During a break, Mark went into the hall to stretch. I took the opportunity to broach the race question with Higbee. Particularly Fuhrman’s insistence that he had never uttered the N-word in the past decade.
“It would really help if we could soften that denial a little,” I told him. “Is there anything we can do about it?”
Higbee thought for a moment. “If you want my advice, just leave it alone,” he finally said. “The more you push it, the worse he’ll get.”
“But don’t you agree it would be better to front the issue? Take it on first, and soften it with some kind of admission?”
“All you’ll do is alienate him,” Higbee warned. “Then he’ll take the stand in a hostile frame of mind. If you guys can just maintain a decent rapport, I’m sure it’ll all go smoothly.”
When Mark returned, we spent another hour going through the questions I intended to weave through his direct.
“When you stepped out of the house to go down the south pathway, did you know whether Kato had already gone down that pathway?”
“No.”
“Did you know whether Simpson had an alibi for the time of the murders?”
“No.”
“Did you know whether there was an eyewitness to the murders?”
“No.”
“Were you the first officer on the Bundy scene?”
“No.”
“How many officers were there by the time you arrived?”
“On the scene itself? About ten, I guess.”
“Did you know whether they’d examined the evidence and been all through the crime scene before you got there?”
“No.”
For an officer in this position to have planted evidence would have been an act of insanity. With no information about Simpson’s whereabouts—for all he knew, Simpson could have had an airtight alibi for the time of the murders—Fuhrman could have exposed himself to a major felony rap by monkeying with the evidence. It just didn’t make sense.
“Okay,” I pushed on. “Let’s talk about the 1985 baseball-bat-through-the-windshield thing. You could have arrested Simpson that day, couldn’t you?”
“Well, not at that time,” he explained. “Back then, we still needed the victim to cooperate to make an arrest…”
“What could you have done?”
“I could have written up a field identification card on the incident. I could have issued him a warning. I could have recommended a filing [of charges] to the city attorney,” he said.
“Did you do any of those things?” I asked.
“No.”
“Why not?”
“I thought the situation looked under control,” Mark explained. “He was calm and polite. She looked very upset, but she didn’t want to cooperate. I couldn’t see any reason to aggravate the situation any further.”
Certainly a jury could not fail to grasp the point. If this guy was such a flaming racist—if he was the sort to go bonkers at the sight of a black man with a white woman—why hadn’t he seized this opportunity to hold O. J. Simpson’s feet to the fire? If anything, the baseball bat incident suggested that he was so in awe of Simpson that he had turned a blind eye to an incident of spousal abuse, just like the succession of cops before him.
After Mark and Higbee left, I curled up in my chair and stared out the window at the smoggy sunset. What should I do? Heed Higbee’s warning and stay away from race? Some of my own colleagues were warning me to keep Kathleen Bell’s allegations out of my direct examination. But if I did, the defense would play it as though I’d deliberately tried to hide that evidence from the jury. Still, if I pressed Mark about Bell, would he turn on me in court? The question troubled me.
The night before Mark was scheduled to begin testimony, I was tossing in bed when an inspiration came to me. What if I feathered Bell’s statements right into the testimony about the 1985 baseball bat incident? We’d intercut her comments about Mark’s shaking down interracial couples with the details of Mark’s 911 call to Rockingham, where’d he’d gone out of his way not to hassle O. J. Simpson. It could be a powerful juxtaposition.
As I drove into work the next morning, March 9, 1995, I played out the succession of questions in my head. Mark was waiting in my office. He looked a lot less assured than other times I’d seen him. I shut the door. Speaking as brightly and matter-of-factly as I could, I laid out the Bell strategy to him. I didn’t ask him; I simply told him what I intended to do. He just smiled and nodded his head in acquiescence. As I headed for court, I just prayed he’d stay calm and show the jury a human being instead of a race-baiting freak.
The courtroom was so thick with tension that you could practically feel the molecules bouncing off your skin. There was an unnatural quiet, like the pall of dead air before a storm. I had to find a way to relieve some of the pressure on Mark. I approached him easily and smiled.
“Detective Fuhrman,” I said. “Can you tell us how you feel about testifying today?”
“Nervous,” he replied. “Reluctant.”
“Can you tell us why?”
“Since June thirteenth, it seems that I’ve seen a lot of the evidence ignored, a lot of personal issues come to the forefront. I think it’s too bad.”
‘Heard a lot about yourself in the press, have you?”
“Daily.”
“You’ve indicated you feel nervous about testifying. Have you gone over your testimony in the presence of several district attorneys in order to prepare yourself [for court] and the allegations you may hear from the defense?”
He indicated that he had.
I directed his attention to the year 1985, when he was a young patrolman.
“Did you respond to a radio call which led you to the location of 360 North Rockingham in Brentwood?”
Mark told how he and his partner had arrived to find O. J. Simpson and a woman who was leaning on the hood of a Mercedes-Benz. “She had her hands to her face,” he said. “And she was sobbing.”
Mark moved smoothly through the incident, ending with the confession that he’d done nothing to pursue the case against Simpson, although he could have.
Time to feather. Deftly. Not too heavy-handed.
“Now, back in 1985 and 1986, sir,” I asked him, “can you tell us whether you knew someone or met someone by the name of Kathleen Bell?”
“Yes. I can tell you. I did not.”
Jonathan flashed Bell’s faxed letter to Cochran on the screen. I couldn’t present it any other way, to tell you the truth. The words were so offensive. Especially the genocidal remarks about burning. Maybe it’s being Jewish myself, or maybe it’s just being human, but I couldn’t bring myself to speak them aloud.
“Did the conversation Kathleen Bell describes in this letter occur?” I asked him.
“No, it did not.”
Mark sailed confidently through the rest of direct. He was smooth and relaxed. The irritability and childish petulance of the past few months had vanished. No one watching him on the stand today would ever believe all the hand-holding sessions that had led to this moment.
Throughout Mark’s testimony, opposing counsel was unexpectedly quiet. Lee Bailey was in charge of Fuhrman’s cross; he voiced no objections and he took no notes. I found that interesting. Now, it’s true that the prosecution’s witnesses seldom deviate from their written statements, which we hand over to the defense during discovery. But no one ever says the same thing in exactly the same way. Sometimes those variations are significant. If an attorney’s not taking notes, he’ll have a hard time remembering the distinctions when it’s time for cross.
Bailey’s failure to take notes told me one of two things. Either he had a hell of a memory—or he’d already prepared a cross-examination from which he would not deviate. I didn’t think it could be the first. At sidebar, his hands trembled so badly that he could barely read the papers he was holding. If the problem was alcohol, as rumor had it, then his memory couldn’t be all that great. The second scenario seemed more likely. If he truly did have a preset program, then it was likely to shake Bailey up a bit if I threw in something a little obscure. Something he might have overlooked.
That led me to a mistake. Mark had told me about a large plastic bag he’d found in the rear of the Bronco. It was his theory that Simpson might have intended to use it to carry Nicole’s body away from the murder site. I figured I’d throw it out to see what old Bailey made of it. So late on Friday afternoon, March 10, I ticked off an inventory of evidence from the Bronco, including a shovel “about five feet long” and a large piece of “heavy-gauge plastic” that had been tucked into a side pocket in the cargo area. Mark identified these items as the ones he’d seen when he looked through the window of the Bronco the morning of the thirteenth. Let the jurors draw their own conclusions.
It is an understatement to say that things didn’t work out as I’d planned. I was getting ready to end my direct when Ito decided to break for the day. That left Bailey with the entire weekend to figure out how to counter the bag business.
It turned out to be a no-brainer. That weekend, owners of Ford 4X4s all over America flooded our phone lines to report that the plastic bag was standard-issue in Broncos.
Man, did I want to hide under a bed.
On Monday morning, with Mark back on the stand, I swallowed hard and asked him about the plastic bag again. “Do you happen to know whether it belongs in a Bronco?”
“Well, now I do,” he said.
“And what is it?” I asked, setting up the punch line for which I was the joke.
“It is the spare-tire bag,” Mark said.
I vowed to swear off cute tricks for all eternity.
Much of the civilized world tuned in to catch the opening day of Bailey’s cross-examination of Mark Fuhrman. That’s just what Bailey had hoped for. For weeks now he’d been pounding his chest and blustering to the media how he would do the most “annihilating, character-assassinating” cross-examination ever. Now millions of viewers were dangling over the walls of the virtual Colosseum in eager anticipation of a bloodbath.
When Bailey approached the witness, he couldn’t resist jabbing the bamboo under our nails.
“Can you tell us when it was that you were enlightened to the fact the plastic you saw in Mr. Simpson’s Bronco comes with the car?”
“I believe it was Saturday,” Mark replied.
“So after nine months of investigation, you discovered on Saturday that this important piece of evidence was perfectly innocuous. Is that right?”
Ouch
.
I have to say that I found myself admiring Bailey’s style. Unlike every other member of the Dream Team, who tended to meander and become mired in meaningless detail, Bailey kept his cross on course. I enjoyed watching him as I had enjoyed watching no other member of that defense. There was a glimmer of real lawyering here.
As he steered the cross to Kathleen Bell, I held my breath. I would have to practice a judicious restraint. I didn’t want to object unless I absolutely had to. We didn’t want to appear to have something to hide. Above all, I didn’t want to object and have Ito overrule us. That would make it look as if we were trying to “cover up a racist.” But I would have to be ready to jump in if the cross turned into a mêlée.
“Detective Fuhrman,” Bailey exhorted, “would you take a look at this photograph of a blond woman and tell me whether or not that is the person that was being interviewed on Larry King when you watched the show at the request of the prosecution?”
Bell’s photo was flashed on the screen. Mark turned to look at it.
“I do not recall ever meeting this woman in the recruiting station or anywhere else.”
“Ever had any contact with any relative or possible relative of Kathleen Bell in your capacity as a policeman?”
“I would have no way of knowing that,” Mark replied. “The name Ms. Bell does not ring a—”
“The name Bell doesn’t ring a bell, is that what you were trying to say,” Bailey said, finishing his sentence.
Chuckles rattled through the audience. Even a few of the jurors grinned.
Good
, I thought to myself. A soft denial. That left room for the possibility that he could have met her, but had simply forgotten.
Mark was holding his own. He didn’t let Bailey push him into any categorical denials. That was good. And in the hours that followed, Fuhrman kept his cool under the questioning of the old warrior.
As we went on to day three, I thought I could detect a hint of desperation in Bailey’s voice. So far, he’d failed to deliver his Perry Mason moment. Now he locked in on the subject that he hoped would deliver a knockout blow.
He started by bringing up, as I’d dreaded, Chris’s misguided grand jury room session with Mark. During our arguments before Fuhrman’s testimony began, Bailey had displayed a great deal of knowledge about that mock session. He knew that the Bell letter had come up, and now he asked Mark about the racial epithets Bell had described.
“Did any of the questions [in the mock cross] require you to say whether or not language of that sort was part of your vocabulary?” asked Bailey.
“I might have offered that,” said Mark.
“Ah,” said Bailey. “Tell us please, what was it you offered these lawyers in that room about your vocabulary, Detective Fuhrman?”
I objected, claiming that it was irrelevant. It was, but Ito had already committed himself to allowing this filth. Overruled.
“Would you answer?” Bailey persisted.
“Yes,” said Fuhrman. “That I don’t use any type of language to describe people of any race such as what is alleged by Kathleen Bell.”
Bailey was circling in for the kill, and I couldn’t do a damned thing about it except hope that Mark would give himself some wiggle room. As Bailey began to ask Fuhrman the questions that would deny him that space, I objected, and though Ito sustained a couple of my objections because Bailey’s phrasing was vague, I knew I was only staving off the inevitable.
Bailey would not be denied. “Do you use the word ‘nigger’ in describing people?” he spat.
I had no choice. “Same objection,” I interjected again.
“Overruled.”
“No, sir,” Mark answered.
“Have you used that word in the past ten years?”
“
Object
,” Chris hissed at me. This was the guy who was going to treat Fuhrman as a hostile witness, right? Now he’s pushing me to run interference. But I couldn’t object again. I knew that very question had been asked of Mark by
our
side in the grand jury room session. If so, Bailey could make a fool of me if I spoke up: “Why would Miss Clark object to the very question that
the prosecution
themselves posed to Detective Fuhrman?” My objection would make me look like a liar and a racist myself—like I was trying to hide whatever offensive remarks Fuhrman had given to us.