Sloppiness Does Miniseries Credibility Damage

Although I took exception with the FX miniseries People vs. O.J. Simpson perpetuation of the mischaracterization of Simpson trial judge, Lance Ito, the creators and cast of the drama got a lot right.

Sarah Paulson absolutely nailed it as Marcia Clark, Sterling K. Brown was certainly a believable Christopher Darden. and Joseph Siravo was credible as Fred Goldman. The rest of the cast, except for Kenneth Choi’s voice in his role as Ito, might as well have been playing characters in some unrelated production.

The story line and conflict, also, are fairly accurate so far as what happened in the courtroom. I don’t know about what went on in any private conversations, except those in Ito’s chambers at which I was present. What bugs me, aside from the misrepresentation of Ito, is so much that wasn’t accurate out of sheer sloppiness that was easily avoidable.

It’s unlikely that I’ll hit everything here, but I can at least offer some examples. A couple of observations I made in previous posts on this blog.

One was early on in a scene in which Marcia Clark was standing on the balcony outside the District Attorney’s office in the Criminal Courts Building. That balcony was only a few floors up, probably the third of fourth floor. The District Attorney’s Office was, and still is, on the 18th floor, one floor from the top of the building.

Another was a completely fabricated meeting Ito purportedly had in his chambers with former movie producer-turned author Dominick Dunne. In that scene Ito is depicted pulling open a desk drawer, taking out an autographed picture TV personality Arsenio Hall had sent the judge and showing it to Dunne as if Ito thought it was some terrific get or coveted souvenir.

Rather than just sloppy, that scene had to be a deliberate fantasy. That’s because the miniseries was based on a book published by CNN commentator and writer Jeffery Toobin. Rather than Dunne, it was Toobin to whom Ito showed a photo of Hall. Toobin didn’t forget about that meeting or just misremembered that it was Dunne to whom Ito showed the picture. Toobin wrote about it in his book — sort of.

Here is my account, taken from my notes taken that day and an audio journal entry recorded that evening:

“Like many of his colleagues, Toobin clambered to meet Ito. Ito said no.

‘He’s a month behind the time,’ Ito said in reply to one request in mid-September of 1994. ‘He’s too late.’^[i]

But Toobin persisted.^[ii]

‘Just a few minutes with the judge,’ he pleaded on another occasion. ‘Just to say hello, to introduce myself and, as a lawyer, shake the judge’s hand.’

In February Ito finally relented, but said to bring him in at the end of the lunch break so he could limit his time with him. As I escorted Toobin to Ito’s chambers, I delivered my spiel that everything, once he crossed the threshold, was off the record. As usual, all manner of files, documents, mementos and other paraphernalia cluttered Ito’s chambers. As Toobin observed the surroundings, Ito showed him what he thought was an example of how crazily things had gotten with public interest in the trial. It was a note television personality Arsenio Hall had sent him in which he compared Ito’s job to President Bill Clinton’s, saying that Clinton has the second hardest job and that Ito had the hardest.^[iii] With a shake of his head, Ito said he found it strange that people, even celebrities, apparently wanting to be part of or to somehow relate personally with the trial, would send the court notes and photographs and souvenirs.

‘You would think these people would have something better to do,’ he said.^[iv]

But that’s not how Toobin told it. Nearly a year after the trial, Toobin hit the talk-show circuit to promote his book.^[v] In recounting his meeting with Ito, he said the judge wanted to meet him and had ‘summoned’ him for a visit in chambers. Toobin’s tale was not only unethical because he violated the off-the-record condition, he reshaped it, apparently to support his characterization of Ito as behaving like ‘just another celebrity-crazed resident of Los Angeles’ and having ‘starry eyes.’^[vi] Ito’s point in showing Toobin the Arsenio Hall note was to underscore how obsessed people had become with the trial. But that obviously wasn’t Toobin’s impression or his memory of how the incident played out.”

Although scenes in the courthouse and trial courtroom appeared to be shot in the actual building and courtroom, Ito’s chambers during the trial were not. In fact, Toobin could have made sure the chambers were a close, if not exact, replication of that office, since he had been in that office. Why he didn’t is a mystery, but it was just all wrong.

Again, despite the courtroom looking like an actual Criminal Courts Building courtroom, the clock and the lack of them, were wrong. The clock in Ito’s courtroom was the basic vanilla style clock found in most schools and other public buildings of that era, similar to this: 

I say “lack of them”, because in the early days of the proceedings, Ito ordered several more clocks that looked like this and put them on the courtroom walls as a hint to habitually tardy lawyers on the case that court began at 9 a.m. When that didn’t work, he started bringing hourglasses from a collection he had in his chambers into the courtroom, which of course made headlines.

Another inaccuracy was Judge Ito banging a gavel when he called a recess. That never happened. Ito didn’t use a gavel in his courtroom. He didn’t even have a gavel on the bench.

And what was that with Cuba Gooding Jr. as Simpson shaving in jail. Shaving, with a safety razor. A safety razor, which gives a pretty close shave. Then he shows up in court with had to be at least a two-day stubble on his face.

The make up of the jury on verdict day was nowhere close to the real jury. The real consisted of ten women and two men. The TV show has at least four men. Racially, the real jury was nine blacks, two whites and one Hispanic. The TV jury that could be seen on camera included four whites.

Further, when the trial judge dismissed the jurors post verdict, he addressed them as ladies and gentlemen of the jury and alternates. At that point in the trial, there were no alternates. The twelve alternates that began with the twelve regular jurors had become regular jurors during the course of the trial as one-by-one, the regular jurors were all dismissed.

Trivial errors or inaccuracies that few people would know to notice or care about. But if the miniseries producers didn’t care enough to get those kind of details right, how can they have credibility about anything else?

 

 

 

 

 

 

 

[i].  Author’s notes, September 19, 1994.

 ^[ii] Id., January 25, February 3, 1995.

[iii].  Id, February 3, 1995.

[iv].  Id, February 8, 1995.

[v].   Jeffrey Toobin, “Today,” September 10, 1996, http://www.radicalmedia.com/work/today/trans/1996/sep/960910.txt; Francis X. Archibald, “Toobin critiques O. J. Simpson trial,” The State (Columbia, SC), September 29, 1996.

[vi].   Jeffrey Toobin, The Run of His Life (New York: Random House, 1996), 229

Marcia, Marcia, Marcia

It’s true that Marcia Clark got a lot of grief during the Simpson trial, much of it ridiculous, so far as I was concerned. Her hairdo, her attire, shade of her lipstick. Even though I thought all the coverage of her appearance was vapid non-news didn’t mean I had a favorable opinion of her or felt sorry for her.

She struck me as arrogant, haughty, overly confident and inappropriately flirtatious toward defense attorney Johnnie Cochran — when she wasn’t fighting with him.

My sole knowledge of her was from my courtroom vantage point. What I saw each day was a woman for whom the trial judge had agreed to start court a half-hour later than he wanted to because of her child-care situation, who, as I wrote in Anatomy of a Trial, “habitually arrived later than the agreed-upon later time. And her late entrances, at times with an entire courtroom full of people—and, indeed, the entire television-viewing world—sitting and waiting, were just that. Entrances.

“Rather than trying to be unobtrusive or quiet, she would shove the courtroom door open and prance in and down the tiled aisle with the clack of her spike-heeled pumps reverberating loudly in the otherwise silent surroundings. She would push through the little swinging gates in the rail and leave them flapping behind her as she crossed the courtroom well with the eyes of spectators, defendant, fellow attorneys, bailiffs, clerk, court reporter, judge and jurors following until she finally arrived, with no hint of apology in her body language, at her place at the counsel table, barely an arm’s reach from the jury box.”

I also thought she misjudged the jury.

I had no direct communication with her and knew only what was reported about her, which might have been no more accurate than representations many members of the media made about the trial judge, Lance Ito. That said, it was my understanding that Clark believed she had connected with the jurors and that they thought the prosecution was presenting a convincing cased against Simpson.

In my book, I described my perception of the jury’s reaction to her:

“The African-American women sitting in the jury seats no doubt understood child-care problems, but more likely from a different perspective than an affluent attorney. I detected a growing disdain among the jurors for Clark’s chronic tardiness—in itself a sign of disrespect for not only for them but for the entire court and its business—the haughty demeanor she projected, and inexplicable schizophrenic alternating hostility and flirtatious posturing toward defense attorney Cochran. The black female jurors’ body language included arms crossed over chests, heads lowered with chins tucked into necks and an almost imperceptible drawing back into their seats. Certainly, none of that was lost on arguably one of the defense team’s most perceptive and incisive members in the courtroom.”

An article I read recently, made me reconsider my perception. Was what I had seen as haughtiness really her way of dealing with the stupid media stories about her appearance. Was what I saw as her nose in the air really her holding her head high to show that she was above the mindless coverage and focusing on the serious business of prosecuting a man accused of committing a double murder.

Might what seemed to me to be vamping into the courtroom, unapologetic to anyone about anything have been her way of dealing with feeling self-conscious and trying to ignore the media’s superficial tripe?

In the article, “‘The People v. O.J. Simpson’ star Sarah Paulson: It’s ‘mind-boggling’ that nobody rallied around Marcia Clark“, Paulson, who plays Clark in the miniseries is quoted as saying, “She was collectively abandoned by her people. She didn’t really have a lot of support from either other female attorneys or just women in general — and that, I think, is a great shame,” she continued. “I don’t know how she did it. I don’t know how she got up in the morning.”

Whether or not that was the case, I don’t know. But taking into consideration the ridiculous media coverage of her along with the marital and child-custody conflict going on in her personal life, which I don’t think was exaggerated in the miniseries, has made me rethink my assumption about her demeanor during the trial. How would I have acted entering a courtroom to face, not only the need to make my case, my responsibility to the people of the state I was representing, the murder victims’ families and the very people who were critiquing my clothing and hair  as if that were important news, or news at all? I wonder.

A Fact that Just Isn’t

People are emerging from the woodwork all over the place getting their “memories” of the 1995 O.J. Simpson murder trial published in all manner of places.

Such is the case with The Hollywood Reporter “guest columnist” Craig Tomashoff. In a piece with the headline ‘People v. O.J. Simpson’: My Date With Juror No. 7 (Guest Column), Tomashoff, who says he was working as a correspondent in People magazine’s Los Angeles bureau in the mid-1990s,  writes:

“A dozen of us were given a special bit of information we had to keep to ourselves: the name and address of one of the jurors.

“The fact that we had these details, courtesy of the Los Angeles County Superior Court, was proof of how the media had taken more control of the case than the attorneys; it didn’t fill me with a lot of faith in our judicial system that such private information was so readily available.”

I can’t attest to the veracity of Mr. Tomashoff’s claim of chasing Simpson juror Brenda Moran, or conversations with Moran’s relatives, but one of his assertions I know that is absolutely false is that he or any other member of the media got the name and/or address of any of the jurors “Courtesy of the Los Angeles Superior Court” — at least not in any straightforward means.

The jurors’ names were never made public by the Court. Nor were they given to members of the media. Neither were their addresses, employers or other personal information.

It is true that the news media did obtain the names, addresses and who their employers were, but that was from private investigators one or more news organizations hired to ferret out that information.

To their credit, even though most, if not all of the media covering the trial had that information well into the trial, none identified them in any of their reports until after the trial.

It is not surprising that People magazine and other print and broadcast/cable outlets knew the jurors’ names and home addresses had staffers staking out the jurors’ homes. That was well known by Court officials as jurors were dismissed for various reasons during the trial. (In fact, all 12 jurors ended up being dismissed as the trial progressed and were replaced by the 12 alternate jurors who sat in the jury box and were sequestered with the primary jurors throughout the trial. One of the trial judge’s concerns is that juror misconduct or illness might cause an alternate who had become a regular juror to be excused, which could have resulted in a mistrial.)

It could have been that once People and other media organizations learned the jurors’ names and who their employers were, they contacted the employers, in Moran’s case that could have been Human Resources or the department where she worked, to confirm that she, indeed, was a court employee, but at no time did the Court itself officially release the names and/or other information about the jurors on that case.

Prior to the Simpson trial, court policy was to provide names, only, of the jurors, that was changed, however, following a string of high profile cases in which jurors were hounded by the media who wanted to interview them post verdict. Because of juror complaints claiming media harassment, the Court changed its policy, allowing jurors to indicate that they did not want their names to be made public. The Court also began to make juries on some criminal cases, such as the Simpson trial, anonymous, keeping their names confidential post-trial.

http://www.hollywoodreporter.com/live-feed/people-v-oj-interview-juror-877435

Reagan Library in the News Now and Then

Reagan Library.

Do jurors want to visit?

First Lady turned down.

9/18/95

Can you imagine,  the O.J. Simpson trial jurors nixed Nancy Reagan’s invitation to tour the Reagan Library, or maybe it was the L.A. County Sheriff’s Office, which was charged with the care and feeding of the jury. Maybe because the Library location of Simi Valley, was too far away — about 45 miles — or too… I don’t know. I can’t say too much, since I lived there. In Simi Valley, not at the Library.

And here it is nearly 20 years later, and the Reagan Library is making headlines. This time as the venue for the second Republican Presidential Primary Debate, for an election that is more than a year away.

Maybe that’s the connection. Media hype. And reality show star.

 

Another Juror Issue

Property for rent.

129 needs income.

Wrong color to help?

9/12/95

Sequestration kept  juror 129, a white woman seen as pro-prosecution, from renting her property, on which she depends for income. The defense objected to Judge Lance Ito seeking some way to assist her.

Alternates Dwindle to a Precious Few

247

The juror has fallen ill.

Dream team in a spin.

7/26/95

With the jury losing members, requiring alternates to fill the empty spots, the defense attorneys worried about a mistrial and Simpson having to face a new trial, with a new jury that might not be as favorable as they though the  current one would be.

Jurors Dropping Like Flies

A note’s the question.

Ito tossed and turned all night.

353’s gone.

5/26/95

 

One of Ito’s big worries was that even though 12 alternate jurors were selected as back up to the primary 12 who made up the jury, Ito was concerned that at the rate regular jurors were being dismissed — this one, 353, for slipping a note to a fellow juror alerting her to what Ito was questioning them about one by one in his chambers — that he would run out of alternates which could through the case in mistrial.

What Were the Odds

Jurors can get bored.

Take them out to the ball game.

He’s there.  Caught the foul.

5/13/95

When the jury is taken to a Dodger game, one juror catches a foul ball, which he brings to court the next day.

An Exclusive Show

It’s for the jury.

A Star Center performance

Jay Leno was there.

4/28/95

Jay Leno invited the sequestered jurors to attend a performance of his “Tonight Show” in Burbank, but when he couldn’t guarantee that none of them would be in shots when cameras swept the the audience, he offered to stage a private performance, complete with the show’s band,  where ever the court chose. It turned out to be at the Sheriff Department’s training facility, called the Los Angeles County Star Center.

I attended show, It felt almost surreal to see Leno and his band leader Kevin Eubanks almost within arms’ reach and watching them put on the same type of performance that I had only, to that point, seen on TV.

Part of my participation in arranging for the performance was to contact Leno’s office to provide information about conditions Judge Ito required before he would allow the show to take place. Instead of talking to some staff member,to my surprise, I was asked to hold for ‘Jay.” Sure enough, Leno came on the line. We talked, not only that time, but later when he called back for clarification about some detail, which I can’t recall, and apparently didn’t note in either my written or my recorded journals.

 

Jury Inquest in a Haiku Three-Fer

Juror inquest starts.

Each one is to be questioned.

Is there misconduct?

4/17/95

 Who should listen in —

Allred and the defendant?

Juror matter closed.

4/18/95

Who will get to read

Transcripts of the inquiry?

Public’s right to know?

4/19/95

Early in the trial, Judge, Lance Ito said media issues consumed a third of his time. Within a couple of months after opening statements, so much stuff was going on with jurors, I noted in Anatomy of a Trial that “If media issues consumed a third of Ito’s time during the trial, jury problems took up another huge chunk.

“From secret note-taking for book deals to personality clashes, rebellions, illnesses, and psychological disorders, hardly a day went by from the time the jury was sequestered, on January 11, 1995, until it delivered the verdicts nearly nine moths later that Ito didn’t hold a closed session to solve one knotty juror problem or another. Jury issues became so squirrely, Ito wondered if what he called “stealth jurors” had made it onto the panel and were trying to sabotage the case.

“‘Every day there would be three things I’d never seen before in my judicial career,’ he said years after the trial. ‘I consulted with other judges and they hadn’t either.’,” I wrote in the opening paragraphs of the chapter on the jury and juror issues.

The reference to Allred in the 4/18/95 haiku was Gloria Allred, who was representing one or more of the murder victims’ relatives, who frequently surfaced in the wings of the trial. So many people lobbied to sit in on Ito’s interviews with jurors, I can’t even remember of defendant Simpson was one of them.