The Shame Of Lance
Barnes, Ito Fred
The Shame of Lance Ito by Fred Barnes In Washington, D.C., last August, a robber held up a McDonald's near Capitol Hill and killed three employees. A fourth was saved only because the robber's gun...
...I blame the judge more than I blame the defense lawyers," says Floyd Abrams, the prominent New York lawyer and First Amendment expert...
...Simpson trial in Los Angeles...
...It was powerful stuff, a baldfaced pitch for the jury to ignore Simpson's guilt or innocence and punish the police for racism...
...Nine out of 10 judges would not have permitted the appeal to jury nullification," says Cacheris...
...In L.A., Judge Lance Ito went along complaisantly with the schemes and ploys of Johnnie Cochran and the rest of the O.J...
...If you don't speak out, if you don't stand up, if you don't do what's right, this kind of conduct will continue on forever...
...But if the judge found defense lawyers had nothing but an unproven theory, they wouldn't be allowed to pursue the matter...
...They're out of control...
...Despite this compelling evidence, plus an eyewitness, the attorney for the suspect requested that he be released to the custody of a third party...
...Cochran "never offered any evidence [of this] at the beginning, the middle, or the end" of the trial, notes Plato Cacheris, the Washington attorney who defended CIA spy Aldrich Ames and Fawn Hall...
...In fact, several jury members said they believed evidence had been planted...
...If the judge accepted their argument, defense lawyers would be permitted to ask questions about, among other things, the motive of police for planting evidence...
...I believe that's what swayed the jury," says former federal prosecutor John Stein...
...The jurors must "continue to fight to expose hate and genocidal racism and these tendencies," Cochran said...
...Ito didn't bother with this procedure...
...Cochran provided no basis for this, yet Ito permitted him to pepper a police detective with hypothetical questions about it for two days-as the jury listened to every word...
...The prosecution didn't know what it was in for...
...Truth and the safety of the community-those are ignored, totally...
...Under normal procedure, a judge would have required a "proffer" from defense attorneys...
...Ito also rolled over for Simpson's lawyers on the preposterous claim that Nicole Brown Simpson and Ron Goldman might have been killed by Colombian drug dealers angry at Nicole's druggie friend, Faye Resnick, for not paying her debts...
...Many of today's defense lawyers, in routine cases or big ones, are willing to make any argument, no matter how shameless or outrageous, on behalf of their clients...
...But what Cochran was able to show was that Fuhrman is a racist, and thus had a motive for framing Simpson...
...Most judges would not have permitted this," says Cacheris...
...defense team...
...There's also a significant difference between the two cases...
...Fuhrman's racism would have been out of bounds...
...As it turned out, the prosecution may have lost the case even before any testimony was heard...
...Neither did...
...The ultimate blame falls on Judge Ito...
...At the outset, Ito noted his wife is a police officer and said he'd recuse himself if either side wished...
...Start with the question of evidence allegedly planted by detective Mark Fuhrman or other LAPD officers...
...The prosecution never recovered...
...Hours later, police arrested a suspect and found a money wrapper from the McDonald's safe in his pants pocket...
...A fourth was saved only because the robber's gun was empty when he aimed at her and twice pulled the trigger...
...Finally, there was Cochran's summation, in which he urged jurors to use the case not to judge Simpson but to send a message that they wouldn't tolerate racism...
...Ito said Cochran had failed to produce any information that such a thing might have happened...
...But Ito did...
...He simply let Simpson's lawyers belabor the issue of planted evidence without any proffer, without any showing of a factual basis...
...Cochran was allowed to pursue that matter relentlessly, though he hadn't offered a single shred of proof indicating that anything-a glove, maybe, or a sock-might have been planted...
...The assailant fled in the car of one of the victims...
...There's a parallel here with the O.J...
...There's a "paucity of information . . . and evidence," the lawyer said...
...He likened Fuhrman to Hitler...
...Besides, there was only one eyewitness-the employee who survived-and she didn't see the three killings, only heard them...
...They had no evidence...
...And that's what doomed the prosecution of Simpson...
...Lawyers tend to do what they can get away with...
...And the repetition of this shouldn't have been allowed...
...Prosecutor Marcia Clark called the theory "another sinister innuendo they throw up that has absolutely no basis in fact...
...This undercut the entire prosecution case...
...Ito allowed Cochran to put Kathleen Bell on the stand to testify about incriminating comments she'd heard Fuhrman make about concocting charges against blacks and wanting to kill all of them...
...In Washington, the judge coolly brushed aside the defense lawyer's argument and ordered the defendant held without bond...
...In it, they would have laid out their grounds, including some factual basis, for believing evidence was fabricated...
...But Ito allowed it, and thus the jury heard an alternative theory of the crime that exonerated Simpson...
...Oddly, Ito ruled separately that the defense could not play a taped conversation with Fuhrman in which he had confided to a screenwriter that he'd actually planted evidence in other cases...
...Those questions went too far," says Abrams...
Vol. 1 • October 1995 • No. 5
