Sidebar: Fuhrman travel

📄 Sidebar: Fuhrman travel — Wednesday, September 6, 1995

Address:

C:\DEPT103\CRIMINAL\1995\SEP\6\SIDEBAR-FUHRMAN-TRAVEL.DOC

TRIAL

▲ Day 148 of 167

◀ Direct examination of Mark Fuhrman Witness ordering and Brady motion ▶

Date: Wednesday, September 6, 1995 • Utterances: 28

Defense counsel requested time to brief the court on their proposed remedy after Fuhrman invoked the Fifth Amendment, arguing they should not be denied the ability to present this to the jury. Judge Ito allowed both sides to submit points and authorities by the following day, with Fuhrman's attorney agreeing to keep him on call with 72-hour recall notice rather than allowing him to immediately travel home. The session ended with an unreported bench conference on a Brady motion.

# 1 MR. COCHRAN:

Will the court allow us to approach for a moment?

# 2 THE COURT:

Sure. All right. With Mr. Mounger, please.

# 3 (The following proceedings were held at the bench:)

# 4 MR. COCHRAN:

Your Honor, the problem we have is that I'm not sure we argued this particular aspect. I wanted some clarification. We're the ones that paid to have him brought here. So it would fall on us whether he stays over. But we obviously would want him to be able to briefly argue what our rights are in this regard. Now that he's claimed the 5th amendment, they can't just try to hide that from the jury. We are going to propose either a jury instruction or whatever, some way--we are being disqualified from further cross-examination of this man, and we propose a particular remedy. And so I mean--sure, they'd like to rush him away quietly. It's not that easy. We will accommodate Mr. Mounger's schedule. We have total respect for him, but we have--I think the court wants some assistance, some argument from us, points and authorities about what our remedy is in regard to this. This is not something you want to do by the seat of your pants.

# 5 THE COURT:

I assumed you all had thought about this.

# 6 MR. COCHRAN:

We did. We thought about it and we'd like an opportunity--

# 7 THE COURT:

And my recollection is that the Prosecution indicated they had a memorandum, points and authorities ready to go.

# 8 MR. COCHRAN:

Mr. Darden said that. We haven't seen it.

# 9 MS. CLARK:

We have it. We've researched this issue, we're prepared to argue it. They have no right to have him invoke in front of the jury.

# 10 MR. COCHRAN:

Nasty attitude. We're not--

# 11 MS. CLARK:

Just an assertion.

# 12 MR. COCHRAN:

All we're saying, your Honor, we would like an opportunity to respond, to give you our brief in that regard and we don't want him to leave until that point. It would just be a day or so. So I think it's the same problem as with McKinny. We don't want to let her go before we resolve the issue and we would like to talk about it tomorrow.

# 13 THE COURT:

Mr. Mounger, what I'm inclined to do is allow counsel the opportunity to brief the issue and have your client on call for tomorrow.

# 14 MR. MOUNGER:

And if it doesn't materialize by tomorrow, are we free to--

# 15 THE COURT:

Then he will be released subject to recall and I'd say within 72 hours' notice. But I assume we'll resolve this issue tomorrow.

# 16 MR. MOUNGER:

All right.

# 17 THE COURT:

All right. Do you accept the responsibility to convey that order to your client?

# 18 MR. MOUNGER:

Yes, your Honor.

# 19 THE COURT:

Thank you. Anything else?

# 20 MR. MOUNGER:

So I understand it clearly, if we have no order by the close of court tomorrow, then--

# 21 THE COURT:

He's free to travel back.

# 22 MR. MOUNGER:

--free to travel?

# 23 MR. SHAPIRO:

On 72-hour call. I will call him. We have some witnesses we want to get ordered back for tomorrow.

# 24 THE COURT:

And, Miss Clark, if you would file your points and authorities.

# 25 MS. CLARK:

Yes. Yes.

# 26 MR. SHAPIRO:

Your Honor, can we go off the record for scheduling on the Brady motion?

# 27 THE COURT:

Yes.

# 28 (A conference was held at the bench, not reported.)

Temperature

tense

Key Quotes (4)

Johnnie Cochran

Now that he's claimed the 5th amendment, they can't just try to hide that from the jury.

Cochran frames the core legal dispute — whether the jury should be informed of Fuhrman's Fifth Amendment invocations, and what remedy the defense is entitled to.

Marcia Clark

They have no right to have him invoke in front of the jury.

Clark directly states the prosecution's legal position, setting up the briefing dispute over the proper remedy.

Johnnie Cochran

Sure, they'd like to rush him away quietly. It's not that easy.

Cochran accuses the prosecution of trying to minimize the jury's awareness of Fuhrman's Fifth Amendment assertions.

Johnnie Cochran

This is not something you want to do by the seat of your pants.

Cochran argues the legal question of remedy is complex enough to warrant full briefing rather than an on-the-spot ruling.

Notable Exchanges (2)

Johnnie Cochran•Marcia Clark

After Clark stated the prosecution's position sharply, Cochran responded 'Nasty attitude' and Clark replied 'Just an assertion' — a brief but telling moment of interpersonal friction.

heated

Lance A. Ito•Mr. Mounger

Ito worked out the logistics of keeping Fuhrman available — on call through the next court day, then free to travel subject to 72-hour recall — with Mounger confirming he would convey the order to his client.

procedural

Credibility Attacks (1)

⚔ Mark Fuhrman

Fifth Amendment invocation as grounds for jury instruction

Cochran argues the defense is entitled to a remedy — likely a jury instruction — after Fuhrman invoked the Fifth Amendment, effectively barring further cross-examination.

Objections

None recorded

Proceeding 7529 • 28 utterances

Criminal Trial

Department 103