Judge Ito warned the jury that there would be “substantial dark time” as the court grappled with difficult issues. But some testimony was heard, in and around the contentious hearings concerning the relevancy of the Fuhrman tapes.
The most significant of these defense witnesses was the celebrated criminalist Henry Lee, director of the Connecticut State Forensics Science Laboratory, who was touted as perhaps the nation’s premier guru on the analysis of physical evidence. His testimony covered several days. Lee began with a recitation of his background, numerous awards, and expertise. Although Lee said he almost always testifies for prosecutors, he seemed to enjoy an easy rapport with defense lawyer Barry Scheck. Scheck made one gaffe when he described one of Lee’s awards for his work as a “distinguished criminal.”
Lee smiled and corrected, “Distinguished criminalist.”
In fact, he appeared to be just that. And, although much of his testimony seemed to raise questions about the evidence gathering and testing procedures, he was very careful to couch his conclusions with qualifying words, such as “could have” or “might have.”
He criticized LAPD criminalists for placing one of Ron’s blood-smeared boots into a brown paper bag while the blood was still wet, declaring that such careless handling could cause “cross-contamination” of blood samples. And, indeed, DNA tests had disclosed that one of those stains was consistent with a mixture of Ron’s blood and that of the defendant. Lee did not explain how that could have happened if the defendant was home chipping golf balls, or taking a nap, or in the shower.
Scheck turned Lee’s attention to a single drop of evidence, a bloodstain found on a walkway outside Nicole’s condominium. DNA tests had pegged the defendant as the likely source of the Bundy blood drops, but Scheck suggested that LAPD investigators had tampered with the blood swatches before sending them to labs for testing. Lee testified that his close examination of four small patches of blood showed that some had leaked onto the paper packet wrapped around the evidence. The blood swatches could have leaked onto the paper only if they were packaged while wet, he said, yet LAPD technicians had testified that they left the swatches to dry over night.
Scheck wanted to know how Lee accounted for the stains on the packaging.
“The only explanation I can give under these circumstances is, something’s wrong,” Lee answered.
Patti’s assessment of Dr. Lee echoed mine. “This guy certainly has a high opinion of himself,” she said.
Hank Goldberg was brilliant on cross-examination. He got Lee to acknowledge that evidence handling was a less-than-perfect science that did not necessarily reflect a grand, department-wide conspiracy. Lee admitted that during the early years of his work, he and his analysts occasionally used paper towels to dry samples, rather than special blotters. Once, he said, when he was drying a scrap of evidence in his backyard, a dog ran off with it.
“And despite these kinds of problems,” Hank asked, “would it be fair to say that you and your laboratory people … have still been doing very high-quality work?”
“We try our best,” Lee responded.
The prosecutors had argued passionately that the Mark Fuhrman/Laura McKinny tapes should not be played in open court; to do so would only inflame the jury and serve no other purpose. They acknowledged that Fuhrman had lied when he denied under oath that he had used the racial slur during the past ten years, but they still fiercely contended that there was no evidence that the detective could have planted evidence. Without such evidence, the tapes were irrelevant.
However, Judge Ito’s initial ruling favored the defense. He would allow the tapes to be played in court, outside the presence of the jury, before he determined what was admissible.
On August 29, the voice of Mark Fuhrman filled the silent courtroom. “You’ve got two hundred niggers who are trying to take you prisoner,” he said in one interview with the screenwriter ten years earlier. “You just chase this guy, and you beat the shit out of him.” In another excerpt, McKinny asked whether he had probable cause to arrest black suspects.
“Probable cause?” Fuhrman responded. “You’re God.”
In other tapes Fuhrman boasted of fabricating evidence and expressed amazement about the racial makeup of the LAPD’s Wilshire Division. “All niggers,” he said, “nigger training officers, niggers.”
The sickening epithets bounced off the walls, reverberating with hatred. We sat in disbelief at what we were hearing and what the jury might hear. Tears streamed down Kim’s face as she cried silently. Patti fought a wave of nausea. She felt nothing but disgust for Detective Fuhrman, but also realized the absurdity of this smoke screen the defense was throwing in front of the world.
During the lunch break I spoke to reporters, complaining angrily, “This is now the Fuhrman trial. … I don’t understand why the hell we had to listen to two hours of this hate. It’s disgusting. My son, Nicole, our families, have a right to a fair trial. And this is not fair.”
We were still reeling when Defense Attorney Gerald Uelman began arguing why the jury should be allowed to hear the tapes. In an impassioned voice he said, “After we’ve read all of these transcripts and listened to all of these tapes and come to the sickening realization of who Mark Fuhrman really is: Los Angeles’ worst nightmare, probably the greatest liar since Ananias. But the jury has only seen a very polished and professional performance that was carefully orchestrated, in which Detective Fuhrman sounded more like a choirboy.”
Marcia rose slowly and approached the podium. “This may well be the most difficult thing I’ve ever had to do as a prosecutor,” she said. “I don’t think that there is anyone in this courtroom … who could possibly envy me.”
She had one hand placed across her chest as she addressed Judge Ito. “I am Marcia Clark, the prosecutor. And I stand before you today, Your Honor, not in defense of Mark Fuhrman but in defense of a case of such overwhelming magnitude in terms of the strength of the proof of the defendant’s guilt that it would be a travesty to allow such a case to be derailed with a very serious and important but very inflammatory social issue.”
The prosecution offered to stipulate that Fuhrman had lied under oath—a move that would allow the defendant’s lawyers to suggest that the jury disregard all of his testimony.
Marcia continued, listing all the facts that argued against Fuhrman’s ability to plant evidence: Other officers had arrived at the crime scene before Fuhrman and saw only one glove; Kato Kaelin reported hearing three thumps on his wall near where the glove was found, thumps that he heard before police knew of the murders; Fuhrman had no way of knowing whether the defendant would have an alibi for the time the murders occurred; Fuhrman did not even know if eyewitnesses might emerge to testify that they saw the crimes committed by someone else.
Judge Ito interrupted her to add another point bolstering that line of argument: He noted that fibers in the glove were later found to be consistent with those from the inside of Simpson’s Bronco—a fact that Fuhrman could not have predicted when he reported finding the glove.
“This is not something I can rule on from the seat of my pants,” the judge said finally. “I need to sit down and look at each one of these individual situations and make the appropriate ruling.”
We were hopeful. There was simply no legal or plausible reason why the jury should be confronted with these inflammatory, wretched tapes.
On Thursday, August 31, Judge Ito ruled that jurors would be allowed to hear only two short excerpts of Fuhrman using the word “nigger.” In rejecting Fuhrman’s comments of police misconduct in other cases, the judge said that it would require a “leap in both law and logic” to link those comments to this investigation. The fact that Fuhrman had bragged about lying or fabricating evidence in other cases did not mean that he planted a glove outside this defendant’s house, Ito said. “It is a theory without factual support.”
Cochran went on the attack, staging a news conference outside of his Wilshire Boulevard office. Flanked by other “Scheme Team” members, he said that the ruling was “perhaps one of the crudest, unfairest decisions ever rendered in a criminal court.” Then, in a display of unmitigated gall, he urged residents to remain calm, as if a Godlike signal from him would ignite riots, burnings, and general mayhem. He accused Judge Ito of “doctored, tortured reasoning” and proclaimed: “The cover-up continues.”
In an interview after the news conference he ranted, “This inexplicable, indefensible ruling lends credence to all those who say the criminal justice system is corrupt. This is unspeakable.”
Peter Neufeld joined the fray. “It is a victory for racism,” he said. “It’s a green light for a rogue and racist cop to engage in brutality, evidence tampering, and the fabrication of probable cause with impunity.”
Gil Garcetti released a statement through a spokeswoman: “While we decry racism, these tapes are for another forum, not this murder trial. The court’s ruling will help keep the focus where it should be: on relevant evidence that allows the jury to determine whether Mr. Simpson is responsible for the murders of Ron Goldman and Nicole Brown Simpson. Now let’s get on with the trial and get it to the jury.”
I was relieved, and hoped that the volatile issue would be put to rest. Speaking to a group of reporters gathered outside our home, I said, “We hope that this is an indication that this trial will be back on track. We all want to thank the judge for his time and effort.” And then, referring to Cochran, I added, “I’m sure he is disappointed that he can’t turn this trial into a racial horror. He should be ashamed of himself for trying.” But Kim believed that conjugal “pillow talk” would spread the word to the jurors. Whether the judge allowed one excerpt or twenty, the damage was done.
Fallout from the Fuhrman interviews continued. In Washington a federal official announced that the Justice Department would review allegations of civil-rights violations arising from the interviews. In Los Angeles Fuhrman’s attorney, Robert Tourtelot, announced he was “profoundly disgusted and horrified” by his client’s comments and thus could no longer represent him. We respected that decision by Bob, who remained as our attorney for the dormant civil suit.
Saturday night—in an attempt to unwind—we went out to dinner at a Chinese restaurant in Thousand Oaks. We had driven two cars that evening, and Michael was driving me home when we encountered a sobriety checkpoint set up on Thousand Oaks Boulevard. This was not a problem, for we had not been drinking. But as a Ventura County police officer approached the car, he saw Michael’s billy club, the O. J. Beater, in plain view in a cavity between the dashboard and the windshield.
“Why do you have that?” the officer asked.
“Just in case I have a problem at night,” Michael responded truthfully.
The officer asked him to step out of the car and walked him over to the sidewalk. I tried to follow but was ordered to stay back.
The first officer called over several others. They were pleasant, but informed Michael that possession of the billy club was illegal. “If you had a gun, it would be a misdemeanor,” one of the officers said. “But this is a felony.” They searched him, and prepared to arrest him, handcuff him, and take him to the station. He was terrified. They said that I could come down to the station and post bond.
Confused and upset, I tried to intervene on his behalf. “This is crazy,” I said. “Michael’s a good kid. He’s just frightened. He wasn’t hiding anything. He didn’t know he was doing anything wrong.”
That failed to impress the officers. With Michael in tears, they prepared to haul him away.
I did not expect any special treatment, but I thought that it would be appropriate to explain who we were, so that they might understand why Michael was frightened enough to carry protection. I said, “I don’t know if you recognize who I am, but Ron Goldman was my son, Michael’s brother, and—”
“—I don’t give a damn who you are,” a single officer snapped.
The only thing that saved us from a trip to the police station was that the officers finally checked Michael’s driver’s license and determined that he was not yet eighteen. Since he was a minor, they issued him a citation.
Right and wrong, good and evil, seemed to be inverted.
Blocked from using most of the inflammatory tapes, the defense decided to call other witnesses who would paint Fuhrman as a racist. As Loyola law school professor Laurie Levenson said, “If they don’t get what they want behind door one, try door two.”
She was right. On Tuesday, September 5, after cooling its heels for a week, the jury was allowed back into the courtroom. The defense called real estate agent Kathleen Bell to the stand. The plump, blond witness fought back tears while telling the jury that Fuhrman had told her during their first meeting that interracial marriages were disgusting and that African Americans should be “gathered together and burned.”
Of course, we had no way of knowing what, if any, information had filtered into the jury from the outside, but this was the first time jurors had been presented with evidence of Fuhrman’s alleged racism and willingness to lie under oath.
Michael was in the courtroom that day. Every time he heard the inflammatory word he looked at the jury. He thought: That’s it, it’s done. It’s all these jurors need. You could show them a video of the killer slaughtering Ron and Nicole but, because Mark Fuhrman had used the N-word, nothing else mattered.
Near the end of the day, with McKinny on the stand, the defense played the two allowable tape excerpts. “They don’t do anything,” Fuhrman said of women police officers. “They don’t go out there and initiate a contact with some six-foot five-inch nigger who’s been in prison seven years pumping weights.”
“That was his voice?” Cochran asked.
“That’s his voice,” McKinny answered. “No doubt about it.”
Kim was devastated. We all were.
The admission of the racial issue was, in our view, completely unwarranted. I tried very hard to look at that and say objectively, “Do I really believe that this had a place?” And I kept coming back to the answer, no. Whether or not this police officer used vile language ten years earlier was of no relevance at this moment in this trial. The judge should have made the defense team show the relevance.
The defendant was not a run-of-the-mill criminal who happened to be black. He was a celebrity who did not function in the black world. To make that leap, Judge Ito had to go beyond reason. Once he let in the issue of race, he opened the floodgates, and justice was in danger of drowning.
Here was the essence of the defense team’s argument to the jury:
a) Fuhrman said something disgusting.
b) Therefore, he did not like black people.
c) Therefore, he did not like the defendant.
d) Hence, he planted evidence and engineered a widespread conspiracy, convincing dozens of his colleagues to become accessories to a double homicide, which, if the defendant were convicted and executed, could theoretically make them subject to the death penalty as well.
To that convoluted reasoning I could only add: e) Give me a break.
Clearly it was the Fuhrman trial now, and Patti’s reaction to the detective’s original testimony proved terribly prophetic. When Furhman had denied having used the racial epithet at any time during the past ten years, Patti knew immediately that he had lied and jeopardized the entire case. Now he was to reappear before the court, called by the defense to be asked directly whether or not he had lied. Judge Ito ordered the examination to occur outside the presence of the jury, so that he could consider its admissibility.
It was widely reported that Fuhrman, now retired from LAPD and living in Idaho, would hide behind his Fifth Amendment right against self-incrimination. And the problem was, he could not exercise that right selectively. The Fifth Amendment offers blanket protection; a witness cannot invoke it only for selected questions. Therefore, if Fuhrman answered one single question, he would face a wide range of additional questions.
Kim went to court alone this day, Wednesday, September 6. The investigators who always escorted her from the parking garage to the D.A.’s office knew that she was beside herself with fury. They brought her in through a different hallway than usual, and Kim demanded to know why. When they would not tell her, she knew that they were hiding something from her. Indeed, Fuhrman was sequestered in a room nearby, and the investigators did not want Kim to encounter him.
In court, sitting alone in the front row of the spectators’ section, Kim had to endure additional testimony about Fuhrman’s obvious biases and his alleged misconduct. Laura Hart McKinny added sexism to the list of Fuhrman’s “crimes,” reporting his complaint that female police officers do not support “certain cover-ups that some men on the police force are doing.”
Then came the testimony of Roderic Hodge, a soft-spoken black man, who said that, after his arrest in January 1987, he was sitting in the back of a police car when Fuhrman said to him, “I told you we’d get you, nigger.” Hodge was tried and acquitted on drug charges.
After this, the jury was excused, instructed to wait upstairs in a lounge.
A tension-filled silence spread across the courtroom. Kim turned to see Fuhrman entering, surrounded by several bodyguards, who took up stations by the doorway. Fuhrman’s eyes scanned the courtroom for a moment. Then he moved forward, pausing briefly to pat the shoulder of CNN reporter Art Harris.
Marcia and Chris turned their backs. Cochran gloated and shared jubilant high-fives with the defense team. Their behavior was, as usual, inappropriate and disgusting.
Defense Attorney Gerald Uelman asked Fuhrman, “Was the testimony that you gave at the preliminary hearing in this case completely truthful?”
Fuhrman leaned over and whispered to his new attorney, Darryl Mounger. Then he answered, “I wish to assert my Fifth Amendment privilege.”
Uelman asked, “Have you ever falsified a police report?”
“I wish to assert my Fifth Amendment privilege.”
“Did you plant or manufacture any evidence in this case?”
“I wish to assert my Fifth Amendment privilege.”
By invoking his constitutional right, Fuhrman in no way admitted to wrongdoing, but he gave the defense a huge psychological boost. The entire prosecution team appeared demoralized. So were we.
Kim was unaware that by answering even one question Fuhrman would negate the blanket protection of the Fifth Amendment. She was frantic. She wanted to scream: Why can’t you just answer NO?
As Fuhrman and his bodyguards left the courtroom through a private doorway, the defendant hunched over the defense table and buried his face in his hands—perhaps so that no one could see if he was crying or laughing.
Brian Hale was the only African American on the team of D.A. investigators, and we were concerned for him. He confided to us that he got “weird vibes” from Fuhrman, and we knew he had to be disturbed by all of this. It was ironic that now, when Fuhrman needed protection to come back in and plead the Fifth, it was the D.A.’s investigators who provided it.
Upstairs in the D.A.’s office, Kim encountered Chris. “Chris, I want to scream at him,” she said.
“I’ll help you,” Chris replied. “Where do you want to go? What do you want to do? Do you want to be alone with him?”
“Yes,” Kim said.
Bill Hodgman approached and asked, “What’s going on?”
“I want to talk to him,” Kim declared again.
“Kim,” Bill said softly, “what’s that going to prove?”
Hank Goldberg joined the conversation. “Why do you want to, Kim?” he asked.
Kim felt that Chris was encouraging her, egging her on. She thought he knew that she would say the things to Fuhrman that he longed to say. But Bill and Hank cautioned, “Don’t sink to that level.” It was like being pulled between a devil and an angel—revenge against restraint. Kim felt her characteristic signs of stress. Her stomach was in open revolt. An excruciating pain in her elbow moved up her arm.
Finally Kim made the decision not to confront Fuhrman. “They were right,” she told us later. “It wouldn’t do any good. The damage had already been done.”
Kim sometimes regrets that decision. Her mind replays the speech she would have delivered: I don’t understand the kind of arrogance that comes over someone like you. It is your fault that you’re a racist. You lied and you knew you were lying. Why did you have to drag everyone else down with you? I trusted you. You are a police officer. You are what I was raised to respect and obey.
You are a despicable human being!