Prytulak to Klausner: Does Lance Ito Define the Upper Limit?

HOME DISINFORMATION PEOPLE RAMBAM KLAUSNER DUNN KUHL DUKES L.A. JUSTICE

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Does Lance Ito Define the Upper Limit?
People v OJ Simpson throws light on Rambam v Prytulak

Los Angeles Superior Court Judge Lance Ito (photo does not necessarily correspond to quote)

"If I hear that word again, somebody is going to be in jail over the weekend."

� Lance Ito reacting to Marcia Clark using the word "matched"

Lubomyr Prytulak
Ukrainian Archive, www.ukar.org
[Address]
[Telephone]
[Email]

06 January 2003

Gary Klausner, Judge
United States District Court
Roybal Federal Building
255 East Temple Street
Los Angeles, CA
USA     90012

Re: LASC   Rambam v Prytulak   BC271433   James R. Dunn

Gary Klausner:

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THE RIDDLE IS POSED

Of the hundreds of United States jurisdictions that Brooklyn resident Steven Rambam could have chosen to stage his Rambam v Prytulak litigation, why did he choose Los Angeles? Perhaps because the Los Angeles Superior Court Civil Division that at the time was under your supervision was able to provide him with services unavailable elsewhere, such as the Court

refusing to evaluate its jurisdiction of non-resident Defendant Lubomyr Prytulak for the astonishing interval of 13 months (measured from the filing of Rambam v Prytulak Case 02E00326 on 09-Jan-2002 to the first evaluation of jurisdiction in Rambam v Prytulak Case BC271433 which is scheduled for 10-Feb-2003),
constraining Court clerks to deny Defendant Lubomyr Prytulak the procedural feedback that they customarily offer litigants,
spoliating � that is, suppressing or destroying � two Lubomyr Prytulak money orders that had been submitted as filing fees,
spoliating � that is, suppressing or destroying � eight litigant submissions favorable to the defense, and
refusing to serve Lubomyr Prytulak with a minute order covering the 25-Nov-2002 hearing of the Prytulak Motion-to-Quash-D.

The riddle posed by the above asks how it is possible for an American court to have such un-American characteristics, and to be so at variance with a Western understanding of justice, as to offer such rare and illicit services to a non-resident plaintiff wishing to prosecute a sham law suit against a non-resident defendant.

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THE RIDDLE BEGINS TO BE SOLVED

In my previous letters to you, I have already found reason to believe that the Los Angeles Superior Court simply possesses the level of corruption that is requisite to offering the services above, as evidenced by the Court

having imposed possibly thousands of wrongful convictions
24-Nov-2002 Relevance of Rampart Scandal to Rambam v Prytulak
making life difficult for judges who oppose the railroading of defendants
26-Nov-2002 Did you fire the Serpico of the Bench?
being responsible for financial wrongdoing in the Slush Fund Scandal
28-Nov-2002 The LASCJA Slush Fund Scandal
refusing to supply Defendant Lubomyr Prytulak with a minute order covering the hearing of 25-Nov-2002, and thus attempting to deny Prytulak understanding of the Court's response to Prytulak Motion-to-Quash-D
04-Dec-2002 Did James R. Dunn read before shredding?
being responsible for financial wrongdoing in the Condemnation and Interpleader (C&I) Trust Fund Scandal
07-Dec-2002 Condemnation and Interpleader (C&I) Trust Fund Scandal
being responsible for financial wrongdoing in the Filing-Fee Over-Billing Scandal
08-Dec-2002 Does filing-fee over-billing dwarf other Court misappropriations?
being careless in the processing of prisoners, attributable in part to holding its judges to a low standard in the issuance of minute orders
09-Dec-2002 Did want of Judge Dunn minute order lead to killer's release?
out of a homeless man trying to pry open a kitchen door, having created a martyr to judicial vindictiveness
11-Dec-2002 Is Gregory Taylor the Jean Valjean of Los Angeles?
acquiescing to police planting guns on arrestees
17-Dec-2002 The Role of Gun Planting in Los Angeles Justice

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CHARACTERISTICS OF LA SUPERIOR COURT JUDGES

Relevant to the question of what kind of court is capable of staging the Rambam v Prytulak show trial is the question of the characteristics of the judges who sit on that court, and the question of judge characteristics can begin to be answered by examining the best and worst judges who bracket the members of the Court, or one might say who define the range of integrity and competence discoverable in members of the Court. The present letter addresses itself to estimating the upper limit of that range by examining one of the best members of the Court; future letters will attempt to estimate the lower limit by examining instances of the worst members of the Court.

Searching for the best judges sitting on the Los Angeles Superior Court leads readily to Lance Ito, who may be assumed to possess high levels of integrity and competence by the Court having selected him to hear one of the highest-profile cases ever to come before any American court � the murder trial of OJ Simpson. That is, Court leadership must have recognized that because of its high profile, the trial of OJ Simpson would simultaneously be an examination of Los Angeles Superior Court performance, and that an outcome important to avoid would be the public's verdict that the Court had been unable to provide a fair trial, a verdict which the Court could avoid by assigning a judge learned in the law and adept at keeping his emotions under control.

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VINCENT BUGLIOSI'S BOOK, OUTRAGE

My information concerning Judge Lance Ito comes almost entirely from Vincent Bugliosi's book, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996. In addition to myself finding Bugliosi's book persuasive, I am encourage to think that it is generally viewed as such, not only because of the distinguished reputation of the author, but also because of the twenty commendations cited in the book, of which the following five are representative:

"If you have time to read one book on the criminal trial of O.J. Simpson, I would recommend, without hesitation, Vincent Bugliosi's Outrage." � Dominick Dunne

"Brilliant ... the best book yet on the Simpson trial." � Newsday (NY)

"The best book that there will ever be on the case of People vs. Orenthal James Simpson. The best murder trial book I have ever read. A classic treatise on legal incompetence." � Jim Agnew, Real Crime Book Digest

"No other criminal trial lawyer in the nation could provide such a compelling account of the O.J. Simpson murder trial.... This is the definitive work on the Simpson case." � Ed Nowicki, American Crime Line

"OVERWHELMINGLY CONVINCING ... one can be sure, this is the best book that will ever be written on the O.J. Simpson murder trial." � American Bar Association, Section of Litigation, Appellate Practice Journal

As the excerpts reproduced below touch only on the narrow question of Judge Lance Ito's competence, Vincent Bugliosi's indictment of other components of Los Angeles Justice � such as the performance of prosecution and defense lawyers � are not discussed here, but can be read in Outrage, purchasable in paperback from such retailers as:

Barnes and Noble: www.barnesandnoble.com
Amazon: www.amazon.com
Amazon Canada: www.amazonbookcanada.com

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JUDGE LANCE ITO WAS HANDICAPPED BY BAD JUDGMENT

The following pieces of evidence demonstrate the underlying bad judgment which made possible the Lance Ito prejudicial errors that are outlined further below. Among the descriptions of Lance Ito Judgment deficit that are offered either by Vincent Bugliosi, or by observers whom he quotes, in this section devoted to Ito's bad judgment are: "irrational," "aberrational," "silly," "almost goofy," "little common sense," "wasn't experienced enough," "keeping time to a different drummer," "incredible," "unbelievable," "disgraceful," "Judge ego," "out of his depth," "did not possess the intellectual maturity," "unacceptable," "deplorable," and "I was shocked":

Lance Ito Sustained Too Many Objections

It should be added that I have never seen a jury trial where both sides objected anywhere near as much as this � an incredible sixteen thousand objections, seven thousand of which were sustained. [...] It was aberrational.

And to exacerbate the situation, Ito, almost as often as not, sustained the improper and frivolous objections. He apparently didn't see the absurd incongruity and inappropriateness in a trial for a brutal double murder of making sure that every question asked was sufficiently dainty and delicate. If any question was in the least bit aggressive, Ito almost always reflexively sustained the objection on the ground it was argumentative. But a trial is not a tea party on the back lawn of some Bel Air estate on a Sunday afternoon. Argumentative questions are perfectly proper on cross-examination if they are asked to elicit the truth, as opposed to badger the witness. Apparently, Ito wasn't experienced enough to be aware of this distinction, which has been made by appellate courts.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, pp. 93-94.

Lance Ito Promoted Sales of the Faye Resnick Book

I mentioned earlier how little common sense Ito exhibited during the trial. I will give a few examples. When Faye Resnick (Nicole's close friend) came out with her book on Nicole and Simpson in October 1994, Ito went ballistic. He actually suspended jury selection for two entire days while he read the book. Then, in an effort to prevent others � including prospective Simpson jurors � from reading the book, and to limit publicity generated by the book's release, he sent out feverish letters to the president of CBS News, as well as to talk show hosts Larry King and Maury Povich, beseeching them not to go through with their scheduled interviews with Ms. Resnick on the book. (Only one, Larry King, complied.) All of this was reported on heavily in the media. A child would know that publicly treating the book like forbidden fruit could only serve to titillate people's interest in it and get them to buy it. The book, in fact, immediately shot up to number one on the New York Times best-seller list. [...] Ito was any publisher's dream, and arguably should have shared in the royalties.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 94.

There might be added the question of whether it is efficient for a judge to suspend proceedings for two days to read a book, or whether an alternative course might not have been to continue with proceedings while having support staff read the book and bring pertinent passages to the judge's attention which he would be able to read in minutes. One might even question whether it is within the judge's jurisdiction to take it upon himself to monitor what authors write in books, and to influence what public commentary the books elicit, or whether such an impulse to control is fundamentally totalitarian and beyond the bounds of a judge's authority.

Lance Ito Prolonged the Trial by Reducing Court Hours

Although everyone was complaining about the slowness of the trial, and the Los Angeles County Board of Supervisors was alarmed by the escalating cost, in late February 1995, Ito remarkably decided to shorten every court day to 3:00 p.m., with entire Friday afternoons off (Ito eventually went back to a normal schedule). His explanation was the grueling pace of the trial; the lawyers therefore needed more off-time. Shortening court days is very unusual, and if the hours are changed, they almost invariably are lengthened. Furthermore, if there ever was a case where there was no justification for shortening the court day, this was it. Since the jury was sequestered (a highly unusual situation � only three or four juries in California history have been sequestered during the whole trial) and getting stir-crazy, any shortening of the court day necessarily extended the length of the jury's sequestration. Moreover, there was an uncommonly large number of lawyers working for the prosecution and defense (eleven defense attorneys made speaking appearances in court, nine prosecutors). I have never seen such a compartmentalization of responsibility. A lawyer like Bailey would handle a witness, and then literally disappear from the courtroom for a month. The trial lasted over nine months, yet Shapiro examined only a small handful of witnesses. Marcia Clark, the lead prosecutor, actually went three entire months without handling one single witness. So the lawyers had time to burn, all the time in the world to work on the few witnesses they handled. Yet silly Judge Ito decided to shorten the court day.

In other words, Ito did several things at the trial I can only characterize as irrational, almost goofy, and because of this, throughout the trial I had an ongoing sense of unease that he might do something seriously bizarre.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, pp. 94-95.

Lance Ito Exposed Dwindling Jurors to Blimp Mishap

Because so many jurors were excused, there was a frequently expressed fear that the case might run out of alternate jurors, and if one of the remaining twelve was excused for any reason, only eleven would be left, and without the consent of both sides, there would be a mistrial. Right in the middle of all of this, to entertain the jurors, Ito decided on May 20, 1995, to give them a ride in a Goodyear blimp. Yeah, you heard me right. A blimp ride. According to the L.A. Times, just a few days later, the blimp (called the Eagle) "suffered a mishap while attempting to take off with another load of passengers. A gust of wind blew it across its landing strip in Carson, breaking its tail and tearing a nine-foot gash in the blimp's fabric skin. No one was injured, but with Ito's luck he must feel fortunate there were no jurors aboard that day."

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, pp. 95-96.

Lance Ito Insisted on His Vacation at the Height of the Trial

To me, nothing demonstrated that the good judge may have been keeping time to a different drummer more than his announcing, near the very end of the trial, that he wanted to take a few days' vacation he had scheduled before he was assigned to the case. Closing arguments commenced on September 26, 1995, and with September having only thirty days, and two days being lost for the weekend, the arguments were expected to continue until October 5 or 6, after which the jury would immediately be instructed on the law and they would commence their deliberations. With interest in the case having reached a fever pitch and more media converging on L.A. for the trial than ever before, Ito announced that right in the middle of these closing arguments he was definitely going to suspend trial proceedings and take September 29 and October 2nd off because this was a mini-vacation he had planned a year earlier. Come hell or high water he wasn't about to postpone it even for a few days. For those who weren't left completely speechless, the only words that could be heard in the courtroom hallway, I'm told, were "incredible" and "unbelievable." Dominick Dunne, the widely respected writer and author who covered the trial with wit and insight for Vanity Fair, called Ito's decision to take his mini-vacation "disgraceful. Everyone in this case has made personal sacrifices. And as the leader, no matter how long ago he made his plans, he should obviously change them." Under mounting pressure from both the prosecution and the defense, and undoubtedly from fellow judges, who probably sat him down in his chambers and took his temperature, Ito changed his mind and agreed to postpone his vacation for a few days.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, pp. 96-97.

Lance Ito Vacillated

Changing his mind during the trial, by the way, became Ito's signature, his rulings having all the permanence of a breath upon a mirror. A small sampling: In August 1994, Ito ruled that all motions by the prosecution and defense had to be filed under seal, then quickly reversed himself. He held a hearing in mid-October 1994 to find out who had leaked information on DNA results to local television station KNBC, even subpoenaing many witnesses, then, with witnesses in his courtroom, he suddenly called the hearing off. Because of media misconduct during jury selection later that month, he barred all reporters from the courtroom, then reversed himself shortly thereafter. In considering a defense motion to impose sanctions on prosecutors for delaying the submission of DNA evidence for analysis, he convinced everyone, including the prosecutors (whom he told to "expect" the sanctions), that he would impose them, but to a startled courtroom, and without explanation, he announced that he would not do so.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 97.

Lance Ito Thanked the Jurors for their Perverse Verdict

There can be little question � though no one could expect any of the Simpson jurors to admit it � that most members of the Simpson jury were biased against the prosecution and in favor of Simpson. If nothing else, the jury's outrageous verdict and the lightning speed with which they reached it, demonstrate this point. How dare Judge Ito tell this jury after the verdict that society owed them a "debt of gratitude" when they came back with a verdict that not only was incompatible with the evidence but had been reached after an inexcusably brief three and a half hours? [...] Ito could have thanked the jurors for their time without adding the absurd comment that society owed them a "debt of gratitude."

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 59-60.

Lance Ito Flunked a Test of His Understanding of the Fifth Amendment

The following incident describes what Lance Ito intended to do, and thus testifies to his bad judgment. However, as an appellate court stopped Ito from doing it, it did not progress into an error which was prejudicial to the prosecution:

Ito agreed that existing law prohibited him from informing the jury, as the defense had urged, that Fuhrman had taken the Fifth. But what Ito did decide to do was almost as bad. Once again over the vigorous objection of the prosecution, he succumbed to pressure from the defense and said he intended to give the jury the following instruction: "Detective Mark Fuhrman is not available for further testimony as a witness in this case. His unavailability for further testimony on cross-examination is a factor which you may consider in evaluating his credibility as a witness." The only problem, as the prosecution pointed out to Ito, is that this instruction flew straight into the teeth of existing case and statutory law in the State of California. Section 913 of the California Evidence Code provides, unambiguously, that when a witness invokes the Fifth Amendment, "the presiding officer [judge] ... and the trier of fact [jury] may not draw any inference therefrom as to the credibility of the witness."

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, pp. 85-86.

Lance Ito Was a Sucker for a Celebrity Witness

Dr. Henry Lee, Director of the Connecticut State Forensic Science Laboratory, arrived at the trial as a prosecution expert witness of the highest caliber, essentially as the dean of American forensic scientists, the top forensic sleuth in the nation. However, Vincent Bugliosi explodes Lee's reputation by demonstrating his incompetence. As one example out of several, Lee photographed three prints which he said were, or could be, shoe prints, but which did not match the many size-12 Bruno Magli bloody shoe prints at the scene which the prosecutors said belonged to Simpson. Lee suggested that these three prints could have been made by the shoes of a second assailant. However, William Bodziak, the FBI's senior expert on shoe prints, demonstrated that

one of the prints consisted of trowel marks in the concrete made by workers laying the sidewalk years earlier,
another was a shoe print indented into freshly-poured concrete by workers years earlier, and
the third was a shoe print not present in LAPD photographs taken on 13-Jun-1996, but that was present in Lee's photographs of 25-June-1996, and therefore made after the time of the murder.

What was Lance Ito's evaluation of Henry Lee? Initially, at least � apparently before the Bodziak testimony � Ito joined in intimidating the prosecution, and dazzling the jury, with Lee's brilliance:

Lee's reputation didn't just have an impact on the members of the jury. Remarkably, after Lee testified for the defense on direct examination, Judge Ito looked down at Hank Goldberg, the deputy district attorney scheduled to cross-examine Lee, and said: "Frankly, if I were in your shoes I would cross-examine Dr. Lee for no more than half an hour. Accentuate the positive in a friendly and professional manner, given his reputation, and then get out." Can you imagine that? Even David Margolick, the New York Times reporter who covered the trial in an expert fashion, and who should have known better, told his readers (before Bodziak testified) that Lee was "largely unassailable." [...]

In effect, Ito told Goldberg not even to bother cross-examining Lee because, as Margolick said, he was essentially "unassailable." (Oh, yes. Newsweek's assessment of Dr. Lee, even after he had been discredited by William Bodziak? "The best witness money can buy.") So in an indirect, insidious way, because the much greater part of mankind only hears the music, not the lyrics, of human events, the jury's viewing the defense attorneys as stars, the Dream Team, the best in the legal profession (as they viewed Dr. Lee to be the best in his profession), most likely contributed to their perception of the evidence and what was taking place before their eyes.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, pp. 50-51.

Lance Ito Was Intoxicated by Celebrity Status

Vincent Bugliosi considers Ito's allowing television coverage of the trial to be a mistake because it altered the behavior of all participants, particularly the lawyers. To this might be added that it intensified interest in the case, and thus intensified the depth of public sentiment, which despite being delusional, nevertheless made its way back to the jurors through the conduit of conjugal visits.

One reason that Ito may have favored cameras is that he was intoxicated by the camera's power to elevate him to the status of a celebrity:

At least that seems to be the consensus of virtually all the reporters who covered the trial. Reporters called him "Judge Ego." He seems to "relish the presence of the television cameras. He likes the limelight," Newsweek said.

I knew for sure that Ito was out of his depth in this trial when early on he started inviting celebrities visiting the proceedings back to his chambers, particularly talk show hosts whose programs covered the trial. I don't have anything against these talk show hosts, but it was unseemly and undignified behavior for a judge presiding over an important murder trial. What conceivable reason could Ito possibly have had for being so eager to play host to these celebrities other than that he was concerned with what they might say about him on the air? (The only other possibility that occurs to me is almost equally damning � that Ito lionizes celebrities, like so many of his fellow citizens. But if he does, this is at least one piece of circumstantial evidence that he did not possess the intellectual maturity to preside over a case of this magnitude.)

"I was very disappointed with Judge Ito," defense attorney Peter Neufeld told Time magazine, "the fact that he was so concerned about his status as a celebrity, his willingness to entertain personalities in chambers, to show the lawyers little videotapes of skits on television." One day, Neufeld said, Ito brought all the lawyers into chambers to show them a clip of the "Dancing Itos" from Jay Leno's Tonight Show. "He had thought it was great and loved it and wanted all of us to see it in chambers. You may find that amusing on a personal level," Neufeld said, "but I can assure you that on a professional level it is so unacceptable for a judge who's presiding over a murder trial to bring the lawyers into chambers to show them comic reviews." Ito also told the lawyers Simpson jokes he had heard. Said Neufeld: "As someone who has tried cases for twenty years, I found it deplorable, and I was shocked." One such joke, as reported in the New York Times, may have been an Ito original. Near the beginning of the proceedings, Ito told Johnnie Cochran he had good news and bad news for him. The bad news was that the authorities had found Cochran's client's blood at the murder scene. The good news, Ito said, was that Simpson's cholesterol was low.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, pp. 100-101.

The infatuation with celebrity status might be viewed as the fundamental personality flaw which by itself was able to guarantee that Ito would favor the defense � which would be the case if Ito anticipated that his approach to celebrity status would be blocked in the event that

Simpson was convicted, and
the conviction was unpopular, and
the celebrities by whom Ito dreamed of being accepted would be able to blame him for the conviction.

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LANCE ITO'S BAD JUDGMENT LEADS HIM INTO ERROR

Lance Ito Permitted Simpson to Address the Court and the Nation Directly, and thus the Jury Indirectly

Simpson waived his right to testify, one may suppose to avoid cross-examination, but nevertheless was allowed to address the Court in the absence of the jury, which was damaging to the prosecution because his words would have been able to reach the sequestered jury during conjugal visits � the equivalent of Simpson delivering his message to the jury without having to undergo cross-examination:

And at the end of the trial, when Simpson waived his right to testify in his own defense, instead of simply taking the waiver, Ito permitted Simpson to address the court. "It is inappropriate and the defense is deliberately trying to do it for a clear purpose," prosecutor Clark had forewarned Ito, knowing what the defense was up to and what was coming. "This is an attempt to get testimony before the jury without cross-examination. Please don't do this, Your Honor. I beg you, I beg you." Ito never explicitly ruled on Clark's objection, and instead let Simpson make a self-serving statement which, as a member of the defense team later acknowledged, defense lawyers had been working on with Simpson for three weeks. With the television cameras in the courtroom, millions heard it. It played very heavily in all the media that night and the next day, and the defense obviously hoped it would reach the jury via conjugal visits.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 87.

District Attorney Gil Garcetti pointed out that Ito's decision allowing Simpson to give his speech was "grossly inappropriate." Fred Goldman, Ron's father, said that Ito's decision was "outrageous. If he [Simpson] had a statement to make he should have gotten on the damn stand to make it, not be a coward."

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 88.

Lance Ito Excluded Simpson's Confession to Rosey Grier

On 13-Nov-1994, former NFL defensive lineman Rosey Grier, who had become an ordained minister, was visiting Simpson at the Los Angeles County Jail, with Deputy Sheriff Jeff Stuart inside a control booth about ten feet away. As long as Simpson and Grier spoke in normal voices over their telephones, Stuart would be unable to hear anything they said. What happened is described in the 09-Jan-1996 edition of Globe magazine as follows:

"Rosey had his bible opened in front of him and he and O.J. had been talking for about half an hour," Stuart recalls. "All of a sudden, O.J. slammed the telephone down on the counter and yelled: 'I didn't mean to do it! I'm sorry!' Rosey leaned forward, looked him in the eye and yelled back: 'O.J., you gotta come clean. You gotta tell somebody!'

"O.J. just sat there staring at the ceiling for several moments. I don't know if he was talking to his maker, asking for forgiveness or what. Rosey started tapping on the glass that separated them. He was trying to get O.J.'s attention, to get him to pick up the telephone. Then O.J. buried his head in his hands.

"O.J. looked like a man who had been totally wiped out. His shoulders were slumped over, his head hanging low."

Craig Lewis, Globe, 09-Jan-1996, as quoted in Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, pp. 91-92.

Rosey Grier never visited OJ Simpson again after this incident.

Lance Ito ruled that the statement waived clergyman-penitent privilege by being made in a loud voice in front of a third party, which left Ito with no legal basis to exclude the statement � but Ito did exclude it:

Ito ruled, in fact, that Simpson had waived the privilege, but remarkably kept Simpson's statement out on a totally nonlegal ground: "Counsel for Simpson now argue [after Ito held there had been a waiver] Simpson was lulled into a false sense of security in regard to the confidentiality of his communications in the visiting area. The argument is well taken," Ito said in his ruling, disallowing the prosecution from presenting the guard's testimony.

The only problem was that if there was a waiver, as Ito virtually had to rule there was, there was no legal basis for excluding the statement.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, pp. 90-91.

The significance of the Ito ruling may be as follows:

One of Ito's dreadful rulings and decisions at the trial may, in fact, have been responsible for nothing less than depriving the prosecution of a guilty verdict, or an attempt by Simpson to plead guilty to some degree of criminal homicide below first-degree murder.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 88.

However it played out, it would have been exceedingly damaging, perhaps fatal, to Simpson, and if it didn't induce a termination of the trial by way of a plea bargain, it would have been up to the jurors to hear the guard's testimony and give it whatever weight or significance they felt it was entitled to. But Judge Ito, in his inimitable fashion, made another bad ruling, this one of pivotal and momentous consequences.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 93.

Lance Ito Demeaned the Prosecution

Lance Ito demeaned prosecutor Christopher Darden:

The very slightest offense, real or imagined, was apt to set him off. In a February 23, 1995, sidebar conference called to discuss the prosecution's objections to a line of questions by Cochran, Cochran said: "They [the prosecutors] obviously havent' tried any cases in a long time and obviously don't know how, but this is cross-examination."

Darden said, "Who is he talking about, doesn't know how to try a case?"

Ito: "Wait, Mr. Darden."

Darden: "Is he the only lawyer that knows how to try a case?"

Ito: "I'm going to hold you in contempt."

After Ito excused the jury, he suggested to Darden that if Darden apologized, he might set aside his finding of contempt. But Darden, who had done nothing wrong, and therefore had said nothing to apologize for, refused, and asked Ito to schedule a hearing on the propriety of the contempt.

Ito said, "[I gave counsel] an opportunity to get up and say 'Gee, I'm sorry, I lost my head there. I apologize to the court. I apologize to counsel [Cochran]' ... You want to fight some more with the court, you're welcome to do so." Eventually, Darden apologized to the court, saying he meant no disrespect, and Ito then also apologized for overreacting.

All of this took place in front of millions of TV viewers. Obviously, there were only two villains to this piece, Cochran and Ito. Cochran had been insulting to Darden, and Darden would have been completely justified in responding in kind to him. Instead, under the circumstances he was very mild in his response. Yet simply because he continued talking ("Is he the only lawyer that knows how to try a case?") after Ito had said "Wait, Mr. Darden," Ito held him in contempt of court, and then compounded it by demanding that Darden, the victim, apologize in front of millions to Cochran, who had insulted him, and to Ito, the overbearing judge with a hair-trigger sensitivity who improperly held him in contempt. Note that the one-sided exchange between Cochran and Darden at the sidebar was outside the hearing of the jury, so absolutely no harm was done to either side. Moreover, in jury trials, particularly murder cases where more is at stake, tempers frequently become frayed, and counsel lash out at each other, often even before the jury. But the super-prickly Ito would have none of it, even in the privacy of a sidebar, and even though Darden had simply defended himself, as opposed to lashing back at Cochran.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 101-103.

Lance Ito demeaned prosecutor Marcia Clark:

On July 20, 1995, Marcia Clark was a few minutes late for an early-morning court session outside the presence of the jury, for which she immediately apologized, explaining the reason for her tardiness. Ito, unimpressed, fined the DA's office $250. Clark responded: "Excuse me, Your Honor, may I remind the court that Mr. Shapiro kept the court waiting for twenty minutes � showing up at twenty minutes after nine when it was his witness on the stand � and suffered no sanctions?"

Ito glowered back and said: "Thank you. The fine will be one thousand dollars." In other words, how dare Clark have the temerity to offer any kind of defense whatsoever to one of his rulings.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 103.

Lance Ito demeaned Marcia Clark some more:

There are two main ways a lawyer can lose his credibility with the jury. One is when the jury forms the opinion that the lawyer is not being honest with them and is trying to win at all costs. The other way [...] is when the judge demeans the lawyer in court and the lawyer lets him get away with it. In this case, on several occasions, Judge Ito crisply told Ms. Clark, right before the jury, "Sit down," as if he were talking to a child. Clark always complied immediately, without a whimper or the slightest indication of recalcitrance. Nothing could be worse for the prosecutor than to lose stature in the jurors' eyes. At one point in the trial when Clark had used the word "matched" for hair and fiber evidence purportedly being connected to Simpson and his Ford Bronco � a term which Ito had disallowed because hair and fiber evidence isn't as conclusive as DNA evidence � Ito snapped at her: "If I hear that word again [it's a word prosecutors are accustomed to using], somebody is going to be in jail over the weekend." Ito's threat to put Clark in jail was all over the news for the jurors' spouses and loved ones to hear and possibly pass on to them during conjugal visits. Can you imagine how it would sound for a juror to hear, "The judge almost put Marcia Clark in jail today for something she did"?

And when Clark, in cross-examining the defense's EDTA expert, Dr. Fredric Reiders, was seeking to show the jury that Reiders was not a reliable forensic scientist by the provably erroneous and incompetent testimony he had given in another murder case, Ito, instead of calling Clark to the bench, angrily snapped at her in front of the jury: "Let's wind this up. Let's try the Simpson case sometime today," thereby telling the jury in so many words that Clark was wasting everybody's time.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, pp. 104-105.

Based on the above, and other, instances of Lance Ito browbeating the attorneys appearing before him � especially the prosecution attorneys � Vincent Bugliosi describes Lance Ito as follows:

"demeaning and overbearing" (p. 101)
"brooking no challenge to his authority" (p. 101)
"a judge who had something of a tough-guy sneer on his face and a virtually constant intimidating tone to his voice" (p. 101)
"there was an unmistakable edge to his voice and his words that always implied the lawyers were on the brink, or within shouting distance, of being held in contempt of court" (p. 101)
"the very slightest offense, real or imagined, was apt to set him off" (p. 101)
"Ito, the overbearing judge with a hair-trigger sensitivity who improperly held him [prosecutor Christopher Darden] in contempt" (p. 102)
"the super-prickly Ito" (p. 103)
"Ito's snippy and thin-skinned judicial manner" (p. 103)

Lance Ito Permitted a Record Number of Defense Objections

We saw above Lance Ito demonstrating bad judgment by sustaining too many objections, and we see below Lance Ito prejudicing the prosecution case by permitting too many defense objections even though he sustained almost none of them:

[T]he two prosecutors didn't fight at all for fairness in the courtroom. Nowhere was this fact exemplified more clearly than in Clark's and Darden's rebuttal, where the defense interrupted the two prosecutors seventy-one times, which is unprecedented in my experience. No one whom I've spoken to has ever heard or read about such an egregious display of gross and improper courtroom behavior during an opponent's summation. It simply isn't done. Summation is the time during the trial when the court gives the lawyers far more latitude than in any other part of the trial. The lawyer's inferences have to be based on the evidence, but they can be as ridiculous and unreasonable as can be; and outside the evidence, the lawyer can give examples, refer to matters of common knowledge, and literally tell stories, real as well as fictional, to illustrate his point. The opposing lawyers, through time-honored tradition in the legal profession, rarely object, interrupting only when the advocate clearly trespasses beyond the already broad perimeters of permissible oratory. And indeed, during the opening arguments of Clark and Darden, the defense objected a total of only three times. [...]

But in Darden's rebuttal argument (when the defense had completed its final summation, and knew the prosecution couldn't reply in kind), Cochran and Scheck interrupted Darden twenty-one times. In Marcia Clark's final address to the jury, the last address that either prosecutor could make in the case, and the most important address to the jury for the prosecution, Cochran and Scheck objected an incredible fifty times.

Even if Clark had been giving a powerful summation, constant interruptions would have substantially reduced its effectiveness. But because she was already given a very weak summation, the interruptions made it almost pitiable. An objection destroys the speaker's flow and momentum and the speaker's and listeners' concentration. Even something as minor as someone opening a courtroom door is a distraction, and if the judge doesn't instruct the courtroom bailiffs to keep the door closed during summation, I always remind him to do so. But again, Cochran and Scheck interrupted the two prosecutors an astounding seventy-one times. Yet Judge Ito, knowing that Cochran and Scheck were deliberately making frivolous objections (the proof is that Ito sustained only two out of the seventy-one objections) to destroy the effectiveness of the prosecutors' summations, did not once hold Cochran or Scheck in contempt of court, or even once admonish them to discontinue their outrageous, unprofessional, and yes, dishonorable conduct. This is the same judge who held Darden in contempt of court when Darden spoke over the judge's voice just once to a serious insult by Cochran when they were at sidebar outside the presence of the jury, with absolutely no harm being done by Darden to anyone, much less the opposing side.

What Darden and Clark, particularly Clark, should have done after the third or fourth frivolous objection by Cochran or Scheck, the ill-mannered fighter from the streets of New York, was to ask to approach the bench. She could have said:

"Judge, you know that all of these objections, particularly those by Mr. Scheck, are frivolous and outrageous and designed solely to destroy the effectiveness of the people's final address to the jury. I'm not asking you, I'm demanding that the next time Mr. Scheck interrupts me with a silly objection, you hold him in contempt of court. And if he continues after that, I want Scheck in the lockup. If either Mr. Cochran or Mr. Scheck continues to object and you let him get by with it, my remarks to you, as well as to them, will not be made here at the bench, but in open court before the jury and the millions of people who are watching. I can assure you, I'm not going to tolerate this anymore."

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, pp. 204-207.

Lance Transformed the Trial of OJ Simpson into the Trial of Mark Fuhrman

It is possible to view Lance Ito as having permitted the Simpson trial to be transformed in the jury's mind into the Mark Fuhrman trial, with LAPD detective Mark Fuhrman standing accused of racism, with the further implication that he had planted evidence, particularly having transported one of the gloves from the crime scene to OJ Simpson's Rockingham estate. As this issue is of pivotal importance, it is dealt with in detail in The Trial of Mark Fuhrman section below.

Top Riddle Solved Judicial Range Bugliosi Outrage Ito Judgment Ito Errors Fuhrman Political Appointees Progresses Bottom

THE TRIAL OF MARK FUHRMAN

Lance Ito's Treatment of Mark Fuhrman Contains Ito's Biggest Mistakes

Some of Vincent Bugliosi's most condemnatory descriptions of Lance Ito are reserved for Ito's handling of Mark Fuhrman, as for example:

"Based on the law, as well as on common sense (which time and time again at the trial Judge Ito showed he had precious little of), Ito should have precluded the defense from introducing race into the case." (p. 75)
"Nonetheless, Ito, in an egregiously erroneous ruling which thumbed its nose at Section 352 as well as the law enunciated by the California and U.S. Supreme Courts, opened the door for the defense to let race become a central issue at the trial." (p. 78)
"We can thank Judge Ito for all of this. If he hadn't made his inexcusable ruling (which was incompatible with the law and did violence to all conventional notions of common sense), the Fuhrman tapes would have been irrelevant." (p. 80)
"But none of these favorable qualities was enough to prevent him from turning in a substandard performance at the trial and being a poor judge for this case." (pp. 81-82)
"Although I would agree that Ito's pretrial rulings were sound, I am at a total loss to see how anyone could possibly say his legal rulings during the trial were. Even if allowing the defense to ask Fuhrman if he had used the word "nigger" in the past ten years had been his only flagrant mistake, this was so devastating to the prosecution that all alone it would stand as a condemnation of Ito's judicial performance." (p. 82)
"The plain fact is that Ito specialized in making patently erroneous rulings, one after another." (p. 82)
"Then Ito did something that was inexcusable and for which there wasn't any possible legal argument to be made in support of it." (p. 82)
"Ito knew there was no legal basis for what he did, but he came up with the nonlegal justification that he did not want to be accused of "suppressing information of vital public interest." (p. 83)
"Then Ito really decided to take a smiling leap into the world of illogic and irrationality." (p. 83)
"Insofar as the Fuhrman affair was concerned, Ito didn't know whether he was coming or going." (p. 84)
"To demonstrate even further what a thick fog he was operating in, Ito proceeded [...]." (p. 84)
"Ito's illogic over the Fuhrman matter knew no bounds. He started to act and talk like a man who had just been roused out of a fire in the middle of the night and hadn't gotten his bearings yet, apparently even losing the capacity to read the clear and explicit language of the California Evidence Code." (p. 85)

What, then, did Lance Ito do with respect to Mark Fuhrman that was so terrible?

Lance Ito Permitted Mark Fuhrman to be Asked Whether he had Used the Word "Nigger"

A month and a half after the murders, 12% of Blacks felt that OJ Simpson had been framed; toward the end of the trial, 75% of Blacks felt that Simpson had been framed (Bugliosi, pp. 73-74). As conjugal visits permitted sequestered jurors to be influenced by the same information that was influencing Blacks generally, it is reasonable to suppose that the nine Black jurors (there were also two Whites and one Hispanic) shared in this attitudinal shift, which Vincent Bugliosi attributes largely to Lance Ito permitting detective Mark Fuhrman to be questioned about whether he had ever used the word "nigger" over the past ten years. The defense implication was that someone who had used the word "nigger" over the past ten years could well have planted evidence inculpating OJ Simpson, which became the centerpiece of the defense. Lance Ito had it well within his power to exclude this line of questioning for tending to inflame passions without adding probative value.

In any case, it cannot be denied that on several occasions over the years, Mark Fuhrman indulged in language that was racist, most notably and undeniably in tape-recordings made with Laura Hart McKinny:

Between April 1985 and July 1994, Laura Hart McKinny, an aspiring North Carolina screenwriter who was writing a movie script about policewomen, had a series of tape-recorded conversations with Fuhrman for the purpose of Fuhrman providing her with realistic dialogue, police procedures, and insights into a police officer's thought processes. McKinny agreed to pay Fuhrman $10,000 if the script was picked up. Since the script was fictional, the argument was made by some that nothing Fuhrman said should be taken seriously. But the consensus was that the statements Fuhrman made on the close to fourteen hours of tape, though almost assuredly part bluster to increase the marketability of the script so he could collect his $10,000, essentially reflected Fuhrman's state of mind with respect to blacks. On the tapes, Fuhrman uses the word "nigger" forty-one times, and comes across as being so racist, and so extreme, as to be almost cartoonish, a caricature of a bigot, and hence his words don't sound as real as their literal meaning.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 449.

However, the McKinny tapes might be discounted more than Vincent Bugliosi allows them to be discounted by Mark Fuhrman having recorded them with the understanding that he would be able to collect his $10,000 fee, and otherwise squeeze his foot into the Hollywood door, only by speaking intemperately and acting aberrantly. OJ Simpson escaped punishment for murdering two people largely as a result of Mark Fuhrman having once aspired to work in Hollywood by projecting a Dirty-Harry image of resorting to violence and spouting shocking language.

All other instances of Mark Fuhrman racist talk can be similarly understood as just that � talk. When it came to action, Mark Fuhrman was consistently non-racist, as evidenced by the following testimonials from those who knew him best.

Eleven Testimonials to Mark Fuhrman's Lack of Racial Animosity

A tenable position is that LAPD detective Mark Fuhrman was capable in certain situations of racist talk, but never of racist behavior, and that by the time of the Simpson murders, he had long abandoned even the racist talk. The relevance of the following testimonials lies not in Lance Ito having known them and ignored them, but rather in demonstrating what anyone acquainted with human nature knows � that there is a weak correlation between talk and action, and particularly between speaking of a group contemptuously, and framing one of the group's members for murder:

Sergeant Roberto Alaniz, a Latino whom Fuhrman sought as a partner in 1984.

"The person that the world knows ... on the tape ... is a racist, who made terrible remarks, who probably represents all the filth the world has to offer. The Mark Fuhrman I know ... is not that. He's not a racist."

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 168.

"I asked him [his feelings about minorities] after he told me about his stress thing," Alaniz said. "He said he never had problems with blacks, that he only had problems with the criminal element. He told me what he said [to the pension board] ... that having worked his assignments, he couldn't stand gang members. He hated them. [He said] that it got to the point that he would probably shoot them rather than give them the benefit of the doubt" in a standoff.

Several months after Fuhrman was back on duty, Alaniz said, he asked Alaniz to be his partner � a move Alaniz and some others say flies in the face of Fuhrman's reputation as an officer who disdained minorities. "I just don't understand how a person that is very racist would choose to work with a minority officer in a two-man car," Alaniz said.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, pp. 170-171.

Alaniz says that Fuhrman was known as a solid cop. "His uniform was impeccable. He kept himself in shape. Shoes shiny. His tactics were good. He didn't do anything reckless."

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 171.

Carlton BROWN, a Black homicide detective who was Fuhrman's partner for most of 1993:

"I really can't say whether Fuhrman was racist or not, but if he harbored those feelings, it was not evident to me. I don't know, maybe I'm naive. But I don't think so."

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 168.

Detective Carlton Brown, Fuhrman's black partner in 1993, said he got along fine with Fuhrman, adding that race "was never an issue. He treated everybody fairly. I never observed him violate civil liberties."

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 172.

Officer Toish ELLERSON, Black and female:

Before they became patrol partners, Alaniz said, LAPD superiors decided that Fuhrman's true feelings about race should be put to the test by making Fuhrman's first partner � after his pension hearings � a black female officer. Fuhrman was paired for two months with Officer Toish Ellerson. Alaniz said Fuhrman told him he enjoyed working with Ellerson. And he recalls Fuhrman saying, "They have this idea that I can't stand working with a black person and a woman. But they are wrong. She is a very pleasant person to work with."

For her part, Ellerson, now a sergeant in the West Los Angeles Station's Community Relations office, also had no unpleasant recollections of her time as Fuhrman's partner.

"To be blunt, I never had any problems with him," she said.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 171.

Patricia FOY, Black female civilian:

Fuhrman also investigated a case in which a black woman, Patricia Foy, resisted a purse snatcher and chased him after he fled with the purse. She told Harris that Fuhrman "told me I was incredibly brave, but I was also incredibly foolish and I should not do that again because I could end up dead. He's not a racist. They're just trying to hang something on him so they can cover up for the defense. That's all they're doing."

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 173.

Arrick HARRIS, Black criminal wrongly accused:

Demonstrating that Mark Fuhrman was not out to frame Black suspects, but rather worked to clear them when he thought they are innocent, even when they had criminal histories, is the following account. Even though Arrick Harris does not himself step forward in this passage to testify to Fuhrman's lack of racism, one may infer that he would if given the chance. Worthy of note is the statement that Fuhrman defending the wrongly-accused Arrick Harris was not unique, but only one of "a number of instances" of Mark Fuhrman doing the same thing:

What has to rank as one of the most startling utterances to come from the prosecutors in the Simpson case was William Hodgman, the senior member of the prosecution team, telling the Los Angeles Times after the verdict that he and his co-prosecutors had information "about how Mark Fuhrman as a detective was a very professional detective, that in a number of instances he worked to clear suspects who happened to be African-American when new evidence [exonerating them] came out." [...] I was able to confirm one of these instances. On October 6, 1994, in West Los Angeles, Shawn Stewart, a white male, was shot to death out on the street in a drug deal gone sour. Witnesses identified Arrick Harris, a thirty-year-old black male with a criminal history as the killer, and Fuhrman, the lead detective on the case, secured a criminal complaint against Harris for murder. Before the preliminary hearing, Fuhrman received information that someone else was the killer. After going out and investigating further, he formed the opinion Harris was innocent. His partner, Ron Phillips, told me that Fuhrman "worked extremely hard on the case to establish that Harris was not involved. I remember Mark telling me, 'Ron, we've got to prove this guy didn't do it before the prelim or he's going to sit in jail for a murder he didn't do.' He even got the DA to request a continuance of the prelim so he could have more time to work on the case." Fuhrman proved Harris' innocence and the district attorney's office had the case dismissed before the preliminary hearing.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, pp. 176-177.

Connie LAW, Black female civilian:

And there are others besides police officers who disputed Fuhrman's racism. In an October 1994 CNN report on Fuhrman, two African-American women spoke to correspondent Art Harris. Connie Law, who met Fuhrman when he was one of the investigators on the murder of her uncle, told Harris: "As far as O.J. Simpson goes, I think he's innocent. As far as Mark Fuhrman goes, I think he's a great detective. He was great with us.... He didn't show any signs of racism towards me and my family."

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 173.

Danette MEYERS, Black Los Angeles deputy district attorney:

Although Ms. Meyers has refused to talk to the media, her close friendship with Fuhrman is well known. It started when a defendant she was prosecuting (and whom Fuhrman had investigated) made a death threat to her. Fuhrman took it upon himself to personally guard her on his own time. They became good friends and on several occasions he had her over for dinner with his wife and two children.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 173.

Sergeant Ed PALMER, an African-American who first met Fuhrman at the West Los Angeles Station in 1994 said:

"I was as shocked as anybody.... If Mark were a racist and especially as big a racist as he sounded on the tapes, I would have no trouble telling him he was the scum of the earth. But I really can't."

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 168.

"Being African-American, when you come into contact with someone, you listen to them and pick up on things. There have been times I have worked with people [and] you wonder about them. I never wondered about him. I knew he was aggressive. I knew he was a little arrogant. But I never got racism at all. If he were that way, and as much a racist as the tapes indicated, then it would have come out somewhere, and somebody would have spoken up."

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 169.

And as recently as last year [1994], Fuhrman never offered any hint that he harbored racist views, according to officer Palmer, who met Fuhrman at the West Los Angeles station about a month before the murders in Brentwood. As often as several times a week over a period of six months, Palmer said, he and Fuhrman met before the day shift to play basketball, often with other African-Americans. Palmer said, "We would get there at 6:30 in the morning and sometimes it would be just the two of us. I would think this man had to get up at 5:40 in the morning to play basketball with me. Why ... if you really hate African-Americans, why would you do that? In fact, you know how some guys joke [to African-Americans] and say, 'you guys are all quick' or, 'you guys can all jump'? He never even said anything like that," Palmer said.

"Ask yourself this," Alaniz said. "What do you do with the racist? You just show them a better way ... so they can learn. Here is a person who told the department that he was having problems dealing with minorities ... then they put him through the psychological program and they said at some point he was rehabilitated. And later in his career he was hanging out with minority officers."

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 172.

Sergeant Paul PARTRIDGE, who had known Fuhrman since the two were rookies 20 years earlier, said:

"If he were back on the job [today] he would risk his life for anyone on the job or anyone in this city, just like he always had. And he wouldn't care who they were."

Partridge recalled that Fuhrman had one long-term girlfriend who was a Latina � a fact some might find curious for a man many see as an uncontrollable racist. And, he recalled, the woman was not one to tolerate any racial slights. "She was very vocal, very proud of her heritage," Partridge said. "And [Fuhrman] had no problem with that."

Partridge and other officers told the L.A. Times reporter that in the language of police work, where officers can risk their lives each day confronting the worst society has to offer, a distinction is made between what is said in the moment and how someone really feels. After hearing the Fuhrman tapes, Partridge said that he was angered that someone he knew would say such things, but he was still convinced that in Fuhrman's mind the remarks were directed at criminals, not an entire race. Alaniz agreed.

Indented material above is from Greg Krikorian, Los Angeles Times, 08-Nov-1995, as quoted in Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 170.

Nicole Brown SIMPSON, White female murdered by Orenthal James Simpson:

Even murder victim Nicole Brown Simpson might be viewed as testifying to Mark Fuhrman's lack of racial animosity � or rather, more generally and more strongly, testifying to the LAPD'S admiration and respect toward Blacks when those Blacks were multi-millionaires living in mansions, football legends, and movie stars, all in one. Yes, the LAPD did often frame Blacks, but these tended to be disadvantaged Blacks, gang members, drug addicts, street criminals, parolees and parole violators � Blacks whom the LAPD perceived as needing to be framed so that they could be gotten off the streets, Blacks like Gregory Taylor and Demitris McGee. Toward a celebrity Black like OJ Simpson, the LAPD was and always had been fawning and obsequious. Members of the LAPD had attended parties at Simpson's home, and used his pool and tennis court. Simpson in turn would attend LAPD parties, and would autograph footballs for the officers. On occasions when the LAPD could have been tough on Simpson, they treated him with kid gloves � as for example when Mark Fuhrman responded to a call from Nicole Brown Simpson in 1985, and found her sitting on the hood of her Mercedes crying, and complaining of Simpson having smashed its window with a baseball bat. If Fuhrman had been on the lookout for an opportunity to make life difficult for a Black, here was that opportunity � and yet Fuhrman demonstrated that for him it was an opportunity to show deference:

Yet because Simpson was the celebrity that he was, Fuhrman does nothing at all. In fact, he doesn't even fill out a police report. Nothing. So we have proof that even Fuhrman pampered Simpson, gave him special treatment.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 219.

Inasmuch as malicious mischief (smashing the window of Nicole's car) is a misdemeanor, as opposed to a felony, Fuhrman did not have the authority to place Simpson under arrest, since absent an arrest warrant, a police officer cannot arrest someone for a misdemeanor unless it was committed in his presence. Here, it wasn't. However, Fuhrman could have patted Simpson down, asked him for his identification, interrogated Simpson about the incident, and attempted to persuade Nicole to sign a crime report (which could have possibly led to a criminal complaint and an arrest warrant based thereon), things Fuhrman might very well have done if he hadn't given Simpson special treatment. But he did nothing, not even filling out a police report of the incident. [...]

But in his 1989 letter, Fuhrman explains why the incident remained so firmly in his memory. "It is not every day that you respond to a celebrity's home for a family dispute," he wrote.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 476-477.

Thus, Nicole Brown Simpson's complaint of LAPD inaction toward her husband is at the same time her testimonial to the non-racism of the LAPD in general, and Mark Fuhrman in particular, at least when it came to OJ Simpson:

"You come out, and you talk to him, but you never do anything to him."

Nicole Brown Simpson, quoted in Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 218.

Detective Robert TAPIA, Fuhrman's supervisor at the West Los Angeles Division of the LAPD between 1989 and 1994:

When I asked Detective Robert Tapia, Fuhrman's supervisor at the West Los Angeles Division of the LAPD between 1989 and 1994, if he sensed Fuhrman was prejudiced against blacks during this period, he replied: "Mark's not prejudiced against blacks, he's only prejudiced against criminals, whatever their color."

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 176.

Lance Ito's Second Major Error Concerning Mark Fuhrman

Even if allowing the defense to ask Fuhrman if he had used the word "nigger" in the past ten years had been his only flagrant mistake, this was so devastating to the prosecution that all alone it would stand as a condemnation of Ito's judicial performance.

The plain fact is that Ito specialized in making patently erroneous rulings, one after another. Not only was his original ruling in the Fuhrman matter incorrect, but he kept compounding it and making it much worse. For instance, there were sixty-one excerpts from the Fuhrman tapes which the defense sought to have the jury hear, in forty-one of which Fuhrman used the word "nigger." To impeach Fuhrman's testimony that he had not used that word in the past ten years, Ito allowed the jury to hear Fuhrman's voice uttering the racial epithet on only one of the excerpts (speaking of women police officers: "They don't do anything. They don't go out there and initiate a contact with some six-foot-five nigger that's been in prison for seven years pumping weights"), and to have read to them a transcript from another ("We have no niggers where I grew up"). But he also allowed the screenwriter, Laura McKinny, to testify before the jury that during her tape-recorded conversations with Fuhrman he had used the word "nigger" thirty-nine other times.

Then Ito did something that was inexcusable and for which there wasn't any possible legal argument to be made in support of it. On August 29, 1995, Ito decided, over the strenuous objections of the prosecutors, to play all sixty-one excerpts in open court (outside the jury's presence) for a vast TV audience to hear. Since he had ruled the jury could not hear fifty-nine out of the sixty-one excerpts, what conceivable reason was there to play them for millions of people who weren't on the jury? It served no purpose other than to enrage and inflame the black community and millions of others. And with conjugal visits (once a week on Saturday evenings for five hours at the jurors' hotel, the Hotel Intercontinental, just a few blocks from the courthouse), there was the likelihood that the jury would hear about the contents of all the other excerpts.

Ito knew there was no legal basis for what he did, but he came up with the nonlegal justification that he did not want to be accused of "suppressing information of vital public interest." If that was his concern, he could have accomplished his purpose by simply releasing the tapes to the public after the trial (the end was just one month away). As reporter Tony Mauro said in USA Today: "Judge Lance Ito has repeatedly criticized participants in the O.J. Simpson trial for playing to the public instead of to the jury. Yet in deciding to air racially charged taped comments by retired detective Mark Fuhrman at a televised hearing without the jury present on Tuesday, Ito said he was doing it for no other reason but to satisfy public interest."

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, pp. 82-83.

Where Lance Ito Went Wrong in Handling Mark Fuhrman

Even frequent use of a derogatory expression such as "nigger" may signify little more than a predisposition to strong language, devoid of anything deserving the name of hatred.
Even if use of contemptuous language does express hatred, there is still a vast gulf separating that hatred from a willingness to frame for murder.
Expressions of contempt may often be reserved for a subset of the group derogated. Thus, a speaker who says "Wop" might be thinking of Al Capone, but not of Leonardo da Vinci; who says "Kike" might be thinking of Julius Rosenberg, but not of Albert Einstein; who says "Kraut" might be thinking of Adolph Eichmann, but not of Richard Wagner; who says "Slant" might be thinking of Hideki Tojo, but not of Toshiro Mifune. In the same way, when Mark Fuhrman spoke of "niggers," he was likely thinking of the violent street criminals that he had to confront daily, and not of Mahalia Jackson, and not the ordinary Black folk that understandably did not leave the traumatic memories which preoccupied him.
Mark Fuhrman had years before been given to racist talk, but his behavior was consistently non-racist and professional. When Fuhrman came across Blacks who were wrongly accused, he worked to exculpate them. Fuhrman treated OJ Simpson with the deference he thought a celebrity deserved.
Two LAPD officers who arrived at the murder scene before Mark Fuhrman found only one glove, so that there was not a second glove that Fuhrman could have taken to plant at OJ Simpson's Rockingham estate.
For there to have been a conspiracy to frame OJ Simpson, a large number of people would have had to participate, and these people were mostly strangers to each other.
The putative conspiracy began at the earliest stages of the investigation, such that there was no opportunity to approach the many conspirators and win their cooperation beforehand.
None of the other people who would have needed to support the conspiracy were accused of racism or of racist language.
The punishment for framing defendants in a capital case is severe, and may include execution.
The putative conspiracy to frame OJ Simpson commenced at a time when conspirators could not have known whether laboratory analysis would reveal that the evidence against OJ Simpson was already conclusive, such that conspiratorial manipulation and fabrication of evidence would not be needed to convict Simpson, but would expose conspirators to severe punishment.
The putative conspiracy commenced at a time when conspirators also could not have known whether laboratory analysis would reveal that the evidence pointed overwhelmingly to someone else's guilt, such that framing OJ Simpson would again accomplish nothing, but would again expose conspirators to severe punishment.
Lance Ito was wrong to allow Mark Fuhrman to be asked whether he had ever used the word "nigger" over the previous ten years just as it would be wrong to draw the following inferences in the following contexts:
- It would be wrong to impeach a witness against Al Capone because he had used "Wop" in the previous ten years. It would be even more wrong to discredit in the eyes of an Italian jury all witnesses against Al Capone on the ground that one of them had used "Wop" on several occasions in recent years.
- It would be wrong to impeach a witness against Julius and Ethyl Rosenberg because he had used "Kike" in the previous ten years. It would be even more wrong to discredit in the eyes of a Jewish jury all witnesses against Julius and Ethyl Rosenberg on the ground that one of them had used "Kike" on several occasions in recent years.
- It would be wrong to impeach a witness against Adolph Eichmann because he had used "Kraut" in the previous ten years. It would be even more wrong to discredit in the eyes of a German jury all witnesses against Adolph Eichmann on the ground that one of them had used "Kraut" on several occasions in recent years.
- It would be wrong to impeach a witness against Hideki Tojo because he had used "Slant" in the previous ten years. It would be even more wrong to discredit in the eyes of a Japanese jury all witnesses against Hideki Tojo on the ground that one of them had used "Slant" on several occasions in recent years.

What may be the case, then, is that Lance Ito permitted the defense to turn the trial of OJ Simpson (who had recently murdered two people) into the trial of detective Mark Fuhrman (who had years earlier been given to racist language), by permitting the defense to ask Mark Fuhrman whether he had ever used to word "nigger" over the past ten years, and after that by playing a tape to the nation and to the world in which Mark Fuhrman had used the word "nigger" more than 40 times in a monologue whose purpose was to increase his attractiveness to Hollywood as one able to impersonate a Dirty-Harry-like character.

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HOW CAN THE BEST BE SO BAD?

The Best Were Never Chosen For Having Been Good

Vincent Bugliosi provides an explanation of why even the best judges on the Los Angeles Superior Court might be no better than Lance Ito:

A word about judges. The American people have an understandably negative view of politicians, public opinion polls show, and an equally negative view of lawyers. David Kennedy, professor of history at Stanford University, in writing about politicians, says: "With the possible exception of lawyers, we hold no other professionals in such contempt. Who among us can utter the word 'politician' without a sneer?" Conventional logic would seem to dictate, then, that since a judge is normally both a politician and a lawyer, people would have an opinion of them lower than a grasshopper's belly. But on the contrary, a $25 black cotton robe elevates the denigrated lawyer-politician to a position of considerable honor and respect in our society, as if the garment itself miraculously imbued the person with qualities not previously possessed. [...]

Either the appointee has personally labored long and hard in the political vineyards, or he is a favored friend of one who has, often a generous financial supporter of the party in power. Roy Mersky, professor at the University of Texas Law School, says: "To be appointed a judge to a great extent is the result of one's political activity." Consequently, lawyers entering courtrooms are frequently confronted with the specter of a new judge they've never heard of and know absolutely nothing about. The judge may never have distinguished himself in the legal profession, but a cursory investigation almost invariably reveals a political connection. [...]

Although there are many exceptions, by and large the bench boasts undistinguished lawyers whose principal qualification for the most important position in our legal system is the all-important political connection. Rarely, for instance, will a governor seek out a renowned but apolitical legal scholar and proffer a judgeship.

It has been my experience and, I daresay, the experience of the most veteran trial lawyers that the typical judge has little or no trial experience as a lawyer, or is pompous and dictatorial on the bench, or worst of all, is clearly partial to one side or the other in the lawsuit. Sometimes the judge displays all three infirmities.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, pp. 105-106.

The problem of the best judges being disappointingly bad, then, may result from the methodology of judicial appointment, with positions going not to the most virtuous and learned, but rather to the most politically connected or loyal, sometimes in spite of deficits in virtue and learning. Does Judge Lance Ito fit this picture of having been appointed for political reasons despite weak qualifications? � Lance Ito's performance in the OJ Simpson trial does indeed indicate that his qualifications are weak, and the following Bugliosi statements suggest that his political connections were strong. The first Bugliosi statement below alludes to Lance Ito's political connections indirectly in the course of demonstrating how a lawyer should respond to a demeaning judge, while the second statement more unequivocally attributes Lance Ito's appointment to his connections:

"Judge, you apparently don't know, but that's not the way to talk to lawyers in front of the jury. I expect you to ask me politely to please sit down in the future." A stronger example? "Judge, a few years ago you were one of us, a deputy district attorney. You were appointed to the bench by the governor because you were a friend of a friend of the governor. If you think that your black robe entitles you, under the law, to treat us disrespectfully in front of the jury, I am here to inform you that you are wrong."

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 109.

In the DA's office, Judge Ito was a close friend of the district attorney, who in turn was a close personal friend of the governor, George Deukmejian, and I've been told by several people that's how Judge Ito was appointed by Deukmejian to the Los Angeles County Municipal (1987) and eventually Superior Court (1989) benches.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 454.

Does Lance Ito Define the Upper Limit?

A possibility to be considered is that Lance Ito was selected to preside over the OJ Simpson murder trial only in part because of his apparent competence, but also in part because of his Japanese ancestry. By this means, the appearance of bias might be avoided in two eventualities � that of a Black judge presiding over a trial that delivered a not-guilty verdict, and that of a White judge presiding over a trial that delivered a guilty verdict.

Thus, if the Court selected Lance Ito to preside over the Simpson trial not exclusively because the Court perceived him to be competent, but also in part because he was Japanese, then he possibly does not represent the uppermost limit of judicial competence to be found in the Los Angeles Superior Court. Nevertheless, the senior members of the Court responsible for choosing a judge to preside over the OJ Simpson trial must have been conscious of the danger that an incompetent judge could discredit the court by mismanaging the trial, and so they would have allowed themselves to be swayed by considerations other than competence only in small part, and only if they were satisfied that their selection was of high competence even if not necessarily the very highest.

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SOLUTION OF THE RIDDLE PROGRESSES

If Judge Lance Ito is as bad as Vincent Bugliosi paints him when Ito knows that the world is watching and dissecting his every move, how much worse might he be in the average case which the world ignores, and which he can conduct almost as if it were in private? Although Ito is bound to be worse when the public is not watching, it is nevertheless implausible that he ever stoops to Judge James R. Dunn's level. During the Simpson trial Lance Ito was often carried away by emotion, and often wrong, but he never did anything comparable to refusing over an interval of ten months to evaluate his own jurisdiction as James R. Dunn has, never instructed court clerks to deny feedback to the prosecution, never destroyed most of the documents submitted to him by the prosecution, and never kept the prosecution from learning what his rulings were. Whatever Lance Ito did, he did as an inadequate judge; whatever James R. Dunn does, he does in a coram non judice setting of his own creation � which is to say, he does as an individual acting not as a judge, but as one who has usurped the authority of a judge. A best guess might be that Judge Lance Ito is several grades superior to Judge James R. Dunn � what is surprising is to learn how far Lance Ito falls short of either the mastery of the law, or of his own emotions, that the public might expect from a judge, and that are requisite to producing a fair outcome in the trials over which he presides � a shortfall so great that Vincent Bugliosi blankets Ito's performance in the strongest condemnation:

Almost from the beginning of the trial right to the end, many of Ito's rulings were bad, sometimes bizarre.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 86.

And a shortfall so great that Vincent Bugliosi portrays Ito's underperformance as having been necessary to produce the miscarriage of justice which was the acquittal of murderer Orenthal James Simpson:

The Simpson defense team has been receiving the blame from the American people for fraudulently injecting race into the case. And they deserve all the blame they are getting, and then some. But thus far, Judge Ito has gotten a free ride on this issue. Not here, however. I blame Ito 100 percent for allowing it all to happen, for permitting race to be the big issue at the Simpson trial. In considerable part because of it, and because the prosecutors were totally inept at dealing with it once it became an issue, Simpson is now a free man.

Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, Island Books, New York, 1996, p. 74.

Implications of the Best Being Not Very Good

A syllogism that emerges from the above is that if Lance Ito is one of the best judges on the Los Angeles Superior Court, and if Lance Ito is unable to provide a fair trial even when close scrutiny places him on his best behavior, then most judges on the Los Angeles Superior Court are unable to provide a fair trial even when close scrutiny places them on their best behavior. Also, if judicial performance in the absence of close public scrutiny is even worse, then one way of promoting a fair trial may be to attract public scrutiny.

The above revelation of the degree to which even the best judges on the Los Angeles Superior Court may not be very good helps explain why Judge James R. Dunn is doing such a poor job presiding over Rambam v Prytulak, namely that perhaps James R. Dunn

himself shares the Lance Ito characteristics of starting with a bias, and adding to that poor emotional control and weak mastery of the law;
is surrounded by other judges who share similar deficits, and for that reason who impose weak constraints upon each other to adhere to high standards in their work; and
anticipated that his performance would not be subjected to wide public scrutiny.

And the revelation that the best judges on the Los Angeles Superior Court may not be very good also revives the thought that any who assume leadership in the Court and yet fail to notice, and to work to correct, the defect of low judicial quality must be recognized as unfit for leadership. The leadership that American courts need is a leadership which feels keen disappointment with Judge Lance Ito and Judge James R. Dunn, and which asks how judges of their low quality can be most expeditiously removed, and how their places can be filled with candidates carrying higher qualifications.

Lubomyr Prytulak

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