“Rosey had his bible opened in front of him and he and O.J. had been talking for about half an hour,” Stuart recalls. “All of a sudden, O.J. slammed the telephone down on the counter and yelled: ‘I didn’t mean to do it! I’m sorry!’ Rosey leaned forward, looked him in the eye and yelled back: ‘O.J., you gotta come clean. You gotta tell somebody!’
“O.J. just sat there staring at the ceiling for several moments. I don’t know if he was talking to his maker, asking for forgiveness or what. Rosey started tapping on the glass that separated them. He was trying to get O.J.’s attention, to get him to pick up the telephone. Then O.J. buried his head in his hands.
“O.J. looked like a man who had been totally wiped out. His shoulders were slumped over, his head hanging low. Rosey and O.J. talked a few more minutes and then it was time to go. The sergeant came to get O.J. and he shuffled silently back to his cell. Rosey passed me wearing his usual poker-face and said simply: ‘Have a nice evening.’”
Simpson told Grier what we already knew, of course. With that extremely incriminating statement before the jury, Simpson’s choices would have been not only limited, but about as pleasant for him as staring into the noonday sun: either try to plea-bargain or take the witness stand (which he was trying to avoid at all costs) and deny that he made the statement. But if Grier, who reportedly never visited Simpson again after this incident, confirmed the statement—which we don’t know that he would have done—then Simpson’s denial would not have been plausible. It should be noted that Stuart would have had to be crazy to testify under oath and penalty of perjury that Simpson made the statement if he knew Simpson hadn’t and Grier would confirm this fact. Finally, Simpson might have taken the stand and said the statement was misunderstood, that when he said “I didn’t mean to do it! I’m sorry,” to Grier, he was actually referring to eating another inmate’s helping of dessert. I’m being facetious, of course, but whatever misconstruction he claimed took place over what he said, he’d need the testimony of Grier to say he and Simpson were talking about the inmate’s dessert or what-have-you, not the murders of Ron and Nicole.
However it played out, it would have been exceedingly damaging, perhaps fatal, to Simpson, and if it didn’t induce a termination of the trial by way of a plea bargain, it would have been up to the jurors to hear the guard’s testimony and give it whatever weight or significance they felt it was entitled to. But Judge Ito, in his inimitable fashion, made another bad ruling, this one of pivotal and momentous consequences. Yet the great bulk of legal analysts felt that from a legal standpoint, Ito’s rulings were excellent.
A
mong the other problems I had with Ito at the trial was that he lacked a sense of grandness, for lack of a better word, in how to behave in a case of this immense visibility and, because race became an issue, importance. Nowhere was that better demonstrated than in the “thousands of objections” (Ito’s own words) he sustained to what he erroneously thought were argumentative questions. It should be added that I have never seen a jury trial where both sides objected anywhere near as much as this—an incredible sixteen thousand objections, seven thousand of which were sustained. In fact, it’s even considered poor jury trial technique to object excessively. If one constantly interrupts proceedings, one can only irritate the jury that must sit there in weary forbearance. Moreover, if the jury concludes from a lawyer’s objections that he is trying, by technicalities, to keep out relevant evidence, this has to hurt him. But in the Simpson case,
both
sides were constantly objecting, so the jury may have concluded it was perfectly normal behavior. It wasn’t. It was aberrational.
And to exacerbate the situation, Ito, almost as often as not, sustained the improper and frivolous objections. He apparently didn’t see the absurd incongruity and inappropriateness in a trial for a brutal double murder of making sure that every question asked was sufficiently dainty and delicate. If any question was in the least bit aggressive, Ito almost always reflexively sustained the objection on the ground it was argumentative. But a trial is not a tea party on the back lawn of some Bel Air estate on a Sunday afternoon. Argumentative questions are perfectly proper on cross-examination if they are asked to elicit the truth, as opposed to badger the witness. Apparently, Ito wasn’t experienced enough to be aware of this distinction, which has been made by appellate courts.
I mentioned earlier how little common sense Ito exhibited during the trial. I will give a few examples. When Faye Resnick (Nicole’s close friend) came out with her book on Nicole and Simpson in October 1994, Ito went ballistic. He actually suspended jury selection for two entire days while he read the book. Then, in an effort to prevent others—including prospective Simpson jurors—from reading the book, and to limit publicity generated by the book’s release, he sent out feverish letters to the president of
CBS
News, as well as to talk show hosts Larry King and Maury Povich, beseeching them not to go through with their scheduled interviews with Ms. Resnick on the book. (Only one, Larry King, complied.) All of this was reported on heavily in the media. A child would know that publicly treating the book like forbidden fruit could only serve to titillate people’s interest in it and get them to buy it. The book, in fact, immediately shot up to number one on the
New York Times
best-seller list. Although the book turned out to be substantive in its own right and helpful to the prosecution, Ito was any publisher’s dream, and arguably should have shared in the royalties.
Although everyone was complaining about the slowness of the trial, and the Los Angeles County Board of Supervisors was alarmed by the escalating cost, in late February 1995, Ito remarkably decided to shorten every court day to 3:00 p.m., with entire Friday afternoons off (Ito eventually went back to a normal schedule). His explanation was the grueling pace of the trial; the lawyers therefore needed more off-time. Shortening court days is very unusual, and if the hours are changed, they almost invariably are lengthened. Furthermore, if there ever was a case where there was no justification for shortening the court day, this was it. Since the jury was sequestered (a highly unusual situation—only three or four juries in California history have been sequestered during the whole trial) and getting stir-crazy, any shortening of the court day necessarily extended the length of the jury’s sequestration. Moreover, there was an uncommonly large number of lawyers working for the prosecution and defense (eleven defense attorneys made speaking appearances in court, nine prosecutors). I have never seen such a compartmentalization of responsibility. A lawyer like Bailey would handle a witness, and then literally disappear from the courtroom for a month. The trial lasted over nine months, yet Shapiro examined only a small handful of witnesses. Marcia Clark, the lead prosecutor, actually went three entire months without handling one single witness. So the lawyers had time to burn, all the time in the world to work on the few witnesses they handled. Yet silly Judge Ito decided to shorten the court day.
In other words, Ito did several things at the trial I can only characterize as irrational, almost goofy, and because of this, throughout the trial I had an ongoing sense of unease that he might do something seriously bizarre.
Because so many jurors were excused, there was a frequently expressed fear that the case might run out of alternate jurors, and if one of the remaining twelve was excused for any reason, only eleven would be left, and without the consent of both sides, there would be a mistrial. Right in the middle of all of this, to entertain the jurors, Ito decided on May 20, 1995, to give them a ride in a Goodyear blimp. Yeah, you heard me right. A blimp ride. According to the
L.A. Times
, just a few days later, the blimp (called the
Eagle
) “suffered a mishap while attempting to take off with another load of passengers. A gust of wind blew it across its landing strip in Carson, breaking its tail and tearing a nine-foot gash in the blimp’s fabric skin. No one was injured, but with Ito’s luck he must feel fortunate there were no jurors aboard that day.”
To me, nothing demonstrated that the good judge may have been keeping time to a different drummer more than his announcing, near the very end of the trial, that he wanted to take a few days’ vacation he had scheduled before he was assigned to the case. Closing arguments commenced on September 26, 1995, and with September having only thirty days, and two days being lost for the weekend, the arguments were expected to continue until October 5 or 6, after which the jury would immediately be instructed on the law and they would commence their deliberations. With interest in the case having reached a fever pitch and more media converging on L.A. for the trial than ever before, Ito announced that
right in the middle
of these closing arguments he was definitely going to suspend trial proceedings and take September 29 and October 2nd off because this was a mini-vacation he had planned a year earlier. Come hell or high water he wasn’t about to postpone it even for a few days. For those who weren’t left completely speechless, the only words that could be heard in the courtroom hallway, I’m told, were “incredible” and “unbelievable.” Dominick Dunne, the widely respected writer and author who covered the trial with wit and insight for
Vanity Fair
, called Ito’s decision to take his mini-vacation “disgraceful. Everyone in this case has made personal sacrifices. And as the leader, no matter how long ago he made his plans, he should obviously change them.” Under mounting pressure from both the prosecution and the defense, and undoubtedly from fellow judges, who probably sat him down in his chambers and took his temperature, Ito changed his mind and agreed to postpone his vacation for a few days.
Changing his mind during the trial, by the way, became Ito’s signature, his rulings having all the permanence of a breath upon a mirror. A small sampling: In August 1994, Ito ruled that all motions by the prosecution and defense had to be filed under seal, then quickly reversed himself. He held a hearing in mid-October 1994 to find out who had leaked information on
DNA
results to local television station
KNBC
, even subpoenaing many witnesses, then, with witnesses in his courtroom, he suddenly called the hearing off. Because of media misconduct during jury selection later that month, he barred all reporters from the courtroom, then reversed himself shortly thereafter. In considering a defense motion to impose sanctions on prosecutors for delaying the submission of
DNA
evidence for analysis, he convinced everyone, including the prosecutors (whom he told to “expect” the sanctions), that he would impose them, but to a startled courtroom, and without explanation, he announced that he would not do so.
But it was not Ito’s changeable and irrational behavior that disturbed me the most, since no serious harm resulted from these idiosyncrasies. In addition, of course, to his fateful and very injurious ruling on the Fuhrman matter already discussed, two things in particular made me disapprove of Ito: allowing cameras in the courtroom, and the way he treated all the lawyers, particularly the prosecutors, right in front of the jury.
With respect to cameras in the courtroom, in my opinion they don’t belong, not in this case, not in
any
case. Televising the trial turned it into a national soap opera. Without the cameras, the nation wouldn’t have been exposed to the absurd spectacle of the talking heads (since they couldn’t talk about something they weren’t watching), with the resultant “in the air” harm to the prosecution effort. But there is an even more substantive objection to having cameras in the courtroom.
A trial is a serious and solemn proceeding that determines whether a person’s liberty, and sometimes his life, should be taken away from him. Anything that interferes, or even has the slightest potential of interfering, with this determination should be automatically prohibited. Most people are self-conscious about speaking in public, even before a small audience. With cameras in the courtroom, sometimes millions of people are watching. Even if we make the doubtful assumption that most witnesses will not be affected, certainly, at least here and there, some are not going to be as natural. They are going to be more shy and hesitant, or perhaps they will put on an act, not just in their demeanor, but much worse, in the words they use in their testimony. When this happens, the fact-finding process and the very purpose of a trial have been compromised.
Witnesses aren’t the only ones affected. The
Los Angeles Daily News
reported in the late summer of 1994 that as a result of a murder trial then being televised on Court TV, “the defense attorney bought two new suits, the judge’s wife makes sure his hair is properly gelled before he leaves for work in the morning, and the court clerk makes an effort to keep her pen out of her mouth.” Is it unreasonable to suggest that if people alter their physical appearance because of the camera, they may alter their words?
We know from the mouths of the lawyers on the Simpson case that the TV cameras were having a harmful influence on them, encouraging theatrics and posturing. Gerald Uelman, the scholarly former dean of the Santa Clara University School of Law, who argued most of the defense team’s legal motions, said in June 1995, while the trial was still in progress, that he originally favored TV cameras in the courtroom because they would “open the walls of a tiny courtroom and allow everyone who was interested to come in to observe and learn.” But he said he now shudders “at how naive and idealistic I was. The unprecedented public scrutiny of this case has intruded to alter the behavior of all the participants in many ways, some subtle, some not so subtle.”
Also in June, Chris Darden told reporters: “I dislike having cameras in the courtroom. The lawyers cater to the cameras. That’s been proven time and time again.” Shortly after the trial, Barry Scheck made similar comments. But why did we have to learn this from the trial? Common sense would have told us. I set forth these arguments when I was interviewed by
Playboy
magazine in the late summer of 1994, months before the trial started.