August 07, 1995|By Los Angeles Times
LOS ANGELES -- Three North Carolina appellate judges are expected to render a decision as early as today that could affect the outcome of the O. J. Simpson murder trial -- and even the credibility of the ultimate verdict.
At issue is Mr. Simpson's appeal of the ruling of a trial judge in Winston-Salem, N.C., who refused to order a North Carolina screen-writing professor, Laura Hart McKinny, to testify in Los Angeles and produce tapes of conversations in which Detective Mark Fuhrman used a racial slur.
Legal experts are sharply divided on Judge William Z. Wood's decision.
"The judge did the right thing," said former Los Angeles District Attorney Robert Philibosian, calling the detective's remarks to Ms. McKinny "absolutely collateral to the question of Mr. Simpson's guilt or innocence."
But Harland W. Braun, a Los Angeles defense lawyer, decried it as a "terrible" ruling. "Right now, I think Simpson is guilty and should be convicted," he explained. "But he should not be convicted if North Carolina withholds evidence that bears on his defense that Fuhrman is a racist and a liar who is trying to frame him."
The clash involves both volatile racial issues and legal arcana, stemming from a 1937 law designed to facilitate the ability of states to secure the testimony of witnesses outside their borders without imposing undue hardships on those individuals.
In a nutshell, the principal issue is whether Detective Fuhrman's alleged lie on the witness stand, when he said he had never used the racial slur in the past decade, is sufficiently important -- "material" -- that Ms. McKinny should be ordered to come to Los Angles with her tapes, which were recorded between 1985 and 1994. Then Superior Court Judge Lance A. Ito would determine whether Mr. Simpson's jury should get to hear them.
But on July 28, Judge Wood agreed with Ms. McKinny's position that the tapes are "collateral," meaning they do not shed light on Mr. Simpson's guilt or innocence.
In a similar legal dispute, a North Carolina appeals court last year upheld a trial judge's order that Rhonda Mapp, a member of the North Carolina State University women's basketball team, testify before a New Jersey grand jury investigating point shaving by members of the college's men's team, despite her denials that she overheard a conversation about the matter.
Laurie Levenson, a Los Angeles law professor, says the authorities seeking Ms. Mapp's testimony had a stronger case than Mr. Simpson's lawyers because she allegedly had direct knowledge of guilt. Others disagree, however, noting that Ms. Mapp was ordered to testify even though no case had been filed at the time.
In their appeal brief, Mr. Simpson's North Carolina lawyers -- Kenneth B. Spaulding and Joseph B. Cheshire V -- contend that Judge Wood's decision interferes with Mr. Simpson's right to a fair trial.
"The fact that a witness, especially a critical fact witness, is biased against a criminal defendant because of racial animus cannot be viewed as a 'collateral' matter," they wrote.
Mr. Simpson's lead lawyer, Johnnie L. Cochran Jr., says he wants to use the McKinny tapes as "fundamental impeachment of a very important witness," Detective Fuhrman, who found key evidence against Mr. Simpson.
Defense attorneys contend that Detective Fuhrman is a racist who planted a bloody glove at Mr. Simpson's estate and blood in Mr. Simpson's Ford Bronco. But they have offered no corroboration of the allegations and Detective Fuhrman has staunchly denied them.
Several Simpson trial analysts -- including some who are skeptical of the defense's conspiracy theory -- expressed dismay that a judge thousands of miles away could make a ruling that, in essence, supplanted the decision of the trial judge.
In mid-July, Judge Ito certified that Ms. McKinny was a "material witness" and requested that North Carolina courts order her to Los Angeles.
But a New York University law professor, Stephen Gillers, points out that there is nothing in the law that requires North Carolina to cooperate with California when one of its citizens resists a subpoena. "States are independent juridical entities," Mr. Gillers said.
Nonetheless, thousands of times a year, with little fuss, state court judges compel their residents to go to other states to testify.
But Ms. McKinny contended that forcing her to come to California would violate her rights as a journalist, diminish the value of her tapes and subject her to unwarranted harassment from the media.
