Outrage (12 page)

But if statements on the tapes, as weak as they were, suggesting Fuhrman was the type who may have framed people in the past didn’t mean he tried to frame Simpson, why would his using the word “nigger” mean he did it? (Note that the only relevance of letting the defense inquire, on cross-examination of Fuhrman, whether he had used the word “nigger” was to further their inference that it showed he was a racist
and therefore framed Simpson
. Just showing he was a racist, all by itself and
without
the following inference of a frame-up, would obviously have no relevance.) How, in Ito’s mind, could Fuhrman’s mere use of the word “nigger” in the past suggest he was more apt to have framed Simpson than if he claimed to have set up other criminal defendants in the past? Such a notion is too absurd even to discuss. Insofar as the Fuhrman affair was concerned, Ito didn’t know whether he was coming or going.

To demonstrate even further what a thick fog he was operating in, Ito proceeded virtually to parrot Darden by proclaiming, on August 31, 1995, that the word “nigger” was “perhaps the single most insulting, inflammatory and provocative term in use in modern day America.” But if he believed that, then in view of the fact that this was a predominantly black jury, how could he possibly have ruled earlier that the relevance of using this word was not substantially outweighed by the prejudice to the prosecution? And assuming Ito’s description of the word “nigger” was correct, when had he come to realize this fact? And how?

Ito’s illogic over the Fuhrman matter knew no bounds. He started to act and talk like a man who had just been roused out of a fire in the middle of the night and hadn’t gotten his bearings yet, apparently even losing the capacity to read the clear and explicit language of the California Evidence Code.

When Fuhrman invoked the Fifth Amendment as to
all
questions (a witness can’t pick and choose, an answer to one question being a waiver of the witness’s right under the Fifth to refuse to answer any others connected to the transaction or incident about which he testified), Ito agreed that existing law prohibited him from informing the jury, as the defense had urged, that Fuhrman had taken the Fifth. But what Ito did decide to do was almost as bad. Once again over the vigorous objection of the prosecution, he succumbed to pressure from the defense and said he intended to give the jury the following instruction: “Detective Mark Fuhrman is not available for further testimony as a witness in this case. His unavailability for further testimony on cross-examination is a factor
which you may consider in evaluating his credibility as a witness
.” The only problem, as the prosecution pointed out to Ito, is that this instruction flew straight into the teeth of existing case and statutory law in the State of California. Section 913 of the California Evidence Code provides, unambiguously, that when a witness invokes the Fifth Amendment, “the presiding officer [judge]…and the trier of fact [jury]
may not draw any inference therefrom as to the credibility of the witness
.”

Yet Ito nonetheless intended to ignore the law and give his instruction. When the prosecution sought an emergency writ in the appellate court to stop Ito, Ito himself, as well as virtually every legal analyst covering the case, said it would be a futile effort inasmuch as the appellate courts rarely intervene in the middle of a trial (usually only about seven or eight times a year in California). The former Los Angeles district attorney who had been elected DA, went even further, suggesting that the prosecution didn’t even have a sound legal basis for its appeal. The prosecution’s appellate argument, he declared, “
is very thin
and there’s zero possibility the court of appeal will entertain an emergency writ.” I wondered how the court could help but intervene when Ito was clearly wrong. On September 7, 1995, just three hours after the prosecution filed its appeal, the Court of Appeal for the Second District ruled: “The proposed instruction regarding the unavailability of Detective Fuhrman is not to be given.” The court did give Ito until Sunday afternoon (it had ruled on Friday) an opportunity to draft a legal defense for his judicial apostasy, but Ito, without a legal leg or even cane to stand on, never even made the attempt.

Almost from the beginning of the trial right to the end, many of Ito’s rulings were bad, sometimes bizarre. One of the first witnesses at the trial was Ronald Shipp, a black former
LAPD
officer who had been a close friend of Simpson’s for years, serving as a loyal “gofer.” Over defense objections, Ito permitted the prosecutors to elicit from Shipp his testimony that on the day following the murders, Simpson told Shipp at Simpson’s Rockingham estate that “you know, to be honest, Shipp, I’ve had some dreams of killing her.” Quite apart from why the prosecution would even want to present extremely weak dream evidence when it had a Himalayan mountain of other very solid evidence against Simpson, the decided weight of authority in the United States is against the admissibility of such evidence, since the medical profession has not yet been able to establish, through empirical studies, an unmistakable connection between dreams and actual conduct. Yet Ito nonetheless allowed this evidence to be heard by the jury, undoubtedly bringing a smile to the face of Alan Dershowitz, who felt that if there was an eventual conviction, Ito’s incorrect ruling in allowing the jury to hear the dream evidence would be one of the stronger grounds on appeal seeking a reversal of the conviction.

And at the end of the trial, when Simpson waived his right to testify in his own defense, instead of simply taking the waiver, Ito permitted Simpson to address the court. “It is inappropriate and the defense is deliberately trying to do it for a clear purpose,” prosecutor Clark had forewarned Ito, knowing what the defense was up to and what was coming. “This is an attempt to get testimony before the jury without cross-examination. Please don’t do this, Your Honor. I beg you, I beg you.” Ito never explicitly ruled on Clark’s objection, and instead let Simpson make a self-serving statement which, as a member of the defense team later acknowledged, defense lawyers had been working on with Simpson for three weeks. With the television cameras in the courtroom, millions heard it. It played very heavily in all the media that night and the next day, and the defense obviously hoped it would reach the jury via conjugal visits.

This was Simpson’s statement to the court, meant only for the juror’s ears, the defense hoping it would be the equivalent of his testifying to the jury without being cross-examined. Judge Ito, who had to know he was being taken, didn’t interrupt Simpson until the very end, when Simpson had just about run out of his rehearsed lines anyway.

bq.

The Court: Mr. Simpson, good morning, sir.

Simpson: Good morning, Your Honor. As much as I would like to address some of the misrepresentations made about myself and my Nicole concerning our life together, I’m mindful of the mood and stamina of the jury. [Simpson was apparently more concerned about the jury’s welfare than his own. Of course.] I have confidence, a lot more it seems than Ms. Clark has, of their integrity, and that they will find, as the record stands now, that I did not, could not, and would not have committed this crime. I have four kids—two kids I haven’t seen in a year. They ask me every week, “Dad, how much longer?”

Court: All right.

Simpson: I want this trial over. Thank you.

Court: All right. Thank you, Mr. Simpson. You do understand your right to testify as a witness?

Simpson: Yes, I do.

Court: And you choose to waive your right to testify?

Simpson: I do.

Court: All right.

District Attorney Gil Garcetti pointed out that Ito’s decision allowing Simpson to give his speech was “grossly inappropriate.” Fred Goldman, Ron’s father, said that Ito’s decision was “outrageous. If he [Simpson] had a statement to make he should have gotten on the damn stand to make it, not be a coward.”

One of Ito’s dreadful rulings and decisions at the trial may, in fact, have been responsible for nothing less than depriving the prosecution of a guilty verdict, or an attempt by Simpson to plead guilty to some degree of criminal homicide below first-degree murder. Following Simpson’s arrest, former
NFL
defensive lineman Rosey Grier, who had become an ordained minister, became a frequent visitor of Simpson’s at the Los Angeles County Jail.

On November 13, 1994, a Sunday afternoon, a deputy sheriff seated close to where Simpson and Grier were talking (a three-quarter-inch-thick glass separated Simpson from Grier, and they communicated by telephone) heard Simpson blurt out a loud exclamation which the deputy construed as a highly incriminating remark.

The deputy, Jeff Stuart, wrote out a report of the incident for his superiors at the sheriff’s department, and on November 28, 1994, the department, in turn, submitted a report to Ito on the matter. (To this day, this report has been sealed by the court.) The very next day, November 29, 1994, Ito and representatives of the prosecution and defense visited the jail area where the alleged incident took place.

To determine the admissibility of the statement, Ito subsequently took testimony from Stuart and Grier outside the presence of the jury as to the circumstances surrounding the overheard remark, but not on the remark itself. Stuart testified he had been doing homework in a control booth about ten feet from Simpson when he heard a loud bang—the sound of Simpson slamming his phone down. He said Simpson then shouted out two short sentences to Grier. Asked to describe Simpson’s tone of voice by prosecutor William Hodgman, Stuart replied: “He was yelling. It was very loud, in a raised voice. He appeared to be very upset.” Grier, who carried a Bible with him to the witness stand, denied that Simpson had raised his voice above normal speaking levels during his visit that day. He testified about his jailhouse visits with Simpson: “We go over scriptures, we pray. We discuss various people in the Bible, problems they had, talk about who God is…what is sin. We talk about all kinds of things in the Bible.”

Although the prosecutors did not know the words of Simpson’s statement, they assumed it had to be incriminating, and this is why they argued to Judge Ito that they should hear it and, if they elected to do so, introduce it to the jury at the trial. The defense, naturally, was on its hind legs, trying to keep it out by arguing that whatever Simpson said, it was confidential and entitled to legal protection.

The main legal issue was whether Simpson’s remark was protected by the “clergyman-penitent privilege,” one of many privileged communications (husband-wife, attorney-client, physician-patient, etc.) which are designed by the law to protect personal relationships or other interests where the protection of confidentiality, from a public policy standpoint, is thought to be more important than the need for the communication to be received as evidence. However, there are several exceptions to the privilege; for instance, when the communication is used to contemplate—not defend against—a crime or fraud.

Moreover, the holder of the privilege (client, patient, penitent) can “waive” the privilege, which usually occurs when he makes the statement in the known presence of a third party not necessary (as an attorney’s secretary) to the communication. Thus, in
People v. Poulin
, 27 C.A.3d 54 (1972), the victim of a bomb blast drew a diagram of the instrument while he was testifying. The bailiff, who was seated next to the jury box, heard the defendant, who was denying responsibility for the blast, say to his attorney, who was seated next to him, “It wasn’t like that.” The bailiff testified to what he heard, and the appellate court held that the bailiff’s testimony had been properly admitted, since the defendant made the statement within earshot of the bailiff and the latter was not eavesdropping.

The Simpson case, of course, is an even more obvious case of waiver, since Simpson shouted out his statement knowing the deputy sheriff, whom he could see, was only a few feet away. On December 19, 1994, Ito ruled, in fact, that Simpson
had
waived the privilege, but remarkably kept Simpson’s statement out on a totally nonlegal ground: “Counsel for Simpson now argue [after Ito held there had been a waiver] Simpson was lulled into a false sense of security in regard to the confidentiality of his communications in the visiting area. The argument is well taken,” Ito said in his ruling, disallowing the prosecution from presenting the guard’s testimony.

The only problem was that if there was a waiver, as Ito virtually had to rule there was, there was no
legal
basis for excluding the statement. If one were to accept Ito’s nonlegal justification for excluding the statement, I guess it wouldn’t have made any difference how loudly or how often Simpson shouted out his confession or incriminating statement, it would be inadmissible because he had been “lulled into a false sense of security.”

What had Simpson allegedly said? For months, the media quoted unidentified sources as saying Simpson had shouted out, “Okay, I did it,” or some variation thereof, but that stripped of its context, it couldn’t be considered an outright confession. In the January 9, 1996, edition of
Globe
magazine (months after the trial), the guard told enterprising reporter Craig Lewis, who had been pursuing the story for months, what Simpson had said. This is the relevant excerpt from the
Globe
article:

bq.

“In order for O.J. and Rosey to speak, they had to use a special telephone. With the glass between them, they couldn’t touch, hug or even shake hands,” Deputy Sheriff Stuart said.

“From where I was sitting, if O.J. looked over Rosey’s shoulder, he could see me. When they were inside the room they had complete privacy. And under the law, no one is allowed to intentionally listen in on what might be a religious confession. The way the room is secured, as long as the two of them were talking in a normal tone of voice, I couldn’t hear a thing. But that’s not what happened.”

On that particular Sunday, at around 4:30 p.m., he [Stuart] says the two ex-
NFL
stars were shouting—and what the jailer says he unintentionally overhead shocked him.