Simpson's Lawyers Seek Mistrial Over Lie Detector
SANTA MONICA, Dec. 3 (Noon) -- Judge Hiroshi Fujisaki issued an instruction Tuesday morning in the O.J. Simpson civil trial, telling the jurors to ignore much of what they heard last week about Simpson taking a lie detector test. The judge also made a ruling that will make it very difficult for the plaintiffs to call Robert Kardashian, Simpson's friend and criminal lawyer, to testify this week.
In testimony, the plaintiffs called two people who said they saw Simpson hit Nicole Brown Simpson. Another witness, one of Simpson's neighbors, testified that he saw no Bronco parked outside the Rockingham estate around 9:45 p.m. on the night of the murders. This afternoon, Al Cowlings, Simpson's lifelong friend, is scheduled to take the stand.
Testimony was delayed for two hours in the morning session as the attorneys and Judge Fujisaki decided what the jury instruction should say. The judge apparently decided over the Thanksgiving break that jurors should be given clarification about Simpson's testimony about the polygraph test.
Judge Fujisaki began his instruction by telling jurors that defense lawyer Robert Baker opened the door for questions about the lie detector test during his opening statement when he talked about Simpson's offer to be tested. But, Fujisaki said, the jury must understand that plaintiffs' attorney Daniel Petrocelli's questions about the test do not constitute evidence -- only Simpson's answers are evidence. In his examination of Simpson, Petrocelli noted that Simpson took the test and scored a minus 22, which the plaintiffs' lawyer called "evidence of extreme deception."
"[Petrocelli's] questions do not and cannot establish that Mr. Simpson took a lie detector test," the judge said.
Simpson, Judge Fujisaki told the jurors, testified that he tried out the polygraph equipment, but did not take the test.
"There is no evidence before you that Mr. Simpson took a lie detector test, no evidence of any score on such a test, nor any evidence of what such a score means," Judge Fujisaki said.
But Baker told the court that he did not believe an instruction could fix the harm done by admitting testimony about the polygraph.
"I don't think any jury instruction is curative of the evidence that has gone in front of the jury," Baker said, telling the judge that the defense will soon file a motion for a mistrial.
Judge Fujisaki did not seem inclined to grant the motion. "We've come this far Mr. Baker," the Judge said. "If it is your opinion that a curative instruction won't do, that's your opinion."
The controversy surrounding Kardashian also delayed the start of testimony. Kardashian was supposed to testify this week. However, the plaintiffs never subpoenaed him and he left California. Plaintiffs' attorney John Kelly told Judge Fujisaki that Kardashian's lawyer said Kardashian would testify and did not need to be issued a subpoena. Kelly asked the court's permission to reopen the plaintiffs' case when Kardashian returns and can be served. But Judge Fujisaki refused, saying, "if you wanted him you should have subpoenaed him." The plaintiffs could still call Kardashian if he returns. Or they could call him during the rebuttal part of their case. Kardashian is reportedly on a business trip in New York.
When testimony began, India Allen, a former nude model, told jurors that she saw Simpson hit Nicole Brown in 1983. Another witness, Albert Aguilera testified that he and a friend saw Simpson hit his wife on the beach in early July 1986. The testimony of these witnesses contradicts Simpson's sworn statements last week, when he denied ever striking his wife.
"He swung his right hand and hit her across the face and she went down," Aguilera said.
Allen, who was working at a veterinary hospital in Beverly Hills, washed Nicole Brown Simpson's two dogs. As she took the dogs to Brown's car, Allen testified, O.J. Simpson drove up in a rage and confronted Brown, who was wearing a fur coat.
"I didn't buy this coat for you to go f**k somebody else," Allen said Simpson yelled before slapping Brown in the face and knocking off her glasses.
On cross-examination defense attorney Robert Baker noted that Allen posed naked in Playboy and suggested she was trying to revive her career by testifying in the civil trial. Allen, Baker noted, did not report the incident to police or prosecutors during the criminal trial.
-Robert Schmidt
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