Metropolitan News-Enterprise


Wednesday, June 23, 2010


Page 7



Did Garcetti Micromanage the Simpson Trial—and if He Did, So What?




126th in a Series


GIL GARCETTI was repeatedly accused of “micromanagement” of the 1994-95 prosecution of ex-football great O.J. Simpson for a double-slaying in Brentwood.

The then-district attorney denied the charge.

My own take on it is that while he actively supervised preparation for the trial, once the trial began, he did not hover over the prosecution team or engage in Monday-morning quarterbacking. In fact, it might have been that, as one former district attorney asserts, he provided too little leadership in the conducting of the prosecution.

Indeed, when the crucial decision was made to have Simpson try on a bloody glove found at the murder scene and a matching bloody glove located at his home—despite the prospect of shrinkage and the notion that Simpson would have to wear protective latex gloves underneath because the ones found by police might have become “biohazardous”—no need was perceived to consult Garcetti, as mentioned here yesterday.

The charge of “micromanagement” should be dismissed out of hand, as if at a pleading stage.

I’ve heard a “demurrer” referred to as a “so-what motion”—that is, even if everything stated in the complaint is true, so what? If aso what?” standard is applied to the allegation that Garcetti micromanaged the prosecution, does the accusation not crumble?

 “Micromanage” is a term that was concocted just within the past three decades. To micromanage, the Random House Dictionary says, is “to manage or control with excessive attention to minor details,” while the American Heritage Dictionary says it means to “direct or control in a detailed, often meddlesome manner.”

Yes, in various office situations, an officious supervisor can supervise too closely, being a pain, and dampening initiative.

However, I don’t know how the head of an office can be a “meddler” in any activities of that office of which he or she has charge.

As to devoting attention to “minor details”: when it comes to a complex court case, it ofttimes happens that what is seemingly minor isn’t…and that, as the song goes, “little things mean a lot.” If Garcetti had been monitoring the case so closely as to make sure “i’s” were being dotted and “t’s” crossed, maybe he would have discovered something that just might have made in a difference in the outcome.

The prosecution was all set to have Simpson try on a pair of new gloves of the same make and model, since there would be no need to use latex layer under them and no prospect that they would have shrunk. However, it emerged on the day the demonstration was to take place that the pair sent to the DA’s office months before by the manufacturer was style number 70268; the style purchased for Simpson by his ex-wife (and murder victim) was number 70263. If Garcetti had been micromanaging and caught the discrepancy, the prosecution would have been saved the humiliation of Simpson trying on gloves that appeared to be too tight, generating the impression that the gloves weren’t his, and were planted by police.

“Micromanage” is, obviously, a negative term. “Taking personal charge,” and “evincing meticulousness” are positive descriptions that might often be applied to the very conduct critics assail as micromanagement.

How can a person who is elected to head a prosecutorial office possibly be faulted for assuming a personal role in a prosecution? Early district attorneys in this county personally prosecuted every case.

Even in these times, when the DA is chief administrator of a massive law office, for him to actively direct the prosecution of any case, should he so desire, should be a prerogative, not a trespass.

President Harry Truman is remembered reverently for the sign on his desk reading, “The Buck Stops Here.” Should any executive, instead, adopt the motto of Alfred E, Newman: “What, Me Worry”?

In the Simpson case, there was a keen (if not obsessive) interest across the globe. Direction by the guy in command—extending even to the point of concern over minute details—would have evidenced conscientiousness.

The allegation, to me, evokes a response of “so what if he did?”

Did Garcetti micromanage, as some alleged? In a Feb. 8, 1995, article in the Times marked “news analysis,” Henry Weinstein says:

“Garcetti’s unusual level of day-to-day involvement in the Simpson case has led some veteran prosecutors to charge he is micro-managing the trial and hobbling his prosecutorial team of Marcia Clark, William Hodgman and Christopher A. Darden.”

The article quotes Deputy District Attorney Sterling Norris—one of Garcetti’s opponents in the 1992 primary election who would challenge him in the 1996 primary—as saying:

“Everybody in the office is aware of the constant meetings, like the one in which Hodgman collapsed. Garcetti is famous for his meetings. There’s no question this is micro-management. The irony is that Hodgman, Marcia and Darden all have more trial experience than Garcetti does. Garcetti is interfering, trying to make decisions he doesn’t have the real experience to make. He doesn’t understand that you can’t control the courtroom from a boardroom.”

(Hodgman, incensed by rulings made in the case by Los Angeles Superior Court Judge Lance Ito on Jan. 26, 1995, the second day of the proceeding, came into the meeting, soon after asked to leave, collapsed, and was taken to a hospital. He had not suffered, as initially suspected, a heart attack. Nonetheless, after that, his visible role in the prosecution was minimal.)

Weinstein quotes the DA as saying that before testimony in the case began (on Jan. 31), “there were several contacts a day” with the prosecutors and “[s]ometimes it would go on for a few hours,” as it still might on occasion.

The article continues:

“Over the past week, Garcetti said, ‘I probably talked to one or more of the lead lawyers every day. And sometimes it’s more than once. But these could be five-minute conversations.’

“Garcetti also said he selected the trial prosecutors because they ‘understand, appreciate and accept that I will give them tremendous leeway in handling the case. But there may be a few occasions when I must have the final word.’”

One matter on which he had the final word was whether the death penalty would be sought. He decided against it.

Weinstein’s piece includes that decision among those sparking the charge of micromanaging.

The article attributes to Garcetti the statement that he personally made the call in “any highly controversial or important case” while the “vast majority of death penalty decisions never come to me” and were decided by a standing committee of DDAs.

A spate of legitimate considerations arose on both sides of the question, as well as factors of which cognizance could not properly have been taken.

In which category would you place the heightened prospect of a riot, and possible deaths, upon the rendering of a “guilty” verdict if the penalty might be an execution?

Here was a case where women’s rights advocates, including the vocal Gloria Allred, were clamoring for the DA’s Office to seek a death sentence. Simpson had a history of spousal abuse.

A critic of Garcetti, former Los Angeles Deputy District Attorney Lea Purwin D’Agostino—who retired in 2006 after 29 years in her post, her tenure highlighted by handling prosecutions in the “Twilight Zone” and “Alphabet Bomber” cases—points to another consideration that loomed. She grants that it’s unlikely that Simpson—a beloved football “hero”—would have received the death penalty if convicted, but says:

“When you seek the death penalty, you obviously get a different juror.”

The ex-prosecutor explains that a juror who has been “death qualified”—that is, who has, in voir dire, professed an ability to vote in favor of recommending a death sentence—is a “prosecution-oriented juror.”

An editorial in the Sept. 15, 1994, issue of the Los Angeles Sentinel, a leading weekly for the African American community, points to one reason Garcetti might have had for deciding not to allege a special circumstance that would, if sustained, have permitted a death sentence:

“Virtually all of the black community is galvanized around Simpson for one reason or another. Why take a chance on ticking off a potentially potent voting bloc by going for a death penalty?”

That would have been, clearly, an illegitimate reason.

The editorial continues:

“Another reason Garcetti is stepping back from lethal injection or the gas chamber is because juries have traditionally not opted to convict popular defendants in capital cases or defendants alleged to have committed ‘crimes of passion.’ These are cases where the victims were spouses or other loved ones.

“One most recent classic case is the ongoing murder case involving the Menendez brothers. Even through they admitted killing their parents, both juries, hearing the brothers’ cases separately, couldn’t convict either one of them.

“Thus, by lowering the stakes—as Time Magazine put it—Garcetti raises his chances of conviction by demanding life imprisonment.”

Perhaps Garcetti made the right decision; there are strong reasons for asserting that he did not. Either way it might be viewed, to place his decision—a “life or death” decision—in the category of micromanaging strikes me as absurd.

Those who were around him see the allegation of micromanagement as hogwash.

Hodgman, who was initially co-counsel with DDA Marcia Clark, tells me that “Gil pretty much gave deference to the trial team.” He recalls that Garcetti would sometimes come in on Saturdays while the team was huddling, and call out for pizza for them, while attending to his own matters.

Garcetti’s chief deputy, Sandra Buttitta, says Garcetti was “an active DA” who “kept in close touch with lawyers in major cases” but did not micromanage cases. As to overall operations of the office, she adds, “he was the CEO” but the “day-to-day running” of the office “was left to the management team.”

Hank Goldberg, now a Los Angeles Superior Court judge, was a member of the prosecutorial troupe. He relates he just didn’t have much direct contact with Garcetti.

In his book “The Prosecution Responds,” Goldberg says:

“I never had strategy discussions with Gil regarding my witnesses. I couldn’t quite figure out where the suggestion that he ‘micromanaged’ the case, something I had often heard in the press, originated.”

Garcetti, himself, disputed the allegation during the 1996 election, in which he drew five challengers. An article in Los Angeles Times on Feb 13, 1996, reports that he “said he was ‘involved, yes,’ with the Simpson case but that ‘it was pretty much their case,’ meaning lead deputies William Hodgman, Marcia Clark and Christopher Darden.”

The March 28, 1996, edition of the Daily News reports: “Garcetti said he looked forward to prosecutor Marcia Clark’s book coming out as soon as possible, as a further indication that he did not micromanage the Simpson case.”

Nether Clark’s book nor Darden’s reflects micromanaging by Garcetti. To the contrary, the books relate occasional short conversations and pithy remarks by the DA.

One person who scores Garcetti for not taking a strong enough hand in the case is former District Attorney Robert H. Philibosian, now of counsel to Sheppard Mullin. He accuses of Garcetti of “not giving the appropriate guidance to the prosecutors.”

By way of example, he points out that Clark and Darden were often not present during the trial. By contrast, defense lawyers Johnnie Cochran and Robert Shapiro were “always in the courtroom,” Philibosian notes, remarking:

“Jurors need to relate to lawyers in a case….they’re relating to those attorneys who are sitting there, looking at them, day after day.”

He charges:

“If Garcetti were an effective case manager, he would not have let Darden and Clark be absent from the courtroom.”

The case, Philibosian declares, “lacked effective direction.”

Joe Scott, director of communications for the current district attorney, Steve Cooley, is the person who guided Cooley’s successful 2000 election challenge to Garcetti. An opinion piece by Scott appears in the Daily News on Nov. 22, 1996, reflecting on the runoff election in which Garcetti won by a sliver. He expresses the view that Garcetti’s challenger in the general election, Deputy District Attorney John Lynch, should have pounced on the incumbent for not being enough involved in the case, saying:

“The tightness of the race makes some wonder whether Lynch could have won by focusing voters repeatedly on a single rhetorical question: ‘As D.A., I would have personally tried O.J. Simpson for a double murder. Why didn’t Garcetti?’ ”

If Garcetti did micromanage the prosecution (and it doesn’t appear that he did), and if he should not have done so (and I don’t know why), the question arises: Did that micromanagement result in harm to the prosecution’s effort?

I can see none. What maneuver, what argument, what objection, that Garcetti prescribed or forbade during the trial led to the verdict? No one points to just how the supposed micromanaging had a causal relationship to the result.

The meatier issue, one that was not examined in the 1996 contest, nor illuminated in discussions appearing in newspaper articles or books on the trial, is the one raised by Philibosian: Did Garcetti provide sufficient guidance in the prosecution of Simpson?

Or was the failing not that of the District Attorney’s Office—but of a jury guided by emotion, unwilling to reach the conclusions dictated by the physical evidence?


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