The Art and Privilege of Bombshells in Simpson Case

Los Angeles Police Detective Mark Fuhrman’s threatened defamation suit against O.J. Simpson’s lawyers brings up the question of just how the media gets its news in this sensational case.

Fuhrman is one of the cops dispatched to Nicole Brown Simpson’s condo after her body and that of Ronald Goldman were discovered. His LAPD recruiting poster appearance and forthright manner made him a powerful prosecution witness in Simpson’s preliminary hearing.

Then the New Yorker magazine published a story quoting “leading members of Simpson’s defense team” portraying Fuhrman as a racist rogue cop who may have tried to frame Simpson by planting a key piece of evidence, a glove, near his house.

Now Fuhrman’s attorney, Robert H. Tourtelot of Los Angeles, has sent Simpson’s lead attorney, Robert L. Shapiro, a letter, telling him the detective intends to sue. Targets of the suit would be Shapiro, Simpson and the magazine’s unnamed sources on the defense team. Tourtelot told me Fuhrman also will sue the New Yorker for libel.

If Fuhrman files his suit, whether he wins will depend on whether he can prove the New Yorker published the story knowing that it was false--a standard set by the Supreme Court 30 years ago.

A lot of people--journalists included--may not like the idea of basing such a powerful story on anonymous sources. Others probably are praising the New Yorker for having the guts to risk a libel suit and publish a story it believes is newsworthy.

But I think everybody, in reading about Fuhrman’s lawsuit, wants to know more about how the media gathers news. For the media’s role is turning out to be central in this case, with both sides engaged in total war in an effort to influence public opinion, and potential jurors.

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Let’s take the story of the talkative burglar.

A few weeks ago, he called The Times with a story. He said he was a burglar and, while casing potential victims’ homes in Brentwood one night, he saw two burly, bearded white men dressed in dark clothing near the back gate of Nicole Simpson’s condo. An hour later, he heard a woman yell “No!” He ducked behind a hedge and saw the same two white men running from the condo. One of the men, the burglar recalled, said something about slicing or slashing a victim.

Reporter Jim Newton had several conversations with the burglar, both on the telephone and in person. But he was unable to verify his story. It was one of thousands of tips received by the police, prosecutors, the defense and the media. The Times ran it as part of a story on tips, many of which “appear to be the product of overactive imaginations.”

The next day in court, however, Johnnie L. Cochran Jr., one of Simpson’s lawyers, elevated the burglar to the top of the news. Referring to the informant, Cochran said, “There is at least one witness who police have talked to some time ago, and are apparently talking to him even as we speak.” The witness, Cochran said, “has given testimony or evidence that is totally inconsistent with the theory of a lone assailant and is entirely inconsistent with the fact that Mr. Simpson is that assailant.”

When Cochran told the story in court, it was picked up by all news outlets, without going through the process of verification.

Tuesday, I asked a noted libel lawyer, Rex S. Heinke of Los Angeles, why the media could run unverified information simply because it had been presented in a courtroom. The answer, Heinke said, is something called “privilege,” a protection that allows journalists to report what’s said in court, or in other public proceedings, without being sued for libel.

Thus, if the defense team had implied in court, rather than in a New Yorker interview, that Detective Fuhrman had planted evidence, and the magazine had reported it, the officer would have had no grounds for a suit.

“There is an absolute privilege for statements that are made in court by the person who is speaking as long as it has a reasonable relation to the proceeding,” Heinke said.

“As long as it is an accurate summary, that privilege allows the press to report on any judicial proceedings, or city council, or whatever. If you didn’t have a privilege like that, how would you know what is going on in the Simpson case or anywhere else? . . . The press is the eyes and ears of the public. If I was in the courtroom, I would have heard it. All the press is doing is serving as a conduit.”

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Understanding the concept of privilege is important in following the Simpson case the next few weeks. There will be frequent hearings on procedural matters before the trial is scheduled to begin Sept. 19. Each one will give the prosecution and defense a chance to lob bombs at each other. We’ll report them, protected by privilege. It will be pretty hard to ignore them, because the proceedings will be televised live around the country.

But remember: Many of these bombshells are unverified and the truth may turn out to be something else altogether.