And I think an appropriate place to begin is with the legal standard to be applied in terms of the impact of newly discovered evidence. And we believe that the leading case on this question is People versus Ramsey cited in our brief at page 7, which quite clearly holds:
"Where additional evidence is presented, the findings of the magistrate to the extent they are affected by the additional evidence are not binding on the superior court. This allows the superior court to exercise its independent judgment on issues on which additional evidence is introduced." The additional evidence that we wish to introduce relates directly to the credibility of Detective Mark Fuhrman. And our position quite simply is that your Honor, in considering this evidence, is not bound by whatever findings were made with respect to Detective Fuhrman's credibility in the municipal court, but that you are to exercise your independent judgment on the issue of his credibility. Now, the Prosecution has contended that what we are offering with this additional proffer is simply evidence going to his general credibility. And I want to point out to the court the very clear relationship between the portions of the McKinny transcripts and tapes that we are proffering as new evidence on the credibility of Detective Fuhrman and the testimony that he presented on the motion to suppress. And I think it's fair to call the court's attention to the fact that there were only two detectives who testified on the motion to suppress, Detective Vannatter and Detective Fuhrman. And your Honor will recall that in the context of a number of misrepresentations made by Detective Vannatter in the affidavit for the search warrant, this court made a finding that Detective Vannatter had a reckless disregard for the truth, so that the credibility of Detective Fuhrman becomes a very, very important aspect of the determination of the Defendant's motion to suppress. Do we or should we put any faith in the testimony of Detective Fuhrman with respect to the circumstances that led up to the warrantless search of the Defendant's premises on the morning of June 13th? Now, we have essentially--well, let me identify each of the issues where we believe the credibility of Detective Fuhrman is in issue. First of all, with respect to the justification for the entry to the premises, as your Honor will recall, the explanation offered by the detectives for their trip from Bundy to Rockingham was that it was for purpose of making a notification. Mr. Simpson was not a suspect. Their reason for going to his residence was to notify him of the death of his former wife and to make arrangements for the care of his minor children who had been found in an upstairs bedroom at the Bundy scene.
It was only after they arrived at the premises and a speck was found on the door of the Bronco above the handle to the driver's side door that the circumstances were transformed, and the officers determined that they had some sort of emergency that justified an immediate entry to the premises without a warrant. And of course, the discovery of that speck on the door was a discovery by Detective Fuhrman. It was Detective Fuhrman who testified he went by himself from where the officers were gathered at the gate to enter Mr. Simpson's premises, that he noticed that the Bronco was parked in a very haphazard manner as he put it, that he went over and he made the discovery of the speck on the door. Now, in that context, it is significant that this is the same Detective Fuhrman who in the context of the McKinny tapes and transcripts offers the following comments. This is Miss McKinny, and I'm reading from her transcript no. 1, pages 24 to 25. "So if you ripped up his identification, you're not going to mention that you ripped it up, are you?" And he answers: "Never, but that doesn't mean I didn't say I didn't. Nobody asked." And the interviewer, Miss McKinny asks: "How about if somebody asks?" And Fuhrman says:
"Well, then I won't. That's an investigation of a police report. When you say falsification of an arrest report, that's when somebody's walking down the street and I see him throw something, but I don't see what he throws. Then I go back where he threw something and there's a gun. "Now, if you want to let that guy go, if you're a citizen, do you want that guy on the street or in jail? Obviously you want him in jail unless you're a jerk too. So the only way to put him in jail is for the policeman to say, `I saw him throw that gun.'" interviewer Miss McKinny: "Oh, identifying the action with the object?" "Fuhrman: Of course he threw it. What are the odds of going to a place where he threw something and having that be a gun? 10 million to 1. 30 million to 1. I don't know what the odds would be, but it's got to be astronomical. So if that's considered falsifying a report.
"And if some hype, you know, says, uh, you know, whatever I shot two days ago and you find a mark that looks like three days ago, pick the scab, squeeze it, looks like serum's coming out as if it were hours old, it's a hard fine. You just can't find the mark because he's down. His eyes don't lie. That's not falsifying a report. That's putting a criminal in jail. That's being a policeman." Now, obviously, Detective Fuhrman's definition of being a policeman as including making up the facts that are necessary to put someone in jail once you've determined that person should be in jail is highly relevant to his testimony of finding the one iota of evidence that will justify or be offered as justification to make an immediate entry to Mr. Simpson's premises, and we believe it is highly relevant that in this example, he is discussing the manufacture of blood evidence. He is discussing scratching a scab to make fresh blood to provide an officer with probable cause to make an arrest, and he's saying that's not falsifying a report, that's being a good cop. The second instance where the justification for the conduct of the officers on the morning of June 13th is questioned relates to the limited purpose for which they made entry to the premises. This supposed emergency that was created by the discovery of this speck on the car door meant that in addition to the purpose of locating Mr. Simpson and notifying him of the death of his former wife, making arrangements for the care of their children, we now add this new justification that there may be a victim on the premises or there may be a perpetrator lurking on the premises. That is not a justification that includes searching for evidence. And what does Mr. Fuhrman do? Mr. Fuhrman goes to Kato Kaelin's room, enters the room, interrogates Mr. Kaelin, searches the room, searches Mr. Kaelin's clothes, looks at the soles of Mr. Kaelin's shoes and does not ask him any questions about whether there are any potential victims on the premises. He simply asks about the thumps that Mr. Kaelin reports hearing on the wall the night before. There's no follow-up questioning at all in terms of expressing any concern with respect to whether there's any victims or perpetrators lurking about. And in this context, I think it's important to remember that this is the same Detective Fuhrman who in the context of his conversations with Miss McKinny says--and now I'm quoting from pages 33 and 34 of that same transcript no. 1. "So under what did you arrest him," the interviewer asks.
"Fuhrman: I didn't arrest him under anything. Just took him to the station, ran him for prints, gave them to the detectives to compare with what they've got in the area. I'll probably arrest a criminal that way." And he's referring here from the prior context to an arrest that he had made himself just the night before. And the interviewer asks: "So you're allowed to just pick somebody up that you think doesn't belong in an area and arrest him?" And Fuhrman says: "I don't know. "Interviewer: Well, I mean, you did. So--" and Fuhrman says: "I don't know. I don't know what the supreme court or the superior court says and I don't really give a shit. If I was pushed into saying why I did it, I'd say suspicion of burglary. I'd be able to correlate exactly what I said into reasonable cause for arrest." And the interviewer asks:
"But nobody usually crosses you, do they, because they know if you're pushed, you're going to come up with something." And Fuhrman responds: "Well, my supervisor has confidence that I know what I'm doing, so they don't make beefs about it." This is obviously highly relevant to the conduct of Detective Fuhrman in essentially entering those premises to search for evidence and then making up a reason later to justify what he had done. The next example of the relevance of these newly discovered tapes relates to the question of the scope of the search activity that Detective Fuhrman then engaged in. Your Honor will recall that after Kato Kaelin told him about the thumps on the wall, Detective Fuhrman told no one else about that. He didn't mention that to any of the other detectives. He simply said to Detective Vannatter, "You ought to talk to this guy," and then went off by himself to the rear of the premises where he was for approximately 15 minutes according to his own testimony. And what's he doing back there? He says, "I'm looking for a victim. I'm looking for the body of somebody that may have been injured." No basis whatsoever to assume that there would be any victim back there other than the thumps on the wall, and yet he didn't question either Kaelin or Arnelle Simpson about whether they heard cries from anyone back there, whether they heard any other noises back there. He goes back and he looks around for approximately 15 minutes and then he takes the other detectives one at a time to show them what he allegedly discovered. Well, your Honor, this is the same Mark Fuhrman who in his conversations with Laura McKinny--and I am now quoting from tape no. 3 at page 3--makes the following comments:
"Fuhrman: Well, I really love being a policeman. "McKinny: Why do you love being a policeman? "Fuhrman: When I can be a policeman. It's like my partner now. He's so hung up on the rules and stuff. I get pissed sometimes and go, `you just don't even fuck'in understand. This job is not rules. This is a feeling. Fuck the rules. We'll make them up later.'" well, there are rules about what kind of search activity a police officer can engage in without a search warrant. The activity of Detective Fuhrman on the morning of June 13th raises serious questions about whether he followed those rules, and the attitude exhibited in this exchange that is on tape in the McKinny tapes certainly raises a question that should be asked about Detective Fuhrman's understanding of the rules and limits on the kind of activity that he could engage in. The next issue relates to the role of Detective Fuhrman in the investigation of this case after he is taken off of the case at approximately 2:30 in the morning. Your Honor will recall that almost three hours after he is removed from the case, it is Detective Fuhrman who leads the other detectives from Bundy to the Rockingham residence of the Defendant. It is Detective Fuhrman who finds the speck on the Bronco. It is Detective Fuhrman who then leads the detectives over the wall into the premises and it is Detective Fuhrman who ultimately finds the glove. And with respect to all of this investigative activity, there are no notes, there are no logs, there are no reports. His testimony is:
"I stopped making any record of what I was doing as soon as I was taken off the case at approximately 2:30 in the morning." Perfect setup. No way to double-check any of his activity in terms of what happened after he was relieved from the case. And, your Honor, this is the same Detective Fuhrman who in his exchange with Miss McKinny--and this is on the tape 6--6A. I'm reading from page 3 to page 4. "This is embarrassing." This is Detective Fuhrman speaking.
"Then you go to court and I'm the only one who knows how to testify. You have five officers on the case, and I'm the only one there that knows how to testify. "The D.A. goes, `yeah, but you were the fourth car. But would you testify?' "'yeah.' "'but you did see--' "I saw it. Don't worry about it. Yeah, I saw him do that. Yeah, I saw him do that. Yeah, yeah. Okay. Goodbye.' "Why do I have to do everything? That's what it is coming down to. I have to fight the guy, I have to catch the guy, I have to keep the guy's mouth shut at the station because they're not going to do it for a female. I just can walk by and say, `shut up or I'm going to kick your face in.'"
Now, the relevance of that obviously is, it's a pretty good description of what was going on on the morning of June 13th. Detective Fuhrman had to do everything. And what he's saying in this exchange is, doing everything means also providing whatever testimony is necessary regardless of what happened. We believe that the prior conduct of Detective Fuhrman is highly relevant to the credibility on the suppression issues. We're not talking about general credibility here. We are talking about a police officer who believes that lying to justify an arrest or a search is okay, that the end justifies the means if he has concluded that the suspect is guilty anyway. And this is the same Mark Fuhrman who says to Miss McKinny--and this is transcript 9, pages 11 and 12.
"Fuhrman: Absolutely. Let me put it to you this way. In almost 12 years on the department, I have never felt guilty one day, one split second. "Miss McKinny: Why? "Fuhrman: Because all those people out there deserve exactly what they get and probably 20,000 times more. "Miss McKinny: So you feel that you make judgment calls in a way that ensures those people to get what they deserve and so, therefore, there is no reason for you to feel guilty about anything you do?" And Fuhrman responds: "Well, yeah. It's the same thing, if you're in a rice paddy in southeast Asia and a guy in black pajamas is running across a rice paddy with an AK47, are you going to shoot him or wonder if he's really a communist or if he just stole those clothes from a VC soldier and he's running away? You shoot the son of a bitch and you don't worry about what he was. You don't worry what he could have been, just what he appeared to be and that's good enough.
"Miss McKinny: At the moment? "Fuhrman: You never know past the moment. That's the thing I've always said too. Even if you get the wrong guy, this guy's done something before or he's thought about doing something." Now, your Honor, we believe that in order to assess the credibility of Detective Fuhrman with respect to these issues in terms of his conduct on the morning of June 13th, this evidence must be considered and you must ask the question whether you would believe this police officer in light of this evidence, and we believe that we're entitled to a finding for our appellate record of your conclusion with respect to the credibility of Detective Fuhrman, and we believe the most rational way for you to make that finding is for you to permit us to call Detective Fuhrman to the witness stand as part of this renewed motion to suppress and engage the most powerful engine that we have to expose the truth; and that is to cross-examine him and to confront him with his prior statements to Miss McKinny.
Your Honor, first of all, I need to define--I want to define for the court what the court's role is. First, let's recall that Detective Fuhrman was--and I say let's recall because the court heard a prior 995 with regard to the motion to suppress that was heard in the court below. So the court's already read that transcript of that earlier motion to suppress. Detective Fuhrman was one of two police officers, the other being Detective Vannatter, who testified in the municipal court at that motion to suppress. And that is the factual context in terms of what motion we're talking about that this court looks at. When it came to litigation of the search warrant, that was done before this court. Detective Philip Vannatter was the affiant on that warrant. His affidavit is what the court looked at to determine the validity of the warrant. The--under the law, the court was restricted to, at that point in time and never had to go beyond that, to the four corners of the affidavit of Detective Philip Vannatter. So when we're talking about Detective Fuhrman's testimony regarding motions to suppress, we are talking only about the testimony that he gave at the motion to suppress the entry onto Rockingham brought before the magistrate in the municipal court. Now, as I indicated, when this court reviews newly discovered evidence--and the court has already earlier indicated a finding, and I don't think--we're not. We're conceding it's newly discovered evidence. But when the court reviews newly discovered evidence, the court looks to the standard enunciated in the bishop case, which is briefed in length in our brief on this issue, which is spelled out in length. And the bishop case mentions several standards in there. The--what the court does not do is to decide the issue of Detective Fuhrman's credibility. What the court does do is to look to see whether the newly discovered evidence would have affected the finding of the magistrate below. The Ramsey case that counsel cited to the court includes that standard in a footnote where it says the--this court, your Honor can consider the evidence with regard to Detective Fuhrman in a de novo matter only if you determine that that evidence would have affected the magistrate's ruling below. Then you go on to this step. And that footnote--dicta in footnote in that case mentions that. But the standard is spelled out very clearly in great length in the bishop case. The court was trying to determine what standard to look at to determine when something is affected by and try and give the trial court guidance in this area, and the court looked at the idea of relevance. Well, what if it's relevant testimony, relevant evidence. Does that mean it would have affected the standard? And the bishop court held it couldn't because that hair trigger type of standard would automatically cause every magistrate's ruling in every motion to suppress brought in the lower court to be affected if mere relevance was the standard, and the whole idea of the legislature in changing this legislation back in 1986 I believe it was to provide the Defense one opportunity for a de novo review and only one opportunity except under very narrow circumstances. And this is one of the potential exceptions that applies when there's newly discovered evidence. But because of the policy of the law to maintain the finality of litigation, the bishop court holds that there has to be a heightened standard under this situation. And the bishop court, as this court has noted in a previous hearing I think it's been many months ago, now looked to the area of new trial motions, looked at the law in that area and the area of newly discovered evidence and to see if that standard would be an appropriate one, and it held that that would be an appropriate standard. And I'm going to get back to the new trial motion a little bit later, but I do want to mention, your Honor, these--this newly discovered evidence consists of statements that only go in some general manner to bias and credibility, nothing specific in this case, not to any specific person in this case, not to any specific observations or conduct in this case. It only goes somehow generally, in a general manner to credibility. That by definition is collateral evidence. It's collateral evidence on credibility. It's not evidence that has any kind of direct inconsistent statement or direct impeachment of any officer, either of the two officers' testimony in municipal court and the context in which these--
Now, let's look at the evidence itself. First of all, we know that it's collateral just by definition because it doesn't have anything to do directly with what was testified to in municipal court. It's only very indefinite reason by inference upon inference. And then when you look at what the statements are, they are statements that Detective Fuhrman made to a screenwriter. And in that context--and I'm not saying that he was role playing when he said this. What I'm saying is, he was there to impress this woman to write a Hollywood movie. And we all know that Hollywood movies, particularly when they portray bad cops, are vicious, violent, horrible and depict disgusting things. I mean, that's the whole purpose of a Hollywood movie, particularly when it's depicting bad police officers. I can think of Richard Gere in Internal Affairs went around murdering people. That's Hollywood. That's what it's about. So these statements that he made to Laura McKinny, he was there to impress. There's no trustworthiness whatsoever that anything he actually said is something that he would do even back then or that he would do years later after he said those things to her in that context in this case.
So you look at the statements, and they're not trustworthy. They're not said in a context that makes them at all trustworthy in terms of his actual state of mind of what he would do eight years later when it comes to the investigation of this case during which he played a very narrow role. So you're looking at not only collateral evidence, but evidence that on its face is not trustworthy and probative of even what it would purport to prove or what the Defense would have it prove. So when you look at that farly-removed evidence in terms of directly rejecting anything testified in municipal court, it becomes self-evident that its probative value is virtually nil. There's almost no probative value there. Now, one of the things the bishop court held--and I notice counsel's lack of addressing the bishop court, though it does address this specific issue on newly discovered evidence in a renewed motion to suppress at length. One of the things that that court held, the court of appeal, is that the implied credibility findings made by the magistrate below had to be as to--affected by the new evidence as to both officers who testified. And here that means not only Detective Fuhrman, but Detective Vannatter as well.
It's a heightened burden. And that's the language used by the bishop court, a heightened burden because this evidence regarding credibility would have to go to both officers. And this evidence, these McKinny tapes and transcripts and anything said by Mark Fuhrman has nothing to do with Detective Philip Vannatter and never has had anything to do with him. He didn't even know Mark Fuhrman before they met that night. So the Defense has offered nothing to impeach either directly, indirectly, collaterally, in any manner the testimony that was given by Detective Vannatter extensively during that earlier motion to suppress, which entirely corroborates every important piece of information testified to by Detective Fuhrman. Detective Vannatter testified to the same things or to things right in that same nature. I don't mean to say the testimony was identical, but he also testified to the important aspects that were under consideration for that magistrate to consider in that motion to suppress. Now, when you get back to the new trial--the standard of newly discovered evidence, newly discovered witnesses in a--in the context of a motion for new trial, one of what I consider the viables in the criminal law is Wicken and Epstein. And Wicken and Epstein say that new evidence calculated merely to discredit a witness at the trial is considered of slight importance and it is frequently said that it will not support a motion for new trial. So it is rare under the case law that newly discovered evidence which goes only to credibility is given any kind of deference and such that a new trial motion is granted. And that's the standard that the bishop court of appeal tells us to look at in whether the court should hold whether or not evidence has affected the magistrate's ruling below in the motion to suppress there. And in fact, the--in a case cited in my brief in People versus Green, the--a witness was discovered, newly discovered, who would have impeached the Prosecution's main witness, a police officer, regarding that witness' testimony as to the number of investigations he had engaged in and whether he made narcotics address for amounts under a certain quantity. So it was--it would have been direct impeachment of that police officer's testimony itself. And the court of appeal in People versus Green denied the--upheld the trial court's denial of the new trial motion and held as a general rule evidence which merely impeaches a witness is not significant enough to make a different result probable. So it's whether a different result was probable. That's the analogy they draw in the new trial motion context to--whether it would affect the magistrate, and in different words, make a different result probable there, that the magistrate would have ruled differently. So the court of appeal in People versus Green recognized it wouldn't even have made a different result there where it was direct impeachment testimony let alone here where we have several steps by inferences removed untrustworthy, but at best, collateral impeachment in the terms of affecting credibility impeachment testimony. Now, we also know in this particular case the magistrate below specifically told Mr. Shapiro when he tried to introduce collateral matter to discredit a witness, she specifically said:
"The way I see it, Mr. Shapiro, is that if in fact there is an inconsistent statement with something--I'm sorry--with regard to something that the detective testified to during the course of the proceeding, then that would be admissible. But we're not going to create straw men to shoot down later that were not part of the testimony." So this own magistrate to the extent that there is any--I'm not sure it's appropriate, but if it is appropriate to look at this magistrate's state of mind and whether her particular--this particular magistrate's ruling would have been affected, she--it's pretty clear from that observation of hers that she might have admitted directly impeaching testimony and probably would have directed--admitted directly impeaching testimony, but would not admit collaterally impeaching or collateral evidence regarding credibility. As the bishop court itself said:
"Evidence which does not affirmatively prove an issue, but is used only to impeach or contradict an opposing witness tends to impress weakly." And that's what the bishop court itself said with regard to whether it would have affected the magistrate's ruling below in that case. Finally, your Honor, I want to point out that the People's burden at that motion to suppress was by a preponderance of the evidence. And we had the two--the corroborative testimony of two detectives who testified in detail. All the Defense has presented to this court here in terms of newly discovered evidence goes to, as I've mentioned, collateral impeachment, collateral credibility attack on only one of those officers. And I submit, your Honor, that as a matter of law, that is simply not enough to, quote, legally affect the magistrate's ruling. And that is a term of art, so that there's no confusion, and that's what the bishop court has tried to define as a term of art. So there's simply insufficient evidence to show this newly discovered evidence would have affected her ruling because it is collateral and removed from the one officer who it even affects at all in terms of his testimony and has nothing to do with the other officer. So, your Honor, the Defense is not entitled to yet another hearing in this court of any nature other than the legal argument we just engaged in because I believe the appropriate and proper ruling for this court to make is that this evidence would not have, quote, affected, as that term is used in the law, the ruling of the magistrate below.
Do you think though that the magistrate would have been interested in hearing cross-examination of Detective Fuhrman being confronted with some of this material on the tapes?
No, your Honor, I don't. And in fact, I would like to respectfully remind the court our courts of appeal and supreme court--most recently, there's a case of People versus Superior Court, Piedrahita, P-I-E-D-R-A-H-I-T-A, 1995 at 34 Cal. App. 4 508, that repeats:
"Generally speaking, 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. The cross-examination of the witnesses always subject to the trial court's broad discretion to impose a reasonable limits to prevent interrogation based on concerns, among other things, harassment, prejudice, confusion of the issues"--and that would have happened here--"Or interrogation that is repetitive or only marginally relevant." So the courts have wide discretion. There's also People versus Cooper who--also cites Davis versus Alaska, which is one of the Defense attorneys' favorite cases it seems--to repeat:
"That the confrontation clause guarantees opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to whatever extent the Defense might wish." Most courts, in particular, municipal courts hearing these motions to suppress along with their preliminary hearings day in and day out are not interested in letting the Defense go far afield into the netherland in cross-examining witnesses. They want to hear evidence that directly pertains to that witness' testimony and that is relevant and directly relevant to that witness' testimony. So by all indications, this particular magistrate would not have even allowed cross-examination on this issue, let alone have been affected by it.
All right. Thank you, counsel. I'm sorry. Miss Lewis, do you want to address one other issue, the request at this point to recall--based upon this newly discovered evidence, what you concede the tapes are newly discovered since this discovery occurred subsequent to the preliminary hearing and the original 1538.5 motion, what is your position on at least the Prosecution--excuse me--the Defense ability to recall Detective Fuhrman as a witness to confront him with some of these things?
Your Honor, the Defense has no such right. This is high--as I just argued and pointed out to this court, this is highly collateral evidence. Their right was to present to this court the newly discovered evidence. They've done that. This court has read all of the transcripts, I'm sure listened to all of the tapes. Well, I know it's listened to all the tapes, made a detailed lengthy ruling with regard to the 60 whatever proffers. So this court has heard and has taken in that evidence. It's in the record, it's there, and the Defense has no right, and in fact it would be inappropriate I believe for this court to get into any kind of factual determination, which it would be doing if it heard--attempted to hear testimony from Detective Fuhrman. May I have just a moment, your Honor?
As Miss Clark points out, the statute does not allow for--it does not say that they have the right to confront and cross-examine any witness with regard to this newly discovered evidence. And this is a situation where it's clear, your Honor, the magistrate below would not have allowed, as much as I can read her mind--but, you know, having worked in these muni courts for many years--and this court knows what it's like in muni courts with the number of felonies prosecuted by this office and the number of witnesses that are called daily and 10 to 15 prelims a day. That's not unusual downtown. I mean not only as a legal matter, but in terms of the exercise of these magistrates' discretion, it's very easy to predict that she would have not--because no magistrate below in municipal court in this building or in any other building probably in L.A. county would allow the kind of cross-examination the Defense seeks to bring on at this point for this court to hear. But I--I didn't mean to get sidetracked. No, they do not have a right to recall Detective Fuhrman to confront him with this and it would be inappropriate to do so.
The court has the information that it needs, having heard the transcripts and listened to the tapes, to determine if indeed that was even admitted by the magistrate below, which I submit it wouldn't have been, that would have had the legal effect of affecting her prior ruling and causing her to grant the motion; and it simply could not have had that effect when you're talking about two police officers testifying where that evidence affects only one. And the bishop court holds that the Defense has a heightened burden of it affecting both officers' testimony.
Your Honor, having had the benefit of participating in the determination by the magistrate of the motion to suppress in the municipal court, I can assure your Honor it was not one of 15 or 20 motions being heard on a routine basis. We're talking about a preliminary hearing that went on for more than a week. We are talking about a magistrate who told us how troubled she was by the issues raised in the motion to suppress and who made some very careful findings which were largely dependent on the credibility of the testifying officers. That is, she believed the reasons that they offered to justify the actions that they took and she believed they were reasonable under the circumstances without having the benefit of knowing--what's the matter? Is my zipper open?
No. I was just noticing one of our CCB residents on the--crawling on the table there.
The--the issue before your Honor, however, is not what effect would this evidence have on the magistrate. And that's the whole point of the Ramsey decision. Where additional evidence is presented, the findings of the magistrate, to the extent they are affected by additional evidence, are not binding on the superior court. As the Ramsey court put it, this allows the superior court to exercise its independent judgment on issues on which additional evidence is introduced. So we're not in the position of trying to go back and recreate how Judge Kennedy-Powell would have reacted if she had had the opportunity of hearing the Fuhrman tapes in deciding whether she should believe Detective Fuhrman's account of what happened on the morning of June 13th. To the extent that this is newly discovered evidence, the question is, what finding does your Honor make about the credibility of Detective Fuhrman with respect to the events that took place on the morning of June the 13th. And to that extent, the bishop case relied on by the Prosecution is inapposite. They're saying, you must challenge the credibility of both officers. But that occurs in a context where the two officers corroborate each other, where you have two officers testifying to the same thing. Of course, just attacking the credibility of one officer isn't going to undercut the factual finding. But with respect to each of the factual issues we have identified, the discovery of the speck on the door of the Bronco, the investigative activity in terms of searching for evidence that took place in the room of Kato Kaelin, the searching activity that took place behind the house after Detective Fuhrman decided to follow up on what Kaelin told him, every one of these were judgments or discoveries made by Detective Fuhrman without any corroboration. He was by himself, he was alone and his credibility stands alone with respect to each of those issues. We're not asking to relitigate everything here. Of course, we're not seeking a hearing de novo on the search made pursuant to the warrant, only to the extent that if the evidence found in the warrantless search supplies the probable cause for the issuance of the warrant, then of course the evidence discovered pursuant to the warrant would also have to be suppressed. But what we're talking about here is a warrantless entry to premises. We are talking about the credibility of the decisions and the judgments made by Detective Mark Fuhrman acting alone and we are asking what confidence can you have in his credibility with respect to that action that he took knowing what you now know from the Fuhrman tapes. And the Fuhrman tapes, your Honor is in a very good position to make a judgment about whether he was just impressing a screenwriter. We believe the tapes clearly demonstrate he was expressing his own attitudes, he was expressing his own opinions, he was describing his own practices, and those are certainly relevant areas to cross-examine him on before we make a determination of his credibility. And that's an opportunity that was deprived to the Defendant because this evidence was not available at the time Detective Fuhrman was confronted in the municipal court. And bear in mind that when Detective Mark Fuhrman testified in the municipal court, he was there to impress a Judge, just as counsel suggests he was there to impress Miss McKinny. And the issue that we have to address is whether that was a false impression, whether the conclusions that we draw with respect to the credibility of this witness, of this key witness on this issue of the suppression of the evidence can be trusted in light of this newly discovered evidence.
Mr. Uelmen, let me ask you this though. What would calling Detective Fuhrman add to the court's record in evaluating the credibility issues that you raise given the fact that the tapes that the court heard are Detective Fuhrman's voice? I mean, the foundation has been laid either through Miss McKinny through the 402 hearing or during the course of the trial, we have established that, you know, that is in fact Detective Fuhrman's voice and his statements. Is there anything to be served by calling Detective Fuhrman? What else would you add? "Did you say this? Is this your voice?" I mean, I can think of two or three questions we might ask Detective Fuhrman, but--
Well, credibility determinations are based on the entire galaxy of the demeanor of the witness, the factual accuracy of his account. We believe that everything we have pointed to in the Fuhrman tapes goes directly to issues that he talked about in his testimony and that raise questions about what he was saying.
Well, what would be your offer at this point given the fact that the court has, with regard to previous rulings, reviewed the transcript of the preliminary hearing, with regards to prior motions regarding the McKinny matter, the court has read the transcripts, listened to the tapes--I did sit through, my recollection, it was approximately five or six days of testimony by Detective Fuhrman during the course of this trial. What more can we add to the record? What more do you think would be needed to be added to the record for the court at this point to evaluate all these things anew? I agree with the point that you make, that based upon the showing of newly discovered evidence which was not available, not reasonably available at the time of the preliminary hearing, that the magistrate's finding is not binding upon this court and that this court upon appropriate motion, which you've made, is required to go back and reassess what's here. But you're asking, in addition to that, asking to recall Detective Fuhrman, and I'm just asking for an offer of proof as to what you--what line of questions you would venture into that would add to the court's store of knowledge with regards to Detective Fuhrman.
We would confront Detective Fuhrman with each of these key accounts or justifications that he offered for his conduct on the morning of June 13th and we would question him as to whether on prior occasions he has indicated that he doesn't play by the rules, that he makes the rules up later, that he doesn't really care what the courts say about what officers can do and can't do.
So in other words, you would go through each one of the 61 incidents that you put forth in your offer of proof with regards to the offer regarding Miss McKinny.
No. No, your Honor. We've submitted a new offer of proof just related to this which lays out I believe seven excerpts from the transcript which we believe are relevant just to the issue of probable cause. We're not trying to open up racial attitudes. We are not trying to open up the whole spectrum of police misconduct that was raised in the McKinny motion. We've tried to focus this right on the issue of probable cause and justification for police conduct in which he engaged. And I know your Honor has heard Detective Fuhrman testify, but I really would ask you whether you would hear his testimony with the same ears today knowing what you have heard on those tapes.
Well, it's not--and it's not just knowing what I know on those tapes. It's what I heard from Miss Singer, it's what I know from Miss Bell and what I heard from Mr. Hodge.
And that too is all newly discovered evidence, your Honor. The fact that Detective Fuhrman has perjured himself in this trial we believe is relevant to the credibility that we give to the testimony at the motion to suppress. I dare say that in any case, being tried in these courtrooms, if in the course of the trial, a court were convinced that an LAPD officer had come into the courtroom and committed perjury, the court would not hesitate to go back and reevaluate and re-examine the testimony that was presented in the pretrial motions. In fact, we have inquiries going on right now where on the basis of the discovery of forged evidence, we're going back to cases that were tried years ago to get to the bottom of it, to get to the truth of it. And that's precisely what we propose to do here.
All right. Given that offer, what do you think the likelihood is that Detective Fuhrman would be--former Detective Fuhrman would be available to testify?
There's only one way to find out, your Honor. Let's bring him in, put him on the witness stand and put the questions to him.
KEY QUOTEI'm in debt to Mr. Neufeld. To the extent that the People are arguing that there's any question about the context of what is said in those tapes, that is whether he is speaking his own mind, whether he is puffing, whether he's trying to impress Miss McKinny, the way to determine that is by questioning and cross-examining him.
Your Honor, the concern here of course is that Detective Fuhrman is not himself in the same position that he was down at the municipal court below. There is no--there had been no testimony with regard to the "N" word. There had been--that's totally irrelevant to this proceeding, this hearing. But Detective Fuhrman now finds himself in a position because of that and because of the--it's clear there's been an outcry in this city, your Honor, and perhaps appropriately so. But as we stressed over and over again, that is for another forum, another place, another time. To box this court in to calling Detective Fuhrman, making him have to make the difficult decision of whether or not to take the 5th amendment creates additional complexity and adds issues and misleads--well, it doesn't mislead, but it consumes times, takes away from the sequestered jury we have in this case, adds nothing to this court's knowledge with regard to what it needs to know to determine if this evidence would have affected the prior magistrate's ruling. It does not. It is certainly within the court's discretion to deny any such motion and I think, as a matter of law, it's inappropriate to even entertain such a motion by the Defense. And in addition, as Miss Clark points out, even if it were true that that's how he felt back in 1985, there's no proof that that's how he feels now or felt in 1994. You know, this was a man who--well, I don't want to get into the history. The court, you know, heard evidence in context of the pitchess motion. But people change over time. This man became married, had two children. You know, I don't want to get into here a personal Defense of Mark Fuhrman. That's not why I'm here, your Honor, and I don't want to do that. What I do want to do is point out to the court that this is collateral evidence that does not go to directly impeach him and that there are two officers who testified, and for this court to get sidetracked off into a side issue of whether Mark Fuhrman is going to take the fifth amendment is not appropriate, not in this context especially when we're talking about the renewal of their motion to suppress. The court, as it's just explained, has all of the evidence it needs. It has a very complete--there's no such thing as very. The record is complete, and that means one thing. It is complete in terms of what this court needs to assess whether or not it would have affected the ruling of the magistrate below under the circumstances of that case. And this court is not I submit entitled to this Defense argument of the perjury, whether or not perjury was committed here in this case in assessing whether it would have affected the magistrate below. And, your Honor, whether the Defense offers seven excerpts from their new proffer or the 70--60 or 70 that they offer below, the law is the same in this regard. The court has heard all those. The court has read the ones that--all of them, plus the ones that were not available to hear on tape. So the court already is intimately familiar with it. It's time for the court to have to make the difficult decision and to have to struggle with making a ruling on this case. But that's not going to be--that burden is not going to be lightened and would just be dragged out and likely the court's--the complexity of the ruling would be magnified by having additional unknown factor thrown in at this point in time, your Honor.
Oh, absolutely not, your Honor. Please, the court can see this is collateral evidence. It does not and never had to allow cross-examination on this evidence at all. The Defense in their new proffer is talking about misconduct things. They recognize it apparently because they left it out. They even leave out the "N" word stuff.
I mean, the court has heard all this stuff. The court has heard the context in which it was played. The court--and in fact, if Detective Fuhrman gets up here and takes the 5th, the court--I think the state of the law would be, the court cannot consider him having taken the 5th in terms of deciding the earlier ruling because the jury is not allowed to hear that somebody took the 5th. And I'm sure the same law would apply, that the court could not consider that fact because you would be impinging on his right against self-incrimination. It gets unduly complicated, your Honor, and it's not necessary. The record is complete. I know you as a very thorough--meticulously thorough Judge, but I'm telling your Honor, as a meticulous and thorough attorney, this record is complete on this issue.
All right. Thank you, counsel. Mr. Mounger, Mr. Darryl Mounger is also here with us, counsel for Mr. Fuhrman. Good afternoon, counsel.
You've been present for our discussion regarding the Defense motion to--based upon newly discovered evidence, to revisit the motion to suppress, and one of the key issues is whether or not the court would allow your client to be recalled as a witness for additional testimony. Do you have any observations regarding that?
Well, before I answer that question, may I be allowed to speak briefly about the motion?
Well, your Honor, first, I would ask that, similar to the issue when Mr. Kardashian was asked to be a witness, because of the position that Detective Fuhrman is in, I would first like to see if the court could allow it, the questions, the exact questions that they plan on asking him because asking him to testify at this point in time may have a difference depending upon the questions that are asked.
All right. Mr. Uelmen, do you have an additional copy of your specific offer of proof regarding this issue available?
I'm sure we can have a copy duplicated, but we don't believe a witness is entitled to a preview of the questions that they're going to be asked on cross-examination. The whole purpose of cross-examination is to test the credibility of the witness in reacting to questions as they are put and--
Well, at this point, counsel, since--I mean, that offer of proof is not under seal. It's not exactly a mystery as to what it is we're talking about here and we've discussed it here in open court just now.
All right. Well, in any event, I need to give the court reporter a brief recess. So we'll take a brief recess. Counsel, if you'll provide Mr. Mounger with a copy of that, he can peruse that, and we'll discuss it, continue this discussion in about 15 or 20 minutes.
This job is not rules. This is a feeling. Fuck the rules. We'll make them up later.
If some hype, you know, says, uh, you know, whatever I shot two days ago and you find a mark that looks like three days ago, pick the scab, squeeze it, looks like serum's coming out as if it were hours old... That's not falsifying a report. That's being a policeman.
I dare say that in any case, being tried in these courtrooms, if in the course of the trial, a court were convinced that an LAPD officer had come into the courtroom and committed perjury, the court would not hesitate to go back and reevaluate and re-examine the testimony that was presented in the pretrial motions.
I know your Honor has heard Detective Fuhrman testify, but I really would ask you whether you would hear his testimony with the same ears today knowing what you have heard on those tapes.
There's only one way to find out, your Honor. Let's bring him in, put him on the witness stand and put the questions to him.