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.

Choi Gets Ito

Kenneth Choi as Los Angeles Superior Court Judge Lance Ito in The People vs. O.J. Simpson miniseries is totally unbelievable to me, unless I close my eyes.

Except for the black hair, rimless glasses and facial hair, Choi looks no more like Ito than I, a Caucasian, brown-haired woman, do.

But Choi does capture Ito’s voice. He also either researched something other than the popular media-created image of Ito — maybe he read my book! — or managed to otherwise understand the no-win situation that crashed down on Ito well enough to develop a fairly accurate sense of what the judge was up against in the Simpson trial.

I learned that from a recent article in The Hollywood Reporter.

“According to the actor, though Ito has received a lot of criticism for the O.J. Simpson case, he has tried to stay impartial. ‘I can’t criticize or be judgmental of the person I’m playing,’ he said. ‘I have to do my best to understand him and what he does. I personally think he had the weight of the world on his shoulders as this sort of ringmaster in this circus played out on such a huge scale.’

“Though Choi admitted that the pressure on Ito ‘absolutely’ affected some of his decisions, he also pointed out that Ito was known to be a ‘very good, very smart, very fair’ judge.

“Asked whether or not he thinks that Ito’s decision about the Mark Fuhrman tapes affected the verdict, Choi answered, ‘I don’t know that it affected the outcome.’

“‘The jury heard the two snippets from the tapes, and I think that was enough,’ he explained. ‘The damage was done.'”

I do know this: Choi did not come to his conclusions by talking to Ito.

 

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

Scenes from Fantasyland

The setting and the conversation were private. At least, in a TV show, they were, and to my knowledge, that’s the only place either happened.

On TV, former movie producer, turned author and Vanity Fair correspondent Dominick Dunne is sitting in Los Angeles Superior Court Judge Lance Ito’s chambers. Ito is telling Dunne that he is giving Dunne a coveted courtroom seat next to members of the murder victims’ families, then pulls an autographed photo of TV personality Arsenio Hall out of a desk drawer and rather giddily shows it to a rather nonplussed Dunne.

First, I was present in the courtroom (not Ito’s chambers) when the seat assignments were made, which was in January,before opening statements in the trial. A law intern and I drew names out of a bag.

Second, Arsenio Hall, or someone, did send Ito an autographed photo of Arsenio Hall. But…

1. that was long after the trial was underway, meaning, Dunne had been sitting in his assigned courtroom seat for weeks by that time,
2. Jeffrey Toobin, on whose book the TV miniseries currently showing on the FX channel is based, was in Ito’s chambers for a few minutes the day the picture did arrive in the mail. How that visit came about is described in Anatomy of a Trial, and in no way resembles what Jeffrey Toobin describes in his book.
3. Far from giddy or jazzed that Hall sent him the picture, Ito expressed near disgust. He didn’t have to pull it out of a desk drawer as if he were hiding or coveting it. Shortly before I escorted Toobin into Ito’s chambers (for a meeting Toobin had been begging for for weeks — “Just to say hello, to introduce myself and, as a lawyer, shake the judge’s hand.”), Ito had shown me the photo which had arrived in the mail that day and said, “Don’t these people have a life?” The context in which he said something similar to Toobin was in response to Toobin remarking about the attention the trial had gotten. The picture of Hall was laying on a table. Ito showed it and the note Hall had sent with it to Toobin and said something to the effect that he had been getting all kinds of stuff in the mail, then added. “You would think these people would have something better to do.” (A more detailed account of Toobin’s brief visit in Ito’s chambers is on page 64 of my book.)

Did Dunne meet privately with Ito in his chambers before the trial began? I don’t know. What I do know is that I generally acted as the liaison between media types, and that included Dunne, and the judge and accompanied them if they met with him. In another chapter of my book I tell about a meeting Dunne had with Ito that did happen, in which I was present.

But telling what people actually said and did and what their intentions were would not make nearly as great of a  story as fantasies or “dramatic license”.

‘People vs. OJS’ Flies into Fantasyland

I’m a few days behind in posting about the miniseries segment Tuesday because I was out of town and didn’t watch it until last night. There was so much that was sheer fantasy I’m going to take only one thing at a time.

The greatest flight of fancy was the courtroom scene in which Deputy District Attorney Bill Hodgman collapsed, supposedly because of a a heart attack, and being hauled out by paramedics.

Everyone who was in the courtroom during that trial knows such a thing never happened.

While it is true that Hodgman had a medical issue in the early stage of the trial that resulted in a brief hospitalization and that he was replaced as Marcia Clark’s co-counsel in prosecuting the state’s case, he presented no manifestation of that condition at any time while court was in session.

Even if such an event as Hodgman or anyone else collapsing in the courtroom and paramedics being called in had occurred, it is ludicrous to think that the judge wouldn’t have immediately cleared the courtroom until the person with the medical problem had been tended to and removed.

The tragedy is that viewers of this drama believe what they are seeing is fact. Taking dramatic license just doesn’t cut it and does terrible damage to people’s reputations and historical record.

Next, Dominick Dunne’s fantasy meeting in Ito’s chambers.

How Lucrative is This? TMZ Will Never Tell

So just now this shows up in the news?

Knife found BURIED on OJ Simpson estate sparks top secret investigation

Oh, “according to TMZ.”

So this knife has been around for years, but …

“According to TMZ the knife was actually handed in years ago but the officer it was given to was not on duty at the time – he was on the street in Brentwood doing security for a movie shoot.

“Despite taking the weapon off the construction worker the officer kept it for years without telling anyone.”

The officer kept it for years without telling anyone? Until the case is back in the news thanks to the drama in progress on FX, when this police officer decided he might get big bucks from TMZ, which, yes, does pay and sometimes pays big for tips that generate sensational headlines.

Sensationalized stories still make for great ratings, just like they did 21 years ago during the real “People of the State of California vs. Orenthal James Simpson.

The Wrong and the Right of OJS Episode 4

Most of what FX got wrong in the fourth installment of its People vs. O.J. Simpson miniseries was either minutia most people wouldn’t care about or reinforced misperceptions they already have, or even worse, created misperceptions that those who weren’t born then or were too young to have known about it.

First is the trial judge, Lance Ito’s glee or even giddiness upon learning that the Simpson case had been assigned to him. Just a few months before the murders Simpson would be accused of committing even happened, Ito spoke at a conference I also participated in, in which he said any judge who wanted a high-profile trial should have his head examined. Ito had past experience with trials like that and knew they created headaches no one would want. I had also had some experience in that arena with both the Rodney King-beating and the Menendez brothers-parricide trials.

Ito was much more astounded and flummoxed by the crazy media coverage than “star-struck.” He was a highly regarded jurist and probably one of the smartest individuals I’ve known. His flaw, so far as I’m concerned was his naiveté. He neither welcomed nor craved the media attention.

Of all the TV talk shows that Faye Resnick appeared on in connection with her rushed-to-print book, it was surprising that the miniseries producers chose Larry King Live for its production. When Ito learned that the book was to be released before the jury was seated, he instructed me to contact all the popular TV talk shows and ask to delay booking Resnick until he could sequester the jury. Larry King is the only talk show host who agreed to do so.

Otherwise, the niggling things that bothered me was the lousy casting of Ito’s bailiff, Guy Magnera. I look more like Magnera than the guy that played him in this show.

The preliminary hearing judge in the case was Kathleen Kennedy-Powell, an attractive middle-aged woman, not the old white guy who was cast in that role.

One would have thought that with all the attractive, leggy blonde actresses to chose from the show’s casting director would have had no problem finding one who looked credibly like the defense team’s jury consultant Jo-Ellan Dimitrius, instead of the gnome who got the part.

On the plus side, Joseph Siravo is a dead-ringer in both looks and passion as Fred Goldman, whose son Ronald was murdered along side Simpson’s ex-wife, Nicole Brown.

I understood the focus group’s assessment of Marcia Clark. No matter what her intentions or self-image, she came across as a haughty know-it-all who consistently vamped into the courtroom late almost every morning, even though Ito complied (reluctantly) with her request to start the court day half-an-hour later than the normal time.

That brings me to the clocks. Ito’s courtroom had only one clock on the wall when he first got the case. After the attorneys, particularly Clark, didn’t seem to grasp the concept of time, he ordered three more — I was there the day they arrive and he had them installed. They didn’t look anything like the one in the miniseries, either. He also didn’t have his collection of hourglasses on the bench in those early days, either. He brought them out from his chambers, one by one, as another ‘subtle’ hint for the lawyers to be on time and to quit their delaying tactics.

 

 

Sensationalizing Kardashian Name? Really?

This says a lot:

Khloe Kardashian Reacts to The People v. O.J. Simpson: “They’re Kind of Sensationalizing the Kardashian Name In It”

”They’re kind of sensationalizing the Kardashian name in it, but I think to bring the younger audience in. I’m not upset about it, but there was some scene of the kids chanting ‘Kardashian’ when my dad was reading the potential suicide note. I even called Kim, because I was 10. I’m like, ‘Did that happen? I don’t remember any of this happening? She goes, ‘Absolutely not did that happen!'”‘

High Profile Doesn’t Include Victims

What makes a trial high profile? Why do so many people become obsessed with some trials and not others? Among the obvious answers can include celebrity, money, glamour, sex, racial issues, unusual and/or heinous aspects of the crime, and others.

All of that and more has been the topics of many court-media conferences and workshops I’ve attended and participated in and court-media courses and workshops I’ve conducted.

It occurred to me as I watched episode 3 of the FX dramatization of the 1995 Simpson trial that almost never are the victims in a case the reason a trial becomes one of great media interest. With rare exception, those who lost their lives or suffered because of the crimes the defendants are charged with committing become invisible in media coverage of trials.

Why is that, I wondered. My thought is it’s because the victims are not why large numbers of people are captivated by or even particularly interested in trials — and the media know that.

So what the media deliver is what they do know will result in high TV ratings and print circulation and that is sensationalism, whether generated by celebrity, or whatever.

To their credit, the Goldman and Brown families have crusaded to keep Ronald and Nicole in the public eye and consciousness. The families a many crime victims, despite tireless efforts, have not been as successful.