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Both Sides Could Lose in Drama of Ito vs. Media

October 10, 1994|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

First there was People of California vs. O.J. Simpson.

Now there is Los Angeles Superior Court Judge Lance A. Ito versus media of the world. It is a clash in which both sides have a lot to lose.

In recent days, Ito, 44, has threatened to bar two mainstream news organizations from courthouse coverage of the Simpson case, warned the collective news corps that he might pull the plug on live television in his courtroom and had his court clerk put on display letters from members of the public urging him to black out the trial.

Earlier, Ito excoriated some elements of the press "for prurient sensationalism and outright fabrication," and invoked the possibility of a gag order. Additionally, at a closed hearing, he told the lawyers on both sides to file all their motions under seal so that he could review them and decide when to make them public, an action that some legal scholars said is a clear violation of the 1st Amendment.

For the Record
Los Angeles Times Tuesday October 11, 1994 Home Edition Part A Page 3 Column 1 Metro Desk 1 inches; 25 words Type of Material: Correction
Simpson case--In a story Monday, The Times incorrectly identified the judge who sealed Nicole Brown Simpson's will. The will was sealed by Superior Court Judge David Rothman.

Rarely has a judge been watched so closely by so many. And rarely has a judge made it so clear that he thought the media were endangering the rights of both sides to a fair trial.

Some lawyers applaud his efforts, while others say he is going too far.

Most observers say Ito's power to control much of what angers him is limited, and if he uses all the power he has, he may make the situation worse by restricting access to accurate information. A long line of Supreme Court cases has given the press broad rights to cover legal proceedings in this country.

As a consequence, "there is no way of putting the judiciary in control of press excesses," short of amending the Constitution, said one of Ito's colleagues, Los Angeles Superior Court Judge Curtis Rappe.

"The judge can't control pretrial publicity by judicial fiat," added USC law professor Erwin Chemerinsky.

Indeed, just hours after Ito sealed Nicole Brown Simpson's will, the tabloid television show "Hard Copy" broadcast a report on it.

"The judge is talking loudly and carrying a little stick," commented USC law professor Susan Estrich.

Chemerinsky and Estrich believe Ito is using his "bully pulpit" in an attempt to cajole the media into moderating their zeal at pursuing every conceivable angle in the Simpson case. Those competing for scoops range from East Coast Establishment newspapers to tawdry supermarket tabloids and their television counterparts.

"He has been threatening Draconian moves in the hope of making more modest progress" in controlling the media, Estrich said. "I'm not sure that tactic works. But I'm not sure anything he did would work, and that's probably the source of his frustration."

Just how far Ito will go is unclear. Within days of threatening to bar the Daily News of Los Angeles from courthouse coverage of Simpson after it published a story about the jury questionnaire before he released it, Ito reversed field. Court spokeswoman Jerrianne Hayslett said Ito decided he had more important matters to tend to.

The Daily News had filed a legal brief, saying it had done nothing illegal and citing cases challenging Ito's authority to punish the paper.

"I'm not sure he wants to go out on the limb and have a whole sideshow on the 1st Amendment," Estrich said. She and others expressed dismay that the judge had become so angry about an accurate story merely because it was based on a document the paper obtained before its official release.

The next scheduled faceoff between Ito and the media is a Nov. 7 hearing on two issues. The first is whether to continue live TV courtroom coverage. The second is whether to bar KNBC Channel 4 from the courthouse for broadcasting an inaccurate story saying DNA tests had revealed that blood which matched Nicole Simpson's had been found on socks seized at her former husband's Brentwood mansion.

So far, neither prosecutors nor Simpson's lawyers have urged a television blackout, and lawyers for numerous media organizations plan to urge the judge to permit live coverage.

Ito declined to be interviewed for this story, saying only that he has tried to accommodate the media as much as possible and that he recognizes that the roles of a judge and of the press sometimes are in conflict.

While he wouldn't discuss the current media flap before him, Ito has had a lot to say about coverage in other instances.

Recently, for example, Ito circulated an angry letter he had sent to the Los Angeles Daily Journal, blasting the paper for publishing criticism of his friend, Superior Court Judge Jacqueline Connor, by anonymous sources. He urged his judicial colleagues to cease granting interviews to the legal paper unless the publication agreed to stop using unnamed sources in profile stories about judges.

Earlier comments also shed light on his attitudes toward the media.

After he presided over the 1992 trial of multimillionaire swindler Charles H. Keating Jr., which was televised live, Ito said the experience taught him several maxims to live by in such cases.

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