PERSPECTIVES ON THE SIMPSON CASE : Try It in Court, Not in the Press : Prejudicial material like the 911 tapes and citation of anonymous sources compromises the right to a fair trial.

In an extraordinary ruling, the supervising judge of the criminal courts dismissed the grand jury in thJ. Simpson case because of prejudicial publicity. In spite of Los Angeles County Dist. Atty. Gil Garcetti’s self-serving disclaimers, he must recognize his responsibility for the events leading to this fiasco.

Garcetti had launched what The Times described as a “media blitzkrieg.” In an effort to reverse his office’s string of losses in a series of high-profile cases, he committed himself to first trying this homicide case in the court of public opinion.

Through a lifetime of hard work, O. J. Simpson earned the affection and admiration of most of the public. This will make it difficult to persuade a jury that he committed two murders. Sadly, the prosecution decided that to win this case, it had to manipulate opinion through public-relations gimmicks, anonymous leaks and character assassination.

Although it may surprise some, there are ethical rules controlling public statements of lawyers, including prosecutors. The American Bar Assn. Model Code of Ethics and case law define what is prohibited. A prosecutor should not make any statement that “will have a substantial likelihood of prejudicing a criminal proceeding.” These ethics rules also specifically forbid a prosecutor to speak out of court about the accused’s character, reputation or prior criminal acts; to tell results of tests, or to give an opinion as to guilt or innocence, the evidence or the merits of the case.

The Supreme Court has emphasized that such limits on a lawyer’s speech are necessary to ensure the fair administration of justice. Putting aside questions of legal ethics, fundamental principles of fairness and our Constitution prevent a prosecutor from interfering with the right of the accused to a fair trial.

Garcetti’s media drive to manipulate public opinion in the Simpson case is unseemly at best. The excuse that the prosecution is simply answering defense comments is not persuasive. First, it is not accurate, and second, it is the same “retaliation argument” that a federal judge rejected in January when Bruce Cutler, lawyer for New York mob figure John Gotti, was held in criminal contempt for public statements he made in that case.

If we can step back from the sound and fury of the Simpson case and examine the conduct of the prosecution team, which includes the police, what we see is indeed disturbing. The truth, the presumption of innocence, and O. J. Simpson’s right to a fair trial by an impartial jury may be among the eventual casualties.

We have seen an extraordinary amount of widely reported information from “anonymous law-enforcement sources.” Repeatedly we heard about devastating evidence, a bloody ski mask, found in Simpson’s house. In court, the prosecution was finally forced to admit that “there is no ski mask.” These same anonymous sources reported that Simpson had his hand inside a bag during the entire flight to Chicago. The implication was that it had been severely cut during a knife attack on his wife. Now a number of passengers have come forward to testify that this bag incident never occurred. The anonymous sources also reported that Jill Shively, a grand jury witness, observed Simpson fleeing the crime scene in his white Bronco immediately after the killings. Now we hear that her testimony is so unworthy of belief that the prosecution will not be calling her as a witness.

Nicole Simpson, Ronald Goldman and O. J. Simpson’s right to a fair trial by an impartial jury are not the only victims of this sordid affair. The prosecutors showed no hesitancy in trashing the fine reputation of Judge Ronald Schoenberg, who sentenced Simpson in the 1989 spousal-battery case. Garcetti, in his recent media offensive, castigated Schoenberg for refusing to sentence Simpson to jail, calling his sentence “a joke.” The lawyer who heads the city attorney’s domestic violence unit announced to the world that they had demanded a 30-day jail sentence for Simpson. Prosecutors claimed that despite their vigorous objections, Schoenberg, allegedly star-struck, sentenced Simpson to no time in jail. Commentators and reporters pilloried the judge. Finally the truth came to light: The transcript of the plea and sentencing shows that the prosecution did not ask for a 30-day sentence, and specifically agreed that Simpson should receive no time in jail.

As the campaign to trash O. J. Simpson ground on, we were treated to the release of the 1989 police battery report and tapes of the 911 calls. Transcripts of the calls were conveniently prepared by the police--who are legally agents of the prosecution team--to assist the media in dissemination of this prejudicial information. While ducking for cover by claiming he had no advance knowledge, Garcetti finally admitted that David Conn, one of the case prosecutors, knew that the material would be released. The police say they asked the D.A.’s office to give them a good reason not to release the 911 tapes, but that “prosecutors supported their release.”

Police and prosecution claim that they believed the tapes would not be admissible at a trial. The prosecution certainly knew that these tapes would receive extraordinary publicity and that potential jurors would be exposed to prejudicial evidence. This charade might help convict Simpson, but it is ethically and legally wrong.

If Simpson committed these crimes, he should be held fully accountable. However, these events illustrate a concerted, win-at-any-cost approach by the prosecution and law enforcement that prejudices Simpson’s right to a fair trial by an impartial jury.

If what we have seen in the past weeks is a preview of how the district attorney plans to end his office’s losing streak in high-profile cases, it is indeed troubling. It appears that the prosecution has misplaced its moral compass. If Garcetti wants to ensure that justice is done, he should stop trying this case in the press, shut down the “anonymous law-enforcement sources” and step into the courtroom to try the O. J. Simpson case himself.