Choosing the Judge for the Simpson Trial

With all of us waiting to see who’s going to be the judge in the O.J. Simpson trial, I’ve been wondering what sort of person would be best suited for such a high-pressure job.

Gavel-to-gavel television coverage may make it sound like a great assignment.

It was for Municipal Judge Kathleen Kennedy-Powell, who presided over Simpson’s preliminary hearing. She moved the proceedings along briskly and decisively. It was the judge--not the contesting attorneys--who found an important precedent to support the actions of police detectives who initially entered the Simpson estate without a warrant.

But history shows that judging a hot case such as Simpson’s, with the chance of making unpopular or incorrect calls, can hurt or even wreck a judicial career.

*

Los Angeles jurists still remember the story of late Superior Court Judge Alfred Gitelson, who, in 1970, ordered the Los Angeles schools to integrate. The same year, he was defeated in an election campaign where he was labeled the busing judge.

Gitelson’s defeat changed the ground rules. Before, judicial reelection was just about automatic. Suddenly, frightened judges began mounting reelection campaigns, having to solicit contributions from attorneys.

Another judge involved in school integration, Paul Egly, resigned from the bench rather than subject himself to the degrading process. Recall attempts, hate mail and death threats had persuaded him he would have faced a tough and miserable fight.

And if anyone had forgotten Gitelson and Egly, there was the case of Judge Joyce A. Karlin to remind them. She was the judge who granted probation to a Korean American grocer who shot and killed a black teen-ager. After that decision she had to mount an expensive reelection campaign.

The shock of the Gitelson defeat lingers, 24 years later. That was evident when I talked to Robert M. Mallano, the Superior Court’s presiding judge.

“We’re aware of that,” he said. “If you’re in some case where the public has a strong feeling as to how it will come out and people will be angry if it doesn’t come out the way they want, then it’s kind of hard to ignore that situation.

But, he added, “You have to make the call you think is appropriate. . . .”

To do that, Mallano said, a judge can’t be overly sensitive. “You don’t want someone with rabbit ears. You see on TV how you’ve got a bunch of lawyers commenting, law professors. They second-guess every ruling.”

And the judge will have to be decisive. “Lawyers were asked (in a recent study) what attribute they thought was most important in a judge. The majority said decisiveness. That’s the nature of our role. . . . You can’t stop the trial and do an hour’s research every time there is an objection. You’d never get done.”

*

Even when a judge makes the popular decision, he can lose.

UC Hastings Law School Professor Joseph R. Grodin found that out when he was an associate justice on the same state Supreme Court headed by Chief Justice Rose Elizabeth Bird. Bird, Grodin and Reynosa were recalled by voters after a campaign based on the court’s overturning of most death penalty cases that came before it.

Grodin told me Tuesday he had intended to affirm the death penalty in some upcoming cases but was reluctant to do so because “people would say I am doing that in order to retain my seat.”

In the end, he voted to uphold it in a case. “The opposition group held a press conference and said: ‘We told you he was an unprincipled guy.’ It wouldn’t have mattered how I voted. . . . It takes a lot of stability and self-awareness for a judge to stay on even keel.”

*

Judge Mallano has given the job of choosing the Simpson trial judge to Supervising Judge Cecil Mills. Mills turned down a request for an interview. Instead, he referred me to an interview he’d given in May to Jean Guccione for California Lawyer magazine. When choosing a high-profile trial judge, he said, “you want to make sure they are not going to get rattled. And they have to remember little things, like not picking their noses. . . . The system is characterized by the one of us on the 6 o’clock news.”

But as the stories of Gitelson, Egly, Karlin and Grodin show, deeper qualities will be needed. A court spokesperson said the trial judge is expected to be picked from an elite panel of nine judges who handle long, high-profile criminal trials. They’ve all felt the heat. I bet they won’t all volunteer for this job.