Finally Lance stopped him. “I’ve heard enough,” he said.
He looked shaken. He said that, much as he hated to bring another judge in, for a ruling on these tapes, he would have to.
“I love my wife dearly,” he said, “and I am wounded at any criticism of her, as any spouse would be, and I think it is reasonable to assume that could have some impact.”
That was touching. But then he began speaking of the difficult road that women had to walk in a man’s profession, how women take a lot of hits for having to be tough. The irony of it left me breathless. For a year now, I had been browbeaten by this man, suffering the very difficulties that moistened his eyes when he spoke of his wife. Oh, when it suited his Kodak moment, he was Mr. Sensitivity.
Upstairs in the D.A.‘s office, anger was building like steam in a pressure cooker. By the time I reached the eighteenth floor, brass and deputies alike were gathered in Bill’s office. They had reached a consensus. We should demand Lance Ito’s full recusal.
The argument went like this: Even if Lance stepped aside for a ruling on the tapes, he would still be the one to enforce that ruling. But the essential conflict of interest would remain. You’d need two judges on the bench for the rest of the trial. Introducing this unusual set of circumstances would lead the jury to conclude that the Fuhrman tapes were the most important thing in this case.
The pro-recusal faction was insistent. The two-judge scenario would be a disaster. We had to have one judge-not Lance-for the rest of the the trial.
My colleagues handed me the draft of a letter, hastily composed, demanding that Lance remove himself from the case for good. I stood for a moment, silent, trying to sort out my thoughts. If Ito recused himself, this case would be over. No trial judge could walk in at this point, pick up, and carry on. Especially considering where things stood-that is, in shambles. We’d probably have to desequester the jury; you couldn’t keep them locked up for the weeks it would take a new judge to learn the case. Then the jurors would get an earful of any defense propaganda they hadn’t already managed to hear. Probably, during the extension, we’d lose enough jurors to cause a mistrial. Even though I knew in my heart that this case was lost, I believed that at another trial, with another Downtown jury preloaded with tales of Fuhrman, we’d still get the same results. And no one wanted to go through all this again.
But I had another response to this missile we were preparing to hurl. It was a response I could never have predicted. I found myself feeling sorry for Lance Ito. Obviously, I had no reason to love the guy. I had no reason even to like him. But total recusal was going too far. It would destroy him.
“We’re not doing this,” I said to Gil and the brass. “This letter is not going out over my name. If you don’t want to listen to me, then you fucking do it.”
I stormed to my office and did my best to slam the door, forgetting that those damned county office doors were too heavy to generate a good, old-fashioned, Bette Davis-style slam. I was surprised how the whole incident had shaken me. I was trembling so hard I could barely light a cigarette.
Finally, a knock. It was Chris. He’d been elected to talk me down. But I held firm.
All the way to court, Brian was still ticking off the reasons why Ito should be forced to recuse himself. I knew the rationale, but to me the issue still boiled down to two things: the necessity to finish this trial, and my feeling that Lance’s career could be ruined. I had not signed the letter demanding recusal, but as lead prosecutor I was the one who would have to present it. My head was bursting, trying to figure out a way to finesse this.
By now, word of the letter had spread through the courthouse. Johnnie, terrified at the prospect of losing Ito, raced to the podium and began to babble, “The prosecution claims now you’re totally recused on this… It’s bye-bye forever. We resist that. It’s not our understanding.”
I explained that the prosecution’s decision was only tentative, but that “it would appear, based on consultation with everyone, that the only road to take is”-I faltered-“to proceed with complete recusal from this point forward.”
I had become used to my words being greeted at the bench by condescension. Not today. Lance appeared to be holding back tears.
“You sure you want to do this?” he asked with uncharacteristic humility.
The moment was uncomfortably intimate. Lance and I looked at each other for what seemed like a long time. Finally, I spoke.
“I want an opportunity to talk further with [my colleagues] before we adopt this course and it gets set in stone. If we have the time tonight to do it, I would appreciate it and present the court with the final position in writing.”
I could tell by his expression that he understood what I was saying. That I was going to fight this. That I would fix it for him.
“All right,” he said.
I headed straight to Gil’s office, ready for battle. I was amazed by what awaited me. Like a sudden cloudburst, their mood had passed. Now it was as if the skies had been sunny all along. I suspect that was due to the tempering influence of Gil’s lieutenant, Frank Sundstedt. But I’ll never know.
“Recusal makes no sense,” I heard Frank saying. “I think we can leave it with Lance-he’ll be at least as fair as any other judge, and he knows the case.”
Everyone was nodding. I felt once again like I’d stepped through the looking glass. I was too shocked to feel relief. All I knew was that this trial would continue. For better or worse.
The following morning in court, I withdrew our request for Lance Ito’s recusal. And, I added, we wanted him to rule on the admissibility of the tapes in their entirety. Meaning, “Lance, you do it all. We have faith in you.” I crossed my fingers and prayed that this gamble would work. A flash of gratitude passed across Lance’s face. He looked like a man who’d just been granted a stay of execution.
I was drained. But I had to pull myself together. We still had to finish the motion on the Fuhrman tapes. I tried, but by the end of the day I was shivering with another bout of fever. It was all I could do to make it home. We had Thursday off. I collapsed into bed, shaking with chills. I spent part of that day and the next in bed with a 102-degree fever while Cheri and Bill finished the brief.
I told the kids, “Mommy’s sick. Let’s watch a movie together, okay?”
We retreated to the “playroom” (which had once called itself a dining room) and for the rest of the day I sat bundled in blankets in a beanbag chair, surrounded by action figures, toy helicopters, two bulldozers, and a cement truck. And we watched Pete’s Dragon. Over and over again.
What would Ito do about the Fuhrman tapes? We were arguing that not only shouldn’t the jurors hear them, but that the tapes shouldn’t be aired in court at all. It was an open secret that the jurors learned a lot about what happened outside their presence through phone calls and conjugal visits. One thing was certain. If those tapes were played publicly, the jurors would hear all about them. The reasonable thing for Lance to have done was make his own judgment on the tapes, ruling on what was relevant and keeping the rest of the tapes where they belonged: under seal.
No such luck.
“I am persuaded that this is an issue of national concern, one in which the public has a right to be informed,” he proclaimed. “In that light, I will play the tapes as a service to the public.”
A matter of national concern? This was a double homicide, not Watergate. There was neither a legal reason nor a logical reason for this. Not only was it doubtful that those tapes would provide an edifying civics lesson to the public in general, but also they sure as hell would prejudice our jury beyond redemption. Didn’t Lance understand that? Maybe, I thought surly, we should have blown him off while we had the chance.