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Clark flubbed her chance to deflate O. J. 'victory'


Both sides in the O. J. Simpson case have made plenty of mistakes.

But whether she wins or loses (and who's kidding whom about whether Simpson is going to walk), Prosecutor Marcia Clark is not going to look back with much pride on how she handled Mark Fuhrman's invocation of this Fifth Amendment rights on Wednesday.

There is, before we begin, one thing we should keep in mind

about the Fifth Amendment: It is a constitutional right. It is your right, my right, Mark Fuhrman's right and O. J. Simpson's right.

But when a person does invoke the Fifth, that does not prevent people from drawing some pretty serious conclusions, such as: "Gee, if he says he can't answer the question because it might incriminate him, then the answer must be incriminating to him."

We should not think that way.

Many Americans were unfairly pilloried during the Joe McCarthy era by invoking their Fifth Amendment right to not answer questions about their contacts with the Communist Party.

But human beings are human beings. And it never looks good to invoke the Fifth Amendment.

So what did Marcia Clark do wrong?

When Mark Fuhrman invoked his right not to answer a defense question as to whether he had ever planted evidence against O. J. Simpson, Clark asked him no questions of her own.

I would have. Why?

Because Fuhrman was going to take the Fifth against any question asked. That is his best legal strategy.

And if I were Marcia Clark, right after Fuhrman took the Fifth about planting evidence, I would have gotten to my feet and said: "Detective Fuhrman, did you shoot John F. Kennedy on Nov. 22, 1963?"

"I assert my Fifth Amendment privilege," Fuhrman would have replied.

"And did you shoot Abraham Lincoln on April 14, 1865?" I would have asked next.

"I assert my Fifth Amendment privilege," Fuhrman would have replied.

And then I would have sat down.

OK, OK, Judge Lance Ito almost certainly would have stricken both questions and answers from the record since they are irrelevant to the question at hand: Who killed Nicole Brown and Ronald Goldman (remember them?)

But Clark could have asked the questions. Why bother, especially since Ito ruled yesterday that the jury would never hear Fuhrman take the Fifth anyway?

Because Clark's questions might have prevented the defense team's ridiculous performance after the hearing in which they said that O. J. Simpson had now been proved innocent.

Why were all of us now supposed to decide Simpson did not kill his ex-wife and her acquaintance?

Well, because if the cop who found the bloody glove won't deny he planted the bloody glove, then he must have planted the bloody glove.

That is faulty reasoning (but nationally televised performances often don't place a high value on reason).

But why should Clark care about public opinion? The jury is sequestered, right? They don't see TV. Public opinion doesn't affect them.

Except it does. Both sides have known for months that the family visits and phone calls that Judge Ito has allowed the jurors -- and he had to allow them or they would have rioted by now -- have almost certainly polluted the jury to some extent.

I don't know of a person connected to the case who doesn't believe that this jury doesn't know something about the parts of the trial that have been kept from them.

And so it is very possible that the jurors already know Fuhrman took the Fifth.

It is clear that Mark Fuhrman is a racist, a terrible cop and despicable person.

But he can be all those things and not have planted the bloody glove.

He can be all those things and not have had the opportunity to have planted the bloody glove.

And if Clark had gone to the trouble of deflating the defense's wild assertions of what Fuhrman's lack of testimony "proved," she could have gone a long way in helping the prosecution case. Like the defense, she could have tried to reach the jury through the public.

And don't believe for an instant that these lawyers are playing to the public just out of ego.

They are playing to the public to win.

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