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Defense, Prosecution Further Complicate Simpson Hearings

By William Claiborne
The Washington Post
LOS ANGELES

On a day of rapid-fire legal moves, defense attorneys in the O.J. Simpson murder trial said they were prepared to rest their case Thursday, but then backed off after the prosecution announced it will appeal a controversial instruction Judge Lance A. Ito plans to give to the jury.

The defense said it would rest without calling the celebrity defendant to the stand. Simpson decided not to testify in his own defense after his lawyers told him it would prolong the marathon trial and wasn't necessary to answer a prosecution case "in shambles," defense lawyer F. Lee Bailey told the Associated Press.

The last-minute legal appeal was the latest twist by a prosecution team that seems increasingly distraught over developments in the eight-month trial. It came after Ito said he will instruct the jury at the end of the defense's case that retired detective Mark Fuhrman, a key prosecution witness, was "unavailable" for further testimony, and that the panel may consider that fact as they evaluate his credibility.

In a dramatic reappearance on the witness stand on Wednesday, Fuhrman invoked his Fifth Amendment protection against self-incrimination when asked by the defense whether he had planted or manufactured any evidence against Simpson or had ever falsified a police report.

Ito ruled Thursday that it was clear that Fuhrman would refuse to answer any questions that might incriminate him for lying under oath when he testified last March that he had not used the racial epithet "nigger" anytime in the past 10 years. The judge said there was abundant case law asserting that it is "not appropriate" to call a witness before a jury when it is known the witness will invoke the Fifth Amendment.

Ito also denied a defense motion that the jury be instructed from the bench that Fuhrman had been recalled as a witness but had refused to testify on the grounds of his constitutional privilege against self-incrimination.

Ito also denied a defense request that he admit into evidence five more examples of racial invective from Fuhrman's tape-recorded interviews with North Carolina screenwriter Laura Hart McKinny.

However, the judge said he would instruct jurors: "Detective Mark Fuhrman is not available for further testimony. His unavailability for further testimony is a factor you may consider in evaluating his credibility."

Also Thursday, the Justice Department announced it has opened an inquiry into whether Fuhrman and fellow police officers manufactured evidence and targeted blacks for arrest, as he claimed on the tapes. The inquiry was launched at the request of the Los Angeles chapter of the National Association for the Advancement of Colored People.