Simpson Judge Issues Sweeping Gag Order

Moving firmly to take control of the O.J. Simpson civil suit, a Superior Court judge on Tuesday forbade all attorneys, witnesses and litigants to talk about the case for the duration of the trial.

Judge Hiroshi Fujisaki’s sweeping gag order suggests that the civil case against Simpson will be far tamer than the nine-month criminal trial, where lawyers sought to spin daily developments their way in a mad frenzy of dueling sound bites.

In the criminal case, which ended in Simpson’s acquittal on murder charges, lawyers from both sides talked to the 1,159 credentialed reporters on the courthouse steps, in the parking lot, in elevators, even in the men’s room. Relatives of the murder victims and O.J. Simpson’s family jumped into the mix as well, in impassioned, riveting news conferences.

Fujisaki sought to prevent a repeat with his decree: “No counsel may discuss anything connected with this trial with the media or in public places. This order encompasses all parties, attorneys and witnesses under the control of counsel.”

Interpreted broadly, the gag order would ban lawyers from talking about the case while dining in a restaurant. It would block Fred Goldman from speaking to the press about the anguish of seeing his murdered son’s bloody clothes shown to jurors. It might even prohibit Simpson from selling the videos, books and audiotapes that he produced during and just after the criminal trial, analysts said.

“It’s breathtaking,” said Los Angeles lawyer Doug Mirell, a 1st Amendment scholar who has fought gag orders in other cases. “I’ve only been in practice for a decade and a half, but I have never seen, in a civil case, a gag order that is as broad and blunderbuss as this one.”

Fujisaki does have legal precedent. Lawyers were barred from speaking about their cases during the rape trials of boxer Mike Tyson and William Kennedy Smith. Yet those were criminal prosecutions. Gag orders in civil cases are far more rare. Appellate courts have upheld some and overturned others as being overly broad.

Fujisaki’s order was so comprehensive that lawyers emerging from their hourlong session in the judge’s chambers Tuesday could not even announce that Fujisaki had delayed the trial eight days, pushing back the start date to Sept. 17. Nor could they talk about the drafts of jury questionnaires that they had just filed with the judge.

“No comment,” lawyer after lawyer said while pushing through the metal detector at the Santa Monica Courthouse.

Though a few tried to confirm reporters’ questions about the gag order with creative sign language--raising their eyebrows or winking--the three defense attorneys and seven members of the plaintiffs’ team all strode mutely past a gaggle of cameras set up on the courthouse lawn. The most comprehensive answer they would give was a sarcastic snort when asked whether they would challenge the judge’s crackdown.

In fact, all lawyers agreed to the gag order during their closed-door session with the judge.

The media, however, may still post a challenge. Witnesses who are unwilling to put up with the gag order might also have the legal standing to test it before the Court of Appeals. If they do, legal scholars said, they would have a good chance of overturning Fujisaki’s ruling.

Experts could not recall a civil judge ever seeking to mute the witnesses, the defendant and the parties bringing suit as well as the lawyers. Judges must generally justify gag orders by showing that unfettered talk would prejudice the outcome of the trial. Alternatively, they need to demonstrate that the gag order is reasonable and serves a legitimate government purpose.

But in the Simpson case, analysts said, it will be hard for a judge to show that lawyers’ comments could sway the outcome.

“It’s impossible to imagine anything the lawyers could say that would jeopardize their right to a fair trial in light of all that’s been said since June 1994,” said USC constitutional law professor Erwin Chemerinsky.

Chemerinsky suggested that the gag order could compound the very problems it attempts to address. Since Nicole Brown Simpson and Ronald Lyle Goldman were killed on June 12, 1994, critics have complained that the facts of the case got lost in the endless swirls of rumor and speculation generated by tabloids, talk shows and the lawyers. While the lawyers may be silent, the gossip mill will intensify, he said.

“The media will have to rely on second- and third-hand sources, and the rumor mill . . . will be presented as news, rather than accurate descriptions from the participants,” Chemerinsky said.

Attorney Milton Grimes, however, said less talk might serve an admirable purpose by clearing the airwaves and newspaper pages--for a time, at least--of salacious gossip about the case. Though potential jurors undoubtedly have heard inflammatory tidbits during the criminal trial, he said, fewer fresh reports will be circulating to prejudice them.

The gag order, Grimes said, “might have some sanitizing effect” on the Simpson case by refocusing attention on sworn testimony in the courtroom. “Better late than never,” he said.

Analysts agreed that Fujisaki’s terse order telegraphed his determination to make sure the civil trial unfolds in his courtroom--not in the court of public opinion.

“Obviously, this is fallout from the first Simpson trial,” said UCLA law professor Peter Arenella. “This judge is going to bend over backward to keep rigid control over the lawyers and to preclude the type of appeals to public opinion that characterized the first trial.”

A Times poll conducted shortly after the verdicts in the criminal trial found that 28% of Los Angeles County residents believed televising the trial biased the result. Fully 40% characterized media behavior as “irresponsible.” And more than half thought television cameras should have been banned.

Fujisaki will decide next week whether to allow TV cameras in his courtroom. Most analysts doubt he will let them in.

With jury selection five weeks away, both sides on Tuesday handed Fujisaki draft surveys designed to ferret out biased panelists. The judge will select from their submissions when he drafts the final questionnaire.

Simpson’s lawyers suggested 236 questions, ranging from “How safe do you feel in your neighborhood?” to “What was your favorite subject in school?” to “Do you have any bumper stickers on your car?”

The defense also urged that the questionnaire probe deeply into prospective jurors’ attitudes about violence. They recommended asking jurors whether “the use of physical force in a relationship is ever justified.” They also want prospective panelists to explain their views on the following statement: “Male professional athletes who participate in contact sports are more aggressive in their personal lives than other people.”

Lawyers representing the plaintiffs submitted far less detailed questionnaires. Instead of delving deeply into prospective jurors’ views on DNA science and domestic violence, the plaintiffs’ drafts focused on attitudes toward O.J. Simpson, exposure to press reports about the case, and impressions of key witnesses from the criminal trial.