THE O.J. SIMPSON MURDER TRIAL : Simpson Juror Dismissed; 4 Alternates Left

Another juror in O.J. Simpson’s double murder trial was dismissed Thursday after Judge Lance A. Ito abruptly recessed testimony and summoned prosecution and defense attorneys to his chambers for a closed-door conference that lasted nearly five hours.

Shortly before 6 p.m., Superior Court spokeswoman Jerianne Hayslett read a statement to reporters gathered outside Ito’s courtroom: “After a lengthy hearing, the court has dismissed one of the jurors. The court will make an order to select a replacement . . . at 9 a.m.” today. She would provide no other details.

Sources familiar with the proceedings said that Thursday’s marathon discussion involved more than one juror and that not all the issues have been resolved.

It was the eighth time in four months of trial that Ito has removed a member of the sequestered jury. His action reduced the original 24-member panel to just 16 men and women--12 jurors and four alternates. When the day began Thursday, the jury included seven African Americans, two Latinos and three whites. Four of the alternates remaining Thursday morning are African Americans and one is white.

“We’re losing too many jurors too fast,” Loyola Law School professor Laurie Levenson said. “It’s troubling that we are nowhere close to finishing the prosecution’s case, and we have only four alternates left. There’s never a chance for this jury to just settle down and get the job done. The composition of the jury keeps changing and that’s a major distraction. The greatest pressure on jurors tends to come at the end of the case, and at this pace we don’t know if we’ll have enough for a verdict.”

Most analysts now expect Simpson’s trial to stretch into late September or October. The former football star’s lead defense attorney, Johnnie L. Cochran Jr., has said his client would accept a verdict rendered by fewer than 12 jurors; prosecutors have not taken a position on the question.

The early-evening announcement of the juror’s dismissal capped an afternoon of mystery after an uneventful morning of testimony during which Deputy Dist. Atty. Rockne Harmon wrapped up his examination of Los Angeles Police Department criminalist Collin Yamauchi. But when reporters and spectators were readmitted to the courtroom after the lunch break, they found the door opening on the corridor to Ito’s chambers closed for the first time in the trial.

A little more than half an hour later, prosecution and defense lawyers emerged from the judge’s chambers. The prosecutors then huddled on one side of the courtroom; defense attorneys left the courtroom and conferred in the hallway. Ten minutes later, the courtroom was cleared and the lawyers rejoined Ito in his chambers, where most of them remained throughout the afternoon.

At 5:50 p.m., prosecutors Marcia Clark and Christopher A. Darden, both appearing downcast, came out of the ninth-floor courtroom and strolled to the elevator. Darden responded to reporters’ questions with the quip, “Get a life, guys.”

Defense attorney Carl E. Douglas--who, like other members of the defense team, appeared more pleased with the day’s outcome--subsequently emerged and said he had been ordered not to comment. Other lawyers involved in the case, who were contacted later in the evening, said that Ito had sternly admonished the attorneys against commenting on the matter. Bailiffs had escorted Cochran and colleague Robert L. Shapiro from the courthouse by a route that would avoid reporters.

Ito has refused to make public his specific reasons for dismissing any of the jurors. Two were sent home in January, one in February, two in March, one in April and two this month. In some instances, the judge said the dismissal was for “good cause.” In one instance, he dismissed a juror, Tracy Kennedy, for “abundant good cause.”

“It’s time to get nervous,” said Robert B. Hirschhorn, a nationally prominent jury consultant based in Houston. “We’re losing jurors at a consistent and now alarming rate.

“If we keep up the present rate--two a month--the curtain comes crashing down,” Hirschhorn said. “The best Ito can hope for now is that he’ll only lose one a month.”

Brief Testimony

The afternoon’s mounting sense of drama contrasted starkly with the by-now routine character of the morning session. Harmon led Yamauchi through a painstaking description of the series of tests he performed on evidence collected from the Bundy Drive crime scene and Simpson’s Rockingham Avenue mansion.

The morning’s most dramatic moment came when Yamauchi donned plastic gloves and carefully opened a series of sealed envelopes, the smallest of which contained the knee-length black socks police say they recovered from Simpson’s bedroom. Other scientists have testified that the socks bear bloodstains containing DNA that matches that of both Simpson and his murdered ex-wife Nicole Brown Simpson.

At one point, Yamauchi and Harmon placed the socks on a piece of paper and laid them in front of the jury, while the criminalist described how he conducted the examination he says revealed the bloodstains. It was an engaging moment for the panel, six of whom stood up and leaned over to view the evidence more closely. One of the alternate jurors, a 72-year-old African American man, asked a question of his own.

“Is that the one with the initials?” he inquired, referring to one of the socks that had been mentioned in testimony.

Toward the close of the testimony, Harmon scored what may have been some personally satisfying points when he elicited testimony from Yamauchi that one of the defense’s most distinguished experts, forensic scientist Henry Lee, did not use anti-contamination safeguards when he viewed evidence in the LAPD’s crime lab.

According to Yamauchi, Lee did not wear a hair net or change his gloves while handling various articles of evidence in the police lab.

Harmon concluded his examination shortly before lunch. But the proceedings recessed before defense attorney Barry Scheck could begin what is expected to be another gruelingly detailed cross-examination.

Simpson’s Recorded Statement

The juror’s dismissal also overshadowed what most observers had expected to be the day’s major issue--whether jurors will hear any part of the statement Simpson gave investigators before his arrest. In papers filed early Thursday, defense lawyers put their shoulders firmly against the door they hope will lead to the admission of parts of a tape-recorded interview their client gave police June 13, the day after the killings. Prosecutors filed a brief opposing introduction of any part of the 32-minute interview.

The issue arose Wednesday, when Harmon asked Yamauchi a question that provoked this response: “Like I was saying, I heard on the news, well, yeah, he’s got an airtight alibi. He’s in Chicago and, you know, that and it’s his ex-wife and this and that, and I go, oh, well, he’s probably not related to the scene.”

After the statement, Ito commented that under the California evidence code, Yamauchi’s mention of an alibi makes Simpson’s statement admissible for purposes of establishing context.

According to a transcript released Thursday, Ito immediately called a sidebar conference in which the following exchange occurred:

“We’ve got a huge problem. We just brought in a statement. I’m going to strike the answer,” the judge said.

Defense attorney Scheck objected: “No, your Honor. Your Honor, I’m not against it. It opens the door to his entire statement.”

Ito: “It does.”

Prosecutor Clark: “Wait, wait, wait.”

Ito: “Proceed.”

The prosecution contends that since Yamauchi made no reference to any statement by Simpson, there is no need to admit the statement. In their brief, prosecutors maintain that Section 356 of the evidence code requires that before the remainder of a statement is admissible, a portion of it must first have been testified to by a party.

“Here, there was no testimony regarding any statement by defendant,” the prosecution’s brief argues. “Mr. Yamauchi testified that he formed his own conclusion that the defendant had an ‘airtight alibi’ because he heard on the news late on the evening of June 13 that the defendant was in Chicago. He did not hear, nor testify to, any statement of the defendant.”

The prosecution brief also stresses that even if a news report used the phrase “airtight alibi,” it could not have been based on Simpson’s statement because its content still was secret. Moreover, prosecutors contend, Simpson did not tell police he was in Chicago at the time of the murders.

The defense motion argues that because of Yamauchi’s testimony, they are entitled to present to the jury those portions of Simpson’s statement required to make the criminalist’s answer comprehensible.

“It makes no difference whether Collin Yamauchi was referring to news reports or to the actual statement of the defendant,” Simpson’s lawyers argue. “The fact remains that an ‘airtight alibi’ is attributed to the defendant. . . .

“The impact upon the jury of leaving this testimony unexplained is readily apparent. They are left to speculate why this alleged ‘airtight alibi’ has not been explained. Is is because it was false? . . . The correct answer, of course, is it’s because the prosecution made a tactical decision to keep it from the jury.

“You can’t keep the defendant’s exculpatory statement from the jury and still offer to the jury a detached and misleading summary of the statement in the form, ‘He’s got an airtight alibi.’ ”

The motion concludes by saying: “Considerations of fair play fully justify the admission of the relevant portions of the defendant’s recorded statement which are necessary to make Mr. Yamauchi’s detached declaration, ‘He’s got an airtight alibi,’ understood by the jury.”

Neither the defense nor the prosecution motion makes any reference to portions of Simpson’s statement that are potentially harmful to him. Among those are Simpson’s statement to the officers that he was last at his wife’s condominium a week before the murders and that nothing occurred on that occasion to account for any of his blood being found at her residence.

More Books

The dismissed juror was not the only former panel member to make news Thursday, as the literary cottage industry that has sprung up around the Simpson trial spewed out two new items that seem bound to stir further controversy.

Roy Innis, the 60-year-old national chairman of the Congress on Racial Equality, told The Times that he will contribute a preface for the book ousted Simpson juror Michael Knox is writing about his experiences during the trial. According to Innis, who says he has read a first draft of Knox’s manuscript, the former juror reveals that he was dismissed from the panel for concealing the fact that he once was arrested on suspicion of kidnaping.

However, Michael Viner, president of Dove Books, Knox’s publisher, said that even though the former juror was arrested 12 years ago in San Diego, he was never charged. “He had a fight with his girlfriend at work,” Viner said. “He shoved her into the car” and drove her to his house. The police were called and Knox was arrested. However, his girlfriend decided not to press charges.

Like Knox, Innis is an African American, though his increasingly conservative views on race are considered controversial within the civil rights movement. “I’m very impressed with Knox’s frankness about why he withheld the information about his arrest for kidnaping that got him kicked off the jury,” Innis said in a telephone interview.

“He, too, had a strong desire to get on the jury. He had his racial phantoms. There was a sense in him of knowing that the cops in L.A. could have framed O.J.,” the CORE chairman said.

Innis went on to contrast Knox’s analysis of the role race may play in the jurors’ deliberations with that of another former panelist, Jeanette Harris. She has described a jury polarized along racial lines and has deprecated the prosecution’s case against the former football star. According to Innis, on the other hand, Knox believes “the prosecution has put on an effective case, which is not to say it couldn’t be rebutted. It’s so unfortunate that this young man could not stay on the jury to go through the whole process.”

Innis said Knox will “give a more objective, straightforward objective picture of that jury culture. He is not a guy who is sparing himself. He is talking about his racial demons, which came up at various times while he was on the jury.”

Viner said he hopes Knox’s manuscript will be finished “by the weekend,” and that the book will be published in late June. According to sources, the manuscript contains the first names of all the remaining jurors.

Thursday also was the day HarperCollins began distributing advance copies of the latest Simpson book--”Kato Kaelin: The Whole Truth,” by free-lance writer Marc Eliot. The author claims that he tape-recorded interviews in which Brian (Kato) Kaelin, Simpson’s former guest house tenant, contradicts his trial testimony on a number of points.

Kaelin said on the stand March 28 that he did not have a pending book proposal and did not “want to do a book.” According to Eliot, he and Kaelin had “spent six months working . . . together” on a book. Eliot also writes that “early in March, nearly three weeks before Kato took the witness stand, I had put the finishing touches on ‘Star Witness: My Life With Nicole and O.J. Simpson.’ ”

The writer maintains that Kaelin “had that same night given his final approval to the manuscript.”

Most of the other “contradictions” might be more accurately characterized as evasions or reticence rather than lies:

For example, Eliot contends that Kaelin’s testimony was not forthcoming about what Simpson told him happened at his daughter Sydney’s dance recital on the afternoon of the murders. After Kaelin testified that Simpson commented about Nicole wearing a tight dress at the recital, prosecutor Marcia Clark asked the witness whether he had any other conversations with the former football star, and Kaelin responded that he asked Simpson if he could “take a Jacuzzi.”

According to the book, Kaelin told Eliot that “O.J. then went into a litany of complaints about what had gone wrong, beginning with the fact that Nicole had failed to save a seat for him, which resulted in his having to sit on the other side of the auditorium. After the show, he was not allowed by Nicole to visit either Sydney or Justin, and according to Kato, he was not included and he was upset. If there was anger, it was because she wasn’t going to let him see the kids. At that point, O.J. went up to Nicole and said, ‘What are you doing? I want to spend time with my kids.’ ”

Clark also asked Kaelin about a conversation he had with Simpson outside the defendant’s Rockingham house, while Simpson waited for his airport limousine to be loaded. Kaelin testified that he told Simpson about the noise he heard outside his guest house and that he wanted to investigate, but had “a lousy flashlight.” Then, Kaelin said, he and Simpson went into the house to look for a better light. At that point, Simpson realized he had to leave for the airport and the search for the flashlight was abandoned, according to Kaelin’s testimony.

In his book, however, Eliot says that “O.J.’s eyes lit up and his head went back as if he were surprised,” when Kato told him about the thumping noises. Simpson then told Kaelin “we better check on it. . . . To Kato, this seemed extremely odd behavior which he would later describe as ‘bad acting.’

“In my head I said to myself, ‘Why? I don’t understand, a minute ago O.J. was rushing to make his flight. Now suddenly, he wants to search the premises.’ ”

Neither Kaelin’s attorneys nor the prosecution or defense had any comment on the book.

The prosecutors currently are contemplating whether to recall Kaelin to the witness stand. Legal analysts say that is a delicate choice. Among the factors that the prosecutors have to weigh is whether Kaelin helped or hurt them with his testimony. Although Clark was angry enough with Kaelin to declare him a hostile witness, much of his objective factual testimony was helpful to the prosecution.

“If I were a prosecutor I would stay as far away from Kaelin as possible,” said Levenson, of Loyola Law School. “In his initial testimony he did say that there were blood drops in O.J.’s foyer before he gave a blood sample to the police and also that he heard a knock on his wall about 10:40. Finally, he cannot provide an alibi for O.J.

“If you call Kaelin back now, the jurors won’t know what to believe.”