Both prosecutors, particularly Darden, handled the Fuhrman issue, the most explosive single issue at the trial, very poorly. Clark did argue that Fuhrman could not have planted the glove because “all the other officers who were there before him saw only one glove,” but to dismiss this highly critical fact with just these few words is exceptionally weak and flabby advocacy. Such a brief reference could easily have gone over the heads of, or been missed by, the jury. Clark should have spoon-fed the jury with the necessary follow-up reality:
“…and therefore, there was no second glove at the Bundy murder scene for detective Fuhrman to have picked up and deposited at the defendant’s Rockingham estate.”
Because of its importance, this fact should have been repeated, and even referred to once again in Clark’s later, final address to the jury. But it was not.
Also, Clark grossly misstated the evidence when she told the jury that “all the other officers who were there [the Bundy crime scene] before Fuhrman saw only one glove.” Although the
LAPD
has said that fourteen uniformed officers arrived at the Bundy murder scene before Fuhrman and all saw only one glove there, the prosecution, at the trial, very unwisely only called two of the fourteen (Officer Robert Riske and Sergeant David Rossi) who arrived
before
Fuhrman to testify to this fact. Since these two officers testified they only saw one glove there, Clark should have gone on to make the obvious and critical observation to the jury that for the jury to buy the defense allegation that Fuhrman planted the glove at Rockingham, and hence committed perjury in denying it, they would
necessarily
have to conclude that these two officers who testified they only saw one glove were also committing perjury. Because if they were telling the truth, then Fuhrman also had to have been telling the truth when he said he never picked up a second glove at Bundy and planted it at Rockingham.
Actually, Clark should definitely have had many more of the fourteen uniformed officers testify to seeing only one glove at Bundy, because the more who testified, the less likely all of them were lying. When you have fourteen witnesses to prove a critical point in your case, why only call two? On direct examination of them during the trial, Clark could have elicited information from them—assuming it was the truth—that some of them never even knew Fuhrman, or hardly knew him at all, thus decreasing the likelihood even more that they had committed perjury for him. She could have argued to the jury:
“What did Fuhrman do? Come up to these officers individually or in a group and say, ‘Listen, I don’t know you guys too well. You’re uniform and I’ve been working detective for quite a few years. But here’s the skinny. I’ve got this thing about blacks, particularly when they’re sleeping with white women, as Simpson was. And, you know, I’d like to see this
SOB
go down, so I need you guys to back me up on the witness stand and say there was only one glove at the Bundy murder scene. Okay? I’ll owe you one.’ Wouldn’t something like this have had to happen, ladies and gentlemen of the jury, in order for there to have actually been
two
gloves at the murder scene and for Fuhrman to have seized one and planted it at Rockingham? Are we really to believe not only that Fuhrman lied on the witness stand, but that several other officers, with nothing to gain, also agreed to jeopardize their careers and risk their lives to help him out?”
Yet this point was never made by the prosecutors.
In negating the argument that Fuhrman planted the glove, Clark pointed out to the jury that he wouldn’t have done it because “he didn’t know if the defendant had an airtight alibi and maybe left on the 9:00 flight to Chicago,” and said Fuhrman, if he lied, would be committing a felony which could have gotten him “in big trouble.” But since this was such a key issue at the trial, she should have dwelled much longer than she did on this issue and made these additional arguments: Fuhrman, as previously indicated, would not just be doing something that could get him in trouble, he was doing something that could have resulted in his own execution. Also, how could Fuhrman possibly have had any confidence that the glove he allegedly planted to frame Simpson would even fit Simpson’s hand? And the glove Fuhrman testified he found at Rockingham had blood on it. How could Fuhrman possibly know that the blood was going to turn out to be Simpson’s (as well as Ron’s and Nicole’s), as opposed to that of some other party? She could have concluded by pointing out that not only was there no affirmative evidence of any kind that Fuhrman planted the glove, but the evidence, in fact, clearly refuted the defense’s theory.
Clark at least made an effort, as weak as it was. We know it was weak and unconvincing because several jurors, posttrial, said they believed Fuhrman planted the glove. If Clark was weak on Fuhrman, Darden was ten times worse. His argument on Fuhrman bordered on the unbelievable. Not once in his very brief reference to Fuhrman did he assert or even vaguely imply that Fuhrman was telling the truth about finding the glove or about anything else he testified to. In fact, he almost seemed to suggest the opposite when he told the jury: “I am asking you to put it [Fuhrman’s lying about the use of the word “nigger”] in the proper perspective. You decide what it means. If it helps you in assessing his credibility—and it should, or his lack of credibility, I don’t know—then you use it.”
With these words, isn’t Darden just about saying, by implication, that he agrees that because Fuhrman lied about not using the racial slur, maybe he lied about finding the glove? I mean, when Darden said, “If [Fuhrman’s lie about using the racial slur] helps you in assessing his credibility—
and it should
,” what does that mean? Particularly when Darden didn’t then go on and defend Fuhrman’s credibility on the issue of whether he was telling the truth or lying about finding the glove. He simply abruptly left the subject completely and went on to another part of his summation.
Nowhere did Clark or Darden make the argument which I made earlier that just because someone is a racist, as so many people are, doesn’t mean they are likely to go around framing innocent people of murder. What they did with Fuhrman after they learned he had lied was in effect to drop him like a hot potato. But since they knew he was telling the truth about what counted, finding the glove, why would they do that? Their reaction to the fact Fuhrman had lied was like that of callow, wet-behind-the-ears prosecutors trying their first case. Surely they must have known that lying is not only common in criminal as well as civil trials, it’s routine and expected. The late Francis L. Wellman, a distinguished member of the New York bar, once observed: “Scarcely a trial is conducted in which perjury does not appear in a more or less flagrant form.” Perjury is so common that instead of being surprised by it, seasoned prosecutors expect it.
Essentially, there are two basic types of perjury at a criminal trial, the first being when the defendant who has committed a crime denies guilt under oath. This form of self-defense is obviously anticipated and almost invariably overlooked by prosecutors. We expect it. If the defendant was not going to deny having committed the crime, he normally would have pled guilty and there would not have been any trial. In every case where a defendant has denied guilt from the witness stand and is subsequently convicted, the finding of guilt by the jury, by definition, is a concomitant finding that the jury believes the defendant committed perjury when he denied guilt under oath. Yet for the hundreds of thousands of defendants convicted every year throughout the land for various crimes, it is almost unheard of for there to follow, after their conviction, a prosecution against them for perjury. (This holds true even for members of their family who may have lied under oath on their behalf.)
The second type of perjury at a criminal trial is the kind that is not self-protective in nature, one example of which would be a witness knowingly and falsely accusing an innocent party of a crime. This kind of perjury, if it can be proved, usually does result in a criminal prosecution.
Fuhrman’s lie, on a private matter that had no relevance to the facts of this case, is a third category that hardly even merits attention.
The prosecutors should have met the issue of Fuhrman’s lie head on in their summation, explaining that it was not relevant to any issue in the case, and that although Fuhrman should have told the truth, he simply was too embarrassed to do so before the jury and a national television audience. Yet Fuhrman’s lie, a third category of lying under oath which is so common and legally irrelevant it doesn’t even rise to the dignity of being a separate important category of perjury, was treated as an extremely serious matter not only by the defense, the media, and millions of people, but by the prosecutors themselves, who uttered not one syllable in defense or explanation of it.
Let’s briefly look at the way I handled not just a third-rate lie such as Fuhrman told but a blatant, serious perjury by my client in a desert island murder case (tried in 1986 in San Francisco on a change of venue from Honolulu) that was the subject of my 1991 book
And the Sea Will Tell
. It was a lie she told in an earlier theft trial that was directly related to an important issue in the murder case. The following is an excerpt from the book quoting a part of my argument to the jury on my client’s perjury:
bq.
“With respect to Jennifer’s lying under oath at her theft trial about the
Iola
’s going aground while being towed out of the channel, and being left behind, Mr. Enoki [the prosecutor] argued that this shows Jennifer cannot be trusted to tell the truth now. In other words, once a liar, always a liar. The only problem with that type of reasoning is that I don’t believe any human being
always
tells the truth. I’ll wager every penny I have on that proposition.
No human being always tells the truth
,” I repeated very loudly in the packed but quiet courtroom. My intonation made it very clear that I was referring to every single person in the courtroom, including judge and jury, and I was openly challenging the jury to take conscious recognition, for Jennifer’s benefit, of this incontrovertible fact. “They may
say
they always tell the truth, but they don’t. And if we were to accept the notion that once a liar, always a liar, then we could never believe anyone.
“But I guess the position of the prosecution is that since Jennifer lied once
under oath
, before another jury, she should never be believed again on that witness stand, as long as she lives. Charge her with the assassination of President John F. Kennedy,” I roared. “If she denies it, don’t believe her. Of course she did it. She and Oswald were just like this,” I said, thrusting my crossed fingers into the air.
In reminding the jury that Jennifer had lied about the Iola’s going aground because one of her lawyers had advised her that if she contradicted the statement she had already given the
FBI
, the theft trial would go badly for her, I noted: “You know, the prosecution didn’t call, on rebuttal, this former lawyer to deny this. In any event, when a human being is faced with the dilemma of being innocent of the crime they are charged with committing, but if they tell the truth as to a particular matter, chances are they will be wrongfully convicted, so they lie, is that the type of situation where they should never, ever be believed again under oath? Obviously not, ladies and gentleman.”
The prosecution treated Fuhrman like a leper after the tapes surfaced primarily because of the racism revealed there, but almost as much because Fuhrman had been caught in a clear lie about the racism. The prosecutors’ reaction was one of horror and contempt. Not only had they forgotten their own experience in criminal trials, but they were bowing to another deeply entrenched myth in our society, which is that one should never lie. The myth is so powerful, and the word “lie” is so ridiculously stigmatized in our society, that being aware of this enabled me to utilize it to my advantage in the Manson case.
During the guilt trial, Manson and his three female co-defendants professed their innocence. But after they had already been convicted of first-degree murder and we were in the penalty phase of the trial, where the jury had to decide on a sentence of life imprisonment or the death penalty for the four defendants, the three female defendants and several other members of Manson’s family made an effort to exonerate Manson and save his life. The three female defendants now confessed to the murders from the witness stand to give themselves credibility for their main contention that Manson was not involved in the murders, the idea for the murders being hatched by the girls themselves and Charles “Tex” Watson, the main killer whom I prosecuted in a separate trial. The myth about how terrible it is to lie under any circumstance led to this absurd testimony during my cross-examination of a Manson family member who was seeking to save Manson’s life:
bq.
Question by Mr. Bugliosi: Would you give up your life for Charles Manson if he asked you to?
Answer: Many times he has given you his life.
Q. Just answer the question, Brenda.
A. Yes, I would.
Q. Would you lie on the stand for Charles Manson?
A. No, I would tell the truth on the stand.
Q. So you would die for him but not lie for him?
A. That’s right.
The reality, of course, is that we all lie from time to time. I’m always amused by people who say they never lie, and in the very next breath, without being aware they are acknowledging a lie on their part, relate how they made a few extra dollars from an insurance company, or Uncle Sam, by putting in for something they are not entitled to, or not declaring something they should have. The irony is that those who say they never lie usually (not always) lie more than those who are at least truthful enough to admit they lie. And they lie in the very worst way possible, to further their own interests at the expense of others. One is reminded of Ralph Waldo Emerson’s remark that “the louder he talked of his honor, the faster we counted our spoons.”