Chris and the black law clerks stayed on the eighteenth floor. I went down alone.
I consoled myself with two thoughts. One, the jury wasn’t present. Two, I wouldn’t have to do anything. Fuhrman was the defense’s witness now.
Fuhrman entered with his bodyguards. I sensed, rather than saw, him stride past me to the stand. For reasons still unknown to me, the defense picked Gerald Uelmen to do the questioning. Perhaps they thought assigning a dirty detail like this to an academic would sanitize it.
“Detective Fuhrman, was the testimony that you gave at the preliminary hearing in this case completely truthful?”
There was a deadly pause during which Mark leaned back and whispered something to his lawyer. Then he spoke into the microphone. “I wish to assert my Fifth Amendment privilege,” he said.
‘Have you ever falsified a police report?”
“I wish to assert my Fifth Amendment privilege.”
I forced myself to raise my head and look at him. He was no longer the composed, confident Mark Fuhrman who had parried the thrusts of Lee Bailey. Nor was he the swaggering goon of the McKinny tapes. His face was pained, his features fixed in a tight-lipped grimace that seemed to push everything to a point in the middle of his face. He looked as though he was holding back tears.
Uelmen finally asked him if he intended to assert the Fifth Amendment privilege to every question.
Yes, Mark said. He did.
So far, this was the lawyerly thing to do: ask a couple of questions, show the court that the witness won’t answer, and then wrap it up with the catch-all-“Do you intend to invoke as to all the questions?-to demonstrate that continuing was fruitless. For a moment, I thought Uelmen might stop here. His job done, it appeared that he might be returning to his seat. But just then, Johnnie jumped up and began whispering heatedly to him. I stiffened in my chair. Something nasty was going to happen.
Uelmen turned back toward the podium.
“I only have one more question, Your Honor.”
We’d already heard that no more answers would be forthcoming. Ito should have instructed Uelmen to sit down. Instead, Lance asked him what it was. But Uelmen, apparently pumped up by Johnnie, turned directly to Mark.
“Detective Fuhrman,” he asked, “did you plant or manufacture any evidence in this case?”
Like an automaton, Fuhrman answered.
“I assert my Fifth Amendment privilege.”
Uelmen’s gambit was legally wrong, but worse, it was morally reprehensible. He could have asked Mark, “Did you kill Nicole Brown and Ron Goldman, Detective Fuhrman? Did you kill JFK, too?” Fuhrman would have had to answer, “I assert my Fifth Amendment privilege.” It was grandstanding-pure and simple. I objected angrily, charging that the question “does nothing but headline,” and demanded that the court strike it. But Ito overruled me.
More appalling still was the hero’s welcome that the Dream Team gave to Uelmen when he returned to the table. They clapped him on the back. Great job, guy. As much as I despised Mark Fuhrman that day, I thought Uelmen brought no distinction upon himself-as a lawyer or a human-by kicking a man at his lowest point.
Later that day, I heard from one of the D.A. investigators guarding Mark. When they were on their way back to the hotel, the radio was on with the story of Fuhrman’s day in court. In the backseat, Mark was crying.
All of this occurred outside the jury’s presence, but of course that didn’t matter. They’d hear about it. Whatever involuntary spasm of pity I’d felt for Fuhrman, I felt a whole lot worse for my team, for the public, and, above all, for the families of the victims. Up in the foyer of the War Room, Kim Goldman was sobbing her heart out. “Why did he do this?” she cried. “I want to tell that son of a bitch off! How could he do this to us?”
Only one more Fuhrman issue was left outstanding: what, if anything, would the jury be allowed to learn officially about his failure to reappear as a witness? Ito correctly ruled that the jury would not be informed that Fuhrman had invoked the Fifth. But the defense was asking that he instruct the jury, when evaluating Fuhrman’s integrity, to consider his unavailability for future questioning. And Ito allowed it!
For me, this was the final straw. Ito’s ruling was a direct violation of the Constitution, which states you can’t sanction anyone for taking the Fifth. If the ruling stood, the jury could reasonably assume that all of Mark’s testimony was bogus-and more easily accept the conspiracy theory the defense thrust in their faces day after day. I was prepared to fight like an alley cat for this one. I told Ito that I would be taking the matter over his head. I was going to file a writ with the Court of Appeals and try to get him overruled.
Ito was livid with anger. Whatever fragile truce had existed between us after the recusal incident was now broken. But I really didn’t care. Seven months earlier, when he issued his disastrous ruling on allowing the N-word in, I’d agonized over whether to try and get him overruled on appeal. I’d decided against it, so as not to prejudice him hopelessly against our side.
I’d been wrong. He’d shafted us anyway. And I’d forgone a shot – admittedly a long shot-at keeping the trial on track. To this day, my personal failure of nerve in not appealing the N-word from the start remains my single biggest regret. I would not compound my error by repeating it.
Ito at first tried to tell me I had only an hour to file my writ, but then backed down and gave me the night. Cheri and our appellate division lawyers worked like crazy to get it done, though I knew it had very little chance of succeeding. In fact, no one in our office could remember the Court of Appeals upholding such a protest in the middle of a trial. The pundits, print and broadcast, thought I’d lost my mind. Even my colleagues thought I was crazy. They all predicted I’d get what’s known as a postcard denial-a flat-out no, without the dignity of an opinion. But to me this ruling was so wrong that I had to appeal. Anyway, it was clear that we had nothing to lose in our relationship with Lance Ito.
The next day, I had run an errand during lunch break. About one o’clock or so a TV reporter came tearing up to me.
“Marcia,” he cried, “Ito’s order was overturned on appeal!”
I was stunned. Within minutes camera crews from NBC and ABC, all of whom had apparently been tracking me, had me surrounded, asking for my reaction.
It was the happiest day I’d had in a very long time. Not only because of the success of the appeal. A few minutes later I was grabbing a bite to eat in a restaurant when my pager went off. It was Judy, my divorce lawyer. I had asked for a gag order. It had been granted, then appealed.
“Marcia,” Judy said.
I braced myself for the worst.
“They denied the appeal.”
This piece of news gave me even more joy than winning the Ito writ.
It was like winning the lottery.
CAR TAPE. September 8. Going back to court after the writ, Lance looked like somebody had run him over with a steamroller. It was a Pyrrhic victory. But it just kind of feels good to have him taught a lesson. Man, he hates me. It’s a good thing the trial’s almost over, because I can see what’s going to happen here-he’s going to kick the shit out of us on rebuttal, prevent us from getting evidence in any chance he can. He’s already thrown the trial to them, so it probably doesn’t matter. We’ll do our best with what we’ve got.
Before prosecution and defense could rest, the defendant, O. J. Simpson, had to waive his right to testify. I do believe that right up until the McKinny tapes surfaced, Simpson had intended to take the stand. But after that windfall of racial obscenity from the mouth of Mark Fuhrman, Simpson had to know that juror sympathy was running so profoundly in his favor, testifying wasn’t worth the risk.