Witness May Have Opened Door for Simpson Interview

O.J. Simpson’s double-murder trial encountered unexpected legal turbulence Wednesday when Judge Lance A. Ito said a Los Angeles Police Department criminalist’s garbled answer to a prosecutor’s unrelated question may have “opened the door” to admission of the former football star’s tape-recorded interview with police.

Just before the midday break in the trial, Deputy Dist. Atty. Rockne Harmon began to walk Collin Yamauchi, a relatively inexperienced Los Angeles Police Department technician, through the steps he took when he processed blood samples from the crime scene and performed some basic DNA tests.

Yamauchi is a difficult witness for the prosecution because he has admitted that he mislabeled a vial of Simpson’s blood through what he termed “a clerical error.” That mislabeling has become a key element in Simpson’s defense, which hopes to convince jurors that the Police Department’s crime lab is a cesspool of incompetence and conspiracy.

But he and Harmon created far more immediate problems for the prosecution Wednesday when his answer to a prosecutor’s question raised the issue of the tape-recorded statement that Simpson gave LAPD detectives before his arrest. The defense would like to play that tape for the jury not only because it contains exculpatory explanations, but because it essentially would allow the defendant to testify before the jury without exposing himself to cross-examination.

Yamauchi’s blurted comment came as Harmon tried to inoculate him against expected defense allegations that the criminalist’s interpretation of his test results was biased by his belief in Simpson’s guilt.

“Based on what you’ve heard in the media before you did the test in this case, did you have an expectation what the outcome of these tests would be?” Harmon asked.

The defense objected, but Yamauchi was allowed to answer, “Yes. I heard on the news that he’s got an airtight alibi, he’s in Chicago and, you know, it’s his ex-wife and this and that, and he’s probably not related to this thing.”

No sooner were the words out of his mouth than Ito whirled in his chair and called for a sidebar conference during which he said Yamauchi’s response may have rendered Simpson’s statement admissible.

Under a provision of the California evidence code, if one side in a trial introduces material contained in a statement, the other side may seek to have the entire statement placed in evidence so that nothing is presented out of context.

Jurors were quickly hustled from the courtroom and lead prosecutor Marcia Clark, her voice rising to a shout, argued heatedly against the statement’s admission, while Ito repeatedly voiced his concern over the implications of Yamauchi’s answer.

In a deliberately low-key response, lead defense attorney Johnnie L. Cochran Jr. accused Clark of being “hysterical” and insisted that Yamauchi’s answer had opened the door “with a Mack truck. The people have brought this out, and now we think we have a right to put on Mr. Simpson’s entire statement,” he argued.

Clark retorted that Cochran’s characterization of her response was sexist, a contention that the defense lawyer later denied. “If we’d have yelled at the judge like that, we’d be coming out of lockup with O.J.,” he said.

Prosecutors refused to comment on the matter.

“We were handed what basically was a gift,” said Carl Douglas, another Simpson lawyer. “Now, we’ll be able to explore a full and fair airing of everything that was said.”

Both Douglas and Cochran said that during the sidebar conference, Ito told prosecutors that they had “opened the door” to the admission of Simpson’s statement.

But legal experts were skeptical that Ito will rule for the defense on this issue.

Southwestern University Law School professor Myrna Raeder said prosecutors “have a good argument that the only thing that really was elicited from the witness was his state of mind. This doesn’t put in issue the truth or falsity of Simpson’s statement and, therefore, it’s harder for the defense to argue that they should be able to bring in Simpson’s self-serving statement, based on Yamauchi’s belief from the media reports that Simpson was out of town and had an alibi.”

Los Angeles defense attorney Gerald L. Chaleff said that, as he understands the evidence code provision, “it applies specifically to the contents of a statement and is intended to cover the situation that arises when one party wants to introduce part of the statement and the other wants to bring out the rest. It’s designed so that things will not be taken out of context. At first blush, that doesn’t seem to apply to this situation.”

Ito ordered both sides to submit written briefs by 9 a.m. today. After that, Harmon will continue his direct examination of Yamauchi, who is to be cross-examined by defense lawyer Barry Scheck. It was Scheck who conducted the withering interrogation of LAPD criminalist Dennis Fung.

Prosecutors initially had planned to have Yamauchi follow his colleague to the witness stand. But they altered their witness order after the defense manhandled Fung, who supervised collection of evidence at the crime scene.

Exit Montgomery

Earlier in the day, Renee Montgomery, a criminalist with the state Department of Justice’s laboratory in Berkeley and the third scientist to testify concerning DNA testing of the evidence against Simpson, was on and off the stand in slightly more than an hour.

The 29-year-old UC Davis graduate specializes in a relatively new form of DNA analysis called D1S80, which is particularly useful in measuring small or degraded DNA samples. The state lab is regarded as a cutting-edge practitioner of this technique, and Harmon was at pains during his 30-minute redirect examination to rebut defense suggestions that D1S80 is an excessively subjective technology.

At one point, Harmon asked whether Montgomery could alter a test result through “wishful thinking.”

“No,” she replied, with a slight smile.

Defense lawyer Robert Blasier, also a DNA specialist, conducted a brief but sharp re-cross-examination in which he once again sought to emphasize his contention that the D1S80 technology requires analysts to derive subjective interpretations from films containing imperfections, which Montgomery insisted on dismissing as merely “blips.”

But as skeptical as the defense appeared to be concerning Montgomery’s results, her D1S80 analysis produced evidence that bolsters one of the important points that Cochran made in his opening statement to the jury. At that time, Simpson’s lead lawyer told the panel that one of the flaws in the prosecution’s case was that it would fail to show that his client’s blood had been found where it should have been, had he murdered his ex-wife Nicole Brown Simpson and Ronald Lyle Goldman.

In fact, Montgomery testified that of 23 bloodstains tested on clothing worn by Nicole Simpson and Goldman at the time they were killed, 15 showed a mixture of DNA consistent with that of the victims, while none was consistent with that of Simpson. If, as the prosecution contends, the former football star was cut while struggling with one of his alleged victims, one might expect to find some of his blood on their clothing.

At one point, Blasier asked Montgomery whether “15 of those stains indicated mixtures containing [the DNA of] possibly both victims?”

“Correct,” she responded.

“Now, is it also accurate to say that of all of those 23 stains, O.J. Simpson is excluded?” Blasier inquired.

“That’s correct,” the criminalist confirmed.

Assessing the Evidence

With the conclusion of Montgomery’s testimony, the most important of the prosecution’s forensic scientists have wrapped up their presentation of the test results that they obtained from the DNA evidence that forms the heart of the case against Simpson. Legal experts were divided on how to evaluate this critical phase of the proceedings.

“I think that the prosecution’s demonstrative exhibits may be the best I’ve ever seen,” said nationally prominent Miami defense attorney Roy Black. “Those exhibits, combined with the people they put on, made a powerful presentation.

“I think the defense has done as well as they could,” Black said. “But I don’t [think] they’ve made any serious inroads into the prosecution’s testimony. Basically, they’re skirting the issue: They’re not trying to debunk the biology; they’re going back to the collection process, the alleged cover-up. That’s probably a good idea, because these prosecution witnesses have a lot of integrity and their science has a lot of validity.”

Allen D. Hymer, an assistant public defender in Alameda County, recently has handled two felony cases in which DNA played a critical part. In one, he won dismissal of charges against a man accused of capital murder by using results obtained by forensic scientist Edward T. Blake, who also has been working with Simpson’s defense team. In the other case, prosecuted by Harmon, Hymer’s client was convicted of rape.

Hymer said he thought that the DNA evidence presented against Simpson so far has been the strongest aspect of the prosecutors’ case. Their use “of more than one lab was good” because “it boxes the defense in.”

To Hymer, much of the defense’s cross-examination of prosecution scientists was not “particularly effective,” and much of it, he speculated, “must have gone over the jurors’ heads. Their cross-contamination argument won’t hold water because there is too much blood in too many places. If there is cross-contamination, then the control swabs should have shown contamination. The only thing left to them is the conspiracy theory.”

Craig A. Silverman, Denver’s chief deputy district attorney, was the first prosecutor in his state to use DNA evidence against a serial rapist. The defendant was convicted and sentenced to 400 years in prison. In the Simpson case, however, Silverman said the prosecution has used DNA evidence “to the point of overkill. The average person--indeed, the average lawyer--is incapable of grasping all the nuances of this. But I think the DNA presentation in the Simpson case has been particularly boring. I feel sorry for the jury.

“But even if the jury is bored by this,” Silverman said, “it does not mean that they are not being persuaded by it. I personally find it boring but very persuasive.”

More Discovery Complaints

After hearing Montgomery testify Wednesday, the jury spent most of the balance of the morning session cooling its heels while another rancorous dispute over reciprocal discovery and illustrative evidence charts played itself out.

Harmon complained in the sarcastic style that he habitually employs outside the jury’s presence that the defense had failed to turn over a report by one of its DNA specialists, John Gerdes of Denver, though his work was completed almost four months ago. Ito said that if he is shown that Gerdes was instructed not to write a report, he may forbid his testimony.

Defense attorney Scheck then took issue with two charts Harmon planned to use to illustrate Yamauchi’s testimony. That provoked an unusually testy exchange between Ito and Harmon, whose relationship has appeared increasingly strained in recent days.

Scheck alleged that a prosecution chart entitled, “PCR-DNA Typing--Los Angeles Police Department,” was untrue.

“I don’t know what to say, your Honor,” Harmon responded. “Should we have, like, amplicons marching around there?”

A visibly irritated Ito replied, “Mr. Harmon . . . as much as I enjoy your style, I don’t know if you were watching the jury, but when you asked the question, ‘Can amplicons suddenly turn left,’ did you see the look on the jurors’ faces when you said that?”

Harmon snapped back, “You know, I’m old enough to appreciate what I do. And I appreciate your observation, your Honor, and I understand. . . . “

“It has about the same effect [on me], sometimes,” the judge concluded, as he looked quickly away.

The Ripple Effect

Outside the courtroom Wednesday, political fallout from the Simpson case continued to make itself felt. In Sacramento, the Assembly’s Judiciary Committee rejected a bill that would have permitted counties to auction off the rights to televise high-profile trials. The vote was 10 to 3.

The measure’s author, Assemblywoman Paula L. Boland (R-Granada Hills), said her legislation was prompted by the fact that financially hard-pressed Los Angeles County is spending millions of dollars on the Simpson trial, while broadcasters profit by selling advertising on their telecasts of the proceedings.

“The media is making huge gains at the taxpayers’ expense,” Boland said.

Her bill was supported by Los Angeles County officials, but opposed by the California Broadcasters Assn., the California Newspaper Publishers Assn., television networks and the American Civil Liberties Union.

The bill was “without a doubt unconstitutional,” said John Sims, a constitutional law professor at McGeorge School of Law. “This is a tax on a particular segment of the media for the privilege of going about its business of reporting to the public on what’s going on inside that building.”

Meanwhile, the founder of one of Boland’s targets, Court TV President Steven Brill, told a gathering of the Southern California chapter of the American Civil Liberties Union that he expects the Simpson jury to reach a verdict.

“I know that it’s fashionable to assume a hung jury,” Brill said. “Well, I’ll make one prediction today about the Simpson trial. There will be a verdict, and it’ll be a verdict that most people who have watched the trial understand and respect. Just as they did in another notorious TV trial, that of William Kennedy Smith.”

Times staff writer Tim Rutten contributed to this story.