The Judge’s Wise Change of Mind : Closing doors only adds to the difficulty

Lance A. Ito, the Los Angeles Superior Court judge conducting the O. J. Simpson case, has rescinded his controversial order closing the doors to the press and public and will thus allow jury questioning to proceed apace as it should: in the full light of day. Judge Ito’s reversal was wise and necessary, coming Friday before an appeals court probably would have overturned the order anyway.

The order was misconceived and unconstitutional. According to a court spokesman, Ito intended to exclude the press and public from only individual questioning of 80 or so prospective jurors about their exposure to the news media, including a gossipy new book about Nicole Brown Simpson that greatly irritated the judge and Simpson’s lawyers.

ANY IS TOO MUCH: However limited the closure, the net effect would have been to deprive the public of an important portion of the pretrial proceedings. And whatever the judge’s intentions, that would have been a violation of the First Amendment and of controlling case law. As the Supreme Court put it in Elrod vs. Burns (1976), the “loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.”

Barring a showing of fact that out-of-court reporting has in any way affected the jury selection process--and there has been no such showing--the judge’s order must be seen as just plain wrong.

More is at stake here than the obvious self-interest of the news media in being able to report stories that interest people. A major purpose of the First Amendment is to protect the free discussion of governmental affairs. By offering such protection, the First Amendment serves to ensure that the citizens are effectively informed and have the information necessary to understand government processes. A murder trial is just such an important government process; it is vital that the public observe jury selection to be open and fair.

Ito is absolutely right in demanding that Simpson get a fair trial in this highly publicized murder case. And he may sincerely believe that his unquestionably difficult task is made no easier when tabloid newspapers, tabloid-style television shows and other down-market media play up the trivial aspects of the Simpson case, often in lurid detail, as does the new book on Nicole Simpson. Alas, Ito’s reaction to publicity about that book gave it even more prominence than it might otherwise have had.

FUTILE ENDEAVOR: Moreover, in our view, Ito sometimes allows himself to get sidetracked by things he cannot and should not try to control. Yes, he needs to control what goes on in the courtroom, and he of course must be concerned with keeping jurors away from prejudicial media reports. But it is futile for him to preoccupy himself with how the news media are reporting the trial.

This is not the first sensational trial with massive news coverage. Jurors in other highly publicized trials have managed to make decisions based on the evidence rather than the publicity. Let’s keep that in mind.