All right. Next witness. Next witness. All right. Ladies and gentlemen, let me ask you to step back into the jury room for just a few moments.
Your Honor, I'd just like to serve on Prosecution and to the court a letter memorandum with respect to a request for sanctions for failing to disclose or permit the creation of contact prints, and we have a proposed instruction that we would like the court to give to the jury on this matter.
Now that the testimony of Mr. Rokahr has been completed and the factual record is complete, we think it's very plain that, as indicated in our Brady motion, what the problems are here, and I'm sure the court is familiar with the discovery problems we had.
Yes, your Honor. The next witness--I think I indicated to the court again that--and I would reiterate this again--that what I would like to do, if the court would allow us to, is to allow us to argue our motion for reconsideration on Miss McKinny, my motion for reconsideration to your Honor prior to calling McKinny plus a couple other motions because it bears upon what we are able to do if you change your mind at any particular. And we would like to play a tape for you of what you're allowing us to play for the jury as far as Fuhrman's words. We think it's very relevant before McKinny is called. And then I want to reiterate again and ask your Honor to read the transcript at page 18899 because, as I said before, given Bailey's question, Mr. Bailey's question, which is very specific, we have an absolute right it seems to me to impeach Fuhrman based upon this. This is the only witness on our Defense list that can testify that Fuhrman used this word in addressing him as an African American. So it's not cumulative at all. And what I would like in the best of all worlds, for you to listen to the argument regarding McKinny, let us call McKinny, let us play what we're going to play on that and then call Hodge. If your Honor rules that this is permissible on Hodge, then I would go ahead and call Hodge now and then take the rest of the day dealing with McKinny. But I would like--if you say we can put our case on the way we want to, I would like to deal with--I'd like to get a ruling from you on Hodge, deal with McKinny, call McKinny and Hodge. But if you want to get more testimony on before this jury, I would then move Hodge up for this limited area we're talking about. And I'd ask you to read this page 18899. I think it's very controlling and very compelling and he is the only witness we have, the only African American we have who can refute Fuhrman's insistence that he never addressed any African American with this word, the only one. Everybody else is white.
Well, I think we've spread enough venom around for one day and for one trial, Judge. As I've said before, we have not challenged, we did not challenge the earlier witnesses' assertion that Fuhrman used these epitaphs and just reflect on the things you have allowed this jury to hear as they relate to Fuhrman's racial animus. And I'm sure the court noted that throughout that testimony, each of these jurors, they were writing like crazy. It seemed as if they wrote down each and every word, as if they hung on each and every word. And at some point, you know, I think the court has to remember--and I'm sure the court does--that we have a right to a fair trial just like this Defendant, okay. We have gone way too far, way over the mark in this I believe. The epitaph was uttered, considered in context in which it was uttered and which was heard by this jury, your Honor. What more can they want? I think McKinny is cumulative at this point, especially on an issue like this, which is collateral. And if the court disagrees that it's collateral, then it's only marginally beyond being collateral. At any event, you know, we can't be allowed to turn this trial into the trial of People versus Fuhrman or rather Cochran versus Fuhrman or Simpson versus Fuhrman or whomever--Bailey versus Fuhrman. We've heard this word thrown around throughout the courtroom today. I've heard that term more by Mr. Bailey than any other white individual I've ever heard it from in my entire life, and I'm sure a lot of people--
Well, Mr. Darden, why don't you address the legal issue that Mr. Cochran raises; that the only African American that has been proffered at this point is Mr. Hodge to say that, "I'm an African American who was referred to by Mark Fuhrman in this manner," although the record thankfully to this point is color blind as to who's who and what's what.
Well, now we know. I mean, I think now the record indicates that everyone before Mr. Hodge was Caucasian. And the Defense chose the order of their witnesses. They knew apparently--well, I noticed, I'm sure they noticed the racial make-up of each witness they called today. Do we have to have a certain number of witnesses from certain ethnic or racial groups? Having chose the order of witnesses that they selected, to come to the court now and say, "Hey, we need to have an African American testify to this" I think is unfair. I think it's unnecessary. I think it's cumulative. As I said before, the words came in. We let them come in, Judge. We didn't fight it. You know, we fought our battle under 352 and in 402's and before the court, and when it came time to present this testimony before the jury, we let it come. This is enough. There is still the issue of the mini trial of Mr. Hodge, and it's going to take I believe well beyond this afternoon. If Mr. Cochran is 20 minutes with Mr. Hodge, we will be here until 5:30 on cross.
Well, why would you do that? Why would the Prosecution do that? Why wouldn't the Prosecution just say, "Gee, Mr. Hodge, you found it insulting? Gee, that's horrible. Thank you very much. Goodbye"?
I understand that. But given what you're dealing with at this point--but I'm more interested in Mr. Cochran's proffer that this is the only African American who is going to be offered who is going to say that, "Mr. Fuhrman referred to me in this way, under these circumstances."
Well, as my colleagues have pointed out to me, if he was so important to the Defense, why then didn't they call him earlier? I mean, you mentioned to the Defense and have over the past several days the issue--the 352 issue as to whether or not some of this testimony is cumulative.
I have given them pretty good warning that at some point in time, it will be redundant.
Yeah. You know, you put me in an awful position when you ask me to argue to you why an African American shouldn't be allowed to testify in front of this jury, Judge.
KEY QUOTEWell, Mr. Darden, sincerely, I apologize to you for putting you in that position. But you're a professional. I--you know, you and I have known each other for years and years and years. I know you've up to it. I know that I--this think is a tremendous burden that's placed upon you and I don't envy your position, but nor do I envy my own.
KEY QUOTEYou know how it feels. But I would say this. That I have some doubt that what he says occurred, and so I feel ethically and morally bound to cross-examine him on those issues. But there are issues of whether or not he was arrested and acquitted and all kinds of other things, on whether Fuhrman is the arresting officer or the transporting officer. There's all kinds of issues that have to be dealt with, your Honor. Then we have to call other people to follow up on this stuff. I mean, you know, Marcia Clark and Cheri Lewis and I, you know, we don't like these words, you know--
Well, let me ask another interesting question. Mr. Cochran, do you have an arrest report to support this incident?
No, I don't, your Honor. I don't have an arrest report. I talked to this witness. He has a lawyer who is present and--
Do you have a court file that--you said that there was a--that the subsequent arrest and Prosecution resulted in an acquittal?
No, I don't have it. I have the Defendant himself who said he was a former Defendant, that he was arrested for--
No, I don't. I have the Defendant, former Defendant, and the lawyer himself, your Honor.
No. His present lawyer. He now lives in another state. He's been out here for over a week. Can I respond just briefly, your Honor?
All I have is a couple pages of an arrest report indicating Fuhrman as one of the arresting officers.
This report is not dated and Mr. Hodge is listed as an outstanding suspect in the report. He's not listed as having been arrested.
Can I explain to the court my understanding of what happened here? As I understand it, officers other than Officer Fuhrman observed Mr. Hodge sell cocaine to a gentleman named Thompson.
Your Honor, I object to that because this man was acquitted of that and it's unfair to him to say that in court. This man was acquitted and I think that's unfair.
And he has been acquitted. If I could just continue. That was the allegation. The officers moved in to arrest Mr. Hodge and Mr. Thompson. Mr. Hodge fled. As he fled, he apparently encountered Officer Fuhrman, knocking Fuhrman to the ground. Hodge got away and was listed as an outstanding suspect on this 11352 arrest report. Mr. Thompson and Mr. Hodge were later prosecuted and Mr. Hodge was acquitted of the narcotics sales. Officer Fuhrman did not testify in the narcotics case because he was not a witness to the alleged transaction, okay. So that Mr. Hodge was acquitted at trial on the narcotics violation is irrelevant. In fact, Mr. Fuhrman was not listed as a witness by the Prosecution in that matter.
Yeah. It was an arrest warrant situation. This transaction, the narcotics transaction occurred on January 10 as I recall. He was arrested on the 13th.
And, Mr. Cochran, it's then at that point in time it's alleged that Detective Fuhrman said to Mr. Hodge, "Aha, I told you we'd get you."
Yes, your Honor. May I put it in perspective for you? What happened was, Mr. Hodge knew Mr. Fuhrman very, very well. He stopped him over 20 times, harassing him, messing with him, and he had called and made complaints about it. They would stop him all the time. Stopped him once on a bicycle. Stopped him on this occasion. He never knew it was Fuhrman that he ran into. In fact, he was charged with battering a police officer. Now, don't you think if they could make that case, that he ran into this officer intentionally, he would have been charged with a crime? That charge was dismissed. That's what happened. When he arrested him on this occasion and he had him spread eagle in an alleyway, and Fuhrman and his partner walked up and lifted him up by his handcuffs and took him and put him in their car, took him to jail and turned back and said, "I told you I would get you," so and so, with a racial slur. And then when he--so I mean, it's absolutely clear. They can try to hide all this. They can ask him whatever they want to ask. But this is the one witness that we have who has been confronted by this man, who had contact with him, who can testify, your Honor, to how this man acted in the streets vis-à-vis him. And I agree it's irrelevant and immaterial what happened at the trial. I don't plan to bring out he was acquitted unless they want to go into that. I don't want to go into that. I told you what I wanted to go into, your Honor.
Wasn't that offer of proof different from the ones we've heard so far? We've heard so far something at the jail and something in the car. Now, we have something at the scene where he's lifted up--
No. My understanding of the material aspect of the offer was that at the time of the arrest, while in the car, while in the police car, while Mr. Hodge was back in the custody section of the patrol car, Detective Fuhrman turned to him and said, "I told you we'd get you," et cetera. That's the offer of proof that I heard thus far.
Then there's the matter of his numerous contact with law enforcement, and doesn't appear all those contacts involve Detective Fuhrman. Those are issues to cross-examine him on. The 20 to 25 contacts that Mr. Cochran has alluded to today, there appears to be no record of all of those contacts between he and Detective Fuhrman.
Well, that may become germaine in impeachment. Then we turn into the trial of Mr. Hodge.
Yes. So we can get right to this. We're trying to get this testimony up, your Honor. Since we began our case six weeks ago, they've objected to every witness we've ever called. This is nothing new. We made you the offer of proof. We spelled it out as much as we can. They have what we have. I can't control what they do in cross-examination. We welcome their cross-examination. We welcome to spend the next couple hours with this jury if they want to do it. The relevant portion is this witness they're trying to protect refer to this man by the "N" word. It's inappropriate. He's an African American. We should have the right to do that. He's the one witness, and it goes directly to impeach what he said to Bailey. And the other things, I'm not that worried about. The other trial, I'm not worried about. We're trying to cut through this and get to McKinny and get to the end of this case, Judge. That's all we're trying to do. And I indicated to you in the best world, you give me a ruling, I could do this and I'd have Hodge come after her because we want to make certain points to you on McKinny. But as I said, I would be willing to be governed by what you would order in this regard.
Let me address that. Yes, I could have called Hodge. They said why don't we call Hodge. I was going to call Hodge on Friday. And then you'll recall, your Honor, you started talking about cumulative, and that's why I specifically got this particular excerpt from the transcript, to point out to your Honor exactly why this is relevant. Yes, we had Hodge here. Hodge came here from Chicago, Judge. He's been here like over a week because we don't want to run out of witnesses. Yes, we could have called him. We could have called Singer. We could have called Terry. But the court did indicate to us at some point this would become cumulative. And as you recall, we listened. And so we're trying to fashion this in a fashion now so it's no longer you think it's cumulative and redundant so we can resolve this point. These are the last two witnesses in this area. Hodge stands by himself, and you know the situation with McKinny and we need hearings before we get to McKinny.
Judge, are you going to let Miss McKinny testify that he used the word 41 times? Now--
Judge, can I say something? This is their witness. We didn't make this up. This is their witness. So now they're stuck with it. Can't we just get this on and stop all this whining? Let's get it over with, can't we?
Wait, wait, wait, wait. All right. You propose to present Mr. Hodge, and then you want to argue the motion on the scope of McKinny?
Yes. And the motion for reconsideration that I think the court is aware of which all ties in. And then we'll be ready to proceed on that. And I think you got our papers. They filed something. And that's it. I think that will take us to the end of the day.
Judge, if they insist on going on with this racial business, I think it would only be fair that the court require them to call McKinny now so that we can then take up the 352 issue again as to Hodge. I mean, at some point, it is cumulative.
Well, we have argued already. Now they want you to reconsider the past arguments, the P's and A's and proffer and submissions.
See, they're gambling too that I'm not going to find McKinny cumulative at that point since I haven't heard Hodge.
Judge, you just heard me say however--did you hear me say, however, the best of the situation, I want you to rule on Hodge and I wanted to call McKinny first. I said that very clearly, your Honor. So it's not much of a gamble if I get the ruling, we'll move ahead. I pared it down. We're trying to try this case and get it over with. That's it.
Because the court will recall why I said that in the beginning. Because I said that once you gave us the ruling, we'd know how we finish out the day and be ready to come back tomorrow, whatever we got left, and that this would make it a lot easier, because I said, if you felt this jury needed to hear something else, I would move Hodge up if you felt that. But in the best of all worlds, I wanted Hodge after McKinny. I thought I made it very clear. I said that a number of times, your Honor. I would like to be able to proceed, your Honor.
Judge, this is all collateral. Isn't genocide enough? Isn't having witnesses testified that Mark Fuhrman--
Well, counsel, would you do me one favor though? The argument, the only argument that Mr. Cochran has made that has any merit to it is the fact that Mr. Hodge is an African American. This is--and this is the only individual that they have proffered to whom this was said by Detective Fuhrman.
And the probative value, the fact that Mr. Hodge is African American is what given what we have heard already? Okay. I think it would be apparent to the jury that Mr. Hodge is included in all of the--in the genocide and all the other things that Detective Fuhrman allegedly said and was testified to here in court. Okay. What is the probative value of that?
May I answer that, your Honor? The probative value is that it's directly impeaching of Detective Fuhrman. I want to deal with this on a legal basis. All this emotion kind of goes by the way side. This is impeaching of their witness, and that's all we're asking to do, your Honor. It's impeaching, and you can cut right though the chase and to the argument issues here, and that's the issue. We have a right to do that. And that's all we're asking to do. I would just ask you to allow us to do it after McKinny however.
All but. All right. My inclination at this point, because it is a statement that is directly contradictory, what was testified to, is to allow that statement in the police car period. The fact of the arrest, fact of prior acquaintanceship, prior contacts upon the arrest in January of `87 in the police car, this statement was made period. All right? That's the ruling.
KEY QUOTEGiven that, can we now argue the motion on McKinny, save some time? We would like to proceed with Dean Uelmen with regard to Miss McKinny.
All right. Do you have your package on Hodge, Mr. Darden. I'm addressing Mr. Darden. Do you have your package on Mr. Hodge?
We also had your representation, Mr. Cochran, you were going to call McKinny. So let's go with McKinny. I'm not going to wait for them to bring down all their boxes.
I've heard that term more by Mr. Bailey than any other white individual I've ever heard it from in my entire life.
You know, you put me in an awful position when you ask me to argue to you why an African American shouldn't be allowed to testify in front of this jury, Judge.
Well, Mr. Darden, sincerely, I apologize to you for putting you in that position. But you're a professional. I--you know, you and I have known each other for years and years and years.
I guess today is race day.
My inclination at this point, because it is a statement that is directly contradictory, what was testified to, is to allow that statement in the police car period.