Justices at Least Seemed Worried About the Kids

The 4th District Court of Appeal in Santa Ana conducts its hearings in an austere environment. Rules for visitor behavior are strict, and stern-looking, uniformed people seem to be all around to make sure you abide by them.

Which is about the only thing that kept me from jumping out of my socks Friday when I heard the justices’ questions at a hearing on the appeal over O.J. Simpson’s receiving custody of his two young children. Finally, someone in authority was willing to at least raise the same issues that trouble folks like me.

You can’t always tell how the three justices will rule--sometimes they play devil’s advocate, then vote the other way after further review of their law books. But at least they seemed bothered by the prospect that Simpson may have wound up with his children by murderous default.

A background reminder:

Louis and Juditha Brown of Dana Point had watched after Simpson’s two children, Sydney, now 12, and Justin, now 10, while Simpson was in jail in 1994. He was charged with double murder--the slayings of Ron Goldman and Nicole Brown Simpson, his ex-wife and the children’s mother and the Browns’ daughter.

Simpson was acquitted in the criminal trial, and then came the Goldman and Brown families’ civil case against him--in which a different jury found him responsible for the murders. But in between those two trials came the 1996 custody trial. The Browns didn’t think Simpson fit to take the children. Simpson wanted them back.

Superior Court Judge Nancy Wieben Stock awarded custody to Simpson. The Browns’ appeal of that decision has now reached the appellate court.

The last two years, I’ve attended numerous events where Stock has been praised for her courage in making such an unpopular decision. She deserves the plaudits; you cannot rule in court by public opinion polls.

Nevertheless, I thought she made one of the worst rulings I’ve seen in an Orange County courtroom.

Stock had much in her favor: The children’s court-appointed attorney, Marjorie G. Fuller, sided with Simpson. Numerous expert therapists and psychiatrists all gave testimony favorable to Simpson. Also on Stock’s side was legal precedent: When one parent dies, custody almost always goes to the other parent if there is no history of child abuse present.

But here’s the flip side: Stock essentially refused to consider any evidence of the two murders. And to many of us, that evidence was so compelling it at least deserved to be an issue at the trial. Actually, it seemed so overwhelming to me that I wouldn’t let Simpson near those children without supervised visitation.

That was two years ago, and the children seemingly have done well with their father since. Fuller, still the children’s attorney, told the justices in heart-tugging terms Friday that the kids were begging to remain with their father.

It’s not the appellate court’s role to decide who gets custody. The legal question before this panel is this: Did the Browns get a fair trial from Stock?

Again, keep in mind it’s dangerous to take any guesses which way this appellate panel intends to rule. But sitting in the courtroom, you just wanted to take deep breaths to soak up the fresh air of common sense that came with their questions.

Justice Thomas F. Crosby Jr. to Fuller: “You know the facts of these brutal murders. Did the person who committed those crimes have a sound and stable mind? Was this person playing with a full deck? Would you entrust children to that person?”

Justice William F. Rylaarsdam: “What appears to be highly relevant evidence was excluded.”

Crosby appeared unpersuaded by Simpson’s lawyers’ arguments that no detrimental behavior could be attributed to Simpson in the custody trial. If the murder evidence had come in, Crosby said, “Would you still say there was no evidence of detriment?”

Simpson’s lawyers argued that Stock had not disallowed the murder evidence because it wasn’t important but because the Browns’ lawyers had not filed that argument in a timely fashion. In legal parlance, that mean the Browns had “waived” that argument.

But Rylaarsdam shot back: “Could something that significant involving minor children ever be waived?”

Crosby asked a key question: If a trial judge actually believed someone was guilty of murder, could that judge, in good conscience, award custody to that person?

“I’ll give a lawyer’s answer: It depends,” Fuller said.

But she went on to say that in the Simpson case--with her own observations of Simpson with the children, with testimony from the experts--yes, a judge would be right to grant Simpson custody.

And Crosby again, at one point: “I’ve never seen a dependency case in which the children were awarded to the perpetrator of a murder.”

Note that none of these justices were saying that Simpson was guilty of murder. But if you can judge by their questions, any evidence of his guilt should have been important for the trial judge to consider.

Something else bothered these justices: The then-presiding Superior Court Judge Theodore E. Millard had transferred the Simpson custody fight from another judge to Stock’s courtroom. All three justices questioned whether that was a violation of the state Constitution.

Justice David G. Sills commented, “This is very, very troubling to this court.”

I couldn’t hazard a guess whether Sills or Millard is the better constitutional scholar on that one. But the justices’ comments on the murder issue produced a humdinger of a hearing.

Every time I hear Fuller talk about the murder evidence as irrelevant in considering the children’s welfare, I always wonder if she and I even come from the same civilization. It was nice to see that the justices at least considered it a common-sense question worth discussing.

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Jerry Hicks’ column appears Tuesday, Thursday and Saturday. Readers may reach Hicks by calling the Times Orange County Edition at (714) 966-7823 or by fax to (714) 966-7711, or e-mail to jerry.hicks@latimes.com