Justices Overrule Ito on Reference to Fuhrman : Simpson trial: Appeals court decision stuns analysts. Prosecution reveals plans for extensive rebuttal.

Throwing yet another novel twist into the waning days of the O.J. Simpson murder trial, an appellate court stunned legal analysts Friday with a ruling that Superior Court Judge Lance A. Ito exceeded his authority when he decided to inform jurors that former Detective Mark Fuhrman was no longer available as a witness.

That ruling was the highlight of a day that veered between high drama and grinding tedium, and cast doubt on how the case will unfold next week. Theoretically, the defense will rest and the prosecution will begin its rebuttal case promptly Monday morning.

Neither is assured, however. Defense sources said Friday that they may appeal the Fuhrman ruling to the California Supreme Court over the weekend and plan some other courtroom actions before they rest their case.

The prosecution also made it clear that it will be opening an aggressive second front against Simpson when its rebuttal case begins.

Near the end of the court day Friday, Deputy Dist. Atty. Marcia Clark and the rest of the prosecution team--which earlier this week seemed frazzled and on the ropes--detailed a far-reaching rebuttal case with 60 possible witnesses, a presentation whose scope defense attorneys balked at.

The case described by Clark features dozens of witnesses--casting serious doubt on the prosecution’s estimate of completing its presentation in five days--and includes the provocative possibility that prosecutors will attempt to call defense experts as witnesses to testify about the events surrounding Simpson’s failure to surrender to authorities as promised June 17, 1994.

Prosecutors did not broach that subject or Simpson’s famous low-speed pursuit by police during their main case, but Clark said Friday that they intend to call Dr. Michael Baden and another witness to tell the jury about the events preceding the chase. Two other witnesses--Simpson attorney Leroy Taft and assistant Kathy Randa--also may be called and questioned about withdrawing a large amount of cash minutes after Simpson disappeared that morning, Clark said.

When Simpson was arrested later that day, police found nearly $10,000 in cash, a passport and a gun inside his Ford Bronco. Prosecutors maintain that those items suggest Simpson’s consciousness of guilt--evidence that he was fleeing prosecution, not considering suicide, as his lawyers have suggested.

Carl Douglas, one of Simpson’s attorneys, indicated that the defense would probably oppose the prosecution effort to bring up the events of June 17, since the defense did not raise the issue in its case. Rebuttal generally is limited to issues presented during the defense case.

In its ruling earlier in the day, the Court of Appeal directed Ito either to void his order on the Fuhrman jury instruction, or to draft a defense of his decision and file it with the appellate court by Sunday afternoon. In either case, the appellate judges ordered--in bold type for emphasis--that Ito immediately resume the trial, ending a temporary postponement that the judge granted to give the prosecution time to prepare its appeal. And, also in bold type, they ordered him not to stay any other proceedings in this case, a highly unusual move.

After a short deliberation, Ito chose to withdraw his jury instruction rather than contest the ruling of the Court of Appeal’s 2nd District. But Simpson’s attorneys, who had requested the instruction, hastily convened to discuss their options.

“The Court of Appeal’s ruling is unprecedented, and it is terribly unfair,” said Johnnie L. Cochran Jr., Simpson’s lead trial lawyer. “There have been three rulings today--the court’s preliminary ruling, Ito’s vacation of his own order, and the Court of Appeal’s final order--and the defense has not had one chance to file one piece of paper to represent Mr. Simpson’s interests in this matter. This process has violated O.J. Simpson’s constitutional rights. It is extraordinary, unspeakable and totally unacceptable.”

Simpson has pleaded not guilty to the June 12, 1994, murders of Nicole Brown Simpson and Ronald Lyle Goldman. His lawyers have argued that he is the victim of a police conspiracy, and have focused much of their attention on Fuhrman, who testified that he found a bloody glove on a back walk at Simpson’s Brentwood home.

The prosecution has dropped any effort to defend the comments Fuhrman made in interviews with an aspiring screenwriter over a 10-year period, but has vehemently insisted that he did not plant evidence in the Simpson case. Fuhrman testified as part of the prosecution case, but declined to answer more questions when recalled to the witness stand this week by the defense; instead, the recently retired detective invoked his right under the 5th Amendment not to testify further.

On Thursday, Ito weighed arguments by both sides in the Simpson case and decided he would tell the jury that Fuhrman was no longer available as a witness. Ito rejected the defense’s request that Fuhrman be forced to assert his 5th Amendment rights in open court and declined to tell the jury that Fuhrman had refused to testify for fear that he might incriminate himself.

Instead, Ito said he would tell the jury: “Detective Mark Fuhrman is not available for further testimony as a witness in this case. His unavailability for further testimony on cross-examination is a factor you may consider in evaluating his testimony as a witness.”

Although that instruction represented a compromise between the defense and prosecution positions on the issue, Clark was outraged by Ito’s decision. In their appeal, prosecutors accused the judge of exceeding his authority and misinterpreting the law with his proposed instruction--particularly the portion that informed the jury that it could consider Fuhrman’s unavailability in assessing his credibility.

“Several defense witnesses have testified in contradiction to statements made in Fuhrman’s earlier testimony,” the prosecution appeal said. “The jury has heard damaging tape-recorded out-of-court statements by Fuhrman. Fuhrman’s unavailability means that there will apparently be no rebuttal from him to this impeaching evidence. . . . With the impeaching evidence which has already come in, is it really necessary to unlawfully add to that impeachment by having an inference drawn from the invocation of the privilege against self-incrimination?”

Prosecutors added that another course is available to the defense, should Simpson’s lawyers choose to pursue it: They could ask for Fuhrman’s testimony to be stricken.

Simpson’s team has declined to do that, however, partly because of the unusual circumstances surrounding Fuhrman’s testimony. Far from wanting it dropped, Simpson’s lawyers want the chance to stress Fuhrman’s testimony and his role in the case because it represents their strongest, though still indirect, evidence of a police conspiracy.

A Slap at Ito

The prosecutors’ appeal marked the first time during the long trial that they have sought relief from the appellate court. They pursued that course despite the skepticism of many legal analysts--a skepticism shared by some members of the government team itself--but that court’s decision affirmed their reasoning at Ito’s expense.

“Pending further order of this court, the proposed instruction regarding the unavailability of former Detective Fuhrman is not to be given,” the appellate decision, signed by Presiding Justice Paul Turner and Associate Justice Orville J. Armstrong, said in remarks directed at Ito. “You are hereby ordered not to stay any other proceedings in this case.”

Legal experts were surprised, both by the ruling itself and by the sharp language that the justices adopted.

“I’ve looked at more than 4,000 writ petitions during my career, and this order is unique,” said Edward J. Horowitz, a past president of the California Academy of Appellate Lawyers. “The fact that the Court of Appeal issued this order surprised me, though I suppose nothing about this case really should surprise us at this point.”

Still, Horowitz said, “the overall order is extraordinary. Obviously, the Court of Appeal is acting with speed because the Simpson trial is almost finished.”

Peter Arenella, a UCLA law professor and one of many legal analysts who had predicted that the prosecution appeal was doomed to failure, conceded that the ruling took him by surprise.

“So much for the consensus of legal pundits, myself included,” said Arenella. “Marcia Clark apparently knew something that the rest of us didn’t. For the Court of Appeal to intervene in this fashion is extraordinary and a real slap at Judge Ito.”

Kent Richland, a Beverly Hills appellate lawyer and the current president of the California Academy of Appellate Lawyers, agreed that action was highly unusual: Appellate courts in California only intervene in trials about 10 to 12 times a year, he said.

In this case, he added, the ruling leaves Simpson’s team with few options.

“Ito’s compliance [with the appellate court ruling] means the defense no longer has standing to defend the original order,” Richland said.

He added that the defense could appeal to the state Supreme Court, but he and other experts did not consider it likely that Simpson would prevail there.

“The likelihood that the California Supreme Court would get involved is virtually nil,” Richland said. “They don’t want to hold up these proceedings, and they realize that should there be a conviction, the defendant has a right to appeal.”

Nevertheless, Simpson’s defense team quickly retained Santa Monica appellate lawyer Dennis Fischer, a leading authority on the California Constitution. With him, the Simpson attorneys were weighing an appeal to the state Supreme Court and were considering whether to ask the Court of Appeal to revisit the whole question of whether Fuhrman can be compelled to assert his 5th Amendment protection against self-incrimination in front of the jurors.

In any event, one defense source said, Simpson’s lawyers do not intend to rest the defense case Monday, as Ito expects.

“We will arrive in court Monday with a series of options and demand that our client be allowed to avail himself of his rights to due process and confrontation,” the source said. “We intend, among other things, to reopen the whole question of whether Fuhrman should go in front of the jury. We may demand that he be given a grant of immunity so that the jury can hear what he has to say.”

Cochran did not comment on the likelihood of the defense pursuing that course, but said: “We may go to the Supreme Court on these issues. If we do, we expect a fair and thorough hearing.”

City, ACLU Seek Tapes

In court meanwhile, Ito spent most of the day sifting through a host of dry legal arguments on the admissibility of defense exhibits while jurors had a day off.

Near the end of the day, however, the proceedings were enlivened by a spirited debate over requests by the Los Angeles city attorney and the American Civil Liberties Union for Ito to lift a protective order that prevents dissemination of the tapes and transcripts of the interviews between Fuhrman and aspiring screenwriter Laura Hart McKinny.

McKinny’s lawyer, Matthew Schwartz, fought any further dissemination of the material, saying that it would devalue her intellectual property. Arguing that his client had invested 10 years of her life and work in creating the tapes, Schwartz said she should not be deprived of them, even in a case involving great public and official interest in her interviews.

But Schwartz ran into a rare united front of attorneys in and around the case. City Attorney James Hahn and Douglas Mirell, a lawyer representing the ACLU, led the opposition, with each arguing that city and public interests demanded the release of the material, which already has been shared with the defense, prosecution and judge.

Clark joined in that call. “Our position is that the tapes should be released,” she said at the outset of the discussion.

At first, the defense held back, saying it would defer to McKinny’s lawyers. But after hearing the arguments, defense attorney Carl Douglas announced a change of heart, saying that the defense believed the public interest would be best served by the release of the materials.

Ito declined to rule from the bench. He said he would consider the issue further and release a ruling later.

The Rebuttal Case

Barring a successful defense attempt to overturn Friday’s ruling by the appellate court, the prosecution is scheduled to open its rebuttal case Monday morning.

Clark said prosecutors will begin by calling about 10 photographers to describe pictures and videotapes of Simpson wearing a pair of leather gloves resembling those found at the scene of the crimes and behind Simpson’s house.

Those witnesses have been long expected, but Clark and Deputy Dist. Atty. Hank Goldberg revealed for the first time that prosecutors also intended to venture into other, more controversial areas. After resting their main case without reopening the topic of domestic violence, for instance, Clark said prosecutors now are considering calling an expert to tell the jury how husbands who murder their wives can be expected to behave before and after committing the crime.

That proposed witness, a domestic violence expert named Don Dutton, has conducted a study of husbands who killed their wives, and Clark said he would be called to rebut defense witnesses who testified about Simpson’s calm demeanor before the killings and apparent grief afterward.

Other key elements of the prosecution’s proposed rebuttal case:

* At least one or two witnesses will testify about another DNA test, performed using the highly sensitive RFLP analysis, which turned up genetic markers consistent with those from O.J. Simpson and Goldman inside Simpson’s Bronco. That could be highly significant evidence, because it would represent the strongest link between Simpson and that victim, but defense attorneys complained that delays in the prosecution DNA testing should prevent that evidence from being admissible.

* Several witnesses will be called in response to the testimony of defense witness Robert Heidstra, who said that he did not hear dogs barking in the neighborhood until 10:30 p.m., but that he also saw a car resembling a Ford Bronco rapidly leaving the area. One of the additional witnesses is expected to say that Heidstra told her he heard Simpson’s voice that night.

* Expert witnesses will explain imprint evidence that defense experts suggested could have been left by a second person at the scene of the crimes. The prosecution, according Goldberg, intends to respond by arguing that the marks could have been left by Goldman’s jeans.

The scope of the prosecution rebuttal case seemed to take defense attorneys by surprise. Barry Scheck, one of Simpson’s lawyers, complained that prosecutors had not turned over material related to some of the upcoming witnesses, and threatened to demand adjournments so that the defense can prepare for some of them.

“They took advantage of the fact that we’re all sick and tired of how long this is taking and the jury is sick and tired and we’re all on edge,” Scheck said. “But the point is, I will not on behalf of this client permit this kind of situation where we’re going to be ambushed.”

Legal experts were struck by the new assertiveness of the prosecution team and by the breadth of its proposed case.

“I think they’re doing this because they feel they’ve been badly damaged by the defense case,” said Georgetown Law School professor Paul Rothstein, “and feel that they have to do something major in response.”

Rothstein warned that prosecutors may have a hard time convincing Ito that some of their new evidence is admissible, particularly the testimony about Simpson’s failure to surrender and the subsequent low-speed chase. Neither side has ever broached that subject during the trial.

Laurie Levenson, a Loyola Law School professor who has closely followed the trial, agreed that the prosecution was confronted with the likelihood that its counterparts would object to the scope of the Bronco evidence and other proposed elements of the rebuttal case. But she was struck by the prosecution’s new assertiveness and its ambitious plans for the trial’s closing weeks.

“The prosecutors have played it very close to the vest,” she said. “They now realize the value of some surprise. The defense has been surprising them every step of the way. Now, it’s their turn.”

Times staff writer Tina Daunt contributed to this article.

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Legal Maneuvers

BACKGROUND

* Friday morning, the prosecution asked the Court of Appeal to prevent Judge Lance Ito from telling jurors in O.J. Simpson’s murder trial that former LAPD Det. Mark Fuhrman is “not available for further testimony” and that they could weigh that fact in judging his credibility.

WHAT HAPPENED

* Friday afternoon, the Court of Appeal ordered Ito not to read jurors his proposed instruction. Ito said he would comply.

WHAT COMES NEXT

* Simpson’s lawyers have no recourse on Friday’s action by the appellate Court. However, they may ask the justices to review all Ito’s rulings on Fuhrman’s assertion of the 5th Amendment privilege.

OR:

Simpson’s lawyers could ask the California Supreme Court to consider the proposed jury instruction as well as Ito’s earlier ruling that Fuhrman cannot be compelled to “take the Fifth” in front of the jury. The defense also will seek to call additional witnesses, and may ask that Fuhrman be given immunity from prosecution so that he can be forced to testify.