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THE O.J. SIMPSON MURDER TRIAL : Prosecutors Say Simpson Trick Thwarted Glove Test

TIMES STAFF WRITERS

Prosecutors accused O.J. Simpson of intentionally not taking his anti-inflammation medication in order to confound a glove demonstration and deceive the jury in his murder trial, according to transcripts released Thursday.

“Mr. Simpson has arthritis and we looked at the medication that he takes and some of it is anti-inflammatory,” Deputy Dist. Atty. Christopher A. Darden said during a sidebar conference Wednesday, according to the transcript. “And we are told that he has not taken the stuff for a day, and it caused swelling in the joints and inflammation in his hands.”

Simpson’s attorney, Johnnie L. Cochran Jr., responded by accusing prosecutors of “being paranoid” but did not directly deny the charge.

According to Dr. Ernest Brahn, a UCLA rheumatologist, medications of the kind used by sufferers of rheumatoid arthritis do cause swelling to subside. But halting the medication, he added, probably would not cause the swelling to return overnight.

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“The kind of joint deformities that we see in rheumatoid arthritis can impact on whether a glove might fit,” Brahn said. “But many of the drugs that we administer take weeks or months to achieve their anti-inflammatory effect.”

The bloody gloves--one found at the crime scene, the other found outside Simpson’s house--have dominated the trial for more than a week, ever since prosecutors had the defendant try them on in front of the jury. That demonstration was widely derided as a serious prosecution gaffe when Simpson strained, struggled and then told the jury they did not fit.

Prosecutors have argued that leather gloves often shrink when they get wet and that Simpson was wearing protective latex gloves when he tried on the leather gloves that afternoon. The transcript released Thursday was the first evidence that prosecutors also believe that Simpson plotted to disrupt either that demonstration or a similar one conducted this week.

Lawyers for Simpson, who has pleaded not guilty to the murders of Nicole Brown Simpson and Ronald Lyle Goldman, say the reason for the gloves’ poor fit is simply that they did not belong to their client.

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Prosecutors may return to the issue yet again to present photographs of the defendant wearing similar gloves at football games.

In the meantime, the dispute over the gloves has not only become a dominant issue in the trial but also in the growing tensions between the attorneys.

According to the newly released sidebar transcripts, the argument between Darden and Cochran quickly escalated to the point where Superior Court Judge Lance A. Ito fined them each $250--later reduced to $100. It was the second punishment for both lawyers since the trial began: Cochran has previously been fined and Darden held in contempt.

The latest fines came after several days of escalating rhetoric between Darden and Cochran, once mutual admirers but now increasingly bitter rivals who have publicly traded taunts and insults in recent days. According to the transcripts, Ito’s patience finally seemed exhausted when Darden asked Cochran: “Were you moaning again?”

“Wait a minute,” Ito interjected. “I’ve about had enough of this between the two of you.”

“He started it, Your Honor,” Darden pleaded.

“You are both baiting each other,” Ito said. “You both violated the court’s order. Two hundred and fifty bucks. Both of you, today.”

Darden, who had previously bailed out a colleague when Ito fined him, pleaded poverty. “I am very short today, Your Honor,” he said.

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Exasperated, Ito ended the conversation brusquely. “All right,” the judge said, “I’ve had enough of this.”

DNA Statistics Debated

In court Thursday, attorneys for the two sides waged a complicated debate over the admissibility of certain statistics used to express the significance of DNA test results performed on samples of blood that appear to contain DNA from two or more people. The wrangling lasted all morning without the jury present, and then the questioning resumed late in the afternoon with jurors back in the courtroom.

Deputy Dist. Atty. George Clarke and defense lawyer William Thompson questioned a statistics expert in advance of his appearance before the jury, with Thompson attempting to persuade Ito that the expert should not be allowed to present some of his evidence.

Bruce Weir, a native of New Zealand and a nationally recognized professor of statistics from North Carolina State University, argued vigorously with Thompson, whose criticism of forensic DNA technology is in stark contrast to Weir’s strong advocacy of it. Throughout Thompson’s cross-examination, Weir kept up a running stream of criticism of the attorney, accusing him of shading statistics and trying to mislead the judge.

When Thompson at one point accused the scientist of presenting an argument disguised as statistical analysis, Weir angrily snapped back that “I resent that completely.”

At another point, Thompson apologized for falling into a statistical “trap” and explained himself by saying it was a simple mistake.

Weir icily responded: “I don’t believe it is easy for you to fall into that trap at all, and I’m certainly not going to fall into it by you leading me into it.”

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Smiling meekly, Thompson answered: “I was actually leading you into another trap, sir, but let me proceed.”

Despite the occasionally sharp exchanges, the session was a gruelingly technical one. Members of the audience drifted out of the courtroom, and Simpson asked to be excused, preferring to spend time meeting with his trial lawyers in a nearby lockup than to listen to the testimony about statistics and DNA.

After several hours of testimony outside the jury’s presence--including an appearance by a defense expert who countered some of Weir’s comments--Ito ruled that the statistician could testify in front of the jury.

Weir testified for most of the afternoon, speaking to the jury in precise, methodical tones, his arms crossed across his chest. Unlike some of the previous scientific witnesses’ patient lectures, Weir’s was a prickly presentation that made few concessions to the jury’s relative unsophistication about the complex world of statistical analysis.

As a result, the testimony unfolded slowly and lacked highlights. It was, said UCLA law professor Peter Arenella, “dry as sand and about as digestible.”

Only at the very end of the day did Weir present the much-debated statistics. He told the jury that a drop on Goldman’s shoe contained genetic markers found only in one of 300 million people or more--earlier testimony showed that the markers in that drop matched ones from Goldman and Nicole Simpson. He said bloodstains on the glove found at Simpson’s estate included markers found only in one person out of at least 6 million.

Other drops produced less overwhelming statistics, but suggested that the glove contained a mixture of blood that could have come from both victims and the defendant. Although the statistics supported the prosecution’s theory of the case, the jury already has absorbed dozens of such statistics, and the panelists did not display any obvious reaction to the latest numbers.

Slow-Speed Chase Dropped

Outside court, meanwhile, analysts weighed one particularly intriguing aspect of the prosecution’s recently announced decision to halt their case early, perhaps as early as next week. Because of that move, jurors now may never hear evidence about one of the case’s most memorable moments, Simpson’s failure to surrender to police as promised and the nationally televised pursuit that followed.

Under California law, prosecutors are allowed to tell a jury about a defendant’s flight as evidence that the person was exhibiting consciousness of guilt. Early in the Simpson case, prosecutors had said they would do just that, but now they have changed course, electing to rest their case without ever broaching the topic of Simpson’s conduct on June 17, 1994.

Experts were divided about whether the government lawyers were smart to avoid the events of that day, one that virtually every prospective juror in the case recalled when the panel was interviewed last year.

Harland W. Braun, a defense lawyer and former prosecutor, said on balance it seemed a smart move because it avoided giving the jury potentially sympathetic information about Simpson’s distress following the murder of his ex-wife.

“On an intellectual level, it’s evidence of guilt,” said Braun. “But on an emotional level, it could influence jurors to support him. I think it’s a good decision not to use it because it would just muddle up the DNA and the other stronger aspects of their case.”

But Craig Silverman, the chief deputy district attorney in Denver, said he was puzzled by the move.

“It’s hard for me to understand,” he said. “The slow-speed chase and the circumstances surrounding it are circumstantial proof of consciousness of guilt. I’ve heard people talk about how the defense can argue it their way, but so what?”

The prosecution’s job, Silverman added, is to present a full and truthful case, and omitting such a memorable detail might strike jurors as suspicious.

Outside court, prosecutor Darden said that while prosecutors have elected not to present evidence of the pursuit during their case-in-chief, they still could raise the issue in their rebuttal case. That would depend on whether the defense raised the issue, perhaps by calling Simpson’s friend A.C. Cowlings to the stand.

Said Darden: “We will have to see how the case goes.”

Seeking Juror Transcripts

In court this afternoon, Ito is scheduled to hear arguments from the American Civil Liberties Union and nine media organizations seeking the immediate disclosure of all unreleased materials relating to the dismissal of 10 jurors in the case. Motions by the ACLU and the media organizations seeking release of sealed transcripts on juror issues were filed June 13.

The organizations contend that hearings on jurors are “presumptively public proceedings” to which the public should have access, via transcripts. The ACLU also contends that the “juror dismissals have become a fundamental and critical element of this trial” and that disclosure is needed to reduce unfounded rumors on the dismissals and to restore public confidence in those decisions.

On Wednesday, Simpson’s lawyers filed a motion supporting disclosure, saying that sealing and withholding the transcripts violates their client’s constitutional rights to “a public trial.”

The defense motion noted that dismissed jurors Michael Knox, Jeannette Harris and Willie Cravin “have publicly sought to clear their names by discussing the allegations against them with representatives of the media and, in doing so, have impliedly waived their privacy rights in connection with their disqualification.”

At a hearing last week, defense lawyer Alan Dershowitz asked Ito to conduct an evidentiary hearing on the defense’s charge that prosecutors are targeting jurors for dismissal. Prosecutor Marcia Clark castigated the defense effort as “hollow” and denied that prosecutors were the force behind juror dismissals. Ito took the motion under submission and gave no indication when he would rule on it.

But in his motion, Mirrell and the ACLU argue that those issues are so serious that the public should be allowed to judge for itself, not to merely accept Ito’s ruling.

“The taxpayers of Los Angeles County have every right to know whether their prosecutors are engaged in such acts,” Mirrell wrote. “If they are, the public has every right to demand accountability and to thank the defense for bringing this issue to light. However, if the prosecution has not engaged in such conduct, the district attorney’s office deserves the kind of public vindication that can only come once all the facts are laid on the table. “

Times medical writer Terence Monmaney contributed to this report.


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