Ito’s Ruling Deals Setback to Defense Theory

Superior Court Judge Lance A. Ito cut off a major defense theme in the murder trial of O.J. Simpson Thursday, ruling that the defendant’s legal team may not elicit testimony about the drug use of one of Nicole Brown Simpson’s friends.

Ito’s ruling was a significant setback for the defense, which for months has been hoping to present alternative theories of how and why the June 12, 1994, murders were committed. Chief among those theories was that the intended target was Faye Resnick, an admitted drug user who had stayed with Nicole Simpson shortly before the murders.

But Ito ruled that defense lawyers could not question Resnick’s ex-boyfriend, Christian Reichardt, about her alleged drug habits, which eventually landed her in a rehabilitation center, where she was staying the night of the murders.

Speaking from the bench Thursday morning before the jury was brought into court, Ito said he was rejecting the defense’s desire to question Reichardt about his ex-girlfriend’s drug habits partly because the Simpson attorneys have never demonstrated that anyone, drug dealer or otherwise, had a motive to kill Resnick.

“I find the offer of proof regarding motive to be highly speculative,” Ito said at the conclusion of a hearing held outside the jury’s presence.

During that hearing, defense attorneys had tried to suggest a motive by arguing that Resnick, who was unemployed at the time, rang up drug debts and that killers might have come looking for her to collect.

“When you buy drugs,” said Simpson lawyer Johnnie L. Cochran Jr., “you generally have to pay for them.”

Deputy Dist. Atty. Cheri Lewis responded by saying that Resnick had only a “nickel and dime” drug habit and accused the defense of torturing logic to try to support a wild theory.

Prosecutors allege that Simpson, who has pleaded not guilty to the murders of Nicole Simpson and Ronald Lyle Goldman, killed his ex-wife after years of trying to control her. Goldman was slain, they say, because he stumbled upon the scene of the attack.

Ito agreed with the prosecution’s characterization of the Resnick evidence, and Cochran said outside court that the ruling was a setback for his client. “Clearly, it’s going to be more difficult,” Cochran said, adding that the defense may seek to have the ruling reversed.

Some legal analysts said Ito’s decision would damage the defense’s ability to float its alternative theory of the crime.

“Obviously, it’s harmful to the defense,” said defense attorney Gerald F. Chaleff. “It inhibits their ability to argue that someone other than O.J. committed the crime by pointing at a particular scenario.”

But Harland W. Braun, a defense lawyer and former deputy district attorney, said there could be some benefits for the defense, particularly if it did not have much evidence to back up its theory connecting Resnick to the crimes.

As a result of the ruling, Braun said, “the prosecution can’t get up and say to the jury: ‘Johnnie Cochran promised you evidence of a drug hit, and he hasn’t produced it.’ That would be misconduct because the prosecutors know he tried to introduce some evidence of this and they blocked. So, if it was very weak evidence, Cochran has benefited from this ruling.”

Contrasting Treatment of Witnesses

With the ruling behind them, Simpson’s lawyers returned to the chain of witnesses describing the defendant’s demeanor before and after the murders. Howard L. Bingham, a renowned photographer--he jokingly described himself as “the world’s greatest,” drawing laughter from the lawyers, audience and jury--was on the same flight as Simpson that night and said he saw nothing unusual.

Stephen Valerie, who sat near Simpson on the same flight, echoed Bingham’s impressions, providing a detailed description of the defendant and saying he seemed calm and relaxed. Simpson read a document while on the jetliner, according to Valerie, who said he took special note of the former football star’s hands, which he said did not appear to be injured.

“I viewed Mr. Simpson’s hands looking for a championship ring,” said Valerie.

Those two witnesses got noticeably different treatment from the prosecution team, which has enjoyed a productive week of cross-examination. Deputy Dist. Atty. Christopher A. Darden aggressively challenged Valerie, a young white business school student, while Deputy Dist. Atty. Marcia Clark gently posed her questions to Bingham, a dignified black man who is best known for his photographs of boxing great Muhammad Ali.

Under questioning from Clark, Bingham acknowledged that he did not know Simpson well, had not paid particular attention to his hands and had only seen him briefly that night. In part, that was because Bingham was sitting in coach; Simpson was in first class.

When news of the seating arrangement first became public, Bingham disclosed with a laugh: “I got a lot of calls saying: ‘Bingham, you’re cheap.’ ”

Jurors chuckled warmly at that remark, and Clark joined in.

By contrast, Darden’s cross-examination of Valerie was testy and pointed. The witness and attorney sparred throughout, with each occasionally signaling disdain through the tone of his questions and answers.

At one point, Valerie referred to Cochran and his colleague Carl Douglas as “Johnnie and Carl,” a comment that the prosecutor pounced on and repeated several times during his examination. When Valerie responded to one question by saying he was trying “to be more precise to help you out,” Darden snapped back: “You mean to help Johnnie and Carl out, don’t you?”

Ito sustained Cochran’s objection before the attorney even could finish stating it.

One potentially intriguing issue that Darden pressed on cross-examination was the shoes Simpson was wearing on the night of the killings. One witness said he seemed to be wearing a pair of tan boots at LAX, but Valerie said he was wearing loafers on the plane. Through his questions, Darden suggested that Simpson might have changed his shoes, consistent with the prosecution contention that the defendant discarded shoes that might have matched prints at the scene.

Despite the sharp tone of his questioning, Darden seemed to want to make amends once Valerie finished testifying. As the witness passed near the prosecution table, Darden shook Valerie’s hand, and Clark stood nearby, smiling at him apologetically.

Several jurors, who were sitting just a few feet from the exchange, noted it with interest.

‘Like He Was Crying’

On Thursday afternoon, Simpson’s attorneys continued their parade of demeanor witnesses--two Hertz employees and a Chicago lawyer--all of whom described Simpson’s appearance after police notified him of his ex-wife’s death.

Throughout, the defense attempted to draw the contrast between Simpson’s warmth before the killings and his distress afterward. Mark Partridge, a lawyer who sat next to the defendant on his return flight the day after the killings, described how impressed he was with Simpson for signing an autograph even in the midst of his apparent grief and confusion.

“I thought what a nice man this was, to do that . . . after the tragedy that was affecting his life,” Partridge said. With that, Simpson turned toward one of his lawyers, Robert L. Shapiro, wiping a hand across his face as Shapiro mumbled consoling words to him.

Clark aggressively challenged Partridge’s account, noting, among other things, that the attorney had compiled eight pages of handwritten notes about his flight with Simpson, and that he had then chosen to copyright those notes. Clark suggested that the copyright was evidence that Partridge hoped to profit from the case, though he said he had not sold his story to anyone.

Partridge came near the end of a long line of demeanor witnesses, including Jim Merrill, a Hertz employee who picked up Simpson at the Chicago airport before dawn June 13. Merrill described Simpson as relaxed and cordial when he first arrived. A few hours later, Merrill said the former football star was frantic and desperate.

“It was cracking,” Merrill said of Simpson’s voice. “It sounded like he was crying.”

Nearly every member of the jury studiously took notes as Merrill described the distraught Simpson. Some would look up for a moment to study Merrill’s face, then quickly return to their note-taking. By day’s end, two jurors had run out of ink in their pens, and Ito commented on the fact that at least one panelist had gone through six of the blue spiral notebooks given to them for the trial.

Although Merrill was the only witness to have contact with Simpson just before and after the call from police--and his testimony generally supported the defense team’s contention that their client was stunned by the news--one aspect of his testimony unfolded poorly for the defense.

Just before the afternoon break in the proceedings, Merrill told the jury that he had rushed to the airport to try to put Simpson’s golf clubs on the flight that Simpson was taking back to Los Angeles that morning. Merrill said he missed that plane but sent them back on another flight.

“Did there come a time when you spoke with [Simpson] again about the clubs?” Douglas asked.

After Merrill responded yes, Douglas asked: “What day was that?”

“That was the following day,” Merrill said. “Tuesday.”

“Did you call him, or did he call you?” Douglas continued.

“He called me,” Merrill said.

That testimony seemed to suggest that--during a period in which Simpson’s lawyers have portrayed him as overcome with grief and confusion--he took the time to call Chicago to check about his golf clubs. Simpson, who up to that point had been following the proceedings with calm interest, suddenly grew agitated. He muttered angrily to Cochran, who placed one hand on his arm in an attempt to calm him.

Clark touched lightly on the topic during her cross-examination, eliciting Merrill’s testimony that he thought it was odd to receive a call from Simpson that day. But then Douglas was allowed to clean up the problem, as Merrill testified that Simpson had called to apologize for treating him rudely the day before.

Dilemma on Cut Evidence

The testimony of the witnesses about their observations of Simpson’s hands raises a curious dilemma for prosecutors; they believe that Simpson suffered a deep cut to the middle finger of his left hand while committing the murders, and the testimony that he had no obvious injuries tends to undermine that.

But those same witnesses also could succeed in raising questions about Simpson’s statement to police--a 32-minute, tape-recorded interview in which he told detectives that he believed he had cut himself while packing to leave Los Angeles.

Moreover, those witnesses are testifying inconsistently with the public statements of Simpson’s attorneys, who say he had several small cuts on his hands before leaving for Chicago.

If they wanted to raise doubts over the defense witnesses’ observations about Simpson’s hands, prosecutors could introduce the defendant’s statement to the police, but legal experts cautioned that doing so could expose the prosecution to other problems. One of those is that prosecutors could not introduce just the portion of the statement in which Simpson said he believed he might have cut his hand while rummaging in his car for a cellular phone.

Rather, the whole statement, including Simpson’s explanations of his whereabouts, would have to be introduced, in effect giving the defendant a chance to speak to the jury without facing cross-examination.

“The whole statement has to come in,” said former Los Angeles County Dist. Atty. Robert Philibosian. “The law is very clear. You can’t pick and choose. That’s why the prosecutors didn’t introduce the statement in their case-in-chief.”

Ito Rejects Challenge to Fuhrman

While the two sides wrangled with witnesses in court Thursday, prosecutors were given another bonus in the form of a written ruling from Ito, who rejected the latest defense effort to challenge the truthfulness of LAPD Detective Mark Fuhrman.

When he testified in court, Fuhrman told the jury that he had never used a particular racial epithet during the past 10 years. But Simpson’s attorneys, relying in large part on an article in Newsweek magazine, accused the detective of giving different answers when prosecutors put him through a practice session before his testimony.

At the request of the defense, Ito interviewed prosecutors and other employees of the district attorney’s office who attended the session. After questioning each of them, the judge concluded there was no evidence that Fuhrman had changed his story.

“The court interviews did not reveal discoverable inconsistent statements,” Ito said in his written ruling. “The court will take no further action [regarding] this particular matter.”

Times legal affairs writer Henry Weinstein contributed to this article.