Simpson Rebuttal Begins Before Defense Rests Case : Trial: In odd twist, Ito orders prosecutors to start next phase, and jury is shown photos of defendant wearing gloves. His attorneys say one more witness may testify.
Amid the chaos that has become customary in the murder trial of O.J. Simpson, prosecutors on Monday were forced to begin the next phase of their case even though defense attorneys stubbornly refused to rest, arguing that there is at least one more witness they might want to put on the stand.
Defense lawyers did not specify who the mystery witness was or what he might say, but a defense source said the Simpson team is investigating possible impeachment evidence against “a key prosecution witness.” That evidence has not materialized, but the matter should be resolved within a few days, Superior Court Judge Lance A. Ito said.
Faced with the defense’s refusal to conclude its case formally, Ito imposed an extraordinary requirement on prosecutors: Government lawyers, who earlier in the day successfully rebuffed a defense effort to strike selected portions of retired Detective Mark Fuhrman’s testimony, were forced to begin presenting some of their rebuttal evidence without knowing the entirety of the case they are rebutting.
Deputy Dist. Atty. Marcia Clark urged Ito not to proceed along those lines. But the judge was plainly distressed by the string of recent delays that have ground the already sluggish trial to a crawl and imposed new hardships on the idle, long-suffering jury.
He promised prosecutors he would limit the defense to the alleged new defense evidence--a pledge that presumably would curtail any last-minute effort to put Simpson on the stand. But the judge declined to force Simpson formally to waive his right to testify, thus at least theoretically keeping the option open for the time being.
Ito’s decision to force prosecutors to begin their rebuttal case without the defense resting was unorthodox, but reflected the judge’s mounting concern about the well-being of the Simpson jury, which has broken all California records for sequestration.
“I want to get witnesses in front of this jury,” Ito insisted as the debate dragged on into the afternoon session.
“Now,” he added emphatically after a pause.
A few minutes later, the jurors re-emerged and filed into the courtroom, where prosecutors presented six witnesses in rapid-fire succession. As the jurors entered, several smiled at Ito, and one paused briefly to chat with a sheriff’s deputy assigned to provide courtroom security.
Witnesses Present Glove Photos
Once in their seats, they quickly picked up their notebooks and immediately began recording the testimony of the first witness they have heard since last Wednesday. That witness was Mark Kruger, an amateur photographer who was taking photographs during a Chicago Bears game Dec. 29, 1990, when he happened to come upon Simpson. Kruger snapped a picture of the football star-turned-sportscaster on that cold, wintry day.
In the photograph, which was displayed for the jury Monday afternoon, Simpson can be seen looking toward the camera, his right, gloved hand near his forehead. In the photograph, the leather glove appears snug and in some respects resembles the ones found near the bodies of Ronald Lyle Goldman and Nicole Brown Simpson and outside Simpson’s house.
Simpson has pleaded not guilty to the double homicide, but prosecutors have attempted to link him to the killings with an array of physical evidence, including a pair of bloody gloves.
Kruger testified that the gloves appeared tight to him--a potentially helpful nugget to prosecutors, who must explain why the crime-scene gloves did not appear to fit Simpson when he tried them on in front of the jury--but acknowledged under cross-examination that the gloves in his picture appear to be black. The gloves found at the crime scene and at Simpson’s home are brown.
Kruger was the first of several witnesses expected to testify about gloves that witnesses saw Simpson wearing during a string of winter football games. A Bloomingdale’s saleswoman testified earlier in the case that she sold extra-large gloves to Nicole Brown Simpson on Dec. 18, 1990, testimony that was backed by a credit card receipt.
The prosecution has never directly linked the gloves to Simpson, but another witness testified that only a small number of the Aris Isotoner gloves were sold. If jurors can be convinced through the photographs that Simpson did in fact own a pair of gloves closely resembling those found near the bodies and at his house, it could significantly bolster the prosecution case and undermine the defense argument that Fuhrman might have planted the glove at Simpson’s home.
Bill Renken, a professional photographer from Cincinnati, brought to court three photographs of Simpson wearing a pair of brown gloves during a Jan. 6, 1991, game.
Jurors took notes and seemed attentive during the testimony of that witness and other photographers as they described the various pictures of Simpson wearing gloves in games as late as early 1994. But a few grumbled when they were asked to leave the courtroom for a few minutes--a middle-aged man in the front row pinched the bridge of his nose in apparent frustration--and several stirred restlessly when prosecutors played a videotape of the 1991 game in Cincinnati.
That clip featured an affable, easygoing Simpson wearing brown gloves, which barely covered the palms of his hands. In those clips, Simpson appeared comfortable and relaxed, especially as he playfully jostled with Bengals quarterback Boomer Esiason.
Those witnesses were followed by three more photographers. In each case, the testimony was substantially the same: Each saw Simpson at a football game, each snapped his picture. And in each, Simpson wore snug gloves, either brown or black.
Defense attorneys complained that the testimony was repetitive, and Clark agreed to drop some of her proposed witnesses.
Nevertheless, Ito permitted the rest of the testimony, all of which was intended to lay the groundwork for the key prosecution glove witness, Richard Rubin. According to prosecutors, Rubin, a former general manager for the Aris glove company, is prepared to say that the gloves worn by Simpson in the photographs--at least those that are brown--are consistent in size, type and stitching to the ones recovered by investigators on the day after the murders.
Defense Returns to Fuhrman
Last week, Ito had promised the jurors that they would begin hearing the prosecution rebuttal case Monday morning, but that became just the latest in a series of broken promises made to the panel.
A wave of legal arguments Monday morning caused the latest delay. The defense asked for permission to gain access to records of a police officer who knew Fuhrman, a motion that Ito did not yet decide, and the two sides jockeyed over the proper scope of the prosecution rebuttal case.
Most significant, however, was the defense’s latest return to the Fuhrman fray, which sparked its latest public protest Monday as demonstrators gathered outside the courthouse to demand his prosecution for perjury.
State Sen. Tom Hayden (D-Santa Monica) released a petition calling for swift action against Fuhrman. Described as a move toward “salvaging the criminal justice system in Los Angeles,” the petition bore signatures from 30 community leaders, including Rabbi Steven Jacobs of Temple Kol Tikvah, the Rev. Leonard Jackson of the First African Methodist Episcopal Church and the Rev. Jim Lawson Jr. of Holman United Methodist Church.
“Too many people have seen Officer Fuhrman lying on the stand and want to know if he will be prosecuted for perjury or whether his badge somehow protects him,” Hayden said.
Fuhrman invoked his 5th Amendment right against self-incrimination last week, refusing to answer defense questions. Ito sought to tell jurors that Fuhrman was no longer available as a witness, but an appellate court stepped in to stop Ito from releasing that information. Still smarting from that appeals court ruling, defense attorney Gerald Uelmen urged Ito to consider an array of other options.
Among them: Striking the portion of Fuhrman’s testimony where he described finding a glove behind Simpson’s house and eliminating the glove itself from evidence; forcing prosecutors to give Fuhrman immunity from testimony and calling him back to the witness stand against his will; and recalling Fuhrman to the stand so that he could invoke his constitutional right in the panel’s presence, a move that legal precedents suggest would be improper.
“Saying nothing and doing nothing actually prejudices the defendant because the jury was aware that he [Fuhrman] was subject to recall,” said Uelmen.
Prosecutor Clark argued against all of the defense proposals, saying they were not supported by “law or logic” and accusing the defense of trying to pick and choose from parts of Fuhrman’s testimony that it liked while disavowing the rest.
In fact, both sides were attempting that.
The defense wants the jury to believe much of what Fuhrman said in order to cast doubt on other witnesses, while still believing that he lied about finding a bloody glove behind Simpson’s house. The prosecution, by contrast, admits that Fuhrman lied when he denied using a racial epithet during the past 10 years, but argues that he told the truth in other aspects of his testimony, including his description of finding the glove.
“There is no merit to any of the requests posed by the defense, and the requests should properly be denied,” said Clark, describing the latest defense motion as “nothing more than a resurgence of their frustration at their inability to parade Mark Fuhrman again before this jury.”
Even without the chance to confront Fuhrman in front of the jury, she said, the defense already has “thoroughly discredited him, and they will have every opportunity to remind the jury of that fact in closing argument as I’m sure they will.”
After siding with defense attorneys last week when he elected to tell the jury that Fuhrman was no longer available as a witness--a decision that drew a rare and pointed rejection from the Court of Appeal--Ito this time agreed with prosecutors. He ticked off each of the options Uelmen had suggested and rejected each one.
Contrary to the assertions of Simpson’s lawyers, the defense team had ample opportunity to cross-examine Fuhrman before he invoked his right not to testify further, Ito said. Fuhrman spent six days on the witness stand this spring, and “his testimony encompasses six full volumes of this court’s transcripts,” the judge said.
Defense Refuses to Rest
That concluded the morning session and shut off most of the remaining lines of argument that the defense had advanced. But Simpson’s lawyers, several of whom came to court in matching African-print ties, were not quite through yet. Returning for the afternoon session, they announced that they still were not prepared to finish.
“As the court is aware, the defense really never rests,” Cochran said in an oblique reference to co-counsel F. Lee Bailey’s autobiography, entitled “The Defense Never Rests.”
“More specifically,” Cochran continued, “in this case, we cannot rest at this point for a number of reasons.”
First, Cochran asked for time to prepare an appeal to last week’s appellate court ruling even though Ito had elected not to contest that court’s decision to overturn his ruling. In addition, Cochran said the defense wanted to resolve the question of its other potential testimony, details of which were shared in confidence with the judge during a hearing Monday. Clark urged Ito to force the defense to rest immediately and to reject what she called “another filibuster proposed by the defense.”
“I am not going to require the defense at this time to rest,” he said, granting the Simpson team a relatively rare victory. “What I will do, though, is exercise my discretion under the penal code and direct that the prosecution, having indicated their ability to go forward with their rebuttal case, direct that they begin presenting their rebuttal witnesses at this time. The defense will have leave to present further witnesses in their case-in-chief on defense.”
Meanwhile, defense attorneys are expected to file their appeal on the Fuhrman issue. According to one defense source, Simpson’s team expects to ask the state Court of Appeal to review Ito’s decisions Monday on the Fuhrman issue and to argue that Ito’s proposed instruction telling the jury that Fuhrman was unavailable as a witness was correct.
As the arguments on various subjects wore on Monday, Ito seemed resigned to the trial’s glacial pace, a tempo enforced by the inability of the two sides to agree on just about anything.
“Ah,” he said with a soft chuckle, “you people.”
Testimony is scheduled to resume today after Ito considers three lingering legal issues--a continuation of a hearing on DNA tests that began Monday, a debate over testimony by an expert on battered women, and renewed controversy over the admissibility of evidence linking fibers from a bloody glove to Simpson’s Ford Bronco.
After those issues are discussed, glove expert Rubin is expected to be the first witness to testify. Despite a list of 51 possible witnesses who remain on tap for its rebuttal case, the prosecution has said it expects to conclude that phase of the case by Friday.
Times legal affairs writer Henry Weinstein contributed to this article.
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