Something more powerful than principle was operating here. Attorneys who should have known better were being drawn to this case like moths to a floodlight. By the time Simpson was bound over for trial, F. Lee Bailey was being cited as a possible addition to the defendant’s all-star team.
Shortly after joining the team in late June, Bailey gave an interview to NBC’s Today show in which he made ridiculous assertions about what the prosecution could and could not prove. He quoted misinformation inadvertently passed to the defense by Juditha Brown-that Nicole had spoken to her mother at eleven P.M. Bailey proclaimed triumphantly that this proved Simpson could not have committed the murders and that the case would soon be thrown out. It was a foolish, sloppy mistake. We’d already gotten phone records that showed that the call had been made at 9:45 P.M., not eleven, which gave Simpson plenty of time to kill two people and make the five-minute drive back to Rockingham. I don’t know what possessed Bailey to shoot his mouth off like that. I just think the guy could not resist an impulse to grab the limelight.
Neither, apparently, could others.
Early on, probably during the first or second week of the case, I’d seen Alan Dershowitz do one of his talking-head numbers on national TV. It seemed to me, at least, that he was convinced of Simpson’s guilt. To PBS talk-show host Charlie Rose, he professed indignation at the “excuses” defendants use nowadays to absolve themselves of guilt. He cited “cop-outs” such as the “battered-woman syndrome” and the “abused-child syndrome.” He predicted that the defense in the Simpson case would most likely mount a mental defense. “The Juice Excuse,” he would call it. Then, the next thing I hear, he’s being touted as one of O. J. Simpson’s “legal strategists.”
Do these guys think no one is listening?
People still ask me whether the sight of those big guns rolling onto the field intimidated me. “Didn’t you dread coming to court every day to face these guys down?” they say. The answer is no. Whenever we heard the press referring to this crew as the Dream Team, Bill and I just rolled our eyes. The idea that these were special forces carefully recruited by Commander Shapiro, a sort of Dirty Dozen of the bar, was ludicrous.
Because what you had, basically, were a set of incompatibly grandiose egos-lead horses who by definition could never pull easily in the same harness. As early as the week of the arraignment, Shapiro was already looking worried that Johnnie would muscle him out of the limelight. It didn’t take a psychic to predict procedural chaos if this bunch were not held in check by a strong judge. What we needed was someone who would be temperate but decisive. Someone who would be consistent. Someone who knew enough law and had enough confidence to rule from the bench. We needed the ump of all umps. A square-jawed, rock-ribbed referee with huevos of steel.
Instead, we got Lance Ito.
The announcement was almost anticlimactic after Simpson’s “absolutely, one hundred percent not guilty” performance. When Judge Mills announced, “I’m assigning the case to Judge Lance Ito,” I cast a quick glance at Bill. He seemed as taken aback as I was.
Judge Mills had about six to nine names to choose from. These were drawn from a pool of judges who were available for so-called long-cause cases, complex cases, usually murder trials, that were expected to go longer than a month. The lawyers on both sides get to look over the list of judges to see if there’s any candidate so objectionable that one side or the other might have to “paper” him. “Papering” means filing an affidavit of protest. It’s a little like a peremptory challenge; you can reject an appointment without offering a reason. The only problem is that you’re obliged to take the next name you’re given.
There were at least two candidates so awful they made the hair on my neck stand on end. I would definitely have papered them. And then there were three or four others who would have been terrific. But Lance Ito? He’d never, ever occurred to me.
“You’ve gotta be kidding,” I whispered to Bill. Why, I wondered, does the judiciary never pick its brightest stars for these cases?
Lance was certainly no bright star. When he was chosen for the Simpson case, he was presiding over the master calendar court, which sends cases out to be tried. It was a useful but mundane assignment. The judge in calendar either tries to get the sides to plea-bargain or sends the case out for trial. It’s strictly an administrative position, and one that takes a judge out of the loop of trial work. It’s certainly not the sort of assignment that would prepare one for dealing with the pressures of the Simpson case.
Lance always struck me as an overgrown adolescent. He was the only judge I knew who wore running shoes under his robes. I’d worked with him briefly in the D.A.‘s office-he’d been a prosecutor during the eighties. His reputation as a gun enthusiast preceded him. According to office lore, he’d been looking over a handgun with another D.A. when somehow the piece went off and fired a bullet into the ceiling-which happened to be the floor of the Public Defender’s Office.
Lance was one of those guys who can sniff out a new source of power in the office and always manage to attach themselves to the unit du jour. He got himself assigned to the Hard Core Gang Unit when it was a hot political baby. He prided himself on political correctness. His wife, Captain Margaret York, was the highest-ranking female officer on the LAPD. I could never figure that pair out. It became clearer and clearer to me as the trial went on that when it came to gender equality, Lance was stuck in a tar pit.
In his seven years on the bench, Ito had shown himself to be a typical ex-prosecutor judge. Don’t get me wrong. Some old prosecutors go on to the bench and turn out to be terrific judges, fair and decisive. A number of them, however, treat the D.A.s who appear before them very badly. If the prosecutor is any good, the judge feels competitive. The ex-prosecutor judge is usually so eager to show that he has no lingering loyalties to the D.A.‘s office that he’ll kiss the toes of the defense.
I hadn’t argued a case before Ito, but Bill had: the Keating case. I could remember Bill grousing about Ito at the time. He thought Ito had bent over backward to accommodate the defense and dismissed a lot of counts he shouldn’t have. But in the end, Bill and his team won a guilty verdict. It’s not unusual for a D.A. to be tweaked by a judge’s day-to-day rulings, only to recall him as a fine and thoughtful jurist when the outcome is favorable. Bill felt Ito had done a tolerably good job on Keating, which was by anyone’s reckoning a complicated long-cause trial. Keating, however, was strictly white-collar crime; accordingly, everyone kept his gloves on. The Simpson case was shaping up to be a sort of break-your-bottles-and-go-at-it street brawl. We would need a judge who could step in and keep the peace. I didn’t believe Lance had the fortitude for that.
My first inclination was to refuse him. But Judge Mills added a complication. He noted that Ito was married to a captain on the LAPD.
“In the event that either side desires him to do so,” he explained, “no affidavit will be required on the request of either side. He will recuse himself from handling this matter.”
Thanks a lot. Now, if we refused him on the grounds that his wife was a cop, what kind of message would that send? It would telegraph to our prospective jury pool that we didn’t think much of the LAPD, or that Lance had some inside information about the LAPD that would hurt us. The only politic option was to decline Judge Mills’s offer, use our one challenge to boot him, and hope for a better draw. Of course, then we’d have to accept the next name to come up. No arguments; no appeals.