Without a Doubt (67 page)

After their decade of interviews on the subject, McKinny turned out a screenplay with the catchy title “Men Against Women.” And guess what. It didn’t sell.

She recounted this tale with no discernible sense of irony, and I grew increasingly impatient with her. This woman had laughed and giggled with Mark, listened to his chest-thumping accounts of cop life, and accepted without criticism his descriptions of police misconduct against blacks and women, all spiced with the vilest racial and sexual slurs that a human can utter. What was the deal here? Did she believe he was being himself? Or was he playing a role?

I asked her just that.

At the hearing in North Carolina, she’d claimed that what Mark had said was simply theater; now she backed off. Sometimes she knew that he was acting a part, she said. But at times, he seemed to be talking about himself. When he blathered on about police brutality, she didn’t bother to distinguish between what might have been true and what imagined. She was working on a piece of fiction. It didn’t matter. She was “a writer.”

But Laura, I asked her. When you heard him use those epithets, what did you do?

Nothing.

Laura, what did you feel?

Nothing, she replied. I was just listening.

Chris could take no more. “Nothing?” he repeated, incredulous. “You felt nothing when you heard him talk that way?”

At this McKinny got her back up. She was a writer, she insisted. Interjecting her opinion would have made her subject freeze up.

The upshot of Chris’s sally, unfortunately, was that McKinny herself froze up, and we got nothing more of substance out of her. As time went on, she would put serious distance between herself and her politically incorrect collaborator.

The leopard had changed her spots. By the time of her court appearance, she would have become mortally offended by this creature who had spewed filth into her tape recorder.

We had to face it—it really didn’t matter at this point whether Laura McKinny was going to say that Fuhrman was acting on those tapes. The issue was the tapes themselves. We absolutely had to try to keep them out of evidence. We could argue, with God and Truth firmly on our side, that Fuhrman’s boasts had nothing to do with the deaths of Ron Goldman and Nicole Brown. But Lance, through his insupportable error of allowing in the N-word in the first place, had opened the floodgates to travesty.

We worked hard to stop the inevitable. It was a horrible time. I was fighting a low-grade flu that had plagued me for weeks. But hearing those tapes just did me in. After that, I was flat-out sick. During the worst, most feverish part of it, I had to drag myself into the office at 6:30 A.M. one Saturday to work with Bill on our motion. Scott Gordon worked right alongside us, pulling up more cases in which racial epithets had been deemed inadmissible because of their inflammatory impact. I didn’t get home until three in the morning.

And if all that weren’t enough, by the end of the weekend a new problem had emerged. Cheri Lewis had been going over the transcripts with a fine-tooth comb, filing Fuhrman’s utterances under different categories: by racial epithet; by description of misconduct; etc. We realized that there was another issue raised by the tapes.

One that Lance Ito could never rule on.

At one point in the tapes, Fuhrman complained vociferously and pejoratively about a female captain who had supervised him several years earlier in the West L.A. Station. He described her like this:

Dyed, real white blond hair… with one-inch roots… . This woman is forty years old. She’s got braces on, slumped shoulder. Only marsupial lieutenant on the job. She has a pouch big enough to hide two cats. Under the lower belt it looks like she’s hiding a soccer ball. She’s not pregnant. And she’s never worked the field. Ever. She sued… to get the job.

He was talking about Peggy York—Lance Ito’s wife.

Mark had described two run-ins with her, including one during which she upbraided the squad for writing “KKK” on the calendar entry for Martin Luther King Day. Mark had snickered, and when she called him on it in private, he claimed, he belittled her to her face. In another dustup, he refused an assignment from her, supposedly saying, “I don’t talk to anybody that [
sic
] isn’t a policeman, and you’re as far from a policeman as I’ve seen—and as far as that goes, you’re about as far from a woman as I’ve seen.”

This was going to be a source of major grief for Ito, in more ways than one. Earlier the preceding fall, it had come out that York had known Fuhrman as someone under her command. Those of us on the prosecution side felt that Lance had surely looked into this matter privately—at the very least, had asked, “Honey, what do you know about this?”—and had concluded that there was no personal animus between his wife and Detective Fuhrman. Had there been any, Ito should have recused himself right then and there. He didn’t. So we all assumed the matter was under control.

In October, I had even met Peggy York. Her lawyer, my old sparring partner-cum-buddy Barry Levin, had introduced us. Captain York struck me as a smart, classy lady. York had given a deposition in which she stated she had no memory of ever having reprimanded Fuhrman. In short, she had no information to offer.

But if you believed what Mark Fuhrman had said about her in the McKinny tapes, it became more difficult to take her assurances at face value. The encounters Mark described were sufficiently hostile that, had they occurred, Captain York would most likely have remembered them. And, if she remembered them, it was hard to believe she wouldn’t have told her husband about them—if not at the time, then when his name came up on the short list of judges for the Simpson case.

To state the obvious, if Mark’s problems with York were true and Ito knew of them, he should never have taken the case.

But I decided that, although there was certainly a kernel of truth in his stories, Fuhrman was likely distorting whatever had happened between himself and York, just as he had exaggerated other incidents. During the McKinny interviews, Mark described several incidents of racism and brutality, the most graphic being a scene in which he and other officers chased some suspected cop-killers into an apartment.

“We basically tortured them…” he reported swaggeringly to his adoring Boswell. “We broke ‘em… . Their faces were just mush… .”

Afterward, he said, he and his colleagues had been so bloody that they had to hose down their uniforms. As he returned to this incident later in the tapes, the brutality became even more intense, and in his final version of the tale the cops actually killed one of the suspects.

This smelled like Fantasyland. Sure enough, when the FBI and other agencies set out to verify Mark’s stories, they found no basis in truth. Later on, a former partner of Fuhrman’s, Tom Vettraino, would opine that Mark’s stories came from old TV cop shows. Fuhrman had been bullshitting, right down to his boast that he was a big bad marine who’d seen all sorts of bloody action in ‘Nam—in fact, he never got off some old tub of a ship.

But if the McKinny tapes were admitted, we might have to prove that Fuhrman’s stories of police misconduct were unfounded. Our best witness might have been York, who was named on the tapes and might be able to refute Mark Fuhrman’s tales. As awkward as it was, we would have to call her to the stand. Quite obviously, Ito could not preside while his wife testified. And there was a broader issue: how could he even make a determination on the admissibility of tapes in which his wife was trashed by a witness?

Ito held a hearing on August 15. He still hadn’t heard the tapes, which, he opined, “is a good state of affairs at this point.” He framed the issue simply. If his wife was called, he’d disqualify himself from the case. Sounded fair, but it left me trapped: how could I know whether to call York until I knew which parts of the tapes would be admitted as evidence? If Lance allowed in the incidents of police brutality, York’s observations of Fuhrman’s work would be crucial.

On the other side of the courtroom, they were also in a tactical bind. The defense was pushing like crazy to get the police-brutality stuff into the record, but they didn’t want to lose Lance. Who could blame them? A replacement judge might not be so tolerant of their underhanded tricks.

We recessed for a while to research the issue. And when we returned, it was clear that Johnnie had figured out that I had hung a sword over Lance’s head: if Ito admitted Mark’s nasty statements about police brutality, we’d call York, and Ito would be off the case. Johnnie should have gracefully conceded that someone else should rule on the limited matter of the tapes. I, too, was leaning toward partial recusal, and would have gone with it. But Johnnie was so fixated upon keeping Lance on the bench that he argued against it.

Keep in mind that all of this was going on in open court. The jurors weren’t present, but the proceedings were being broadcast, so their families could hear and see it all. I shuddered to think what information they were imparting to their sequestered loved ones during visiting hours at the Inter-Continental. Johnnie took the opportunity to do all he could to convey to the media and the public what was in those tapes. He knew he could get away with it, too—because Lance was almost comatose from the stress of having to deal with his wife’s sudden visibility in the case.

I was steaming. Johnnie had found a surefire distraction from all the evidence confirming the guilt of O. J. Simpson. “This is a bombshell!” he crowed. “This is perhaps the biggest thing that has happened in any case in this country and they know it.” But, Johnnie, there’s a more immediate horror at the center of this case, lying all but forgotten: two young people with their throats cut.

Finally Lance stopped him. “I’ve heard enough,” he said.

He looked shaken. He said that, much as he hated to bring another judge in, for a ruling on these tapes, he would have to.

“I love my wife dearly,” he said, “and I am wounded at any criticism of her, as any spouse would be, and I think it is reasonable to assume that could have some impact.”

That was touching. But then he began speaking of the difficult road that women had to walk in a man’s profession, how women take a lot of hits for having to be tough. The irony of it left me breathless. For a year now, I had been browbeaten by this man, suffering the very difficulties that moistened his eyes when he spoke of his wife. Oh, when it suited his Kodak moment, he was Mr. Sensitivity.

Upstairs in the D.A.‘s office, anger was building like steam in a pressure cooker. By the time I reached the eighteenth floor, brass and deputies alike were gathered in Bill’s office. They had reached a consensus. We should demand Lance Ito’s
full
recusal.

The argument went like this: Even if Lance stepped aside for a ruling on the tapes, he would still be the one to enforce that ruling. But the essential conflict of interest would remain. You’d need two judges on the bench for the rest of the trial. Introducing this unusual set of circumstances would lead the jury to conclude that the Fuhrman tapes were the most important thing in this case.

The pro-recusal faction was insistent. The two-judge scenario would be a disaster. We had to have
one
judge—not Lance—for the rest of the the trial.

My colleagues handed me the draft of a letter, hastily composed, demanding that Lance remove himself from the case for good. I stood for a moment, silent, trying to sort out my thoughts. If Ito recused himself, this case would be over. No trial judge could walk in at this point, pick up, and carry on. Especially considering where things stood—that is, in shambles. We’d probably have to desequester the jury; you couldn’t keep them locked up for the weeks it would take a new judge to learn the case. Then the jurors would get an earful of any defense propaganda they hadn’t already managed to hear. Probably, during the extension, we’d lose enough jurors to cause a mistrial. Even though I knew in my heart that this case was lost, I believed that at another trial, with another Downtown jury preloaded with tales of Fuhrman, we’d still get the same results. And no one wanted to go through all this again.

But I had another response to this missile we were preparing to hurl. It was a response I could never have predicted. I found myself feeling sorry for Lance Ito. Obviously, I had no reason to love the guy. I had no reason even to like him. But total recusal was going too far. It would destroy him.

“We’re not doing this,” I said to Gil and the brass. “This letter is not going out over my name. If you don’t want to listen to me, then
you
fucking do it.”

I stormed to my office and did my best to slam the door, forgetting that those damned county office doors were too heavy to generate a good, old-fashioned, Bette Davis-style slam. I was surprised how the whole incident had shaken me. I was trembling so hard I could barely light a cigarette.

Finally, a knock. It was Chris. He’d been elected to talk me down. But I held firm.

All the way to court, Brian was still ticking off the reasons why Ito should be forced to recuse himself. I knew the rationale, but to me the issue still boiled down to two things: the necessity to finish this trial, and my feeling that Lance’s career could be ruined. I had not signed the letter demanding recusal, but as lead prosecutor I was the one who would have to present it. My head was bursting, trying to figure out a way to finesse this.

By now, word of the letter had spread through the courthouse. Johnnie, terrified at the prospect of losing Ito, raced to the podium and began to babble, “The prosecution claims now you’re totally recused on this… . It’s bye-bye forever. We resist that. It’s not our understanding.”

I explained that the prosecution’s decision was only tentative, but that “it would appear, based on consultation with everyone, that the only road to take is”—I faltered—“to proceed with complete recusal from this point forward.”

I had become used to my words being greeted at the bench by condescension. Not today. Lance appeared to be holding back tears.

“You sure you want to do this?” he asked with uncharacteristic humility.

The moment was uncomfortably intimate. Lance and I looked at each other for what seemed like a long time. Finally, I spoke.