Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted; also appearing, Matthew Schwartz, Esquire, and Ron Regwan, Esquire, on behalf of Laura Hart McKinny; and Irving Miller, Esquire, on behalf of Roderic Hodge.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(Pages 44179 through 44195, volume 217A, transcribed and sealed under separate cover.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record in the Simpson matter. All parties are again present. Mr. Simpson is present with his counsel, Mr. Shapiro, Mr. Cochran.
MR. COCHRAN: Good morning, your Honor.
THE COURT: Mr. Spaulding, Mr. Bailey, Mr. Blasier. The People are represented by Miss Clark and Miss Lewis. The jury is not present. Anything we need to take up with regard to Miss McKinny before we resume?
MR. COCHRAN: Yes, we do, your Honor. I would ask your Honor to listen to Dean Uelmen with regard to a proposed jury instruction we have to offer.
THE COURT: Well, jury instructions come at the end of the trial, don't they?
MR. COCHRAN: They normally do, your Honor, however this is a unique situation. I think Dean Uelmen can explain it if you would allow.
MR. UELMEN: Your Honor, we have submitted a special proposed instruction that we would ask the court to give at the conclusion of Miss McKinny's testimony. The genesis of this instruction is section 412 of the California evidence code which provides that: "If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust." Our concern is that the jury may view the evidence with respect to the racial epithets in the tapes and transcripts with distrust since they are not being given the opportunity to hear the stronger and more satisfactory evidence of seeing the transcripts themselves, and if you will, actually hearing the tapes, so we believe it is appropriate under these circumstances for the court to inform the jury of the court's ruling and the reason why they are not being allowed to see the transcripts or hear the tapes. And we have fashioned a jury instruction which actually uses the language of the court to explain to the jury why they will not have that opportunity. In very simple and nonjudgmental language they would be informed that they will not be allowed to see the transcripts or--
THE COURT: Do you know of any precedents for a jury instruction like this, Dean Uelmen? Have you ever seen one like this before?
MR. UELMEN: Well, yes. I believe that on occasion courts have instructed the jury in the language--
THE COURT: In what case, counsel?
MR. UELMEN: --of section 412.
THE COURT: What case?
MR. UELMEN: In fact, we will submit that instruction because we believe the Prosecution has presented weaker and less satisfactory evidence when stronger evidence was available. But that--that instruction should not be used against the Defense in the context of a ruling of the court that precluded the use of stronger and more satisfactory evidence when the--the evidence would have been offered but for that ruling.
THE COURT: All right. Do you have any case law authority for this proposition?
MR. UELMEN: I do not, your Honor.
THE COURT: I will hear from the People.
MS. CLARK: Your Honor, this is very obvious attempt to have the jury focus on what they haven't seen and haven't heard. It is like don't think of the marshmallow man. That is all you can think about. And that is what instruction says, think about all you haven't heard, think about all you haven't seen, and that is the intent of this instruction. It is highly inappropriate. It seeks to highlight what the court has deemed inadmissible.
What is the purpose of having rulings under 352 that make evidence inadmissible if all do you is turn around and tell the jury, guess what, there is all kind of things you haven't seen? What is the point? Then you have the imaginations run wild with what they haven't seen. It is bad enough. They know there are eleven, twelve, fourteen hours of tape. They have heard one second and I think they get the picture. Every time Mr. Cochran asks the question, it becomes 42, 43. We are going to be up to 47 if he keeps questioning her. They get the idea. They get the idea plenty. They have heard two excerpts. They said it 41 times. They know he spoke to her for twelve hours on tape. All of that gives the jury the clear view that they had gotten a small snippet. All this seeks to do is highlight this matter, inflame the jury more and get them to think about how awful the rest of the 39 or 40 times were in which he uttered the word. That is--it is so obviously inappropriate that I don't think I need to argue this any further. With respect to whether section 412 could form the appropriate basis of a jury instruction, I don't think I disagree with that. I think that the court could appropriately instruct that is the evidence code. That is the law and it is available to both sides. If Dean Uelmen thinks that we are going to argue section 412 with respect to this evidence, he is sadly mistaken.
THE COURT: I don't think that that would ever happen.
MS. CLARK: It will not.
THE COURT: I don't think that is the import of his argument.
MS. CLARK: Oh, I think that is exactly what he said, that the People would argue this instruction against the Defense to point up the fact that they could have offered better and stronger evidence, i.e., more inflammatory, but they failed to. And in point of fact I can assure the court and counsel that will never occur, not with respect to the tapes. They have got his voice. His voice. I think that is pretty strong evidence that he said it. So this is--this is nothing but an attempt to highlight the inflammatory material that has been ruled inadmissible and to cause the jury to speculate on what they haven't heard and to imagine the worst which I think--I don't know. It is already so inflammatory what they have heard, your Honor. The Defense has already gotten the benefit of the most prejudicial and inflammatory thing I have seen admitted into a court ever, you know, by virtue of what we have in Miss McKinny's tapes. Now they want to have the jury speculate how much worse it gets. It is obviously improper.
THE COURT: All right. Mr. Uelmen.
MR. UELMEN: Your Honor, the instruction tells the jury not to speculate. It is precisely the opposite of what has just been represented to you. The instruction suggests the court tell the jury, "You should not speculate about why you have not had an opportunity to see the transcripts or to hear the tapes." We are not inviting speculation. What we are trying to avoid is speculation under an inference ordained by the evidence code where the jury is invited to view the evidence with distrust because stronger and more satisfying evidence has not been presented. Our problem of course is that as your Honor concedes, the two excerpts that the jury has heard are among the most innocuous and least inflammatory of all of the evidence available, and your Honor sustained an objection to Miss McKinny's characterization of the evidence in that respect. We believe the jury should hear the reasons why your Honor is keeping out those other 39 in the language that you used in your order, that your examination reveals that the epithet--
THE COURT: Counsel, you don't need to read my order to me. I know it is there.
MR. UELMEN: We think it is appropriate for the jury to be informed of that order so they know why they are not hearing all 41 of these.
THE COURT: All right. Thank you, counsel. All right. I will take the request for the instruction under submission for consideration at the time of the jury instruction conference. All right. Deputy Magnera, let's have the jurors, please.
MR. COCHRAN: Your Honor, may I just ask one question with regard to the question I asked Miss McKinny yesterday? Would the court care to reconsider that, whether or not I can ask her if she can characterize this--the one tape portion that was played as compared to the others?
THE COURT: No.
MR. COCHRAN: All right.
THE COURT: Thank you.
MR. COCHRAN: Thank you.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect that we have been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: All right. Miss McKinny, would you resume the witness stand, please.
Laura Hart McKinny, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:
THE COURT: All right. The record should reflect that Miss Laura Hart McKinny is again on the witness stand undergoing direct examination by Mr. Cochran. Good morning again, Miss McKinny.
MS. MCKINNY: Good morning, your Honor.
THE COURT: Miss McKinny, you are reminded that you are still under oath. Mr. Cochran, you may conclude your direct examination.
MR. COCHRAN: Good morning, ladies and gentlemen.
THE JURY: Good morning.
DIRECT EXAMINATION (RESUMED) BY MR. COCHRAN
MR. COCHRAN: Good morning, Miss McKinny.
MS. MCKINNY: Good morning, Mr. Cochran.
MR. COCHRAN: When we concluded our day yesterday we had played a tape for the jury and you shared with us and identified for this jury that was Mark Fuhrman's voice. Do you recall that?
MS. MCKINNY: Yes.
MR. COCHRAN: And with regard to the tapes, the twelve hours plus tapes and the transcripts we talked about yesterday, did you turn those tapes and transcripts over to the Prosecution just as you did to the Defense in this case?
MS. MCKINNY: Yes, I did.
MR. COCHRAN: And have you been interviewed and talked with the Prosecution and cooperated with them?
MS. MCKINNY: Yes, certainly.
MR. COCHRAN: And you are out here from North Carolina pursuant to a subpoena; is that correct?
MS. MCKINNY: That's correct.
MR. COCHRAN: You tried to cooperate with both sides?
MS. MCKINNY: Yes.
MR. COCHRAN: Now, with regard to these tapes and transcripts that we have been talking about, after the first interview that you had with Detective Fuhrman in February of 1985, that you described for us, I showed you yesterday a series of questions which you sent to him prior to the second interview; is that correct?
MS. MCKINNY: That's correct.
MR. COCHRAN: That second interview would have been in April of 1985; is that correct?
MS. MCKINNY: Correct.
MR. COCHRAN: Along with the questions that you sent him, did you send him a transcription of the tape of the--of an earlier meeting or any transcription, do you recall?
MS. MCKINNY: I sent him the transcription of our April 2nd, 1985, meeting, our first taped interview.
MR. COCHRAN: All right. You sent that to him and did he ever, as far as you know, make any changes at all on that transcription that you sent him?
MS. MCKINNY: No.
MR. COCHRAN: Now, later in 1985 did you have occasion to prepare a series of transcripts that you had prepared from the various tapes you had conducted and send those to Mr. Fuhrman?
MS. MCKINNY: Yes.
MR. COCHRAN: Will you tell the jury when that was, ma'am.
MS. MCKINNY: That was sometime in mid-June. I don't remember the exact date. But at that time I compiled all of the transcripts of our interviews and put them in a three-ring binder with indexes and dates and similar to the way I was logging the transcripts and keeping them for myself.
MR. COCHRAN: And did you give those to him or mail those to him or what did you do in that connection?
MS. MCKINNY: I gave those to him in the binder.
MR. COCHRAN: Did you ever at any point get any of those--the transcripts that were in the binder back from him with any changes?
MS. MCKINNY: No.
MR. COCHRAN: And so that we are clear about what was inside the binder, it contained some hours of the transcriptions of the tapes you had had with this particular individual; is that right?
MS. MCKINNY: That's right.
MR. COCHRAN: Did he ever give back the bound volume to you?
MS. MCKINNY: No.
MR. COCHRAN: So as far as you know he still has it; is that correct?
MR. DARDEN: Objection, speculation.
THE COURT: Overruled.
MR. COCHRAN: As far as you know he still has it, right?
MS. MCKINNY: As far as I know.
MR. COCHRAN: Now, yesterday we talked about Mr. Fuhrman's role as a technical advisor or a consultant. Was he to be paid if the screenplay was ever sold by you?
MS. MCKINNY: Yes.
MR. COCHRAN: And what was that compensation to be?
MS. MCKINNY: $10,000.
MR. COCHRAN: All right. Has that screenplay been sold?
MS. MCKINNY: No.
MR. COCHRAN: And with regard to these tapes or interviews that we call interviews of Mark Fuhrman, you have not tried to sell those tapes yourself, have you?
MS. MCKINNY: They are not for sale, no.
MR. COCHRAN: You are not trying to profit from those tapes, are you?
MS. MCKINNY: No.
MR. COCHRAN: Now, with regard to the references of the so-called "N" word that we talked about, we talked yesterday, and I think the two examples that we were able to play for the jury I think you said occurred maybe in April of 1985; is that correct?
MR. DARDEN: Objection, misstates the testimony.
THE COURT: Overruled.
MR. COCHRAN: The two examples occurred in 1985?
MS. MCKINNY: Yes.
MR. COCHRAN: Do you remember the first one about where he grew up, when was that?
MS. MCKINNY: That was during our--
THE COURT: Haven't we covered this already?
MR. COCHRAN: Perhaps so, your Honor. It is leading to another question, your Honor.
THE COURT: All right.
MR. COCHRAN: When was that?
MS. MCKINNY: That was during our first interview, April 2nd.
MR. COCHRAN: The second one was also in `85?
MS. MCKINNY: Yes.
MR. COCHRAN: All right. The use of this word by this man, however, continued through 1988; isn't that correct?
MR. DARDEN: Objection.
THE COURT: It is leading.
MR. DARDEN: 352.
MR. COCHRAN: Thank you, your Honor. Let me restate it. Thank you.
MR. COCHRAN: Were there times after 1985 in the course of these interviews that you had with Mr. Fuhrman that he continued to use this word?
MS. MCKINNY: Yes.
MR. DARDEN: Objection.
MR. COCHRAN: And how long did he continue to go on--
MR. DARDEN: Objection, the court's ruling, 352.
THE COURT: Overruled. Overruled.
MR. COCHRAN: You may answer.
MS. MCKINNY: In the transcripts through 1988.
MR. COCHRAN: All right. Thank you. Now, I think you have already explained to us that the last interview was in July of 1984--1994?
MS. MCKINNY: That's correct.
MR. COCHRAN: After this case had occurred; is that correct?
MS. MCKINNY: Correct.
MR. COCHRAN: Now, with regard to yesterday, just briefly we talked about the fact that you had inadvertently taped over the first tape and also maybe no. 9; is that correct?
MS. MCKINNY: Correct.
MR. COCHRAN: The transcripts that we talked about, had the transcripts been made before the tapes were inadvertently taped over?
MS. MCKINNY: Yes.
MR. COCHRAN: So you completed your process of doing the transcripts before you then taped over the actual tapes; is that correct?
MS. MCKINNY: That's correct.
MR. COCHRAN: All right. Now, in these interviews that you conducted with Mr. Fuhrman did you ever at any time ask him to embellish or enhance what he was telling you.
MR. DARDEN: Objection, vague.
THE COURT: Overruled.
MS. MCKINNY: No.
MR. COCHRAN: In fact, what did you tell him in that regard, if anything?
MR. DARDEN: Objection, hearsay.
THE COURT: Overruled.
MS. MCKINNY: I told him that I wanted realistic scenarios and responses to what may happen relative to the development of the story and characters.
MR. COCHRAN: In talking to you did he relate his own personal experiences as a police officer?
MR. DARDEN: Objection, speculation.
THE COURT: Sustained.
MR. COCHRAN: In talking to you can you describe what he did with regard to his personal experiences?
MR. DARDEN: Objection.
MR. COCHRAN: As a police officer?
MR. DARDEN: Vague.
THE COURT: Sustained.
MR. DARDEN: Speculation.
MR. COCHRAN: You were talking to this man because he was a police officer; isn't that correct?
MS. MCKINNY: That's correct.
MR. COCHRAN: And why did you want to talk to him?
MR. DARDEN: Objection. This is asked and answered a number of times.
THE COURT: Asked and answered.
MR. COCHRAN: All right. In addition to talking to Mark Fuhrman, did you talk to other police officers in and around this same time?
MS. MCKINNY: Yes, I did, approximately fifteen.
MR. COCHRAN: Fifteen police officers?
MS. MCKINNY: Yes.
MR. COCHRAN: Did you talk to--did you go to the police academy?
MS. MCKINNY: Yes, I went to the Los Angeles Police Academy and talked with physical training people who worked with cadet patrol women there, and I went on ride-alongs and talked with other police officers as well.
MR. COCHRAN: And why did you do these things?
MS. MCKINNY: It was important to balance the--my understanding of the frustrations, as I mentioned before, that the women were feeling, the reasons why they wanted to become officers and some of the obstacles that they faced, the very real obstacles that they faced on the force and with dealing--dealing with some men who might belong to a group Men Against Women who didn't want them to be officers. I needed to have a clear understanding of the realistic kind of obstacles they would face.
MR. COCHRAN: All right. Now, you mentioned that these "N" word references were between `85 and `88. Did you have any interviews with this man between `88 and `94 that were taped?
MS. MCKINNY: Yes.
MR. COCHRAN: And how many, if you recall?
MS. MCKINNY: Umm, between four and six.
MR. COCHRAN: All right. There were less than had been before in `85, `86, `87 and `88?
MS. MCKINNY: Again, please.
MR. COCHRAN: The frequency of the interviews, did they become less after about 1988?
MS. MCKINNY: Yes, they did.
MR. COCHRAN: All right. Was there a period of time when there were no interviews, a period of time when there were no taped interviews?
MS. MCKINNY: No taped interviews.
MR. COCHRAN: And when was that?
MS. MCKINNY: During the early nineties there were no taped interviews.
MR. COCHRAN: Now, yesterday you had shared with us and with this jury that when Detective Fuhrman used this word, this offensive word, the "N" word, he seemed to speak in ordinary speech or something of that nature. Do you recall that?
MS. MCKINNY: Yes.
MR. COCHRAN: Would you describe for the jury what you meant by that?
MR. DARDEN: Objection, asked and answered yesterday.
THE COURT: Sustained. Sustained. It was asked yesterday.
MR. COCHRAN: To explain it, your Honor?
THE COURT: Yes.
MR. COCHRAN: All right. May I have just a second, your Honor?
THE COURT: Certainly.
MR. COCHRAN: Thank you.
(Discussion held off the record between Defense counsel.)
(Discussion held off the record between Defense counsel and the Defendant.)
MR. COCHRAN: Your Honor, nothing further at this point.
THE COURT: All right. Mr. Darden.
(Discussion held off the record between the Deputy District Attorneys.)
CROSS-EXAMINATION BY MR. DARDEN
MR. DARDEN: Good morning.
MS. MCKINNY: Good morning, Mr. Darden.
MR. DARDEN: It is true that you and I have met before, correct?
MS. MCKINNY: That's true, yes.
MR. DARDEN: You, your husband, your attorneys, Miss Clark, Miss Lewis, Mr. Hodgman and myself, we all met on August 17th, I believe, in the D.A.'s office; is that correct?
MS. MCKINNY: Yes, I believe that was the date.
MR. DARDEN: August 17, 1995?
MS. MCKINNY: Yes.
MR. DARDEN: And we had a discussion about the transcripts and tapes and epithets that you have described here today and yesterday, right?
MS. MCKINNY: Yes.
MR. DARDEN: Okay. And it is a fact, isn't it, that is, that Mark Fuhrman used these epithets in 1985, correct?
MS. MCKINNY: Yes.
MR. DARDEN: And in 1988, correct?
MS. MCKINNY: Yes.
MR. DARDEN: Now, the two gentlemen seated here behind me, who are these two gentlemen?
MS. MCKINNY: Mr. Ron Regwan, Mr. Matthew Schwartz. They are my attorneys.
MR. DARDEN: And they are entertainment attorneys?
MR. COCHRAN: Object, your Honor. That is irrelevant and immaterial.
THE COURT: Sustained.
MR. DARDEN: You told us a little while ago that the tapes and transcripts were not for sale; is that correct?
MS. MCKINNY: That's correct.
MR. COCHRAN: Just a moment. Misstates the evidence, your Honor.
THE COURT: Overruled.
MR. DARDEN: May I reask that?
THE COURT: I think she answered it.
MR. DARDEN: Oh, okay.
MR. DARDEN: They are entertainment lawyers?
MR. COCHRAN: Objection, your Honor. You sustained an objection to that.
THE COURT: Sustained.
MR. DARDEN: Isn't it true that Mr. Regwan and Mr. Schwartz have been attempting to sell those transcripts and those tapes?
MR. SCHWARTZ: Objection, your Honor, attorney-client privilege.
MR. COCHRAN: May we approach, your Honor?
THE COURT: Overruled.
MR. COCHRAN: Objection, your Honor, also. I'm objecting also.
THE COURT: Overruled.
MS. MCKINNY: I can answer the question?
THE COURT: You can answer the question.
MS. MCKINNY: The question is isn't it true that they have been attempting to sell those tapes and transcripts?
MR. DARDEN: Yes.
MS. MCKINNY: No, that is not true.
MR. DARDEN: I would like to show you--may I have a moment to confer with counsel?
THE COURT: Yes.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. DARDEN: Have you been attempting to sell any audiotapes other than the Fuhrman audiotapes?
MS. MCKINNY: No.
MR. DARDEN: Okay. Have you been attempting to sell any transcripts other than the transcripts of the Fuhrman audiotapes?
MS. MCKINNY: That question is vague to me. Could you rephrase it? It makes it sound like I'm attempting to sell the tapes and transcripts and I'm not, so I would appreciate it if you would rephrase it.
MR. DARDEN: Your Honor, what is next in order?
THE COURT: I'm sorry?
THE CLERK: 603.
THE COURT: 603. People's 603.
(Peo's 603 for id = 4-page document)
MR. DARDEN: I have a four-page document that is dated August 18, 1985. It is entitled "Nondisclosure agreement." It is on the letterhead of Regwan and Schwartz and their law offices. May I approach the witness, your Honor?
THE COURT: You may.
MR. DARDEN: May I remain for a few moments?
THE COURT: Yes, you may.
MR. DARDEN: Let me show you what has been marked People's 603, please. You can take it?
MS. MCKINNY: (Witness complies.)
MR. DARDEN: Is that document entitled "Nondisclosure agreement"?
MS. MCKINNY: Yes.
MR. DARDEN: Is it on your attorney's letterhead?
MS. MCKINNY: Yes, it is.
MR. DARDEN: Is it dated August 18, 1995?
MS. MCKINNY: That's correct.
MR. DARDEN: And you are their client?
MS. MCKINNY: I am.
MR. DARDEN: And paragraph 2 in that document, does it read as follows:
MR. COCHRAN: I object, your Honor, without further foundation with regard to this witness and this document.
THE COURT: Sustained.
MR. DARDEN: That document is addressed to dove publishing; is that correct?
MS. MCKINNY: That's correct.
MR. DARDEN: To the publisher, Mr. Viner?
MS. MCKINNY: I don't know that he is the publisher. It is addressed to Mr. Michael Viner, yes.
MR. DARDEN: Were the tapes, the Fuhrman tapes, submitted to Michael Viner at dove publishing?
MS. MCKINNY: No, they were not.
MR. DARDEN: Was there an attempt to submit them to him?
MS. MCKINNY: Not to my knowledge, no.
MR. DARDEN: Look at the last page of that document, if you will.
MS. MCKINNY: (Witness complies.)
MR. DARDEN: Is there a signature at the last page?
MS. MCKINNY: Yes, there is.
MR. DARDEN: And can you read that signature?
MS. MCKINNY: It is Ron Regwan.
MR. DARDEN: Now, if you could turn back to the first page, please.
MS. MCKINNY: (Witness complies.)
MR. DARDEN: Does the document contain the term--
MR. COCHRAN: Your Honor, I object. There is no foundation this witness has ever seen it.
THE COURT: Sustained. Sustained. Foundation.
MR. DARDEN: Have you ever spoken with inside edition?
MS. MCKINNY: Have I ever spoken with inside edition?
MR. DARDEN: Yeah. Yes.
MS. MCKINNY: Could you define what inside edition is? Is that a tabloid or television show, newspaper, periodical?
MR. DARDEN: Okay. You are not familiar with the term inside edition?
MS. MCKINNY: I have heard the term, yes.
MR. COCHRAN: Object to the form of the question.
THE COURT: Wait. Overruled.
MS. MCKINNY: I have heard inside edition, but I would like you to define it for me, please, so I am clear in my response.
MR. DARDEN: It is a television program. Have you ever spoken to any representative from inside edition, the television program?
MS. MCKINNY: No, I have not.
MR. DARDEN: When did you bring those tapes to California? Do you recall the date?
MS. MCKINNY: When we were subpoenaed we flew to California on July 13, 1995, and my husband and I brought the tapes and gave them to the court.
MR. DARDEN: Now, the document in your hand, you have never seen that document?
MS. MCKINNY: No.
MR. DARDEN: Did you authorize your attorneys to sell the transcript?
MS. MCKINNY: No.
MR. DARDEN: Did you authorize them to sell the audiotapes?
MS. MCKINNY: No.
MR. DARDEN: Have you ever discussed with anyone selling the audiotapes for one-half million dollars?
MS. MCKINNY: Have I discussed that with anyone?
MR. DARDEN: Yes.
MS. MCKINNY: No, I have not discussed it with anyone.
MR. DARDEN: Have you also given--given your attorneys the authority to negotiate for the sale of the Fuhrman tapes?
MS. MCKINNY: I have authorized my attorneys to determine the value of the tapes, yes.
MR. DARDEN: Okay. And that is what that document relates to then?
MR. COCHRAN: Well, object, your Honor. Calls for speculation. She has never seen a copy before.
THE COURT: Overruled. You can answer the question.
MS. MCKINNY: Thank you. I would assume, although that I have never seen this document, that this is what this relates to. It is a nondisclosure agreement.
MR. DARDEN: Doesn't the document say that the tapes are submitted so that dove publishing can decide whether or not they want to purchase--
MR. COCHRAN: Object to the form of this question, your Honor.
THE COURT: Sustained. Sustained.
MR. DARDEN: The witness--
THE COURT: Sustained.
MR. DARDEN: All right. Is it indicated anywhere on that document that the tapes are being submitted to dove publishing so that dove publishing can help you ascertain the--ascertain the market value of the Fuhrman tapes?
MR. COCHRAN: Your Honor, I object to the form of the question. She has never seen the document before.
THE COURT: Overruled.
MS. MCKINNY: Would you ask the question again, please.
MR. DARDEN: Where if anywhere on that document does it indicate that the Fuhrman tapes are being submitted to a publisher so that the publisher can help you determine the market value of those tapes?
MR. COCHRAN: Your Honor, I object to the form of that question. It is argumentative.
THE COURT: Overruled.
MS. MCKINNY: Firstly, I have never read this document. I have never seen it. I would have to read it to be able to answer that question clearly. And the tapes and transcripts were never submitted to dove publishing. They have only been given to the Prosecution and the Defense.
MR. DARDEN: If you weren't interested in selling the tapes, why then did you meet and confer with others to determine the market value--
MR. COCHRAN: Object. That is vague, your Honor--
MR. DARDEN: --of the tapes?
THE COURT: Overruled.
MR. COCHRAN: Object to the form of the question. It is vague.
THE COURT: Overruled.
MS. MCKINNY: Again please, again.
MR. DARDEN: The question is this if you weren't interested in selling those tapes and transcripts, why then did you have your attorneys go out and attempt to sell them to publishers to determine the market value?
MR. COCHRAN: Assumes a fact not in evidence.
THE COURT: Sustained.
MR. DARDEN: The document--
THE COURT: Sustained. Rephrase the question.
MR. DARDEN: If you weren't interested in selling the tapes, why did you have your attorneys contact a publisher?
MS. MCKINNY: It is more to know what the value of the tapes were and I authorized my attorneys to do that.
MR. DARDEN: And that is because you were considering selling the tapes at the time?
MS. MCKINNY: No. I wanted to know what the value of the tapes were and my attorneys advised me that it was in my best interests and they would be negligent as attorneys if they didn't let me know exactly what the value--market value of the tapes and/or the transcripts would be.
(Discussion held off the record between the Deputy District Attorneys.)
MS. MCKINNY: Keep in mind I've had a great deal of material leaked and that is an aspect that I would certainly want to be considering.
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: In addition to attempting to determine the market value of the tapes, you also had your attorneys attempt to determine the market value of your transcripts of the tapes as well; is that correct?
MS. MCKINNY: That would be correct, yes. I believe--I thought that is what this document was in reference to. "Certain transcripts" I believe you have highlighted in yellow.
MR. DARDEN: Was it your testimony yesterday that you were offended when you heard Mark Fuhrman use that epithet?
MS. MCKINNY: Yes.
MR. DARDEN: Now, when you met with Miss Clark and Miss Lewis and Mr. Hodgman and myself on August 17, do you recall me asking you what you thought or what came to mind when you first heard Fuhrman use that epithet?
MS. MCKINNY: Yes, I do.
MR. DARDEN: And you told me that nothing came to mind; is that correct?
MS. MCKINNY: That's correct, that I couldn't remember anything coming to mind the first time. Your question was what came to mind the first time you heard that word, I believe.
MR. DARDEN: But you don't remember what came to mind at the time?
MS. MCKINNY: No. That would have been about ten years ago. I could not remember the first time I heard that word used what came to my mind.
MR. DARDEN: You don't remember a white police officer using this epithet in your presence and your not being offended by it?
MR. COCHRAN: Object to the form of that question and the tone of the voice.
THE COURT: Sustained. It is argumentative.
MR. DARDEN: You understand that that word is the most vile word in the English language?
MS. MCKINNY: I think it is one of the most vile words in the English language, yes.
MR. DARDEN: You think there are worse?
MS. MCKINNY: Yes, I certainly do. Why are we having this adversarial relationship? I don't understand that. It is a vile word. Why do I have to define it more so than it is?
MR. DARDEN: You wrote a screenplay, right?
MS. MCKINNY: That is accurate.
MR. DARDEN: Did you use that word in the screenplay?
MS. MCKINNY: Yes.
MR. DARDEN: Did you attempt to out and sell that screenplay?
MS. MCKINNY: Certainly.
MR. DARDEN: You are using that word in your screenplay to help make money, right?
MR. COCHRAN: Object to the form of that question, your Honor. That is argumentative.
THE COURT: Sustained. Sustained.
MR. DARDEN: Are you trying to make money off of the use of that word?
MR. COCHRAN: Object to the form of this question, your Honor. Object.
THE COURT: Overruled. Overruled. It is an appropriate question.
MR. DARDEN: When you met Detective Fuhrman you told him that you were a screenwriter?
MS. MCKINNY: That is accurate.
MR. DARDEN: And you told him that you had written other screenplays?
MS. MCKINNY: Yes.
MR. DARDEN: And how many screenplays have you written up to this point?
MS. MCKINNY: I've written about a dozen screenplays, approximately six that I would--would consider that would be in appropriate shape now to be read, but I have written about a dozen screenplays, more treatments, synopses.
MR. DARDEN: Okay. How many screenplays did you tell Fuhrman you had written when you first met him?
MR. COCHRAN: Assumes a fact not in evidence that she told him anything, your Honor.
THE COURT: Sustained.
MR. DARDEN: Did you tell Detective Fuhrman how many screenplays you had written when you first met him?
MS. MCKINNY: I don't recall telling him how many screenplays I had written, but it could have come up in conversation that I had the year before won an award for a screenplay through the Writer's Guild of America East Foundation. That could have come up.
MR. DARDEN: Now, do you have to be a member of the writer's guild to win that award?
MS. MCKINNY: No, you don't.
MR. DARDEN: Are you a member of the writer's guild?
MS. MCKINNY: No, I am not.
MR. DARDEN: You have had one screenplay published or made into a film?
MS. MCKINNY: Have I had one screenplay made into a film?
MR. DARDEN: Yes.
MS. MCKINNY: No.
MR. DARDEN: Have you had any made into a film?
MS. MCKINNY: I have had short pieces filmed, yes.
MR. DARDEN: You had a short piece called "The painter"?
MS. MCKINNY: Yes, I did.
MR. DARDEN: Okay. Who made that into a film?
MS. MCKINNY: That was directed--produced by playboy productions.
MR. DARDEN: Who directed that film?
MS. MCKINNY: Daniel McKinny.
MR. DARDEN: Your husband?
MS. MCKINNY: That's correct.
MR. DARDEN: And this piece was what, sort of soft porn kind of piece?
MR. COCHRAN: Your Honor, object to the form. Objection.
THE COURT: Sustained. This is not relevant. This is not relevant.
MR. DARDEN: When Mark Fuhrman used these words in your presence why didn't you just tell him to stop?
MR. COCHRAN: Your Honor, I object to the form of that question. I object to the form of that question.
THE COURT: Overruled.
MR. COCHRAN: Argumentative.
THE COURT: Overruled.
MS. MCKINNY: For the same reason I didn't tell him to stop when he told me of police procedures, cover-ups, other information that I felt were important for me to have a clear understanding in context of this material that I was writing. He told me many things that I thought were important for me to understand, many things I hadn't been aware of, as did other officers of the Los Angeles Police Department, as did many of the other interviews that I did and ride-alongs I went on. I was in a journalistic mode. I was not judgmental. And I needed that information to help me write a more realistic journalistic piece and I did not ask him to stop using the type of normal ordinary language he would use or other officers would use. I needed to know how he would speak.
MR. DARDEN: You told us yesterday that there was no racial subplot to the screenplay you were planning to write, correct?
MS. MCKINNY: That is accurate.
MR. DARDEN: And yet you use this epithet in your screenplay anyway; is that also correct?
MS. MCKINNY: That is true.
MR. DARDEN: Now, your relationship in 1985 with Mark Fuhrman, was it only professional?
MR. COCHRAN: Object, your Honor. This is irrelevant and immaterial.
THE COURT: Overruled.
MS. MCKINNY: He was--it was--I'm sorry. It was a business relationship. He was a technical advisor for the screenplay.
MR. DARDEN: And that is it?
MS. MCKINNY: Yes.
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: I can I have a moment, your Honor?
THE COURT: Certainly.
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: You mentioned something about cover-ups a few minutes ago; is that right?
MS. MCKINNY: I'm sorry. Again, please.
MR. DARDEN: Did you mention the term "Cover-up" a few minutes ago?
MS. MCKINNY: I did, yes.
MR. DARDEN: What you were alluding to at that time was a discussion you and Fuhrman had as it related to women police officers; is that correct?
MR. COCHRAN: Object, your Honor. Object to the form of that question as argumentative.
THE COURT: Overruled.
MR. DARDEN: Is that correct?
MS. MCKINNY: Again, please, I'm sorry.
MR. DARDEN: What you were alluding to was a conversation you had with Detective Fuhrman as it related to female police officers and the LAPD's recognition that female police officers did not perform well in violent situations; is that right?
MR. COCHRAN: Object to the form of that, your Honor. Object to the form of that question.
THE COURT: Overruled.
MS. MCKINNY: Some LAPD officers and also in relation to police procedural cover-up issues that I needed to know about.
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: When you spoke to us on August 17--can I have one moment?
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: I will get Mr. Cochran a copy of this.
(Brief pause.)
MR. DARDEN: While I look for this--strike that.
(Brief pause.)
MR. DARDEN: I neglected to bring Mr. Cochran a clean copy of this document, your Honor.
THE COURT: Why don't you show it to him.
(Brief pause.)
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: Do you recall during our August 17th interview that Miss Clark asked you specifically what you meant when you used the term "Cover-ups"?
MR. COCHRAN: Object to the form of that, your Honor.
THE COURT: Overruled.
MS. MCKINNY: Yeah, I do. Yes, I do remember us discussing that.
MR. DARDEN: Okay. Do you recall her--strike that. Do you recall telling her that what you were referring to were cover-ups in terms of the LAPD's recognition and cover-up of the fact that female officers did not perform well in violent situations, or words to that effect?
MS. MCKINNY: I don't know if it was Miss Clark or Miss Lewis who made that comment. It was one of them.
MR. DARDEN: But that was basically your response to them at the time?
MS. MCKINNY: Yes.
MR. DARDEN: Okay. Now, you asked a moment ago why we are involved in some adversarial relationship. Do you recall asking that?
MS. MCKINNY: I felt that you were. I don't feel adversarial toward you, but I felt that there was something negative coming from some of your questions, yes.
MR. DARDEN: Okay. You didn't stop him the first time he used the epithet, correct?
MR. COCHRAN: Your Honor, that has be asked and answered.
THE COURT: It has.
MR. DARDEN: Well, you didn't stop him the twentieth time he used the epithet?
MR. COCHRAN: Asked and answered.
THE COURT: That has not. Overruled.
MR. DARDEN: Correct?
MS. MCKINNY: That's correct.
MR. DARDEN: You didn't stop him the fortieth or forty-second time that he used the epithet, correct?
MS. MCKINNY: I didn't abridge his dialogue or conversation during an interview, no.
MR. DARDEN: Given the fact that you have included this epithet in your screenplay, do you feel that it is appropriate under some circumstances to utter or use this word?
MR. COCHRAN: Your Honor, I object to the form of this. Object to the form of that question.
THE COURT: Overruled. Overruled.
MS. MCKINNY: Do I personally feel it is appropriate?
MR. DARDEN: Yes.
MS. MCKINNY: No, I don't.
MR. DARDEN: Why then include it in a screenplay, a screenplay that you intend to make into a movie?
MS. MCKINNY: Because it is reflective of particular officers or officer's dialogue, feelings at a particular time. It is representative of what would be said.
MR. DARDEN: That is all I have.
THE COURT: Mr. Cochran.
REDIRECT EXAMINATION BY MR. COCHRAN
MR. COCHRAN: Miss McKinny--
MS. MCKINNY: Yes.
MR. COCHRAN: --you don't like racism, do you?
MS. MCKINNY: No.
MR. COCHRAN: But you understand that racism exists in the world? Are you aware of that?
MS. MCKINNY: Yes, I am aware of that.
MR. DARDEN: Object, your Honor. This is--
MR. COCHRAN: And the fact--
THE COURT: These are argumentative and leading. Proceed.
MR. COCHRAN: The fact that Mark Fuhrman used the "N" word more than 42 times--
MR. DARDEN: Objection. That misstates the testimony.
THE COURT: Overruled.
MR. COCHRAN: --did that make you agree with him when he was using those words?
MS. MCKINNY: (No audible response.)
MR. COCHRAN: Did you agree with him when he was using those words in that base, vile manner?
MS. MCKINNY: Of course not.
MR. COCHRAN: You have described for us that you were working as a journalist at the time; is that correct?
MS. MCKINNY: That's true.
MR. COCHRAN: And with regard to your screenplay, Men Against Women, you told us yesterday that racism was not one of the--not even a subplot; is that correct?
MR. DARDEN: Objection, misstates the testimony.
THE COURT: Overruled.
MR. COCHRAN: Is that correct?
MS. MCKINNY: That's true.
MR. COCHRAN: And so when these words, these vile insulting words came up, you weren't saying these words, were you?
MS. MCKINNY: No.
MR. COCHRAN: Who was saying these words?
MS. MCKINNY: Officer Fuhrman.
MR. COCHRAN: Who was expressing these views of cover-ups?
MS. MCKINNY: Officer Fuhrman.
MR. DARDEN: Motion to strike. Objection.
THE COURT: Overruled.
MR. COCHRAN: With regard to cover-up, he talked to you, did he not?
MR. DARDEN: Objection, there is a 352.
THE COURT: Sustained, sustained, sustained.
MR. COCHRAN: Well, your Honor, I need to be heard. I certainly do.
THE COURT: Side bar.
(The following proceedings were held at the bench:)
THE COURT: All right. We are over at the side Mr. Cochran.
MR. COCHRAN: Your Honor--
THE COURT: What is your intended question?
MR. COCHRAN: Well, my intended question was that he talked with--Mr. Fuhrman in the course of these tapes talked about cover-ups, Men Against Women or how women reacted. He opened the door, your Honor. He talked about cover-ups and he tried to limit it to Miss Clark or Miss Lewis asking the question. There are many other cover-ups that took place and we have a right to bring that up. I didn't bring that up. You limited us and I didn't do it. I sat down.
THE COURT: Mr. Darden, why did you write that up.
MR. DARDEN: I didn't bring that up. She unloaded on me, okay, and mentioned the word cover-up and I went back to it to clarify the fact that what she was talking about was I asked about recognition by the LAPD, that they recognized that female officers don't perform well in the field and that--and that--and that in Fuhrman's view the department covered that problem up. She unloaded that on me. That wasn't in direct response to a question. She unloaded that on me in front of the jury. She is their witness. It is obvious she is biased for the Defense. What am I to do? We have this highly inflammatory and volatile issue here in front of the jury. I'm trying to do my cross. She unloaded me. I tried to repair some of the damage. I did not go into the issue of cover-ups.
THE COURT: So what are you going to ask in response to this, Mr. Cochran?
MR. COCHRAN: I have the right, it seems to me, to ask the question.
THE COURT: That is not what I asked. I asked you what are you going to ask?
MR. COCHRAN: Your Honor, I resent that tone. I'm a man just like you are, your Honor. I resent that tone, your Honor. I resent that tone, your Honor.
(The following proceedings were held in open court:)
THE COURT: Ladies and gentlemen, would you please step back into the jury room, please. All right. I will see counsel in chambers with the court reporter, please.
(The following proceedings were held in camera:)
THE COURT: The record should reflect that we are in chambers with Mr. Shapiro, Mr. Cochran, Miss Clark and Mr. Darden. I have asked counsel to step into chambers. Mr. Cochran, let me just express to you some concern that I have regarding our personal relationship at this point in time.
MR. COCHRAN: Yes, your Honor.
THE COURT: I have chosen up to this point to ignore your press conference last Thursday and what I consider to be in direct contempt of this court. I have chosen to ignore that. And today when we were at the side bar, this is obviously a very volatile issue, and I asked you to direct yourself to the question that I asked, what questions were you going to ask with regards to Miss McKinny and her conversations--her testimony just now about a cover-up. And I think the record will reflect that I asked you a direct question and you started talking about something else. And I redirected your attention back to the question that I asked and apparently you have taken umbrage at that. Well, Mr. Cochran, let me tell you something. I take umbrage at your response and your reaction. And I want you to know that I have chosen to ignore it thus far and that is because of our long relationship and what I will hope will be our continuing friendship. And what I'm going to suggest that we do is that you and I both take a deep breath, take a recess and come back and talk about this again. You know, you are involved in the heat of battle. I understand that.
MR. COCHRAN: Your Honor, I was trying to and the question--but what I said was I--
THE COURT: I was trying to cut to the chase. What I should have asked and the vernacular is where are we going with that?
MR. COCHRAN: You are right about that. Perhaps my reaction was that I felt that I was a man, you are a man, we have been friends and I thought the tone--
THE COURT: Counsel, when you say something, "I am a man, you are a man," that is--that is a challenge of sorts, wouldn't you say?
MR. COCHRAN: Well, no. I was just saying I didn't want to be talked to like a school kid. I said that I felt that we do have a long relationship and the court--I felt we were the ones who were being put upon on this whole issue and I was trying to explain it and I didn't get a chance to explain it. And your Honor wanted to get right to the issue. I'm not saying you jumped me, but you said, "That is not what I asked you." I'm saying, Judge, I'm trying to get to it. So I will take a deep breath. And I am prepared now to try to tell you what I am trying to do.
THE COURT: No. I need to take a deep breath, too, Mr. Cochran.
MR. COCHRAN: Okay.
(Brief pause.)
THE COURT: I think we have sort of gotten far afield on some of our discussions here. All right. Let's take a recess.
(Proceedings in camera concluded.)
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. Mr. Cochran, did you want to make any further comment on the--
MR. COCHRAN: I would ask, your Honor, would the court allow Dean Uelmen to make that for me at this point?
THE COURT: We are in mid-sentence in your argument, counsel.
MR. COCHRAN: We were, but I would ask if he could make it because it ties in with the--
THE COURT: No, I would prefer that you conclude the--
MR. COCHRAN: May I have a second, your Honor?
THE COURT: Sure.
(Discussion held off the record between Defense counsel.)
MR. COCHRAN: May I have a second, your Honor?
THE COURT: Certainly.
(Discussion held off the record between Defense counsel.)
THE COURT: Mr. Cochran.
MR. COCHRAN: Thank you very kindly, your Honor, for this opportunity. What I wanted to indicate to the court, and I will do it as briefly as possible, is that I believe my colleague Mr. Darden opened the door when the testimony was elicited about a cover-up. Further, I think if--I think you have to, first of all, look at the thrust of their cross-examination. The impression they gave to this jury was that Miss McKinny was in some way trying to profit from these tapes, profit from the transcripts, and nothing could be further from the truth. I need hardly remind this court that we got your Honor to issue a subpoena that I went to North Carolina and we were rebuffed at the superior court, the comparable court, the superior court. We had to go all the way to North Carolina court of appeals. And these lawyers, Messers. Regwan and Schwartz, did an excellent job in fighting us to get this. She resisted coming to California. When she finally got here August 1, you saw the problems we had even getting the tapes then.
THE COURT: I am familiar with the history. Is that where you are with--
MR. COCHRAN: I think they have opened the door clearly to that. But other than that, your Honor, in addition to that--so that is the impression they give to this jury. She doesn't want to be out here. She didn't favor one side or the other. You will recall that when we were in court that day--I will get to the point--Mr. Simpson, you will recall--usually I'm sitting next to him when we talk about that, your Honor.
THE COURT: I know, I can hear most of it.
MR. COCHRAN: I understand. You will recall that when we argued about the tapes belonging to the Defense or at least we have the right to it, she went down that same day and gave a copy to the Prosecution. She interviewed with him for hours. That is why she was so taken aback about what she perceived as negativity. You last week, your Honor--I know you don't like to be quoted, but this is a time I think I can quote you appropriately--but you said last week that it was clear--after listening to the tapes it was clear that Fuhrman wasn't describing a fictional character but describing his point of view. I mean everybody in the world knows now, if that is true, these tapes are the best evidence of what they are trying to make it, not like she is trying to embellish this. She again throws out with Michael Viner a nondisclosure agreement is to test the water. Viner or his office never ever saw these tapes or transcripts. That should be abundantly clear. I can bring that out also. The lawyers felt it was not malpractice not to know the overall value of these things.
THE COURT: Mr. Cochran, let me just cut to the chase here. The issue that I was concerned with--I agree with you that it is probably appropriate redirect to go back and discuss the procedural fight to get those tapes and that Miss McKinny resisted all the way to the appellate courts in North Carolina, and that once she was compelled to come here to the state of California then she cooperated with both sides. I don't have a problem with that.
MR. COCHRAN: All right.
THE COURT: I could probably do that in five questions.
MR. COCHRAN: Okay.
THE COURT: The second issue--
MR. COCHRAN: We will see if we can do that.
THE COURT: The issue about selling the tapes or I'm sure Miss McKinny has had the opportunity to discuss with her lawyers the fact that the tapes and transcripts were never transmitted to dove audio or to anybody else for commercial exploitation purposes, that is fair game, because that is an issue that was brought up. I'm more concerned about the issue that was our last side bar.
MR. COCHRAN: Let me address that, your Honor. I think that clearly when Mr. Darden got the answer about a cover-up or cover-ups he then went back, as he indicated, to try and repair the damage, his own words, and what he did was try to elicit from her, well, you were just talking about when you talked about cover-up the LAPD covering up Men Against Women and that sort of thing. That is not correct at all. And this witness will say, as an offer of proof, that first of all, there were many cover-ups, as you know, from the tapes. There were cover-ups in the very beginning when officers would go out and they didn't have probable cause to arrest anybody and tear up their driver's license. There was cover-ups in manufacturing evidence all throughout. But specifically with regard to Men Against Women, and the instance you will recall--
THE COURT: I think--my recollection of Miss McKinny's transcripts is which she talks about cover-ups, she talked about it in terms--she used the term cover-up in the terms of an incident of police misconduct having occurred and then there being a concerted effort by the officer--
MR. COCHRAN: Code of silence.
THE COURT: --by the officer involved to make sure that nobody was disciplined. For example, my recollection of the plot was that one of the female officers was supposed to have arrested somebody, then the transporting officers then beat the arrestee out of her presence.
MR. COCHRAN: Ruptured his spleen.
THE COURT: Ruptures his spleen with the batons and then she come in and says, I didn't see any of that, I don't know who transported, et cetera, et cetera, and becomes part of it. That was my understanding of her discussion of cover-ups.
MR. COCHRAN: Right. Well, you are right on with regard to that. It is much more than what he has elicited, and clearly he has opened the door on it. It is about a cover-up where to be one of the boys this female then covers up the death of a suspect whom she has choked out, but she doesn't kill the suspect. The suspect is killed by these other male officers who beat this person to death by rupturing his spleen.
Actually, that is not fictional, by the way, as this community is going to find out. The other issue, your Honor, is this: That she talks about other cover-ups also. I mean, she talks about cover-ups all the way through, so I'm saying you can't just limit it to this instance of the Men Against Women situation. They opened the door.
THE COURT: Which hence brings me to my question, where are you going? What specific instances are you going to?
MR. COCHRAN: Well, I would like to--let me tell you the question I would like, your Honor, specifically. I would like to ask her what did you mean when you said cover-up? And I think she will then tell us about these in the Men Against Women context, but also in the other contest where Detective Fuhrman talked about covering up. And the court can ask her. I'm not testifying. She would be the one so indicating. And I think we are permitted to go after that. And the final thing I will say on this was I think they have opened the door by virtue of the fact that their attack on this witness, this unnecessary needless attack, and you told them about not going into this, and yet they did it, when they did that they opened the door to these tapes. And I think we would get a chance to do that. Your Honor, for instance, Mr. Darden's questions about as though she was egging Fuhrman on using racial epithets or you didn't try to stop him or whatever, that is almost when they would in Roots--and they used the "N" word in Roots, that you couldn't talk about racism. This play is about sexism. This lady is opposed to sexism. In literary circles, in art, that is how you address things so people start to discuss it and maybe bring about changes. You don't buy into it necessarily so. Now that that has been done, this door has been opened, it seems to me that we should be permitted to do this, and that is why, you know, I wanted to make this statement to the court. Certainly you cleared the first part of it, but I think the rest of it is also clear, your Honor. I'm being handed something. May I read something to the court my counsel just shared with me, your Honor? This has to do with--let me just read this and I think it puts it in perspective about lying and covering up. This is describing--there was our no. 10 describing the necessity of police officers to be willing to lie. "Well, I really love being a policeman when I can be a policeman. It is like my partner now. He is so hung up with the rules and stuff"--
THE COURT: "He has more morals than he has got hair."
MR. COCHRAN: Remember that? "You just don't fucking even understand. The job is not rules. This is a feeling. Fuck the rules. We will make them up later. He's a college graduate, as you know, a catholic college," et cetera. "He was going to be a priest," et cetera, "And he has got more morals than he has got hair. "What do you mean he has got more morals?" "He doesn't know how to be a policeman, especially can't lie. Oh, you make me fucking sick to my guts. You know, you do what you have to do to put these fucking assholes in jail. If you don't, you fuckin' get out the fuckin' game. He just wants to be one of the boys. He doesn't want to play--pay the dues, so how does he deal with it? He doesn't lie. Well, I know for a fact in this Internal Affairs investigation he has a 10-day suspension, he will roll." He goes on to say:
"He will drop a dime on me. He will squeal." Now, Judge, that is cover-up and that is another cover-up, and clearly I think you understand that and that is the point we are trying to make. We are now permitted to at least play this to the jury, to at least ask questions about it. He can't talk about cover-ups and then try to put it on this will little tiny frame, that he was only talking about Men Against Women, because that is not even clear. We can clear that up plus show, I think as a representation to this court, that there are other instances of cover-up and they opened the door. You ruled, we all understood that, but they opened the door, Judge. So I'm asking you to allow to us do this and let's get it over with so we can finish our case. They have opened the door.
(Discussion held off the record between Defense counsel.)
MR. DARDEN: Can I respond?
MR. COCHRAN: Also, you know, one of the other issues that we are going to be talking is cover-ups e probable cause, lying to try and put together probable cause, but that is another issue, but I think that this is a very germane thing. We have sat over there. It has now happened and it seems to me we should be permitted to do this, Judge.
THE COURT: Mr. Darden.
MR. DARDEN: Your Honor, in 10:14 and 44 seconds I asked this question: "When Mark Fuhrman used these words in your presence why didn't you just tell him to stop?" And after an objection Miss McKinny volunteered:
"For the same reason I didn't tell him to stop when he told me of police procedures, cover-ups and other information" and so an and so on. So I didn't invite this witness to bring cover--the term "Cover-ups" into these proceedings in her testimony, Judge. I asked her about a specific word. We are talking about a specific epithet. But she brought it in. And yes, I did attempt to repair some of the damage and so now the issue before the court is now that the witness has volunteered this, does that now allow counsel--and by the way, Miss McKinny is his witness, not the Prosecution's witness--does that now allow counsel to drag in more inflammatory and irrelevant material before this jury? I don't think so. I don't think that is fair. I don't think it has any probative value at all. And what I was attempting to show the witness was an excerpt from a transcript of a conversation she and I had on August 17th in my office, and if I could just read into the record briefly what that excerpt says, and this is Miss McKinny at page 5, line 19: "He expressed very strongly that it would be wonderful if someone would write a story from his point of view, from the men's point of view, about why women weren't succeeding in those areas and what they couldn't do and what kind of cover-ups were occurring in terms of that and that interested me." Okay. So even my subsequent follow-up questions were directed to Mark Fuhrman's belief that the department was covering up the fact that female officers did not perform well in violent situations. Okay. I wasn't getting into all this other stuff. And you know, Mark Fuhrman did discuss other kind of cover-ups and other issues like that in his taped interviews with Miss McKinny and I concede that and we have conceded all of this all along, but my point today is this: Well, it is a personal point of view. Well, in any event I don't think this opens the door to any of this. I think it is time to take control again of these proceedings and let's move along with the issues that are relevant.
MR. COCHRAN: May I respond, your Honor?
THE COURT: Briefly.
MR. COCHRAN: Certainly, your Honor. Thank you. This, your Honor, is about their attack on her credibility and the court has said many times, been very concerned many times about leaving an unfair and misleading impression upon this jury. You told the Prosecution last week how they should conduct this cross-examination. What Mr. Darden did was he asked the famous "Why" questioned.
THE COURT: I offered them some advice.
MR. COCHRAN: Yeah, and I didn't mean--
THE COURT: As I oftentimes offer you advice.
MR. COCHRAN: Both sides, yes, but you made a suggestion. They didn't follow it. They asked the why question. This answer that he got and then he went into it further in cover-up, and when he does that there is much more to it than that, and it is wrong and they attacked her credibility, Judge. And you have heard those tapes and that is unfair. That is a misleading impression to this jury and they are using your ruling as a shield. Using the shield as a sword against us and against Mr. Simpson specifically. And so that is not right, your Honor, and we have a right, it seems to me, under these circumstances, to plumb this area, to him bring out what you deem appropriate in this area, and we are not going to belabor it but we have an absolute right. They opened the door. I mean, this isn't anything we did. And we did our examination and sat down. We are back up here now because of something they did and I think we have a right to do that. And in the interest of justice and truth we have a right to do that also. Also in the interests of a lady who fought getting out here, to malign her in front of this jury and give that wrong impression is not right, so I think the court would want to allow to us straighten that out on each of these areas and point out there is more to this cover-up regarding Men Against Women but also there are other cover-ups that she was talking about. And when you ask "Why" questions you get those answers, your Honor, and that is the thing. That is the point that come about and I think that the record is very clear in this regard and I would ask the court to rule and allow to us do it and we will be--I will be--you said five questions. We will be very quick. I will try to do the whole thing in ten or fifteen questions. In fact, I will take your advice if you want to give me some of that.
THE COURT: All right. Thank you, counsel. All right. As to the question regarding the procedural history as to how the tapes and transcripts got to California and the fact that Miss McKinny did resist through the appellate courts in the North Carolina courts, that is an appropriate line of questioning. As to the discussions regarding dove audio and the nature of that agreement, that is appropriate redirect examination based upon the cross-examination. As to the mention of cover-ups, the problem I have here is that the answer where Miss McKinny mentions cover-ups was a nonresponsive answer. The question was concerning tolerating the use of the "N" word or at least not mentioning it in response to the--not making any mention in response to the use and then adding gratuitously the issue regarding cover-ups. However it is phrased in the context of a specific statement by Miss McKinny made to the District Attorneys, that statement has been made available to the Defense. Mr. Cochran, you may recross--excuse me--redirect your examination as to that statement made to the District Attorney's office. All right. But that is the limitation.
MR. COCHRAN: So that I'm clear, I can plumb that particular area as to what you meant by "Cover-up" in that area; is that right?
THE COURT: That particular area about Men Against Women, inadequacy of woman police officers--
MR. COCHRAN: All right.
THE COURT: --alleged.
MR. COCHRAN: All right.
THE COURT: All right. Let's have the jury, please.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Miss McKinny, would you resume the witness stand, please.
MS. MCKINNY: Yes.
THE COURT: Thank you. All right. Thank you, ladies and gentlemen. Please be seated. All right. The record should reflect that we have been rejoined by all the members of our jury panel. And Mr. Cochran, you may continue with your redirect examination.
MR. COCHRAN: Thank you very kindly, your Honor. Good morning again, ladies and gentlemen.
THE JURY: Good morning.
MR. COCHRAN: Good morning, ms. McKinny.
MS. MCKINNY: Good morning, Mr. Cochran.
MR. COCHRAN: If I may continue, Miss McKinny, you had shared with us, in fact I think on cross-examination, you said that you have been out here since July 13th. Was that correct? Was it July 13th?
MS. MCKINNY: No, it was incorrect.
MR. COCHRAN: What is the correct date?
MS. MCKINNY: August 13th.
MR. COCHRAN: It may just seem like July 13th, is that it, but you have been here since August 13th?
MS. MCKINNY: It has been a long time.
MR. COCHRAN: Is your family here with you?
MS. MCKINNY: Yes, my husband and boys are here.
MR. COCHRAN: Now, ma'am, with regard to your coming to California, did you voluntarily come out here and bring your tapes and transcripts out here so you could come to California and testify?
MS. MCKINNY: No, sir, I was subpoenaed by the court.
MR. COCHRAN: All right. And when you were subpoenaed by a subpoena issued by Judge Ito and this court, did you resist and fight that subpoena?
MS. MCKINNY: Yes, I did.
MR. COCHRAN: And tell the court and jury what you did to fight that subpoena.
MS. MCKINNY: I hired Mr. Regwan and Mr. Schwartz and they--
MR. COCHRAN: The two gentlemen seated there?
MS. MCKINNY: The two gentlemen seated there, and they flew to North Carolina and fought the subpoena in court there with Mr. Cochran and Mr. Bailey.
MR. COCHRAN: So in other words, you first met me in North Carolina about a month ago; is that right?
MS. MCKINNY: That's correct.
MR. COCHRAN: And you fought this subpoena at that time; isn't that correct? Winston Salem, North Carolina?
MS. MCKINNY: Yes.
MR. COCHRAN: In fact, you won in the initial hearing; isn't that correct?
MS. MCKINNY: My attorneys did as well as a local firm with whom they were working.
MR. COCHRAN: All right. And thereafter--
THE COURT: Excuse me, Mr. Cochran. I think there is--there is an impression here, you said that you were in North Carolina, I think needs to be--need or made clear to the jury that you were on one side and Mr. Regwan and Mr. Schwartz were on the other side at that time.
MR. COCHRAN: Yes, your Honor. Thank you very kindly.
MR. COCHRAN: When we were in Winston Salem, North Carolina, on a Friday morning you had your two fine lawyers, Messers. Regwan and Schwartz, right?
MS. MCKINNY: That's correct.
MR. COCHRAN: But local counsel there in Winston Salem, right?
MS. MCKINNY: Yes.
MR. COCHRAN: And on the other side was myself, Mr. Bailey and our local North Carolina counsel; is that correct?
MS. MCKINNY: That's correct.
MR. COCHRAN: All right. And then at that point the Judge in North Carolina ruled for you so you wouldn't have to come to California; isn't that right?
MS. MCKINNY: That's correct.
MR. COCHRAN: Then we continued to fight this matter and it went up to the North Carolina court of appeals; isn't that right?
MS. MCKINNY: That's right.
MR. COCHRAN: And that is where we won at that point; is that right? By "We" I mean Mr. Simpson's side won at that point?
MS. MCKINNY: That's correct.
MR. COCHRAN: And I presume nobody was reimbursing you for the money you were spending? Lawyers aren't free, are they?
MR. DARDEN: Objection, irrelevant.
THE COURT: Overruled.
MR. COCHRAN: Nobody was--in other words, nobody was helping you pay for these lawyers you had back there, were you?
MS. MCKINNY: No.
MR. COCHRAN: And at some point when the North Carolina court of appeals upheld Judge Ito's subpoena, you then agreed to come to California; is that correct?
MS. MCKINNY: I don't believe I had a choice. Certainly I would.
MR. COCHRAN: When the final court ruled you then came to California; is that right?
MS. MCKINNY: Yes.
MR. COCHRAN: And that was only after then when you produced and delivered these tapes; is that correct?
MS. MCKINNY: That's correct.
MR. COCHRAN: All right. And once you came to California with these tapes and these transcripts, the same date that you delivered them to the Defense, Mr. Simpson, you also delivered them to the Prosecution on that same date, did you not?
MS. MCKINNY: That's correct.
MR. COCHRAN: And you tried to cooperate with them, didn't you?
MS. MCKINNY: I have wanted to cooperate with the court, the Prosecution and the Defense, yes.
MR. COCHRAN: In fact, Mr. Darden asked you if you came to California on August 13th. It was August 17th as he asked that you came down in this building in the D.A.'s office and met with all the D.A.'s and talked with them; isn't that right?
MS. MCKINNY: That's right.
MR. COCHRAN: And in that meeting they tape-recorded everything you had to say, didn't they?
MS. MCKINNY: They did.
MR. COCHRAN: And you also gave them a copy of your screenplay, didn't you?
MS. MCKINNY: Yes, I did.
MR. COCHRAN: You cooperated fully, right?
MS. MCKINNY: Yes.
MR. COCHRAN: Now, with regard to your work as a screenwriter, also you described for Mr. Darden that you had won an award at some time in the past through the Writer's Guild of America. Tell the jury about that award and whether or not there was a cash stipend that went along with that award.
MR. DARDEN: Objection. It is irrelevant.
THE COURT: Overruled.
MR. COCHRAN: You may answer.
MS. MCKINNY: Yes. It was an award I won in 1984 through the Writer's Guild of America East Foundation, so it was a competitive award for screenplays and there was a cash stipend, and along with that a request that you write another screenplay with a mentor of your choice. The cash stipend I used to purchase a computer and my laptop.
MR. COCHRAN: All right. You have done other screenplays in addition to this one Men Against Women; isn't that correct?
MS. MCKINNY: That's correct.
MR. COCHRAN: Now, you shared with us and this jury that the premise of Men Against Women is sexism; is that correct?
MS. MCKINNY: Yes.
MR. COCHRAN: And are you opposed to sexism?
MR. DARDEN: Objection, irrelevant.
MS. MCKINNY: Yes.
THE COURT: Overruled.
MR. COCHRAN: Yet you write a play about sexism, right?
MS. MCKINNY: That's correct.
MR. COCHRAN: And would you describe for the jury why as a writer you write a play about sexism?
MS. MCKINNY: It was a topic I wanted to explore from the man's point of view and the woman's point of view to try to understand better why some men would be so upset by what they felt as the incapable abilities (Sic) in some areas of high crime that they would form an organization called Men Against Women and be a part of that and why some women would be upset with some of the things that men were doing in making it difficult for them to perform their jobs, embarrassing them or humiliating them. So I wanted to try to have--to explore those issues and--and develop some kind of a dialogue or discussion.
MR. COCHRAN: Now, I asked you a question before with regard to the whole concept of racism and writings regarding racism. During the time that you--1985, when you first encountered this man, Mark Fuhrman, you have described for us I believe that you were employed at UCLA working with Terry Donohue; is that correct?
MS. MCKINNY: I was employed at UCLA working under the auspices of coach Terry Donohue in conjunction with the college of letters and sciences, yes.
MR. COCHRAN: All right. In that connection did you work frequently with African American athletes?
MS. MCKINNY: Yes, I did.
MR. COCHRAN: Would you describe for the court what you did during that time, and the jury.
MS. MCKINNY: The--sorry. The NAA--the National Association--sorry.
MR. COCHRAN: NAACP?
MS. MCKINNY: No, not the NAACP.
THE COURT: NCAA?
MS. MCKINNY: Yes, NCAA.
MR. COCHRAN: Alphabet organizations.
MS. MCKINNY: Yes.
MR. COCHRAN: NCAA?
MS. MCKINNY: Had demanded that athletes be studying courses in their field of expertise and not taking any class, so it was incumbent upon the athletic department during that period to hire educators who they felt would be able to work with athletes, high-risk athletes, athletes they felt might need extra counseling, extra tutorial time and understanding time management and study skills. So they hired--they would hire someone such as myself to work with what they called high-risk athletes and that is what I did during that time.
MR. COCHRAN: And would some of these high-risk athletes be African American youngsters?
MS. MCKINNY: In the beginning they were, yes.
MR. COCHRAN: And did you interact with them on a daily basis?
MS. MCKINNY: Yes.
MR. COCHRAN: Did you enjoy that work?
MS. MCKINNY: Yes, very much.
MR. COCHRAN: You were asked some questions about a document that Mr. Darden marked and at the top of it is called "Nondisclosure agreement." May I approach, your Honor?
THE COURT: You may.
MR. COCHRAN: Do you know what a nondisclosure agreement is, Miss McKinny, generally?
MS. MCKINNY: Generally I do.
MR. COCHRAN: And what is it?
MS. MCKINNY: I have just recently learned what a nondisclosure agreement is. Umm, it is an agreement that you would give to another party and what it does is ask them not to discuss the material, not to show the material, not to copy the material. They cannot disclose or talk about the product or the material to anyone else.
MR. COCHRAN: All right.
MS. MCKINNY: As I understand it. Is that accurate? That is my understanding.
MR. COCHRAN: I think so. As I understand the letter that is placed before you, August 18, 1995, from Mr. Michael Viner--address to Michael Viner to your lawyers, you had never seen that before Mr. Darden showed it to you; is that correct?
MS. MCKINNY: That's true.
MR. COCHRAN: And with regard to since you came to California, have you at any time ever authorized anyone to try and sell these tapes or screenplay--strike that--these tapes or transcriptions?
MS. MCKINNY: No.
MR. COCHRAN: All right. And with regard to your lawyers, did they at some point tell you that it would be malpractice if they didn't try to find out for you what the value of these tapes and transcripts are worth?
MR. DARDEN: Objection, hearsay.
THE COURT: Overruled.
MR. COCHRAN: Did they tell you that?
MS. MCKINNY: Yes, they did.
MR. COCHRAN: Did they try to find out the value of these tapes and transcriptions?
MS. MCKINNY: Yes.
THE COURT: Mr. Cochran, do you need to stand there, because you are blocking juror no. 7?
MR. COCHRAN: No, I don't.
THE COURT: Okay.
MR. COCHRAN: Thank you, your Honor.
MR. COCHRAN: Now, in that connection, even though you now found out the value of these items, and I won't ask you what the value is, you still have not tried to sell these, have you?
MS. MCKINNY: No, I have not.
MR. COCHRAN: What you do want to sell is your screenplay Men Against Women; isn't that right?
MS. MCKINNY: Yes, that would be lovely.
MR. COCHRAN: That is what you want to do; isn't that right?
MS. MCKINNY: Yes.
MR. COCHRAN: Now, ma'am, you mentioned, in response to one of Mr. Darden's questions about specific cover-up as relates Men Against Women--and I want to ask you in that regard what did you mean when you talked about cover-up as relates to Men Against Women in this screenplay that you ultimately wrote? Would you tell us about that?
MS. MCKINNY: Yes. One of the reasons why I was discovering that some women were having a difficult time being accepted into the police department in certain male circles--
MR. DARDEN: I'm going to object at this time. Pardon me. I'm going to object at this time. It is nonresponsive.
MR. COCHRAN: It is responsive, your Honor.
THE COURT: Overruled.
MR. COCHRAN: You may continue.
MS. MCKINNY: In certain circles officers didn't trust their confidence or their ability--
MR. DARDEN: Object at this time, your Honor.
THE COURT: Next question.
MR. COCHRAN: Can you continue and tell us--can you answer the question, please?
MR. DARDEN: Objection, your Honor.
THE COURT: It is turning into a narrative. Why don't you ask her the next question, counsel.
MR. COCHRAN: All right, your Honor.
MR. COCHRAN: When you--Mr. Darden asked you about this cover-up as relates Men Against Women, can you succinctly state for this jury what you meant and what you had reference to?
MS. MCKINNY: Yes.
MR. DARDEN: I'm going to object to the form of that question.
THE COURT: Overruled. Go ahead and answer the question.
MS. MCKINNY: Some women on the police department were not willing to follow--
MR. DARDEN: Objection. Your Honor, I'm sorry, may we approach?
THE COURT: No. Overruled. Answer the question, Miss McKinny, please.
MS. MCKINNY: Some women on the police department were not willing to adhere to some of the cover-ups that men were--
MR. DARDEN: Objection, your Honor, 352.
THE COURT: Ask another question.
MR. COCHRAN: Well, you said that some women on the police department were not willing to adhere--
MR. DARDEN: Your Honor, may we approach, please?
THE COURT: This is not the topic, counsel. Let's redirect back into that topic.
MR. COCHRAN: All right, your Honor.
MR. COCHRAN: With regard to this subject of cover-up, can you tell us what you had reference to specifically in the area that Mr. Darden asked you about cover-ups as relates women and men on the Los Angeles Police Department?
MR. DARDEN: Objection. The question is vague. 352.
THE COURT: Overruled. Miss McKinny, we are speaking about the specific topic about the controversy about women as police officers in areas of high violence or high crime, the topic of your book.
MS. MCKINNY: Right. That is the sexism issue that relates to why women were unable to cover-up some issues the same way men were and it is related. They are interchangeable.
MR. DARDEN: Objection, your Honor.
THE COURT: Overruled.
MS. MCKINNY: They are interchangeable. Sexism is what I was looking into, but what I found out was--
MR. DARDEN: Objection.
MS. MCKINNY: --related to cover-ups, that men were--
MR. DARDEN: Objection, Judge.
THE COURT: Overruled.
MR. COCHRAN: Your Honor, I couldn't hear the last answer.
THE COURT: Finish the answer.
MR. COCHRAN: Finish, please.
MS. MCKINNY: Sexism was the issue that interested me, what I was looking into, but what I was finding was that--
MR. DARDEN: Objection, conclusion.
MR. COCHRAN: Can she finish her answer?
THE COURT: Overruled.
MS. MCKINNY: What I was finding was that sexism is inextricably related to certain cover-ups that some men on the police department are doing and some women are not able to agree with that or follow along those lines and that was a huge schism between men and women.
MR. COCHRAN: And in that connection can you give us like an example of this, of this schism between Men Against Women where--as a result of a cover-up?
MR. DARDEN: 352, your Honor.
THE COURT: Sustained. Sustained. We've covered it.
MR. COCHRAN: May I have a second, your Honor?
(Discussion held off the record between Defense counsel.)
MR. COCHRAN: I will ask another question in this regard, your Honor.
MR. COCHRAN: Did Mark Fuhrman ever explain to you why he wouldn't trust a woman in this--from the standpoint of cover-up?
MR. DARDEN: Object, your Honor.
THE COURT: Sustained. It is not relevant.
MR. COCHRAN: Now, Mr. Darden asked you a lot of questions about why you didn't stop Mark Fuhrman from using this "N" word or whatever. Do you recall those questions?
MS. MCKINNY: Yes.
MR. COCHRAN: And is there any doubt in your mind now as you sit here that Mark Fuhrman used this horrible word 41 or more times during the time that you were talking to him? Any doubt in your mind at all?
MR. DARDEN: Misstates the testimony.
THE COURT: Overruled.
MS. MCKINNY: No.
MR. COCHRAN: And those were his words coming from his mouth; is that right?
MS. MCKINNY: That's correct.
MR. COCHRAN: Those weren't your words, were they?
MS. MCKINNY: No.
MR. COCHRAN: Your Honor, before I conclude, may I approach just for a moment, please?
THE COURT: With the court reporter, please.
MR. COCHRAN: Thank you.
(The following proceedings were held at the bench:)
THE COURT: All right. We are over at the side bar. Mr. Cochran.
MR. COCHRAN: Thank you, your Honor. The reason I wanted to approach is I think we should be permitted to play--there are certain portions of the tape which I think are now open that deal with Men Against Women. My colleagues are telling me we can find it. That is fair, from the question, and what we have been talking about dealing with Men Against Women and cover-ups. And to the extent that is in there, I would like an opportunity to do that. I'm not trying to delay. I think we should be able to rule--that if you don't rule all of it, then that portion that relates to cover-ups, Men Against Women, and I would like an opportunity to do it.
THE COURT: Do you want an opportunity to find it and review it and see if you want to do it?
MR. COCHRAN: I want to try to do it. So we don't delay it, I could put Hodge on right after this, and it is going to be very limited, by the way, and then could I bring her back if I do find that, if you will permit us to do so. We can do it and have over the lunch hour to do that.
MR. DARDEN: You issued an order related to McKinny, written order. You issued an order today regarding cover-ups. None of it has been followed, not one iota in no manner, no way, no how. Where are we going now? Where are we going now? You know, there is supposed to be rules followed by both sides so that counsel knows, you know how, to plan a case, how to examine witnesses. All these rules seem to be getting thrown out the door, Judge. You just limited him supposedly to a passage and a transcript, but now we have gone into Mark Fuhrman and cover-ups and how male officers--female officers won't cover-up for male officers and all this other nonsense. Okay. I mean, where is 352? Okay? None of this has any probative value. It is--shut this down and get this witness out of here. I mean, have you watched the jury? Have you watched their faces as all these epithets roll off of Mr. Bailey's tongue and Mr. Cochran's and everybody else's? At some point, you know, we get to the point where we are not getting a fair trial.
MS. CLARK: We are there.
MR. UELMEN: Your Honor, if I could just interject?
THE COURT: No. No, you may not.
MR. COCHRAN: I would like that opportunity, your Honor. This is nothing we opened up. They opened it up.
THE COURT: Well, no. Mr. Cochran, it is not an issue that you didn't open it up. That was a nonresponsive answer.
MR. COCHRAN: Well, we will talk about that later.
THE COURT: No. The question to Miss McKinny was did you stop him from using the "N" word? And then she goes on to say that she gratuitously tosses in this cover-up stuff.
MR. COCHRAN: Judge, when you have a "Why" question, why didn't you stop him, why didn't you do this, it opens up.
THE COURT: It does.
MR. COCHRAN: When you say why you do something, that person has a right to explain to it.
THE COURT: Just because it is opened it doesn't mean I have to spend court time going into it.
MR. COCHRAN: What we are talking about is misinforming the jury in some tiny passage.
THE COURT: Mr. Cochran, excuse me. Forgive me for interrupting you, but the reason I'm doing that, what I'm going to suggest we do is finish your redirect that you have now.
MR. COCHRAN: Okay.
THE COURT: We will hit the lunch hour shortly, in any event. Over the lunch hour you can find your excerpt.
MR. COCHRAN: Okay.
THE COURT: I don't recollect the particular excerpt we are talking about.
MR. COCHRAN: What I want the opportunity to look at--
THE COURT: We will look at it. If she is still available, if it is an appropriate section, you can recall her. If not, we will move on.
MR. COCHRAN: Okay. So we save some time, I will say something like when I finish "No further questions." If they have further questions, I would like to move to the next witness so we won't lose any time on that, but I will say "No further questions at this time" so I will have that opportunity.
MR. DARDEN: If she returns after lunch I will impeach her with her love letters to Mark Fuhrman.
MR. COCHRAN: Your Honor, if they have got something else--
MR. DARDEN: Let's keep on going with this. This is ridiculous.
MR. COCHRAN: This is how we got into this problem, by attacking her.
MR. DARDEN: We got into this problem because we are chasing down issues that have nothing to do with this trial. If Mr. Simpson is acquitted just because Mark Fuhrman uttered an epithet, well, then there is no justice, Judge.
MR. COCHRAN: It won't be because of that because I would like to move ahead if I can.
THE COURT: All right. Let's proceed.
MR. COCHRAN: Thank you.
(The following proceedings were held in open court:)
THE COURT: Mr. Cochran.
MR. COCHRAN: Just two other questions, your Honor.
MR. COCHRAN: When you indicated that Mr. Fuhrman had used this word some 41 or more times, much how do you know that? Did you count them yourself from the transcripts and the tapes?
MS. MCKINNY: No, I did not count them.
MR. COCHRAN: All right. You have seen them, however, in the various and sundry documents filed with this court?
MR. DARDEN: Objection, your Honor.
THE COURT: Leading.
MR. COCHRAN: Okay. Have you had occasion to review any document filed with this court with regard to the use of that word?
MR. DARDEN: This is irrelevant.
THE COURT: Overruled.
MS. MCKINNY: Yes, I have reviewed the offer of proof submitted by the Defense.
MR. DARDEN: Objection.
THE COURT: Basis?
MR. DARDEN: Irrelevant.
THE COURT: Overruled.
MR. COCHRAN: You have counted those documents, right?
MS. MCKINNY: Yes.
MR. COCHRAN: All right. Now, I have nothing further at this point, your Honor.
THE COURT: All right. Recross.
RECROSS-EXAMINATION BY MR. DARDEN
MR. DARDEN: Miss McKinny, you testified in North Carolina on July 30th; is that correct?
MS. MCKINNY: I don't recall the exact date. That sounds close.
MR. DARDEN: Would it refresh your recollection if I showed you a transcript? Sorry. The date is wrong on the transcript. In any event, are you aware that the D.A.'s office attempted to subpoena these tapes from your attorneys on July 14th?
MS. MCKINNY: Again I don't--
MR. DARDEN: Are you aware that the D.A.'s office obtained a court order from the Judge attempting to subpoena to this court these very same tapes from your attorneys on July 14th?
MR. COCHRAN: Object to the form of the question. Assumes a fact not in evidence.
THE COURT: Overruled.
MS. MCKINNY: No.
MR. DARDEN: Are you aware that on July 10th the D.A.'s office addressed the court and advised the court of the existence of these tapes and sought guidance from the court in terms of recovering these tapes?
MS. MCKINNY: On July 10th?
MR. DARDEN: Yes.
MS. MCKINNY: Again, please, I'm--
MR. DARDEN: Yes.
MS. MCKINNY: And did what? Could you say what you did again?
MR. DARDEN: That we went to Judge Ito and told him that we heard of the existence of these tapes and we asked the court for guidance and help in obtaining these tapes and causing them to be delivered to the court?
MS. MCKINNY: No, I'm not--I am not aware of that.
MR. DARDEN: Just so it is clear, when was it that you authorized your attorneys to contact media entities--entities to determine the value of the tapes and transcripts?
MR. COCHRAN: Object to the form of that question, your Honor. There is no testimony about media entities.
THE COURT: Rephrase the question.
MR. DARDEN: When was it that you authorized your attorneys to contact any person or any organization or any business or corporation?
MS. MCKINNY: I don't recall a specific date that I authorized my attorneys to do that.
MR. DARDEN: Do you recall which month?
MS. MCKINNY: Which month?
MR. DARDEN: Yes.
MS. MCKINNY: It would have to be July or August.
MR. DARDEN: Okay. Well, do you know which one?
MS. MCKINNY: No, I don't.
MR. DARDEN: Okay. Was there any contact with the National Enquirer.
MR. COCHRAN: Object to the form of that question. By whom, your Honor?
MR. DARDEN: By your attorneys?
THE COURT: Rephrase the question.
MR. DARDEN: Did you have your attorneys contact the National Enquirer?
MS. MCKINNY: I don't know if my attorneys have contacted the National Enquirer. They may have. I don't know.
MR. DARDEN: Okay. Did you have your attorneys contact media entities outside the United States?
MS. MCKINNY: I don't know. We were--we were contacted by people I didn't even know, and my attorneys would relay that information to me, so I don't know if for instance the National Enquirer would have called my attorneys or who would have contacted them.
MR. DARDEN: Thank you. That is all.
THE COURT: Mr. Cochran.
(Discussion held off the record between Defense counsel and the Defendant.)
(Discussion held off the record between Defense counsel.)
FURTHER REDIRECT EXAMINATION BY MR. COCHRAN
MR. COCHRAN: I presume there has been a great amount of interest in these tapes and transcripts by a lot of the media; isn't that correct?
MS. MCKINNY: That's correct.
MR. COCHRAN: But you have refused steadfastly to sell these tapes; isn't that correct?
MS. MCKINNY: That's correct.
MR. COCHRAN: And you have even sent some portions of these tapes to Mr. Mark Fuhrman; isn't that correct?
MS. MCKINNY: (No audible response.)
MR. COCHRAN: Back in 1985 or earlier?
MS. MCKINNY: Yes.
MR. COCHRAN: Thank you very kindly. Nothing further at this particular point, your Honor.
FURTHER RECROSS-EXAMINATION BY MR. DARDEN
MR. DARDEN: You said you sent tapes to Mark Fuhrman?
MS. MCKINNY: Excuse me then.
MR. COCHRAN: Transcription.
MR. DARDEN: I'm sorry, I'm asking the questions.
THE COURT: All right. Mr. Darden.
MR. DARDEN: You said you sent tapes to Mr. Fuhrman?
MS. MCKINNY: I sent transcripts.
MR. DARDEN: With regard to the tapes and the transcript, who owns those tapes or transcripts, you or Mark Fuhrman?
MS. MCKINNY: I assume I own them. They are my tapes, my transcripts.
MR. DARDEN: That is all.
THE COURT: Mr. Cochran.
MR. COCHRAN: Just one last question.
FURTHER REDIRECT EXAMINATION BY MR. COCHRAN
MR. COCHRAN: Your lawyers and you have made these tapes and these transcripts available to Mark Fuhrman and his lawyer; isn't that correct?
MR. DARDEN: Objection, your Honor.
THE COURT: Overruled.
MR. COCHRAN: Isn't that correct?
MS. MCKINNY: Yes, as well as to anyone else who has asked.
MR. COCHRAN: Others who have asked can go to your lawyer's office and listen to these things?
MS. MCKINNY: Anyone who has standing; LAPD, yes.
MR. COCHRAN: Anyone who has standing?
MS. MCKINNY: Yes.
MR. DARDEN: Just a few if the may.
FURTHER RECROSS-EXAMINATION BY MR. DARDEN
MR. DARDEN: The L.A. Police Commission has come over to take a listen to these tapes?
MS. MCKINNY: My attorney's office has been available for anyone who has standing who has called the attorneys to listen to the tapes and take copious notes on the transcript. They have spent hours, days there taking notes, but they are under protective order with only the Prosecution and the Defense actually having copies of the tapes or the transcripts.
MR. DARDEN: Okay. And the United States Department of Justice, have they been there to listen to the tapes yet?
MS. MCKINNY: I don't know.
MR. DARDEN: Has the FBI been there yet?
MS. MCKINNY: I don't know.
MR. DARDEN: They will be, won't they?
MS. MCKINNY: I don't know.
MR. DARDEN: That is all.
THE COURT: All right. Miss McKinny, at this time I'm going to allow you to be excused; however, you are subject to recall. All right?
MS. MCKINNY: Thank you, Judge.
THE COURT: All right. You may step down. All right. Is your next witness available?
MR. COCHRAN: Actually I think he may be.
THE COURT: Why don't you have Mr. Douglas check. Let me see counsel at the side bar with the court reporter, please.
MR. COCHRAN: Okay.
(The following proceedings were held at the bench:)
THE COURT: We are over at the side bar. I just want to make sure we understand Mr. Hodge is next, correct?
MR. COCHRAN: Yes. Hodge is next and I would like to use this as a possible motion in limine also. I'm going to direct him directly and I will tell you what it is going to be. Contrary to what Mr. Darden said, the arrest was on January 12, 1987; it wasn't on the 13th or whatever. He was arrested, he was laying in the alley and he was picked up and arrested by Mark Fuhrman and his partner, Tom Vettraino, and put in the car. Fuhrman turns around and says, "I told you I would get you, Nigger," and that is basically it. I understand you told me I can't go into the fact that they yanked him up by the handcuffs or they had him bent over. The other thing, he has a lawyer from Chicago and they keep talking about 1054.7. This man has never been convicted of a felony. I don't know--I don't know what this information is that they are talking about, but this lawyer is here from Chicago. He represents him back there. And he does not have any felony convictions and the lawyer would like to talk to you about that, so I don't have any problems or questions about that, but it seems to me, in view of the restrictions the court has placed on us, and I will abide by them, this is a very limited cross-examination, if Mark Fuhrman said this or not.
MR. DARDEN: I would like to hear from counsel from Illinois.
MR. COCHRAN: He is here and I would like to get him up.
MS. CLARK: I would like to address the court on this matter.
THE COURT: Are you going to handle this matter?
MS. CLARK: I may.
MR. COCHRAN: Well, your Honor--
MS. CLARK: I want to address a legal issue here, and that is that what counsel is going to attempt to do to get in through this purported statement is the insinuation that Mark Fuhrman has been threatening to get him for a long time, that there were previous contacts. This has expressly been said by the court to be inadmissible and inappropriate subject for examination. By putting in the statement that Mr. Cochran has just referred to, he is attempting to get by implication what he can't do explicitly and the jury will get the message. This has already gone on for so long and the bounds of the order have been stretched to the snapping point and counsel has pushed this envelope repeatedly with improper question after improper question attempting to elicit everything that the court has ruled inadmissible. This courtroom has been filled with sludge for the last two days. They have had more than their bite of this apple. They've had three apples, all of them. And I'm begging the court please put a stop to this and let us get back to trying this case. Mr. Hodge does not need to be heard from. The statement referred to by counsel is in violation of the court's order. It will implicitly inform the jury of what the court has said cannot be brought out and it adds nothing of probative value to what has been already established beyond any doubt about Mark Fuhrman. How many times we have to say it, I don't know, but I frankly am of the firm opinion that the People have no longer any right to a fair trial. It has been thrown out the door and all we are hearing now is the repeated epithets to make this jury forget what the evidence is. Mr. Hodge is not necessary to the Defense in any way, shape or form. They have heard it and heard it and heard it. And now we are going to bring it in one more time except even more--in a more inflammatory way. There is nothing of probative value here. The fact that Mr. Hodge is African American does not add probative value to it. The issue is not whether or not he said it to Mr. Hodge or anyone else, but whether he uses the epithet. If you think or anyone thinks that we are going to get up in front of this jury and argue that he would never address an African American in that manner, all he would do is talk about them in the third person, you are all nuts. There is no way we are going to say any such thing. The court knows that. I know the court knows that I wouldn't do it, as the court wouldn't do it. This is a concession and we have been conceding all throughout. We have not been fighting this. We have taken it on the chin. But now we are getting kicked in the guts. This is below the belt and this is not fair.
MR. COCHRAN: First of all, they are violating the two-lawyer rule, but we have ruled on this and we are up here to find out from this lawyer about the 402. I understood your ruling yesterday. Miss Clark came up to talk about it then. You told us what the ruling was. It is our witness in this area. I would like you to hear from this lawyer in case it becomes an issue.
THE COURT: In case it becomes an issue?
MR. COCHRAN: He is here now.
MR. SHAPIRO: He ruled yesterday.
MR. COCHRAN: I'm telling you there is no good faith basis because he's here and they can go back and talk to him, so I wanted to let the court know that. Why we are making these speeches we can be finished with the examination.
MS. CLARK: Look whose talking about the speeches. Interesting.
THE COURT: All right. Let's proceed.
MR. COCHRAN: Thank you, your Honor.
(The following proceedings were held in open court:)
MR. COCHRAN: May I have just a second, your Honor?
(Discussion held off the record between Defense counsel.)
THE COURT: Mr. Cochran.
MR. COCHRAN: Thank you very kindly, your Honor. Your Honor, our next witness is a Mr. Roderic Hodge. Mr. Hodge, would you come forward, sir, along with his counsel, your Honor.
THE COURT: Mr. Cochran, why don't you retrieve the exhibit that is up on the witness stand first, please.
MR. COCHRAN: Certainly.
(Brief pause.)
MR. MILLER: Good morning, your Honor.
THE COURT: Your name for the record.
MR. MILLER: Judge, Irv Miller on behalf of Mr. Hodge.
THE COURT: All right. Good morning, counsel. Mrs. Robertson.
Roderic Hodge, called as a witness by the Defendant, was sworn and testified as follows:
THE CLERK: Please raise your right hand. You do solemnly swear that the testimony you may give in the cause now pending before this court, shall be the truth, the whole truth and nothing but the truth, so help you God.
MR. HODGE: I do.
THE CLERK: Please have a seat on the witness stand and state and spell your first and last names for the record.
MR. HODGE: First name is Roderic, R-O-D-E-R-I-C, Hodge, H-O-D-G-E.
THE CLERK: Thank you.
DIRECT EXAMINATION BY MR. COCHRAN
MR. COCHRAN: Good morning, Mr. Hodge.
MR. HODGE: Good morning, Mr. Cochran.
MR. COCHRAN: Would you move the microphone a little bit back, sir.
THE COURT: Just pull it closer to you.
MR. HODGE: (Witness complies.)
MR. COCHRAN: Thank you, your Honor.
MR. COCHRAN: Mr. Hodge, just tell us what city do you presently reside in?
MR. HODGE: In Dalton, Illinois.
MR. COCHRAN: And that is near Chicago?
MR. HODGE: Yes, it is just south of Chicago, eight miles out of Chicago.
MR. COCHRAN: And have you come here today pursuant to a subpoena issued by this court from Illinois?
MR. HODGE: Yes, sir.
MR. COCHRAN: And when--how long have you been in California?
MR. HODGE: As of late--approximately one week.
MR. COCHRAN: About a week waiting to testify?
MR. HODGE: Yes, sir.
MR. COCHRAN: Now, what is your occupation generally, sir?
MR. HODGE: I'm currently a communications repair technician with Ryan Jennings Communications in Chicago, Illinois.
MR. COCHRAN: All right. I would like to cut to the chase and get right to it. Did you formerly live in California before you moved to Illinois?
MR. HODGE: Yes, sir.
MR. COCHRAN: And I would like specifically to direct your attention back to the month of January of 1987 and specifically January 11 of 1987. Did you have occasion to see or interact with a person by the name of Mark Fuhrman?
MR. HODGE: Yes, sir, I did.
MR. COCHRAN: Was he a Los Angeles police officer at that point?
MR. HODGE: Yes, sir.
MR. COCHRAN: On that date were you taken into custody by Mr. Fuhrman?
MR. HODGE: I believe so--I believe it was that date, yes, sir.
MR. COCHRAN: All right. Was it the 11th or 12th or do you know the exact date?
MR. HODGE: I am unable to recall the exact date, sir.
MR. COCHRAN: Was it in January of 1987?
MR. HODGE: Yes, sir.
MR. COCHRAN: All right. And do you remember who Mr. Fuhrman's partner was at that time?
MR. HODGE: Yes, sir. It was Vettraino. I referred to him as Vettraino. I believe it is Tom Vettraino.
MR. COCHRAN: Tom Vettraino?
MR. HODGE: Yes, sir.
MR. COCHRAN: At some point were you placed inside of a police vehicle?
MR. HODGE: Yes, sir, I was.
MR. COCHRAN: And after you were placed inside that police vehicle were you taken somewhere?
MR. HODGE: Yes, sir.
MR. COCHRAN: Do you remember which officer was driving the vehicle?
MR. HODGE: Yes, sir.
MR. COCHRAN: Who, which one?
MR. HODGE: That was Vettraino.
MR. COCHRAN: Who was Vettraino's partner officer at that time?
MR. HODGE: Officer Fuhrman.
MR. COCHRAN: And where was officer Fuhrman seated in the vehicle, if you recall?
MR. HODGE: On the passenger side of the vehicle.
MR. COCHRAN: And where were you seated?
MR. HODGE: In the rear of the vehicle.
MR. COCHRAN: Were you handcuffed at that point?
MR. HODGE: Yes, sir.
MR. COCHRAN: And did officer Fuhrman say something to you as he was seated in the right front passenger seat and you were in the rear portion of that police vehicle?
MR. HODGE: Yes, sir, he did.
MR. COCHRAN: Will you tell the ladies and gentlemen of the jury what officer Fuhrman said to you on this date in January of 1987?
MR. HODGE: Yes, sir. At that time officer Fuhrman turned around, looked at me and told me, "I told you we would get you, Nigger."
MR. COCHRAN: Did you hear--you heard him clearly?
MR. HODGE: Very clearly, sir.
MR. COCHRAN: And when he said this to you can you describe for us the tone of voice that he used?
MR. HODGE: Anger, hatred, just something from deep inside, if you would, just--just very ugly.
MR. COCHRAN: And when he made this statement to you can you describe for the jury how you felt?
MR. DARDEN: Objection, irrelevant.
THE COURT: Overruled.
MR. HODGE: Belittled, scared, very, very angry. Umm, I could use many more adjectives, but those--
MR. COCHRAN: Does that encapsulate how you felt?
MR. HODGE: Lightly, yes.
MR. COCHRAN: Thank you very much for coming today. Nothing further, your Honor.
THE COURT: People.
CROSS-EXAMINATION BY MR. DARDEN
MR. DARDEN: Mr. Hodge, thank you for coming, sir. Sir, you used to live on Corning Avenue, was it?
MR. HODGE: Yes, sir.
MR. DARDEN: And you were arrested by Vettraino and Fuhrman on January 13, 1987; is that right?
MR. HODGE: I'm unable to recall the exact date, sir.
MR. DARDEN: By the way, did you--were you only arrested once by Vettraino and Fuhrman and placed in a police vehicle?
MR. COCHRAN: Your Honor, object. Beyond the scope.
THE COURT: Sustained.
MR. DARDEN: Trying to establish the date, your Honor.
THE COURT: The date of January, `87, is close enough.
MR. DARDEN: Perhaps I should approach then.
THE COURT: All right. Let me see you over here at side bar with the court reporter.
(The following proceedings were held at the bench:)
THE COURT: All right. Mr. Darden, where are you going with this?
MR. DARDEN: I'm trying to establish what the date is, because--I will give this to Mr. Cochran. This is the printout on the F.I.'s with that time with Mr. Hodge. There were many, many, many, many contacts by LAPD, from the narcotics and gang units, of Mr. Hodge. Mr. Hodge was a crack dealer over on Corning Avenue, an area where crack was sold by him and members of the Playboy Gangster Crips.
THE COURT: Let me ask you this question. Let me ask you a question. Why wouldn't you at this point say, Mr. Hodge, you were offended, that was a horrible thing? Thank you very much. Good-bye?
MR. DARDEN: Well, I just have a couple other things, okay? All I want to do is make sure we are talking about the same incident, okay? That is all I want to do. I can show him the piece of paper and then identify it and make sure that is the date. And even if that is the date, I have three more questions and we are done. Just the booking slip, not the arrest report.
MR. COCHRAN: Judge, can I respond?
MR. DARDEN: Otherwise I don't know if he is talking about some other day, some other contact, but--
(Discussion held off the record between the Deputy District Attorneys.)
MR. COCHRAN: Judge isn't the issue whether or not Fuhrman arrested this man and indicated to him--the issue he was called for you limited very specifically was whether Fuhrman turned around and said, "I tell you I will get you Nigger." That is the question. It happened in January of 1987. That is the question.
MR. DARDEN: We have eight minutes more, okay? Now, all I want to do, you know, he filed a--
THE COURT: I'm sorry.
MR. DARDEN: He complained to IAD, right? January 13, `87, he complained to IAD. He didn't complain about this. He complained about everything else under the sun, but he didn't complain about this and that is why I want to make sure of the day.
THE COURT: Then why don't you ask him with regards to this particular arrest did you make a complaint to the Los Angeles Police Department about the manner which you were treated? Answer, yes or no.
MR. DARDEN: Okay.
THE COURT: Is this a copy of the complaint? Yes or no. I'm trying to restrict the scope here, counsel.
MR. COCHRAN: I want to wait until you finish because doesn't it open the door? This man was acquitted and you said we can't get into that. He made lots of complaints against these officers.
MR. DARDEN: Fuhrman is not a witness in the drug Prosecution. Fuhrman did not witness the drug Prosecution.
MR. COCHRAN: He took him down and he was arrested originally for battery on a police officer.
MR. DARDEN: And Fuhrman did not testify at trial.
MR. COCHRAN: Battery on a police officer.
THE COURT: I know. I know, counsel.
MR. DARDEN: And we know and Johnnie knows that the prosecution was dismissed because when it came for trial Detective Fuhrman wasn't in the state. He never testified at trial, but it was dismissed.
MR. COCHRAN: I didn't know that.
MR. DARDEN: 148 on Fuhrman, okay? And the narcotics issue and the 148 occurred when he tried to arrest him after a narcotics--
THE COURT: Why are we dragging this out? If you want this over, just say, gee, that is horrible, good-bye.
MR. DARDEN: Judge, you know, I feel no need to lay down or roll over and die just because the jury has been polluted with these epithets. I mean, you know, he did the murders. I'm going to convict him.
THE COURT: Why don't you ask him if he made a complaint about this incident?
MR. DARDEN: I was trying to ask about the date and you sustained the objection.
THE COURT: All right. Let's go.
(The following proceedings were held in open court:)
THE COURT: Thank you, counsel. Proceed.
MR. DARDEN: Mr. Hodge, did you complain to the LAPD about the manner in which you were arrested by these two officers?
MR. HODGE: On which occasion, sir?
MR. DARDEN: On the occasion you just described for Mr. Cochran?
MR. HODGE: Yes, sir.
MR. DARDEN: You filed a formal complaint?
MR. HODGE: Yes, sir.
MR. DARDEN: When you were arrested, were you holding a drill or something in your hand?
MR. COCHRAN: Object to the form of this question, your Honor. Beyond the scope.
THE COURT: Sustained.
MR. DARDEN: Let me show you a copy of an IAD complaint. By the way, did you have any portion at all of the IAD minute that you filed?
MR. HODGE: At this time--
THE COURT: Excuse me, counsel. I think your question assumes IAD and that the jury knows what we are talking about here.
MR. DARDEN: Certainly.
MR. DARDEN: You complained to Internal Affairs Division at LAPD; is that right?
MR. HODGE: I believe it was Internal Affairs, yes, sir.
MR. DARDEN: Okay. You were interviewed by them?
MR. HODGE: Yes, sir.
MR. DARDEN: Okay. And were you interviewed by a supervising officer at West L.A. Station as well?
MR. HODGE: I believe it was a supervising officer.
MR. DARDEN: Okay. And your name is Roderic T. Hodge; is that correct?
MR. HODGE: No, sir.
MR. DARDEN: Okay. What is your name?
MR. HODGE: Roderic T. Hodge.
MR. DARDEN: What is your birthdate?
MR. HODGE: August 22, 1964.
MR. COCHRAN: May I see that, counsel?
THE COURT: I will give Mr. Cochran a copy.
THE COURT: All right.
MR. COCHRAN: Is that the--if you will just take a look at that, please, sir.
MR. HODGE: (Witness complies.)
THE COURT: Mr. Darden.
MR. DARDEN: Does that refresh your recollection that the date of arrest was January 13, 1987?
MR. HODGE: Not really, sir, but I take it--
MR. DARDEN: Does that appear to be the complaint that you filed with LAPD?
MR. HODGE: Yes, sir, it does. It appears to be.
MR. DARDEN: Okay. Okay. And on the last page of that document does it indicate that you had a second interview with someone from Internal Affairs on January 23, 1987, an interview with a Sergeant Lamprey?
MR. HODGE: Yes, sir, it does indicate that.
MR. DARDEN: Okay. Did you have such an interview?
MR. HODGE: Yes, sir, I believe so.
MR. DARDEN: Okay. Nowhere in this Internal Affairs complaint is it mentioned that you complained of Fuhrman's use of any epithets; is that correct?
MR. HODGE: I haven't read over the entire of the interview, sir.
MR. DARDEN: Okay. Your Honor, may this document be marked People's 604?
THE COURT: People's next in order, 604.
(Peo's 604 for id = document)
MR. DARDEN: Would you like to take a moment and see?
MR. HODGE: (Witness complies.)
THE COURT: How many pages is this document, Mr. Darden?
MR. DARDEN: It is 17 pages, your Honor. Other than a response to this question, I have no additional questions.
THE COURT: All right. Since it is--it appears to be typewritten?
MR. HODGE: Yes, sir.
THE COURT: Single page. All right. Then what I'm going to suggest we do is allow Mr. Hodge the time to review the document and we will conclude the examination after the lunch hour. All right. Ladies and gentlemen, we are going to take our recess for the morning session. Please remember all my admonitions to you. Don't discuss the case among yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you with regard to the case. As far as the jury is concerned, we will stand in recess until 1:30. All right. Mr. Hodge, you can step down. Thank you.
(At 11:59 A.M. the noon recess was taken until 1:30 P.M. of the same day.)
LOS ANGELES, CALIFORNIA; WEDNESDAY, SEPTEMBER 6, 1995 1:35 P.M.
Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. All right. Deputy Magnera, let's have the jurors, please.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Be seated. All right. Let the record reflect we've been rejoined by all the members of our jury panel. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
THE COURT: Mr. Roderic Hodge. Mr. Hodge, would you come forward, sir.
Roderic Hodge, the witness on the stand at the time of the lunch recess, resumed the stand and testified further as follows:
THE COURT: All right. Mr. Hodge, would you resume the witness stand, please. All right. The record should reflect that Mr. Roderic Hodge is on the witness stand undergoing cross-examination by Mr. Darden. Good afternoon, Mr. Hodge. Mr. Hodge, you're reminded, sir, that you are still under oath. And, Mr. Darden, you may continue with your cross-examination.
CROSS-EXAMINATION (RESUMED) BY MR. DARDEN
MR. DARDEN: Do you still have the documents from this morning, Mr. Hodge?
MR. HODGE: No, sir. I gave them back to your assistant.
MR. DARDEN: At any event, do those documents--
THE COURT: Miss Lewis. All right. Mr. Hodge, why don't you pull the microphone close to you, please. Thank you.
MR. DARDEN: Did you see the epithet indicated here in these documents?
MR. HODGE: No, sir.
MR. DARDEN: Okay. Do you think it might be contained in some other document?
MR. COCHRAN: I object. That calls for speculation.
THE COURT: Rephrase the question.
MR. DARDEN: At any event, thank you, Mr. Hodge.
THE COURT: Mr. Cochran.
MR. COCHRAN: Yes. Thank you very kindly, your Honor.
REDIRECT EXAMINATION BY MR. COCHRAN
MR. COCHRAN: Good afternoon, Mr. Hodge.
MR. HODGE: Sir.
MR. COCHRAN: Mr. Hodge, is there any doubt in your mind that in the month of January of 1987, Detective Fuhrman referred to you as a Nigger?
MR. HODGE: Sir, there's no doubt in my mind whatsoever.
MR. COCHRAN: Is that something you'd forget?
MR. HODGE: Something you don't forget.
MR. COCHRAN: Now, Mr. Hodge, sir, with regard to this document that Mr. Darden showed you, did you get a chance to look at this document over at lunchtime?
MR. HODGE: Yes, sir, I did.
MR. COCHRAN: And with regard to that document--
MR. DARDEN: I'm going to object at this time.
THE COURT: Overruled. I haven't heard the question yet.
MR. COCHRAN: With regard to this document--
MR. DARDEN: May I approach, your Honor?
THE COURT: You may.
MR. COCHRAN: With regard to this document, it indicates after your encounter with Mr. Fuhrman--
MR. DARDEN: Objection. Hearsay. Hearsay, your Honor.
MR. COCHRAN: May I finish the question?
THE COURT: Finish the question.
MR. COCHRAN: After your encounter with Mr. Fuhrman and the other officers on that day, you went down and made a complaint for their behavior; isn't that correct?
MR. HODGE: That's correct, sir.
MR. COCHRAN: And I'd like to show you this document--
MR. COCHRAN: Which is People's what, your Honor?
THE COURT: This is 604.
MR. COCHRAN: I want you to take a look at 604. And first of all, you are Roderic T. Hodge; is that correct?
MR. HODGE: Yes, sir, that's correct.
MR. COCHRAN: And with regard to the type of complaint you rendered against these officers, do you see that--do you see this box here under "Type of complaint"?
MR. DARDEN: Objection, your Honor.
THE COURT: What's the objection?
MR. DARDEN: 352.
THE COURT: Overruled.
MR. COCHRAN: Do you see the "Type of complaint"?
MR. HODGE: Oh, yes, sir.
MR. DARDEN: May we approach, your Honor?
MR. COCHRAN: All right. Do you recall--do you recall that you went down at some point after the contact with Mr. Fuhrman and the other officers and made this actual complaint?
MR. HODGE: There were a couple times, yes, sir.
MR. COCHRAN: All right. Did you--in addition, did you go to West Los Angeles on some occasion?
MR. HODGE: Yes, sir.
MR. COCHRAN: Did you also go someplace else and make a complaint?
MR. HODGE: Yes, sir, I did.
MR. COCHRAN: And where did you go to make that complaint?
MR. HODGE: Downtown location, what we refer to as the Parker Center.
MR. COCHRAN: All right. Did you go to Parker Center on the same date you went to West Los Angeles?
MR. HODGE: No, sir.
MR. COCHRAN: That was on a different date?
MR. HODGE: Yes, sir.
MR. COCHRAN: And why did you go to both locations to make complaints about the conduct of these officers?
MR. DARDEN: Objection. Irrelevant.
THE COURT: Overruled.
MR. HODGE: Uh, my brother, who's a law enforcement--
THE COURT: Hold on. Hold on. You made two complaints, two places, both at West L.A. and downtown Parker Center, correct?
MR. HODGE: Sir, I made three complaints.
THE COURT: Three complaints. Where else?
MR. HODGE: My brother advised me that West Los Angeles Police Department--
MR. DARDEN: Hearsay, your Honor.
MR. HODGE: --would not pursue--
MR. DARDEN: Your Honor, hearsay.
THE COURT: Sustained.
MR. COCHRAN: Let me just go question by question, your Honor.
MR. COCHRAN: Do you have a brother in law enforcement?
MR. HODGE: Yes, I do.
MR. COCHRAN: What kind of law enforcement is he in?
MR. HODGE: Department of corrections.
MR. COCHRAN: Did you have occasion to discuss with your brother who is in law enforcement whether or not you should make a complaint?
MR. HODGE: Yes, sir.
MR. COCHRAN: Did he give you some advice?
MR. HODGE: On many occasions.
MR. COCHRAN: And after you got this advice from your brother who was in law enforcement, where did you go?
MR. HODGE: To the Parker Center.
MR. COCHRAN: That was after you had been to West Los Angeles?
MR. HODGE: That's correct.
MR. COCHRAN: And did you make a complaint at Parker Center?
MR. HODGE: Yes, sir.
MR. COCHRAN: You said you went a third place. Did you go some other place and make a complaint?
MR. HODGE: No, sir. I made two complains at West L.A. Station and one at the Parker Center.
MR. COCHRAN: So that was the third complaint?
MR. HODGE: That's correct.
MR. COCHRAN: All right. Now, with regard to these documents that Mr. Darden showed you, did you notice anything unusual about the pages? Would you look at the pages and look at the numbers of those pages.
THE COURT: You want to show him 604, the actual exhibit?
MR. COCHRAN: Sure. I'd be glad to, your Honor.
THE COURT: All right. Because we're talking about two different documents here.
MR. COCHRAN: Thank you.
MR. COCHRAN: I want you to look at the last two pages of 604, see if there's anything unusual about the numbering of the pages there.
MR. HODGE: Yes, sir.
MR. COCHRAN: What do you see? Tell the jury what you see there.
MR. HODGE: Well, it goes from page 6 to page 17.
MR. COCHRAN: Do you know what happened to pages 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16?
MR. HODGE: No, sir. I would have no idea.
MR. COCHRAN: Now, with regard to that document, look in the upper right-hand corner under the "Type of complaint" that you made against these officers on January 13, 1987. Do you see that?
MR. HODGE: Yes, sir.
MR. COCHRAN: And what does it say?
MR. DARDEN: Objection.
THE COURT: Sustained.
MR. COCHRAN: I may want to approach just briefly if I could to show the court something.
THE COURT: All right. With the court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: Okay.
MR. COCHRAN: What I was--
THE COURT: Hold on. Mr. Darden's making the objection. Miss Lewis, would you step back, please. Step back. Mr. Darden, what's your objection?
MR. DARDEN: The question went to improper--what was in the box in the upper right-hand corner shows improper tactics and excessive force, which is irrelevant.
MR. COCHRAN: Counsel is wrong about that. It does say that. Let me make an offer of proof. What it says--he opened the door on this. It says "Improper tactics, excessive force and disc," discourtesy. Let me show you something, Judge. I have another document, summary of adjudication cases dated on March 9, 1987 through March 13th, 1987, and what it shows is that this 22-year old black male alleged improper tactics, excessive force and discourtesy against the police. It's all blacked out. The discourtesy is the word "Nigger," and we have the right to bring that out. They're trying to make it seem like it wasn't there. That's what I indicated to the court.
MS. CLARK: Your Honor, but the documents also show--what counsel is referring to is the allegation made by another person, not by Roderic Hodge, against a different officer, not Fuhrman.
MR. COCHRAN: Judge, she's wrong. This is Mr. Darden's witness. So she shouldn't be talking.
THE COURT: That's correct. Mr. Darden.
MR. DARDEN: What's correct?
THE COURT: Are you handling this or Miss Clark?
MR. DARDEN: Yeah. There are a number of complaints contained in this investigation, and we will bring someone over from IAD to explain what the pages are because they relate to other officers by the way. At any event, there are complaints by Mr. Hodge and the other persons he was arrested with that officers said things like, "Shut the fuck up," and, "Get back, get back." There's an allegation they called someone a "Fat ass." But there's no allegation in the entire package that the epithet was ever used. I've given him a stack of material. I asked him whether or not the epithet is contained in the material and it is not, okay. Now you're telling me it opens the door to everything, to everything else?
THE COURT: No, it doesn't open the door to everything probably, but it certainly does at the least, you know, open the door to the fact he made an allegation of discourtesy.
MR. DARDEN: Okay. Well, if he wants--
MR. COCHRAN: Your Honor, she's--
MS. CLARK: I'm telling Mr. Darden.
THE COURT: Well, Mr. Darden.
MR. DARDEN: That's correct. Not against Fuhrman. In fact, look at the complaint in the narrative at the beginning of the document and you see what the allegations are, Judge, in general. Just because we, you know, do cross-examine a witness or attempt to defend against irrelevant, immaterial allegations doesn't mean it opens the door to everything imaginable. If he wants to ask him--I don't think they can ask about the word "Discourtesy" unless he used the word itself. It is a word that is unique to LAPD and Internal Affairs Division and he is not competent to explain that term.
THE COURT: Mr. Cochran, you can cross-examine him--excuse me--redirect on the fact that he did include a complaint for discourtesy.
MR. COCHRAN: Thank you. Let me ask--
THE COURT: But the excessive force and improper tactics are not part of this.
MR. COCHRAN: Can I ask one thing, please, your Honor?
THE COURT: Yes.
MR. COCHRAN: While we are here? Your Honor, can--there's so much noise over here. In addition to that--he didn't mark this. Can you look at the first thing here? This man--I should be allowed to go into--I'd like you to read this part. He complains that he got pulled up by his arms by Fuhrman and suffered injuries and he was struck with a baton. In fact, in this investigation--I want to bring this out--there are nine photographs taken of this man's injuries and another report--another report down--taken place. Look at this, Judge. He refused treatment--and they took nine photographs of his right leg--for his back where somebody put a gun in his back, right leg and thigh and his wrist where he was hit with a baton. We can bring that in. You specifically stood here again and told Mr. Darden what to do and how to conduct--not told him. Made a suggestion. Judge, when they open the door, I have the right--may I finish? I have the right to talk about discourtesy or this other thing because he opened the door. He is the one who asked those questions. I abided by what you said. I asked my five or six questions and I sat down. This opens the door. He's opening this up with handcuffs, Judge. He had photographs taken. And they are trying to give a misleading impression to this jury. They're trying to say he didn't make this report. He made three reports different locations. This report is missing 11 pages or so right in the middle of it. There are photographs backing up what he says about violent treatment and everything and also says--
THE COURT: Keep your voice down.
MR. COCHRAN: --also says discourtesy, Judge, and I have good faith. I showed you this other report where it says in the summary of LAPD things how he made a report for discourtesy and it talks--doesn't talk about--they talk about, robbery-homicide, Hodge is a 22-year old--
THE COURT: Which one of these reports? Is this the actual exhibit?
MR. COCHRAN: It may not be the exhibit. That's my copy of the exhibit.
MR. DARDEN: The witness has it.
MR. COCHRAN: That's my copy of it.
MR. DARDEN: This is a copy.
THE COURT: That's a copy. Okay. I've heard enough. You can--
MR. DARDEN: May I please make one additional point?
THE COURT: No. I've heard enough. You can redirect on the fact that he did include in his complaint an allegation of discourtesy. All right. That's it.
MR. COCHRAN: That's it.
THE COURT: That's it.
MR. COCHRAN: Okay.
(The following proceedings were held in open court:)
THE COURT: Mr. Cochran.
MR. COCHRAN: Thank you, your Honor.
MR. COCHRAN: Now, Mr. Hodge, when you made these three complaints to the Los Angeles Police Department, did you include a complaint for discourtesy of the officers involved on that date, including Mr. Fuhrman?
MR. HODGE: Yes, I did.
MR. COCHRAN: When you included this complaint for discourtesy, did that include him calling you or saying, "We told you we were going to get you, Nigger"?
MR. HODGE: Yes, sir. That's correct.
MR. COCHRAN: And you have not tried to profit from your involvement in this case in any way, have you?
MR. HODGE: No, sir, not at all.
MR. COCHRAN: Have you tried to stay away from publicity concerned in this case?
MR. HODGE: As far away as possible.
MR. COCHRAN: And were you contacted by ABC News back in March of this year?
MR. HODGE: Yes, sir.
THE COURT: Excuse me. Mr. Hodge, would you just pull the microphone a little closer, please. Thank you. Mr. Cochran.
MR. COCHRAN: Thank you.
MR. COCHRAN: You were contacted by ABC News back in March of this year?
MR. HODGE: That's correct.
MR. COCHRAN: And you did not go on camera at that point, did you?
MR. HODGE: No, sir, I have not.
MR. COCHRAN: You have not tried to tell your story to anyone, have you?
MR. HODGE: No.
MR. COCHRAN: You came out here a week ago from Illinois because you were subpoenaed; is that correct?
MR. HODGE: That's correct.
MR. COCHRAN: And as soon as you can, do you want to go back home?
MR. HODGE: Yes, sir.
MR. COCHRAN: Thank you very much for coming, sir.
THE COURT: Mr. Darden.
MR. DARDEN: Have a safe trip home, sir.
MR. HODGE: Thank you, sir.
MR. DARDEN: Thank you, your Honor.
THE COURT: All right. Mr. Hodge, thank you very much. And if you would return that document to Mr. Darden, please. All right. Thank you, counsel. All right. Let me see counsel at sidebar without the court reporter, please.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
MR. DARDEN: We have one stipulation on the way down now.
MR. COCHRAN: I believe Mr. Neufeld has another stipulation.
THE COURT: All right. Mr. Neufeld, do you have a stipulation that you've discussed with--
MR. NEUFELD: Yes.
THE COURT: --Miss Clark, Mr. Darden?
MR. NEUFELD: Yes. And the stipulation is--what number are we up to, Defense exhibit, your Honor?
THE CLERK: 1369.
THE COURT: 1369.
MR. NEUFELD: Okay.
THE COURT: Mark the stipulation 1369.
MR. NEUFELD: Yes.
(Deft's 1369 for id = stipulation)
MR. NEUFELD: Which is simply the sunrise and sunset times for Los Angeles, California; and in particular, the stipulation that on June 13th, 1994, the sun rose at 5:41 A.M. Pacific daylight time.
MS. CLARK: Yes. So stipulated.
THE COURT: All right. And, ladies and gentlemen, if you recollect, a stipulation is an agreement between the attorneys as to certain facts, and you are to assume those facts to be true for purposes of making your determinations in this case. All right. And, Mr. Darden, you said there's another stipulation on its way down?
MR. DARDEN: Yes.
THE COURT: All right. Ladies and gentlemen, while we await that stipulation being brought down from upstairs, I am going to be excusing you in a few moments to be taken up to the larger lounge upstairs so you'll be a little more comfortable. There's a couple more legal issues that I need to take up without you. And as you noticed, I was having a conversation with the lawyers over at the sidebar without the court reporter just to discuss with them informally the scheduling for the remainder of the trial; and I anticipate on the basis of that discussion, that the Defense should be concluding the presentation of their case this week. So just a few more legal issues I need to resolve, and then we'll hopefully conclude that phase of the trial. So just to let you know we are making progress. But I do have a few more legal issues I need to iron out before we get to you. But I anticipate we may have some additional testimony for you this afternoon.
MR. DARDEN: Some modification. It's on the way down. The courier has already left the 18th floor.
THE COURT: All right. Perhaps it would be better use of our time then to take our recess at this point, excuse the jury and then launch into our issues. I'm sorry? Miss Clark?
MS. CLARK: No.
MR. DARDEN: That would be fine, your Honor. Thank you.
THE COURT: Okay. All right. Then as far as the jury is concerned, then we'll stand in recess. Remember my admonitions to you. As soon as we clear the courtroom with the jury, we'll reconvene. All right. Thank you, counsel.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. Counsel, there are a number of legal issues we need to resolve before we resume with and complete the Defense case, correct?
MR. COCHRAN: Yes, your Honor. I believe that is correct. If the court pleases, just as a matter of direction, I would ask the court to listen to Dean Uelmen first for our recitation, please.
THE COURT: As to what issue, Mr. Uelmen?
MR. UELMEN: This would be as to the suppression motion, your Honor, and I also have an offer of proof with respect to the remaining testimony of Laura McKinny.
THE COURT: Well, let's take these things one thing at a time.
MR. UELMEN: All right. Perhaps the offer of proof. It is our contention that in the cross-examination of Laura McKinny by Mr. Darden, the questioning with respect to discussions between Miss McKinny and Detective Fuhrman with respect to cover-up opened the door to allow the jury to hear the portion of McKinny transcript no. 1. Actually this is not a taped transcript, but it would be page 41 of McKinny transcript no. 1 in which there is a discussion of the departmental cover-up with respect to the performance of women within the department. It starts with Fuhrman, the second time the name "Fuhrman" appears on page 41 and goes down to the end of the page. We believe the door has also been opened to a discussion which appears in transcript no. 11 beginning at page 19 and proceeding through page 26. This is a discussion between Miss McKinny and Detective Fuhrman regarding how she could portray in her screenplay the cover-up that would be necessary where an officer is being investigated and needs to create the appearance of being one place rather than another and Detective Fuhrman describes how logs can be falsified. Alternatively, if your Honor will not allow us to play the tapes, we believe that Miss McKinny could describe these conversations in terms of their general tenor.
The exchange in tape no. 11 that I'm talking about relates directly to Miss McKinny's testimony and Mr. Darden's questions about the relationship between the men versus women theme of her screenplay and the topic of cover-ups. That is, the ability of male officers to cover up and female officers not having the same ability to cover up their tracks.
THE COURT: All right. Were you going to--all right. Never mind. People, Mr. Darden.
MR. DARDEN: I have an idea of what Mr. Uelmen is talking about and I think we argued these issues this morning for the most part, and I would say objection, same grounds as stated this morning. I would say that it is hearsay, that one--and the no. 11 proffer is one that was clearly fictional and why do we have to go back there. The damage is done. I think the court understands what happened this morning with that particular witness and we object.
THE COURT: All right. Mr. Uelmen.
MS. CLARK: Can we have a moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MR. UELMEN: With respect to the hearsay--
MS. CLARK: Wait, wait, wait. Hold on. Hold on. One second. I asked for a moment.
(Discussion held off the record between the Deputy District Attorneys.)
(Discussion held off the record between Defense counsel.)
MR. DARDEN: Judge, would the court ask counsel to read the information? Judge, would you--
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: This is from transcript no. 1, pages 41 to 42. They don't relate directly to the issue counsel has attempted to raise at this point. They're irrelevant to that testimony, to Miss McKinny's testimony as it related to cover-ups and when--
THE COURT: All right. Mr. Uelmen.
MR. UELMEN: With respect to the hearsay issue, your Honor, of course, these portions of the transcript are not offered for the truth of what is asserted. They are offered to demonstrate the nature of the conversation between Miss McKinny and Detective Fuhrman. There was an attempt to portray the nature of these conversations in a false light through Mr. Darden's cross-examination. He was suggesting that Miss McKinny was attempting to sensationalize this screenplay, that there was even allusions to a possible illicit relationship between Miss McKinny and Detective Fuhrman. There was a suggestion that she was attempting to get Mr.--Detective Fuhrman to portray the information that he was presenting to her in a dramatic and exploitative way, and we believe that the jury is entitled to see and to hear how these conversations took place, especially in the context of the question of cover-up that Mr. Darden alluded to so the jury can see the context. And the context, as your Honor knows, makes all the difference in the world in explaining how these conversations took place and what was actually going on between Laura McKinny and Detective Fuhrman.
THE COURT: All right. Thank you, counsel. All right. As to the second example first, the discussion within the context of the screenplay, the question being from Miss McKinny as to how would a certain cover-up be portrayed for the purposes of the screenplay, that's clearly in the discussion of the creation of a fictional screenplay. As such, it's not relevant. The objection will be sustained. As to the issue of the department's cover-up of the performance of women as police officers, interesting topic, but not for this trial. The objection likewise is sustained on the basis of relevancy. All right. Next issue.
MR. UELMEN: The next issue, your Honor, is the renewal of the Defendant's motion to suppress.
THE COURT: All right.
MR. UELMEN: And I think an appropriate place to begin is with the legal standard to be applied in terms of the impact of newly discovered evidence. And we believe that the leading case on this question is People versus Ramsey cited in our brief at page 7, which quite clearly holds:
"Where additional evidence is presented, the findings of the magistrate to the extent they are affected by the additional evidence are not binding on the superior court. This allows the superior court to exercise its independent judgment on issues on which additional evidence is introduced." The additional evidence that we wish to introduce relates directly to the credibility of Detective Mark Fuhrman. And our position quite simply is that your Honor, in considering this evidence, is not bound by whatever findings were made with respect to Detective Fuhrman's credibility in the municipal court, but that you are to exercise your independent judgment on the issue of his credibility. Now, the Prosecution has contended that what we are offering with this additional proffer is simply evidence going to his general credibility. And I want to point out to the court the very clear relationship between the portions of the McKinny transcripts and tapes that we are proffering as new evidence on the credibility of Detective Fuhrman and the testimony that he presented on the motion to suppress. And I think it's fair to call the court's attention to the fact that there were only two detectives who testified on the motion to suppress, Detective Vannatter and Detective Fuhrman. And your Honor will recall that in the context of a number of misrepresentations made by Detective Vannatter in the affidavit for the search warrant, this court made a finding that Detective Vannatter had a reckless disregard for the truth, so that the credibility of Detective Fuhrman becomes a very, very important aspect of the determination of the Defendant's motion to suppress. Do we or should we put any faith in the testimony of Detective Fuhrman with respect to the circumstances that led up to the warrantless search of the Defendant's premises on the morning of June 13th? Now, we have essentially--well, let me identify each of the issues where we believe the credibility of Detective Fuhrman is in issue. First of all, with respect to the justification for the entry to the premises, as your Honor will recall, the explanation offered by the detectives for their trip from Bundy to Rockingham was that it was for purpose of making a notification. Mr. Simpson was not a suspect. Their reason for going to his residence was to notify him of the death of his former wife and to make arrangements for the care of his minor children who had been found in an upstairs bedroom at the Bundy scene.
It was only after they arrived at the premises and a speck was found on the door of the Bronco above the handle to the driver's side door that the circumstances were transformed, and the officers determined that they had some sort of emergency that justified an immediate entry to the premises without a warrant. And of course, the discovery of that speck on the door was a discovery by Detective Fuhrman. It was Detective Fuhrman who testified he went by himself from where the officers were gathered at the gate to enter Mr. Simpson's premises, that he noticed that the Bronco was parked in a very haphazard manner as he put it, that he went over and he made the discovery of the speck on the door. Now, in that context, it is significant that this is the same Detective Fuhrman who in the context of the McKinny tapes and transcripts offers the following comments. This is Miss McKinny, and I'm reading from her transcript no. 1, pages 24 to 25. "So if you ripped up his identification, you're not going to mention that you ripped it up, are you?" And he answers: "Never, but that doesn't mean I didn't say I didn't. Nobody asked." And the interviewer, Miss McKinny asks: "How about if somebody asks?" And Fuhrman says:
"Well, then I won't. That's an investigation of a police report. When you say falsification of an arrest report, that's when somebody's walking down the street and I see him throw something, but I don't see what he throws. Then I go back where he threw something and there's a gun. "Now, if you want to let that guy go, if you're a citizen, do you want that guy on the street or in jail? Obviously you want him in jail unless you're a jerk too. So the only way to put him in jail is for the policeman to say, `I saw him throw that gun.'" interviewer Miss McKinny: "Oh, identifying the action with the object?" "Fuhrman: Of course he threw it. What are the odds of going to a place where he threw something and having that be a gun? 10 million to 1. 30 million to 1. I don't know what the odds would be, but it's got to be astronomical. So if that's considered falsifying a report.
"And if some hype, you know, says, uh, you know, whatever I shot two days ago and you find a mark that looks like three days ago, pick the scab, squeeze it, looks like serum's coming out as if it were hours old, it's a hard fine. You just can't find the mark because he's down. His eyes don't lie. That's not falsifying a report. That's putting a criminal in jail. That's being a policeman." Now, obviously, Detective Fuhrman's definition of being a policeman as including making up the facts that are necessary to put someone in jail once you've determined that person should be in jail is highly relevant to his testimony of finding the one iota of evidence that will justify or be offered as justification to make an immediate entry to Mr. Simpson's premises, and we believe it is highly relevant that in this example, he is discussing the manufacture of blood evidence. He is discussing scratching a scab to make fresh blood to provide an officer with probable cause to make an arrest, and he's saying that's not falsifying a report, that's being a good cop. The second instance where the justification for the conduct of the officers on the morning of June 13th is questioned relates to the limited purpose for which they made entry to the premises. This supposed emergency that was created by the discovery of this speck on the car door meant that in addition to the purpose of locating Mr. Simpson and notifying him of the death of his former wife, making arrangements for the care of their children, we now add this new justification that there may be a victim on the premises or there may be a perpetrator lurking on the premises. That is not a justification that includes searching for evidence. And what does Mr. Fuhrman do? Mr. Fuhrman goes to Kato Kaelin's room, enters the room, interrogates Mr. Kaelin, searches the room, searches Mr. Kaelin's clothes, looks at the soles of Mr. Kaelin's shoes and does not ask him any questions about whether there are any potential victims on the premises. He simply asks about the thumps that Mr. Kaelin reports hearing on the wall the night before. There's no follow-up questioning at all in terms of expressing any concern with respect to whether there's any victims or perpetrators lurking about. And in this context, I think it's important to remember that this is the same Detective Fuhrman who in the context of his conversations with Miss McKinny says--and now I'm quoting from pages 33 and 34 of that same transcript no. 1. "So under what did you arrest him," the interviewer asks.
"Fuhrman: I didn't arrest him under anything. Just took him to the station, ran him for prints, gave them to the detectives to compare with what they've got in the area. I'll probably arrest a criminal that way." And he's referring here from the prior context to an arrest that he had made himself just the night before. And the interviewer asks: "So you're allowed to just pick somebody up that you think doesn't belong in an area and arrest him?" And Fuhrman says: "I don't know. "Interviewer: Well, I mean, you did. So--" and Fuhrman says: "I don't know. I don't know what the supreme court or the superior court says and I don't really give a shit. 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 reasonable cause for arrest." And the interviewer asks:
"But nobody usually crosses you, do they, because they know if you're pushed, you're going to come up with something." And Fuhrman responds: "Well, my supervisor has confidence that I know what I'm doing, so they don't make beefs about it." This is obviously highly relevant to the conduct of Detective Fuhrman in essentially entering those premises to search for evidence and then making up a reason later to justify what he had done. The next example of the relevance of these newly discovered tapes relates to the question of the scope of the search activity that Detective Fuhrman then engaged in. Your Honor will recall that after Kato Kaelin told him about the thumps on the wall, Detective Fuhrman told no one else about that. He didn't mention that to any of the other detectives. He simply said to Detective Vannatter, "You ought to talk to this guy," and then went off by himself to the rear of the premises where he was for approximately 15 minutes according to his own testimony. And what's he doing back there? He says, "I'm looking for a victim. I'm looking for the body of somebody that may have been injured." No basis whatsoever to assume that there would be any victim back there other than the thumps on the wall, and yet he didn't question either Kaelin or Arnelle Simpson about whether they heard cries from anyone back there, whether they heard any other noises back there. He goes back and he looks around for approximately 15 minutes and then he takes the other detectives one at a time to show them what he allegedly discovered. Well, your Honor, this is the same Mark Fuhrman who in his conversations with Laura McKinny--and I am now quoting from tape no. 3 at page 3--makes the following comments:
"Fuhrman: Well, I really love being a policeman. "McKinny: Why do you love being a policeman? "Fuhrman: When I can be a policeman. It's like my partner now. He's so hung up on the rules and stuff. I get pissed sometimes and go, `you just don't even fuck'in understand. This job is not rules. This is a feeling. Fuck the rules. We'll make them up later.'" well, there are rules about what kind of search activity a police officer can engage in without a search warrant. The activity of Detective Fuhrman on the morning of June 13th raises serious questions about whether he followed those rules, and the attitude exhibited in this exchange that is on tape in the McKinny tapes certainly raises a question that should be asked about Detective Fuhrman's understanding of the rules and limits on the kind of activity that he could engage in. The next issue relates to the role of Detective Fuhrman in the investigation of this case after he is taken off of the case at approximately 2:30 in the morning. Your Honor will recall that almost three hours after he is removed from the case, it is Detective Fuhrman who leads the other detectives from Bundy to the Rockingham residence of the Defendant. It is Detective Fuhrman who finds the speck on the Bronco. It is Detective Fuhrman who then leads the detectives over the wall into the premises and it is Detective Fuhrman who ultimately finds the glove. And with respect to all of this investigative activity, there are no notes, there are no logs, there are no reports. His testimony is:
"I stopped making any record of what I was doing as soon as I was taken off the case at approximately 2:30 in the morning." Perfect setup. No way to double-check any of his activity in terms of what happened after he was relieved from the case. And, your Honor, this is the same Detective Fuhrman who in his exchange with Miss McKinny--and this is on the tape 6--6A. I'm reading from page 3 to page 4. "This is embarrassing." This is Detective Fuhrman speaking.
"Then you go to court and I'm the only one who knows how to testify. You have five officers on the case, and I'm the only one there that knows how to testify. "The D.A. goes, `yeah, but you were the fourth car. But would you testify?' "'yeah.' "'but you did see--' "I saw it. Don't worry about it. Yeah, I saw him do that. Yeah, I saw him do that. Yeah, yeah. Okay. Goodbye.' "Why do I have to do everything? That's what it is coming down to. I have to fight the guy, I have to catch the guy, I have to keep the guy's mouth shut at the station because they're not going to do it for a female. I just can walk by and say, `shut up or I'm going to kick your face in.'"
Now, the relevance of that obviously is, it's a pretty good description of what was going on on the morning of June 13th. Detective Fuhrman had to do everything. And what he's saying in this exchange is, doing everything means also providing whatever testimony is necessary regardless of what happened. We believe that the prior conduct of Detective Fuhrman is highly relevant to the credibility on the suppression issues. We're not talking about general credibility here. We are talking about a police officer who believes that lying to justify an arrest or a search is okay, that the end justifies the means if he has concluded that the suspect is guilty anyway. And this is the same Mark Fuhrman who says to Miss McKinny--and this is transcript 9, pages 11 and 12.
"Fuhrman: Absolutely. Let me put it to you this way. In almost 12 years on the department, I have never felt guilty one day, one split second. "Miss McKinny: Why? "Fuhrman: Because all those people out there deserve exactly what they get and probably 20,000 times more. "Miss McKinny: So you feel that you make judgment calls in a way that ensures those people to get what they deserve and so, therefore, there is no reason for you to feel guilty about anything you do?" And Fuhrman responds: "Well, yeah. It's the same thing, if you're in a rice paddy in southeast Asia and a guy in black pajamas is running across a rice paddy with an AK47, are you going to shoot him or wonder if he's really a communist or if he just stole those clothes from a VC soldier and he's running away? You shoot the son of a bitch and you don't worry about what he was. You don't worry what he could have been, just what he appeared to be and that's good enough.
"Miss McKinny: At the moment? "Fuhrman: You never know past the moment. That's the thing I've always said too. Even if you get the wrong guy, this guy's done something before or he's thought about doing something." Now, your Honor, we believe that in order to assess the credibility of Detective Fuhrman with respect to these issues in terms of his conduct on the morning of June 13th, this evidence must be considered and you must ask the question whether you would believe this police officer in light of this evidence, and we believe that we're entitled to a finding for our appellate record of your conclusion with respect to the credibility of Detective Fuhrman, and we believe the most rational way for you to make that finding is for you to permit us to call Detective Fuhrman to the witness stand as part of this renewed motion to suppress and engage the most powerful engine that we have to expose the truth; and that is to cross-examine him and to confront him with his prior statements to Miss McKinny.
THE COURT: All right. Thank you, counsel. Miss Lewis.
MS. LEWIS: Your Honor, first of all, I need to define--I want to define for the court what the court's role is. First, let's recall that Detective Fuhrman was--and I say let's recall because the court heard a prior 995 with regard to the motion to suppress that was heard in the court below. So the court's already read that transcript of that earlier motion to suppress. Detective Fuhrman was one of two police officers, the other being Detective Vannatter, who testified in the municipal court at that motion to suppress. And that is the factual context in terms of what motion we're talking about that this court looks at. When it came to litigation of the search warrant, that was done before this court. Detective Philip Vannatter was the affiant on that warrant. His affidavit is what the court looked at to determine the validity of the warrant. The--under the law, the court was restricted to, at that point in time and never had to go beyond that, to the four corners of the affidavit of Detective Philip Vannatter. So when we're talking about Detective Fuhrman's testimony regarding motions to suppress, we are talking only about the testimony that he gave at the motion to suppress the entry onto Rockingham brought before the magistrate in the municipal court. Now, as I indicated, when this court reviews newly discovered evidence--and the court has already earlier indicated a finding, and I don't think--we're not. We're conceding it's newly discovered evidence. But when the court reviews newly discovered evidence, the court looks to the standard enunciated in the bishop case, which is briefed in length in our brief on this issue, which is spelled out in length. And the bishop case mentions several standards in there. The--what the court does not do is to decide the issue of Detective Fuhrman's credibility. What the court does do is to look to see whether the newly discovered evidence would have affected the finding of the magistrate below. The Ramsey case that counsel cited to the court includes that standard in a footnote where it says the--this court, your Honor can consider the evidence with regard to Detective Fuhrman in a de novo matter only if you determine that that evidence would have affected the magistrate's ruling below. Then you go on to this step. And that footnote--dicta in footnote in that case mentions that. But the standard is spelled out very clearly in great length in the bishop case. The court was trying to determine what standard to look at to determine when something is affected by and try and give the trial court guidance in this area, and the court looked at the idea of relevance. Well, what if it's relevant testimony, relevant evidence. Does that mean it would have affected the standard? And the bishop court held it couldn't because that hair trigger type of standard would automatically cause every magistrate's ruling in every motion to suppress brought in the lower court to be affected if mere relevance was the standard, and the whole idea of the legislature in changing this legislation back in 1986 I believe it was to provide the Defense one opportunity for a de novo review and only one opportunity except under very narrow circumstances. And this is one of the potential exceptions that applies when there's newly discovered evidence. But because of the policy of the law to maintain the finality of litigation, the bishop court holds that there has to be a heightened standard under this situation. And the bishop court, as this court has noted in a previous hearing I think it's been many months ago, now looked to the area of new trial motions, looked at the law in that area and the area of newly discovered evidence and to see if that standard would be an appropriate one, and it held that that would be an appropriate standard. And I'm going to get back to the new trial motion a little bit later, but I do want to mention, your Honor, these--this newly discovered evidence consists of statements that only go in some general manner to bias and credibility, nothing specific in this case, not to any specific person in this case, not to any specific observations or conduct in this case. It only goes somehow generally, in a general manner to credibility. That by definition is collateral evidence. It's collateral evidence on credibility. It's not evidence that has any kind of direct inconsistent statement or direct impeachment of any officer, either of the two officers' testimony in municipal court and the context in which these--
Now, let's look at the evidence itself. First of all, we know that it's collateral just by definition because it doesn't have anything to do directly with what was testified to in municipal court. It's only very indefinite reason by inference upon inference. And then when you look at what the statements are, they are statements that Detective Fuhrman made to a screenwriter. And in that context--and I'm not saying that he was role playing when he said this. What I'm saying is, he was there to impress this woman to write a Hollywood movie. And we all know that Hollywood movies, particularly when they portray bad cops, are vicious, violent, horrible and depict disgusting things. I mean, that's the whole purpose of a Hollywood movie, particularly when it's depicting bad police officers. I can think of Richard Gere in Internal Affairs went around murdering people. That's Hollywood. That's what it's about. So these statements that he made to Laura McKinny, he was there to impress. There's no trustworthiness whatsoever that anything he actually said is something that he would do even back then or that he would do years later after he said those things to her in that context in this case.
So you look at the statements, and they're not trustworthy. They're not said in a context that makes them at all trustworthy in terms of his actual state of mind of what he would do eight years later when it comes to the investigation of this case during which he played a very narrow role. So you're looking at not only collateral evidence, but evidence that on its face is not trustworthy and probative of even what it would purport to prove or what the Defense would have it prove. So when you look at that farly-removed evidence in terms of directly rejecting anything testified in municipal court, it becomes self-evident that its probative value is virtually nil. There's almost no probative value there. Now, one of the things the bishop court held--and I notice counsel's lack of addressing the bishop court, though it does address this specific issue on newly discovered evidence in a renewed motion to suppress at length. One of the things that that court held, the court of appeal, is that the implied credibility findings made by the magistrate below had to be as to--affected by the new evidence as to both officers who testified. And here that means not only Detective Fuhrman, but Detective Vannatter as well.
It's a heightened burden. And that's the language used by the bishop court, a heightened burden because this evidence regarding credibility would have to go to both officers. And this evidence, these McKinny tapes and transcripts and anything said by Mark Fuhrman has nothing to do with Detective Philip Vannatter and never has had anything to do with him. He didn't even know Mark Fuhrman before they met that night. So the Defense has offered nothing to impeach either directly, indirectly, collaterally, in any manner the testimony that was given by Detective Vannatter extensively during that earlier motion to suppress, which entirely corroborates every important piece of information testified to by Detective Fuhrman. Detective Vannatter testified to the same things or to things right in that same nature. I don't mean to say the testimony was identical, but he also testified to the important aspects that were under consideration for that magistrate to consider in that motion to suppress. Now, when you get back to the new trial--the standard of newly discovered evidence, newly discovered witnesses in a--in the context of a motion for new trial, one of what I consider the viables in the criminal law is Wicken and Epstein. And Wicken and Epstein say that new evidence calculated merely to discredit a witness at the trial is considered of slight importance and it is frequently said that it will not support a motion for new trial. So it is rare under the case law that newly discovered evidence which goes only to credibility is given any kind of deference and such that a new trial motion is granted. And that's the standard that the bishop court of appeal tells us to look at in whether the court should hold whether or not evidence has affected the magistrate's ruling below in the motion to suppress there. And in fact, the--in a case cited in my brief in People versus Green, the--a witness was discovered, newly discovered, who would have impeached the Prosecution's main witness, a police officer, regarding that witness' testimony as to the number of investigations he had engaged in and whether he made narcotics address for amounts under a certain quantity. So it was--it would have been direct impeachment of that police officer's testimony itself. And the court of appeal in People versus Green denied the--upheld the trial court's denial of the new trial motion and held as a general rule evidence which merely impeaches a witness is not significant enough to make a different result probable. So it's whether a different result was probable. That's the analogy they draw in the new trial motion context to--whether it would affect the magistrate, and in different words, make a different result probable there, that the magistrate would have ruled differently. So the court of appeal in People versus Green recognized it wouldn't even have made a different result there where it was direct impeachment testimony let alone here where we have several steps by inferences removed untrustworthy, but at best, collateral impeachment in the terms of affecting credibility impeachment testimony. Now, we also know in this particular case the magistrate below specifically told Mr. Shapiro when he tried to introduce collateral matter to discredit a witness, she specifically said:
"The way I see it, Mr. Shapiro, is that if in fact there is an inconsistent statement with something--I'm sorry--with regard to something that the detective testified to during the course of the proceeding, then that would be admissible. But we're not going to create straw men to shoot down later that were not part of the testimony." So this own magistrate to the extent that there is any--I'm not sure it's appropriate, but if it is appropriate to look at this magistrate's state of mind and whether her particular--this particular magistrate's ruling would have been affected, she--it's pretty clear from that observation of hers that she might have admitted directly impeaching testimony and probably would have directed--admitted directly impeaching testimony, but would not admit collaterally impeaching or collateral evidence regarding credibility. As the bishop court itself said:
"Evidence which does not affirmatively prove an issue, but is used only to impeach or contradict an opposing witness tends to impress weakly." And that's what the bishop court itself said with regard to whether it would have affected the magistrate's ruling below in that case. Finally, your Honor, I want to point out that the People's burden at that motion to suppress was by a preponderance of the evidence. And we had the two--the corroborative testimony of two detectives who testified in detail. All the Defense has presented to this court here in terms of newly discovered evidence goes to, as I've mentioned, collateral impeachment, collateral credibility attack on only one of those officers. And I submit, your Honor, that as a matter of law, that is simply not enough to, quote, legally affect the magistrate's ruling. And that is a term of art, so that there's no confusion, and that's what the bishop court has tried to define as a term of art. So there's simply insufficient evidence to show this newly discovered evidence would have affected her ruling because it is collateral and removed from the one officer who it even affects at all in terms of his testimony and has nothing to do with the other officer. So, your Honor, the Defense is not entitled to yet another hearing in this court of any nature other than the legal argument we just engaged in because I believe the appropriate and proper ruling for this court to make is that this evidence would not have, quote, affected, as that term is used in the law, the ruling of the magistrate below.
THE COURT: Do you think though that the magistrate would have been interested in hearing cross-examination of Detective Fuhrman being confronted with some of this material on the tapes?
MS. LEWIS: No, your Honor, I don't. And in fact, I would like to respectfully remind the court our courts of appeal and supreme court--most recently, there's a case of People versus Superior Court, Piedrahita, P-I-E-D-R-A-H-I-T-A, 1995 at 34 Cal. App. 4 508, that repeats:
"Generally speaking, the confrontation clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to whatever extent the Defense might wish. The cross-examination of the witnesses always subject to the trial court's broad discretion to impose a reasonable limits to prevent interrogation based on concerns, among other things, harassment, prejudice, confusion of the issues"--and that would have happened here--"Or interrogation that is repetitive or only marginally relevant." So the courts have wide discretion. There's also People versus Cooper who--also cites Davis versus Alaska, which is one of the Defense attorneys' favorite cases it seems--to repeat:
"That the confrontation clause guarantees opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to whatever extent the Defense might wish." Most courts, in particular, municipal courts hearing these motions to suppress along with their preliminary hearings day in and day out are not interested in letting the Defense go far afield into the netherland in cross-examining witnesses. They want to hear evidence that directly pertains to that witness' testimony and that is relevant and directly relevant to that witness' testimony. So by all indications, this particular magistrate would not have even allowed cross-examination on this issue, let alone have been affected by it.
THE COURT: All right. Thank you, counsel. I'm sorry. Miss Lewis, do you want to address one other issue, the request at this point to recall--based upon this newly discovered evidence, what you concede the tapes are newly discovered since this discovery occurred subsequent to the preliminary hearing and the original 1538.5 motion, what is your position on at least the Prosecution--excuse me--the Defense ability to recall Detective Fuhrman as a witness to confront him with some of these things?
MS. LEWIS: Your Honor, the Defense has no such right. This is high--as I just argued and pointed out to this court, this is highly collateral evidence. Their right was to present to this court the newly discovered evidence. They've done that. This court has read all of the transcripts, I'm sure listened to all of the tapes. Well, I know it's listened to all the tapes, made a detailed lengthy ruling with regard to the 60 whatever proffers. So this court has heard and has taken in that evidence. It's in the record, it's there, and the Defense has no right, and in fact it would be inappropriate I believe for this court to get into any kind of factual determination, which it would be doing if it heard--attempted to hear testimony from Detective Fuhrman. May I have just a moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MS. LEWIS: As Miss Clark points out, the statute does not allow for--it does not say that they have the right to confront and cross-examine any witness with regard to this newly discovered evidence. And this is a situation where it's clear, your Honor, the magistrate below would not have allowed, as much as I can read her mind--but, you know, having worked in these muni courts for many years--and this court knows what it's like in muni courts with the number of felonies prosecuted by this office and the number of witnesses that are called daily and 10 to 15 prelims a day. That's not unusual downtown. I mean not only as a legal matter, but in terms of the exercise of these magistrates' discretion, it's very easy to predict that she would have not--because no magistrate below in municipal court in this building or in any other building probably in L.A. county would allow the kind of cross-examination the Defense seeks to bring on at this point for this court to hear. But I--I didn't mean to get sidetracked. No, they do not have a right to recall Detective Fuhrman to confront him with this and it would be inappropriate to do so.
The court has the information that it needs, having heard the transcripts and listened to the tapes, to determine if indeed that was even admitted by the magistrate below, which I submit it wouldn't have been, that would have had the legal effect of affecting her prior ruling and causing her to grant the motion; and it simply could not have had that effect when you're talking about two police officers testifying where that evidence affects only one. And the bishop court holds that the Defense has a heightened burden of it affecting both officers' testimony.
THE COURT: Thank you. Mr. Uelmen.
MR. UELMEN: Your Honor, having had the benefit of participating in the determination by the magistrate of the motion to suppress in the municipal court, I can assure your Honor it was not one of 15 or 20 motions being heard on a routine basis. We're talking about a preliminary hearing that went on for more than a week. We are talking about a magistrate who told us how troubled she was by the issues raised in the motion to suppress and who made some very careful findings which were largely dependent on the credibility of the testifying officers. That is, she believed the reasons that they offered to justify the actions that they took and she believed they were reasonable under the circumstances without having the benefit of knowing--what's the matter? Is my zipper open?
THE COURT: No. I was just noticing one of our CCB residents on the--crawling on the table there.
MR. UELMEN: All right.
THE COURT: Never mind.
MR. UELMEN: Should I kill it?
MS. LEWIS: Got it. Women do kill roaches, your Honor.
THE COURT: Sorry about that.
MR. UELMEN: The--the issue before your Honor, however, is not what effect would this evidence have on the magistrate. And that's the whole point of the Ramsey decision. Where additional evidence is presented, the findings of the magistrate, to the extent they are affected by additional evidence, are not binding on the superior court. As the Ramsey court put it, this allows the superior court to exercise its independent judgment on issues on which additional evidence is introduced. So we're not in the position of trying to go back and recreate how Judge Kennedy-Powell would have reacted if she had had the opportunity of hearing the Fuhrman tapes in deciding whether she should believe Detective Fuhrman's account of what happened on the morning of June 13th. To the extent that this is newly discovered evidence, the question is, what finding does your Honor make about the credibility of Detective Fuhrman with respect to the events that took place on the morning of June the 13th. And to that extent, the bishop case relied on by the Prosecution is inapposite. They're saying, you must challenge the credibility of both officers. But that occurs in a context where the two officers corroborate each other, where you have two officers testifying to the same thing. Of course, just attacking the credibility of one officer isn't going to undercut the factual finding. But with respect to each of the factual issues we have identified, the discovery of the speck on the door of the Bronco, the investigative activity in terms of searching for evidence that took place in the room of Kato Kaelin, the searching activity that took place behind the house after Detective Fuhrman decided to follow up on what Kaelin told him, every one of these were judgments or discoveries made by Detective Fuhrman without any corroboration. He was by himself, he was alone and his credibility stands alone with respect to each of those issues. We're not asking to relitigate everything here. Of course, we're not seeking a hearing de novo on the search made pursuant to the warrant, only to the extent that if the evidence found in the warrantless search supplies the probable cause for the issuance of the warrant, then of course the evidence discovered pursuant to the warrant would also have to be suppressed. But what we're talking about here is a warrantless entry to premises. We are talking about the credibility of the decisions and the judgments made by Detective Mark Fuhrman acting alone and we are asking what confidence can you have in his credibility with respect to that action that he took knowing what you now know from the Fuhrman tapes. And the Fuhrman tapes, your Honor is in a very good position to make a judgment about whether he was just impressing a screenwriter. We believe the tapes clearly demonstrate he was expressing his own attitudes, he was expressing his own opinions, he was describing his own practices, and those are certainly relevant areas to cross-examine him on before we make a determination of his credibility. And that's an opportunity that was deprived to the Defendant because this evidence was not available at the time Detective Fuhrman was confronted in the municipal court. And bear in mind that when Detective Mark Fuhrman testified in the municipal court, he was there to impress a Judge, just as counsel suggests he was there to impress Miss McKinny. And the issue that we have to address is whether that was a false impression, whether the conclusions that we draw with respect to the credibility of this witness, of this key witness on this issue of the suppression of the evidence can be trusted in light of this newly discovered evidence.
THE COURT: Mr. Uelmen, let me ask you this though. What would calling Detective Fuhrman add to the court's record in evaluating the credibility issues that you raise given the fact that the tapes that the court heard are Detective Fuhrman's voice? I mean, the foundation has been laid either through Miss McKinny through the 402 hearing or during the course of the trial, we have established that, you know, that is in fact Detective Fuhrman's voice and his statements. Is there anything to be served by calling Detective Fuhrman? What else would you add? "Did you say this? Is this your voice?" I mean, I can think of two or three questions we might ask Detective Fuhrman, but--
MR. UELMEN: Well, credibility determinations are based on the entire galaxy of the demeanor of the witness, the factual accuracy of his account. We believe that everything we have pointed to in the Fuhrman tapes goes directly to issues that he talked about in his testimony and that raise questions about what he was saying.
THE COURT: Well, what would be your offer at this point given the fact that the court has, with regard to previous rulings, reviewed the transcript of the preliminary hearing, with regards to prior motions regarding the McKinny matter, the court has read the transcripts, listened to the tapes--I did sit through, my recollection, it was approximately five or six days of testimony by Detective Fuhrman during the course of this trial. What more can we add to the record? What more do you think would be needed to be added to the record for the court at this point to evaluate all these things anew? I agree with the point that you make, that based upon the showing of newly discovered evidence which was not available, not reasonably available at the time of the preliminary hearing, that the magistrate's finding is not binding upon this court and that this court upon appropriate motion, which you've made, is required to go back and reassess what's here. But you're asking, in addition to that, asking to recall Detective Fuhrman, and I'm just asking for an offer of proof as to what you--what line of questions you would venture into that would add to the court's store of knowledge with regards to Detective Fuhrman.
MR. UELMEN: We would confront Detective Fuhrman with each of these key accounts or justifications that he offered for his conduct on the morning of June 13th and we would question him as to whether on prior occasions he has indicated that he doesn't play by the rules, that he makes the rules up later, that he doesn't really care what the courts say about what officers can do and can't do.
THE COURT: So in other words, you would go through each one of the 61 incidents that you put forth in your offer of proof with regards to the offer regarding Miss McKinny.
MR. UELMEN: No. No, your Honor. We've submitted a new offer of proof just related to this which lays out I believe seven excerpts from the transcript which we believe are relevant just to the issue of probable cause. We're not trying to open up racial attitudes. We are not trying to open up the whole spectrum of police misconduct that was raised in the McKinny motion. We've tried to focus this right on the issue of probable cause and justification for police conduct in which he engaged. And I know your Honor has heard Detective Fuhrman testify, but I really would ask you whether you would hear his testimony with the same ears today knowing what you have heard on those tapes.
THE COURT: Well, it's not--and it's not just knowing what I know on those tapes. It's what I heard from Miss Singer, it's what I know from Miss Bell and what I heard from Mr. Hodge.
MR. UELMEN: And that too is all newly discovered evidence, your Honor. The fact that Detective Fuhrman has perjured himself in this trial we believe is relevant to the credibility that we give to the testimony at the motion to suppress. I dare say that in any case, being tried in these courtrooms, if in the course of the trial, a court were convinced that an LAPD officer had come into the courtroom and committed perjury, the court would not hesitate to go back and reevaluate and re-examine the testimony that was presented in the pretrial motions. In fact, we have inquiries going on right now where on the basis of the discovery of forged evidence, we're going back to cases that were tried years ago to get to the bottom of it, to get to the truth of it. And that's precisely what we propose to do here.
THE COURT: All right. Given that offer, what do you think the likelihood is that Detective Fuhrman would be--former Detective Fuhrman would be available to testify?
MR. UELMEN: There's only one way to find out, your Honor. Let's bring him in, put him on the witness stand and put the questions to him.
THE COURT: All right. Thank you, counsel.
MR. UELMEN: Could I have just a moment?
THE COURT: Sure.
MS. LEWIS: May I--
THE COURT: Why don't you wait until Mr. Uelmen finishes talking to Mr. Neufeld.
(Discussion held off the record between Defense counsel.)
MR. UELMEN: I'm in debt to Mr. Neufeld. To the extent that the People are arguing that there's any question about the context of what is said in those tapes, that is whether he is speaking his own mind, whether he is puffing, whether he's trying to impress Miss McKinny, the way to determine that is by questioning and cross-examining him.
THE COURT: All right. Miss Lewis.
MS. LEWIS: Your Honor, the concern here of course is that Detective Fuhrman is not himself in the same position that he was down at the municipal court below. There is no--there had been no testimony with regard to the "N" word. There had been--that's totally irrelevant to this proceeding, this hearing. But Detective Fuhrman now finds himself in a position because of that and because of the--it's clear there's been an outcry in this city, your Honor, and perhaps appropriately so. But as we stressed over and over again, that is for another forum, another place, another time. To box this court in to calling Detective Fuhrman, making him have to make the difficult decision of whether or not to take the 5th amendment creates additional complexity and adds issues and misleads--well, it doesn't mislead, but it consumes times, takes away from the sequestered jury we have in this case, adds nothing to this court's knowledge with regard to what it needs to know to determine if this evidence would have affected the prior magistrate's ruling. It does not. It is certainly within the court's discretion to deny any such motion and I think, as a matter of law, it's inappropriate to even entertain such a motion by the Defense. And in addition, as Miss Clark points out, even if it were true that that's how he felt back in 1985, there's no proof that that's how he feels now or felt in 1994. You know, this was a man who--well, I don't want to get into the history. The court, you know, heard evidence in context of the pitchess motion. But people change over time. This man became married, had two children. You know, I don't want to get into here a personal Defense of Mark Fuhrman. That's not why I'm here, your Honor, and I don't want to do that. What I do want to do is point out to the court that this is collateral evidence that does not go to directly impeach him and that there are two officers who testified, and for this court to get sidetracked off into a side issue of whether Mark Fuhrman is going to take the fifth amendment is not appropriate, not in this context especially when we're talking about the renewal of their motion to suppress. The court, as it's just explained, has all of the evidence it needs. It has a very complete--there's no such thing as very. The record is complete, and that means one thing. It is complete in terms of what this court needs to assess whether or not it would have affected the ruling of the magistrate below under the circumstances of that case. And this court is not I submit entitled to this Defense argument of the perjury, whether or not perjury was committed here in this case in assessing whether it would have affected the magistrate below. And, your Honor, whether the Defense offers seven excerpts from their new proffer or the 70--60 or 70 that they offer below, the law is the same in this regard. The court has heard all those. The court has read the ones that--all of them, plus the ones that were not available to hear on tape. So the court already is intimately familiar with it. It's time for the court to have to make the difficult decision and to have to struggle with making a ruling on this case. But that's not going to be--that burden is not going to be lightened and would just be dragged out and likely the court's--the complexity of the ruling would be magnified by having additional unknown factor thrown in at this point in time, your Honor.
THE COURT: But if I don't do that, don't I have an incomplete record?
MS. LEWIS: Oh, absolutely not, your Honor. Please, the court can see this is collateral evidence. It does not and never had to allow cross-examination on this evidence at all. The Defense in their new proffer is talking about misconduct things. They recognize it apparently because they left it out. They even leave out the "N" word stuff.
I mean, the court has heard all this stuff. The court has heard the context in which it was played. The court--and in fact, if Detective Fuhrman gets up here and takes the 5th, the court--I think the state of the law would be, the court cannot consider him having taken the 5th in terms of deciding the earlier ruling because the jury is not allowed to hear that somebody took the 5th. And I'm sure the same law would apply, that the court could not consider that fact because you would be impinging on his right against self-incrimination. It gets unduly complicated, your Honor, and it's not necessary. The record is complete. I know you as a very thorough--meticulously thorough Judge, but I'm telling your Honor, as a meticulous and thorough attorney, this record is complete on this issue.
THE COURT: All right. Thank you, counsel. Mr. Mounger, Mr. Darryl Mounger is also here with us, counsel for Mr. Fuhrman. Good afternoon, counsel.
MR. MOUNGER: Good afternoon, your Honor.
THE COURT: You've been present for our discussion regarding the Defense motion to--based upon newly discovered evidence, to revisit the motion to suppress, and one of the key issues is whether or not the court would allow your client to be recalled as a witness for additional testimony. Do you have any observations regarding that?
MR. MOUNGER: Well, before I answer that question, may I be allowed to speak briefly about the motion?
THE COURT: Well, I think the issue is whether or not your client is available to testify.
MR. MOUNGER: Well, your Honor, first, I would ask that, similar to the issue when Mr. Kardashian was asked to be a witness, because of the position that Detective Fuhrman is in, I would first like to see if the court could allow it, the questions, the exact questions that they plan on asking him because asking him to testify at this point in time may have a difference depending upon the questions that are asked.
THE COURT: All right. Mr. Uelmen, do you have an additional copy of your specific offer of proof regarding this issue available?
MR. UELMEN: I'm sure we can have a copy duplicated, but we don't believe a witness is entitled to a preview of the questions that they're going to be asked on cross-examination. The whole purpose of cross-examination is to test the credibility of the witness in reacting to questions as they are put and--
THE COURT: Well, at this point, counsel, since--I mean, that offer of proof is not under seal. It's not exactly a mystery as to what it is we're talking about here and we've discussed it here in open court just now.
MR. UELMEN: Yes. Well, I'm sure we can simply duplicate the copy we have available.
THE COURT: All right. Well, in any event, I need to give the court reporter a brief recess. So we'll take a brief recess. Counsel, if you'll provide Mr. Mounger with a copy of that, he can peruse that, and we'll discuss it, continue this discussion in about 15 or 20 minutes.
MR. MOUNGER: Thank you, your Honor.
THE COURT: All right. Thank you, counsel.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Let's have it quiet, please. Where did Mr. Shapiro and Mr. Cochran disappear to?
MR. DOUGLAS: Mr. Cochran is in lockup.
MR. NEUFELD: The two we need.
(The Defendant is now present.)
THE COURT: All right. Back on the record in the Simpson matter. All parties are again present, including counsel Kent Spaulding. The court has acted upon the application pro hac vice and approved that. Good afternoon, counsel.
MR. SPAULDING: Good afternoon, your Honor.
THE COURT: All right. Over the--during the brief recess, counsel had the opportunity to informally discuss scheduling matters and based upon the Brady issue that the court still needs to deal with this afternoon. Mr. Cochran.
MR. COCHRAN: One thing, your Honor, on the Brady matter. I had indicated to the court that with regard to Brady, Messers. Scheck and Shapiro along with Miss Shawn Snider Chapman will be down at 4 o'clock. They're in the process of interviewing witnesses. They did indicate to me that there may be--they may not be ready to proceed completely today on that and may ask to start that tomorrow morning, and I told them to come by 4 o'clock so they could let the court know that. That's the only holdup, what we talked about earlier.
THE COURT: All right. And I see Mr. Mounger stepped out briefly.
MS. LEWIS: Your Honor, may I take this opportunity very briefly just to mention something that I neglected--it's my fault--I neglected to mention to the court earlier?
THE COURT: No, I don't think so, Miss Lewis. We've--you've filed your points and authorities. I've heard rather extensive argument--
MS. LEWIS: Well, there was a supplemental memorandum filed by the Defense yesterday afternoon after they had already filed their two other memos in the same thing that I did not pay careful attention to. So I--just briefly for the record, please. Please. I can see your--we have time. We are waiting for Mr. Mounger. Very quickly. Very quickly. It might help the court in its ruling.
THE COURT: The moment he walks in the court.
MS. LEWIS: Thank you, your Honor. First of all, on page no. 4 of their Defense--
THE COURT: But then I have to listen to Mr. Uelmen as well.
MS. LEWIS: Okay. Offer of proof of newly discovered evidence for motion to suppress, the first--they have three things. Very briefly, your Honor. The first thing is that they say the decision to make entry by climbing the wall. Detective Fuhrman was the D2. We know that the others out there were all D3's.
THE COURT: Counsel, I recollect the testimony.
MS. LEWIS: I'm sure. It was their decision. The second offer had to do with Mark Fuhrman searching Kato's room, but that--their cross-examination of Mark Fuhrman would add nothing to the--Mark Fuhrman's credibility on that because Kato testified at the preliminary hearing during the motion to suppress and testified to the thumps--
THE COURT: He indicated he gave consent, he gave consent to the search. Next question.
MS. LEWIS: Yes. And also indicating the thumps on the wall. So that makes Detective Fuhrman's testimony that Kato told him he heard thumps on the wall--I mean, there's no credibility issue there whatsoever. And the third one was that, given the statements that Kato made to Detective Fuhrman, which we know were made, that was obviously why Detective Fuhrman went behind the walkway. So how is the Defense going to hurt his credibility in terms of why he went to the walkway when we know Kato testified during the preliminary hearing as to those three thumps behind there. That's all I wanted to say, your Honor. I just wanted to point out that their intended cross-examination would not shed light on the issues they list in their supplemental brief.
THE COURT: All right. Thank you, counsel. Mr. Uelmen, do you feel compelled to respond to that?
MR. UELMEN: No, your Honor.
THE COURT: All right. Thank you.
(Brief pause.)
THE COURT: All right. We've been rejoined now by counsel Darryl Mounger who represents Mark Fuhrman. Good afternoon again, counsel.
MR. MOUNGER: Your Honor, over the break, I talked to Mr. Fuhrman, and it is our position that because I am walking into this trial after eight months, I am unfamiliar with all of the testimony. I have been handling my own cases and not followed this trial intimately. I have come into this court asking for the McKinny tapes and a copy of the transcripts so that I might review them with my client, although I have reviewed most of them. I have tried to correlate that information and interview my client, and I'm unable to put it in the context which it deserves. Based upon this court's July 31st--I'm sorry--August 31st ruling and the words specifically I believe on page 5, on the information I do know and the information especially I do not know, I have advised Mr. Fuhrman that he should not answer any questions before this court. Therefore, it is my understanding that he will assert his 5th amendment privilege if asked any questions.
THE COURT: All right. Mr. Uelmen, for the purposes of the record, will you accept that representation?
MR. UELMEN: No, your Honor. We believe it's necessary for him to assert the privilege from the witness stand in response to a question.
THE COURT: All right. Since there's an unwillingness to accept and stipulate to that, it will be necessary for Mr. Fuhrman to resume the witness stand for the purpose of this motion and to assert the privilege.
MR. MOUNGER: He will be here shortly, your Honor.
THE COURT: All right. All right. Then, Mr. Uelmen, Miss Lewis, I've indicated to you off the record that I need to--in order to rule on the motion to suppress, renewed motion to suppress, I need to review the preliminary hearing transcript, which I have not had the opportunity to do since earlier--much earlier in the trial. So I'll need to do that. So I don't think you should anticipate a ruling this afternoon on that motion.
MS. LEWIS: Thank you, your Honor.
THE COURT: And, Mr. Cochran, I did see Miss Chapman come in. There she is.
MR. COCHRAN: She is here, your Honor.
THE COURT: Did she give you a status report?
MR. COCHRAN: May I confer with the two of them?
(Discussion held off the record between Defense counsel.)
MR. COCHRAN: Your Honor, I'm informed by Mr. Scheck and Miss Shawn Snider Chapman that they're in the process of interviewing witnesses, that they will take the rest of the day to try and do that. They cannot finish they think until tomorrow morning in that regard. They're asking that we come back tomorrow at 10 o'clock, and they will be ready to proceed with the Brady motion. They're going to have these witnesses brought down shortly with Mr. Shapiro I believe along with Mr. Yochelson to ask that they be ordered back. They'll finish today and then ordered back for tomorrow morning. That's my understanding from what Mr. Scheck has indicated, and we can start again at 8:30 tomorrow morning after they finish today.
THE COURT: I'm sorry. I heard 8:30 and I heard 10 o'clock.
MR. COCHRAN: Yeah. 8:30. They want--they want--they're going to try to finish interviewing the witnesses this afternoon. In case they can't, they want to resume the interviewing tomorrow morning at 8:30. And they somehow manage--
THE COURT: How about we finish the interviews tonight and start tomorrow morning at our regular 9 o'clock?
MR. COCHRAN: I'm sure they're going to try to do that, your Honor. But out of an abundance of caution, their thought was--there are a number of witnesses--they would perhaps need until 10:00, to have the witnesses ordered back tomorrow for 8:30. I think that was the plan. They are trying, your Honor. We had them go do that this afternoon.
THE COURT: How many people do we--how many witnesses are we--
MR. COCHRAN: Let me let one of them speak, your Honor, if I might.
THE COURT: All right. Miss Chapman.
MS. CHAPMAN: Good afternoon, your Honor.
THE COURT: Good afternoon.
MS. CHAPMAN: I know that officer--Detective Maxwell was going to leave by 4 o'clock today to try to pick up a child from school. So I don't know that we'll be able to interview him this evening. Mr. Yochelson will be down with the rest of the witnesses, and we'll try to interview whomever we can this afternoon.
THE COURT: But how about if we come back at 9 o'clock, and if we then at that point can't--
MS. CHAPMAN: Okay. Okay.
THE COURT: All right. Thank you.
MS. CLARK: Your Honor, so the record is clear, the Defense has had six months to talk to these people. They interviewed Lucienne Coleman in April.
THE COURT: Excuse me. Counsel.
(Brief pause.)
THE COURT: Miss Clark.
MS. CLARK: They interviewed Miss Coleman in April. That means that as of this date, we have more than four months that they have had to talk to these witnesses, and now we need extra time at the 11th hour for them to interview witnesses they've had access to, opportunity to talk to ad nauseam for more than four months and in some instances six months?
THE COURT: Which is why I'm inclined to resume tomorrow morning at 9 o'clock, at our regular time. There are other motions we do need to conclude however at this point in time.
MS. CLARK: And can we get a representation on the record as to what other witnesses the Defense intends to call other than the Brady witnesses, quote, unquote, and I use the term loosely that they intend to call before the jury?
THE COURT: I think part depends on the court's ruling on the 1538.
MS. CLARK: How would that be? Assume the court grants it, what further witnesses would they need to call.
THE COURT: I don't know. I don't ask. Mr. Cochran, who else do you have after--since we've finished Mr. Hodge and the court's ruling, we're finished with Miss McKinny.
MR. COCHRAN: Part of it is, your Honor, that there are two witnesses as the court is aware that I mentioned, Mr. Vettraino and Mr. Goulston, who are upstairs--I presume they're going to be talked to. I haven't gotten a report on those two at this point. We would also like, so we don't have any downtime--I've indicated this to counsel earlier--to know who their first rebuttal witnesses are so we can prepare for those. In other words, so we don't have downtime on that also.
THE COURT: All right. So your representation is Goulston and Vettraino based upon the interviews that you conduct this afternoon.
MR. COCHRAN: And Fuhrman if--the court's aware of that, and then plus the Brady motion.
THE COURT: All right. All right. Thank you, counsel.
MR. COCHRAN: Thank you, your Honor. We're going to need the rebuttal witnesses also, your Honor.
MS. CLARK: As soon as the Defense rests.
THE COURT: All right. Mr. Uelmen, I take it at this point then, you wish to recall Detective Fuhrman.
MR. UELMEN: Yes, your Honor.
THE COURT: All right. And so that the record is clear, my recollection is that Detective Fuhrman, who is now present in court with counsel, Mr. Mounger, my recollection is that Detective Fuhrman was excused, but not released and was subject to recall. Is that your recollection?
MR. UELMEN: That is correct. Your Honor.
THE COURT: All right.
MR. UELMEN: He was not excused.
THE COURT: Well, let me rephrase that. Subject to recall. Excused for the day, subject to recall, not terminated as a witness before the court.
MR. UELMEN: That's correct.
THE COURT: All right. And, Mr. Mounger, if you wish to stand next to your client, you may.
MR. MOUNGER: Thank you.
THE COURT: All right. Detective Fuhrman, would you resume the witness stand, please.
Mark Fuhrman (402), recalled as a witness by the Defendant, pursuant to evidence code section 402, having been previously sworn, testified further as follows:
THE COURT: All right. Good afternoon, detective.
DET. FUHRMAN: Good afternoon, your Honor.
THE COURT: You are reminded, sir, that you are still under oath. Mr. Uelmen, you may proceed.
DIRECT EXAMINATION BY MR. UELMEN
MR. UELMEN: Detective Fuhrman, was the testimony that you gave at the preliminary hearing in this case completely truthful?
DET. FUHRMAN: I wish to assert my 5th amendment privilege.
MR. UELMEN: Have you ever falsified a police report?
DET. FUHRMAN: I wish to assert my 5th amendment privilege.
MR. UELMEN: Is it your intention to assert your 5th amendment privilege with respect to all questions that I ask you?
DET. FUHRMAN: Yes.
MR. UELMEN: Can I have a moment?
THE COURT: Certainly.
(Discussion held off the record between Defense counsel.)
MR. MOUNGER: Your Honor, further questions don't serve any purpose since my client has already answered that he will not answer any question and will assert his 5th amendment privilege. Anything further can only be a show.
MR. UELMEN: I only have one other question, your Honor.
THE COURT: What was that, Mr. Uelmen?
MR. UELMEN: Detective Fuhrman, did you plant or manufacture any evidence in this case?
DET. FUHRMAN: I assert my 5th amendment privilege.
THE COURT: All right. Based upon the witness' answers, the representation by his counsel, Mr. Mounger--
MS. CLARK: Your Honor, the People make an objection to the last question and ask the court to strike it as being improper and does nothing but headline.
THE COURT: Overruled. The answer will stand. All right. Miss Clark, do you have any questions of this witness?
MS. CLARK: No questions.
THE COURT: All right. Then, given the assertion of the 5th amendment privilege, we will not conduct any further inquiry as to Detective Fuhrman. And--but, however, detective, I am going to release you from further attendance this afternoon. However, you are still subject to recall. All right. Thank you, sir.
DET. FUHRMAN: Thank you, your Honor.
MS. CLARK: Your Honor, may I ask the--if the Defense intends to recall Detective Fuhrman for the purpose of having him assert the 5th again, I suggest we do it now. Why have him come back for that purpose? They're not permitted to do it in front of the jury.
THE COURT: No. Counsel, I just want to make sure we preserve the jurisdiction of the court in case there are any other issues that come up.
MS. CLARK: I understand that. But what I'm saying is, will this assertion suffice for the trial testimony as well? I can see no purpose being served other than a further waste of time to have Detective Fuhrman recalled to reassert the 5th amendment privilege again, and I'm asking that if counsel intends to do so, that we allow that record to be made at this time.
THE COURT: That record's been made at this point.
MS. CLARK: For the purpose of trial testimony?
THE COURT: Based upon the representations of counsel that he's not going to answer any further questions regarding this case.
MR. MOUNGER: Your Honor, since he lives without the state, is he free to travel home?
MR. COCHRAN: Will the court allow us to approach for a moment?
THE COURT: Sure. All right. With Mr. Mounger, please.
(The following proceedings were held at the bench:)
MR. COCHRAN: Your Honor, the problem we have is that I'm not sure we argued this particular aspect. I wanted some clarification. We're the ones that paid to have him brought here. So it would fall on us whether he stays over. But we obviously would want him to be able to briefly argue what our rights are in this regard. Now that he's claimed the 5th amendment, they can't just try to hide that from the jury. We are going to propose either a jury instruction or whatever, some way--we are being disqualified from further cross-examination of this man, and we propose a particular remedy. And so I mean--sure, they'd like to rush him away quietly. It's not that easy. We will accommodate Mr. Mounger's schedule. We have total respect for him, but we have--I think the court wants some assistance, some argument from us, points and authorities about what our remedy is in regard to this. This is not something you want to do by the seat of your pants.
THE COURT: I assumed you all had thought about this.
MR. COCHRAN: We did. We thought about it and we'd like an opportunity--
THE COURT: And my recollection is that the Prosecution indicated they had a memorandum, points and authorities ready to go.
MR. COCHRAN: Mr. Darden said that. We haven't seen it.
MS. CLARK: We have it. We've researched this issue, we're prepared to argue it. They have no right to have him invoke in front of the jury.
MR. COCHRAN: Nasty attitude. We're not--
MS. CLARK: Just an assertion.
MR. COCHRAN: All we're saying, your Honor, we would like an opportunity to respond, to give you our brief in that regard and we don't want him to leave until that point. It would just be a day or so. So I think it's the same problem as with McKinny. We don't want to let her go before we resolve the issue and we would like to talk about it tomorrow.
THE COURT: Mr. Mounger, what I'm inclined to do is allow counsel the opportunity to brief the issue and have your client on call for tomorrow.
MR. MOUNGER: And if it doesn't materialize by tomorrow, are we free to--
THE COURT: Then he will be released subject to recall and I'd say within 72 hours' notice. But I assume we'll resolve this issue tomorrow.
MR. MOUNGER: All right.
THE COURT: All right. Do you accept the responsibility to convey that order to your client?
MR. MOUNGER: Yes, your Honor.
THE COURT: Thank you. Anything else?
MR. MOUNGER: So I understand it clearly, if we have no order by the close of court tomorrow, then--
THE COURT: He's free to travel back.
MR. MOUNGER: --free to travel?
MR. SHAPIRO: On 72-hour call. I will call him. We have some witnesses we want to get ordered back for tomorrow.
THE COURT: And, Miss Clark, if you would file your points and authorities.
MS. CLARK: Yes. Yes.
MR. SHAPIRO: Your Honor, can we go off the record for scheduling on the Brady motion?
THE COURT: Yes.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: All right. Back on the record. Mr. Shapiro or Miss Chapman, did you have some witnesses you wanted ordered back?
MR. SHAPIRO: Yes, we do, your Honor. We have one witness who is in court, Detective Andrew Purdy, who is present with his counsel. We'd like him back for tomorrow.
THE COURT: All right. Counsel, your name for the record?
MR. HADDEN: William J. Hadden, your Honor.
THE COURT: All right. Mr. Hadden, you and Mr. Purdy are ordered back tomorrow morning, 8:30.
MR. HADDEN: Thank you, your Honor.
THE COURT: All right. Thank you. You are excused.
MR. SHAPIRO: Your Honor, we have three members of the District Attorney's office we'd like to have for testimony tomorrow that we've informed Mr. Hodgman of. We need not give their names tonight. And we have several other officers that Mr. Hodgman has been kind enough to accommodate us with but we have not had time to interview, and we would like to give you that list, but not in open court. We have no other witnesses in court. Is that correct, Mr. Hodgman?
MR. HODGMAN: Yes.
MR. SHAPIRO: We would like to give you that list.
THE COURT: What's your time estimate for your Brady motion?
MR. SHAPIRO: Your Honor, we are still in the process of interviewing some of the witnesses. Mr. Purdy has been very, very cooperative. We have about another half hour with him, and we would like to interview the remainder of the witnesses today. I would be in a better position to give you that estimate tomorrow morning when Mr. Scheck, Miss Chapman and I have had a chance to assimilate all of the material.
THE COURT: All right. So what advice do you give the court on the question that weighs most heavily on my mind?
MR. SHAPIRO: I would say that certainly no earlier than 10 o'clock, your Honor. I think by that time--
THE COURT: I'm getting advice. All right. Miss Clark, what's your position?
MS. CLARK: Your Honor, I think I've made it pretty clear. They've had six months to talk to these people and now they want more time. Another delay with this jury on ice again, it's so unnecessary. And as the court pondered--
THE COURT: No. I'm just asking, do you have any estimate as to how long you think the hearing will take based upon what you know from the moving papers, who the witnesses are and what the issues are posed? I mean, do you just have a guess--I'm just inviting you to help me a little so we cannot keep the jurors too inconvenienced for too long. That's all I'm asking.
MS. CLARK: Well, there's no testimony necessary on the motion, your Honor. Counsel can make their pitch to the court. The bottom-line issue of this I think comes back to what the Defense likes to characterize as a log, and that's--of officer Purdy and that's it. There is very little else to talk about, but it certainly does not require the testimony of witnesses. And if this hearing is conducted in that fashion, which is all that is required, then it should be done in about half an hour, because there is no exculpatory information that has not been turned over, Judge.
You know, the People in this matter turned over everything that came to them back in February as the court knows, submitted it to the court for examination, for IAD investigation, all of which was turned over to the court back in February of this year. So at this point, you know, the People have satisfied their obligations. There's nothing that we haven't done, and the court should be able to make that finding in about 2 minutes.
THE COURT: All right. I'll guess an hour then.
MR. SHAPIRO: Your Honor, for the court's edification, ordinarily, the facts would not be in dispute when we're dealing with Deputy District Attorneys and members of the Los Angeles Police Department. However, we're in a paradoxical situation here where we have certain statements and one under penalty--a declaration that's been filed that has not been signed that indicates a certain set of facts from at least one and possibly two Deputy District Attorneys and a statement that we understand was given under oath in Internal Affairs, saying that the Deputy District Attorney was a liar from one of the members of the Los Angeles Police Department. If we could get a resolution of the facts with the help of the District Attorney's office, that would certainly move this proceeding along.
THE COURT: All right.
MS. CLARK: May I remind the court that it asks counsel to bring in their reports and notes to assist the court in determining what stage they were at, and I think the court asked them to do it last week. Was that turned over?
THE COURT: Yes. Yes, it was.
MS. CLARK: The People have not been furnished with any of that.
THE COURT: All right. 10 o'clock with the jury. All right. Anything else. All right. We're in recess.
(At 4:15 P.M., an adjournment was taken until, Thursday, September 7, 1995, 9:00 A.M.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
Department no. 103 Hon. Lance A. Ito, Judge
The People of the State of California,)
Plaintiff,)
Vs.) No. BA097211)
Orenthal James Simpson,)
Defendant.)
Reporter's transcript of proceedings Wednesday, September 6, 1995 volume 217
Pages 44196 through 44408, inclusive
(Pages 44179 through 44195, inclusive, sealed)
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APPEARANCES:
Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters
FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
ALSO PRESENT: Irving Miller, Esquire Matthew Schwartz, Esquire Ron Regwan, Esquire Darryl Mounger, Esquire William J. Hadden, Esquire
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I N D E X
Index for volume 217 pages 44196 - 44408
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Day date session page vol.
Wednesday September 6, 1995 A.M. 44196 217 P.M. 44312 217
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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
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CHRONOLOGICAL INDEX OF WITNESSES
DEFENSE witnesses direct cross redirect recross vol.
McKinny, 217 Laura Hart (Resumed) 44205C 44215D 44237C 44283D (Further) 44286C 44287D (Further) 44288C 44288D
Hodge, Roderic 44297C 44302D 217 (Resumed) 44315D 44316C
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DEFENSE (402) WITNESSES
Direct cross redirect recross vol.
Fuhrman, mark 44397U 217 (402)
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ALPHABETICAL INDEX OF WITNESSES
WITNESSES direct cross redirect recross vol.
Fuhrman, mark 44397U 217 (402)
Hodge, Roderic 44297C 44302D 217 (Resumed) 44315D 44316C
McKinny, 217 Laura Hart (Resumed) 44205C 44215D 44237C 44283D (Further) 44286C 44287D (Further) 44288C 44288D
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EXHIBITS
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
603 - 4-page document 44218 217 described as a non-disclosure agreement from the law offices of Regwan and Schwartz
604 - 13-page document 44309 217 described as a personnel complaint filed by Roderic Hodge
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DEFENSE for in exhibit identification evidence page vol. Page vol.
1369 - 1-page document 44331 217 entitled "Sunrise and Sunset at Los Angeles, California"