The People have filed moving papers seeking to quash the subpoenas for Melissa Decker, one of my personal law clerks, and Deputy D.A.'s Alan Yochelson and Terry White. While it's true that the Defense can issue a subpoena on a hope and a prayer that the witness will appear and provide them information, a witness isn't obligated to appear and testify unless the Defense can establish or make a showing rather that the witness can offer some material or relevant and admissible information. In this situation, as I understand it, these--these staff members of the D.A.'s office can offer the Defense nothing, nothing at all in terms of material information or evidence or testimony. They have nothing to offer this Court or these Defense lawyers in the way of anything that is relevant to these proceedings. Apparently the Defense hopes to somehow impeach Mark Fuhrman's testimony, and I can understand why they may want to try and do that. He was a very effective witness. He did not buckle under the pressure and I'm sure that the jury found him a very credible witness. Now, they seek to undermine that testimony by calling these D.A. employees. Their offer of proof or the showing that they intend to make apparently is based on an article in Newsweek magazine, specifically a March 6th article. They've cited that article or quoted a portion of it to the Court in their response to our motion to quash, and I would ask that the Court take a close look at that article. It provides no source, no named source for the information contained in the article. It doesn't even say that the source is anonymous. In fact, no source is mentioned at all. There are a couple of quotes contained in the article. One of the quotes is attributed to a source close to the Prosecution. Not a Prosecutor, not a member of the D.A.'s staff, but a source close to the Prosecution. And then that individual apparently--and that is if you can believe the Newsweek writers--goes on to state Mark Fuhrman was a difficult or defensive witness during an alleged--during an alleged mock cross-examination. Well, let's say that's true. Let's say that Fuhrman was difficult and defensive. Well, that's an opinion. That is the opinion of the source close to the Prosecution; and if that was the opinion of any member of my staff, then that opinion is privileged. It's not relevant--
Under the work product privilege. It would not be admissible. There's a second quote that's attributed to a Prosecutor--
Okay. I understand that. I understand that. But it wouldn't be material or relevant as well.
Yes. Yes. There's a second quote which is attributed to a Prosecutor familiar with the case. And that person, assuming he is a Prosecutor, assuming he is familiar with the case--and I doubt that anyone is really familiar with this case unless they sit here every day with us and witness what goes on in court. That Prosecutor speculates that if the information contained in the article is true, that a jury might conclude that Mark Fuhrman planted evidence.
Well, how is that material or relevant or admissible? It isn't attributed to any member of my staff and it isn't attributed to the D.A.'s and the D.A. staff members that they seek to subpoena. Nor, given the context of this information, given the fact that it is from some unnamed source, assuming that there is a source, nor is it likely to lead to evidence, discoverable evidence that will be--that will be proven admissible at some later time. There's nothing in the article to suggest that we as Prosecutors are in possession of any information that is inconsistent with Mark Fuhrman's testimony. They make these base allegations of course. Of course they do that. But they don't attribute those allegations to us. Now, we as Prosecutor have a duty I think to advise the Court in the event that a witness testifies in a manner that would constitute perjury. And I understand the perjury statutes in this state. I have indicted police officers on perjury allegations. I have investigated police officers for perjury. I have participated in boards of rights, board of rights hearings on perjury issues and I understand the law on that.
And I suspect that what the Defense really wants to know is whether or not Mark Fuhrman told us that he used the "N" word in the past 10 years. He testified that he did not use the "N" word in the past 10 years, and had I any information otherwise, I would have advised the Court. But I have not advised the Court because that situation has not arose or arisen. Now, counsel for the Defense and the Prosecution have entered into an agreement which was alluded to by Miss Lewis a moment ago, and that is that attorneys' notes are not discoverable. I think that if we look at the spirit and the purpose of that agreement, if our notes aren't discoverable, why then are our thought processes discoverable? Why should we be required to come and testify under circumstances like these? I mean, it turns the agreement on top of its head, on its head. We have nothing new to give the Defense. We have nothing to tell them that they don't already know, that they don't already have in discovery. If they want to know if Mark Fuhrman ever used the "N" word throughout his life, then they have the same 1981 and `82 psychiatric reports that we have. We discussed that before, okay, and the Court ruled that that evidence was irrelevant and inadmissible. We don't have anything else new. As for the article's characterization of that event as a mock cross-examination--and I want the record to reflect this so that it is understood--when Mark Fuhrman was here on one weekend, the air conditioning in the upper floors in this building were turned off. We had to go to the only floor we could go to where the air conditioning was on and where someone had a key. That happened to be on the 13th floor. And when we walked into the grand jury room that day, I said, "Geez, I'm going to regret this one day," and we have. But in any event, we have no new discovery, your Honor. My staff has nothing to offer this case, these Defense attorneys, no new evidence whatsoever, and I would ask that the subpoenas be quashed. They cannot show this Court that we have material, relevant or admissible evidence.
Your Honor, to put these subpoenas in context, all three of the subpoenaed individuals we have information were present during this unusual Sunday afternoon grand jury session with Detective Mark Fuhrman. Detective Fuhrman your Honor will recall was questioned about this session during his cross-examination when he appeared as a witness in this trial, and he testified that the session was a very brief one, he said 20 to 30 minutes, that it was very casual, that he was eating a submarine sandwich while various questions were discussed. And to quote his testimony from the transcript, page 18768, by Mr. Bailey: "Can you tell me, just yes or no, were any racial slurs used in that
Experience that day? "Answer: No, there weren't. "Question: Not a single one? "Answer: No." Now, that varies significantly from the description of this session that appeared in Newsweek magazine. And I call your Honor's attention to the quotations that are attributed to District Attorney sources in their description of what happened in that Sunday afternoon session. "The attorneys were hammering Detective Mark Fuhrman. As the questions turned to the issue of racism and to his disaffection as a police officer, Fuhrman became uncomfortable. He admitted that he had made racial slurs in the past. He conceded he was profoundly disappointed in a criminal justice system that too often fails to punish the guilty. Fuhrman played right into the hands of the Defense. "This time, the interrogation of Mark Fuhrman was only a dress rehearsal. It took place Newsweek learned during a mock cross-examination staged by the Prosecution last week when the Orenthal James Simpson trial was in recess."
The article goes on to say, quote: "A source close to the Prosecution said Fuhrman came across as a difficult and troubled witness, that he became defensive and agitated." The article then asks: "Could Fuhrman's performance help a juror believe that the detective had planted the infamous bloody glove at Simpson's Brentwood mansion? That wouldn't be a big leap says a Prosecutor familiar with the case." Now, when a national news magazine cites as their source individuals on the staff of the District Attorney's office--
Well, the question, your Honor, is whether we now have enough of a basis to pursue this and ask to speak to the District Attorney personnel who were concerned, and if they refuse to speak to us, to subpoena them as witnesses.
Well, Mr. Uelmen, let's assume that if a witness statement is made to a Prosecutor and that statement contradicts testimony in court and let's assume that I believe that there's a Brady obligation under that scenario to disclose, how does the Court--and assuming further that we have the unusual situation that you're talking about calling Deputy District Attorneys involved in this case as witnesses, so I have the same problem only in reverse of the Kardashian situation, how do you suggest I deal with that?
There's one important distinction, and that is that with respect to Mr. Kardashian, there is an attorney-client privilege with respect to the consultations between Mr. Kardashian and Mr. Simpson.
Well, here, we're talking about a mere witness. We're not talking about any implication of any lawyer-client privilege.
No. I'm asking you, how do we perceive--you're missing the point. In both situations, you're asking to call as a witness in this trial counsel for one side or the other.
I would suggest that, your Honor, proceed the same way you did with Kardashian. We made Mr. Kardashian available to the Prosecution to be interviewed.
Well, I believe there was an effort made to ascertain precisely what it was they wanted to ask Mr. Kardashian. We are simply asking that we be given the opportunity to talk to the Prosecutors and to the District Attorney personnel who were actually present during that session. That session is not a privileged consultation. We're not asking to impede on any work product privilege. We're not going to ask these witnesses what their thought process was or what their evaluation of Mark Fuhrman was. We're going to ask them what happened and what was said in that session that could conceivably contradict and impeach what Detective Fuhrman testified to when he was called as a witness at trial. I think your Honor is correct that there is a Brady issue lurking here. In fact, if what the Newsweek article says is true--
Well, why don't you address my specific question. How do you propose the Court proceed as to making those assumptions?
Well, I would suggest the Court proceed by ordering that the District Attorney personnel that we have subpoenaed submit to interviews by the Defense. We have requested an opportunity to interview them, and the response was simply they are overburdened, they're too busy to talk to us. We believe if they're going to stonewall us and attempt to cloak this entire session in the grand jury room with some sort of impenetrable wall of secrecy, then we have a right to bring them into court and out of the jury's presence question them. I think that would be a ludicrous use of this Court's time to have to go through that exercise simply because they won't sit down and even talk to us. Now, it may be and we'll assume that when they sit down and talk to us, they're not going to lie to us just as we assume they're not lying to Newsweek magazine. If they're going to give us information about what happened, not their impressions and not their notes, just simply an account of what happened in that session, it may be that we don't even need to call them, that there is nothing there. But the published account attributable to sources in the District Attorney's office suggests that there indeed may be something there, certainly enough of a suggestion to create an obligation on our part that we pursue it, and that's all we're attempting to do. The subpoenas are a product of the attempt of the District Attorney to simply stonewall us and say we're not even going to sit down and talk to you, we're not going to make these personnel available to be interviewed because they are overburdened, and I think that just strains credulity.
Well, it's not going to make it moot in the sense that it won't recur. We'll just have to resubpoena them if the date of return has expired.
But I think the simplest solution to this problem is simply to permit us to interview these personnel.
And the specific issue are statements made by this witness that are contrary to the testimony here in court.
That's correct. That's what we want to inquire into, what statements were made in the course of the grand jury interview and prep session that would contradict his testimony at trial.
The questions would simply relate to their observations of what occurred in the grand jury room.
Recognizing that there's attorney work product interwoven throughout that. It's not that I don't think it's that simply.
We're not interested in the attorney work product. We're not interested in their impressions. We're not interested in whatever notes they were working from in terms of questioning the witness. This is a legitimate pursuit of evidence that is highly relevant and highly probative as to the credibility of one of the key witnesses who has testified in this trial.
Briefly, your Honor. We understand our Brady obligations, your Honor, and we have met them. I'm just surprised to hear that the Defense feels that if their experts go on TV and say they're going to testify, that they don't have to produce a report. But if a magazine writer writes an article using unnamed sources, we somehow have an obligation to provide them--to provide ourselves to them and submit to an interrogation by the Defense. That is simply ridiculous. We have nothing at all to offer this jury or this Court or this Defendant and his lawyers regarding Mark Fuhrman. As far as the description of what happened in that mock cross-examination, they say they want to know what happened, they heard the testimony. They saw the witness. So they know. Now they know a little bit more because I've told them a little bit more. It would be unfair, completely unfair, given the agreement that we have with the Defense and given this fishing expedition that they want to go on, to require us to submit our clerks and our special assistants and our lawyers and our staff to a Defense interrogation. It's unfair and I'm sure it is unprecedented, and we object.
Your Honor, if I could just call the Court's attention to one portion of the record. Mr. Darden says that everything that went on in that session we learned from Detective Fuhrman. I would invite the Court's attention to page 18764 of the transcript, question by Mr. Bailey: "Can you remember even one of the questions that these three lawyers put to you? "Answer: No, I do not, sir. "Question: Not a single one? "Answer: No."
Miss Lewis advises me that questions are work product. But can I also give the Court an additional citation?
Page 391. It stands for the proposition that the Defense can subpoena witnesses in the hope that those witnesses might somehow impeach a Prosecution witness. It stands for the proposition that they have to show that the witness has some material, relevant and admissible information.
And as to Mr. Kardashian, I think the Court understands the factual distinctions in his situation.
All right. Another interesting situation we have here. Counsel, first of all, as a beginning premise, I accept that the Court does have the power and discretion to quash subpoenas in situations where it's appropriate to do so. But this is a matter of discovery at this time, not a matter of admissibility. And I agree with the Defense argument that given the publication in a nationwide--a magazine of nationwide distribution that is considered to be a news source rather than a tabloid type source of information, that that triggers an attorney's obligation to conduct further investigation by means of the discovery process, and I accept that as a given. I also accept that if a witness has made statements to counsel during the course of preparation of statements that are contrary to the testimony in court, that that is discoverable; and because of the parties who conducted this questioning, it also becomes discoverable under the aegis of the Brady doctrine. So I find that that there is a sufficient prima facie showing that there is potentially discoverable information available through Messers Yochelson, White and the law clerk, Miss Decker. But I also recognize that these are counsel for one of the parties here, which is a touchy situation, similar to the Kardashian matter. And the Court will therefore conduct in camera its own questioning of these persons. However, I am going to request of the Defense recommended questioning of these witnesses. I'm going to direct Mr. Yochelson to appear in this courtroom on Tuesday, June 27th, at 8:00 a.m. I'm going to direct Terry White to appear in this courtroom on Wednesday, June 28th, at 8:00 a.m. and law clerk Decker on Thursday, June 29th, at 8:00 a.m. and the Court will conduct in camera questioning of these individuals on the record.
And as for Mr. Yochelson and Mr. White, can we have additional time, approximately one week, before the Court begins its--
So that we can consider appellate remedies, your Honor. Perhaps if the Court can give us until Wednesday to come back and advise the Court of whether or not we intend to seek appellate remedy.
Well, I would imagine whether or not you are going to seek appellate remedy is something you can decide between now and Monday; don't you think?
I know. But I'm saying don't you think you could figure that out between now and Monday?
All right. Counsel, we'll do this. I'm going to direct the Defense to submit to me recommended questioning by Monday the 26th. Mr. Darden, you can come in and tell me what the Prosecution's position is on Monday. If you feel appellate remedies are necessary, then I will consider a motion to continue the hearings of the 27th and 28th. All right. And then find out when Miss Decker will be available. And my anticipation is that these hearings, in camera hearings will take approximately half an hour is my guess at this point.
He was a very effective witness. He did not buckle under the pressure and I'm sure that the jury found him a very credible witness.
Questions may be work product, but the answers given to them are not.
Question: Can you remember even one of the questions that these three lawyers put to you? Answer: No, I do not, sir. Question: Not a single one? Answer: No.
I accept that as a given. I also accept that if a witness has made statements to counsel during the course of preparation of statements that are contrary to the testimony in court, that that is discoverable; and because of the parties who conducted this questioning, it also becomes discoverable under the aegis of the Brady doctrine.
When Mark Fuhrman was here on one weekend, the air conditioning in the upper floors in this building were turned off. We had to go to the only floor we could go to where the air conditioning was on and where someone had a key. That happened to be on the 13th floor. And when we walked into the grand jury room that day, I said, 'Geez, I'm going to regret this one day,' and we have.