Both Sides Could Lose in Drama of Ito vs. Media

First there was People of California vs. O.J. Simpson.

Now there is Los Angeles Superior Court Judge Lance A. Ito versus media of the world. It is a clash in which both sides have a lot to lose.

In recent days, Ito, 44, has threatened to bar two mainstream news organizations from courthouse coverage of the Simpson case, warned the collective news corps that he might pull the plug on live television in his courtroom and had his court clerk put on display letters from members of the public urging him to black out the trial.

Earlier, Ito excoriated some elements of the press “for prurient sensationalism and outright fabrication,� and invoked the possibility of a gag order. Additionally, at a closed hearing, he told the lawyers on both sides to file all their motions under seal so that he could review them and decide when to make them public, an action that some legal scholars said is a clear violation of the 1st Amendment.

Rarely has a judge been watched so closely by so many. And rarely has a judge made it so clear that he thought the media were endangering the rights of both sides to a fair trial.

Some lawyers applaud his efforts, while others say he is going too far.

Most observers say Ito’s power to control much of what angers him is limited, and if he uses all the power he has, he may make the situation worse by restricting access to accurate information. A long line of Supreme Court cases has given the press broad rights to cover legal proceedings in this country.

As a consequence, “there is no way of putting the judiciary in control of press excesses,� short of amending the Constitution, said one of Ito’s colleagues, Los Angeles Superior Court Judge Curtis Rappe.

“The judge can’t control pretrial publicity by judicial fiat,� added USC law professor Erwin Chemerinsky.

Indeed, just hours after Ito sealed Nicole Brown Simpson’s will, the tabloid television show “Hard Copy� broadcast a report on it.

“The judge is talking loudly and carrying a little stick,� commented USC law professor Susan Estrich.

Chemerinsky and Estrich believe Ito is using his “bully pulpit� in an attempt to cajole the media into moderating their zeal at pursuing every conceivable angle in the Simpson case. Those competing for scoops range from East Coast Establishment newspapers to tawdry supermarket tabloids and their television counterparts.

“He has been threatening Draconian moves in the hope of making more modest progress� in controlling the media, Estrich said. “I’m not sure that tactic works. But I’m not sure anything he did would work, and that’s probably the source of his frustration.�

Just how far Ito will go is unclear. Within days of threatening to bar the Daily News of Los Angeles from courthouse coverage of Simpson after it published a story about the jury questionnaire before he released it, Ito reversed field. Court spokeswoman Jerrianne Hayslett said Ito decided he had more important matters to tend to.

The Daily News had filed a legal brief, saying it had done nothing illegal and citing cases challenging Ito’s authority to punish the paper.

“I’m not sure he wants to go out on the limb and have a whole sideshow on the 1st Amendment,� Estrich said. She and others expressed dismay that the judge had become so angry about an accurate story merely because it was based on a document the paper obtained before its official release.

The next scheduled faceoff between Ito and the media is a Nov. 7 hearing on two issues. The first is whether to continue live TV courtroom coverage. The second is whether to bar KNBC Channel 4 from the courthouse for broadcasting an inaccurate story saying DNA tests had revealed that blood which matched Nicole Simpson’s had been found on socks seized at her former husband’s Brentwood mansion.

So far, neither prosecutors nor Simpson’s lawyers have urged a television blackout, and lawyers for numerous media organizations plan to urge the judge to permit live coverage.

Ito declined to be interviewed for this story, saying only that he has tried to accommodate the media as much as possible and that he recognizes that the roles of a judge and of the press sometimes are in conflict.

While he wouldn’t discuss the current media flap before him, Ito has had a lot to say about coverage in other instances.

Recently, for example, Ito circulated an angry letter he had sent to the Los Angeles Daily Journal, blasting the paper for publishing criticism of his friend, Superior Court Judge Jacqueline Connor, by anonymous sources. He urged his judicial colleagues to cease granting interviews to the legal paper unless the publication agreed to stop using unnamed sources in profile stories about judges.

Earlier comments also shed light on his attitudes toward the media.

After he presided over the 1992 trial of multimillionaire swindler Charles H. Keating Jr., which was televised live, Ito said the experience taught him several maxims to live by in such cases.

Rule 1 is: “Be cautious, be careful, and when in doubt, keep your mouth shut.� Rule 2 is: “When tempted to say something, take a deep breath and refer to Rule 1.� Rule 3 is: “The Sirens of mythology pale in comparison to the allure of seeing yourself on CNN. The results, however, can be about the same.�

The judge made some highly critical remarks about the media while handling some of the pretrial phases of the Menendez brothers’ murder trial. At a January, 1993, hearing, he said pretrial coverage had been unbalanced and tilted toward the brothers’ guilt. He also declared:

“This case is a favorite and recurrent topic of the print and television tabloids, complete with re-enactments. I’m surprised Joey Buttafuoco hasn’t figured in this.�

Within weeks of becoming the judge in the Simpson case in mid-July, Ito delivered his first broadside at the media when he issued an order permitting reporters to view, but not photograph or broadcast, some photos from the crime scene: “Most of the news media accounts have been factual; however, there are glaring examples of rank rumor and speculation, prurient sensationalism and outright fabrication that are the result of competitive commercial journalism.�

Additionally, he prohibited the press from viewing photos of the victims before the trial. “The public display of these items to the news media would inevitably lead to graphic, sensationalistic, lurid and prurient descriptions, accurate and inaccurate, that would paint mental images in the minds of potential jurors that would prejudice the right to a fair trial of both parties.�

Later, in August, he threatened to impose a gag order. And he told prosecutors and defense lawyers, at a closed hearing, to file all of their motions under seal, so that he could read and review the material before it became public, according to sources on both sides.

Los Angeles lawyer Kelli L. Sager, representing the Los Angeles Times and several other media organizations, objected to this, noting that a 1983 federal appeals court decision said such a procedure violated the 1st Amendment and would not stop leaks. Judge Ito conceded that there were constitutional concerns, but he has made no public statement clarifying what was said behind closed doors.

Meanwhile, court representatives have said there is no sealing order. But lawyers for both sides have continued to file motions under seal, saying they believe the order is still in effect.

Loyola law professor Laurie Levenson said she is troubled about the sealing of legal documents--a practice, she noted, that has not stopped the leaks.

“The media will do a worse job if they don’t have access to the pleadings. You don’t know in advance of the hearing what the fight is about. It reflects an attitude of sealing people off from what should be the most accurate information,� she said.

But Los Angeles defense lawyer Terry Bird applauded Ito’s efforts to constrain the media in the Simpson case, and said he should go further.

“There have to be some limits,� said Bird, who believes a gag order should have been imposed in the case some time ago.

“I think the legal system has taken a beating; I think the press has taken a beating,� Bird said. “I think a gag order would have protected the press from itself.�

Bird emphasized that Ito alone has the responsibility to ensure that Simpson and the district attorney’s office get a fair trial, as guaranteed by the 6th Amendment and by California law.

USC journalism professor Edwin Guthman said he opposes a gag order, but he expressed understanding of Ito’s anger and lamented “the feeding frenzy of coverage which has become an industry.�

“The intensity of being first on a story has caused some gross errors,� Guthman said.

“The press has been very careless and reckless,� he added, branding as inexcusable the photographing of jurors in another case on the same floor where Simpson is being tried.

“The press has much more at stake in the long haul than getting this dinky picture,� said Guthman, who served as press secretary to Atty. Gen. Robert F. Kennedy.

Several attorneys and some of Ito’s colleagues said that if the judge carried out certain of his threats, he would be trampling on the 1st Amendment.

“We have the 1st Amendment because we don’t trust the government to regulate the press,� said Los Angeles defense lawyer Harland W. Braun, who successfully opposed a federal judge’s attempt to impose a gag order on him during the federal trial of the Los Angeles police officers who beat Rodney King.

Braun said he thought the supposed threat to a fair trial in the Simpson case has been overblown. For one thing, he said, both sides at various times have been bruised by information that has been leaked.

“This is the first time where there has been a standoff in the press,� Braun said. “The government and the defense are evenly matched.�

Although Ito could cut off live television coverage of the Simpson case, that would not eliminate most of the specific problems he has complained about, only one of which stemmed from something that happened in the courtroom. In July, a television reporter’s microphone eavesdropped on a brief, private conversation between Simpson and defense lawyer Robert L. Shapiro.

Nonetheless, Los Angeles Superior Court Judge William R. Pounders, who presided over the McMartin Pre-School trial, said he hopes Ito pulls the plug on the cameras. “The lack of courtroom video would have a significant effect on depressing the media interest in the case during the trial,� Pounders said.

But most other observers said they thought such an action would only make the situation worse, by in effect encouraging the media to look elsewhere for news or rumor about the case. Moreover, it would deprive Ito of his most potent tool in responding to press errors: the ability to speak to an audience of millions during court sessions.

“To the extent that the judge and others have problems with ways the media may distort the process, the very best cure is to have direct, unedited access to the courtroom,� said Loyola law professor Sam Pillsbury.

Live coverage also serves a broader societal purpose, Levenson said.

“Especially in Los Angeles, especially at this time, especially in high-visibility cases, there is tremendous distrust of the criminal justice system, and if people feel they’re cut off from access to the case, they’ll distrust the verdict either way,� Levenson said. “By trying to punish the media, he’ll punish the public.�