Anatomy of a Trial: Public Loss, Lessons Learned from The People vs. O.J. Simpson

Chapter 4. Pressing Issues

Chapter 4 Pressing Issues    Press reports are wrong. Ito feels numbed and disturbed, What is the outcome? I started writing daily haiku soon after the Simpson case was filed in court.1 This one, on September 22, 1994, was inspired by a comment Ito made during a hearing about forensic testing of clothing Simpson wore the night of the murders. Both the prosecution and the defense expressed outrage over inaccurate press reports. “There was an allegation that certain clothing items were sent to Cellmark [laboratory] for RFLP testing, and that is false, referring to the most recent report,”prosecutor Marcia Clark said during the hearing.“And I would further indicate to the court that none of the parties in court were responsible for that story being disseminated and we are all very upset with it having been disseminated in that fashion.”2 In a rare moment of unity during the trial,defense attorneys closed ranks with the prosecution. “For the defense, Your Honor,” Simpson attorney Johnnie Cochran said, “I will join in that and indicate that none of us have received any such reports and we are also very,very troubled by this,because it definitely flies in the face of our client receiving a fair trial. . . .”3 35 Echoing the lawyers’ disgust, Ito remarked that the public was being saturated with irresponsible media coverage. “I’m almost numb to it at this point,” he said.“For this kind of information to come out and for it to be incorrect and for it to be so prejudicial is outrageous . . . . I’m very disturbed. I don’t want to take extreme measures and I have attempted not to, but I’m sorely tempted at this point.”4 Among the measures he was considering was a protective order, commonly called a gag order, to prevent trial participants from commenting publicly or talking to members of the media about the case.In truth,though, the erroneous reports seemed to be coming from sources who were beyond the reach of Ito’s authority. As an appellate court has ruled in other cases, a gag order can only apply to those within the judge’s jurisdiction, that is, the trial participants, their employees, and witnesses. Nevertheless, the media felt unduly constrained and became increasingly critical of what they considered onerous restrictions. Finally, CNN’s Larry King decided to weigh in.About the time Ito and the lawyers were grappling with bad reporting, King invited Ito and some journalists onto his show to debate the restrictions, which included requiring the media to use one pool reporter to cover jury selection and instructing the lawyers to file all motions under seal, as well as the looming threat of a gag order. Ito declined. The spotlight swung toward me. Would I sit in for Ito and address the media’s complaints? The prospect was heady—for a moment. I could certainly discuss the problems. As I looked beyond the fifteen-minutes-of-fame lure, the shine began to fade. It would be hard to not come across as defensive or get caught up in a shouting match, neither of which I relished or thought would benefit the court. On the other hand, I was concerned about unanswered criticism reaching millions of people. Allowing only one reporter in the courtroom during jury selection had nothing to do with restricting the media and everything to do with space limitations. Ito was already grappling with how to fit a hundred prospective jurors into a courtroom with seating for about sixty people. Understanding that most members of the media wanted to be physically present, he had agreed to let more journalists in as prospective jurors were excused. The idea of a gag order and the requirement that motions be filed under seal stemmed from Ito’s attempts to staunch the flood of erroneous media reports. He ultimately decided that a gag order wouldn’t solve the problem, 36 Anatomy of a Trial and he unsealed motions as soon as he could determine that they didn’t contain prejudicial or confidential information that could taint potential jurors. Foremost in Ito’s mind was the Sixth Amendment to the Constitution guaranteeing a defendant’s right to a fair trial. Ito’s thinking,when I discussed the dilemma with him,was that if anyone went on the show, it should be a member of the court leadership, such as the presiding judge, Robert...