Experts Question Some of Judge’s Rulings on Evidence

The hotline counselor is in. The Mark Fuhrman tapes are out.

The frame-up theory is in. The Colombian drug dealers are out.

The lie detector test is in. Then out. Then, maybe, in again.

It’s up to Superior Court Judge Hiroshi Fujisaki to make these calls in the O.J. Simpson civil trial--to decide what’s in and what’s out, to separate admissible evidence from wild conjecture and irrelevant sideshow. With each decision, Fujisaki shapes the case now unfolding in his Santa Monica courtroom. He also opens himself to a lot of second-guessing.

Lately, evidence experts have begun to question some of Fujisaki’s rulings. They worry that the judge’s decisions may be prejudicing jurors against Simpson. Enough wrong moves, the pundits say, and Fujisaki could end up tainting the trial with “reversible error”--giving an appeals court grounds to overturn any verdict against Simpson.

“Individually, none of these rulings is enough [to be considered] reversible error, but you begin to wonder if in aggregate they create a real problem,” said civil litigator Steven G. Madison, who follows the trial closely.

Loyola law professor Stan Goldman, a frequent visitor to Fujisaki’s courtroom, was more blunt: “My take on this,” he said, “is that the good judge could use a refresher course in evidence.”

Lead defense attorney Robert C. Baker has grown so frustrated at the many rulings against him that he has abandoned any pretense of deference to the judge. Just last week, Baker twice shouted at Fujisaki for making snap judgments against the defense. In one case, Fujisaki ruled that Baker could not show jurors a letter Simpson had written to the police. “You haven’t even seen the letter!” Baker protested. The next day, Fujisaki ruled that the plaintiffs could play a video despite defense objections. “You don’t even know what this video is,” Baker complained.

Legally, Fujisaki has a near-absolute right to call such issues as he sees them. A far more important problem, in the view of some critics, is a troika of questionable evidentiary rulings. In these three decisions, analysts say the judge may have abused his discretion.

He allowed testimony about an anonymous call to a shelter hotline from a woman who identified herself as “Nicole” and who spoke fearfully of her ex-husband stalking her and threatening to kill her. The call came June 7, 1994--five days before the murders of Nicole Brown Simpson and Ronald Lyle Goldman.

Analysts deemed the testimony highly inflammatory, and said it was far too flimsy to be admitted in court since no one could be sure the caller was actually Nicole Simpson. It was excluded from Simpson’s criminal trial as improper hearsay because the caller could not be positively identified, much less cross-examined.

In another controversial hearsay ruling, Fujisaki permitted Al Cowlings to tell jurors about a conversation he had with Nicole Simpson in 1989. According to Cowlings, Nicole confided that O.J. Simpson hit her and pulled her hair during a nasty fight.

The hearsay rule generally prohibits a witness from reporting what someone else has told him. But Fujisaki admitted this particular bit of hearsay because Cowlings testified that O.J. Simpson was nearby during the conversation in question. The judge apparently concluded that because Simpson did not contradict Nicole when she told Cowlings she had been abused, jurors should be allowed to hear her contention in court.

Though such reasoning is legally valid, some analysts said the judge was too quick to apply it in this instance. Cowlings was fuzzy on Simpson’s exact whereabouts, so there was no proof Simpson was in a position to hear and contradict his ex-wife’s accusations. “I don’t think Cowlings’ testimony should have been allowed,” said Goldman, who teaches a class in evidence law.

Fujisaki also drew considerable heat for flip-flopping on the issue of lie detectors.

Testimony about polygraph results is banned from criminal trials and is almost never admitted in civil cases because the tests are considered unreliable. Yet Fujisaki did not intervene when an attorney fired off questions accusing O.J. Simpson of flunking a lie detector test with a miserable score of minus 22.

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Simpson denied even taking a polygraph test. And the judge instructed jurors to disregard the whole subject. But a few weeks later, Fujisaki allowed the defense to bring up the issue again, by contending that Simpson had volunteered to take a polygraph exam for police. Legal analysts pronounced themselves baffled by the whole episode.

“These rulings are giving Mr. Simpson a safety net under the high wire, a second chance [in the Court of Appeals],” attorney Brian Lysaght said. The polygraph and hotline rulings in particular, Lysaght said, “are jeopardizing any verdict that comes in down the road.”

The rulings are particularly striking because Fujisaki has taken a markedly restrictive approach to so many other issues. He has blocked the defense from arguing that the real killer was a Colombian drug dealer, since Simpson’s lawyers have no evidence to back up the theory. Similarly, he has barred the plaintiffs from raising allegations that Simpson took drugs, since that is not relevant to the trial. He will let the defense contend that some evidence was planted, since it was handled in a manner that a reasonable person might consider suspicious. But he will not permit blanket allegations of a massive frame-up.

Given this obvious determination to limit the scope of the Simpson case, many analysts were stunned when Fujisaki suddenly adopted a more expansive view and admitted the testimony of hotline counselor Nancy Ney, a volunteer at the Sojourn House battered women’s shelter.

“If he wasn’t over the line on that one, he definitely had chalk on his feet,” Madison said.

“He’s on extremely thin ice, and I’m being kind,” Lysaght agreed.

Fujisaki declared Ney’s testimony admissible on the grounds that it could help jurors analyze Nicole Simpson’s state of mind about her relationship with O.J. Simpson.

That ruling was unusual because in most trials, the victim’s state of mind is not at issue. From a legal point of view, it simply does not matter whether Nicole feared O.J. Simpson. All that matters is whether he killed her. Any evidence of fear is considered irrelevant; after all, even if Nicole Simpson was terrified of her ex-husband, that does not mean he slashed her throat.

In this case, however, Fujisaki ruled that her state of mind was a legitimate topic for the testimony because the defense had “opened the door” to exploring her emotions.

Simpson raised the issue when he testified that his ex-wife was not afraid of him during a major fight eight months before the murders. He further testified that he did not intend to scare her when he sent her a letter in early June revoking her right to use his address as a tax shelter. With those assertions on the record, Fujisaki declared, Nicole Simpson’s state of mind was fair game for both sides.

But jurors are not trained in the nuances of evidence law. And several analysts said they doubted the jury would be able to understand--much less follow--Fujisaki’s instruction to use Ney’s testimony for the sole purpose of evaluating Nicole Simpson’s state of mind. “It’s a mental gymnastic that no one can do,” Lysaght said.

The inevitable temptation will be for jurors to consider the testimony as proof that O.J. Simpson did in fact stalk and threaten Nicole. “The jury’s going to use it for the wrong reason,” law professor Goldman predicted.

Similarly, analysts said jurors would be hard-pressed to obey the judge’s admonition to disregard the sensational questions about Simpson flunking a polygraph test with a score indicating “extreme deception.”

Even as they debate whether Fujisaki’s decisions have tainted the jury, the pundits wonder whether a higher court would dare to declare the trial unfair if Simpson loses. The relevant question may not be whether Fujisaki has committed reversible error, but whether an appeals court panel would intervene in a case that has become so emotional and so politicized.

Or, as Madison put it: “Would a court of appeal have the courage to overturn a verdict in favor of the families and against O.J. Simpson?”