Ito Shows Exasperation as Testimony Winds Down : Simpson case: Jurors snicker at tiff over a syringe. LAPD commander testifies; he could be final witness.

Nearly nine months after the first witness took the stand in the murder trial of O.J. Simpson, the exhaustive and exhausting presentation of evidence stumbled toward a conclusion Wednesday in front of an openly exasperated judge and a tired, snickering jury.

The proceedings neatly book-ended the long case, which opened on Jan. 31 with a low-level Police Department employee testifying about handling an emergency call in 1989 and drew toward a close Wednesday with brief testimony from one of the LAPD’s highest-ranking officers, Cmdr. Keith Bushey.

Bushey’s testimony could end the parade of witnesses altogether. Late in the day, Superior Court Judge Lance A. Ito ruled that the defense could recall a prosecution DNA expert for brief testimony on a narrow topic, but defense sources said that after talking to him, the Simpson team decided against it, effectively concluding the defense presentation.

Bushey was called by prosecutors to show that detectives went to O.J. Simpson’s house to notify him of his ex-wife’s death, not because he was a suspect, as defense attorneys have alleged. Bushey was the officer who gave Detective Ronald Phillips a direct order to carry out that notification, the commander said Wednesday.

“That was not a suggestion,” Bushey testified about his directive to Phillips, repeated later that morning to another officer. “It was not a hint. It was an order.”

Under cross-examination, Bushey acknowledged that notifying the ex-husband of a murder victim was unorthodox but said that he anticipated the case would attract publicity and wanted to move quickly. He said he was disappointed that his officers had not carried out the notification more quickly--it took them more than two hours--but stressed that he did not blame them, given the complexity of the crime scene that confronted them.

Simpson has pleaded not guilty to the murders of Nicole Brown Simpson and Ronald Lyle Goldman. Bushey--now the commanding officer of the LAPD’s Personnel Division and previously the assistant commanding officer of the West Bureau, where the June 12, 1994, murders were committed--was the highest-ranking Los Angeles police officer to take the stand as part of the prosecution’s case.

Although his testimony was relatively straightforward, the attorneys, clearly showing the wear from a trial that has exceeded all time estimates, managed to find yet another tiny issue to bicker about--in the process earning the enmity of the judge and the titterings of a jury that has seen more than its share of courtroom antics.

The latest spat erupted over one of the case’s smallest issues: a stipulation being offered regarding a syringe used by the LAPD to draw blood from suspects such as Simpson. Defense attorneys wanted to present a sample syringe to the jury, along with a statement informing them that it was typical of those used by the department.

After Bushey had finished testifying, defense attorney Peter Neufeld rose to offer that stipulation--an agreement between the prosecution and defense--but Deputy Dist. Atty. Marcia Clark protested that she had not seen it in writing. Neufeld shrugged in exasperation, and Ito, his frustration bubbling to the surface, sent the jury out of the room.

As they left, several panelists giggled at the behavior they had just witnessed. And once they were gone, Ito unleashed his frustration on the lawyers.

“Counsel,” he said sternly, “I realize that we are all tired and we wish this were over sooner rather than later, but this kind of petty bickering is not appropriate and if you heard the snickering of the jurors as they were going out, they thought it was pretty silly too.”

The lawyers tried to defend themselves, but Ito interrupted, focusing most of his anger on Clark.

“It is amazing to me that we have to bicker over a stipulation that this is a syringe used by the LAPD infirmary,” he said. “It is astonishing what we have sunk to here. . . . This is incredible. This is just incredible for both sides.”

With that, Ito strode off the bench, shrugging off the comments of the attorneys as he left the courtroom.

When he returned, a chastened bunch of lawyers agreed to the stipulation. The jury was sent home for the day.

Tired Lawyers Wind Down

More than 100 witnesses have paraded through Ito’s courtroom since Sharyn Gilbert took the stand on the morning of Jan. 31 to describe the call for help during a 1989 altercation in which Simpson hit his then-wife, eventually pleading no contest to spousal battery. Gilbert kicked off a six-month prosecution presentation, which was followed by about eight weeks of defense testimony and then days of sputtering confusion as the defense and prosecution have alternated witnesses.

Some of the witnesses over the past nine months were only there for a few minutes; others spent day after day on the stand, enduring what sometimes seemed like endless rounds of questioning from the opposing lawyers and building a trial record that now fills more than 200 volumes.

In the process, the jury panel--originally composed of 12 jurors and 12 alternates--steadily dwindled, the result of a series of extraordinary investigations that forced the ouster of one panelist after another. But then, just as analysts were warning that a mistrial seemed imminent, the attrition stopped on June 5.

Since then, the panel has remained stable in size--12 jurors and two alternates have hung in there for nearly three more months--if not in temperament.

Once widely commended for their attentiveness, jurors recently have shown signs of growing restless. The panel’s note-taking appears to have dropped off, and at least two members, one man and one woman, have threatened to bolt the jury, only to be persuaded by Ito to stay. Outside the jury’s presence, he has prodded the lawyers to speed it up--an effort that has met with mixed success.

In recent weeks, the avalanche of trial-related developments--from mystery witnesses to legal appeals and swirling controversies over former LAPD Detective Mark Fuhrman--have resulted in frequent delays and have strained whatever collegiality remained among the attorneys. The lawyers all have been pressed into working nights and weekends, and some members of the prosecution and defense teams have grown increasingly drawn.

Wednesday, lawyers for both sides complained of the toll the case has taken.

When Ito posed a question to Clark during the morning session, she paused for a moment to think and came up blank. “I’m so tired, Your Honor,” she confessed.

“This has been a rather mind-numbing experience,” Ito remarked.

Rising to respond, defense lawyer Barry Scheck agreed, calling the trial “a very tiring experience for all of us.”

It also has been a rancorous experience, defying Ito’s hope--expressed early in the trial--that lawyers on both sides could argue vigorously and still remain respectful enough that they all could join him for dinner at the end of the case. Instead, some of the lawyers are barely speaking to each other. In fact, some of the most bitter divisions are within the defense team, not between the two sides.

At one point Wednesday, Johnnie L. Cochran Jr. reminded Ito of his dinner invitation and professed to want to return the rhetoric to a more subdued plane as the trial enters its last phase.

“We are at the end of this trial,” Cochran said to Ito after the jury had gone home for the day. “And early on you said to us that you wanted us to conduct ourselves in a manner so that when this is all over we could all go off and have dinner, and we would be proud of the way we performed in this trial. This has been very hard-fought, but I’m hopeful at the end we can come back full circle to that point.”

Ito smiled thinly but did not renew his dinner invitation with the same vigor that he first offered it.

“It is still my fondest hope, Mr. Cochran,” Ito said. But “as I mentioned to your colleague, Dean Uelmen, that I suspected at this point the invitation was only open to him and Mr. Hodgman,” a reference to defense lawyer Gerald F. Uelmen and Deputy Dist. Atty. William Hodgman, two of the trial’s most distinguished and understated attorneys.

The rest of the legal teams, Ito and Cochran agreed, were reduced to trying to “get back on the dinner list.”

Ito Resolves Remaining Issues

Before closing the books on testimony in the Simpson trial, Ito considered a few lingering legal issues, disposing of them one at a time.

First, he blocked the defense from recalling FBI Special Agent Roger Martz to the witness stand and confronting him with complaints by another agent, Frederic Whitehurst, who has accused Martz in memos and interviews of slanting scientific test results in other cases. Prosecutors complained that Whitehurst did not have relevant information on the Simpson case, and Ito agreed.

“The presentation of additional, complex scientific testimony on a collateral issue would only serve to aggravate and confuse the sequestered jury,” Ito said in a ruling released before Wednesday’s hearing began.

Later, Ito, over the objections of prosecutors, granted a defense request to incorporate about 10 videotape clips into its closing argument, though he approved that idea conditionally, ordering the defense to identify its proposed clips by the end of the day Friday.

More complicated was a heated argument over the defense’s proposal to limit the length of closing arguments, which are scheduled to begin Tuesday, after the jury has been instructed on the law and after a long weekend to honor Rosh Hashanah. Cochran argued that, faced with a tiring jury, Ito should restrict the closing arguments to one day for each side, a proposal that Clark dismissed as the latest defense gambit to secure a tactical advantage.

Given “literally mountains of evidence,” Clark said the prosecution needed time to explain its case coherently. “Please give us the chance to pull it together in front of the jury,” she urged Ito, adding that she too understood the need not to bore the panel and promising to make her presentation as brief as possible.

Cochran asked Ito to impose limits and accused the prosecution of dawdling with its presentation. The defense, he argued, had moved more swiftly and steadily.

“We have usually moved forward in the water like a shark,” he said.

“Bad analogy,” Ito interjected, drawing laughter from the audience and a chuckle from Cochran.

“Bad analogy,” Cochran admitted, laughing. “We moved forward in the water like a dolphin, gracefully.”

After hearing from both sides, Ito said he had spent time consulting with colleagues on the issue of whether he could--or should--impose limits on the arguments. He acknowledged that the length of the trial and apparent weariness of the jury sorely tempted him to impose such restrictions, but Ito, who has treated the attorneys leniently throughout much of the trial, stuck with that approach again Wednesday.

“I’m going to trust the lawyers,” he said. “But having said that, I will come back to the start of this argument with probably three good nights of sleep, so I’ll be on the top of my game as far as staying on top of the lawyers. And I will make sure that there is no redundancy and see that we keep moving.”

More easily resolved Wednesday were the defense’s renewed attempt to suppress the evidence seized in searches of Simpson’s home--this time based on questions raised about LAPD Detective Philip L. Vannatter’s credibility--and a prosecution effort to persuade Ito to tell the jury that the defense had access to prosecution evidence but did not take full advantage of it. Ito heard arguments on both subjects, but then quickly turned down the requests.

Before the jury can begin hearing closing arguments, Ito intends to instruct the panel on the law that will govern its decision. Lawyers plan to haggle over the proposed instructions today, and if all goes as planned, the jury will hear the instructions Friday.

Closing arguments could begin next week, but will be interrupted by a number of upcoming breaks. Ito has scheduled a long weekend over Sept. 30, and Yom Kippur will interrupt the proceedings Oct. 3 and Oct. 4. Given the interruptions and anticipated length of the arguments, they could trail into the week of Oct. 9.