention to rest. Sources have said that tests conducted on various items--including a pair of socks from Simpson’s bedroom and blood drops from the scene of the crimes--have not revealed the presence of a preservative that was in the vial used to hold Simpson’s blood.

According to the sources, prosecutors will argue that the absence of that preservative in the various items of evidence proves that police did not use the blood from the vial to frame Simpson. But defense attorneys have suggested that they do not place much stock in the test results. They have, however, sent out items for testing by their own experts.

The suggestion that police could have planted evidence against Simpson reflects one prong of the defense’s challenge to the prosecution case, and Simpson’s attorneys tried to reiterate it Wednesday by suggesting that Fung altered aspects of his testimony to bolster the account given by Los Angeles Police Detective Mark Fuhrman, the central figure in the defense conspiracy theory.

But while the conspiracy angle is the defense’s most provocative position, Simpson’s lawyers also have sought to discredit the physical evidence in a different way, by arguing that it was so badly mishandled that jurors should not trust any subsequent tests of the items.

In particular, Simpson’s team has attempted to undermine the reliability of blood drops found at the crime scene, at Simpson’s estate and inside his Ford Bronco, which was found parked outside his home. Prosecutors have said that DNA tests of those drops link Simpson to the killings.

On Wednesday, Scheck resumed that challenge to the blood evidence, this time focusing on the way blood samples were stored on the day they were being collected. According to Fung, many of those items were placed inside plastic bags which sat in his truck for much of the warm day, exposing them to possible degradation because biological samples can deteriorate if they are allowed to remain wet and warm over a prolonged period of time.

Although the truck has a refrigerator for storing evidence, it does not work well, Fung said, adding that he therefore did not use it.

“It was hot in that truck?” Scheck asked at one point.

“It was getting warm,” Fung said.

“And you did not begin to take those blood stains out of the plastic bags until 6:30 that evening?” Scheck continued.

“Yes,” Fung answered.

The attack on Fung has stretched over four days and reflects the Simpson team’s aggressive challenge to the physical evidence that prosecutors believe will link the former football star to the grisly June 12 murders. Prosecutors began presenting that phase of their case last week, but their initial efforts have been halting, stymied by Scheck’s persistent cross-examination and his successes at eliciting a number of contradictions and admissions from Fung.

Defense lawyers also have maintained that their counterparts are badgering defense witnesses and trying to pry confidential material out of them. But in a motion filed Wednesday, prosecutors denied those allegations, which they called “vicious, baseless attacks.”

In the motion, Deputy Dist. Atty. Rockne P. Harmon denied the defense allegation that he has secured confidential communications between the Simpson lawyers and their experts. Defense lawyers charged that Harmon had discovered the results of tests performed by those experts.

Harmon said he had not, but added that he could infer that the results favored the prosecution since the defense had declined to list the experts as possible witnesses.

“The prosecution is presently unaware what the results of any of the tests performed by the defense are, although the fact that neither of these witnesses have been added to the defense witness list strongly suggests what those results are,” Harmon said.

During an afternoon news conference, Dist. Atty. Gil Garcetti offered his own defense of the conduct of the prosecutors working under his direction--the second time this week that he has spoken publicly about the case. He dismissed the defense attacks on police and prosecutors, calling them part of a consistent campaign to discredit his office’s work.

Garcetti also vehemently denied that prosecutors were targeting certain jurors for removal from the panel--another allegation that the defense has made in a motion and in comments to the media.

“It’s a bunch of b.s.,” Garcetti said.