Impact of Ito’s Sanctions on Simpson Defense Debated : Courts: Some say defendant’s right to fair trial may be hurt. Others see damage to the practice of criminal law.

“Make the punishment fit the crime” is one of those homey maxims that trips warmly off the tongue. But Friday, when Superior Court Judge Lance A. Ito tried to do that after defense lawyers again withheld evidence in O.J. Simpson’s double murder trial, he twisted the case into something that many legal experts say resembles an ethical pretzel.

Although most analysts agree that the first part of Ito’s remedy--$950 fines for attorneys Johnnie L. Cochran Jr. and Carl Douglas--will have little immediate impact, they say the consequences of the other sanctions the judge imposed may be serious for Simpson himself.

“In a very important sense, Judge Ito acted unfairly because he protected the lawyers at their client’s expense,” said defense attorney Marcia Morrissey. Alibi witness “Rosa Lopez didn’t fail to provide that tape (of an investigator’s July interview with her). It wasn’t her fault and it wasn’t O.J. Simpson’s either. Yet they are the people being made to suffer by Ito.”

Many defense lawyers also have begun to worry that the picture of the criminal justice system being beamed around the world from Ito’s courtroom may have an extremely damaging impact on the practice of criminal law across the country.

“Quite frankly, this is not a pretty picture,” said Los Angeles defense lawyer Barry Tarlow. “I once worked for the summer in a plant that manufactured ice cream, and I didn’t eat ice cream for a couple of years after that. Something similar is happening to the public in this case.”

Essentially, Ito did two things Friday when he ruled that the defense had failed in its obligation to provide prosecutors with the tape-recorded interview with Lopez, as well as a written report on a conversation with her:

First, he imposed the fines on Cochran and Douglas and reproved them for “a representation made with reckless disregard for the truth if not a deliberate attempt to mislead both the prosecution and the court.”

Second, Ito said that if the defense chooses to play the videotape of Lopez’s testimony for the jurors, he will tell them that Simpson’s lawyers violated the law and that the jury “may consider the effect of this delay in disclosure, if any, upon the credibility of the witness involved and give to it the weight to which you feel it is entitled.”

Simpson’s lawyers have 10 days in which to ask Ito to reconsider his decision.

In an interview Saturday, Cochran said he was still feeling the sting of Ito’s judicial blow.

“I respect Judge Ito. But in this instance he is dead wrong and terribly unfair--not only to us, but most of all, to O.J. Simpson,” Cochran said.

If Ito’s sanctions stand, said Morrissey and Los Angeles defense attorney Gerald L. Chaleff, the judge’s retribution was too lenient in the first instance and so severe in the second that it may threaten Simpson’s right to a fair trial.

“The personal sanctions he imposed on Cochran and Douglas are insignificant,” Morrissey said. “If this trial is a search for the truth, it doesn’t seem fair that Simpson is being made to pay for his lawyers’ mistake.

“The jury needs to make a decision about Lopez’s credibility. The lawyers’ failure to provide the tapes or her prior statements--whatever their reasons--just isn’t relevant to the question of whether Ms. Lopez is a credible witness. So Ito has injected something foreign into the jury’s deliberations, which is how well the defense lawyers have complied with the discovery rules.”

Chaleff agreed. “When the judge says a lawyer has acted with reckless disregard of the truth and the fine is $950, that sends a mixed message,” he said. “If a judge truly believes that a lawyer has lied to him or her, then the sanction should be more severe.

“The ultimate victim of that will be the defendant, because the jury is being told by the court and the prosecutor not to trust his lawyers,” Chaleff said. “And if they don’t trust the lawyers, then they won’t believe their defense. And if they don’t believe the defense, O.J. Simpson will be convicted.”

However, Tarlow and fellow nationally prominent defense lawyer Gerry Spence said they feel Ito’s reproof of Cochran and Douglas may be more damaging than it may first appear.

“Money isn’t the issue here,” Spence said. “This is lollipop money for these lawyers. I’d pay a fortune to delete from the record a judge’s statement that I acted in reckless disregard of the truth. A man’s reputation is worth more than money, and this is a serious blow to Cochran’s reputation.”

Tarlow concurred. “ ‘Mr. Johnnie’ certainly won’t miss $950, but as a criminal defense lawyer all you really have is your reputation. In that light, Ito’s critical comments are extraordinarily harsh. I’d give $100,000 to charity--and I know Johnnie would too--rather than have those things written about me. The judge’s damning words will be with these lawyers for the rest of their lives. That makes this anything but a slap on the wrist.”

Cochran said the defense team is not taking “this sanction lightly.”

“I have practiced law for more than 30 years and Carl for more than 15,” he said. “Neither Carl nor I ever have been sanctioned before. We have lived and built our reputations carefully. They are more important to us than I can say. Integrity means everything to me.”

Cochran went on to point out that Douglas assumed responsibility as the defense team’s “custodian of discovery only on Jan. 2, and I took over as lead counsel from Bob Shapiro shortly after that. We should not be held responsible for things that may have occurred before that time.

“We have never hidden reports or tapes,” Cochran added. “We are being tarred with an unfair brush. Bill Pavelic (the private investigator who interviewed Lopez), worked for Shapiro and his reports went to him. Everything ultimately was transferred to our office, but there are 30,000 documents and hundreds of witnesses.

“We asked Pavelic whether there were any other documents and tapes and he told us there were not. We relied on his word. What am I supposed to do, polygraph the guy? Pavelic will do a sworn declaration that he never told us about the existence of that tape.”

Cochran also said he is “worried about the partiality with which Judge Ito is treating the prosecutors. But the issue should not be whether Judge Ito is being fair to the lawyers, but whether he is being fair to O.J. Simpson. We may choose to be silent on our own behalf, but unfairness to our client is something we cannot abide.”

San Diego defense attorney Elisabeth Semel agrees that Ito’s proposed admonition is unfair to Simpson.

“The person being punished is the defendant, because the presumption of innocence to which he is entitled is being undermined,” she said. “This instruction lightens the prosecutors’ burden of proof. It gives them a way to assail the credibility of a witness to which they are not entitled.”

But Spence and USC law professor Erwin Chemerinsky said Ito’s instruction to the jury could be read without violating Simpson’s 6th Amendment rights to a fair trial.

Last week’s contentious proceedings in the case have left many lawyers worried that the fallout may further damage the image of defense attorneys and compromise the rights of defendants far outside Ito’s reach.

“What we’re seeing is poor legal work,” Morrissey said. “But I am concerned that the rest of the world thinks this is dishonesty and deceit. If half the public shares that perception, then defense lawyers--and, more important, their clients--have been severely harmed by this.”

Chaleff said “this whole case is sending the wrong message. Every day in that same building prosecutors and defense lawyers are . . . exchanging discovery, following the rules and proceeding in a quiet but effective manner for their side. I hope that this case does not cause future clients to believe that their lawyers should engage in win-at-any-cost tactics.”

Spence mused that “it seems to me that this whole trial is characterized by lawyers playing fast and loose with the truth. If Marcia Clark’s statement to the court Friday before last concerning her child care problems was false, as her estranged husband now says under oath, that also is very troubling. If a judge can’t believe the lawyers, it confirms what people always have suspected--that lawyers cheat and lie.”

* THE SPIN: The televised trial of O.J. Simpson is a boost for Newt Gingrich’s populist visions. B1