Outrage (14 page)

What about the argument frequently used by the media that televising trials educates the public? It’s transparent sophistry. The media’s only motivation, though not an improper one, is commercial. Although televising trials may indeed educate the public, that obviously is not the principal reason why people watch trials such as the Menendez and Simpson cases on television. It’s a form of entertainment for them, pure and simple. Televise a breach of contract or automobile collision lawsuit and see how many people watch. The entertainment aspect of the Simpson trial became so ludicrous that time and time again, the talking heads, and those who called in on these shows, actually complained that certain lawyers and witnesses, as well as certain evidence, were too boring and dull for their tastes—which is to say they wanted, were almost demanding, better and more scintillating entertainment.

Even given the ancillary benefit of being educational, the
sole
purpose of a criminal trial is to determine whether or not the defendant is guilty of the crime. It is not to educate the public.

But although the cameras could only have a negative effect, if any, upon the trial proceedings, they stayed, right to the very end. And they stayed, of course, because of one person and one person only, the only person who had the discretion and authority, under Rule 980 of the California Rules of Court, to pull the plug: Judge Lance Ito. Why didn’t he? Even assuming he had what he believed to be valid reasons for keeping the cameras, one of his reasons was most assuredly improper—Ito loved to perform in front of these cameras. At least that seems to be the consensus of virtually all the reporters who covered the trial. Reporters called him “Judge Ego.” He seems to “relish the presence of the television cameras. He likes the limelight,”
Newsweek
said.

I knew for sure that Ito was out of his depth in this trial when early on he started inviting celebrities visiting the proceedings back to his chambers, particularly talk show hosts whose programs covered the trial. I don’t have anything against these talk show hosts, but it was unseemly and undignified behavior for a judge presiding over an important murder trial. What conceivable reason could Ito possibly have had for being so eager to play host to these celebrities other than that he was concerned with what they might say about him on the air? (The only other possibility that occurs to me is almost equally damning—that Ito lionizes celebrities, like so many of his fellow citizens. But if he does, this is at least one piece of circumstantial evidence that he did not possess the intellectual maturity to preside over a case of this magnitude.)

“I was very disappointed with Judge Ito,” defense attorney Peter Neufeld told
Time
magazine, “the fact that he was so concerned about his status as a celebrity, his willingness to entertain personalities in chambers, to show the lawyers little videotapes of skits on television.” One day, Neufeld said, Ito brought all the lawyers into chambers to show them a clip of the “Dancing Itos” from Jay Leno’s
Tonight Show
. “He had thought it was great and loved it and wanted all of us to see it in chambers. You may find that amusing on a personal level,” Neufeld said, “but I can assure you that on a professional level it is so unacceptable for a judge who’s presiding over a murder trial to bring the lawyers into chambers to show them comic reviews.” Ito also told the lawyers Simpson jokes he had heard. Said Neufeld: “As someone who has tried cases for twenty years, I found it deplorable, and I was shocked.” One such joke, as reported in the
New York Times
, may have been an Ito original. Near the beginning of the proceedings, Ito told Johnnie Cochran he had good news and bad news for him. The bad news was that the authorities had found Cochran’s client’s blood at the murder scene. The good news, Ito said, was that Simpson’s cholesterol was low.

T
he aspect of Ito’s conduct that bothered me the most during the trial, however, was his demeaning, overbearing treatment of the lawyers, particularly the prosecutors. He wasn’t as pompous, arrogant, and dictatorial as many judges are, but he was bad enough. The common complaint against Ito was that he gave too much leash to the lawyers on both sides, that he didn’t rein them in, and that he let them take charge of the courtroom. But from what I saw of the trial, I don’t agree. Ito has a reputation of being a judge who gives both sides a full and reasonably unrestricted opportunity to present their cases fully, not setting time limits on questioning, arguments, etc. Apart from monetary considerations (and we can’t put a price tag on justice), up to a certain point I think this is commendable, not bad. This is the way he is in all his cases, not just the Simpson case, as some people assumed. I saw no lawyer or lawyers taking charge of the courtroom in any way whatsoever. Ito, at least to me, always seemed in charge, brooking no challenge to his authority. What I saw, instead, was a judge who had something of a tough-guy sneer on his face and a virtually constant intimidating tone to his voice. The tone was not as pronounced as it is in so many judges, but there was an unmistakable edge to his voice and his words that always implied the lawyers were on the brink, or within shouting distance, of being held in contempt of court.

The very slightest offense, real or imagined, was apt to set him off. In a February 23, 1995, sidebar conference called to discuss the prosecution’s objections to a line of questions by Cochran, Cochran said: “They [the prosecutors] obviously haven’t tried any cases in a long time and obviously don’t know how, but this is cross-examination.”

Darden said, “Who is he talking about, doesn’t know how to try a case?”

Ito: “Wait, Mr. Darden.”

Darden: “Is he the only lawyer that knows how to try a case?”

Ito: “I’m going to hold you in contempt.”

After Ito excused the jury, he suggested to Darden that if Darden apologized, he might set aside his finding of contempt. But Darden, who had done nothing wrong, and therefore had said nothing to apologize for, refused, and asked Ito to schedule a hearing on the propriety of the contempt.

Ito said, “[I gave counsel] an opportunity to get up and say ‘Gee, I’m sorry, I lost my head there. I apologize to the court. I apologize to counsel [Cochran]’…You want to fight some more with the court, you’re welcome to do so.” Eventually, Darden apologized to the court, saying he meant no disrespect, and Ito then also apologized for overreacting.

All of this took place in front of millions of TV viewers. Obviously, there were only two villains to this piece, Cochran and Ito. Cochran had been insulting to Darden, and Darden would have been completely justified in responding in kind to him. Instead, under the circumstances he was very mild in his response. Yet simply because he continued talking (“Is he the only lawyer that knows how to try a case?”) after Ito had said “Wait, Mr. Darden,” Ito held him in contempt of court, and then compounded it by demanding that Darden, the victim, apologize in front of millions to Cochran, who had insulted him, and to Ito, the overbearing judge with a hair-trigger sensitivity who improperly held him in contempt. Note that the one-sided exchange between Cochran and Darden at the sidebar was outside the hearing of the jury, so absolutely no harm was done to either side. Moreover, in jury trials, particularly murder cases where more is at stake, tempers frequently become frayed, and counsel lash out at each other, often even before the jury. But the super-prickly Ito would have none of it, even in the privacy of a sidebar, and even though Darden had simply defended himself, as opposed to lashing back at Cochran.

On July 20, 1995, Marcia Clark was a few minutes late for an early-morning court session outside the presence of the jury, for which she immediately apologized, explaining the reason for her tardiness. Ito, unimpressed, fined the DA’s office $250. Clark responded: “Excuse me, Your Honor, may I remind the court that Mr. Shapiro kept the court waiting for twenty minutes—showing up at twenty after nine when it was his witness on the stand—and suffered no sanctions?”

Ito glowered back and said: “Thank you. The fine will be one thousand dollars.” In other words, how dare Clark have the temerity to offer any kind of defense whatsoever to one of his rulings. (Consistent with his vacillating nature, Ito later reset the figure at $250 when DA Gil Garcetti publicly denounced the high fine.) Just another example of a thin-skinned judge who was offended by the slightest transgression, real or perceived.

Although I can’t be sure, I have the very distinct feeling that because of Ito’s snippy and thin-skinned judicial manner, Marcia Clark was intimidated by Ito, and as a direct consequence thereof, did not perform as well as she was capable of performing during the Simpson trial. The consensus of courtroom watchers is that Ito did not like Marcia, nor she him, and it showed in the strained and highly formal interchanges they had. It is also the consensus that Ito treated the defense, particularly Cochran, with a little more respect, since Cochran, for two years in the late seventies, had been Ito’s superior in the district attorney’s office. (As a sop to the black community, the incumbent DA, for political purposes, had appointed Cochran, who had never spent a day in the office and never prosecuted a felony in his career, assistant district attorney, the number three man in the office. It was solely an administrative position, and he handled no cases in the courtroom.)

Here’s where the problem comes in. There are two main ways a lawyer can lose his credibility with the jury. One is when the jury forms the opinion that the lawyer is not being honest with them and is trying to win at all costs. The other way, which is rarely talked about, surely not in the reporting of this case, is when the judge demeans the lawyer in court and the lawyer lets him get away with it. In this case, on several occasions, Judge Ito crisply told Ms. Clark, right before the jury, “Sit down,” as if he were talking to a child. Clark always complied immediately, without a whimper or the slightest indication of recalcitrance. Nothing could be worse for the prosecutor than to lose stature in the jurors’ eyes. At one point in the trial when Clark had used the word “matched” for hair and fiber evidence purportedly being connected to Simpson and his Ford Bronco—a term which Ito had disallowed because hair and fiber evidence isn’t as conclusive as
DNA
evidence—Ito snapped at her: “If I hear that word again [it’s a word prosecutors are accustomed to using], somebody is going to be in jail over the weekend.” Ito’s threat to put Clark in jail was all over the news for the jurors’ spouses and loved ones to hear and possibly pass on to them during conjugal visits. Can you imagine how it would sound for a juror to hear, “The judge almost put Marcia Clark in jail today for something she did”?

And when Clark, in cross-examining the defense’s
EDTA
expert, Dr. Fredric Reiders, was seeking to show the jury that Reiders was not a reliable forensic scientist by the provably erroneous and incompetent testimony he had given in another murder case, Ito, instead of calling Clark to the bench, angrily snapped at her in front of the jury: “Let’s wind this up. Let’s try the Simpson case sometime today,” thereby telling the jury in so many words that Clark was wasting everybody’s time.

A word about judges. The American people have an understandably negative view of politicians, public opinion polls show, and an equally negative view of lawyers. David Kennedy, professor of history at Stanford University, in writing about politicians, says: “With the possible exception of lawyers, we hold no other professionals in such contempt. Who among us can utter the word ‘politician’ without a sneer?” Conventional logic would seem to dictate, then, that since a judge is normally both a politician and a lawyer, people would have an opinion of them lower than a grasshopper’s belly. But on the contrary, a $25 black cotton robe elevates the denigrated lawyer-politician to a position of considerable honor and respect in our society, as if the garment itself miraculously imbued the person with qualities not previously possessed. As an example, judges have, for the most part, remained off-limits to the creators of popular entertainment, being depicted on screens large and small as learned men and women of stature and solemnity who are as impartial as sunlight. This depiction ignores reality.

As to the political aspect of judges, the appointment of judgeships by governors (or the president in federal courts) has always been part and parcel of the political spoils or patronage system. For example, 97 percent of President Reagan’s appointees to the federal bench were Republicans. Thus in the overwhelming majority of cases there is a nexus between the appointment and politics. Either the appointee has personally labored long and hard in the political vineyards, or he is a favored friend of one who has, often a generous financial supporter of the party in power. Roy Mersky, professor at the University of Texas Law School, says: “To be appointed a judge
to a great extent
is the result of one’s political activity.” Consequently, lawyers entering courtrooms are frequently confronted with the specter of a new judge they’ve never heard of and know absolutely nothing about. The judge may never have distinguished himself in the legal profession, but a cursory investigation almost invariably reveals a political connection. (Of course, just because there is a political connection does not mean that the judge is not otherwise competent and qualified to sit on the bench. Many times he is.) Incredibly, and unfortunately, the political connection holds true all the way up to the U.S. Supreme Court, where, for instance, the last three chief justices—Earl Warren, Warren E. Burger, and to a lesser extent William Rehnquist—have all been creatures of politics, like so many of their predecessors in history.

Although there are many exceptions, by and large the bench boasts undistinguished lawyers whose principal qualification for the most important position in our legal system is the all-important political connection. Rarely, for instance, will a governor seek out a renowned but apolitical legal scholar and proffer a judgeship.

It has been my experience and, I daresay, the experience of most veteran trial lawyers that the typical judge has little or no trial experience as a lawyer, or is pompous and dictatorial on the bench, or worst of all, is clearly partial to one side or the other in the lawsuit. Sometimes the judge displays all three infirmities.