Ito Allows Second-Degree Murder Option


Over the vehement objections of O.J. Simpson’s lawyers, Superior Court Judge Lance A. Ito cleared the way Thursday for jurors to consider compromise verdicts in the case, allowing them to find Simpson guilty of second-degree murder if they cannot agree to convict him of first-degree charges.

Ito’s ruling on that issue was part of a frustrating day for the defense. The judge also turned down virtually every special jury instruction proposed by the defense. Although many of them were offered without much hope of being accepted, the Simpson team was disappointed with Ito’s rejection of proposed instructions regarding how the jury could interpret former LAPD Detective Mark Fuhrman’s testimony and how it should evaluate the statistical significance of DNA evidence in light of laboratory error rates.

Meanwhile, the California Supreme Court unanimously rejected the defense team’s request for a special instruction regarding why Fuhrman did not reappear during the trial--a ruling that had been expected but that ended the defense’s last-gasp effort to tell the jury something more about the detective.

Simpson has pleaded not guilty to the murders of Nicole Brown Simpson and Ronald Lyle Goldman. Arguing that their client is the victim of a police conspiracy, defense lawyers have focused much of their case, particularly in its closing weeks, on discrediting Fuhrman and suggesting that he may have planted evidence to implicate the former football star in the double homicide.

Displaying his frustration at Ito’s rulings against the defense Thursday, Simpson attorney Barry Scheck stormed out of the courtroom at the lunch break, hurling a crumpled piece of paper toward a trash can and muttering to reporters as he left. How many ways, Scheck asked rhetorically, can the defense be rejected?


Despite sometimes-heated arguments--Simpson attorney Gerald F. Uelmen at one point suggested that Deputy Dist. Atty. Brian Kelberg was arguing like an ill-informed law student--the day included one rare note of conciliation.

During the afternoon session, Robert Blasier, one of Simpson’s lawyers, told Ito that the defense was willing to withdraw all its remaining requests for sanctions against the prosecution if the government lawyers would join them.

“Your Honor,” Kelberg said, “I’m glad to elevate the public’s perception of the legal profession by gladly joining in that stipulation.”

“All right,” said Ito, whose patience was stretched thin Wednesday as he chided the attorneys for bickering in front of the jury. “Thank you.”

Ito Approves Instructions

Simpson’s attorneys had objected to a number of jury instructions proposed by the prosecution, but none more forcefully than the one on second-degree murder. Instead, defense lawyers had gambled on an all-or-nothing strategy that would have forced the jury to choose between finding Simpson guilty of a premeditated double homicide or letting him go free.

From the start of the trial, Simpson’s lawyers readily acknowledged that the June 12, 1994, murders were the premeditated act of a motivated murderer or murderers. They insisted, however, that their client was not the person responsible.

“The position of the defense is that yes, these are premeditated murders that the defendant did not commit,” Uelmen said Thursday.

Prosecutors, who charged Simpson with two first-degree murders June 17, 1994, argued that reasonable jurors might conclude that at least one of the homicides, particularly that of Goldman, was carried out on the spur of the moment. Kelberg said that just because prosecutors believe both killings were premeditated does not mean that jurors should be bound by that.

“They have to look at evidence of planning, they have to look at evidence of motive,” Kelberg said of the jurors. “This jury should not be placed with that Hobson’s choice of either convicting this man of first degree . . . or setting this man free because the law says he’s either a first-degree murderer or you have to set him free.”

Ito agreed with the prosecution. The presence of a dark watch cap, gloves and fibers suggesting that the killer or killers wore dark clothing seems to indicate that Nicole Brown Simpson’s murder was premeditated, he said, but that does not necessarily support the contention that Goldman’s murder was equally thought out.

As a result, Ito said he would allow the panel to consider second-degree murder as an option.

O.J. Simpson stared at the judge incredulously as he announced his decision to tell the jury that it could consider a second-degree murder conviction. Then Simpson shook his head and muttered comments to two of his lawyers.

“I think it’s a very important ruling for the prosecution,” Laurie Levenson, a Loyola law school professor, said of Ito’s ruling. “When you have a popular defendant, jurors will be reluctant to come back with a first-degree murder conviction. Now they have some options. The defense is right in that the jurors might choose to compromise.”

But Peter Arenella, a UCLA law professor who has followed the case closely, added that the second-degree charge is only significant if jurors first conclude that Simpson was the culprit.

“If there are a substantial number of jurors who are not persuaded that Simpson did these acts,” he said, “a Murder 2 instruction is a complete irrelevancy.”

Outside court, defense lawyers said that in light of Ito’s ruling, they would ask that second-degree murder be an option for the jury with respect to both victims because they do not want the jury to adopt the prosecution theory that Nicole Simpson was the intended target and that Goldman merely happened upon the scene of that crime and was killed as well.

Ito ruled on the second-degree murder issue during the morning session, and proceeded to turn down dozens of proposed special instructions that the defense had offered. The judge did not allow an instruction singling out Fuhrman for the jury’s attention by informing the panel that Fuhrman’s denial of having used a racial epithet--a denial later shown to be false--"was a material part of his testimony.”

Prosecutors always have disputed that, and objected to the jury being directed to come to that conclusion. Ito agreed.

And he turned down dozens of other instructions sought by the defense, including proposals on how to evaluate DNA test results, how to consider evidence of efforts to fabricate or plant evidence, and how to weigh such notions as reasonable doubt.

The jury will hear an instruction warning the panel that a witness who lies on one material fact can be considered skeptically when it comes to others, an instruction that the defense will hammer on with respect to Fuhrman. The defense also maintains that Detective Philip L. Vannatter lied about his real reasons for going to Simpson’s house on the morning after the murders, but prosecutors have rebutted that assertion.

Aside from the second-degree murder instruction, the decision that most seemed to irritate the defense team was Ito’s refusal to accept a special instruction on the significance of DNA test results. Scheck and his colleague, Peter Neufeld, have argued that the prosecution’s astronomical DNA statistics--some of which show that only one person in billions would have the genetic markers found in bloodstains at the crime scene and Simpson’s house and vehicle--overlook the possibility that the “matches” were attributable to laboratory error.

Simpson’s lawyers wanted the jury to be reminded about the potential significance of error rate in evaluating the meaning of DNA matches, but Ito ruled that the issue had been explained in testimony--and could be raised in closing arguments--and therefore did not need to be contained in a jury instruction.

By day’s end, the instruction tally seemed to indicate that the defense had little to show for itself. But legal experts said many of the Simpson team suggestions were long shots.

“The defense knew beforehand that they were going to lose on almost all these special instructions,” Arenella said, adding that the defense nevertheless proposed them in the hopes that Ito might approve a few or take the suggestions into account in evaluating the language of other instructions.

Dream Testimony

Near the end of the day, Ito revisited what many analysts view as his most legally suspect decision of the trial, his ruling allowing the testimony of a former Simpson friend, Ronald G. Shipp, regarding a conversation in which Simpson allegedly said he had dreamed of killing his ex-wife.

Ito was widely criticized for letting the jury hear that testimony, and Thursday seemed to acknowledge that he had made a mistake.

“Don’t you think,” Ito asked prosecutor Kelberg, “that if I perceive a significant problem and if I can avoid having this case come back [on appeal] by giving an appropriate instruction, better late than never?

“No, I don’t think so, Your Honor,” Kelberg began, “because . . .”

“Because,” Ito interrupted with a smile, “Shipp happens?”

Kelberg paused and members of the audience laughed loudly. After a moment, Kelberg continued, smiling but persistent.

“To be honest with you, I think if the court really felt the court made a mistake, the court would entertain a motion to strike the testimony and instruct the jury to disregard it,” Kelberg said.

Uelmen quickly picked up the prosecutor’s suggestion that the testimony be stricken, requesting that move. Failing it, Uelmen endorsed Ito’s suggestion that a special instruction be given to the jury limiting the ways that it could evaluate the controversial dream testimony.

Ito elected not to strike the testimony but instead to read an instruction. In it, he proposed to tell jurors that they first had to determine whether Simpson ever made the comment to Shipp. If they find that, then the jurors must decide whether the comment reflected Simpson’s subconscious thought or whether it was an expression of his conscious desire or expectation.

Only in the event that the jury concludes that the statement was made and that it was not a subconscious thought could it be considered for any purpose, Ito said in the instruction. Even then, he added a further note.

“Evidence of oral statements made by a defendant,” Ito said, “should be viewed with caution.”

Arguments Next Week

Having disposed of the jury instructions and a handful of other issues, Ito has cleared the decks for the trial’s final courtroom drama: closing arguments. Today, he will read the instructions to the jury, which will thus be armed with Ito’s conclusions about the law governing the case when closing arguments begin, presumably Tuesday.

Unless the court elects to lengthen the court days next week, Deputy Dist. Atty. Marcia Clark has indicated that she expects to take at least two days with the initial section of her closing argument. Simpson’s lead trial lawyer Johnnie L. Cochran Jr.--who, like Clark, was not present for Thursday’s session--is expected to take at least a day or two for his.

Only three days of court are scheduled next week. Court is not in session Monday because of a Jewish holiday and the judge has a longstanding personal engagement Friday that he said cannot be changed. Under that schedule, the lawyers’ initial arguments could carry over into the following week. Then prosecutors will have the opportunity to rebut the defense argument, a chapter that could be brief or extensive, depending on the issues and theories raised by Cochran and his colleagues in their final statement to the jury.

“We have an unusual confluence of bad timing, calendar-wise,” Ito acknowledged Thursday.

As a result, Ito said he was considering a defense proposal to lengthen the court days next week to cram in at least the initial arguments by each side in the three days scheduled for sessions. Prosecutors expressed some concern about that idea, but Ito indicated that he was inclined to consider it.

Times legal affairs writer Henry Weinstein contributed to this story.