NEWS ANALYSIS : THE O.J. SIMPSON MURDER TRIAL : New Positions Emerge on Using Undersized Jury : Defense drops vow to allow a panel of fewer than 12, while prosecution says it is leaning toward accepting such a reduced group.

Will they or won’t they?

One week ago, anybody with a mild interest in O.J. Simpson’s double murder trial knew how both sides intended to respond in the not-unlikely event that the number of available jurors fell below 12:

The former football star’s lawyers repeatedly and forthrightly said they were prepared to proceed, come what may. Dist. Atty. Gil Garcetti insisted that his office would not make a decision until circumstances compelled it.

All that clarity is behind us.

The defense now says that it no longer can commit itself without knowing the smaller jury’s precise composition. And, in any event, it has filed a motion contending that if Superior Court Judge Lance A. Ito reduces the number of jurors below 12 and declares a mistrial Simpson should be allowed to go free.

On the other side, Deputy Dist. Atty. Marcia Clark broke her long silence on the issue Friday, when she said the prosecution is “leaning strongly” toward accepting a verdict rendered by fewer than a dozen jurors.

What does it all mean?

It all started with Ito’s recent dismissal of Willie Cravin, an African American juror whom defense lawyers reportedly regarded as their “insurance policy” on the panel. Simpson’s lawyers vigorously opposed Cravin’s removal. In large part, said a source familiar with the defense’s thinking, that was because lead attorney Johnnie L. Cochran Jr. regarded the 54-year-old postal supervisor “as a certain holdout against conviction. He also thought Cravin was the strong personality around whom the other doubters of the prosecution’s case could gather for strength. That’s all gone now.”

Cravin’s dismissal forced the defense into a searching re-examination of its strategic position, and out of that process has come an evolving understanding of how Simpson’s lawyers might be able to use a mistrial to bar a retrial. This strategy, which was devised in large measure by Harvard law professor Alan Dershowitz, holds that by refusing to consent to a mistrial--or to a jury of fewer than 12 members--Simpson could argue that prosecutors are barred from retrying him by the constitutional protection against double jeopardy.

Dershowitz began laying the groundwork for such a move Friday, when he asked Ito to adopt stringent new criteria for future juror dismissals and demanded that--if the trial ends in anything but acquittal--the judge agree to conduct a post-trial probe of allegations that prosecutors have selectively targeted African American jurors for removal.

Will this one sail?

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Legal analysts are skeptical, but fascinated by the defense’s new tack. Most are dubious about its ultimate success, but all agree that while the tempest-tossed Simpson trial frequently has navigated treacherous legal shoals, this motion takes it into utterly uncharted waters.

UCLA law professor Peter Arenella, for one, believes that some of the defense’s wariness about the remaining jurors may have abated in the wake of Thursday’s dramatic courtroom demonstration during which Simpson appeared to struggle, when asked by prosecutors, to fit his hands into the bloody gloves allegedly worn by the killer of Nicole Brown Simpson and Ronald Lyle Goldman. “Since the glove incident, it’s clear the defense will want this jury to render a verdict, even if it falls below 12,” Arenella said.

Thus, he added, the actual value of the motion Dershowitz argued Friday “is that it puts pressure on Garcetti to consent to a jury of less than 12. The defense has raised the specter of a double jeopardy claim that could bar a retrial if Garcetti refuses to agree and instigates a mistrial.”

Georgetown Law School professor Paul Rothstein raised another possibility. “It’s not entirely clear that the defense can really be taken at their word that they want to complete the case with this jury,” he said. “I think they might like a mistrial and then push a claim of double jeopardy and really put legal, factual, financial and political pressure on the prosecution not to retry the case. Then maybe some kind of plea agreement might be in the offing.”

Former Los Angeles County Dist. Atty. Ira Reiner agreed: “The D.A. can’t wash down the drain millions of dollars and months of testimony to gain a supposed tactical advantage by starting the trial over.” For that reason, he believes Clark’s comment Friday reflects Garcetti’s thinking. “She was not speaking for herself,” he said. “When she stands up in court, you can etch it in stone that she did it at the specific authorization of the D.A.”

When the defense confronts prosecutors with the threat of a double jeopardy claim, said defense attorney Jill Lansing, “it is only doing what it should be doing, which is to prepare itself to go either way--to go forward with fewer than 12 jurors and to protect their client’s constitutional rights if they decide it’s not in his interests to proceed with these jurors.”

But to UCLA’s Arenella, “the efficacy of this strategy is only as good as the merits of the defense’s double jeopardy claim. If the prosecution believes the double jeopardy argument has no merit, then Garcetti doesn’t have to worry about the consequences of a mistrial. It’s a legal chess match.”

And, in such a match, claims of double jeopardy are a controversial gambit.

The 5th Amendment includes the following simple phrase: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

In fact, double jeopardy, which is rooted in Greek, Roman and the canon law of the Catholic Church, is the most ancient procedural guarantee provided in the Bill of Rights.

As Dershowitz argued Friday, a criminal trial is not a Broadway play. Prosecutors don’t get to try out their case in the legal equivalent of New Haven before bringing it to the big city. That means that if Simpson’s lawyers can show that prosecutors illegally targeted jurors for dismissal to force a mistrial--in an effort to get a second shot at Simpson before a new jury--the new trial would constitute double jeopardy.

According to appellate lawyer Dennis Fischer, an authority on the California Constitution, “double jeopardy remains a very powerful argument, even to the most result-oriented, pro-prosecution appellate judges who are such a large presence in today’s more conservative court system. For that reason, I think Simpson’s defense has raised a promising argument.”

But, Fischer said, he has never seen anything “quite like the defense’s motion. It is extraordinary in its breadth, scope and the remedies it seeks--as well as in its allegations of wrongdoing.”

In bringing the motion, Simpson’s lawyers seem to be relying principally on two cases:

One is a 1982 U.S. Supreme Court decision called Oregon vs. Kennedy. In that case, the justices held that even if a defendant moves for a mistrial, he may invoke his protection against double jeopardy only if the prosecutors or the judge had engaged in conduct whose intent was to provoke the accused into seeking an end to the first trial.

San Francisco attorney Dennis Riordan unsuccessfully invoked that case when he sought to prevent the government from retrying E. Robert Wallach in the Wedtech scandal because a prosecution witness had offered perjured testimony.

In the context of the investigation the defense is asking for in the Simpson case, under the Kennedy and Wallach rulings, Riordan said, “the issue would not be whether the prosecution was targeting people to get them off the jury improperly and unethically to help them win the case. What would have to be shown was they were trying to do this to get a mistrial, rather than to win. What it requires is a demonstration that the prosecution thinks they are going to lose.”

Riordan’s co-counsel in the Wallach case, Robert Bork, the former solicitor general who is now a senior fellow at the American Enterprise Institute in Washington, D.C., said that is a very stiff standard: “There’s no way the defense can ever prove the subjective intent of the prosecution. Our argument was that you had to judge their intent from objective circumstances.”

Akhil Amar, a Yale Law School professor, recently wrote a lengthy law review article on double jeopardy issues in the aftermath of the Rodney G. King case. He says the Oregon vs. Kennedy argument “will be very difficult” for the defense to use in the O.J. Simpson case. He emphasized that everything the Simpson prosecutors have done in regard to juror dismissals has been “with the cooperation and ultimate rulings of Judge Ito. It will take a very unusual appellate court to say that Judge Ito is conspiring with or utterly the dupe of the prosecutors.”

Simpson’s lawyers also invoke the state precedent of a case called Ysidoro Larios vs. Superior Court of Ventura County. In fact, in his argument to Ito on Friday, Dershowitz recited a paragraph from that 1979 decision:

“The fact that a juror’s actions or beliefs would provide ‘good cause’ for his replacement if an alternate were available does not mean that there is ‘legal necessity’ for a mistrial where no alternate is available.” In other words, by the logic of the Larios decision, the defense contends that Ito may not reduce the jury below 12 members.

But former Los Angeles County Dist. Atty. Robert Philibosian said the Dershowitz motion “is novel, to put it politely. I don’t think it’s going to get out of the starting blocks. The Larios case does not appear to be on point factually. And Dershowitz is missing the biggest point of all: That is a decision of the Rose Bird court. If this case should get to today’s California Supreme Court, that court has already established a track record of overturning Rose Bird court decisions that do not make sense. This is one of them.”