Jury Probe Unlikely to Imperil Simpson Trial : Courts: Defense and prosecution say they are confident case will continue. Attorney for book author says Kato Kaelin lied during his testimony.

By HENRY WEINSTEIN and ANDREA FORD

April 20, 1995 12 AM PT

TIMES STAFF WRITERS

As Superior Court Judge Lance A. Ito and lead attorneys in the murder trial of O.J. Simpson interviewed jurors behind closed doors Wednesday, the rest of the legal teams sifted through tapes of Brian (Kato) Kaelin speaking to a book author and prepared for the next turn in the prosecution’s case, the expected appearance of a much-maligned evidence collector.

Andrea Mazzola, a rookie Police Department criminalist who helped gather evidence at the scene of the crimes and at Simpson’s nearby estate, is expected to take the stand today, ending a one-day hiatus called by Ito to conduct his inquiry of the jury.

Sources on both sides of the case said the inquiry did not uncover information that would jeopardize the trial. A prosecution source said the interviews did not reveal any “juror problems.” Defense attorney Johnnie L. Cochran Jr. said that while he was concerned about some of the jurors’ comments, he described the problems as “nothing irreconcilable.”

“I believe we’ll be able to finish this case with this jury hopefully intact,” Cochran added as he left the courthouse.

Simpson has pleaded not guilty to the June 12 murders of Nicole Brown Simpson and Ronald Lyle Goldman.

While prosecutors prepared to call Mazzola and press ahead with the physical evidence side of their case, some members of the defense team were wading through a stack of audiotaped conversations between a book author and Kaelin, Simpson’s former guest house tenant. According to people familiar with the interviews, Kaelin ventured a number of opinions about Simpson and his ex-wife in far more flowery language than he did on the stand.

Leonard Marks, the lawyer for author Marc Eliot, said Kaelin’s testimony that the Simpsons’ relationship was good is contradicted by material in the manuscript. Both Eliot and Marks have accused Kaelin of lying on the witness stand, a charge that Kaelin’s lawyer, William Genego, has adamantly denied.

“It’s not just that he reveals stuff about O.J.,” Marks said. “He also reveals stuff about Nicole. After all her dates she would knock on Kato’s door, and he would make her a cup of tea, and she would confide in him.”

With a few small exceptions, Kaelin did not testify about conversations he had with Nicole Simpson, but that was not because he hid those topics from the jury. In fact, hearsay rules would prevent any witness from offering such testimony.

As a result, those topics--including one taped segment in which Kaelin says Nicole Simpson feared her ex-husband would kill her--probably would not raise new questions about Kaelin’s truthfulness.

In other segments, however, sources said that Kaelin discusses Simpson’s demeanor on the evening of the murders and during a 1993 argument that resulted in a 911 call to police.

If Kaelin’s description on the tapes portrays Simpson as more angry or upset on either occasion than his trial testimony did, that could form the basis for him to be recalled to the stand and could bolster the prosecution’s contention that he shaded his testimony to help Simpson.

At a news conference Wednesday, Los Angeles County Dist. Atty. Gil Garcetti said there was no formal perjury investigation under way but added that prosecutors were reviewing the tapes to “see if he should be recalled.”

Recalling Kaelin and attacking his truthfulness would be risky as it might undermine his credibility. Prosecutors want the jury to believe the portion of his account where he describes the sound of thumps on his back wall--noises that the government believes were made by Simpson and which form an essential element in the prosecution’s timeline for the killings and their aftermath.

“If they find a significant inconsistency, that could be a bit of a bombshell,” said Barry Levin, a criminal defense lawyer. “It may color the entirety of Kaelin’s testimony.”

Kaelin’s aborted book deal--after negotiating a possible book contract and agreeing to the interviews with Eliot, he pulled out and never authorized delivery of the manuscript--is only the latest literary interference in a case awash in the instant literature it has produced. Dove Books on Wednesday filed a lawsuit in federal court challenging a new state law restricting the right of jurors to write books.

If successful, the suit would pave the way for swift publication of a memoir by dismissed juror Michael Knox, released from the panel March 1. A source close to the ex-juror said, “Michael Knox will present a very different view than Jeanette Harris has. He’s out of the city, sequestered, writing away.”

Dove already has prepared promotional material in anticipation of the book’s release.

Los Angeles attorney Pierce O’Donnell, who represents the publishing company, said in a court declaration that Knox had a right to tell his story--and to be paid for it. According to a source close to Knox, the dismissed juror, who is working with a ghostwriter, would receive a minimum advance of $100,000 for his story.

“Prior to his dismissal, Mr. Knox observed the Simpson trial from a vantage point shared by only a handful of the tens of millions of persons around the world following the trial,” O’Donnell said in a declaration accompanying the lawsuit. “As a juror, he had a unique perspective on the trial, and he now wants to share his experiences with a fascinated public eager to learn about the behind-the-scenes aspects of the trial.”

The book, O’Donnell added, “will shed light on both the jury system in general and issues related to the jury in the Simpson case in particular, including the effects of sequestration, interaction between jurors with different backgrounds and races, treatment by the sheriffs, the effectiveness of lawyers, judge and witnesses, statements by other discharged jurors (including outspoken Jeanette Harris), and a lay juror’s understanding of such concepts as the presumption of innocence.”

O’Donnell’s client, Dove, is the same company that published a splashy book by Nicole Simpson’s friend Faye Resnick, which generated considerable controversy. The state law being challenged by the lawsuit was enacted by the Legislature in August in response to controversy generated by potential witnesses in the Simpson case selling their stories.

The statute makes it a misdemeanor for a juror to be compensated more than $50 for communicating any information about a criminal proceeding within 90 days of the discharge of a jury in a criminal case. The law is “both facially unconstitutional and unconstitutional as applied to this case,” according to the lawsuit, filed by O’Donnell and Santa Monica attorney Arthur H. Barens, who represents Knox.

The lawsuit also asks a pointed question, attempting to show that Knox is unfairly disadvantaged compared to Simpson, currently profiting from his book, “I Want to Tell You.” Written from jail, that book--published by Little, Brown--proclaims his innocence.

“Michael Knox, as an African American male, may have personal insights into the life and stature of O.J. Simpson and their significance to his mind as he heard the trial testimony,” the lawyers wrote. “Why should his voice be stilled because he is paid, while the defendant can publish a highly profitable, best-selling book during the trial?”

Knox, in his initial public comments after leaving the jury, did not report any significant friction among the panelists or problems with the sheriff’s deputies who monitor them. Harris, however, told of a divided, fractious group occasionally split along racial lines.

Responding to those descriptions, Ito summoned her to his courtroom and then launched his investigation. On Tuesday, he questioned four jurors, and all four denied talking about the case or committing any other misconduct, but at least one echoed some of Harris’ complaints about the sheriff’s deputies.

The questioning continued Wednesday with Ito bringing in the remaining jurors and alternates--the panel stands at 18--and asking each of them individually about their experiences on the sequestered panel.

The results of Wednesday’s session were similar to the previous day’s, sources said, with jurors denying any wrongdoing and generally downplaying reports of problems on the panel. In addition, many jurors expressed a strong commitment to sticking with the trial despite the personal sacrifices that they are making, sources said.

Ito did not disclose what action, if any, he intends to take as a result of his inquiry. Having completed questioning the panelists, Ito now intends to question about half a dozen other people before concluding his investigation, a court spokeswoman said.

The spokeswoman would not identify those other people, but sources said they are sheriff’s deputies. Given the problems that some jurors reported with the deputies, sources predicted that Ito would ask the Sheriff’s Department to transfer two or three of them, if only to reduce any stress that panelists are experiencing.

Legal experts said the private sessions in Ito’s chambers may not affect the outcome of the case, but they give lawyers on both sides a rare opportunity to glimpse the inner workings of the jury in the middle of the trial.

“Attorneys for both sides are being given a window that you usually just don’t get,” said Peter Arenella, a UCLA law professor.

The investigation of the jury allegations occupied the entire court day Wednesday, forcing Ito to cancel a scheduled hearing into the latest requests for sanctions by and against the opposing sides in the contentious trial.

Even the pause in the proceedings did not stem the flood of accusations, however. In a motion unsealed Wednesday, government attorneys accused defense lawyers of repeatedly violating court rules and asked Ito to sanction the Simpson team for failing to promptly turn over videotapes used to cross-examine a police criminalist--especially if the judge goes forward with a plan to tell the jury that government lawyers have violated evidence-sharing rules.

If he does not, prosecutors allege, jurors will be left in the dark about defense misdeeds that have been widely reported outside the courtroom but never discussed in front of the panel considering Simpson’s guilt or innocence.

“While the rest of the world may hear of the defense misconduct, the jury hears only of the People’s minor mistakes,” prosecutors said.

Times staff writers Jim Newton and Tim Rutten contributed to this article.