Proposed Gag Order Poses Threat Far Beyond Simpson Case

If my only connection to the newspaper was as a reader, I’d applaud Judge Lance A. Ito for trying to dam the flow of news leaks that have helped make the O.J. Simpson case such a circus.

After watching the private lives of victims and the accused splashed in a lurid and often erroneous manner and reading and watching stories attributed only to various unnamed sources, I’d cheer his proposed order restricting cops, defense attorneys, prosecutors and others from talking about the case, and limiting access to legal documents.

It wouldn’t simply be the bad taste many of the bad stories have left in my mouth, although that would be a factor. Most important, I would wonder, as Judge Ito did in court Wednesday, how a fair trial is possible, how 12 impartial jurors could be selected, amid this unprecedented torrent of news.

But my perspective as a journalist is different. I see judicial gags as real threats that go far beyond the Simpson case. They interfere with political debate, investigations into government corruption and even with the rights of the defendants the orders are supposed to protect.

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Everyone I’ve talked to says Ito is a terrific judge. He’s a clear-thinking, intelligent jurist who proved his ability to handle tough cases when he presided over Charles Keating’s fraud trial. He also has a sense of humor.

So it was easy to sympathize with him Tuesday as he wrestled with an old conflict in American law, trying to reconcile the demands of the 1st Amendment, guaranteeing freedom of speech, and the 6th Amendment, which assures defendants a fair trial.

He felt the 1st Amendment side--the reporters and the prosecution and defense leakers who have been feeding them--was overwhelming the 6th Amendment forces, burying them with stories that will prejudice the minds of potential jurors.

The overflow of information, he said, has been heightened because of the proliferation of news coverage and the enhanced ability and desire of television to cover big crime trials.

Ito was especially bothered by the leaks. I don’t blame him. Whatever ethics lessons are taught in law school, they don’t include a warning against leaking. Give a lawyer a piece of the Simpson case and he or she becomes a sieve. Even Ito’s proposed gag order, which he wouldn’t give to news organizations, leaked into print. Sounding annoyed, he told how he’d picked up The Times Tuesday morning, and read what he had wanted to keep confidential.

But let’s take the issue beyond Judge Ito and his particular frustrations.

What he sought in his proposed order was total control over what anyone involved in the case said or wrote--over all documents, evidence, lawyers’ remarks, just about everything.

As I said, Ito seems to be a fine judge. But some of his colleagues don’t measure up to that standard. Some are political hacks who got their jobs by raising money for the governor that appointed them. Some, while qualified, are part of the fairly small layer of business people, politicians and powerful lawyers who shape events around here.

If a reporter reveals government corruption, resulting in an indictment, a judge hostile to the press could impose a gag order, sharply limiting the press’s ability to poke deeper into the case and find out if more people were involved.

Gag orders have been used to muzzle criticism of public prosecutors and limit debate on public policy. In the federal trial of the police officers accused of beating Rodney King, Judge John G. Davies ordered defense attorney Harland W. Braun to stop “publicly impugning the motives” of federal prosecutors in the case. The order was overturned by the U.S. 9th Circuit Court of Appeals.

The trouble with such orders, Braun told me, was that “in this country, we decide fundamental issues of public policy in the courts. The King case involved a huge public issue.” By attempting to silence him, Judge Davies was cutting off Braun’s right to speak out on public policy, and to criticize the government.

Finally, gag orders, although supposedly designed to protect defendants, often end up harming them. Simpson’s attorney, Robert L. Shapiro, made that point in court Tuesday.

Shapiro said that in the next four weeks, “we understand that numerous media are going to be airing various shows, docudramas, interviews with family members.” A gag order, he said, would prevent the defense “from giving any kind of response at all,” even though “the majority of people who appear on television “ are prosecution witnesses or associated in some way with the victims of the crime. “If false information is disseminated and we don’t have any opportunity to reply,” Shapiro said, Simpson is prevented from getting a fair trial.

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Ito’s motive obviously is to protect potential jurors from news manipulation by both sides. But they have already been inundated, and so what. Kelli L. Sager, an attorney representing The Times and other news organizations, noted that widespread publicity didn’t prevent acquittals of auto executive John DeLorean on charges of smuggling cocaine or William Kennedy Smith, who was tried for rape.

Secrecy is the real danger in government. It breeds inaccuracy and rumor, and promotes illegality and injustice. As Sager told Judge Ito, “More speech is the answer, not less speech.”