Without a Doubt (21 page)

People still ask me whether the sight of those big guns rolling onto the field intimidated me. “Didn’t you dread coming to court every day to face these guys down?” they say. The answer is no. Whenever we heard the press referring to this crew as the Dream Team, Bill and I just rolled our eyes. The idea that these were special forces carefully recruited by Commander Shapiro, a sort of Dirty Dozen of the bar, was ludicrous.

Because what you had, basically, were a set of incompatibly grandiose egos—lead horses who by definition could never pull easily in the same harness. As early as the week of the arraignment, Shapiro was already looking worried that Johnnie would muscle him out of the limelight. It didn’t take a psychic to predict procedural chaos if this bunch were not held in check by a strong judge. What we needed was someone who would be temperate but decisive. Someone who would be consistent. Someone who knew enough law and had enough confidence to rule from the bench. We needed the ump of all umps. A square-jawed, rock-ribbed referee with
huevos
of steel.

Instead, we got Lance Ito.

The announcement was almost anticlimactic after Simpson’s “absolutely, one hundred percent not guilty” performance. When Judge Mills announced, “I’m assigning the case to Judge Lance Ito,” I cast a quick glance at Bill. He seemed as taken aback as I was.

Judge Mills had about six to nine names to choose from. These were drawn from a pool of judges who were available for so-called long-cause cases, complex cases, usually murder trials, that were expected to go longer than a month. The lawyers on both sides get to look over the list of judges to see if there’s any candidate so objectionable that one side or the other might have to “paper” him. “Papering” means filing an affidavit of protest. It’s a little like a peremptory challenge; you can reject an appointment without offering a reason. The only problem is that you’re obliged to take the next name you’re given.

There were at least two candidates so awful they made the hair on my neck stand on end. I would definitely have papered them. And then there were three or four others who would have been terrific. But Lance Ito? He’d never, ever occurred to me.

“You’ve gotta be kidding,” I whispered to Bill. Why, I wondered, does the judiciary never pick its brightest stars for these cases?

Lance was certainly no bright star. When he was chosen for the Simpson case, he was presiding over the master calendar court, which sends cases out to be tried. It was a useful but mundane assignment. The judge in calendar either tries to get the sides to plea-bargain or sends the case out for trial. It’s strictly an administrative position, and one that takes a judge out of the loop of trial work. It’s certainly not the sort of assignment that would prepare one for dealing with the pressures of the Simpson case.

Lance always struck me as an overgrown adolescent. He was the only judge I knew who wore running shoes under his robes. I’d worked with him briefly in the D.A.‘s office—he’d been a prosecutor during the eighties. His reputation as a gun enthusiast preceded him. According to office lore, he’d been looking over a handgun with another D.A. when somehow the piece went off and fired a bullet into the ceiling—which happened to be the floor of the Public Defender’s Office.

Lance was one of those guys who can sniff out a new source of power in the office and always manage to attach themselves to the unit du jour. He got himself assigned to the Hard Core Gang Unit when it was a hot political baby. He prided himself on political correctness. His wife, Captain Margaret York, was the highest-ranking female officer on the LAPD. I could never figure that pair out. It became clearer and clearer to me as the trial went on that when it came to gender equality, Lance was stuck in a tar pit.

In his seven years on the bench, Ito had shown himself to be a typical ex-prosecutor judge. Don’t get me wrong. Some old prosecutors go on to the bench and turn out to be terrific judges, fair and decisive. A number of them, however, treat the D.A.s who appear before them very badly. If the prosecutor is any good, the judge feels competitive. The ex-prosecutor judge is usually so eager to show that he has no lingering loyalties to the D.A.‘s office that he’ll kiss the toes of the defense.

I hadn’t argued a case before Ito, but Bill had: the Keating case. I could remember Bill grousing about Ito at the time. He thought Ito had bent over backward to accommodate the defense and dismissed a lot of counts he shouldn’t have. But in the end, Bill and his team won a guilty verdict. It’s not unusual for a D.A. to be tweaked by a judge’s day-to-day rulings, only to recall him as a fine and thoughtful jurist when the outcome is favorable. Bill felt Ito had done a tolerably good job on Keating, which was by anyone’s reckoning a complicated long-cause trial. Keating, however, was strictly white-collar crime; accordingly, everyone kept his gloves on. The Simpson case was shaping up to be a sort of break-your-bottles-and-go-at-it street brawl. We would need a judge who could step in and keep the peace. I didn’t believe Lance had the fortitude for that.

My first inclination was to refuse him. But Judge Mills added a complication. He noted that Ito was married to a captain on the LAPD.

“In the event that either side desires him to do so,” he explained, “no affidavit will be required on the request of either side. He will recuse himself from handling this matter.”

Thanks a lot. Now, if we refused him on the grounds that his wife was a cop, what kind of message would that send? It would telegraph to our prospective jury pool that we didn’t think much of the LAPD, or that Lance had some inside information about the LAPD that would hurt us. The only politic option was to decline Judge Mills’s offer, use our one challenge to boot him, and hope for a better draw. Of course, then we’d have to accept the next name to come up. No arguments; no appeals.

I’d have papered him in a hot second if I hadn’t known there were a couple of worse judges in the building. (Although, looking back, it’s hard to see how they could have been
much
worse.) Instead, I turned to Bill, who knew Ito better than I did.

“What’s your gut tell you?”

He sighed and gave me a thumbs-up.

I wish that one of us had been endowed with some mystical gift of prescience that would have warned us off this train wreck. But you make your decision with the best information you have at the time.

Only four days after he took the case, Lance and I locked horns for the first time. It was bitter and it was public. The defense had filed a motion that would have required us to give them 10 percent of each of our blood samples so that they could do their own testing. I couldn’t let that happen. Some of the samples contained so little DNA that if we gave up even 10 percent, we might not be left with enough blood to get a test result. This was particularly true for the more sophisticated tests—for instance, the one that utilizes the RFLP method is very reliable but requires a fair amount of DNA. Remember, by law the defense is not obligated to come forward with their results—so if their tests proved Simpson guilty, they could and most assuredly
would
hide the information. On the other hand, if our diminished sample failed to yield a result, we’d wind up with nothing. So if we gave the defense a portion of bloodstains off the top—a concession that was based on no legal requirement—we might well destroy crucial evidence.

I was almost certain that Ito would reject the defense’s motion out of hand. Any reasonable judge would. Just to be certain, I drafted a proposal that would make it even easier for him: let the
defense
do all the testing. I was willing to go out on a limb like this because I knew the defense’s blood expert, Dr. Edward Blake, and I both respected and trusted him.

What I proposed was to give Dr. Blake the entire sample. Let him do all the testing—
provided
the defense would share his results with us. If the Dream Team was sincere about getting an honest result, they’d go for my compromise. The only possible reason for turning me down was if they knew the results would hang their client. My counter-motion, in essence, would call their bluff.

Get it, judge? They don’t want the truth; they want to hide evidence
.

Sure enough, the defense flatly rejected my proposal. That figured. What surprised the hell out of me was the subsequent ruling from Ito. He granted the defense’s ridiculous request: 10 percent, he decreed, would be “available to the defense for their own testing.”

I leaned over to Lisa Kahn, the deputy who was handling DNA for our side, and whispered, “Did he say what I think he said?”

Lisa just shook her head in disbelief.

“Your Honor.” I jumped up, interrupting Ito in midsentence. “May I ask the court to take some further evidence?”

Ito fixed me with an icy glare.

“I think that perhaps defense counsel has misled the court as to the nature of the testing that is going to be performed. You’re depriving us of ever conducting the poly-marker test completely by giving that ten percent to the defense… . You are taking evidence out of our hands forever.”

Ito seemed embarrassed and angry. I’d put him on the spot. On national TV no less. He must have realized that he could not safely ignore my objection. What if I was right? What if this screwy order wound up trashing all the blood evidence? So he ordered a hearing during which experts from both sides would testify as to how much evidence we had and what we could afford to give up.

I’ve wondered over and over again if I should have taken him on so boldly so early in the game. But every time I replay this scene in my mind, I come to the same conclusion. No good attorney would sit by and watch a judge throw away evidence. Meanwhile, the message was clear—Lance Ito lacked good judgment. If he’d strayed afield on such an obvious no-brainer, what could we expect on the complicated rulings?

We’d soon find out.

The defense had committed what I considered a serious tactical blunder by challenging the warrantless search during the preliminary hearing. Under California law, with rare exception, you are entitled to challenge a search or warrant only once. Shapiro and Gerald Uelmen had taken their shot before Judge Kennedy-Powell during the prelim, and she’d denied their motion. But now the defense wanted to mount a new assault upon that search in Superior Court.

Their grounds? “New evidence” had come to light involving police misconduct. They petitioned Ito to reopen debate on the warrantless search. He wasn’t, apparently, impressed with their showing and denied the motion. The defense then attacked the warrant, saying it was faulty and misleading.

In order to make any headway here, the defense would have to show that the warrant misstated or omitted crucial facts and that an accurate version, if corrected, wouldn’t have shown probable cause. And they
must
file a declaration itemizing those things that they considered errors.

In anticipation of this motion, I had put fellow D.A. Cheri Lewis to work on a set of tight, logical arguments showing how anyone could have made these mistakes under similar circumstances. The mistakes were, in legal terms, “merely negligent.” This phrase sounds more ominous than it is. It’s essentially an “oops”: mistakes anyone could make. They were not “reckless,” which means the cop knew or should have known what the truth was, but put down something else.

Cheri and I marched into court on September 21 loaded for bear. To our amazement we discovered that the defense team had not even produced a declaration listing the errors. Any judge with his eye on the ball would have admonished them for this omission and then ordered them home to write a proper motion. But not Ito.

And so we listened to Gerald Uelmen, former dean at Santa Clara University School of Law and one of the most boring speakers on earth, drone on for hour upon excruciating hour, before he got to his point: Phil’s claim that there had been “human” blood on the Bronco door was so devastatingly reckless that he’d misled a magistrate into granting the warrant.

Huh? You mean finding a bloody glove matching the one left at the crime scene wouldn’t be enough?

Uelmen concluded on a bit of tortured logic: getting a search warrant must have meant the cops considered Simpson a suspect, right? So why didn’t they arrest him when he got back to Rockingham on the thirteenth?

I wanted to stand up and concede the point.
You know, Gerry, you’re right. They should have arrested him right then and there, but those nasty old conspirators let him walk right out the door. Phil Vannatter lied all over the warrant just so he could nail O.J
. . . .
and then what does he do? Lets him slip right through his fingers. Yeah, I get it
.

Far from making a persuasive argument, Uelmen had only underscored the cops’ innocent intentions.

In the end, Lance upheld the warrant. He really had no choice. He, like Judge Kennedy-Powell before him, had seen that the cops, acting under extreme stress in emergency circumstances, had performed imperfectly but properly. And yet Lance could not resist a gratuitous slap. He could not, he said, make a finding that Phil’s actions were “merely negligent.” Instead, he termed them “at least reckless.”

Even as I think back upon this now, it makes my blood boil. This episode was, for me, an education in the ways of Lance Ito. Lance, I was beginning to see, was so indecisive, so fearful generally of the “big guns” at the defense table, that he didn’t dare give us a decision without handing the defense something in return. Split the baby. Apologies to Solomon, it was Ito’s Law. In this instance, the cost of appeasement was high: a cop’s good name.

Throughout August and September, and into the early part of October 1994, prosecution and defense continued to wrangle over blood evidence. The defense claimed we’d intentionally delayed sending about two dozen blood samples from Simpson’s home and Bronco off for DNA testing. They claimed we were trying to buy time. That was ridiculous. If you measured our progress by any normal pretrial schedule, we were proceeding at the goddamned speed of light. The amount of evidence we’d managed to pull together and submit to date was staggering. But the labs had their own backlogs to deal with. Ito just didn’t get this. He felt somehow that the world should shut down for the Simpson case. The defense had dropped its request for a portion of our samples. This, however, only complicated matters because we had been ordered by the bench to have the testing conducted only at those times when the defense’s own expert, Dr. Blake, could be present. It had turned into a scheduling nightmare.