Ito's Final Decision on the Fuhrman Tapes

SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES

Date: 31 August 1995
Department 103
Hon. Lance A Ito, Judge
Deidre Robertson, Deputy Clerk
People v. Orenthal James Simpson
Case # BA097211

FUHRMAN TAPES

The court has read and considered the Defense Offer Of Proof Re: "Fuhrman Tapes", the amendments to the original offer of proof, the responses filed by the prosecution, listened to the redacted audio tapes, read and considered the multiple transcripts of the redacted audio tapes, and heard the argument of counsel.

The Fuhrman tapes and transcripts raise a number of complex and compelling issues. This court's focus, however, is legally restricted to just two issues: 1) Is Orenthal James Simpson guilty of the murders of Ronald L. Goldman and Nicole Brown Simpson, and 2) How should these tapes impact upon the testimony by and about now retired Los Angeles Police Department Detective Mark Fuhrman.

A key part of the defense case is the allegation that Fuhrman, motivated by hatred of blacks/ African Americans and interracial couples, transported a bloody leather glove from the Bundy crime scene to the defendant's Rockingham residence for the purpose of placing the blame upon the defendant for the savage murders of Ronald L. Goldman and Nicole Brown Simpson. In an earlier related ruling issued 20 January 1995, this court tentatively ruled that the defense may present the testimony of one Kathleen Bell concerning sometime between 1985 and 1986:

The Redondo Beach incident occurred sometime between 1985 and 1986. It is alleged that Fuhrman made a comment from which one might infer racial animus, contempt of interracial couples and willingness to manufacture probable cause to stop a motor vehicle. (1) It has been agreed by the parties that defendant is African-American and victim Nicole Brown Simpson was Caucasian. It would also appear from this record that Fuhrman had met defendant and Brown Simpson on one memorable prior occasion in 1985. (2) Assuming Bell's statement to be true, a direct inference of a credibility problem is apparent. If the defendant can make an offer of proof as to what evidence they will produce to suggest the moving of evidence and the court is satisfied by that offer of proof, the prosecution's objections will be denied.

It is important to note that the basis of the 20 January 1995 ruling was 1) the unique combination of racial animus, interracial couples and a willingness to fabricate, and 2) the Kathleen Bell offer of proof which included all three elements. During the course of the presentation of the prosecution's case in chief, Fuhrman testified without objection that he had not used a particular racial epithet in the past ten years.

The defense proffers include 41 examples of Fuhrman using the particular racial epithet in question and 18 examples of misconduct argued to be relevant on the issue of Fuhrman's credibility and willingness to fabricate. The defense also offers 2 comments made by Fuhrman in late July of 1994 which are argued to be relevant to Fuhrman's attitude towards testifying as a witness. See Evidence Code Section 780 (j). Interestingly, the proffers do not address what evidence supports the allegation that the Rockingham glove was moved. (3) The court therefore has 61 incidents to evaluate.

Foundation Testimony By McKinny

Laura Hart McKinny testifies that in 1985 she was engaged in writing a screenplay about women in police work when she met Fuhrman at a restaurant in Westwood. Upon learning Fuhrman was a police officer with strong negative feelings about women in police work, McKinny agreed to use Fuhrman as a technical consultant, eventually agreeing to pay Fuhrman ten thousand dollars ($10,000.00) upon the sale of the screenplay. McKinny testifies that her conversations with Fuhrman were for research purposes, to provide realistic dialogue, proper police procedures and insights into a police officer's thought process. The basic story to be told was that of a competent woman police officer who is transferred into a police division patterned after LAPD's 77th Street Division, and partnered with another officer who is a member of MAW (Men Against Women) and opposed to women being police officers. McKinny testified that racial tensions were not a subplot of her intended and eventual screenplay. McKinny testified that she would tape record portions of her conversations with Fuhrman, and that she would transcribe those recorded conversations within a day or two of each interview. (4) McKinny was adamant that her screenplay was intended as a fictional work. Although the screenplay has been optioned, it has not bee purchased as of 28 August 1995.

Use of Racial Epithets

A defendant in a criminal matter is entitled to confront and cross-examine the witnesses called against him. This is a right guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution as well as article I, section 15 of the California Constitution. Evidence Code Section 780 provides that in determining the credibility of a witness, the jury may consider "...any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: ... (f) The existence or nonexistence of a bias, interest or the motive." The California case law requires trial courts to allow cross examination about bias against racial groups and that undue restriction upon the right of effective cross-examination is reversible error per se. In re Anthony P. (1985) 167 CA3d 502, 507, 513. This is not to say, however, that the trial court lacks the authority or is absolved from the duty to appropriately control the inquiry into a witness' racial bias. Where the cross-examination relates to impeachment evidence, as is the situation in the case, it is the duty of the trial court to make certain the jury has sufficient information to appraise the biases and motivations of the witness. Chipman v. Mercer (9th Cir. 1980) 628 F2d 528, 530. Similarly the appellate courts have wisely noted that the trial court retains discretion to exclude collateral facts offered for impeachment purposes. People v. Lawergne (1971) 4 C3d 735, 743; People v. Atchley (1959) 53 C2d 160, 172. It is also important to note the unique factual situation wherein Fuhrman, Nicole Brown Simpson and the defendant cross paths in 1985, 1989 and finally in 1994.

On the cross-examination the defense was allowed to question Fuhrman as to his biases against African Americans. (5) The defendant now seeks to offer to the jury extrinsic evidence of Fuhrman's racial bias in the form of 41 statements made by Fuhrman to McKinny wherein Fuhrman uses the racial epithet "nigger" in apparent disparaging reference to African Americans. The court has reviewed each of the 41 uses of the racial epithet in question either by reference to the transcript(s), audio tapes or both. The court finds that each involves Fuhrman's use of the subject racial epithet in a disparaging manner within the time frame posed by the cross examination and in contradiction to his testimony before the jury. It is therefore relevant and admissible as impeachment.

Having found Fuhrman's use of the subject racial epithet to be relevant and admissible, the court must then analyze each usage under Evidence Code Section 352: "The court in its discretion may exclude evidence of its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The specific racial epithet at issue is perhaps the single most insulting, inflammatory and provocative term in use in modern day America. The court's examination of each of these 41 uses reveals not only the racial epithet itself, but a context that only adds to the insulting and inflammatory nature. For example:

#5: "...all these niggers in L.A. City government...all of them should be lined up against a wall and fucking shot."

#6 " You know these people here, we got all this money going to Ethiopia. For what? To feed a bunch of dumb niggers that their own government won't even feed."

#32 "What if I've just been raped by two buck niggers, and a female shows up?"

#34 "It's pretty clear-cut who the assholes are. You go to Pacoima, you got bikers and niggers."

The probative value of the evidence of Fuhrman's use of racial epithets comes from the fact that he has testified that he had not used the term in the last ten years, thereby implicating his credibility. Because of Fuhrman's discovery of a bloody glove at the Rockingham residence and its scientific significance, he is a significant although not essential witness against the defendant. As such, the defendant is entitled to effectively cross examine him. However, as noted above, the court retains some discretion in controlling the inquiry. The defense may present McKinley's testimony as follows:

a. Her acquaintanceship with Fuhrman.
b. The nature and purpose of their relationship.
c. That McKinny has had tape recorded and transcribed conversations with Fuhrman for the nine year period between April of 1983 and July of 1994.
d. That during the course of those conversations between 1985 and1986 Fuhrman used the term "nigger" in a disparaging manner 41 times.

The defense may play and display the following excerpt as impeachment:

#8 "We have no niggers where I grew up."

#13 Q: "Why do they live in that area?"
A: "That's where niggers live."

The court finds the probative value of the remaining examples to be substantially and overwhelmingly outweighed by the danger of undue prejudice. Evidence Code Section 352. Just as a defendant with prior felony convictions testifying before a jury is not entitled to a false aura of credibility, neither is Fuhrman. It is apparent by the prosecution's offer to stipulate that Fuhrman had used the subject racial epithet in a disparaging manner within the relevant time period that the prosecution recognizes the danger of presenting what might now appears to be false evidence or perjured testimony. See In re Sassounian (1995) 9 C4th 535. Having now recognized the problems with presenting Fuhrman as a witness, the concession is appropriate.

Incidents Of Alleged Misconduct

The defense seeks to offer 18 incidents of alleged misconduct to attack Fuhrman's credibility, to support the argument that Fuhrman planted evidence to support the testimony of Bell. The defense cites Evidence Code Sections 780 (Credibility Of Witnesses), 1101 (b) (Prior Bad Acts) abd 1105 (Habit & Custom To Prove Specific Behavior). As noted in the ruling of 20 January 1995, there must be some evidence in the record from which counsel might argue, however reasonably or unreasonably, that Fuhrman moved a glove from the Bundy crime scene to the defendant's Rockingham residence for the purpose of placing blame for two brutal and savage murders upon the defendant. In argument in opposition to the admission of these incidents of alleged misconduct, the prosecution has challenged the sufficiency of the defense proffer filed 23 January 1995 despite the challenge from the prosecution and inquiry by the court. That proffer essentially was arguably favorable to the defendant, it can be assumed that he would plant the glove. This assertion is not supported by the record. The underlying assumption requires a leap in both law and logic that is too broad to be made based upon the evidence before the jury. It is a theory without factual support. It fails to support the admissibility of these incidents of alleged misconduct as prior bad acts or evidence of custom and habit.

While the current state of the record does not indicate evidence that would reach the minimal threshold necessary to find inquiry into the planting of evidence theory relevant, and the court so finds, the defense has not yet tested its case. The court will therefore analyze each incident, assuming arguendo, the minimal threshold of relevance is later met.

1. Reaction to being called names:
McKinny sets the stage by asking what Fuhrman would do in front of a movie theater while moving the line out of the street and someone calls the officer a foul name. Fuhrman replies that the person would go to jail for interfering with a police officer, a violation of Penal Code Section 148. This is clearly an instance of suggesting a scenario for the screenplay. As such, it has no relevance. The Evidence Code Section 350 objection is sustained. As a suggested scenario for a screenplay, its negligible probative value is substantially outweighed by the undue amount of time that would be consumed in its presentation and refutation. The Evidence Code Section 352 objection is sustained.

2. Tearing up a driver's license as a pretext to arrest:
This incident is part of the reaction to being called names incident. Fuhrman indicates an arrest, i.e. taking the subject to the station, could be justified if the subject did not have proper identification, and that if the subject had a driver's license Fuhrman would just rip it up. McKinny then asks if Fuhrman has ever done this before and the transcript indicates a nod. McKinny then asks Fuhrman if he has ever falsified a police report, Fuhrman replies, "Never." This is the same discussion suggesting a scenario for a screenplay. As such, it has no relevance. The Evidence Code Section 350 objection is sustained. As a suggested scenario for a screenplay, its negligible probative value is substantially outweighed by the undue amount of time that would be consumed in its presentation and refutation. The Evidence Code Section 352 objection is sustained.

3. Hype arrest:
This incident is a continuation of the being called names incident. In the midst of a long statement, the following is found in the context of falsifying police reports: "...of some hype, you know says, ah, pick the scab, squeeze it, looks like serum's coming out, as if it were hours old...That's not falsifying a report. That's putting a criminal in jail. That's being a policeman." This case does not involve an arrest by Fuhrman. Because the proffer goes to a collateral matter, the probative value is therefore non-existent. The Evidence Code Section 350 objection is sustained. No factual basis has been offered in support. Admission would require diversion into what would essentially be the trial of a violation of Health and Safety Code Section 11550, being under the influence of a controlled substance, which would necessitate undue consumption of time. The Evidence Code Section 352 objection is sustained.

4. Use of deadly force in making arrests:
This case does not involve the use of deadly force. The proffer is completely irrelevant. The Evidence Code Section 350 objection is sustained. Admission of this statement would create the substantial danger of undue prejudice. The evidence Code Section 352 objection is sustained.

5. Use of deadly force in making arrests:
This case does not involve the use of deadly force. The proffer is completely irrelevant. The Evidence Code Section 350 objection is sustained. Admission of this statement would create the substantial danger of undue prejudice. The Evidence Code Section 352 objection is sustained.

6. Revenge for killing policemen:
This case does not involve the killing of a police officer. There is no suggestion that the defendant has in any way physically harmed any police officers. The record indicates the defendant was on friendly terms with the officers of the West Los Angeles Division. The proffer is completely irrelevant. The Evidence Code Section 350 objection is sustained. The inflammatory nature of this statement creates the substantial danger of undue prejudice. The Evidence Code Section 352 objection is sustained.

7. Manufacturing probable cause for arrest:
The discussion involves detaining someone who does not belong in the area and later being able to justify the arrest: "If I was pushed into saying why I did it, I'd say suspicion of burglary. I'd be able to correlate exactly what I said into a reasonable probable cause for arrest. This case does not involve an arrest made by Fuhrman. The incident does not speak to racial animosity. It is not relevant. The Evidence Code Section 350 objection is sustained. Presentation of this incident would require the undue expenditure of the court's time given its negligible probative value. The Evidence Code Section 352 objection is sustained.

8. Field interrogation techniques:
This case does not involve the field interrogation of any suspect by former Detective Fuhrman. The proffer is completely irrelevant: The Evidence Code SEction 350 objection is sustained. Presentation of this incident would require the undue expenditure of the court's time. The Evidence Code Section 352 objection is sustained.

9. Cover up of unlawful use of force:
McKinny seeks to place one of her female characters in a situation where she does not inform upon officers who have beaten her arrestee. Fuhrman goes on to tell of an incident where he was the first responding officer until after two policemen had been shot. Fuhrman states that he chases and beat the suspects , and escaped any punishment after an extensive Internal Affairs investigation since all his fellow officers knew to keep their mouths shut. This case does not involve any police officers as victims, any pursuit of a suspect where there is any allegation of unnecessary force used in the arrest, or any cover up of unnecessary force upon an arrestee. The proffer lacks relevance to this case. The proffer does not included mention of a basis in fact. The argument of the parties indicates there is substantial factual dispute as to whether any actual incident matches the scenario painted by Fuhrman. There is a substantial danger that the proof of the underlying incident, if such be available, would necessitate the undue consumption of the court's time. (6) The court also finds that having balanced the indirect nature of the probative value of the proffered evidence with the danger of undue prejudice, the court finds that defense counsel's characterization of this incident as a "blockbuster" most eloquently speaks to the inflammatory nature of this incident, creating the substantial danger of undue prejudice. The Evidence Code Section 352 objection is sustained.

10. Necessity for the police officers to be willing to lie:
Fuhrman discusses his then current partner, one of the "good guys" who is not willing to lie or cover for a partner. No argument or allegation has been made that Fuhrman has been lying to cover for his partner, Det. Phillips, nor has there been any argument or allegation that Phillips has been lying to cover for Fuhrman. There is no direct relevance to this case. The Evidence Code Section 350 objection is sustained. Presentation of this incident would require the undue and unwarranted expenditure of the court's time. The Evidence Code Section 352 objection is sustained.

11. Revenge against those who oppose the choke hold:
Fuhrman expresses extremely negative attitudes towards the ACLU and the NAACP with regard to their opposition to the use of the choke hold by the Los Angles Police Department. This case does not involve the use or application of any choke hold. The proffer is completely irrelevant. The Evidence Code Section 350 objection is sustained. The inflammatory nature of the statement creates the substantial risk of undue prejudice. The Evidence Code Section 352 objection is sustained.

12. Destruction of a suspect's property:
Fuhrman discusses the actions of another officer which involve the destruction of personal property of a suspect. The alleged actions of this other officer are not relevant to any of the issues in this case. The Evidence Code Section 350 objection is sustained.

13. Tearing up of driver's licenses:
In the same discussion as Incident 12 Fuhrman relates that this other officer would often tear up suspect's driver's licenses. As noted above. the alleged actions of another officer have no relevance to any of the issues in this case. The Evidence Code Section 350 objection is sustained.

14. Beating of suspects:
This incident appears to be the came as Incident 9, with the addition that one of the suspects died as a result. That addition increases the likelihood the account is fictional. No factual basis has been offered to prove the existence of an incident involving Fuhrman where a suspect was beaten to death. The proffer is rejected for the same reason stated as to Incident 9.

15. Testimony for events not witnesses:
In the context of discussing the incompetence of women police officers, Fuhrman discusses several incidents where he is the third or fourth car at the scene of a call, the women officers whom he refers to as munchkins are not capable of handling the situation and he, as the macho man, is required to step in and take over the entire situation, including testimony in court. The proffer implies a willingness to testify to events not actually witnesses and complicity by the prosecuting attorney. The proffer does not suggest any actual basis in fact. Given the collateral nature of the statement and the inferential nature of the statement, the court finds its probative value to be severely limited such that it is presentation would require an undue consumption of time. The Evidence Code Section 352 objection is sustained.

16. Coercing statements from suspects:
Fuhrman relates taking 3 gang members in for questioning after a gang related murder and beating information out of them. The proffer is not factually connected to any specific incident. This case does not involve coerced statements. The proffer is irrelevant. The Evidence Code Section 350 objection is sustained. The inflammatory nature of the statement create the substantial rise of undue prejudice. The Evidence Code Section 352 objection is sustained.

17. Baton use in different parts of the City:
Fuhrman discusses the non-use of the baton in Bel-Air versus its use in the south end. This case does not involve the use of force, batons or otherwise. The proffer is irrelevant to the issues in this case. The Evidence Code Section 350 objection is sustained. The inflammatory nature of the statement created the substantial risk of undue prejudice. The Evidence Code Section 352 objection is sustained.

18. Automobile stops:
Fuhrman discusses stopping cars or suspects that are out of place in his regular patrol area. This case does not involve an automobile stop where there was no probable cause. The proffer is irrelevant. The Evidence Code Section 350 objection is sustained. The presentation and refutation of this statement would require the undue and unwarranted expenditure of the court's time. The Evidence Code Section 352 objection is sustained.

Attitude Towards Testifying

Evidence Code Section 780 (j) and CALJIC 230 provide that the jury may consider a witness' attitude towards the action in which he or she testifies or towards the giving of testimony. The defense has offered two statements by Fuhrman which appear on the 28 July 1994 tape. The first deals with Fuhrman's role as the "key witness," and the second concerns an attorney's advice to "...go for Shapiro, he's an asshole." The defense offers the first as an apparent prior inconsistent statement (7) to the following:

Q: "Did you believe that you would be an essential witness if you were the first to find an important piece of evidence?"

A: "Well, I couldn't make that determination at the time [upon discovering the glove on 13 June 1994], sir. I didn't even know what the implication of the glove was."
RT 106/18625

The defense offers the following from the 28 July 1994 tape recorded conversation with McKinny: "I'm the key witness in the biggest case of the century. If I go down, they lose the case. The glove is everything......bye bye."

The 28 July 1994 statement, made within weeks of the conclusion of the preliminary hearing in which Fuhrman testified, is not inconsistent with Fuhrman's testimony of 14 March 1995. No other exception to the hearsay rule has been offered. The objection is sustained.

The second proffered excerpt from the 28 July 1994 conversation with McKinny is in apparent reference to an article which appeared in The New Yorker magazine:

"The funny thing about it is just like the attorney said: "For the rest of your life, this is you: "Bloody Glove Fuhrman." If you don't make it pay off, you're going through all this for nothing. So, go for Shapiro. He's an asshole."

On cross-examination Fuhrman was questioned about his plans to sue various members of the defense team for libel and slander. The proffered quote appears to be from an attorney and not from Fuhrman. It adds nothing to the jury's store of knowledge about Fuhrman and his credibility. It is irrelevant. The 350 objection is sustained.

The clerk of the court is directed to immediately serve a copy of this order upon counsel for the parties by facsimile and upon their next appearance in court.

IT IS SO ORDERED

(1) "...During our conversation, Mark Fuhrman stated that he would pull over any vehicle that was occupied by a black man and a white woman. I then asked him, "What if you don't have a good reason to pull them over?" Mr. Fuhrman then stated, "I'd make one up." I then asked Fuhrman, "What if the two people are in love?" Fuhrman then appeared to get disgusted with me and stated, "If I had my way, they would take all the niggers, put them together in a big group and burn them." [Statement of Kathleen Bell dated 16 August 1994]

(2) These three again crossed paths in 1989 when Fuhrman was requested by the prosecuting agency, the Los Angles City Attorney's Office, to submit a written recollection of the 1985 incident for use in the 1989 prosecution of the defendent for the misdemeanor of spousal battery.

(3) See Defense Proffer Of Evidence Relevant To Impeach Detective Fuhrman file stamped 25 January 1995 in response to the court's request for an offer of proof in its related ruling dated 20 January 1995. The substance of evidence to beset forth in a valid offer of proof means the testimony of specific witnesses, writings, material objects, or other things presented to the senses, to be introduced to prove the existence or nonexistence of a fact in issue. Failure to make an adequate offer of proof with the required specifics has dire consequences. In re Mark G. (1992) 7 CA4th 433,444.

(4) The court's comparison of the tape recordings with the transcripts prepared by McKinny revealed significant errors and omissions despite McKinny's testimony that her transcripts were verbatim in nature.

(5) RT 107/18899 - Wednesday 15 March 1995.

(6) The court notes that the jury has been sequestered since mid-January. The undue consumption of time is a critical factor to be considered by the trial court under these unique circumstances.

(7) See Evidence Code Section 1235.

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