Yeah. It would appear, based on my review of stuff that I have seen so far, and Johnnie has corroborated that he agrees he has been shown that, back in `85, on the `85 tapes I think it is, and also `87, Mark Fuhrman discusses Lieutenant York.
And their run-ins at West L.A. and he makes derogatory comments. Of course I have to tell you, Judge, this is a book about men against women, that is the whole thing, so he tees off on women through the whole thing. I mean--
Just a minute. That is basically true, but he doesn't like blacks or Mexicans or Jews.
He hates women. He hates everybody basically except white Anglo-Saxon men who are police officers.
KEY QUOTE--in light of what is on the tapes or in the transcripts or both, I think this is something that should be public, because any conflict the Court has has to be public and known.
So my inclination, although I appreciate the delicacy of your presenting it to me here, I have no difficulty discussing this in open court on the record.
And if it is a problem, it is a problem and we will just deal with it like we have every other problem that has sort of sauntered down the pike in this case.
Right. I don't have any problem with that. I just thought that the first time I broached this issue we could do this a little more delicately until everybody gets their sea legs, because I was surprised and we are framing the issue and we are looking in it legally. I have no desire to be outside of this court. On the other hand, from the appellate standpoint, I have no desire to look--should that happen later--look bad if there should ever be a conviction. I want to make sure we do it clean and do it right, whatever it is.
We are researching it now. That is why I wanted to approach and save the Court some time. Let's first resolve that, because you wade into hours and hours and hours of work because, God knows, you have done enough of that now. Wednesday we wanted to do that and attach to that the excerpts of the transcripts that show the relevant portions. It is very brief.
Judge, the tapes are sickening, and you know, I don't know--I think that we--you know, I don't know so much about the conflict, but there is certain parts about Lieutenant York that I tell you what the real problem may be, even more than this, and this is a very delicate issue and I don't want to talk about this out here, it is going to have to do with credibility, because, you know, her declaration--this guy, unless he is absolutely lying--and Marcia will back me up on this--the contacts he has with Lieutenant York are the kind that are very hard to forget him. He is a vicious, vicious guy who he has no respect for anybody. He can be talking to you--imagine if we came in this courtroom and you said, "Look, sit down," and said, "We are not sitting down, we don't have this tape, I have no respect for you, I have no respect for you, you are not really a Judge." You wouldn't forget me. I don't think you would forget me if I did that because I would be coming out of the lockup. This guy is pretty, pretty graphic and in transcript 9 a lot of this is devoted to Lieutenant York. Also, so I think that--so that is the--that is the fundamental problem, is that, you know, when we went up to Rappe and we basically--it is going to be about credibility.
Let me add one thing here because the book is a lot of puffing and blowing. I mean, he is really--he postures a lot, Judge. He is posturing in it. Whether it is for the purpose of book or that is the way he is, you know, I am not here to say, and I haven't listened to enough of the tapes to get a flavor for what is acting and what is real, and definitely a lot of posturing and a lot of exaggerating for the purpose of a book of fiction. The stories are puffed up, too. They are, Johnnie. You can see this.
Is this talking about the men against women aspect relevant to the other aspect that is the more germane aspect, which is the racial animosity and the willingness to fabricate or frame or however you want to put it, because that is the context that I allowed that other stuff in.
That's right. Now, legally speaking, we have to brief that out, but you know, if the Court is inclined to let any of it in, we have a 356 issue with respect to what is the broader picture here and the jury should--
There is balance to this and there are a lot of other things that Mark Fuhrman says, and there are a lot of anti-racist remarks that he says, you know, I'm an equal opportunity kind of guy and I will bust anybody who doesn't look like they belong where I see them, and that kind of thing, so there is that balance in there, too. But I think that it is important for the jury to know that the context of all this is a men against women context. It is not a racial diatribe by any stretch of the imagination. Because this there is going to require a lot careful briefing and right now the biggest problem I have with this tape is that there is no relevance to the issue that brought Kathleen Bell into focus, which is the willingness allegedly to fabricate probable cause against interracial couples.
Can I say something, your Honor? Just one second, Barry. These tapes--let me give you an example. This is not about any schemes or anything. He says tips on how you stop niggers basically. He says you see a Nigger in a Porsche and he doesn't have a $100.00 suit on, then you stop him because he has probably stolen the car. You don't look at the license plates. Let me tell you something, there is a crime on this tape as we've already talked to you about where he talks about some police officers being shot over in Hollenbeck Division and they go in and they beat the people until their faces turn to mush. There is so much blood on their uniform they have to come out and they have to spray themselves down with hoses. And then they--he has 66 or 68 allegations, and this is real, 66, and then he because internal affairs is so inept, and it is like a joke with them how they covered it up, and he is proud because he is the last guy they talked to. The suspect is the last guy they talk to. This guy is going to get prosecuted for this, Judge. He is going to be prosecuted, not any joke or anything, so these are worse than anything. The part about your wife does have some relevance.
I think that in answer to your question, all the things--certainly anything that deals with Lieutenant York is irrelevant. The--much of the stuff that is misogynistic I think can be easily weeded out, there is more than enough, but the key point here, when you talk about probable cause, there is a passage in there where he describes his whole world view. That is, they teach you certain things in the academy, but that is not how you are a real police officer. You have to get out on the street and learn how to lie, cheat and set people up. And he describes in every aspect of the job how that is what you are really supposed to do, from the simple fact of you see a guy on the street and there is a gun nearby, you know he is a bad guy. The job of the police officer is to lie about seeing him throw the gun and create probable cause.
That is on the tape. He talks about how he learns how to create probable cause at hearings and talks about lying.
And there is a repeated theme throughout this tape about what you learn in the academy versus what you learn in the street and how real police officers are supposed to act that go directly towards manufacturing evidence. I'm talking about things as simple as how--if you are arresting a junky or a hype, if you squeeze their arms for old track marks to make them come out to help set up arrests, tearing up driver's licenses, to how to do chokehold in a certain way, to how to beat confessions out of people, how to shoot not to stop but to kill.
There is repeat--and I have only read five transcripts--of modus operandi. It is more chilling than the testimony for the Mollen Commission in New York. It is an extraordinary thing. He names real names. There is no question this man is talking about his view of the street, his view of the job of the police officer and how that all ties into racial attitude as well.
Why are we doing this now? We are going to impeach this. A lot of what Mr. Scheck has said was misrepresented to the Court. I have read this, too.
There is a lot of relevance issues here obviously, because we are not talking about use of force case here.
The one thing you should know, in addition to the part about Lieutenant York, now Captain York, and this guy's views about internal affairs, is that the last--and I had the tapes longer so I have perhaps gone all the way through in no. 12--here no. 12 it is very interesting because some of it may or may not be relevant, but it is about--it is July 28, 1994, after he has testified. And I was particularly amused because I was back east this weekend and when I saw Mr. Garcetti's remarks about how he wasn't an important witness, he said one of the most chilling things. What he says is, "I am the most important witness in the trial of the century. If I go down, their case goes bye-bye." This man is--the reason why that becomes really important, if you remember those reports of talking to his doctors and things, so there is a lot of issues this is going to bring up because some things become very relevant before. This is a megalomanic. So Mr. Garcetti perhaps hasn't seen that portion of it.
Let's circle back to what the legal issues are. The legal issues are, one, is there a conflict for me to hear this issue?
It is not that simple. It is not that simple. Secondly, it is a double problem because if he is disparaging, A, of my wife, and B, of internal affairs where my wife is now the commanding officer, I mean, that makes it a--
--double whammy here, so you know, that is obviously a problem that we will have to broach first. Then the issue of what are we going to be able to use in the tapes, if anything, and we will have to have a hearing on the tapes, we will have to have McKinny tell you what they are. Fuhrman may have to testify.
Even at a hearing he may want to testify. If he has got a lawyer, he is not going to testify any more. He is going to get indicted for a lot of reasons. Tourtelot may let him do it but a real lawyer is not going to let him do that.
Let's see what happens. Let me broach this: As the Court may recall, it was some months ago when there was an interview given by an ex police officer in Idaho or something and he said I remember Lieutenant York--it was then Lieutenant York--
--and Mark Fuhrman having run-ins and I know that they had bad words and I know that there was a bad scene between them, and we watched it on television in chambers.
And I asked at that time that counsel be required to give a waiver of any possible conflict as a result of what appeared to be coming out in the wake of the affidavit given by Captain York in Rappe's court. And counsel refused at that time to give a waiver, but nevertheless, was put on notice that this issue existed and failed to object or ask for a mistrial, which it was his right to do at that time. I believe I even brought down 170 to show counsel that, you know, the trial is a nullity if you--you know, if this is indeed a conflict. The failure of counsel at that time to request the mistrial I think indicates an implicit waiver, but I'm acting in an abundance of caution at this time, but it is not as though counsel was not fully apprised of that issue. We all were here in chambers when that was aired on television.
We know all about Don Evans. In fact, we have talked to Don Evans. We know all about that. And we haven't waived anything. The point is we have not sought a mistrial in this, case as you are aware. The only reason I couch my issue the way I did, one of the things that was most helpful to us as we went about and talked to our client in advising him, was Captain York's declaration. That is somewhat put in a little bit of jeopardy, but perhaps that didn't have a lot of credibility, but the way I see this thing, it is troubling and we haven't had a chance to talk to Simpson about that, and it is an issue. I believe we can get through it. Let me talk a little bit about the big picture.
And quite frankly, Judge, we are going to be meeting over the lunch hour about what we are going to do. This is our witness. There is cross-examination, so we want to move ahead. What I was trying to say, in the big picture, we want to finish this case. We want to get this case over with by the end of this week or a couple days slipping in, and we don't want to spend a lot of time--this is very important, but I don't want to spend two weeks on these damn points. I can get you right to the point. Give you tips about stopping black guys.
The tapes, and you may even want to get it enhanced, but yeah, we will get that and our copies will be right behind that.
Judge, again, so then you can think about scheduling, because I think in your own mind what you are thinking about happening here, at least in terms of procedure, it would be our wish in terms of the order of witnesses that after Dr. Rieders, Michele Kestler. This afternoon you are going to hear argument obviously and resolve once and for all the issue on Savage and Bosco. It would be our wish that after the--after Kestler and Bosco, Savage, whatever testify this week, that we move on to the Fuhrman witnesses, okay, and deal with the tape issue before we finish up our case. So if--if these tapes come to you tomorrow morning, you may want to keep the jury away for a day to start resolving these issues, I don't know, but I mean, it is going to be sooner rather than later.
The tapes--the jury is going to hear some portion of these tapes, there is no question about that.
I was not trying to be demeaning, Marcia. I was just saying based upon what we've heard and based upon the Judge's previous rulings, the jury will hear some portion of it. And we have a sense of how you see things and your fundamental fairness about this, so we can anticipate this. We want--as Peter has indicated, we have Rieders are we going to call.
Maybe Howard Weitzman. I told you there is a possibility we have a 402 on that and the reporter issues, and then we are going to end with two or three witnesses, and so we are right there now, and so we want to get those to you in just a matter of working and getting copies and everything.
Mr. Cochran, you appreciate that we are probably talking about a couple of days' worth of work for the Court just to review what is there, either me or Judge Rappe, so we are talking about the necessity of, you know, taking some time to do this.
We have to get stuff even for our people. They want to do some stuff. We think in our position--it is our burden here. We plan to carry and go forward. And we want to make it as reasonable as we can for you and so we anticipate that, that we may have a little bit of time off because of that, and it is a lot of work to do.
I mean, there is a lot of work to do and there is a lot of briefing to do and there is going to be a lot of reading to do because we have been doing a lot of research on this. I don't exactly share obviously Mr. Cochran's view of the admissibility or relevance of these tapes, so that will have to be briefed out. I'm not going to argue it now. We will brief it now.
I will be honest with you, Judge. It is really something that, you know, if this were another case we would probably resolve this in a very amicable and easy fashion, but because it is the kind of case it is, we are going to duke it out and that is too bad.
Nevertheless, we need to know at this point what else is coming after the Fuhrman tapes, because if the Fuhrman tapes do take a while to resolve and Judge Rappe needs to do research or you need to do research, that is a big difference between whether we have down time or not. If Rappe takes it, then we can continue with witnesses here. If not, then we have to shut down, but what we need to know in terms of--we have rebuttal, you know, so we have to schedule things, too, and we need to know what comes after Fuhrman because maybe we can take that up and do that.
Well, I think I gave you some hint, but that is not the issue. The issue we need to resolve most quickly is the conflict issue. Let me suggest my thought, that although it is inflammatory, what Fuhrman may or may not have said about my wife, and his description of those issues, I don't know that that business is germane to the issue of racial animus and willingness to fabricate.
I'm offering that to both sides as a way of expediting this matter, because frankly, I don't see how another Judge can step in and make an admissibility call in this context.
I'm suggesting that if you want to pursue this, that you look and see what is there in the tapes that you think is relevant to those two issues and it is a--it is the combining of those two issues that I find most compelling, as I indicated to you.
The two issues are the racial animus and the willingness to fabricate. The combining of those two issues came together with Kathleen Bell. It didn't come together with some of the other witness that you offered.
Your Honor, may I suggest there is a third issue and I think perhaps a more overriding issue with these tapes, and that is what we have been saying from day one and that is the credibility of Mr. Fuhrman.
The credibility goes to other things that he said on the witness stand under oath.
The Defense--hold on, guys. The Defendant here is presenting this witness. What I'm suggesting is that what you offer and what you frame be pretty succinct as to what you are going after. Because obviously in eleven hours of tape I'm sure he talks about a lot of stuff that is irrelevant to what we are doing here.
That is going to be the issue. Let me give you one little example. May I? Again near the end of the tape, and this is in July of 1994 after he has been talking to Tourtelot, everybody's names come up. They use real names, of course. He is talking about Shapiro and this lawsuit they are going to come up with to try to take bob's house and his swimming pool and he is a Jew. He has a swimming pool--
Tourtelot tells him, and Judge, so what he says, though, remember in court here he testifies, no, I'm not going to sue Mr. Shapiro. Tourtelot is over kissing up to Bob, you know, shaking his hand and everything. This is a lie.
There are certain things that are credibility issues about what he is saying as late as July.
Hold it. Guys, you are on the record here. If you guys insist on talking over each other, you are making mush for a record. Obviously there is a direct refutation of something that he testified to. That is a completely different issue. But what I'm saying is that you should be cautious in how you frame what you want to present is the only piece of advice that I'm giving to you at this point.
Okay, Judge. Let us put on the record and over the lunch hour--you have a meeting?
But if they raise it and they declare a mistrial, we don't agree to it. I don't think they want to do it.
No, no, no, no, no, no. We would--my issue in is a conflict issue I think a waiver should be taken from the Defense.
As Detective Phillips said, if you want to keep a clean record, you should have kept Fuhrman shut up.
KEY QUOTELet's do this: Go back to your respective corners, consult with your partners and cohorts, see what your strategy is, what you want your strategy to be, and we will talk about it when we close up this afternoon and see where we are going.
He hates women. He hates everybody basically except white Anglo-Saxon men who are police officers.
I am the most important witness in the trial of the century. If I go down, their case goes bye-bye.
if he is disparaging, A, of my wife, and B, of internal affairs where my wife is now the commanding officer, I mean, that makes it a — sort of a double — double whammy here
They teach you certain things in the academy, but that is not how you are a real police officer. You have to get out on the street and learn how to lie, cheat and set people up.
As Detective Phillips said, if you want to keep a clean record, you should have kept Fuhrman shut up.