George W. Clarke, a deputy district attorney from San Diego who is assisting the prosecution team on DNA issues, said the defense proposal could extend the period for which jurors need to be sequestered and would create a "substantial and dangerous possibility of forgetting evidence."
Although Ito met privately with the lawyers in an effort to reach a compromise on the DNA issue, they emerged without an agreement. As a result, Ito said he would consider the various suggestions and issue a ruling by the end of the day Monday.
No court hearings are scheduled until Jan. 4, when the two sides will return with a host of issues to confront. In addition to the DNA evidence, defense attorneys are battling to keep out references to what they call "marital discord" between Simpson and his ex-wife.
Prosecutors say that evidence is relevant and prepared an 85-page legal pleading that urges Ito to allow jurors to hear it. Although that motion was filed under seal, sources who have read it say it lays out in detailed and highly charged language the couple's volatile history.
According to those sources, the allegations extend beyond three incidents that have been most widely reported: a 1985 fracas in which Simpson was found by police wielding a baseball bat after having shattered the window of his wife's car; a 1989 fight that ended with Simpson pleading no contest to charges of spousal abuse, and a 1993 incident in which Nicole Simpson called police for help while a man she identified as her ex-husband was smashing in a door and screaming at her.
Those incidents are documented in police files, but prosecutors also have canvassed friends of Nicole Simpson for details about Simpson's behavior on other occasions. Candace Garvey, for instance, recalled a verbal altercation at a Christmas party last year, and other acquaintances described incidents that they either witnessed or that were described to them by Nicole Simpson, the sources said.
How much of that information will be ruled relevant in the murder trial is a decision for Ito. He has not yet indicated when he will hear arguments on that issue.