Amid growing disagreement and contention at the O.J. Simpson trial, a consensus is growing on one point: If the jury hears audiotapes containing dozens of racial epithets uttered by former Detective Mark Fuhrman, an acquittal could become at least as likely as a hung jury.
Last week’s fight over introducing the tapes also sparked a debate within the nation’s legal profession about the ethics of the attorneys in the case.
Most of the discussion focused on Simpson’s seemingly changing fortunes, with most of the legal analysts interviewed saying they had gone from being certain of a hung jury to now believing the jury may set the defendant free.
Judge Lance Ito could render a decision as early as this week about which portions of the tapes, if any, he will allow into evidence. Fuhrman reportedly utters the word “nigger” more then 30 times on the tapes, which consist of 13 hours of interviews by a college professor doing research for a screenplay.
In addition, Fuhrman evidently also disparages Hispanics, Jews and women; takes a swipe at Ito’s wife, who is a police captain; and describes episodes in which police harassed or beat suspects, planted evidence and committed perjury.
Fuhrman denied under oath having used the racial epithet in the last 10 years, so defense lawyer Johnnie Cochran wants to use the tapes to prove the detective a liar, undermine other aspects of his testimony, such as his finding a bloody glove on Simpson’s estate, and raise doubts about whether racism compelled him to try to frame the defendant.
Some have questioned the defense’s ethics for diverting attention from the murders of Simpson’s former wife Nicole Brown Simpson and her friend Ronald Goldman. Most lawyers said the defense only has been doing its job by focusing the trial on whether Fuhrman is a racist capable of planting evidence.
Even before the specifics of the tapes have been disclosed, their general nature - revealed principally by Cochran - has generated enormous publicity and created a furor around Los Angeles. And the conduct of the lawyers in the Simpson trial again is the subject of scorn.
“I think both sides have crossed the lines of professional conduct in terms of their vituperativeness and personal attacks,” said Jeanine Ferris Pirro, a prosecutor and former judge in Westchester County, N.Y. “This has become such a war that it’s almost as though the rules are irrelevant … and the defense tactics have been, well, outrageous to say it kindly.”
Many other legal scholars, and particularly defense lawyers, disagreed. Though Americans are seeing an exaggerated version of how trials are conducted, they said no one has crossed any ethical lines.
“The rules have breathing space, and they expand in the heat of battle,” said Stephen Gillers, who teaches ethics and evidence at New York University Law School. “A defense attorney has an obligation, regardless of the truth, to fight that battle. … It may upset the public sometimes, but the truth is that a defense attorney’s only responsibility is to win.”
Prosecutors contend their adversaries are trying to achieve that goal in a most unsavory way: by blinding the predominantly black jury with rage, so it loses sight of evidence about the murders.
“If the defense were setting out to do that, it probably would be unethical, but I don’t believe the prosecution charge is fair,” said Nancy Hollander, an Albuquerque, N.M., lawyer and past president of the National Association of Criminal Defense Lawyers. “First of all, it’s relevant to show a witness has a bias.”
Whatever their disagreements about Fuhrman and the Simpson trial in general, many legal experts expressed concern about the effect it is having on other judicial proceedings.
Analysts said there appear to be more race-based defenses, and jurors are suddenly asking such questions as why police have not done DNA testing or why they are not being taken to a crime scene.
“It’s turning into quite a problem, even apart from the question of whether state legislatures are going to try to change a perfectly good system because of this one case,” said John Henry Hingson, an Oregon lawyer and president of the national defense lawyers group.
Robert Berke, a prominent Los Angeles criminal lawyer, said his colleagues sympathize with the victims’ families and understand the reasons for the public’s growing cynicism. But he said that was partly because people are misled when they hear lawyers like Cochran describe their roles as searching for the truth.
“That may be a prosecutor’s job, but it’s not a defense lawyer’s,” Berke said. “The way the adversary system works is that if you have competent, aggressive people on both sides, the truth will likely emerge.”