In Washington, D. C., last August, a robber held up a McDonald’s near Capitol Hill and killed three employees. A fourth was saved only because the robber’s gun was empty when he aimed at her and twice pulled the trigger. The assailant fled in the car of one of the victims. Hours later, police arrested a suspect and found a money wrapper from the McDonald’s safe in his pants pocket. Despite this compelling ITO evidence, plus an eyewitness, the 2 E attorney for the suspect requested that he be released to the custody of a third party. There’s a “paucity of information . . . and evidence,” the lawyer said. Besides, there was only one eyewitness — the employee who survived — and she didn’t see the three killings, only heard them.
There’s a parallel here with the O. J. Simpson trial in Los Angeles. Many of today’s defense lawyers, in routine cases or big ones, are willing to make any argument, no matter how shameless or outrageous, on behalf of their clients. They’re out of control. Truth and the safety of the community — those are ignored, totally.
There’s also a significant difference between the two cases. In Washington, the judge coolly brushed aside the defense lawyer’s argument and ordered the defendant held without bond. In L. A., Judge Lance Ito went along complaisantly with the schemes and ploys of Johnnie Cochran and the rest of the O. J. defense team. And that’s what doomed the prosecution of Simpson.
“I blame the judge more than! I blame the defense lawyers,” says Floyd Abrams, the prominent New York lawyer and First Amendment expert. “Lawyers tend to do what they can get away with. The ultimate blame falls on Judge Ito.”
Start with the question of evidence allegedly planted by detective Mark Fuhrman Or other LAPD officers. Cochran was allowed to pursue that matter relentlessly, though he hadn’t offered a single shred of proof indicating that anything — a glove, maybe, or a sock — might have been planted. Cochran ” never offered any evidence [of this] at the beginning, the middle, or the end” of the trial, notes Plato Cacheris, the Washington attorney who defended CIA spy Aldrich Ames and Fawn Hall. But what Cochran was able to show was that Fuhrman s a racist, and thus had a motive for framing Simpson. This undercut the entire prosecution case.
Under normal procedure, a judge would have required a “proffer” from defense attorneys. In it, they would have laid out their grounds, including some factual basis, for believing evidence was fabricated. If the judge accepted their argument, defense lawyers would be permitted to ask questions about, among other things, the motive of police for planting evidence. But if the judge found defense lawyer had nothing but an unproven theory, they wouldn’t be allowed to pursue the matter. Fuhrman’s racism would have been out of bounds.
Ito didn’t bother with this procedure. He simply let Simpson’s lawyers belabor the issue of planted evidence without any proffer, without any showing of a factual basis. “Most judges would not have permitted this,” says Cacheris. “They had no evidence.” Ito allowed Cochran to put Kathleen Bell on the stand to testify about incriminating comments she’d heard Fuhrman make about concocting charges against blacks and wanting to kill all of them. The prosecution never recovered. “I believe that’s what swayed the jury,” says former federal prosecutor John Stein. In fact, several jury members said they believed evidence had been planted.
Oddly, Ito ruled separately that the defense could not play a taped conversation with Fuhrman in which he had confided to a screenwriter that he’d actually planted evidence in other cases. Ito said Cochran had failed to produce any information that such a thing might have happened.
Ito also rolled over for Simpson’s lawyers on the preposterous claim that Nic ole Brown Simpson and Ron Goldman might have been killed by Colombian drug deal ers angry at Nicole’s druggie friend, Faye Resnick, for not paying her debts. C ochran provided no basis for this, yet Ito permitted him to pepper a police det ective with hypothetical questions about it for two days — as the jury listene d to every word. “Those questions went too far,” says Abrams. “And the repetiti on of this shouldn’t have been allowed.” Prosecutor Marcia Clark called the the ory “another sinister innuendo they throw up that has absolutely no basis in f act.” But Ito allowed it, and thus the jury heard an alternative theory of the crime that exonerated Simpson.
Finally, there was Cochran’s summation, in which he urged jurors to use the case not to judge Simpson but to send a message that they wouldn’t tolerate racism. He likened Fuhrman to Hitler. The jurors must “continue to fight to expose hate and genocidal racism and these tendencies,” Cochran said. “If you don’t speak out, if you don’t stand up, if you don’t do what’s right, this kind of conduct will continue on forever.”
It was powerful stuff, a baldfaced pitch for the jury to ignore Simpson’s guilt or innocence and punish the police for racism. “Nine out of 10 judges would not have permitted the appeal to jury nullification,” says Cacheris. But Ito did.
As it turned out, the prosecution may have lost the case even before any testimony was heard. At the outset, Ito noted his wife is a police officer and said he’d recuse himself if either side wished. Neither did. The prosecution didn’t know what it was in for.
by Fred Barnes
