UCLA law professor Peter Arenella and Loyola Law School professor Laurie Levenson regularly offer their take on the Simpson trial. Joining them today is USC Law School professor Erwin Chemerinsky, who will rotate with other experts as the case moves forward. Today’s topic: Judging the judge.


On the defense: “The defense always has wanted to shift the jury’s focus from evidence implicating O.J. to misconduct by the LAPD. The Fuhrman tapes are their smoking gun. They not only undermine Fuhrman’s credibility, but they also raise the question of how others in the department could not know or did not care about Fuhrman’s views and practices. Now all the defense needs is a judge to preside over a trial that the prosecution is trying to derail.”

On the prosecution: “What does the prosecution hope to gain by removing Judge Ito? A two-week delay while another judge gets up to speed won’t make the Fuhrman tapes disappear unless the jury revolts because of the delay, thereby creating a mistrial. But then the defense will argue that double jeopardy bars a retrial that was triggered by the prosecution’s unjustifiable recusal of Ito. And, if all they achieve is delay, why was getting a new judge worth the risk.”


On the defense: “Live by the sword, die by the sword? For months, the defense has made the Fuhrman tapes the focal point of their case. Now that it is clear that those tapes mention Judge Ito’s wife, the defense is at risk of losing the judge, whom they want to preside over the trial. It is understandable why the defense wants Ito to continue. He has been a dedicated jurist who has done a thankless job. But, like Moses, he may not be able to enter the Promised Land.”

On the prosecution: “What a tough call. It’s impossible to assess the prosecutors’ motives in moving to disqualify Judge Ito. It simply may be that they believe the law requires such a move or that the Fuhrman issue has become so pervasive that it is impossible to partially recuse the judge. But they must know that their decision could result in a mistrial if there is undue delay in getting another judge up to speed. In a case with so many surprises, this one has no easy answers.”



On the defense: “The Fuhrman tapes are the defense’s wildest dream come true. They put the prosecution on the defensive and allow the defense to put Fuhrman and, therefore, the LAPD on trial. Although the prosecution seems to be aiming for a mistrial, there’s little chance of that because under California law the case can be transferred to another judge and probably will be.”

On the prosecution: “Nothing about the tapes and the issue of Ito’s disqualification is good for the prosecution. If Fuhrman is heard using racial epithets and talks of planting evidence against blacks, a major shadow is cast over all the prosecution evidence. If Ito is disqualified, the prosecution loses a judge who has been scrupulously fair but who has sided with the prosecution on most of the major rulings thus far.”

Compiled by TIM RUTTEN and HENRY WEINSTEIN / Los Angeles Times