Simpson Defense Takes New Tack on DNA Hearing : Trial: Unusual motion seeks to have admissibility of scientific evidence decided in front of jury. Prosecution prepares response.

Without waiving any of their rights to contest the DNA evidence in the O.J. Simpson case, lawyers for the accused football great asked Tuesday that a hearing on the scientific tests be postponed until after the murder trial begins and that it take place in front of the jury.

In a 13-page motion, Simpson’s lawyers asked Superior Court Judge Lance A. Ito to schedule opening statements for Jan. 4. Prosecutors had no comment after the filing of the defense motion. On Monday, Deputy Dist. Atty. Marcia Clark said the district attorney’s office would object to any motion that threatened to interrupt the presentation of the evidence for a hearing on DNA, a session known as a Kelly-Frye hearing.

On Tuesday, prosecutors immediately set about preparing a response to the defense motion, but did not file anything with the court.

Although they would not comment on their motion, Simpson’s lawyers argue in the document that holding the Kelly-Frye hearing before opening statements would violate the rights of their client, who is accused of killing his ex-wife, Nicole Brown Simpson, and her friend, Ronald Lyle Goldman. Simpson has pleaded not guilty.

“The holding of a separate, time-consuming, pretrial Kelly-Frye hearing would violate the defendant’s statutory and constitutional rights to a speedy trial . . . as well as his state and federal constitutional rights to due process and to a fair trial before a fair and impartial jury untainted by the continuing barrage of prejudicial pretrial publicity.”

That position does not reflect a fundamental change in strategy, as it still would preserve Simpson’s right to challenge all DNA evidence against him. However, it marks a sharp change in tactics for defense lawyers, who just a few weeks ago were asking that cameras not be allowed to broadcast the DNA hearing for fear that jurors might be tainted by it. Now they are proposing that jurors observe the entire proceeding.

Because the purpose of a Kelly-Frye hearing is to determine what scientific evidence jurors should be allowed to hear, such proceedings ordinarily are held outside the presence of the jury. In the case of DNA evidence, the sessions could last weeks and feature numbingly complex scientific and statistical information.

But interrupting the trial and holding the hearing in front of the jury could work against the prosecution because much of the evidence in the Simpson case is thought to be circumstantial, said Loyola Law School professor Laurie L. Levenson. That requires jurors to piece together an array of facts, a process made more difficult by a long interruption.

“This is a circumstantial evidence case and in such cases it’s very important that the jury constantly keep its eye on the big picture,” Levenson said. “If you interrupt the puzzle-making for several weeks to focus on one kind of evidence, the jury might lose sight of all the other evidence in the case.”

Although the defense is not altering its basic attack on the results of DNA tests, its revised approach to challenging that evidence would speed up the pace of the trial, allowing opening statements to begin in early January rather than a month or two later.

Speed is of the essence to Simpson, who has openly expressed his dismay every time the possibility of delay has been raised in court, and to his defense team, which is pleased by the jury selected to hear the case and worried that as time passes some jurors may be exposed to publicity, forcing them to be removed from the panel.

In addition, few legal authorities believe that the Simpson team has much of a chance at keeping out most of the DNA evidence. The prosecution has subjected blood samples from the murder scene, Simpson’s house and one of his vehicles to four types of DNA tests. One is widely accepted and has been used in courts across the country; the others are more novel, but two of the three have been admitted in judicial proceedings in California.

Forgoing a prolonged hearing before opening statements thus might spare the defense a legal setback before jurors even begin hearing the case, experts said.

Those experts agreed that the defense move was a shrewd one in that it gives up virtually nothing of substance while gaining some strategic advantages. Experts disagreed, however, about whether Ito was likely to accept it.

Prosecutors may object to the defense request and press the judge to hold the hearing as planned, before opening statements and outside the earshot of the jury.

Seeking to block such a request, the defense motion says Simpson is willing to waive his right to appeal in the event jurors hear about DNA test results that are later ruled inadmissible.

Generally, hearings on the admissibility of scientific evidence are requested by defense attorneys, not prosecutors. In the Simpson trial, prosecutors have made it clear that DNA test results form an important bulwark of their case, and they hope that the results will conclusively link Simpson to the crime scene.

“I don’t think they (prosecutors) have any grounds to oppose this,” said Harland W. Braun, a noted criminal defense lawyer and former Los Angeles prosecutor. “If the defense is willing to let jurors hear this evidence, I don’t see how the D.A. can object.”

Peter Arenella, a UCLA law professor, disagreed.

“Marcia Clark has already stated publicly that the only way to avoid a pretrial Kelly-Frye hearing is for the defense to stipulate to the admissibility of the DNA evidence and to the statistical probability estimates that will be offered,” he said. “The defense motion offers no such stipulations or concessions.”

In fact, Arenella said, the defense is expected to vigorously challenge the potentially controversial statistical estimates, which purport to determine the likely validity of DNA matches, as well as the reliability of test results.

Whatever the prosecution’s stance, Arenella added, the ultimate arbiter of the matter will be Ito. And the judge, Arenella said, “certainly has shown in the past an inclination to rule in the prosecution’s favor.”

If Ito were to grant the defense motion, it would raise at least one potentially tricky quandary for prosecutors as they set about the task of preparing for trial. Would they be allowed to mention the results of their DNA tests in their opening statements, because they would not then know whether jurors would be hearing that evidence?

Barry Levin, an experienced trial lawyer, said he expected that prosecutors would be allowed to mention the DNA test results if Ito accepts the proposal laid out in the Simpson team motion. Other experts agreed, but acknowledged that the area was a fuzzy one, partly because the defense motion is so unusual.

Levenson said it was unlikely that Ito would accept the defense proposal as written, and she added that the Simpson camp appeared to be using the issue to secure strategic advantage over the prosecution.

“They may want to put so much scientific evidence in front of the jury that (jurors) will become confused and disregard all of it,” she said. “What people can’t understand they tend not to rely upon.”

*

The Simpson Case

* A package of photos, articles, and other background information on the Simpson trial is available from TimesLink, the new on-line service of the Los Angeles Times.

Details on Times electronic services, B4.