O.J. Trial Judge Considers Gag Order p. 23

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By: M.L. Stein

Angered by leaks to the press, Judge Lance Ito wants to
stop lawyers from talking to reporters; media attorneys,
American Civil Liberties Union argue against it sp.

THE THREAT OF a gag order hung over the O.J. Simpson murder trial last week, as well as a ruling that all motions in the case be filed under seal.
At this writing, Los Angeles Superior Court Judge Lance Ito took under submission arguments by attorneys for the media and the American Civil Liberties Union that he reconsider his proposed plan to prevent anyone connected with the murder investigation from publicly discussing evidence.
Simpson is accused of the stabbing deaths of his ex-wife, Nicole Brown Simpson, and her friend, Ronald Goldman.
The Los Angeles Times obtained a copy of Ito’s tentative order, which revealed the judge was angry that information continued to be given to the media by lawyers and others connected to the case, which will go to trial Sept. 26 instead of Sept. 19 as originally scheduled.
In court Aug. 31, Ito expressed irritation about the Times’ front-page story that day about his seeming intention of information control.
His proposed order said, in part, “A trial court not only has the right but the affirmative duty to protect the right to a fair trial. In order to fulfill this duty, given the amount of media interest and coverage this case has ignited, the court must use its inherent authority to control the judicial proceedings.”
Any violation of the order would “incur sanctions,” which could, under California law, include fines or being held in contempt.
Attorney Kelli Sager, representing the Times, Associated Press, Gannett, CBS and other media, argued against the order on First Amendment grounds and the public’s right to know.
She conceded there have been widespread press reports about the trial, but said, “The answer is more speech, not less speech . . . . If all the evidence is out there, the jury can focus on the evidence and neither side needs to be worried about prejudice.”
“So do I just ignore my obligation and just hope I can do a very in-depth voir dire [jury selection]?” Ito asked.
Sager replied there is case precedent for admonishing lawyers or taking other action against them if the court believes they are “acting inappropriately.”
The lawyer also asked Ito to make clear his intention on the issue of sealed motions. She said her clients had informed her that court personnel already had started sealing motions.
ACLU attorney Douglas Mirell expressed doubt that there is a “clear and present danger” of tainting jurors with pretrial publicity. He noted that Simpson’s attorney, Robert Shapiro, has requested the jury be sequestered throughout the trial. If that happens, Mirell asserted, “there will be no risk of the jury being polluted.”
Also, with regard to media reporting of the case, Mirell contended, “the horse is really out of the barn.”
Ito cut him off at that point, saying there are “numerous pieces of evidence that have not been presented, that are still confidential and that will have a very important and direct bearing on this case. The horse is not out of the barn.”
Mirell countered, “It is out of the barn in the sense that the public and the press have been desensitized to some significant degree already with respect to their belief in guilt or innocence or anything else about this case.”
The lawyer said that given the huge pool of potential jurors in Los Angeles, 12 jurors can be found who, regardless of their knowledge of the case, “can put aside their preconceptions” and render an impartial verdict.
Shapiro also asked Ito to stay any gag order on the grounds that television programs might present aspects of the case, which would require an open reply by the defense.
In taking the arguments under submission, Ito indicated he might modify the sealed motion order but gave no hint of a decision on a gag order.
Ito had been signaling for some time a move to control media contact by both sides in the case. The Times reported that on Aug. 22, the judge called Shapiro and Deputy District Attorney Marcia Clark into his chambers to voice his concerns about pretrial publicity and instructed them to file future motions under seal.
Ito reportedly was particularly vexed over reports in the Times and on KNBC-TV that microscopic analysis had determined that hairs from a knit cap found at the crime scene resembled Simpson’s hair.
In an offshoot of the Simpson case, the state Senate passed and sent to Gov. Pete Wilson a bill that prohibits witnesses in high-profile crime cases from selling their stories to newspapers or TV programs before or during a trial.
At least three potential witnesses in the Simpson case have received money from a supermarket tabloid or the TV show Hard Copy. Wilson was expected to sign the bill.

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