THE O.J. SIMPSON MURDER TRIAL

UCLA law professor Peter Arenella and Loyola Law School professor Laurie Levenson offer their take on the Simpson trial. Joining them is defense lawyer Jill Lansing, who will rotate with other experts as the case moves forward. Today’s topic: Fuhrman fallout.

PETER ARENELLA

On the defense: The defense lost several legal battles, but they may have already won the war. Judge Ito denied their motion to suppress evidence, rejected their claim of prosecutorial misconduct and refused to instruct jurors that Mark Fuhrman had taken the 5th when asked about his prior testimony. But, the tapes and several witnesses have destroyed Fuhrman’s credibility and jury sequestration can’t stop ‘pillow talk’ about Fuhrman taking the 5th.

On the prosecution: Are we watching prosecutorial meltdown? After winning every legal skirmish, Marcia Clark went ballistic when Ito ruled the jury could consider Fuhrman’s unavailability in assessing his credibility. What credibility? Why delay this trial for a fruitless appeal over an instruction that will not matter? Prosecutors should be thinking about how to use their rebuttal to undermine defense claims of cross contamination and evidence planting.

LAURIE LEVENSON

On the defense: The end is in sight. While it looked like their Fuhrman attacks would never end, the defense seems to have run out of ways to destroy him. They have done a good job of putting prosecutors on the defensive. Dennis Fung and Fuhrman were perfect poster boys for their contamination and conspiracy theories. Only one thing was missing from the defense’s case--O.J. on the stand. But don’t forget he, like Fuhrman, has the right to remain silent.

On the prosecution: Prosecutors still seem to be reeling from the Fuhrman attacks. Although Ito decided jurors won’t hear Fuhrman took the 5th, Clark erupted when she heard jurors would be instructed that he was unavailable. Assuming jurors can add two and two, they probably will figure out why Fuhrman won’t be back. But prosecutors can’t dwell too long on that. Regardless of what the court of appeals rules, it’s time for rebuttal and it better be good.

JILL LANSING

On the defense: After virtually all their requests were denied, the defense got a ruling that would tell jurors Fuhrman’s unavailability can be considered in evaluating his truthfulness. Perhaps the best measure of the defense’s confidence is their failure to request that Fuhrman’s testimony be stricken because he can’t be fully cross-examined. Since telling jurors to disregard his testimony would be asking the impossible, a mistrial might be the undesired result.

On the prosecution: The prosecution survived the defense request for eliminating Fuhrman-related evidence and for sanctions for perceived discovery violations. They did, however, disagree with a ruling regarding the jurors’ use of information about Fuhrman’s unavailability. Appellate review may be in the cards for this ruling, which they feel invites jurors to unfairly speculate as to the range and scope of Fuhrman’s misconduct.

Compiled by Henry Weinstein / Los Angeles Times