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Kaelin Admits Changing His Testimony on Simpson : Courts: Prosecutor Clark intensifies her bid to discredit the witness. But the strategy poses a risk.

March 28, 1995|ANDREA FORD and JIM NEWTON | TIMES STAFF WRITERS

Completing her about-face with her own witness, Deputy Dist. Atty. Marcia Clark stepped up her attempt to discredit Brian (Kato) Kaelin on Monday, first having him declared an adverse witness and then wresting his admission that he had changed his testimony about O.J. Simpson's demeanor on the evening before the June 12 killings.

In a court day cut short by a bomb scare--the fourth since the trial began--and by a juror's need to attend a family funeral, Clark also suggested that O.J. Simpson and his ex-wife had argued on the day of the killings that he is charged with. But she offered no evidence to support that contention, and Kaelin said Simpson had not told him of any argument.

Simpson has pleaded not guilty to the murders of Nicole Brown Simpson and Ronald Lyle Goldman.

The wrangling over Kaelin's testimony filled the entire abbreviated court day, but prosecutors also filed a motion on DNA testing in which they suggested that the defense team was struggling to produce test results that would help its case and in which they threatened a blistering attack on a potential defense scientific expert, controversial scientist Kary Mullis. Mullis, a Nobel Prize winner who invented one form of DNA testing, also is widely known in the scientific community for his unorthodox views and his personal habits, both of which prosecutors pledged to use against him.

"This should prove to be a lively event!" the prosecution pledged in its motion, signed by Alameda County Deputy Dist. Atty. Rockne P. Harmon, who has been brought in to assist in the Simpson case.

Clark had turned increasingly steely with Kaelin last week, but Monday's confrontation was their most intense, so sharp that defense lawyer Robert L. Shapiro raised their conflict when it was again his turn to question the witness.

"Does she make you uncomfortable?" Shapiro asked Kaelin, who appeared downcast in his fourth day on the witness stand.

"With certain questions, yes," Kaelin responded.

"And why is that?" Shapiro asked.

"Because I'm trying to do my best," Kaelin answered.

Although she had become more and more pointed in her questioning of Kaelin toward the end of last week, Clark's attack Monday was by far her sharpest, and it posed certain risks for the prosecution: Even as prosecutors want the jury to doubt Kaelin's credibility when he describes Simpson's demeanor and his relationship with his ex-wife, they insist that Kaelin is reliable when he testifies about the timeline of the night of the killings.

Some legal observers warned that Clark's mission was exceptionally delicate, because her attempts to discredit Kaelin on the points that hurt the prosecution could spill over and taint his testimony regarding those areas in which they need the jury to accept him as credible. Nevertheless, some analysts gave her high marks for her handling of that task.

"I don't think she undercut his testimony on the objective evidence by pointing out that on more subjective evidence, he's trying to bend over backward to help Simpson," said Loyola Law School professor Laurie Levenson. "In fact, it makes the point for the jury--that if this witness says anything that hurts O.J. Simpson then it has to be true because, when he can, he will try to help Simpson."

Levenson added, however, that the detailed and confrontational questioning of Kaelin about Simpson's character could create the impression that his testimony on other subjects did not help the prosecution.

"The jury might lose sight that the most valuable evidence for the prosecution that Kaelin provides is that O.J. has no alibi, that Kaelin heard the thumps on the wall and that Kaelin saw the blood drops before O.J. returned from Chicago and gave blood to the police," she said.

That dichotomy of Kaelin's account--between his positive feelings toward Simpson and his potentially incriminating observations on the night of the killings--lent a schizophrenic air to Clark's questioning, but the testimony ended on the note that prosecutors hope jurors will remember, Kaelin's insistence that he cannot support Simpson's alibi.

Authorities believe that Goldman and Nicole Simpson were killed about 10:15 p.m. on June 12 outside Nicole Simpson's Bundy Drive condominium.

"Can you tell this jury where the defendant was between 9:35 and 11 p.m. (on June 12)?" Clark asked.

"No," Kaelin said.

"Can you tell this jury that the defendant was not at 875 S. Bundy between 9:35 and 11 p.m.?" she continued. An objection blocked Kaelin from answering, but Clark then ended that round of her questioning.

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