Motion preparation and scheduling

📄 Motion preparation and scheduling — Thursday, January 12, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JAN\12\MOTION-PREPARATION-AND-SCHEDUL.DOC

TRIAL

▲ Day 2 of 167

◀ Prosecutor's argument on domestic violence evidence Sidebar: out of presence of jury ▶

Date: Thursday, January 12, 1995 • Utterances: 13

Judge Ito handles scheduling for the Fuhrman motion, concluding it won't be heard that day. Before leaving, Darden submits two academic works on race and discrimination to contextualize the prosecution's argument that Black jurors would be prejudiced by hearing Fuhrman used a racial slur — prompting a sharp, thinly veiled exchange with Cochran about who understands the weight of that word.

# 1 THE COURT:

THANK YOU, COUNSEL. ALL RIGHT. MR. UELMEN, WHAT IS YOUR TIME ESTIMATE TO YOUR RESPONSE? MR. UELMEN: ABOUT AN HOUR, YOUR HONOR.

# 2 THE COURT:

ALL RIGHT. MR. DARDEN, THEN I'M -- I DON'T THINK WE WILL GET TO THE FUHRMAN MOTION TODAY IS MY GUESS.

# 3 MR. DARDEN:

THANK YOU, YOUR HONOR.

# 4 THE COURT:

ALL RIGHT. WILL YOU BE ABLE TO ARGUE THAT TOMORROW MORNING?

# 5 MR. DARDEN:

YES, ALONG WITH DEPUTY D.A. LEWIS, YOUR HONOR. BEFORE I GO, HOWEVER, I WOULD LIKE TO LEAVE WITH THE COURT -- WITH THE COURT AND DEFENSE COUNSEL TWO ITEMS. THE FIRST IS A CHAPTER FROM A BOOK CALLED TWO NATIONS, BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL. IT IS BY ANDREW HACKER AND IT WAS PUBLISHED IN 1992. I ALSO WOULD LIKE TO LEAVE WITH THE COURT AND COUNSEL A STUDY FROM THE AMERICAN SOCIOLOGICAL REVIEW, VOLUME 56, IT IS PUBLISHED IN 1991. IT IS ENTITLED THE CONTINUING SIGNIFICANCE OF RACE, ANTI-BLACK DISCRIMINATION IN PUBLIC PLACES. IT IS GOING TO BE OUR POSITION THAT THE COURT SHOULD HAVE SOME FEELING OF WHAT IT MEANS OR WILL MEAN FOR BLACK JURORS TO HEAR IN THIS CASE THAT DETECTIVE FUHRMAN MAY HAVE USED THE "N" WORD SOME FOURTEEN OR FIFTEEN YEARS AGO, AND WE WILL BE ARGUING THAT EVIDENCE SHOULDN'T COME IN, THAT IT WILL POSE SUBSTANTIAL PREJUDICE TO THE PROSECUTION'S CASE IN THE EVENT THAT THE COURT ALLOWS THOSE SLURS IN THE EVIDENCE, AND SO I LEAVE THIS WITH MR. COCHRAN.

# 6 MR. COCHRAN:

I KNOW WHAT IT IS AND I UNDERSTAND THAT WORD VERY CLEARLY AND I'M NOT GOING TO ARGUE THE ISSUE NOW, BUT I DON'T THINK THE COURT NEEDS DR. HACKER'S BOOK IN ORDER TO UNDERSTAND WHAT IT IS TO HAVE A RACIAL INSULT VISITED UPON ONE. AND THE FACT THAT WE HAVE A JURY THAT IS A DIVERSE JURY I THINK DOES VIOLENCE TO THE CONCEPT OF A DIVERSE JURY AND IT BELITTLES THEIR INTELLIGENCE TO UNDERSTAND IF THEY CAN'T UNDERSTAND --

KEY QUOTE

# 7 THE COURT:

MR. COCHRAN, WE ARE NOT HEAR TO ARGUE THE MOTION AT THIS POINT. I'M ASKING FOR TIME ESTIMATES.

# 8 MR. COCHRAN:

I UNDERSTAND. I'M ONLY RESPONDING TO COUNSEL. I THOUGHT WE WERE HEAR TO LET HIM GO HOME.

# 9 MR. DARDEN:

I'M PLEASED TO HEAR THAT MR. COCHRAN KNOWS WHAT THE TERM MEANS AND HAS HEARD IT BEFORE SO WE WON'T NEED EXPERT TESTIMONY ON THIS ISSUE.

KEY QUOTE

# 10 MR. COCHRAN:

I DON'T THINK THE COURT DOES EITHER.

# 11 THE COURT:

I'M FAMILIAR WITH THE HACKER BOOK. THANK YOU, COUNSEL. MR. DARDEN, GOOD LUCK WITH YOUR FLOOD PROBLEMS. COUNSEL, WHY DON'T WE TAKE A BRIEF RECESS AND THEN WE WILL HEAR THE RESPONSE.

# 12 MR. GORDON:

THANK YOU.

# 13 (RECESS.)

Temperature

tense

Key Quotes (4)

Christopher Darden

IT IS GOING TO BE OUR POSITION THAT THE COURT SHOULD HAVE SOME FEELING OF WHAT IT MEANS OR WILL MEAN FOR BLACK JURORS TO HEAR IN THIS CASE THAT DETECTIVE FUHRMAN MAY HAVE USED THE "N" WORD SOME FOURTEEN OR FIFTEEN YEARS AGO

Prosecution's core argument for excluding Fuhrman's slurs: the prejudicial impact on Black jurors outweighs probative value.

Johnnie Cochran

I KNOW WHAT IT IS AND I UNDERSTAND THAT WORD VERY CLEARLY AND I'M NOT GOING TO ARGUE THE ISSUE NOW, BUT I DON'T THINK THE COURT NEEDS DR. HACKER'S BOOK IN ORDER TO UNDERSTAND WHAT IT IS TO HAVE A RACIAL INSULT VISITED UPON ONE.

Cochran makes the counter-argument personally — his lived experience and the jury's intelligence make academic scaffolding unnecessary and patronizing.

Christopher Darden

I'M PLEASED TO HEAR THAT MR. COCHRAN KNOWS WHAT THE TERM MEANS AND HAS HEARD IT BEFORE SO WE WON'T NEED EXPERT TESTIMONY ON THIS ISSUE.

A cutting rhetorical move — Darden uses Cochran's personal knowledge against him, implying even the defense acknowledges the word's power.

Lance A. Ito

MR. DARDEN, GOOD LUCK WITH YOUR FLOOD PROBLEMS.

A rare personal aside from the bench; brief human moment in an otherwise charged exchange.

Evidence (2)

Informal

Chapter from 'Two Nations, Black and White, Separate, Hostile, Unequal' by Andrew Hacker (1992)

Submitted to court and defense counsel by prosecution ahead of Fuhrman motion argument

Informal

'The Continuing Significance of Race: Anti-Black Discrimination in Public Places,' American Sociological Review, Vol. 56 (1991)

Submitted to court and defense counsel by prosecution ahead of Fuhrman motion argument

Notable Exchanges (2)

Christopher Darden•Johnnie Cochran

Darden submits academic materials on racial discrimination; Cochran fires back that neither the court nor the jury needs a white academic's book to understand a racial slur; Darden retorts that Cochran's own familiarity with the word proves expert testimony is unnecessary.

heated

Lance A. Ito•Johnnie Cochran

Cochran begins arguing the merits of the Fuhrman motion prematurely; Ito shuts it down, reminding him they are only gathering time estimates.

firm/procedural

Light Moments (2)

Lance A. Ito

Ito wishes Darden good luck with his 'flood problems' as he wraps up, injecting a brief personal note into the proceedings.

Johnnie Cochran

Cochran, caught mid-argument by the judge, quips 'I THOUGHT WE WERE HEAR TO LET HIM GO HOME.'

Witness Demeanor

(RECESS.)

Objections

None recorded

Proceeding 4384 • 13 utterances

Criminal Trial

Department 103