In a judicial version of cart-before-the-horse, prosecutors in the O.J. Simpson trial Monday launched their rebuttal before the defense rested its case, starting with a series of photographs of Simpson in gloves the prosecution hopes will link him to those used in the double murders.
Judge Lance Ito refused to bring former Detective Mark Fuhrman back to court to testify again, but granted a request from Simpson’s attorneys to appeal that ruling by Wednesday.
The decision means the football star’s defense, which also hinted Monday of a surprise witness, could continue through the week.
That set the stage for an unusual exercise of judicial muscle. Ito ordered prosecutors to begin their rebuttal while the defense cooled its heels - a development, he acknowledged, that isn’t routine.
But, Ito said, few things are routine in the Simpson case.
“These are extraordinary issues,” Ito said. “If the defense wishes to (appeal), they have the right to do so.”
Court officials also have an obligation to the jury, which is growing ever impatient with the trial’s pace, Ito said. Rather than force jurors to wait until Wednesday to hear any testimony, Ito ordered the prosecution to move into the trial’s next phase to save time.
He issued his ruling after refusing again the defense’s request to strike Fuhrman’s testimony about finding a bloody glove at Simpson’s home the morning after the June 12, 1994, stabbing deaths of Nicole Brown Simpson and Ronald Goldman.
Ito also denied three separate requests to bring Fuhrman back to court, grant him immunity to testify, or to limit his testimony. Fuhrman, who last week invoked the Fifth Amendment - without the jury present - to questions about fabricating evidence or lying on the witness stand, does not have to come back to court, Ito said.
Simpson’s attorneys, who in the last few weeks have portrayed Fuhrman as a rogue cop willing to frame their client, then asked for time to appeal.
“We are not prepared to rest,” lead Simpson attorney Johnnie Cochran Jr. told Ito, while prosecutors accused him of delaying the trial.
Ito granted the request, leading to the next twist in the case: introducing new witnesses in the trial’s rebuttal phase.
The introduction of new witnesses or evidence is relatively unusual at a rebuttal, which prosecutors normally reserve to bring back former witnesses or criticize the defense’s case. Prosecutors are allowed to introduce new testimony only when it was not available earlier in the case.
Monday they put on the stand a series of photographers - each a new witness - who took images of Simpson wearing gloves at frigid football games during the last three years.
They decided to call the photographers to the trial after receiving unsolicited prints, negatives and videotapes featuring Simpson working as a commentator in nine NFL games played from 1991 to early 1994.
They received some of the images before resting their case, but others did not reach them until after they wrapped up their presentation July 6, said prosecutor Marcia Clark.
Clark could introduce some of the new evidence, Ito said. He also allowed Richard Rubin, a glove expert who testified earlier this year about the gloves used in the killings, to return to the stand Tuesday and identify those that Simpson wears in the photos and videotapes.
Ito’s decision was a break for prosecutors, who hope the images of Simpson in gloves, coupled with Rubin’s testimony, will erase jurors’ memories of an earlier fiasco when Simpson put on the gloves allegedly used in the killings - and they were too small.
In color blowups and in silent, slightly grainy videotape, Simpson, who was working for NBC as an NFL commentator, is depicted wearing black or brown, tight-fitting leather gloves. With each image, prosecutors said, the gloves appear to be a bit more snug.
Clark pointed to his gloves.
“Do they look small?” Clark asked.
“They appear short, yes,” answered Mark Krueger, a Chicago photographer who snapped the shot in January 1991.