Both Sides Gain Advantages by Cutting a Deal

The controversial plea agreement that makes Mark Fuhrman a felon but lets him go home to Idaho reflects the peculiar problems in prosecuting perjury cases as well as the intense pressure on both sides to avoid a trial, but it angered many legal observers and others who accused the state attorney general of cutting an irresponsible deal.

Although tapes of Fuhrman repeatedly uttering a racial epithet contradicted his trial testimony and made him a national symbol of racism, they did not make a perjury prosecution a simple matter, legal experts agree. As a result, the deal struck Wednesday has distinct advantages both for Fuhrman and for the state prosecutors.

Prosecutors get a conviction in a high-profile perjury case; Fuhrman avoids a painful trial and up to four years in prison. Instead, the disgraced former detective goes home to serve three years of probation there, far from the limelight that first brought him fame and later infamy.

Still, the tactical considerations of the two sides did not make the deal popular in the legal or law enforcement communities.

Some observers questioned whether Fuhrman should have agreed to pass up a trial he might have won; his own lawyer, in fact, advised him not to take the deal. Others castigated the state attorney general’s office for entering into an agreement that allows an admitted perjurer--one whose lies rocked the murder trial of O.J. Simpson, undermined public confidence in the judicial system and battered LAPD morale--to avoid so much as a single day in jail.

Those observers argued that if prosecutors did not believe they had enough evidence to charge Fuhrman, they should not have accepted a guilty plea. But, they said, if prosecutors did believe he was guilty, they had an obligation to try to put him in prison.

“If the prosecution really believes that this was a case in which they could prove perjury, then probation is ridiculous,” said UCLA law professor Peter Arenella. “It depreciates the seriousness of the offense.”

Speaking to reporters Wednesday afternoon, California Atty. Gen. Dan Lungren defended the deal with Fuhrman. Lungren said Fuhrman’s punishment “is what we would have expected to receive had we gone to trial and obtained a conviction.”

Because of the conviction, Fuhrman “is now a convicted felon and will forever be branded a liar,” Lungren said.

For Lungren and his staff, the no contest plea--no different in a criminal proceeding than an admission of guilt--meant that they got a conviction in a case that was not as easy as it looked: Perjury cases are both rare and hard to win, largely because prosecutors must show not only that a person has lied under oath but also that the lie involved a material issue in the trial.

“It’s prosecuted far less often than it occurs because it’s hard to prove beyond reasonable doubt that someone knowingly said something they knew was false,” UCLA law professor John Wiley said. “Language is so ambiguous . . . [that] the defendant in a perjury case can always say, ‘Well, what I really meant was. . . .’ ”

According to Lungren, a survey of eight “urban” California counties outside of Los Angeles showed that only five people have been prosecuted for lying on the witness stand in the past 10 years. Those cases were in San Bernardino, Contra Costa and Orange counties, the attorney general said.

Some defendants who have been successfully prosecuted for perjury in recent years have received significantly harsher sentences than Fuhrman.

Former Woodland Hills attorney Leonard R. Milstein, for example, last summer received three years in state prison for using false testimony to help a client in a death-penalty case. In another headline-grabbing perjury case, a wealthy Van Nuys businessman drew a two-year prison sentence in 1993 after he was convicted of perjury for filing legal documents that falsely indicated he was too poor to pay court fees.

More often, however, prosecutors decide not to file perjury cases because they are simply too difficult to win.

Los Angeles County prosecutors decided against charging LAPD Det. Andrew A. Teague with perjury last fall even though they believed he falsified evidence in a murder case and then lied about it under oath. Similarly, prosecutors in Ventura County decided not to charge former LAPD Officer Theodore J. Briseno with perjury, though they concluded that he probably lied under oath during the Simi Valley trial of officers charged in the beating of Rodney G. King. Proving it beyond a reasonable doubt, they said at the time, would be “exceedingly difficult.”

In the Fuhrman case, prosecutors would have been forced to show that the veteran LAPD detective’s denial of having used the word “nigger” was false--presumably an easy task, since tape recordings feature Fuhrman using the word dozens of times--but also that it was a material issue in the Simpson murder trial. That could have been more difficult, since prosecutors consistently argued that Fuhrman’s racism was irrelevant to the evidence against Simpson.

A source in the state attorney general’s office confirmed that authorities there were worried that they might not have enough to win against Fuhrman and thus agreed to cut a deal.

By the end of the criminal trial, Deputy Dist. Atty. Marcia Clark denounced Fuhrman to the jury in the Simpson case. But even then, she argued that his racist comments and his lies about having made them did not bolster defense claims that the former detective planted evidence against Simpson.

Lawyers for Simpson never presented any direct evidence that Fuhrman had planted a bloody glove at Simpson’s Brentwood home. Police and prosecutors denied that any evidence was planted, a contention they supported by, among other things, noting that Fuhrman did not know whether Simpson might have had an alibi for the time of the murders when he and other officers first entered the Simpson estate.

While the plea agreement gave state prosecutors their much-sought conviction, for Fuhrman, the case’s resolution could strip him of his rights to vote, hold office and carry a gun, as well as denying him the chance of ever working as a police officer again. He does not, however, lose his pension.

Still, Fuhrman faced a difficult battle if he chose to fight. The case against him would have played out on a national stage, with the former detective pilloried for months as a racist and a liar. And in the event that he was convicted, he would have faced the possibility of up to four years in prison, where he would have been a prime target for abuse.

The deal foreclosed those possibilities in favor of an agreement that sent him home even as it branded him a felon.

“What’s in this for Fuhrman? Certainty,” said Gerald L. Chaleff, a Los Angeles criminal defense lawyer. “What’s in this for the attorney general? Certainty.”

An array of legal experts echoed that observation. At the same time, many said they were dismayed by the deal, which several portrayed as an expedient, cynical compromise.

If prosecutors were confident that Fuhrman broke the law, they should have demanded a stiffer sentence, said Cornell law professor Steven D. Clymer; if they were not, they should not have brought charges against him at all.

“It’s really not a case that you ought to split the baby in half,” said Clymer, a former assistant U.S. attorney who prosecuted the police officers accused of violating Rodney King’s civil rights.

“If you think it’s a viable case, you don’t take this sentence,” Clymer added. “If you don’t think it’s a viable case, you shouldn’t bring it at all.”

Harland W. Braun, a Century City defense lawyer who represented one of the police officers Clymer prosecuted and who argued point after point against Clymer for months during that trial, agreed with his former adversary about the resolution of the Fuhrman case.

“This sets a poor example: A policeman lies on the stand and walks away with no sanction, no jail time,” Braun said. “That is the value that the system puts on perjury. If you’re a police officer and you lie, nothing will happen to you.”

Steven M. Bauer, a San Francisco trial lawyer who won four perjury cases related to corrupt law-enforcement officers during his years as a federal prosecutor in Los Angeles, agreed.

“The general perception is that perjury cases are difficult to win, but in my view, they’re cases of principle--if you know someone lied under oath, you have an obligation to bring the case if you think you can win,” Bauer said.

Defendants convicted in federal court, he said, are typically sentenced to one to three years in prison. Letting Fuhrman off with probation, Bauer added, “doesn’t send a good message about lying under oath in a criminal trial.”

Braun, who has both defended and prosecuted perjury cases in his legal career, predicted that criminal defense attorneys in future trials will remind jurors of Fuhrman’s light sentence in order to cast doubt on police officers’ testimony.

“The prosecutors will be saying, ‘Officer Jones has sworn to tell the truth,’ ” Braun predicted. “The defense will say, ‘Ladies and gentlemen, we know what happens in Los Angeles County. If a police officer lies, even if he’s caught and prosecuted, nothing will happen to him. This is L.A.’ ”

Times staff writers Bob Pool and Mark Gladstone contributed to this story.