All right. Back on the record in the Simpson matter. All parties are again present. I'll hear from the People.

Thank you, your Honor. Let me begin by saying that the content of these tapes is so repugnant and so offensive that this may well be the most difficult thing I've ever had to do as a Prosecutor. I don't think that there is anyone in this courtroom in this county that could possibly envy me, and I'm talking about any Prosecutor or perhaps any Defense attorney. And as a citizen, I am deeply offended and I'm shocked and I'm disgusted with what I've heard. But I can not afford the luxury of being Marcia Clark the citizen. I am Marcia Clark the Prosecutor and I stand before you today, your Honor, not in Defense of Mark Fuhrman, but in Defense of a case, a case of such overwhelming magnitude in terms of the strength of the proof of the Defendant's guilt that it would be a travesty to allow such a case to be derailed with a very serious and important, but very inflammatory social issue.

What has occurred and what the Defense is attempting to do is to tell the jury to turn a blind eye to the evidence, a deaf ear to the testimony, disregard logic, dismiss reason and listen only to racial epithets and bragging accounts of hideous acts of misconduct if any are true. And I pray that they are not. The point, your Honor, as I was trying to make to the court earlier, was not to suppress the information. The information should be let out. The information should be publicly aired. It should be investigated. It should be examined carefully, every single alleged incident, to determine whether or not it did happen or did not happen; and Mr. Hahn, the city attorney's office is present to accomplish that very goal. The point I make is that this is a murder trial, a murder trial where none of this is relevant. This is not the forum. This is not the forum. We need to keep our eyes focused on the evidence that is relevant to this case. And I wanted to share with your Honor something I saw that occasionally these cartoonists come up with something that's edifying. It's a little child speaking to his mother watching television who says, "What's the forbidden `n' word they keep talking about, Mommy?" She said, "Nicole." I think that sums it up. I think that's what it's all about, and I think that we have to look carefully to the law in a lawyerly fashion and see if there's anything here that is legally relevant that belongs in this trial that this jury should hear about. The Defense asks the court to take the escape patch if you will, your Honor, of saying let the jury decide. That's that great way of avoiding all responsibility and saying they can figure it out. Obviously they can't. That's why we have rules of evidence. There comes a point after which you have to say, you know, a jury is just never going to be able to winnow the weak from the chaff, to get past this, whatever the this may be. And we've seen evidence of it in the past, and that's why the courts have ruled that there are certain things that are just so inflammatory or irrelevant or confusing or time consuming that they do not come in or unreliable or untrustworthy. That's really the bottom line of the evidence code. It just should not come in for some of those--for much of those reasons. This is a case like that. And you saw in our brief references throughout history to various socially inflammatory issues of the day in which the court said no, you don't get to bring that in because all you will do is inflame the jury unfairly and cause them to look away from the evidence or read too much into it. And that is the problem we face with this evidence. Now, I find it very interesting that the Defense in its argument never once really alluded to the evidence in this case, and it is--it does highlight the very point that I'm trying to make, your Honor; is that you can not get away from the factual predicate if you are to base an intelligent ruling on what should come in on this case. You have to look at the facts that we have. And what are those facts? It is a fact that we have a number of police officers already at Bundy before Detective Fuhrman ever got there. It is a fact that those officers saw one glove at Bundy before Detective Fuhrman ever got there. It is a fact that Detective Fuhrman was never alone outside around the evidence where he could have gotten the glove to take to Rockingham. And it is a fact that we have thumps against Kato's wall right where the glove appears. And if the Defense theory is to be accepted, the thumps on the wall--which no one disputes occurred. That's an accepted fact--the thumps on the wall would have to have no connection to the appearance of the glove. That's ridiculous, suspension of reason, suspension of logic. We also have to believe that Detective Fuhrman is going to go and move evidence in a case where he doesn't know if there are eyewitnesses, he doesn't know if there are earwitnesses, he doesn't know if Mr. Simpson has an alibi, he doesn't know what the other officers have seen or done among many other things. I just can go on and on with that. Ridiculous comes to mind.

Bronco fibers on the glove.

Right. Bronco fibers on the glove, on the Rockingham glove and on the knit cap. I mean, these are things that Detective Fuhrman could not know. You know, this is way beyond the ken of anyone. And then, you know--so to say that he's going to plant evidence when he doesn't know what it's going to turn up, let alone what the blood typing will turn up--and that will get me into yet another of the Defense arguments which is beyond silly--is, you have blood evidence that comes back on the Rockingham glove to the Defendant, Ron Goldman and Nicole. Now, how can you plant the glove? What if the third party that comes up on that glove in that blood is someone other than the Defendant? Then hasn't Detective Fuhrman completely messed up a murder scene? He has dumped a glove where it doesn't belong. It will mean nothing when the glove evidence is finally analyzed except point the finger at him. And by the way, your Honor, while we're at it, if there's going to be evidence planted, why not plant a fingerprint? It's so simple. We don't have to worry about autorads and laboratory error rates and Dr. Weir and population genetics. Plant a fingerprint. So simple. No one thought to do that. If there was going to be evidence planted, I would think they would do a better job. But that's what's so silly about this. Now, the Defense counters with the torture logic that of course the conspiracy had to involve more. And this is what you heard Mr. Uelmen argue. This is another glaring problem with the argument. They would seek to bring in Mark Fuhrman's statements to swipe the entire police department, at least every police officer out there at Bundy.

Swipe has a particular connotation in this case.

As opposed to compression. That's right.

Yes.

I mean, to basically just to color the entire police department with the same brush that they do Mark Fuhrman. Mark Fuhrman makes certain statements that may or may not truly be his state of mind. It may be posturing for Laura McKinny. I don't know. But the unfairest cut of all is to allow them to bring in such evidence in order to say--to impute that state of mind to other police officers. Lieutenant Spangler thinks that way? Detective Ron Phillips thinks that way? Detectives Vannatter and Lange on the eve of their retirement due to collect their pension are going to risk it all for this D-2 they met that night? I mean, what, are they kidding? You know, when I think about it in those terms and I think about the jury, I think, you know, they're not that dumb. But the problem you have is not an issue of intelligence. It's an issue of emotionalism. It's an issue that is so inflammatory, I get upset when I think about it. I get upset on levels that go way beyond the case, way beyond it, levels that take me back to when I was a teenager and believed that we were going to eradicate all of this, we weren't going to have to be talking about this anymore. And here we are. I get totally--I get totally unfocused, I get totally taken away from this case and on to my disillusionment, my discouragement, my frustration, my anger that this insanity still exists. And this is what we invite to the jury. I'm a professional. I'm supposed to be able to not do that, and I have a hard time, very hard time. Now, the factual predicate that I urge to the court, I urge for a very specific reason. Counsel brought up the case of Anthony P., and in their moving papers, they also cited Mascarinas. Now, it's interesting they cited Mascarinas, your Honor, because I was going to cite that in our moving papers because I think that it's a case helpful, more helpful to the Prosecution. And the reason for that is this. Mascarinas makes it very, very clear that it is important for the court to determine when it weighs impeachment evidence to be offered the nature of the inculpatory evidence offered. In Mascarinas, the court took great pains to point out the fact that the Prosecution case--as I recall it, the statement was far from overwhelming. And in that case, it was a case of one on one credibility where a minor who intended to--who was aspiring to become a narcotics officer was working undercover for a police officer, and he claimed that the defendants sold him codeine and he turned the codeine over to the officer, and only his uncorroborated testimony, that was the sole testimony in evidence offered to prove the Defendant's guilt.

The court noted the fact that the Defense proffered evidence of very probative value to show that this minor had worked for this undercover police officer on two prior occasions, and on both prior occasions, were able to show that either, one, the minor fabricated false charges and proffered them to the officer to get a filing, or, two, that he actually I believe it was stole liquor in order to curry favor to get a customer to sell him drugs so that he could make a case again for the same officer. But the conduct and the logical nexus is shown there. Now, this is a one on one case. Not ours. Our case is--if we took that Rockingham glove and threw it out, we'd have overwhelming proof of the Defendant's guilt. I mean, that's how strong this case is. That's how little this case relies on Detective Fuhrman. And I smile when Mr. Uelmen says--argues the point about Mr. Fuhrman being such a critical witness. He knows better than that. Mr. Fuhrman's not necessary to our testimony at all because we have Detective Lange, Detective Vannatter, Detective Phillips who all saw the glove in place. Detective Fuhrman didn't even collect it. He saw it, he went and brought everybody back there, they all saw it and then Dennis Fung collected it.

We don't need Detective Fuhrman, and he knows that. Detective Fuhrman's view of whether he's an important witness or not has a great deal to do with the fact that he's trying to sell his role as a technical advisor in this screenplay to Mr. Flynn in the relevant passages. And by the way, I should mention to the court that the Defense neatly steps around the excerpts where he vehemently denies planting any evidence in this case, where he vehemently asserts he was doing nothing more than his job in this case. He said, "You know, I've had many more interesting exciting cases where I had so much more involvement and really did some work. Here, I was just out there just doing my job, I happen to see this glove, end of line, and I get all this." But then, if only because of Defense tactics, Mark Fuhrman likely thought he became very important. That was his view and it may very well have to do with the fact that they've decided to make him a key aspect of their case. Nevertheless, he's not important to ours. So we have a case that is so solid in its corroboration, all of the physical evidence, the DNA, evidence on the Rockingham glove, on the Defendant's sock, we have--and at the Bundy walk. We also have the hair and trace evidence of very powerful magnitude showing the Bronco fiber on the hat, on the Rockingham glove. We have the blue black fibers connecting the Defendant's sock to Ron Goldman's shirt and to the Rockingham glove. We also have the Defendant hairs on Ron Goldman's shirt and in the ski cap. I mean, this is an extremely powerful case that requires no one witness for its proof, but many, Mark Fuhrman the least of which. Now, contrast that with Mascarinas where you have one Defendant, one alleging accuser as the witness with no physical corroboration whatsoever. And the court appropriately looked at that and said--here it is. "Eric's testimony--" and that was the minor--"Is the only evidence in any way tending to establish appellant's guilt. That testimony is totally uncorroborated, there apparently having been no effort made to supply eric with marked funds for a transaction or to conduct a surveillance of his meetings with appellate. The prosecution's case was by no means overwhelming. There was not a scintilla of corroboration for eric's testimony." That makes it clear that the focal point was the lack of corroboration and the fact that you have a one on one case. Anthony P. Is the very same thing. In anthony P., you had the allegation made of sexual harassment by this girl against a guy in her class. I think they were both minors. I think they were both in high school. And it happened that he was african american and she was white, and the defense--it was a one on one case. There was no other corroborating witness, no physical evidence. And the defense sought to attack her racial bias as a basis for fabricating the charges, which in that context, she could have done. It was physically capable for her to do it. And in showing bias and a motive to do so, there was an opportunity for her to do so that made sense that they should have been allowed to. In this case, contrast with this case, the defense in the beginning of this case has made many--gave a lot--did a lot of posturing about how they would show that the glove was planted at rockingham. Not only have they failed to do that, but their posturing has been exposed as baseless, as a sham.

They can't. All of the evidence has proven conclusively and consistently that there was nothing planted in this case, that Mark Fuhrman had no opportunity to do so. Whatever his attitudes, whatever his beliefs, whatever he would have liked to have done, he could not do it. And the evidence has now demonstrated to this court that even under the third party culpability analysis, people versus hall, that you--where they say mere motive and opportunity is not enough to bring in evidence of a third party, in this case, we don't even have the opportunity, assume you have the motive. So they don't even come close in this case. They have failed in their proof. If they wanted to get in this kind of evidence, the kind of proof they should have brought to this court, the kind of evidence they should have been able to proffer is, "I was at bundy. I saw two gloves," or, "I was at rockingham. I saw Mark Fuhrman run behind there and drop something." It never happened. No such thing ever happened. And in fact, what we have here--I mean, what's really kind of interesting is, for all intents and purposes, given the state of the evidence, your Honor, and what the officers testified to at Bundy, Mark Fuhrman may as well not have been there.

I mean, when you look at it in an analytical sense, what they're looking to do is bring in a whole bunch of inflammatory material on a witness who had a very small part in this case, whose part they want to pump up as big as they can so they can make this issue as big as they can to totally divest the jury from this case. And the admission of this evidence is in essence telling the jury disregard the case, look somewhere else. I know that in--I do want to remind the court of the January 20th ruling--January 20th I think where the court ruled in its written ruling concerning the admissibility of Kathleen Bell. And the court at that time said that it found it to be relevant because there was adjusted position of two things; and that is the indication of racial animus, that is the willingness to focus on an inter-racial couple just opposed with fabrication of probable cause, that he would make something up in order to stop them. And it was the combination of those two factors together that made the court determine it to be relevant. Now, in this context that now that we have seen that Detective Fuhrman could not have planted any evidence, I would think that the standard would get even higher, but certainly, it would not get any lower than that.

In none of the excerpts that the Defense has proffered have we seen any evidence that Detective Fuhrman would fabricate or move evidence in order to frame someone because they are African American. And I wanted to read to the court in context the passages that Mr. Uelmen has stated he feels are relevant for that purpose because I think when you see them in context--let me see. Proffer 4.

Now, proffer no. 4, of course, the court is aware that's, again, the transcript without a tape and I will address--well, I'll address it now. We have a real problem with these transcripts without the tapes, your Honor. The court has already noted the substantial variance. I had pulled out a few of the examples, but since the court is aware of it and the hour is getting late, I think it's probably unnecessary. But if the court would like me to--

Well, it's a 6:00 o'clock day.

That's true, but you've been listening to us talk for an awfully long time.

That's what I'm paid to do.

That's true. Would you look me to cite them for you?

It's your record, counsel. But I have read the transcripts. I have listened to the tapes.

Right. Then perhaps if I can just refer to it in the record so that the citation is in the record.

All right.

I won't have to waste the court's time. I won't read it.

Actually, Miss Clark and Mr. Uelmen, we'll go to 5:30 today.

Okay. I'll be done way before then. I'll have that in a minute, your Honor, just so I can put that cite in the record. But we do have a real problem with the accuracy. In a case where we are leaning on every word and every nuance and the context in which it's made to make arguments to a jury, it's extremely important that we have a very accurate transcript, one that gives the entire context in the most accurate manner possible. Obviously we don't have that in this case. And as we were going through one of the--I think it was proffer no. 12, it became very clear that the transcript prepared by Miss McKinny and the transcript prepared by the Defense were at variance, even as to one small excerpt. So we have real substantial problems with that and with the inability for the People to ever accurately determine whether there was some license taken by Miss McKinny whether there were things left out that would have minimized or aggravated the passage. We'll never know because she can not remember what is not in the transcript. And that much is very clear. So with that caveat, proffer no. 4 goes to transcript no. 1 at page 33. Mr. Uelmen cites this as an example of how Kathleen Bell is corroborated. Here's the entire passage. "Like last night, I picked up this burglar. He's a known burglar and car thief and he lived at 22nd and Western and he's up in Westwood in a residential area. I just threw him in the car, handcuffed him, took him to the station.

"How did you know he was a known car thief? "He was a African American. He didn't belong. Two questions. And you're going--where you live? "22nd and Western. "Where are you going? "Well, I'm going to Fat Burger. "Where's Fat Burger? "He didn't know where Fat Burger was. "Get in the car. "So under what did you arrest him? "I didn't arrest him under anything. Just took him to the station, ran him for prints, gave him to the detectives to compare with what they've got in the area. I'll probably arrest a criminal that way." Now, when you put all that in context, how is that a fabrication? What has he misstated there? He is stating to her, I have seen these things, I have heard these things, and my experience tells me something's wrong. We know that police officers act on these hunches all the time. Sometimes they're right, sometimes they're wrong, sometimes what they do amounts to an arrest without probable cause in which case the case is thrown out. Sometimes it doesn't.

But how does that corroborate Kathleen Bell? How does that show that he is singling this person out because of his race? What he is saying in fact is that he is looking at the way someone is behaving, at their inability to answer certain questions. He used a racial epithet in that context, but it certainly is a far cry from what Kathleen Bell said. It's a far cry from that. Proffer no. 12: And so it's clear, your Honor--I mean, I'm reading that passage to you. In no way should it be understood that I think or have ever thought that anyone's race or gender should be something to be considered as to whether or not someone gets arrested. But I think that what I'm actually saying is, I'm distinguishing this passage from Kathleen Bell because that was one of the theories on which it's been offered today by Mr. Uelmen as corroborative, and I don't see it as corroborative. And proffer no. 12--again--now, the problem with proffer no. 12 is that this is clear acting. In this one, she is asking him, how would this officer react if this situation occurred, and then he's doing--he's playing it out for her, and it's fictional. I mean, it is fictional. It's admittedly fictional. There's no bones about it here. And that's in tape no. 1 at page 26.

And the lead in is, they're talking about--McKinny says on page 25: "Missed a gun? "No, no, no. This is not the one that's missing the gun. "Oh, okay. Okay. I got you. This is the one that's the really competent one. "Oh, okay." McKinny says, "Plays the female lead. Fuhrman, "You're in the 77th division? I think the scene here, you leave him in. You make it summertime. Okay. It's not getting dark until about 8:00. You get the flavor." The whole--that's the whole passage, is we're talking about a scene. They're setting a scene. So we're not even talking about a fact here. Proffer no. 35. In this context, we have the use again of a transcript without a tape. So we have the same problem we confronted with the other one. And this is the problem again in this--in the proffer, they say this passage occurs on page 11.

Oh, excuse me, your Honor. This is the one with no tape. Okay. Let me read the beginning of this passage so that the court can get the flavor, because, again, the context, as Mr. Uelmen is saying, this indicates a willingness to fabricate evidence or to plant evidence. "Guy doesn't know how to drive it very well, like a stick shift, especially a Porsche. Big lulls where the car drops a little bit between shifts and jerks a little bit." So it starts out, and then it goes into some of the other stuff and then continues: "Somebody doesn't seem to know how a car drives too well. License plate's dirty and the car's clean." So--and then it goes into: "We work the same 10 blocks, square 10 blocks every day," et cetera.

There's a lot more there, but what's indicated--and I refuse to repeat the racial epithets, but what it indicates is not a willingness to fabricate evidence. It does not indicate a willingness to move evidence. He's talking about what he sees. He's not talking about a willingness to take a piece of evidence and incriminate someone because of their race. That's the issue that we have here. That's what the Defense is trying to prove. And of course, it's not appropriate as propensity evidence. But the point is, your Honor, that even if it were, the passages cited by counsel do not prove that. That's the problem that we have. We have a--we have a capital case here. And the commission of perjury in a capital case that causes someone to get the death penalty--which Mark Fuhrman could not have known whether or not that would happen at the time he was out there at Bundy--if you perjure yourself in a death penalty case causing someone to receive the sentence of death, you yourself are sentenced to death. He's willing to do that? There is nothing in here, there is nothing in these tapes, nothing in these transcripts that even comes close to what the Defense is alleging in this case, let alone the conspiracy that they're trying to allege here with the code of silence. And that brings me to another point, which is, if the Defense were to be allowed to bring in this code of silence argument, which would be vastly inappropriate, wildly inappropriate, then in response, would the People be allowed to bring in all of the good officers who've done acts of heroism, acts of courage, saved lives to show the jury that that conspiracy stuff, you know, has a lot to do with comic books and nothing to do with the evidence in this case and there are good police officers out there too. I mean, you want to talk about a mini trial? We'll be here til `97 proving all this stuff. There has to come an end to this at some point, but we do have to use the rules of logic and the rules of evidence, and that's what the Defense is trying to prevent. The very cross-examination previewed for this court by Mr. Uelmen shows you the way the admission of these tapes will derail this trial and all without any basis in the evidence. When you look at the passages that I've now shown to the court in context, you can see that the conduct they're talking about bears no relationship to the conduct that they are trying to prove, which never occurred in this case, which could not occur in this case.

I mean, that's what's so silly. Every time I get into arguing this, I say, you know, but it couldn't happen, it couldn't happen. I mean, that's really the bottom line here. We have a witness with a limited role whose credibility is at issue for the Defense, the Defense has sought to put it at issue, with respect to planting evidence. We have proven conclusively and consistently without any, any ability to refute it at all by the Defense that he could not do what they have been desperately trying to prove he did. Could not and did not. All right. So whatever he is--and as far as I can tell, none of it's good--but whatever he is, he couldn't do it. So what are we talking about? What are we going to bring in front of this jury? What is the theory of relevance here? What are we doing? We're going to bring in all of this extraneous stuff to impeach a witness whose credibility is established by other people with respect to this one point, and that's all we're doing. In other words, we're inflaming the passions of the jury, introducing irrelevant or, at best, collateral evidence to distract them from their duty as to an issue that is resolved by other evidence. That's all we're doing.

Isn't the issue broader? I mean, doesn't the language in in re Anthony P. Despite the unique facts of that case, aren't I required to allow broad latitude in cross-examining regarding bias and, in particular, racial bias?

Your Honor, I mean, we have argued this previously, but no. Yes and no. Excuse me. Yes and no. When there is an opportunity for a witness to have fabricated charges, when there is an opportunity for a witness to have done what they allege, yes, wide latitude should be permitted, and because in that situation, the opportunity combined with a motive adds up to something. You don't have that situation here, your Honor. That's why Anthony P. Is Anthony P. That's why Mascarinas is Mascarinas. In both of those cases, it is not inconsequential that it is a one on one case where the witness could very well do what they were alleging, and so the ability to prove a motive to do what they had the opportunity to do is an entirely different story. But that's apples and oranges because in this case, the witness could not have done what they are attempting to proof with this evidence he did. That's the point.

And so what we're really left with in terms of relevance, your Honor, is collateral impeachment. The fact that someone--the fact that we have something in the record does not in and of itself mean that rebuttal of that evidence comes in. For example, if I'm testifying in a burglary case and I'm a victim of a burglary and I say, and by the way, the Yankees won the pennant in `55 and I've wrong, does the Defense get to rebut that by putting on extrinsic evidence that the Yankees didn't win the pennant in `55? No. I mean, that's an extreme example, but it makes the point. The fact that there is something in the record in and of itself doesn't mean we get to start slopping into the record extrinsic evidence, especially when it's so inflammatory. This evidence can be characterized no other way but incendiary and inflammatory, but it is definitely collateral. It is so collateral. It goes to impeach the question posed to Detective Fuhrman as to whether he used a racial epithet in the last 10 years. And lo and behold, nine years and 11 months before he made that statement, we have the bulk of the racial epithets being used. And I think that there is--to the extent that there is any relevance, the People have offered in their moving papers and we reiterate the offer now, to stipulate that between `85 and `87, Detective Fuhrman used the racial epithet in question. And that's the value of that evidence. That's it, your Honor. That's it. It is collateral impeachment of a non-material point in the witness' testimony as to--a witness whose testimony the court has seen. But again, this is not Anthony P. We cannot divorce the latitude the court gives to cross-examination from the facts of the case. To do that would stand every ruling on its head. Anthony P.--the court in Anthony P. Confronted one situation that is of vastly different situation than that confronted by this court. This court confronts a case with overwhelming corroboration, a case where there is no opportunity for the witness to have fabricated in the manner alleged. In Anthony P., there was all the opportunity. And hence when they had evidence of motive, it was improper to exclude it. A very clear-cut case. But every fact--but the facts in the case have to determine the outcome in terms of the ruling. And so yes, I do think that the latitude that the court permits in terms of cross-examining as to bias should be governed by the nature of the case, by the facts of the case, by what impact that witness has. Are we to turn a case on its head because a witness who has a small part of the case has a lurid past? Is the Defense entitled to do that? Is the Defense entitled to take a case, turn it upside down, turn the jury away from all of the evidence and say look at that, oh, but look at that? And that's what they'll do. That is what they will do. They already have the ability to do that to some extent. I'm asking the court to not let it go completely out of hand. Now, I think that every trial in California could be turned on its head in this manner. I mean--but I think it is clear and I think that the facts in the Anthony P. Case make it clear that we don't have the same situation. I know that--I'm sorry. I know that the court is sensitive to the problems that are going to be engendered by the admission of such testimony, but it's not enough, it's not enough to split the baby, your Honor, you know. When you split the baby, the baby dies. And sometimes, sometimes, it has to be a little bit more. Sometimes you just have to come down on one side. And I submit to the court that this is one of those times.

The Defense does have the Kathleen Bell incident and Andrea Terry to back that up. The Defense will have the opportunity if they take the stipulation to argue from the Caljic instruction. The People will have stipulated that Detective Fuhrman lied. That's a lot. That's not a little. They will stand up with the Caljic argument--the Caljic instruction that I know the court's aware of, a witness willfully false, and they can argue everything they need to argue from that with the People's stipulation to the fact that he used that racial epithet. And that is the attention and the time at most that this issue deserves. But to turn this into the mini trial of Mark Fuhrman in the context of a murder case where his credibility has already been resolved as to the issue that the Defense is interested in would be a travesty. We need to keep this jury focused. This is a tired jury and a jury that has been here way too long. We've all been here way too long. And Mark Fuhrman and the content of those tapes is the subject for another day and another forum, and it clearly will be. It's clear to everyone that it will be. This will not be swept under the rug. We have no fear of that. But this is not the place to take care of that.

There is nothing good that can come of the interjection of a very serious social issue into a murder trial where it has no relevance. It is manipulative, it is crafty, it is cunning, but it is not proper, it is not relevant, it is not the way to prove a murder case and it's not the way to defend a murder case. It is nothing but the very blatant attempt to inflame the jury, distract them from the evidence, mislead them, confuse them and make sure that they do not look at the proof and the properly admitted evidence in this case.

I want to remind the court, because we hear--we have heard all day about the Defendant's right to a fair trial, the victims have one too. Nicole Brown's family deserve to see this case tried on the facts and the evidence that is relevant to the proof of the murders that were committed in this case. Ron Goldman's family has the right to see that this case is kept on track and that this evidence--that this jury is not distracted by inflammatory evidence that does not belong, that is not relevant to this proof of this case.

This is a search for the truth, but it's a search for the truth of who committed these murders, your Honor. Not whom Mark Fuhrman is. That truth will be sought out in another forum. We have to search for this truth now, and I beg the court to keep us on track and to allow the jury to pursue that search for the truth based on evidence that is properly admissible in this case and relevant to that determination.

In a sense, your Honor, yes. See, it is my view that as reprehensible as the contents of the tape are, the evidence itself is collateral impeachment that is so inflammatory, it should not come in. And under 352, I think we have made our position very clear that it should not come in at all. Yet, I wanted to extend the stipulation because it is a fact that there was a statement in the record for which these transcripts are directly impeaching. And to the extent that they do directly impeach that statement by Detective Fuhrman, that is the only arguable admissibility that I can see, is a stipulation that the word was used. The context in which he uses it is not relevant to this case and his views on ideology are not relevant to this case, but the fact that the epithet was used when there was a direct denial of that, I can see the court saying, "Well, you know, Miss Clark, that's really kind of unfair. He did deny that under oath." He did. He did, and that is why I've offered to stipulate because I think that's the maximum that should occur. But I think that it would be well within the court's discretion and a very appropriate exercise of that discretion to keep it out altogether because it is collateral, it is inflammatory, it is not material. So I reasoned it that way. But I do not see that parceling out portions of these tapes to be played will be fair. I do not think it will be fair. I do not think that really any of these tapes should be played for the jury only because of the arguments that I've made to the court, because I think that we will wind up interjecting inflammatory evidence that really has no relevance here. That's--

So I think that's--it was in that spirit that the People offered the stipulation to the extent that the court thought that an admission should be made of the fact that the witness was impeached in some manner to the extent--to that extent then, we offer the stipulation.

All right. Thank you. Mr. Uelmen.

Yes. If I could just have a moment, your Honor.

Mr. Cochran.

Yes.

You want a moment?

Just another minute. Just one minute.

Well, your Honor, I certainly have to concede that Miss Clark is not in an enviable position. Certainly, the Prosecutor is never in an enviable position upon being confronted with really incontrovertible evidence that perjured testimony was presented by a police officer during their case in chief. But what we're trying--what we're seeing here is an effort to salvage what can still be salvaged from Detective Fuhrman's testimony without conceding that this is a man in whom we can put no confidence whatsoever with respect to anything he said. This is a man who very early in the investigation of this homicide put himself right in the middle of everything. It was Detective Fuhrman who led the detectives over to the Rockingham residence. It was Detective Fuhrman who discovered the Bronco parked askance, even though the photos didn't demonstrate that. It was Detective Fuhrman who discovered the little speck of blood on the car door that provided the probable cause to jump over the wall and enter the premises, and of course it was Detective Fuhrman who finds the glove in a place that is totally inconsistent with all of the other physical evidence in the case including alleged blood drops leading into the house.

What about Miss Clark's argument that if Detective Fuhrman had been motivated to frame your client, then perhaps a better place to drop the glove would have been in the kitchen or the bedroom or someplace that--a little more logical place since he clearly had the opportunity to do that as well?

And he well might have if it turned out that that was an opportune place to drop it. We would contend that the location where it was dropped became an opportune place to drop it when he heard what Kato Kaelin had to say. What you have heard was an argument that--it was just presented facing the wrong way. It should have been presented facing this way to the jury because what Miss Clark is saying is, here are the facts. These are the facts. We know that the glove--that there was only one glove at the Bundy scene. We know that there's blood in the car. We know--those aren't facts. There aren't any facts yet in this case. The facts haven't been determined yet by the jury. And I could get up and present the closing argument that we're going to present to the jury controverting most of what Miss Clark said to you was facts. We don't concede those are facts. They're not facts at all. In fact, we have very plausible credible evidence to controvert virtually every essential fact that is in issue in this case. So we don't have any facts. The facts are going to be determined by this jury. And Miss Clark's argument to you is simply, well, we have such a strong incontrovertible case, we know what all the facts are. So if you give this evidence to the jury, somehow, this jury is going to go ballistic and ignore all the facts. I'm embarrassed. I have never heard a jury sold as short as it was in the argument that your Honor just heard. I'm reminded of what Justice Robert Gardener once said about jurors are not some dithering nincompoops who were brought in from a pumpkin patch. We have confidence in the jury's ability to address the evidence in this case. We're not going to be getting up and saying turn a blind eye to the evidence or turn a deaf ear to the evidence. We're going to argue evidence in this case. And among the evidence we're going to argue is the testimony of Detective Mark Fuhrman, a central witness in this case no matter how you cut it. And I'm not surprised that there's a lot of back peddling now about how oh, he's not a very important witness. What would we expect the Prosecution to say when the witness has been proven to be a perjurer?

This jury is sitting in judgment on this case simply because they bring some experience of life into the jury box, because the events that they're going to be asked to sort out, the issues that they're going to be asked to resolve will be assisted by their life experience. And the existence of 12 people who are brought in from the community to resolve these issues is really the central premise of our whole adversary system. And for us to prejudge the facts and to say we can determine what happened here and what happened here is not consistent with what the Defense is presenting, therefore, the Defense should be precluded from challenging the credibility of this witness from showing his propensity to fabricate simply takes the case away from the jury. Why even have a jury? And that's certainly a legitimate question to ask in light of the argument that was just made. Why have a jury if we don't have any trust or faith in their ability to sort out the evidence and make their ruling based on the evidence in this case?

Well, why have 352 of the evidence code?

We have 352 of the evidence code to--to have a court make a determination of balancing probative value against the risk of substantial prejudice. And we're not afraid of the court making that kind of balance in this case. We are talking about evidence that is highly probative on several scores. It's not just probative on whether there's a likelihood that Mark Fuhrman planted evidence. It is relevant on the issue of whether you believe any and all of his testimony from start to finish about every aspect of this case. It is relevant on the issue of habit and custom of police officers. It is relevant on the issue of 1101(B) in terms of plan, motive and opportunity. It is relevant to corroborate Kathleen Bell. It is relevant for all of these purposes and it is highly probative evidence and it should not be excluded simply out of fear that jurors are going to become dithering idiots when they hear it. They're not. They'll be able to understand the argument that Miss Clark made and she's going to have her opportunity to convince this jury that they should still put some stock in what Mark Fuhrman testified to in terms of how he discovered the glove despite all of the reasons why we should disbelieve Mark Fuhrman.

Now, the argument that there's just no way that under these circumstances Mark Fuhrman would have planted evidence or fabricated evidence in this case assumes that the only motive that Fuhrman could have had to do this would have been because he wanted to frame an innocent man. But when you look at the context of how Mark Fuhrman explains what he does and how he testifies and how he conducts investigations and how he makes a decision of who to arrest, it tells you a lot about Mark Fuhrman, and I find it speaking loud and clear in the context of that one example where he's playing with blood, where he's squeezing a scab to have fresh blood in order to justify an arrest. Now, if that isn't planting or fabricating evidence, I don't know what is. But in the mind of Mark Fuhrman, it wasn't. In the mind of Mark Fuhrman, here's what he thought it was.

Counsel, I'm eight feet away.

All right. Thank you, counsel. All right. Counsel, I think you have presented to me dozens of separate issues. Each one of these incidents is an incident that stands on its own, has to be evaluated on its own, that has to be weighed not only in the 220 credibility witness context, but also in the context of the 1101(B) argument, the 1105 argument and then the court has to make an independent 352 evaluation each and every one of these individual items. So I'm not prepared to rule now. And I'm going to go back and reread in re Anthony P. Because I want to see if I recollect Justice Johnson's opinion the way I recollect it and if I recollect the facts that were before Judge Burke at the time that he ruled, made those rulings. I don't recollect the facts specifically. The interesting thing about in re Anthony P. Is that was the first California case that actually--appellate court case that dealt specifically with this particular issue, and I want to go back and revisit that case before I rule because I think that's clearly the guiding case and the issue that's before the court. The difficulty I have is that this is an unusual situation where you have somebody talking to somebody in the context of a screenplay. So this is not an interview of somebody for the purposes of the life of Mark Fuhrman. This is in a context where somebody is trying to create a work of fiction. But it appears to me that there are instances where it is not role playing. So the issue is--I mean, I have to evaluate each one of these items individually. And the quality of your arguments today, which I will compliment both sides on, has given me a lot to think about, and this is not something that I can rule upon from the seat of my pants. I need to sit down and look at each one of these individual situations and make the appropriate ruling. Unfortunately, that creates a time problem for us all. So why don't we address that issue at this point.

If I might, your Honor. We would expect that Miss McKinny would be the next witness. And so having said that, we're mindful of what your Honor just indicated about the need for time. And I'd like to balance that with the fact that we do have a jury that wasn't here today and we want to get this case to the jury as soon as possible. Would the court care to indicate to us what is reasonable for you to render a decision in this case, because once you render the decision, assuming arguendo that a number of these incidents are going to be appropriate, then we have to have the transcripts changed to allow what you let in, to have it redone to cut the time down between them. And so there's a little bit of hiatus. We have people standing by this afternoon in the laboratory to do that. So obviously we'll let that go. I mean, I understand. I did not know where we would be at the end of the day. So we want to move ahead.

Well, to show you how optimistic I was, I thought we'd finish this argument this morning.

Well, you did say--well, you were smart enough to decide by 11:00 o'clock we wouldn't. So that was good. Would the court care to tell us--because that would really be the next witness if at all possible.

Well, here's the difficulty I have, Mr. Cochran. You've given me what, 60 odd separate incidents. I need to go back and review the record, to look at each one of these individually, perhaps even listen to the tape again. And this is not something that I want to do being rushed.

No. Judge, I want to make this perfectly clear. We're not rushing. I was just asking so we could see.

Let me ask you this. Are there other witnesses, Miss Menzione, or any of those other witnesses we could deal with over the next couple of days? Unfortunately, I have a commitment this evening that will limit the amount of time I have to work on it this evening.

May I have a moment to talk to my colleagues, your Honor? There may be--if the court's saying you would like probably until Thursday, certainly we understand that. Let me see what we have, and perhaps--may I get right back to you? Perhaps we can take--I know you want to stop at 5:30. Give us about three or four minutes, your Honor. Would you do that?

All right. Excuse me. Mr. Cochran, let's do that. Let me stand in recess until tomorrow morning at 9:00 o'clock. When you have your scheduling plans, let me know, and we'll make that public.

Let me see if I understand. You are going to let us talk about it now, come back and tell you?

Come back and tell me. You and Miss Clark and Mr. Darden, Mr. Shapiro, come back and tell me what your scheduling desires are. We'll just stand in recess and then we'll select a date and time to reconvene and we'll announce that.

Can we keep Mr. Simpson out here so we can all talk with him?

Sure. Okay.