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URGENT Defense Motion Filed to Cancel Pretrial Hearing on DNA

December 13, 1994

LOS ANGELES (AP) _ Taking their biggest legal risk to date, O.J. Simpson’s lawyers today asked the judge to cancel a pretrial hearing on admissibility of crucial DNA evidence.

In a 13-page motion, the defense said the battle over genetic evidence should be played out in front of the jury rather than in a hearing outside the panel’s presence.

The defense said that holding the four-to-eight-week hearing, tentatively set to begin Jan. 4, would deny Simpson his right to a fair trial. The court papers say Simpson ″has been personally advised by counsel about the risk and benefits″ of proceeding without the hearing.

Simpson ″has knowingly waived the right to claim any prejudice arising from the jury’s exposure to potentially inadmissible scientific evidence,″ the papers said.

No date was set for Superior Court Judge Lance Ito to consider the defense motion.

Calls placed to district attorney’s spokeswoman Suzanne Childs, seeking prosecution reaction to the filing, were not immediately returned. Prosecutors have said they could go to trial with or without the hearing.

The proceeding, known as a Kelly-Frye hearing, was intended to determine whether and to what extent the jury may be told about DNA evidence, the linchpin of the prosecution’s case against Simpson.

Legal analysts have said forgoing the admissibility hearing comes with some legal peril since it would deny Simpson a record for an appellate court to see when considering whether to overturn on a conviction on the basis of improperly admitted evidence.

However, the tactic has some benefits for Simpson.

For one, it grants his longstanding wish for a fast trial by eliminating a time-consuming and, for him, expensive admissibility hearing before a judge who has rarely sided with the defense.

Also, it eliminates the potential for damaging publicity that could taint the jury and alternate panel if they are not sequestered.

The court papers make reference to these points, saying that holding a ″separate, time-consuming″ pretrial hearing would violate Simpson’s right to a ″fair trial before a fair and impartial jury untainted by the continuing barrage of prejudicial pretrial publicity.″

The motion asks that opening statements, when lawyers lay out their cases before the jury, begin on Jan. 4, when lawyers and jurors return from the holiday break.

The DNA hearing was requested by Simpson’s lawyers, and such hearings are generally for the benefit of the defense.

The new defense strategy marks a dramatic change in course. Up until now, the defense has challenged virtually every piece of evidence against Simpson and appeared to be gearing up for a major pretrial fight over the acceptability of DNA evidence.

Simpson hired the nation’s leading DNA attorneys, who filed a voluminous motion attacking every aspect of genetic evidence. Prosecutors are hoping to link Simpson to the killings by genetic matches between his blood and blood found at the crime scene, where his ex-wife Nicole Brown Simpson and her friend Ronald Goldman were slain June 12.

On Monday, Ito rejected a defense effort to remove a prosecutor from the case.

The defense argued that as head of the grand jury probe into Simpson’s friend Al Cowlings, Deputy District Attorney Christopher Darden was privy to information that gives him an unfair advantage over the defense.

In a written ruling, Ito said ″there appears to be no conflict of interest″ stemming from Darden’s role in the two cases.

Darden later said he resented remarks by Simpson lawyer Johnnie Cochran, who had suggested Darden was added to the prosecution team because, like Simpson and most of jurors, he is black.

″I don’t like it. I don’t appreciate it,″ Darden told reporters.

Cochran, the lone black on Simpson’s defense team, responded outside of court that Darden ″shouldn’t be hurt.″

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