CAR TAPE. February 28. I’d like to trade lives with just about anybody right now. “County jail inmate” sounds good.
During the days before Mark Fuhrman took the stand, he was a pain in the ass. He’d hulk into the office in the company of three beefy bodyguards lent to him by the Metro Division. Chris was supposed to be looking after him, but instead went out of his way to stay clear of the scene. So Cheri Lewis usually drew the short straw and had to baby-sit. Once he settled into Cheri’s office, Mark would spend his hours sulking, throwing tantrums, or wailing about how the defense had ruined his life.
Not that I wasn’t sympathetic. At a personal level my heart went out to him. Publicity seekers, hucksters, disaffected cops and county workers, and wackos of every stripe were streaming out of the woodwork to recall supposed locker-room boasts that he’d had an affair with Nicole Brown or had painted swastikas on the lockers of fellow officers. IAD had looked into the allegations. They all turned out to be bullshit.
Mark was clearly the object of a witch-hunt. But I felt that we were spending entirely too many hours mollycoddling one witness. Mark Fuhrman just wasn’t that important. He’d found a single piece of evidence in a case that involved dozens of equally inculpatory findings. He’d had nothing at all to do with the blood at Bundy, the blood in the Bronco, the hair and fibers on Ron Goldman and on the knit cap, the blood and fibers on Simpson’s socks. Under normal circumstances, any one of these would have been enough to nail a defendant.
Fuhrman was a big deal only because the defense required a bogeyman to distract the jury from the devastating evidence against their client.
Almost every day, the defense made some attempt to inject race into the courtroom. It seemed to me the height of immorality-cynically exploiting a serious social issue for the benefit of a murderer who’d never lifted a damned finger to advance the cause of civil rights. O. J. Simpson wasn’t “rousted” by a band of racist cops-the evidence demanded that he be arrested and tried. You can call the cops sloppy, you can call me and my colleagues inept, but the facts showed that Simpson was guilty. The deliberate twisting of reality to distort this horrific murder into a racial cause was the biggest lie told in the entire case.
And by the time Mark Fuhrman hit the stand, the Big Lie had done its damage. It was even beginning to affect our own thinking. We spent way too much time playing defense. Every so often I had to shake myself back to reality. This case was about rage and control. It was about compelling and overwhelming circumstantial evidence pointing to the guilt of one man and one man alone. To the extent that we allowed ourselves to be distracted by false issues, we failed to fulfill our duty to the People.
As for our whining detective, the only question on the table, as far as I was concerned, was “Did Mark Fuhrman plant evidence?” The answer was an obvious “No.” We’d established beyond doubt that there was only one glove at Bundy when the first officers arrived. There was still only one glove there when Mark arrived two hours later. He couldn’t have planted evidence even if he’d wanted to. The issue of whether he was a racist was completely irrelevant. Or, at least, it should have been.
Lance Ito screwed us on that one.
Back in January, you’ll recall, we’d argued against allowing the defense to introduce evidence that Mark Fuhrman had ever uttered the word “nigger.” It would serve no purpose, we warned, but to antagonize the jury. Ito originally agreed with us, but then, as usual, reversed himself. Of the many errors Ito made during this trial, that one was the most blindly destructive. It was also the most far-reaching. Once he’d allowed the N-word in, he was forced to make a series of bad decisions all the way down the line. In the aggregate, they assured a miscarriage of justice.
The N-word ruling hung around our necks like an eight-hundred-pound albatross. We should have been able to have Mark Fuhrman testify to the very limited area of the case of which he had knowledge. Now, by putting him on the stand, we risked provoking a riot in the jury box.
So why didn’t we just refuse to call Fuhrman as a witness? Simple. Leaving him out would have been worse.
What would have happened if we hadn’t called him? It’s not as if he’d have disappeared from the case. The defense would ask every witness, at every opportunity, why Mark Fuhrman wasn’t at this trial. “Is he beyond subpoena power? Is he refusing to testify? No? I see.” Net result? We’d look like we were hiding him. Why would we do that? Because we had something to hide. And then, this theme would be sure to reach its crescendo during closing arguments, where the law explicitly permits either side to comment on the failure of the other to call a logical witness. The defense would blow us away.
Or, even worse, they might have called Fuhrman themselves! Gerald Uelmen had already announced their intention to do precisely that. Back in January, he’d made a not-so-veiled threat: if we didn’t present Fuhrman, “he will make another appearance in this case, being called as a hostile witness by the defense.” If that happened, they could really go crazy on us.
“Did the prosecution ever subpoena you?” they’d ask him. “Did they tell you why they didn’t? You found the glove at Rockingham, right? Would you agree that was a pretty important piece of evidence? Isn’t it true the prosecution didn’t call you because you’d be forced to admit that you planted that glove?”
Of course, we’d object. And our objections might have been sustained. But the damage would have been done.
Look, if I could have thwarted the race card by not calling Fuhrman, I would have crossed him off the witness list in a heartbeat. But failure to produce him would simply have aggravated the controversy. The only course open to us was to call Fuhrman and try to block the kicks.
I was guardedly optimistic about the possibilities for damage control. We had in our possession only three pieces of evidence to suggest that Mark had ever used the N-word: the Joseph Britton civil case against the city; the statements Fuhrman had made as part of his disability claim against the city; and, of course, the letter from Kathleen Bell. Only one of those three had a chance of getting admitted into court, and even that one had some pretty big credibility problems.
Britton, you’ll recall, was the African-American robbery suspect who’d been shot leaving an automated teller machine back in 1987. He’d claimed that the cop who shot him then planted a weapon at his feet to justify the shooting. On top of it all, the cop supposedly shouted, “You stupid nigger. Why did you run?” Fuhrman was one of the policemen who had apprehended Britton. Now the defense wanted to present Britton as a witness, apparently to finger Fuhrman as his tormentor. But once we checked them out, those allegations fell apart. In a deposition after the fact, he’d described the officer who’d shot him as having “red hair and a mustache.” Not our Fuhrman. And in an interview with CBS News in October 1994, Britton was asked point-blank if Fuhrman had said anything racial to him.
“At this point-no,” he replied. “I can’t say that he did.”
What the heck does that mean? At some point in the future, you’ll decide that he did?
Ito found the value of Britton’s testimony to be “highly speculative” and dismissed it out of hand.
Fuhrman’s disability claim was more complicated. There seemed to be no question that Mark had popped off to his shrinks about “Mexicans and niggers,” but even the doctors who examined him concluded that he was exaggerating, perhaps lying outright, about the degree of racial hostility he felt. The suit was dismissed after the examiners concluded that Mark was faking.
I could believe this. It is no secret around law enforcement that cops will tell whoppers to get an early pension. A pension can be quite a windfall. What troubled me was the nature of the lie. Why had he chosen to portray himself as a raving racist? I knew Mark had been assigned to some pretty rough neighborhoods. Gangs, dope, poverty-in South-Central and East L.A., all conspired to produce one of the highest rates of violence in the nation. A cop who butts heads with hoods day after day after day can suffer a nasty case of burnout. But Mark’s anger seemed directed at criminals in general-not minorities in particular.