A ferocious battle over racially explosive tape-recorded remarks made by detective Mark Fuhrman threatened to derail the O.J. Simpson trial Tuesday, as Judge Lance Ito asked another judge to rule on the tapes’ admissibility because they include derisive comments about Ito’s wife.
Prosecutor Marcia Clark questioned whether Ito could excuse himself for only a slice of the case - particularly such a potentially important one - and suggested he ultimately might have to bow out altogether.
Moreover, since Ito conceded that he was hurt by Fuhrman’s criticisms of his wife and that her emergence in the case has created the appearance of a conflict of interest, he raised concerns about whether he could continue to preside over the proceedings at all.
Another judge theoretically could take over if Ito disqualifies himself, but a mistrial seems at least as likely an outcome if he does. That is principally because catching up on eight months of complicated testimony would represent a time-consuming, onerous task at best.
“I love my wife dearly and I am wounded by criticism of her, as any spouse would be,” Ito told lawyers for both sides with the jury absent. His voice faltering and choked with emotion, he said he therefore was recusing himself from deciding two crucial matters: the admissibility of the tapes, which the defense insists are vital to proving Fuhrman was a racist capable of framing Simpson; and whether Ito’s wife, police Capt. Margaret York, should be allowed to testify as a prosecution witness intended to rehabilitate Fuhrman.
The tapes at issue are of interviews conducted from 1985 to 1994 with Fuhrman by a North Carolina professor who wanted background about police behavior and attitudes for a screenplay. Simpson’s lawyers maintain that the remarks made by Fuhrman during those interviews refute his sworn testimony that he had not used the racial epithet, “nigger” in 10 years.
The tapes reportedly show Fuhrman used the word dozens of times, and recounted numerous episodes of police harassing black suspects, contriving evidence against them and acknowledging he participated in such activities himself. In addition, Fuhrman purportedly took repeated sexist shots at York, who was once his supervisor in the Los Angeles Police Department.
Defense attorneys hope to show that Fuhrman, who provided vital testimony about such matters as finding a bloody glove, perjured himself. Under California law, if a witness can be shown to have lied about anything, then all of his testimony can be stricken.
“This is a blockbuster! This is a bombshell!” defense counsel Johnnie Cochran Jr. exclaimed in describing the tapes. “This is perhaps the biggest thing that’s happened in any case in this country in this decade!”
Simpson’s attorneys argued strenuously for the tapes’ inclusion and against Ito pulling out of any part of the case. They clearly want to avoid a mistrial because, of late, things seem to have been going well for their client and they may sense they have a shot at acquittal.
Perhaps sensing the same possibility, the prosecution took a combative stance with Ito Tuesday, insisting that he had to make a choice of excluding either the tapes or himself. The judge gave both sides until 9 this morning to finalize their arguments on this issue and present them to him.
In a highly unusual move, Ito called the jurors into court late Tuesday and explained that a matter concerning him - rather than either side in the case - had forced him to hear arguments out of their presence all day. He even said he was trying to determine whether he could continue as the trial judge.
If Superior Court Judge John Reid, who was assigned Tuesday to decide the tape questions, rules against admitting them, the jury likely never will hear the specific reasons Ito recused himself. If they are admitted, Ito or his replacement will have to decide how much information to give the jurors about the battle that was waged Tuesday.
Earlier, Clark conceded that Fuhrman’s comments had been offensive, but she nevertheless argued vehemently against allowing the jury to hear them. She maintained that the defense was only seeking to inflame the jurors’ passions and thereby distract them from the core issue of who killed Nicole Brown Simpson and her friend Ronald Goldman last year.
She also maintained that she wanted the trial to go on. But, by seeming to back Ito into a corner it appeared the prosecutor might prefer to start over with a different jury and, presumably, a new judge.
What would happen in the case of a mistrial is unclear. The district attorney would certainly bring murder charges against Simpson again but, if the defense could argue successfully that the prosecution deliberately short-circuited the first trial, a higher court could rule that a retrial would represent double-jeopardy and set the defendant free.