August 15, 1995
7 p.m EDT
LOS ANGELES (CNN) -- Judge Lance Ito removed himself from a portion of the proceedings of the O.J. Simpson trial, but if the prosecution has its way, he may be removed altogether.
Ito has ordered attorneys from both sides to state their positions on the matter first thing in the morning.
Earlier today, Ito appeared to have put the problem of conflict of intereste aside but things were rocky.
Judge Lance Ito will not hear arguments on whether controversial tapes made by Det. Mark Fuhrman can be heard by the jury, or whether Ito's police-captain wife can be called as a material witness in the case.
Ito announced Tuesday he is turning those matters over to another judge, estimating it would take the new judge 7 to 10 days to come up to speed with the Simpson case. He also suggested testimony by defense witnesses continue in the meantime, but it is not clear how many other witnesses will have to be called.
With considerable pauses and his voice cracking, Ito explained his intense feelings about his wife and the issue. He said "I love my wife dearly and I'm wounded by criticism of her, as any spouse would be and I think it is reasonable to assume that that could have some impact." [Click here for .wav (515k)] [Click here for .aiff (515k)]
Ito cited the code of judicial conduct and the code of civil procedures in making what he called an "extremely difficult" decision. The attorneys then went to Department 100 to see another judge. Ito said he wanted the testimony of Michele Kestler to resume at 6 p.m. EST. Ito made the decision after learning his police officer wife may be called as a witness in the case.
The defense has obtained audio tapes Det. Mark Fuhrman made as a consultant to a screen writer for a movie project. The defense wants to use the tapes to show that Fuhrman lied on the witness stand when he said he had not used the "n-word" in the last 10 years. The defense contends Fuhrman is a racist who wanted to frame Simpson and that the tapes show he is a racist.
Ito had been scheduled to rule on the admissibility of the tapes until he was informed Monday by the prosecution that among Fuhrman's remarks, are disparaging comments about Ito's wife, Capt.Margaret York of the Los Angeles Police Dept. Ito said he was worried about appearances should he decide to stay on as judge.
Ito said if the prosecution wanted to call his wife, he would have to decide on her materiality and if she is called he would have to excuse himself. But, Ito said if that happened he didn't see a mistrial as a consequence. He said it would be a matter of a legal necessity to have another judge step in and proceed.
Both sides will have to agree to have Ito continue the case after the two matters regarding Ito's wife and the Fuhrman tapes are resolved. Defense attorney Johnnie Cochran argued against Ito excusing himself, saying he doubted the prosecution would call his wife, "This is a ploy," he said. And, he proposed turning over the Fuhrman tapes to the judge, minus the sections where Fuhrman talks about his wife. "This is about perjury," Cochran said.
In an impassioned speech to the court, Cochran said Simpson would never agree to a mistrial and he urged the judge not to turn the case over to another judge. "Mister Simpson relies upon you to be fair and give him a fair trial. This jury relies upon it. All of American relies upon this. Another judge who comes in here doesn't know anything about this case at this point. We are saying that you are in the best position. Your wife has nothing to do with this. We can establish his (Simpson's) innocence through their lying witness," Cochran said.
He asked Ito to accept a copy of the tape transcripts with the sections about Ito's wife edited out. That way, said Cochran, Ito could rule on their admissibility. Cochran also went on to say that another judge wouldn't do any good because Fuhrman hated everyone and the next judge would also find something to be offended by. "He has something for everyone. If you send it to a woman, he hates women, you can't send it to a black, he hates blacks, he hates Mexicans, he hates Jews, he hates anyone who is not an Anglo- Saxon white police officer." [Click here for .wav (195k)] [Click here for .aiff (195k)]
In an equally impassioned speech to Ito, prosecutor Marcia Clark said the defense was trying to manipulate the jury by playing the "race card" and she challenged the defense to withdraw their request to enter the tapes into evidence.
She said, "The truth of the matter is that I think that what the defense wants to do here is hold this issue over the court's head and hope that the court will be inflamed enough by the mere knowledge of the fact of the allegations to either rule that the tapes come in more than it ordinarily would or bend over backward in favor of the defense to show how fair it can be or bend over backwards to take revenge against Mark Fuhrman," Clark said.
Clark, clearly furious, added "There was no opportunity for Mark Fuhrman to plant the glove and so whatever his personal beliefs may be, which we may or may not know, the truth of the matter is he could not do what they are trying to prove he did."
Clark added that no matter how impartial Ito had been in the past, "We cannot possibly say it would be fair to require this court to set aside its knowledge of the fact that some inflammatory statements were made about the court's spouse."
She said Ito should, for appearances, have another judge determine what, if any, parts of the tapes could be admitted. She said the prosecution could then determine if they would call his wife as a rebuttal witness.
York, who was Fuhrman's superior at one time, filed a sworn statement earlier in the case that she had no recollection of any interaction between herself and Fuhrman. She insisted that if Fuhrman were as bad as he was alleged to have been, she would have remembered.
If she is called as a rebuttal witness, she might be able to back up claims by Fuhrman's attorney that his accounts were fictional. However, the defense could try and imply she lied in her sworn statement.
On Monday, Clark informed Ito that the comments against his wife "could well be a conflict for this court in handling this matter." Clark told Cochran and Ito "on the '85 tapes I think it is, and also in '87, Mark Fuhrman discusses Lt. York...and their run-ins at West L.A. [station] and he makes derogatory comments."
Clark continued, "Of course, I have to tell you, judge, this is a book about men against women, that is the whole thing, so he tees off on women through the whole thing."
Cochran told Ito, "Judge, the tapes are sickening, and you know...I don't know so much about conflict, but there is certain parts about Lt. York that I tell you what the real problem may be, even more than this, and this is a very delicate issue and I don't want to talk about this out here. It is going to have to do with credibility, because, you know, her declaration... this guy, unless he is absolutely lying... and Marcia will back me up on this, the contacts he has with Lt. York are the kind that are very hard to forget him."
After the attorneys briefed Ito about the tapes, including several chilling portions not relating to his wife, Ito got back to the issue at hand.
"Let's circle back to what the legal issues are. The legal issues are, one, is there a conflict for me to hear this stuff?" "Right," responded Clark, "Which is a significant legal issue because we may be talking mistrial," Ito continued.
To that, Clark responded, "I just don't think so. I think it has to be referred out like we did before."
But Cochran said, "It is not that easy."
And Ito seems to agree. He added, "It is not that simple, it is not that simple. Secondly, it is a double problem because he is disparaging, A) of my wife, and B) of internal affairs where my wife is not the commanding officer... double whammy here."
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