Tuesday, June 22, 2010
Page 7
PERSPECTIVES (Column)
Garcetti Draws Criticism for ‘Micromanagement,’ the Glove Debacle, the Fuhrman Fiasco
By ROGER M. GRACE
125th in a Series
GIL GARCETTI was vulnerable to an election challenge in 1996 for one reason: His office lost what was widely denominated the “trial of the century.”
On Oct. 3, 1995, a murder defendant whom the vast majority of the populace viewed as guilty, football Hall-of Famer O.J. Simpson, was acquitted by jurors of the brutal slayings of his ex-wife, Nicole Brown Simpson, and her friend Ronald Goldman.
The issue of the Los Angeles Times the morning after the verdict contains an article citing the view of “legal experts who have watched the trial unfold from inside and outside his camp” that Garcetti might “have something…personal to worry about—his own political career.”
These “legal experts,” the article says, saw voters as blaming Garcetti for the acquittal based on “the prosecution’s decision to hold the trial in Downtown Los Angeles with its heavily minority jury pool, what some called Garcetti’s micromanagement of the case, the ill-fated demonstration that appeared to show a bloody glove did not fit Simpson and the apparent failure to thoroughly investigate the background of former police Detective Mark Fuhrman.”
I’ve looked at the supposed decision by Garcetti to try the case downtown and discovered that the Los Angeles Superior Court, not the DA, made that call, as reported here. But what of the other three factors which “legal experts” pinpointed?
●The Gloves and
Micro-Managing: The
grand boner by the prosecution came on June 15, 1995, when Deputy
District Attorney
Christopher Darden declared in court:
“Your honor, at this time, the People would ask that Mr. Simpson step forward and try on the glove recovered at Bundy [the drive on which Nichole Simpson’s condominium was located] as well as the glove recovered at Rockingham [the avenue on which Simpson’s estate was situated].”
The prosecution was contending that the two blood-soaked gloves, each found hours after the slayings, were a match, and were Simpson’s.
Simpson struggled to put the gloves on, and seemingly they didn’t fit. Views differ as to whether Simpson, through acting and tightening of fingers, created the illusion that they did not fit, or whether, in fact, they didn’t. If they didn’t, was it because the blood had caused them to shrink? Was it for the reason set forth in a book by Simpson’s ex-agent, Mike Gilbert, that Simpson desisted from taking his arthritis medicine in anticipation of a demonstration, resulting in a predictable swelling of his hands? Or was it that the gloves were, as contended by the defense, not Simpson’s?
If Garcetti had, in fact, micromanaged the case, and if it had been his call to have Simpson try on the gloves, that would have been a major blunder and, indeed, a legitimate campaign issue.
But Garcetti had no connection with that decision.
In her book, “Without a Doubt,” in which she spews profanities like a tattoo-covered punk or a Tom Girardi, co-lead prosecutor Marcia Clark recites that the plan was to require that Simpson don new gloves of the same size and make as the bloodied ones. This was to come right after a former executive of the company that made the gloves identified the new pair as being identical to that purchased for the defendant in New York by Nichole Simpson. The problem with using the actual gloves was that it was thought that wearing them could pose a health hazard from the possibly contaminated dried blood, and wearing latex gloves underneath could, as Clark puts it, “screw up the fit.”
But—ooops. The witness said, with the jury not present, that the new gloves (which the prosecution had in its possession for months) weren’t quite the same model as Simpson’s. Clark wanted to hold off the demonstration until a matching pair arrived.
Clark says that Darden “was on a testosterone high” and insisted on having Simpson try on the gloves found by police. She quotes herself as telling her co-prosecutor:
“Don’t do it. I’m warning you.”
She recounts that he said, “We’ve got to do it,” drawing her exhortation:
“Why won’t you f—ing listen to me? This is a trap!”
In his own book, “In Contempt,” Darden does not call to mind that dialogue, and asserts that Clark in fact acquiesced after Detective Phil Vannater, whose hands were as large as Simpson’s, was able to put the gloves on even with the latex liner.
In any event, it was a spur-of-the-moment decision—a risky, ill-fated one—made by one or both of the deputy district attorneys, without consultation with higher-ups.
Deputy District Attorney William Hodgman was in charge of Central Operations and had been co-counsel in the early days of the prosecution. His role at that point was to view the proceedings on television and provide guidance from behind the scenes. He says the decision to have Simpson try on the bloody gloves “was not part of our plan” and was an “horrendous” mistake.
At 5:30 that day, in the “War Room” where the attorneys in the case huddled, there was “shock and devastation” on the faces of the participants. Hodgman recalls.
The fact that Clark, upon learning that day of Darden’s intent, did not feel compelled to dash to a pay phone in the hallway (this is before cell phones), and get Garcetti on the line to report the impending round of Russian roulette, the fact that Darden did not ask “May I?”, could be viewed as evidence that the DA was not in remote-control of the prosecution. While this would aid in exonerating him of “micromanaging,” it would tend to indicate a lack of firm control of the most significant prosecution his office was conducting, a prosecution in which there was worldwide interest and which was destined to hold interest for centuries.
How did Garcetti react to the boner? As Darden tells it:
“Gil Garcetti came by. ‘Whose idea was it to have him try on the gloves?’ he asked grimly.
“ ‘Mine. I accept full responsibility.’
“We walked out of my office toward his door. ‘Gil, it’s not over yet. We’ll still get him. I promise.’ He walked toward his office without looking back at me.
“ ‘I know we will,’ he said.”
The text of a post-verdict interview with Garcetti appears in the Oct. 29, 1995, edition of the Daily News. It includes this:
“In terms of the glove, there were a lot of people surprised by what took place there, and I was one of those individuals. But Chris (Darden) and Marcia (Clark) were in a very difficult position. If you read the sidebar transcripts, they were placed in a situation where they had to make a very quick decision. And they made the decision they felt was appropriate. They did not know that Mr. Simpson was going to be required to wear a latex glove.”
The reporter is quoted as asking:
“Why was that required? The gloves might have fit if that latex wasn’t underneath.”
Garcetti responds:
“No kidding. That, you’ll have to ask [Los Angeles Superior Court] Judge [Lance] Ito. I don’t know. It was totally unexpected.”
Garcetti had the facts wrong. In her book, Clark says that prior to June 15, “I figured the court would never let anyone try on the bloody gloves without wearing latex beneath them.”
In fact, on the day Simpson put on the gloves, Ito responded to the prospect of the defendant putting on duplicate gloves by saying: “I think it would be more appropriate for him to try the other gloves on,” explaining: “I mean the real gloves that were found.” Clark responded:
“The only problem is, he has to wear latex gloves underneath because they’re a biohazard and they’re going to alter the fit.”
Garcetti, to the contrary of pulling the strings in the case, was so out of the loop as to the glove decision that more than four months later, he still didn’t have a clear idea as to what had happened.
Clearly, the glove gaffe can’t be blamed on Garcetti. His choice of Darden as a prosecutor in the case can be blamed on him, but not the demonstration, itself. And the accusation of micromanaging (to be discussed further tomorrow), is suspect.
●Fuhrman: Then-Los Angeles police Detective Mark Fuhrman supposedly found the blood-stained glove at Simpson’s home. There’s no doubt that Garcetti and his Simpson team did know, prior to Fuhrman testifying—indeed, well before the trial began on Jan. 25, 1995—that the defense was primed to impeach him based on his history of racism.
A report appears in the New Yorker magazine’s July 25, 1994, issue saying that defense lawyers would seek to persuade jurors that Fuhrman was a racist and planted the glove. Newsweek’s issue of the same date contains a story speculating that the defense would seek to portray Fuhrman as a “rogue cop who was trying to advance his own career.”
In the aftermath of the acquittal, Garcetti discussed Fuhrman’s testimony with the Daily News. In its issue of Thursday, Oct 26, 1995, it reports:
District Attorney Gil Garcetti said Wednesday that prosecutors learned during O.J. Simpson’s preliminary hearing last year that Los Angeles police Detective Mark Fuhrman had made racist comments.
But prosecutors were unable to determine the extent of Fuhrman’s racist attitudes, Garcetti said, despite their efforts to investigate his background before the trial began.
Garcetti, in a meeting with Daily News reporters and editors, said that Fuhrman—after testifying in the preliminary hearing—warned prosecutor Marcia Clark on July 6, 1994, that he had made racial comments in seeking a disability leave from the LAPD.
“He’s walking with Marcia Clark and he drops the bombshell, ‘Oh, incidentally, I tried to get a disability [pension]...and here’s some of the things I said,’ ” Garcetti said. “At that point, Marcia did whatever she could to find out, who is this guy?”
The investigation was hampered, however, by prosecutors’ inability to examine Fuhrman’s personnel and disability files because of privacy laws.
Moreover, Garcetti said, associates of Fuhrman interviewed by the District Attorney’s Office said he was not a racist.
The article goes on to quote Garcetti as saying:
“It wasn’t like we just laughed it off. We knew how serious this was going to be.
“If you didn’t put him on the stand the defense is going to say, ‘OK, where’s the guy who found this [glove]? Why didn’t they put him on?’ ”
In her book, Clark writes that if the prosecution had not called Fuhrman to the stand, “[t]he defense would blow us away” in closing argument by pointing to his absence, or “even worse, they might have called Fuhrman themselves!”
As Hodgman recounts it, “Our approach was to distance ourselves from Fuhrman.”
While it was known that Fuhrman was a racist, he says, no one on the prosecution team “saw the Laura Hart McKinney tapes coming,” declaring they were “a surprise.”
And, from the standpoint of the defense, they were dynamite.
Fuhrman’s accounts of his police work, contained in 14 taped interviews with screenwriter McKinney, were laden with racist epithets and confessions of brutality.
McKinney testified for the defense. Defense attorney Johnnie Cochran asked her: “Did [Fuhrman] ever use the racial epithet, which I’ll call the ‘N’ word, during the course of your conversations with him?”
She said he had. How many times? The answer: “Approximately forty-two.”
Only one snippet was played for the jury (and the transcript of one from an erased tape was read). But, jurors got the idea…and, through conjugal visits and otherwise, they likely learned of other statements by Fuhrman, played in open court outside of their presence.
The tapes were made between April 1985 and July 28, 1994. On cross-examination on March 15, 1995, Fuhrman said he had not used the term “nigger” in the past 10 years.” McKinney’s testimony and that of three other witnesses shattered his credibility. (He later pled no-contest to a perjury charge.)
Was Garcetti personally accountable for the blow to the case? Had the tapes not surfaced, there would not have been the blow. The most rigorous of research could not have revealed the existence of privately recorded conversations. Fuhrman (who insists he was merely supplying fictional dialogue) was derelict in not disclosing his discourses. They came to light when McKinney tried to sell the tapes to a news organization…and upon learning of their existence, the prosecution brought the matter to the attention of the court.
You can’t blame someone for not knowing the unknowable.
If the prosecution had been aware of the existence of the tapes, would it still have put Fuhrman on the stand? A then-deputy district attorney who was part of the team, Hank Goldberg, now a Los Angeles Superior Court judge, says in his book, “The Prosecution Responds”:
“If we had known then what we know now, we would still probably have had to call [Fuhrman]; otherwise, the defense surely would. The only difference would be that had we known then that months later tapes of Mark making racist comments would be discovered, we could have prepared the jury during the opening statement.”
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