Do I think Phil was naive? Yes. Do I think he was lying? No. That conviction grows stronger as time wears on. What you had in this situation was four cops who, on one hand, worshiped O. J. Simpson—and on the other, were seriously shaken by the mayhem at Bundy. I believe in my heart that they were actually resisting the idea that the Juice could have caused this horror.
Everything about the situation bore out their story. They’d left Bundy without so much as a whisper to anyone to advance the investigation. They hadn’t even called the coroner. Why? They thought they’d be right back. Their actions at Rockingham were also consistent with their story. Once over the wall, they’d done nothing more than check the grounds with their flashlights, looking for other victims, until they reached Kato. When Arnelle let them into the house, they waited as she tried to locate her father. They didn’t so much as open a drawer in all that time. They didn’t venture upstairs. How did that conform with the notion that they’d come to Rockingham to grab their number-one suspect? It didn’t.
As a witness in the preliminary hearings, Mark Fuhrman was simply splendid. He remained poised and patient in the face of defense attorney Gerald Uelmen’s pedantic and long-winded cross. He sounded like a model cop.
The public has long since forgotten this fact, but the press had begun lionizing Fuhrman even before he left the courtroom. They followed him down the corridor, clamoring for sound bites. As I watched this scene unfold, I had an uneasy feeling. Now I know why. I’ve come to recognize reflexive adulation as the kiss of death.
Suddenly Mark turned and waved off the reporters. He looked my way and motioned me over. We pulled away from the crowd.
“I’ve got to talk to you,” he said urgently. “But this has to remain confidential. I can’t tell anyone but you.”
What, I thought, could be so damned urgent? I was hip-deep in motions and had no time for distractions.
“Can’t it wait?”
“No. I’ve got to tell you now,” he replied. He sat down on one of the benches that lined the court hallways. This forced me to stop and sit beside him. I glanced conspicuously at my watch.
“Marcia, you have to know about this because the press is going to pick it up any minute,” he continued. “A long time ago, I thought I wanted to leave the force. I was strung out over my divorce and feeling burnt out. I put in for a stress disability claim. There’s a file with some shrink’s reports in it. Mine claimed I said things that I never said. He got it all wrong. I tried to get them to take it out, but I couldn’t. When the press gets hold of it, they’ll smear me to kingdom come.”
“Well, what exactly did you say… or did he claim you said?” I asked. I was hoping this was a tempest in a teapot. It is not an uncommon thing for government employees, especially cops, to try and get out early, with their pensions and benefits intact, on a stress disability claim. They would invent stories about how they were falling apart, couldn’t handle the job, were suicidal. The claims were often nonsense. And everybody knew it. “Anyway, I don’t know how anyone can get a shrink’s files,” I told him. “I thought that stuff was privileged.”
Why did he seem so certain that the press would get to it?
“I don’t know, but I know they will,” he insisted. “I just wanted you to be prepared.”
At the time, Mark’s concern sounded to me like paranoia. I couldn’t imagine what would be in those reports that would be so awful, nor could I understand how it could all become public knowledge as easily as he implied. As for being prepared, Mark was not helping me out with specifics. Once I got clear of the prelims, I would have to get that file myself. Certainly Mark could request it. For the moment, however, I wanted reassurance on one point only.
“Mark,” I asked slowly, “is there anything in that file that would affect the truth of what you said on the witness stand? Is your testimony all accurate?”
“Oh, absolutely,” he told me. “This has nothing to do with this case at all. That stuff was a long time ago.”
I’ve been asked a million times since why I didn’t know all about Mark Fuhrman and his disability-claim file. The truth is simple. No one told me. Phil Vannatter swore to me afterward that neither he nor Tom had a clue. I believe him. Cops generally do not gossip outside their own divisions. A guy from the Wilshire Division isn’t going to tell tales about the guys from his office even to cops in another area of town.
Frankly, I didn’t know what to do with the information Mark had given me. In hindsight, of course, I should have requested the file immediately. But in the heat of the moment, I just made a mental note to check it out. To be honest, it seemed that Mark was just getting a bit panicky at being thrust into the spotlight. I certainly had no reason to think that it would turn into a major issue. At that moment, the most important thing was getting back to the courtroom, where Phil Vannatter was due on the stand. If we lost the search-and-seizure motion, all the Mark Fuhrman evidence wouldn’t matter.
Gerald Uelmen had argued for the defense. The officers, he charged, were not so much interested in notifying Simpson or attempting to stop a potential crime in progress as in conducting an illegal investigation. He wound up by quoting Justice Louis Brandeis, hinting darkly that the Fourth Amendment itself was at risk.
When I took the podium I congratulated Uelmen on his rhetoric.
“But none of… the fine quotations can change the facts as they existed on those early morning hours,” I said. “He attempts to depict in very graphic terms the search… as though a Sherman tank were being driven through the backyard and being plowed in through the doors. In fact, nothing could be farther from the truth.” I refuted his arguments point by point, walking the judge through the June 13 events as the police saw them: Their vision of the scene at Bundy. Their uncertainty about what was happening at Rockingham. The blood. The thumps of an intruder. How quickly it all happened. How, if someone had been bleeding and cops had waited for a warrant, we now would all have been calling them derelict and incompetent.
Judge Kennedy-Powell agreed. She upheld the warrant.
I felt that we were home free. We’d already established a time line, and the next step was putting Simpson at the scene of the crime. That’s where the blood expert I had worked so hard to get on our team, Greg Matheson, came in. His testimony was pure dynamite. Only 0.5 percent of the population could have left the blood in the trail at Bundy. And Simpson was one of that tiny group! It was hard evidence that linked Simpson, and very few others, to the crime scene. Of those others, how many had blood in their cars and blood on their driveways? How many knew the victim, Nicole?
On Friday, July 8, Judge Kennedy-Powell ruled. “The court has carefully considered the evidence in this case and the arguments of counsel,” she said. “There is sufficient cause to believe this defendant guilty.”
I can’t represent it as a stunning victory. It was the outcome I’d expected. And yet, in this season of the unexpected, who knew?
For the next few days, as we ramped up preparation for the trial we now knew would be held, things almost seemed normal.
And then, suddenly, the timbers collapsed beneath our feet.
It was the third weekend in July, a little over a week after the end of the prelim. I had taken the kids to play at the home of one of my fellow D.A.s, who also had children. We were in the backyard when my beeper went off. I didn’t recognize the number, but that wasn’t unusual—I had been bombarded by calls since this case began. I went inside to return the call. It was Mark Fuhrman.
“I guess you know about
The New Yorker
,” he said glumly.
Dread started its prickly progress up my spine.
“What are you talking about?” I asked.
“I’m sitting here with a couple of executives from Channel Seven. They want to give me a spot to tell my side of the story. Marcia, I really think I should do this.”
Mark thought his new friends at Channel Seven were real “straight shooters,” and he handed me over to a young woman who proceeded to read to me from an advance copy of a
New Yorker
article by a writer named Jeffrey Toobin: “An Incendiary Defense.”
In it, a lawyer for the defense, who spoke on condition of anonymity, laid out how the Simpson team intended to portray Fuhrman as a racist rogue cop who had planted the bloody glove at Rockingham in an attempt to frame Simpson.
Shapiro
, I thought.
It had to be Shapiro
. The idea that he would even attempt such a thing was monstrous. My nausea deepened when the cheery TV producer read me quotes from Fuhrman’s psychiatric file.
How out of control is this? Not only am I first hearing this information from the press, but even that account is secondhand
.
How on earth did a reporter get hold of a cop’s psychiatric records? The only legal way I know of getting into an officer’s personnel file is by bringing what is called a
Pitchess
motion. The defense usually files one when a defendant is charged with assault on a police officer or with resisting arrest. If the defense can show that the cop had a history of such misconduct, it’s a great way to pump up the credibility of that claim. But that wasn’t an issue in this case. Fuhrman hadn’t even seen Simpson, let alone arrested him.
According to the story, Fuhrman had been an enthusiastic marine, but he had purportedly told Dr. Ronald Koegler that he had stopped enjoying his military service because “there were these Mexicans, niggers, volunteers, and they would tell me they weren’t going to do something.” He told another shrink, a Dr. John Hochman, that his work among street gangs in East L.A. had given him “the urge to kill people that upset me.”
I just couldn’t imagine Mark having said things this awful. I couldn’t believe that was how he felt. I asked the producer for the date of the report. It went back to the early eighties. That was a long time ago. Had he really believed all that, or was he just saying something outrageous to support a disability claim?
After Mark had made his urgent but vague references to this file in the hallway after his testimony, I’d made a note to follow up. A week later, it was still on my “To Do” list.
I’ve thought about that a lot in retrospect. And when I find myself beating myself up over it, I stop myself and ask, “Would history have been changed so radically if I’d run right down and filed a request for that disability file right after Mark told me about it?” Probably not. After all, it was too late to keep Mark off the stand. He’d already testified. About the only advantage I would have had was not being blindsided by this call from Channel Seven.
“Let me talk to Mark,” I said to the producer firmly. My tone must have scared her; she put him back on immediately.
“Do you believe that shit, Marcia?” he asked me.
“About planting the glove? That’s ridiculous. But it may not matter what I think once people get a load of those shrinks’ reports.”
“I never said that stuff! That’s what I was trying to tell you before. I just told him I hated gang bangers. I couldn’t stand the way they screwed over innocent people. I don’t know how he got all that shit in there.”
“Is that how you feel now?”
“Hell, no. I’m no racist, Marcia. You can ask anyone. Some of my good friends are black. Shit, ask Danette Meyers if you don’t believe me.”
I knew Danette Meyers, a striking African-American woman who was a D.A. in Santa Monica. She was smart, feisty, and nobody’s fool. She certainly wouldn’t tolerate racist crap from anyone. I needed to talk to her. But for the moment, I had to take a very, very deep breath and think this through.
What were the actual chances of Fuhrman’s shrink report coming into evidence? Pretty slim. I felt I could successfully argue that a shrink’s report from a decade before the crime in question was too ancient to be admissible. But in practical terms, what would it matter? The article, with all the attendant publicity, would ensure that anyone out there with a pulse would know about Mark’s statements to his psychiatrists. Which is exactly what Shapiro wanted when he planted his poison with a stooge holding a press card.
So the nightmare began. It was, however, not unprecedented. In countless cases involving a black defendant, the defense makes some effort to play the race card. But in this case, one would have thought that this particular odious card just wasn’t in the deck. It just seemed so patently inappropriate: O. J. Simpson lived a rich man’s life among friends who were, by and large, white. His ex-wife and current girlfriend were white. His entire legal team was white. How, I wondered, could Shapiro or Uelmen sell a racial defense?
As for the planting theory, it was more bizarre than anything I’d heard of so far. How would Shapiro account for the fact that other cops had been at the Bundy crime scene and viewed the evidence before Mark arrived?
“So what do you think about my talking to Channel Seven?” Mark asked me again.
“I want to talk to Gil about this,” I told him. “Tell them to sit tight for now.”
I don’t think I’d ever paged Gil Garcetti before. “Sorry to bother you on a weekend,” I told him when he called me back, “but there’s something you should know about.” I laid out the damage.
He had no instant panacea, and who would have expected one? This isn’t one of the situations they teach you about in law school. “Just when you think you’ve heard them all…” he finally said, his voice trailing off. “Let me think about this. I’ll call you back.”
Gil phoned me again about a half an hour later and told me to deny Mark permission to do the interview. “I think we have to keep playing by our usual rules,” he said. Mark wasn’t happy when I told him, but he agreed to go along with us. I promised him we’d talk on Monday.
Outside in the sunlit yard, the children were giggling uncontrollably. I shut out everything for the moment except the sweetness of that scene. Fortunately, they hadn’t a clue about the misery that could befall adults. I needed to regain my perspective. In the months to come I would find myself grasping at the strangest diversions to restore that precious clarity. But at the moment it was enough to join the kids on the swing set and let them push me until I could see my feet against the sky.