LOS ANGELES -- The defense may never rest, but it can run around in circles.
And that is how defense attorney F. Lee Bailey spent a second day of cross-examination with Los Angeles police Detective Mark Fuhrman.
Bailey had bragged to reporters that his cross-examination of Fuhrman was going to be a "character assassination." But it is an open question as to whose reputation is suffering more.
Bailey has not tried a really high-profile case since defending Patty Hearst in 1976 on bank robbery charges. He lost.
And what he really needed to do to Mark Fuhrman is what prosecutors had done to housekeeper Rosa Lopez: Reduce the witness to rubble.
Bailey, a member of O. J. Simpson's "Dream Team" defense, needed to have Fuhrman say "I don't remember" 40 or 50 times, as Lopez did. He needed Fuhrman to dramatically change his story.
He needed Fuhrman to shake, rattle and roll. In all of this, Bailey has thus far failed.
Fuhrman remained calm yesterday, his fourth day on the stand, with his fingers laced in his lap. His tone remained measured and confident. He may, indeed, be lying through his teeth. But Bailey has yet to demonstrate that.
In the court of public opinion, Bailey has done a fine job. The public has heard that Fuhrman is a vicious racist who planted a bloody glove at Simpson's home in an attempt to frame him for the murders of his ex-wife Nicole and waiter Ron Goldman.
But the case is not being tried in the court of public opinion. It is being tried in the court of Judge Lance Ito, and there Bailey has yet to prove his allegations.
Bailey maintained a tone of unrelieved sarcasm and disbelief toward whatever Fuhrman said.
But in so doing, he ran the risk of gaining sympathy for Fuhrman, especially when Ito had to admonish Bailey no fewer than seven times to allow Fuhrman to finish his answers before jumping on him.
And Bailey's florid speaking style occasionally backfired, confusing more than probing.
"Detective Fuhrman," Bailey asked at one memorable juncture, "are you as satisfied with the quality of the truth of your denial of knowing Kathleen Bell as you are of your claim that you found the right-handed glove on Mr. Simpson's property?"
Fuhrman sometimes smiled while Bailey was asking his more bombastic questions, a smile occasionally picked up by a few jurors.
The jurors are, after all, much closer in economic status and educational background to Fuhrman, the high school dropout turned police officer, than they are to Bailey, the multimillionaire Harvard graduate.
And even when Bailey scored points -- getting Fuhrman to admit that he might have said he found blood "in" O. J. Simpson's white Bronco rather than "on" it or that Fuhrman once referred to the single glove as "them" -- it may not have had quite the dramatic effect the general public would think.
The average person is getting his information about the Simpson trial through newspapers, TV or radio, in which the most important facts of the day's testimony are put in high relief and placed at the beginning of the story or broadcast.
The jurors, on the other hand, receive their information as part of an endless stream, in which facts are piled upon facts, often out of order and with no special emphasis.
Nearly ideal witness
And to the surprise of many, including possibly the prosecution, Fuhrman has turned out to be a nearly ideal witness on the stand.
The best thing a witness can do is appear the same to the jury on direct examination as on cross-examination, and this is precisely Fuhrman's strength.
And while, out of the presence of the jury, Bailey has argued that Fuhrman is a "suspect" in having "carried that glove from Bundy, where he found it, to Rockingham, where he deposited it," Bailey has yet to demonstrate that Fuhrman actually did so or even that it was possible.
It is also important to distinguish between what Bailey states -- that the bloody glove would have been dried out by the time Fuhrman found it unless Fuhrman had hidden it in a police evidence bag -- and actual proof or expert testimony.
Even though Bailey yesterday managed to present to the jury a second accusation that Fuhrman used extreme racist language 10 years ago, there is a large gulf between demonstrating that Fuhrman is a racist and demonstrating that he planted evidence at a crime scene. It is a gulf Bailey has yet to bridge. And some of the weaknesses and inconsistencies that Bailey may have exposed are almost sure to be addressed and "rehabilitated" by prosecutor Marcia Clark on re-direct examination.
Where Bailey has succeeded is not in the ninth-floor courtroom of the Los Angeles Criminal Courts Building, but on television. Bailey and other members of the defense have been on "Larry King Live," "Today" and "Good Morning America."
For a defense lawyer to go on TV to talk about strategy in a trial in progress, however, is virtually without precedent in American legal history.
And other prominent defense attorneys cannot quite believe that Bailey is really doing it. Roy Black, the lawyer who successfully defended William Kennedy Smith on rape charges, has said: "The [defense] lawyers seem to try to get this out in public before going into the courtroom. Why help your enemy?"
And how different the prosecution prepping of Mark Fuhrman might have been had it not known Bailey's entire line of attack ahead of time. There has been such a publicity barrage by the defense (and to a lesser extent by the prosecution) that two theories have emerged:
1. Both sides are trying to influence the sequestered jurors through their conjugal visitors, who can watch TV, listen to radio and read newspapers (but who are not supposed to talk about it to the jurors).
2. If this trial results in a hung jury and Simpson must be tried again, each side wants its theory of the truth to be embedded in the minds of the new jurors, who will be picked from the general public.
More likely than either of these theories, however, is that the defense attorneys just can't help themselves. Almost all of them are used to living in the public eye, leaking to the media and being constantly on stage.
Defense in deep hole
They have never seen a TV camera they did not like. But the battling with Fuhrman has served to hide from public view what a deep hole the defense team is trying to dig itself out of.
Aside from their experts, two of the most important defense witnesses were Rosa Lopez, whose taped testimony now many never be used, and Mary Anne Gerchas.
In his opening statement to the jury, lead defense attorney Johnnie Cochran promised jurors that Gerchas would swear she saw four men running from the crime scene at the time of the killings.
This was crucial to the defense theory of the crime. If Lopez gave Simpson an alibi -- his Bronco was at home and not at the crime scene at the time of the murders -- then Gerchas gave the jury a credible alternative to Simpson as the killer: Four hit men, perhaps from Colombia, did the terrible deeds.
Monday, however, the defense announced that it was pulling Gerchas from its witness list. She is mired in numerous lawsuits and appears to lack sufficient credibility to be put on the stand.
So now, cracking Fuhrman is more important to the defense than ever before.
But so far, Bailey hasn't laid a glove on him, bloody or otherwise.
SUNDIAL
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