UCLA law professor Peter Arenella and Loyola University law professor Laurie Levenson offer their take on the Simpson trial. Joining them is Southwestern University law professor Karen Smith. Today's topic: Judge Lance A. Ito's sanctioning of defense lawyers for withholding information from the prosecution.
On the prosecution: "The prosecution won a major and deserved victory when Judge Ito ruled that the defense had intentionally breached their discovery obligations in order to gain a tactical advantage. Some might say that Ito's admonition to the jury cannot unring the bell that already was rung in Johnnie Cochran's opening statement. But the bottom line is that the defense's credibility in the eyes of the jury suffered."
On the defense: "Cochran's opening statement effectively hit at a major prosecution vulnerability: the irregular and sometimes inappropriate ways in which the police gathered and secured critical physical evidence in this case. He hammered home this point by the effective use of charts as well as rhetoric--the constant refrain of the three C's--contaminated, compromised and corrupted evidence."
On the prosecution: "The prosecution has to be pleased that Ito ruled that there was an intentional violation of the discovery rules. However, it's unclear that the warning Ito gave the jurors will have any effect. It's unlikely that the jurors remember what reference Cochran made to these specific witnesses in his opening statements. The biggest victory for the prosecution, though, was Ito allowing them to reopen their opening statement Tuesday."
On the defense: "The warning that Ito gave seemed to subdue Cochran in the morning portion of his opening statement, but he did come back in the afternoon with the main thrust of the defense case--a frontal assault on the LAPD. Cochran made many promises to the jury; the question is, will the defense be able to deliver on those promises? But as for the discovery violation, the defense probably lost more in the eyes of Judge Ito than they did in the eyes of the jury."
On the prosecution: "The prosecution feels they won a major victory by Ito allowing them to reopen, but tactically I'm not sure it's worth it. It's always more effective and you score more points with the jury if you dismantle a witness on the stand, than with what you say in an opening statement. But Marcia Clark clearly thinks that opening statements have a big impact on the jury. In a trial that will last six months, will anyone remember what is said this week?"
On the defense: "If I were the defense, I would worry whether Ito's warning to the jurors sticks to Cochran and makes them more cautious about what he says. That would be a tremendous blow, since Cochran is very charismatic and you want to believe him. Also, when the judge told the jurors they could consider the defense's delay in disclosing information when assessing the credibility of those witnesses suggests to jurors that the defense has manipulated them."