Debate Grows Over Whether to Charge Fuhrman

The drumbeat for severe legal action against former LAPD Detective Mark Fuhrman has begun--and is sure to grow in the coming weeks--as revulsion spreads about Fuhrman’s vile racist remarks, which have angered people around the country and endangered the prosecution case in the “Trial of the Century.”

State Sens. Tom Hayden and Dianne Watson wrote to Los Angeles County Dist. Atty. Gil Garcetti on Thursday, imploring him to prosecute Fuhrman for lying on the stand in the O.J. Simpson double murder trial.

“Prosecuting Mr. Fuhrman is the only way the law enforcement Establishment of Los Angeles can prove it is truly repulsed by Mr. Fuhrman’s racist statements and his blatant disregard for the criminal justice system,” the senators stated.

They stressed that although Fuhrman testified under oath that he had never uttered the word “nigger” in the past 10 years, taped interviews with an aspiring screenwriter reveal that he used it at least 41 times.

Harland W. Braun, a defense lawyer, said that although perjury cases are usually hard to prove, the equation is clearly different here. He said the existence of the tapes and the public outcry about Fuhrman’s repeated racist utterances and other statements indicating that he may have used his badge as a shield to break the law means Fuhrman is in legal jeopardy.

“I think the political imperative will be that he has to be prosecuted for perjury,” Braun said. “People around the world have heard those tapes. If he isn’t charged with perjury, how can a prosecutor ever argue to a jury that a policeman has any motive to tell the truth? The government has to prosecute him to vindicate the law and maintain the credibility of other officers.”

Also looming, Braun said, is the question of whether Fuhrman will invoke his 5th Amendment privilege against self-incrimination if the defense calls him back to the witness stand, as Johnnie L. Cochran Jr. has said he will. That issue is likely to come to a head this week, while the matter of perjury or other charges may take months to unfold.

Although the jury will get to hear only two short excerpts from the infamous Fuhrman interviews with Laura Hart McKinny, charging him with perjury would send an important message, said Oakland civil rights lawyer John Burris. “If you come to court and lie, you can be prosecuted. People need to know that the oath to tell the truth has teeth.”

Nonetheless, several legal experts cautioned that it could be difficult to sustain a perjury prosecution against Fuhrman, despite the fact that the tapes appear to provide incontrovertible evidence that he lied on the witness stand. They noted that a prosecutor would have to prove that Fuhrman lied willfully and that his lies were “material”--not an easy task.

Although perjury cases are difficult, they can be won, said San Francisco attorney Steven M. Bauer, a former federal prosecutor who successfully prosecuted four people for lying on the stand in Los Angeles. “The key is to have a simple, direct falsehood and then to be able to prove intent, which you show through evidence of motive.”

Bauer said the tapes’ clear refutation of Fuhrman’s unqualified statement that he never used the “N-word” during the past decade appeared to be “a simple direct falsehood.” He said that lying on the witness stand “to maintain your credibility certainly could be a motive” to prove that someone had a reason to lie and intended to lie.

On the other key element required to prove perjury--materiality--Southwestern University law professor Myrna Raeder said the standard is whether the statement could influence the outcome of the case.

“It seems to me that it would be a stretch to argue that if Fuhrman lied about an issue of racial bias it could influence the outcome of the Simpson case. This isn’t Fuhrman caught in a lie about finding the bloody glove.”

Braun sharply disagreed. “His lie about not using the N-word is material because it involves the issue of his bias. If they had asked him what his shoe size was and he lied, that would be immaterial.”

For Garcetti, who has not publicly responded to the Hayden-Watson letter, the materiality issue is not an abstraction. But he clearly is in an awkward position.

For starters, his prosecutors in the Simpson case have consistently contended in court that if Fuhrman lied about the racial epithet, it was immaterial to the issue of Simpson’s guilt or innocence. That would make it difficult for the district attorney’s office to charge Fuhrman with perjury because it would require prosecutors to “reverse field” on the materiality issue, said Cornell University law professor Steven D. Clymer, a former federal prosecutor.

On the other hand, Clymer said the fact that Superior Court Judge Lance A. Ito ruled that some of the racial epithets were relevant and admissible to impeach Fuhrman “would give a prosecutor a rationale to go forward with a perjury case.” Clymer said it might make sense for Garcetti to refer the issue to the state attorney general’s office.

If Fuhrman were tried and convicted of perjury, he could receive a prison term of two to four years under California law. Normally, a person convicted of this crime would get the mid-range term of three years.

Veteran Bellflower defense lawyer Andrew Stein said he assumed that under these circumstances, a prosecutor would contend that Fuhrman should get the higher term because he had abused a position of trust--his role as a police officer--in a high-stakes murder trial. On the other hand, Stein said, Fuhrman’s defense lawyer would be likely to contend that his client had not deliberately lied and that he was under great stress at the time.

Stein and Santa Monica defense lawyer Gigi Gordon said that if Fuhrman were sentenced to prison he would either have to be put in “protective custody” in a California institution or sent to a prison out of state. Stein said Fuhrman would be “very vulnerable if he was put in a normal prison population because you can’t hide this guy; he’s known all over the world.”

In addition to a possible perjury case, the National Assn. for the Advancement of Colored People has urged U.S. Atty. Gen. Janet Reno to investigate whether the tapes reveal any federal civil rights violations by Fuhrman. However, Clymer noted that most of those laws have a five-year statute of limitations--and most of the incidents Fuhrman describes are believed to have occurred earlier than 1990.

On the other hand, Loyola law professor Laurie Levenson said a California penal code section states that the statute of limitations for crimes involving misconduct by a public official does not begin to run until the offense is discovered--a statute that could be applicable to some of the actions Fuhrman described on the tapes.

The 5th Amendment issue may be resolved as early as Tuesday if the defense tries to question Fuhrman again in front of the jury, as they have vowed to do.

Anticipating this move after the tape furor erupted, Fuhrman’s attorney, Darryl Mounger, told Ito on Aug. 23 that his client might “need to take the 5th Amendment or choose to take the 5th Amendment” if called back to the stand. Mounger has made no further public statements on the issue.

Legal analysts were divided about what Fuhrman will do, but they all agreed that it is up to Ito to determine if Fuhrman can take the 5th.

As a general rule, “you can’t put a witness on the stand merely to get him to take the 5th and cast a negative light on him,” according to defense lawyer Gerald L. Chaleff. However, according to several legal analysts, this is a different circumstance because Fuhrman has already testified at length, and when he left the witness stand was told he was subject to recall.

“I believe Fuhrman has waived his 5th Amendment right by testifying already,” said defense attorney Barry Tarlow. “What could happen to Fuhrman is a replay of what happened to F. Lee Bailey’s client Patricia Hearst in her 1976 bank robbery trial, where she was forced to take the 5th Amendment in front of the jury 42 times,” Tarlow said.

“I find it particularly ironic that Mr. Fuhrman, who has derided the protections that the Constitution bestows on our citizens, is now contemplating wrapping himself in those very protections, which in his view are the refuge of crooks, drug dealers and pimps,” Tarlow said.

If Fuhrman is allowed to take the 5th, that poses significant choices for the defense. UCLA law professor Peter Arenella said that Simpson’s lawyers could then ask that all of Fuhrman’s testimony be struck--including his finding of the bloody glove at Simpson’s estate. But if that move succeeded, “then the defense couldn’t refer to Fuhrman’s testimony in closing arguments to support their conspiracy theory,” Arenella said.

Chaleff said the best thing for the defense would be if Fuhrman took the stand in an effort to vindicate himself. “As a lawyer, you’re always better off if someone tries to explain the unexplainable.”

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