Judge Rejects Defense Bid for Fuhrman Tapes

An art school teacher testified here Friday that Los Angeles Police Detective Mark Fuhrman lied when he told jurors in the O.J. Simpson double murder trial that he had not used racial epithets within the past decade.

But in a stinging setback to the former football star’s defense, Forsyth County Judge William Z. Wood refused to compel Laura Hart McKinny, an unpublished author and screenwriter who teaches at North Carolina School of the Arts, to testify in Los Angeles or to turn over tape-recordings on which the detective allegedly uses the word nigger and describes Los Angeles police officers fabricating evidence and harassing African Americans.

McKinny made the recordings while researching an unsold script about the LAPD. On the tapes, Fuhrman also uses the Ku Klux Klan title “Grand Dragon” to describe himself, alludes to “Hitler’s celebration,” talks of “beating niggers” and refers to “dumb niggers.”

Two of Simpson’s defense attorneys, Johnnie L. Cochran Jr. and F. Lee Bailey, who flew to North Carolina to ask a local court to enforce Judge Lance A. Ito’s subpoena for the material, said they will mount an immediate appeal.

“If a key, critical witness has lied under oath, the jury has a right to hear that,” Cochran said. “It’s very important evidence,” the visibly shaken defense attorney added as he struggled against a tide of well-wishers and news reporters inside the courthouse here. “We have the evidence now, and we know what it says. I think it’s outrageous that we can’t get this impeachment.”

But Fuhrman’s lawyer, Robert H. Tourtelot, insisted that all his client’s statements were made as part of his role as a consultant on McKinny’s fictional script and do not reflect his personal views.

Had they obtained the tape-recordings, Simpson’s lawyers planned to recall Fuhrman to the stand early next week. They contend he is a racist who planted evidence intended to frame their client for the murders of his ex-wife Nicole Brown Simpson and her friend Ronald Lyle Goldman. Simpson has pleaded not guilty to the killings.

When he cross-examined Fuhrman on March 15, Bailey asked the detective if he would say under oath that he had not “addressed any black person as a nigger or spoken about black people as niggers in the past 10 years?”

“That’s what I’m saying, sir,” Fuhrman answered.

“So,” Bailey continued, “anyone who comes to this court and quotes you as using that word in dealing with African Americans would be a liar, would they not, Detective Fuhrman?”

“Yes, they would,” the officer responded.

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In Los Angeles, prosecutors were pleased with the ruling, though their office declined official comment. But a member of the prosecution team, who asked not be identified, said the North Carolina judge was correct when he ruled that the tapes had no material bearing on Simpson’s guilt or innocence. Their only relevance, the prosecutor insisted, is to the “collateral” issue of Fuhrman’s alleged racism.

Others among Simpson’s defense lawyers, however, argued that the issue was Fuhrman’s truthfulness, not just his alleged racial animosities. And they were outraged by the North Carolina ruling.

“The tapes are disgusting,” said Carl E. Douglas, one of Simpson’s attorneys, who said he had spoken to Cochran immediately after the hearing. “Here’s what we know now: The tapes exist. It’s Fuhrman. He’s using the N word. The tapes clearly contradict and dispute his testimony.”

Many legal analysts seemed to share the defense’s dismay over Wood’s decision.

“It’s a huge loss for the defense,” said Oakland civil rights lawyer John Burris. “This testimony, if introduced, would substantially destroy Mark Fuhrman’s credibility. The jury could see that he lied to them with a straight face.” Wood’s ruling, Burris said, “could alter the outcome of the case--and it’s manifestly unjust.”

USC law professor Erwin Chemerinsky said Wood had taken “an incredibly narrow definition of what is ‘material.’ The availability of these tapes could go to the issue of Simpson’s ability to get a fair trial.”

Attorney Gerald L. Chaleff noted that “if the North Carolina appellate process is lengthy, the defense may be forced to ask Ito to delay the trial. If he refuses, they may ask a California appellate court to stay the proceedings until the North Carolina courts have concluded their review.”

Friday’s hearing here brought a 2 1/2-hour taste of Hollywood drama to a normally quiet courthouse.

“What we are going to prove is that Mark Fuhrman is a liar,” Cochran thundered during his argument. “We’re talking about credibility. If this wipes out all of Mark Fuhrman’s testimony, who could argue that doesn’t bear on Mr. Simpson’s guilt or innocence?”

But Wood was persuaded by McKinny’s Century City attorney, Matthew Schwartz, who argued that even if the tapes show Fuhrman to be a racist, they are irrelevant to the charges against Simpson. According to Schwartz, his client simply “entered into a business relationship” with Fuhrman “to obtain creative consulting services” for her screenplay.

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The judge’s acceptance of that reasoning seemed to stun about 200 people crowded in the wood-paneled courtroom in this tobacco town about 90 miles north of Charlotte. Even Schwartz was surprised, admitting that he never expected to win a debate with Cochran.

But, in a post-hearing interview in his chambers, Wood said he was swayed because McKinny was writing fiction and Fuhrman was serving as a “technical consultant.”

The judge said the detective “was helping with character development, dialogue. It was dialogue for a Hollywood movie, and Hollywood movies often contain curse words and racial epithets.”

Midway through the proceedings, Wood had called a 30-minute recess so he and the lawyers could listen to a sample of McKinny’s taped interviews and study some of her transcripts. When the judge and attorneys returned, Cochran called the screenwriter to testify.

McKinny admitted that “on occasion” Fuhrman used the word nigger and made other racially insensitive comments during the course of her work with him, which began in April, 1985, and continued until July of last year.

Transcripts of the conversations include Fuhrman’s description of an “attitude test” given by Los Angeles police officers to African American motorists. If black drivers failed to show deference, officers might tear up their licenses and arrest them for driving without one, the detective said.

At another point, the transcripts quote Fuhrman as saying: “We’ve got females and dumb niggers and Mexicans in Los Angeles who can’t write the name of the car they drive.” He also described for McKinny how a police officer might fabricate evidence to cover up for a colleague who was doing something improper, though McKinny said Fuhrman told her he had never done that.

McKinny is writing a screenplay titled “Men Against Women” about the problems women encounter in police work. She said she met Fuhrman in a Westwood cafe in February, 1985, after he approached her to ask about her writing on a laptop computer. Since then, she said, Fuhrman has become her “business partner.”

“It wasn’t a biography of Mr. Fuhrman,” she said. “He was helping me draw up a character.”

But Cochran disagreed, saying that McKinny was exploring Fuhrman’s personal beliefs and that the attitudes expressed in her interviews “show the way the man thinks. Those are the ruminations and responses of a Los Angeles police officer over 10 years. I find it hard for anyone to argue this was not relevant” to the Simpson trial.

But Wood drew a different conclusion. “Even assuming Detective Fuhrman was a racist, that is reprehensive,” he said during the interview in his chambers. “But it doesn’t show that he would try to frame an innocent person. There was nothing of [McKinny’s] evidence that tended to show Detective Fuhrman had it in for Simpson.”

Tourtelot applauded Wood’s ruling and--though he has not heard the tapes or read the transcripts--denied that his client perjured himself. All Fuhrman’s statements, he said, were directed toward the preparation of a fictional work. That would include his alleged use of the word nigger.

“He’s not saying these things as himself,” Tourtelot said. “It’s a character saying that. I realize that’s putting a fine point on it, but these tapes are of story conferences for a fictionalized work.”

In the 1980s, officers in the West Los Angeles station were investigated for their alleged participation in a group informally known as “Men Against Women,” the title of McKinny’s screenplay. According to police sources, Fuhrman came under scrutiny as part of that probe, but no administrative charges were sustained against him.

Friday, however, Police Department officials said news of the tapes had rekindled their interest in the matter.

“It certainly perks our interest and our concern,” said Cmdr. Tim Bride, the LAPD’s chief spokesman. He said that department officials want to hear the tapes themselves, and that their contents could trigger an investigation.

Some of the tapes are a decade old, and even if the allegations on them are true, the charges would be so old that officers responsible probably could not face administrative discipline. But others are more recent, and if Fuhrman told McKinny that he or any of his colleagues violated LAPD rules, they could face discipline. Fuhrman, who now lives in Idaho, officially retires from the department Aug. 4.

Times staff writers Henry Weinstein and Tim Rutten contributed to this story. Fulwood reported from Winston-Salem and Newton reported from Los Angeles.