Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in camera:)
THE COURT: We're in chambers with Mr. Cochran, Mr. Neufeld, Mr. Blasier, Miss Clark and Mr. Darden. And I've asked counsel in chambers to discuss the problem that has arisen with regards to the Fuhrman tapes. And I want to make it clear for the record at this point that the Court's knowledge of the tapes is based upon the representations that counsel have made to the Court in chambers or at the sidebar and that at this point, the Court has not--does not physically have the tapes or the transcripts. I have not listened to the tapes or read any of the transcripts which I think actually is a good state of affairs at this point.
There is a potential that one side or the other may wish to call my wife as a witness with regard to Mr. Fuhrman. If that happens, then under the code of civil procedure section 171.1, sub (A) sub (1), I'm required to disqualify myself as the trial Judge in this case. Although I do not have any personal knowledge of my wife's dealings with Mr. Fuhrman while she was a lieutenant at West L.A. and the watch commander back in 1985, the code says that a Judge shall be deemed to have personal knowledge within the meaning of this paragraph if the Judge or the spouse of the Judge is to the Judge's knowledge likely to be a material witness. So I am deemed to have her knowledge for the purposes of disqualification. So if my wife is a material witness, then under this code section, I'm required to disqualify myself and perhaps declare a mistrial at this point. The alternative is to solicit a waiver from the parties. But the code is very clear that I--the only thing I can do is make counsel aware of that possibility and ask if that's something that they would contemplate. And that's the extent of what I can do as far as that is concerned. So that is something you should perhaps consider.
My proposal at this point is to transfer to Department 100 for reassignment to another Judge the issue of whether or not my wife is a material witness, whether or not she has any relevant, admissible or material information to offer on this point.
MR. NEUFELD: I would assume that's a preliminary issue in other words. So if the Court finds she's not, then those other alternatives are irrelevant.
THE COURT: Well, that's correct. But there is also the--I mean, both of you will have to determine whether or not there's something--having not heard the tapes, I don't understand the context of what my wife's potential involvement may be. So, you know--since both of you have heard it. But it's something at this point I would not prefer to know the details about.
MR. COCHRAN: It's just as well. Judge, what happens to the trial while this is going on? Are we stopping the trial?
THE COURT: That's another thing that you should contemplate because, you know, once I am aware of grounds for disqualification, I have to take action, which I'm doing first thing this morning and have had some time to think about, do some research and see where we are.
My inclination would be to send you up to 100 to get a date and assignment for a hearing, and then if it's your desire to proceed further at this point with these witnesses, to finish the witness that we started, I don't think that there would be any impediment to doing that. And since I don't think my wife has the involvement with Michelle Kestler or any of the other scientific witnesses that we are at now, I don't see that that would be a problem. But I think we need to resolve this issue at the earliest possible point. Bob, let me give you a copy of this. This is a draft. Write on the top of it "Draft." So that's where we are.
MS. CLARK: I would--if we're going to--
THE COURT: Because, Marcia, you're the one who indicated that you may want to call her as a witness.
MS. CLARK: Right.
THE COURT: For either the two reasons that are discussed.
MS. CLARK: Right. I mean, she's--I've had the pleasure of meeting her, and I think she would make an excellent witness. She really would.
THE COURT: No. No. You can't say stuff like that.
MS. CLARK: That's right. I'm sorry. But yeah, there's that potential. And I just--it really depends on what the ultimate ruling is, what comes in, what goes out, in what form. That really is going to have a lot to do with our position, what witnesses we need to rebut with, and we don't know that yet. I would like to proceed with the rest of the trial. If another Judge is going to be determining these issues, then I would only indicate that perhaps in an abundance of caution, we should take a waiver from both sides that you can continue to hear all the rest of the case just to make sure it's clear. And I'm sure the Defense have no problem with that.
MR. COCHRAN: I don't know that. I don't know. I don't know that we're going to waive. We've tried to see--I don't know how things are going to happen. That's why I'm having stuff from Dershowitz. We're perfectly comfortable here. But at this point, I can't say we're going to waive anything. I think--how can I say that? I've got a client here--Judge--let me ask you this, Judge. I've never been clear. If the Prosecution insists--we're telling you, we're not going to call Captain York. It's not a certain area where I think we're going to call her. That was something brought out by the People you understand. If you had to recuse yourself, does that mean there's a mistrial or another Judge comes in?
THE COURT: I don't know.
MR. COCHRAN: We don't have a brief on that yet, do we? I don't know that this has ever happened.
MR. SHAPIRO: Yes. I think another Judge can come in. There's a lot of precedence for this.
THE COURT: If you can find those precedences in the case law--because I have my eager beavers and legal eagles working on it now.
MR. SHAPIRO: There's a federal case in Nevada where that happened, where a sitting federal Judge was actually indicted while he was sitting in the middle of a trial.
MR. NEUFELD: Right on point.
MR. COCHRAN: Very good, Peter.
MS. CLARK: Anyway, I agree. I think it's probably true that you would have another Judge sit in at least for these issues.
MR. COCHRAN: I meant not only for these issues.
THE COURT: For the whole enchilada.
MR. COCHRAN: You're talking about the whole enchilada.
MS. CLARK: What about just for the witnesses?
MR. SHAPIRO: What if a Judge dies during the trial?
THE COURT: That's legal cause for a mistrial. That's one of the defined causes.
MR. SHAPIRO: Also, couldn't the parties stipulate to continue?
MS. CLARK: I'm sure you can always do that.
THE COURT: I would imagine they could.
MR. NEUFELD: Judge, other people are dealing with the substance. Again, I'll get back to the nitty-gritty of calendar just so you know how quickly we have to do this. I assume Michele Kestler will be finished if not this morning, certainly this afternoon. We have another witness who's here. That's Larry Ragle. After that, it's, you know, our intent to actually deal with these tapes in front of the jury before we go any further with the trial.
THE COURT: Then that tells me that we need to proceed with alacrity to get this determined.
MR. NEUFELD: That's what I said yesterday.
MS. CLARK: We also need a 402 on Ragle. We just got his notes yesterday for the first time. I don't know what they're calling him for. If it's crime scene collection or something like that, it's cumulative to Henry Lee. We have no clue.
MR. COCHRAN: He hasn't testified yet.
THE COURT: Hold on.
MS. CLARK: Assuming you are going to call Henry Lee.
THE COURT: Hold on. All right. More importantly, let's resolve what we're going to do with this recusal issue.
MR. COCHRAN: Can we have a little time on this, Judge, give us like 10 minutes? We--I haven't told the client anything. There is a real client in this case. I've got to talk to him. I need to get word from back east.
MS. CLARK: We need to confer too because we got a draft of a brief done last night. The case law would seem to indicate with respect to ruling on the tapes themselves, what comes in and out, it should probably be another court given what's the content based on the appearance standard. And these were the cases that came out. I'll show the Court the draft, but--
THE COURT: Make sure you write on the top of it this is a draft that you have.
MS. CLARK: But that's the way it seems to be going. I asked everybody to go out and brief this, tell me what you got here, and that's the way it seems to appear. And it's a question of the appearance, you know, would the appearance of it on its face, you know--
THE COURT: Well, let me ask you this though, Marcia. I hate to dump this issue on another Judge because we're talking about several hours of tape and hundreds of pages of transcript plus having to go back and put Fuhrman's testimony in context.
MS. CLARK: Right.
THE COURT: So if--my proposal to you is that if we determine that my wife is not a material, a relevant witness, if another Judge makes that determination, then to have that material redacted from the transcript and from the tapes and then I'll do the evaluation of what's relevant or admissible on the remainder, it would simply be quicker I think by several days. But if you feel--I mean, if you think you've got good authority on appearances, I'm willing to listen to that. I'm just offering that as an alternative. It may be a little--
MR. COCHRAN: We need a little time to pull back and talk to everybody. Then we can come back to you at that time and at least tell you where we are.
MS. CLARK: I would like to have that opportunity too.
THE COURT: Okay.
MR. NEUFELD: You know what though?
THE COURT: Let's do this.
MR. NEUFELD: We should preliminarily have those discussions now only because given the chronology you just heard, you may very well--this matter may have to be referred for that limited purpose to somebody this afternoon. That's all I'm saying. So we should probably have that discussion with our respective sides now.
THE COURT: I was going to say, why don't we come back at 10:00 o'clock. It's a quarter after now. Let's come back at 10:00 o'clock and see what your positions are.
MR. COCHRAN: Thank you very much.
THE COURT: All right. We're back in chambers with Mr. Cochran, Mr. Shapiro, Mr. Neufeld, Mr. Douglas, Mr. Blasier, Mr. Scheck; also with Miss Clark and Mr. Hodgman and Mr. Darden. Counsel, you've had some time to contemplate the conflict issue that appears before the Court, the 171.1(A)(1) problem, and the Court has proposed a tentative--shared with you a tentative ruling, and I would like your thoughts.
MS. CLARK: I think that it's--that the issue as to whether or not Captain York will be a material witness can't really be resolved by anyone until it's determined what if any of the tapes come in or in what manner the evidence comes in.
THE COURT: You mean, you don't feel that can be separated out from the wider hole?
MS. CLARK: I really don't.
THE COURT: Why do you think that?
MS. CLARK: Well, because what the Defense is allowed--
THE COURT: The reason--I don't ask you a rhetorical question. I ask because, you know, having not heard them or read the transcripts, I don't have a flavor for what it is and why you would say that.
MS. CLARK: Yeah. And I appreciate that. The reason is, there are various ways that you could go in the presentation of the evidence of the tapes depending on what the Court thinks is admissible, what's relevant. In my opinion, you already know my opinion on them. I think they're largely irrelevant to the issues. Whatever we may think of the statements made in them, even if it is assumed that he's speaking in his own voice and not as a character or attempting to embellish to give material for a script, whatever you assume, if the tapes are played, then the issue of the exaggeration and role playing will be squarely framed for the jury in which case--
THE COURT: Are there any other examples? I mean, would this be a cumulative example or a prime example of exaggeration or embellishment?
MS. CLARK: Wait, wait, wait. With Captain York? It would be a good example. It's the only example we would have really where there is a live witness who can say that's way out of line, you know, a live, credible witness that we know of at this time and that--you know, I mean, the credibility of the witness that you call to put things back in perspective is key. You know, if all we do is call another person of questionable credibility to say it didn't happen that way, then you're then--there's nothing to counter really. But you want to call somebody of greater credibility to say it's a gross exaggeration, if anything happened like that, I would have remembered it, that kind of thing. So this is probably the best way to put it in perspective. If, for example, though the tapes are not played, if there is a stipulation that Mark Fuhrman back in `85 through `87 used the word, then what's the point? Then that would not be proper rebuttal because what is she rebutting? She's not going to be able to say anything in that regard. So the nature of the evidence that's put before the jury, the amount, the degree, the kinds of incidents that are put before the jury are going to in large part determine whether or not that's appropriate rebuttal.
THE COURT: So your position at this point is not only would another Judge have to make the call on materiality of Captain York, but also materiality of the whole Fuhrman tape issue.
MS. CLARK: Right.
MR. COCHRAN: First of all, with regard to our position, we would like to argue this in open court. We're asking for an opportunity. But let me give you an idea of where we are going. I really don't think there is an issue at all. We don't want to leave this Court. We don't want to go anyplace because we are the ones--we are the proponents of this evidence. As far as the tapes go, we fought to get them here. We know what they say. We talked to Miss McKinney. First of all, these tapes are not anything about any role playing. This is real hard evidence where this man is speaking himself. That's going to be the testimony. Without going into it, the part that relates to your Honor's wife is very, very small and we propose as follows, because we don't want a mistrial in this case. We're never going to offer that. We propose that the tapes be given to you with that part redacted. It's not even relevant. It's not relevant at all to the issues here because remember yesterday, when we talked about this, there are three areas; racial animus, the propensity to implicate innocent individuals and overall category that we call credibility where he just lied about certain things. I can tell you, this man has committed perjury. The District Attorney's office can do whatever they want to do. But this is the--this is going to be the key part of this case because their star witness is caught under oath lying. These tapes prove it in his own voice and Peggy York has nothing to do with it. We all knew about Margaret York before these tapes. She has nothing to do with it. Disparaging Margaret York has nothing to do with that, none of those categories. So we would be wasting--we're not agreeing voluntarily to go anyplace else. Why should we? We don't want a mistrial. We want to go forward. This has nothing to do with anything. Our obligation was to advise you, and we're telling you what we propose to do to impeach this man. And as I mentioned to you before before we went upstairs, Captain York will never be called as a witness by us. Anyone who tries to call her, it's preposterous. It has nothing to do with anything. If they want corroboration, I'll get them corroboration, the people this police officer beat out in Hollenbeck almost to death where he had 66 counts of ADW in his packet--that was investigated--all the people he stopped. We know the people. We know the party when he talks about Tom, Tom Betriano. This will come alive for you when he talks about Commander Hickman being a dickhead and all these people over and over, all the people, you know, Commander Fricke, Chief Frankle. These are real people. These are real incidents. This is this man's view, and it's chilling and it's frightening and they have to face up to it. So it has nothing to do with Captain York, because he didn't like anybody. He doesn't like women. Captain York, to be convenient, falls in that category. That's not what we're going to be talking about. We're talking about how it relates to the Simpson case. As you said yesterday so well, let's try the Simpson case. And that's the scenario. In that scenario, it seems to me she wants to put this--I want to make sure everybody understands where we stand. We want to do this in open court and we are not agreeing to go anyplace because we don't think it's necessary.
MS. CLARK: All right. Your Honor, you can see as the issue is framed, of course, they would like to preclude rebuttal testimony. They know that Captain York would make an excellent rebuttal witness if what they are planning to do is permitted by any court. They want to give us our corroboration. They want to tell us what witnesses to call. You know, do I need to be told I'm being given a pig and a poke? Thank you very much, I know how to try my own case. Counsel wants to role play. We're not role playing. That is the issue they raised, one of the issues they framed. Let's get on to the Simpson case. I agree. You want to talk about collateral issues? That man's racial animus, as reprehensible as it is, if it is true, is another issue for another time. We can convene the mini trial of Mark Fuhrman when we are done with this case. But there's no way--your Honor, really the only point of credibility framed here is--the only point on which his credibility is in issue is that glove. Everything else is cumulative.
THE COURT: Miss Clark--
MS. CLARK: Johnnie Cochran gives pre-condition runs from the tapes. There's more than they're representing. It's not fair. You're being given half a loaf here. I know you are wise enough to realize that, but it's really unfair because there is an impact to all of this.
THE COURT: What you need to do is go back and reevaluate the rulings of January 20th--
MS. CLARK: I have.
THE COURT: --where I lay out it is the combination in that particular incident with Kathleen Bell. It was racial animus, interracial couples, willingness to fabricate. It was those three things that got that admissible. So I don't know what's on the tapes. I don't know what we're talking about here.
MS. CLARK: Right.
THE COURT: So--but at this point, since obviously we're not going to agree, we'll need to put this on the record in open court in front of Mr. Simpson, and I think the only alternative that I have before me at this point is to send it out for a hearing.
MR. COCHRAN: I think you should here us before you do that.
MS. CLARK: Counsel is saying they're never going to call Captain York. Of course they're not going to call an adverse witness.
MR. COCHRAN: Can I interrupt? She's not an adverse witness.
MS. CLARK: Wait. Mr. Cochran, you want--
THE COURT: We are on the record.
MS. CLARK: It's very unfair for counsel to say we're not willing to frame this issue, but we have to try our case too. And I did go back over the Court's ruling very carefully and I understood the Court to rule that certain things had to be shown. But there is one key thing that has never been shown that is the one thing that had to be shown to make this relevant. That is an opportunity to do what they're saying they did, and that's the only relevance for this racial animus evidence; is did he plant the glove. He couldn't have planted the glove. The proof has been demonstrable. It was very clear and uncontroverted in this courtroom. There was one glove at this crime scene. He never could have had access to the other. So what is the relevance of any of this? You know, I'm not saying that we want to sweep it under the rug or we want to paint him like this golden knight and shining hero. We don't.
But we want to try the Simpson case. We want to put on the evidence that's--we're searching for the truth, Judge. The truth we are searching for here is who committed these murders, not whether Mark Fuhrman is a racist. That's a separate issue for another time perhaps, maybe an IAD investigation. I understand he's retired. But the bottom line is not him. It's this evidence, who committed this murder. And the evidence is very clear, concrete that there was no planting of any glove. The Defense can't get around that. All they want to do is put on evidence to inflame the jury so they'll forget about the evidence in this case and go ahead and vote emotionally. I hope their very cynical view of this jury is proven wrong and that the jury will rise to the occasion and say, "No, we're going to look at the evidence" and realize that all of this stuff with the tapes has no relevance to this case whatsoever. It is a very shrewd, cynical and cold-eyed effort to make sure that the jury never looks at the case. That's all this is.
MR. COCHRAN: May we proceed? Without wasting a lot of time here, the only people we have to convince are the 12 people over there. Let me conclude by saying this so that you know. On the tapes, contrary to what Miss Clark says, on July 28th, 1994, Mark Fuhrman says, "I am the key witness in the trial of the century. They know it. If I go down, their case goes down," and he says, "Bye-bye."
MS. CLARK: That's what he says.
MR. COCHRAN: That's what he says. We want to see what the jury says about that. Can we put this on the record, please?
THE COURT: All right. But given our non-agreement on what ought to occur, I'm going to send it out.
MR. COCHRAN: Well, at least, will you hear us, please? We're arguing you shouldn't do it.
MR. SCHECK: We think this is a deliberate effort to create a mistrial.
MS. CLARK: I don't think Mr. Scheck should be allowed to be heard. One lawyer.
MR. SCHECK: You know, your Honor, you heard her the other day when she was opposing these tapes before you tell me to shut up when I pointed out that she should just stop. She has quoted from my bar card. She has called me without a brain. I have been completely civil to her and she should just stop it.
(At 10:30 A.M., in camera proceedings were concluded.)
LOS ANGELES, CALIFORNIA; TUESDAY, AUGUST 15, 1995 10:39 A.M.
Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted; also appearing, Matthew H. Schwartz, Esquire, and Ron Regwan, Esquire, representing Laura Hart McKinny.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Scheck, Mr. Neufeld. The People are represented by Miss Clark and Mr. Darden. The jury is not present. The record should reflect that this morning the Court held two in chambers meetings with counsel, specifically with regards to--with regard to an issue that has been raised by the so-called Fuhrman tapes. And the record should reflect that although the tapes have been discussed with the Court, the Court has--does not have a copy of the tapes, nor has the Court reviewed the transcripts that are said to exist with regard to these tapes. Further, during the course of our discussions counsel for both the Prosecution and the Defense have advised the Court that their review of these tapes indicate that Mr. Fuhrman apparently has made comments that are disparaging of this Court's spouse, Captain Margaret York of the Los Angeles Police Department. It has further been indicated to the Court that there is a possibility that the Prosecution will call Captain York to testify as a witness in this matter in light of that development with regard to the credibility of Mr. Fuhrman. Code of civil procedure section 170.1 sub (A) sub (1) states as follows: "A Judge shall be," which is mandatory, "Shall be disqualified if the Judge has personal knowledge of disputed evidentiary facts concerning the proceeding. A Judge shall be deemed to have personal knowledge within the meaning of this paragraph if the Judge or the spouse of the Judge is to the Judge's knowledge likely to be a material witness in the proceeding." So at this point what is necessary to determine is whether or not Captain York will be a material witness in this case, if her testimony would be relevant or material to any of the issues before the Court. If that is true, then this Court would be required to recuse itself from further participation in this case. All right. I will hear from the parties.
MR. COCHRAN: Your Honor, thank you.
THE COURT: Just when you thought we couldn't have anything crazier happen.
MR. COCHRAN: Yes, your Honor. This has been a most unique case in many particulars. However, your Honor, the Defense rises at this point to indicate to the Court we feel this is a tempest in a teapot. Let me make very clear the Defense position about these tapes and then our position and Mr. Simpson's position about what should happen as to whether this matter should be sent out at all.
First of all, the Court is aware that the Defense is the one who pursued these tapes, not the Prosecution, and I think that is the first point, your Honor, from the standpoint this was their witness. They had an obligation to come and tell us about this witness who commits perjury and engages in ten years of tapes over a period of time where he is speaking in dialogue, and not only in dialogue, these are interviews with Mark Fuhrman. We are the ones with your help who pursued these tapes. And to put them in perspective, what we suggest to the Court is this is a ploy by the Prosecution because they don't want to proceed further. We will never agree to a mistrial in this case. This case should not be sent out. What we propose to do is to give you the tapes, which are the province of our work, submit the tapes to you with the portions regarding Captain York redacted. Those portions where Mark Fuhrman, who doesn't seem to like anyone in those tapes, is disparaging have nothing to do with this case. You have ruled back in January that we are entitled to impeach this man based upon his racial animus, based upon his proclivity or propensity to implicate innocent individuals, and then perhaps a third category of general credibility where he has just lied about certain things, for instance, the fact of whether or not he was going to sue Robert Shapiro. And we've heard all of these tapes and these tapes--so I want to make the record very clear. This man is an important part of the Prosecution's case. As I indicated to the Court, in these tapes Mark Fuhrman indicates, "I am the key witness in the trial of the century. If I go down, the Prosecution's case goes down" and he says "Bye-bye" and that is what they are faced with, bye-bye. They see their case floating out the window because this is a critical witness in their case and Bailey did a good job of tying it together
About whether he had lied. This man has committed perjury. There is no reason to dance around this. He has committed perjury and that is the issue. Your wife has nothing to do with that at all. They cannot rehabilitate Mark Fuhrman if he uses the "N" word thirty, forty times. Margaret York never heard him say that word, presumably. They can't rehabilitate him on that. He talks about destroying people's driver's licenses and then arresting them. He talks about choking out people because they are black, when he talks about how you stop a black man, and he used the derogatory term, in a Porsche, and he gives tips for stopping individuals when he talks about how you lie, how you back your partner up, for six months, up to six months, anything short of an indictment to implicate people and you just arrest them because they are black and he doesn't use the word "Black." Margaret York has nothing to do with any of that. They have got to face up to this fact. This is their star witness. They vouched for him. We profess he is a liar. They know he's a liar. They have an obligation--and it is so ironic, your Honor, in this case that Miss Clark back in chambers last week will tell you we are going to object to the tapes. We reminded her she hadn't heard the tapes. How is she going to object before they are heard? Now, we found out she has heard them. Like those socks. We are troubled by this in this so-called pursuit for justice and honesty. So what we are proposing is that when the tapes are brought down here this afternoon for you that the part regarding Margaret York be redacted. And there is no reason to get into the side issue. Mr. Simpson is not going to stipulate to any mistrial. Jeopardy has attached in this case. We want to go forward. We want to finish this case as soon as possible. Miss Clark now adds to the scenario in our latest visit in chambers by saying she can't tell what is going to be material and some other Judge--and you shouldn't tell--some other Judge should make that determination. Well, as I told the Judge in North Carolina, who knows better what is material in this case than you do? You have been here since September. We don't always agree with your rulings, I mean that is pretty clear, and I think you accept that, but you know these facts. We rely upon you. Mr. Simpson relies upon you to be fair and give him a fair trial. This jury relies upon it. All of America relies upon this. Another Judge who comes in here doesn't know anything about this case at this point, as I saw in the first court in North Carolina, we had to overturn him. So we are saying that you are in the best position. Your wife has nothing to do with this. With regard to that, Fuhrman rises or falls based upon his own voice, your Honor. He is the one talking from April of 1985 to July 28, 1994. He is the one using these derogatory names. He is the one who hates women and Mexicans and black people.
He is the one who hates all of the commanders and this case is about real people. He talks about Commander Hickman, he talks about Deputy Chief Frankel. He talks about Daryl Gates. He is talking about his life as a police officer day by day. He talks about criminal conduct by himself and other police officers. This is a blockbuster. This is a bombshell. This is perhaps the biggest thing that has happened in any case in this country in this decade and they know it. They have got to face up to it. Your wife has nothing to do with that. That is a side minimal issue and you should not be persuaded to send this case anywhere based upon that because we are not going to stipulate to any kind of a mistrial. We want to go forward. We want our day in court. And we feel most strongly about this and this--the last thing I want to say is that this whole thing, your Honor, needs to be unmasked for what it is and on information and belief. I could tell this Court that every file in the LAPD relating to this man, Mark Fuhrman, has been sealed or hidden, cases that have been settled in the last six months, the Britton case and everything. You can't find out about them because they sealed everything, just in the last two weeks. A box of files on Mark Fuhrman in Sacramento have been hidden and secreted away. Now, these are the things of a police state and it is wrong in America for this to be happening, to cover up for this man. It doesn't mean all police officers are bad, certainly it doesn't, but when they close ranks and do this for those people who don't believe there has been a conspiracy of silence here, this is the ample proof. His voice will give you the proof of what he thinks a real police officer should be and how you stand up, and that is why he believes that women don't count. And so the things that have happened in this case are troubling to this community, and anybody who supports what he does doesn't deserve to be an Officer of this Court. And so what we are saying is that let's get it out there, let's lay it out. This is a search for truth. We are not going to hide this any more. This Court should hear it, this jury should hear it, all of America should hear it. And when they do, they will understand what the Defense has been trying to say for all these--yo these many months, and so I ask you with all the fervor of my being on behalf of my client, as we have asked you before, don't send this case, don't stop these proceedings. You saw our jury. We promised these jurors, Judge, this case would be over in April. It is now August. We are trying to do our part. They took six months. We are going to take less than six weeks. We want to finish this case. We have only got a few witnesses left, including this thing on Mark Fuhrman. I told you that Miss McKinny is in town and we are ready to call her as early as tomorrow. We are ready to proceed. We want the People on notice we want Mark Fuhrman brought back from Idaho. We will give them notice right now, we want to finish this case with this jury. You saw then yesterday visibly upset with the cross-examination and it is time to bring this matter to a halt, not engage in these shenanigans again of sending it out to some other Judge who knows nothing about this case, listen to all of these hours and hours of tapes. He or she won't know the facts. You know the facts. So isn't our decision or our proposal to redact the portion of Margaret York? Isn't that the relevant portion? You have ruled many times against us on this 352 argument. Well, if ever there was a 352 argument of somebody being irrelevant, it is going to be Margaret York, because you can see what does she have to do with anything? It has nothing to do with that. We are the proponent of the evidence. We are not going to bring her in. They are grabbing at straws when they say they may bring her in, and I guarantee you, when this is all said and done, they are not going to call your wife in. They are not going to do it. This is just a ploy. And we want to proceed with this trial and get it over with and we ask you respectfully to do that and to listen to us. And we think we are right on this, and this is a matter--I need hardly remind you this matter is costing the County of Los Angeles some six million dollars. And I think that Mr. Simpson hopefully could get a fair trial and get a verdict that reflects the evidence. And it is too late for them to turn back now. They should have thought about this in that rush to judgment back on June 13th, 1994. Now it is too late. They should have thought about this when they put Mark Fuhrman on the stand. And now it is too late and we are going to hold their feet to the fire. If the case is sent out we are going to resist it and get back here in this court. This jury, this country is going to hear these tapes. There is no hiding. They can run, but they can't hide. If the Court has any questions, I will be glad to try to answer them.
THE COURT: Yes. Mr. Cochran, I take it--the problem is what you are asking for me to do, though, is to make a ruling on whether or not my own wife is a material or relevant witness.
MR. COCHRAN: No, no. Let me correct the Court on that. I'm not asking you to make this ruling at this point. What I'm asking you to do--we are the proponent of evidence. What I'm asking you to do is to receive a redacted version of the tapes. The issue you have to make is whether or not these--what he says is material when he calls somebody the "N" word, Judge, and it is in the last ten years and it is his voice and he is speaking about how he feels about black people, when he says--I mean, this is so derogatory I don't even want to repeat the things.
THE COURT: All right.
MR. COCHRAN: That is the issue, Judge, and the racial animus fits within your order. It has nothing to do with your wife.
THE COURT: Mr. Cochran, I have to accept, don't I, the offer of proof by counsel, Miss Clark, that they wish to offer that testimony? I have to accept--
MR. COCHRAN: No, no.
THE COURT: --what they offer.
MR. COCHRAN: No, you don't, and I tell you why not. Because as you have done so many times to us, your Honor, on this 352, where is the relevance of it?
THE COURT: But even the determination of whether or not the offer of proof is sufficient, I don't think this Court should be the court to make the determination.
MR. COCHRAN: Bear with me just one second.
(Discussion held off the record between Defense counsel.)
MR. COCHRAN: Your Honor, I'm reminded by my learned colleagues that we just left chambers, and I mentioned this earlier. Miss Clark says she can't even argue materiality until some Judge passes on the issue of what the jury is going to hear, and that is exactly the point. You never get to this--we are the proponent of the evidence. You don't even get to Margaret York. When you rule on his use repeatedly of the "N" word, when you rule upon all the times he lies--there is an example on there, Judge, about finding a gun and you lie and you say you saw a suspect throw it because you know he is probably guilty anyway. You know, that is exactly on point of what we are talking about in this case. Or tearing up a black man's license saying he has no identification. That is exactly on point. Those things have nothing to do with Margaret York and so she herself said. You said she wants a Judge for all purposes, a new Judge to come in here or go someplace and rule on the materiality of not only Margaret York, but all of this, and that is preposterous. That is a new position they have carved up when they went upstairs, isn't it? It is. I'm saying you don't get to that point. Your ruling back in January is the law of the case in that regard about the things we could do. And we may seek to expand it just a little bit by virtue of the fact where he has lied about other things that we can now prove by his words, but that fits within the whole rubric of credibility, which this is all about. So we are clear about this, and for those people who want to run around talking about race cards, this is not about a race card. This is about credibility card. This is about perjury, that is what this is. People should understand that and we are not asking you to do that. And I am very sensitive, your Honor, to the wife--that your wife is a police officer and we have been sensitive about that since day one. We are very sensitive. But we have relied upon you to be fair despite that. We knew about that that first day, did we not? They knew about that the first day. We relied upon your integrity and Mr. Simpson still chooses to rely upon that integrity. He is saying this is a non-issue being dreamt up by them. You never even get to that. Who in the world can pass upon materiality issues now, but you? Do you think one of your colleagues can pass upon materiality in this case? I don't think so. So that is the issue based upon her new position. It doesn't make any sense. So we submit these things to you. You will then see for yourself, without Margaret York, and then you will see how under no scenario could they call Margaret York to the stand. Now, we have--we have--furthermore, let me just--let me tell you how ridiculous they are. I'm going to show you something, your Honor.
(Discussion held off the record between Defense counsel.)
MR. COCHRAN: I want to show you how ridiculous this is. Early on when we sent this matter out to another court--and I will just speak briefly about this because I don't want to infringe upon any conflict area--your wife was kind enough to do a declaration, and in that declaration let me just read you just one paragraph so you will get a sense of how they are not going to be able to call Margaret York. Paragraph 4. This is the declaration of November 21, 1994. "I possess no relevant material or personal knowledge of Officer Fuhrman, nor do I possess any information relevant to this case." Now, that is what your wife said under oath in that declaration of November 21, 1994. You know, it is grabbing at straws to think now they are going to call her and impeach her based upon this. They can't recreate to try to get a mistrial, to try to throw somebody off while we are on our way.
THE COURT: Let me just make a comment. I think that when I was contemplating these issues last night, I was concerned that if I had to recuse myself mid-trial that that would be legal grounds for a mistrial, even over Mr. Simpson's objection. And my legal eagles from my law clerk staff found me People versus Espinoza, which is at 3 cal.4th 806. It is a relatively recent case written by Justice Kennard and concurred in by all the remaining justices. That in this situation the trial Judge became gravely ill and a second Judge had to step in and take over the trial. This was a death penalty case which did in fact result in the death penalty, and the Judge was replaced midway through the guilt phase, and the court found that there was a legal necessity for the change of judges; however, that in that situation another Judge could then step in and take over the case. If I'm required to recuse myself under 170.1(A)(1), I am convinced that the case law would support another Judge stepping in, unfortunately, having to take a week to read the transcripts or watch the video.
MR. COCHRAN: Very well. That may very well be.
THE COURT: But I don't think mistrial is a consequence.
MR. COCHRAN: Well, then let me say this: If there is a mistrial, we believe jeopardy is attached, so if that is what they are hoping for, it is not going to work. We never agreed anyway. We told you back in chambers that that is possible. We know of a case in Las Vegas where Mr. Shapiro indicated that the Judge is indicted and they bring another Judge in or a Judge dies, so they could do that. Even if another Judge does that, the problem still is we have an obligation that these citizens over here who have been sitting on this case, we promised to get them out of here. We have an obligation to move this case forward. And I just think who among your brethren and sisters on the bench is going to be able to determine materiality or relevancy better than you are after having been on this case for well over a year now? If the part regarding Captain York is redacted, and that is the point that I am indicating because I have tried to indicate to you as clearly as I can, there is no basis for calling her. You know, you heard a number of times our argument regarding something we feel very strongly about, the ability to call these reporters, something we felt very strongly. And repeatedly you ruled it is not relevant, it is not relevant, it is not relevant. I'm telling you that it is not even close. There is not even close to that. It is like night and day. And they are grabbing at straws and I think you can see from what I've told you how could Margaret York, based upon your earlier ruling, be relevant in this situation? It is not. So that is just something they brought up and I just think it is preposterous for us to spend all this time on it. Excuse me one second.
(Discussion held off the record between Defense counsel.)
MR. COCHRAN: The final thing I will say, your Honor, thank you for allowing us this time, is that in Miss Clark's last discussion in chambers she talked about somebody deciding the overall materiality, perhaps other than you, and we do take great exception to that. I don't think anyone else could do that. It will just delay the trial unnecessarily and it doesn't make any sense. As regards Margaret York, if one makes the determination of materiality or if you think because of appearances sake, without stopping these proceedings, someone--I presume some Judge could take--read your reading--take your ruling, look at it all, and make that judgment, that I think they will of necessity come to the conclusion that Margaret York is irrelevant and immaterial, but that way we don't lose time, the trial isn't stopped, we don't lose this time and we don't have the necessary problem. We want a verdict in this case with this jury. Make that clear. We will be pleased if your Honor is still here to be with us on that day. If your Honor can't be here, under Espinoza, bring us somebody else. We want justice; we want it now. It is our client who has been in custody since June 17th and he has maintained his innocence from that day and we think we can establish that innocence through their lying witness and we found him and now everybody wants these tapes. That is what we are talking about here.
THE COURT: Thank you, counsel.
MR. COCHRAN: Thank you.
THE COURT: Miss Clark.
MS. CLARK: Your Honor, no amount of inflammatory invective, rhetoric and the persistent press conferences that counsel insists on giving in court can obscure the fact that they want this issue to remain in this court for a very cynical, cunning reason that I do not think is true but is the problem here, and the problem is this: Given the set of circumstance that we have, the Court is aware that there are allegations made, the Court is aware of the fact of the statements made by Detective Fuhrman concerning Captain York. The Court is not aware the details, but the mere awareness of that fact creates an appearance that the Court may in some way be influenced in one way or another concerning the issues regarding the admissibility of the tapes. That is the legal issue that is framed. The People of this state have the right to expect that we will seek to protect the record in every way possible, regardless of what the fact of the matter is. We know that this Court can be very impartial and very unbiased and yet we cannot possibly say it would be fair to require this Court to set aside its knowledge of the fact that some inflammatory statements were made about the Court's spouse in ruling on an issue of this delicacy and sensitivity. The truth of the matter is that I think that what the Defense wants to do here is hold this issue over the Court's head and the waiver issue as well over the Court's head, hope that the Court will be inflamed enough by the mere knowledge of the fact of the allegations to either rule that the tapes come in more than it ordinarily would, or bend over backward in favor of the Defense to show how fair it can be or bend over backwards to take revenge against Mark Fuhrman. I think that is the Defense thinking, I really do. And whether it is true or not, that kind of thinking is what the Court's have talked about in terms of the appearance. No matter what you do, no matter what you do, Judge, you will be criticized, because there is an appearance created and it is a no win situation.
THE COURT: That is pretty much par for everyday, isn't it?
MS. CLARK: Yes, I agree. I mean--and I think that may be true for quite a few of us here, and the Court has my sympathy in this very unusual and difficult situation, but it is not a situation that is made easier to this Court or made more appropriate by counsel's rhetoric and the constant pointing of fingers and the constant allegations of lying witnesses. Now, I think it is very interesting that counsel has repeatedly said they don't want a mistrial. The People have made it clear we want this jury to decide this case as well in whatever manner we can. We don't want a mistrial. I don't want there to be any mistake about that because the families of these victims have had their lives on hold for long enough.
We hear about Mr. Simpson and his rights. I never speak in derogation of any Defendant's rights, and I will certainly not do so here. He has the right to a fair trial and a speedy one, and I agree. So do the families of the victims. They have rights here. They have feelings. They have suffered. They have grieved and now they are being put through this trial on national television to grieve publicly when at least most families of victims can grieve in their private homes. They have had to be supposed on national television with every horrible issue, every single argument. Every single thing that comes up with every witness they have had to suffer through it. The Court has seen them here. They have a right to have this jury hear this case and have it resolved. Now, we, in all fairness--counsel keeps talking about who got the tape. The Court is aware of the fact that as soon as the People were aware of those tapes' existence, and that was very recent, we sought to get the tapes. We sought the guidance of the Court. We asked to issue an SDT.
THE COURT: I recollect Mr. Darden's 1054.07.
MS. CLARK: So I just want there to be no mistake on the record that Mr. Cochran once again is trying to mislead everyone saying we tried to hide the tapes, we had knowledge of them. No. We were out there looking for them first the minute we found out, so I want the record to be very clear about that. Mark Fuhrman's declaration of his role in this case, whatever that may be, is so irrelevant to be laughable. Whatever he thinks, however important he thinks he is, we all have a sense of importance about ourselves. Some of us are a little bit too low, some of us are a little too high. It doesn't matter. The bottom line is what is his role really, not what he thinks it is, and counsel knows that. Counsel also knows very, very well, as this Court does, that we didn't need to call Mark Fuhrman at all as a witness in this case. We did. Complete the picture, we call all the relevant witnesses, whether they are absolutely legally necessary or not. Now, the fact that he was called to testify does not mean that we characterize him as being the key witness in the case. He found a piece of evidence. What we vouched for in terms of Detective Fuhrman, in terms of everyone in this case, is that no one planted any evidence at any time. There has been no false statement made about where that evidence was found, the analysis of the evidence or its results. And the Defense want to squirm away from that fact by playing the race card. We don't want to do that. We have never wanted to do that. We know what a search for the truth means, your Honor. We know that the truth we are searching for is who murdered these people, not who is Detective Fuhrman. If there was any opportunity for anyone to plant that evidence, to plant that glove, it would be a different story, a totally different story, but there wasn't. The Defense knows that. And they are caught between a rock and a hard place because no matter how badly they want to paint somebody to be the villain in this case, other than their client, the truth of the matter is all of the arrows point to the Defendant because that is the mountain of evidence that exists that he cannot get away from. There was this opportunity for Mark Fuhrman to plant the glove and so whatever his personal beliefs may be, which we may or may not know, the truth of the matter is he could not do what they are trying to prove he did. And now that the evidence has come out conclusively, irrefutably and consistently that there was no opportunity to plant a glove, they are just going all out to smear Mark Fuhrman in the very cynical and shrewd effort to pull this jury away from the evidence, to manipulate them, to play them like fiddles and to say ignore the evidence. We know we haven't proven anything to you. We know we have failed to prove a conspiracy. We know that we can never prove anybody planted the glove or the blood on the socks or the blood on the gate. We know there are pictures of the Defendant wearing the gloves of the exact same type and model purchased by Nicole just three weeks after the purchase that are the exact same type and model as these crime scene gloves. Don't look at that. Don't look at that. We have a big bad boy for you here who said terrible things and possibly done terrible things. That is what is important here. It would be if he could have done anything to impact the evidence in this case, but he could not and that is the truth of the matter. And they want to manipulate this jury so that they will not look at that evidence, so they will look at only the villainous accusations made against Detective Fuhrman. And if they are right, then it is very bad, and that is another search for the truth. The truth we are searching for here right now in this case--and I agree, your Honor, let's try the Simpson case--is who killed these people, and we know it wasn't Detective Fuhrman. Whatever Detective Fuhrman has done in his past is not part of this case because he could not do and we know it now and they know it, too, he could not do what they wanted to prove he could do, so that is fine. We can all search for that truth after the fact.
THE COURT: All right. Let's circle back to the issue that is presented to the Court, however. You have indicated that you feel somehow that Captain York will be a material witness in this case.
MS. CLARK: This--
THE COURT: Isn't that a preliminary fact or preliminary legal determination that has to be made at this point?
MS. CLARK: Well, no, see, and that is the problem here, is that we heed to make something--when need to find out what is going to be admissible before we will know how to respond. It would appear, based on what I have seen in this--these transcripts, and I have read them all, that it could very well be that Captain York will be a rebuttal witness, depending on what is deemed admissible. If a court rules that none of these tapes are admissible, then obviously she is not needed as a rebuttal witness. If the Court, on the other hand, rules that much of these tapes with their inflammatory language is played in front of this jury--and make no mistake about it, you know, if you have any doubt about that, what this Defense want to do is inflame the passions of the jury and cause them to look away from the evidence. You only need to refer to Mr. Cochran's remark when he said to you just today that the remarks are so derogatory he doesn't want to repeat them. I agree with him. I don't want to repeat them either. And I don't want to repeat them in front of this jury where they have no relevance. But until we know that, how do we know how we are going to respond?
THE COURT: Let me ask you this question: Who should make that determination and why?
MS. CLARK: I believe that in context, knowing that what we do--I mean, the Court is already aware that this is negative--there are negative comments made by Detective Fuhrman about the Court's spouse. I think that that knowledge requires that another judicial officer determine what is material, what is relevant, what is admissible in terms of these tapes. At that time we will be able to determine what the People's response will be or potential response will be. But until that determination is made I think we can't know. Now, what I was starting to address to the Court was the issue of the appearances, and the sections and the brief that I have a draft of, but has not been finalized yet, frames that issue very squarely, and that is when there is even appearance that there might be an impropriety or there might be a bias, then it would be appropriate for it to be referred out to another Judge. Now, that doesn't mean--and in my opinion that is a limited thing. That would mean that another Judge make the materiality call but then we can come back.
THE COURT: I just want to suggest to you that as a practical matter, I'm wrestling between the offer made by Mr. Cochran that this Court make the admissibility determination of all the materials, with the exception of what refers to my wife, that--that being redacted, versus--and then because this Court is obviously more familiar with the issues and the fact and events of this case, as a practical matter, since you raise the appearances problem--and I agree that is a very wide conundrum that comes with that, and I'm very sensitive to that, as I must be--as a practical matter it is going to take--another Judge will have to ride Fuhrman's transcripts, will have to make reference to other issues in the--will have to read other witnesses, for example, Detective Lange's testimony regarding his then going outside and seeing the glove as he was directed by Detective Fuhrman. He will have to read--he or she will have to read Kato Kaelin's testimony regarding the conduct of Detective Fuhrman. I suspect a Lexis word search through the transcript where Detective Fuhrman comes up will likely involve perhaps--my guess is that another judicial officer working full-time all day everyday will take a week to resolve this issue.
MS. CLARK: That may well be, your Honor. The problem is, though, that I really don't see how it could be--it just does not seem appropriate, under the wide berth of the appearance of impropriety standard, for this Court to resolve that issue knowing what is hanging out there in terms of Captain York and the possibility of her being a material witness and the allegations that the Court has the knowledge of the fact of, if not the detail. And I don't--I cannot see how it could possibly be appropriate, although I understand, we have a problem with another Judge having to spend considerable time to get up to speed. It can be done.
And I think that in all fairness to all parties, and especially to this Court, it would be a matter best left to the--the auspices of another court where there can be no allegation that there is any motive to do anything, either to bend over backwards to redact the tapes or bend over backwards to admit more of them. It is really a no win position for this Court and I think that it is not one that was contemplated for any court to undertake and that is why they have the broad standard of the appearance of impropriety as it is. I think it is--
THE COURT: Let's assume that I accept your argument concerning the breadth of the appearance problem. Are you prepared to on behalf--you might want to contemplate this. Are you prepared to go forward with other witnesses?
MS. CLARK: I think that we could. I don't see why not, and I would really prefer to do that, your Honor, rather than lose time with this jury and let another Judge get up to speed on those issues. But I don't see why this Court could not continue to hear the rest of the case and that would be a much more effective use of time.
THE COURT: All right. Do you have any other comment, any other suggestions as to what we ought to do?
MS. CLARK: May I have a moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: Let me see counsel without the reporter.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: Miss Clark, you had some additional citations for the Court?
MS. CLARK: Yes, I do, your Honor. Let me cite to the Court Flier versus Superior Court, 23 cal.app.4th 165 at page 170, and it indicates that it goes into 170.1(c), or excuse me, is it--I think it is (C).
(Discussion held off the record between the Deputy District Attorneys.)
MS. CLARK: (A)(6)(c). (A)(6)(c): "The standard for disqualification provided for in subdivision (A)(6)(c) of section 170.1 is fundamentally an objective one. If a reasonable member of the public at large, aware of all the facts, would fairly entertain doubts concerning the Judge's impartiality, disqualification is mandated. The existence of actual bias is not required."
And that is basically the situation that we are confronting here. What the Court is aware of is that nothing in this case has ever been kept under wraps, no matter how diligently we have attempted to do so, and in this particular case we have parties that are not before this Court that are in possession of much of this information who may have a real interest in putting out little snippets of information to tweak the interest of the public. The allegations made by Mark Fuhrman concerning female officers and Captain York will undoubtedly become a matter of public knowledge. I have never been surprised in this case, since I guess September or October, at all the things that do come out, whether they should or not. This will, I'm sure, be no exception in either large or small part. That is the only thing we don't know, is how much will come out, but we have the additional issue here of the fact of a detective on whose credibility the Court will rule in terms of the evidence that will be admissible, who has made allegations about other female officers, in addition to Captain York, so we are talking about an awful lot here that can be, at least to the public at large, something that would cause them to entertain doubts concerning the impartiality. And I think that under the circumstances, Judge, how can you possibly avoid criticism no matter what you do? And I realize that the Court has been in that situation before, but I think in all fairness that this is one that is unfair to put on the shoulders of this Court simply because of the fact that there will be nothing that you can do. And the materiality issue--with respect to what is admissible, we can't put the cart before the horse, so I know that another Judge will be hard pressed to go through everything.
THE COURT: It will be a tremendous burden on some other court.
MS. CLARK: It is. I can't deny that, Judge, but I think it is something that we have to do. We know that there will be no mistrial. We are aware of that. We went upstairs and we researched the issue and we realize that there is no danger of that, and so that was never a concern. And had it been, we would have had to confront something else, but fortunately we don't. So at this point--
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: All right. Just for the record, the--Miss Clark?
MS. CLARK: There is another option.
THE COURT: I just wanted to mention the language that you cited to me in the flier case actually quotes the United Farm Workers. It is a quote from the United Farm Workers case that I cited to you.
MS. CLARK: Right. And we have that one as well, your Honor, so it is obviously a well-known, well-read passage. But there is another way to resolve this. If the Defendant wants to withdraw the race card, we have no problem and no issue, because that is not an appropriate thing to have been injected into this trial and it has been repeatedly by counsel. If we could just try this case on the evidence and the facts, we wouldn't be confronting this right now. This is something that has been injected into this case in a very shrewd manner by the Defense. And if they want to withdraw that now and finally try this case with this evidence and these facts, we can obviate the need for all of this.
THE COURT: All right. Thank you, counsel. Mr. Cochran, I'm concerned about the appearance argument that Miss Clark makes.
MR. COCHRAN: May I address that?
THE COURT: And I'm concerned--it concerns me because of the argument that this Court, in making a ruling on the overall materiality of the tapes, might be motivated to punish Detective Fuhrman for saying these things about the Court's wife; therefore, giving a broader range of admissibility, or it could be argued in the converse, that the Court might not want this kind of stuff to come out and would not want the Court's wife to be embarrassed or to be put through the public spectacle of being part of this trial. I mean, that could cut either way and the problem is it is not that any of that is true, and you know, as professionals in this--in this field, we know that things are said about people all the time that are not--not accurate, not kind, and oftentimes disparaging. And i know that women who operate within male-dominated professions and who are successful are always targets for this kind of treatment, but--and it is something that you live with and you adjust to and you overcome, but the problem is the appearance is what concerns me.
MR. COCHRAN: I appreciate that, your honor. I appreciate that very much, and i welcome the opportunity, i will not be long, to address those issues that you have raised and a couple of comments. With regard to this idea of appearance, your honor, you have been married to captain york for a number of years before this case. Some of us at the outset of this case, i remember back in department 100, believed that you could be fair despite that, that you had integrity. Each step along the way, as i recall, you have told us when your wife was transferred. She was in bunco/forgery, i think, and then she was transferred to internal affairs, and we may have concerns about her being in internal affairs, but we didn't have concerns about your integrity and your fundamental fairness in this case. As i pointed out before on this idea of appearance, the people are somewhat hoisted by their own pitard. On the one hand they want to have it sent out to determine the things on margaret york. Now they say now we want somebody to determine all the materiality, and that doesn't make any sense because you don't have a conflict between--regarding all the other materiality, it seems to me, so that at least you should make that determination. I didn't hear a good answer from Miss Clark regarding that. You would be in a position to best make that determination, judge. Let me just tell you--mr. Blasier was kind enough to run on his computer--Mark Fuhrman's name has been mentioned 1813 times in the transcripts in this case. You don't think he is key to this case? It is not only in his mind, it is in their mind, it is in everybody's mind. It is key. They want to wipe him away. They didn't gall dr. Golden. They can wipe people away. But they are not going to be able to do that. But judge, the point is this is critical. You can't just read lange's nine days of testimony, another judge, and get up to speed. You have got to understand what lange and vannatter and kato kaelin said. You got to understand, judge, how important this witness is, because remember, they talk about not planting stuff. Preposterous. This man goes off by himself for fifteen minutes or more and then he supposedly finds this glove, judge. This is after he has been taken off the case. It is not his case any more. I'm not going argue that because that is preposterous, what she is saying, and the jury will make that determination. This man--you have to get all the facts to understand fuhrman's involvement. So you know, the thought that some other judge is going to decide materiality based upon the ruling you made back in january is preposterous and it is unfair to the whole system. And furthermore, you know, there is another point i thought about when i was sitting there. This jury is going to think the defense is holding this up, and again it is the prosecution by this frivolous attempt here by trying to stop the proceedings. This is during our case, not during their case, because they want to avoid what is coming in. Now, let me just address a couple other things, your honor. Counsel talks a lot about--she made a number of statements which i won't even bother to dignify with regard to these tapes. I should point out to your honor that they may have talked to your honor in chambers, but they didn't go to North Carolina, they didn't do any of that. We are the ones who did that. And he is their witness. So let us make the record completely clear. She talks a lot about this idea of a race card, and we take personal umbrage to that, because as this court knows, credibility is the key of every case. Caljic 2.21, et cetera, says a witness materially false in one part can be distrusted in others unless the greater probability of truth lies in their testimony. So judge, this is about credibility; it is not about race. I happen to be black, he happens to be black, these men happen to be white. What difference does that make? We are all still americans.
The question is in this case credibility and whether or not this man has lied under oath, which the tapes will show that he has, so she talks about with drawing the race card. That is preposterous. They are not withdrawing anything. She would like for to us do that. We are not withdrawing credibility card because that is what this is and so that was a nice move, but it is not going to work. And now in addition to that, your honor, let me come back and end on this note about captain york. It seems to me that a reasonable and a wise way out of this is for us to continue with this case. The defense--we shouldn't be punished because of this frivolous motion. Another judge is going to take--i think you are being very kind--a week. A week is going to be very long. Most courts unfortunately don't work as hard as we work in this court, so it is going to take a judge from nine o'clock in the morning until nine o'clock at night longer than a week to read all this testimony, to understand what this case is about, to become familiar, when you could rule on materiality. Because we are going to submit to you tapes that have nothing to do with your wife. If at all, she is talking about something coming up in rebuttal because that is the only time they get back up. So how do we even get to that issue? Because it is going to be very clear to anybody that is never going to be an issue. Your wife has nothing relevant to say. Judge, let's think about this for a minute. Is marcia clark, after we play these tapes for the jury, going to stand up before the jury and say he didn't use the "N" word and he didn't talk about throwing people down stairs and breaking their necks? And he didn't do all that stuff and margaret york can tell us that. It is preposterous. That is preposterous. That is not going to happen. You know it is not going to happen. Out of appearance because you want to be fair--let me tell you something. When you get in the kitchen, you stand the heat. You said that before. You stand the heat everyday. It is not going to be popular. We are mad at you one day, they are mad at you one day, somebody is always mad at you. We handle that. We handle it and we come back.
THE COURT: I must be doing a pretty good job.
MR. COCHRAN: That is for sure. And the question is are you evenhanded when you pass on all these things? We talked about that yesterday. Are you evenhanded? And that is all we ever asked for. And we just want you to be fair to both sides, and you are in the best position to be fair on this issue of materiality. Another judge--it is an unfair burden, something they just can't even do. We don't even get to this question of rebuttal. Miss Clark does admit, let's go on with the trial. The problem with going on with the trial is we gave them our witnesses, and we have--as you know, we would like very much to finish miss kestler and then we have mr. Ragle and then we are right up against McKinny and our ability to play these tapes. That is what we want to do. We want to proceed with our cross-examination at that point. And i'm telling you that the part we submit to you will have nothing to do with captain york. We don't want to play anything about captain york. You always say we have a right to try our case the way we want to. If they want to deal in some fantasyland and try to figure out a way to bring your wife in, it will be clear to you, to this jury, to everybody in america, that is just folly and it is not going to happen, i'm just telling you. So why do we have to go through this in the first place? So when you get back to the idea of appearance, it has to make some sense of appearance. The only reason you know about your wife being in these tapes--you know why? Because yesterday Miss Clark went up there and told you about that. We didn't tell you about that. She brought it up and we confirmed certain things. She was the one who asked to tell you about that. I don't think it is relevant because we had made a decision among the defense that it wasn't relevant. We weren't going to offer it. So we didn't even offer it. It has no relevance. And that is the way we stand now. It has no relevance. We stand in the unique position where the defense is saying to a judge who is married to an lapd captain, you go forward because we think you can be fair in this particular case. We think even more than that. You have shown, with regard to your rulings in this case, which is somewhat of the law of the case, and when you look at that ruling it is pretty clear about the things we will be allowed to do, this is not a big issue. They have tried 402 motions on every witness we have in their search for truth, but the law is already set out pretty much on what we can do with fuhrman and that is why these tapes are so very, very important. Judge, if you were a lawyer and you went to sleep and you dreamed about something happening and you woke up, you couldn't have asked for more than to have the key prosecution witness on tape for ten years talking about the things this man talks about. And when i talk about that, it has nothing to do with your wife. As i said, he doesn't like anybody, but specifically he doesn't like black people and specifically he likes to frame people and specifically he lies when it suits his fancy. And he was their witness and this is about credibility and you can't wipe out credibility because that is the key to this case for everybody, is whom are you going to believe? It is not Miss Clark's theories. She throws out all these theories about gloves. That is just for the press. They can't prove anything about any gloves. They can't prove anything. If they would, they would have proved it before, and it is just speculation. And at the end of this case, judge, if things haven't gone well and they are trying to figure a way out but they are not going to get out because you know what the facts are. And i'm just saying on the whole idea of appearance, i also think you will be fair. I don't think you will bend over backwards either way. I think you are going to call it the way you see it. I would expect nothing lese of you, otherwise we wouldn't have been here in the first place, we would have gone someplace else. So we want to finish this case with you but we want to finish this case, regardless, with or without you, as i said before, and we hope it is with you. But just remember the burden they ask you to place upon one of your colleagues for no good reason, 1813 times fuhrman's name is mentioned to this point. Do you think somebody is going to get a flavor from that, from reading the testimony? You think they are going to get a flavor of bailey's cross-examination, how important this is? Way off in the distance is the spectre we may think of a reason to call margaret york so we can get you off the case or get some other judge down here. Why would they do that? Are they worried about you all of a sudden, the appearance? We are saying the only appearance is that you are the one best suited to do it. That is the appearance we are faced with. And as to the other, if it comes up at that time and you feel some question about it, then deal with it back then, deal with it on the back end when we get to that point, but i think after you rule on what is relevant--and we are not asking for margaret york and it is not their case to ask for it. So it is in our ballpark. We don't even cross that bridge. How many times do you tell us, counsel, you are premature. They are premature at this point and it will probably never ever come up. I respectfully ask you to let's go on with this case. The jury has a right to hear these witnesses and they have a right to get this case and make a decision. May i have just a second, your honor? May i talk to the client just a second, your honor?
(Discussion held off the record between defense counsel and the defendant.)
MR. COCHRAN: I'm reminded of two things and i will conclude, your honor. I think that the court has already in fact reviewed certain internal affairs files on fuhrman, i believe, and i'm pretty sure about that. I know you have conducted a hearing regarding the district attorney's office and their prep session of fuhrman where they are all present and they sat around, you know, in the grand jury room, so you have done those things. I mean, there is so many things that you have done already. Nobody was worried about any appearance of conflict at that point. Your wife at that point i think was assigned to internal affairs. We didn't raise any issue at that point because we trusted you, judge, all along. All of a sudden they are worrying about some appearance. Appearance doesn't even show up at this phase. Mr. Simpson, if the court would allow me, wants this court to be aware of the fact that certainly he, along with all of us in this courtroom, his heart goes out to the families and the victims of this case. He is also a victim in this case. And so when marcia clark makes those statements, don't for one minute misunderstand our sensitivities. And we have tried to conduct ourselves in a way throughout regarding the families of these victims, but we have a man who from the very beginning has maintained his innocence and he is troubled by what the so-called authorities have done to hide and cover up for detective fuhrman. Somebody out there, judge, should do something about this cover up. Somebody should do something about all these files that have been hidden and sealed. This is still america and that is unfair and we think it bears directly upon fuhrman's activity in this case, other cases, and it has a direct bearing on o.j. simpson's innocence. And he has maintained and continues and will maintain his innocence until the day he dies because he believes that the facts will show that and that in fact he is innocent. He wanted me to indicate that to the court. It is not any lack of sensitivity at all on our part at all, but he, too, has become a victim in this rush to judgment and so he wants his day in court and we wants to proceed and do that. Thank you very much, your honor.
THE COURT: Thank you, briefly.
MS. CLARK: Okay. We heard no cases cited by counsel. Counsel cites to a frivolous motion. It is his motion. It is counsel's desire to get these tapes before the jury, and i agree, it is frivolous. There is no cover-up going on, your honor. We are not--you know, mr. Cochran cannot presume to think for the prosecution. He can't get into our minds or our offices or our briefcases and tell us who we can call on rebuttal and who would be appropriate. And you know, i think that we know how to try our case a little better than he does and what is the appropriate witness to call in response to whatever they may be permitted to do is something that we have to determine, and this is something that we will determine only after we know what isn't relevant and admissible. But what mr. Cochran is very insensitive to is the position that this court is put in and the appearances that are going to be created if this issue is left in this court at this time. The rules of judicial conduct will require that the court always require--always remove itself from any possibility of appearance of impartiality or impropriety. And now mr. Cochran is trying to lure this court into abandoning that code of judicial ethics. This court knows what the reality is and the fact of the matter is that is why the cases talk about the appearances and not the actual proof of such a thing. Mr. Cochran and his team, i am sure, are hoping and calculating that you will be biased, your honor. That is the point of this kind of situation. Whether you actually ever do that, and we do not believe that you will, but whether you actually do at some point or not, that is their hope and their desire. That is the motive here. That is the target, let's make no mistake about it. And when--whatever you do, however you rule, there will always be the appearance that somehow they got their way perhaps or that perhaps the opposite, you leaned unfairly on them to avoid that. No one will ever know because that appearance does exist. That is the problem that we face with this situation. They have the opportunity to obviate the whole thing, but they have made it very, very clear the way they want to try this case. They have been doing it now for almost nine months. They are not going to stop. It is going to be up to a court to stop them. The press conferences, the invective, the allegations, the untrue allegations. I wasn't talking theories when i said nothing was planted. I'm talking about fact. I'm talking evidence. I'm talking what witnesses have said under oath. They have got nothing of the kind on their side. They have allegations, they have empty theories, they have conflicted theories, contradictions within their own theories. It is nonsense, smoke and mirrors. Again, we are used to it. We are old hands at this. We have seen this for how long, twelve months now, the defense always get up on puts on this smokescreen like an octopus, you get too close, out comes the ink. This is their ink. This is it. I'm not sure that Mark Fuhrman should be painted as a god or a hero, but he is certainly no critical witness as counsel keeps insisting. And whatever is determined, i hope that this jury and i have faith that this jury is not going to be as easily played as counsel anticipates or as counsel plans. Nevertheless, counsel has failed to give this court any case authority or any factual authority or made any offer to stipulate in any way, shape or form or issue a waiver that might make it possible for this court to hear this issue. And in light of that fact, your honor, we are left with the problem that we are left with and i don't see how the court can do otherwise than have the case sent to department 100.
THE COURT: All right. Thank you, counsel.
MR. COCHRAN: Before you do that, your honor, i have asked mr. Douglas to call mr. Dershowitz. We want, before your honor makes any final ruling, a chance to get our--to get some cases for the court. As you know, during the break we did speak with messers. Dershowitz and jerry uelmen, so we would like for you to have those before you make any final ruling.
THE COURT: All right. I was anticipating taking the matter under submission, doing on research over the lunch hour and ruling this afternoon.
MR. COCHRAN: Okay. We will have it by that time, your honor.
THE COURT: All right. Miss Clark, if you have some other authorities, you can give to it mrs. Robertson.
MS. CLARK: Thank you, your honor.
MR. COCHRAN: That will be fine, your honor. Your honor, can i say one last thing?
THE COURT: Yes. No. Actually, no, i've heard enough.
MR. COCHRAN: All right.
THE COURT: It is just that naturally polite reaction that i have.
MR. COCHRAN: I will save it.
MR. NEUFELD: Your honor, do you want to wait on other testimony until you resolve this issue?
THE COURT: I think we need to resolve this issue first.
MR. NEUFELD: Okay.
THE COURT: This is sort of--i'm required to rule on this issue once it has been presented to me and that takes precedence over all other issues, so this has to be determined at this time. All right. We will stand in recess until 1:45.
(At 11:44 A.M. the noon recess was taken until 1:45 P.M. of the same day.)
LOS ANGELES, CALIFORNIA; TUESDAY, AUGUST 15, 1995 1:50 P.M.
Department no. 103 hon. Lance A. Ito, judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, csr no. 4855, official reporter.)
(Christine M. Olson, csr no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the simpson matter. All parties and counsel are again present. The jury is not present. Sorry the district attorney can't pay their lawyers enough to buy jackets.
MR. KELBERG: One is being sent down, however, your honor.
THE COURT: All right. As to the recusal issue--actually i see we have mr. Schwartz and mr. Regwan present in court. Counsel, yesterday we had counsel for mr. Fuhrman in court yesterday asking for the court's assistance to get copies of the transcript and the audiotapes. It is my understanding that your client is willing to display the transcript to mr. Fuhrman and to make available for them to listen to the tapes; however, you are not willing to provide any additional copies but you will give them the use of your conference room or your office to do that. Is that correct.
MR. SCHWARTZ: That's correct, your honor.
THE COURT: All right. I will have mrs. Robertson communicate that to miss butler and mr. Tourtelot. All right. We have your card, correct?
MR. SCHWARTZ: I have another one.
THE COURT: All right. Thank you, gentlemen. I appreciate your cooperation on this matter.
MR. COCHRAN: Your honor, they are here also for another reason as the court is aware.
THE COURT: No.
MR. COCHRAN: All right. Let me just indicate that we asked them to come down. They have the--pursuant to the subpoena that we obtained in North Carolina, the one issued, they have the tapes. And what i would ask the court to do is to have them leave them with the clerk and we--i have asked for some further time to discuss a proposal i have for the court. Just put it in your honor's clerk's custody at this point and i will address the issue of redaction after that.
THE COURT: Gentlemen, at the conclusion of the session today i will direct you to turn those materials over to mrs. Robertson. And mrs. Robertson, i will direct you to place those items under lock and key. All right. All right. Mr. Cochran, you said you had some other proposal?
MR. COCHRAN: Yes, i do, your honor. I have a proposal for the court that may save some time, and i wanted to give this to the court. First of all, your honor, we used our time hopefully wisely over the lunch hour with regard to these tapes, the laura Hart McKinny tapes. And what i would like to propose is an offer of proof. This is our part of the case and i would like to propose an offer of proof which i think is appropriate under the circumstances and share some additional facts with the court. I would like to further back this up with a written detailed offer of proof which we would be prepared to file with this court by tomorrow morning, but i can tell you pretty much what it is. We spent the time researching--let me proceed as follows if the court pleases. As far as mr. Simpson and the defense, we contend we should be allowed to proceed as follows: We have checked these tapes out and there are at least thirty times when the so-called "N" word is used to refer to either suspects, regular citizens, city council people, anyone in disparaging terms. There are at least 17 instances in these tapes in which fuhrman, detective fuhrman, admits or approves of planting, manufacturing evidence, lying or covering up police misconduct, at least 17 instances. And in one instance he describes himself playing a key role in covering up a situation, your honor.
THE COURT: Mr. Cochran, forgive me for interrupting you, but this is sort of the offer of proof that you need to make to the person who will make the materiality call.
MR. COCHRAN: Well--
THE COURT: So i thought you were going to propose another method of evaluating that issue.
MR. COCHRAN: Well, i will do that, but i'm saying to you once you hear this offer of proof, it is back to our additional position i made this morning, that there is no reason to send it out. And if you do send it out, then send it out only--here is what we propose. Assume arguendo that based upon this, the thirty instances of where the "N" word has been used, at least 17 instances where this officer talks about lying, covering up, beating people and that sort of thing, let's assume that that is relevant, okay?
THE COURT: Uh-huh.
MR. COCHRAN: Then under that scenario let them argue that margaret york is material. Because you are going to say--we are going to waste all this time in l.a. county--i can't believe the board of supervisors are hearing this. They must be really shocked out of their mind. How could you pull a judge off another case and ask them to read this entire transcript for something they will never be able to get in? This is a waste of time and it is ironic that we are the ones bringing this up it seems.
THE COURT: Mr. Cochran, here is the problem. The problem is this: They raise the argument, they raise the issue that because the court is now aware, based upon the offers made both by you and by Miss Clark, that mr. Fuhrman has made comments disparaging of this court's spouse, would a reasonable person with those facts suspect that the judge might have difficulty in being fair in evaluating the materiality of impeachment material with regards to the person who is alleged to have made these disparaging remarks?
MR. COCHRAN: Well, let me answer that. Let me answer that. Well, you know what remember? I told you this morning how this man disparaged everyone. We went through the transcript. Also, we are not going to be able to send it necessarily to people in this county. Let me read something for you.
MS. CLARK: Your honor, objection, objection. Counsel is going through the content of these tapes and it is not appropriate at this time.
MR. COCHRAN: May i proceed, your honor, please? "Every judge of the superior court and supreme court. I don't know what the supreme court or superior court says and i really don't give a blank." That is how he refers to superior court judges in this county and to politicians. He has something for everybody. So it may be your wife, but he has just as little regard for superior court judges. I suppose that a judge who sits and listens to that on the tapes--and i quoted from the tape--they are not going to be very pleased with that either.
THE COURT: The problem is my wife is an apparently referred to by name, by rank and by--
MR. COCHRAN: She is.
THE COURT: --assignment, contact with this person.
MR. COCHRAN: She is, but i think he also refers to superior court judges in this county. He has no respect for anyone. So i'm just pointing out to you that it is not going to be easy. If you want to send to it a woman, he doesn't like them. You want to send to it a black, he doesn't like them. You want to send it to a mexican, he doesn't like them. He doesn't like jews or anyone unless they are white anglo-saxon police officers. And that is the problem in this case, judge, so i just want wanted to point that out to the court.
THE COURT: All right.
MR. COCHRAN: So let me just propose this. This is a fall back. I don't think you should send it anywhere because i think it is a waste of time. If you are going to send it anywhere, then i think the court should carefully, with the assistance of counsel, tell this jury something about the delay. It is not the defense, no. 1. No. 2, if you are going to send it anywhere, you are going to send it under only the scenario that you assume what we have said is material and relevant and we will prepare something in writing. Then let the people put up or shut up. Let them talk about how your wife could possibly be relevant. If the judge finds that margaret york is not relevant or germane, even in rebuttal, then send the case back and then we get on track and keep going. That is what we are trying to say, judge. You understand what we are pushing and trying to say and i hope i succinctly have stated this as well as i can, but i'm telling you, you are going to have a problem no matter where you send this case. Without going into more detail, that is what we propose. May he have just a second, your honor?
THE COURT: Sure.
(Discussion held off the record between defense counsel.)
MR. COCHRAN: Just two final points if i can, your honor. We feel really strongly and unanimously that this issue about your wife is made in bad faith and is a red herring. It is going to come back and you are going to say there is no way. There is all kind of ways what fuhrman says with regard to even your honor, it is not going to be relevant at all, but i want to make sure the court understood what i was saying. If the matter is referred out on a limited basis, if you assume these items are material, the other judge, without reading everything, then he has to address, once we lay it out, their argument regarding materiality regarding your wife. If they don't, if the judge--and of necessity the judge must, it seems to me, find that to be irrelevant and immaterial, and then it comes back to you without any further delay, then you make the determination of what the jury gets to hear. I want to make sure that was clear as to what i was proposing.
THE COURT: All right. I understand that.
MR. COCHRAN: Okay. Very well.
THE COURT: All right.
MR. COCHRAN: Thank you, your honor.
MS. CLARK: Well, your honor, the people have done further research over the lunch hour, and you know, counsel mentioned red herrings, and it is real unfortunate, but this is a red herring that has really skewed this entire trial and it is the defense making. One of the incidents that has racial undertones to it directly involves captain york. It will make the rebuttal extremely germane and it goes right to the heart of the issue. As i framed it in chambers, counsel will not be able to resist the relevance of the rebuttal on grounds that it is only sexism. And for myself, i don't call that only, but in this context one can understand it; it is not. And that very incident kind of describes the entire people's argument as to why these tapes should be deemed inadmissible, as to why they are not material, as to why this is a red herring, and we will be forced to put that on in response to the defense use of these tapes. The issue under fortunately cannot be confined solely to the witness' pertinent to the tapes. We researched 170.1 and under 170.1(A)(6)(c), as i have cited to the court, a person--this court would be--would be ruling on the admissibility of tape evidence where a person aware of the facts might reasonably entertain a doubt that the judge acted within impartiality. That is the position the defense has put us all in with their insistence on making these tapes the cornerstone of their case. If this tape--if this court heard and decided the admissibility of the fuhrman tapes, a reasonable person could conclude either that the court ruled admissible otherwise inadmissible evidence to spite the detective who has made disparaging comments against the court's spouse and female lapd offers in general or that the court exclude otherwise admissible evidence from these tapes to the detriment of the defendant in what could reasonably be perceived as an effort by the court to protect its spouse. That is the situation that the defense insistence on the use of these tapes has put us in. The people submit that it is critical at this time to step back from the emotionalism and the firey rhetoric of this morning and to look at this issue from a purely legal standpoint and to recognize and reaffirm the need to protect the institutional integrity of the judicial system. And this principal form is the code of civil procedure 170.1(A)(6)(c), and it is a principle of such magnitude and paramount importance that it supersedes any other considerations. We note that under section e of canon 3 of the california code of judicial conduct declares a court disqualify him or herself in a proceeding in which the judge's impartiality might reasonably be questioned. The commentary to section e indicates that under this rule a judge is disqualified whenever the judge's impartiality might reasonably be questioned or whenever required by the disqualification provisions of the civil code of procedure. And the problem that we are faced with and the reason that the test is that it is not actual bias, but the appearance of bias, is that it is the appearance of impartiality by the judicial officer that is of paramount importance in our judicial system. With their insistence on the use of these tapes to put into evidence one of the biggest red herrings that has ever been seen in the course of jurisprudence, they have forced us to litigate an issue that directly involves the spouse of this court in multiple ways. And whether there is actual bias and whether this court will be able to actually set aside its bias is no longer in issue, because the appearance has been created.
And so what we are talking about at this juncture is that there is no ability to sever the issue and say this is it and we'll take only this issue out and then come back, because the situation that has been created now is that all rulings with respect to fuhrman witnesses become suspect in view of what we know to be the case in terms of allegations made by detective fuhrman. Certainly it is framed squarely and completely with respect to the tapes and the issue of their admissibility and then of course again with respect to the admissibility of rebuttal testimony by captain york. But it spreads out to all the witnesses that would be called concerning Mark Fuhrman. All rulings at that point will be looked at from the point of view, well, we know why he let the witness say that, after all, he knows what Mark Fuhrman said about his wife or all female officers. That is the situation we are put in now. Very unfortunate. I offer the defense again an opportunity to try this case on its merits and on the evidence that is relevant to the facts, that is relevant to the events, that pertain to the murders of these two human beings, and that if they feel it is necessary to vilify hark fuhrman, surely the biggest red herring that ever was, the people offer to stipulate that he used the "N" word in `85, `86 and `87. And i think that fairly gives them the opportunity to impeach him on a matter that is collateral at best and yet would allow us to proceed with this trial without the need for total recusal. I take it by mr. Cochran's rhetoric that a reasonable alternative such as the one i've suggested would never be acceptable to him, but i make it nonetheless.
THE COURT: All right. Counsel, i think i've heard enough argument.
MR. COCHRAN: May i respond to that just briefly?
THE COURT: Mr. Cochran, no. I've heard enough. I've heard enough. Thank you. All right. Under our code of judicial conduct and also the code of civil procedure judges are under a direct statutory and ethical obligation to decide all issues that are presented to them. I am very reluctant to send this matter out to another court for two reasons: One, it is an incredibly onerous burden to ask another court to make this determination, both from the point of view of the voluminous record that that court would have to review in order to be in a position to make an intelligent ruling, but it is also perhaps one of the top three most difficult decisions to make in this particular case. In this case there have been several decisions this court has had to make that have been difficult decisions to make, and this is an extremely difficult one that i was not looking forward to having to make. Having said that, the canons of judicial ethics and the code of civil procedure do not give to trial court judges the benefit of the doubt, and when a concern is raised regarding a court's ability to be fair and impartial, it is not the actual existence of impartiality or partiality that is the issue; it is the appearance. I love my wife dearly and i am wounded by criticism of her, as any spouse would be, and i think it is reasonable to assume that that could have some impact. As i mentioned, women in male-dominated professions learn to deal with this and those who are successful i think we all observe are tougher than most. But having said that, the appearance of a reasonable concern that this court could impartially rule on these material issues is there and i feel i have an obligation then to recuse myself from two issues: One, the scope of the impeachment that is available of mr. Fuhrman through these tapes because one might suspect that this court would have a motivation to punish mr. Fuhrman and thereby make wider the scope of impeachment. Someone might reasonably be concerned about that. One might also be concerned that this court, in trying to express its impartiality, would bend over backward the other way and restrict it. In either event there would be concern about this court's ability to act impartially in this matter. I therefore recuse myself from the issue of the tapes themselves and specifically whether or not captain york is a material and relevant witness for rehabilitation and/or impeachment of detective fuhrman, as the case may be. This matter is therefore--this particular issue is therefore transferred forthwith to department 100 for the reassignment. I'm going to order counsel there forthwith for the purposes of selecting a court to hear the matter, to schedule the matter, and to set up a briefing schedule. I think i've had my staff running on the lexis word search and we come up with an incredible number of transcripts that are going to have to be reviewed by the receiving court. I suspect i won't get a christmas card from the judge to gets this case. My guess is this is seven to ten day's worth of work. What i propose to do is order counsel back for three o'clock so that we can finish with miss kestler, which i would like to do that and we will proceed with mr. Ragle, if i hear no objection, so the trial at least can progress while those other issues are being resolved.
MS. CLARK: Your honor, with respect to mr. Ragle, the people will be requesting a 402. We have no idea what the defense wants to call him for.
THE COURT: Well, let's take that up at three o'clock.
MS. CLARK: All right.
THE COURT: But i want to make sure that both sides understand, i want both sides to understand that they have a significant burden and obligation to carefully and fully brief these issues for the judge that gets this issue, because this will be coming out of nowhere for this court. And i will include in the package that i send the court's ruling of january the 20th where i frame the issues that are relevant to detective fuhrman from this court's point of view. But your briefs in support or in opposition need be detailed with clear references to where you are referring to in the transcript and the details of your argument briefly, concisely and to the point.
MR. COCHRAN: We understand that, your honor. May i inquire about what the court will say regarding the jury? I think perhaps we can conclude miss kestler this afternoon, but we would like to hold mr. Ragle at this point, given where we are at this point. We would like to finish kestler obviously, she is on the stand, hold ragle back because we have a lot of work to do also. And the other thing is i would ask the court during the interim if you will frame something to tell this jury. This is not our issue. This is not anything that the defense has caused. And i would ask the court to frame something that indicates an issue has come up, whatever you choose to say to them, so there is no blame that falls on the defense. Because i remember at the end of the court yesterday the court was a little bit irritable. It was catching probably, the witness and the court, and there is good reason the jury should be told something so it doesn't reflect against mr. Simpson. The court will agree with that.
THE COURT: I don't think that is inappropriate. We may be looking, depending on how you have this scheduled and what you confer and decide amongst yourselves, you may be looking at a couple of days of down time. I realize that.
MR. COCHRAN: I would ask the court to do that and you can think about it until we come back, and we are ready.
THE COURT: All right.
MS. CLARK: Your honor, there is a problem in that our research has uncovered no capacity to sever out issues on recusal and to recuse on an issue by issue basis. And we would need to brief that issue as well.
THE COURT: Do you object?
MS. CLARK: I don't know that we have--
MR. COCHRAN: We don't, your honor.
MS. CLARK: Can we take a waiver? I don't know that we can waive. I don't know.
THE COURT: Yes, you can waive.
(Discussion held off the record between the deputy district attorneys.)
MS. CLARK: That is the issue that we have been trying to wrestle with is that there is no provision in the code for--
THE COURT: Well, counsel, i would refer you to 170.3(B)(1).
MS. CLARK: (B)(1)?
THE COURT: (B)(1).
MS. CLARK: May we confer for a moment, your honor?
THE COURT: Well, that is an issue that you can take up--what i want to do is get you up to 100, get you situated, get you scheduled, and then we will come back at three o'clock and finish kestler. But your people can think about the issue under 170.3(B)(1).
(Discussion held off the record between the deputy district attorneys.)
MR. COCHRAN: May i inquire, your honor. Do i understand the prosecution is saying--
MS. CLARK: Excuse me, mr. Cochran.
(Discussion held off the record between the deputy district attorneys.)
MR. COCHRAN: I was addressing the court.
MS. CLARK: If we could reserve our position on that until we come back then at three o'clock then, your honor.
THE COURT: Sure.
MS. CLARK: Thank you.
THE COURT: We will stand in recess. Counsel are ordered to appear in department 100 forthwith.
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the simpson matter. Both parties are again present. The jury is not present. Counsel, what's the status of our proceedings?
MR. COCHRAN: If i may, your honor, make it clear, we are back. Judge reid indicated to us to come back. The court will recall, you invited us back because i had asked you earlier this morning or this afternoon to be prepared to tell our jury something so they don't think it's defense's fault we're having this problem. There is some confusion, your honor, because it's my understanding, it's judge bascue's understanding, judge reid's understanding that this was a partial matter where the court felt for appearance sake, you wanted a court to determine the materiality of the admissibility of the tapes, and further, whether or not there was any materiality to possible rebuttal of your wife, captain york. That's how the order was phrased at the outset. The prosecution now claims you're totally recused on this case, it's bye-bye forever. We resist that. That was not the understanding. That's not the way it was. And so we're back for two purposes, to have it clear about--we have a witness on the stand, no. 1. We have a jury that's been out all day brought by this motion they brought. We didn't bring this. And now they've tried to enlarge in scope what we talked about this morning. So this is what's happened, and we have had a lot of misrepresentations all over the place about red herrings and we resent them. There are no red herrings.
THE COURT: Mr. Cochran, let's tone it now. It's late in the day. It's been a difficult day.
MR. COCHRAN: Okay. I know. I know it is. But we still resent. It's not a read herring. Judge, when you talk about perjury, that's not a red herring. So that's all i want to say on that. But that's why we're back. And judge, judge reid asked further--i told him that this afternoon, the original tapes were presented to your honor's clerk and that he can start on those along with the transcript as i understand it.
He asked me to provide our transcript that we're doing, which is i think verbatim--it's not finished--as soon as possible and he's going to start listening. He said he would hope that by friday--he's a little optimistic--that he might be able to get around to the narrow issues as he saw them. And he talked about what your order said. But if it's going to be further than that--see, judge, there's real problem. If there is some attempt by the people at recusal, then different things kick in. They have to agree. The judicial council makes the assignment and those sorts of things. So we need to hear from them where they are so they can tell you to your face what they want to do.
MS. CLARK: Yes. That's why i was surprised that mr. Cochran stood to address the court. I understood that the court had advised the people to come back and advise the court of their position, and i was prepared to do so. We've had extensive discussions upstairs, consulted with appellate attorneys and reviewed the case law as well. What i would like leave of the court to do--excuse me, your honor--is to present the court with our written position in the morning. We have to marshal the cases and the factual basis for it. It would appear based on consultation with everyone that the only road to take is to not to waive any matters in this court and to proceed with a complete recusal from this point forward. I would like the opportunity to brief this further.
THE COURT: You sure you want to do that?
MS. CLARK: This has been the subject of continual and ongoing discussion in the office, your honor, and i'm asking leave of the court for this evening to brief it out and to make sure of our position and to present it to the court tomorrow in a cogent fashion and to solidify the position of the people in this matter.
THE COURT: When do you think you'll be prepared to file that?
MS. CLARK: I would file it by 9:00 A.M. tomorrow morning. I intend to work tonight until it's done. But i wanted an opportunity to talk further with everyone before we adopt this course and it gets set in stone, and if we could have the time tonight to do it, i would appreciate it and present the court with the final position in writing.
THE COURT: All right.
MS. CLARK: Okay. Thank you, your honor.
MR. COCHRAN: May i be heard, your honor? You know what our position is, and i think we need a little more time than that. I mean, it's going to be very difficult. It's 20 minutes to 5:00 now, and to have--we don't know what they're going to do, what--how they may change their position over and over again. I think we need to be a little more certain about this and have perhaps tomorrow afternoon if we're going to do it because i don't know how we can get their brief--because we oppose this, what they're seeking to do.
THE COURT: Well, we're looking at the same issue, aren't we?
MR. COCHRAN: Yes. But i think that from a standpoint of the time, i just think that it--it's 20 minutes to 5:00--that's unreasonable. Except they started on their brief last night. We didn't come here planning to recuse you. So that's a little different. She had a brief back in chambers this morning. You'll recall that. So what i'm saying is, we need at least until 1:30 tomorrow to marshal our forces together to resist what they're trying to do here. And i think that's reasonable.
THE COURT: Well, with the array of legal talent that you have, 1; 2, it's a relatively narrow issue--
MR. COCHRAN: I understand that.
THE COURT: The code section--they're only a handful of code sections that deal with this and the case law exists. It's there for both sides to find. It's easy to digest.
MR. COCHRAN: I understand that clearly, your honor. But we have--some people are not in los angeles who may be coming to los angeles. I'm just indicating to the court we need until 1:30 to adequately be able to brief this tomorrow morning.
THE COURT: All right. 9:00 o'clock.
MR. COCHRAN: 9:00 o'clock?
THE COURT: 9:00 o'clock.
MR. COCHRAN: All right. What about our jury?
THE COURT: The jury i'm about to bring out, tell them that we have a problem obviously since they've been sitting on ice all day. I will tell them that the problem is personal to me, has nothing to do with the parties at this point. I apologize to them profusely, tell them that stuff like this happens from time to time. I'll tell them about the corollary to murphy's law, and we'll excuse them for the evening.
MR. COCHRAN: All right. Would you consider 10:00 o'clock tomorrow morning?
THE COURT: 9:00 o'clock.
MR. COCHRAN: All right.
THE COURT: 9:00 o'clock.
MS. CLARK: May i be excused, your honor, so i can go work?
THE COURT: Well, why don't you stick around for--i've got the jury right here.
MS. CLARK: Oh, they're here?
THE COURT: Yeah.
MR. COCHRAN: So we're also clear, what are we doing at 9:00 o'clock so we're clear?
THE COURT: Well, at 9:00 o'clock, i'm going to hear what the prosecution's position is, i'll hear the argument if it's necessary, i'll make a ruling and we'll proceed.
MR. COCHRAN: When you say proceed, let me take one step--proceed with what?
THE COURT: I don't know.
MR. COCHRAN: Let me just follow it out arguendo so we can see.
THE COURT: I don't know.
MR. COCHRAN: All right. We don't need then the witness here tomorrow i presume.
THE COURT: No. I would assume you should have a witness available.
MR. COCHRAN: We should?
THE COURT: But my recollection is, we have miss kestler on 15 minutes' call.
MR. COCHRAN: She'll be available? So, you know--if we're going to be ready to do that, then we should go with the assumption, that we should have miss kestler somewhere available?
THE COURT: Well, you should consider all the options. The options are, either we continue to proceed or, b, we go into hiatus for two weeks and you have a new judge. Those are the two options.
MR. COCHRAN: So i ask until 1:30. All right, judge.
MR. NEUFELD: Your honor--
MR. DARDEN: I'm sorry. On the issue of scheduling, miss kestler informs me she has doctors' appointments in the morning that are very important to her, it's important to her that she make those appointments.
THE COURT: What time?
MR. DARDEN: She indicated to me all morning. Apparently there's more than one. At least, that's my understanding. She had anticipated that her testimony would have been completed well before today or tomorrow. She is--she is i believe upstairs and still in the building if the court wants to hear from her or--
THE COURT: No. Counsel, i accept your misrepresentations of what her problems are.
MR. COCHRAN: She should be here 9:00 clock. They had problems last week.
THE COURT: Well, there are medical problems. Ask her if she can rearrange her appointments, all right, because this is a 6:00 o'clock day. So we still have plenty of sunlight left. All right. Let's have the jurors, please.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. The record should reflect we've been rejoined by all the members of our jury panel. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
THE COURT: First of all, let me apologize to you for having kept you on ice so long today. I need to discuss with you what the problem is and--because obviously you folks have volunteered to give us your time to serve as trial jurors in this case, and you're entitled to as detailed an explanation as i can give to you for the reasons behind the delay. Unfortunately, it has to do with legal issues and admissibility of evidence, the proceedings that we've been engaged in since 9:00 o'clock this morning, the nature of what i can not discuss with you. But i want you to know that it is a--an important decision that has to be made, and i must tell you that it involves my personal participation further in this trial. So it is a matter of concern and something that i need to deal with very carefully. And i apologize to you most sincerely on behalf of myself, the court, and the parties for the delay, but it's an issue that i have to resolve before we can proceed further. And it may involve further delay tomorrow just to let you know. So if you have a good supply of books, bring a couple of extra--what do they call it of yarn--skeins. Bring a couple of extra skeins with you, bring your crossword puzzles. We may or may not be able to proceed tomorrow morning. But i just want you to know that i know that you're up there waiting for us and i'm aware that you're back there waiting, and it causes me great anxiety every day that i--because i know you're there and you're waiting for us to do something. And i've alerted the sheriff's that there's a possibility we may not use you tomorrow to make arrangements to take you to target to go shopping on an extra day or something, but to be available to do that. And i apologize to you profusely. At the end of the trial, as i indicated to you, we'll have some of the news coverage available to you so you can go back and refresh your recollections as to just what it was that occurred back on august the 15th that caused this delay. I apologize for not being able to give you a better explanation, but please trust me that it is something that is important. All right. I'm going to release you for the evening. Remember all my admonitions to you; don't discuss the case amongst yourselves, don't form any opinions about the case, don't allow anybody to communicate with you, don't conduct any deliberations until the matter has been submitted to you. You all have a good evening. Hopefully i'll see you tomorrow morning with witnesses. All right. All right. As far as the jury is concerned, we'll stand in recess, and we'll reconvene in 10 minutes.
(At 4:50 P.M., an adjournment was taken until, wednesday, august 16, 1995, 9:00 A.M.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
Department no. 103 hon. Lance A. Ito, judge
The people of the state of california,)
Vs.) No. Ba097211)
Orenthal james Simpson,)
Reporter's transcript of proceedings tuesday, august 15, 1995 volume 206
Pages 41703 through 41839, inclusive
Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters
FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
ALSO PRESENT: Matthew schwartz, esquire ron regwan, esquire
I N D E X
Index for volume 206 pages 41723 - 41839
Day date session page vol.
Tuesday august 15, 1995 A.M. 41723 206 P.M. 41798 206 (In camera) A.M. 41703 206
LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
CHRONOLOGICAL INDEX OF WITNESSES
DEFENSE witnesses direct cross redirect recross vol.
(None this volume)
ALPHABETICAL INDEX OF WITNESSES
Witnesses direct cross redirect recross vol.
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
(None this volume)