Public Access to Simpson Jury Selection Limited

After days of debating how to protect prospective jurors from publicity about the O.J. Simpson murder case, Superior Court Judge Lance A. Ito elected Thursday to shut down some public access to jury selection, a move that drew immediate criticism from civil libertarians, media lawyers and legal experts.

After Ito’s decision, the judge joined defense attorneys and prosecutors behind closed doors and continued questioning prospective jurors, interviewing 18 and excusing six. Ito refused to release transcripts of the closed session Thursday, though he left open the possibility that news organizations could renew their requests for the documents.

The judge’s order represents his most aggressive step to date in his continuing attempts to curtail coverage of the celebrated Simpson trial--although the full scope of his ruling was not immediately clear.

According to a court spokeswoman, Ito said he had only meant to exclude the press and public from individual questioning of the current group of 80 or so prospective jurors about their exposure to the media, including a new book about Nicole Brown Simpson that has greatly irritated Simpson’s lawyers and the judge.

“His ruling only applies to the ‘media’ portion of voir dire,” said Jerrianne Hayslett, the court spokeswoman, adding that reporters will again be admitted sometime next week.

Once questioning about exposure to the media is complete, Hayslett said, Ito intends to reopen the process, presumably by allowing a small number of reporters to attend the sessions and to permit others to listen via an audio hookup to a pressroom in the court building. That is the system that has been in place since the judge and attorneys began questioning jurors this month.

Late Thursday, Ito released a written order outlining his plans to close some jury selection sessions. His order did not address the possibility of reopening the sessions.

Ito and the lawyers in the case are attempting to find 12 jurors and eight alternates who can impartially weigh the evidence against Simpson, who has pleaded not guilty to the June 12 murders of Nicole Simpson and Ronald Lyle Goldman. Their bloody bodies were found just after midnight June 13, and Simpson was arrested June 17.

Faced with Ito’s proposed limitation on coverage, news organizations and civil liberties groups balked, arguing that the public has a right to observe jury selection. An array of news organizations, including The Times and the Associated Press, said they expected to file their appeal this morning.

“There are no factual findings that support the unconstitutional order that the judge entered today,” said Douglas E. Mirell, a lawyer representing the American Civil Liberties Union Foundation of Southern California. Referring to Ito’s courtroom, he added: “We have a star chamber going on up on the ninth floor. That is intolerable.”

Although Ito has frequently said he respects the right of the public to observe the court proceedings in the Simpson trial, he has grown increasingly frustrated about publicity. That frustration appeared to reach a peak this week with the release of a salacious new book, “Nicole Brown Simpson: The Private Diary of a Life Interrupted.”

The book is co-written by a National Enquirer columnist and a woman who says she was Nicole Simpson’s best friend. In it, the authors say O.J. Simpson threatened his ex-wife repeatedly in the months leading up to her death.

Friends and family of Nicole Simpson have contested the accuracy of certain portions of the book, and defense attorneys argued this week that their client can no longer receive a fair trial in part because of the book.

At the end of the day, one of Simpson’s lawyers, Johnnie L. Cochran Jr., said some of the 18 potential jurors questioned admitted that they had some knowledge of the book, though none said they had read it. Cochran would not say whether anyone was removed because of what they knew about the book.

Earlier in the day, Ito’s concerns about protecting the jury were redoubled when two prospective jurors complained to him about the media. One said she had been in an elevator with journalists who were discussing the case, and the other said someone had seen her picture on television, which would violate court rules against broadcasting jurors’ faces.

The judge said at the hearing Thursday that he had “invited” Simpson’s defense lawyers and the prosecution to join in a motion to ask for closing the jury selection proceedings.

In a show of unity rare except where media issues are concerned, both sides argued for the closure.

“We’re not trying to get around the public’s right to know,” Cochran said, “but we’re in a very sensitive area.”

Deputy Dist. Atty. William Hodgman told the judge that the closure was necessary so the proceedings would “remain sacrosanct and within the four walls of this courtroom.”

Both sides said they were concerned that jurors would be less candid if anyone other than the judge, lawyers and court personnel were present. They also worried, they said, that jurors waiting to be queried would learn through news reports of the questions being asked and have time to tailor their answers.

Mirell of the ACLU noted that Ito had admonished the prospective jurors not to watch television, listen to radio, read any newspapers or magazines and to stay out of bookstores.

“If they’re not following that admonishment,” Mirell said, “then they have no business being on this jury.”

Attorney Kelli L. Sager, representing The Times and the Associated Press, agreed and cited a landmark 1984 U.S. Supreme Court ruling in which the court found that the public has a right to observe the jury selection process.

That case stemmed from the decision of a Riverside County Superior Court judge to exclude the press from all but three days of a six-week jury selection in the trial of a man accused of rape and murder.

Before jury selection began in that case, the Riverside Press-Enterprise asked that the process be open to the press and public. But the district attorney’s office opposed the motion, contending that if the press were present, juror responses would lack the candor necessary to ensure a fair trial. The judge agreed and allowed the press only to observe the general questioning of jurors but not the individual sessions with them.

But the U.S. Supreme Court unanimously ruled that the guarantee of open public proceedings in criminal trials covers oral questioning of prospective jurors.

“The process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system,” Chief Justice Warren Burger wrote for the court. “The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known.”

The court did find that jury selection sometimes can be closed, but only when a judge makes specific findings about why that is necessary and he or she narrowly tailors the remedy to the perceived problem.

The strong language of the Press-Enterprise case could make it difficult for Ito to close off the portion of the jury selection process devoted to determining whether jurors have been influenced by media coverage of the case, some legal experts said.

“I think there are real constitutional problems with (Ito’s decision),” said Erwin Chemerinsky, a USC law professor and constitutional expert. “I think this violates the 1st Amendment.”

He added: “Press-Enterprise leaves open one possibility. It says that when there is questioning about deeply personal matters, then it would be appropriate to close voir dire as to those questions--such as whether you have been raped. . . . But I don’t see justification for closing it about their exposure to media.”

Peter Arenella, a UCLA law professor, agreed that the Press-Enterprise case provides important guidance, but argued that several things distinguish it from the situation faced by Ito. In the Press-Enterprise case, the judge never considered alternatives to closing the questioning.

Ito cited the Press-Enterprise ruling Thursday but said the extent of publicity in the Simpson trial so far exceeds the earlier case that they cannot be fairly compared. “My clerk advises me,” Ito said dryly at one point, “that there have been 27,000 newspaper and magazine articles about this case.”

Noting that he has received press clippings from as far as Tibet, Ito said: “This case exponentially differs from Press-Enterprise.”

Ito’s irritation and frustration with the media coverage was stoked again Thursday when two jurors complained to him about the media.

Ito said he would take up their complaints at a scheduled Nov. 7 hearing, after which he will decide whether to end television courtroom coverage of the trial.

In another action Thursday, Ito unsealed and then quickly resealed a transcript from a closed session Wednesday morning, during which Simpson made a statement to the judge about his intentions during the infamous low-speed freeway chase the day of his arrest.

The resealing occurred after “one of the sides” objected to the transcript being released, said Hayslett. Defense lawyers had said Wednesday that they wanted the transcript released.

Under the ruling closing the jury proceedings, journalists would be barred from the courtroom for at least five days and no audio of the proceedings would be fed to a courthouse pressroom where all but a few reporters who were allowed in the courtroom had previously listened to the selection process.