By: M.L. Stein
WHILE A TELEVISION newswoman sat in the courtroom, holding a subpoena to testify about news leaks in the O.J. Simpson trial, a battery of lawyers succeeded in getting the subpoena quashed and heading off a defense motion for a far-ranging probe of allegedly false media reports in the case.
After hearing lengthy arguments from defense attorneys and media lawyers, Los Angeles Superior Court Judge Lance Ito decided not to call to the stand Los Angeles TV reporter Tracie Savage and three other KNBC (Channel 4) employees. The foursome were to be questioned about a report by the station that DNA blood tests on socks found in Simpson’s bedroom genetically matched the blood of Nicole Brown Simpson.
Simpson is charged with the stabbing deaths of his ex-wife and her friend, Ronald Goldman.
The judge made the ruling after KNBC attorney Ann Egerton stated flatly that Savage would refuse to reveal the source of her information under the California shield law.
Ito also denied for the time being another defense motion that it be awarded extra preemptory challenges in jury selection, to offset alleged damage to its case by the city attorney’s release of the widely publicized “911 tapes.”
The tapes involve a a late-night call to police by Nicole, who claimed Simpson had battered down her door in a wild rage.
The judge said he would hold off on the request until it is determined that the defense, which had sought 40 challenges, has exhausted its normal 20 peremptory challenges. However, Ito expressed “concern” that more than 95% of the impaneled jurors said they had knowledge of the tapes. He said he would take that fact into consideration, if another ruling on the challenge issue is necessary.
The city attorney’s office and media lawyers argued that the city was legally obligated to hand over the tapes on request.
Defense attorney Robert Shapiro pushed harder on the DNA report. Testimony from Savage, Shapiro contended, would likely show that the leak came from the police, prosecution or someone in the police testing laboratory.
Shapiro said he also intended to call a police official and a deputy district attorney to confirm the source of the DNA report, which, since the broadcast, has been declared false by both the police and prosecution.
Ito suggested that the repudiated leak could actually benefit Simpson, because it would “show publicly that the media is fallible.”
He added that in the jury selection he has held up the DNA broadcast as a “prime example of ‘don’t believe what you read in the media about this case.'”
But Shapiro asserted that the KNBC report was one of many “erroneous leaks.
“There is a compounding effect in the minds of people and, after a while, it becomes very difficult to take things out of someone’s mind,” the attorney said. He further charged that the leaks were “deliberately done by an agency involved in this case.”
The DNA leak, he argued, could become a “self-fulfilling prophecy,” in that blood samples could be deliberately contaminated to yield the false findings contained in the KNBC broadcast.
Shapiro’s defense colleague, Johnnie Cochran, said they were not attempting to “fight with the media.
“As Mark Twain said, ‘Never pick an argument with someone who buys ink by the barrel,’ said Cochran. “We are just trying to protect our client. This won’t be the last leak.”
Deputy District Attorney William Hodgman termed the inquiry into leaks “unwarranted and not likely to lead anywhere.”
Prosecution teammate Marcia Clark contended that a number of media stories actually have hurt the prosecution and helped Simpson’s case. As an example, she cited reports that Nicole Brown Simpson and Goldman may have had a romantic relationship.
In seeking a quashing of subpoenas against KNBC personnel, attorney Egerton charged that the defense’s attempt to conduct a “free-ranging inquiry into KNBC’s confidential sources is unauthorized and impermissible . . . . Mr. Shapiro apparently contends that, simply by making broad references to the defendant’s fair-trial rights, this free-floating committee of inquiry into our news gathering and reporting will be allowed.”
Egerton added that such an inquiry has no legal precedent and that, if granted, would “make new, bad law.”
The lawyer also contended that the defense itself has freely used the media for its benefit. She cited the New Yorker magazine article in which a defense source apparently leaked an allegation that an investigating detective might have taken a bloody glove from the murdered woman’s house and planted it at Simpson’ home.
Simpson’s letter, written before his dramatic freeway ride was also made available to the media, the attorney added.
“We ask the court not to allow Mr. Shapiro to attack news reports he does not like by punishing reporters.”
Attorney Royal Oakes, representing the Radio and Television News Association, said every high-profile trial has leaks.
“If all a lawyer has to do to destroy the shield law is to say ‘There is a conspiracy out there and people are out to get my clients,’ the law would be worthless,” he contended.
The attorney suggested that potential jurors probably have heard more negative reports about the DNA story than positive ones, a point in Simpson’s favor.
The argument was taken up by American Civil Liberties Union lawyer Douglas Mirell, who maintained that calling Savage about leaks would be an “exercise in futility” and a “waste of judicial time,” since she would only answer “foundational” questions such as her title and the nature of her job.
Mirell also hypothesized that if Ito extends a leak hunt to the tabloid press, “these proceedings are going to on for a long time.”
The tabloids’ handling of the Simpson case has been “much more inflammatory than anything in the mainstream media,” he said.
If the leak probe continues, Mirell conjectured, every reporter covering the trial would potentially be subject to a subpoena.
Ito upheld the media arguments, after asking Egerton directly if Savage and other station personnel would refuse to name her source under oath.
“Yes, your honor, that’s what they will do,” the lawyer replied.
Ito expressed doubt that the leaks were “prejudicial.” He posed the possibility that Simpson might have benefited from news stories that reported the errors of the DNA leak and the uncovering of the “bloody ski mask” found at the murder scene, which was widely publicized.
“There is a myriad of false information that would cause a reasonable person to be skeptical of anything they read or hear about the case in the popular press,” the judge stated.
?( There is a myriad of false information that would cause a resonable person to be skeptical of anything they read or hear about the case in the popular press.” )[Caption]
?(-Los Angeles Superior Court Judge Lance Ito, commenting on media coverage of the O.J. Simpson case) [Caption]