Ito May Penalize Simpson Prosecutors Over DNA Tests

Trading sarcastic and sometimes caustic barbs, prosecutors and defense attorneys accused each other Tuesday of manipulating the issue of scientific tests in the O.J. Simpson murder case in order to secure tactical advantages, and the judge threatened to exclude some DNA results if it turns out that prosecutors delayed testing.

Barry C. Scheck, the defense team’s principal DNA legal expert, asked Superior Court Judge Lance A. Ito to punish prosecutors for allegedly stalling so that a complete set of final DNA test results would not be available to the defense when a key hearing on DNA evidence begins later this month or in early November.

“This was tactical,” Scheck said. “We believe this was a purposeful effort.”

Lisa Kahn, the prosecution’s chief DNA advocate, replied that defense attorneys were deluging Ito with frivolous requests “designed essentially to confuse and mislead the court.”

The only tactical maneuvering, Kahn said, was by defense lawyers trying to disrupt the prosecution’s right to test its own evidence.

Ito took the defense argument seriously, however, and said he would rule Friday on whether to exclude some test results. “If there is a purposeful delay, there ought to be a sanction, and the sanction will probably be denial of admissibility of this evidence,” Ito said.

That threat carries significant danger for the prosecution: If Ito rules in favor of the defense, prosecutors could lose the right to introduce some blood samples that have been subjected to DNA tests--including tests that are being conducted on a bloody glove found outside Simpson’s Brentwood home.

The DNA tests are considered a mainstay of the prosecution effort, as authorities hope to use them to show that Simpson was at the scene of the crime and that he was cut in a struggle with Ronald Lyle Goldman. Goldman and Nicole Brown Simpson were killed June 12, and Simpson has pleaded not guilty to the double homicide.

Rather than excluding any test results outright, however, Ito could decide to impose a deadline for test results. Defense attorneys asked him to disallow any results obtained after Oct. 21, and Ito mused about imposing a deadline to coincide with opening statements in the trial.

Those statements are not expected until mid-November at the earliest. By then, prosecutors hope to have all their tests completed, so imposing a cutoff then might do little damage to their case.

During Tuesday’s hearing, Ito was clearly bothered that some blood samples were not forwarded to the DNA labs until mid-September, months after the investigation began. Based on that evidence, he said the defense had made a prima facie case that there had been a delay in testing, and Kahn struggled to explain the reasons that prosecutors had not moved more quickly.

Ito granted defense requests for access to some of the records Simpson’s lawyers had sought regarding other work by the labs involved in the case. In general, Ito has turned down defense motions, and at one point Scheck appeared surprised that the judge was ruling in his favor.

“I’m going to direct that it be produced,” Ito said of the defense request for information about the DNA labs. “So you won that one.”

From the opening days of the Simpson investigation, it has been clear that DNA tests would form an important element of the prosecution case. How many of those test results will be allowed into evidence will be decided largely by an upcoming hearing, and as that session draws closer, the two sides have become increasingly contentious.

On Tuesday, the acerbic confrontation between Kahn and Scheck pitted two experienced and sharp-tongued DNA experts in a spirited, sometimes personal conflict. Both vigorously argued their cases, making no secret of their contempt for one another: There was eye-rolling and interrupting on both sides.

When Kahn accused Scheck of filing requests intentionally designed to keep busy lab technicians from completing their work, Scheck stood next to her, shrugging his shoulders, shaking his head and holding up his hands in amazement.

Later, when Scheck suggested that a state Department of Justice laboratory was conducting a kind of DNA analysis known as RFLP, Ito said he had not heard of any such tests being conducted there, and Kahn enthusiastically agreed.

“Maybe Mr. Scheck has some new information he can share with us,” she said, grinning and staring at her counterpart.

The spat peaked after Kahn accused Scheck and his legal partner of trying to do their own evaluation of scientific work. Scheck denied that and added that Kahn was continually mispronouncing his name.

“I’m awfully tired of the personality battle that’s going on here,” Ito said in exasperation. “It doesn’t help me. . . . It annoys me.”

Ito did not rule on the request for sanctions on the DNA issue, but said he expected to take that up again Friday, when he has scheduled hearings on several other matters. Among them is a defense motion asking for a special hearing on the “source and purpose” of leaks to the media regarding evidence in the Simpson case.

In their motion, primarily drafted by attorney Alan Dershowitz and filed under seal, Simpson’s lawyers state that “false, distorted and misleading information has repeatedly been leaked to the media by members or agents of the police-prosecution team” and that the release of that information “constitutes a flagrant violation of the defendant’s state and federal constitutional rights to due process.”

Simpson’s lawyers also suggest that police might have gone beyond merely leaking information, and could have manufactured evidence.

“The motive for leaking false information is the same as the motive for deliberately manufacturing false evidence--to help convict O.J. Simpson of crimes the police believe he is guilty of,” the motion states. “Indeed, now that the police have been criticized for leaking false information, they have an enhanced motive to make that false information turn out to be true.”

Robert L. Shapiro, one of Simpson’s lead attorneys, submitted a declaration along with that motion citing three news reports that he accused police or prosecution officials of supplying. According to defense attorneys, two reports were incorrect--one that aired on KNBC stating that blood from a sock in Simpson’s room had been genetically matched to Nicole Simpson, and a second that ran in Newsday asserting that DNA tests of a carpet from O.J. Simpson’s Ford Bronco showed his ex-wife as the source of that blood.

Shapiro also cited a third story, from The Times, stating that DNA test results of at least two blood drops found at the scene pointed to Simpson as the source. Shapiro did not contest the accuracy of that report, but accused police and prosecutors of leaking the information to The Times.

If defense attorneys can establish that police officers or officials from the Los Angeles County district attorney’s office improperly supplied information to reporters, one remedy might be to allow the defense additional peremptory challenges to be used during jury selection, the motion states.

Other possible remedies advocated by Simpson’s lawyers range from excluding leaked evidence to giving jurors specific cautionary instructions to outright dismissal of the charges against their client.

Jury selection in the celebrated trial will resume today as the first panel of prospective jurors returns to Ito’s courtroom to be questioned about their knowledge of the case and their ability to serve impartially.

That process is expected to be a grueling one that could last several weeks. At the request of news organizations, Ito has agreed to allow an audio feed from his courtroom to a nearby pressroom and to permit several pool reporters to attend the sessions.

But Ito has expressed concerns that media might broadcast the audio feed, which would violate court rules against transmitting or photographing jury selection. In a rare appearance in the midst of a press corps with whom he has feuded in recent weeks, Ito toured the press area of the Criminal Courts Building on Tuesday afternoon.

“The sound quality is excellent,” the judge commented as a technician demonstrated to him how the system will work.

Just as he prepared to leave the room, Ito was struck lightly on the head by a boom microphone that was being held over his head. The judge took the accident in stride, smiling slightly but ignoring the questions hurled at him by the throng of reporters who have gathered from around the country for the trial.

* BALANCING ACT: Sam Sheppard trial may hold a lesson for Judge Ito. B1

THE SIMPSON CASE. A daily update. Trial Highlights

A look at some of the key events in the O.J. Simpson murder trial Tuesday:

* Summary: Lawyers for the prosecution and defense argued over DNA tests during the final court session before jury selection resumes today.

* Court action: Superior Court Judge Lance A. Ito ordered prosecutors to turn over information regarding various DNA labs to the defense. He deferred a ruling on the defense request for sanctions against the prosecution based on alleged delays in the testing. Ito will rule on that issue Friday, and his decision could affect an array of items being tested to determine the source of bloodstains.

* Outside the courtroom: Ito, who has attacked much of the news coverage of the Simpson case, toured the press area on the 12th floor of the Criminal Courts Building. While there, the judge was accidentally bumped on the head by a microphone boom, but he shrugged off the incident good-naturedly.