The Reversal

“Well, this is nice,” the judge said once we were all seated in front of her desk, cups and saucers in hand. “I have not had the opportunity to see any of you practice in my courtroom. So I thought it would be good for us to start out a bit informally in chambers. We can always step out into the courtroom to go on the record if necessary.”

She smiled and none of the rest of us responded.

“Let me start by saying that I have a deep respect for the decorum of the courtroom,” Breitman continued. “And I insist that the lawyers who practice before me do as well. I am expecting this trial to be a spirited contest of the evidence and facts of the case. But I won’t stand for any acting out or crossing of the lines of courtesy and jurisprudence. I hope that is clearly understood.”

“Yes, Your Honor,” Maggie responded while Royce and I nodded.

“Good, now let’s talk about media coverage. The media is going to be hovering over this case like the helicopters that followed O.J. down the freeway. That is clearly a given. I have requests here from three local network affiliates, a documentary filmmaker and Dateline NBC. They all want to film the trial in its entirety. While I see no problem with that, as long as proper protections of the jury are put in place, my concern is in the extracurricular activity that is bound to occur outside the courtroom. Do any of you have any thoughts in this regard?”

I waited a beat and when no one spoke up, I did.

“Judge, I think because of the nature of this case-a retrial of a case twenty-four years old-there has already been too much media attention and we’re going to have a difficult time seating twelve people and two alternates who aren’t aware of the case through the filter of the media. I mean, we’ve had the accused surfing on the front page of the Times and sitting courtside at the Lakers. How are we going to get an impartial jury out of this? The media, with no lack of help from Mr. Royce, is presenting this guy as this poor, persecuted innocent man and they don’t have the slightest idea what the evidence is against him.”

“Your Honor, I object,” Royce said.

“You can’t object,” I said. “This isn’t a court hearing.”

“You used to be a defense attorney, Mick. Whatever happened to innocent until proven guilty?”

“He already has been.”

“In a trial the top court in this state termed a travesty. Is that what you want to stand on?”

“Listen, Clive, I’m an attorney and innocent until proven guilty is a measure you apply in court, not on Larry King Live.”

“We haven’t been on Larry King Live-yet.”

“See what I mean, Judge? He wants to-”

“Gentlemen, please!” Breitman said.

She waited a moment until she was certain our debate had subsided.

“This is a classic situation where we need to balance the public’s right to know with safeguards that will provide us an untainted jury, an unimpeded trial and a just result.”

“But, Your Honor,” Royce said quickly, “we can’t forbid the media to examine this case. Freedom of the press is the cornerstone of American democracy. And, further, I draw your attention to the very ruling that granted this retrial. The court found serious deficiencies in the evidence and castigated the District Attorney’s Office for the corrupt manner in which it has prosecuted my client. Now you are going to prohibit the media from looking at this?”

“Oh, please,” Maggie said dismissively. “We’re not talking about prohibiting the media from looking at anything, and your lofty defense of the freedom of the press aside, that’s not what this is about. You are clearly trying to influence voir dire with your pretrial manipulation of the media.”

“That is absolutely untrue!” Royce howled. “I have responded to media requests, yes. But I am not trying to influence anything. Your Honor, this is an-”

There was a sharp crack from the judge’s desk. She had grabbed a gavel from a decorative pen set and brought it down hard on the wood surface.

“Let’s cool down here,” Breitman said. “And let’s hold off on the personal attacks. As I indicated before, there has to be a happy medium. I am not inclined to muzzle the press, but I will issue a gag order against the lawyers in my court if I believe they are not acting in a manner that is responsible to the case at hand. I am going to start off by leaving each of you to determine what is reasonable and responsible interaction with the media. But I will warn you now that the consequences for a transgression in this area will be swift and possibly detrimental to one’s cause. No warnings. You cross the line and that’s it.”

She paused and waited for a comeback. No one said anything. She placed the gavel back in its special holder next to the gold pen. Her voice returned to its friendly tone.

“Good,” she said. “I think that’s understood, then.”