Without a Doubt (68 page)

“I want an opportunity to talk further with [my colleagues] before we adopt this course and it gets set in stone. If we have the time tonight to do it, I would appreciate it and present the court with the final position in writing.”

I could tell by his expression that he understood what I was saying. That I was going to fight this. That I would fix it for him.

“All right,” he said.

I headed straight to Gil’s office, ready for battle. I was amazed by what awaited me. Like a sudden cloudburst, their mood had passed. Now it was as if the skies had been sunny all along. I suspect that was due to the tempering influence of Gil’s lieutenant, Frank Sundstedt. But I’ll never know.

“Recusal makes no sense,” I heard Frank saying. “I think we can leave it with Lance—he’ll be at least as fair as any other judge, and he knows the case.”

Everyone was nodding. I felt once again like I’d stepped through the looking glass. I was too shocked to feel relief. All I knew was that this trial would continue. For better or worse.

The following morning in court, I withdrew our request for Lance Ito’s recusal. And, I added, we wanted him to rule on the admissibility of the tapes in their entirety. Meaning, “Lance, you do it all. We have faith in you.” I crossed my fingers and prayed that this gamble would work. A flash of gratitude passed across Lance’s face. He looked like a man who’d just been granted a stay of execution.

I was drained. But I had to pull myself together. We still had to finish the motion on the Fuhrman tapes. I tried, but by the end of the day I was shivering with another bout of fever. It was all I could do to make it home. We had Thursday off. I collapsed into bed, shaking with chills. I spent part of that day and the next in bed with a 102-degree fever while Cheri and Bill finished the brief.

I told the kids, “Mommy’s sick. Let’s watch a movie together, okay?”

We retreated to the “playroom” (which had once called itself a dining room) and for the rest of the day I sat bundled in blankets in a beanbag chair, surrounded by action figures, toy helicopters, two bulldozers, and a cement truck. And we watched
Pete’s Dragon
. Over and over again.

What would Ito do about the Fuhrman tapes? We were arguing that not only shouldn’t the jurors hear them, but that the tapes shouldn’t be aired in court at all. It was an open secret that the jurors learned a lot about what happened outside their presence through phone calls and conjugal visits. One thing was certain. If those tapes were played publicly, the jurors would hear all about them. The reasonable thing for Lance to have done was make his own judgment on the tapes, ruling on what was relevant and keeping the rest of the tapes where they belonged: under seal.

No such luck.

“I am persuaded that this is an issue of national concern, one in which the public has a right to be informed,” he proclaimed. “In that light, I will play the tapes as a service to the public.”

A matter of national concern? This was a double homicide, not Watergate. There was neither a legal reason nor a logical reason for this. Not only was it doubtful that those tapes would provide an edifying civics lesson to the public in general, but also they sure as hell would prejudice our jury beyond redemption.
Didn’t Lance understand that?
Maybe, I thought surly, we
should
have blown him off while we had the chance.

August 29, 1995, was the worst day I ever spent in a court of law. That was the date the Fuhrman tapes were played. I sat mortified as those ugly words washed through the courtroom like a tide of sewage.

“Nigger.” God, I despise that word. Every time we heard Fuhrman utter it I felt more and more degraded. Seeing those smug, self-congratulatory expressions at the defense table made it all the worse.

I couldn’t breathe. I couldn’t move. I felt as though I’d had weights attached to my hands and feet. I looked over at Chris and realized that he was in even more misery than I. I just closed my eyes and prayed for the strength to get through this.

This trial is over
, I thought.
We’ll never recover
.

But as Fuhrman’s clipped, arrogant cadences faded, I felt my back stiffen almost involuntarily with a surge of resolve.
Get off the damned floor, Clark!

Behind me sat the families of two people murdered by the real defendant in this case. His guilt—that’s what we were here to prove.

Yes, Mark Fuhrman had spoken like a racist. But the issue at hand was whether he had planted evidence. He had not.

The defense had proved that Fuhrman was scum—but I could prove that their client was a murderer. Fuhrman could not be allowed to overwhelm Simpson. These two horrible deaths could not go unpunished.

“I am Marcia Clark, the prosecutor,” I reminded the court. “And I stand before you today not in defense of Mark Fuhrman but in defense of a case. A case of such overwhelming magnitude in terms of… the proof of the defendant’s guilt that it would be [a] travesty to allow such a case to be derailed.”

As I spoke, I felt detached from the world around me. It was like I’d entered some outside-the-body zone where the only thing I could do was to repeat a silent prayer:
Don’t do it, Lance. Don’t let the jury hear this
.

“The point that I make [is] that this is a murder trial,” I continued. “A murder trial where none of this is relevant. This is not the forum. This is not the forum.”

I told the court about a political cartoon I’d seen several days before. It showed a child watching television—the Simpson trial.

“What’s the forbidden N-word, Mommy?” asked the little girl.

The mother answered, “Nicole.”

The following day, Ito handed down his ruling. It was a victory, I guess. Though he would allow the defense to bring out the number of times Fuhrman said the N-word, he allowed only two brief, relatively innocuous excerpts of Mark actually saying it. Using more, he ruled, would be “overwhelmingly outweighed by the danger of undue prejudice.”

This news seemed to leave the defense team in shock. Johnnie hastily called a press conference. With his colleagues on the defense team, he marched outside to the massed media, faced the cameras, and gave his personal verdict on Lance Ito and the system in general. “This inexplicable, indefensible ruling lends credence to all those who say the criminal-justice system is corrupt,” he charged. “The cover-up continues.”

For weeks now, my own relationship with Johnnie had been icy. His disregard for fairness—his flouting of the law itself—had disgusted me. I guess he knew that, but his mind was focused elsewhere. He still approached the trial with his typical intense energy, but there was no more banter, no willingness to step back and acknowledge the humanity of all those in the courtroom. Now he was carried away with righteous fury. I could almost see the smoke coming out of his ears.

Now, after his shocking press conference, I was less angry than disappointed. Johnnie was once a respected lawyer. Now he was a wild man. Going on national television to call a judge corrupt? That should be grounds for a report to the state bar and a contempt citation. What appalled me even more was how irresponsible and self-centered his actions were. Johnnie’s comments seemed deliberately aimed at inciting a goddamned riot.
You don’t need to do that, Johnnie
, I told myself.
You’re already winning
.

Three whole days passed before Ito responded to the press conference. And even then, he might have ignored it, had Johnnie not forced the issue by resisting an innocuous request from the bench.

“I resent that tone,” Johnnie replied petulantly. “I am a man just like you are, Your Honor. I resent that tone… .”

The last vestiges of decorum in this courtroom had vanished. I’d hoped that this direct challenge, along with Johnnie’s disrespectful public remarks, would force Ito into taking action. No judge worthy of his robes would allow Johnnie’s behavior to go unpunished.

Ito ordered us into chambers.

“I have chosen up to this point to ignore your press conference last Thursday and what I consider to be in direct contempt of this court… .” he said. “And I want you to know that I have chosen to ignore it thus far and this is because of our long relationship and what I hope will be our continuing friendship.”

The penalty? A few of Ito’s “deep breaths.”

I stared in disbelief. What could he be thinking? Johnnie was not his friend. Never was and never would be.
You’ve been his patsy through this whole case, Lance
—
and he’s made a fool of you
.

Now that the defense had Fuhrman on the ropes, they went for the final knockout, demanding his reappearance in court. But not before calling Kathleen Bell and a string of other witnesses to attest that Fuhrman had spouted racist remarks in their presence.

Our plan? Dispatch these witnesses with the briefest of questioning. Why bother to impeach these people, with their vague stories of Fuhrman in a marine recruiting office years ago? After the tapes, it was all spilt milk. The one exception to our hurry-up-and-get-‘em-out strategy came the day Laura Hart McKinny testified. Chris could not contain himself and went after her with a misplaced vengeance.

Fuhrman’s appearance, however, could not be glossed over. Ito had ruled, as we had asked, that he would be called to testify out of the jury’s presence. The prospect of Mark’s reemergence was generating even more hype than his celebrated cross by Bailey.

By now, we were no longer speaking to him. We remained in suspense until nearly the last minute—would he invoke the Fifth Amendment? I had mixed feelings about this. Part of me wanted him to speak out to admit he’d lied about the racial slurs, and to reassert the truth that he’d never planted evidence.

The other part of me just wanted him out of my life.

Legally speaking, I didn’t think he had to invoke the right against self-incrimination. For Fuhrman to be convicted of perjury, the lie had to be material to the case—and, as I had argued until my voice ran out, all this garbage was utterly
im
material to the matter involving two people murdered in cold blood on Bundy Drive. Still, any lawyer worth his retainer would have advised Fuhrman not to talk, because anything he did say could be used against him if charges were brought. (Eventually, of course, the state attorney general would bring perjury charges, and Mark would plead “No contest.”)

For us, however, his taking the Fifth would be a disaster. When you take the Fifth, you can’t answer
any
questions. If you do, you’ve waived your right against self-incrimination. So if you invoke it once, you have to keep invoking it. If he didn’t answer questions about his testimony concerning racial epithets, Fuhrman could no longer affirm that the rest of what he’d said under oath was still accurate.

As much as I dreaded Fuhrman’s appearance, I knew that Chris dreaded it more. He’d despised Mark from the start, and their hatred for each other had only gotten more personal.

“I don’t want to be in the same room with the motherfucker,” he told me when I asked if he was coming to the hearing.

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.