We're in chambers with Mr. Cochran, Mr. Neufeld, Mr. Blasier, Miss Clark and Mr. Darden. And I've asked counsel in chambers to discuss the problem that has arisen with regards to the Fuhrman tapes. And I want to make it clear for the record at this point that the Court's knowledge of the tapes is based upon the representations that counsel have made to the Court in chambers or at the sidebar and that at this point, the Court has not--does not physically have the tapes or the transcripts. I have not listened to the tapes or read any of the transcripts which I think actually is a good state of affairs at this point.

There is a potential that one side or the other may wish to call my wife as a witness with regard to Mr. Fuhrman. If that happens, then under the code of civil procedure section 171.1, sub (A) sub (1), I'm required to disqualify myself as the trial Judge in this case. Although I do not have any personal knowledge of my wife's dealings with Mr. Fuhrman while she was a lieutenant at West L.A. and the watch commander back in 1985, the code says that a Judge shall be deemed to have personal knowledge within the meaning of this paragraph if the Judge or the spouse of the Judge is to the Judge's knowledge likely to be a material witness. So I am deemed to have her knowledge for the purposes of disqualification. So if my wife is a material witness, then under this code section, I'm required to disqualify myself and perhaps declare a mistrial at this point. The alternative is to solicit a waiver from the parties. But the code is very clear that I--the only thing I can do is make counsel aware of that possibility and ask if that's something that they would contemplate. And that's the extent of what I can do as far as that is concerned. So that is something you should perhaps consider.

My proposal at this point is to transfer to Department 100 for reassignment to another Judge the issue of whether or not my wife is a material witness, whether or not she has any relevant, admissible or material information to offer on this point.

I would assume that's a preliminary issue in other words. So if the Court finds she's not, then those other alternatives are irrelevant.

Well, that's correct. But there is also the--I mean, both of you will have to determine whether or not there's something--having not heard the tapes, I don't understand the context of what my wife's potential involvement may be. So, you know--since both of you have heard it. But it's something at this point I would not prefer to know the details about.

It's just as well. Judge, what happens to the trial while this is going on? Are we stopping the trial?

That's another thing that you should contemplate because, you know, once I am aware of grounds for disqualification, I have to take action, which I'm doing first thing this morning and have had some time to think about, do some research and see where we are.

My inclination would be to send you up to 100 to get a date and assignment for a hearing, and then if it's your desire to proceed further at this point with these witnesses, to finish the witness that we started, I don't think that there would be any impediment to doing that. And since I don't think my wife has the involvement with Michelle Kestler or any of the other scientific witnesses that we are at now, I don't see that that would be a problem. But I think we need to resolve this issue at the earliest possible point. Bob, let me give you a copy of this. This is a draft. Write on the top of it "Draft." So that's where we are.

I would--if we're going to--

Because, Marcia, you're the one who indicated that you may want to call her as a witness.

Right.

For either the two reasons that are discussed.

Right. I mean, she's--I've had the pleasure of meeting her, and I think she would make an excellent witness. She really would.

That's right. I'm sorry. But yeah, there's that potential. And I just--it really depends on what the ultimate ruling is, what comes in, what goes out, in what form. That really is going to have a lot to do with our position, what witnesses we need to rebut with, and we don't know that yet. I would like to proceed with the rest of the trial. If another Judge is going to be determining these issues, then I would only indicate that perhaps in an abundance of caution, we should take a waiver from both sides that you can continue to hear all the rest of the case just to make sure it's clear. And I'm sure the Defense have no problem with that.

I don't know that. I don't know. I don't know that we're going to waive. We've tried to see--I don't know how things are going to happen. That's why I'm having stuff from Dershowitz. We're perfectly comfortable here. But at this point, I can't say we're going to waive anything. I think--how can I say that? I've got a client here--Judge--let me ask you this, Judge. I've never been clear. If the Prosecution insists--we're telling you, we're not going to call Captain York. It's not a certain area where I think we're going to call her. That was something brought out by the People you understand. If you had to recuse yourself, does that mean there's a mistrial or another Judge comes in?

I don't know.

We don't have a brief on that yet, do we? I don't know that this has ever happened.

Yes. I think another Judge can come in. There's a lot of precedence for this.

If you can find those precedences in the case law--because I have my eager beavers and legal eagles working on it now.

There's a federal case in Nevada where that happened, where a sitting federal Judge was actually indicted while he was sitting in the middle of a trial.

Right on point.

Very good, Peter.

Anyway, I agree. I think it's probably true that you would have another Judge sit in at least for these issues.

I meant not only for these issues.

You're talking about the whole enchilada.

What about just for the witnesses?

What if a Judge dies during the trial?

That's legal cause for a mistrial. That's one of the defined causes.

Also, couldn't the parties stipulate to continue?

I'm sure you can always do that.

I would imagine they could.

Judge, other people are dealing with the substance. Again, I'll get back to the nitty-gritty of calendar just so you know how quickly we have to do this. I assume Michele Kestler will be finished if not this morning, certainly this afternoon. We have another witness who's here. That's Larry Ragle. After that, it's, you know, our intent to actually deal with these tapes in front of the jury before we go any further with the trial.

Then that tells me that we need to proceed with alacrity to get this determined.

That's what I said yesterday.

We also need a 402 on Ragle. We just got his notes yesterday for the first time. I don't know what they're calling him for. If it's crime scene collection or something like that, it's cumulative to Henry Lee. We have no clue.

He hasn't testified yet.

Hold on.

Assuming you are going to call Henry Lee.

Hold on. All right. More importantly, let's resolve what we're going to do with this recusal issue.

Can we have a little time on this, Judge, give us like 10 minutes? We--I haven't told the client anything. There is a real client in this case. I've got to talk to him. I need to get word from back east.

We need to confer too because we got a draft of a brief done last night. The case law would seem to indicate with respect to ruling on the tapes themselves, what comes in and out, it should probably be another court given what's the content based on the appearance standard. And these were the cases that came out. I'll show the Court the draft, but--

Make sure you write on the top of it this is a draft that you have.

But that's the way it seems to be going. I asked everybody to go out and brief this, tell me what you got here, and that's the way it seems to appear. And it's a question of the appearance, you know, would the appearance of it on its face, you know--

Well, let me ask you this though, Marcia. I hate to dump this issue on another Judge because we're talking about several hours of tape and hundreds of pages of transcript plus having to go back and put Fuhrman's testimony in context.

Right.

So if--my proposal to you is that if we determine that my wife is not a material, a relevant witness, if another Judge makes that determination, then to have that material redacted from the transcript and from the tapes and then I'll do the evaluation of what's relevant or admissible on the remainder, it would simply be quicker I think by several days. But if you feel--I mean, if you think you've got good authority on appearances, I'm willing to listen to that. I'm just offering that as an alternative. It may be a little--

We need a little time to pull back and talk to everybody. Then we can come back to you at that time and at least tell you where we are.

I would like to have that opportunity too.

Okay.

You know what though?

Let's do this.

We should preliminarily have those discussions now only because given the chronology you just heard, you may very well--this matter may have to be referred for that limited purpose to somebody this afternoon. That's all I'm saying. So we should probably have that discussion with our respective sides now.

I was going to say, why don't we come back at 10:00 o'clock. It's a quarter after now. Let's come back at 10:00 o'clock and see what your positions are.

Thank you very much.