Judge Lance Ito on Friday hastily abandoned plans to tell jurors in the O.J. Simpson case about the unavailability of Mark Fuhrman to testify, and what they could infer from it. Ito acted after a state appeals court, in an extraordinary rebuke, rejected his proposed instructions to jurors.
Though those instructions did not mention Fuhrman’s decision to invoke the Fifth Amendment’s protection, the appeals court apparently concluded that acknowledging his absence, then encouraging jurors to look harshly on him for it, penalized Fuhrman for asserting his constitutional right against self-incrimination.
“The proposed instruction regarding the unavailability of Detective Fuhrman is not to be given,” stated a skeletal and sparcely explained ruling signed by Presiding Justice Paul Turner and Associate Justice Orville J. Armstrong. That opinion, bereft of any case citations, was issued only three hours after prosecutors had filed an emergency appeal.
Thursday, Ito had said that jurors would be told the following: “Detective Mark Fuhrman is not available for further testimony as a witness in this case. His unavailability for further testimony on cross-examination is a factor which you may consider in evaluating his credibility as a witness.”
As of now, however, jurors will learn nothing about the former detective’s status as a witness.
The appellate court told Ito that “given the fact that you sustained the claim of privilege” that Fuhrman made, the judge must issue a new order. It gave him two choices: either vacate those instructions himself, or explain why his judicial superiors should not do so themselves. Judge Ito quickly opted for the former.
“It was a victory for the prosecution when they needed something to stem the tide,” said Laurie Levenson, a professor at Loyola University Law School in Los Angeles.
The ruling means the Simpson trial can resume Monday. But it was unclear whether jurors poised to mutiny will be moved one step closer to their freedom.
The week had been set to begin with the prosecution’s rebuttal case, but having been deprived of its coda - a pointed reference to Fuhrman’s disappearance from a trial he has recently dominated - Simpson’s lawyers could choose to close their case with a different kind of flourish.
“We have to revisit our plans because we were confident that the jury should and would hear the reasons why Mark Fuhrman was no longer available for the completion of his cross-examination,” said one of Simpson’s lawyers, Robert Shapiro. “That may require calling additional witnesses or extraordinary appellate remedies.”