It’s always a great relief and pleasure to walk into court and find a judge who has had trial experience, knows the law, is completely impartial, and hasn’t let his judgeship swell his head. There are, of course, many such admirable judges in this country, but regrettably they are decidedly in the minority.
For whatever reasons—undoubtedly the threat of being held in contempt of court ranks high—the great run of lawyers are intimidated by judges and continue to be outwardly respectful even when publicly humiliated by them. Lawyers’ complaints are made in private to one another and to their families. Commonly heard at any watering hole for the courthouse crowd is one lawyer crying to another over his first drink of the evening: “The judge is
killing
me in court.” No lawyer is exempt. For example, only a very few lawyers in the history of the legal profession have practiced law in as grand a fashion or sown more new legal ground (particularly in the area of tort law) than the celebrated San Francisco lawyer Melvin Belli. Yet, despite his considerable legal stature and characteristically gentlemanly behavior in court, he was treated with so much disrespect by a small-town judge a few years ago that he mournfully observed: “The judge is riding me so hard in front of the jury I’ve got spur marks on my back.” Predictably, the judge was a political animal, having run for the office a few years earlier. The judge’s campaign theme was to “end the reign of arrogance” of the incumbent judge.
Fortunately, in my career I’ve had only one instance where the issue of the judge’s conduct potentially affecting the result of the trial arose. It was in 1966, only two years after I had become a prosecutor at the L.A. District Attorney’s Office. That year there had been a record 367 bus robberies in Los Angeles. The situation had gotten so bad that many of the drivers refused to drive without an
LAPD
officer present on the bus. Finally, a seventy-one-year-old driver who was due to retire within one month was shot and killed when he resisted two robbers, surprisingly the first homicide that the Rapid Transit District bus line in Los Angeles had ever had. It was an important case in the office, and we were seeking the death penalty against the two defendants.
The judge obviously felt that since I hadn’t been in the DA’s office long, I was a relative rookie and could be pushed around. On the first day of trial testimony, I made an objection while sitting down (a very common practice). The judge ordered me to stand up to make the objection. I did, after which he told me to sit down. I asked to approach the bench. These were my words, and it was obvious to him I was angry: “Judge, I represent the people of the state of California, twenty million people [it was only twenty million back then, now it’s thirty-two million], and when I stand up in front of the jury in my final summation, I have to have stature and credibility with them. If you tell me to stand up and sit down like a yo-yo in this courtroom, I’m not going to have it. From now on, I’ll stand up and sit down in this courtroom when I want to, not when you want me to.” Whereupon I stalked back to my seat. You can believe it or not, but from that point on in the trial, I made all my objections sitting down, not standing up, and the judge never said a word.
While Judge Ito did not go so far as to humiliate the prosecutors in the Simpson case, I nonetheless feel he was sufficiently disrespectful that when they stood up to give their summations, they had little stature with the jurors. What the prosecutors should have done to Ito right after the first sharp and abusive “Sit down” (Ito was democratic about his surliness: he also told several, but not all, of the defense attorneys to sit down) was to ask for a recess. Back in chambers he should have been told, first in a very civil way, but if this was unavailing, much more assertively, that although he had the right to speak, if he chose, in a condescending way to the prosecutors outside the presence of the jury, he did not have the right to hurt the prosecutors’ clients, the people of the State of California, in any way whatsoever in front of the jury, and they therefore not only wouldn’t permit him to do so, but had an obligation to ensure that he did not. Therefore, if he had anything negative to say to them, it had to be
outside
the presence of the jury. In front of the jury he had to show them the same, identical respect they showed him, nothing more, nothing less.
If necessary, Ito should also have been reminded that although he was an extremely important person at the trial, it was they, not he, who represented some thirty-two million people. Finally,
and most important
, he’d have to be told in so many words that if he did not treat the prosecutors with the same respect they showed for him, he himself would have to pay a price right in front of the jury and the millions watching the case. An example for you readers of a statement to the judge in front of the jury? “Judge, you apparently don’t know, but that’s not the way to talk to lawyers in front of the jury. I expect you to ask me politely to please sit down in the future.” A stronger example? “Judge, a few years ago you were one of us, a deputy district attorney. You were appointed to the bench by the governor because you were a friend of a friend of the governor. If you think that your black robe entitles you, under the law, to treat us disrespectfully in front of this jury, I am here to inform you that you are wrong.”
But it is my opinion that even the first example wouldn’t have been necessary. The situation wouldn’t have gotten that far. My sense of Judge Ito is that he just let his robe go to his head a bit. (Some judges think they are three steps closer to God when they ascend the courtroom bench—others don’t even recognize that limitation.) He forgot who he was, and all he needed was someone to remind him, put him in his place, as it were.
Ito, who was so very concerned about his public image, would not have wanted to be demeaned before millions of people. What if he surprised everyone by not backing down? What if the prosecutors addressed him in open court as I suggested and he held them in contempt? Big deal. The prosecutor could handle any fine or sanction he might have imposed, including a night in jail. But most important, I assure you that the prosecutors would have not only retained but perhaps even elevated their stature, and hence credibility, in the eyes of the jury.
S
yndicated columnist William Rusher, a Distinguished Fellow of the Claremont Institute for the Study of Statesmanship and Political Philosophy, writes: “I simply cannot imagine the prosecution’s overwhelming case against Simpson being presented better than it was presented by Marcia Clark and Christopher Darden. They lost for reasons that were certainly no fault of theirs.” If you say so, Will. Of course, saying someone did a good job presupposes that the declarant knows what a good job is.
The prosecution of O. J. Simpson was the most incompetent criminal prosecution I have ever seen. By far. There have undoubtedly been worse. It’s just that I’m not aware of any. Anyone who knows me will tell you that I take no pleasure saying this, since right from the very beginning no one was more supportive of the prosecutors in this case than I. (Although I no longer am a prosecutor, and if I try a case today it’s as a defense attorney, I still identify myself much more with the prosecutorial side of the table than the defense side, and my public image continues to be that of a prosecutor.) They are also good people, they fought hard for justice, and I was proud of the ethical and professional way they conducted themselves. I was 100 percent behind them. To pump them up and help inspire them, I even sent them a telegram on the morning of their summations telling them that all right-thinking people were behind them and they had done a terrific job proving Simpson’s guilt beyond a reasonable doubt. (Even though their prosecution was woefully incompetent, I certainly did not want to tell them this right before their summations; moreover, by the scientific evidence they presented putting Simpson’s blood at the murder scene, they had, indeed, proved his guilt beyond all doubt.) I closed by saying, “Now go get ’em in your summations.”
A word about Marcia Clark, the lead prosecutor. My image of a prosecutor has never been that of a woman, and that’s primarily because in my day female prosecutors were about as rare as hair on a bald man. But the moment I saw Marcia Clark, I was impressed. She had a good look about her. She looked like a prosecutor. It was also obvious to me that she was very bright, spoke well and persuasively (I hadn’t seen her yet before a jury), and could think on her feet. She also has a certain charisma about her. In short, I felt she was special. In retrospect I can only say that her performance in this case was a disappointment, a blighting of that early promise, and no one regrets this more than I do.
Like the calm before the storm, I had a sense there might be a serious problem with the prosecution in this case by the fact that the original prosecutors. (Marcia Clark and David Conn at the time), long before the trial, didn’t seem to be taking charge of the case. For instance, in a big-publicity case, it’s DA 101 that the prosecution has to instruct all of its witnesses right off the top that they are not to talk to the media, particularly for money. My distinct impression is that this wasn’t done here until later, after some of them already had talked. This created problems for the prosecution, resulting in its decision not to call certain witnesses to the stand because it felt the credibility of the witnesses had been damaged.
Also, the moment a decision is made to bring felony charges, the DA has to make all important decisions having an impact on the case. Again, this wasn’t done here. Remarkably, David Conn (subsequently replaced by William Hodgman and then Chris Darden) actually told the LAPD—which properly called the DA’s office for guidance—to follow the advice of the Los Angeles City Attorney’s Office on whether the October 25, 1993, 911 tape of Nicole should be released to the media, which were clamoring for it. The city attorney’s office improvidently and unfortunately told the police to release the tape. The tape saturated the news, and when the presiding judge of the Los Angeles County Superior Court personally confirmed that members of the grand jury who were hearing evidence in the case heard it, he aborted the grand jury proceedings, and there was no indictment. (As I recounted in Chapter 2, the DA then filed a criminal complaint against Simpson instead.)
And months before the trial (August 1994), the prosecution embarrassingly admitted in court that without its knowledge the
LAPD
had disregarded the DA’s request and had not sent all of the blood samples to Cellmark Diagnostics Inc. in Maryland for
DNA
analysis, instead sending some of them to the California State Department of Justice lab at Berkeley. When the
LAPD
knows the DA is calling the shots on a case, this type of thing normally doesn’t happen.
As far as the selection of a jury, we’ve already discussed Gil Garcetti’s terrible blunder in transferring the case downtown. But once it was downtown, there is evidence that the prosecution only made a bad situation much worse.
On December 1, 1995, I met at the old-line and conservatively elegant California Club in downtown Los Angeles with Dr. Donald Vinson. Dr. Vinson is recognized as a national authority in the field of litigation support. He has written or contributed to several books and articles on litigation strategy and trial techniques. He holds a B.A. in economics, an M.S. in marketing research, an M.A. in sociology, and a Ph.D. in marketing and consumer behavior. He has taught courses in consumer behavior and marketing research at
LSU
and
UCLA
and was at one time chairman of the marketing department at the University of Southern California. Currently, Dr. Vinson is chairman of the board of DecisionQuest, Inc., which specializes in jury research and trial consulting. The firm, headquartered in Torrance, California, also maintains offices in New York, Washington, D.C., Boston, Chicago, Atlanta, and Houston. Over the last twenty years, Vinson and his firm have worked with hundreds of attorneys throughout the country in more than three thousand cases. Some of their high-profile cases have included
Pennzoil v. Texaco
, the Agent Orange case, the
MGM
Grand Hotel case, and
USFL
v. NFL
. His office is presently assisting the prosecution in the Oklahoma City bombing case.
Vinson, fifty, is one of these public-spirited guys who have made “a bundle,” he acknowledges, in the private sector and feel the need to give a little back. After the first hung jury in the Menendez trial, along with many others he was very disappointed, feeling that something was happening in our society that was bad, and he wanted to help the good guys out. So he volunteered his services,
pro bono
, to Gil Garcetti for the second Menendez trial.
When the Simpson case broke, Vinson also offered his firm’s services free to Garcetti, and Garcetti accepted. DecisionQuest actually did provide all of the prosecution’s elaborate electronic displays and exhibits (graphics) throughout the entire Simpson trial. He says the cost for these services, if paid for, would have been close to $1 million. But in the more important area of assisting in jury selection, he says that although Garcetti was amenable, Marcia Clark was not. Vinson says that from the very beginning, Clark and William Hodgman (the latter was named the 1992 prosecutor of the year in the state of California), particularly Clark, looked askance, as so many trial lawyers still do, at the emerging field of jury consultants. After the second day of jury selection, she told him she didn’t feel there was any need for his services (jury consultation, not the preparation of exhibits, which continued).
His dismissal was reported in the media. The October 30, 1995, edition of
Newsweek
said: “Hired by Robert Shapiro just two months after the murders of Nicole Brown and Ron Goldman, Jo-Ellan Dimitrius [who used to work for Vinson] quickly became a member of the defense team. By contrast, prosecutors tried to hide their consultant, Donald Vinson, of DecisionQuest, and then banished him, and his research, from jury selection after only two days.”