NEWS ANALYSIS : Simpson Case Ignites Debate on Legal Ethics : Law: Ethical bounds of defense lawyers’ remarks are murky in state. Garcetti’s comments are also questioned.

Although the legal profession is full of people known for their rhetorical excesses, even lawyers face limits on what they can say.

No lesser authority than the U.S. Supreme Court has ruled that lawyers must watch their remarks in an attempt to assure fair and just trials. But in California--the only state that has not adopted American Bar Assn. rules on lawyers’ comments--the line between fair comment and foul play is often murky.

So it is no surprise that the latest comments from O.J. Simpson’s defense team, headed by Century City lawyer Robert L. Shapiro, have touched off a robust debate in legal circles.

Members of Simpson’s defense team, speaking anonymously to reporters, suggested that Los Angeles Police Detective Mark Fuhrman may have planted evidence in an attempt to frame the former football star on murder charges.

“I don’t mind calling someone a liar to his face, but to just slander someone anonymously and slink off into the darkness, this bothers me,” said Los Angeles defense lawyer Harland Braun, referring to the unsubstantiated and hotly denied suggestion that Fuhrman may have planted a bloody glove at Simpson’s estate.

On the other hand, defense lawyer Barry Tarlow said Simpson’s attorneys had been “forced to descend into the gutter approach of litigation used by Dist. Atty. Gil Garcetti.”

Indeed, the prosecution side has come in for its share of criticism--largely because of public comments by Garcetti and leaks from unnamed law enforcement officials.

Tarlow blasted a “devastating series of orchestrated leaks” about Simpson--most recently, reports that the former football star was carrying a passport and $10,000 when he led police on a low-speed chase through Orange and Los Angeles counties a month ago, casting doubt on the ex-athlete’s statements that he was contemplating suicide in the wake of his former wife’s murder.

Veteran defense lawyer Gerald L. Chaleff said both sides are leaking information and theories to the media in an attempt to manipulate the opinion of potential jurors in the double murder case: “None of these statements, suppositions or leaks can be cross-examined.”

“It’s tragic to see a case like this where we seem to have a trial by leak or press release,” Chaleff said. “Throughout this entire process, no one is coming forward to take responsibility for statements, leaks or suppositions that are being released, either from the Los Angeles Police Department or from the defense.”

Whether it is the allegation that Simpson was carrying cash and a passport, or the claim that Fuhrman may have planted evidence, “the press ought to say we are not going to publish this unless someone is willing to sign their name to it,” Chaleff said.

There is a long tradition of lawyers trying to manipulate the media, but this case is different, said West Los Angeles defense lawyer Barry Levin.

“Any time I as a defense lawyer feel I can ethically benefit my client by making a pretrial release of information, I will do so. But most of the time no one in the media will listen. It’s not Bob Shapiro’s fault that the media has an insatiable appetite for any story or theory in this case. He’s just doing his job.”

Defense lawyer Marcia A. Morrissey agreed. “The defense would not be doing their job correctly if they ignored the media,” she said. “We don’t litigate cases in vacuums, unfortunately.”

Indeed, Shapiro told the National Assn. of Criminal Defense lawyers in a 1993 speech that “the importance and power of the media cannot be overemphasized” in high-profile cases when the media comes “in droves.”

In a landmark 1966 decision, the U.S. Supreme Court overturned the murder conviction of Cleveland physician Sam Shepard on the grounds that he was denied a fair trial because of extensive pretrial publicity. However, the high court added that such reversals are not a total solution:

“The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function.”

In 1991, by a narrow majority, the U.S. Supreme Court ruled that greater restrictions can be placed on the speech of a lawyer handling a case than can be imposed on other people. The purpose of the restrictions is to assure a fair and just trial.

The basic standard set out by the high court is whether a lawyer’s comment poses “a substantial likelihood of materially prejudicing a judicial proceeding.” But that standard is too vague to offer lawyers any “bright line guidance,” said USC law professor Erwin Chemerinsky.

Justice Anthony Kennedy’s plurality opinion stressed, however, that particular care must be taken with any regulation that would inhibit “the criminal defense bar, which has the professional mission to challenge the actions of the State.”

In that case, the Nevada Bar Assn. attempted to sanction a defense lawyer for comments he made after his client was indicted. The lawyer portrayed prospective government witnesses as drug dealers and money launderers. The Supreme Court held that the Nevada rules were too vague to give the lawyer sufficient guidance on what he was permitted to say.

The American Bar Assn. has adopted model rules about lawyer comments on pending litigation. But there is little case law to provide guidance on the ethics of what lawyers can and cannot say about a case, Chemerinsky said.

The situation is particularly murky in California because it is the only state that has not adopted the American Bar Assn. rules, said New York University law professor Stephen Gillers.

Because of that, it is highly unlikely that attorneys on either side of the Simpson case would face bar association or court sanctions for comments they have made, legal experts said.

“If there are no rules, then there are no rules to break,” Gillers said. He said that if California had the ABA rules, lawyers on both sides in the Simpson case might be in trouble.

He cited statements by Garcetti on “This Week With David Brinkley” on June 19, two days after Simpson was arrested. “Well, it’s not going to shock me if we see an O.J. Simpson, sometime down the road--and it could happen very soon--it could happen months from now--say, ‘OK, I did do it, but I’m not responsible.’ We’ve seen it in Menendez. It’s going to be a likely defense here, I believe, once the evidence is reviewed by the lawyers,” Garcetti said.

“Any suggestion of an ultimate guilty plea” violates one of the ABA rules, Gillers said. “The district attorney is not supposed to predict a guilty plea because it signals to the public a likelihood of culpability based on what the public assumes is the prosecutor’s broader knowledge of the case. The subtext is ‘I know the facts.’ ”

Garcetti disagreed with Gillers’ interpretation of the rule. “As a prosecutor, it is my job to anticipate defenses,” he said. “The ABA section in question does not go to anticipating possible defenses, but to a situation involving a possible guilty plea of a defendant or in which a defendant has already made a confession or admission.”

Gillers said that statements attributed to the defense team suggesting Detective Fuhrman planted evidence violate a different ABA rule against attacking the character of a witness.

Asked for a response, Shapiro said: “I won’t take any position on any evidentiary matter except in the courtroom.”

Gillers also said the defense might have run afoul of an ABA rule in referring to allegedly racist remarks Fuhrman made when he was attempting to get a stress disability pension from the Police Department in 1983. Gillers said those statements might have violated a rule against commenting on information “the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would, if disclosed, create a substantial risk of prejudicing a fair trial.”

However, other lawyers disagreed, saying it was possible that Fuhrman’s prior statements might be admissible on cross-examination as part of a defense effort to show that he was biased against Simpson.

In any case, Gillers said, even those states that have adopted the ABA rules do not enforce them vigorously.

Chemerinsky said much of what lawyers in the case have said to the media has been “completely appropriate,” including a Garcetti news conference in which he praised the prosecution team after Simpson was bound over for trial, and various statements by Shapiro questioning the strength of the prosecution case.

But he said he, too, was troubled by Garcetti’s comments on the Brinkley show and by the suggestion that Fuhrman planted evidence.

“The defense has no obligation to speak to the press at all, but once they’ve made the accusation that the police officer planted evidence, they have an obligation to say what the factual basis for that statement is,” Chemerinsky said.

“If there is a factual basis, an immediate disciplinary and criminal investigation of the officer should be launched. If there is no factual basis, the policeman is owed an immediate apology and the lawyers acted unethically,” Chemerinsky said.

Gillers said the defense had no such obligation, and said he would be surprised if the defense came forth with more information on the issue at this point.

“The kind of motive that would prompt them to make the charge is inconsistent with the desire to explain themselves. By leaving it unexplained, they play into rumor and public suspicion.”

One possible remedy available to both sides is seeking a gag order. Thus far, neither side has done that or even hinted that it plans to do so.

On Thursday, Garcetti said: “We have never asked for a gag order in a case, and I cannot imagine a situation in which we would.”

Shapiro said: “If we were to seek a gag order, we would do that in court and we would not discuss it beforehand.”

Gag orders are granted infrequently. Last year, a federal appeals court overturned a gag order imposed on Braun by a federal judge presiding over the criminal trial of four Los Angeles police officers accused of beating Rodney G. King.

The appeals court said that Braun could not be prohibited from making critical comments about the prosecutors in the King case. Ultimately, his client and one other officer were acquitted and two officers were convicted and are serving federal prison terms.