THE O.J. SIMPSON MURDER TRIAL : Defense Nears End Without Putting Simpson on Stand : Courts: Snag prevents lawyers from formally concluding case. Prosecution persuades Ito to delay decision on telling jury Fuhrman won’t testify further.

Eight weeks and about 50 witnesses after launching their defense of O.J. Simpson, his attorneys effectively concluded their presentation Thursday without calling their famous defendant to the witness stand.

A last-minute legal snag blocked the defense from formally resting, however. Prosecutors were infuriated by Superior Court Judge Lance A. Ito’s decision to tell the jury that Detective Mark Fuhrman--who asserted his 5th Amendment privilege not to testify Wednesday during a hearing outside the jury’s presence--was unavailable to testify further in the case.

Over defense objections, they persuaded Ito to reconsider a decision he had made minutes earlier, winning a temporary stay in the Simpson proceedings while they pursue an appeal. Ito gave them until noon today to file it, and Simpson’s attorneys said they will not tell the jury they have rested until that matter is resolved.

The day’s chaotic developments stretched the patience of the lawyers and judge, who at one point abruptly halted their discussion and summoned the entire coterie of attorneys into his chambers, presumably for a dressing-down.

That blowup came after Deputy Dist. Atty. Marcia Clark publicly accused Ito of forcing the prosecution to begin its rebuttal case today rather than Monday. Ito’s demand, she charged, was punishment for the prosecution challenging his ruling.

“Is the court now going to penalize the People because the People are exercising their appellate rights, as they are entitled to do?” Clark asked, her voice soft but defiant. “It would appear that you are.”

With that, Ito dragged the attorneys back inside his chambers. They emerged a few minutes later, and without further comment, Ito called the jury into the courtroom for the first time all day. The 14 panelists, whose well-being has become a dominant theme of the trial in recent weeks, entered grim-faced and sat staring silently as Ito gave them what he called “good news and bad news.”

“The good news,” he said, “is that we will be concluding, I anticipate, the defense case by tomorrow . . . with no further witnesses.” Having said that, Ito turned to lead Simpson trial lawyer Johnnie L. Cochran Jr. for confirmation.

“I would anticipate that’s perhaps correct, Your Honor,” answered Cochran, who had already said outside the jury’s presence that the defense was finished and was only declining to rest its case because of the uncertainty regarding the prosecution’s appeal.

The bad news, Ito went on to tell the jury, was that prosecutors would not begin their rebuttal case until Monday, meaning that the panel will not hear any more evidence this week. Jurors, even the few who had returned Ito’s warm smile when they first entered, sat glumly through that announcement. One woman in the back row glowered; most others were stone-faced.

Ito Rules, Then Reconsiders

As with the prosecution case’s bumpy conclusion two months ago, the defense phase of the trial sputtered to an anticlimactic ending, in effect concluding on a day in which there was no testimony.

Instead, the court session was occupied by a host of last-minute legal arguments and a hotly contested debate over what to tell the jury about Fuhrman, who on Wednesday asserted his right under the 5th Amendment not to testify further in the case.

With the restless jury cooling its heels outside the courtroom, Ito spent the morning hearing arguments on three defense motions. Two of them charged prosecutors with failing to disclose evidence to the defense--a longstanding point of contention between the two sides in the case. Ito did not resolve those issues completely, but cut off the defense’s effort to call police and prosecution witnesses in an attempt to show that prosecutors failed to investigate questions about Fuhrman.

It was the defense’s third motion that drove the trial to its latest fever pitch, however. During the morning session, Cochran informed Ito that the retired detective would be the last witness that the defense would call to the stand, and he asked that Fuhrman be forced to assert his 5th Amendment rights in front of the jury.

That approach is generally not permitted in California courts, but the defense argued that it would be appropriate given the unusual circumstances surrounding Fuhrman’s participation in the Simpson case.

Because of Fuhrman’s previous appearance before the jury and the extensive testimony about him, Simpson attorney Gerald F. Uelmen argued, the former detective should take the stand so that the jury would know the defense was eager to hear his account. Barring that, Uelmen suggested that Ito should explain to the jury why Fuhrman would not be reappearing in court.

Otherwise, Uelmen said: “They’re bound to wonder: ‘What became of Detective Fuhrman?’ ”

Responding, Clark said the defense had no right to put Fuhrman on the stand knowing that he would assert his right against self-incrimination. California law, she noted, provides that witnesses should assert that right outside the jury’s presence.

The reason for Fuhrman’s unavailability to resume testifying was not a matter for the jury to consider, Clark added, citing previous California cases in support of her contention.

But defense lawyers argued that the cases did not address a witness who has already testified and then later asserts the privilege when recalled to the stand.

Ito agreed with the Simpson team’s reasoning but rejected its proposed solution. Instead of telling the jury that Fuhrman had invoked his right against self-incrimination, Ito drafted an instruction that merely stated Fuhrman was not available without saying why. He also ruled that Fuhrman should not be forced to take the witness stand again, and concluded that the defense could not admit more excerpts from the tapes and transcripts now that the detective was formally unavailable as a witness.

That represented a near total victory for the prosecution, but Clark nevertheless was stunned and furious. She stood to object to Ito’s decision, only to have him curtly cut her off.

“Counsel,” he said in a stern voice. “I’ve ruled.”

Clark was struck temporarily speechless but remained standing and defiant. After a pause, she told Ito the prosecution would be asking him to reconsider in the morning.

“Well,” he answered. “I’m going to instruct them [jurors] this afternoon.”

He then recessed court for a break. Clark grabbed her purse and stormed from the courtroom, accompanied by Deputy Dist. Atty. Christopher A. Darden. They returned a few minutes later and asked Ito to reconsider his ruling. At first he refused, but as with so many other issues in the Simpson trial, Ito quickly demonstrated his willingness to change course.

When the jury eventually reappeared, Ito did not mention the Fuhrman issue at all, much less read the instruction he had drafted. Instead, he told the panel that he had been forced to weigh issues “that I had never had to deal with before. I had to do a lot of research on the issues, and one of the issues is not yet resolved.”

‘No Justice, Judge’

The short tempers in court Thursday reflected the mounting tension in the case as it draws to a close, a palpable emotionalism that has been especially pronounced since the tapes and transcripts of interviews with Fuhrman surfaced. That material threw the case and the city into turmoil, and it has strained relations between the judge and lawyers as well.

Last week, when Ito ruled that the defense could present only two of 61 excerpts from the tapes and transcripts to the jury, Simpson’s lawyers called a news conference to personally denounce the judge. During that session, Cochran all but accused Ito of being part of a conspiracy against Simpson, and defense lawyer Alan M. Dershowitz later suggested that the judge’s ruling was tainted by racism.

Ito has never referred to those allegations in open court, but a transcript released Thursday made it clear that they had weighed on him.

The exchange began Wednesday morning at Ito’s sidebar, where he was dealing with the latest in a long string of arguments between Cochran and Darden.

According to the transcript, Ito was making a point to Cochran when the defense attorney responded: “Your Honor, I resent that tone. I’m a man just like you are, Your Honor. I resent that tone, Your Honor. I resent that tone, Your Honor.”

Ito stepped away from the conversation for a moment, asked the jury to leave the courtroom and then directed the lawyers into his chambers, where the argument quickly resumed.

“Mr. Cochran,” Ito said, “let me just express to you some concern that I have regarding our personal relationship.”

“Yes, Your Honor,” Cochran said.

“I have chosen up to this point,” Ito then said, “to ignore your press conference last Thursday and what I consider to be indirect contempt of this court. I have chosen to ignore that.”

Noting that Cochran appeared to have taken umbrage at his sidebar comments, Ito added: “Let me tell you something, I take umbrage at your response and your reaction. And I want you to know that I have chosen to ignore it thus far and that is because of our long relationship and what I hope will be our continuing friendship. And what I’m going to suggest that we do is that you and I both take a deep breath . . . and talk about this again.”

After another brief exchange, Cochran explained: “I was just saying I didn’t want to be talked to like a school kid.”

Their lively and personal argument appeared in keeping with the temper of the day. During a sidebar conference that same morning, Darden told Ito that he intended to question screenwriter Laura Hart McKinny about “her love letters to Mark Fuhrman.”

Former Los Angeles County Dist. Atty. Ira Reiner expressed amazement that Darden would consider raising that issue, which elaborated on his question, posed in front of the jury, about the nature of McKinny’s relationship with Fuhrman.

“Here they have a witness whose every word they concede,” Reiner said. “They dispute not a single word of her testimony and yet they engage in this highly personal, truly vicious attack on her. To what end?”

In the sidebar conference, Cochran raised his own objection and suggested that his counterpart was courting trouble by continuing to attack McKinny. “This is how we got into this problem,” Cochran said.

“We got into this problem because we are chasing down issues that have nothing to do with this trial,” Darden retorted. “If Mr. Simpson is acquitted just because Mark Fuhrman uttered an epithet, well, then there is no justice, judge.”

Ito Upholds Search--Again

The defense’s conclusion to its case ended after Ito rejected its attempt to reopen the debate over the validity of the searches of Simpson’s estate by police and the admissibility of the evidence seized in those searches. Ito and a Municipal Court judge already had ruled that the evidence was admissible, but the Simpson team had renewed its motion after the Fuhrman tapes and transcripts surfaced.

The tapes and transcripts cast such doubt on Fuhrman’s credibility that the previous rulings should be overturned, the defense argued, a point that few legal analysts took seriously but which the Simpson attorneys forcefully advanced.

In his order, released Thursday morning, Ito concluded that Fuhrman’s testimony given in connection with the search issues was all corroborated by other witnesses. As a result, questions about the detective’s credibility did not suggest that the earlier rulings should be overturned, he said.

Cochran’s announcement in court that the defense had no more witnesses to call also ended once and for all the speculation that Simpson would take the stand as part of the defense case. Members of Simpson’s team have been saying for months that they did not expect to call their client, but they always have insisted that they would hold off on a final decision until they had seen all the evidence in the case.

Defense attorneys gave varying reasons for the decision: F. Lee Bailey, who has focused on issues relating to Fuhrman, said the dramatic testimony about the detective’s credibility, capped by his decision to assert the 5th Amendment, ended the need for Simpson to take the stand on his own behalf. Other defense team members, including Robert L. Shapiro and Carl E. Douglas, attributed the decision to a desire to end the case quickly and to send it to the rapidly tiring jury.

The impending end of the defense case also almost certainly means that the jury will never hear from Fuhrman again. The reverberations from his interviews continued to rebound through the Police Department and the city, however.

The Justice Department is investigating possible federal charges against the former detective, and the Los Angeles Police Protective League, which once defended him, took out newspaper ads apologizing for his comments and distancing itself from his remarks.

“Mark Fuhrman’s own words convicted him of racism, bigotry and unprofessional police work,” said Dennis Zine, a member of the league’s board.

Representatives of the city attorney’s office, meanwhile, will be in court today to seek copies of the tapes, which so far they have only listened to. McKinny, who has fought to retain all her materials, said that she also interviewed 15 other police officers but that no one has asked her for copies of those tapes and transcripts.

McKinny’s attorneys filed papers Thursday opposing public release of the tapes on several grounds. The papers state that while McKinny testified that she “presently has no inclination to sell her audiotapes or transcripts,” she is “legally entitled to change her mind about this proposition at any time.” The motion adds that “a market for these audiotapes exists independently of the copyright owner’s current resistance to the idea of a sale.”

Meanwhile, private investigator Anthony Pellicano, who once steadfastly stood by Fuhrman, announced that his job was over.

“I understood why he took the 5th, but I was overwhelmingly disappointed,” the outspoken Pellicano said. “I wanted him to stand up like a man and testify. I’m now finished with the case.”

Of his former client, Pellicano added: “He turned his life around in 1988, became a Grade II detective, worked hard, got married and had two kids. Now it’s all down the drain.”