Sidebar: Levis jacket evidence

📄 Sidebar: Levis jacket evidence — Tuesday, October 29, 1996

Address:

C:\DEPT103\CIVIL\1996\OCT\29\SIDEBAR-LEVIS-JACKET-EVIDENCE.DOC

TRIAL

▲ Day 5 of 57

◀ Redirect examination of Ron Phillips (part 2) Redirect examination of Ron Phillips (part 3) ▶

Date: Tuesday, October 29, 1996 • Utterances: 27

Defense attorneys Leonard and Baker argue that plaintiff's counsel Medvene has opened the door to evidence about police misconduct by questioning a witness about blood and whether the scene was ransacked, leaving the jury with a false impression that all important evidence was collected. Specifically, Baker argues that a Levis jacket not collected from the scene — which he claims Fuhrman took and wore until 3 AM — represents a critical missed opportunity to challenge the planted glove theory. Judge Fujisaki refuses to revisit his prior ruling but warns Medvene that continued questioning in that vein could eventually open the door.

# 1 (The following proceedings were held at the bench, with the reporter.)

# 2 MR. LEONARD:

Wait for everybody to get here.

I think the door's been opened. I know what your ruling is, and I accepted it at the time it was made. But I believe the door has been opened.

Mr. Medvene asked this witness if he saw any blood, bloody footprints in the residence, if it appeared to be ransacked. This witness has said it was a crime scene.

I really think it's unfair for him to leave the impression with the jury and the inference that everything that was important was noted and checked.

# 3 THE COURT:

Was there blood on the jacket?

KEY QUOTE

# 4 MR. LEONARD:

Was there blood on the jacket? We'll never know; it wasn't collected. That's the point.

KEY QUOTE

# 5 THE COURT:

The point is this: You guys are blowing up a smoke screen. And I made a prior ruling on the basis of smoke screen. You know we went through a real process of going through motions. You submitted substantial briefs. I read all of the briefs; I made a ruling. I'm going to stick by it.

KEY QUOTE

# 6 MR. LEONARD:

Your Honor, just, I'm not going to let -- with all due respect, I'm not going to let that remark pass.

I don't believe this is a smoke screen. I've tried a number of criminal cases, homicides, all over the country.

# 7 THE COURT:

This is not a criminal case.

KEY QUOTE

# 8 MR. LEONARD:

Your Honor, with all due respect --

# 9 THE COURT:

This is not a case of reasonable doubt. When you're saying the police department failed to take action which prevented the defendant from establishing this reasonable doubt, this is not a criminal case.

This case is really simple; it's a case in which the plaintiff has to prove by the evidence that was obtained that your client did it.

If they can't do that, you win. We're not trying the police department.

# 10 MR. BAKER:

You made a couple of rulings. One is, they made a motion under 664 that put the police or officials are presumed to do their duty. That's what they put before this jury.

Now, our case is, they didn't do their duty. And what you're allowing by your ruling -- and I understand about in the Kaurish case that there are different methods of collection.

What you're allowing is, I think, a smoke screen. You're allowing this jury to hear that this police department does everything right, and it's that evidence -- that is the only evidence that's viable relative to this murder scene.

# 11 THE COURT:

That precludes --

# 12 MR. BAKER:

-- from showing that they have their minds made up before they ever went to Rockingham. That just precludes us from showing that this police department didn't -- for example, if you take that Levis jacket, there will be testimony that Mark Fuhrman took that Levi jacket, we believe.

We further believe that there will be testimony Mark Fuhrman was wearing a jacket, that he had a jacket on until 3 o'clock in the morning. And that the importance of this is, he had some place where he could plant this glove. And we think it's important to talk about opportunities.

And when you preclude us all over the place by saying we're putting up a smoke screen, I think that's absolutely untrue.

Their whole evidence is police evidence. Their whole evidence, their whole case, is police evidence.

You say, well, it isn't a criminal case, and it's by a preponderance of the evidence.

It seems to me that, since it's by a lesser standard, that the burden --

# 13 THE COURT:

Mr. Baker, if you're going to be offering evidence that Fuhrman had a jacket on, fine. But put it on in your phase of the case.

# 14 MR. BAKER:

Well, Judge, you precluded us from putting everything on.

# 15 THE COURT:

Now you can put a jacket on; if you've got a witness to put a jacket on, put a jacket on.

# 16 MR. BAKER:

I've got a witness that will put a jacket on Fuhrman.

# 17 THE COURT:

Maybe you do, maybe you don't.

# 18 MR. BAKER:

Well, I mean, you're just taking our whole case; that's my whole point.

# 19 THE COURT:

I made my ruling.

# 20 MR. BAKER:

Let me finish. Let me make my record.

# 21 THE COURT:

I made my ruling.

# 22 MR. BAKER:

Let me make my record.

# 23 THE COURT:

You made your record.

# 24 MR. BAKER:

My record is, when there's less of a burden of proof, it's even more important that we get to put this evidence on.

Now I've made my record.

# 25 THE COURT:

Mr. Medvene, if you persist in that manner of presenting your evidence, I will consider that the door eventually will be opened.

KEY QUOTE

# 26 MR. MEDVENE:

I understand, Your Honor.

# 27 MR. LEONARD:

That's great. This is their last police witness.

Temperature

tense

Key Quotes (5)

Dan Leonard

Was there blood on the jacket? We'll never know; it wasn't collected. That's the point.

Crystallizes the defense's core complaint: the jury is being misled into thinking all important evidence was preserved when key items like the Levis jacket were never collected.

Hiroshi Fujisaki

You guys are blowing up a smoke screen. And I made a prior ruling on the basis of smoke screen.

Reveals the judge's dismissive posture toward the defense's police misconduct theory; his language draws a sharp rebuke from Leonard.

Robert Baker

There will be testimony that Mark Fuhrman took that Levi jacket, we believe. We further believe that there will be testimony Mark Fuhrman was wearing a jacket, that he had a jacket on until 3 o'clock in the morning. And that the importance of this is, he had some place where he could plant this glove.

Most explicit articulation in the civil trial of the Fuhrman glove-planting theory, linking the jacket to opportunity.

Hiroshi Fujisaki

This is not a criminal case... When you're saying the police department failed to take action which prevented the defendant from establishing this reasonable doubt, this is not a criminal case.

Fujisaki distinguishes the civil standard from criminal, rejecting the defense's framing that police failures are fair game as they were in the criminal trial.

Hiroshi Fujisaki

Mr. Medvene, if you persist in that manner of presenting your evidence, I will consider that the door eventually will be opened.

The sole concession Fujisaki makes — a warning to the plaintiff rather than a ruling for the defense, leaving the issue alive.

Evidence (2)

Informal

Levis jacket found at crime scene, not collected as evidence

challenged — defense argues its non-collection is itself significant and that Fuhrman took and wore it

Informal

The bloody glove found at Rockingham

discussed — Baker argues the jacket gave Fuhrman an opportunity and place to conceal and plant the glove

Notable Exchanges (2)

Hiroshi Fujisaki•Dan Leonard

Fujisaki calls the defense argument a 'smoke screen'; Leonard refuses to let the remark pass and pushes back, noting his experience trying homicide cases nationwide. Fujisaki pointedly reminds him this is not a criminal case.

heated

Hiroshi Fujisaki•Robert Baker

Baker makes an extended argument about Fuhrman's jacket and glove-planting opportunity; Fujisaki repeatedly interrupts with 'I made my ruling.' Baker insists on making his record and explicitly says Fujisaki is 'taking our whole case.'

tense

Credibility Attacks (1)

⚔ Mark Fuhrman

conduct/opportunity

Baker argues Fuhrman took the Levis jacket, wore it until 3 AM, and that it provided an opportunity to conceal and plant the glove at Rockingham — the most direct glove-planting allegation made at the bench in this proceeding.

Objections

None recorded

Proceeding 8068 • 27 utterances

Civil Trial

Department 103