The Run of His Life

by Jeffrey Toobin

  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.

  In the courtroom that day, the first few examples from the tapes were fairly straightforward—brief sentence fragments of Fuhrman’s familiar voice: “You do what you’re told, understand, nigger?” Female officers, he said, “don’t do anything. They don’t go out there and initiate a contact with a six-foot-five nigger that’s been in prison for seven years pumping weights.” And: “These niggers, they run like rabbits.” Of course, these snippets were bad enough, but then, late in the morning session, Uelman began to play the tape of what appeared to be Fuhrman’s recounting of an incident that had happened to him in the field. It was, according to Fuhrman on the tape, “a real heavy investigation … sixty-six allegations of brutality … assault and battery under color of authority. Torture, all kinds of stuff.” Then Fuhrman’s disembodied voice described for the silent courtroom what had happened.

  Two of my buddies were shot and ambushed, policemen. Both alive, and I was the first unit on the scene. Four suspects ran into a second story in an apartment project—apartment. We kicked the door down. We grabbed a girl that lived there, one of their girlfriends. Grabbed her by the hair and stuck a gun to her head and used her as a barricade. Walked up and told them: “I’ve got this girl; I’ll blow her fucking brains out if you come out with a gun.” Held her like this—threw the bitch down the stairs—deadbolted the door. “Let’s play, boys.”

  On the tape, McKinny interrupted to ask whether she could use this incident in the movie.

  “It hasn’t been seven years, statute of limitations,” Fuhrman cautioned. “I have 300 and something pages of Internal Affairs investigation just on that one incident. I got several other ones. I must have about 3,000 or 4,000 pages Internal Affairs investigations out there.” Then Fuhrman resumed his narration of the event.

  Anyway, we basically tortured them. There was four policemen, four guys. We broke ’em. Numerous bones in each one of them. Their faces were just mush. They had pictures on the walls, there was blood all the way to the ceiling with finger marks like they were trying to crawl out of the room. They showed us pictures of the room. It was unbelievable, there was blood everywhere. All the walls, all the furniture, all the floor. It was just everywhere. These guys, they had to shave so much hair off, one guy they shaved it all off. Like seventy stitches in his head. You know, knees cracked, oh, it was just—We had ’em begging that they’d never be gang members again, begging us. So with sixty-six allegations, I had a demonstration in front of Hollenbeck station, chanting my name. Captain had to take them all into roll call, and that’s where the Internal Affairs investigation started. It lasted eighteen months. I was on a photo lineup, suspect lineup. I was picked out by twelve people. So I was pretty proud of that. I was the last one interviewed. The prime suspect is always the last one interviewed. They didn’t get any of our unit—thirty-eight guys—they didn’t get one day [of docked pay]. I didn’t get one day. The custodian, the jailer of the sheriff’s department, got five days, since he beat one of the guys at the very end.…

  Immediately after we beat those guys, we went downstairs to the garden hose in the back of the place. We washed our hands. We had blood all over our legs, everything. With a dark blue uniform, you know, and in the dark, you can’t see it. But when you get in the light and it looks like somebody took red paint and painted it all over you. We had to clean our badges off with water; there was blood all over ’em. Our faces had blood on them. We had to clean all that. We checked each other, then we went out, we were directing traffic. And the chiefs and everything were coming down because two officers were shot—“Where are the suspects?” … And they took them to the station. Somehow nobody knows who arrested them. We handcuffed them and threw them down two flights of stairs, you know. That’s how they came. That’s where a lot of people saw, you know, “Look out! Here comes one! Oh my God, look out, he’s falling!” I mean, you don’t shoot a policeman. That’s all there is to it.…

  When this taped excerpt ended, Lance Ito’s courtroom was as quiet as it had ever been over the previous year. Then there was a sound: Kim Goldman started to cry.

  At last Gerry Uelman asked McKinny, “Do you have a particularly vivid memory of that account?”

  “Of course,” she said.

  “Why is that?”

  “It’s, um, it’s vividly described.”

  Judge Ito broke for lunch.

  Cochran’s colleagues had never seen him behave the way he did when Lance Ito’s ten-page ruling slipped out of the fax machine on August 31. Cochran was distraught, speechless, despairing. In what seemed to be a shocking blow to the defense, Ito ruled that he would allow only two brief excerpts of the Fuhrman tapes to be played: “We have no niggers where I grew u
p,” and “That’s where niggers live.” In lieu of playing the tapes, he would allow McKinny to tell the jury that Fuhrman had said “nigger” forty-one times on the tapes. Ito found that everything else on the tapes was either irrelevant to the Simpson case or unduly prejudicial to the prosecution.

  Cochran proceeded to an impromptu news conference on the ground floor of his office building on Wilshire Boulevard. Wearing an electric-blue sports jacket over a black shirt buttoned at the neck with a jeweled clasp, Cochran denounced Ito in a most personal way. Surrounded by nearly a dozen colleagues on the defense team (but not Shapiro), Cochran called Ito’s ruling “perhaps one of the cruelest, unfairest decisions ever rendered in a criminal court.” He declared, “The cover-up continues.… This inexplicable, indefensible ruling lends credence to all those who say the criminal justice system is corrupt.” And in a lightly veiled reference to Bakewell’s incendiary threats of earlier in the week, Cochran said, “So all of the citizens in Los Angeles, they should remain calm.”

  Having stung Cochran in print, Ito still could not stand up to him in person. The next day in court, Friday, September 1, Cochran essentially went on strike. The defense was supposed to continue to call witnesses, but Cochran simply refused to continue the trial, in protest against the judge’s ruling on the tapes. A tougher judge might simply have declared the defense case concluded and moved on to the prosecution rebuttal. But Cochran intimidated Ito too much for that. The judge simply and meekly informed the jury, which had heard scarcely any evidence in a week because of the tapes controversy, that the trial was breaking early for Labor Day weekend.

  By this point, Fuhrman had retained a criminal defense lawyer, who wisely advised him to take the Fifth Amendment rather than answer any more questions in the case. The tapes had raised a real possibility that he might be prosecuted for perjury—or even for the crimes he had told McKinny he committed. When Fuhrman returned to the courthouse to take the witness stand once again, he answered each of Uelman’s queries with invocations of his right to remain silent. (As was customary, Ito did not allow the jury to see Fuhrman take the Fifth.) Darden and his student clerks, the only African-Americans on the prosecution team, were not present when Fuhrman returned to appear before Judge Ito.

  At long last, on September 6, the jury heard McKinny and the two short excerpts from the tapes. Ironically, the highlight of the day for the defense was not the playing of the tapes—which the jurors absorbed impassively—but rather Darden’s inept cross-examination of McKinny. Darden belittled McKinny’s credentials, questioned her motives, and generally treated her as if it were she—and not prosecution witness Fuhrman—who had done something wrong. Stung by Darden’s hostility, McKinny blurted out at one point, “Why are we having this adversarial relationship?” Several jurors nodded, apparently wondering the same thing.

  After the trial, most of the jurors said that the McKinny tapes had had little impact on their verdict. Even if one accepts this at face value, the tapes still had an enormous influence on the trial. The entire gestalt of the case was transformed. Because the tapes established definitively that Fuhrman had lied about using the word “nigger,” the prosecution had to abandon its categorical defense of him. This was true even after Ito’s unduly restrictive ruling regarding playing the tapes in front of the jury. Fuhrman’s damaged credibility, in turn, made it that much harder for the prosecution to argue that all the other LAPD officers were telling the truth. In terms of the courtroom chess match, the damage to the prosecution from the tapes was probably as great as from Darden’s glove demonstration.

  The tapes also loom as an important historical artifact beyond the give-and-take of this trial. It may never be possible to sort out how much of Fuhrman’s narrative was literally true. In the aftermath of the case, the LAPD and the United States attorney in Los Angeles launched investigations based on the tapes. Fuhrman’s extraordinary account of the beating of suspects following the shooting of two police officers did appear to be loosely based on a real event that occurred in 1978, but his version had fictional aspects as well. However, the tapes also pointed to larger truths. MAW existed. Mark Fuhrman—and others like him—thrived in the LAPD. Ultimately, it is not surprising that black jurors decide to punish the police for its sorry past and that, alas, O.J. Simpson turned out to be the undeserving beneficiary of this ignoble tale.

  After McKinny’s brief turn on the stand, the defense closed its case with three more witnesses who testified that they had heard Fuhrman use the word “nigger.” As if this were not enough, the defense team decided to send one final nonverbal message. When Ito said he would not tell the jury that Fuhrman had refused to testify further, Cochran arranged for the entire defense team to wear ties made from African kente cloth in protest—in front of the jury, no less.

  Ito could have stopped them. Very early in the trial, the judge had told the prosecutors that they could not wear angel pins in solidarity with the victims of the case, even though, unlike the kente-cloth ties, the pins bore no provocative message. But on the day the defense team wore the ties, Judge Ito had only this to say to the first defense lawyer to appear before him:

  “Nice tie.”

  23. “FREE O.J.!”

  One night toward the end of the Fuhrman-tapes controversy, many leading figures of the African-American community in Los Angeles filled the vast Santa Monica Civic Auditorium for the annual Soul Train Lady of Soul Awards. Gladys Knight hosted this annual salute to black women in show business, and at the climax of the nationally televised broadcast of the ceremony, she said she had a special announcement. “To present the Lena Horne Award for outstanding career achievements,” Knight said, “here is a man who has been a wonderful friend to all of us … a longtime supporter of everything good and positive that takes place in our community—Mr. Johnnie Cochran!”

  Cochran appeared from behind a curtain, splendidly turned out in a perfect tuxedo and bright red cummerbund. The audience of three thousand burst into loud cheers when Cochran stepped forward, a greeting that quickly turned into a standing ovation, the warmest greeting any celebrity received at the event that evening. A handful of spectators started a chant, which spread in a few seconds to the entire crowd:

  “Free O.J.!”

  “Free O.J.!”

  “Free O.J.!”

  Standing at center stage, Cochran acknowledged the cheer with a pontifical wave. “I promise I’ll work hard to do that,” he said. Then he turned to introduce a brief highlight film of the life of the career-achievement winner, actress and dancer Debbie Allen. These highlights, Cochran told the group with a knowing smile, amounted to “what I would call concrete visual evidence.” This was real evidence as opposed to that which Cochran spent his workweek examining.

  By the end of the trial, Cochran had become his client’s surrogate, and the lawyer took every opportunity to promote the Simpson cause outside the courtroom. After court nearly every Friday during the last weeks of the trial, Cochran headed for the airport en route to speaking engagements around the country—including journeys to Florida, South Carolina, Louisiana, Pennsylvania, and Washington and around California. In his remarks, he invariably seized on the Simpson case as the paradigmatic civil rights issue of the day. On August 20 in Philadelphia, for example, Cochran urged the National Association of Black Journalists to “take on the forces of this country. If you do that, you are using journalism for good … and if you duck this fight, you’ll leave a gaping hole, and the battle for civil rights is lost.” Cochran charged that coverage of the Simpson trial had been too oriented toward the victims. “Even Simpson himself was a victim,” he told the audience of fifteen hundred. “We believe he is wrongfully charged, and he, too, became a victim, but there has been no talk about that.” Paraphrasing the novelist Richard Wright, Cochran told the gathered reporters, “We black folk are history. We are cast in the familiar role as America’s conscience.”

  Cochran was even more explicit when, following the last week of testimony in the
Simpson trial, he traveled to Washington and spoke before an adoring crowd at the annual legislative conference of the Congressional Black Caucus. In his speech there, he called the trial in Los Angeles the latest landmark in the long civil rights struggle of African-Americans—a series of events that, as he summarized it, included Plessy v. Ferguson, Brown v. Board of Education, the Rodney King trial, and, “yes, even the Simpson case.”

  It is difficult to determine with precision what impact Cochran’s speeches had on the jury. In interviews after the trial, jurors said they had been unaware of Cochran’s specific public assertions about the case. Yet Cochran’s behavior over the course of the entire case, both in court and especially in public toward the end, attempted to define the case solely in racial terms. By the end of the case, all the jurors did know how contentious a national civil rights issue the trial had become. Thus, Cochran’s waving of the bloody shirt of racial resentment must be judged a tactical success. When excused juror Jeanette Harris paraphrased the worries of jurors in the case—“An African-American might say, ‘I can’t say he’s guilty because I want to walk out of here’ ”—she reflected the heightened political sensitivities about the case, which Cochran helped foment.

  Cochran’s high public profile had another impact as well: It drove Robert Shapiro crazy. In part, Shapiro’s reaction arose from simple jealousy over the attention paid to Cochran, especially in comparison with his own ever more negligible role in the defense. Also, as racial perceptions over the case hardened, Shapiro’s position in his own (white) world grew ever more uncomfortable. In this respect, Cochran had nothing but contempt for Shapiro’s uneasiness. “I know Shapiro’s problem,” Cochran said to allies on the defense team, “but I’m a hero in my community.”