I'm ready. They are ready. As my moving papers indicated to the court, we believe the evidence is admissible and proper rebuttal for two reasons, the first of which is believe we appended to our motion the transcript sections from the testimony of Kathleen Bell as elicited by Mr. Bailey in which he gratuitously asked her questions concerning the kind of car Mark Fuhrman drove or she believed he drove back when the statements were made. There was no purpose, no legitimate purpose for asking that question unless it was to--other than the one we are arguing they were trying to infer, unless it was to show that she in fact did know him and therefore could identify him. That argument, however, falls as specious because there was never an effort to link up the car she described to any car known to be driven or owned by Mark Fuhrman, which could have been done through DMV records or any other people who knew him at the time, including the police department. No such effort was made. And it is clear that the motivation for asking those questions and eliciting not once, but twice, that she saw him driving a sports utility vehicle, was to have the jury infer that he preferred that kind of vehicle and therefore the fibers could have come from that vehicle. And as the court recalls, Mr. Bailey was the one who handled the hair and fiber evidence with us and is most acquainted with the issues concerning the admissibility of the Bronco fiber study that was conducted by Agent Deedrick. That is on one hand. Secondly, with respect to attack on Mark Fuhrman's credibility, as the court is aware, an all-out attack was launched on his credibility and it has become the cornerstone of the Defense case. Anything in the case in terms of scientific or objective evidence that tends to indicate that the glove was not planted and that he was not responsible for the planting is relevant as rebuttal to that claim. Having found Bronco fibers on the Rockingham glove, and that is key, it is not the Bundy glove, it is the Rockingham glove and that is the one they are claiming was moved, that is key to establish that in fact it was not planted, because the fiber on that glove came from a rather unique source, not just any car, which is what otherwise they could argue, or even any carpet in a house, but a very unique fiber that was made during `92 and `93 and put into `94 vehicles, a fiber whose configuration in terms of the cross-section and the dye formulation was changed later in `94 and had not been made prior to `92. Moreover, this is a fiber in which carpeting was used for only three kind of cars, predominantly for the Bronco, and secondly, and much fewer number, Econoline vans and "F" series trucks, so you have very highly probative evidence found on the glove that could not have been planted that was--that would tend to rebut the claim that the glove was planted by Detective Fuhrman. So we have two independent bases on which to admit this evidence now which makes it proper rebuttal. The People have cited cases to the court as to why this is admissible rebuttal and why it is proper to address this at this time. The court is aware of course that the discovery has been given to the Defense on this, so there is no element of surprise here. The witnesses that would be called to prove this evidence would be two at maximum, three in number, of very short duration; one to talk about the fact that the fiber of this cross-section was made during these years, sold to Masland. Masland representative will say that fiber was put, during these years with this dye formulation, into these cars and that is it, and then Doug Deedrick to say that is the fiber I saw. That testimony collectively for all three witnesses should not take an hour, so we are not talking about an undue consumption of time either, but I do think it is highly probative and certainly important to rebut the claim of any evidence movement by the Defense, especially the Rockingham glove.
Good morning, your Honor. As the court will recall, I believe it was with Susan Brockbank. Brockbank, I asked a series of questions about whether they had checked other vehicles and I asked those questions based on representations that had been made to us by the manufacturer of this fiber, that it was very, very common. Unbeknownst to me that same person, the actual person that we had talked to, had already provided written documentation to the FBI as part of their investigation of the source of the fiber that they title it. It was just completely the opposite. And it was only after that point that Mr. Deedrick came in and brought his paperwork. I asked him a number of questions before he testified to try and find out what he had and he was very, very evasive. Finally the court had to intervene and make him have a copy of his whole binder made, and in that binder is this very, very detailed report where they had done a thorough investigation months before, I think it was a seven or eight-page report, titled "The source of the fiber." And the court, properly so in our view, precluded the Prosecution, because of misconduct, from putting on any of that evidence because it had been held back and not turned over in a timely fashion, prior to our conducting our cross-examination of these witnesses. We were extremely careful after that point to not ask a single question about rarity of Bronco fibers. We didn't ask anybody about that because we didn't not want to open the door. Now, as I understand the argument--well, first of all, I think it is interesting that Miss Clark has argued many, many times that there is absolutely no evidence that Detective Fuhrman planted the glove and now she feels the need to bring this evidence in to show that Mark Fuhrman's carpet fiber is not on the glove. We have never said that. We have never maintained that. The references to his green utility vehicle were--were--it was obvious what the purpose of that was. It was to demonstrate that Miss Bell recognized his car and had seen that same car with him in it on a couple of other occasions. If the Prosecution is concerned that we would argue that the car that Mark Fuhrman drove in 1986 might have a fiber that matched the fiber on the glove, they can put on a witness to say what kind of fiber was in Mark Fuhrman's vehicle. That would certainly solve that problem. That is not the reason they want to do this. They want to do this because they think that is powerful evidence. It was precluded before because of their misconduct and now they are trying to find a way to get it in. This is just a ridiculous argument, and I--we haven't offered any testimony about what vehicle Mark Fuhrman drives. We don't intend to. We would never argue that. That is a ludicrous inference. It is not believable. It is not a justification for putting on this evidence that was wrongfully withheld before.
What do you think about a restriction, if I remain--if I maintain the preclusion, a restriction on argument as to the rarity of the fiber and the lack of evidence of this?
Well, if they are allowed to put on evidence about the rarity of the fiber, then the preclusion--the effect of the preclusion is nil.
Beyond what is stated in the record, I assume is what you mean? We are not going to make any argument that we know is misleading based on the information they have obtained. I have no problem with that. I assume that is what you were suggesting.
Yeah. That is fine. We are not arguing that anyway. I don't want--we don't want to do anything improper in closing that might allow them to come back and ask to have the case reopened. That would be foolish.
I don't know why they are trying to hide the truth. Doesn't the jury have a right to the very best evidence that exists? We have evidence that is very powerful that is further evidence of the Defendant's guilt, and to simply preclude them from arguing that it was Mark Fuhrman's vehicle does not go anywhere near addressing that issue. Furthermore, if there is to be a preclusion in the alternative, your Honor, then the preclusion should include their ability to argue that any police officer's car could have imparted those fibers, because that is in fact the case and that would in fact be the testimony.
KEY QUOTEI accept that. I mean, I assumed that what you were referring to, we would not make the argument that it could have been in his police car. We would not make that argument.
Your Honor, I just think the rarity of the fiber is very probative evidence of the jury for the Defendant's guilt, and I think that given the nature of the attack in this case and the arguments about planting of evidence, it become even more probative, and I think it is evidence that the jury should hear.
All right. Thank you, counsel. The reason for the court's initial preclusion was the failure to disclose the report which included--which gave indicia of extensive investigation as to the source, nature and rarity of that particular fiber. That information was not turned over during the course of discovery as required. The court felt that preclusion at that time was the appropriate sanction. The proffer at this time is that Kathleen Bell testified that she observed a pea green utility vehicle at the Marine recruiting station at a time that coincided with Detective Fuhrman's presence at that location. She then testified that she Detective Fuhrman in a business establishment in that same general area, on another occasion also saw the same pea green utility vehicle at that location and chose not to enter the location, fearing that Detective Fuhrman was again there and not wanting to reacquaint herself with him at that time, given the nature of her testimony. These events occurred in 1986. There was no contemporaneous testimony indicating that Detective Fuhrman had any contact with the same vehicle. The testimony was that Detective Fuhrman drove to the Bundy location in a police vehicle with Detective Phillips. The proffer has no probative value and the court's previous ruling stands. All right. Let's call our next witness.
I don't know why they are trying to hide the truth. Doesn't the jury have a right to the very best evidence that exists?
It was only after that point that Mr. Deedrick came in and brought his paperwork. I asked him a number of questions before he testified to try and find out what he had and he was very, very evasive. Finally the court had to intervene and make him have a copy of his whole binder made.
I don't want--we don't want to do anything improper in closing that might allow them to come back and ask to have the case reopened. That would be foolish.
The proffer has no probative value and the court's previous ruling stands.