At first blush there may seem to be a remarkable similarity to--between the issues that we are litigating with respect to these tapes and the issues that were raised regarding the evidence of domestic violence in which the court ruled on 59 different individual items of evidence and--

My recollection it was 74.

74. I'm reminded of--of Yogi Berra's famous aphorism that is deja vu all over again and perhaps that is a comment on the duration of this case that we are having deja vu experiences in the course of litigating these issues. But I would suggest there is one very crucial difference between what we litigated then and would we are litigating now and that makes all the difference in the world. In that context the Prosecution had only one argument and that argument was based on evidence code section 1101(B) with respect to the admissibility of prior similar acts. There was no question in the context of any of that evidence of the credibility of the Defendant, and of course your Honor's ruling did not address the potential use that could be made of that evidence to cross-examine the Defendant or as extrinsic evidence to impeach his testimony if he testified. So I think it is important at the outset that we recognize here the evidence has at least two purposes and in many cases more than two. We are talking about double-barreled evidence or in some cases triple-barreled evidence. It is offered not just to prove conduct, that is, to support the inference that Detective Fuhrman would have altered or moved evidence in this case or presented perjured testimony in this case. More important, it is being used to challenge the credibility of a witness who has testified to assist the jury in assessing his credibility and the weight that they should give to his testimony, all of his testimony, not just the evidence or testimony he presented with respect to the finding of the glove. And I think it is important to put ourselves in the position of the jury looking at the testimony of Mark Fuhrman. I know that is hard, after we've read all of these transcripts and listened to all of these tapes and come to the sickening realization of who Mark Fuhrman really is, Los Angeles' worse nightmare, probably the greatest liar since Ananias. But the jury has only seen a very polished and professional performance that was carefully orchestrated in which Detective Fuhrman sounded more like a choirboy. In one of the tapes he says, "I'm the only one who knows how to testify." Well, I think he certainly proved that in this courtroom. He flatly and unequivocally denied harboring any racial bias. He said he had not used the word "Nigger" in ten years, and most important, he said that those who said any different were liars, all of them. And he was confronted with the statement of Kathleen Bell that in 1985 or 1986, precisely at the same time that these meetings with Miss McKinny were going on, that he stated he would find a reason to arrest a mixed couple that he saw in an automobile, a black person with a white woman, he would stop them, and if he didn't have a reason he would find a reason. And he went on to say that he believed that all African Americans should be put in a group and burned.

And he denied making those statements, in effect, labeling Kathleen Bell a liar, and he did it in a very convincing and persuasive manner. Now, items B-1 through B-41 of our offer of proof include 41 instances in which Detective Fuhrman uttered the word "Nigger," all within the past ten years, and there can be no doubt about that. There is no question but that those words were not inserted into transcripts by Miss McKinny until they were said by Detective Fuhrman, and of course we hear those words being used repeatedly on the tapes. All but 15 of the 41 instances are recorded on audiotape and those that are not are in verbatim transcripts. Of these 41 references, 31--

Do you feel it is fair to characterize these transcripts as verbatim?

Yes. With respect to the words used by Detective Fuhrman, absolutely.

Verbatim transcripts in a legal context have a very specific meaning. I don't think you mean that.

Well, obviously she was not transcribing them as a legal reporter to certify that every word was--that every word that was spoken was transcribed, and in fact she admitted that.

My listening to these tapes and comparing them to the McKinny transcripts indicate that there is substantial inaccuracies in those transcripts, so I don't think it is fair--I don't think you should refer to them as verbatim transcripts because I think you overstate the case.

Well, I don't think substantial inaccuracies is a fair characterization either, your Honor. The substance of what was said in every case is accurate. The--the--where we have the tapes--

As to all but 15.

But that is sort of a warning that if you--I think the court--let's assume that I'm going to allow some of this. It will only be with an accurate transcript.

And I think with respect to these uses of this word we have an accurate transcript. We have the word being used in the context in which it was spoken and we can with certainty conclude that the word was actually used, that Miss McKinny would not inject this word if it had not been spoken and did not appear on the tape recording.

I think it is also useful to sort out the temporal proximity and frequency of these words. That is, that 31 of these references are in 1985, four are in 1986, five are in 1987, and one is in 1988, and to remember that the numbers are not a reflection of some sort of monologue on the part of Detective Fuhrman, but simply a reflection of the nature and the duration of Miss McKinny's interviews. She conducted the most extensive, the longest interview process in 1985. The interviews that took place in `86 and `87 and `88 were of shorter duration, and that alone explains the frequency of the use of this word. And the word--the use of the word, it is clear from the context, is not inadvertent, the kind of thing that one might forget. In fact, I think it is very important that Laura McKinny sent Officer Fuhrman copies of the transcripts in which these words appeared, so he had an opportunity to look at them. In fact, his attention was called to particular references in the first transcript and that is the first one, no. 1, where the tape is missing. He had a copy of that transcript and he had a list of questions that referred to specific passages in that transcript.

Very similar to the civil process with depositions.

So he knew what was in there. Now, it is arguable I think, and Miss McKinny recognizes that and concedes that, that in only two of these instances when the word was spoken was it in the context of talking about a character in the screenplay, and those are B-12 and B-15. And the Prosecution will argue, I'm sure, that where the word is spoken in this context it should not be admitted in evidence. We believe that is a question for the jury, not a question for the admissibility of the--of the reference, because the testimony that we are impeaching of Detective Fuhrman was a flat denial of ever using the word without any qualifications. He didn't say, well, the only time I have used that word was speaking in a fictional context. So if we are going to put that kind of spin on the use of the word in any of these 41 instances, that is a question for the jury to decide as to whether that would be a context that would be within the scope of his flat denial of having ever used the word. So we believe that all 41 of these references, of these uses of the word, are directly relevant as impeachment evidence to directly contradict Detective Fuhrman's testimony. But with respect to 17th of the examples, and that is the list that we provided to your Honor this morning, we contend they are relevant for a second purpose as well. And that purpose is as evidence of Detective Fuhrman's racial bias against African Americans. These 17 examples go beyond simply using an offensive epithet. They express overt hostility towards African Americans. They imply a judgment that people are of lesser value if they are black, that people can be treated differently because of their race, and that kind of racial bias and hostility goes directly to his credibility in terms of bias and prejudice. And we believe it is precisely the kind of bias and hostility that the court was speaking of in the--in the case of in re Anthony P. And we cited the quotation from that case in our brief in which the court makes the point that expressions of racial hostility does not necessarily mean that a witness would come in and give false testimony against a person simply because of their race, but by the same token, the court can't keep out those expressions of hostility by making the judgment, well, this witness' testimony is credible anyway and I don't think the jury would discredit it based on these expressions of racial hostility. What the court in Anthony P. Is saying is that these are questions of credibility for the jury to resolve. It is for the jury to determine whether these expressions of bias and hostility would infect the testimony of a witness so that they should mistrust that testimony, so that they should disbelieve that testimony, and of course is a process quite apart from the direct impeachment of showing he used the word when he didn't. Here we are saying this is his extrinsic evidence that he is biased, that he has hostility toward people of the African American race, and that that hostility could and did in this case infect the credibility and believability of his testimony. Now, among these 17 examples we contend there are seven that are especially relevant for even a third purpose. Not only do they contradict Detective Fuhrman's denial that he had used the word, not only do they prove his racial bias and hostility, but they give strong corroboration, independent corroboration to the testimony of Kathleen Bell. Miss Bell's account of her meeting with Detective Fuhrman in Westwood in 1985 or `86--

Redondo Beach.

Redondo Beach. I'm sorry, I stand corrected. That testimony was attacked even before she walked into this courtroom. The Prosecutor, Miss Clark, on the record, labeled this a fantasy cooked up by the Defense, and Detective Fuhrman on the witness stand flatly denied that it occurred. And indeed, without these tapes, it does sound a little bit implausible that on practically their first meeting an LAPD officer speaking to a woman he barely knew would frankly admit that he would make up a reason to stop a mixed race couple and that African Americans should be all put in a group and burned. Well, that conversation was not in the context of developing a screenplay and yet the credibility of Kathleen Bell's account can hardly be doubted after hearing the Fuhrman tapes or reading the transcripts of what he said to both Miss McKinny and to Miss Diaz. And it is important that those statements are exactly contemporaneous, that is, they were made at precisely the same period of time that Kathleen Bell asserts she heard these remarks made by Detective Fuhrman. These seven statements are of a very similar tenor to what was said to Kathleen Bell.

All right. And for ease of referring back to these, which of these incidents are you referring to as the second category?

All right. First of all, it would include item 4, item 12 and item 35, because these are three instances in which very similar to the statement about finding a reason to stop a mixed race couple, he indicates he would use race as the basis to stop someone. He refers to stopping someone in Westwood the night before because they were from 22nd and Western and they didn't know where a particular restaurant was in Westwood, end of inquiry, into the car. No. 12 talking about whether you need probable cause to stop two what he referred to as niggers. He said probable cause, you are God, and the Porsche incident where he talks about seeing a black person driving a Porsche who wasn't wearing a $300.00 suit, you would immediately stop them. So it is the same kind of tenor as the statement made to Kathleen Bell at approximately the same time in the second category, and this would include item 5, item 6 and item 40. He is actually talking in genocidal terms about--

All right. I asked you about the third category. In the third category--

Yes, that is what I'm saying. All of these six incidents; 4, 12 and 35 relating to arrests without probable cause; 5, 6 and 40 relating to genocide which I think are very much the same tenor as a statement to Kathleen Bell about putting people in a group and burning them. In one he says the black people on the city council in Los Angeles should be lined up and shot. In another he refers to spending money to keep people in Ethiopia from starving to death as being a waste of money. And in item no. 40 the reference to the building of a new precinct station or new station in division 77, that the old station should be preserved because it has the smell of niggers who have been beaten and died within the premises of those walls. And there is one other we would put in this category no. 7, and that is 28. 28 because it is addressed directly to Laurie Diaz, another woman he had just met for the first time, in which he says to her, "You are talking shit. You sound like a Nigger. You are talking shit." The fact that he would speak that way to a woman he had just met for the first time speaks volumes about whether he would address comments of this tenor to Kathleen Bell in Redondo Beach at approximately the same time, 1985 or 1986. Now, moving on to the second category of our offer of proof, which is subdivision (C), items C-1 through 18, it is important again to remember that this evidence also has two purposes: It is not just to prove conduct under section 1101(B), but also to attack credibility. Now, the Prosecution argument in their brief is that many of these excerpts are statements of attitude so they don't really qualify as acts that would be admissible under 1101(B). We believe, first of all, that is an inaccurate characterization, that in most of these incidents Detective Fuhrman is describing conduct. In most cases his own conduct; in other cases the conduct of other officers that he observed and approved of. But even attitude, I mean even to the extent these merely show his own attitude, it is highly relevant to challenge his credibility, because section 780(J) of the California penal--evidence code, in laying out the grounds upon which credibility may be challenged, includes as subsection J, "The witness' attitude toward the action in which he testifies or toward the giving of testimony." And I think it is important that 1101(B) underlines the point by saying in 1101(c), "Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness." So we are talking about two completely independent grounds for the admission of evidence; 1101(B) when we are offering conduct to prove similar conduct on a later occasion, and 780(J) when we are talking about the attitude reflected in these descriptions by Officer Fuhrman and how that relates to his attitude toward the giving of testimony in this case. These incidents, every one of them, provide fertile ground for further cross-examination of Detective Fuhrman about his attitude, about his attitude toward the giving of false testimony and the planting or manufacturing of evidence. Whether we call it an attitude, a philosophy, an MO, or just call it unmitigated gall, we now have a good faith basis contained within these tapes and transcripts to put Detective Fuhrman back up on that witness stand and ask him: "Detective Fuhrman, have you ever destroyed evidence?" "No. "Well, what about the driver's licenses you were talking about in these tapes and transcripts? Have you ever criticized LAPD officers because they won't lie?" "No. "What about your partner who you say had more morals than hair on his head because he wouldn't lie? Have you ever manufactured evidence? "No. "What about the occasions when you scraped the scab from an addict so that you would have fresh blood to justify an arrest for being under the influence of a drug? And I think that is particularly relevant in the context of the case where we are talking about blood evidence. "Do you believe, Detective Fuhrman, that police should play by the rules? "Yes. "Well, what did you mean in these tapes and transcripts when you said fuck the rules, we will make up the rules later? Detective Fuhrman, did you ever testify to events you did not observe? "No.

"Well, what about that incident you described when you were the fourth car on the scene and you came in and testified, because, quote, you were the only one who knew how to testify?" I could go on and on. "Do you believe you have some special ability to sort out good people from bad people on the basis of where they live or the color of their skin?" We have the switch hitter description. "Do you believe police officers should never testify against each other? How else do you explain the references in excerpt C-9 to the group being tight and getting away with something that you knew they had done because the group all told the same story without even having to consult with each other?"

Well, speaking of C-9, would you address the argument that the Prosecution raises regarding factual bases for some of these?

Yes, your Honor. To the extent that they are going to argue that these incidents should not be admitted because Detective Fuhrman has a tendency to exaggerate, to puff, to put in details that did not happen, that may be a fertile area of inquiry with Detective Fuhrman. But we believe in the record we already have, there is ample corroboration of the basic facts that he is describing. In fact, one particularly telling example of that kind of corroboration can be found in the very psychiatric reports that were prepared when Detective Fuhrman applied for disability. And these are the terms in which he described this same incident in 1982 when he is going to the police department and saying I want to be relieved on the basis of a disability. He said: "I had two friends shot by a bunch of those slimes. He rode a beef for 18 months regarding what happened to four guys that he and his partner caught." He says he was smarter than the people who investigated this incident. He says, quote: "You don't see, you don't remember and it didn't happen. Those are the three things you say and you stick to it." So that is his account of this incident in 1982, three years before these tapes were ever made. So there is plenty of corroboration. I believe we can show that in the essential details with respect to covering up, there is corroboration.

How are we going to do that?

Well, first of all, we can do it with--with the inquiry of Detective Fuhrman on cross-examination.

Given the--given the very rapid fire cross-examination that you suggested and which, if it happens I would like for you to do it, since you seem to be able to do it in a very quick manner, Mr. Uelmen, do you think counsel representing Mr. Fuhrman would allow him to testify in light of that proposed line of questioning?

Umm, that--that is a bridge we will cross when we get to it. We intend to call Detective Fuhrman to the stand. We also believe--I know that he was not excused. He is subject to further cross-examination. If he does invoke the 5th amendment, that simply means he is no longer available as a witness. Once he is no longer available as a witness, every one of these items becomes admissible as a declaration against interest under the evidence code and we believe we can offer it extrinsically to impeach his testimony. We can offer it to show the pattern of conduct under 1101(B). We can offer it to show habit under 1105, and if they want to come in with some counter evidence saying, well, this stuff isn't all true, Detective Fuhrman was lying or exaggerating, they are welcome to do that. In fact, I'm looking forward to hearing that argument addressed to the jury, for the Prosecution to get up and say, ladies and gentlemen, all of this stuff you heard on the tapes of Detective Fuhrman admitting that he lied, that he planted evidence, that he tore up driver's licenses, you shouldn't trust that, because Detective Fuhrman exaggerates, so just ignore that and believe his testimony on the witness stand as though his tendency to exaggerate had nothing to do with the testimony he presented when he got on the witness stand and testified in this case. That is an argument I look forward to hearing, because I think we will have an answer for it. So it is not a question of we can't let any of this in until we have independent evidence showing that it actually happened. We have here the statement of the witness himself in which he is recounting it. And to the extent that the Prosecution wants to undercut it, to challenge it, to say it is an exaggeration, to show that some detail is not accurate, they are welcome to bring that evidence in and present it and argue it to the jury. Now, apart from the attitude--

Just shouldn't I be concerned, though, that then I have to try 18 little trials? Shouldn't I be concerned with that?

No, I don't think your Honor should be. No. 1, it is very unlikely that we are going to see that kind of evidence brought in with respect to all 18 of these--of these incidents. I think for the most part the description that we have culled through the editing process from these transcripts is a very precise description, umm, and, umm, it is not going to, umm, occupy a lot of detours or false pursuits in terms of litigating the accuracy of every one of these--of these incidents. What is relevant is--is not just whether they happened, but the attitude they reflect on the part of the witness. The fact that he is personally boasting about engaging in this--in this kind of activity says a lot about the credibility we should give to the testimony he presented from the witness stand about what happened in this case. And bear in mind, your Honor, that Detective Fuhrman was on the witness stand, I believe, six days--was it a total of six days? It was close to that. It was--and it was a major part of the Prosecution's case. It is the foundation for the most significant evidence that they have presented against the Defendant in this case. So to be concerned that with one or two of these incidents we may have some evidence that they want to bring in challenging the accuracy, let them make a proffer of what--what challenges they have. And I hope it is a proffer that is better than the one they offered in their brief, which was simply a citation of the Los Angeles times. If they have some evidence to challenge the accuracy of any of these incidents, let them offer it and then your Honor can make an assessment of whether indeed that will take us off on a tangent that would consume too much time. Now, let me quickly address the 1101(B) issue, because here again we are on that familiar terrain that we trod in the context of the earlier motions litigated in this case. Apart from the attitudes on the part of Detective Fuhrman reflected in each of these 18 police misconduct excerpts, they are relevant to prove motive, opportunity, intent, preparation, planning, knowledge, identity and absence of mistake or accident. And we believe that any evidence allegedly collected or observed by Detective Fuhrman should not be trusted in this case because on prior occasions he has destroyed evidence, ripping up driver's licenses. He has planted evidence, including fresh blood from the scab of a hype. He has testified falsely, making up probable cause, testifying to events he did not observe. He has beat suspects in order to obtain confessions. He has ignored department rules and regulations. He has covered up the misconduct of other officers. These are all specific instances of conduct that are relevant to show his intent, his motive, his opportunity, the lack of mistake or accident, all of the items listed under 1101(B) that permit the admission of this kind of evidence. The--there are six incidents that we believe are relevant for a third purpose, not only to show attitude, not only to show 1101(B) conduct being repeated, but for the third purpose of--of showing habit or custom under section 1105. And there is an important difference between 1105, your Honor, and 1101(B), because 1101(B) does talk about the admission of evidence that a person committed a crime, civil wrong or other act. But 1105 says: "Any"--"Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion." And that means it doesn't have to be evidence of an act. It can be evidence of an admission, it can be evidence of a practice or it can be evidence of a specific incident or act. And we believe that the most chilling of the--the incidents of police misconduct that we have culled for purposes of the offer of proof are when Detective Fuhrman talks about how it really works and how it has worked in the past. Especially item C-9 where he talks about how I got away with it. "I got away with it. They knew I did it, but I got away with it because we were tight, because 37 officers from that division told the same story without having to call each other up and consult each other." What he is describing is what we will contend is the code of silence, and he identifies it in even more chilling terms in item C-10 when he talks about his disgust with a partner who won't lie for him. If he is not describing in that excerpt a code of silence, I don't think we could find a better description of the code of silence, of the understanding that police officers cover for each. And the reason this is particularly relevant in this case is because the Prosecution's argument with respect to the planting or moving of evidence by Detective Fuhrman is it couldn't have happened because there were other police officers around. So they are going to argue to the jury to reject any suggestion that there could have been any tampering with evidence by Detective Fuhrman simply because there were other cops around. Well, when this same cop gets on the--on tape and describes how police officers cover for each other and lie for each other, we believe that is relevant in terms of how the jury is going to assess this explanation, it couldn't have happened because there were other officers around.

There are also references to covering for each other in item C-6 where he talks about being able to kill someone if you have a partner like a brother. Item C-14, item C-1 and item C-13, both of which he specifically refers to how he describes what he did or how he conducts himself, depending on whether there are witnesses present or not and applies two different standards if there are non-police third party witnesses present observing what he is doing and how that affects how he describes what he is doing. So we believe these six items; C-9, C-10, C-6, C-14, C-1 and C-13, are all highly relevant under 1105 as evidence of habit and custom. The final category in our offer of proof goes directly toward Detective Fuhrman's attitude toward his testimony in this case, attitudes that we inquired into on cross-examination, asking him whether he realized the importance of the glove to this case, what kind of preparation he went through in order to prepare him to testify in this case. And here virtually contemporaneous, just before the--the beginning of the trial in this case, we have him in taped statements directly addressing his role in this case, describing himself as the most important witness in the case of the century, and that if he goes down, the case goes down. Describing himself as bloody glove Fuhrman and suggesting that if he is going through all of this agony, he should make it pay, that there should be some pay-off for him from what he is experiencing as a witness in this case. Finally, your Honor, I want to address the 352 arguments, and I believe that these are arguments the court has already addressed when your Honor directed the parameters of the cross-examination that would be permitted of Detective Fuhrman in the first place. And at the same--at that time your Honor heard the arguments about how a jury might react to this evidence and ruled by limiting the--the cross-examination of Detective Fuhrman, but recognizing that this was not an issue that could be avoided and that we can trust, indeed we must trust the jury to treat this evidence appropriately and not overreact because of the inflammatory nature of the evidence. We believe we have been very sensitive to that. We took 13 hours of very--and your Honor listened to all of them--very inflammatory tapes, something in there really to insult everyone, and we very judiciously edited to a bare minimum, to a tape, that the tape itself takes less than an hour to play, so we are not trying to capitalize on this. The 352 arguments about how the jury might react to this evidence are an especially strong deja vu experience for me because they are the same arguments I made on the other side when we were arguing that your Honor should keep out the evidence of spousal abuse, that your Honor should keep out the gruesome autopsy photographs. And we were arguing, well, there is a risk that this evidence will be used for the wrong purpose, that it will be used as evidence of bad character to show a propensity on the part of Mr. Simpson. And your Honor, it is important, I think that that risk, where that risk exists is much greater where the evidence is offered against the Defendant who is on trial and the risk of prejudice is that this evidence may be wrongly used against him than the risk that is presented when we are talking about a mere witness who is testifying on the witness stand. And the risk in terms of personal risks to him are simply not of the same dimension as the risks for the Defendant who is actually on trial. At that time your Honor expressed confidence that the jury is capable of following the instructions, of using the evidence for the limited purpose for which it is admitted, and we believe there is no reason not to have the same confidence in the jury with respect to this evidence. Your Honor concluded, for example, in the context of the gruesome autopsy photographs--

Mr. Uelmen, I have to tell you that one of the most unconvincing lines of argument as a Judge is comparison with prior rulings and mixing apples and oranges. I think the closer comparison of your 352 argument is this court's ruling January 20th regarding Kathleen Bell and the confidence that I had in the jury that if we had to use the racial epithets, if they came in in appropriate context, I mean, those are the rulings that are similar in the same context. Autopsy photographs are interesting; not relevant to this argument.

All right. I won't press the point, but--

And not helpful to me.

The--the only analogy I was seeking was that--that we don't reject evidence because it is painful to look at. And your Honor noted that. Murder is ugly. Jurors have to face it. They have to confront it.

Racism is ugly.

Madam reporter, how are you?

Small break.

All right. We will take a court reporter recess. We will take 15.