The Search for Justice (55 page)

Both the prosecution and defense had been aware of the potential conflict posed by Captain York from day one. And both sides
had agreed to take a waiver allowing Judge Ito to hear the case. The very reason for taking a waiver was to acknowledge potential
problems down the line, since York was an important police official.

Judge Ito was upset by the prosecution ’s bid to disqualify him. He saw no choice but to make some accommodation to their
concerns, even though it raised the specter of a mistrial. In a session held outside the presence of the jury, he said, “I
love my wife dearly, and I am wounded by criticism of her.” He was on the verge of tears, but continued: “I therefore recuse
myself on the matter of the tapes themselves, and on the decision as to whether or not Margaret York will testify.”

That wasn ’t enough for the prosecution, however. Clark wanted a complete recusal, and a new judge.

The following day, because of the prosecution ’s actions, Judge Ito had packed up all the case materials in his office. He
seemed resigned, indeed relieved, at the prospect of leaving the case and having another judge take over.

However, a somewhat subdued Clark came back willing to accept Ito ’s offer of a partial recusal. I suspect the prosecution
was sobered by the idea of a mistrial caused by their loose-cannon witness. Perhaps cooler heads had prevailed, or the district
attorney had decided to take a chance with things as they were.

Judge Ito would rule on the admissibility of the tapes; Superior Court Judge John Reid would rule regarding Margaret York.
Within a brief two days, Reid decided that York ’s testimony would be of no benefit or import to this trial, and the matter
was once again put to rest. Judge Ito would continue to preside as the sitting judge at the trial.

In the lockup, O.J. passed the time by doing one of two things: playing solitaire, hand after hand, or reading a book. Every
other day, it seemed, there was a new book that he ’d consumed and wanted to talk about.

During the week he had court every day. The weekends, however, were particularly hard for him. Officials had reduced his telephone
time, and they ’d even cut back on his “freeway” time, when he was allowed to walk back and forth in a narrow corridor without
anyone to talk to. It was like being in solitary confinement. On one rare occasion, he blew up at the deputies. He was watching
a ball game on the television just outside his cell, and at a crucial point they switched to a local program that featured
former police chief Darryl Gates—talking about the O.J. Simpson case. It seemed that no matter where you were, you just couldn
’t get away from it.

Barry Scheck ’s anger at Marcia Clark had been simmering ever since she ’d ordered him to shut up in Judge Ito ’s chambers.
He couldn ’t believe that she would argue to keep the tapes out just to maintain the integrity of her witness, Mark Fuhrman.
“The man lied under oath!” he said. “How can they suborn his perjury?”

Scheck ’s DNA work in particular had always been focused on undoing the damage caused by prosecutors in falsely convicting
innocent defendants. Scheck ’s indignation naturally spilled over whenever he felt prosecutors were being given unfair advantage
in a courtroom they viewed as their home court, with a judge they thought should be a “home referee.” That kind of arrogance
was a natural outcome of the Divine Right of the Prosecution. However, I believed that while Judge Ito was a pro-prosecution
judge, he would be fair. I believed that not only would he allow us to impeach Fuhrman ’s testimony about the use of the
n
word, we would be given license to show broader police misconduct as well. Naturally the prosecutors were going to fight
that as long as they could. They had no desire to see the Simpson trial turn into the Fuhrman trial.

“He found the glove, he didn ’t plant it,” said Gil Garcetti.
“He lied,” was the defense response. Meanwhile a restive jury was sitting in isolation outside the courtroom, while Ito decided
if they ’d ever hear about Fuhrman ’s lies. As Ito had warned us, “I ’m very concerned about the durability of this jury.”

Nevertheless, the very existence of the tapes gave us a tactical advantage we didn ’t have before. Our colleague Bob Blasier
said that in each of his trials there had come a point when he would become convinced of the outcome. “I think this is it,”
he now told me. “I think we ’re going to win.”

In late August, with the jury still waiting in sequestration, Gerald Uelmen presented his impassioned motion to admit the
Fuhrman tapes, and Marcia Clark responded with an equally impassioned plea that they not be admitted.

The argument began with the screenwriter who had recorded the tapes, Laura Hart McKinney. Clearly, she was not a witness who
could be impeached on any level. Her credibility had nothing to do with whether the jury would or would not hear the tapes.
All she was going to testify to was that she had recorded the tapes herself, and that it was Mark Fuhrman ’s voice on them.
Her testimony would be given without the jury present, since it was relevant at this point only to the admissibility of the
tapes. The prosecution, and in particular Chris Darden, nevertheless tried to make McKinney look like a liar.

On August 29 the tapes were played in the absence of the jury, in order to decide what portion of them, if any, the jury would
hear. For two emotional hours, the judge, the attorneys, and the courtroom observers sat and listened for the first time to
this torrent of obscenities. Fuhrman used the word “nigger” more than forty times, and that wasn ’t the worst of it. As our
original contact had reported, the tapes were a textbook for police brutality and witness intimidation, all stemming from
hatred so profound it was like a physical, toxic presence in the courtroom. Fuhrman talked about beating people and breaking
their bones, about pounding their faces into mush, about how
“every word out of a nigger ’s mouth is a lie,” about how he ’d planted or manufactured evidence to “set niggers up.” He preened
about his importance as a key witness in the Simpson case. “If I go down, they lose their case.… The glove is everything.
Without the glove… bye-bye,” he said. It went on and on, becoming more and more obscene, until finally the only possible human
response was nausea. Or a desire to crawl out of your skin.

Johnnie Cochran was uncharacteristically silent after the tapes had ended. So were the prosecutors. I was speechless. In twenty-five
years as a lawyer, I ’d seen and heard a lot behind the scenes, but this was beyond anything in my imagination. These were
the words of a deeply disturbed man. How could he have remained on the police force?

Chris Darden looked agonized and shaken. When Gil Garcetti arrived for a private conversation with his courtroom team, Chris
was obviously struggling to focus on his boss ’s words.

The reporters in the room were silent as well, and completely stunned. Later I learned that Linda Deutsch, the AP reporter,
glanced over at Dominick Dunne and they discovered they ’d written exactly the same words in their notebooks.
It ’s over.

Outside the courtroom, Ron Goldman ’s family expressed their outrage that the trial had, in their estimation, now become the
Mark Fuhrman trial. I remembered turning around one day in court to see Ron ’s sister, Kim Goldman, watching me. “You son
of a bitch,” she mouthed silently.

On the last day of August, in a ten-page ruling, Judge Ito stated that the bulk of what we ’d all heard in the courtroom would
not be admissible. He would, however, allow two incidents to be played to the jury. The two admissible references were relatively
innocuous, and they would go only to substantiate Fuhrman ’s use of the
n
word. It seemed a crushing rejection for the defense. The jury would hear nothing from Fuhrman about beating up witnesses,
nothing about planting evidence,
nothing about his behavior, which to my mind was clearly pathological.

On September 5, a quietly attentive jury heard the admissible portions of the tapes. On September 6, outside of their presence,
Fuhrman was recalled to the stand, and he proceeded to exercise his right of protection against self-incrimination. It was
his intention, he stated, not to respond to any and all questions, from either the prosecution or the defense. He would, instead,
assert his Fifth Amendment privileges.

Judge Ito ruled that he would not call Fuhrman back to the stand in front of the jury, saying that it would be incorrect to
call a witness knowing in advance that he would answer with the Fifth. The defense was understandably disappointed in this
decision. Would he
tell
the jury, then, that Fuhrman had taken the Fifth? Ito turned down this option as well. The defense then offered a possible
compromise. We proposed that he inform the jurors that Mark Fuhrman was now “unavailable” for further testimony, and the jury
could use that information to make their own evaluation of his credibility as a witness.

Ito agreed to offer this softer instruction, but the prosecution immediately appealed it. When the State Appeals Court overruled
Ito ’s decision, assistant district attorney Cheri Lewis was reported in the
New York Times
as being seen happily skipping out of Judge Ito ’s courtroom.

Without the tapes, we still offered several witnesses to impeach Detective Fuhrman ’s credibility to this jury. One, Kathleen
Bell, a white woman, reported Fuhrman having said that he routinely stopped couples if the man was black and the woman was
white, even if he had to manufacture a reason to do so. “If I had my way, they ’d gather all niggers together and burn ‘em,”
he told her.

Another witness, Roderic Hodge, was once arrested by Fuhrman, who told him, “I told you I ’d get you, nigger.”

Yet another, Natalie Singer, repeated what Fuhrman had once told her was his motto: “The only good nigger is a dead nigger.”

And finally, Laura Hart McKinney informed the jury that she had recorded these tapes. She confirmed that Mark Fuhrman had
used the
n
word forty-two times. Even more damaging, she said the limited portions that had been played for the jury were the least
offensive, the least inflammatory, of the entire fifteen hours of tapes. I suspect that leaving the other forty references
to the jurors ’ imaginations was a powerful “piece” of evidence in and of itself.