Ito Approves a Televised Trial : Simpson case: Judge says camera in courtroom was not to blame for erroneous DNA report. He finds ‘higher level of responsibility’ among media in past five weeks.


Clearing the way for viewers across the country to tune in to the O.J. Simpson murder trial, Superior Court Judge Lance A. Ito ruled Monday that a television camera may stay in the courtroom, a decision that at least temporarily ends a legal dispute that has dogged the case for more than a month.

As the session began Monday, Ito displayed 21 boxes containing 12,468 letters from people who urged him to cut off the camera. But Ito later declined to carry out his longstanding threat to curtail courtroom television coverage.

Ito’s decision ended a debate that has raged since Sept. 30, when he formally notified news organizations that he was considering ending the television coverage of the court proceedings. That threat came after the airing of an erroneous report about DNA evidence and the broadcast of close-up shots of jurors from a different trial.

During the past five weeks, however, Ito has observed a “higher level of responsibility” in reporting on the case, he said Monday. More important, the judge added, he has concluded that the camera in the courtroom was not to blame for the earlier problems.

“What caused the court its initial concern . . . happened outside of this courtroom,” Ito said, noting that he has taken several steps to curtail publicity in the case since the broadcast of the inaccurate DNA story, initially aired by KNBC Channel 4 and repeated by other news organizations. “The bottom line is whether or not the transgressions that caused the court to set this hearing took place within the confines of the court. . . . I find that they did not. The court’s previous ruling allowing television coverage stands.”


The only condition Ito imposed was that Court TV, which provides the courtroom coverage, set up a remote control camera on the wall above the jury. Because the camera would be inconspicuous, it would minimize the potential for witness intimidation, he said. Its placement would also ensure that the jurors’ faces are not televised. Court TV’s president said the camera could be installed within a day or so.

Although Ito ruled in favor of the continued television coverage, he first spent about two hours grilling attorneys for The Times and other news organizations about the camera and its potential effect on the trial of Simpson, who is charged with the June 12 killings of Nicole Brown Simpson and Ronald Lyle Goldman. Simpson has pleaded not guilty.

At one point Monday, Ito gestured theatrically to the cardboard boxes full of letters urging him to cut off the courtroom camera.

He then asked Kelli L. Sager, an attorney representing The Times and more than a dozen other organizations, how she could maintain that the public had an interest in continued television coverage when so many people had written asking him to end it. Those letters came in response to an article by a syndicated columnist urging them to write Ito favoring the camera ban.

“My clients would be happy to organize a letter-writing campaign if that were the way the court were to decide issues in this case,” Sager responded. “But I would urge the court not to make rulings . . . based on public opinion. If 20,000 people wrote in and said: ‘We think the DNA evidence should come in,’ I’m sure the court would not then make a decision based on the fact that the public has spoken.”

Sager, who has appeared before Ito a number of times during the Simpson case, told the judge that court hearings should be open to as many people as possible, in part to reassure the public that the process is fair and that the verdicts are supported by the evidence. Intense public interest in the Simpson case also makes it a useful vehicle to educate millions of people about the legal system, Sager added.

Her comments were seconded by Floyd Abrams, an attorney from New York who represented Court TV at Monday’s hearing and who opened his remarks by saying he was arguing on behalf of the courtroom camera itself. Abrams, echoing Simpson’s famous proclamation of innocence, said that although some of the reporting on the case has been reckless and irresponsible, “the camera pleads absolutely, 100% not guilty.

“It didn’t do anything wrong,” Abrams added. “It hasn’t shown anything wrong.”

Sager and Abrams, just two of more than a dozen media lawyers who gathered in Ito’s courtroom for Monday’s hearing, were followed by others who also urged the judge to keep the camera rolling. Simpson’s attorneys and prosecutors joined in saying they too favored keeping the camera.

One of Simpson’s lead lawyers, Robert L. Shapiro, said wide public attention to the case will help Simpson reclaim his name at the end of the trial. Deputy Dist. Atty. Marcia Clark said it will allow “the world to see what the jury sees” and improve the accuracy of reporting on the case.

That left Ito in the relatively rare position of facing a united front that included the media, defense and prosecution. But the judge used the session to elicit from the attorneys their endorsement of the steps he has taken so far to counteract publicity in the case--a tactic that legal experts said was significant because in 1966, the U.S. Supreme Court in Sheppard vs. Maxwell reversed a conviction after finding that the judge had failed to do enough to protect Dr. Sam Sheppard’s right to a fair trial on charges that he murdered his wife.

“Judge Ito wants to establish a clear record that he has done everything in his power to ensure Mr. Simpson’s right to a fair trial so that no appellate court could say of him what the Supreme Court said of the irresponsible behavior of the trial court in the Sheppard case,” said Peter Arenella, a UCLA law professor.

Ito has undertaken a probing jury selection process, has directed that all test results of evidence be forwarded directly to him and has cautioned attorneys about their public comments in the case. In addition, he is considering sequestering the jury. All those are attempts to protect a fair trial for Simpson, and all make his handling of this case different from the way the judge proceeded in the Sheppard case, experts said.

Although Ito’s ruling clears the way for the celebrated murder trial to be televised, Simpson’s lawyers said they will ask for the camera to be barred from hearings that are scheduled to take place between now and opening statements in the trial. The expected date for opening statements to begin has been pushed back time and again, but most observers now expect them to start after Jan. 1.

Simpson attorney Cochran said the defense wants Ito to remove the camera for the upcoming hearings and may seek to close some sessions to keep jurors from hearing of disputed evidence. The hearings at issue are expected to deal with defense objections to certain prosecution evidence. DNA samples will be the focus of the most closely watched hearing, but another controversy may erupt if prosecutors seek to introduce evidence that Simpson beat his ex-wife or stalked her after their divorce.

Prosecutors also have made clear that they consider Simpson’s initial failure to surrender as evidence that he was fleeing prosecution. If they seek to introduce evidence about the low-speed pursuit involving Simpson and his friend Al Cowlings--which ended when Simpson was persuaded to put down a loaded gun and turn himself in--defense attorneys would likely object. They view that same incident as evidence of Simpson’s distress at the death of his ex-wife, not of a guilty conscience.

Clark said prosecutors would oppose curtailing the camera for any hearing open to the public but would join with the defense in proposing to close certain hearings altogether.

With his ruling Monday, Ito did not directly address the defense request to close some hearings, but American Civil Liberties Union attorneys broke with their media allies in urging that the camera be barred from those sessions. Ito warned Sager that “I think this means you’ll be writing briefs over Thanksgiving.”

“We’ll do that if we need to, your honor,” Sager responded.

In addition to voicing their views about the television camera in the courtroom, prosecutors and defense attorneys used Monday’s session to redouble their arguments on another hot topic in the case: whether the jury and alternates should be sequestered for all or part of the trial.

Simpson’s lawyers hammered that issue with particular vigor, saying they supported keeping the camera in the courtroom but not if the price for that was that Ito would sequester the jury in order to shield jurors from the coverage the camera supplies. Some studies have shown that sequestered juries may be more inclined to convict defendants, and Simpson’s lawyers have vigorously opposed sequestration at every opportunity.

“We believe that the evidence or lack of evidence will show that Mr. Simpson is not guilty of these crimes,” Shapiro said. “For Mr. Simpson to have a life after this case, with his children, it will require the American public to have an understanding that his acquittal was based on what was presented in the courtroom.”

But, Shapiro added: “If your honor is inclined to allow cameras in the courtroom at the cost of jury sequestration, we are firmly against it.”

Cochran characterized the defense position on sequestration in terms of a philosophical difference with prosecutors about how much trust each side puts in the jurors selected last week.

“There’s a fundamental difference in how we perceive the jurors. . . . We perceive them as people of good faith who want to dedicate their time, who to a person said: ‘The reason we are here is because we believe in our oaths as jurors and we will not defile or defame that oath,’ ” Cochran said. “I think they take this task as a higher calling.”

Ito warned Simpson’s attorneys that he believed sequestration for all or part of the trial was a strong possibility, but he added that he has not made up his mind.

Jury selection has been under way since Sept. 26 and is to resume this morning as the judge and attorneys search for 15 alternate jurors. Unlike other hearings in the case, the selection process is not being televised.