I'm sorry to interrupt, but has the court had the opportunity to read the brief that I filed in response?
I would like to start with, we don't have a message from God, but a lot has happened since somebody tried to deliver that message this morning, and I think we need to look at this issue in the context in which the court must now address the testimony of Miss McKinny, and that posture is very different than it was even yesterday. As the court initially approached this problem, it viewed the Defense's attack on the credibility of Detective Fuhrman--
All right. We now, your Honor, have five counts of perjury. Detective Fuhrman not only testified that he had not used the word, the "N" word in 10 years, but he also testified, your Honor will recall, that as soon as he got the word that robbery-homicide was taking over the case, he went and waited on the street. We now have testimony from Mr. Rokahr that after that call would have come in about robbery-homicide taking over the case, Detective Fuhrman is guiding the photographer through the crime scene. Your Honor will also recall--and this is count 3--that Detective Fuhrman testified that before he went to the Rockingham scene, the closest he got to the physical evidence surrounding the bodies was standing on a landing looking down at them, and he testified that another detective pointed out to him where the glove and the hat were. That your Honor appears at pages 18134 through 18136 of the transcript. Count 4 is that Detective Fuhrman testified under oath that the photograph depicting him kneeling in the midst of the crime scene pointing to the hat and the glove with his finger inches from the glove was taken at 7:00 A.M. after he had been to Rockingham and returned to the Bundy scene to compare the gloves and see if the Bundy glove was similar to the glove he allegedly had just discovered at Rockingham. And that testimony appears at 18369 through 18371 of the transcript. And count 5 we would contend is the inconsistency between Detective Fuhrman's description of the door of the Bronco when he said he saw a second stain with four brush marks and the testimony of criminalist Fung who testified that the only way you could observe those brush marks was if the door of the Bronco was open, contradicting Detective Fuhrman's testimony that he had never opened the door of the Bronco or been into the Bronco. Now, the significance of all of that is that when we talk about the credibility of Detective Fuhrman, what motive would he have to lie about how close he got to the evidence in this case? What motive would there be to try to cover up the fact that this photograph was actually taken earlier in the morning hours shortly after the photographer arrived and took the setting shots that here we have indisputable evidence of Detective Fuhrman kneeling in the midst of the evidence with his finger inches away from the glove? Why would there be any reason to lie about that except to try to disguise and conceal the access and the opportunity that Detective Fuhrman actually had. Now, I think that's important because your Honor was deciding this motion with respect to the Laura McKinny tapes based on a false premise. And the false premise was the argument by the People that there's no way this could have happened because someone was with Fuhrman every minute. He didn't have access to the evidence. So there's no way he could have physically picked up a glove and taken that glove to the Rockingham premises. I think the other false premise of the court's ruling was that the Defense theory is simply to prove that Detective Fuhrman moved a glove from one place to the other in order to frame an innocent man. And that, of course, has never been our contention. We don't of course have the burden of explaining how that glove got to Rockingham, but we are certainly contending it didn't get there by O.J. Simpson transporting it there. But the motive for a detective to bring evidence from one scene to another may have been other than simply a conscious effort to frame an innocent person. It may have been simply to take probable cause with you when you go to a scene so that you will be sure to be able to get a search warrant, you will be sure to be able to search for all of the evidence that you think you might find if you have already come to the conclusion that you got the right suspect. And that is why we believe that the words of Detective Fuhrman on those tapes are so critical and so relevant and so essential to the Defense theory of the case, because on those tapes, you have Detective Fuhrman claiming the ability by instinct to determine who is worthy of being arrested and convicted of a crime. You have him admitting that on occasion, he himself has made up the probable cause necessary to carry out an arrest. You have him describing how he believes a police officer should act immediately on his instinct and then make up the reasons later. And we believe there is ample reason in this record right now to believe that that is precisely what happened in this case, and we have a right to confront Detective Fuhrman with these statements by him in terms of the way in which he went about getting probable cause in other cases.
KEY QUOTEThat's a completely different argument, counsel. Whether or not you have the right to recall Detective Fuhrman and confront him with these things? That's a different issue.
Well, I take it then your Honor's ruling--and this is one point of clarification that will be very helpful to us. Your Honor's ruling does not preclude us from questioning Detective Fuhrman about the information on that tape when we get him on the witness stand.
All right. Thank you. That's a very helpful clarification. With respect to the portions of the tape that your Honor indicated we can play at this point when we call Miss McKinny to the stand, your Honor indicated that we could elicit that the epitaph was used 41 times in the period 1985 and 1986. I believe your Honor may have misspoke in the order because the evidence is that in 1985 and 1986, the epitaph was used 35 times. Six of the uses of the epitaph occurred in 1987 and 1988.
The problem I have with that factual assertion is the labeling on the tapes themselves.
I believe the testimony of Miss McKinny at the 402 supported that, that the tapes from which we have five of the--of the uses of the term were made in--well, was made in 1987 and the transcript in which we have the 41st use of the term was in 1988.
So what we would like to do is elicit that the term was used 41 times between 1985 and 1988. The single tape that your Honor selected that the jury could hear of Detective Fuhrman actually uttering the epitaph--and I don't know whether this was accidental or your Honor consciously tried to find a tape where Detective Fuhrman's voice would be least recognizable or least legible, but--
Well, that's what we were trying to figure out. But that is the fact, your Honor. Of the one incident that you indicated we could use the tape, the voice of Detective Fuhrman is lost in a clatter of background noise and it truly is of the 40--well, of the 18 or 19 that we have on tape, really the least legible of all of them. And we have some alternatives that we believe are no more inflammatory, no more prejudicial than the one that your Honor selected in which the voice can be heard much more legibly, and we would ask your Honor to seriously consider allowing us to use an alternative to the particular item that you selected just for purpose of--
We have a tape, your Honor, with the alternatives available that I think we can play in like five minutes so your Honor would have an opportunity of seeing--
Well, tell me which one they are. Since I've been over these things several times, I'll recollect which ones they are.
Well, these are four alternatives in which the voice can be much more clearly heard than in the alternative that your Honor selected.
And what is the text in your transcript for 17--17 and 18 my recollection were a dual usage in a single passage, correct?
17 would be the--practicing his martial art movements, the term is "Niggers, they're easy. I used to practice my kicks." 18, "Don't they think they are physically capable? They can arm wrestle six foot seven inch N's." 26 would just be the first two lines, "Westwood is gone. The "N's" have discovered it when they start moving into Redondo and Torrance." And that would be all we would use. And 27 is discussing female police officers. "They don't do anything. They don't go out there and initiate a contact with some six foot five "N" that's been in prison for seven years pumping weights." On all of these, the voice of Detective Fuhrman is recognizable, the use of the term is recognizable, and we don't believe that either of those facts are true with respect to the single taped incident that your Honor previously indicated we would be allowed to use. The final point I want to make then--I know your Honor has read our papers and seriously thought about the scope of your Honor's ruling--is the extent of eliminating all but use of the word when the context in which the word is used itself reflects the racial animus. And we believe that even if Detective Fuhrman had never been asked, "Have you used the "N" word in the last 10 years," even if that question had never been asked, even if he hadn't lied about it, the facts of his racial animus would still be admissible to challenge his credibility. And by sanitizing these tapes to remove the racial animus, we are depriving the jury of evidence that it needs to assess the weight that should be given to his testimony. And I think it would be quite reasonable for a jury to look in terms of what weight they're going to give to a person's testimony. And here we're talking about all of his testimony, his testimony about entering the Bronco, his testimony about what he did at the Bundy crime scene before he went to Rockingham. All of his testimony. They are going to look at someone who is a virulent, spiteful, angry racist differently than they're going to look at someone who is a casual racist, who is not animated and motivated.
But given the testimony of Miss Bell who said that it caused her to almost--to break into tears, that he was angry and he said it in a very aggressive, hostile, arrogant way and Miss Singer's testimony which was even more graphic in describing the tone and demeanor of how it was said, haven't we established that already?
I don't believe we have, your Honor. I don't believe we have even plumed yet the depths of the hatefulness and spite of Detective Mark Fuhrman. And until we do--
The issue here is whether or not the jury has sufficient information to put this man's credibility in appropriate context. That's the issue.
Well, it's more than just a question of credibility. It's a question of what weight they will give to his testimony. And we believe that that is a quantitative as well as a qualitative judgment, and what we are doing really is depriving the jury of the quantitative portion of it. We are depriving them of really getting a flavor that we got from listening to those tapes of how trustworthy or how credible this man is.
Now, Dean Uelmen, why don't you anticipate the argument is going to be that no facts have changed. That the--for example, the photograph of Detective Fuhrman, it's apparent that it appears to be nighttime. I mean, that's something that was known to you or should have been known or should have been easily discernible based on what the photograph was and how it is depicted.
What we were given at the onset of this trial was a stack of photographs without any order, without any indication in what order they were taken. Many of them were flash photographs, and you can't necessarily tell just by looking at a flash photograph whether it was taken at day or night. I think on close examination of this photograph, there are indications that someone whose clued in or tuned in to that--to that problem can tell. But the--when you look at the sequence of the contact print, it's overwhelming the significance of depriving us of the opportunity of seeing these photographs in sequence. And that's why we're asking for sanctions and we think very serious sanctions are warranted. Your Honor was actually deprived of the information you should have had before you even considered the admissibility of the McKinny tapes because this evidence had not yet even been produced at that time. It was only when it was to the convenience and to the benefit of the Prosecution to put contact prints together because their witness from the FBI asked for them that we ever had the opportunity to see the sequence of these photographs. That is a cover up. It is a cover up of perjured testimony in this case. That's the only way to look at it. And we were deprived of that information until one week ago when we saw those contact prints for the first time even though we had asked for those contact prints months ago at the outset of this trial and were told it was impossible, they could not produce contact prints. We believe that evidence is highly significant not only to your Honor's ruling, but, of course, to the credibility of Detective Fuhrman.
We're about neck deep in rhetoric hyperbole. I'm not going to add to it, but if you can call a contact sheet evidence of a cover up, I guess you can see where the Defense argument is smoke and mirrors and a lot of hot air and a lot of big talk and a lot of nasty accusations that aren't backed up with evidence. What we have here in these contact sheets is nothing more than they've already had throughout this trial. Those photographs, your Honor, all have numbers stamped on them. The sequence is shown on the photographs themselves. You can't miss it. I mean, that's how I was able to sequence them.
I got a stack of photographs in the beginning of this case that I had to sit down and put in sequence, and I did it by looking at the number that's stamped on the lower right-hand corner of each and every photograph that they have and that we have. And nothing's being covered up. There's nothing hidden. They've always known the sequence of these photographs. If they couldn't figure it out, they could ask us. I could tell them. There's a number on the photograph. It's very simple stuff, you know. There's nothing to get all excited about, a conspiracy. We didn't go and black out the numbers on their copy, your Honor. We wouldn't have had time. Who would want to? They have them. They have all that information. Look at what you've got. I can give it to them. I can't make them read it. The bottom line, they've had it now for over a year, and now they're complaining they didn't know how to put them in sequence. I hope that's not what they're arguing, but that's the value of the argument that you're getting here. Now, they wanted a contact sheet. They get it. It adds no new information. And that this is a cover up is ridiculous. It is absurd.
Mr. Uelmen stands up and argues out of both sides of his mouth simultaneously. What a feat. He says that you cannot really tell when pictures are taken with a flash whether it's during the daytime or at night, but except in these two last ones with Detective Fuhrman, you can really tell. Oh, come on. If you can't tell, you can't tell. That's the bottom line. And me, I look at the photographs, the last two in the roll, it's very apparent what happened here. Rokahr was at the scene for quite a long time. In-between his overalls, he took the first 33. They are all overalls of the general scene and none of them are specifically of any item of evidence. It is not until much later when Detective Fuhrman gets back and does as instructed by Detective Vannatter, to go look at the glove and see if they look like a match pair, that he goes over and points it out. Now, he's not the only one who testified to that. Officer Riske said that just before he got off duty at 7:30, he saw Officer Fuhrman come back from Rockingham, take the photographer over to the scene and move the bush back so he could point out the evidence. And that area happens to be dark with foliage as Rokahr testified. There's no big mystery here and not--rudeness of counsel or not their unfounded allegations will change the truth.
KEY QUOTEThere is no--I'm sorry. There is no legal provision for motion to reconsideration in criminal law. That is only in civil law. It is recognized in civil code of procedure section 1008, and what they require in civil law is that the parties seeking reconsideration show newly discovered facts. In this case, we have no newly discovered facts with respect to the motion for reconsideration of Laura McKinny.
But doesn't--don't the--doesn't the case law dealing with that particular code section include criminal cases; if you shepherdize that, you come up with some criminal cases?
We did. I don't believe none were found, your Honor. I didn't--we don't have any in our motion, which leads me to believe that no, there aren't any criminal cases under that section.
You asked me that question because you knew Miss Lewis wrote this motion, huh? But no, as far as I know, there are no criminal law cases that involve that section because it's not recognized in criminal law. So I mean, at least in theory, we didn't have to have all the argument.
Never mind. There's a rule in the civil procedure that an unfounded motion for reconsideration is the subject of sanction. Just an aside. Not relevant to this situation.
Oh. You saw my motion coming. But with respect to this particular case, they don't have newly discovered evidence to point to, your Honor. The contact sheet doesn't qualify. That contact sheet has nothing--is nothing but a collection of the photographs they've had for a year and three months. So we have nothing new that has been offered to this court. We do have, however, as I've indicated to the court earlier, Officer Riske testified that he saw the photograph being taken at 7:00 A.M. shortly before he got off duty. Mr. Uelmen poses the question why lie about the time. Well, that's to cover up. If that's to cover up the ability or opportunity to conceal or move evidence, then why is he standing there in the photograph pointing to the evidence? I mean, isn't that the stupidest thing you've ever heard? "Hi, mom, you know, I'm going to move some evidence now." What is this? If he's trying to hide himself and conceal himself, then you certainly do not get close to the evidence. You don't step into the scene. You don't stand there and point to it. You stay way back in the shadows. That's not what he did. That's clearly not what he did. He was working. He was doing as he was told. Detective Vannatter told him what to do and he did it. It's very, very clear what happened and all of these nefarious implications that they're seeking to draw from very minor things, you know, that in no case would you ever see anyone try to make as big a deal as they have about a contact sheet. It doesn't mean it's so just because they keep saying it, your Honor. It's nothing more than the barest of allegations. That's all it is. They have nothing to back up any of this stuff, just like they have nothing to back up the motion for reconsideration. And in this case, you want to reconsider something, let me ask you this. You've allowed Miss Bell to testify to the utterance in 1985. You've allowed Miss Singer to testify to two very ugly utterances in 1987. Now, you propose to allow for Mr. Hodge to testify, although I concur with mr. Darden, I do not think that he adds any probative value to the nature of the impeachment which is concededly collateral at best. He adds nothing to them. If that's the state of the record, why are we allowing McKinny at all? She will do nothing more than reassert that at the relevant time frame that the Defense has established, `85 to `87, he used the racial epitaph. Now, isn't her testimony, McKinny's testimony, wholly cumulative at this point? We have gotten from two women and a man who happens to be African American that the racial epitaph was used. So now they've established that he uses it to talk about African American people and he uses it to address African American people directly. What more can you do to impeach? I mean, what can you do? They'd like to be doing it for the next two years if they could. But what is appropriate in this trial? You know, the court has ruled that at a certain point, it gets collateral. Well, we submit that if the court does allow Mr. Hodge to testify, it will then be completely collateral because Miss McKinny will truly be cumulative on every issue whether he uses the word in speaking of or when he addresses in speaking to. In fact, in some sense, Miss McKinny is impeaching because she has him speaking to an African American man and never using the word. Nevertheless, your Honor, that is now truly cumulative. What is the point in Miss McKinny? The People would urge this court yes, to reconsider. Please do. Reconsider that Miss McKinny is now not needed based on newly discovered fact that Mr. Hodge will be allowed to testify. Mr. Hodge will be allowed to complete the picture for them, a very ugly picture that really has no bearing on this case. And it's unfortunate that we have to paint that ugly picture for this jury again, but I cannot not see how this would possibly add any information that is relevant to the picture that this jury has of this case.
Mr. Uelmen is right in a sense. You know, they will view Mr. Fuhrman as a racist--I cannot imagine arguing differently to this jury--and they will put his credibility in its proper perspective. If they have their way, however, Mr. Fuhrman's attitudes, social attitudes will become the focal issue of this trial, and the fact that he had no opportunity to do any of the actions that they attempt to attribute to him in this case will become irrelevant because the jury will be so inflamed, it will not matter to them any longer whether Mark Fuhrman could or could not have moved the glove. And Mr. Uelmen wants to paint the distinction between a hostile racist and a casual racist. I don't know how anyone can be a casual racist. I mean, that's to me an oxymoron. You know, you can't be that kind of an evil person and be casual about such a thing. It just doesn't happen. They've painted Mr. Fuhrman as being a racist. There's no doubt about it. With the additional testimony of Mr. Hodge, they will have completed that picture, spread enough venom in this courtroom to sink a battleship. We've done it enough, and Miss McKinny is simply no longer necessary after Mr. Hodge's testimony. And we submit to this court that although it was unfortunate that we had to spend as much time as we did outside of the presence of the jury litigating the McKinny tapes, based on the actions of the Defense, the Defense has put us in this posture now, I think that your admission of the Hodge testimony should properly preclude them from calling Miss McKinny. And that's enough, your Honor. That's enough. Yes, the credibility of all witnesses is in issue, but his credibility is a very limited issue in this case, because in point of fact, he could not have done what they're trying to prove he did. So it's for what? It is only collateral impeachment, and to that end, those three witnesses are more, much more than they're entitled to. We would urge the court to reconsider as the Defense has, but to reconsider appropriately not to allow Miss McKinny to testify at all.
The suggestion that the Prosecution was well aware of the sequence of these photographs raises lots of questions in my mind in terms of whether it explains the refusal of the Prosecution to make contact prints available or to make the negatives available from which we could make contact prints. It suggests to me that from the outset of the case, they were aware of the problems that might create--that have been created.
But, Mr. Uelmen, let's take for granted that, you know, data backs on the back of cameras are in common usage. You can pay 40 bucks at Fedco and get a camera that's got one of these things, and it numbers or dates the pictures. It gives you a sequence. I've seen the photographs. They do have the sequences. So it's not the strongest argument. The argument that concerns me the most is Miss Clark's argument that I should reconsider the entire ruling and preclude Miss McKinny in her entirety because now that you have Singer and Hodge and Bell, you've got more than you asked for in the first place.
All right. Let me address that, because obviously the point at which we want the jury to end up is to reject Detective Fuhrman's testimony in its entirety. And as your Honor is aware, the instruction that informs the jury they may do that is, if they find that a witness was willfully false in a material part of his testimony, willfully false means that we not only have to show that Detective Fuhrman was wrong when he said he had not used the "N" word, but that he knew he was wrong, he knew he was lying. And if the argument can be made--I'm sure it will be made and we will hear it from the Prosecution at the end of this case--that why would Detective Fuhrman remember casual encounters with two woman in 1985 and 1986, every iota of evidence that we have that shows the frequency with which he used this term goes to that question of whether he was willfully lying when he said he had not used the word. We believe the fact that he used it 41 times in the course of transcribed tape-recorded conversations and the fact that he was well aware that transcripts and tapes of these conversations were in existence would have gone through his mind at the very moment he uttered the perjured testimony that he presented in this court. So we believe it's not cumulative at all. It goes right to the heart of the question the jury's going to have to resolve of whether he was willfully lying when he presented that falsehood to them. And finally, your Honor, we would like the opportunity to have the court review the alternative tapes that we have available. We believe it's very important for the jury to hear Detective Fuhrman's own words, and we believe that since your Honor has determined that one of these taped excerpts is appropriate, that it should be a tape excerpt that is audible in which his voice can be identified. Can we play the tape for your Honor?
Your Honor, the People did not--we didn't get a chance to address the request to change the excerpts.
Well, I think the argument is over at this point, counsel. Since this is a motion to reconsider, I don't believe that that particular issue is--well, simple enough. In making my original ruling regarding Miss McKinny and determining what should come in, the court's thought process was I think pretty obvious, that the issue was Detective Fuhrman's use of the racial epitaph in a disparaging manner. And in reviewing the 41 offered incidents of that usage, the court wanted to find examples that would not then go on to include other offensive material as well, including physical abuse of other people, some other violent act, that sort of thing. So these were the most sanitized usage of the racial epitaph the court could find. In reviewing this, the court listened to the tapes and then primarily worked from the transcripts in making the ruling. And, Mr. Uelmen, I will concede that in selecting the excerpt to be played, I did not then go back and listen to the quality of the tape. So I will agree that that particular excerpt, the one where Detective Fuhrman discusses why black Muslims live in a particular part of town, that that one is not audible in a real sense. And what the court had sought was an example of where Detective Fuhrman in his own voice makes a statement that is of such color, and I'll use your term, Mr. Uelmen, flavor that the person listening to that that understand and appreciate and evaluate whether or not that was a true statement of that person's true feelings, whether or not that statement--or whether or not that statement was role playing in the context of the screen play and to allow the juror to give to that statement the appropriate weight. I will grant the motion to reconsider for this one particular item. I will substitute excerpt 27 for the excerpt regarding the black Muslims, which number I do not recollect. This is the police officer, female police officer--so we'll get to insult them as well--dealing with six or five suspects. So you can cue that up. We'll take 10 minutes. Have Miss McKinny here.
We now, your Honor, have five counts of perjury. Detective Fuhrman not only testified that he had not used the word, the 'N' word in 10 years, but he also testified... that as soon as he got the word that robbery-homicide was taking over the case, he went and waited on the street. We now have testimony from Mr. Rokahr that after that call would have come in about robbery-homicide taking over the case, Detective Fuhrman is guiding the photographer through the crime scene.
I don't believe we have even plumed yet the depths of the hatefulness and spite of Detective Mark Fuhrman.
Reminds me of the Chinese proverb, be careful what you ask for.
We're about neck deep in rhetoric hyperbole. I'm not going to add to it, but if you can call a contact sheet evidence of a cover up, I guess you can see where the Defense argument is smoke and mirrors and a lot of hot air and a lot of big talk and a lot of nasty accusations that aren't backed up with evidence.
I will concede that in selecting the excerpt to be played, I did not then go back and listen to the quality of the tape. So I will agree that that particular excerpt... is not audible in a real sense.