Tag Archives: judicial ethics

Hell Hath No Fury Like a Woman Loser

Former Simpson prosecutor Marcia Clark, with guns blazing, is rising from the ashes of her humiliating defeat with the 1995 acquittal of O.J. Simpson in the murder of his ex-wife, Nicole Brown, and her friend, Ronald Goldman. Clark’s resurgence is due, in part, to a wave of sympathetic publicity with a recent airing of an FX multi-part melodrama.

She has narrowed the focus of her shotgun spray of blame that riddled her 20-year-old multi-million-dollar co-written post-trial memoir and taken aim on just the trial judge.

Although never camera or reporter-notebook shy in the years since penning that memoir, Clark is capitalizing on her newfound fame by targeting Los Angeles Superior Court Judge Lance Ito, who retired last year, with a revisionist trial  history extraordinaire.

The first fabrication that hit my radar was an interview a few weeks ago in which Clark claimed that Ito was the one who came up with the idea for Simpson to try on the so-called bloody gloves that led to defense attorney Johnnie Cochran’s now-infamous line, “if it doesn’t fit, you must acquit.”

Despite being in the courtroom and behind the scenes every day, meeting with Ito daily–sometime several times a day, keeping up with the media coverage and reading, hearing and writing a lot about the case in the years since, I had never heard anything about Ito coming up with the idea to have Simpson try on the gloves.

Rather than rely solely on my memory, although I would have  had to be deep in the clutches of dementia to have forgotten something that significant, I checked with a reporter who attended every day of the trial and probably had the best access to all of the lawyers in that case, and, eventually to Simpson himself.

“I never heard any such thing and think it’s an effort to rewrite history,” the reporter said.

I also checked with one of Ito’s law interns who worked in his chambers and was privy to every aspect of the case. Like the reporter, the law intern knew about or had heard anything like Clark’s assertion.

“Uughh,” the law intern, who is now a practicing attorney with her own firm, wrote in reply to my question. “I was there that day and I have no memory of the gloves idea coming from Judge Ito. As usual he had the job of ruling on their asinine ideas. She [Clark] continues to disappoint as a female attorney role model. She really has no moral compass.”

I’m pretty sure I know about the ethics of a judge presiding over a criminal case suggesting to lawyers on either side how they should present evidence. For confirmation, I contacted a judge who sat on the LA court bench during years I worked there, and who has since retired and is currently a private judge.

Such a comment would be very inappropriate for a judge to make, the retired judge said. “Even if it takes the form of ‘why don’t you’ do this or that, it would look like the judge was trying to assist that side. That is clearly unethical.”

To have done so without defense attorneys present would constitute ex parte communication, which is, without a doubt, judicial misconduct.

Given the scrutiny that trial, the judge and the parties got, it’s a sure bet that any such suggestion would have been found out and the judge would have been subject to reprimand, at the very least. Plus, Ito was absolutely assiduous to make sure he did everything completely by the books to prevent a mistrial or be overturned on appeal, should Simpson be convicted.

In other words, Clark pulled that little gem of finger pointing from some orifice other than her mouth.

In another interview, this time on Late Night with Seth Meyers, she said she had never had a judge be so openly sexist as Judge Ito was.  Judge Ito is many things, but sexist isn’t one of them, to which, I dare say, females in his personal and professional life, will attest.

Clark is quoted in Monday’s New York Daily News describing Ito as “unprofessional” and criticized him for allowing the trial to be “turned into a circus” because he allowed it to be televised and for “his infatuation with the media.”

Ho boy.

First, at one point in a hearing on whether to allow cameras, Clark advocated for televising the trial.

“Allowing cameras to remain in the courtroom would give the public the opportunity to see what the evidence actually is and to hear the truth,” she told Ito during a November 7, 1994, hearing on whether or not to televise the trial. “The best way to refute unfounded rumors and wild speculative theories is to permit everyone to see and hear the evidence that is presented in court. … No matter how thorough and fair reporters are, their coverage cannot equal the evidence of witnessing a trial first hand.”

Second, although plenty of antics went on nonstop outside the courtroom and around the courthouse, there was no circus in the courtroom — plenty of video footage exists and the trial transcript proves that. However, Clark herself was one of the clowns Ito struggled to keep reined in.

Attorneys’ conduct so egregious, including that of Clark — in spades — that Ito, after repeatedly fining them, finally resorted to issuing a court order spelling out what they could and could not do — down to “no eye rolling.” I included the entire text of that order on pages 136-137 in my book, Anatomy of a Trial. Even then, he continued to have to fine them and threaten to hold them in contempt because they refused to behave. The amount in fines Ito levied against the Simpson trial attorneys — on both sides — exceeded that of any criminal trial in the state’s history at that time.

So far as being “infatuated with the media” is concerned, disappointment or even contempt for many of them would be more accurate as he witnessed their excesses and making him the brunt of their exaggerations and misrepresentations.

In that Daily News interview, Clark said, “He sits down for a six-part interview in the middle of the trial about his life. Who does this?”

What Clark is misremembering is (1)  Ito didn’t sit down for a six-part interview and (2) an interview he did do wasn’t in the middle of the trial.

Months before the Jan. 23, 1995, opening statements, a TV reporter asked to interview Ito in connection with the opening of an L.A. museum exhibit of the World War II Heart Mountain Japanese internment camp in Wyoming, which is where a man and woman who married and became Ito’s parents met. After long consideration and conferring with a number of people, he finally decided to do it, but only with the assurance that the subject would not be the Simpson case but would focus only on the exhibit and the issue of Japanese internment. He also insisted on several other conditions, including that the station not promote the interview in advance and would air it only once and that would be during an 11 p.m. newscast.

As described on page 25 of Anatomy of a Trial the station violated every condition, including buying full-page newspaper ads and splitting the interview into six parts, which aired in six consecutive broadcasts.

Then there was this in a June 14, 2016,   Chicago Tribune article:

“Clark said that while she was generally pleased with the FX series, it failed to capture how Ito was ‘entranced by his media moment’ and ‘the steady stream of celebrities coming in and out of chambers’ during the trial. Sometimes the celebs Ito had invited backstage demanded to meet her, too, she said.

“‘I’m actually trying a lawsuit … I don’t need to meet Jimmy Dean,” she said of one encounter with the crooner-turned-sausage king. “I mean, I love your sausage, sir!'”

Did celebrities show up at the trial? Yes, as more and more it became the place to be seen. Many were, themselves, members of the media. And yes, some did meet Ito in his chambers, although I would hardly describe it as a “steady stream.” And one, which became a disastrous fiasco, was entirely my doing,  which I have rued every since.

But Jesus, Jimmy Dean? I saw neither of them. Neither did I hear or know of any who even asked, much less demanded to meet Clark. I don’t know of any who thought she was worth their while. So maybe her bruised ego is prompting her to make such a claim now.

“This is disgusting,” the reporter I talked to about Clark’s glove claim said. “She is trying to sell her books and somehow find absolution for her inept performance 22 years ago. To attack Ito is beyond the pale.”

What does Ito have to say about all of this?

Nothing. Which is what he said during, and has continued to say since, the trial. At least not publicly, which is why Clark thinks she can say whatever she wants without consequence. Given that Ito has consistently refrained from speaking out against his critics, Clark can be pretty sure he won’t now.

While Clark and her ilk have capitalized on their fame from the trial over and over and in many forms and formats, Ito hasn’t. He hasn’t written a book or gone on the rubber-chicken circuit or hauled in huge speaking fees like Clark has and is continuing to do.

I’m pretty sure he won’t speak up this time either. Clark probably isn’t worth his while.


Does Grandchild-in-Common Create Conflict Perception?

A Milwaukee judge, in my opinion, has either a skewed view of or a blind eye to judicial rules that call for judges to avoid not only impropriety or partiality, but the appearance of impropriety or partiality.

A story headlined Judge, lawyer in John Spooner case have family ties  in the local newspaper yesterday reported that the son the judge presiding over the trial of a man, John Spooner, charged with murdering a teenage boy, Darius Simmons, is married to the defense attorney’s daughter. The son and daughter have a child, which means the judge and the defendant’s lawyer share a grandchild.

The news story says the judge, Jeffrey A. Wagner, has pictures of the child on display in his courthouse chambers and photos or online of Wagner and the lawyer, Franklyn Gimbel, who is his son’s father-in-law, socializing at a number of events.

The judge, however, sees no problem and the defense attorney, of course, doesn’t either. More surprising to me is the prosecution’s position.

Although the lead prosecutor in the case, Milwaukee County Assistant District Attorney Mark Williams, raised the issue “early on”, according to the newspaper story, he’s quoted as saying his office left the decision up to the judge as to whether he should step aside so another judge could take over the case.

Other judges and a judicial ethics expert quoted in the story took a dim view of the judge’s decision.

This debate became public in the wake of the George Zimmerman verdict, which, in fact, was cited as having an impact on Spooner’s trial.

Spooner is a white man and the teen he shot to death (not just allegedly or accused of, but did as there is video of him doing so) is a 13-year-old African-American boy. 

“A number of potential jurors for the trial — which will determine the fate of a Milwaukee senior citizen charged with fatally shooting his 13-year-old neighbor — said Monday they might have a hard time ignoring parallels to the Zimmerman case, and the reaction to the Florida jury’s decision,” a July 15 story said.

Although some might have thought the family ties and friendship between judge and lawyer would work in favor of the defense because the judge could not possibly be objective — however subconsciously — no matter how good his intentions might be.

But yesterday the defendant, John Spooner, was found guilty of first-degree intentional homicide, which would shoot down such arguments, right?

Perhaps, except that given the videotape, ironically from Spooner’s own security camera mounted to surveil the sidewalk in front of his house, and the eye witness testimony by the teenager’s mother who standing on the front porch of her house which is next door to Spooner’s, that verdict would not be surprising.

Yet, to come, however, was a second phase of the trial in which Spooner’s lawyer, Gimbel, was to argue that his 76-year-old client should be declared not guilty be reason of mental disease defect.

 That phase hit a bump a few hours ago, however, when Gimbel said Spooner was “mentally unfit to continue the insanity plea portion of the trial,” according to an update on the newspaper’s website.
Because of the, at least perceived, conflict of interest, it’s hard to see how the judge can avoid criticism no matter how he rules.

Judicial Ethics are Public’s Business

The Legal Newsline Legal Journal reports that the Wisconsin Supreme Court Justices are split over whether or not the Court’s judicial ethics code needs revising.

“Wis. SC justices torn over possible new recusal rules”


The fact that the justices are “torn” is not news. Neither is the revelation that some think things are just fine the way they are, thank you very much — never mind that some of the things a couple of them have done and said certainly makes them appear to be ethically challenged, or at least clueless.

It seems to me that those who don’t understand that “perception” can be as important as actual and see no need to update the code are evidence that it probably does need examining, discussing and possible revising. Just as those mentioned in this report who eschew transparency and say discussing and possibly changing the code shouldn’t occur in an open meeting, indicates that, indeed, it should. Why shouldn’t it be? Do the justices who prefer secrecy have something to hide, particularly when it comes to how they conduct the public’s business?