NEWS ANALYSIS : Jurists Give Mixed Scores to Judge Ito’s Performance

If Superior Court Judge Lance A. Ito were a figure skater, his peers would give his performance in the O.J. Simpson double murder case high marks for technical merit and low scores for artistic style. So far, according to some current and former judges interviewed Wednesday, his is not the sort of effort that generally wins gold medals.

Ito’s run-in with Court TV this week was the latest in a series of incidents in which he has threatened the press and litigants in the case with dire consequences for their actions and then relented.

On Tuesday, after an alternate juror’s face was inadvertently shown for a split second by a Court TV camera, Ito angrily recessed before defense attorney Johnnie L. Cochran Jr. could deliver his opening statement.

“My inclination,” the enraged judge said before leaving the bench, “is to terminate all television coverage at this point.”

On Wednesday, after a hearing in which media lawyers, as well as prosecutors and defense attorneys were heard, Ito dropped the issue, citing what he called “the benefit of a night’s sleep.”

Although Ito’s colleagues on the bench doubt that his pattern of outburst and retreat will have a significant impact on the outcome of the case, many are critical of his judicial conduct. His rulings on evidentiary and procedural questions, they say, have been fair, but the process leading to them has often been erratic, particularly on media issues.

“I think he’s making himself look foolish,” says retired Los Angeles Superior Court Judge Jack Tenner. “Saying, ‘I may pull the plug on all TV coverage’ and then not doing it is just plain silly. . . . Did anybody really believe he was going to pull the plug on the television cameras? I don’t think even he knows why he did that.

“It would be better for everybody if he had this characteristic morning-after remorse early in the afternoon.”

But as the record shows, Ito’s second thoughts tend to trail his expressions of pique by at least 24 hours. Among the threats from which he has retreated are:

* To impose a gag order on the parties in the case.

* To bar the Daily News of Los Angeles from the courtroom for running a story about the jury questionnaire in advance of its public release.

* To bar television station KNBC from the courthouse for airing a story--denounced by the judge, prosecutors and defense lawyers as inaccurate--about alleged DNA tests of blood on socks found in Simpson’s bedroom.

* To eliminate live television coverage of the case because of KNBC and CNN’s airing of the bloody socks story.

* To bar the prosecution from using certain DNA evidence because of delays in scientific testing of blood samples.

In that instance, in response to a defense motion, Ito had warned lead prosecutor Marcia Clark “I don’t know if I can telegraph to one side more openly that you are about to lose.”

But just a few days later, the judge said that although he found the defense arguments for suppression of the evidence beguiling he was going to admit it nonetheless.

Additionally, the judge tongue-lashed LAPD Detective Philip L. Vannatter for offering misleading information when obtaining a search warrant to search Simpson’s house the day after the killings. In unusually sharp language, Ito said Vannatter showed a “reckless disregard for the truth.” But in the end, Ito denied the defense’s motion to suppress any of the critical evidence recovered pursuant to that warrant.

To some colleagues on the Criminal Courts bench, the negative impression created by such vacillation has been exacerbated by what they see as Ito’s excessive preoccupation with his image in the press.

One judge, who declined to identified, said he was appalled by Ito’s reaction to the Court TV mishap. “It’s as if every time people begin to remember that this trial is about the defendant and the two people he’s accused of killing, Judge Ito has to find an excuse to elbow his way to the front of the stage and remind everybody that he’s really in charge,” he says.

But another Superior Court judge, Alexander Williams III, disagrees. “I think it’s fair to say Lance Ito enjoys a very high reputation among his colleagues,” says Williams while declining to comment on Ito’s performance in the Simpson case.

“He is enormously well-centered. I thought he was an absolutely first-rate choice for our court. I’ve never seen anything that undermines that assessment.”

San Diego Superior Court Judge Terry O’Rourke, for one, sympathizes with the pressure he says Ito must be feeling. “These high-profile cases are destroyers of a judge’s reputation,” O’Rourke says. “I don’t know anyone other than Ron George who’s come away unscarred from one of these cases.”

George, now a justice of the California Supreme Court, presided over the notorious Hillside Strangler case while a Superior Court judge in Los Angeles.

Tenner, by contrast, sees Ito’s possible anxiety over his judicial future as one of the roots of his difficulties.

“In a personal sense, I think he’s convinced that this is the single biggest case he’s ever going to get, and that’s important because he wants to be promoted to a higher court,” the retired jurist says.

As a consequence, “he’s just not sure how to handle the publicity. On the one hand, he’s obviously personally enjoying it; on the other, he’s not sure how to deal with its potential impact on this trial. So, he lurches from pillar to post.”

One judge who is particularly attuned to Ito’s difficulties is Superior Court Judge William Pounders, who presided over the first McMartin Pre-School case, the longest in the history of California’s criminal justice system.

“Judge Ito is very highly regarded by his colleagues and appropriately described before this trial as ‘unflappable,’ ” Pounders says. “But you’ve seen what’s happened; a trial like this can get to anybody.

“It’s almost an impossible job. No one knows the stress he is under, even Judge Ito. You don’t know until it’s over how much stress you had to endure.”

G. Keith Wisot, who spent 13 years on the Los Angeles Superior Court bench before retiring, is critical of Ito’s performance--but sympathetic with his position.

“I hope Judge Ito will remember that this trial is not about him and that he can avoid an emotional investment in his rulings. He needs to be sure that his rulings are adhered to and if they are not, to take whatever appropriate measure may be necessary. But a demonstration of emotion can too often suggest a loss of objectivity.

“It’s a very tough job” handling a case of this magnitude. “It feels like you are at the center of the universe and everyone is watching you. It’s important for a judge to remember that next year there will be another case.”

Others among Ito’s colleagues believe that his conduct ought to be gauged first of all by its potential impact on the trial’s fairness. On that point, most of the judges interviewed Wednesday seemed to agree with William Hogoboom, retired presiding judge of the Los Angeles Superior Court.

“I think Judge Ito has an ability to get people’s attention,” he says, “but I don’t think that will have any impact on the outcome of the trial. Ultimately, this case will be decided by the jury, and I don’t think any of this will have any impact on their decision because it all happens outside their presence.”

Retired Superior Court Judge George Dell also believes that Ito’s conduct needs to be viewed in a larger context: Ito’s “overreactions,” he says, “are unfortunate. I can see him getting upset and taking a recess to cool down and then taking the bench again. That’s the best remedy in these cases where you as a judge have lost your temper--sometimes with good reason.

“Sometimes people outside the bench and Bar expect perfection from their judges. I’ve known one or two perfect judges who never lost their temper. Judge Ito, like most of us, isn’t one of them. But on the other hand, after going home and thinking about these outbursts of his, he’s come back the next day and done the right thing.

“If I were in his position I’d do it differently. But this trial is a learning experience for him. There are things that all of us who have been trial lawyers and judges would like to do over again and to have done better--at least that’s the case with most of us lesser mortals.”