Would Ito's Departure Throw O.J. Trial Into Waste Bin?
BOSTON — AND now the latest chapter in the trial that never ends.
That Judge Lance Ito will excuse himself from testimony in the O.J. Simpson trial involving his wife, a police captain in Los Angeles, is an appropriate step, legal experts say.
Whether it signals a major legal turning point in the nearly completed trial - requiring a mistrial, as prosecutor Marcia Clark suggests - is still not clear.
Yet the decision by Superior Court Judge John Reid to allow as evidence a tape recording of Detective Mark Fuhrman does mark a clear problem for the prosecution. The recording, which allegedly has the police officer using racial epithets and talking about planting evidence, could well force a jury to find that O.J. Simpson is not guilty "beyond a reasonable doubt," the standard for conviction. The recording also contains criticism of Judge Ito's wife, Capt. Margaret York, who had once supervised Fuhrman.
As for Ito's role, legal experts say that, technically, a judge in a typical homicide jury trial is not irreplaceable. Ito has not been a fact-finder on the bench whose loss would require months of "catch up" by a replacement judge. Rather, the judge in this case is an arbiter of legal rules who is charged with conducting a fair trial.
IN the media extravaganza of the O.J. trial, the public has grown attached to the familiar Ito sitting on the bench - has watched his style and grown familiar with his idiosyncracies. Yet in many trials, judges who get ill or have family business are simply replaced.
"It's kind of like bringing in a new pitcher in baseball," says Abbe Smith, a criminal defense lawyer and deputy director of the Criminal Justice Institute at Harvard University in Cambridge, Mass. "The game resumes. Technically, it shouldn't make much difference."
The Fuhrman tapes, not Ito's recusal, is the most important current development, says Sheldon Goldman, a judicial expert at the University of Massachusetts in Boston. It casts doubt on the fairness of the judicial system when it comes to ordinary people.
"This is very explosive," says Dr. Goldman. "If the tapes are released, and if Fuhrman used the 'n-word' and talked about planting evidence, it will be all over. I don't know how a jury could find this beyond at least a reasonable doubt."
"I don't know if it is all over," says Ms. Smith at Harvard. "A good prosecutor may be able to convince a jury with an argument like, 'OK, you have a lying, racist police officer, but maybe that isn't so remarkable. What's important is overwhelming evidence that the defendent is guilty.' You never know. The jury isn't even out yet."