Strongly criticizing coverage in the O.J. Simpson case, Superior Court Judge Lance A. Ito on Friday rejected media requests to view photographs of the murder victims--which he said would "inevitably lead to graphic, sensationalistic, lurid and prurient descriptions" that would influence potential jurors.
Simpson, meanwhile, spent the day recuperating from a Thursday morning hospital procedure in which swollen lymph nodes were removed from under his arms. Robert L. Shapiro, the football star's lead attorney, said after meeting with his client that Simpson is nervously awaiting test results that will reveal whether the swelling was caused by cancer or by one of many less serious ailments.
In his order, Ito allowed reporters to view other photographs of the crime scene, and he released one transcript from a closed-door session during last month's preliminary hearing. According to that transcript, attorneys on July 8 discussed phone records regarding the time of a call to Nicole Brown Simpson, but they could not agree on when that call was placed.
The time of the call could prove important because it is the last time that she was known to be alive. Prosecutors contend that she and Ronald Lyle Goldman were killed sometime before 10:30 p.m. on June 12, and a witness testified that he found her dog wandering the neighborhood about 10:35 p.m. Simpson's attorneys maintain that the killings could have occurred later, about 11 p.m., while he was home preparing to leave for the airport.
Although Ito's order allowed the release of the five-page transcript, the thrust of his action was to limit coverage that, by most accounts, has exceeded that of any other murder investigation in U.S. history.
"Most of the news media accounts have been factual," Ito said in his order. "However, there are glaring examples of rank rumor and speculation, prurient sensationalism and outright fabrication that are the result of competitive commercial journalism."
Ito also sharply criticized the electronic news media for using microphones in court to eavesdrop on a conversation between Simpson and Shapiro, which Ito said "violated the sanctity of the attorney/client relationship." He added that he would "not hesitate to completely terminate in-court media coverage" if a similar violation occurs.
Given the extent of the media coverage, Ito said allowing reporters access to the photographs of the victims before the trial would create "a substantial probability, and in this case a virtual certainty, that the defendant's right to a fair trial would be similarly prejudiced."
Asked later about his order, Ito said he had sought to balance the "legitimate interests" of the media with the "sensibilities of the victims' families."
"The problem I have to worry about is the jury pool," he said. "I don't think the L.A. Times, the New York Times or CNN or the New Orleans Times-Picayune . . . would show (the pictures of the victims' bodies). But others would."
Shapiro said the order was "consistent with what we thought the ruling would be and with the legal arguments we made in court." In fact, the media request for access to photographs and transcripts was opposed by prosecutors and defense attorneys, a rare point of agreement in the contentious case.
Legal experts generally commended Ito's attempt to contain the coverage of the case, even as they warned that it will be difficult to control media discussion in the face of such enormous public interest.
"I think Ito's trying to do the right thing," said Harland W. Braun, a noted criminal defense attorney who represented Officer Theodore J. Briseno in the federal civil rights trial of the officers who beat Rodney G. King. "These cases are extremely difficult, and the main problem he's got is trying to reconcile having a fair jury trial with the 1st Amendment."
Ito's struggle is not a new one: In an era of intense media competition and the emergence of tabloid television shows--with their splashy, sensationalistic approach to news coverage--judges often are forced to grapple with the need to shield prospective jurors from information that could skew their verdicts and at the same time protect the public's right to observe judicial proceedings.
In the federal King trial, U.S. District Judge John G. Davies urged lawyers not to discuss certain matters outside his courtroom. While jury selection was under way, he also imposed a gag order on Braun, in part to bar the outspoken attorney from publicly impugning the motives of prosecutors in the case.
Davies was only partially successful. While lawyers generally heeded Davies' admonitions, Braun fought back against the gag order, and the U.S. 9th Circuit Court of Appeals quickly overturned it. In the wake of the appellate court ruling, Braun voluntarily stopped commenting on issues regarding the probable composition of the jury, but he quickly resumed his attacks on prosecutors.
Some of the same concerns were raised surrounding the trial of four young men accused of attacking Reginald O. Denny and others during the opening hours of the Los Angeles riots. In that case, Superior Court Judge John W. Ouderkirk refrained from imposing gag orders but held a number of sessions behind closed doors.
"It's not easy," Loyola law professor Laurie Levenson said of the effort to control information in such high-profile cases. "Even though judges have gone before you, every case is different."
Part of the problem with attempting to keep prospective jurors from hearing prejudicial information, Levenson added, is that judges only can control the attorneys who appear before them and the evidence that flows through the courtroom. They are virtually powerless to stop other leaks or to keep news organizations from inaccurately reporting developments.
"It's a near-impossible task to silence the public speculation in this case," Levenson said of the Simpson investigation. "You can silence the attorneys and still have information coming out from other sources."
Mark Cammack, a Southwestern University law professor, agreed, adding that judges nonetheless often strive to protect their pool of potential jurors from the taint of news reports.
"There's some feeling on the part of the judge, some sense of responsibility that he needs to do what he can to prevent the jury pool from being polluted," Cammack said. "The trouble is, he hasn't got the resources to effectively contain all of this."
In his order, Ito also allowed reporters to view seven photographs introduced during the preliminary hearing. The judge set a Friday morning viewing time, and reporters from around the country lined up for a chance to be led, three at a time, to a table where the photographs were displayed.
A bailiff oversaw the viewing to ensure that no photographs were taken, and Ito himself observed the process.
Reporters scribbled notes as they examined the pictures, which included photographs of a bloodstained envelope, a blue watch cap and a brown glove found near the bodies of the victims. A glove matching the one discovered at the scene was found at Simpson's Brentwood estate.
In addition, the photographs displayed Friday showed bloody shoe prints near the scene of the murders and depicted Goldman's Union Bank card and driver's license.
Although the photographs do not show the bodies of either victim, blood surrounds the murder scene. The edges of the white sheets covering the bodies are stained with blood as well.
Despite the request from media organizations, Ito declined to release several transcripts of closed-door sessions during the preliminary hearing. One meeting involved witness security, Ito said, adding that two other sessions involved defense attorneys and the judge without prosecutors present.
Two of the other transcripts involved the contents of a bulky Manila envelope displayed briefly in court during the preliminary hearing. Since the envelope's brief public appearance, its contents have been the object of widespread speculation.
Ito said he will rule next week on a prosecution request to examine the envelope. In his order Friday, he declined to release the transcripts of the sessions at which the envelope was discussed, at least until he decides on the prosecution motion.
Ito released his order in written form Friday, so no court hearing was held. As a result, Simpson, recovering from the surgery, was not present for the release of the judge's order.
After meeting with his client in jail, Shapiro said Simpson hoped to receive biopsy results this weekend. Swollen lymph nodes can signal the presence of cancer but also can point to less serious ailments such as allergies.
"He's very, very nervous," Shapiro said. "He hasn't seen his kids, and now there are these medical tests looming. That's bothering him."
Shapiro said Simpson also was troubled by the flurry of false reports that accompanied his early-morning trip to the hospital. Although Shapiro credited major newspapers with correctly reporting the details of the procedure, other news organizations speculated on a host of other possible problems.
"This has got him terribly frustrated," Shapiro said. "Where's the credibility in these reports?"
Ruling on Publicity
Here is a portion of Superior Court Judge Lance A. Ito's order issued Friday in the O.J. Simpson case, in which the judge talked about the impact of publicity:
"The arguments of all counsel concede the unprecedented news media interest and coverage in this case to the extent that the acting secretary of state has requested this court to stand in recess on Election Day to allow the democratic electoral process to go forward without the distraction of news media coverage of the trial in this matter.
"Each of the supermarket tabloid newspapers has carried the Simpson case as the cover story for the past month. Each of the tabloid television programs has featured the Simpson case on a regular basis for over a month.
"Each of the major television networks has regularly reported on this case on the national evening news. The now famous freeway chase resulted in the switch from the National Basketball Assn.'s championship series in progress to live feed of the chase. Each of the major local newspapers carries reports of the progress of the case as front page news. That assignment of the trial judge made the front page of the (New Orleans) Times-Picayune.
"The all pervasive and invasive news media coverage has exceeded that of previous high-profile cases, in part due to technological advances. 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.
"The electronic news media violated the sanctity of the attorney-client relationship at the preliminary hearing by illegally eavesdropping upon private conversations between the defendant and lead defense counsel, and then compounded the error by publishing and republishing those comments in an unethical and unprofessional manner.
"It is also important to note that the grand jury investigation in this matter was terminated by the supervising judge of the criminal division on the basis of probable taint from the building wave of publicity regarding this case."