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The Run of His Life

Page 46

by Jeffrey Toobin


  The early 1990s were a difficult period in McKinny’s life. Her husband, Daniel, was a cinematographer who sometimes found work as a grip on movie sets. Laura worked part-time tutoring UCLA athletes. In 1993, owing $80,000 in credit card bills and back taxes, the McKinnys declared bankruptcy. They decided to pick up stakes and sign up as professors at the fledging North Carolina School of the Arts. Notwithstanding her own lack of success in the field, Laura taught screenwriting. Still, she never gave up on Men Against Women. In the middle of 1994, with the option about to expire, Flynn had a nibble on the project. He had spoken to a representative of Fred Dryer, the handsome ex–football star who had starred in the archetypical LAPD television series Hunter. Flynn was going to meet with Dryer, so he called on McKinny and Fuhrman to join him in a strategy session to prepare the pitch.

  The date of their meeting was July 28, 1994—six weeks after the murders and ten days after my New Yorker story about Fuhrman appeared. At the meeting, which McKinny taped, Fuhrman was still fuming about the story, vowing to sue Shapiro, who he assumed had leaked it. Fuhrman said he had even talked with an attorney who might represent him. “Well, the funny thing about it is,” Fuhrman told his colleagues, “just like the attorney said, ‘For the rest of your life, this is you: You’re Bloody Glove Fuhrman, that’s it.’ … He says, ‘You might as well make it pay off; all you’re doing is going through this heartache for nothing. Go for Shapiro, he’s an asshole.’ ” In the end, though, Fuhrman felt confident that the LAPD would stand behind him in the growing controversy about his racial views. “I’m the key witness in the biggest case of the century,” Fuhrman boasted. “And if I go down, they lose the case. The glove is everything. Without the glove—bye-bye.”

  Dryer passed on the project. But in anticipation of the negotiations with Dryer’s company, McKinny had hired an agent, Jim Preminger, the son of the famed director Otto Preminger, as well as another parent at PS 1. Preminger never heard the tapes, but he had a general idea of what was on them. When the trial heated up the following spring, he called McKinny and told her she probably should get a lawyer. McKinny asked a colleague in North Carolina for a recommendation, and he suggested Matt Schwartz, a young lawyer with whom the colleague had recently attended UCLA film school. (In Los Angeles, everyone writes screenplays, but what they really want to do—even the lawyers—is direct.) In late May 1995, McKinny called Schwartz and explained what the tapes were and how she and Fuhrman had come to make them.

  McKinny was in a quandary. Her fondest hope was that some company would finally buy and produce Men Against Women, but Schwartz recognized that the tapes with Fuhrman’s voice were the more valuable commodity. Schwartz proposed—and McKinny agreed—that he “test the waters,” to check out the market for the tapes. In June, Schwartz contacted several outlets in the cash-for-trash industry—London newspapers, supermarket and television tabloids, and Faye Resnick’s publisher, Dove Books. Several expressed interest, and Schwartz faxed them nondisclosure agreements—documents that said the media outlets could examine the tapes, but only for the purpose of determining what to pay for them. Schwartz said later that he received a bid of $250,000 for the tapes, but McKinny turned it down.

  Not surprisingly, Schwartz’s testing of the waters started the rumor mill working—and set off another feud within Simpson’s defense team. In early July, right around the time McKenna received the call from “Brian,” McKenna’s rival fellow investigator from the Shapiro camp in the defense team, Bill Pavelic, also heard about the tapes from a friend. This friend, a disbarred lawyer from near Oakland, told Pavelic that Schwartz was shopping the Fuhrman tapes to the tabloids, asking them to pay $10,000 just to listen to excerpts. (Schwartz later denied this.) Thus, Pavelic and McKenna both claimed to have “discovered” the tapes. In truth, McKenna had located the first direct route to McKinny, but Shapiro (who loathed McKenna, along with his allies Bailey and Cochran) wanted his own fingerprints on the discovery. Shapiro later went so far as to arrange for Skip Taft, Simpson’s business manager, to send the disbarred lawyer $1,500 (of O.J.’s money) for “your remarkable services in connection with the discovery of the Fuhrman tapes”—just to establish that Shapiro had played a role in tracking them down.

  It was, in all likelihood, Schwartz’s proto-auction that prompted the call from “Brian” to Pat McKenna as well as the tip to Pavelic. In any event, when word of the tapes’ existence spread around the defense team during the second week in July, there was outright jubilation. “If this is real,” Barry Scheck said at a defense meeting, “it could mean an acquittal—flat out.” Gerry Uelman told McKenna, “This is manna from heaven.”

  But it was Cochran who was moved the most deeply. He took an almost mystical joy in the subject of the McKinny tapes. Though nominally appalled by their contents, Cochran at one point told Judge Ito that the tapes were “like Lay’s potato chips—you can’t put them down, and you can’t eat just one.” Cochran had spent his entire professional career both fighting and exploiting racism in the LAPD. Now there was, it appeared, tangible proof of that racism, and it had surfaced in the most important case of Cochran’s career. Cochran could be bawdy, irreverent, and profane, but he displayed an unfeigned spiritual side in private as well. In all sincerity, Cochran told at least one colleague on the defense team that he believed God had brought the McKinny tapes to him. Cochran talked about, and seemingly thought about, the tapes all the time.

  But Cochran had yet to get his hands on them. On July 12, the day of Cochran’s “sounds black” outburst during Robert Heidstra’s testimony, Cochran and Shapiro went to Matthew Schwartz’s office to try to get a commitment that they could have access to the tapes. In the meeting, Schwartz put them off. McKinny was on vacation at the time, and Schwartz wanted to play out his “testing the waters” project. (Later, both Schwartz and McKinny ascribed a great deal of significance to the semantic, and possibly meaningless, distinction between “testing the waters” and actually trying to sell the tapes.) Schwartz did at least promise Simpson’s lawyers that McKinny would not destroy the tapes. A week passed, and Schwartz finally said that McKinny would not surrender the tapes voluntarily. Schwartz now said McKinny regarded herself as a “journalist” in her meetings with Fuhrman, and she did not wish to share the fruits of her reporting. Frustrated, Cochran sent Carl Douglas to appear in secret before Judge Ito on July 20 and explain the situation to him. Ito agreed that the tapes were material to the Simpson case and signed a subpoena—which the defense team would now have to enforce in McKinny’s home state of North Carolina.

  All the defense lawyers, of course, wanted to be the ones to travel to North Carolina to argue that the tapes should be turned over. Cochran would go—that much was settled. Shapiro wanted Gerry Uelman to handle the legal issues. Bailey said that Uelman was a nice guy but he always lost his arguments. Bailey wanted … Bailey to go. In the end, Cochran decided to take Bailey. Usually, in the many briefs the defense filed over the course of the case, a secretary in Cochran’s office signed the lawyers’ names. But in a bizarre measure of how seriously the defense team took the McKinny issue, all the lawyers insisted on signing their own names to the North Carolina brief. (It was thus especially ironic that the true authors of that brief, Bailey’s law partners in Boston, Ken Fishman and Dan Leonard, preferred to remain behind the scenes and did not have their names on it.)

  So on Friday, July 28, Cochran and Bailey appeared before Judge William Z. Wood, Jr., in Forsyth County, North Carolina, to ask him to enforce the subpoena to McKinny. Since Ito, the trial judge in the case, had ruled that the material was relevant, Wood’s approval should have been just a formality. In his chambers, Judge Wood let Cochran see transcripts of the tapes for the first time. They were worse (and, thus, from Cochran’s perspective, better) than even he had imagined. Fuhrman used the crudest slurs imaginable, and “nigger” repeatedly. When McKinny took the stand in front of the North Carolina judge (and the waiting press corps), Cochran couldn’t wait to work a fe
w quotes from the tapes into his questions. For example, Cochran asked McKinny, “Did Detective Fuhrman say to you during this first interview, when you were getting his attitude—quote—that ‘we’ve got females and dumb niggers and all your Mexicans that can’t even write the name of the car they drive. And you think I’m kidding? We have people who aren’t even citizens on the department.’ Did he say that to you?” McKinny said he did.

  Yet Judge Wood—unaccountably—ruled against Cochran and Bailey, asserting that the tapes were not material to the Simpson defense case. This was a shattering blow, and Bailey immediately set his law partners in Boston to work on an emergency appeal. But as devastated as Cochran was by the ruling, he knew he had accomplished something important in getting at least a few of Fuhrman’s words out via the North Carolina court hearing. The public quickly became more interested in the Fuhrman-tapes sideshow to the Simpson spectacle, especially since the trial itself had degenerated into a droning series of defense experts. In light of the growing public obsession with the tapes, Cochran changed his approach to the Simpson case. For the final month of the case, Johnnie Cochran would campaign for acquittal not just in the courtroom but in the country at large—and not just as a lawyer, but as a self-appointed civil rights leader.

  After an extraordinary effort by Bailey’s law partners, the North Carolina Court of Appeals overturned Judge Wood’s plainly incorrect ruling on August 7. The McKinny tapes arrived at last in Cochran’s office on August 9. Media interest in their contents grew even more fevered.

  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.

 

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