NEWS ANALYSIS : Ex-Detective’s Silence Raises Complex Issues

When former Los Angeles Police Detective Mark Fuhrman invoked his 5th Amendment right to avoid self-incrimination Wednesday, local legal historians scratched their heads in wonder and searched their memories for precedent.

To find an LAPD officer who asserted the privilege in the midst of a trial, some reached back nearly 60 years to the series of cases involving the recall of the notoriously corrupt Mayor Frank L. Shaw. In one of those trials, several LAPD officers took the 5th when asked to give evidence against LAPD Lt. Earl Kynette, a Shaw crony, who was convicted of a car bombing that nearly killed a private detective working for the reformers.

And legal analysts agree that the only thing that rivals the novelty of the Fuhrman spectacle is the complexity of its implications.

There is bound to be a struggle over what jurors will be told concerning Fuhrman’s assertion of the privilege Wednesday, which occurred in front of an empty jury box. And there may be a move to strike some or all of his earlier testimony, which provided critical links in the chain of blood evidence prosecutors say led from the crime scene to O. J. Simpson’s bedroom.

The analysts also agree that there still is a question of whether the jurors themselves may yet hear Fuhrman say: “I wish to assert my 5th Amendment privilege.”

Wednesday, the defense had asked Judge Lance A. Ito to reconsider the admission of evidence--including a bloody glove--obtained by police during the warrantless search of Simpson’s estate. Defense lawyers based the request on what they argue is new evidence provided by the so-called Fuhrman tapes. It was in response to questions arising from that new evidence that Ito allowed Fuhrman to claim the protection of the 5th Amendment.

Today, Ito also may be asked to decide whether the former detective is entitled to assert the privilege in response to defense questions about matters on which he already has testified for the prosecution.

According to defense attorney Marcia Morrissey, “There is a line of case authority in California which holds that, having testified in this case about a wide variety of matters at a time when he already had been accused by the defense of acting out of racial animus, Fuhrman cannot now slither under the protection of the 5th Amendment.

“I expect the defense to come in today and acquaint Judge Ito with that line of cases,” Morrissey said. “Witnesses in this state can’t pop on and off the stand whenever the seat becomes uncomfortable. Fuhrman took the stand of his own free will, and the law may now require him to stay there. There’s nothing better for a trial attorney than being blessed with the opportunity to confront a lying witness with his own deceit. You don’t get many Fuhrmans.”

If Ito does permit Fuhrman to invoke the 5th in the face of all further questions, said UCLA law professor Peter Arenella, “the defense will rely on a 1992 California Supreme Court decision--People vs. Hill--and will argue that the jury needs to be told that Fuhrman took the 5th Amendment to explain why he is now an unavailable witness for the defense.

“The trial judge followed that procedure in Hill,” Arenella said “to explain to the jury in that case why they were getting prior recorded testimony and not that of a live witness. The prosecution will counter that the California evidence code prohibits jurors from drawing any adverse inference from the assertion of the privilege. The only way to achieve that goal is to prevent the jury from ever learning that Fuhrman took the 5th. In short, the prosecution may well agree to an instruction that Fuhrman is no longer available, but without explanation.”

Like Arenella, several legal experts pointed out that the standard instruction given jurors in cases in which the 5th Amendment is invoked states: “When a witness refuses to testify to any matter, relying on the constitutional privilege against self-incrimination, you must not draw from the exercise of such privilege any inference as to the believability of the witness or as to the guilt or innocence of the defendant.”

However, one of those experts, defense lawyer Gerald L. Chaleff, said that “one of the options Fuhrman’s silence gives the defense is the opportunity to ask Judge Ito to strike all of his previous testimony from the record because he has made himself unavailable for further cross-examination. In other words, Fuhrman’s right to avoid self-incrimination is now in conflict with Simpson’s right to confront a witness against him. Normally, the right of confrontation would take precedence.”

But veteran defense attorney and former prosecutor Harland W. Braun wondered, “Why would they want to strike his testimony? What they want to do is argue its veracity. If it’s stricken, they can’t refer to it in their argument. Moreover, if Fuhrman’s testimony is stricken, then Marcia Clark can move to strike the testimony of Kathleen Bell, Natalie Singer, Roderic Hodge and Laura Hart McKinny because everything they’ve said about Fuhrman’s racism would have become irrelevant.

“Everyone now knows that Fuhrman is a liar, including the sequestered jurors,” Braun said. “The best thing for the defense to do is leave this alone. The prosecution is in a terrible position. The case now comes down to the question of whether you vote for Simpson or Fuhrman. There’s no way to vote guilty without handing Fuhrman a victory.”

Former Los Angeles County Dist. Atty. Robert Philibosian agreed. “Striking Fuhrman’s testimony would have a positive impact for the prosecution,” he said, “because it would eliminate all discussion of Fuhrman. The defense won’t want it because they must infect all the investigators with the Fuhrman virus. The prosecutors have to inoculate the jurors against that contagion.”

Defense attorney Gigi Gordon said there is one way to accomplish that. “The prosecution could solve this whole problem,” she said, “simply by granting Fuhrman immunity from prosecution. At that point, his ability to assert his 5th Amendment protection is gone. That would facilitate the search for truth about which we’ve all heard so much.”