Getting Away with Murder


Washington. -- So, the joke goes, one of O.J.'s lawyers says to him, I've got good news and bad news.

The bad news is that DNA blood tests prove you guilty.

The good news is your cholesterol is 130.

Judge Lance Ito so likes that joke, he recently told it in court to Mr. Simpson's star attorney, Johnnie Cochran, during one of those breaks in this trial that often seems to be more breaks than trial.

If Mr. Cochran likes the judge's act, too bad he wasn't in Orange County a few weeks ago when Judge Ito addressed a dinner of the local Asian-American Bar Association.

He began by saying that his dinner partner had apologized for not knowing much about the Simpson trial, and Judge Ito said he replied that neither did he. Then he told some more O.J. trial jokes.

His Honor is a scream.

As the wheels fall off the jalopy that the Simpson trial has become, considerable blame goes to the judge whose judgment can be gauged by the fact that he has invited Larry King, Barbara Walters and Geraldo Rivera to his chambers.

The trial he has failed to control is convincing the country that yet another facet of our civic life, the criminal-justice system, is ridiculous.

One of the two jurors dismissed the other day was accused of attempting to pass a note to a fellow juror.

The other dismissed juror was accused of intimidating other jurors, including the note-passer whom he allegedly stared at and brushed up against in an elevator. He is said to have scowled a lot in the jury box.

Well. His life has been hijacked. He has been, in effect, under house arrest since, it must seem, the Eisenhower administration, with no release in sight.

He probably knows that jurors were not sequestered in the trials of the Menendez brothers and the World Trade Center bombers.

He is in close confinement with people who did not volunteer for such intimacy. He and they have spent hundreds of idle hours as the judge, who until recently has squandered their lives by conducting the trial on bankers' hours, argued arcana and minutiae with the opposing regiments of lawyers in more than 440 sidebar conferences.

So what's not to scowl about? Any juror who has not yet become so distraught as to justify dismissal should be dismissed for terminal strangeness.

Televising the trial has demonstrated that observing something can change it. Would there have been 16 lawyers present on Mr. Simpson's side of the courtroom the other day if this were not such a grand opportunity for them to advertise themselves for future clients?

Does not that (and Judge Ito's slack reins) help explain the absurd repetitiveness of the questioning?

And is it not reasonable for Mr. Simpson's attorneys to play to the public on the assumption that sequestration cannot prevent leakage into the jury of opinions from the outside world?

And are not Mr. Simpson's attorneys using television to condition jurors in the next trial, after a mistrial?

The trial is taking place in a city where it can take 80 separate government clearances to start a small business, and proceduritis in the criminal-justice system may be slightly worse in California than elsewhere.

But it is true nationally that there are now so many buttons for defense lawyers to push that anyone with enough money to hire enough of them can litigate everything -- every police procedure, 10-year-old remarks allegedly made by one of the many detectives involved, and so on.

The attempt to achieve perfect justice by giving the defense in criminal cases more and more leeway is proving an old axiom:

The quest for perfection is the enemy of the good.

Justice is supposedly served by truth, but how is truth served by all the weapons the defense can resort to in excluding evidence? Or by the absence of inhibitions on the defense's use of moral assaults on the character and reputation of witnesses?

Or by all the latitude the defense has in filling the courtroom with a fog of hypothetical propositions -- about throat-slitting drug dealers, about a large frame-up conspiracy against Mr. Simpson swiftly organized by police the night of the crime.

This, although the defense also argues that the LAPD is too bumbling to competently organize an investigation of a shoplifting case.

This spectacle has made many people famous (Baltimore policemen served as buffers between Kato Kaelin and his public at a recent Orioles game) but has relegated two people to the obscurity of afterthoughts -- Nicole Simpson and Ron Goldman.

Leaving aside nagging questions of justice, it is fascinating to watch someone getting away with murder.

George F. Will is a syndicated columnist.

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