Defense Can’t Ask Reporters About Sources, Ito Rules

Dealing another blow to O.J. Simpson’s defense, Superior Court Judge Lance A. Ito on Wednesday ended a campaign by the defendant’s lawyers to uncover the source of leaks--accurate and inaccurate--regarding the results of DNA tests performed in connection with the murder case.

Ito’s ruling cut off a provocative line of defense long advanced by the Simpson legal team and also lifted a cloud over two reporters, book author Joseph Bosco and KNBC-TV reporter Tracie Savage. Both were called to the witness stand outside the jury’s presence and invoked the California journalists’ shield law rather than name their sources.

Backed by a line from an article Bosco wrote for Penthouse magazine, the defense had alleged that a police officer was the source of a Sept. 21 story that appeared on KNBC purporting to disclose DNA test results performed on a sock found in Simpson’s bedroom. That story was inaccurate--no DNA tests had been conducted on the sock at that point--but later tests did show the presence of blood with genetic markers identical to those of Nicole Brown Simpson on the sock.

O.J. Simpson has pleaded not guilty to the murders of his ex-wife and Ronald Lyle Goldman. Prosecutors have tried to tie him to the crimes with what they call a “trail of blood” beginning near the bodies of the victims and ending with the socks in Simpson’s bedroom.

The strange series of events surrounding the KNBC report led the defense to allege that a police officer or laboratory worker with access to the socks had smeared them with Nicole Simpson’s blood and then had predicted the results of the subsequent DNA tests. Seeking to build on that theory, the Simpson team sought access to LAPD Internal Affairs documents as well as the testimony of the two reporters.

The defense never offered more than speculation to support its premise, however, and a plainly skeptical Ito peppered defense lawyer Gerald Uelmen with questions in court Wednesday. Even if the defense could identify the source of the KNBC report, Ito asked, how would that demonstrate that the socks were tampered with?

“The bottom line here is whether or not the leaking of misinformation implies evidence tampering,” Ito said. “That is the bottom line issue.”

Picking up on a hypothetical example suggested by Deputy Dist. Atty. Hank Goldberg, Ito said that if the source of the erroneous KNBC story were a police officer overhearing a conversation in an elevator, that would not necessarily suggest that the source had access to evidence.

Uelmen, whose scholarly background and articulate style of argument have made him the defense team’s preeminent motions advocate, struggled to respond as Ito softly posed question after question. Uelmen tried to suggest other scenarios that would make evidence about leaks relevant to the question of Simpson’s guilt or innocence: Elevator gossip, for instance, could signal loose care for the evidence in general.

If the investigation was “conducted in a way that this kind of information is readily available to anyone in the building,” Uelmen argued, “then that says a heck of a lot about the risks that we are talking about in this case that persons who should not have access to information and evidence did have such access.”

Ito remained unconvinced. He termed the defense’s attempt to connect the leak of information to evidence tampering “mere speculation,” especially in light of the fact that the KNBC report was wrong. So Ito denied the defense requests for access to the Internal Affairs’ documents and for the right to question the journalists before the jury.

Ito Chastises Station

Before dropping the issue, however, Ito added one more slap at the station, whose report he has repeatedly criticized.

Ito noted that Savage had claimed her sources were knowledgeable and close to the case, but the judge said: “The mere fact that the results as reported were incorrect is a clear indication to this court that the source of this leak did not have access to that information and . . . was not a source close to the investigation and was not in fact knowledgeable.”

Despite the harsh language of Ito’s ruling, KNBC released a statement saying it was “obviously very pleased.”

“The court’s ruling means that Tracie Savage will not be asked to reveal her sources,” the statement said, “and we are confident that this decision will bring the matter to a close.”

Bosco was overjoyed.

“If I didn’t have this neck brace on, I’d probably be jumping up and down,” he said, referring to a brace he has worn since breaking his neck by diving into the shallow end of a swimming pool recently.

Defense attorneys, who have aggressively pressed their theory of a police conspiracy, were disappointed by Ito’s decision, but nevertheless said they will continue to advance that argument backed by testimony that some of the bloodstains might have been laced with a preservative known as EDTA and by another expert who said a stain on the socks appeared to have been pressed into the fabric.

“This doesn’t affect our central theme,” said Carl Douglas, one of Simpson’s lawyers. “We still have the EDTA. We still have the compression stains.”

Goldberg, who has appeared in court three times to address the issue of the leaks and the defense attempts to link them to a police conspiracy, derided the entire line of argument.

“The so-called evidence they [defense] want to put on wasn’t evidence,” he said. “It was some sort of innuendo.”

And Los Angeles police Detective Philip L. Vannatter, one of the lead investigators in the case, shrugged off the suggestion that any evidence, leaks or otherwise, would ever lend credence to the notion of a police conspiracy.

“The police conspiracy theory,” he said, “is the stupidest thing I’ve ever heard in my life.”

Pathologist Up Next

The ruling brought Wednesday’s session to an early conclusion--jurors never were brought in--but court is set to resume this morning with the testimony of one of two prominent pathologists on the defense payroll, Michael Baden or Barbara Wolf.

Outside court, Deputy Dist. Atty. Brian Kelberg said he anticipated that Baden would take the stand and that he was prepared to aggressively cross-examine the expert on a range of issues.

Defense attorneys had said Baden would testify Wednesday afternoon, but Robert L. Shapiro, the attorney scheduled to question Baden, did not show up for the morning session and did not produce notes that Ito had ordered delivered prior to the witness taking the stand. Reminding Ito of that order, Kelberg said he would ask that Baden be barred from the witness stand unless the notes were turned over promptly.

With or without those notes, the meticulous Kelberg said he was prepared to take on the eminent pathologist.

Kelberg came to court Wednesday with a thick green notebook marked “Baden,” a sign of the prosecutor’s detailed preparation, and he was writing out questions for his examination while the lawyers were arguing over the police conspiracy issue.

Kelberg declined to say whether part of the cross-examination would deal with Baden’s controversial work history at the New York City medical examiner’s office, where Mayor Edward Koch demoted him after other officials complained about his judgment and lack of cooperation with prosecutors, among other things.

“There may be a difference between what is fair and what I’ll go into,” Kelberg said. Kelberg said he had reviewed other cases in which Baden was asked about the circumstances involving his removal from the medical examiner’s post and found that “Dr. Baden has a pat answer, putting on others responsibility. . . .”

Baden also encountered controversy during his tenure as the chief deputy medical examiner in Suffolk County, New York. During his time there, Baden was quoted in an article appearing in Oui magazine entitled “High-Tech Homicide.” Baden was fired when the county executive termed the pathologist’s comments “advice on how to kill people.”

Faced with the threat of a lawsuit from Baden, the executive relented and acknowledged that he did not have the authority to fire the deputy medical examiner. Baden withdrew from contention for the county’s chief medical examiner post, however.

Baden’s History

In contrast, a potential difficulty facing the prosecution if Baden takes the stand is that the Los Angeles County district attorney’s office used him as its expert witness in a major murder case now nearing its conclusion.

Baden testified for Deputy Dist. Atty. Albert H. MacKenzie in the prosecution of two Ohio businessmen charged in a complex plot to murder a North Hollywood man and use his body to collect $1.5 million in insurance money.

A Los Angeles jury this week convicted the two men of fraud, grand theft and conspiracy to commit murder; it found one of them, Melvin Hanson, guilty of murder. In the same case, Baden was a key witness in the successful 1990 murder prosecution of Dr. Richard Boggs, which led to a conviction and a life sentence.

Charles L. Lindner, one of Boggs’ defense lawyers, said Baden had played a critical role in securing his client’s conviction.

“I find it ironic that Dr. Baden was down the hall on the ninth floor in Judge Paul Flynn’s court testifying for the prosecution as the leading forensic expert they could find in the country and that now the prosecution plans to attack him for his competency,” Lindner said.

Baden has been involved in a number of historic cases, including Congress’ 1979 reopening of the forensics aspect of the John F. Kennedy assassination. More recently, he worked with Shapiro in defending Marlon Brando’s son, Christian, against murder charges.

In the Simpson case, Lindner noted, the defense gets to point out Baden’s association with high-profile cases such as the Kennedy assassination when they qualify him as their expert, as well as that he has testified for the Los Angeles County district attorney’s office and other prosecutors across the country numerous times.

Cyril Wecht, a Pittsburgh pathologist and leading expert in the field, said there is no question about Baden’s credentials.

“Michael Baden is definitely considered to be a top-rate forensic pathologist,” Wecht said. “He has a very keen mind and a vast amount of experience. He is highly regarded. His services are sought all over the country.”

Given the vast number of times Baden has testified for prosecutors, and in particular the Los Angeles County district attorney’s office, Loyola Law School professor Laurie Levenson said there is a limited degree to which Kelberg can attack his credentials.

“It has to be a pinpoint attack,” she said. “You may not be able to challenge his overall credentials, but you might be able to point out that there are certain areas that he’s less qualified in than others and also that he does not necessarily have the firsthand objective information to support his opinions in this case.”

Levenson added that if Simpson’s lawyers instead decide to call Wolf, they may gain something in not having to deal with Baden’s political problems in New York, but they would definitely lose on the prestige front.

“It also might look like they’re trying to hide Baden,” who has been in court and whose name has been mentioned frequently, Levenson said. “And the jurors might ask ‘why aren’t they calling their lead expert’--the same way that the prosecution raised questions by not calling Dr. [Irwin L.] Golden.”