“Did the conversation Kathleen Bell describes in this letter occur?” I asked him.
“No, it did not.”
Mark sailed confidently through the rest of direct. He was smooth and relaxed. The irritability and childish petulance of the past few months had vanished. No one watching him on the stand today would ever believe all the hand-holding sessions that had led to this moment.
Throughout Mark’s testimony, opposing counsel was unexpectedly quiet. Lee Bailey was in charge of Fuhrman’s cross; he voiced no objections and he took no notes. I found that interesting. Now, it’s true that the prosecution’s witnesses seldom deviate from their written statements, which we hand over to the defense during discovery. But no one ever says the same thing in exactly the same way. Sometimes those variations are significant. If an attorney’s not taking notes, he’ll have a hard time remembering the distinctions when it’s time for cross.
Bailey’s failure to take notes told me one of two things. Either he had a hell of a memory-or he’d already prepared a cross-examination from which he would not deviate. I didn’t think it could be the first. At sidebar, his hands trembled so badly that he could barely read the papers he was holding. If the problem was alcohol, as rumor had it, then his memory couldn’t be all that great. The second scenario seemed more likely. If he truly did have a preset program, then it was likely to shake Bailey up a bit if I threw in something a little obscure. Something he might have overlooked.
That led me to a mistake. Mark had told me about a large plastic bag he’d found in the rear of the Bronco. It was his theory that Simpson might have intended to use it to carry Nicole’s body away from the murder site. I figured I’d throw it out to see what old Bailey made of it. So late on Friday afternoon, March 10, I ticked off an inventory of evidence from the Bronco, including a shovel “about five feet long” and a large piece of “heavy-gauge plastic” that had been tucked into a side pocket in the cargo area. Mark identified these items as the ones he’d seen when he looked through the window of the Bronco the morning of the thirteenth. Let the jurors draw their own conclusions.
It is an understatement to say that things didn’t work out as I’d planned. I was getting ready to end my direct when Ito decided to break for the day. That left Bailey with the entire weekend to figure out how to counter the bag business.
It turned out to be a no-brainer. That weekend, owners of Ford 4X4s all over America flooded our phone lines to report that the plastic bag was standard-issue in Broncos.
Man, did I want to hide under a bed.
On Monday morning, with Mark back on the stand, I swallowed hard and asked him about the plastic bag again. “Do you happen to know whether it belongs in a Bronco?”
“Well, now I do,” he said.
“And what is it?” I asked, setting up the punch line for which I was the joke.
“It is the spare-tire bag,” Mark said.
I vowed to swear off cute tricks for all eternity.
Much of the civilized world tuned in to catch the opening day of Bailey’s cross-examination of Mark Fuhrman. That’s just what Bailey had hoped for. For weeks now he’d been pounding his chest and blustering to the media how he would do the most “annihilating, character-assassinating” cross-examination ever. Now millions of viewers were dangling over the walls of the virtual Colosseum in eager anticipation of a bloodbath.
When Bailey approached the witness, he couldn’t resist jabbing the bamboo under our nails.
“Can you tell us when it was that you were enlightened to the fact the plastic you saw in Mr. Simpson’s Bronco comes with the car?”
“I believe it was Saturday,” Mark replied.
“So after nine months of investigation, you discovered on Saturday that this important piece of evidence was perfectly innocuous. Is that right?”
Ouch.
I have to say that I found myself admiring Bailey’s style. Unlike every other member of the Dream Team, who tended to meander and become mired in meaningless detail, Bailey kept his cross on course. I enjoyed watching him as I had enjoyed watching no other member of that defense. There was a glimmer of real lawyering here.
As he steered the cross to Kathleen Bell, I held my breath. I would have to practice a judicious restraint. I didn’t want to object unless I absolutely had to. We didn’t want to appear to have something to hide. Above all, I didn’t want to object and have Ito overrule us. That would make it look as if we were trying to “cover up a racist.” But I would have to be ready to jump in if the cross turned into a mêlée.
“Detective Fuhrman,” Bailey exhorted, “would you take a look at this photograph of a blond woman and tell me whether or not that is the person that was being interviewed on Larry King when you watched the show at the request of the prosecution?”
Bell’s photo was flashed on the screen. Mark turned to look at it.
“I do not recall ever meeting this woman in the recruiting station or anywhere else.”
“Ever had any contact with any relative or possible relative of Kathleen Bell in your capacity as a policeman?”
“I would have no way of knowing that,” Mark replied. “The name Ms. Bell does not ring a-”
“The name Bell doesn’t ring a bell, is that what you were trying to say,” Bailey said, finishing his sentence.
Chuckles rattled through the audience. Even a few of the jurors grinned.
Good, I thought to myself. A soft denial. That left room for the possibility that he could have met her, but had simply forgotten.
Mark was holding his own. He didn’t let Bailey push him into any categorical denials. That was good. And in the hours that followed, Fuhrman kept his cool under the questioning of the old warrior.
As we went on to day three, I thought I could detect a hint of desperation in Bailey’s voice. So far, he’d failed to deliver his Perry Mason moment. Now he locked in on the subject that he hoped would deliver a knockout blow.
He started by bringing up, as I’d dreaded, Chris’s misguided grand jury room session with Mark. During our arguments before Fuhrman’s testimony began, Bailey had displayed a great deal of knowledge about that mock session. He knew that the Bell letter had come up, and now he asked Mark about the racial epithets Bell had described.
“Did any of the questions [in the mock cross] require you to say whether or not language of that sort was part of your vocabulary?” asked Bailey.
“I might have offered that,” said Mark.
“Ah,” said Bailey. “Tell us please, what was it you offered these lawyers in that room about your vocabulary, Detective Fuhrman?”
I objected, claiming that it was irrelevant. It was, but Ito had already committed himself to allowing this filth. Overruled.
“Would you answer?” Bailey persisted.
“Yes,” said Fuhrman. “That I don’t use any type of language to describe people of any race such as what is alleged by Kathleen Bell.”
Bailey was circling in for the kill, and I couldn’t do a damned thing about it except hope that Mark would give himself some wiggle room. As Bailey began to ask Fuhrman the questions that would deny him that space, I objected, and though Ito sustained a couple of my objections because Bailey’s phrasing was vague, I knew I was only staving off the inevitable.
Bailey would not be denied. “Do you use the word ‘nigger’ in describing people?” he spat.
I had no choice. “Same objection,” I interjected again.
“Overruled.”
“No, sir,” Mark answered.
“Have you used that word in the past ten years?”
“Object,” Chris hissed at me. This was the guy who was going to treat Fuhrman as a hostile witness, right? Now he’s pushing me to run interference. But I couldn’t object again. I knew that very question had been asked of Mark by our side in the grand jury room session. If so, Bailey could make a fool of me if I spoke up: “Why would Miss Clark object to the very question that the prosecution themselves posed to Detective Fuhrman?” My objection would make me look like a liar and a racist myself-like I was trying to hide whatever offensive remarks Fuhrman had given to us.