NEWS ANALYSIS : Shift to New Judge Still Leaves a Host of Questions : Jurisprudence: If Ito recuses himself from case, a mistrial is feared. But experts doubt he can be forced off.

For one brief, throat-lumping moment in Department 103 of the Criminal Courts Building on Tuesday, the intense, bearded man on the bench seemed to recede from view and, in his place, there was the aristocratic Edward VIII, stammering ever so slightly over Wallis Simpson.

In a case that so far has involved sex, blood, money, betrayal and nearly every remaining melodramatic convention, it was perhaps inevitable that true love would have its moment on the stage. But it remains unclear whether Superior Court Judge Lance A. Ito’s dramatic decision to relinquish some of his power for the sake of the woman he loves has put the O.J. Simpson murder trial back on course--or has sent it stumbling down still another dark and perilous legal alleyway.

Ito, who has presided--if not precisely reigned--over the case, is married to Capt. Margaret York, the highest-ranking woman officer in the Los Angeles Police Department and one of the people derided by name in the interviews former detective Mark Fuhrman gave to an aspiring screenwriter.

“I love my wife dearly, and I am wounded by criticism of her. As any spouse would be. And I think it is reasonable to assume that that could have some impact,” Ito said, choking back tears and momentarily pausing in a struggle for composure.

With that, he announced that the fate of the so-called Fuhrman tapes--the most important evidentiary ruling yet required in the so-called trial of the century--will have to be made by another judge.

Within an hour, James Bascue, supervising judge of the Superior Court’s criminal division, assigned the tapes dilemma to Superior Court Judge John H. Reid, like Ito and Bascue a former deputy district attorney.

But the shift to Reid leaves unanswered questions every bit as consequential as the issue it resolves. Will Ito be forced off the case altogether? Will there be a mistrial? Will Los Angeles ever hear the Fuhrman tapes and, if it does not, what will the consequences be?

Perhaps the most immediate question is the mystery of why prosecutors chose to press Ito to the wall about leaving the case entirely.

Deputy Dist. Atty. Marcia Clark maintains that Ito cannot remove himself solely from the two issues now before Reid--the admissibility of the tapes and the question of whether York is a material witness in the trial--but must bow out completely. In essence, Clark asserted that Ito is tainted simply because he knows that Fuhrman made negative comments about his wife.

New York University law professor Stephen Gillers, an expert on judicial ethics, said Clark is out of line. “The argument that because Fuhrman has made disparaging statements about Ito’s wife is a basis for recusal is certainly wrong,” Gillers said.

“Judges are expected to rise above that. If Ito concludes that it will not affect his judgment, that conclusion will not be second-guessed by an appellate court. Fuhrman’s alleged comments about Ito’s wife do not raise a legitimate question about Ito’s impartiality. There’s case authority that a judge’s hostility toward a litigant or a lawyer . . . is insufficient grounds for recusal,” Gillers said, adding the same would hold true for a witness, who plays a lesser role in the proceedings.

Indeed, Reid himself expressed skepticism about the need for Ito to leave the case. At a hastily convened hearing Tuesday afternoon, Reid observed that prosecutors had not objected to Ito recusing himself on two issues earlier in the case, including one involving an internal police investigation with arguable links to York.

And, even though Fuhrman may have said nasty things about Ito’s wife, Reid predicted his judicial colleague would act fairly.

“Judge Ito is one of the finest jurists we have,” he said. “I’m sure he has heard disparaging remarks about counsel, the court, probably even himself--it’s kind of like water running off one’s back.”

Retired Los Angeles Superior Court Judge Jack Tenner also said he thought it would be unwise for Ito to withdraw unless Reid rules that Ito’s wife is a material witness--a move that would require Ito to get off the case. Failing that, Tenner said, Ito should stay put.

“If Ito recuses himself and is succeeded by a new judge, there’s no way a new judge could come in now without stopping the case for a month to review transcripts. That could invite a mistrial,” primarily because additional jurors are likely to fall by the wayside, Tenner said.

Both Tenner and former Los Angeles County Dist. Atty. Ira Reiner said the prosecution move on Ito looked like “an act of desperation.”

“They appear to be trying to force a mistrial,” Reiner said. “They’ve come to grips with the fact that they’ve lost the case. They’re looking at the tapes with such dread that a hung jury would be a victory,” he said.

Even though the tapes have not been made public, USC law professor Erwin Chemerinsky said their devastating potential was signaled by Clark’s sudden announcement in court Tuesday that she was willing “to stipulate that Fuhrman used a vile racial epithet in 1985, 1986 and 1987. She wouldn’t have done that unless these tapes were very bad,” Chemerinsky said.

But Chemerinsky said he thinks a mistrial is unlikely. “I think the 1992 Espinoza decision of the California Supreme Court makes it clear that it is permissible to transfer the case to another judge.”

In that case, a judge said he could not continue because of his cancer treatments and the trial was transferred to another judge. “The California Supreme Court ruled that there was no violation of the Sixth Amendment right to fair trial by transferring the case,” Chemerinsky said.

He said that he does not believe Ito has to recuse himself now. But Chemerinsky noted that there are several other key issues pending on Fuhrman that the judge has to consider.

“For example, there is the issue of the three additional witnesses the defense wants to call to impeach Fuhrman. There’s the danger that if Ito admitted all that evidence, people could say he did it because he was angry at Fuhrman for attacking his wife. And if he rules to exclude those witnesses, people might say he was bending over backward to show he wasn’t biased against Fuhrman.”

In a nutshell, Ito might be damned whatever rulings he makes--something he obviously is aware of. Still, when Clark suggested to him that he had to take himself off the case, Ito asked pointedly, “Are you sure you want to do that?”

Indeed, one former prosecutor said the district attorney’s office’s attempt to get Ito off the case “is insane from the prosecution’s standpoint.”

“First of all,” said the source, who spoke on condition of anonymity, “if they succeed in forcing Ito to recuse himself in the hopes of getting Judge Reid, they are forgetting that John and Lance are very close friends and former colleagues in the D.A.’s office. Reid is unlikely to look kindly on having this horrific case forced on him at his old friend’s expense. Moreover, there’s not a hair’s difference in the way they would try this case.

“More to the point,” the source said, “there are only two ways Ito can be be removed. One is if the Court of Appeal orders him to recuse himself, and I can’t imagine that happening. The other is if he decides to recuse himself just to get out of this mess. That would be very un-Lance-like. He’ll only remove himself if he thinks it’s the right thing to do.”

The source, who believes adamantly that Simpson is guilty, said the prosecution move “is going to anger about 60% of the judges on the criminal bench. They’re all FOLs--’Friends of Lance’--and they’re not going to like this one bit.”

The irony of the prosecutors trying to get a former prosecutor--Ito--off the case was noted by several observers, including Loyola law professor Laurie Levenson. “Everything in this case gets flipped on its head. In the beginning, the question was whether the judge would be too solicitous of the prosecution because of his wife; now we’ve got the reverse.”

Defense lawyer Gigi Gordon said it clearly had been a very difficult day for Ito:

“Poor Lance. The only guy in the room with a conscience. He’s doing the right thing, even though it hurts either way. We saw him exposed to the bone today and he pushed ahead because he’s prepared to defend the integrity of the system, even if it’s extremely painful for everyone--including himself.”