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Ito May Penalize Simpson Prosecutors Over DNA Tests

October 12, 1994|JIM NEWTON and ANDREA FORD | TIMES STAFF WRITERS

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."

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