NEWS ANALYSIS : ‘Sound Ruling’ Will Not Rule Out Controversy

When Judge Lance A. Ito got his chance to play Solomon, he too ultimately did not split the baby.

His carefully worded 10-page decision on the so-called Fuhrman tapes handed the evidentiary infant intact to the prosecution in O.J. Simpson’s double murder trial, and left the defense with little but the baby’s plaintive wail.

The biblical king’s decision has become synonymous with justice, but Ito’s ruling undoubtedly will become a synonym for controversy.

In his decision Thursday, Ito ruled that jurors will hear only the two most innocuous passages in which former LAPD Detective Mark Fuhrman uses racial epithets during interviews with an aspiring screenwriter. One segment is on tape, the other appears only in transcript form. Beyond that, Ito said he will allow Fuhrman’s interviewer on the tapes--film professor Laura Hart McKinny--to testify to the number of epithets she recorded, 41.

Perhaps more significant, Ito signaled his skepticism concerning defense allegations that Fuhrman may have planted a bloody glove on the grounds of the former football star’s Brentwood estate. The defense contention, Ito wrote, “is a theory without factual support.”

For that reason, Ito ruled that the jury will not hear any of the 18 passages in which Fuhrman graphically describes police brutality and fabricating evidence because the defense’s theory “fails to support the admissibility of these incidents of alleged misconduct as prior bad acts or evidence of custom or habit.” The other 39 anecdotes in which Fuhrman employs racial epithets Ito found too inflammatory to place before the jurors.

Legal analysts generally agreed that Ito’s ruling is likely to withstand any immediate defense appeal.

“It’s a sound ruling,” said Loyola Law professor Laurie Levenson. “Ito was very careful. He knows the bounds of his discretion. He gave the defense enough to satisfy O.J. Simpson’s constitutional right to confront witnesses against him. But in areas where Judge Ito had the discretion to prevent this case from becoming the trial of Mark Fuhrman, he exercised that discretion to limit admissibility of the excerpts. I would not expect an appellate court to reverse this ruling--either at this stage or if there is a conviction.”

Similarly, there was general consensus among legal experts on what UCLA law professor Peter Arenella called the ruling’s broader implication.

“Ito’s finding is critical because he says that the defense’s offer of proof on the tapes and the current state of the evidentiary record has not reached the minimal threshold necessary to justify any inquiry into a planting of evidence theory. Judge Ito has concluded that the prosecution was right all along. He has found the defense has not met that threshold.”

*

Beyond those issues, reaction among lawyers tended to break along the aisle that divides every criminal court: Former prosecutors applauded Ito, while defense attorneys expressed various degrees of outrage.

“It is an excellent ruling, well-crafted and carefully worded,” said former Los Angeles County Dist. Atty. Robert Philibosian. “It follows the law and in all these respects is typical of Judge Ito. He has left the defense an opening, assuming that they offer sufficient evidence to revisit the issue of Fuhrman’s alleged misconduct. But he has made it clear that there must be a direct and substantial connection, not mere supposition and speculation. Again, typical Ito,” said Philibosian, who has known the judge for more than a decade.

But defense attorney Marcia Morrissey called Ito’s decision a “crushing blow to the defense and a significant gift to the prosecution. Fuhrman’s admitted misconduct, including his willingness to commit perjury and to manufacture evidence against African Americans in combination with his discussion of the LAPD’s code of silence--which is actually a web of lies--is evidence the jury deserves to hear.

“It is unfortunate that Judge Ito believes jurors are incapable of evaluating the vile practices Fuhrman describes in as dispassionate a manner as they would any other evidence. Why is this any more prejudicial than the graphic autopsy photos the prosecution was allowed to show the jury?

“The judge says the defense has not proffered any more than a theory concerning planted evidence, “ Morrissey added. “But what Fuhrman’s taped comments incontrovertibly establish is the existence of a code of silence that enshrouds police misconduct. Given that code, how is the defense ever going to be able to present the kind of crystalline link Ito is demanding? The answer is never. This is not a level playing field.”

Harvard Law professor Charles J. Ogletree said Ito “has, in effect, prevented the defense from shifting the focus from forensic evidence to Mark Fuhrman and will allow the government to continue to argue that Fuhrman may be racist but the evidence he seized and the testimony he presented is credible. From the defense point of view, the court has in effect lacerated some very compelling shocking and racist demagoguery by a crucial witness for the government.”

Veteran civil rights attorney John Burris said the decision on the tapes was not a total loss for the defense, which still has “a chance to show Fuhrman was a huge liar and a huge bigot. They’re still better off than they were before they found the tapes.”

But, he said, Ito “worked extraordinarily hard not to hurt the prosecution. He gave the defense only the bare minimum about the racial slurs. Ito refused to give the defense its cornerstone--allegations of covering for other officers and planting evidence. So Fuhrman’s past will not taint the other officers in this case.”

*

Defense attorney Harland W. Braun said Ito’s background biased his decision. “I think this ruling is the result of the fact that Ito has only prosecuted people, not defended them,” he said. “Ito can’t understand what a defense lawyer does and how you raise a reasonable doubt. His is really a law enforcement point of view. Here you have a crack in the government’s armor--a man speaking in his own voice about how he can fabricate evidence and a judge says this will confuse the jury. This won’t confuse the jury; they’ll simply be informed that Fuhrman is capable of fabricating evidence.

“Ito views Fuhrman as an aberration who could jeopardize a murder conviction, whereas Johnnie Cochran views Fuhrman as an exposed example of police practices in Los Angeles,” Braun said. “This is an example of the way the judiciary is an accomplice to police perjury; they look the other way when it occurs in their court. And when a defendant comes up with tapes of an officer admitting lying and fabricating it’s all inadmissible.”

But former Dist. Atty. Philibosian argued that the manner in which Ito reached his decision demonstrated the judge’s sensitivity to the impact his ruling might have outside the courtroom: “I don’t think the African American community will have a problem with what is admitted or not admitted in this trial,” Philibosian said. “What is at issue--not only for the African American community, but also for the entire community of Los Angeles--is addressing the type of conduct in which Detective Fuhrman purports to have engaged. That needs to happen, but not in this trial. The judge’s courage in allowing the tapes to be heard publicly permits that larger inquiry.”

But where Philibosian saw Solomonic wisdom, Ogletree saw gross insensitivity.

“Particularly in light of the history of the city and that judicial system, this ruling will make a lasting negative contribution to the entire history of race relations in Los Angeles County,” he said.