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Judge Limits Use of Testimony About Call to Battered Women’s Shelter

December 6, 1996

SANTA MONICA, Calif. (AP) _ The judge in O.J. Simpson’s wrongful death trial tried to repair potential legal damage Thursday by warning jurors they can’t consider testimony about a call from ``Nicole″ to a battered women’s shelter as evidence that Simpson stalked or threatened his ex-wife.

For the second time in three days, Superior Court Judge Hiroshi Fujisaki offered a more detailed explanation of a controversial ruling, warning jurors he was not implying that the caller was Nicole Brown Simpson.

He severely restricted the jurors’ use of the call during deliberations, saying they could not consider it as ``evidence of any event,″ but only as an indication of Ms. Simpson’s state of mind before she was killed.

The instruction came as plaintiffs read snippets of deposition testimony in an effort to pique jurors’ suspicions about Simpson.

Through careful selection of witness comments, they implied that Simpson related details of the crime at a time when only the killer would have known them, that he was fixated on a missing golf bag because it could have contained incriminating evidence, and that he was more concerned about how his image would suffer than about his ex-wife’s slaying.

``Oh my God, this is bad. ... You’ll hear about it on the news,″ Simpson was quoted as telling a Hertz executive hours after Ms. Simpson was found slain with Ronald Goldman.

Legal experts said Fujisaki’s decision to allow the testimony of shelter worker Nancy Ney _ one of the most damaging rulings yet to Simpson _ gave Simpson grounds for appeal if he loses the suit.

Ney testified Wednesday that she received the call from ``Nicole″ five days before Ms. Simpson and Goldman were slain. The caller said her famous ex-husband threatened to kill her if she ever saw another man.

Simpson was acquitted last year in the slayings. Now, the victims’ relatives are suing him.

Meanwhile, Simpson’s friend and former attorney Robert Kardashian, speaking with The Associated Press from New York, denied plaintiffs’ claims that he was avoiding being a witness. He said he has been expecting a subpoena for a long time, but has not been served.

He said when he returned to Los Angeles from a ski trip Sunday, he warned his four children that process servers might be waiting at the airport, but none were. He said he left Tuesday for New York on a planned business trip.

``They’re just trying to make me look bad,″ he said.

Ney was among the final plaintiff witnesses, called to show that Ms. Simpson lived in fear of her ex-husband, contrary to Simpson’s testimony that they remained friends after the divorce.

Defense lawyers had opposed Ney’s testimony because there is no proof the call came from Ms. Simpson. That argument prevailed at the criminal trial, where her testimony was banned as hearsay.

When the judge took the bench Thursday, he announced his plan to reinstruct the jury, much as he did Tuesday when he told jurors to forget they had heard testimony about Simpson allegedly flunking a lie detector test. Now, he said, he wanted them to limit their use of Ney’s testimony.

``The jury must not consider the substance of (the caller’s) statements to Nancy Ney as evidence of any event or whether such events occurred,″ Fujisaki told jurors. ``The testimony is received only to show her (Ms. Simpson’s) state of mind and to explain her conduct.″

Fujisaki added pointedly: ``By giving you this instruction, the court does not imply the caller was in fact Nicole Brown Simpson.″

As he concluded, the judge asked the panel: ``Have I confused you?″ Jurors laughed.

Plaintiffs’ lawyers then launched the exercise of reading small, edited portions of testimony.

Hertz executive James Merrill said he drove Simpson to a Chicago hotel the night of the slayings, and that Simpson left his golf clubs in Merrill’s car, planning to play in a golf tournament. But Simpson called the next morning urgently seeking a ride to the airport.

Raymond Kilduff, a Hertz vice president, said he and his boss then found a forlorn-looking Simpson waiting on a bench outside the hotel.

En route to the airport, Kilduff said Simpson expressed concern about getting his golf clubs back and then said ``something terrible had happened in Los Angeles.″

Lawyer Mark Partridge, who sat next to Simpson on the plane, recalled him being distraught. He said at the criminal trial that Simpson made a long series of calls to Los Angeles.

But the civil trial jurors were given only a portion of his testimony from which they could draw the inference that Simpson knew that a second person had been killed _ something police had not told him.

``Mr. Simpson told you throughout the flight certain information regarding the death of Nicole?″ asked attorney Daniel Petrocelli.

``Yes,″ Partridge replied in the section read by attorney Peter Gelblum. ``As the flight went on he communicated more information to me. ... At some point in the flight he said someone else had been killed too.″

He recalled Simpson saying that Ms. Simpson had been killed, a man had been killed and they were found in the garden by Ms. Simpson’s home.

But before the plane took off, testimony has shown, Simpson had spoken to his daughter, Arnelle, and his personal assistant, Cathy Randa _ either of whom could have told him about Goldman’s death.

And by the time Simpson landed in Los Angeles, the slayings were being reported worldwide. His defense is expected to call witnesses to say he was told all about both killings during his many phone calls on the airplane.

Family members of Ms. Simpson and Goldman are expected to testify Friday as the plaintiffs wind up their case.

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