THE COURT: Just a minute. Ten-minute recess, ladies and gentlemen. (Recess.) (The following proceedings were held in open court outside the presence of the jury.)
All right, at this time we're proceeding in the absence of jurors and we're going to address the motions—I believe there are four motions—filed by the defense. First motion that the Court addresses is defendants' motion to preclude rebuttal testimony of Terry Lee, Roger Martz, Bradley Popovich and Richard Fox. I've read the moving papers. Plaintiff want to be heard?
Yes, your Honor. Under California Civil Code Section 607, rebuttal evidence is proper when offered to disprove evidence offered by the other party's case in chief. It is not proper, for example, where you're merely reiterating matters that were previously covered in the plaintiff's case in chief. Classically, rebuttal is appropriate where you are proffering experts to rebut the experts offered by the defense. Now, as I understand the argument of the defense here, they are somehow contending that because of certain matters being mentioned in my opening statement, that we somehow are now barred from bringing up by way of rebuttal and have somehow inherited the burden of proof on those matters. Our rebuttal case, Your Honor, will principally consist of points directed to four issues. One is the photo issue regarding the shoes. We have a couple witnesses to call to rebut the defense contention that the photograph that was offered into evidence taken by photographer Scull is a fraud, and they offered their expert, Mr. Groden, and we are going to offer Mr. Richards and Mr. Flammer and Mr. Bodziak, and perhaps maybe even Mr. Simpson, depending on what happens in the cross-examination.
Gerald Richards is an expert who will rebut the expert testimony of Charles Groden—Robert Groden, excuse me. (Laughter.)
I'm going to hear about this. E.J. Flammer is the photographer who took the photograph—photographs that were introduced to impeach not only Mr. Groden, but also Mr. Simpson, and he will authenticate the photographs. Mr. Bodziak will testify that the shoes in those photographs are in fact Bruno Magli shoes, Lorenzo, same as—as in the Scull photograph. In addition to that issue, the defense has raised the so-called planting issue. They've said that the socks were planted, and they offered an expert by the name of MacDonell who talked about little balls of blood. We will rebut that testimony with our expert, Richard Fox. The defense contends that blood was planted in one aspect. They offered a guy named Rieders who talked about the presence of EDTA where it shouldn't be, and we will rebut that with the testimony of Dr. Terry Lee. The defense has offered evidence with regard to the second Bronco collection of blood, attempting to indicate that that blood had not been there previously and therefore was planted, and we will present some of the SID photographers who took the photos on which the defense is relying to explain away those assertions. The defense has argued that the glove is planted. Recently they introduced some testimony from Mr. Fung with regard to the so-called hole, which is in fact not a hole, and we will offer a glove photographer and perhaps Greg Matheson to rebut that assertion. In addition, the defense offered the testimony of Rolf Rokahr to indicate that a photograph was taken at a particular time, and that somehow, although it's unclear to me how, proves that a glove was planted. We will present the testimony of Sandra Claiborne of SID who was with Mr. Rokahr and will testify about the timing of the photograph. The defense has attempted to prove in their case that other blood evidence that may not have been planted was nonetheless contaminated, and they relied principally on their expert named Gerdes, and we will call our expert, Popovich, to rebut some of the Gerdes points. And finally, depending particularly on what happens on Mr. Simpson's examination and what he proffers by—with regard to issues of the— concerning the relationship between himself and Nicole Brown Simpson, we may call some witnesses on that issue. The Court will be reminded that one of our fact witnesses was unavailable in the first— when we were presenting our case in chief. His name is Alfred Acosta. And the Court gave us permission to call him out of order when it was our turn in rebuttal, and we plan to call him if indeed he is available. Finally, Your Honor, in terms of the law, here, I would cite to the Court the case of Diamond Drinks Lime Company versus American River Constructors, 16 Cal.Ap.3d 581, which makes it clear that under, those, in this case, we are absolutely entitled to put on this sort of rebuttal evidence, and the case of Charlieville versus Metropolitan Trust company of California 1236 Cal.Ap. 349. The last point I'm going to make is, if the Court will remember back in the opening statement that I made, Baker made an objection to my even bringing up any evidence by way of rebuttal to his witnesses, claiming that he may decide not to call those witnesses and therefore I had to wait until the end of my case, and the court sustained that position. And that was at page 63 of the transcript from opening statements. And Mr. Baker said, "Opening statement is what their case is, what their evidence is going to prove, what—they have a burden of proving it, not to rebut what our position may or may not be at time of trial." Okay. And he goes on to say, "In my opinion, they've got to save that for the conclusion of the case." And that's precisely what we're doing. And in regard to all of the issues on which we seek to offer rebuttal, I might add, they have the burden of proof. We can't acquire the burden of proof when they respond to that fair affirmative defense opens by mentioning them in our opening statement. That's never been the law and wouldn't make any sense. They're going to have the burden of proof. We will argue on these issues, that the photographs are a fraud, that any evidence was planted or that any evidence was contaminated, they will have the burden, they put it on in their case, and we're responding to it.
Your Honor, I haven't looked at the Charlieville case, which is even older than I am, or the Diamond case, because we didn't—we didn't get any of this from Mr. Petrocelli. But as this court is aware, these are all—for example, these are all designated expert witnesses. And my objection to his opening statement did not go to Mr. Petrocelli, for example, asserting that we will have experts that will assert there is no contamination, we will have experts that will assert that these photographs are not phony. They—he could certainly have said that and put that evidence on, and had an obligation at the time that he presented his case in chief to call all the expert witnesses that he had designated in his case. He chose, for tactical reasons, as a ploy, not to put those experts on so that they—that he could have a tactical—what he thinks is a tactical advantage at the end of the case. The cases that we cited to you indicate that that is totally inappropriate. Those issues were issues in this case before his law firm ever got involved in the case. Those issues have permeated the criminal trial, they have permeated this trial. Those expert witnesses should have been called in his case in chief. And now—I guess Bodziak was called in his case in chief. And now, from what I've just heard, he seems to think that he's entitled to call Bodziak again for these, quote, newly discovered photographs that were taken over three years ago. Now, that seems to me to destroy any alleged 2034 designation of experts. And I believe that certainly he's entitled to call people relative to the issue of the Bronco photographs that—that we assert show no blood on August—early August, as contrasted to August 26 when there's blood all over the console, the August 10 photograph, the August 26, and certainly he's entitled to call relative to the issue of whether or not that is in fact a hole or a pebble in the glove that was raised. The other issues were well known to him, and our position is, and I think it's supported by the code section and the cases we cited, he cannot attempt to sandbag his case in chief, and for political and tactical ployish reasons, withhold all those experts until now. They have been known and they should have been in his case in chief. And if in fact that happens, then this case goes on another month, because we have then surrebuttal to those—those people.
Well, it depends upon your rulings. You can't call five experts, one who has already been on the stand, and—maybe six experts, and suggest that we shouldn't have any surrebuttal to those people.
All right. The Court has read the moving papers, has read the cases cited by the defendant, and I'm satisfied that under these circumstances, the fact that any mention in the opening statement in and of itself did not obligate the plaintiff to offer rebuttal to the various specific defenses raised by the defendant in their defense. The rebuttal evidence appears to this Court, based upon representation of counsel, that's what they're going to testify to, going specifically to the issues raised by the affirmative defenses submitted by the defense to the jury. And the motions to preclude the presentation of the rebuttal witnesses are denied. That is as to both the—there's a separate motion filed as to—as to the photographs. I include this order as covering the photographs as well. Particularly with regards to the photographs, the representation is that the plaintiffs did not have the photographs until they had rested their case in chief. Under those circumstances, they had no duty to offer any evidence of that nature in their case in chief.
You're not suggesting now they can submit those to an expert witness and have that expert witness come in here, and Bodziak has already testified, and testify to the authenticity of those photographs, which we have not raised any such issue yet, obviously.
Okay. Fair enough. You're not saying that Bodziak, who came in here and testified as to—as to the shoes, can now come back in and say that these are in fact Bruno Magli shoes? He's going to be limited to what he testified to in the criminal trial and what he testified to—because he was a designated expert under the stipulation. And now they're suggesting that Bodziak come into this courtroom and expand his testimony because he was subject to the stipulation and then his deposition was taken for the Scull photo. Okay. Then—but that limited the amount of what he reviewed, and you're not, I take it, suggesting 2034 is waived.
We don't know what position they're taking. If he takes the position that these photographs—that these shoes that are in the Flammer photographs are not Bruno Magli shoes, then Mr. Bodziak will so testify that they are. We don't even know what their position is. If he concedes the position, then he won't be necessary.
If you offer evidence or testimony that the Flammer photographs don't show Bruno Magli shoes, then I think the Court is going to rule that plaintiffs can rebut with Bodziak or—
Okay. Now, next motion the Court will address is—defense memorandum, I guess, is the motion. Defense memorandum of law re admissibility of Mark Fuhrman statements contained in tapes of Laura Hart-McKinney. Go ahead.
Your Honor, this is obviously— we're revisiting the Fuhrman issue here from a slightly different angle. This was—as I think is clear from the moving papers and perhaps as Your Honor already knows from other sources, Detective Fuhrman spoke to a Laura Hart-McKinny, who is a wanna-be playwright, and he gave her a lot of information about his personal experiences, including several admissions with regard to police misconduct and also planting evidence and so forth and so on, and also his indication of his racial animus. There's really no question that these are classic statements against penal interests. I think we set that forth in the—in our moving papers. So I think there's also no question that these are absolutely relevant to this case. We have raised, as Your Honor knows, the issue of whether or not the glove on the Rockingham property was planted and whether or not other evidence was planted, including blood, and now we have the issue of this disappearing hole in the Bundy glove. So we think that when we have evidence that one of the primary, if not the primary, actors, particularly with regards to the Rockingham glove, has a—someone who is an acknowledged racist, and according to the statements he made, felon, then I think that that's something that this court should permit the jury to hear. I think it's relevant and I think it's clear, again, these are clearly statements against penal interests. We've already filed—I might as well argue it now. We've also filed a separate motion arguing that some of what we'll call in the past Mr. Fuhrman's substantive testimony at the criminal trial also amounts to statements against penal interest, particularly in view of the context in which the statements were made. And we've listed those—all those 20 different areas on pages 4 through 7 of the memorandum. And I would cite in particular the case People versus Gordon, which sets out the standard that suspicious conduct alone can be amount to statement against penal interest at least set up the circumstances under which might otherwise be a nonincriminating statement, is in fact a statement against penal interest. So we would ask the Court at this point to admit at least these portions as we set out in our memoranda of Detective Fuhrman's prior testimony. I mean we have a situation, as Your Honor knows, where one of the primary investigators and actors in the case is not here because he chooses not to be here. And I don't think it's fair. I don't think it's a right thing at all. I think our case is highly prejudiced. We can't really stop him from running away. I don't think you should let the plaintiffs hide him at this point. I think he's in this case and I think—
Well, I don't—I think we should be allowed—yes, by their objection to his prior testimony. Exactly. And I think we should be allowed to present this to the jury. I think it's relevant and I think it falls within the exception to the hearsay rule. Thank you.
If the Court please, plaintiffs aren't hiding anyone. We attempted also to take his testimony. We'll address first the contention that his criminal trial testimony should be admissible. This has been before Your Honor twice. The request has been denied twice. Now, belatedly, the claim is that the otherwise innocent statements are somehow admissions against penal interests. There's no case that supports that. The law is clear that one has to know, or have some reason to know, that this statement one is making is against his penal interest. There's no case that holds, as the defendants argue, that an otherwise innocent statement or testimony during an investigation that no one reasonably could have known would subject someone to some penal consequence, falls within the penal exception to the hearsay rule. Really, what this is about, Your Honor, is getting in some testimony of Mr. Fuhrman in an attempt I think, as was pointed out earlier, to set up that testimony so they can then try to impeach it with a second string of the proverbial ball that other statements made in the—in the McKinney tape. On the statements on the McKinney tape, we know that they're all hearsay. They claim again against penal interest, which is curious, since the statements are ten years old. So how could trial statements they're trying to impeach, be impeached by something allegedly against his penal interest, if the statute really would have run? But more than that, primarily, there's nothing to impeach. Detective Fuhrman did not testify in this case, so the statements they offer of him are not relevant for any purpose. And I might note, Your Honor, that, in the earlier criminal case, even in a situation where Detective Fuhrman did testify, or when Detective Fuhrman, in each and every instance cited the 18 cited—and the comments in the '94 tape, were all held not relevant, even when he did testify. And, of course, this is a totally different case, because both sides have attempted to question him, and he has chosen not to testify. So we say for all of those reasons, Your Honor, that the—any of the transcript portions cited should not be admissible.
Your Honor, just one statement that Mr. Medvene made is absolutely incorrect: After the preliminary hearing, one of the statements Fuhrman made is, "I'm the key witness in the biggest case of the century. You know if I go down, they lose the case. The glove is everything. Drop the glove, because you are going down." Now, that's—that's something that was uttered after he had already been involved in—in the case, 1994, in July.
He also says, by the way, in that same tape, that he did nothing wrong; and anybody that thinks he did anything, one, is a psycho, and everything he did was appropriate. But aside from that, that very statement in the prior criminal case where he did testify, was not permitted in under 352. Here, most importantly, there's nothing to impeach, because the man has not testified.
Your Honor, I would note for the record, since we're now talking about what some other judge did, that there was no argument made that I'm aware of along these lines in any statements against penal interests.
All right. With regards to the taped statements of Fuhrman, of Laura Hart McKinney, I am of the opinion that those statements which are included as part of the memorandum or moving papers, do not constitute admissions against penal interest. I think they are further not only hearsay, but remote. Not relevant. And whatever probative value they may have is far outweighed by the prejudicial fact, particularly in view of the lack of connection with the evidence on this case, and in the absence of the opportunity of plaintiff to cross-examine both Fuhrman and McKinney, defendant having also filed a declaration that McKinney, likewise, is not available for examination.
McKinney was clearly cross-examined at the criminal trial. We'd be proffering the tapes through her testimony, both at a voir dire and also in—actually in front of the jury. So that under the prior testimony exception, that would be covered, just so the record's clear.
That's a nice segue into the second ruling. The Court had previously ruled as to Fuhrman's criminal trial testimony, that it was inadmissible, because of the effect of Evidence Code Sections 1291 and 1292. I think the same principle applies to Hart McKinney's criminal trial testimony. The Court ruled previously as to Fuhrman, and now rules as to Hart McKinney, that the plaintiffs were not in the same position, did not have the same interests and motive within the mention of sections 1291 and 1292 of the Evidence Code. And this is something I've already previously ruled on, I believe, on November 18, 1996, that the criminal trial testimony of Fuhrman, and now of Hart McKinney, are not admissible. I further find that, with regards to the contention that Fuhrman's criminal trial testimony constitutes a statement against his penal interests, I find that argument to be untenable, and that motion is likewise denied.
So the record is clear, Your Honor, you—as I understood you, your earlier ruling, because you're now incorporating that into your ruling with regard to Hart McKinney, you made the ruling, as I understood it, that—that it was because Fuhrman was called as a—on direct testimony by the prosecution, who had the same—basically the same interest as the plaintiffs. That was the distinction I thought you were making. You even called it a technical rule. Now, we have the opposite situation with regard to Hart McKinney. She was called by the defense and was, in fact, cross-examined by the prosecutors, who had the exact same interests as the plaintiffs. So I want to make sure that's clear.
Well, there you are. Okay. I'll hear argument—further argument, and I will ask for an offer of proof as to the proposed testimony of the defendant with regards to specific aspects of the decedent's character. I want to anticipate and address the issues of relevance and whether or not the Court should permit the questions.
Your Honor, I intend to inquire of Mr. Simpson on the specific incidents raised by the plaintiffs in this case; that is, the 1984 incident, the 1989 incident, the 1993 incident. I intend to go into his feelings and discussions with Nicole in some detail, between January 1 of 1994 and June 12 of 1994.
Well, the objections seem to not go to those; it just seems to go to something else.
Well, that's what I'm going to be inquiring of Mr. Simpson about, those specific issues, the reasons, the rationale, what was said, what transpired during the conversations that occurred, and what gave rise to those incidents, and to explain what happened at those incidents. And those all, of course, were raised by the plaintiffs.
Your Honor, most of these things, such as '93, as I said, first of all, go before the reconciliation and maybe purported to have something to do with alleged drug use, which would have nothing to do with, as I understand it, nonmotive of Mr. Simpson to commit these murders. As I said, they are totally irrelevant to the murders of June 12, 1994. I have absolutely no objection to Mr. Simpson testifying as to his feelings regarding Nicole or things like that in 1994. My objections are to, one, prior alleged drug use of any sort by Nicole Brown Simpson; two, her romantic interests prior to 1994, which there's been no evidence of any of. I have no objection of none of—if none of that's been brought up. I think Mr. Baker indicated in his opening statement he's going to bring out testimony, one about a terminated pregnancy that occurred in 1992, which is totally irrelevant, and made some mention of an observation Mr. Simpson had made in '93 regarding a sex act between Ms. Simpson and someone else, which will be totally irrelevant, also.
Your Honor, they have made the entire relationship of Mr. Simpson and Nicole Brown Simpson relevant back to '84.
Would you address the contention of Mr. Kelly with regards to the drug use? What do you intend to offer on that?
The argument that was raised by them in the October 25, 1993 incident goes to the issue of that argument commenced as a result of Nicole Brown Simpson dealing—having interactions with drug dealers, having interactions with known prostitutes, and having those people around her home. Mr. Simpson didn't like it, didn't want it, and had an argument with her about it. They raised the issue. It seems to me that he has the right, certainly under Evidence Code Section 1227, to—to talk about what was said. He has the right to explain his actions. There's been a character assassination that's gone on from day one in this case. It goes back to '84.
1992 pregnancy goes to the issue, they are saying Mr. Simpson had this jealous rage and couldn't stand to not be with Nicole Brown Simpson. What we said in opening statement, and what I intend to elicit from Mr. Simpson on the witness stand, is, in fact, that they—that Mr. Simpson was her confidant. You can tell—
Well, it's certainly the ultimate communication that this man was never in a jealous rage, or she wouldn't have told him—they were separated—she certainly wouldn't have confided in him if she thought that he was jealous and that he was going to—
Tell me what his testimony is going to be with regards to the pregnancy. I'm trying to fathom the materiality for—
That she told him that she got pregnant by someone else and was considering terminating the pregnancy, which she ultimately did. And he listened to her and counseled her relative to that issue.
They have painted Mr. Simpson as this jealous person, who is absolutely—in this absolutely jealous rage; that he got mad every time; he couldn't stand to see her with another man; he saw in her—from at the Treiste restaurant in April of 1992; he went over to her house that night; in the front room, she was engaged in the sex acts with this other man, with the front room open. They got—
The draperies were open. Mr. Simpson turned around and left. He then called his wife the next day, had a discussion, that it was inappropriate, perhaps, to do that with the kids there. They -- she—they—I've got stereo here.
As I recall, the plaintiffs raised that with Kato Kaelin, while he was on the stand. And I think it's important for Mr. Simpson to be able to explain to a jury that he didn't get into any jealous rage about it. He is entitled to do that.
Well, I think we're going to talk about his relationship, just her erratic behavior. I'm not going to talk—if the jury wants to conclude that her being what he concluded to be a normal, loving woman, being one day and having basically that exhibit symptoms that were consistent with, as he described it, a nervous breakdown the very next day, they conclude whatever they want relative to that. But I'm not going to go into the fact that if she was using drugs at this time—
Your Honor, I think it was during Dr. Barry Michel's deposition there was substance abuse. There's no firsthand knowledge of—there's no testimony that he ever saw Nicole using drugs in 1994, when pointedly asked.
With regards to those other things, the '92 pregnancy issue, the '92 observation of the sex act, these were all prior to the reconciliation, Judge. And we have conceded there was a time of separation, and they did get back together, and they had a relationship for over a year then. What might be at issue would be what happened at the very end. But we—this thing with 1992, I think Mr. Baker's words, in his opening was, she was like a butterfly, spreading her wings at that time, and had lots of men. And none of that during the separation period, when she was away from Mr. Simpson, and prior to the reconciliation, has nothing to do with how the murders occurred or whether they indicate motive, nonmotive, or anything else in 1994. So they have no objection to 1994, as long as it's not speculative. But these earlier things are just character assassinations. She is not here to defend herself. This Court already ruled that Mr. Simpson's alleged infidelity and drug use cannot be gone into. We'll be dealing with this in a vacuum with our witnesses to rebut this. And the very least I would ask, to put it in context, how Mr. Simpson's state of mind might be with all this, that we be allowed to inquire the same of Mr. Simpson.
Before Your Honor rules, I would like to be heard on one point here. Mr. Simpson did, in fact, testify that he was not—he did not see any drug use by Nicole in 1994. My concern is that this issue might be argued as an explanation for an alternative killer, Your Honor. And I think for that purpose, it is not relevant and violates the teachings of People versus Kaurish. If Mr. Baker wants to admit it for the purpose he asserted, namely, to undercut motive, that's one thing; and Your Honor will have to decide to what extent that evidence is admissible and relevant. But I would ask that if it does come in, that it not—that it come in for the limited purpose only, and not to suggest that Nicole Brown Simpson and Ronald Goldman may have been killed by some unspecified third parties, or just because Mr. Simpson says Nicole was cohorting with people involved with drugs and prostitution. That's my concern. I think it violates the Court's prior rulings. I think it violates People versus Kaurish, and I think it's violative of Section 352 of the Evidence Code.
Your Honor, two more points, just briefly, in response. Number one, it's interesting that Mr. Kelly should talk about the '92 viewing of the sex act.
I would like to say that than one of the issues that they raised, especially through Judy Brown, if I recall, directly, is that Mr. Simpson was calling quote, unquote, obsessively, that he was calling her—
All right. The Court will overrule the objection and allow the defendant to testify as to those matters. And it's my intention to allow it only for the purpose of controverting the defendant's state of mind and the existence or nonexistence of motive. And it's my intention to preclude and admonish counsel not to argue that as a basis for a theory that a third party did kill her. If you want to argue that—
No. I'm telling you right now, that's my ruling. If it's your intention to violate that order, I'm not going to permit it.
I don't have any intention of violating any of the Court's orders. I adhere to the Court's orders.
Your last statement leads me to be a little bit concerned that it's not your intention to abide with it. I am satisfied that you have always abided by the Court's order.
I will abide by your court order. If I have to go upstairs and get it reversed before closing argument, that's something else. We don't have to visit that until that point in time.
That's the rulings that the Court makes. 1:30 for jurors and everyone. (At 11:50
A.M., a luncheon recess was taken until 1:30 P.M. of the same day.) SANTA MONICA, CALIFORNIA; FRIDAY, JANUARY 10, 1997 1:45 PM DEPARTMENT NO. WEQ HON. HIROSHI FUJISAKI, JUDGE. APPEARANCES: (Per Cover Page) (REGINA D. CHAVEZ, OFFICIAL REPORTER) (Jurors resume their respective seats.)