NEWS ANALYSIS : THE O.J. SIMPSON MURDER TRIAL : Jury Probe Poses an Array of Perils and Paradoxes for Ito : Judge must try to guarantee a fair trial but has to avoid unwarranted influence on panelists’ eventual deliberations.

He may not have had a choice, but there is little doubt among legal experts that when Superior Court Judge Lance A. Ito launched his sweeping probe into the conduct of jurors in O.J. Simpson’s double murder case, he embarked on a process that is unnervingly like a high-stakes version of Dungeons and Dragons.

At the heart of his quest is the judicial grail of a fair trial. But between here and there is a maze of perils and paradoxes in which the line between inquiry and inquisition is sometimes dauntingly thin.

While a judge is unavoidably charged with acting as the guarantor of a fair process, he is precluded by law and custom from unwarranted intrusion into the jurors’ deliberations.

“When Judge Ito opens up the jury box, he is like a doctor doing exploratory surgery; he doesn’t know what he’s going to find,” said Houston-based jury consultant Robert B. Hirschhorn.

Ito decided to launch the probe last week after dismissed juror Jeanette Harris said in televised interviews that jurors had been discussing the case, in violation of the judge’s order; that the panelists are racially divided, and that some of the deputies serving as bailiffs were “promoting” racial divisiveness among the jurors.

“What Ito has to determine is whether the conduct of the jury has been such that either party’s right to a fair trial has been compromised,” said Los Angeles defense lawyer Jill Lansing. “But the paradox is that in trying to do that, he risks compromising those very rights through his intervention. There is legal precedent attesting to the fact that the mere occasion of judicial questioning can compromise a juror.”

Los Angeles defense lawyer Gerald L. Chaleff observed, “Simply asking in a certain way about certain subjects can cause serious problems. For instance, the judge could ask, ‘Are you having problems with any of the deputies?’ Just hearing that question could implant in the juror’s mind the notion that the sheriffs have acted improperly. Who knows what consequence that might have?”

Regardless of the consequences, “Ito has no choice but to go forward with this, because Jeanette Harris has raised serious allegations and they must be investigated,” Chaleff said.

Although it is not uncommon for a judge to question individual jurors after allegations of misconduct have been lodged, legal experts said it is “highly unusual” for a judge to interview an entire jury panel at this stage of a case.

Moreover, there is no road map for a judge in such a situation, according to Ito’s colleague, Superior Court Judge William Pounders. “There is no guidebook. The inquiry has to be sensitive to avoid creating prejudice if none exists. You have to be diplomatic,” he stressed.

Hirschhorn also had some advice for the judge.

“Ito should interview the jurors, not interrogate them,” he said. “For the jurors, going into Ito’s office is like going into the principal’s office, and it seems like everyone that goes in there winds up being expelled. Each of these jurors will be walking in there with this sense of intimidation.

“If he interrogates them, they will shut down,” Hirschhorn said. “If he lobs them some softballs and is a good listener, he will get down to what is really going on. This is tough. I don’t envy him for one moment.”

Initially, Ito said he would question two or three jurors a day for several days. But Tuesday afternoon he reversed field and said he would halt testimony in the case until at least Thursday so he could interview the 12 jurors and six alternates.

The judge made another key decision Tuesday. He rejected defense lawyer Johnnie L. Cochran Jr.’s contention that Simpson had an absolute right to be present when the jurors are questioned about possible jury misconduct.

Deputy Dist. Atty. Marcia Clark had argued that Ito was likely to get more forthright answers from the panelists if the hearing was held in the more intimate setting of Ito’s chambers, rather than in the courtroom, which would have been the necessary site if Simpson were present.

At a sidebar conference Monday, Ito told the lawyers he was inclined to grant Simpson’s request. But ultimately, the judge relied on a 1988 California Supreme Court decision, which held that a defendant does not have a right to be present at all conferences in a judge’s chambers as long as his attorneys are there representing his interests.

Loyola Law School professor Laurie Levenson said the judge’s decision was sound. “The ruling makes sense, because it changes the atmosphere if you have the questioning in the courtroom. The jurors probably would be more reluctant to be candid in the courtroom than face-to-face in Judge Ito’s chambers.”

Lansing disagreed, asserting that the ruling may violate Simpson’s rights to a fair trial. “If a defendant has a right to be present when the jury is selected, then there is no reason not to permit him to engage in the same process at this stage, which is even more critical.

“It seems that the questions these people now will be asked will bear directly on their ability to participate as jurors. These questions are far more important than their educational background or general family histories, which is what’s covered in jury selection,” she added.

Ito started questioning jurors Tuesday afternoon, and it was not immediately clear whether he would make public the records of the probe. Last week, he released a transcript of his interview with dismissed juror Harris.

“If what Harris says is true, Judge Ito has a huge problem on his hands,” Hirschhorn said. “It’s not just cancer, it’s malignant cancer. The trial bomb that is ticking is the racial issue on the jury which Harris discussed. If that is true, that can explode on Judge Ito.”

On the other hand, if jurors have been discussing the case, that is not necessarily an incurable problem, Hirschhorn said. If the discussions have not been extensive, the judge could instruct the jurors again and be more explicit about why they should not be talking about the case until all the evidence is in, he added.

The critical issue is “whether any juror has been influenced by these events in such a way that it would impede their ability to deliberate fairly,” Chaleff said. “Ito is obliged to determine whether or not the jurors are complying with his instructions, because those instructions are the guarantors of a fair and impartial verdict.”

In any case, Ito has considerably greater leeway to question jurors now than if he received complaints once deliberations started. Retired Los Angeles Superior Court Judge George M. Dell said that at this stage Ito still has six alternates and has broad latitude in dismissing jurors, though he does have to be mindful of the dwindling size of the panel and the prospect that the case may last several more months.

“But his leeway is not unlimited,” said University of Texas criminal law professor Michael Tigar. “He can’t try to get rid of a juror based on his perception that the juror favors one side or the other. The parties have invested a great deal in picking certain people as jurors and others as alternates. Appellate courts have insisted that taking people off a jury has to be done for neutral reasons.”

Ito’s jury investigation has a range of possible outcomes, from no action to a mistrial. “At this point, the greatest risk is the possibility of a mistrial,” said USC constitutional law professor Erwin Chemerinsky.

But in order to declare a mistrial, under California law the judge would have to find that something has occurred which undermines the possibility of a fair trial and is incurable, Chemerinsky said. “Potentially, there are many things that could cure problems: One or two jurors could be dismissed; some bailiffs could be replaced; the judge could issue clearer or firmer instructions to the jury,” he said.

“This is a meeting Ito probably should have had with the jurors some time ago,” Chemerinsky said. “He is the one person responsible for the jurors. If they’re experiencing problems of any sort with regard to sequestration, Ito should know about it and try to fix it.”