All right. Miss Clark, you were going to--you asked leave of the Court yesterday afternoon to do some additional research and to contemplate your position in this matter. What news do you have to bring to the Court?

Thank you, your Honor. And I thank the Court for giving us additional time. As the Court is well aware, it is our duty to examine all issues in a case. It is our ethical obligation to make sure that if any issues arise that may threaten an eventual verdict, we have to examine them whether we want to or not. And this was one that the Court acknowledged was a difficult one. The serious issue of conflict was raised by the Defense desire to play these tapes and present this evidence to the jury. And in pursuit of that we did extensive research. This was the product of extensive discussion and hot debate. It was a very difficult and lengthy process conducted over a number of hours last night and again this morning. And again I appreciate the Court's indulgence in giving us additional time this morning. Our position has always been, your Honor, that we wanted a fair trial that would focus on the issues. We have objected from the start to the introduction of race because we knew it would skew the trial away from the evidence. And all our concerns have now been proven to be true. And now that all the Defense efforts to present evidence of another perpetrator and police conspiracy have fallen flat and shown to be devoid of facts or evidence, they have turned to the "N" word. And that has become the cornerstone of their case, admittedly. The Prosecution team is made up of women and minorities, among others. We are all offended by the use of the words that we saw in these transcripts and heard on these tapes. We are also offended, however, by the efforts by the Defense to manipulate a jury by injecting the emotionalism that has to occur that occurs when we hear these things into a case that should be focused on the evidence. Injecting this issue into this case, your Honor, has hurt many decent people, yourself and us, and I'm sure it will hurt the jurors when they hear it, if they do. But we have to proceed as lawyers, and as representatives of the People we have to consider that although we have not always agreed with the Court, as advocates we challenge the Court, yet we have always respected this Court and its considerable talents and ability as a very fine jurist.

We want to end this case, your Honor. We want to get a verdict from this jury. We don't want a mistrial. We want a verdict that is based on the evidence. We want a fair and just verdict. This case has taken its toll on everyone; yourself, the lawyers, the taxpayers, the citizens, the families of the victims, the family of the Defendant, and we have to be concerned with the public perception that these proceedings are conducted fairly, but we also have to be governed by our knowledge and familiarity with the considerable legal talents, abilities and wisdom of this Court. Although our review of the case law indicated that we are entitled under the law to seek the course of recusal, we have determined that it is not the only course, and although the law does not expressly provide for a partial waiver of conflict, in consideration of all of the factors, your Honor, we have decided that it would not be the appropriate course in this case. Upon weighing the apparent conflict and the Defense desire to make these tapes the cornerstone of their case, against the ability of this Court to maintain its impartiality in the face of great temptation to do otherwise, we have determined that our faith in this Court's wisdom and integrity has not been and will not be misplaced.

Accordingly, we agree to proceed as previously delineated in this Court's order that was issued yesterday, but the concern strategically, practically speaking, your Honor, is this: When the issue of conflict was first broached, it appeared to me that it could be a partial thing, that the tapes were a discrete segment that could be excised out and that we could proceed business as usual as we have been discussing and the Court is aware. It was further discussion that led to advice concerning, well, maybe you can't. Perhaps this is an all or nothing proposition. Upon further reflection Mr. Darden and I conferred and determined that it really is, in at least one sense, an all or nothing thing, practically speaking, and here is what I mean, your Honor: If another Judge rules on the admissibility of the tapes, then your Honor will have to preside with the witnesses that pertain to those tapes and determine--and implement that ruling without having heard the tapes and rule on objections concerning the testimony of those witnesses. Practically speaking, how can you do that?

Well, what I thought we had contemplated in our discussions yesterday was that should Judge Reid determine that my wife will not be a material witness, or is not a relevant witness to the issues before the Court, then that the Court would review the transcript, a redacted transcript and a redacted tape, so the Court would be familiar with the background and the context of the statements or any of the evidence that is on the tapes, so that is one alternative.

And it is. And I had thought about that, but the problem is the cart before the horse. You know, as the Court has pointed out before, sometimes we raise these issues prematurely, but we will not know if Captain York is going to be a material witness until we know what is admissible, obviously.

I agree.

And even if she--and it may be that she is not material and she is just a witness, in which case I don't think we have a conflict situation, but that we can address later. That is not the problem. What we would like to do, your Honor, is let--allow Judge Reid to continue reading and getting up to speed in case he has to make a determination as to the material witness status, but we think that your Honor should review the tapes and determine their admissibility and make the rulings, because then you will be in the best position, when the witnesses testify, to rule on the objections, to narrow the scope or widen the scope, as the case may be, because you will have ruled on the admissibility and you will be familiar with your own reasoning in determinations made as to what should come in and what should not. I can't see, practically speaking, any other effective way of doing this, because if you have another Court's determination that you have to implement, I just don't see practically how that can work. I think the only appropriate thing to do is to, you know, like I said, I think that it really is an all or nothing proposition, and we are proposing all.

But don't you believe that it would be necessary for Judge Reid to make the materiality and relevance determination with regards to Captain York?

Yes.

All right.

I do. That is why I said I don't think we have wasted time, your Honor. You should get up to speed and read the transcripts. I don't think that you should be put in the position of making that determination, can't be, but that is discrete. I can see that being discrete. You make the determination on the admissibility. You decide what comes in and what doesn't, if anything, and then we can address that issue, Judge Reid can see your order and make a full and informed decision as to whether or not Captain York is a material witness. I don't think that that decision can be made until we know. We may not even desire to call Captain York after we know what the ruling is, so we need to get that resolved first. And I think the Court can do that. I think the Court should do that.

All right. Thank you, counsel.

Thank you, your Honor.

Mr. Shapiro.

Yes, your Honor. First I would like to respectfully request permission for myself, Mr. Cochran and Dean Uelmen to address the Court to put on the record what took place in chambers this morning, not as advocates, but as witnesses, so that we can have an accurate record of what took place, because we think this is crucial to the trial.

Well, at this point, Mr. Shapiro, rather than interrupt the argument at this point, because this argument fundamentally goes to the jurisdiction of the Court to move forward, so before we launch into that issue, that is, you are raising regarding our discussion ins chambers, I would prefer to address the issue regarding this Court's further participation in the trial.

Well, our position has been clear throughout. This Court took a waiver last year. The first thing your Honor did when you took the bench in this case is you addressed myself and Miss Clark and you said, "I want the record to be absolutely clear and I want Mr. Simpson to know that my wife is a captain on the police department. This could be a potential conflict. Are both sides aware of that and willing to waive it?" So everything that they have done has been in bad faith. There is no way they can recuse you from this case. There is no way they can ask you to step down. There is no conflict. There has never been a conflict. And so clearly your order was correct. We have no problem with it. You have done it three times before. We have never heard an objection. We have been to three different judges on other sensitive issues that have been resolved by other judges without anything being said by the Prosecution whatsoever.

All right. Let me ask you one question then, Mr. Shapiro: What Miss Clark proposes is a modification of what occurred yesterday. She is asking that Judge Reid conduct the hearing regarding the materiality and relevance issue regarding Captain York--always seems strange to refer to your spouse in the third person--and then leave for this Court the issues regarding the admissibility of the tapes themselves or portions thereof.

May we just have a moment to confer?

Your Honor, may we just have a moment to confer? Thank you.

Counsel, would you be more comfortable if I left the bench?

Judge, it will just take a second. It is all right. We are almost there, Judge, no problem. If it is not an inconvenience to you, no problem.

Your Honor, we would like to, after this issue is resolved, put the issue that I asked to address the Court about on the record and I would like Dean Uelmen to give our thoughts regarding the proposal that has been presented.

All right.

Will that be acceptable?

Yes.

Thank you very much.

I think it is very useful at this point to kind of step back and make sure everybody has a clear understanding of precisely the procedural posture of what is going on here and what is now being proposed. We did not perceive what happened yesterday to be any sort of judicial disqualification or even partial disqualification.

What we understood was going on was the Court referring to another Judge the determination of whether a disqualification would be--and it is not the first time that that was done in this case; it is the third time, and on every prior occasion, if there was any suggestion that what was being done required a complete disqualification of the Judge from this case, that issue should have been raised at that time. And it is our contention that you can't sit back and have this procedure go on time after time after time as issues recur and then when you see it as some sort of tactical advantage, raise the club of a total disqualification. So we believe any question of disqualification has been waived and any question of total disqualification or some estoppel against the Prosecution for not having raised the issue before, so from our perspective this whole issue of total disqualification is a red herring and it is, we believe, being used as a tactical ploy and that issue is going to be addressed by Mr. Shapiro and Mr. Cochran in the light of what happened in chambers this morning. What is now being proposed is essentially what we were proposing initially yesterday and was contained in your Honor's first draft, I believe, of the referral of the question to Judge Reid simply of whether Captain York will be a material witness in this case and that is a satisfactory resolution of the issue for us. We believe that that issue can be decided with dispatch by Judge Reid. We believe there is no reasonable possibility that Captain York will be a material witness in this trial or need even be mentioned in this trial, because what we are going to present is an offer of proof of specific portions of that transcript that are directly relevant to the credibility of Detective Fuhrman, thirty specific references in which he uses the word "Nigger" in a racially offensive context and which directly contradicts the testimony that he presented under oath in this courtroom. And we will present an additional 17 extracts where Detective Fuhrman speaks with approval or with personal experience about police misconduct, the planting of evidence, the commission of perjury, and the--the presentation of cover-ups and false testimony in court proceedings, and then finally a reference to his own role in the proceedings before this Court. So we are going to have a very limited offer of proof that can result in the redaction of a lot of other offensive material, and believe me, not just offensive to Captain York, but to every person who sits on the city council in Los Angeles, to every member of the ACLU, to every Judge of this court. And that doesn't have to be even mentioned in the course of these proceedings, and frankly, I think we are back to where we started yesterday, to simply send to Judge Reid--

It does appear that way, doesn't it?

--the question of whether Captain York will be a material witness.

All right. So you accept--

All right. So you accept--

We accept a referral to Judge Reid of the question of whether there is any reasonable possibility that Captain York will be a material witness and leave to the decision of this Court the materiality of the offer of proof that we will present with respect to particular portions of the transcript that we propose to offer in evidence. Could I have just a moment?

Certainly.

With respect to the other issue that I mentioned, that is the motivation for what has gone on, I would like to turn the microphone back to Mr. Shapiro.

Well, let me finish the issue of what it is we are doing first. All right. Miss Clark.

Thank you, your Honor. I'm very concerned by the spurious and unfair allegations made by counsel and now alluded to. That is why this case has gone on this long. You know, we have press conference after press conference in the court, out of the court. I think that the point here is that we had an ethical obligation to examine issues that could be serious, that could have threatened the integrity of any verdict we ever got. We could not anticipate this conflict, no one could, your Honor. No one knew about these tapes, no one, not even the Defense, until the eleventh hour. When we were apprised of the fact and learned of the contents, we immediately began to address the issue that seemed to be raised. We cannot--we don't have the luxury of burying our heads in the sand and pretending things don't exist like the defenders does. As officers of this Court, as representatives of the People, whether we like the issue, whether we like the outcome, a result of the legal issue, whether we like the answer to the question or not, we are compelled, it is our ethical duty to answer the question in the appropriate manner that will protect the integrity of any possible verdict, and that is what we have done. And we have made our very best effort to examine all of the case law and make sure that the course we adopt is the correct one, the sound legal one that will preserve the integrity of the judicial system and of any verdict that we may obtain in this case. That is all we have done. And Defense wants to somehow indicate that there is a tactical decision being made here in raising the conflict issue? I mean, that is the biggest bunch of nonsense I have ever heard. The Court eloquently stated what the problems were and I look to the Court's own remarks yesterday in its order in which the Court stated as follows: "Would a reasonable person entertain a doubt concerning this Court's ability to impartially decide the scope and availability of impeachment evidence concerning a witness who has specifically referred to the Court's spouse in a disparaging manner? Is it possible to conceive a scenario where a court similarly situated would be tempted to punish Fuhrman by broadening the scope of impeachment? Is the possible to conceive of a scenario where a court similarly situated would be attempted to narrow the scope of impeachment to prove impartiality? The reasonable answer is yes." Those were these Court's own words. The Court obviously saw the problem that was posed by the situation we are placed in with the introduction of these tapes. No one can ignore it. The Defense would like to ignore it. Mr. Cochran back in chambers was gleefully referring to these--these passages involving Captain York in the very hope that your Honor would be biased, would be inflamed and would seek to punish Detective Fuhrman for having made those comments. That was the tactical advantage they hoped to gain. Unfortunately what they did not foresee is that the very tactical advantage they hoped to capitalize on spelled bias under the law, spelled conflict under the law. Not the real obvious actual bias, but the kind that we have to be concerned with under the law, the apparent bias, the appearance of impropriety. Counsel didn't play that out. He didn't think about the import of what he was saying. We have to. We have to think about this. We have to think about what are the consequences if no one addresses this issue. Now, we have. The Defense has addressed the issue, we have addressed the issue and we are convinced from having examined all aspects of this, we have always been--first of all, let me just say one thing: We have always been convinced of the Court's ability to be fair and impartial, even in such a trying situation, even though the temptation for all of us could be tremendous not to be one way or another. We have faith in this Court's ability to do so. We know the Court will do so. But we have to be sure that the record is absolutely clear that there can be no later appeal by the Defense saying that there was a conflict that they never waived. Now it is waived. Now it is clear. We have a very clean record that cannot be assailed on appeal should we ever get a conviction in this case and that is what we have to do as officers of this Court, as representatives of the People. There is no--we are responding to counsel's desire to gain a tactical advantage in this matter, to counsel's desire, as unsophisticated as it was an effort, to get the Court to behave in a biased manner. We know the Court will not do so, but having injected such an issue into the record, we also had to be sure that no one would ever question the People's decision to have this Court make the decision in this matter. And now we know that it cannot be. With respect to the chambers conference, your Honor, I think that--

That is our issue.

Your Honor, may we talk first on that?

They always try to--

Hold on. Hold on. Have a seat, Mr. Shapiro. Miss Clark, I want to resolve and make a ruling on the issue that we have before us. Mr. Cochran did ask first to address that issue.

Okay. Your Honor, all I was going to say about it is--

Your Honor, object.

Yes.

All right.

I will let you respond.

Okay.

All right.

Thank you.

All right. As to--as to the issue regarding the referral to Judge Reid, it appears to me that both parties have agreed that this Court should issue an amended order directing Judge Reid to evaluate the tape recordings and the transcripts of these proceedings previously with regards to Detective Fuhrman and to make a determination whether or not Captain York will be a relevant or material witness in this case, and that is the issue that he is to determine. That once that has been determined, if Captain York is a relevant and material witness, then this Court has no--no other alternative but to completely recuse itself. However, if that is not the case, then the agreement between the parties is that a redacted transcript and tape recordings will be submitted to this Court for this Court to make the determination of admissibility of any impeaching materials, any of these thirty uses of racial epithets, any of these seventeen incidents that are alluded to or any comments regarding current attitudes towards testifying. That is my understanding of our position.

May I make one point?

That is the problem that we have is I don't think the determination can be made as to whether or not Captain York is a material witness without knowing what is admissible first. You know what I mean? It is kind of putting the cart before the horse. We need to know what your Honor is going to admit into evidence before we know whether she is a material witness. She may not be after the ruling, or she may be, but we cannot know that until the Court determines what is admissible.

Then wouldn't the easiest way to do this would be for me to have the redacted--

That's right.

--tape--

That's right.

--and transcript, make that resolution first?

Right.

And then refer the matter?

Right. Exactly, your Honor. I mean, that is what the People are proposing is that we give the Court the redacted version, let the Court make its ruling and then let Judge Reid--and Judge Reid should be getting up to speed during this time. This will give him the opportunity to do so.

And then he should have the Court's ruling as to what is deemed admissible, he can read the unredacted version and see whether in his determination she would be a material witness. But I did want to point to only one distinction if I may, your Honor, and that is that there is a distinction I think in the law with respect to conflict as to whether she is a material witness or just a witness, I think. And obviously we will brief this out, but if we determine that we would like to call her as a witness, yet she is not material, because frankly, this whole issue is not material, then I don't think the Court needs to recuse itself.

Judge, one other thing--

That is an issue that we are not close to at this point.

--I think Jerry wants to address.

I have never heard calling an immaterial witness, but the proffer that will establish the materiality of the redacted portion of the tape can be presented to both this Court and to Judge Reid. And assuming--I think our position is even assuming that all of the redacted portion is deemed material, Captain York is still an immaterial witness. And I think Judge Reid can make that--that ruling, Judge, based on the proffer that we are offering of what portions of the tape we intend to offer.

But that ignores issues of 356, your Honor. You know, you can't--you can't put that horse--the cart before the horse that way. If perhaps the Defendant wants to admit some passages that we think need to be balanced or placed into context with something else, then Judge Reid is only getting half a loaf; he is getting what the Defendant wants. As much as they would like to have this a one-sided lawsuit, it is not.

Well, no. You would have the opportunity to present your countervailing points and authorities and I'm sure Judge Reid will entertain argument on the issues. But I think the point that you raise that this Court should determine which of these multiplicity of incidents that the Defense wishes to offer, the Court should determine that first before Judge Reid launches into that, but he should also start looking at this stuff, since it appears to be voluminous.

Right.

And he needs to do a lot of background on it, so I'm willing to do that. So when--Mr. Cochran, when can you make available to the Court a written proffer with regards to each one of these incidents and the factual materials, the tapes and the transcripts? And then obviously the Prosecution will have the opportunity to submit points and authorities in contravention to the admissibility or materiality of those issues, and then I will hear argument as to each individual incident or use time after I have familiarized myself with the proffers, the opposition and the actual underlying material.

In answer to your question, your Honor, I would anticipate that we could have it ready by nine o'clock tomorrow morning, so we want to move that head, because we are at this point in the case, once we finish with this witness. One other thing I was going to suggest on this issue, your Honor, is we have two declarations from Captain York and I think that they may be helpful to Judge Reid, and these are declarations under penalty of perjury, and I don't know if you have sent those, but they should be sent. The People have never talked to your wife I'm sure.

Yes, we have.

We have declarations from November 21st, 1994, and--both from November 21st, and I think it will be helpful if those are sent along also.

Mr. Cochran is mistaken because I did speak with Captain York when she appeared in court.

If they talked to Captain York since these tapes. They are talking about materiality. You have to talk to a witness before you make that determination. Will the Court hear from Mr. Shapiro on the other issue?

Actually I still haven't, since I have gotten controversy as to what is going on here.

Okay.

All right. Let me just determine what will happen at this point.

Sure, your Honor.

All right. We will proceed as follows: The Defense will submit to the Court its offer of proof with argument with regards to each of these incidents, plus the redacted tape and transcripts supporting, tomorrow morning.

Right, okay.

After that has been filed, the Prosecution will have the opportunity to file any written opposition that it wishes to, and after the Court determines what is here, I will schedule an argument with regards to each one of these incidents.

Okay, great.

All right. I will instruct Judge Reid or request Judge Reid, since he is a Judge of equal stature, I will request Judge Reid to confine his activities to the issue of the relevance and materiality of Captain York's testimony, but he will have also available to him the whole constellation of the record, the tapes and the full transcript, and the benefit of any points and authorities that either side wishes to submit. And I'm certain that Judge Reid will entertain oral argument with regard to the issue, but that is something further down the road.

We may never--we may never reach that. You know, we just don't know at this time. I was only going to urge that the Court proceed to review all of the tapes and transcripts without waiting for points and authorities, because there is a lot.

Well, I will do my best.

Judge, one other point from the standpoint, as the Court is aware, we brought Miss McKinny out to California, and just a matter of scheduling and understanding the time constraints, she has a family, and it would seem to me--can the Court give me an estimate, without rushing anyone, there is going to be some down time obviously, less than we thought at the end of yesterday, but some down time, and I want to be able to represent to her that she can go back home or whatever. When do you think we will get to the hearing, a 402 hearing at the earliest, assuming that this is--

Well, having never seen any of these materials, you would actually be in a better position to tell me.

Well, I think your Honor is a hard worker and you can get through these tapes. It is like lay's potato chips, you can't put them down and you can't eat just one. Once you start listening, you are going to have to keep on going. But given your other constraints, you have other things to do, so I understand that, so you can get through the tapes in thirteen, fourteen hours, but the question is going to be, your Honor, we are going to brief it and give you the offer and they get to brief it and then there will be arguments back and forth and she has been out here since Sunday, so I am trying to get a sense.

Well, counsel, today being Wednesday, I think it would be overly optimistic that the Court would be able to entertain argument on the matter before Monday of next week.

I want to give her an option, she wants to go back or whatever, so I think that is probably a realistic appraisal with the weekend.

And the problem is, Judge Reid has the only copy of the tapes that has been proffered to the Court.

Well, we can give you--we can this afternoon--we will have a copy for you this afternoon.

Redacted copy, yes. Redacted copy.

All right.

Your Honor, we would like a copy of anything given to the Court. We want to--

Done.

All right. Thank you.

All right. All right. We are clear on that. Now, as to this in chambers issue, counsel, I will entertain your comments for five minutes. I realize you want to make your record. I'm going to restrict this, however, to one speaker per side.