And, more specifically, in
Delaware v. Van Arsdall
, 475 U.S. 673(1986), the United States Supreme Court held that with respect to a defense counsel’s inquiring into the “potential bias of a prosecution witness” (the defense’s argument regarding Fuhrman in the Simpson case), although the discovery “of a witness’ motivation in testifying
is
a proper and important function of the constitutionally protected right of cross-examination,” this did
not
include “interrogation that is…only marginally relevant.”
If ever a case existed where the relevance of offered evidence was substantially outweighed by its probability of prejudice to the opposing side, this was it. It wasn’t even a close call. Here, the relevance of Fuhrman’s using the racial epithet “nigger” within the previous ten years was extremely remote, at best, from the issue of whether Simpson was guilty or not guilty of murdering Nicole Brown Simpson and Ronald Goldman. I mean, it’s a non-sequitur and broad jump of Olympian proportions to conclude that just because Mark Fuhrman used such a racial slur, or is a racist, he is likely to have framed Simpson for these murders. This proposition, all by itself, is self-evident. What made the relevance of Fuhrman’s use of the word “nigger” even more remote than it already was is the fact that at the time (January 1995) Ito ruled that the defense could ask Fuhrman if he had used the epithet in the last ten years, they had no evidence he had done so more recently than 1985 or 1986 (through witnesses Kathleen Bell and Andrea Terry—see later discussion), which was at the outer limits of the ten-year period. Also, a judge, in exercising his discretion under Section 352, does not resolve such an issue as if it existed in a vacuum. He naturally has to view it in the context of the case and the evidence. And here, by the time the cross-examination of Fuhrman commenced exactly two months later (March 13, 1995), two
LAPD
officers had already testified that they had arrived at the murder scene before Fuhrman and saw only one glove there. So even assuming Fuhrman had wanted to frame Simpson by planting one of the murder gloves at Simpson’s Rockingham estate, Ito knew there was no such second glove at the crime scene for Fuhrman to have seized and deposited there. It doesn’t take a genius to see why the relevance to this case of Fuhrman’s use of the racial slur was extremely remote, perhaps nonexistent. Yet the prejudice to the prosecution was more than the requisite “substantial.” It was monumental. Nonetheless, Ito, in an egregiously erroneous ruling which thumbed its nose at Section 352 as well as the law enunciated by the California and U.S. Supreme Courts, opened the door for the defense to let race become a central issue at the trial.
With Ito’s fateful and improvident words on January 23, 1995, “I will allow cross-examination on that issue,” the entire complexion of the trial was irrevocably changed to the prosecution’s severe detriment. It should be noted that in addition to the “substantial danger of undue prejudice” ground for excluding the racial slur testimony, Section 352 provides additional, independent grounds for Ito to have excluded it—the fact that such testimony and evidence would predictably cause an “undue consumption of time,” and also the “substantial danger of [its] confusing the issues, or…misleading the jury.”
Even if Ito didn’t want to follow the law, simple common sense should have told him how wrong it was to allow the defense to inquire of Fuhrman if he had used the word “nigger” in the preceding ten-year period. Every day in America, literally thousands of white police officers arrest or investigate black suspects. Does anyone really believe that when these thousands upon thousands of cases go to trial it’s proper to ask every one of these officers if he has ever used that racial slur, and if he denies it and there is evidence he did, to have a satellite trial (which is what in effect happened in the Simpson case) on that issue? That’s crazy. Ito couldn’t have been more off-base here, and the prosecution had to pay dearly for Ito’s sins.
One should step back here to observe that the defense by Simpson’s lawyers to these two murders was so preposterously weak that the
cornerstone
of their defense was that Mark Fuhrman had used the word nigger at some time during the previous ten years. That says it all, doesn’t it? They built their whole case around this totally meaningless fact.
An indication of the degree to which Fuhrman became the vortex of a satellite trial was the massive publicity surrounding Fuhrman and the Fuhrman tapes. Fuhrman, after the tapes surfaced and on the advice of his attorney, invoked the Fifth Amendment outside the presence of the jury and refused to answer questions on his racism or any other matter. (On October 2, 1996, Fuhrman pled “no contest” to one count of perjury. See discussion on pages 418–419.)
During this period, when the issues were whether the judge would allow the defense to force Fuhrman to invoke the Fifth before the jury and how much of the tapes Ito would allow the jury to hear, there were these types of headlines: “Trial Within a Trial Begins Today” (
USA
Today
, September 1, 1995), “Who’s on Trial Now?” (
Newsweek
, August 28, 1995), etc.
“Ron and Nicole were butchered by this man [Simpson],” Ron’s father, Fred, said in a courthouse news conference, his eyes filling with tears. “This is not now the Fuhrman trial. This is a trial about the man who murdered my son.” Nicole’s father, Louis Brown, said on
Rivera Live
: “They [the defense] have got the trial so far off base it’s pitiful…. To let them get away with this is murderous in itself.”
In fact, even though it was Simpson who was on trial for double murder, the terribly misguided media treated Fuhrman’s invocation of the Fifth Amendment as a far bigger story than Simpson’s invoking the Fifth Amendment and sitting as silent as a cigar-store Indian, refusing to defend himself or answer any of the many allegations against him. “Fuhrman Takes the Fifth” was the September 7, 1995, banner, front-page headline story in the
L.A. Daily News
. “Fuhrman Invokes 5th Amendment, Refuses to Testify” was that day’s main headline in the paper of record for the trial, the cross-town
Los Angeles Times
. Even the staid
New York Times
couldn’t resist a front-page headline story (though not, as in the
Los Angeles Times
and
Daily News
, the main one) on September 7, 1995. In fact, at no time during the trial was there one, main, front-page headline story in either the
Los Angeles Times
or the
Daily News
on the fact that Simpson had invoked the Fifth Amendment. Again, the big story was Fuhrman’s, not Simpson’s, taking the Fifth.
We can thank Judge Ito for all of this. If he hadn’t made his inexcusable ruling (which was incompatible with the law and did violence to all conventional notions of common sense), the Fuhrman tapes would have been irrelevant. Indeed, since Fuhrman’s racism wouldn’t have been an issue, they probably wouldn’t have even surfaced.
A note about Fuhrman. For years he was an avowed racist, and I’m no apologist for him and his type. In fact, I wrote an article a few years ago severely criticizing the Los Angeles DA’s Office, and other DA’s offices around the country, for virtually never prosecuting police brutality cases against blacks and other minorities. If you think the Rodney King case was an exception to the DA’s policy, it wasn’t. The DA deserves no credit for prosecuting the police in the King case. Giving credit implies the DA had a choice. Because of private citizen George Holliday’s eighty-one-second home videotape of the beating, he had no choice. If there had been no tape, there would have been no prosecution. No one would have ever heard the name Rodney King. In fact, the Christopher Commission, which was formed a month after the King beating to conduct a comprehensive review of police brutality by the
LAPD
, learned that the day after the beating—before the police knew the video existed—King’s brother, Paul King, went to the LAPD’s Foothill Station (the area where the beating occurred) to file a complaint. Instead, he was told by a sergeant that his brother was in “big trouble” for leading police on a dangerous high-speed chase. He left the station knowing he hadn’t started an investigation. In his daily log, the sergeant reported that no further action was necessary. (If any reader at this point is thinking that I am speaking out of both sides of my mouth when I categorically reject the notion of a frame-up of Simpson by the
LAPD
because he was black, and also indict some members of the
LAPD
for police brutality against blacks, see my long discussion in the Epilogue on this point. They will be the first such words, among the millions published on this case about the matter, and I think you will be surprised.)
There’s a small percentage (some say 5 percent, some even slightly higher) of officers in the LAPD—they’re not representative at all—with a neofascist mentality. These officers hurt the reputation and stain the blue uniform of the
LAPD
, which, along with the L.A. Sheriff’s Department, is one of the finest, least corrupt police agencies in the country. I’m very aware of these racist officers and I’ve been one of the few relatively well-known whites who have publically spoken out against them.
So no black person who knows me or knows about me can accuse me of being antiblack and insensitive to what blacks have gone through for over two centuries here in America. During my years at the DA’s office, blacks, in fact, used to call me “bad,” meaning good. With that long preface, let me tell you that Mark Fuhrman is a victim in this case. Here is someone who is awakened in the middle of the night to go to a crime scene. He goes there and does absolutely nothing wrong at all, and yet his life may be destroyed. And to that extent (much more on Fuhrman in the following chapters), I’m speaking out in this book in defense of Mark Fuhrman.
Before I continue my criticism of Judge Ito’s performance at the Simpson trial, let me state the positive. Ito is intelligent, conscientious, and fairly experienced. I also sense he is a decent human being who tried very hard to be fair to both sides during the trial. But none of these favorable qualities was enough to prevent him from turning in a substandard performance at the trial and being a poor judge for this case.
Somehow it became the conventional wisdom at the trial that although Judge Ito had his faults and peculiarities, his legal rulings were almost always “legally sound.” “Legal experts gave Judge Ito good marks for his specific evidentiary rulings during the trial,”
Newsweek
said in a posttrial wrap-up story. Although I would agree that Ito’s pretrial rulings were sound, I am at a total loss to see how anyone could possibly say his legal rulings during the trial were. Even if allowing the defense to ask Fuhrman if he had used the word “nigger” in the past ten years had been his only flagrant mistake, this was so devastating to the prosecution that all alone it would stand as a condemnation of Ito’s judicial performance.
The plain fact is that Ito specialized in making patently erroneous rulings, one after another. Not only was his original ruling in the Fuhrman matter incorrect, but he kept compounding it and making it much worse. For instance, there were sixty-one excerpts from the Fuhrman tapes which the defense sought to have the jury hear, in forty-one of which Fuhrman used the word “nigger.” To impeach Fuhrman’s testimony that he had not used that word in the past ten years, Ito allowed the jury to hear Fuhrman’s voice uttering the racial epithet on only one of the excerpts (speaking of women police officers: “They don’t do anything. They don’t go out there and initiate a contact with some six-foot-five nigger that’s been in prison for seven years pumping weights”), and to have read to them a transcript from another (“We have no niggers where I grew up”). But he also allowed the screenwriter, Laura McKinny, to testify before the jury that during her tape-recorded conversations with Fuhrman he had used the word “nigger” thirty-nine other times.
Then Ito did something that was inexcusable and for which there wasn’t any possible legal argument to be made in support of it. On August 29, 1995, Ito decided, over the strenuous objections of the prosecutors, to play all sixty-one excerpts in open court (outside the jury’s presence) for a vast TV audience to hear. Since he had ruled the jury could not hear fifty-nine out of the sixty-one excerpts, what conceivable reason was there to play them for millions of people who weren’t on the jury? It served no purpose other than to enrage and inflame the black community and millions of others. And with conjugal visits (once a week on Saturday evenings for five hours at the jurors’ hotel, the Hotel Intercontinental, just a few blocks from the courthouse), there was the likelihood that the jury would hear about the contents of all the other excerpts.
Ito knew there was no legal basis for what he did, but he came up with the nonlegal justification that he did not want to be accused of “suppressing information of vital public interest.” If that was his concern, he could have accomplished his purpose by simply releasing the tapes to the public
after the trial
(the end was just one month away). As reporter Tony Mauro said in
USA
Today
: “Judge Lance Ito has repeatedly criticized participants in the O. J. Simpson trial for playing to the public instead of to the jury. Yet in deciding to air racially charged taped comments by retired detective Mark Fuhrman at a televised hearing without the jury present on Tuesday, Ito said he was doing it for no other reason but to satisfy public interest.”
Then Ito really decided to take a smiling leap into the world of illogic and irrationality. Perhaps just as much as Fuhrman’s use of the word “nigger,” the defense wanted the jury to hear Fuhrman’s remarks to McKinny about eighteen incidents of misconduct (things like: “If some hype says ‘I shot two days ago,’ pick the scab, squeeze it, if it looks like serum’s coming out, it’s hours old. It’s a hard find, [but] his eyes don’t lie. That’s not falsifying a report [for being under the influence]. That’s putting a criminal in jail. That’s being a policeman” ripping up the driver’s license of a suspect who was belligerent because “if he’s got that attitude, he’s probably gotten several tickets he hasn’t taken care of,” and because the suspect no longer had any identification left, this was cause to bring him in to the police station; “If I was pushed into saying why [I had detained someone who did not belong in an area], I’d say suspicion of burglary,” etc.) because this type of conduct obviously went in the general direction of the main thrust of their case—that Fuhrman, with the help of his colleagues, had framed Simpson. But remarkably, Ito excluded all statements of alleged misconduct by Fuhrman on the tapes because, he said, “the underlying assumption [that Fuhrman planted the Rockingham glove] for the purpose of placing blame for two brutal and savage murders upon the defendant requires a leap in both law and logic too broad to be made based on the evidence before the jury.” He said that “incidents of Fuhrman’s alleged misconduct [on the tapes] as prior bad acts [and therefore] evidence of custom and habit” were only a “theory without factual support.”