Well, your Honor, as in so many other points in this trial, we are back to square one on an issue that we thought we had resolved, but we want to make it very clear that square one for us is the constitutional right to confront and cross-examine the witnesses against the Defendant. And that right is so fundamental that no trial can be called a fair trial where that right has been denied. And the Defendant will not waive that right by resting his case without some remedy that avoids an unfavorable inference from his unexplained failure to recall Detective Mark Fuhrman in the presence of the jury. Saying nothing and doing nothing actually prejudices the Defendant because the jury is aware that he was subject to recall. In light of the evidence that has been presented, the failure to recall him or explain why we were not doing so can only result in an inference unfavorable to the Defendant.

If you recollect that my ruling indicated that I felt that it was not appropriate, that some instruction was appropriate because Mr. Fuhrman had not been subjected to cross-examination with regards to Singer, Hodge and McKinny.

Yes, your Honor. We would add Rokahr to that list. We believe that the contradiction between Mr. Rokahr's testimony that that photograph was taken at night, and the testimony of Detective Fuhrman that the photograph was taken after he returned from the Rockingham premises at 7:00 in the morning, is a very significant contradiction in terms of the access to the evidence that Detective Fuhrman had before he went to the Rockingham premises. What we have proposed, your Honor, are three alternatives that the court has not previously considered, and we have renewed our request for a fourth alternative and we believe that any one of these four alternatives would be a satisfactory resolution of the problem, but no less than one of these is absolutely necessary. The first alternative we propose is moving to strike the portion of the testimony of Detective Fuhrman that dealt with the discovery of the Rockingham glove and to strike the glove itself from evidence. As we noted in our moving papers, we have not previously moved to strike any of Detective Fuhrman's testimony because we intend to rely on some of that testimony and we have a right to rely on it to put in evidence some very important issues from the Defense perspective. That is, we believe that as to some of the evidence provided by Detective Fuhrman, it is favorable to the Defense or it contradicts other witnesses for the Prosecution and can be used to challenge their credibility. It is a question of either Fuhrman is lying or one of these other witnesses are lying, and we believe we can argue, based on Detective Fuhrman's testimony, that perhaps other witnesses have perjured themselves in this trial as well. I have delineated in the moving papers the areas in which we believe we are entitled to rely on testimony of Detective Fuhrman. For example, he testified that he informed the other detectives, most notably Detective Phillips, that he had been to Rockingham on a family dispute on a prior occasion, and I believe that is inconsistent with Detective Phillips' testimony. He testified that when he went to the Bronco in the early morning hours of June 13th, not only did he see the speck above the door handle, but he saw the three to four small lines that he thought resembled blood on the doorsill and he also testified that he told criminalist Fung about that second stain. Both Fung and Larry Ragle testified that those three or four lines were only visible when the door was opened, so we believe, based on that testimony by Detective Fuhrman, we can challenge the contention of the Prosecution that no entry was made to the Bronco at the scene at Rockingham before it was hauled off to the--to the print shed. And that of course is a vital point to the Defense in terms of explaining the presence of blood in the Bronco. And also Mr. Fung denied that Detective Fuhrman had told him about that stain at the Rockingham scene, so there is a contradiction between what Fuhrman said and what Fung said. Detective Fuhrman is also the only source of evidence that Kato Kaelin passed a nystagmus test in the early morning hours of June 13th. He is the only source of testimony that the plastic bag in the back of the Bronco is standard equipment in a Bronco, that it is a bag for the spare tire. He also testified to observing a partial fingerprint on the knob of the back gate at Bundy. He is the only source of testimony that the premises next door to Mr. Simpson's Rockingham residence were inspected by him that morning and he found nothing out of place, which is important evidence in terms of any theory that the Prosecution might offer that entry was made to those premises and somebody climbed over a fence and dropped a glove. We also want to rely on the preliminary hearing testimony of Detective Fuhrman which was elicited from him on his examination at trial that he had referred to the gloves at Bundy as "Them" and that he had referred to seeing blood in the Bronco.

All right. Mr. Uelmen, then have you, given the surgical manner in which you propose to strike Detective Fuhrman's testimony, have you--do you have a proposal concerning where in the transcript, what pages and what lines and where to where, a specific proposal?

Well, frankly, the jury--the jury would be very confused by a delineation of line by line in the transcript in terms of--

No, that is not what I'm asking for as far as the jury is concerned. I mean, you are asking me to strike specific testimony. You want some, but you want some left in and you want some taken out, so I need to know specifically what is it that you are asking me to strike?

Well, what we are asking be stricken is the only portion of Detective Fuhrman's testimony where the denial of cross-examination has seriously prejudiced us the most, and that is with respect to the discovery of the glove. We would like stricken all of his testimony with respect to his discovery of the glove behind the residence at Rockingham and the glove itself, that they be stricken from evidence and the jury just simply be told disregard that, don't rely on Detective Fuhrman's testimony with respect to finding that glove and ignore the glove in your--in your deliberations. We have been prejudiced in terms of cross-examining on whatever motives he might have had to plant that evidence. We have been precluded from confronting him with the testimony of the witnesses McKinny, Hodge, Singer and Rokahr with respect to motives and opportunity in that respect. And we believe the appropriate remedy is simply tell the jury disregard it, forget it happened. Our second alternative is closely related to the first, because it really points out the unfairness and the injustice of the Prosecution putting a witness on the stand and getting the benefit of his direct testimony and relying on that testimony to prove their case without taking the lumps that come along with cross-examination, because of the invocation of the 5th amendment, and the Prosecution really has it within their control to eliminate that obstacle to cross-examination by the grant of immunity to the witness. What we have proposed is that the court actually has judicial authority to grant use immunity to Detective Fuhrman. Under these circumstances to say to Detective Fuhrman none of the testimony you present on cross-examination by the Defense at this point will be used against you in a future Prosecution, and thereby make his testimony on cross-examination available to the Defense. And we believe the Prosecution should be estopped from objecting to that kind of a grant of use immunity because of their past reliance and their future intended reliance on Detective Fuhrman's testimony. I think the strongest authority for that proposition comes from a case in which the Court of Appeals actually said that the Prosecution could be compelled to grant statutory immunity under section 1324 of the penal code, under circumstances very similar to what we are presented with here, and that case has not previously been called to the court's attention, it was not even called to the attention of Court of Appeals in the petition for a writ that was filed by the People last week and, we have ended up with a very curious situation where we have a controlling precedent from the Second District Court of Appeals that apparently was not considered by the court in issuing its alternative writ last week, nor has it yet been considered by this court, and that is the case of People versus Garner where a very analogous situation is presented of a witness who testified at a preliminary hearing and then came in at trial and said I'm worried about Prosecution for perjury for my preliminary hearing testimony, therefore, I'm going to take the 5th amendment. And the Prosecution then offered in evidence the preliminary hearing testimony on the theory that the witness was now unavailable so they could use the prior testimony at the preliminary hearing.

And what the Court of Appeals said about that is highly analogous to the situation that this court faces. In fact, the situations are virtually identical. The court said: "Obviously the People could not in good conscience have urged that the very testimony on which they asked to have the appellant imprisoned for the balance of his life was so untrustworthy that they wished to retain the right to prosecute their declarant for perjury. They already knew, of course, that Phillips claimed to have testified falsely. Under such circumstances one might have hoped the Prosecution would have been as desirous as the Defense to see the truth prevail, whatever that might be." And that points out the irony of the Prosecution's position if they are actually going to oppose the grant of use immunity to Detective Fuhrman, because the use immunity issue only comes up in the context in which he can legitimately claim the 5th amendment, if at all, and that is because I face the risk of Prosecution for perjury in the testimony I presented in this case to this jury. And for the Prosecution to come into this court and say we want to rely on that perjured testimony, we want to use it to convict this Defendant and send him to prison for the rest of their life, and we don't want to immunize this witness from subsequently being prosecuted by us for perjury. Well, you can't have it both ways. And that's essentially the ruling that the court handed down in garner. They said: "Less there be any confusion concerning the extremely limited nature of the remedy we here recommend, we emphasize that a need therefore will arise if, and only if, the witness' invocation of the privilege is based upon a claimed fear of perjury Prosecution." That is no. 1. And no. 2:

"It is the People who wish to use this witness' earlier and assertedly false testimony as evidence against the accused. While the District Attorney may not be required to seek a grant of immunity even in such an instance, his request to make affirmative use of that testimony may be conditioned upon his willingness to expose the witness to full and complete cross-examination." So what the court is saying is, okay, it is your choice. If you are not going to accept immunity, then you have to accept striking the testimony. You can't have it both ways. And that is precisely the situation we have here. Both of those conditions are met. The invocation of the privilege is apparently wasted on a fear of Prosecution of perjury and the People intend to continue to rely on this perjured testimony in making out their case in chief and arguing that the jury should consider the evidence of Detective Fuhrman finding this glove and the evidence of the glove itself. The third alternative that we pose would involve the court making a much more specific determination of the availability of the privilege against self-incrimination by the witness Mark Fuhrman. What Detective Fuhrman did in his brief appearance on the stand is to sweepingly invoke the privilege as to all future questions, and we believe that may be an inappropriate invocation of the 5th amendment, if his only concern is potential Prosecution for--for perjury. And in fact even with respect to potential Prosecution for perjury, if in fact he assumes the risk by getting on the witness stand and in direct testimony willfully and knowingly presented perjured testimony, we believe that itself may have been a waiver of the--of the 5th amendment privilege. Now, we recognize your Honor's prior determination that the invocation of the--of the 5th amendment and the determination of the appropriateness of the invocation of the 5th amendment should be done out of the presence of the jury, but that can be accomplished in a 402 hearing at which Detective Fuhrman is subjected to question-by-question cross-examination and the court makes a ruling in the context of that examination whether he can appropriately invoke the 5th amendment privilege. But bear in mind that the burden is on him. Under section 404 of the evidence code it is the witness who invokes the 5th amendment privilege who bears the burden of showing that his invocation of that privilege is appropriate. Now, once the court has made such a determination, we can then proceed to cross-examination of Detective Fuhrman in the presence of the jury with respect to the issues where the court has determined he has waived his 5th amendment privilege and he may not rely upon the privilege against self-incrimination in declining to testify. That, however, does not eliminate the need for some sort of instruction to the jury, because if we cross-examine on very limited areas where he has not appropriately invoked his 5th amendment and are precluded from cross-examining in those areas where the court has determined his invocation of the privilege is appropriate, we are left with the same problem. The jury will infer from our failure to cross-examine in certain areas that we are conceding the credibility of his testimony when in fact the reason we are precluded from asking in those areas is because of his facing a realistic risk of a perjury Prosecution for that testimony, so just the opposite inference should be drawn. And the--the garner court addressed that problem. In fact, the garner court very specifically said under these circumstances the jury should know that he has invoked the 5th and they should invoke an adverse interest against him because the only basis for his invocation of the privilege is the risk of a perjury Prosecution. Recognizing that your court--the court has already ruled on that--on that issue, we want to emphasize we are not waiving our objection to that ruling, but we are saying under those circumstances the most appropriate instruction to give the jury now would be the 2.25 instruction of Caljic. And it is important to note that the Caljic use note itself indicates that this instruction, as slightly modified, can be given where the invocation of the 5th amendment is taken out of the presence of the jury. And what we have proposed is a slight modification of 2.25. So if we are permitted to cross-examine Detective Fuhrman in the areas where the court has indicated he may not invoke the privilege, the court should instruct the jury that with respect to specific questions his invocation of the privilege has been upheld and they should not infer anything from that invocation of the privilege one way or the other. The final alternative that we propose is one that we have proposed before, that in lieu of cross-examination we be allowed to present additional excerpts from the McKinny tapes and transcripts as declarations against interest. But one of these four alternatives is going to be necessary in terms of the balance that the court must strike. And we would contend that when a conflict arises between the fundamental right of the Defendant to confront and cross-examine the witnesses against him, and the right of a witness to invoke the 5th amendment privilege, it is the 6th amendment right of confrontation that must prevail. And we have proposed four very reasonable alternatives that would accommodate Mr. Simpson's right to confront and cross-examine Detective Fuhrman and still respect any valid assertion of a privilege against self-incrimination.

I will hear from the People.

What you have just heard, your Honor, is simply in many respects the repetition of arguments previously made to this court and rejected, and the expression of the Defense frustration at not having obtained the ruling they sought to obtain. That does not mean that any of the proposed alternatives are in any way, shape or form proper, legal or required in this case. Let me remind the court of what occurred in this courtroom during the last week of the Defense case, just so we are clear that the Defense has not only not suffered any detriment, but they have received every possible windfall they could possibly ask for. In the form of the McKinny tapes, in the form of the testimony of Hodge, in the form of testimony of Miss Singer, the Defense has trumped everything they previously planned to give to this jury in an incredibly overwhelming way. They have launched every inflammatory attack they could possibly launch. They were given wide latitude to do so. In doing so they have been allowed to effectively impeach Detective Fuhrman's testimony with respect to his assertion that he never used racial epithets in the past ten years. They have done so conclusively, they have done so without any ability on the People's part to bring Detective Fuhrman back to explain or mitigate the circumstances. We accept that deficit. The Defense is refusing to accept their victory graciously. They want more. They want more. They have won, your Honor. I mean, you know, they got that concession. They have won. They proved to this jury he lied about that, but that is not enough. They want to go farther and want to rub the jury's noses in it and also seek to draw improper inferences from that aspect of the testimony. And that is what is not fair and that is why they have been seeking things that are way beyond the law and way beyond the pale. With respect to--and let me indicate People versus Garner is wholly inapposite. I don't know if the court had a chance to read that, but in the garner case what occurred was that the witness testified, was the sole witness against the Defendant. He testified at the preliminary hearing. After the preliminary hearing he told the People I lied and I'm not coming back to testify and I'm going to invoke because you could prosecute me for perjury. So all the jury had was the former testimony of that one Prosecution witness who was their sole witness to prove all the relevant information against the Defendant, read to them through the former testimony exception under evidence code section 1291, so that the Defense really had no opportunity to cross-examine him before the jury and then the jury was not informed that he had told the Prosecution that he lied. The only thing that the jury was informed in that case is that he invoked his 5th amendment right and they were not to speculate as to why. I don't consider that analogous to this situation at all, nor do I think anyone else would. When you look at the situation in this case, what you have is the fact that Detective Fuhrman was extensively cross-examined as to all aspects of his testimony concerning this case. He is not the key Prosecution witness. What he is is the Defendant's poster boy for the key Prosecution witness. That is what they want. They want to make him as critical as possible because he was so easily and thoroughly impeached on his assertion that he had never used racial epithets in the pass ten years. He behooves them to make him supremely important. I understand. That doesn't mean it is true; it just means that is what they want. They are asserting him to be a key Prosecution witness when in fact if you took hypothetically the situation where you eliminated the glove, you eliminated Mark Fuhrman, we would still have overwhelming evidence of the Defendant's guilt, so we do not have the sole critical witness involved in this case that they did in garner. But more importantly, this witness--

No, it is not, your Honor. I'm talking hypothetically, and I will address that point. But in garner, you know, you had no ability for the jury to assess the witness' credibility, his demeanor, that is, as he was cross-examined concerning the facts of that case and an admission that he lied in that case. All you had was former testimony. In this case Mark Fuhrman has completely and thoroughly been cross-examined as to all aspects of his testimony involving this case and Kathleen Bell, and the only thing that he was not cross-examined about was the windfall of McKinny, Hodge and Singer that the Defense came up with later. What you basically have here is that he was impeached, though. You know, even though they haven't cross-examined him about it, the truth of the matter is all they want to do is parade him up again in front of this jury so that they can make the jury look at him when they ask him about the "N" word. And they have already heard all the impeachment. He has been impeached with his own voice saying racial epithets. They have got him. But they want more. They want to kick him around in front of the jury. They have got enough to get the instruction about a witness willfully false. They will argue it until the cows come home, I promise your Honor they will. They will parade Mark Fuhrman in front of the jury and talk about a witness willfully false probably for half their case. They have got that instruction. They have got the witnesses who directly impeach his assertion. They have got his voice on tape and they want more. That is all they are saying here. They want more. But in saying that, your Honor, they are not justified getting more. Now, I would indicate to the court with respect to Rolf Rokahr's testimony, he has been impeached by already Robert Riske and Detective Phillips, both of whom testified that they saw that photograph being taken after the detectives got back from Rockingham, and the Defense knows that. I mean, that is another game they are going to play with the credibility of Mark Fuhrman. Talk about shifting sand. Mr. Uelmen get up and tells the court that they think his credibility is intact as to various--various topics and they intend to rely on his testimony about those topics. Now they want it both ways. If their indication is--and I will move on. This is the striking issue, your Honor. If it is their position that they have to strike the testimony concerning the finding of the glove, then they are doing so because they feel that his credibility has been unfairly left intact when in fact he was impeached, but he was not impeached as to whether or not he planted the glove, your Honor, at all. In fact, as the court noted in its own ruling, all of the testimony in this case makes it very, very clear that no evidence was planted by Mark Fuhrman. In fact, his credibility is intact on that issue. Yet they would have you seek--they would have you strike just that portion of his testimony that everyone knows, who reasonably and fairly looks at this evidence, is true. Now, what is the point of that? What is the fairness of that? What is the legality of that? Nil. They just want to strike it because they don't like it. They want to be able to use the striking of that to turn to the jury and say, aha, you see, he did. It is ridiculous. The court's own ruling makes it clear that there was no evidence planted by Mark Fuhrman and they would move you to strike that testimony when they have failed to impeach him in any way, shape or form. The only thing they have impeached is his assertion that he did not use racial epithets. Okay. If they feel that they have not had the opportunity to effectively cross-examine him on that point, strike that. I mean, that is where it goes. That is where the impeachment was, your Honor. They were not able to cross-examine him on Hodge, Singer or the McKinny tapes, so strike his testimony about racial epithets. That is what legally and logically follows, not the striking of the glove. They are going to pour through this transcript and say, as Mr. Uelmen just has, incredibly and inconsistently, he is going to go through the whole transcript and say, well, I like this, I like this, I like this but I don't like that. Strike that. But that was never impeached and that was not the subject of Hodge, Singer and McKinny, so there is no logic to what they are requesting you to do. Moreover, and even more troubling, the court inquired directly of the Defense as to whether or not they wanted to waive or as to whether or not they wanted to strike Detective Fuhrman's testimony, and they expressly and repeatedly said, no, we are aware of that remedy, we choose not to. And they made that assertion at a point in time before they knew how the court would rule, at a point in time before they knew whether they would get that instruction, so they have waived their ability to move to strike at this point, your Honor. And even if they haven't waived, there is absolutely no logic and no reasoning to support the ability to strike the testimony in any part at all. And I would also point out to the court that when they refused that option of striking, they did not do so conditionally. They didn't tell this court, well, we may move to strike if the court doesn't rule favorably on everything else. That was an unconditional waiver. No, we do not want to strike his testimony.

And in point of fact, they are asserting to this court that as to large segments of his testimony they are going to argue to the jury that Mark Fuhrman was credible. I can't wait to hear that argument. That is going to be very entertaining. But nevertheless, I think it does tell the court something about the viability and the integrity of the motion to strike the portion concerning the glove. It is not right. It is not right in logic and it is not right in law. Moreover, your Honor, with respect to the glove testimony, full cross-examination was had on that subject matter. As you recall, Mr. Bailey went extensively into how Mark Fuhrman found the glove and then proposed to go into and did I think cross-examine about how marines carry things in their socks and other interesting points like that, but Mr. Fuhrman was fully cross-examined on that issue. So if there has been no depravation of the right to cross-examine and confront the witness against on him that topic, again, then why strike it? Under the circumstances the court finds in this case there is simply no authority to strike what the Defense is asking the court to strike.

Excuse me just a second.

Miss Clark.

Let me cite to the court the case of People versus Daggett, D-A-G-G-E-T-T, 225 Cal. App. 3D, 751 at page 760. That deals with this issue more directly. In that case the court refused to strike the victim's testimony after the victim invoked. There had been a limited exercise regarding impeachment concerning his being charged with a molestation of children. In that case he was the sole accusing witness against the Defendant in a case of molestation. He admitted on cross-examination to having been charged with molesting other children, but exercised his right under the 5th amendment to refuse to testify as to whether he had ever admitted having molested children himself. The court found there was no error in the denial of the motion to strike. Now, I would call that a pretty serious invocation and a very serious aspect of the witness' credibility when you are talking about a molestation case and he invoked on a key issue concerning his own credibility. In that case the motion to strike was denied. Now, interestingly, the Defense belatedly contests Mark Fuhrman's right to invoke.

I'm listening.

Oh, okay. At the time that he did invoke, however, they not only conceded that he had the right to invoke, but were obviously not contesting any aspect of his right to invoke. And with respect to that, your Honor, I would really like to hear an offer of proof as to what they think--they say that there are some areas in which he would not need to invoke and other areas in which he would. I would really like to hear what areas they intend to examine him about that doesn't require the invocation. With respect to this case, all aspects of this case have been thoroughly cross-examined on. If they intend to go back into that testimony, it is cumulative and it has been asked and answered and under 352 an undue consumption of time in repetitively asking those questions should properly be granted.

So if they want to go back into that, for which there is no 5th amendment, I believe, then there is no reason to recall him. If what they want to do is go into past acts of alleged misconduct on the tapes, there is obviously a valid 5th amendment right to those issues, so I would really be curious to know what the Defense thinks they can question him on for which there is no valid 5th amendment right? And I think that in itself really exposes the intent here. The intent is nothing more than a game to get him back in front of the jury and parade him around and ask some improper questions as to which the court will sustain proper objections, and infer things they should not be inferring from the manner in which the questions are asked in another effort to make a circus out of this trial involving Mark Fuhrman. There is no valid reason to recall Mr. Fuhrman and the Defense has failed to show this court in specific what reason there might be. And when I say that, question him about what? For what? He has already invoked with respect to those tapes. We know that when he said he didn't use racial epithets, he did not tell the truth. That has been done.

Now they have rebutted his testimony, they thoroughly impeached that assertion by him, and they have not offered this court any valid reason to go into that. Now, with--to recall him, excuse me. Now, based on what I have indicated to the court in the garner case, we don't have the fundamental unfairness here that we do there. This witness has been thoroughly rebutted, thoroughly impeached in his assertion about racial epithets from his own mouth on the tape. The jury has a clear and complete picture of that.

I think you have made that argument.

Okay. Okay. So the Defense really has all of the benefits that garner would have urged it to have. Caljic 2.25, do I need to address that argument, your Honor?

It is your record.

All right. I don't want to waste the time of the court if it is not necessary. 2.25 is clearly inappropriate to be given. That instruction is included obviously in Caljic because there can occur a situation, as I have previously argued to the court, where there be an assertion, an invocation that was unexpected, and in that sense I mean that someone comes into court and all of a sudden refuses to be--to answer the questions posed to him--

--in the jury's presence. Now, even though the invocation formally is taken outside their presence, when a witness all of a sudden stops answering and refuses to, some kind of prophylactic measure has to be taken. That is not the situation we have here. And the court is being invited to revisit an issue that has already been resolved on appeal. With respect to the last request, the court has already properly denied it. With respect to declarations against penal interest, the court gave a full recitation of reasons for its ruling and it was not an unconsidered but it was a very carefully considered ruling in which the court appropriately found that the evidence code section requirements were not met; neither for trustworthiness--I can't remember the rest of the ruling. In any case, I remember reading it and hearing it. Therefore, your Honor, I don't think that there is any merit--I will go farther than that--there is no merit to any of the requests posed by the Defense and the request should properly be denied in toto as nothing more than a reassertion of their frustration at their inability to parade Mark Fuhrman again before this jury. They have thoroughly discredited him and they will have every opportunity to remind the jury of that fact in closing argument, as I'm sure they will do. They have been denied nothing in their ability to cross-examine him. They have gotten every benefit out of it they could possibly hope for, and much, much more.

Thank you. Mr. Uelmen.

Your Honor, I did not address the immunity issue.

I thought did you in terms of garner.

No, not necessarily--

Only I distinguished garner. Let me indicate to the court, though, with respect to the immunity issue--well, we need to hear more about what the Defense wants us to give immunity for. I would indicate to the court that under hunter, although that court--although that court gave a proposal for how the court might grant immunity in the extraordinary case, I would remind the court that that theory was never implemented in any subsequent case by in court and never found to be appropriate. But moreover, you know, I really think the immunity argument is addressed in this manner, your Honor: They have had the ability to thoroughly rebut Mark Fuhrman and there is no reason to recall him for further testimony. And I think that really kind of answers it. There is just no need for immunity.

I take it that is an indication that you, representing the Prosecution, are not in a position to offer Detective Fuhrman any immunity for testimony?

Well, I haven't even considered it. Let me indicate this to THE COURT: With respect to his testimony and his actions in this case, he doesn't need immunity. He committed no misconduct. With respect to what is contained on the tape, no one knows, and of course we could not grant immunity as to that, and that is clearly what the Defense would like to get into in cross-examining Detective Fuhrman.

Furthermore, your Honor, the Defense has been clamoring for the Prosecution of Mark Fuhrman for perjury for the past three weeks and they now want us to grant him immunity so he cannot be prosecuted? I find that position to be highly inconsistent. I don't think that properly anyone should want us to be precluded from prosecuting Mark Fuhrman if there is an appropriate Prosecution to be had. We don't know that. I can only say that with respect to the conduct of his investigation in this case, there is--there was no misconduct, but with respect to what is contained on the tapes, we don't know.

All right. Thank you, counsel.

Your Honor, talk about inconsistencies and contradictions. Isn't it remarkable that the Prosecutor is saying the Defense has already thoroughly impeached and discredited Mark Fuhrman and shown that he is a liar and then to stand up and say, we are not going to grant immunity from perjury, it just represents the degree to which the Prosecution wants to have it both ways in this case. They want to continue to embrace Mark Fuhrman. They want to continue to rely upon his testimony with respect to the discovery of the glove, and yet they want the benefit of the Defendant's denial to confront and cross-examine this witness. Confrontation and cross-examining is not a game, your Honor. It is a right guaranteed by the 6th amendment. And the reason it is guaranteed in the 6th amendment is because it is the greatest engine for getting at the truth that we have been able to devise, and we have been deprived of that right.

Your Honor has already ruled last week in noting that the record is clear that when cross-examination was adjourned it was subject to recall for further cross-examination, and your Honor indicated that further cross-examination about the testimony of these witnesses was likely and reasonably and appropriately the subject of further cross-examination. We've heard some really remarkable legal propositions in the course of the argument just presented and they are propositions that I have never heard before. No. 1, Miss Clark is suggesting that impeachment is a substitute for cross-examination. I have never heard that before. I have never heard that regardless of what extent a court allows a witness to be impeached, that that--that that can be a substitute for cross-examination and be a justification to preclude a Defendant from confronting and cross-examining the witness against him. Your Honor indicated in the cross-examination of Detective Fuhrman being conducted by Mr. Bailey that certain areas should not be explored until we have come up with evidence to back up the assertions that were being made.

your Honor permitted the cross-examination with respect to Kathleen Bell and we are prepared to accept your Honor's determination that further cross-examination in that area is not necessary, because we had essentially what Miss Bell had said at the time we got up to cross-examine. but now we have a lot of additional witnesses who were not even available to us at that time with respect to whose testimony we have the right to challenge Detective Fuhrman's credibility. there has not been any concession by the Prosecution that Detective Mark Fuhrman is a liar and that his testimony should be discredited. in fact, with respect to the impeaching witnesses that we called last week, the Prosecution got up and impugned their integrity, suggesting that they were here to make money, suggested that--that Miss McKinny had some sort of ulterior motives, suggested that she had some sort of relationship with Mr. Fuhrman. so there hasn't been any recognition by the Prosecution that all of these witnesses should be believed in their entirety and we can simply discredit and throw away the testimony of Detective Fuhrman. they still want to embrace Detective Fuhrman. they still want to use his testimony about the discovery of the glove.

The second really remarkable legal proposition we heard in the course of that argument was that in view of what we've already presented with respect to Detective Fuhrman's credibility, we cannot justify getting any more. That is pretty remarkable, that the Defendant has to justify the right to confront and cross-examine a witness against him. I always thought that--that was a given, that was a right guaranteed by the Constitution of the United States. The final really remarkable proposition is that the Prosecution can tell us which parts of this witness' testimony are true, that everyone knows, and which parts are false. I always thought that that was the function of the jury, that we will leave to the jury the question of sorting out what parts of a witness' testimony are true and what parts are false. And the most important tool we have to assist the jury in that process is the opportunity to confront and cross-examine the witness. We don't know what is in the minds of any of those jurors. There may still be people on that jury who were very impressed by how forthright and forthcoming Detective Fuhrman was. That is--that is the last time they saw Detective Fuhrman, when he was on that stand subjected to direct and cross-examination for six days. And remember when he got off that stand what the conventional wisdom was about the credibility of Detective Fuhrman. There may still be jurors who believe that despite all of our efforts to impeach his credibility, he is still a believable witness and who also assume--

You are not seriously suggesting that I should take the, quote-unquote, conventional wisdom into consideration, are you?

Well, apparently the Prosecution is offering your Honor the conventional wisdom in suggesting, well, everybody knows that there is no planting of evidence in this case. Everybody doesn't know that. We certainly don't know it and we don't believe the jury knows it yet either. And we are saying that the risk to us of not recalling that witness and confronting and cross-examining him in the presence of the jury will redound to the Defendant's disadvantage and that is simply not a tolerable resolution of this issue, that they are allowed to use his testimony to rely on it and then foreclose the opportunity to cross-examine, whether by their refusal to agree to the striking of the testimony or to their consent to a limited use immunity under these circumstances.

And we believe garner is directly on point. In garner, too, the witness had been examined and cross-examined and the prior testimony that was presented, because of his unavailability by invoking the 5th amendment, was both the direct and the cross-examination presented at the preliminary hearing. So it is an identical situation to what we have here, and it was the invocation of the 5th amendment privilege that precluded the Defendant from confronting and cross-examining that witness at trial. And the court said that is just not acceptable to allow the Prosecution to say we want to use this evidence to convict the Defendant and send him to jail for the rest of his life and we want to keep our options open to prosecute that same witness for perjury for the testimony that we are relying on. With respect to the suggestion of waiver, there hasn't been any waiver here, your Honor. We are pursuing every potential remedy that the court has available. The fact that we were willing to accept an instruction last week, in lieu of pursuing our right of cross-examination, does not foreclose us from insisting on that right when the instruction has been denied and we are left back with square one again, a witness that the Prosecution wants to rely on that we have not had the opportunity to fully confront and cross-examine as guaranteed to us by the constitution of the United States and the state of California.

All right. Thank you, counsel.

Your Honor, in light of the fact, I just want to cite cases to the court because we have not been allowed to--we had fifteen minutes' notice. We were not allowed to file moving papers in this case. I just have some cases to cite to the court.

Cases.

People versus Cooper.

Is that the Kevin Cooper case?

Yes, I believe so.

53 Cal. 3D 771 for the proposition that the confrontation clause guarantees an opportunity for effective cross-examination, not cross-examination, that is effective in whatever way and to whatever extent the Defense might wish.

What other case?

People versus Superior Court, Piedrahita, P-I-E-D-R-A-H-I-T-A, 34 Cal. App. 4th, 508, for the same proposition. And Delaware versus Van Arsdall, A-R-S-D-A-L-L, 475 U.S. 673.

All right. Thank you. I'm familiar with those cases. With respect to the first request to strike the testimony of Detective Fuhrman as it relates to his discovery of the Rockingham glove, I find that prior to the arguments--the submission of the arguments concerning the request for a jury instruction that that request was waived. Assuming the waiver that--notwithstanding that waiver, assuming the Defendant has the right to renew the request subsequent to the action by the Court of Appeal, I find that with regard to the issue presented and most forcefully argued, that is, regarding the issue of the discovery of the glove, that Mr. Fuhrman was in fact cross-examined with regard to that specific issue, there was a full opportunity to cross-examine him over six days. The motive to--excuse me. The Defense was aware of the comments of Miss Bell. Detective Fuhrman was cross-examined as to the allegations made by Miss Bell and there was in fact the full and complete opportunity at that time. As to the request that the court order the Prosecution to grant use immunity, the court finds that the facts and circumstances in garner are very unlike the facts and circumstances in this case. In that case the sole evidence that was presented of the Defendant's guilt was the preliminary hearing testimony that was presented because the witness was no longer available, having claimed the 5th amendment privilege. Here the situation is, is that Mr. Fuhrman was subjected to cross-examination, direct and cross-examination over a six-day period. His testimony encompasses six full volumes of this court's transcripts. He was ably examined and cross-examined. Garner is distinguishable. The court finds no other authority for the proposition that this court can either on its own grant immunity or direct the prosecuting agency to do so. With regards to the request to recall Detective Fuhrman, the court has previously ruled on that issue. That ruling will stand. The court has previously ruled on giving a jury instruction. This court's ruling on that issue was overturned by the Court of Appeal. I have no authority to go beyond that. And with regards to the declarations against interest, that is a renewal of that request, and the court's previous ruling will stand for the reasons previously stated. All right. We will stand in recess until one o'clock.