Coming near the conclusion of the defense case, it capped the successful strategy to put Fuhrman-and the Los Angeles Police Department–on trial. “Was the testimony you gave at the preliminary hearing completely truthful?” asked defense lawyer Gerald Uelmen, in the first question to Fuhrman. “I wish to assert my Fifth Amendment privilege,” answered the now retired, 19-year LAPD veteran. Two more questions, then Uelmen went to the heart of the defense ease: “Did you plant or manufacture any evidence in this case?” Fuhrman declined to answer again.
It was great theater for the four minutes it lasted, but for the defense 12 important players were out of earshot: the jurors. Judge Lance Ito ruled that a witness can’t be forced to take the Fifth in front of a jury. But an appeals court, acting on an emergency motion by prosecutor Marcia Clark, told Ito not to explain anything to the jurors. For them, Fuhrman would just vanish. It was an extraordinary intervention by an appellate court into an ongoing trial. And it didn’t please the defense, which had planned to rest its case after Ito’s explanation of Fuhrman’s absence. At the weekend, the defense team was threatening not to rest immediately and instead to try to force a confrontation over the ruling that Fuhrman couldn’t testify. “I’m not going to be part of their charade,” Simpson attorney Johnnie Cochran told Newsweek.
Prosecutors could hardly erase the damage already inflicted on one of their critical witnesses. Earlier in the week in front of the jury, several witnesses had established Fuhrman’s racial animus, recounting incidents where Fuhrman slurred blacks. The jury also got to hear small portions of the tapes recorded by Laura Hart McKinny, the aspiring screenwriter who had interviewed Fuhrman for research on a possible movie about cops. McKinny said that, in all, she heard Fuhrman say the word “nigger” about 42 times-contrary to his earlier testimony that he hadn’t used the word in 10 years. None of this could go down easily for a jury that in-eludes nine African-Americans. A source close to the prosecution told NEWSWEEK: “The mood is gloomy. The optimism about a conviction has faded into hope for a hung jury.”
To some extent the state had only itself to blame. Prosecutors seemed un-focused and erratic in their questioning last week. In cross-examining McKinny, for instance, prosecutor Christopher Darden needlessly attacked her credibility even though she was merely someone who had taped Fuhrman’s own words. There were also suggestions that the state could have sidestepped the Fuhrman fiasco entirely by not putting him on the stand. Lucienne Coleman, a deputy district attorney, gave a signed statement to the court that contends her colleagues failed to follow up on negative information she passed on about Fuhrman. Among the tidbits: Fuhrman was allegedly known to wear Nazi paraphernalia on weekends. She quoted Clark as responding, “‘This is just bull–t put out by the defense!’ “Ito has ruled the jury will not get to see Coleman’s statement.
Prosecutors maintain they had no specific information that Fuhrman was lying on the stand. Clark said that Fuhrman’s racial views amount to “sludge” compared with the scientific evidence against Simpson. And they insist, rightly so, that the defense has presented no credible evidence that Fuhrman planted the bloody glove.
One last-minute question for the defense was “Will Simpson testify?” Cochran left open a slight window but probably just to keep ratings up. With the epithet “nigger” ringing in the courtroom, O.J.’s lawyers have concluded that jurors are pretty much on his side-so he needn’t take the risk of a cross-examination. If nothing else, the defense case has remained fairly consistent from the days it was first enunciated by lawyer Robert Shapiro.
While Fuhrman was obviously the defense’s most potent weapon, O.J.’s lawyers nibbled away in other areas to try to create reasonable doubt in the state’s case. They called witnesses who testified that Simpson wasn’t acting out of the ordinary before and after the murders. The defense also put on a parade of neighborhood witnesses who suggested that the murders took place 20 minutes or so later than the state says–too late for Simpson to then return home to catch a ride to the airport. Despite the state’s suggestion that they were mistaken, the witnesses appeared to put a dent in the state’s time line.
To attack the potent DNA evidence, the defense suggested the blood collection and testing was so sloppy that the results are meaningless. This garbage-in-garbage-out strategy began during the prosecution case, in relentless cross-examination of criminalists Dennis Fung and Colin Yamauchi. The defense’s own expert witnesses, including medical examiner Dr. Henry Lee, also raised doubts about the sloppy use of evidence. Prosecutors pointed out that some of the testing that implicated Simpson was done by civilian labs outside the LAPD’s control. But that was no problem for the defense scenario: what blood wasn’t fouled by incompetent LAPD criminalists was planted by crafty cops conspiring against O.J. How else to explain a bloody sock found in O.J.’s bedroom?
The prosecution has another chance to dig out of its hole-and hopes to do so in a mighty way. It wants to call an astounding number of witnesses–perhaps as many as 60– for its rebuttal case in an effort to the bring the trial back to Simpson’s guilt or innocence. The state planned to begin by trying to salvage the ill-fated, ill-fitting, glove demonstration–when Simpson appeared to struggle into the gloves used by the murderer. Clark said she would show the jury photographs of Simpson allegedly wearing the same gloves while broadcasting football games. The state will also try to introduce details of the slow-speed Ford Bronco chase that ended with OJ.’s arrest. Ito will have to put some strict limits on the rebuttal case; if not, too many of the already beleaguered jurors may just call it quits.
The players were testier than ever in Ito’s courtroom last week. Excerpt s from remarks made out of the jury’s presence:
(center): Mr. Cochran, let me just express to you some concern that I have regarding our personal relationship . . . I take umbrage at your [press conference].
(left): Perhaps my reaction was that I felt that I was a man, you are a man, we have been friends and I thought the tone–
Counsel, when you say something, “I am a man, you are a man,” that is a challenge of sorts, wouldn’t you say?
Well, no. I was just saying I didn’t want to be talked to like a schoolkid.
(right): . . . I mean, have you watched the jury? Have you watched their faces as all these epithets roll off of Mr. Bailey’s tongue and Mr. Cochran’s and everybody else’s? At some point, you know, we get to the point where we are not getting a fair trial.
Why are we dragging this out? If you want this over, just say, ‘Gee, that is horrible, goodbye.’
Judge, you know, I feel no need to lay down or roll over and die just bemuse the jury has been polluted with these epithets. I mean, you know, he did the murders. I’m going to convict him.
