September 10, 1995
Web posted at: 1:00 a.m. EDT
LOS ANGELES (CNN) -- After publicly declaring Thursday that O.J. Simpson would not testify in his own murder trial, defense lawyers Saturday told CNN they are considering an about-face. It is a shift in strategy, one defense source said.
Defense sources said Simpsons' legal team is reassessing the possibility of calling the defendant to the stand after the prosecution rebuttal case is completed. That phase has yet to begin but could start next week, and prosecutors said as many as 50 rebuttal witnesses are on its list. "Anything is possible," said a defense source. "We've now got a wait-and- see attitude."
Earlier this week, two Simpson lawyers, F. Lee Bailey and Robert Shapiro, seemed to end months of speculation when they said Simpson would not testify. The defense team gave several reasons, including that they didn't want to risk losing any more jurors by prolonging the trial, especially since they see the jury as tilting pro-Simpson.
The defense team also felt it had established plenty of reasonable doubt with the playing of excerpts from taped interviews that portrayed racial bias on the part of former Los Angeles Police Detective Mark Fuhrman, a key prosecution witness. The defense felt it scored big victories when several witnesses impeached Fuhrman and when the jury heard audio of Fuhrman uttering two racial epithets.
But the defense was stunned on Friday when a state appeals court ruled that trial Judge Lance Ito had exceeded his authority when he decided to inform jurors that Fuhrman was "no longer available" as a witness. Fuhrman had earlier in the week invoked his Fifth Amendment protection and refused to give further testimony in the case.
Because of that perceived setback, Simpson's defense attorneys won't rule out the possibility that the former football star might take the stand after all. "That's still an option," Simpson lawyer Johnnie Cochran said Saturday outside of his law office. (166k aiff sound file)
Cochran said the appellate court ruling was unparalleled and unprecedented. "Everybody in the world knows that Mark Fuhrman perjured himself and took the Fifth Amendment, except the 12 people who decide the case. How fair is that?" he said.
Cochran said the defense is considering every available option, including challenging the appeals court ruling on Fuhrman in the California Supreme Court and calling additional witnesses. However, Cochran said he is concerned about the sequestered jury. "Uppermost in our minds is the fact that we have an excellent jury, and this case needs to be to the jury as soon as possible. In fact, Judge Ito promised the jury they'll have the case by the middle of September. So we got to do that. So that weighs heavily on our decision," Cochran said.
Meanwhile, Simpson's defense team has enlisted the help of attorney Dennis Fisher in its fight against Friday's appellate court ruling, CNN has confirmed.
Ito had the option of arguing the matter before the appeals court Monday, but instead agreed to vacate his order. Simpson's defense lawyers were upset they will not have a chance to argue before the appeals court Monday.
Fischer, an expert on California's constitution and appeals issues, previously assisted the defense team when Simpson fought the dismissal of former juror Willie Craven.
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