Judge Refuses to Probe False News Leak in Simpson Case

Superior Court Judge Lance A. Ito, wrestling with media coverage of the O.J. Simpson case and its potential impact on the jury, denied a defense request Friday for permission to conduct a far-reaching investigation of how a false report made its way onto television.

That report--a KNBC Channel 4 story saying DNA tests of blood on socks found in Simpson’s bedroom genetically matched Nicole Brown Simpson’s--has emerged as a major point of contention in the case because prosecutors and defense attorneys have both said it was incorrect. After first standing by the story, KNBC later acknowledged that it had erred.

Ito ruled that the story has been so widely denounced that it no longer poses any danger to Simpson’s ability to receive a fair trial.

“I don’t see that it is prejudicial to the defendant at this time, and the court declines to proceed further in this matter,” Ito said.

In fact, the judge has cited the KNBC report in his discussions with potential jurors in order to emphasize that they should not believe everything they read or hear about the case.

The ruling headed off the latest aggressive attack by defense attorneys, who had hoped to use the hearing to ferret out the “source and purpose” of leaks that they said had compromised Simpson’s rights. Simpson has pleaded not guilty to the June 12 murders of Nicole Simpson and Ronald Lyle Goldman.

Through the hearing, Simpson’s lawyers had hoped to show that the KNBC report was more than inaccurate. They have suggested that police gave the information to KNBC knowing that it was false but expecting to manipulate future tests on the socks in order to falsely implicate Simpson. Although they have produced no evidence that such tampering has taken place, the defense attorneys have made the accusation in court documents and arguments.

Robert L. Shapiro, one of Simpson’s lead attorneys, said that police were perpetuating a “self-fulfilling prophecy” and that he wanted to take testimony from three employees of the LAPD Scientific Investigation Division, four employees of KNBC or NBC, LAPD Cmdr. David J. Gascon and a deputy district attorney.

“We do not want to accuse anybody. We do not want to destroy anybody,” Shapiro said. “We want the opportunity to conduct an inquiry.”

But Shapiro’s request was vigorously contested by media lawyers and an attorney appearing on behalf of the American Civil Liberties Union. Ann Egerton, representing KNBC, said the station’s reporter and president would invoke the state’s shield law that protects journalists from revealing their sources.

Moreover, Egerton accused Shapiro of hypocrisy, citing news reports that appeared to be generated by defense sources. An article in the New Yorker magazine leveled an attack on Detective Mark Fuhrman and quoted unnamed defense attorneys calling him a racist and a “bad cop” who might have planted evidence in the case.

Douglas E. Mirell, an ACLU lawyer, also objected to proposed questioning of the KNBC staffers, including reporter Tracie Savage, who was in the courtroom. He said the proposed questioning was collateral to the main issues of the trial and would not reveal anything of substance.

Meanwhile, Shapiro agreed to release Gascon from his subpoena after the commander, who is the LAPD’s chief spokesman, said he would sign a declaration denying that he was the source of the KNBC report and stating that he did not know who leaked that information to the station.

After hearing those arguments, Ito ruled against the defense, at least for now removing the KNBC report and its fallout from the list of far-ranging issues that have cropped up in the Simpson case. Media issues will soon return to the top of the court agenda, however: Ito has scheduled a Nov. 7 hearing to decide whether to bar cameras from his courtroom for the duration of the trial.

With the case receiving enormous national attention, attorneys for both sides have complained that the task of finding an impartial jury is difficult, and Friday’s jury selection session continued to move ploddingly.

Only five prospective jurors were questioned during a morning session in which Shapiro for the first time actively took part in the inquiry.

One person was removed from the panel Friday. The potential juror, a 68-year-old South-Central Los Angeles man, had repeatedly ignored a bailiff’s admonitions to stop reading a booklet titled “Instant Pain Relief” as he sat in the courtroom audience.

When Ito asked why he insisted on reading, the man replied: “I was way ahead and knew what the answer was going to be. I don’t take it serious.”

Shapiro tackled the task of questioning jurors with vigor, his sharp, sometimes abrasive style in contrast to co-counsel Johnnie L. Cochran Jr.’s softer touch. When Shapiro pressed a 65-year-old woman from West Los Angeles on how she would feel if she had been unjustly accused of murder and had a jury with someone like herself on it, the woman became clearly flustered.

“I can’t put myself in his shoes,” she responded. “I don’t know what exactly you’re trying to get out of me.”

Under continued questioning from Shapiro, the woman also acknowledged that she had heard 911 tapes from a 1989 incident in which Nicole Simpson called police for help as a man she identified as her ex-husband tried to break down a door. The prospective juror said she had mistakenly believed that O.J. Simpson had physically attacked his ex-wife in that incident.

Much of the oral questioning Friday focused on those tapes. All five jurors questioned said they could put aside what they thought about the tapes and judge Simpson fairly.

But the overwhelming majority of prospective jurors have said they heard the tapes, and the breadth of their dissemination has caused great concern. More than 90% of the prospective jurors said in their responses to written questions that they had some information about the tapes, Ito said.

“They’ve indicated that they are aware of it, that it stuck in their minds,” he said.

Shapiro said the decision by the city attorney’s office to release those tapes was grossly negligent and asked for additional peremptory challenges--those that each side can use to remove prospective jurors without stating a cause--as a way of compensating Simpson for the harm he had suffered as a result.

But representatives of the district attorney’s office and city attorney’s office each objected on varying grounds--noting that 911 tapes typically are public records and that the request in the Simpson matter was handled in exactly the same way as other requests for such information.

Deputy Dist. Atty. Marcia Clark also said the tapes may still be admitted as evidence, in which case their public broadcast would not significantly affect Simpson’s ability to receive a fair trial. In fact, she argued that some jurors might be less affected by the tape than they otherwise would have been because the shock of hearing it for the first time in court would no longer be there.

Although Ito said he shared the concerns about the tapes’ release, he deferred a ruling on the defense request for additional peremptory challenges. Ito said he would see whether each side exhausts the 20 peremptory challenges that they have been granted for the jury selection. If they do, he said he would return to the issue of the tapes.

At the end of Friday’s session, defense attorneys were in the process of renewing their challenge to evidence seized from Simpson’s Ford Bronco after the killings. Prosecutors have prevailed in previous defense efforts to challenge items taken from the car, but the latest effort revolves around a tow yard employee who testified Friday he took two vouchers or receipts.

Simpson’s lawyers argue that his improper entry into the car broke the chain of evidence required. They are asking that later tests performed on the vehicle be disallowed. Those tests revealed signs of blood that had previously gone undetected.

Meanwhile, prosecutors vainly attempted to fight back against a more serious challenge to their evidence. Ito indicated earlier this week that he is considering imposing a deadline on scientific tests performed on blood samples because prosecutors had delayed sending those samples to labs.

Friday, Clark asked Ito to consider a letter from the prosecution explaining the status of DNA tests before making that ruling. But an obviously irritated Ito said prosecutors had missed their chance to make that argument despite his efforts to alert them that they were in trouble.

He refused Clark’s request and said he hoped to have a ruling Monday on the deadline. If he were to set an Oct. 21 deadline sought by defense attorneys, prosecutors could be forced to go to trial without key pieces of scientific evidence. A later deadline would do less harm to the case, however.

Jury selection resumes Monday morning, when questioning will continue with the first panel of prospective jurors. So far, just nine of the 84 panelists who showed up for the first day of jury selection have been questioned.

Ito has expressed impatience with the progress, but so far has been reluctant to interfere with the attorneys as they pose questions to the members of the panel.