A quick glance at the jury told me we couldn’t afford to be overruled on any more objections about race. They were glaring at me with hatred. They wanted to hear Fuhrman’s answers.
“Not that I recall, no,” Mark answered.
Mark’s competitive instincts, which he’d managed to hold in check until now, were finally rearing their head. What was it? A more prominent jutting of the chin? Was he leaning forward instead of back? I couldn’t put my finger on it. But I felt the shift.
“You mean if you called someone a nigger you have forgotten it?”
“I’m not sure I can answer the question the way you phrased it, sir.”
“Are you therefore saying that you have not used that word in the past ten years, Detective Fuhrman?”
“Yes,” Mark answered. “That is what I’m saying.”
“And you say under oath that you have not addressed any black person as nigger or spoken about black people as niggers in the past ten years, Detective Fuhrman?”
“That’s what I’m saying.”
Please, Mark
, I was begging silently,
how about something like, “I don’t know. Ten years is a long time. Ten years ago? I might have
.”
But Mark Fuhrman was enjoying watching his adversary squirm. Bailey had failed to deliver on his boastful claims that he would “annihilate” him. Now that victory, as Mark saw it, was within reach, he wasn’t giving an inch.
“So that anyone who comes to this court and quotes you as using that word in dealing with African Americans would be a liar, would they not, Detective Fuhrman?”
“Yes, they would.”
“All of them, correct?”
“All of them.”
Mark had left himself no out. But that wasn’t the worst of it. He compounded his folly with arrogance. Bailey returned to the very first moments of Mark’s testimony, when Fuhrman mentioned the accusations being hurled against him. These, of course, included making racial slurs and planting evidence. But when Bailey asked Mark, “What were you thinking of when you talked of those problems?” Mark said, “Being accused of committing a felony in a capital crime.”
“Was that the only accusation that was troubling you as you took the witness stand?”
“That,” Mark blurted out, “is the only one I care about.”
Bailey saw his opportunity.
“The other one, the [accusation] that you used racial epithets, you don’t care about at all, is that correct?”
“I didn’t say them,” Mark insisted. “I don’t care about them.”
I was so mortified I felt as if my skin were on fire.
You don’t care about that fucked-up statement? Don’t care! How can you not care? Someone just accused you of advocating genocide, for Christ’s sake. That at least has to offend you. How can you say you don’t care?
How could I deal with this? If, on redirect, I asked Mark to try and explain the comment, it could get a lot worse:
“What did you mean when you said you don’t care?”
“I don’t care because it isn’t true.”
“Yet the accusation that you’d planted evidence wasn’t true either, and you were upset by that… .” And so on.
Even worse, he could ramble on in the spirit of “Well, I didn’t really mean I don’t care, I just mean…”
There was no coming back from it. And no chance that the jury had missed it, either.
Meanwhile, in sessions held out of the jury’s presence, Bailey and I were going at it tooth and nail. The defense was demanding that Ito let them call witnesses who could supposedly corroborate Kathleen Bell’s accusations of Fuhrman. One of these was Maximo Cordoba.
Cordoba, you’ll recall, was the black marine stationed at the recruiting station in Redondo Beach. We had originally considered calling him as a prosecution witness. But he was a real piece of work. He’d been interviewed several times by the LAPD as well as by Mark’s private investigator, Anthony Pellicano. In a taped interview with Pellicano on September 16, 1994, Cordoba couldn’t recall ever hearing Mark make the racially charged statements attributed to him by Kathleen Bell. In fact, he made no mention of hearing Mark use
any
racial slurs. In a telephone interview with a detective from the LAPD on January 17, 1995, Cordoba said he couldn’t recall ever seeing Mark and Kathleen Bell at the recruiting office at the same time. And again, no mention of racial slurs.
Three days later, Max came to our office, where he was interviewed by Cheri and Chris. Once again he insisted he’d never seen Mark and Bell together. Now, however, he seemed to remember that Fuhrman—or perhaps it was one of the marines, he couldn’t be sure—had called him “boy.” This witness’s “memory” was troubling. And it became increasingly dubious several months down the line when he told a reporter that the “boy” episode had come back to him
in a dream
. Max’s record was so riddled with inconsistent statements, we couldn’t possibly call him as a prosecution witness. The defense, however, did not feel similarly constrained.
On the second day of Fuhrman’s cross-examination, Bailey asked to address the court before the jury came in. Hoping to use it in his cross, he came up with yet another Max Cordoba story. According to this tale, Max had been in the station when Mark came in to hand him an application to join a reserve unit. Cordoba said he didn’t know anything about it and called to a fellow marine, “Hey, Roher. Your boy is here.” At this, Fuhrman turned on Cordoba saying, “Let’s get something straight. The only boy here is you, nigger.” Then, as Bailey told it, Fuhrman followed Cordoba into the parking lot to repeat the epithet.
Was this all Bailey hyperbole, or had Cordoba come up with yet another, more sensational version of the bullshit statement he’d given us in January? I stood up.
“These allegations get more outrageous by the minute,” I said. “He never made such a statement, and he never alleged that Mark Fuhrman had made such a statement.”
I demanded that Ito exclude any cross-examination on such a highly suspect statement. At the very least we should be allowed to call Cordoba to the witness stand outside the presence of the jury so that Ito could see for himself just how incredible this witness was before the jury heard his latest unfounded accusation. As a parting shot, I predicted that Cordoba would not, in fact, testify to the version given by Bailey.
“That,” I said, referring to the story Bailey told, “is something that is never going to be delivered on and the court will have allowed the jury to be inflamed by something that will evaporate in thin air.”
That goaded Lee into his big mistake. He jumped to his feet and proclaimed, “Your Honor, I have spoken to him on the phone personally, marine to marine. I haven’t the slightest doubt that he will march up to that witness stand and tell the world what Fuhrman called him, on no provocation whatsoever.”
Ito ruled that Bailey could ask Fuhrman about Cordoba only after we’d had another shot at interviewing him in light of this new allegation. But the need for another interview would soon be rendered moot.
That evening I agreed to meet the team for dinner at the Saratoga. Chris, Cheri, and a bunch of the law clerks were already there when I arrived. They slid down the booth to make room for me.
My head ached, I was kinked up with tension. I ordered a Scotch. Probably a bad idea, but I needed to relax. Scott Gordon joined us. So did a couple of young lawyers from media relations. We thought we might get some work done, but everybody was just too tired and beat up with the stress of having Fuhrman on the stand. So we cut loose. As the evening wore on, the subject of Maximo Cordoba seemed funnier and funnier. “Next time around he’ll probably remember that he was married to Kathleen Bell,” Cheri groused. We split our sides laughing. All anyone had to do was puff out his chest and grunt, “Marine to marine,” and we’d collapse in hysterics. Every team needs a good blowout.
That night, when I’d headed home and was preparing to drop into bed, Chris called me and told me to tune into
Dateline
. Quick. I switched on the TV in my bedroom and there was old Max Cordoba talking to Jane Pauley. He was denying ever having spoken to F. Lee Bailey. Not marine to marine. Not any other way.
Thank you, God.
The next morning, I awoke feeling as if trolls in knuckle studs had worked over my cerebral cortex. Mark Fuhrman was still on the stand. I groaned and pulled the covers tight over my head.
Now I accept it as a fundamental fact of survival that when one gets up in the morning, one must be prepared to do battle before the day is through. Not today. I couldn’t face it. I dragged myself into court intending to dump Bailey on Chris. But Chris would have none of it.
“C’mon, baby,
you’ve
got to do it.” He grinned. “Get in there and break off a piece for Daddy.”
I turned to Jonathan Fairtlough, who’d brought a copy of the
Dateline
tape.
“Cued up?” I asked him. My head was still pounding.
“All set, boss. You just say when.”
“No matter what you hear or see,” I instructed him, “when I tell you to play the tape, just do it.”
The point I rose to make that morning was a serious one indeed. An attorney for the defense had willfully misled the court. He’d claimed that he’d spoken to a witness when, in fact, he had not. It was this kind of fast-and-loose gamesmanship that in any other court would get a lawyer held in contempt.
“This is the kind of nonsense that gives lawyers a bad name, Your Honor,” I said. “He was intending to convey to the court that he had personal knowledge of what this man said because this man said it to him personally—‘marine to marine.’ . . . That is nonsense.”
I asked Jonathan to roll the tape. Bailey saw what I was up to and began to yell at the top of his lungs that this was “outrageous.”
“Mr. Bailey—you can see how agitated he is—has been caught in a lie,” I observed to the court, “and you know something? Not in this case. You don’t get away with that. There are just too many people watching.”
Poor Jonathan looked like a deer caught in the headlights. But I calmly repeated, “Jonathan, roll the tape.”
Bailey continued screaming, but for once Ito wasn’t listening. He’d turned to watch as Cordoba, now blown up larger than life on the big screen, denied ever having spoken to Bailey. It was amazing. Only by seeing the events in his own courtroom
on television
could Lance understand what had happened! He asked me what sanction I felt should be imposed on the defense.
“I think that the witness should be precluded from testifying,” I said. “I think that Mr. Bailey should be cited for contempt and fined substantially. As an officer of the court, he has lied to this court.”
Bailey put his hand on the podium, trying to edge me out, but I wouldn’t budge.
“Excuse me, Mr. Bailey,” I told him. “Stand up and speak when it’s your turn.”
In a sidelong glance, I caught the hatred in his eyes. Bailey was an old-school lawyer. He was used to being able to bluster and bully his way through everything. He wasn’t prepared for a woman to take him on that way.
Lance looked thunderstruck. I could see he knew he’d been played for a fool. It was clear that Bailey would not be able to use his crazy Cordoba story in the Fuhrman cross, but I was really hoping Lance would also make Bailey pay for his deception. I was wrong. Bailey claimed he’d spoken to Cordoba
through an investigator
and how Cordoba had just forgotten that Bailey himself had come on the line to talk with him for a few moments.
Bottom line, Ito hated fighting more than he hated being duped. All he wanted to do was end the hostilities. He called Lee and me to apologize to each other and bury the hatchet.
I’m sure the look on my face said,
Yeah, I’ll bury the hatchet
—
in his head
, because when Lance saw it, he knew I was neither repentant nor inclined to fake it. He turned to Chris and asked him to try and reason with me.
“I don’t want to apologize,” I said under my breath. “I have nothing to apologize for. He lied and now he’s covering it up.”
But Chris didn’t listen to me. He turned to the bench and announced, “I’ll apologize for my warrior if you’ll apologize on behalf of yours.”
You motherfucker,” I mouthed to Chris. He’d just rolled me out like a Persian rug. When he returned to the table, I lit into him. “This is payback for the contempt thing. You’re still pissed about that, aren’t you? His expression was perfectly straight, but his shoulders shook with laughter. I couldn’t blame him. Lawyer gets caught lying on national TV. Judge won’t do a goddamned thing. What can you do but laugh?
The truce between Lee Bailey and me lasted about two seconds. Once again he was up on his feet, asking to address the court out of the presence of the jury. He’d brought along some props: a plastic bag and a pair of brown leather gloves. He wanted permission to show Mark the plastic bag. He wanted to put the gloves inside the bag and demonstrate how the witness could have secreted the package in his sock—which, he claimed, was a habit of old marines. Of course, he had not one scintilla of evidence to prove that Mark had ever done such a thing. The defense had been discomfited by the revelation that Mark rarely wore a jacket. I’d introduced this fact during the cops’ testimony, through photos taken at the crime scene. So if he had no jacket, how the hell could he hide the glove until he could plant it? Now Bailey wanted to give the jury a fallback scenario: that Mark stuffed the glove in his sock.
By the way, this proposed stunt was strictly improper. The law stipulates that any experiment or attempt to re-create an event must duplicate the original circumstances as nearly as possible. The standard is “substantial similarity.” It doesn’t take a legal wizard to see that there were no “original circumstances” here. There was absolutely no evidence that anything like this had ever happened. The experiment proposed by Bailey would be substantially similar to—what? A nonoccurrence? What it had, however, was tons of graphic prejudicial value.
As Bailey continued to outline his proposal, I thought,
I shouldn’t even have to respond to this, it’s so ludicrous
. But I knew that if I held my peace, Ito might well allow it.
So I argued to the court that you couldn’t justify an experiment when there’s not only
no
evidence to support that the event occurred, but there
is
evidence to prove that it
never
occurred. No one ever said they saw a plastic bag in anyone’s possession that night. Not to mention that there was no second glove available at Bundy to go into that bag.