Ruling Could Open Way to Challenge Fuhrman : Simpson trial: North Carolina court says professor can be made to testify on tapes of detective using racial epithets.

A North Carolina appellate court delivered a major boost to O.J. Simpson’s legal efforts Monday, issuing a ruling that could clear the way for his lawyers to put on evidence that Detective Mark Fuhrman may have lied on the witness stand--a development that would hand the defense team a dramatic conclusion to its case.

Johnnie L. Cochran Jr., Simpson’s lead trial lawyer, had fought hard to bring a North Carolina screenwriting professor to California to testify about tapes she made of Fuhrman, but at first Cochran was thwarted by a judge in Winston-Salem. On Monday, the North Carolina Court of Appeals overruled that judge, concluding that he had erred in several respects.

Simpson’s lawyers were ecstatic. Cochran called it the most important ruling of the case, and Simpson attorney Barry Scheck said of the decision: “Huge, huge. It could be the case.”

The appellate decision allows Simpson’s lawyers to force professor-screenwriter Laura Hart McKinny to come to Los Angeles and to bring tapes in which Fuhrman says the word nigger and makes other potentially inflammatory comments. When questioned under oath during the Simpson trial, the detective specifically denied uttering that epithet at any time during the past decade and said that anyone who accused him of using it would be a liar.

McKinny, however, conducted a series of interviews with Fuhrman between 1985 and 1994 as part of research she was doing for a screenplay. In an index of one section of one tape, McKinny’s lawyer cited Fuhrman as repeatedly using the very epithet that the detective swore he had not used. Fuhrman’s lawyer, Robert H. Tourtelot, has said that if Fuhrman used the word, it was as a character in a fictional work, not as himself.

The importance of the tapes is magnified by a California jury instruction informing jurors that if they conclude a witness lied about one fact, they may then decide that he or she has lied in other respects as well.

The result: If the jury weighing the charges against Simpson is allowed to hear the tapes, it could badly taint the prosecution’s case, affecting far more than just the question of whether Fuhrman told the truth about using the epithet.

Fuhrman testified that he found a key piece of evidence in the case, a bloody glove on the grounds of Simpson’s estate, and he has long been the man at the middle of the defense team’s controversial police conspiracy theory. If the tapes undermine the jury’s confidence in Fuhrman, they could raise doubts about his account of finding the glove and bolster the defense’s contention that police witnesses are not to be trusted.

Superior Court Judge Lance A. Ito had ruled previously that McKinny should be required to give the defense her material, but he still could rule that the jury should not hear the tapes. That would depend on whether prosecutors oppose admission of the tapes and, if so, whether the emotional effect of playing them would, in Ito’s judgment, substantially outweigh the value they might have in raising questions about Fuhrman’s testimony.

Simpson has pleaded not guilty to the murders of Nicole Brown Simpson and Ronald Lyle Goldman. His lawyers--both in California and North Carolina--said that Monday’s ruling represented a major boon to their efforts.

Kenneth B. Spaulding, the Durham, N.C., attorney who co-authored the appeal brief, called the action “a good ruling for the administration of justice all across America. It shows that even in high-profile, controversial cases, sister states are respecting the orders issued by trial judges.”

Spaulding predicted that the ruling Monday would hold up if appealed, a view echoed by Simpson’s trial team and even by McKinny’s lawyers.

“The likelihood of an appeal is dim,” said Matthew H. Schwartz, a Century City attorney who represents McKinny. “We talked to local counsel in North Carolina, and I think it would be a herculean task to get a hearing from the state Supreme Court.”

Given the likelihood that McKinny and her tapes will soon be in Los Angeles, Cochran said he expects that the jury and the public now will be able to assess Fuhrman’s credibility in a new light.

“In a search for truth, these tapes are imperative,” Cochran said. “I’m absolutely shocked that the prosecution did not join in our attempt to obtain them, but now the whole world is going to know the truth.”

Deputy Dist. Atty. Christopher A. Darden said prosecutors had not yet heard the tapes and thus had not decided whether to fight their admission, but Tourtelot expected prosecutors to argue against their admissibility.

“Obviously, today’s ruling was very unsettling,” Tourtelot said. “But this ruling does not mean that the tapes or the witness will be heard by the jury. That will be up to Judge Ito. . . . To allow these tapes to be heard by the jury would not be material and would be highly prejudicial to the prosecution’s case.”

Cochran brusquely dismissed Tourtelot’s comments, particularly his insistence that Fuhrman only had spoken as a character in a story conference for a fictional work. “He’s wrong. His client’s wrong. America’s going to see that,” Cochran said during a news conference on the courthouse steps.

With so much at stake in the latest evidence, Robert Philibosian, a former Los Angeles County district attorney, said he, too, expects prosecutors to object to playing the tapes for the jury.

“I’m sure the prosecution will argue that even if Fuhrman was not truthful about the use of the N-word, it was impossible for him to plant the glove, and that’s the basic issue here,” he said. “Also, the statements Fuhrman made to this fiction writer are collateral to the trial, and it could be argued that they should not be admitted for that reason.”

Even if the tapes are played for the jury, Philibosian said he is not convinced that they would tip the outcome of the trial.

“It will hamper the credibility of Fuhrman’s testimony,” he said, “but there is more than sufficient evidence absent the glove behind the house to allow the jury to convict Mr. Simpson.”

Paul Rothstein, a Georgetown Law School professor, agreed that prosecutors probably will fight admission of the tapes but said if the jury does get to hear them, they could be enough to convince members that there is reasonable doubt about Simpson’s guilt.

“This is such incendiary stuff it could exert a powerful effect on the jury,” he said. “If what Cochran says is on the tapes is true, the case is over. It will raise enough of a cloud that enough of the evidence will be tainted to result in an acquittal. When juries get indignant and their sense of injustice is tapped, cases are won or lost.”

DNA Evidence Recalled

The defense’s victory in North Carolina came as Simpson’s lawyers began the fifth week of their case. The court session featured the two sides jockeying over DNA evidence, which did not appear to elicit much reaction from jurors, whose note-taking was sporadic and whose interest seemed to wax and wane during a long day of often dry testimony.

Deputy Dist. Atty. George (Woody) Clarke used a defense witness to remind the jury about the wealth of evidence implicating the former football star in the bloody double murder, while Scheck elicited testimony from the same expert that poor evidence-handling by the LAPD could have compromised many of the DNA tests.

The expert, John Gerdes, previously had testified about reservations regarding some of the testing methods. But on Monday, he reluctantly went along as Clarke displayed the prosecution’s colorful charts detailing roughly 40 bloodstains submitted for DNA analysis of various types, performed by three laboratories.

“The results in this case, Dr. Gerdes, are consistent with the defendant’s blood leading up to and inside his home on Rockingham, isn’t that correct?” Clarke asked.

“The type results appear that way, yes.” Gerdes responded.

“Those results are consistent with Nicole Brown and Ronald Goldman’s blood being found on the glove at Rockingham, correct?” the prosecutor continued.

“Again,” Gerdes answered slowly, “there are multiple explanations. That is one explanation.”

After another exchange, Clarke then asked: “Dr. Gerdes, isn’t it true that the DNA type results from the laboratories in this case are consistent with Nicole Brown’s and Mr. Simpson’s blood being on the sock found at the residence?”

Simpson’s lawyers objected, but Ito overruled them.

“Yes,” Gerdes then answered. “That is true.”

After running through those questions and a scattering of other topics, Clarke concluded his cross-examination on a controversial note, suggesting that the defense team had failed to run its own tests on samples to rebut the prosecution’s analysis and implying that its failure demonstrated the reliability of the evidence.

Scheck objected to those questions, and when the jury left for the morning break, Cochran voiced his concern about them to Ito.

“I think that whole line of questioning is unfair,” said Cochran, reminding Ito that the defendant is not required to prove his innocence but that the prosecution must prove his guilt. Ito nodded and said he intended to instruct the jury about that when the evidence is submitted to the panel, but he allowed the questions and answers to stand.

Finishing With Gerdes

Monday’s questioning of Gerdes concluded his fifth day on the stand, a stretch of testimony that experts generally said had represented some of the defense’s most persuasive evidence to date. Gerdes testified about chronic, serious contamination at the LAPD crime lab, and though Clarke elicited his admissions that many of the tests performed on samples in the Simpson case were handled by other laboratories, all the samples passed through the LAPD, a fact that the scientist said cast a cloud of suspicion over the entire case.

Scheck reiterated that point at the outset of his questioning Monday.

“Does it matter how many other laboratories typed the sample if they were cross-contaminated initially at LAPD?” Scheck asked.

“No,” Gerdes answered. “Once you’ve accidentally or some other way transferred that DNA from one sample to another, it doesn’t matter how many gene systems, how many different labs, it is always going to type as the DNA that was transferred.”

That point underscores the central point of the defense’s response to the prosecution DNA evidence: that the jury should not rely on that evidence because it was contaminated--either intentionally or inadvertently--while in the possession of the LAPD. Scheck peppered his questioning with reminders of that issue, but also used his examination to rebut various other points raised by Clarke.

The prosecutor, for instance, had belittled Gerdes’ credentials by drawing the jury’s attention to the scientist’s work as a community college instructor and as an employee of a pineapple company. Rather than duck that topic, Scheck concluded his questioning with it.

“You were asked about working for the pineapple factory,” Scheck said. “Do you recall that?”

“Yes,” Gerdes responded with a smile.

“Does that have some relevance to the issue of contamination?” the defense lawyer asked.

“In fact it does,” Gerdes replied, going on briefly to describe his work for a company whose cans of pineapple were mysteriously exploding and, in the process, injuring workers. “I was able to track down why those cans were blowing up, and it turned out to be bacterial contamination.”

Scheck’s handling of Gerdes’ testimony has been widely praised by legal experts, and even won a rare compliment from Ito, who praised it outside the jury’s presence. Outside court Monday, Scheck said he hopes the questions raised by Gerdes about the LAPD lab and its procedures will encourage the Police Department to adopt better controls.

“They [LAPD personnel] were totally unaware of PCR’s tremendous potential for contamination,” Scheck said. He added that he and his legal partner, Peter Neufeld, “have looked at a lot of these cases, but this is the worst lab that we’ve ever seen.”

Questioning DNA ‘Matches’

In the battle of dueling experts, defense attorneys turned late Monday to an avuncular Australian statistician, their answer to the prosecution’s crisp, aloof New Zealander named Bruce Weir whose mathematical error in calculating some of the statistical significance of DNA test results represented a grim moment near the end of the government case.

Testifying for the defense, Terence Paul Speed delved into a densely difficult statistical area, but did so with bright humor and an easygoing style. In essence, the statistician was called to cast doubt on the reliability of staggering prosecution figures about the significance of various DNA “matches” connecting Simpson to the crimes.

Prosecution experts testified that only one person in billions would have the genetic markers of the victims and Simpson. Blood with some of those markers turned up at the crime scene, inside Simpson’s car and at his estate, forming a bulwark of the prosecution contention that Simpson must have been the killer.

But Speed testified that one factor should be considered in calculating the significance of those matches. If, for instance, the DNA testing laboratories frequently make mistakes in identifying the markers, then the jury should consider a lab’s error rate along with the other statistics, Speed said.

Speed will face cross-examination today, and could be followed on the witness stand by Kary Mullis, the flamboyant Nobel Prize winner who invented a form of DNA testing but whose drug use and unorthodox scientific views on some subjects have made him an inviting target for cross-examination.

Mullis was in court for Monday’s testimony, but the courtroom contained one empty seat, that of Robin Clark, a respected journalist for the Philadelphia Inquirer who died in a car crash last Friday.

“He was liked and admired and most importantly respected by his colleagues,” Ito told the panelists, who sat silently as the judge recessed the proceedings in Clark’s memory. “I think that’s the highest tribute that anybody can pay in the journalism profession.”

Times staff writer Andrea Ford contributed to this story.