he Best Defense  | American Journalism Review
 AJR  Features
From AJR,   September 1994

he Best Defense   

By Jacqueline E. Sharkey
Jacqueline E. Sharkey is head of the University of Arizona Department of Journalism and author of "Under Fire--U.S. Military Restrictions on the Media from Grenada to the Persian Gulf."     

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One of the most controversial stories written about the Simpson saga is New Yorker writer Jeffrey Toobin's article, "An Incendiary Defense."

The story in the July 25 issue says that two leading members of Simpson's defense team might suggest that a key prosecution witness, LAPD Detective Mark Fuhrman, framed Simpson by planting a bloody glove on Simpson's property. The motive? Fuhrman was a racist police officer who wanted to be a hero. According to the article, a member of the defense team told Toobin they were "hearing things that are unbelievable."

Toobin checked into the officer's background and reported that in the early 1980s, Fuhrman started an extended legal battle for a disability pension, claiming he sustained serious job-related psychiatric problems. Fuhrman lost the suit and the public record of his career since then has been "uniformly favorable," Toobin wrote. Toobin ended the article with a quote from a book by attorney Alan Dershowitz, a member of Simpson's defense team, saying he would do anything, "without regard to the consequences," to win a case.

The New Yorker article, along with a shorter, much less speculative piece in Newsweek, produced an immediate furor.

Shortly after the article appeared, the police department leaked information about an internal inquiry to the Los Angeles Times. Police sources said a dozen officers were on the scene before Fuhrman, and had secured the area – making it all but impossible for him to steal key evidence – and that other officers had confirmed that only one glove was found.

Al Hunt of the Wall Street Journal called Toobin's story "a journalistic disgrace." But Toobin says he was not embracing the defense theory: His article characterized it as "monstrous."

Newsweek's article, written by Mark Miller, escaped much of the criticism because it focused primarily on the questions about Fuhrman's overall credibility that were raised by his efforts to get disability pay. The story mentions the theory that Simpson might have been framed by a "rogue cop" only in one sentence.

Miller says it was important to do a story on the officer because he is a crucial prosecution witness. But he had played down the defense scenario because the defense didn't "have any evidence of that. They just have the suggestion."

Miller's decisions may save him from legal problems. Shortly after the articles mentioning Fuhrman appeared, the detective retained a Los Angeles law firm that says it is preparing the groundwork for a libel suit. Lawyer Robert Tourtelot says the suit will be filed against the New Yorker, Simpson lawyer Robert L. Shapiro and others after Fuhrman testifies in Simpson's trial, in order not to interfere with the prosecution's case. Neither Miller nor Newsweek would be part of any suit because their article had been "much more restrained," Tourtelot says.

Attorney Laurie Butler, in a letter to the New Yorker on behalf of Fuhrman, cited the fact that Toobin's article had been picked up by other media "throughout the world" as one reason the magazine should correct what she called "highly damaging defamatory statements" about Fuhrman. An attorney for the magazine replied that the story met "the highest standards, ethics, and traditions of American journalism," and suggested that Fuhrman or his attorneys write a letter to the editor.

This is not the first time Toobin's writing has caused an ethics controversy. After working as an attorney for Iran-contra special prosecuter Lawrence Walsh, Toobin wrote a book about his experiences. Walsh refused to approve the manuscript, saying Toobin had violated nondisclosure agreements, and that the book should not be published until court proceedings had concluded and Walsh had issued his final report.

Toobin didn't agree and took his case to federal district court. A judge sided with Toobin, and before an appeals court could review the case, his publisher released the book. Toobin described the outcome as a victory for the First Amendment, to which he has a "rabid devotion."

Others saw it differently. New York Times editorial writer John P. MacKenzie wrote in a 1991 column that Toobin "is no First Amendment hero but an opportunistic practitioner" whose "grandstanding and loose handling of confidences" meant "justice will have been needlessly tarnished."

One critic watching with considerable amusement was National Enquirer General Editor Mike Walker. "If we had printed what Jeffrey Toobin printed in the New Yorker, there would be so much gnashing of teeth and wailing throughout the land, you know, everybody.. would be saying, 'This is terrible, this is unprincipled, there's no back-up here,' " Walker said.

Toobin thinks the current criticism of him is unjustified. He says he reported "accurately and fairly," and dismisses the notion that he has been manipulated by Shapiro. "I can't believe with all that he's got on his mind..he is spending his evenings..masterminding a media strategy," he says.

ýoobin says he worked to "independently corroborate" defense statements about Fuhrman and included Fuhrman's denial that he planted evidence. The story also pointed out that jurors might find the frame-up scenario "unbelievable," and the defense might be playing the race card because it "may be the only one in Simpson's hand."

Toobin says he considered the consequences of the story, adding that it is "preposterous" to believe his article could "do much to stir up race trouble in Los Angeles."

But things have not been all bad for Toobin. In an interview with AJR while waiting to appear on "Nightline" shortly after his article was published, Toobin said the story had attracted an "extraordinary" amount of attention. "I don't want to sound like I'm bragging, but I mean, it was repeated in hundreds of newspapers."

While Fuhrman was consulting with his attorneys about a possible libel suit, Toobin was consulting with his agent and recently agreed to do a book for Random House on the case.

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