Without a Doubt (66 page)

Hank sat back while Scheck questioned the affable Dr. Lee for hours on these shoe-print findings. Then, on cross, Hank revealed to the witness the fact that the parallel lines were artifacts in concrete, probably made by a workman years before the crime.

“And now…” he asked Lee, “does it appear that the parallel lines are in fact trowel marks or scratches in the surface of the pavement?

“Could be” was the answer.

“Does that appear to be the most reasonable explanation?”

“Yes, right,” Lee conceded.

So much for the two-killer theory.

But the most damaging part of Lee’s testimony had nothing to with science and everything to do with theater. I’m referring to a much-hyped remark he offered at the close of the direct testimony. Scheck had asked his opinion of a specific piece of blood collection by the police, and Lee responded, in his broken English, “Only opinion I can giving under the circumstance—something’s wrong.”

Do you know what Dr. Henry Lee was referring to when he intoned so dramatically that “something’s wrong”? A minor, almost insignificant piece of evidence. Eight swatches of blood from one of the Bundy spots had been collected to be stored in a little paper envelope called a bindle. But only four of them left stains on the bindle. The reason, of course, is that four of them were dry and the other four wet at the time they were stored. So what?

“
Somethings wrong
.” It was the most unscientific thing I’ve ever heard a forensic expert say. It was, in fact, Lee’s way of helping the defense without saying anything.

“
Something’s wrong!
” Barry Scheck treated it like a message from God, and repeated it like a mantra throughout his summation, suggesting disingenuously that Lee’s comment referred to the prosecution’s entire case.

In fact, Hank disarmed this insinuation on cross. Wasn’t it common, he asked Lee, for a forensic scientist to see something that he couldn’t explain? Lee admitted that it was.

“That doesn’t mean something is
wrong
, does it?” Hank pressed.

“No,” conceded Dr. Lee.

Later, when I learned that our jurors had cited Dr. Lee’s testimony as their prime reason for discounting the absolutely definitive physical evidence we had presented over the course of months at trial, I knew the bad vibes I’d been getting from the jury box weren’t just figments of my imagination. They were tuning out for the prosecution and tuning in for the defense. Hank might have been asking Dr. Lee about his favorite punk-rock group for all they cared or listened. Once they heard the ominous proclamation “Something’s wrong,” it became in their minds an emblem for our entire case. It became synonymous with the conditions of society in general. “Something’s wrong” in a country where racism flourishes and the law has been known to be dispensed in unequal portions.

We had struck down every single claim made to support a “conspiracy.” But our streak of luck was at an end. By the time Lee finished his testimony in August 1995, the focus of the trial no longer bore any relevance to the evidence. Instead, all eyes were fixed on what was wrong—wrong with a racist cop, wrong with the legal system, wrong with America.

And all of this—all of what was wrong—was to be symbolized by one man, Mark Fuhrman.

It was early July when I first got a hint of the disaster that would ultimately ruin us. I was feeling a little overwhelmed that day. The case was dragging on far longer than expected. Johnnie had once estimated that he would wrap up his case within the month. I’d hoped to spend more time with my children before school started. But the Glorious Fourth had come and gone, and there was no end in sight.

Bill Hodgman buzzed and asked me to come to his office immediately. He looked ashen.

“Marcia,” he told me. “We’ve heard a rumor that Mark Fuhrman may have been collaborating with some author to write a book. Our source says Mark used racial epithets.”

Maybe I was tired, but this sounded to me like just one more of the bullshit rumors we’d had to entertain, investigate, and dismiss in recent months.

“The good news,” Bill continued, “is that they were apparently composing a work of fiction where Mark played a racist character.”

If this was true, the book would be irrelevant to our case. Still, that wouldn’t stop the defense from trying to exploit it. Bill said he was already checking it out.

I returned to my office, where EDTA reports, MacDonell binders, notes for the Rieders cross, and texts illuminating the mysteries of bloodstain patterns blanketed the surface of my desk.

“Maybe,” I whispered to myself, “it will just go away.”

It didn’t. Reports kept filtering in. The project was a movie script and Fuhrman had made tapes in the process. His collaborator was a would-be screenwriter named Laura Hart McKinny, who had retained lawyers in Los Angeles. Lawyers to do what? Shop the screenplay? Sell the tapes?

We had to find out what was in those tapes. Chris wrote a subpoena at warp speed—we were under the impression that the goods were instate—and Ito approved it. But before we could serve, we learned that the defense had already located McKinny; she had taken some obscure academic post in North Carolina. They were going after her with their own subpoena. The problem was this: a California judge can’t demand a witness or a tape from another state unless that state’s courts agree to honor the subpoena. So Johnnie himself, with Lee Bailey riding shotgun, headed to the Tar Heel State to make their arguments.

Word got back to us that Johnnie didn’t play real well in North Carolina. The judge there barely hid his contempt for the defense’s race strategy. I had to smile. Johnnie had gotten a taste of what this trial would have been like if he hadn’t been blessed with Lance Ito. The subpoena was denied on the grounds that McKinny’s tapes didn’t constitute material evidence.

I knew that was not the end of it. The defense was sure to appeal, and they did. In short order, the subpoena was granted and the tapes, along with Ms. McKinny, were on their way to California. Well, we’d expected that.

It would be two weeks before we could get those tapes to make our own transcriptions. In the meantime, I’d gotten some idea of what they contained by reading transcripts of the North Carolina hearing. Fuhrman and McKinny had met periodically over a period of about ten years. During that time he spun out tales for her like Scheherazade. We didn’t know all he’d said, but it was clear that the tapes contained at least one thing that was going to be trouble for us. Big, big trouble.

Fuhrman
had
uttered the N-word on those tapes. And Johnnie had made sure to get that on the record.

Oh, God
.

The only glimmer of hope here was that Mark had simply been helping McKinny develop a character for a work of fiction. The racial epithets, she insisted, were used “in the context of developing a story… . It wasn’t a biography of Mr. Fuhrman’s life.” She went on to say that these sessions gave her “information about ideas and feelings that some people might have about African Americans. I don’t know that it reflects his feelings about African Americans.”

But I sure knew how it would sound.

On August 11, McKinny’s attorneys appeared before Lance to turn over the tapes. They looked as if they’d never set foot in a courtroom. Actually, they looked barely old enough to shave: young, inexperienced guys who thought they’d caught a rocket to fame and fortune. They didn’t get it—once the defense got those tapes, it would be only a matter of hours before they were leaked to the press. By then, they would have a commercial value of zero.
Inside Edition
doesn’t fork out the big bucks for stuff that’s playing free on national television.

I was the one who raised the possibility of leaks, and I saw the lawyers’ eyes go wide with panic. They immediately asked Ito for a protective order, which he granted. But I knew it wasn’t worth the paper it was printed on. Everyone was shocked—
shocked
, mind you—when, not long after the tapes reached attorneys for both sides, they were leaked to the press.

Our steno pool worked overtime transcribing those fifteen hours of tape. When, at last, a copy reached my desk, I curled up in my chair like a wary cat, lit a Dunhill, took a deep breath, and started to read.

Every racial slur imaginable. “Those niggers, they run like rabbits.” Every demeaning stereotype. “Nigger driving a Porsche that doesn’t look like he’s got a $300 suit on, you always stop him.” Every fear that a black man could have about a racist cop, fulfilled. “How do you intellectualize when you punch a nigger? He either deserves it or he doesn’t.”

Did Mark actually mean these things? Even if he was, as McKinny claimed, spinning out a fictional persona, did he envision this character as a villain or a hero?

If African Americans got rough treatment, women got just as bad. I consider myself fairly well versed in the language of profanity, but Fuhrman had come up with some slurs I’d never even heard.

“Split tail?” I asked Chris, who was slumped dejectedly against my door. He’d just emerged from his own hellish immersion in those transcripts. He shook his head in disgust. “Man,” he said, “that motherfucker just lost the whole case for us.”

Back in his own neighborhood Chris was going to catch a lot or heat for this. I was glad, for his sake, that I was the one who’d ended up taking Fuhrman on direct.

But at that moment the anger and sadness I felt was not only for the prosecution but for the country, torn by racial hatred.
People v. Orenthal James Simpson
had done nothing but widen the divide. We’d hoped that by carefully presenting the facts, we could convince
all
the people that our charges were justified. Now these horrible epithets were about to infiltrate our courtroom, and they would further strain the uneasy truce between blacks and whites. The release of these tapes, and the prominence they would assume, would mean a step backward for all of us. And a step forward for hate.

Chris left without a word. I returned to the transcripts. The worst racial slur of all, repeated forty-one times. And when I reached the end, I threw the transcript down and cried.

That night I drove home from work in a trance. Got into bed. Stared at the ceiling. On this miserable night, the loneliness of that bedroom was killing me. I wanted to talk to someone who would listen with unconditional sympathy.

I reached for the phone and called my brother, Jon. It was always comforting to talk to him; he could make me laugh, and he shared my sense of outrage about what was happening in Lance’s courtroom. When this trial began, he was living nearby, but recently he’d moved north. I missed him.

It took him a moment to recognize my voice. “Marsh. You don’t sound too good,” he said. I told him about the transcripts.

“I still can’t believe it,” I said. By now I’d begun to weep. “It’s going to be so ugly.”

“You’ve got to pull it together,” he told me in his gentle, firm way. “This case is still happening—you’ve
got
to get through it.”

The next morning when I got up, the self-pity was gone. I was just plain angry.
Fuhrman!
Why hadn’t he told us about those fucking tapes? It’s not like they could have slipped his mind. One illuminating fact to have emerged from the transcripts was that Fuhrman had met with McKinny as recently as July 1994—just a few weeks after the murders—to discuss the “hot property” he’d become. The two of them agreed to lie low until the case was over; then they’d make the sale, and Mark would get a percentage. But apparently McKinny had seen her chance sooner: it was no accident those tapes were surfacing now.

Fuhrman had boasted in that July tape, “I’m the biggest witness in the case of the century—if I go down, they lose the case.” No, as a matter of fact, he was not our biggest witness. Just the most vulnerable. And when Johnnie got done with him, this would no longer be the Simpson trial; it would be the Fuhrman trial.

Did I feel betrayed? You bet. We all did. After the tapes came out, I got a lot of criticism for having “embraced” Fuhrman. Bullshit! I never had any choice about calling him as a witness. And it was Mark Fuhrman’s job to inform us of anything that might be used against him by the defense. Instead, he took the stand at the preliminary hearing without telling us about his personnel package. Then he testified—as I held my breath and silently screamed,
No, don’t do it!
—that he hadn’t uttered the N-word in the last ten years. All the while he knew about those tapes.

And now, after all our hard work—DNA, PCR, EDTA—the case came down to this: MF.

Read
it
any way you like.

Laura Hart McKinny showed up at our eighteenth-floor conference room with her attorneys and her husband. I wasn’t surprised when she agreed to talk to us. It was good PR for her to appear not to be taking sides. At first glance she struck me as a flower child gone slightly to seed. She was in her forties, but her hair hung long and free. Her freckled face bore no makeup and she wore the kind of funky, flowing clothing that you’d have seen at a Jefferson Airplane concert.

I wasn’t fooled by the packaging. Beneath that hang-loose exterior lay a stratum of steel.

I told her that we routinely taped our interviews, and she balked. Pretty ironic, under the circumstances. She and her team withdrew from the room to confer. I raised an eyebrow at Bill. By the time she returned, several minutes later, she was more compliant. Bill did the questioning while Chris and I sat by.

McKinny told us how one day in 1985 she was sitting at a café table in Westwood, tapping away at her laptop computer, when up sidled Mark Fuhrman. He asked her a question about the computer. (It sounded to me like a come-on line. No way Mark Fuhrman cared about RAM and ROM.) McKinny had something else in mind. Fuhrman, she learned, was a police officer. And, whaddya know, she happened to be writing a screenplay about cops.

They struck a deal: he would give her inside cop skinny, and she would give him credit as her technical adviser and a percentage of whatever. Fuhrman, it turned out, was useful to McKinny not merely because he was an officer with the LAPD. He was also a member of a group called Men Against Women, MAW, which had resisted the advancement of female cops. Talk about an appealing protagonist.