All right. Back on the record in the Simpson matter. All parties are again present. We have a few evidentiary matters to take up before we invite the jurors to rejoin us, before we conclude with Dr. Rieders. All right. Mr. Uelmen, you want to be heard on behalf of the proponents?
Your Honor's ruling last week with respect to the access to the report of the internal affairs investigation and the reporter shield law were very careful narrow rulings addressing essentially the admissibility of false leaks, as your Honor characterized the information in terms of fabrication or disinformation, primarily with respect to the Defense contention that blood was planted on the sock, and the Court concluded that it was speculative to infer, even if a source of the disinformation were the LAPD, that the source participated in the planting of evidence or spoke directly with someone who did. We accept that ruling even though we disagree with it. My purpose today is not to seek a reconsideration of that ruling, but the issue that we'd like to address today is a broader one, and that is whether the leaking of accurate information by the Los Angeles Police Department is material and relevant to the Defense. And in addressing this broader issue, we would ask the Court to take a broad view of the Defense theory of this case in the terms in which that theory will actually be argued to the jury.
This aspect of the Defense in this case has frequently been mischaracterized by the Prosecution, and I think that's part of the problem in questioning witnesses. They've asked witnesses whether they are part of an elaborate conspiracy to frame Mr. Simpson, and that kind of sarcasm completely misses the real thrust of the Defense in this case. We don't have to show an elaborate conspiracy to frame an innocent man. In fact, an elaborate conspiracy would be inconsistent with the pervasive ineptitude that has characterized both the investigation and the prosecution of this case. Our defense quite simply is not that there is an elaborate conspiracy, but simply that the evidence in this case cannot be trusted. It cannot be credited, it lacks integrity. That's the defense. And no one should be convicted of a horrendous crime and be deprived of his liberty on the basis of evidence that cannot be trusted. Now, we've offered a number of reasons why the evidence can't be trusted. First, some of the persons who collected or handled the evidence are corrupt. There are individuals involved in this case who are capable of planting or manufacturing evidence and who did so in this case.
Secondly, some of the persons who collected or handled the evidence in this case are incompetent. Acceptable professional standards for the handling of evidence were not met or maintained and the documentation that accompanied the collection of the evidence lacks credibility or lacks precision. Thirdly, some of the persons who collected or handled evidence in this case are careless, that the sophisticated scientific testing is of little use if evidence has been contaminated by careless handling. And finally, some of the persons who collected or handled evidence in this case are manipulative. The goal of this investigation was not a search for the truth, but a search for the restoration of a tarnished image. Evidence and information were handled in ways not designed to assist the Court, but in ways designed to enhance the public image of the Los Angeles Police Department. I think it's often overlooked that the motive to plant blood on a sock or on a gate may not have been to frame an innocent man. It may have been done by persons who were convinced that Mr. Simpson is guilty and who were concerned that previous screw-ups had compromised the ability to prove that guilt in a court of law and would have to be enhanced by extra curricular efforts. Now, the motive doesn't make any difference. We don't have to prove the motive. The integrity of the evidence is just as questionable whether it was done to frame an innocent man or whether it was done to restore the tarnished image of the Los Angeles Police Department. And in addressing the materiality and the relevance of the leaks, we believe the appropriate question for the Court to ask is, does evidence of leaks, even of accurate information by the Los Angeles Police Department, assist the trier of fact in answering the question, should I trust evidence that was collected and processed by the Los Angeles Police Department. Knowing, for example, that reports of scientific test results faxed to the Los Angeles Police Department were given to newspaper reporters before they were given to Prosecutors or to Defense lawyers or to the Court in this case, does that tell you anything about the competence and care of those who were entrusted with maintaining the integrity of this evidence? Now, while your Honor has suggested that the leak of September 21st was a fabrication, we would ask you to just put to one side the false part, the false part that DNA tests had already been conducted on those socks. The reports were accurate in leaking the information that blood had been uncovered on one of the socks or discovered on one of the socks and that this blood had been linked to the victim Nicole Brown Simpson by means of testing, even though the part about what kind of testing was conducted was inaccurate. And if you look at the timing of the leak of that information, the part of it that is accurate, it comes the day after the LAPD laboratory conducted a test to show the PGM subtype of the blood on that sock, and the knowledge even that that test had been conducted had not been transmitted to the Defense, to the Prosecution, to the Court, and it came--the leak came on the same day that this Court made a finding of recklessness on the part of the chief investigating detective in the course of pretrial motions in this case. That finding the Court will remember was made on September 21st, 1994. And it doesn't take a rocket scientist to conclude that what was going on may have been news management controlling the spin. And aren't we entitled to ask, do you trust evidence collected by the Los Angeles Police Department in this case knowing that the security and confidentiality of evidence was manipulated in order to shape public opinion.
Now, we can put to one side whether its purpose was to manipulate public opinion against O.J. Simpson knowing that a jury was in the process of being selected. Assume that wasn't even the purpose, that it was to manipulate public opinion in favor of the Los Angeles Police Department on a bad news day when the LAPD was taking a hit. The result is the same and the result is, we have less trust in the LAPD. We have less confidence in the evidence that they collected and handled. And finally, I would ask the Court to consider the materiality and relevance of this evidence as rebuttal to contradict the testimony of key Prosecution witnesses, the testimony, for example, of Detectives Vannatter and Lange, that the investigation conducted in this case was a thorough and professional one consistent with their years of long experience as homicide detectives. The implicit message of that testimony was simply, you can trust us and you can trust the evidence we collected, and the lapses in procedure such as bringing a blood vial of the suspect back to the scene in a coat pocket were minor and inconsequential and don't effect the integrity of the evidence.
Well, you're right. It was in a gray envelope. Bringing it back to the crime scene, however, certainly was a departure from normal procedure. And there have been lots of departures from normal procedure that have been brought out in this case. And those departures raise questions, and the counter to those questions has been, you can trust us, you can rest assured that the evidence was handled with integrity. And that's the relevance of these leaks because it suggests to the Court--to the jury as the finder of fact that you need to really wonder about how much confidence you can have in this evidence, how much trust you can have in those who collected and processed it. There's also the testimony of Mr. Matheson with respect to elaborate special security established for the security of the evidence in this case. I mean, they really describe the evidence control facility as a Fort Knox. And if penetration of that level of security was possible to manipulate information by selective leaks of that information to the press, that raises an inference. And that inference is a question. Can you really trust that the evidence was as secure and as safe from any tampering, from any contamination, from any compromising as the Prosecution would have us believe. Now, of course there's lots of other evidence to support the Defense case to show that there was corruption, there was incompetence, there was carelessness, there was manipulation. But the test of materiality and of relevance is not whether the evidence is needed to prove a fact that can't be proven by any other means. It's whether the evidence supports an inference which is of consequence to this case. And I can't think of any greater consequence to this case than the integrity of the evidence, the degree of trust we have in those who collected and handled it, the degree of confidence we have in their credibility. Now, your Honor mentioned in your order that leaking is nothing new, that from the Pentagon Papers to Watergate, we have seen leaks used to manipulate the press and to put a spin on information. And one reason may simply be that those who are entrusted with sensitive information don't deserve to be trusted. And one consequence of a breach of that trust should be, when it is exposed, they have to answer for it. And one place you answer for it is in a court of law in which you are coming in and seeking to persuade a finder of fact you can trust us, you can have confidence in the way we handle this evidence. And that is precisely why we believe it is relevant to show that these leaks came from the Los Angeles Police Department, leaks of accurate information to undermine the trust that the jury should have in the integrity of the evidence.
Mr. Uelmen, what specific--what are the specifics of your offer at this point? What do you intend to present?
We would like to present simply a confirmation of the accuracy of the published reports with respect to accurate information. That is that the leaks of the faxed information from Cellmark that came to the LAPD on September 12th actually appeared published in newspapers before they were delivered to the Defense or the Prosecution in this case. We believe we can separate the truthful part of the report of September 21st from the untruthful part. We would not offer the portion relating to DNA testing, but we would offer the portion relating to finding blood on the socks to an attempt to link that blood to Nicole Brown Simpson and showing that this information was published, appeared in--on television before that information had been conveyed to this Court, and we would also offer Mr. Bosco's report with respect to the active attempt to shop information around to news media regardless of showing that that information was false or inaccurate.
Kind of reminded here of one of those monster movies that we've all seen where the monster is impaled and burned and stabbed and just when you think it's finally going to rest, it rises up again out of the ashes.
KEY QUOTEYeah. I think so. I'm referring of course now to the matter before the Court, not Professor Uelmen. Your Honor--your Honor, when we spoke very briefly about this issue on Thursday, it was mostly in the context of scheduling. I made a comment to the Court to the effect that I felt this was a simple issue, and I just wanted to say to the Court that I fully appreciate the complexities of this litigation that have confronted this Court, and I did not mean in any way for that comment to in any way underestimate or be contrary to my appreciation of the extraordinary task this Court is asked to face, perhaps one that no other Judge has had to face before in any litigation in terms of the number and complexity of the legal issues, the number of lawyers on both sides.
Well--and the shortened pretrial and extensive media coverage, and I simply wanted to make it clear to your Honor that that comment was in no way meant to derogate my appreciation of those complexities. What I did mean by that, your Honor, and perhaps it was a little bit misstated, is that in our view, this isn't a simple issue, but it is a non-issue or an issue that has already been resolved. In other words, that your Honor has already made all the rulings and all the decisions that are necessary in order to determine the admissibility of this evidence; and that is that your Honor has already made a determination in the context of discovery issues that the evidence here is not material. And in going back to the record of the arguments that I believe took place on Wednesday, the Court started out by deciding the question of whether or not this evidence was going to be sufficient to--the prima facie showing was sufficient for the purposes of discovery of police personnel records. However, the Court's written ruling only addressed the issue of the shield law, but the Court actually disposed of both discovery issues, one orally and the other in writing. And during the oral pronouncement of ruling, the Court said that this record does not support a finding that access to the results means access to the evidence itself. That assumes that access to the results does not exist in this case and the mere fact that the results as reported were incorrect is a clear indication to the Court that the source of this leak did not have access to that information and did not--was not a source close to the investigation and was not in fact knowledgeable. The Court then went on to state that under the Delaney test as well, the Court was making a finding that the record, the entire record does not support a finding of materiality. So the Court did not rule as counsel I think has suggested, that this evidence wasn't relevant on the issue of suggesting that evidence on the socks was planted. The Court ruled that it was not material period under a variety of theories that were proposed by the Defense. Now, in trying to count what was just said this afternoon by counsel, it looked like he said approximately three things or offered three alleged areas of relevancy of this evidence.
He said something that I think is essentially the same as his rush to judgment argument, that the fact finding process was not an objective search for the truth. I've already extensively argued that, counsel has on a number of occasions, and the Court rejected that as being a basis for materiality. The second thing that he said was that it shows that the handling of information was not trustworthy and, therefore, it undermines confidence that the jury should have in the maintenance of the security of the evidence. And the Court heard and rejected that argument as well. There is no logical connection between the two. And then the third argument that I heard counsel make today, which I also believe was made when we last argued this, was the argument that this was an effort to shake public opinion on behalf of the Los Angeles Police Department. And as the Court can recall, my response at the time it was first made was that if some police officer somewhere out giving traffic tickets was proselytizing that in his opinion, the Defendant was guilty and the evidence overwhelming, that there clearly could be no possible relevance to that case. So this issue again was argued and rejected by the Court. The Court has very simply found that this isn't material. Now, we suggest that that disposes conclusively of the evidence in this case because as I believe the Court's comments indicated when we argued this issue last, the issue of materiality for relevancy purposes is only different from the issue of materiality for discovery purposes. Insofar as for discovery, it would be a slightly lesser standard because the issue there is whether or not a prima facie showing can be made that they're going to discover evidence which might be beneficial to the Defendant. They don't even have to show it's necessarily going to be admissible per se. So here the standard is higher in terms of materiality than it was at the time the Court was ruling in the context of the discovery hearing. So we would suggest--and we are very confident in this and I think the Court's comments are consistent with this--that it is not logically possible for the Court to rule that this evidence which was so immaterial that the Court wasn't even going to allow further discovery on the issue or further exploration to perhaps give the Defense the opportunity to shore things up a little bit was so immaterial for those purposes, is nevertheless sufficiently material that not only should it be admitted or not only can it legally be admitted in front of a jury and overcome a relevancy objection, but it could also overcome an evidence code section 352 objection that it is more probative than prejudicial. Those two positions are irreconcilable. The Court cannot logically come to the conclusion that it's so irrelevant that no further discovery should be allowed or at the same time conclude that it is sufficiently material and probative under 352 to come before the jury.
But didn't we hear a different offer today, the offer being that arguably, premature disclosure of information is somehow relevant? That's a different argument than we heard before.
Yeah. Somehow relevant, but relevant to what? He says relevant to rush to judgment, relevant to mishandling of information and relevant to shake public opinion, and all those arguments have been previously made. And what I suggest to the Court is this. I think we all recognized that to the extent that the Defense was unable to show that this was an individual close to the investigation, that this--all of the arguments of relevancy were extremely tenuous, and we gave the elevator example of someone overhearing in the elevator, and counsel is never able to come up with a satisfactory explanation how that could be relevant. But they also couldn't show how it could be relevant if a source much closer to the information had heard it. So if the Court was not going to give them the opportunity for discovery purposes at least to try to pinpoint how close this individual was to the investigation, how can we say in the absence of knowing that information at all and in a record that leaves us to believe that the elevator operator possibility is equally reasonable as the investigating officer possibility, how on the state of this record where either of those inferences is equally reasonable can we say that this is relevant for the purposes of admissibility? I don't think we can. And it's of great concern to the People not only of course that the Court make the correct rulings--and we believe that your Honor has, especially in this regard. And you gave it enormous amount of attention and heard an enormous amount of argument, and we recognize that this is an issue that is largely an issue--mixed issue of law in fact and, therefore, subject to the trial Court's discretion. It's not only important to us that you make the right rulings, but it is also in the People's interest that the record is consistent so that if we get to the point, as we believe we will, where a reviewing court is looking at what the Court did, they will be able to understand that your Honor exercised your discretion understanding completely what the legal standards were and correctly understanding the law that applied. And we believe that saying that this is admissible evidence, already having ruled that it's immaterial for discovery purposes is so illogically--is so illogical and so inconsistent that we would be concerned about the inconsistency of those two rulings for purposes of the record. And if the Court for some reason is now going to reevaluate all of these issues--and we certainly don't think the Court should do that--that the Court would also have to reevaluate these issues for the purposes of discovery as well in order to be logically consistent, and that would be the only way of doing it. And then your Honor would have to in effect say, well, if this is the kind of thing that can go before the jury, maybe we should give the Defense the opportunity to shore it up a little bit. Now, we've argued over and over again as to why it's irrelevant, why it's immaterial, and I hate to repeat those arguments again here, your Honor. I just don't think that we should. I think that your Honor has ruled. I think the Court should simply decide that your previous rulings are dispositive of the issue now before your Honor. Maybe there's some additional question I can answer. Maybe your Honor feels that they have somehow materially phrased the issue differently and I haven't adequately addressed that. If that's the case, I'd like the opportunity to do so.
Well, as I posed to you, the offer that was given just now by Mr. Uelmen included the true reporting, however, arguably in a premature manner.
Of events, any event. Focusing, for example, on the PCR testing that was conducted by Cellmark and reported to the Los Angeles Police Department my recollection somewhere around September the 8th. Yet, those results were not transmitted to the District Attorney's office until approximately the 14th is my recollection of the record. However, the news reports appeared in Los Angeles times regarding that testing on September 11th is my recollection of the record. The dates may be a day off or two.
Now, previously, the Defense only wanted to introduce reporting as to the socks. Maybe now they're broadening it and they also want to introduce other reporting. I don't know.
Okay. And then we have to ask ourselves what is it relevant to. I mean, just saying, well, it's relevant, we'd like to get it in doesn't do it. What is it relevant to? I think that they're now conceding that your Honor has decided that none of these leaks, so-called leaks are relevant to the issue of the socks and planting evidence on the socks. It doesn't go to evidence planting. Does it go to bias? Well, we have to know who on earth was responsible for the leak before we could even get to the issue of bias. So it doesn't go to that. We've heard rush to judgment, and we've argued previously that this whole question of rush to judgment is not an issue because the subjective mental processes of the investigating officers or the Prosecutors is not relevant. If it were, as I previously stated, we'd need expert testimony as to what a reasonable police officer would have believed in terms of the Defendant's guilt and when he would have formed those beliefs, and then they'd be entitled to call an expert in rebuttal to suggest to the contrary.
It would just take us down a path that would lead us into a form of inquiry, into a type of inquiry that is totally irrelevant here. The jury has to decide this based upon the objective persuasiveness of the facts, not whether they think that the detectives correctly evaluated those facts. Is it relevant to show some sort of an effort to shake public opinion? Well, if it is, then does the Prosecution get to put in the numerous press conferences--I guess you couldn't call them leaks by the Defense--in their efforts to shake public opinion? You know, there are many people watching this trial that do believe that there is a conspiracy of sorts who would characterize that conspiracy to obstruct justice in their minds as emanating from the Defense's efforts to try to saturate public opinion with their particular viewpoint and their particular spin on this case. I don't think that's admissible. I mean, whether it's proper or not, whether it should be done or not, it's not admissible. So are we going to be able to get in that evidence? I do not see any logical theory as to how on earth you can try a case based upon information that has been given to both sides by the press, especially when they can't even pinpoint and there's no way of being able to pinpoint who on earth was responsible, if anyone for sure, of giving this information to the press. Now, with respect to the admissibility of this evidence, your Honor, there are some other issues that I'd like to get to, but I don't think I need to unless the Court somehow decides that it's going to reevaluate the very carefully worded written decision and oral decision that your Honor already made. But those other issues include things like hearsay, absence of foundation, the fact that a lot of this evidence would require witnesses to offer inadmissible opinions as to who it was that they were speaking to without foundation as to how they know who they were speaking to. There are a lot of other legal issues dealing with authentication, dealing with hearsay, dealing with opinion and conjecture, but I would prefer with the Court's permission not to address those at this point. And there's also another issue beyond those as to how we are going to cross-examine witnesses who would only give us partial information and invoke some kind of a shield in order to prevent any kind of meaningful cross-examination. That would simply offer conclusions and opinions without allowing us to try to figure out what the basis for that conclusion or opinion is.
With your Honor's permission, I would ask to be allowed not to argue those right now--and I previously argued them in another context before anyway--because they are not relevant if the Court concludes that its ruling are already dispositive on this issue.
Your Honor, with respect to the dates of the Cellmark leak, I believe it was a report from Cellmark dated September 8th that was faxed to the Los Angeles Police Department on September 12th and then subsequently refaxed to the Prosecutor on September 16th, and it appeared in the Los Angeles times I believe the 14th or 15th before it had actually been delivered. Mr. Goldberg's first point seems to be that all of these questions and issues have already been argued and rejected. And of course, your Honor is the best Judge of what you have previously rejected. We believe that the prior ruling was based on a very narrow premise addressing the admissibility of false information being leaked. And what we're talking about here is just the accurate information, and we were not going to try to evade your Honor's prior ruling by offering evidence of false information being leaked and argued from that that we can imply there was some connection with the actual planting of evidence on the sock. We realize your Honor's ruling has foreclosed that. But what we're talking about here is a different inference drawn from a different fact. Inferring from the fact that accurate information was leaked to the news media before it was delivered to the Prosecution or the Defense, that that in and of itself gives rise to some distrust of the attempt by the Los Angeles Police Department witnesses to create the impression with this jury that the evidence was very carefully handled, that the information was kept in very secure form and, therefore, that they need not be concerned about any risks of compromising this evidence. And quite simply, that is a faith, that is a trust they should not have in the evidence based on the performance of the Los Angeles Police Department in this context, in the context of leaking information. Mr. Goldberg makes the point that the standard of materiality is actually more liberal with respect to discovery than it is to actually offering the evidence. But what he overlooks is that here we have the evidence.
What we are seeking to offer is actual publication of information and to show when that information was published as opposed to what kind of control existed over the information at the time it was published. There's no hearsay problem because we're not offering this to prove the truth of what is asserted. We are simply offering it to prove when it was leaked, when it was released. And authenticating that will be a very simple matter. In fact, we already in the 402 hearing heard the testimony of Michele Kestler that very carefully defined who had access to this information at the time it was leaked. Now, Mr. Goldberg says, well, we can't show that someone close to the investigation was responsible for the leaking. It is a logical inference if the testimony is that information was tightly controlled, that the number of people who had access to that information can be counted up and accounted for, that if the information is then published, the only explanation can be that those people who were responsible for its integrity and for its security were either corrupt, incompetent, careless or manipulative. And that's precisely the question that we're raising about the handling of the evidence in this case.
And finally, Mr. Goldberg did not address at all the question of the relevance of this evidence as rebuttal evidence to the testimony of the detectives, of the lab technicians who described a procedure in order to enlist the trust of the jury set up to maintain the security of this evidence.
Thank you, counsel. All right. The issue before the Court is the relevance of the proffer just made by the Defense regarding leaks of information, some of which, most of which turned out to be accurate information, some of which was decidedly inaccurate, the issue being whether or not premature disclosure to the news media before it's known to the Prosecuting attorneys or before it's known to the Defense or the Court is probative of some of the issues that have been raised in this trial. The Defense is quite correct that they have vigorously raised before the triers of fact challenges to the competence of the individuals who collected the evidence, have raised issues regarding carelessness in its handling, and those issues are before the Court both through the cross-examination of the Prosecution's witnesses and the testimony of the Defense witnesses that have been offered to date.
The problem that I have with the offer is that the probative value of news information, the probative value given what it attempts to prove is very slight to the point of being irrelevant. And under evidence code section 350, I will exercise my discretion and make a finding that it is not relevant. Also, I've viewed this in light of evidence code section 352 as well in that given its slight, if any, probative value, the time that would be required first to present it and then to allow the Prosecution to rebut it by bringing in timely news information would be an undue use of the Court's time. I'm reminded of the Callahan cartoon that's often published regarding what the legal process appears to have become, and this is not a trial by news media sources, leaks, tabloids or otherwise. The objection will be sustained on both grounds.
Your Honor, in light of the Court's ruling, I would ask that Miss Savage be released from the subpoena that's been directed to her since there's no relevant testimony she can offer.
I have no idea what other relevant information they may have. As to these two issues, the answer is yes, I'm making a finding that they have no relevant information to offer. I have no idea.
Your Honor, can we just respond? As far as Mr. Bosco, we will release him from the subpoena.
With respect to Miss Savage, we'd like to confer on that at greater length before we release the subpoena.
But if there is going to be another opportunity, request to bring her to the stand, I'd like to be heard and have an offer of proof made as to what possible relevant evidence she can offer given that the Court has now ruled that any evidence with respect to inaccurate portions of her report cannot be offered and that any accurate portions of her report cannot be offered. I fail to see what's left that Miss Savage can testify about. She's not the custodian of records. So if the tapes are or are not going to be introduced--
Well, counsel, let's not argue the issue now. She's out of town. Counsel have declined to release her from the subpoena. We'll take it up on the 21st if they insist on calling her to the stand.
Your Honor, in light of the rulings you just made, I need a little bit of guidance because the very next witness, as you know, is Michele Kestler, and it's my understanding from the Court's rulings that obviously testimony even regarding reliable and accurate leaks cannot be disclosed to this jury through either Bosco or Savage. My question has to do with Michele Kestler. And in terms of timing, I can talk about this now if you'd like or we can maybe take a short recess after we finish this witness so I can make the applications at that time if you'd like.
And then we'll see where we are in terms of Kestler. Also, we also have counsel here in the courtroom who represent Mark Fuhrman who wanted to address the Court on certain issues.
Good morning, your Honor. My name is Laurie Butler. I'm Robert Tourtelot's partner.
And we are here basically as a result of finally having obtained a copy of the protective order that was issued with respect to the Laura Hart McKinney tapes. And specifically, I would reference the Court to two things. My partner sent you a letter referencing his concerns about the confidentiality with which the tapes are going to be maintained and the right of counsel for the Defense to make commentary about such tapes on such shows as Larry King Live and other television and radio programs. Those concerns were expressed by Mr. Tourtelot. We are also here, your Honor, this afternoon to seek access to the tapes on behalf of Mr. Fuhrman. The reason we are seeking such access is that, first of all, the order was made in our absence without our knowledge and without any opportunity on behalf of Detective Fuhrman to object to or make any statement with respect to his interests. And we believe that he does have an interest in these tapes. They are his voice in great part. And again, I am speaking without having heard the tapes because we have not had access to the tapes. But it is my understanding that they represent a dialogue between Miss McKinney and the--and Detective Fuhrman which was to form the basis for a Hollywood screenplay. With that in mind, I think the attorney for Laura Hart McKinney has noted in an LA Times article which appeared on August 12th, 1995, that there was some sort of business relationship between Detective Fuhrman and Miss McKinney. And from that, I think it's implicit that Detective Fuhrman has rights to those tapes and--
I'm sorry. Are you arguing that because it's reported in the L.A. Times, that I should take that--
No. I'm simply pointing to that as a statement by the attorney, by the purported owner, the woman who has claimed before this Court and other courts that she is the owner of the tapes. We are taking the position and we are representing to this Court that to the extent that Mr.--that Detective Fuhrman's voice is on that tape and he is an author of the statements in that tape, that tape was to be used ultimately for a screenplay. It is categorized in the protective order as intellectual property, which connotes a creative sort of written or transcripted creation, that Detective Fuhrman has some rights to these tapes and certainly has a right to access to them along the same lines as has been given to the Defense counsel, the District Attorney, the Court and their respective support personnel.
All right. Miss Butler, let me ask you this. Did your client, Mr. Fuhrman, have a contractual consulting agreement with Miss McKinney which includes access to the materials, copies, transcripts, et cetera?
It is my understanding that the relationship was one where he was to be involved in the ultimate exploitation of these tapes on some basis. I do not know the exact nature of the contractual terms because this was a relationship that evolved and the taped sessions occurred over several years and the tapes were never ultimately reduced to a screenplay or a published work. But he clearly has rights in those tapes, and it would seem to me, your Honor, that he would have a right to at least hear what is being said. And let me just focus on the second concern, and that was what my partner expressed, which is--and as I read the order, it does not bar anyone from voicing publicly their reaction to the tapes, whether they found them to be upsetting, to be chilling, to be anything. Once that happens, you have a body of tapes which have been characterized by one party with no prohibition by the Court, and there could be further injury and defamation to Mr. Fuhrman, Detective Fuhrman, and he has no ability whatsoever to rebut any of this because he's been denied any access to his own voice.
Has--Miss Butler, has your client made any request of Miss McKinney for a copy of the tapes or transcript?
Well, the person who actually has the possession and control of the tapes and the transcript is still Miss McKinney. What has been transmitted to the Court is a copy. Have you made any inquiry of Mr. Schwartz or Mr. Regwan regarding Miss McKinney's--
I'm going to defer to Mr. Towne because he has made those attempts and he is our cocounsel at this point, and I'll let him address that because he had that--made that inquiry.
All right. Good afternoon, Mr. Towne. Would you spell your names for the court reporter, please.
Richard Towne for Detective Fuhrman. On Friday, I attempted to contact Mr. Schwartz at his office. I left a very detailed message advising him of our interest, our representation and our concern because we understand, without having had the same access that other parties involved in this matter have had to the tapes, that they are protected and protectable and that Detective Fuhrman has a right, an interest in those tapes under perhaps copyright law, under perhaps California's common law with respect to the protection of ideas disclosed in a confidential relationship. And the upshot, I have not received, at least as of the last time I checked my office today, any response from Mr. Schwartz. Having been provided a copy of your order, we concede I think there is great significance to the fact that Mr. Schwartz characterized the tapes and the other material as intellectual properties, suggesting, properly so I believe, that they are creative works, works of fiction created for dramatic purposes for subsequent exploitation in a commercial context. We have now a situation where pursuant to the Court's order, one if not the creator of this potentially valuable--and we say potentially valuable because Mr. Schwartz has so characterized the material in excerpts and articles from the times. We have those potentially valuable properties outside of Detective Fuhrman's access, custody, control or review where their authenticity and in fact the manner in which they've been maintained in custody over some years has not been determined. And I think it ought to be determined. So our situation is, we would like equal access to that which the parties, pursuant to the Court's order, now have.
All right. Have you consulted with counsel for either side, either the Prosecution or the Defense, and ask for their cooperation in contacting Miss McKinney for this purpose?
It sounds to me like they're asking for Detective Fuhrman's right to know what's on the tapes and the transcripts. And as long as the proprietary interests are preserved as indicated in the court order, the protective order, the People really have no position.
As regards Mr. Simpson, the problem is--and I don't have to give this Court a history of what happened to these tapes--you know, we're the ones who went and got these tapes. What the Court has is a copy which I arranged to have brought out here or what the Court will have shortly. What counsel has is a copy. These are impeachment. They don't have a right to these tapes. Fuhrman doesn't have a right to these tapes. What they should be doing is talking to Matthew Schwartz and Ron Regwan regarding these tapes. I'm glad they admit it's Mr. Fuhrman's voice. It is his voice. This is not a screenplay. It's dialogue and it's an interview is what it is. It's called "Interview with Mark Fuhrman." Now, we have no desire and will not, short of an order from this court, turn anything over to them because this is our impeachment of a witness who is still on the stand in cross-examination in a criminal case. And that's the issue in this case. And the Court knows beyond that where this case is going to be--where we expect this case to go beyond this. So we're not going to cooperate with them with regard to this. They can talk to their client if they want to know what he says. He can tell them what he said over the last 10 years. We feel very strongly about this. This is the fruits of Mr. Simpson's lawyers' labors, and we are now going to use those, as the Court knows, for impeachment of this witness and beyond this trial. And so we feel very strongly about it.
Yes. Miss Butler, the problem I have here is that under the discovery laws here that govern the conduct of this case, the Defense has no obligation to disclose information that they are going to use for the purposes of impeachment, which they claim these tapes are. So I don't feel that I'm in a position to order them to turn this over to you. However, it seems to me that what you have is a--at this point in time, a civil dispute with Miss McKinney regarding whose property these really are. And I would assume that she would be cooperative with Mr. Fuhrman and his counsel in turning over a copy of the tape and of the transcript because she cooperated with Defense counsel. When the Prosecution counsel made contact with her, she was also cooperative with them. Immediately upon learning that they wanted to have a copy and in fairness, gave them a copy and subjected them to the protective order. I assume that because of the relationship between Mr. Fuhrman and Miss McKinney over a number of years, she would at least out of a sense of fairness or obligation provide him with the equal access, a copy and the transcript. But you understand the dilemma that I'm under, that I'm here in a criminal trial--
No. I certainly understand--my concern was, it seems to me that the protective order really at this point precludes us from getting access to the tapes by virtue of the wording limiting the parties that may have access to it solely to those defined in the protective order.
And I don't know whether Miss McKinney or her attorney has the right to unilaterally at this point in time to disseminate tapes to Detective Fuhrman or his counsel barring a further order of this Court, which is why we're here. If we felt we could accomplish this solely through a dialogue, a request, an agreement with her or her attorney, we would have done that. And we did try to do that, but we got no response. But we feel, having learned about the order and having first seen it today, that that's where we are.
All right. Counsel, let me do this. Let me have my clerk call Mr. Schwartz' and Mr. Regwan's office.
I'll ask them if they're willing to cooperate with you if we modify--clearly modify the protective order to allow Detective Fuhrman and his counsel one copy with an order against any additional duplication and see if they have any objection to providing that to you within 24 hours.
So why don't you stand by. I would like to finish my jury trial this afternoon. So I will have Mrs. Robertson or my law clerk, Mr. Byrne, make the contact with Mr. Schwartz and Mr. Regwan, and we'll see if we can accomplish it the easy way.
All right. Mr. Ming, would you make sure that Mr. Byrne takes care of that? Thank you.
Your Honor, may I just inquire with respect to Miss Kestler, when it is we are going to need her if at all this afternoon? We did agree to the Defense apparently that we have her here when they needed her. So I'd just like--
Well, we still have a 402 issue before she testifies. We must conclude Miss Clark's cross-examination, Mr. Blasier's redirect, Miss Clark's recross. So--and it is now 2:30, and this is a 5:00 o'clock day. So my guess is, we would get to her 4:00 o'clock, but that would be starting the 402 hearing. So--my understanding is that she's at piper tech, correct?
Our defense quite simply is not that there is an elaborate conspiracy, but simply that the evidence in this case cannot be trusted. It cannot be credited, it lacks integrity. That's the defense.
The problem that I have with the offer is that the probative value of news information, the probative value given what it attempts to prove is very slight to the point of being irrelevant. And under evidence code section 350, I will exercise my discretion and make a finding that it is not relevant.
This is not a screenplay. It's dialogue and it's an interview is what it is. It's called 'Interview with Mark Fuhrman.' Now, we have no desire and will not, short of an order from this court, turn anything over to them because this is our impeachment of a witness who is still on the stand in cross-examination in a criminal case.
Kind of reminded here of one of those monster movies that we've all seen where the monster is impaled and burned and stabbed and just when you think it's finally going to rest, it rises up again out of the ashes.
This is not a trial by news media sources, leaks, tabloids or otherwise.