Both sides said they were concerned that jurors would be less candid if anyone other than the judge, lawyers and court personnel were present. They also worried, they said, that jurors waiting to be queried would learn through news reports of the questions being asked and have time to tailor their answers.
Mirell of the ACLU noted that Ito had admonished the prospective jurors not to watch television, listen to radio, read any newspapers or magazines and to stay out of bookstores.
"If they're not following that admonishment," Mirell said, "then they have no business being on this jury."
Attorney Kelli L. Sager, representing The Times and the Associated Press, agreed and cited a landmark 1984 U.S. Supreme Court ruling in which the court found that the public has a right to observe the jury selection process.
That case stemmed from the decision of a Riverside County Superior Court judge to exclude the press from all but three days of a six-week jury selection in the trial of a man accused of rape and murder.
Before jury selection began in that case, the Riverside Press-Enterprise asked that the process be open to the press and public. But the district attorney's office opposed the motion, contending that if the press were present, juror responses would lack the candor necessary to ensure a fair trial. The judge agreed and allowed the press only to observe the general questioning of jurors but not the individual sessions with them.
But the U.S. Supreme Court unanimously ruled that the guarantee of open public proceedings in criminal trials covers oral questioning of prospective jurors.
"The process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system," Chief Justice Warren Burger wrote for the court. "The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known."
The court did find that jury selection sometimes can be closed, but only when a judge makes specific findings about why that is necessary and he or she narrowly tailors the remedy to the perceived problem.
The strong language of the Press-Enterprise case could make it difficult for Ito to close off the portion of the jury selection process devoted to determining whether jurors have been influenced by media coverage of the case, some legal experts said.
"I think there are real constitutional problems with (Ito's decision)," said Erwin Chemerinsky, a USC law professor and constitutional expert. "I think this violates the 1st Amendment."
He added: "Press-Enterprise leaves open one possibility. It says that when there is questioning about deeply personal matters, then it would be appropriate to close voir dire as to those questions--such as whether you have been raped. . . . But I don't see justification for closing it about their exposure to media."
Peter Arenella, a UCLA law professor, agreed that the Press-Enterprise case provides important guidance, but argued that several things distinguish it from the situation faced by Ito. In the Press-Enterprise case, the judge never considered alternatives to closing the questioning.
Ito cited the Press-Enterprise ruling Thursday but said the extent of publicity in the Simpson trial so far exceeds the earlier case that they cannot be fairly compared. "My clerk advises me," Ito said dryly at one point, "that there have been 27,000 newspaper and magazine articles about this case."
Noting that he has received press clippings from as far as Tibet, Ito said: "This case exponentially differs from Press-Enterprise."
Ito's irritation and frustration with the media coverage was stoked again Thursday when two jurors complained to him about the media.
Ito said he would take up their complaints at a scheduled Nov. 7 hearing, after which he will decide whether to end television courtroom coverage of the trial.
In another action Thursday, Ito unsealed and then quickly resealed a transcript from a closed session Wednesday morning, during which Simpson made a statement to the judge about his intentions during the infamous low-speed freeway chase the day of his arrest.
The resealing occurred after "one of the sides" objected to the transcript being released, said Hayslett. Defense lawyers had said Wednesday that they wanted the transcript released.
Under the ruling closing the jury proceedings, journalists would be barred from the courtroom for at least five days and no audio of the proceedings would be fed to a courthouse pressroom where all but a few reporters who were allowed in the courtroom had previously listened to the selection process.
