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Anatomy of a Trial
Public Loss, Lessons Learned from The People vs. O. J. Simpson
By Jerrianne Hayslett
University of Missouri Press
Copyright © 2008 The Curators of the University of Missouri
All right reserved.
ISBN: 978-0-8262-1822-3
Chapter One
To Here from There
* * *
Lance Ito leaned back in the black leather chair in his chambers, propped his feet up on his cluttered desk, and clasped his hands behind his head.
"Well, Jerrianne," he asked, "what do you think I should do with the rest of my life?"
That was the first time a judge had ever asked me such a question, and it might have left me speechless had it come from any other.
It was January 1996. The abrupt and, to many people, shocking verdicts in the O. J. Simpson criminal trial had been rendered more than three months earlier. During those months, Ito had taken time off from his judicial duties to restore his health, both physical and mental, and to contemplate direction.
Lance Ito was the first judge I knew to be so profoundly affected by a trial. Sure, Stanley Weisberg of McMartin Preschool molestation, Rodney King beating, and Menendez brothers fame, and Reginald Denny&endash;beating trial judge John Ouderkirk had endured the media glare, gotten death threats and hate mail, required heightened security, and had their personal lives invaded. Those kinds of things have become almost commonplace with trials of great media interest in contemporary culture, as Florida judge George Greer, who presided over the Terri Shiavo case, and federal judge Reggie Walton, who heard the case of I. Lewis "Scooter" Libby, can attest. But other trials in recent history pale compared to Simpson.
While judges on other such cases eventually fade back into obscurity, Ito's inability to do so played a part in his judicial future. He never returned to the supervising judge track, nor did he pursue appointment to a higher court, which had seemed a distinct possibility before Simpson. Perhaps most vexing has been the loss of public regard for his professional reputation. And other judges, regardless of their opinions of Ito's competence, quail at the thought of a similar fate befalling them.
The first loss for Ito was the possibility of a leadership role in the Los Angeles Superior Court. When he got the Simpson case in July 1994, he was the criminal division assistant supervising judge, in line to become supervising judge six months later. But after the court's judicial leaders assigned him the case, it became obvious that it would consume all of his time. When the trial's opening statements began in January 1995, new supervising and assistant supervising judges had been named. Ito never got back into the cycle.
"He never asked," says Victor Chavez, who served as the court's presiding judge and made judicial assignments in 1999 and 2000. "I would have given him any number of positions. I recognized his talent even back then. I think he himself pulled himself out of the arena."
James Bascue, who served as criminal courts supervising judge during the trial and in 2001 followed Chavez as presiding judge of the entire court system, actively sought Ito out.
"I tried to see if he wanted to transfer to another assignment," Bascue says. "He would have made a great civil judge."
Security, however, had become a major concern.
"He was very concerned about the security in other court locations," Bascue says. "Because of the publicity and him being so recognizable, he was concerned about getting into the courthouse. He felt more comfortable in [the Criminal Courts Building] and [with] the judges' security for getting into and out of the courthouse."
Ito's other two losses, a respected public image and judicial advancement, resulted from the synergism of the public and the media. The public's perception of Ito grew increasingly skewed in direct proportion to the burgeoning media coverage. Many reporters and producers who were providing that coverage had little knowledge of the legal system, court proceedings, judicial constraints, or of Ito himself and his judicial demeanor. Likewise, much of the criticism and ridicule in the ensuing years have come from pundits who neither attended the trial nor know their target. One column published in a Kansas newspaper ten years after Simpson's acquittal was penned by a critic who admitted to being only nine years old in 1994.
In none of the many high-profile trials for which I handled press issues and logistics has the judge become news the way Ito did, not even during a Kim Basinger breach-of-contract dispute in which the judge, when not on the bench, routinely referred to the star by her first name and briefly became the subject of media speculation about bias.
But in the Simpson case, not only did the judge become the story, the media morphed him into a caricature, then held him accountable for that image: The media-made Ito was starstruck, played to the cameras, didn't control his courtroom, and was alternately pro-prosecution or favoring the defense. Perceptions warped and contorted like images in carnival fun-house mirrors. What people saw depended on where they stood and the mirrors they were looking into. The conundrum is how that happened in Simpson, why, and what has fed the far-reaching and long-lasting repercussions.
At the outset, Ito seemed to approach The People vs. Simpson much like any judge would a high-profile case; he prepared, researched, and planned. He studied the problematic publicity issues and unrestrained media in Sheppard vs. Maxwell, which involved the sensational 1954 trial of Ohio osteopath Sam Sheppard, accused of murdering his wife. That case eventually resulted in a U.S. Supreme Court ruling that Sheppard's right to a fair trial had been violated.
Yet, like other judges who had naive notions about notorious cases that befell them, Ito was caught off guard by the initial surge of media attention. He felt certain it would quickly recede and even disappear.
But this high-profile case contained differences from other cases, and one of those differences was the judge. Despite Ito's belief in the dignity of his office and the need for respectful courtroom decorum, he was more open, accessible, laid-back, witty, and bemused than other judges I had known. His courtroom style was to let lawyers have their say. Behind the scenes he invited input from many quarters, including his professional mentor, now-deceased Judge Delbert Wong, and a small, select group of other criminal court judges. He also openly accommodated the press, believing it served a vital role as the public's surrogate.
At the same time, he had an almost childlike curiosity in every aspect of the case and its myriad side issues. For instance, even though he said he was leaving courtroom seating for the case up to his bailiff and me, when we started planning, Ito wandered into the courtroom from his chambers full of questions and ideas.
First, he wondered what to do about jury selection. "We're going to have a hundred jurors at a time in here," he said. "That's a lot more folks than we have seats. So maybe we can bring in a bench from the hall to add a few more."
Deputies hauled in not just one, but two backless concrete benches from the hallway, providing twelve additional seats. Then, at Ito's suggestion, they lined up six plastic chairs behind the last row of permanent wooden-bench spectator seats next to the courtroom door.
Ito also took cameras into consideration. Cameras had become relatively common in California courtrooms since they were first permitted in 1981. They were generally confined to a back corner in the courtroom. That's a spot photographers and camera crews dislike because backs of heads dominate their shots. Ito, however, considered having a TV camera mounted on a side wall above and behind the jury box. His reasoning was that a camera in that position would essentially let the public see the trial from the jury's angle. It would also be out of jurors' line of vision and, consequently, less conspicuous. Also, not inconsequentially, a camera in that position would be less apt to photograph a juror, which is prohibited in California. While Ito knew the wall vantage point would yield more interesting images for the media, that was just a lucky break for them, not a factor in his reasoning.
The print media wanted a wall-mounted camera too, but they had a problem. They didn't know of any high-resolution, remote-controllable still camera that could pan, zoom, and snap pictures. Ito, an accomplished photographer himself, told them about a camera he thought might work that he had read about in an outdoor sports magazine. They researched and before long had something acceptable installed on the wall next to the TV camera.
While such accommodations should have endeared the judge to the media, it seemed to have the opposite effect. The wall-mounted cameras, for instance, soon became fodder for reports that Ito was pandering to the cameras and had directed that they be mounted on the wall to get better shots of him.
A contributing factor to this phenomenon was Ito's philosophy and personality, which spilled from his chambers into the courtroom and gave the media a number of toeholds in their attempt to define him. His access and common-man persona supports the "familiarity breeds contempt" cliché. He did not maintain the aloofness, distance, and, in some instances, degree of arrogance that often typifies judicial demeanor. In fact, I've come to believe that his affable nature and tolerance played as big a role in what led to the shaping of public perception as the grandstanding attorneys and manipulative media.
Members of the media learned about his interest and direct involvement in the peripheral issues of the case and about his hobbies and interests. They used comments he made during proceedings that revealed his pop-culture savvy and his propensity for instant fix-its to mechanical problems that arose during court to color in the background of the portrait they painted of him. This was unique, I believe. By comparison, how much does the public know about the pastimes and personas of the Martha Stewart, Scott Peterson, or Michael Jackson trial judges? In fact, who even remembers their names?
Commentators' and pundits' liberally ladled critiques of Ito led to his third loss: the possibility of appointment to the state appellate or the federal court.
Judicial nominations are made by politicians. In California, the governor appoints judges to state courts. Appointments to federal courts are made by the president. The collective wisdom in legal and judicial circles in Los Angeles and around the state soon after Ito's 1987 municipal-court appointment and elevation two years later to the superior court was that his intelligence, knowledge of the law, thoroughness, and low appellate-reversal rate would make him a likely candidate for eventual elevation to the state's court of appeal. But Ito's chances for advancement disappeared into the whirlpool of controversy generated by the media-spawned second-guessing and microscopic examination of the Simpson case, the courtroom proceedings, and participants' behavior. Such an appointment post-Simpson would have been political suicide for Governor Pete Wilson, no matter how great an appellate justice Wilson might have thought Ito would be. In fact, on the very day Simpson was acquitted, Wilson called for a permanent camera ban in all criminal cases in the state.
Rather than bar cameras entirely, however, the state's judicial council eventually gave judges complete discretion over whether or not to allow cameras in their courtrooms. Previously, the media could request hearings on camera coverage and could try to get denials overturned on appeal. With the revised provisions, camera coverage became much more of a rarity than it had been before Simpson.
The reason for that, according to Steve Kindred, a longtime reporter for the Los Angeles all-news radio station KFWB, is that "judges are afraid of being Ito-ized."
The term Ito-ized symbolizes, in part, the tremendous damage the Simpson trial inflicted on Ito's professional image. Retired San Diego Superior Court Judge William Mudd explains why. "Initially that term came about as a result of the almost overwhelming derision heaped upon Judge Ito because of his inept handling of the case," says Mudd, one of the few judges to allow camera coverage of a notable trial after Simpson. Mudd presided over the 2002 trial of David Westerfield, which resulted in a conviction in the kidnap and murder of seven-year-old Danielle Van Dam.
Veteran broadcaster David Dow, who covered the Simpson case for CBS radio and who teaches at the University of Southern California's Annenberg School of Journalism, has a different interpretation of being Ito-ized. "When judges say that," Dow says, "I infer that they view their bench colleague as a fall guy for a volatile, overly long trial with an unpopular conclusion and nasty after-taste."
Much of that perception grew out of TV spoofs by nighttime comics, like Jay Leno and his infamous "Dancing Itos" and David Letterman and his "Top Ten" list. Those routines aired on the heels of extended daily trial recaps filled with punditry, speculation, and hyperanalysis. And the comics' antics blended with daily trial recaps to become as indistinguishable in viewers' psyches as ingredients in a pot of soup.
Yet another loss for Ito was his privacy. Shopping trips, evenings out, and even gardening at home became ambush opportunities for camera crews and photographers. While other judges might suffer similar deprivations, few are subjected to such invasions for long. With Ito, though, more than twelve years after the Simpson trial, his name, face, and caricatures of him remain recognizable to the masses of Americans who followed the trial.
In part, because the trial involved and attracted celebrities and notables, such as actor Richard Dreyfuss, TV show host Larry King, television news personality Geraldo Rivera, and Anita Hill, law school professor and nemesis of Supreme Court Justice Clarence Thomas, the media celebritized all of the participants. And, indeed, most became household names. Ito, however, not only emerged as a central character, he served as the primary foil, sometimes in spite of himself, and to some degree because of my own missteps. His image and persona were refracted by a prism through which the media projected him. That was the image on which the world and many of his colleagues judged him. To understand how the mutation of that image has fueled a complex court-media-public dance, it is necessary to examine the dynamics and interaction of the various entities that played a part in the trial.
Chapter Two
In the Beginning
* * *
News reporters and television producers began to filter into the cavernous nineteen-story Criminal Courts Building in Los Angeles soon after Simpson's arrest for the June 1994 murders of Nicole Brown Simpson and Ronald Goldman. They came to cover his initial arraignment and subsequent preliminary hearing, which is a sort of mini trial at which prosecutors present a summary of their case. The preliminary hearing judge must determine if the district attorney has enough evidence for the defendant to stand trial. Los Angeles Municipal Court Judge Kathleen Kennedy-Powell ruled that to be the case with O. J. Simpson.
Media coverage of Simpson's four-day preliminary hearing and some of the attorneys' behavior at that and at an evidentiary hearing that preceded it foreshadowed the media debacles and lawyers' grandstanding that were to play out for all the world during the trial.
(Continues...)
Excerpted from Anatomy of a Trial by Jerrianne Hayslett Copyright © 2008 by The Curators of the University of Missouri. Excerpted by permission of University of Missouri Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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