Key Ruling Expected in Simpson Trial : Courts: Panel of North Carolina judges to decide whether a professor will take the witness stand to testify about alleged racial slurs by LAPD Detective Mark Fuhrman.

Three North Carolina appellate judges are expected to render a decision as early as today that could affect the outcome of the O.J. Simpson murder trial--and even the credibility of the ultimate verdict.

At issue is Simpson’s appeal of the ruling of a Winston-Salem trial judge who refused to order North Carolina screenwriting professor Laura Hart McKinny to testify in Los Angeles and produce audiotapes of conversations in which Los Angeles Police Detective Mark Fuhrman used the word “nigger.”

Legal experts are sharply divided on Judge William Z. Wood’s decision.

“The judge did the right thing,” said former Los Angeles County Dist. Atty. Robert Philibosian, calling the detective’s remarks to McKinny “absolutely collateral to the question of Simpson’s guilt or innocence.”

But Los Angeles defense lawyer Harland W. Braun decried it as a terrible ruling. “Right now, I think Simpson is guilty and should be convicted,” he said. “But he should not be convicted if North Carolina withholds evidence that bears on his defense that Fuhrman is a racist and a liar who is trying to frame him.”

The clash involves volatile racial issues and legal arcana stemming from a 1937 law designed to facilitate the ability of states to secure the testimony of witnesses outside their borders without imposing undue hardships on those individuals.

Two legalistic words-- material and collateral-- bracket the debate. In a nutshell, the principal issue is whether Fuhrman’s alleged lie on the witness stand, when he said he had never used the word “nigger” in the past decade, is sufficiently important--”material”--that McKinny should be ordered to come to Los Angles with her tapes, which were recorded between 1985 and 1994. Then, Superior Court Judge Lance A. Ito would determine whether Simpson’s jury should get to hear them.

But on July 28, Judge Wood agreed with McKinny’s position, argued by Century City lawyer Matthew H. Schwartz, that the tapes are “collateral,” meaning they do not shed light on Simpson’s guilt or innocence.

In a similar legal dispute, a North Carolina appeals court last year upheld a trial judge’s order that Rhonda Mapp, a member of the North Carolina State women’s basketball team, testify before a New Jersey grand jury investigating point shaving by members of the college’s men team, despite her denials that she overheard a conversation about the matter.

Loyola Law School professor Laurie Levenson says the authorities seeking Mapp’s testimony had a stronger case than Simpson’s lawyers because she allegedly had direct knowledge of guilt. Others disagree, however, noting that Mapp was ordered to testify even though no case had been filed yet.

Schwartz acknowledged that there are few decisions offering guidance on what “material” means in the context of the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings. But in his brief urging the North Carolina Appeals Court to uphold Wood, he cited a 1979 case in which an Ohio court denied the request of a defendant to compel a local reporter to testify in California because it had not been demonstrated that the reporter had evidence relevant to guilt or innocence.

In their appeal brief, meanwhile, Simpson’s North Carolina lawyers--Kenneth B. Spaulding and Joseph B. Cheshire V--contend that Wood’s decision interferes with Simpson’s right to a fair trial.

“The fact that a witness, especially a critical fact witness, is biased against a criminal defendant because of racial animus cannot be viewed as a ‘collateral’ matter,” they wrote. “It is well-established that a defendant should be given broad latitude to cross-examine witnesses against him as to any bias they may have, including racial animus.”

Simpson’s lead lawyer, Johnnie L. Cochran Jr., says he wants to use the McKinny tapes as “fundamental impeachment of a very important witness,” Fuhrman, who found key evidence against Simpson.

Defense attorneys contend that Fuhrman is a racist who planted a bloody glove at Simpson’s Brentwood estate and blood in Simpson’s Ford Bronco. But they have offered no corroboration of the allegations and Fuhrman has staunchly denied them.

Los Angeles prosecutors have no role in the North Carolina proceedings and have issued no statement on the McKinny tapes. But they have accused the defense of attempting to bias the predominantly African American jury by dwelling on Fuhrman’s racial views.

Several Simpson trial analysts--including some who are skeptical of the defense’s conspiracy theory--expressed dismay that a judge thousands of miles away could make a ruling that, in essence, supplanted the decision of the trial judge.

In mid-July, Ito certified that McKinny was a “material witness” and requested that North Carolina courts order her to Los Angeles.

“For a trial judge in North Carolina to second-guess Judge Ito’s ruling is unconscionable,” said UCLA Law School professor Peter Arenella. “Given Ito’s earlier ruling that witnesses could testify that Fuhrman has used the ‘N word’ in the last 10 years, surely these tapes contain the best evidence of whether he has done so because his own voice is on those tapes.”

USC law professor Erwin Chemerinsky agreed. “The judge took a very narrow definition of what is ‘material,’ ” he said. “Fuhrman is a crucial witness and the tapes could be the most powerful evidence that Fuhrman was lying.”

But New York University law professor Stephen Gillers points out that there is nothing in the law that requires North Carolina to cooperate with California when one of its citizens resists a subpoena. “States are independent juridical entities,” Gillers said.

And Chemerinsky noted that while the 6th Amendment provides that a defendant has a right to confront his accusers and secure witnesses on his behalf, “there is no constitutional right to subpoena an out-of-state witness.”

Nonetheless, thousands of times a year, with little fuss, state court judges compel their residents to go to other states to testify. As a general rule, states have an interest in complying with these requests so that their own subpoenas will be enforced.

But McKinny contended that forcing her to come to California would violate her rights as a journalist, diminish the value of her tapes and subject her to unwarranted harassment from the media. Simpson’s lawyers dispute all those points and have offered to pay air fare and lodging for the professor.

Thus far, there has been no public playing of the 12 hours of tapes McKinny made with Fuhrman and several other LAPD officers while she was writing a still unsold novel and screenplay about the travails of female officers. Before the hearing in Wood’s courtroom, the judge and attorneys listened to some of her tapes for about half an hour and perused transcripts of them.

McKinny’s attorney also submitted an index of Fuhrman’s use of racial epithets and other comments, including references to “wrestling with a nigger,” feeding “a bunch of dumb niggers in Ethiopia” and a description of how officers could frame somebody.

On the witness stand in Winston-Salem, McKinny conceded that Fuhrman used the word “on occasion” during their discussions, which began at Alice’s Restaurant in Westwood in 1985 and continued until July, 1994, shortly after the murders of Nicole Brown Simpson and Ronald L. Goldman. McKinny maintained, however, that Fuhrman made some of the controversial statements while serving as her “technical adviser” on a work of fiction, suggesting that in some instances he was only describing how police characters might talk.

In his appellate brief, Schwartz contends that Simpson’s lawyers are “still unable to make the logical and necessary nexus between someone who is a liar and someone who is a co-conspirator in a nefarious plot to frame” their client. Simpson’s lawyers retort that they do not have to make that nexus at this point--that it is for the jury to determine if such a link exists.

Several legal experts argued that the tapes should be released in part because of the impact if the jury never hears them and Simpson is convicted. “This case will be debated for the next 100 years on whether the full truth came out and whether the verdict has any validity,” said Georgetown law professor Paul Rothstein.

“The Simpson case could join cases like Sacco and Vanzetti, the Lindbergh baby kidnaping and the John Kennedy assassination, where people will not accept closure on them and constantly debate whether all the information is out.”