The Run of His Life: The People v. O. J. Simpson (68 page)

The loss in North Carolina, even though it was later rectified, rattled Cochran. Confident from the beginning that he could win a hung jury for his client, Cochran felt the tapes represented the ammunition he needed to push the jurors toward an outright acquittal. At the most basic level, of course, the tapes proved that Fuhrman had lied in answering Bailey’s carefully phrased questions about whether the detective had used the word “nigger” in the previous ten years. But more than that, the tapes allowed Cochran to make Fuhrman’s irrefutable bigotry stand as a proxy for the racism of the LAPD as a whole. The choice in the case
would come down to exactly the one Darden had predicted seven months earlier in his original debate with Cochran over what became known in the trial as the “n-word”: “Whose side are you on?… Either you are with the Man or you are with the Brothers.”

But Cochran couldn’t trust that Ito wouldn’t, like Judge Wood, thwart him at the last moment. Like most of the lawyers on both sides, Cochran assumed that some news about the trial was filtering back to the sequestered jurors. He also thought that general public agitation about the tapes fed the prosecution’s insecurity and growing sense of panic. All in all, then, Cochran needed a public airing of the tapes. In other words, he needed their contents leaked to the press.

The prosecutors, for their part, could tell what Cochran was thinking, and they tried to counter his strategy. If they could confine the McKinny controversy and limit public exposure of the tapes, they had a chance of preventing the case from evolving into a referendum on police racism. Therefore, the prosecutors were only too happy when Schwartz, McKinny’s attorney, insisted before Ito that the tapes be governed by a tightly worded protective order. (Schwartz still entertained hopes of selling them.) On August 10, Ito directed that the audiotapes should “remain under seal” until he ordered otherwise. Ito’s order permitted only the lawyers on the case and their direct assistants access to the tapes and the transcripts. Ito’s order built a wall of secrecy around the tapes—until or unless the judge himself ordered them to be played in court.

In light of the protective order, Cochran couldn’t simply hand the transcripts over to a friendly reporter. Same with the other defense lawyers—the risk of exposure was simply too great. The question thus became who on the defense team could do it. Who wouldn’t mind taking the chance of directly violating a court order? Who had contacts among the reporters on the press corps? Whose ethics permitted him to do a job like that? All signs pointed to one man:

Larry Schiller.

O.J. Simpson’s literary amanuensis, the coauthor of
I Want to Tell You
, had spent the entire trial ingratiating himself with reporters as well as gathering material from inside the defense camp
for his next, still inchoate, ghostwritten version of Simpson’s story. Schiller loved being at the center of the action, so he was only too happy to share the McKinny largesse with his journalist friends, and they were likewise pleased with their scoops. For the next week or so, Schiller leaked hate-filled tidbits to reporters. (Schiller denies doing this.) The ensuing outcry from the public against Fuhrman added immeasurably to the pressure on Ito to admit the tapes into evidence, just as Cochran knew it would.

When lawyers from both sides finally sat down to listen to the tapes, they were struck by something besides Fuhrman’s bigotry. Everyone also noticed the references to Margaret York, who was Fuhrman’s onetime commander in the West Los Angeles division and Lance Ito’s wife. York had been one of the early female recruits to the LAPD (and, in true Los Angeles fashion, a model for the television series
Cagney and Lacey
). In keeping with his role in McKinny’s project, Fuhrman had excoriated women police officers in general but also, it turned out, York in particular. Among other things, Fuhrman said on the tape that the judge’s wife had “sucked and fucked her way to the top.”

The lawyers brought this to Ito’s attention in chambers on August 14. The issue was further clouded by the fact that earlier in the case, York had filed a declaration in the Simpson trial saying that she remembered little about Fuhrman except that he was once one of the officers under her command. As Cochran put it gently to Ito, “This is a very delicate issue.… It is going to have to do with credibility, because you know, her declaration—this guy, unless he is absolutely lying—and Marcia will back me up on this—the contacts he has with Lieutenant York are the kind that are very hard to forget him.” In other words, as some lawyers on both sides came to believe, York may have lied in her sworn statement that she didn’t remember Fuhrman.

The tapes issue thus quickly became one of daunting complexity—as were the parties’ motives. The judge went right to the heart of the issue when he asked, in chambers, “Is there a conflict for me to hear this issue?”

“Right,” said Clark.

“Which is a significant legal issue,” Ito continued, “because we may be talking mistrial.”

With the tapes in hand, the defense felt the best thing it could do was press on for a verdict in front of this judge and this jury. The prosecutors did not want to prompt a mistrial that might potentially, under the double-jeopardy clause of the Constitution, prevent a retrial, but Clark in particular had come to loathe Ito with a passion. By coincidence, right around this time Clark and I were chatting in the hallway and she launched into a lengthy tirade about the judge: “The worst judge I’ve ever been in front of—and the worst possible judge for this case. Totally intimidated by Johnnie, a total starfucker.…” But she and the other prosecutors also realized that it was almost impossible to bring a new judge into such a complex case at this late date.

And then there was Ito. A decent man, he mostly wanted to do the right thing under the law (though it was far from clear what that was). He had come to have an almost schizophrenic reaction to the media attention that the case had brought him. True, at times he reveled in it. But at the same time Ito suffered at the many (and ever increasing) critiques of his performance. Now his wife was being dragged into the mess. The pressure nearly drove him to snap.

After devoting nearly the entire next morning, August 15, to listening in silence to Clark and Cochran’s rancorous arguments about how to handle the issue of his wife’s involvement, Ito made up his mind. Staring at his notes, he said, “When a concern is raised regarding a Court’s ability to be fair and impartial, it is not the actual existence of impartiality or partiality that is the issue. It’s the appearance.” Ito paused, gathering himself, the silence a reminder of how wrenching the experience had become for him. When he resumed, his voice was thick with emotion. “I love my wife dearly.” He struggled to collect himself. “And I am wounded by criticism of her, as any spouse would be. And I think it is reasonable to assume that that could have some impact. As I mentioned, women in male-dominated professions learn to deal with this. And those who are successful, I think we all observe, are tougher than most.” (Ito implied, winningly, that they are tougher than their husbands, too.) Ito did not recuse himself from the
case—at least not yet. He said, in effect, that another judge should review the tapes and determine if Ito could still preside.

The entire courtroom then picked up and moved in a motley caravan up two flights to the courtroom of Judge James Bascue, the chief criminal judge of the superior court. Bascue assigned the case to Judge John Reid, in the courtroom next door. (There was a revealing moment in Bascue’s brief tenure on the case. Though famously tough on crime in ordinary circumstances, Judge Bascue couldn’t resist trying to banter a little with Simpson about football—striking, and distasteful, evidence of the effect of sports celebrity on middle-aged men.) Judge Reid, in turn, agreed to examine the tapes, and then sent the case back to Ito to continue the trial. This extraordinary merry-go-round—three judges in an hour, with the jury all the while sitting around and doing nothing—underlined just how anarchic the case had become.

The following morning, in an off-the-record session in Judge Ito’s chambers, the prosecution’s frustrations surfaced. Sitting around Ito’s desk with the defense attorneys, Darden said, “Judge, I haven’t vented in a long time, and I’d like to vent.” He complained that the judge had interrupted and embarrassed prosecution lawyers in front of the jury. “We don’t like that,” Darden said. With the issue of Ito’s recusal still hanging in the air, it looked like Darden was trying to intimidate the judge. After Darden’s tirade, the defense lawyers bolted out of chambers and asked to go on the record in open court. There, Shapiro recounted the episode and said he was going to complain to the state bar. Such a remedy might have been excessive, but Shapiro’s complaint about Darden certainly did have merit.

Now it was Darden’s turn to become nearly unhinged. “Your Honor,” Darden said, voice quavering, “I’m so offended at Mr. Shapiro’s remarks—remarks that I’m sure are being fed to him by Mr. Cochran—I’m so offended by those remarks that I would rather not stand at the same podium at which he stood a few moments ago.” Like a child fearing cooties, Darden kept his distance from the wooden stand. “Now, if Mr. Shapiro or Mr. Cochran want to refer me to the state bar, fine. Because when this case is over, I’m going to be referring the defense attorneys to the United States
Attorney’s Office.” Cochran laughed audibly at this preposterous suggestion. “And he chuckles now,” Darden went on, “but will he be chuckling later on? It won’t be so funny later on. They don’t know everything that I know.”

One can scarcely imagine more reckless behavior by a law enforcement official than Darden’s empty threats (based on secret information) to report an adversary for a crime. Yet the defense did not even complain, because Darden was so obviously just posturing. (Needless to say, Darden never reported anything to the U.S. Attorney’s Office. Notwithstanding the questions about the ethics of the defense lawyers in this case, no one could say that they had committed any federal crimes.) And all this distress for the prosecution came even before the judge decided when, or if, to play the tapes in public.

Cochran kept the pressure on. His experience told him that organized political pressure to release the tapes had to accompany general public outrage about them. When Cochran’s client Michael Jackson was under investigation in February 1994, the lawyer had orchestrated a news conference of black ministers to call on Gil Garcetti to conclude his investigation of the singer. On August 28, 1995, much the same coalition was reassembled—this time to call for Judge Ito to release the Fuhrman tapes to the public. The heavily attended media event was spearheaded by Danny Bakewell, head of the Los Angeles civil rights organization known as Brotherhood Crusade. (This was the same Bakewell who had, less than a year earlier, bestowed on Cochran his organization’s annual award, hailing the lawyer as “a tireless warrior against those who would deny justice for all.”) Commenting on the Fuhrman tapes, Bakewell predicted dire results if the tapes were not released. “This community is a powder keg,” Bakewell said, “capable of repeating the actions of 1992”—that is, the riots that had followed the acquittal of the LAPD officers who beat Rodney King. Bakewell’s rhetoric was pure racial extortion: Release the tapes—or else.

The political maelstrom left Ito little choice when the issue was finally posed to him the next day, August 29. The prosecution had
entertained a vain hope that Ito would at least decide the tapes issue without first playing them in public. But when weighing that decision, Ito addressed the general outcry about the tapes directly. “I think that there is an overriding public interest in the nature of the offer that you are making,” Ito told the defense in a hearing before the television cameras but outside the presence of the jury, “and I don’t want this Court to ever be in a position where there is any indication that this Court would participate in suppressing information that is of vital public interest.” The judge allowed the defense to play the portions of the tapes they wanted the jury to hear. With that decision by Ito, all of the defense work—from Schiller’s leaks to Bakewell’s threats—had paid off.