All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. All right. Mr. Cochran, did you have the opportunity to speak with Mr. Mounger?
Yes, I did, your Honor. We have--yes. Let me approach the mike. Yes. Thank you for the time. We were able to talk to him over in department 104. Not as much time as we would have liked to have obviously, so we're going to continue our conversation after this is over this evening obviously with Mr. Mounger. But with regard to Mr. Hodge and Miss Singer, they are present and we can proceed now with Mr. Hodge if the court pleases.
All right. I'll hear from Mr. Darden. And, counsel, just so we're straight, I went back and reviewed the record regarding our discussions regarding Hodge and Singer, and that was after the court had made its ruling on Terry and Bell indicating that it was premature to make a ruling as to Hodge and Singer because the objection was also 352, cumulative, and that the court would not be in a position to make a ruling on that until--unless and until I heard the testimony of Bell and Terry. So that's where we are.
Okay. And so that's where I am as well, your Honor, having no indication, no firm indication that these witnesses would be allowed to testify.
Mr. Hodge refuses to speak with us. He is here represented by counsel from Illinois as I understand it, whom I have not met as well. I did not get a chance to speak to Miss Singer. I was attempting to gather my documents in this regard. We have a problem with Hodge, a discovery problem that we would like to take up with the court. Also, we have a foundational matter as I think--and as I said before, I'd like a 402--
The Prosecution filed its 352 motion on July 14, 1995 as it related to Mr. Hodge, and we included in that motion a copy of the discovery we were given as it related to roger Hodge. Nowhere in that discovery from what I can discern--I should mention that these are handwritten notes. They are difficult--somewhat difficult to read. I only have a Xerox copy. There are portions that were cut off or cut off during the Xeroxing and I complained about this on more than one occasion to the court and on the record. At any event, nowhere in this discovery is there any mention that Detective Fuhrman, while transporting this man to the police station, turned to him and mentioned any racial epitaph. And this is a document or report I assume was prepared by either Mr. Bailey himself or a Defense investigator. And so we are surprised today to hear of this additional allegation.
My recollection though is that in our discussion back in March of 1995, that Mr. Bailey did in fact make an offer of proof regarding Mr. Hodge and that that offer of proof did include that first portion.
All right. Is Mr. Hodge present in the courtroom? All right. Mr. Hodge, would you step out of the courtroom, please?
I see that now, your Honor. I apologize. Not having a moment to prepare for this, I overlooked that. Would the court inquire of the Defense--
Well, here's--let me tell you what my dilemma is. You are entitled to a reasonable opportunity to get prepared, I agree. I would like to present something to this jury today. The jury I'm told are not happy campers. Apparently they came back from Catalina barking at the seals. That's a seaman's term, a fisherman's term, "Barking at the seals." It's being seasick.
I understand. I'm just saying if you can accommodate me and get ready on some of this though. But the dilemma that you posed and the dilemma that we create is that by calling Mr. Hodge first, that may make Bell cumulative. So I mean that's the situation we're in.
Your Honor, may I suggest something? Certainly we don't intend to make Bell cumulative. We don't think any--your Honor, let me just say this. If you have 69--60--so many I can hardly remember--61 incidents on tape which we no longer have, 59 have been thrown out, and we have some live witnesses, your Honor--
Well, I read your order, your Honor, and with all due respect, that order, there are some parts that are incoherent and we would like to have some clarification of that and we would like to talk to you about that sometime today, if possible, because we expect perhaps in a motion in reconsideration on Tuesday to address that because certain parts we don't understand. You said that's not correct. So maybe we're still entitled to do certain things that is not totally clear that we can do. Is that what you're indicating?
It's not clear to us. Let me make that clear. But what I was going to suggest, we have Miss Singer here. Why don't we start off--I haven't heard a complaint about Miss Singer. Let's start by calling Miss Singer. We don't want--by calling Singer and Hodge, we're not saying this--we don't want to be duped by anything where later than Tuesday or Wednesday, you say, well, you called them. Now you can't call Kathleen Bell and Terry.
I'm warning you, counsel, I'm just being--I told--this issue we brought up very early, that Hodge and Singer or anybody else might be cumulative after Terry and Bell because it is a collateral issue and at some point in time, it gets to be redundant.
So you have available to you the testimony of Bell, Terry, McKinny. McKinny can come in and testify that she interviewed Detective Fuhrman over this nine-year period, that she tape-recorded and transcribed these conversations, that during the course of these conversations, on 41 occasions that she can document, he referred to African Americans with a racial epitaph in a negative and disparaging manner, two examples of which are x and Y, and that there is no doubt--and that the subplot of this particular screenplay was not--the racial animosity was not a subplot. That's what she can do.
Well, let me just ask you a question regarding that. One of the problems we have with is that the fact that the two instances you picked--first of all, you picked an instance on the tape that you can hardly hear the word. We don't think that's fair. The two more innocuous instances, we don't think that's fair. How--may I ask how could you arrive at just these two, your Honor.
Mr. Cochran, we're not revisiting that at this point. The point is, at some point in time, it becomes cumulative. So you will have--in the record, after Bell, Terry and McKinny, you will have three witnesses that may determine--that you can reasonably argue from that Detective Fuhrman is, A, a liar and, B, a racist.
Well, wait a minute. I'm just saying that then, if you want to bring in Hodge and Singer on a collateral issue, at some point in time, it's going to be cumulative. If you make a tactical judgment who you want to bring on first, who you want to bring on second, that's entirely up to you. But the cards are on the table. We all know who the witnesses are. But at some point in time, enough is enough.
Judge, you just finished telling us how the jurors came back barking at seals, you want to get something done today. We've indicated to you--these witnesses, your Honor, all live out of state now. We're bringing these people back all at his expense. Nobody is paying for this except Mr. Simpson. So we have two witnesses that we've had since Wednesday in an effort to finish this case. So we say to you as an offer of proof this morning we have these people available. We're trying to accommodate the court. We were sitting for two days for this order. Now, you say to us well, you make a tactical decision. Terry and Bell, you previously said we could call. The other two we think are also very important. Reasonable minds may differ about what is collateral. And perhaps when you hear the argument--
It might make the subsequent witnesses redundant. That's all I'm saying. I don't know.
Well, your Honor, let me say this, your Honor. You're the only one who will ultimately know that. It will never be redundant to us because we think when we have this overwhelming evidence against this man having perjured himself and being a racist and this man being a key witness in this case, we think it's important to show this. I just remind the court that we have been six weeks, they have been six months, and it's not fair to Mr. Simpson that all of a sudden, we have to rush through everything now when we get to the end of the case. Now, we understand that. But we weren't--the other six months, they were putting their case on. And so I'd ask the court to remember that when you make these kinds of judgments. We want to get this case to the jury also. But at the same time, we also have to fight for our client to get a fair trial on a level playing field, Judge. That's what we're trying to do. So I mean, so you put us in this quandary. We come to you and say we got these two people here. They're here from--one is from--they're both from back east, way back east.
Counsel, the scenario that you set for me was that Miss McKinny was going to testify next.
Yes. Absolutely, your Honor. And then--but then we got your order last night at 4:30 or so. We don't understand that order clearly. We're going to obviously be asking you to reconsider that order. We are going to point out to you--you may think it's clear--where it's not clear. We plan to do that for early Tuesday morning. We're going to ask you--
Well, I think that among us, we still have some difficult with it and we still would ask you to reconsider certain aspects. Now, with regard to McKinny, if we are told--let me just say this one thing, if you'll allow me. One of the things we've talked about a lot in this case is misleading the jury. How in the world can we be part of your order and play those two instances that, "I grew up in Washington where there were no blank words," the other thing, "That's where they live," when talking about the black Muslims? That's not representative of what happens. This man has been painted as a choir boy, your Honor, to this jury and the jury ultimately makes the decision. We're now left with--sure, we can talk about 41 references, but you picked instances where it doesn't allow us to show what he's done as it relates to this case, and that's what we have a real problem with. We don't think that's fair if you understand what I'm saying. The two instances--and I don't know how you picked them--those are not the instances that we think are appropriate, not even mentioning the 18 things of misconduct on a theory that is--the probative value is outweighed by the prejudicial effect. And I'm not going to argue now except to say when you make that kind of blanket order in this kind of a case where perhaps never before in the history of criminal jurist prudence has there been this level of impeachment out of somebody's mouth, that causes problems for the Defense. I think you might understand that and you might understand that we stand before you today not having a lot of sleep--
Well, Mr. Cochran, here's the problem. This is not a motion to reconsider at this point.
I expect that. You also can walk down the street a block and a half and go to the court of appeal if you don't like the ruling. You have that option.
We understand our remedies. But we got the order last night at 4:30 or so, Judge, is what I'm trying to say to you. I have witnesses here and we are prepared to put them on. And then you say, well, wait a minute. If you put them on, you might run into cumulative. So obviously we're concerned about that, Judge.
They're saying they're going to make the argument. I'm just warning you that that's a possibility. That's all I'm doing. You want to call them, call them.
We were told that the last witnesses were going to be Blasini, Gobern and Menzione and with McKinny ahead of those. That's what we were told. It's Friday, it's a short day. So obviously we would not be wasting our time preparing for Hodge and Singer. And, of course, the Prosecution had no idea as to what the court would rule on the McKinny issue. So we had to prepare on all 41 incidents. But my point here is, again, why are we being jammed this way just because--
You're being jammed because I got a jury that's going nuts. That's why you're being jammed.
And the next representation I want to make to the court about this witness is that the discovery we have is not consistent with Mr. Bailey's representations. If there are other reports, other statements to investigators, other notes that is related to Hodge and Singer, we would like to have them now.
May I just say one thing about discovery? Mr. Douglas, who handles all our discovery, gave the District Attorneys all of our remaining witnesses last Saturday. They've known about all these witnesses. No question about that. Absolutely called, gave them notice last Saturday. He's right here. And so they're known about it. This is just a--we need obviously a moment to caucus with regard to what your Honor's indicated because--your Honor, it's not just us, it's Mr. Simpson. So I'd like an opportunity to talk to my client.
Why do they need a minute to caucus? 352's been in the evidence code for 50 years. I mean, it's obvious that at some point, issues become cumulative.
Yes. You had asked whether or not they had had an opportunity to talk with Miss Singer. Miss Singer received a call from Mr. Pellicano, who indicated he was working with the Prosecution last March.
As a result of which she hired an attorney in Nashville. He affiliated an attorney here. She has been prepared to talk with the government in the presence of her attorney since then. Today is the first time they have ever asked, no. 1. No. 2, on suggesting that we run the risk by calling these two witnesses on this one point of collateral estoppel later on--excuse me, Mr. Darden.
Mr. Darden, I am going to instruct you not to interrupt Mr. Bailey again on pain of being held in contempt. Do you understand that?
KEY QUOTEIf it please the court, I respectfully request that you remember the circumstances of Bell and Terry. They are completely separate. They were brought in by the Prosecution at the opening of Fuhrman's testimony, and the issue as to them is not racism. It's whether Fuhrman lied when he said he didn't even know them, because if the jury concludes that that was a lie, they certainly will accept that he made the remarks they attribute to him. That is a box they built and should not be used to cumulatively exclude witnesses who directly impeach Fuhrman who lied in a capital case which under Alaska V. Davis is not collateral. Thank you.
I'm just wondering if anybody else wants to argue the 352 issue by the Defense. I mean, you issued a ruling on this yesterday. As far as Hodge and Singer are concerned, what do you want us to do? You want to jam us, Judge, put them on. Let's get on with the trial then.
Am I ready? No, I'm not ready. Frankly, I don't feel I'm competent to represent the People of the State of California this morning as it relates to Mr. Hodge, but--
All right. I don't see there's any chance we're going to have--because we're going to bring the jury down, I don't see any chance we are going to finish more than the direct this morning.
Wait a minute. I need to resolve this issue. All right. We will proceed with Mr. Hodge's direct testimony. We will not complete that this morning.
May I do one other thing, your Honor? Obviously--two things I would like to convey to the court. If you--if there is a possibility that by calling Hodge, you will not let us call Kathleen Bell--they're all flying in this weekend--I've got to discuss that with Mr. Simpson, your Honor. I can't just do this just to accommodate them. Do you understand what I'm saying on that? Also, there's something else about Hodge's testimony I should indicate as an offer of proof. I talked to him during the break. I would like to make--put on the record.
That--and I'm not sure the original offer of proof contained all this. Mr. Hodge will testify that he had numerous contacts with Detective Fuhrman between 1985 and 1987, that in addition to these numerous contacts, he made numerous complaints with internal affairs complaining about how he's been harassed by this officer and that--the other things Mr. Bailey indicated. He referred to him as--with the "N" word, he had him bend over and take his pants down, all those things he will testify about. But he had numerous contacts with this officer. He also had contacts with Detective Purdy. Purdy was at the--at the time when he was arrested, it was Purdy and Anderson who first stopped and arrested him before Fuhrman and Vettraino came and got him. So you should know that also. But the point I have to make is--with our client as to--so that he can understand what the risks are. I need time to do that if I can.
Judge, would you inquire of the Defense, is there more discovery? I mean, is there more offers of proof?
The jury I'm told are not happy campers. Apparently they came back from Catalina barking at the seals. That's a seaman's term, a fisherman's term, 'Barking at the seals.' It's being seasick.
Frankly, I don't feel I'm competent to represent the People of the State of California this morning as it relates to Mr. Hodge.
Perhaps never before in the history of criminal jurist prudence has there been this level of impeachment out of somebody's mouth, that causes problems for the Defense.
They are completely separate. They were brought in by the Prosecution at the opening of Fuhrman's testimony, and the issue as to them is not racism. It's whether Fuhrman lied when he said he didn't even know them... That is a box they built and should not be used to cumulatively exclude witnesses who directly impeach Fuhrman who lied in a capital case which under Alaska V. Davis is not collateral.
Mr. Darden, I am going to instruct you not to interrupt Mr. Bailey again on pain of being held in contempt. Do you understand that?