THE O.J. SIMPSON MURDER TRIAL : NEWS ANALYSIS : Legal, Tactical Reasons Cited for Risky Appeal

Prosecutors in O.J. Simpson’s double murder trial signaled clearly Thursday that they dread Mark Fuhrman’s silence as much as they do the sound of his voice.

The depth of that anxiety can be measured by the prosecution’s willingness to pursue an eleventh-hour appeal that risks inciting not only the wrath of an obviously irritated Judge Lance A. Ito, but also that of a jury that has grown more visibly restive by the day. The judge had expected the defense to rest Thursday and the prosecution to begin its rebuttal case today; the jurors have made it clear they simply want it to be over.

But the prosecution’s decision to pursue a writ put everything on hold.

What particularly perplexes most legal analysts is that prosecutors decided to ask an appeals court to overturn Ito’s proposed jury instruction on the former LAPD detective on a day when the prosecution won all other points. Earlier in the session, the judge had ruled that the former detective would not be compelled to assert his 5th Amendment privilege against self-incrimination in front of the jury. Nor, Ito ruled, would the jurors even be informed that Fuhrman had invoked the privilege.

Instead, Ito said he would instruct the jury that “Detective Mark Fuhrman is not available for further testimony as a witness in this case. His unavailability for further testimony on cross-examination is a factor which you may consider in evaluating his credibility as a witness.”

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Even that, however, was too much for lead prosecutor Marcia Clark, who demanded that the trial be halted to allow her office time to file a writ with the Court of Appeal.

Legal experts were quick to say that California appellate courts virtually never intervene in ongoing trials. Moreover, the only reported case in which an appeals court halted a trial to hear arguments over a proposed jury instruction occurred in the mid-1960s and involved the case of a Fresno man charged with failure to pay child support.

So why risk so much on such long odds?

Legal analysts cited three possible explanations--legal, emotional and tactical.

Defense attorney Gerald L. Chaleff said the most obvious explanation is that prosecutors “believe that the California evidence code prohibits any comment on a witness’ failure to testify due to the exercise of the privilege against self-incrimination. Since they believe the law is on their side, they feel justified in acting on the anxiety they feel about having the defense argue to the jury that Fuhrman lied.

“What the prosecution fears even more,” Chaleff said, “is that this instruction will help the defense hang Fuhrman around the neck of all the other officers involved in the hope that the bad odor surrounding him will attach itself to the rest of the investigators.”

Jill Lansing, who represented Lyle Menendez in his first murder trial, agreed. “They feel the damage that such an instruction would do could jeopardize their case. Ito’s proposed instruction invites the jury to assume that Fuhrman’s behavior has been sinister. Once they’re given that instruction, there will be no way to counteract such speculation, so there is no remedy available to the prosecution at that point. That’s why they’re willing to go to the mat on this one.”

Loyola Law School professor Laurie Levenson, a former federal prosecutor, suggested that “the prosecution is just so shellshocked by the attacks on Fuhrman that they probably just couldn’t take one more blow.”

Prosecutors, she said, also believe that Ito is wrong on the law, citing a section of the evidence code that says that when a witness invokes the 5th Amendment, “neither the presiding officer [judge] nor counsel may comment thereon.” Nor, according to the code, may jurors “draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.”

To Levenson, “The question is what does ‘therefrom’ mean? Does it mean from his taking the 5th or from the fact that he is unavailable? I think Ito tried to split the baby, trying to avoid violating the evidence code but not compromising the defense’s right of confrontation.”

But UCLA law professor Peter Arenella attributed the prosecution’s decision to the emotional toll exacted by a long and contentious trial. “What we saw in court Thursday was prosecutorial meltdown,” he said. “Why in the world would the prosecution delay this trial for even a moment over an instruction that will have far less impact on the jury’s evaluation of Fuhrman’s credibility than the witnesses and tapes that have already demolished him? This is not a rational decision.”

Defense attorney Harland W. Braun described the prosecutors’ reaction as “pure petulance. They’re not getting their way--which, as prosecutors, they’re used to getting. They’re stung and hurt, and they’re just lashing out. Fuhrman is the worst thing that’s happened to their case. But they’re particularly embarrassed because he didn’t just happen; they did this to themselves by putting him on the stand when they knew what he was.”

Braun said the prosecutors might be groping for a tactical edge. “They need some time to think things through before they launch into their rebuttal case,” he said. “Any rebuttal that deals with anything other than Fuhrman will be regarded by the jury as irrelevant and maybe annoying. The prosecutors have to figure out a way to deal with that and with the jury’s anger over the delays.

“The jurors will blame the system for what they’ve been through,” Braun said, “and you don’t get back at the system by voting guilty.”

The prosecution’s appellate argument, said former Los Angeles County Dist. Atty. Ira Reiner, “is very thin, and there’s zero possibility the Court of Appeal will entertain an emergency writ.

“But look, what they’re faced with is nothing less than having to rebuild their entire case on rebuttal. The saying is, ‘You build your case brick by brick.’ But their case has been reduced to a pile of rubble. All that is left right now is to come back so strong on rebuttal they can hang on for a hung jury and live to fight another day.”