Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted; also present, James Hahn, city attorney, Mary House, assistant city attorney, Matthew Schwartz, Esquire and Ron Regwan, Esquire, representing Laura Hart McKinny; Kelli Sager, Esquire and Douglas Mirell, Esquire.)

(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--where is Mr. Shapiro today?

MR. COCHRAN: He will be here, your Honor.

THE COURT: There is Mr. Cochran, Mr. Spaulding, Mr. Bailey, Mr. Uelmen. The People are represented by Miss Lewis, Miss Clark, Mr. Darden. Also present, Mr. Schwartz, Mr. Regwan on behalf of Miss McKinny. Also present is city attorney James Hahn and Miss House, deputy city attorney. And I note the presence of my good friends Miss Sager and Mr. Mirell. All right. Mr. Neufeld, earlier you indicated you had a discovery issue you wanted to take up before we launch into our other scheduled matters today.

MR. NEUFELD: Thank you, your Honor. Good morning.

THE COURT: Good morning, sir. How are you?

MR. NEUFELD: I understand both in my absence and now in my presence that there is a great concern to move this matter along and that is why I'm here this morning. Just so we are very clear on this, your Honor, with the completion of Dr. Lee's testimony yesterday, there will be no more scientific evidence emanating from the Defense during its presentation of its case. And we fully expect that the Defense will wrap up its case in the next few days once your rulings are made on the Fuhrman tapes. Consequently, we are looking forward to what we hope will be a brief rebuttal case by the Prosecution. However, we don't know anything about that rebuttal case yet. We don't know the names of any of the witnesses, we don't even know the subjects that will be covered by that rebuttal case or at least hope to be covered by that rebuttal case. But we do know that there are certain documents, certain notes that have been prepared, certain photographs that have been shot and developed by the Prosecution that have not yet been turned over. And that which we know about very simply at this time, your Honor, includes photomicrographs taken by Gary Sims of the socks on July 17th because they are referred to in a report of July 17th by Peter de Forest. We know that Peter de Forest from August 16th to August 18th examined the socks, the envelope and the item 47 bindle in his own offices back in New York City, and he informed me that during that time he took five rolls of pictures, three rolls of prints and two rolls of slides, all the negatives of which were forwarded to the Prosecution on he believes it was August 18th, but he is not positive, it could be one day later.

So they have all those negatives. We also know from what happened during the cross-examination of Dr. Lee yesterday that the FBI has taken some of the original negatives in this case and done enhancements. We would believe and suspect that Mr. Bodziak or others at the FBI have also prepared notes in connection with their new or reanalysis of the evidence and these new photographs. We suspect that Sims, de Forest and Bodziak will all be called or attempted to be called as rebuttal witnesses by the Prosecution, probably by certainly no later than the day after labor day, and we have not received any of these notes yet nor any of these photographs. We believe that given the Prosecution's position on other discovery matters involving the Defense, they took the position that those photographs, as soon as they come into existence, should immediately be turned over to the other side and so should the notes. We haven't gotten either yet. More importantly, from the court's point of view, it is just a matter of common sense, if we don't see those photographs and those photomicrographs immediately, we are going to need time while the witnesses are testifying to send them out to Dr. Lee, to Professor MacDonell, the same kind of opportunity that you were going to give the Prosecution when they didn't have certain things in a timely fashion what they perceived as a timely fashion from Dr. Lee. We will need those kind of postponements. We don't want to do that. We want to move the case along as quickly as possible. All we are asking the court to do is simply tell the People, since their rebuttal case is going to be starting almost immediately, to get that stuff to us certainly within the next 24 or 48 hours so that we can have our experts analyze it.

THE COURT: All right. Thank you. People.

MS. CLARK: Good morning, your Honor.

THE COURT: Good morning, Miss Clark.

MS. CLARK: We have a list of rebuttal witnesses that we have prepared that should be turned over today. With respect to photographs and notes, notes of course should be turned over as it--to the extent that the court finds that it comes within the category of witness statements under Izazaga, but Izazaga I think is very clear that with respect to rebuttal case, the People's rebuttal case, we are not required to turn over real evidence such as photographs. I'm not going to stand on the letter of that, your Honor. As soon as we have the photographs in our hands available to turn over to the Defense, I will turn them over. I'm not trying to stand on the letter of the law here. But I have not seen the photographs Mr. Neufeld mentions. I have no objection to letting them see them even though the law does not require us to do that. I want to get this thing going. So we have made all haste and I have worked over the weekend to get everybody up to speed so that we have a rebuttal witness list ready to go, all of the discovery that is required to be turned over, ready to go, and the photographs, as soon as we have them and they are collected, will be given to the Defense without--

THE COURT: Just as a matter of planning so that Mr. Neufeld and all the Defense experts can make plans to make time available to examine these items, when do you anticipate having the photographs and the reports available?

MS. CLARK: I'm going to have to check with everybody on that, your Honor, because as the court knows, our witnesses are so spread out everywhere, but as a matter of fact, that is being checked on right now. I have already asked that the message be sent and find out when we can we get those here.

THE COURT: Why don't we do this then. Why don't you report back to me at 1:30 this afternoon and let me know what the schedule is, but I appreciate your attitude on this.

MS. CLARK: Sure, sure.

THE COURT: All right.

MS. CLARK: Thank you.

THE COURT: All right. Any other issues we need to address before we go to the Fuhrman tape issue?

MR. SCHECK: One short issue, your Honor. I noticed yesterday, in reviewing some tapes of Dr. Lee's testimony, that there was a question--

THE COURT: Once wasn't enough?

MR. SCHECK: Well, it was something that came out that was--when I watched the tape and I correlated with what I heard in court, it came out a little differently than I had heard it, and I just wanted to be clear on the record because of what the events--

THE COURT: I'm not getting the drift of what you are saying.

MR. SCHECK: Let me be specific. What happened was that Mr. Goldberg asked Dr. Lee a question to the effect of did you make any findings consistent with blood at the Rockingham location? And Dr. Lee said something to the effect of he had conducted tests on a doorknob, sink traps and air conditioner, and at that point as he was about to explain something further, Mr. Goldberg got up and said I think you've answered the question. Now, I at that point was standing up as well because I thought, and it was--I thought what Mr. Goldberg was doing is that he knew, we all knew that there had be presumptive tests conducted at Rockingham on sink traps and a doorknob and the metal top of an air conditioner where there was no red stain, and these are the kind of presumptive tests that Dr. Lee was about to say give false positives because they are metal surfaces and if he tests any sink, any trap of a sink, he is going to get a false positive if he did it in any household, because of bacteria, metal, et cetera, so I thought that was what the answer was. When Mr. Goldberg was stopping him from answering I thought he was doing that because he didn't want to elicit testimony that was against the rule of the court and I thought that it hadn't really come out because he didn't testify to what the results were. But then yesterday, looking at the tapes and the reaction of some people to the tapes, it became a concern of mine that the People might actually try to use that testimony to sum up that blood was found in the air conditioning area of Rockingham. I just want to make clear that we have an objection to that.

THE COURT: All right.

MR. SCHECK: And that that would have been improper. I didn't think it came out that way. That is not what Dr. Lee's testimony would be. And if an affidavit is necessary, I spoke to him this morning, he would gladly submit it to the court, so basically the only relief I'm asking for at this point is that no reference be made to that testimony or argument to that effect, that there was blood evidence found in that area because, that is not the results.

THE COURT: All right. This is a comment for the purposes of making a timely objection, I take it then?

MR. SCHECK: Yes.

THE COURT: All right. Let's launch into the McKinny matter. This is in the vein of a 402 hearing. This is evidence being offered by the Defense with an objection by the Prosecution and I will hear from the Defense first.

MR. COCHRAN: Thank you, your Honor. Professor Uelmen.

MR. UELMEN: Your Honor, we would like to proceed by calling Miss McKinny to the witness stand to lay a foundation with respect to the manner which the tapes were compiled and the transcripts of the tapes that are no longer available.

THE COURT: All right.

MR. UELMEN: So if we could call Miss Laura McKinny to the witness stand.

THE COURT: All right. Mr. Schwartz, you had something to say?

MR. SCHWARTZ: Yes. We have on calendar today at nine o'clock a motion to quash a subpoena that was served by the Prosecution. We were wondering if we could handle that before we get into the 402. And we had a stipulation with Mr. Darden that this would be done in chambers, during our last appearance.

THE COURT: Well, I'm glad you had a stipulation with him, because it is not a stipulation with the court. What is your schedule today, gentlemen? Are you going to stay for the testimony of Miss McKinny?

MR. SCHWARTZ: Yes.

THE COURT: This is really the more pressing issue that I need to resolve at this point.

MR. SCHWARTZ: That's fine.

THE COURT: So let me proceed with this.

MR. UELMEN: We certainly don't intend to utilize the screenplay at all during our presentation.

THE COURT: All right. Mrs. Robertson. All right. Miss McKinny, would you come forward, please.

MS. MCKINNY: Good morning.

THE COURT: Good morning. Mrs. Robertson.

Laura Hart McKinny, (402) called as a witness by the Defendant, pursuant to evidence code section 402, was sworn and testified as follows:

THE CLERK: Please raise your right hand. You do solemnly swear that the testimony you may give in the cause now pending before this court, shall be the truth, the whole truth and nothing but the truth, so help you God.

MS. MCKINNY: I do.

THE CLERK: Please have a seat on the witness stand and state and spell your first and last names for the record.

MS. MCKINNY: Again, please. I didn't hear you.

THE CLERK: Please have a seat and state and spell your first and last names for the record.

MS. MCKINNY: My first name is Laura, L-A-U-R-A. My middle name is hart, H-A-R-T. My last name is McKinny, M-C K-I-N-N-Y.

MR. UELMEN: Good morning, Miss McKinny.

MS. CLARK: May I just have one moment, your Honor? I did not anticipate that we would begin with the 402 and Mr. Darden is prepared to cross-examine Miss McKinny and I'm prepared to do the argument, if the court--if that is all right with the court. We had split it that way. We ordinarily would not have done so, but this is not a procedure I anticipated and I'm asking leave of the court to allow Mr. Darden to cross-examine her and I will do the argument. Is that acceptable?

THE COURT: All right.

MS. CLARK: Thank you.

THE COURT: And Mr. Regwan, if you want to take a seat in the jury box, you are welcome to do so.

THE COURT: Actually, Miss Sager, why don't you take a seat in the jury box and let Mr. Regwan be in the--before the bar, since he may need to consult with his client. All right. Mr. Uelmen.

MR. UELMEN: Thank you, your Honor.

DIRECT EXAMINATION BY MR. UELMEN

MR. UELMEN: Miss McKinny, could you tell us your current occupation?

MS. MCKINNY: I'm currently employed as a film maker in residence at North Carolina school of the arts school of filmmaking, professor of screen writing there.

MR. UELMEN: Do you want to pull the microphone a little closer?

MS. MCKINNY: Shall I sit up?

MR. UELMEN: Well, you can just pull it toward you.

THE COURT: That's fine.

MS. MCKINNY: Okay.

MR. UELMEN: And the North Carolina school of the arts, is that a relatively new institution?

MS. MCKINNY: Yes. The North Carolina school of the arts was started in 1965. It has just celebrated its 30th anniversary.

MR. UELMEN: And how long have you been employed at the North Carolina school of the arts?

MS. MCKINNY: Since 19--thank you--since 1993, September of 1993.

MR. UELMEN: And you came to the school in association with a new program in filmmaking?

MS. MCKINNY: Yes. The North Carolina school of the arts already had their theater, dance, visual arts, music, design and production, and then in 1993 the school of filmmaking was the new school, and I was brought on board as one of the six founding faculty.

MR. UELMEN: And do you teach courses related to the preparation of screenplays?

MS. MCKINNY: Yes.

MR. UELMEN: Have you had some experience in the writing of screenplays?

MS. MCKINNY: Yes, I have.

MR. UELMEN: Could you briefly recount that experience for us.

MS. MCKINNY: I have been writing screenplays for a long time. I've written approximately six screenplays, a dozen treatments.

MR. UELMEN: And have any of your screenplays received any recognition or awards?

MS. MCKINNY: Yes. I won the writer's guild of America East Foundation award in 1984 for an original screenplay.

MR. UELMEN: And did that award include assigning a mentor to work with you in the development of screenplays?

MS. MCKINNY: Yes. The award included a stipend which then their request--the requirement was then to write another original screenplay and you could use one of the mentors that the writer's guild suggested or you could ask for a mentor of your choosing and I wanted very much to work with Alvin Sergeant and I requested to work with him and was able to meet and befriend him through a mutual friend.

MR. UELMEN: All right. So Mr. Sergeant was serving as your mentor in the development of screenplays?

MS. MCKINNY: He was my mentor and friend.

MR. UELMEN: And have any of your screenplays been produced?

MS. MCKINNY: My first short piece was produced in 1979 or 1980, but no long form screenplay has been produced.

MR. UELMEN: Now, could you go back to 1985 and tell us what your occupation was in 1985.

MS. MCKINNY: Yes. I wore a couple of hats in 1985. I was a freelance screenwriter and I worked as a--as the senior learning skills counselor at UCLA.

MR. UELMEN: Could you describe what a senior learning skills counselor would do at UCLA?

MS. MCKINNY: I worked in the athletic department as a liaison from--with the letters of college and science, and I worked under the auspices of Terry Donohue with specifically high-risk athletes.

MR. UELMEN: Now, you didn't go directly from UCLA to North Carolina; is that correct?

MS. MCKINNY: (No audible response.)

MR. UELMEN: Was there some interruption of your career?

MS. MCKINNY: Yes. Umm, I had--have had a family over the last ten years. I have two young children and was working at UCLA and writing. I also worked at Santa Monica Malibu Unified School District as a home instructor during that time period.

MR. UELMEN: So when you went to the North Carolina school of arts in 1993, you moved from the Los Angeles area back to North Carolina?

MS. MCKINNY: Yes.

MR. UELMEN: So throughout the period from 1985 to 1993 you were residing in Los Angeles; is that correct?

MS. MCKINNY: Correct.

MR. UELMEN: Now, did you have occasion to meet Officer Mark Fuhrman in 1985?

MS. MCKINNY: Yes.

MR. UELMEN: Could you recount how that meeting took place?

MS. MCKINNY: Yes. I was sitting in a cafe in Westwood late one morning working on my laptop computer and Officer Fuhrman, who was not dressed in uniform, so a man essentially came up and asked me about my laptop. Someone had come up a short time earlier and asked me and I had explained how the laptop worked and that was a common practice. It was uncommon then to have a laptop and I had actually purchased it in part from the stipend I had won from the writer's guild award.

MR. UELMEN: So he was just a stranger who walked up and asked you about your laptop computer?

MS. MCKINNY: Yes.

MR. UELMEN: And you had never seen him or met him before?

MS. MCKINNY: No.

MR. UELMEN: And you had no idea he was a Los Angeles Police Department officer?

MS. MCKINNY: Initially, no.

MR. UELMEN: Did he make mention of that in your initial conversation?

MS. MCKINNY: Yes.

MR. UELMEN: Please explain how that--how that came up?

MS. MCKINNY: At the time I was working on something to do with women in law enforcement. I'm not exactly clear on what I was typing at the exact moment he walked up, but generally I was looking over some notes or thinking about the extent to which women could succeed in areas of violent crime in law enforcement. There had been some rumblings in Santa Monica where I lived about a particular woman officer who was incapable of performing some--some acts and I was writing or thinking about that.

MR. UELMEN: So you expressed to him your interest in writing about women who are employed as police officers?

MS. MCKINNY: Yes.

MR. UELMEN: And he indicated to you that he had some strong feelings about that subject?

MR. DARDEN: Objection, leading.

THE COURT: Sustained.

MR. UELMEN: What did he respond?

MS. MCKINNY: It was around that time that he told me he was an officer and had strong feelings about whether or not women should be on the Los Angeles Police Department and working specifically in areas of high crime.

MR. UELMEN: Did he tell you anything about any organization he was active in with respect to that issue?

MS. MCKINNY: Yes. He mentioned men against women, which is actually policemen against policewomen, commonly called MAW.

MR. UELMEN: Now, as a result of this conversation did you agree to have further conversations with Officer Fuhrman?

MS. MCKINNY: Yes.

MR. UELMEN: How did that come about?

MS. MCKINNY: After he told me about this particular group, men against women, I--it stirred a curiosity and I was very interested in finding out why a group like that would be formed, what kind of frustrations some men working on the police department would have that would cause them to want to join a group like that and what kind of things they would do to stonewall or embarrass or humiliate women and also what kind of effect that had on women, how they would feel. So I thought that that particular issue was something that I really would like to explore and I would very much like to have his point of view as to why some men felt very strongly that some women were incapable of working in areas of high crime.

MR. UELMEN: Now, is this a frequent or common arrangement when someone is doing a screenplay or preparing a treatment for a screenplay, to consult with someone with firsthand experience?

MR. DARDEN: Objection. That assumes facts not in evidence.

THE COURT: Overruled. Do you understand the question?

MS. MCKINNY: Yes, I do. Thank you.

THE COURT: Go ahead.

MS. MCKINNY: I work that way. I don't know how frequently all writers do. I would think frequently. If you are going to write about a particular issue and you want to be able to obtain different points of view, then you need to talk with people who have that kind of experience and you will need to be able to understand procedural issues in many different facets, so it is a very common practice for me. I do extensive interviews and with people and I shadow them with their permission at work just to see what kind of obstacles they have during the day, who their friends are, what their conversations are, so it is a common practice with me.

MR. UELMEN: All right. Was Mark Fuhrman the only person you were meeting with or consulting in the course of preparing this treatment?

MR. DARDEN: Vague as to time.

THE COURT: Sustained.

MR. UELMEN: At the same time--well, let's start with Officer Fuhrman.

THE COURT: I'm still at the cafe in Westwood.

MR. UELMEN: Okay.

MR. UELMEN: Did you agree at the cafe in Westwood that you would continue to meet with Officer Fuhrman for purpose of getting this background information that you wanted?

MS. MCKINNY: Yes.

MR. UELMEN: How soon after your initial meeting did you first sit down and talk with him in an interview format?

MS. MCKINNY: In early April.

MR. UELMEN: Now, this interview, where did--where did that take place?

MS. MCKINNY: We usually met at Alice's restaurant in Westwood. I believe it is on Westwood Boulevard.

MR. UELMEN: And again, briefly describe your purpose in having this meeting in April at Alice's restaurant.

MS. MCKINNY: I needed to hear his ideas, his thoughts, his feelings about some elements of police work.

MR. UELMEN: Did you tape-record that interview?

MS. MCKINNY: Yes. That initial interview, a taped interview in April was taped. I believe that was April 2nd.

MR. UELMEN: Okay. Now, this I take it was the first of a series of interview meetings; is that correct?

MS. MCKINNY: Yes.

MR. UELMEN: About how many times did you sit down and conduct an interview of this nature with Officer Fuhrman?

MS. MCKINNY: Approximately twelve to fifteen times.

MR. UELMEN: And were all of these interviews tape recorded?

MS. MCKINNY: No.

MR. UELMEN: How many of them were tape recorded?

MS. MCKINNY: Umm, twelve to fourteen. One in particular I remember that was not tape recorded was one in 1993 with then I believe Detective Fuhrman, a gentleman who had optioned the property, and another woman officer that had been--who had been a partner with Detective Fuhrman.

MR. UELMEN: Okay. But your general practice was to tape-record the meetings between yourself and Officer Fuhrman?

MS. MCKINNY: Yes.

MR. UELMEN: What was your purpose in tape-recording them?

MS. MCKINNY: I knew that it seemed to me that he would be giving me a lot of information that would be hard for me to process because it is new, and I needed to hear his words for dialogue purposes to be able to construct accurate characters so that they would be clear. And I needed to--if it was a police procedural issue, I would need to listen to it again and be able to visualize it to be able to cinematically write it, and I didn't feel I would be able to take copious notes on a yellow pad that would enable me to listen actively, ask questions, participate and take the notes and then be able to clearly cinematically write it.

MR. UELMEN: And was Officer Fuhrman aware that you were tape-recording the conversations?

MS. MCKINNY: Yes.

MR. UELMEN: You just put the tape recorder on the table?

MS. MCKINNY: Yes.

MR. UELMEN: Turned it on?

MS. MCKINNY: I turned it on.

MR. UELMEN: Were there times when you would turn the recorder off?

MS. MCKINNY: Yes.

MR. UELMEN: Describe those times.

MS. MCKINNY: I didn't automatically turn the recorder on when we would first begin the interview. I would turn it on when I felt that he was going to--he was ready to discuss perhaps some of the questions that I had given him ahead of time or it just seemed that it was the appropriate time to start taping.

MR. UELMEN: And were there occasional interruptions with people serving food or things of that nature?

MS. MCKINNY: Yes, there were interruptions.

MR. UELMEN: And you would not record those interruptions?

MS. MCKINNY: Sometimes I would turn it off if I could see it would be a lengthy interruption.

MR. UELMEN: Now, after you concluded the interview, what would you do with the tape?

MS. MCKINNY: I would put the tape in my transcribing machine at home in front of my computer and transcribe the tape. My transcribing machine accommodates transcriptions because it modulates the speed of the--of the tape, so that you can slow it down or speed it up for--to be able to hear more clearly, and it also has an audible--it modulates the volume, and has a foot pedal to allow you to stop and start and rewind appropriately.

MR. UELMEN: So this is professional transcribing equipment that you use?

MS. MCKINNY: Yes.

MR. UELMEN: Did you have some experience in operating that equipment and transcribing tapes?

MS. MCKINNY: Yes. I was a professional transcriber in college.

MR. UELMEN: And how long did you do that?

MS. MCKINNY: Two to three years. I worked for a retail credit company.

MR. UELMEN: And your job at retail credit company was actually transcribing taped interviews?

MR. DARDEN: Objection, leading.

THE COURT: Sustained.

MR. UELMEN: What were your duties at retail credit?

MS. MCKINNY: My job was to transcribe reports that inspectors would give regarding people they were investigating.

MR. UELMEN: Now, were the transcriptions verbatim transcriptions of what was on the tape?

MS. MCKINNY: My transcriptions were of what Officer Fuhrman would say, what I would hear him to say and what I would say.

MR. UELMEN: All right. So what you put into the transcript were his words?

MS. MCKINNY: Yes.

MR. UELMEN: Did you edit his words at all in the process of transcribing the tapes?

MS. MCKINNY: No.

MR. UELMEN: And in fact did you on at least one occasion tell Officer Fuhrman that the transcripts you were preparing were verbatim transcripts of what he was saying?

MS. MCKINNY: Yes.

MR. UELMEN: Now, in these transcripts was the--or in the interviews that were taped, was the word "Nigger" ever used?

MS. MCKINNY: Yes.

MR. UELMEN: Now, if that word appears in a transcript of the interview, it is because that word was spoken by Officer Fuhrman?

MS. MCKINNY: Yes.

MR. UELMEN: You never added that word to any of the transcription that you were preparing on any occasion when he didn't say the word, did you?

MS. MCKINNY: No.

MR. UELMEN: After you transcribed the tapes, what did you do with the actual tapes?

MS. MCKINNY: I put them in a filing cabinet that is designed for tape storage.

MR. UELMEN: And you preserved them?

MS. MCKINNY: Yes.

MR. UELMEN: Now, have all of the tapes of all of your interviews with Officer Fuhrman been preserved?

MS. MCKINNY: No.

MR. UELMEN: Could you explain what happened with respect to any tapes that are no longer still in existence.

MS. MCKINNY: Yes. I inadvertently recorded another interview over one tape and a similar situation with another tape.

MR. UELMEN: So when you taped over, it erased what was originally on the tape?

MS. MCKINNY: Yes.

MR. UELMEN: Do you recall which interviews that happened to?

MS. MCKINNY: Our first interview, taped interview, and I believe it is numbered the ninth now.

MR. UELMEN: Okay. Now, the first interview is the one you have already referred to on April 2nd, 1985?

MS. MCKINNY: Yes.

MR. UELMEN: At Alice's restaurant?

MS. MCKINNY: Yes.

MR. UELMEN: Do you recall approximately when the ninth interview was?

MS. MCKINNY: Umm, I would have to look at it to be able to tell you.

MR. UELMEN: We will come back to that. Now, at the time you were preparing what is called a treatment for a screenplay; is that correct?

MS. MCKINNY: That's correct.

MR. UELMEN: Could you explain the difference between a treatment and an actual screenplay?

MS. MCKINNY: A treatment is a narrative form of the story, it is in pros in paragraph form and it delineates the principle characters that, the protagonist, the antagonist, the secondary characters, the main problem in the story, what the obstacles are, possibly some dialogue, what the resolution might be.

MR. UELMEN: And the screenplay that you were contemplating was to be a fictional story, was it not?

MS. MCKINNY: It was fob a fictional story based on reality.

MR. UELMEN: Did you ever explain to Officer Fuhrman the role he would play in terms of your process of creating this story (Pros) ?

MS. MCKINNY: Yes.

MR. UELMEN: And what--could you explain to us what that role was to be (Proceeds) ?

MS. MCKINNY: To help give me some ideas from the point of view of some men who might be long to this particular group, men against women and how men would be frustrated by some of the actions of some women, what kind of--bless you--what kinds of things they would do to possibly stonewall women or make it uncomfortable with them, how they might react were they partnered with women, how they reacted to the administration, partner's relationships, procedural issues.

MR. UELMEN: So you wanted him to recount for you his own personal experience?

MR. DARDEN: Objection, that is leading.

THE COURT: Sustained.

MR. UELMEN: Did you communicate to him in any way an expectation as to the nature of the information he was to convey to you?

MS. MCKINNY: The nature of the information that I wished that he would convey would be something that would help me develop a story wherein a very competent woman officer is transferred into a precinct where there is high crime and she is forced to work with a--an officer who is a member of this particular group, men against women. That was the structure or the--the characters that I really wanted to work with, and so the information that I needed from him was what--what would a working relationship be like, what would some of the frustrations be having to work with a woman officer, what would be some of her frustrations, and then possibly what could be some situations that might occur in a precinct such as this. It was structured after the 77th precinct.

MR. UELMEN: Now, was there any difference between the nature of the first interview and the subsequent interviews of Officer Fuhrman?

MR. DARDEN: That is vague, your Honor.

THE COURT: Overruled. Do you understand the question? ?

MS. MCKINNY: Could you repeat it, please.

MR. UELMEN: Was there any difference in the nature of the first interview that you conducted with Officer Fuhrman and then the later interviews as the project developed?

MS. MCKINNY: Yes. In the first interviews I really needed to hear what he had to say, without directing him specifically and be able to hear his words, his dialogue, the kind of issues that he felt comfortable expressing to me, and then in the later--the later transcripts reflect that many of the points that we talk about are related to the story. I give general categories and he responds and the later interviews I believe some of them are transcribed in terms of categories. It is not question and answer; it is more of a specified topical interview and it also my transcriptions during some of the interviews, the later interviews, were reflecting my lack of time. I had just had one child and was having another child, and was working a couple of jobs, and I--and writing, so--and those things, so I had less time and I really just needed to have him answer certain questions, so there is a difference in the transcriptions.

MR. UELMEN: So the later interviews were much more directed to specific areas as opposed to getting background information?

MR. DARDEN: Objection, call for a conclusion.

THE COURT: Overruled.

MR. DARDEN: Will leading.

THE COURT: Overruled.

MS. MCKINNY: Yes.

MR. UELMEN: Now, how quickly after the interviews took place did you prepare the transcript?

MS. MCKINNY: Within a day or two I transcribed them.

MR. UELMEN: So your transcriptions were done right after the interviews had taken place while they were still fresh in your mind?

MR. DARDEN: Objection, leading.

THE COURT: Sustained. The answer is stricken.

MR. UELMEN: Why did you do the transcription within a day or two after the interview?

MS. MCKINNY: I was very interested in the project and again I had more time initially, I could work later hours, I could work early in the morning. My time was more fluid, but I really wanted to be able to transcribe them and hear the dialogue. It is easier to transcribe something especially when there is interruptions--it is easier to transcribe it when you are closer to the topic.

MR. UELMEN: And after you prepared a transcription of the interview, did you deliver a copy of that transcription to Officer Fuhrman?

MS. MCKINNY: I believe the first transcript I sent to him along with some questions that I wanted to pursue in the following taped interview. At some point after most of our interviews during 1985, I gave him the collection of transcripts. I don't remember if I sent them each--sent him each transcript. I remember the first one difficult.

MR. UELMEN: Okay. So you recall specifically that after the first interview you sent him a copy of the transcript with a set of questions?

MS. MCKINNY: Right.

MR. DARDEN: Objection, that misstates the testimony.

THE COURT: Overruled.

MR. UELMEN: Was that in anticipation then of your second interview?

MS. MCKINNY: Yes. I had given him a series of questions to think about and see if he would like to answer those in preparation for our next interview.

MR. UELMEN: And then at the conclusion or at a point where you had conducted a number of interviews, you gave him a bound set of the transcripts?

MS. MCKINNY: Yes.

MR. DARDEN: Misstates the testimony.

THE COURT: Sustained. She didn't say anything about bound transcripts.

MR. UELMEN: Okay. Do you recall the form in which you gave him a set of transcripts?

MS. MCKINNY: I recall giving him at some point, after our initial `85 interviews, that collection of transcripts, transcriptions.

MR. UELMEN: In what form did you give them to him?

MS. MCKINNY: I had given it to him in a three-ring binder similar to the that I had bound mine.

MR. UELMEN: Your Honor, we have a three-page document, a copy has been supplied to the People, headed, "Fuhrman questions round two." We would ask these three pages be--

THE COURT: 1364.

MR. UELMEN: 1364 for identification.

THE COURT: You may.

(Deft's 1364 for id = 3-page document)

MR. UELMEN: Miss McKinny, I'm handing you a three-page document with numbered items from 1 through 31 and it is headed "Fuhrman." Could you look at that?

MS. MCKINNY: (Witness complies.) Yes.

MR. UELMEN: Do you recognize that?

MS. MCKINNY: Yes.

MR. UELMEN: What is that?

MS. MCKINNY: These are the questions that I sent to Officer Fuhrman after our first interview so that he could perhaps refresh his mind on what we had discussed and then he would know what kind of issues I would like to discuss the next time we met.

MR. UELMEN: So you were actually giving him questions in advance of the interview. For what purpose?

MS. MCKINNY: Well, time was limited. He was a very busy man and I wanted him to understand what issues I really needed to talk about.

MR. UELMEN: And did this list of questions contain specific references to the transcript that accompanied them?

MS. MCKINNY: Not every question. A few of the questions have references to page numbers of my original transcript.

MR. UELMEN: Well, for example, item 15 on your list of questions, does that refer to a specific page of the transcript that you are asking him to look at?

MS. MCKINNY: Yes, item 15.

MR. UELMEN: Okay. Item 16, is that a question that you asked him in the follow-up interview?

MS. MCKINNY: Yes.

MR. UELMEN: And that question was: "How do you hire someone who is capable of shooting someone in the back, no. 1? And no. 2, on what ground would you determine who is capable of figuring out who the bad guys are?"

MS. MCKINNY: Yes, that is no. 16.

MR. UELMEN: Now, was that question drawn from a specific reference in the transcript?

MS. MCKINNY: According to this, and my notes, that was referring to page 25 of the first taped interview.

MR. UELMEN: Are there other references in those questions to the transcript, either by quoting material in the transcript or referring to specific pages?

MS. MCKINNY: Yes. Generally when there is a--when there is parentheses around a word, that indicates that it is something that we possibly discussed. For instance, no. 27, "Why is the chokehold considered brutality?" That would be something that we had discussed.

MR. UELMEN: Now, at any time in the course of your interviews did Officer Fuhrman ever indicate that there were any inaccuracies in the transcript?

MS. MCKINNY: No.

MR. UELMEN: Now, at the same time that you were conducting this--these interviews with Officer Fuhrman, were you meeting with other persons associated with the Los Angeles Police Department?

MS. MCKINNY: Yes, I was, during that period. I went on--I met with approximately fifteen to twenty other officers from the Los Angeles Police Department, either through the Parker Center, on ride-alongs or some of the pt's at the Los Angeles Police Department academy, along with around 20 to 25 police cadets there at the Los Angeles Police Academy, women cadets.

MR. UELMEN: And did you also tape-record those meetings and interviews?

MS. MCKINNY: Many of them were tape-recorded. Some of the meetings and discussions with the--the cadet women were when I was there with them when they were in training and running and wrestling, watching them do that and observing their--their pre-training prior to entering Los Angeles Police Academy, so many of those were very informal and they weren't taped, but several of them were.

MR. UELMEN: Now, were all of the interviews you conducted with Officer Fuhrman just yourself and Officer Fuhrman or did you ever involve any third persons in the process?

MS. MCKINNY: No. There are several interviews where there are--where there is another party involved.

MR. UELMEN: And for what purpose was that done?

MS. MCKINNY: Sometimes it is to give me additional information, that it is hard to be able to do an inquiry when you are conducting the interview, because it is a one-on-one and you are looking at someone and trying to respond appropriately, you are not observing, so that was helpful information. One particular interview was of a woman who was going to pretend to be a woman who wanted to enter the police academy and Officer Fuhrman was going to talk with her about his feelings about that. Another interview was with a gentleman with whom I was working at UCLA, an athlete who was going to talk with Officer Fuhrman. Another was with a gentleman who had optioned the piece and it was more of a partial story conference.

MR. UELMEN: Now, did these interviews with the woman who was portraying someone interested in going into LAPD and with the gentleman who was a student of yours--at UCLA did you say?

MS. MCKINNY: Yes. He was one of the students with whom I worked.

MR. UELMEN: Perhaps you could identify these individuals. Who were these persons who played these roles?

MS. MCKINNY: By name?

MR. UELMEN: Yes.

MS. MCKINNY: The woman was Laurie Diaz. She was a personal friend who agreed to do this confidentially. And the gentleman was James Washington and the producer was John Flynn.

MR. UELMEN: And were these interviews tape-recorded as well?

MS. MCKINNY: Yes, they were.

MR. UELMEN: And did the interviews with Laurie Diaz and James Washington also take place in 1985?

MS. MCKINNY: Yes.

MR. UELMEN: Umm, did you find any of the comments that Officer Fuhrman was making in the course of your interviews offensive?

MR. DARDEN: Objection, compound, vague.

THE COURT: Overruled.

MS. MCKINNY: I'm--I heard your question and I didn't hear what happened with the court after that.

THE COURT: You can answer the question.

MR. UELMEN: You can answer the question.

MS. MCKINNY: Yes.

MR. UELMEN: Did you ever confront him or question him about the statements he was making?

MS. MCKINNY: Generally, no.

MR. UELMEN: Why not?

MS. MCKINNY: I had a journalistic approach to this project with all the people that I interviewed, and for me that means that when I'm trying to hear someone's point of view, even though I might not espouse their feelings, whether they are a man or a woman, I don't react in a way that will cause them to drop their feelings of confidentiality, their desire to communicate their ideas with me, so I don't respond in a way that will cause them to stop talking to me.

MR. UELMEN: Your Honor, at this point we would like to take Miss McKinny through each of the items in our offer of proof to have her authenticate the context of the conversation that in the case of the transcriptions it is an accurate record of what Officer Fuhrman said, and where we do have a tape-recording, to authenticate his voice.

THE COURT: All right. Proceed.

MR. UELMEN: We do have a video that was prepared in advance which would display the text, and where we have the voice, play the voice accompanying the text. With the court's permission I would like to utilize that in the examination.

THE COURT: All right. Proceed.

MR. UELMEN: All right.

THE COURT: Have you given a copy of this to the Prosecution?

MR. UELMEN: Yes.

THE COURT: All right. Proceed. We will mark the tape, the videotape, as Defense exhibit 1365.

(Deft's 1365 for id = videotape)

MR. UELMEN: Perhaps it would help if Miss McKinny were able to look at a copy of our offer of proof at the same time that we are displaying the text.

MS. CLARK: Your Honor, perhaps it would save some time. I don't think that there is going to be any question about the authenticity of the tapes. The tapes speak for themselves. The only question is the transcripts where there are no tapes, and I think that having Miss McKinny go through tapes which do speak for themselves is just going to spend a lot of time doing--proving the obvious. We can probably save a lot of time by cutting to the chase and going to the transcripts where there are no tapes.

THE COURT: Well, there does have to be some foundation that she recognizes the voices and who is there, though, some basic foundation.

MR. UELMEN: I think one of the issues--

MS. CLARK: We can stipulate that she would identify her voice and that of Mark Fuhrman on the tapes.

MR. UELMEN: I think one of the issues your Honor has to address is how much consumption of time will be involved in presenting this to the jury. I think we can very expeditiously kind of give you a preview of precisely how this material would be presented to the jury so that your Honor is in a better position to rule.

THE COURT: All right. Well, let's at least start with the non-transcribed matters.

MS. CLARK: There is the additional issue of whether she has an independent recollection apart from the tapes and that would have to be established.

THE COURT: Well, I'm sure that will be on cross-examination gone into.

(Discussion held off the record between the Deputy District Attorneys.)

MS. CLARK: Well, the problem is foundationally speaking, your Honor, is that the tapes should not be played until that area is explored because then you get into a leading situation.

THE COURT: No.

MR. UELMEN: I intend to elicit, as we go through each excerpt, her memory of Detective Fuhrman speaking those words.

THE COURT: Proceed.

MR. UELMEN: All right. If I can approach?

THE COURT: Yes.

MR. UELMEN: I'm handing you, Miss McKinny, a copy of the offer of proof that was prepared for the court containing excerpts from the transcripts and the tapes that were supplied pursuant to subpoena to the court.

THE COURT: All right. Which page are you referring to?

MR. UELMEN: We will begin on page 9.

MR. DARDEN: This is the amended offer of proof, your Honor, right? The amended offer?

MR. UELMEN: Yes.

MR. DARDEN: Not the initial offer?

MR. UELMEN: Yes, the amended offer of proof. All right. If we could begin with--

THE COURT: Wait, wait, wait. Did you change the number in the amended offer of proof?

MR. UELMEN: No.

THE COURT: I will be referring to these excerpts in terms of the three categories we established, your Honor, B, being racial animosity and the use of racial epithets, which will include items B-1 through B-40, and actually we added one more, B-41. This a supplement to the offer of proof. And then--

THE COURT: Let me ask you just out of shear curiosity, did you actually anticipate that any court would allow you to have all 41 of these incidents? Isn't there some cumulative problem here or redundancy.

MR. UELMEN: Well, I certainly plan to address the question of the cumulative issue in the argument. If you like, I will address it now.

THE COURT: I'm just asking. Do you think--in presenting this issue to the court, do you think I really need to contemplate all 41 of these? Aren't there perhaps a half dozen of these that capture the essence of what you want to present?

MR. UELMEN: Well, we believe there are 17 to be exact that will be admissible for two purposes; not only to show the use of the word but to also show actual racial bias and hostility.

THE COURT: All right. Then why do I have to listen to 41? You have conceded at this point that the remainder is surplusage.

MR. UELMEN: Well, certainly I think we are entitled to elicit that there were 41, but in terms of the ones that would actually be displayed or heard, it is not unreasonable to suggest that the actual display or hearing of the epithets would--would be limited to the ones that have relevance beyond simply the use of the word "Nigger." I don't--I'm certainly not going to argue that--that there is any evidentiary significance to hearing just that word 41 times, but we believe the context in which the word is used in many of these examples goes beyond simply the use of a racial epithet.

THE COURT: Then wouldn't it be a more efficient use of my time, your time and the jury's time, if you limit yourself to the 17 that you think are the ones that are appropriately offered to the court?

(Discussion held off the record between Defense counsel.)

MR. UELMEN: I think we are kind of jumping the gun at this point to start talking about editing it in terms of the--of the offer of proof. What we would like to do--and we can go through it very quickly. I mean, these will not take much time at all, and we have edited them down to the bare bones, so in each case it is just a couple of sentences surrounding the use of the word and Miss McKinny can put it in context and it won't take much time at all. And then at that point the court will be in a position to say, well, now we need to talk about what the jury should actually hear.

THE COURT: You are offering me 41 but you really only want 17?

MR. UELMEN: No, no, we want 41. I mean, I think that the counter argument obviously is going to be, well, you know, this was--was inadvertent, he didn't remember speaking these words seven or eight years ago in the context of a screenplay interview.

THE COURT: All right. Play your tape.

MR. UELMEN: Could we start with no. 1, please.

MS. CLARK: Your Honor, I thought we were going to start with the transcripts.

THE COURT: No. 1.

MR. UELMEN: No. 1 is from transcript no. 1. There is no sound.

(At 10:03 A.M., Defense exhibit 1365, a videotape, was played.)

THE COURT: All right. That was no. 1.

MR. UELMEN: Do you recall Officer Fuhrman speaking these words?

MS. MCKINNY: Yes.

MR. UELMEN: And when and where were they spoken?

MS. MCKINNY: They were spoken on April 2nd in the first taped interview.

MR. UELMEN: All right. And this is the interview that the tape was inadvertently taped over; is that correct?

MS. MCKINNY: Yes.

MR. UELMEN: And are these words that "We got females and dumb niggers and all your Mexicans that can't even write the name of the car they drive," is that an accurate record of Officer Fuhrman's actual words?

MS. MCKINNY: Yes.

MR. UELMEN: And this transcription was made while those words were fresh in your memory?

MR. DARDEN: Objection, that is leading.

THE COURT: Sustained.

MR. UELMEN: Foundational, your Honor.

THE COURT: It is leading, counsel, and it is the issue that is before the court, wouldn't you say?

MR. UELMEN: All right.

MR. UELMEN: Did you prepare this transcription of these words immediately after you heard them?

MR. DARDEN: It is also leading and vague.

THE COURT: Sustained.

MR. UELMEN: How soon after you heard these words did you prepare this transcript?

MS. MCKINNY: I prepared this transcript between a day--within a day or two of the interview.

MR. UELMEN: And as you look at these words now, are they an accurate reflection of what was on the tape?

MS. MCKINNY: Yes.

MR. UELMEN: And they accurately record what Officer Fuhrman said to you on April 2nd?

MS. MCKINNY: Yes.

MR. DARDEN: Objection, no foundation.

THE COURT: Overruled.

MR. UELMEN: All right. If we could have the second excerpt.

(At 10:05 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall those words being spoken by Officer Fuhrman?

MS. MCKINNY: Yes.

MR. UELMEN: And when and where were they spoken?

MS. MCKINNY: They were spoken during the first taped interview in early April.

MR. UELMEN: And again that was recorded how soon after the words were spoken?

MS. MCKINNY: Within a day or two. That would have been recorded at the same time.

MR. UELMEN: The transcription?

MS. MCKINNY: That would have been transcribed at the same time the previous one was.

MR. UELMEN: Now, in there is certain--there is a blank. It says, "If I'm wrestling with some" blank "Nigger." Is the blank something that you put into the transcript?

MS. MCKINNY: Yes.

MR. UELMEN: And why would you do that?

MS. MCKINNY: It would have been a word that was inaudible, but I just wouldn't type out "Inaudible." That would let me know that it was something that I didn't understand.

MR. UELMEN: All right. So you would--if there were inaudible words that you could not record verbatim, you would indicate by inserting a blank into the transcript?

MS. MCKINNY: Yes.

MR. UELMEN: If we could have the third excerpt, please.

(At 10:06 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall those words being spoken by Officer Fuhrman?

MS. MCKINNY: Yes.

MR. UELMEN: And when and where were they spoken?

MS. MCKINNY: During the first taped interview.

MR. UELMEN: On April 2nd?

MS. MCKINNY: On April 2nd.

MR. UELMEN: And does the transcript accurately record what was said by Officer Fuhrman at that time?

MS. MCKINNY: Yes.

MR. UELMEN: And how soon after did you make the transcription of this comment?

MS. MCKINNY: Within a day or two of the interview.

MR. UELMEN: All right.

THE COURT: Excuse me. Miss McKinny, with regards to this April 2nd interview, you transcribed the entire tape within a day or two?

MS. MCKINNY: Of interviews.

THE COURT: Of the interviews?

MS. MCKINNY: Yes. In one sitting I transcribed the entire interview.

THE COURT: All right.

MR. UELMEN: No. 4, please.

(At 10:07 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recognize those words as being spoken by Officer Fuhrman?

MS. MCKINNY: Aside from "Fat Burger," yes.

MR. UELMEN: You don't recall a specific reference to Fat Burger?

MS. MCKINNY: I do reading it, but I don't have a recollection unless I read it.

MR. UELMEN: Do you recall the context in which these words were spoken?

MS. MCKINNY: We were talking about the way some--

MR. DARDEN: Objection, that is nonresponsive.

THE COURT: Overruled. You can answer the question.

MS. MCKINNY: Okay. We were talking about the way some suspects may be arrested, umm, and I'm not familiar with 22nd and Western, so it didn't set up a visual picture for me where Fat Burger was.

MR. UELMEN: Now, at the time of these interviews Officer Fuhrman was a patrol officer in Westwood; is that correct?

MS. MCKINNY: Yes.

MR. UELMEN: In this excerpt was he describing an event that actually took place?

MR. DARDEN: Objection.

MR. UELMEN: While he was working as a patrol officer in Westwood?

MR. DARDEN: Objection, no foundation, calls for a conclusion.

THE COURT: Sustained. Foundation.

MR. UELMEN: All right. Could you explain how it came about that he described this incident to you?

MR. DARDEN: Objection, asked and answered.

THE COURT: Overruled.

MS. MCKINNY: I need to see my original transcript to be able to read what comes before.

MR. UELMEN: All right.

MR. DARDEN: I will object to that procedure, your Honor.

THE COURT: On what basis?

MR. DARDEN: It is leading.

THE COURT: Overruled.

MR. UELMEN: May I?

THE COURT: You may.

MR. UELMEN: I have here, Miss McKinny, a set of the transcripts that been prepared, including--

MR. DARDEN: She has indicated she hasn't needed her recollection--

THE COURT: She has indicated she needs to refresh her recollection from her original transcript is what she has indicated.

MR. UELMEN: Does the binder I have just handed you contain your transcription of the first interview on April 2nd?

MS. MCKINNY: Yes.

MR. UELMEN: If you could refer to page 33 of that interview, does that page contain the Fat Burger excerpt?

MS. MCKINNY: Yes.

MR. UELMEN: Putting that in context, can you tell us whether this was an explanation or a description of an actual event?

MR. DARDEN: Objection, no foundation, speculation.

THE COURT: Overruled. You can answer the question.

MS. MCKINNY: Could you ask the question again, please. I was reading.

MR. UELMEN: Is the excerpt a description of an actual event?

MR. DARDEN: Calls for a conclusion.

THE COURT: Overruled.

MS. MCKINNY: This is a description of an actual event that took place according to Officer Fuhrman on the previous night.

MR. UELMEN: So he was telling you what had happened the night before; is that correct?

MS. MCKINNY: That's correct.

MR. UELMEN: If we could have the next excerpt, please, no. 5.

(At 10:11 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall those words being spoken by Officer Fuhrman?

MS. MCKINNY: Yes.

MR. UELMEN: Can you put them in context for us? What were you speaking about at the time?

MS. MCKINNY: We were talking about administration of LAPD, some of the other administration officers.

MR. UELMEN: So the reference to Commander Hickman, is that a reference to an actual person?

MS. MCKINNY: Yes, it is.

MR. UELMEN: And approximately when and where was this statement made?

MS. MCKINNY: This was made during the first taped interview an April 2nd.

MR. UELMEN: And is the transcript an accurate record of what Officer Fuhrman said at the time?

MS. MCKINNY: Yes.

MR. UELMEN: And it was made how soon after the conversation took place?

MS. MCKINNY: Within a day or two of the taped interview.

MR. UELMEN: If we could proceed to no. 6.

(At 10:13 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall those words being spoken by Officer Fuhrman?

MS. MCKINNY: Yes.

MR. UELMEN: When and where when they spoken?

MS. MCKINNY: They were spoken during the first taped interview, April 2nd.

THE COURT: Counsel, why don't we just assume all of these are during the first interview until we get to--

MR. UELMEN: Fine, your Honor. I will proceed on that assumption.

MR. UELMEN: What were you talking about at the time, and in what context did this reference to Ethiopia come up?

MS. MCKINNY: I need to refer--it was a tangent, it wasn't specific to the story, but we had been talking about the media and the media's role in projecting a positive--positive work capacity for women.

MR. UELMEN: And this was an event or an event that was in the news at the time?

MR. DARDEN: Objection, leading.

THE COURT: Sustained.

MR. UELMEN: Was--was there some topical nature of this--of this reference to Ethiopia?

MS. MCKINNY: I don't know.

MR. UELMEN: If we could have the next excerpt.

(At 10:14 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall those words being spoken by Officer Fuhrman?

MS. MCKINNY: Yes.

MR. UELMEN: And the transcript that we just presented is an accurate record of what he said?

MS. MCKINNY: Yes.

MR. UELMEN: What--what were we talking about or what were you talking about at the time, in the context of discussing "People in someplace don't want niggers in their town"?

MS. MCKINNY: We were discussing where Officer Fuhrman grew up in Washington.

MR. UELMEN: In the state of Washington?

MS. MCKINNY: Yes.

MR. UELMEN: So here he was recounting his own experience of growing up; is that correct?

MR. DARDEN: Objection, calls for a conclusion, speculation.

THE COURT: Sustained.

MR. UELMEN: Could you tell us whether--what Officer Fuhrman was describing was based on reality?

MR. DARDEN: Same objection.

THE COURT: Sustained.

MR. UELMEN: In what context was this statement made in terms of whether it reflected actual events or whether it was fictional?

MR. DARDEN: Same objection. The question is vague.

THE COURT: Overruled. Overruled. What context was this comment made in?

MS. MCKINNY: He was talking about where he grew up. He grew up in Washington.

MR. DARDEN: May the record reflect the witness is reading a transcript before responding, your Honor?

THE COURT: Yes. Actually, why don't you take that back, because she only has to refresh her recollection as to that one item. The issue here is testing her recollection since there is no tape-recording. Why don't you just close that and put it up on the--

MR. UELMEN: Do you recall--do you presently recall, during the first conversation, talking with Officer Fuhrman about his personal background and where he grew up?

MR. DARDEN: Leading, your Honor.

THE COURT: Overruled.

MS. MCKINNY: I recall talking with him about this particular issue, where he grew up.

MR. UELMEN: If we could have the next excerpt, please.

(At 10:17 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall those words being spoken by Officer Fuhrman?

MS. MCKINNY: Yes.

MR. UELMEN: And is the transcript which just presented an accurate record of what Officer Fuhrman said in that first interview on April 2nd?

MS. MCKINNY: Yes.

MR. UELMEN: And in what context were these words spoken?

MS. MCKINNY: We were discussing the difference between pt officers, physical training officers, at the academy, when Officer Fuhrman trained as opposed to pt officers at the academy at that particular time in 1985.

MR. UELMEN: All right. May we have the next excerpt.

(At 10:19 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall Officer Fuhrman speaking those words?

MS. MCKINNY: Yes.

MR. UELMEN: And were these spoken in the first interview on April 2nd?

MS. MCKINNY: Yes.

MR. UELMEN: Is the transcript an accurate reflection of what Officer Fuhrman said?

MS. MCKINNY: Yes.

MR. UELMEN: And in what context was this statement made?

MS. MCKINNY: He was explaining the use of the chokehold and the reason for eliminating it.

MR. UELMEN: All right. Your Honor, that concludes the excerpts from the transcript no. 1, which was the first interview. We can now proceed to interviews where we do have audiotape available.

THE COURT: All right. Proceed.

MR. UELMEN: If we can have the next excerpt, please.

MS. CLARK: Your Honor, the People have offered to stipulate to the authenticity and I think the tapes speak for themselves.

THE COURT: Mr. Uelmen.

MR. UELMEN: Well, your Honor, we need to make the same showing in terms of the context in which these words were spoken.

MS. CLARK: Your Honor, obviously the court has the entire transcript. To the extent that there is context available, the court already has it and the tapes speak for themselves. We have the entire tape of these. There is no need for this.

THE COURT: All right. Mr. Uelmen, though, I think he does need to establish at least some basic foundation as to the voices. Proceed.

MR. UELMEN: All right.

(At 10:20 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall those words being spoken by Officer Fuhrman?

MS. MCKINNY: Yes.

MR. UELMEN: And do you recognize his voice?

MS. MCKINNY: Yes.

MR. UELMEN: This is an actual tape recording of an interview you conducted?

MS. MCKINNY: Yes.

MR. UELMEN: And when and where did this conversation take place?

MS. MCKINNY: This was in April.

(Discussion held off the record between the Deputy District Attorneys.)

MR. DARDEN: Your Honor, may I inquire, what is the witness reading or looking at?

THE COURT: She has the offer of proof.

MR. UELMEN: The offer of proof.

THE COURT: Are you objecting to that?

MR. DARDEN: Yes. I have reviewed that.

THE COURT: Yes. Would you put that down, Miss McKinny, and turn it over.

MS. MCKINNY: (Witness complies.)

MR. UELMEN: When and where did this conversation take place?

MS. MCKINNY: This took place sometime in April.

MR. UELMEN: Of 1985?

MS. MCKINNY: Of 1985.

MR. UELMEN: All right. And do you recall the context in which these words were spoken?

MS. MCKINNY: Yes. We were talking about nicknames that officers or partners give to each other.

MR. UELMEN: Thank you. Could we have the next--

THE COURT: Excuse me just a second. Miss McKinny, in your transcript you have down Baba, B-A-B-A. What i heard was Bubba. Do you distinguish between those two terms?

MS. MCKINNY: Is there a difference between those two terms?

THE COURT: Yes.

MS. MCKINNY: Yes.

THE COURT: All right. Which is accurate, your transcript or the transcript that we just saw here?

MS. MCKINNY: B-U-B-B-A.

THE COURT: Bubba?

MS. MCKINNY: Yes.

THE COURT: So your original transcript is not accurate as to this specific term?

MS. MCKINNY: No, it is a misspelling.

MR. UELMEN: Could we have the next excerpt.

MS. CLARK: The People have offered to stipulate, your Honor.

THE COURT: All right. Miss McKinny, have you listened to all these other tapes?

MS. MCKINNY: (No audible response.)

THE COURT: All the other tapes that you have given to the lawyers in this case?

MS. MCKINNY: I listened to them when I transcribed them, yes.

THE COURT: All right. Mr. Uelmen.

MR. UELMEN: Could we proceed?

THE COURT: No. If she is saying that these are all Mr. Fuhrman on the tapes, I don't need to hear any more. I have read the offer of proof. I've heard the tapes. I've read the transcripts.

(Discussion held off the record between Defense counsel.)

MR. UELMEN: There are issues that come up, your Honor, in terms of the context of each of these statements. The People, for example, in their--in their brief, have argued that some of these involved the fictional role playing in which Detective Fuhrman or Officer Fuhrman at the time was entering into some sort of fictional context at the time he spoke. Of course our contention is that he still used the word and when he testified he didn't make an exception for fictional role playing, so that is simply a question for the jury, but as a foundational matter we believe that with just a couple of exceptions we can show that each of these uses of the word were in the context of conversation in which he was recounting actual experiences or giving his personal opinions and did not involve creating dialogue or role playing with respect to fictional characters, so--

THE COURT: All right.

MR. UELMEN: --we would like to proceed to show the context of each of the statements.

THE COURT: Well, let me ask you this then: Then why was it necessary for me to take all of these tapes home with the offer of proof, with the transcripts, and read all this stuff and listen to all this stuff?

MR. UELMEN: Well, so your Honor could--could put this all into--into context.

THE COURT: Okay.

MR. UELMEN: I mean, we are dealing with a very--

THE COURT: I've heard it.

MR. UELMEN: --selective--

THE COURT: I have read it; I have seen it.

MR. UELMEN: --selective editing.

THE COURT: All right.

MR. UELMEN: Could I have a moment?

(Discussion held off the record between Defense counsel.)

MR. UELMEN: We are in a position, your Honor, where not knowing how your Honor is going to rule on any of these offers, we believe we are entitled to make a record to show the admissibility.

THE COURT: You have the record. You have a written offer of proof.

MR. UELMEN: And the relevance.

THE COURT: You have these tape recordings. You have lodged the transcripts with the court. You have a record. What more do we need to do?

MR. UELMEN: Well, I think your Honor needs to have a sense of how this is going to be presented to the jury as well. I mean, our position is what we have done with a massive amount of material is to refine it, to edit it, to put it into a format where it can be very concisely and with great precision presented to the jury, just cut to the bare bones of what is relevant, without any--any embellishment. And I think that is a very relevant factor for your Honor to recognize in terms of considering what you are going to admit and allow the jury to hear. And I think it would be very helpful to your Honor to see just how and in what format and in what context we intend to present this material to the jury.

THE COURT: Uh-huh, but this video was submitted to the court yesterday afternoon, correct?

MR. UELMEN: Yes.

THE COURT: All right. As part of the offer of proof?

MR. UELMEN: That's correct.

THE COURT: All right. So I have seen it.

MR. UELMEN: But your Honor has not heard any testimony as to the context in which each of these statements were made.

THE COURT: But don't I have the transcript for that purpose?

MR. UELMEN: Well, the transcript--they are saying--they are objecting to her even looking at the transcript in terms of her own memory of the context in which these statements were made and the conversations took place. We believe we have a right to present the testimony of the witness who will actually testify before the jury to establish the context of each of these statements to show that in fact these are the opinions, these are the personal experiences of Officer Mark Fuhrman. These are not fiction, these are not the creations of a playwright. These are the words that he was speaking in terms of his own life experience.

THE COURT: All right. Proceed. Her comments on the context.

MR. UELMEN: All right. I will limit--

THE COURT: Understanding--understanding I have read it, I have listened to it.

MR. UELMEN: I will limit my questions as we go through each excerpt to simply having her put them in context.

MS. CLARK: Your Honor, we have--why do we need the witness' memory, as dim as it may be, ten years later for context when you have the entire tape conversation for context?

THE COURT: Well, we don't have the entire tape conversations. There are a lot of stops and starts here. It starts in the middle of conversations. It ends in the middle of the conversations. I don't know what the predicate was to all of these things. There are a lot of unanswered questions with these tapes.

MS. CLARK: And we are assuming that this witness can now present this?

THE COURT: That is a judgment call, isn't it? Proceed. Thank you.

MR. UELMEN: May we have the next excerpt.

(At 10:29 A.M., Defense exhibit 1365, a videotape, was played.)

THE COURT: Hold on. We are on no. 12, correct?

MR. UELMEN: Yes, no. 12.

THE COURT: Okay.

MS. CLARK: And it is going to be necessary to play all of the tapes to give her testimony to each of the contexts as opposed to letting her look at the transcript? She has got the proffer in front of her.

THE COURT: The tape and the spoken word is the best evidence at this point. All right. Mr. Harris, just rewind that shortly, please.

(Brief pause.)

MR. UELMEN: No. 12.

(At 10:29 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Can you tell us the context in which those words were spoken?

MS. MCKINNY: Yes. This is related to the story. I would be--it would be helpful to look at the transcript, but to my best recollection, I was asking how--how an officer would approach a suspect and stop a suspect and these two suspects or the suspect, I believe they are black Muslims.

MR. UELMEN: All right. May we have the next excerpt.

(At 10:29 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: And do you recall the context in which those words were spoken?

MS. MCKINNY: It is a similar context as the last.

MR. UELMEN: Was this immediately after the previous excerpt about stopping?

MS. MCKINNY: I don't know. I would have to see the transcript.

MR. UELMEN: Would it help if you looked at the transcript in terms of--

MS. MCKINNY: Yes, because there are two times where a suspect is stopped, one in a car, and I asked for that information, how an officer would stop a--what they considered to be a suspicious car, what kind of issues would come up in that, and then there is another time when an officer is stopping two suspects on a street, so there are two different times.

MR. UELMEN: All right. Would it refresh your memory to look at the transcript?

MS. MCKINNY: Yes.

MR. UELMEN: Could you look at the transcript for tape no. 1 at page 28.

MS. MCKINNY: (Witness complies.)

THE COURT: Go ahead.

MR. UELMEN: Does that refresh your memory?

MS. MCKINNY: Yes.

MR. UELMEN: And in what context were those words spoken?

MS. MCKINNY: This would be the context regarding the black Muslims, stopping two suspects on the street who are black Muslims.

MR. UELMEN: In terms of where that would be likely to take place?

MS. MCKINNY: Yes.

MR. UELMEN: If we could have no. 14, please.

(At 10:32 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall the context in which those words were spoken?

MS. MCKINNY: I remember it being said. I don't remember the context.

MR. UELMEN: Would it refresh your memory to look at the transcript?

MS. MCKINNY: Yes.

MR. UELMEN: All right. Could you look at transcript no. 2 or transcript of tape no. 1, page 1.

MS. MCKINNY: (Witness complies.)

MR. UELMEN: Does that refresh your memory?

MS. MCKINNY: Yes. Officer--

MR. UELMEN: And what--in what context were those words spoken?

MS. MCKINNY: Officer Fuhrman is explaining what it feels like to work on this particular mid-watch.

MR. UELMEN: All right. Could we have no. 15, please.

(At 10:34 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall the context in which those words were spoken?

MS. MCKINNY: Yes.

MR. UELMEN: And what was that?

MS. MCKINNY: My best recollection is it was a situation where I was asking how an officer would respond to transporting a suspect who had beaten up or hit a woman officer.

MR. UELMEN: All right. No. 16.

MS. CLARK: Your Honor, I'm going to impose an objection again. I do not--well, I don't know. Let me inquire of the court. Is this at all helpful to the court in giving it any additional information over and above what it already has in the Defense proffers?

THE COURT: This is the person who is conducting the conversations and interviews of Detective Fuhrman. She has unique personal knowledge as to each one of these individual situations.

MS. CLARK: What unique personal knowledge that she has imparted thus far that we haven't already gotten more of in the proffers themselves and the actual transcripts?

THE COURT: Well, at some point in time I'm going to ask that question, but I'm letting Mr. Uelmen go with what he feels is appropriate at this point.

MR. UELMEN: There are a number of excerpts we will get to in a moment where there were others present and an additional set of excerpts where we do not have a tape, your Honor, so I think this will be very helpful. Could we have the next excerpt.

(At 10:36 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall those words?

MS. MCKINNY: They were--I need to see them again.

MR. UELMEN: Could you repeat that?

THE COURT: I heard it.

(At 10:37 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall the context in which those words were spoken?

MS. MCKINNY: I believe, yes, we were discussing fencing. It would be helpful to look at the transcript, but to my best recollection we were discussing what it would be like to be fencing two officers and Officer Fuhrman was saying that--something to the effect that even knowing fencing isn't particularly useful because that is not something that an officer would be called upon to use in the line of duty.

MR. UELMEN: So when you refer to fencing, you are referring to sword fights?

MS. MCKINNY: Yes.

MR. UELMEN: All right. Could we have the next one.

THE COURT: Hold on. Madam reporter? All right. We need to take a recess. All right. We are going to take a 15-minute recess at this time. And Miss McKinny, you may step down. Come back in fifteen minutes. All right. Thank you.

(Brief pause.)

THE COURT: And let me see Mr. Uelmen and Miss Clark.

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

(Recess.)

(The following proceedings were held in open court:)

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. All right. Counsel, the progress that we are making so far indicates to me that we are not going to finish this hearing this morning, and I've instructed the bailiffs to hold the jury over at the hotel for the afternoon to actually take them shopping this afternoon because I don't think we will get to it this afternoon. The Defense has now provided me with a handwritten list of the specific instances with regards to this first offer of proof, specifically racial epithets that the Defense is seeking to offer before the jury, and I will have Mrs. Robertson file this as addenda to the Defense offer of proof.

MR. UELMEN: Your Honor, what this list--

THE COURT: Excuse me, counsel. Excuse me.

MR. UELMEN: Yes, I'm sorry.

THE COURT: All right. Shall we attach this to the amended offer of proof? Previously the court had ordered the offers of proof and the response field because of the inflammatory nature of the content, and I have decided that given the fact that we are now publicly discussing the content that I'm going to unseal the proffer and the Prosecution response and I will instruct my staff to make that available over the noon hour. Secondly, Mr. Uelmen, over the recess I had the opportunity to sit and contemplate for a few moments, and I agree with the Prosecution, that the court does have I think ample context, having read the entire transcript with regards to each of the identified excerpts that you wish to play. However, I think that there is an overriding public interest in the nature of the offer that you are making, and I don't want this court to ever be in a position where there is any indication that this court would participate in suppressing information that is of vital public interest. I think that has already been expressed by the city attorney's office and it has been expressed by other interested entities that this information be made public. So what I'm going to suggest we do at this point, Mr. Uelmen, is that you play the--your video presentation to the court in its entirety without further interruption, I will hear it again, and that will be for the purpose of public dissemination of this information. But I have read and considered and listened to all of this.

MR. UELMEN: All right. Your Honor, if we could just make one request. There are some excerpts where, for example, it refers to Officer Fuhrman nodding, without describing the nature of the nod. It refers to a ripping motion in the course of the discussion of what you would do with a driver's license, which does not appear in the transcript. We would, with respect to those excerpts, request to stop the tape and just put a few questions to Miss McKinny.

THE COURT: Well, let me ask you about no. 15. Detective Fuhrman is heard to make some noises at the end of the tape which in my, I guess, screenwriter's imagination, thought he was discussing--this is where the context was how would a police officer respond to transporting a suspect who has been arrested for assaulting a police officer.

MR. UELMEN: Uh-huh.

THE COURT: And Fuhrman says, well, you would tell them you don't do that to anybody, any police officer, be they male or female, and then he makes some noises, which given the context of the other tapes, I interpreted as either baton shots or something like that, gestures similar to that, which are not recorded, so if that is the context of the gestures that are being made, I don't know. So I agree with you there may be some portions where you need to stop, but other than that, I think I understand the context.

MR. UELMEN: All right.

THE COURT: Are we clear?

MR. UELMEN: Could we back up then to 17?

(Discussion held off the record between Defense counsel.)

MR. UELMEN: Yes. We have a problem with our court reporter.

THE COURT: No, we don't have a problem with our court reporter.

MR. UELMEN: We have a problem with us. The transcript simply reflects silence while the displayed portion of the excerpt is displayed, and then questions about that--that excerpt. If we could have a stipulation that at that point we could insert into the record the actual words of the--that were being displayed at the time.

THE COURT: Well, we are referring to the--by excerpt keyed to the offer of proof. The offer of proof also has the text, so the text is there. The record--the record I think is adequate.

MR. UELMEN: All right. And I also wanted to clarify that the list I gave your Honor of the 17 instances are instances that we contend are relevant both to show use of the word and to show racial bias.

THE COURT: I understand. Understood the first time.

MR. UELMEN: Not necessarily withdrawal of all 41 uses of the word.

THE COURT: All right. Let's start with 17. Let's resume with 17.

MR. UELMEN: May we have just a minute, your Honor?

(Discussion held off the record between Defense counsel.)

MR. UELMEN: Well, your Honor, the present format that we have on the tape is a 20-second delay between each excerpt.

THE COURT: That will give you the opportunity to say "This is excerpt 17."

MR. UELMEN: All right. And we intend to shorten that for our actual presentation to the jury, so that we don't have 20-second delays between each excerpt. Are we ready to proceed? This is excerpt B-17.

(At 11:00 A.M., Defense exhibit 1365, a videotape, was played.)

THE COURT: Can we have audio?

MR. UELMEN: We should.

(At 11:00 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Now, excerpt B-18.

(At 11:01 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Excerpts 19 and 20. What we have done is number each use of the word so this is one excerpt with two uses of the word.

(At 11:02 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Next we have excerpts 21 through 24, three uses--four uses of the word.

(At 11:03 A.M., Defense exhibit 1365, a videotape, was played.)

THE COURT: Mr. Uelmen--hold on, Mr. Harris. That is one of the enhanced versions?

(Discussion held off the record between Defense counsel.)

MR. UELMEN: Yes, I believe it is, your Honor.

THE COURT: All right.

MR. UELMEN: To reduce the background noise.

THE COURT: Thank you. All right. 25.

MR. UELMEN: No. 25.

(At 11:04 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: I believe that, too, is an enhanced tape, your Honor. No. 26.

(At 11:05 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Proceeding to 27, your Honor. The record should reflect that this is the interview in which Laurie Diaz is present and these comments are also directed to her.

(At 11:05 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: And no. 28 is likewise in the presence of Miss Diaz.

(At 11:06 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: No. 29.

(At 11:06 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: No. 30.

(At 11:06 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: No. 31.

(At 11:07 A.M., Defense exhibit 1365, a videotape, was played.)

THE COURT: Sorry, Miss McKinny. Could you roll that back?

MS. MCKINNY: If you could roll that back, I believe my name was listed incorrectly on that, just as an addendum.

MR. UELMEN: The tape--

THE COURT: This is no. 31. Mr. Harris, would you run that back for us, please.

MS. MCKINNY: Thank you.

(Discussion held off the record between Defense counsel.)

(At 11:08 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: At the beginning--the record should reflect the speaker is identified as McKinny incorrectly.

MR. UELMEN: Is that--

MS. MCKINNY: That's correct.

MR. UELMEN: Is that Officer Fuhrman speaking?

MS. MCKINNY: Yes, it is.

MR. UELMEN: Thank you.

(At 11:09 A.M., Defense exhibit 1365, a videotape, was played.)

THE COURT: 32.

MR. UELMEN: No. 32.

(At 11:09 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Your Honor, numbers 33 through 37 we do not have audio. These are all taken from tape no. 9, which was inadvertently taped over. This is no. 33.

(At 11:10 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Should I put the words on the record, your Honor?

THE COURT: No, they are in the offer of proof, as I recollect, aren't they, counsel?

MR. UELMEN: Yes.

THE COURT: All right. So long as you refer in the record as to which offer this is, which is on--we are on 33 now, correct?

MR. UELMEN: Yes.

THE COURT: All right.

MR. UELMEN: And I take it it is unnecessary to elicit from Miss McKinny her recollection of each of these?

THE COURT: I think since there is no tape, I think you do need to establish some foundation regarding when the transcript was done, accuracy, et cetera, et cetera.

MR. UELMEN: All right.

MR. UELMEN: Referring to what was just displayed as excerpt no. 33, Miss McKinny, do you recall those words being spoken by Officer Fuhrman?

MS. MCKINNY: I need to read it again or look at the proffer, please.

MR. UELMEN: I'm sorry?

MS. MCKINNY: I need to read it again or look at the proffer, please.

MR. UELMEN: All right. Can you look at the offer of proof, no. 33.

MR. DARDEN: I would ask that the witness look at the monitor again. The proffer puts it in context.

THE COURT: That is true.

MR. UELMEN: All right. Would you display 33 again, please.

(At 11:10 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall that statement?

MS. MCKINNY: I don't have an independent recollection of that statement, no.

MR. UELMEN: All right. Now, if you could refer to your transcript no. 9 at page 1, I believe it is in the front of the collection of transcripts that you have there.

MR. DARDEN: Objection, your Honor.

THE COURT: Overruled.

MR. DARDEN: Foundation.

THE COURT: Overruled.

MR. UELMEN: Please.

MS. MCKINNY: (Witness complies.)

MR. UELMEN: Referring to your transcript no. 9 at page 1, do you have that?

MS. MCKINNY: Yes, I do.

MR. UELMEN: Do those words appear in the transcript, "Now it is funny because guys in internal affairs"--

MR. DARDEN: Objection, your Honor. This is offered to the witness to refresh her recollection.

THE COURT: That's correct.

MR. DARDEN: May the witness close the book now, your Honor?

THE COURT: As soon as she finishes reading.

MR. UELMEN: Does that refresh your recollection?

MS. MCKINNY: Yes.

MR. UELMEN: Do you recall these words being spoken by Officer Fuhrman?

MS. MCKINNY: In the context of this, yes.

MR. UELMEN: And in what context was that?

MS. MCKINNY: We were talking about a particular investigation, an investigation of IA, internal affairs, related to an incident in the story.

MR. UELMEN: And when and where did this conversation take place?

MS. MCKINNY: It took place in 1987, approximately the summer of `87.

MR. UELMEN: Do you recall the date in 1987?

MS. MCKINNY: I don't recall the exact date. It would have probably been in the summer or spring or early summer.

MR. UELMEN: Did you indicate a date on the transcript itself?

MS. MCKINNY: May I refer back to the transcript? I believe I did.

MR. UELMEN: If that would refresh your recollection.

MS. MCKINNY: (Witness complies.)

MR. DARDEN: No foundation.

THE COURT: Overruled. Go ahead.

MS. MCKINNY: The date on the transcript is--

THE COURT: Just read it to see if that refreshes your recollection as to when it was.

MS. MCKINNY: Oh.

MR. UELMEN: Is that--

MS. MCKINNY: I only recall that it was sometime in `87, in the spring or early summer, so that refreshes my recollection.

MR. UELMEN: In the spring or early summer of 1987?

MS. MCKINNY: Yes.

MR. UELMEN: And was that also in Los Angeles?

MS. MCKINNY: Yes.

MR. UELMEN: That would be true with respect to offers 34, 35, 36 and 37, your Honor, that come from the same transcript.

MR. UELMEN: Do you actually recall word for word the words that Officer Fuhrman spoke on that occasion?

MS. MCKINNY: No.

MR. UELMEN: Is the transcript an accurate record of what Officer Fuhrman said at that time?

MS. MCKINNY: The transcript would be an accurate record of what Officer Fuhrman said.

MR. UELMEN: And did you make that transcript soon after the conversation took place?

MS. MCKINNY: Yes.

MR. UELMEN: How soon?

MS. MCKINNY: Within a day or two.

MR. UELMEN: And you didn't change or in any way alter the words that you heard on the tape in preparing the transcript?

MR. DARDEN: Leading.

THE COURT: Sustained. Rephrase the question.

MR. UELMEN: Did you put into the transcript the words that you actually heard Officer Fuhrman speaking on the tape?

MS. MCKINNY: Yes. I transcribed the words I actually heard Officer Fuhrman speak.

MR. UELMEN: All right. Thank you. Could we proceed to excerpt 34.

(At 11:15 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall Officer Fuhrman speaking those words?

MS. MCKINNY: Yes.

MR. UELMEN: And was that also in the spring or early summer of 1987 also?

MS. MCKINNY: Yes.

MR. UELMEN: In the same conversation as the previous excerpt?

MS. MCKINNY: Yes.

MR. UELMEN: And does a script accurately reflect the words that Officer Fuhrman spoke?

MS. MCKINNY: Yes.

MR. DARDEN: Objection, no foundation.

THE COURT: Overruled.

MR. UELMEN: If we could proceed to no. 35.

(At 11:16 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall those words being spoken by Officer Fuhrman?

MS. MCKINNY: Yes.

MR. UELMEN: When and where were they spoken?

MS. MCKINNY: That would be in the same interview in 1987.

MR. UELMEN: And does the transcript accurately reflect the words that Officer Fuhrman spoke on that occasion?

MS. MCKINNY: Yes.

MR. UELMEN: No. 36.

(At 11:17 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall those words being spoken by Officer Fuhrman?

MS. MCKINNY: No, I have no independent recollection of those words.

MR. UELMEN: All right. Could you look at transcript no. 9 at page 11.

MR. DARDEN: No foundation.

THE COURT: Overruled. Just read it to yourself and see if that refreshes your recollection as to what was there?

MS. MCKINNY: (Witness complies.) I'm sorry, I haven't found it on page 9.

MR. UELMEN: No, page 11.

MS. MCKINNY: I'm sorry.

(Brief pause.)

MS. MCKINNY: Yes.

MR. UELMEN: That refreshes your recollection?

MS. MCKINNY: Yes.

MR. UELMEN: Do you remember the context in which these words were spoken?

MS. MCKINNY: In terms of accountability for police officer actions.

MR. UELMEN: And these words were spoken in the course of the same interview in the spring or early summer of 1987?

MS. MCKINNY: Yes.

MR. UELMEN: And the transcript accurately records what Officer Fuhrman said?

MS. MCKINNY: Yes.

MR. DARDEN: Objection, no foundation.

THE COURT: Overruled.

MR. UELMEN: All right. No. 37.

(At 11:20 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall those words being spoken by Officer Fuhrman?

MS. MCKINNY: No, I have no independent recollection of those words.

MR. UELMEN: All right. Could you look at the transcript for no. 9 at page 12.

MR. DARDEN: No foundation, objection.

THE COURT: Overruled.

MS. MCKINNY: (Witness complies.) Yes.

MR. UELMEN: Does that refresh your recollection?

MS. MCKINNY: Yes.

MR. UELMEN: Do you recall the context in which those words were spoken?

MS. MCKINNY: We were talking about the problems between different racial groups and LAPD; specifically Hispanics, Mexicans, and blacks.

MR. UELMEN: All right. And these words were spoken in the course of the same conversation in the spring or early summer of 1987?

MS. MCKINNY: Yes.

MR. UELMEN: And does that transcript accurately record the words of Officer Fuhrman?

MS. MCKINNY: Yes.

MR. UELMEN: All right. Now, the next three excerpts, 38 and 39 and 40--well, specifically 38 and 40, make some reference to the 77th precinct.

MR. UELMEN: Did that have some particular relevance to the conversations with Officer Fuhrman?

MS. MCKINNY: Yes.

THE COURT: Just so the record is straight, we don't have precincts in Los Angeles.

MR. UELMEN: Division.

THE COURT: Division.

MR. COCHRAN: Yes.

MR. UELMEN: Could you explain what the 77th division, what significance that had?

MS. MCKINNY: I had ridden along with some officers in the 77th and I was modeling this particular division after the 77th.

MR. UELMEN: For the screenplay?

MS. MCKINNY: For the screenplay, yes.

MR. UELMEN: And where is the 77th located?

MS. MCKINNY: I forget the exact street location, I'm sorry.

MR. UELMEN: Is that in south central Los Angeles?

MS. MCKINNY: Umm, yes. I just forget the exact location.

MR. UELMEN: All right. Could we have excerpt no. 38, please.

(At 11:24 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Excerpt no. 39.

(At 11:25 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: No. 40.

(At 11:26 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall the context of that excerpt, Miss McKinny?

MS. MCKINNY: It would be a helpful--

THE COURT: This is a discussion about the 77th?

MS. MCKINNY: It would be only in discussing the 77th and perhaps after a ride-along that I had done.

MR. UELMEN: Offer no. 41, your Honor, is not on the tape yet, it was added in our supplement to the Defense amended offer of proof after it was located on a transcript of tape no. 10. So if I could read it into the record?

THE COURT: It is actually a page 2 of your supplement, correct?

MR. UELMEN: Yes. "Came up with a new name for niggers. Anthrocide," A-N-T-H-R-O-C-I-D-E, "Dark gray color on Porsches, now nobody is going to mind being called an anthrocide do you think?"

MR. UELMEN: Do you recall Officer Fuhrman speaking those words?

MS. MCKINNY: Yes.

MR. UELMEN: And do you recall when and where that comment was made?

MS. MCKINNY: No.

THE COURT: Was that a misspelling?

MR. UELMEN: Umm, it was just done phonetically, your Honor, so it may well be.

MR. UELMEN: If you could refer to the transcript of tape no. 10 on page 16, please.

MS. MCKINNY: (Witness complies.)

THE COURT: Anthracite. All right. Mr. Uelmen, what is the purpose of this at this point?

MR. UELMEN: Of 41?

THE COURT: Yes.

MR. UELMEN: Well, it is the most recent of all of the offers.

THE COURT: All right. What is the date on this?

MR. UELMEN: 1988.

THE COURT: All right.

MS. CLARK: Is it clear to the court there is no tape for this?

THE COURT: Yes.

MS. CLARK: I mean no audiotape at all.

THE COURT: Yes.

MS. CLARK: Okay.

MR. UELMEN: Does that refresh your recollection?

MS. MCKINNY: I'm unable to find it.

THE COURT: It is not very coherently put together.

MR. UELMEN: I think we may have the wrong transcript.

MS. MCKINNY: I'm looking at tape no. 10, page 16.

MR. UELMEN: Okay. I understand the problem.

THE COURT: I think we are looking at a transcript.

MR. UELMEN: What you have there is the transcript of tape no. 10, but what we want to refer to is your transcript no. 10.

THE COURT: No. 10. Why don't you show it to her, counsel? Could you have it in the book?

MR. DARDEN: Your Honor, I have it.

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. UELMEN: We have a page of that transcript, page 16.

MS. MCKINNY: Thank you.

THE COURT: This is a half page?

MS. MCKINNY: Yes, I remember it from my transcript.

THE COURT: I'm sorry, counsel, which page?

MS. MCKINNY: You can take that back.

MR. UELMEN: Page no. 16.

THE COURT: 16.

MR. UELMEN: Of the McKinny transcript, no. 10.

THE COURT: Got it. Thank you.

MR. UELMEN: Does that refresh your recollection?

MS. MCKINNY: Yes.

MR. UELMEN: That appears under the name "Farrell"; is that correct?

MS. MCKINNY: Yes, it does.

MR. UELMEN: Does that have some association for you in terms of how this occurred?

MS. MCKINNY: I believe there was an Officer Farrell with whom Officer Fuhrman had worked at one time and this is a portion of the tape in which there were categories and then transcribed--the transcriptions are Officer Fuhrman's words, but the categories are regarding my questions or the areas of conversation.

MR. UELMEN: And is the transcription an accurate record of words that were spoken by Officer Fuhrman?

MS. MCKINNY: Yes.

MR. UELMEN: And do you recall approximately when this conversation took place?

MS. MCKINNY: To my best recollection I believe it was 1988. This particular example doesn't help me know that. There is something else on that tape that helps me know that it was 1988.

MR. UELMEN: All right. So in looking at that transcript, there were other portions that reminded you of the time that the conversation took place?

MS. MCKINNY: Yes.

MR. UELMEN: What was that?

MS. MCKINNY: There was one reference to being a good father, on being a father, and at the time I was either pregnant with my second child, son, my second son, or had just given birth, so I remember that reference particularly sticking, and then I think there is another reference to 1988 being the year of the gangs and the next year being something else. I don't recall it verbatim.

MR. UELMEN: All right. So that in context was a conversation that you recall taking place in 1988?

MS. MCKINNY: Yes. I also remember this particular item because I didn't get it.

MR. UELMEN: You didn't get it?

MS. MCKINNY: I didn't understand. It was a joke that I didn't get.

MR. UELMEN: Now, this was a conversation that was taped over; is that correct, where the tape was reused?

MS. MCKINNY: I don't know.

MR. UELMEN: You haven't been able to locate the actual tape of this conversation?

MS. MCKINNY: That's correct.

MR. UELMEN: All right. But the transcript that you prepared, was that done shortly after the conversation took place?

MS. MCKINNY: Yes.

MR. UELMEN: And is that an accurate record of what Officer Fuhrman said?

MS. MCKINNY: Yes.

MR. UELMEN: All right. We can now move on, your Honor, to the C category, the police misconduct excerpts. And the first nine of these--no, eight of these--the first eight of these are all drawn from the first transcribed conversation.

THE COURT: All right.

MR. UELMEN: So if we could roll no. 1 and then--

(At 11:35 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: And we could proceed directly to no. 2.

(At 11:36 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Now, this excerpt indicates in parenthetical in response to a question, "Have you done that before?" "Nods." Do you remember these words being spoken by Officer Fuhrman?

MS. MCKINNY: Yes.

MR. UELMEN: And did you indicate in your transcription the reference to nods?

MS. MCKINNY: Yes.

MR. UELMEN: And could you explain what you meant by that?

MS. MCKINNY: That Officer Fuhrman nodded in the affirmative.

MR. UELMEN: All right. So he was nodding his head up and down?

MS. MCKINNY: Yes.

MR. UELMEN: In an affirmative way?

MS. MCKINNY: Yes.

MR. UELMEN: As though he were saying, yes, I have done that before?

MS. MCKINNY: Correct.

MR. UELMEN: Thank you. Excerpt no. 3.

(At 11:37 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Excerpt no. 4.

(At 11:38 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: If we could just stop that for a moment.

MR. UELMEN: Referring back to the list of questions that you gave to Detective Fuhrman after this interview took place--

MS. MCKINNY: Yes.

MR. UELMEN: --do you still have that in front of you?

MS. MCKINNY: Yes.

MR. UELMEN: If you could look at question no. 16 of the follow-up questions you had posed for round two of your interviews.

MS. MCKINNY: (Witness complies.) Yes.

MR. UELMEN: Question no. 16 is: "How do you hire someone who is capable of shooting someone in the back, no. 1? And no. 2, on what grounds would you determine who is capable of figuring out who the bad guys are? Refer to page 25 of the transcript." Were you referring Detective Fuhrman specifically to this excerpt in posing that question?

MS. MCKINNY: Yes.

MR. UELMEN: Thank you. If we could proceed to excerpt no. 5.

(At 11:40 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Stop just a moment again.

MR. UELMEN: If you could again refer to the list of follow-up questions that you sent to Officer Fuhrman and look at question no. 20.

MS. MCKINNY: (Witness complies.) Yes.

MR. UELMEN: Now, that question actually quotes the phrase, "Most of these pukes couldn't do it"; is that correct?

MS. MCKINNY: Yes.

MR. UELMEN: Was that a reference to that same language appearing in this excerpt, "Most of these pukes couldn't do it"?

MS. MCKINNY: Yes.

MR. UELMEN: No. 6, please.

(At 11:42 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Stop for a moment.

MR. UELMEN: And once again, Miss McKinny, refer to the list of follow-up questions, no. 24.

MS. MCKINNY: (Witness complies.) Yes.

MR. UELMEN: In question--follow-up question no. 24 you referred Officer Fuhrman specifically to page 30 of the transcript?

MS. MCKINNY: Yes.

MR. UELMEN: And posed a question about meeting the guy who killed two police officers; is that correct?

MS. MCKINNY: Yes.

MR. UELMEN: Is that a reference to the information in this excerpt?

MS. MCKINNY: Yes.

MR. UELMEN: Thank you.

THE COURT: Do we have any idea who this person was?

MS. MCKINNY: No.

THE COURT: Do you have any belief that there was a real person to whom Detective Fuhrman was referring to?

MS. MCKINNY: I don't know.

THE COURT: Given your connection with UCLA, were you aware of any student who met that description?

MS. MCKINNY: No, I was not aware of that.

THE COURT: All right.

MR. UELMEN: No. 7.

(At 11:45 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall the context of excerpt no. 7?

MS. MCKINNY: Yes.

MR. UELMEN: Was Officer Fuhrman describing an actual arrest in which he participated?

MR. DARDEN: Objection, calls for a conclusion, speculation, foundation.

THE COURT: Foundation. Rephrase the question.

MR. UELMEN: The excerpt starts out, "So under what did you arrest him?" Were you asking Officer Fuhrman about an arrest of a specific individual?

MS. MCKINNY: I believe I was. I would have to see my transcript to be able to give an accurate assessment, but yes, it--

MR. UELMEN: All right. Could you look at transcript no. 1, pages 33 to 34.

MR. DARDEN: No foundation.

THE COURT: Overruled.

MS. MCKINNY: (Witness complies.) Yes.

MR. UELMEN: Does that refresh your recollection?

MS. MCKINNY: Yes.

MR. UELMEN: And was he describing an event in which he had participated?

MR. DARDEN: Objection, calls for speculation.

MS. MCKINNY: Yes.

MR. DARDEN: Motion to strike.

THE COURT: Sustained.

MR. UELMEN: Do you describe the context in which he described this arrest?

MS. MCKINNY: He was discussing a suspect that he had arrested.

MR. UELMEN: Do you know when or where this arrest had taken place?

MR. DARDEN: Same objection, your Honor.

THE COURT: Overruled.

MS. MCKINNY: The previous evening.

MR. UELMEN: Thank you. No. 8, please.

(At 11:49 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: We are ready to proceed to no. 9, which does have audio, your Honor.

THE COURT: Proceed.

MR. UELMEN: All right. Excerpt no. 9, please.

(At 11:50 A.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you have a particularly vivid memory of that account?

MS. MCKINNY: Of course.

MR. UELMEN: Why is that?

MS. MCKINNY: It is, umm--it is vividly described.

MR. UELMEN: Do you remember any discomfort in hearing it for the first time?

MR. DARDEN: Relevance, your Honor.

THE COURT: Overruled.

MS. MCKINNY: Yes. It was one of the--it was very uncomfortable to sit through that, but as I mentioned before, I was in a journalistic mode of trying to get that type of information.

MR. UELMEN: Thank you. Shall we proceed?

THE COURT: No, let's take a break now. All right. Ladies and gentlemen, we are going to take our recess for the morning session. Miss McKinny, I'm going to direct you to come back at one o'clock.

MS. MCKINNY: Thank you.

THE COURT: All right. We will stand in recess until one o'clock.

(At 11:58 A.M. the noon recess was taken until 1:00 P.M. of the same day.)

LOS ANGELES, CALIFORNIA; TUESDAY, AUGUST 29, 1995 1:02 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 are again present.

Laura Hart McKinny, (402) the witness on the stand at the time of the noon recess, resumed the stand and testified further as follows:

THE COURT: Miss McKinny is on the witness stand undergoing direct examination by Mr. Uelmen.

MR. UELMEN: Thank you, your Honor.

THE COURT: All right. We had just completed, let's see, this was C-9.

MR. UELMEN: Yes.

THE COURT: All right. Proceed.

MR. UELMEN: So we are up to no. 10.

DIRECT EXAMINATION (RESUMED) BY MR. UELMEN

MR. UELMEN: Good afternoon, Miss McKinny.

MS. MCKINNY: Good afternoon.

MR. UELMEN: If I could just clarify a couple of questions that came up this morning. You indicated that on one of the interviews you asked Laurie Diaz to participate?

MS. MCKINNY: Yes.

MR. UELMEN: And what instructions did you give her with respect to her participation in that interview?

THE COURT: I thought we asked that question already.

MR. UELMEN: I'm not sure it was clarified that she was actually role playing.

THE COURT: She was playing as a woman who was thinking about going on the police department, correct?

MR. UELMEN: Yes. That is the only point I wanted to clarify.

THE COURT: It is clear.

MR. UELMEN: She actually didn't want to be a police officer; is that correct?

MS. MCKINNY: No.

MR. UELMEN: She was just playing that role?

MS. MCKINNY: Yes.

MR. UELMEN: Was Detective Fuhrman told that she was playing a role or was he told that she wanted to be a police officer?

MS. MCKINNY: Initially he was told that she was a friend of mine who wanted to be--was considering going to the police academy and entering the CPA program to be a police officer.

MR. UELMEN: Thank you. And you also indicated this morning that as the interviews progressed and you had less time available, the nature of the editing that you conducted was different with respect to the later transcripts than with respect to the first one?

MS. MCKINNY: Yes.

MR. UELMEN: Could you describe what you mean by that in terms of how the editing process differed?

MS. MCKINNY: Initially I was more exact in giving the questions and the answers. Later I sometimes omitted my question because I knew what it was and I didn't need to transcribe my question.

MR. UELMEN: So you did not use a question/answer format for the later transcriptions; is that correct?

MS. MCKINNY: It was more random. Sometimes again it was based on how much time I had to transcribe in consideration of family life, work and other projects that I was--in which I was involved.

MR. UELMEN: Did your editing ever involve changing anything that Officer Fuhrman said to you?

MS. MCKINNY: No.

MR. UELMEN: So even in the later transcripts where you were editing out your questions, you were still putting verbatim the words that Officer Fuhrman used into the transcript?

MS. MCKINNY: The best that I could hear on the tape, yes.

MR. UELMEN: Thank you. I believe we can proceed then with excerpt no. 10.

(At 1:06 P.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Excerpt number C-11.

THE COURT: Counsel, I'm a little concerned about the breaks in the tape, the fade in and out and obviously a stop/start there. Do you want to ask some questions about that?

MR. UELMEN: I can inquire about that.

MR. UELMEN: Was there any interruption in the taping that you can recall of this incident?

MS. MCKINNY: No, I can't recall any purposeful interruption of this incident.

MR. UELMEN: Was there any occasion when the tape recorder was moved in the course of tape-recording?

MS. MCKINNY: In this particular incident, again I don't recall. There were times when the batteries would run down and I would have to stop and replace the batteries. There were times when I had to--it would stop--the indicator would pop up and I would have to restart it again.

MR. UELMEN: As you heard this particular excerpt was anything left out of what was actually said by--by Officer Fuhrman?

MR. DARDEN: Objection, no foundation.

THE COURT: Overruled.

MS. MCKINNY: Not to my knowledge, but it is possible, but not to my knowledge.

MR. UELMEN: All right. If we could proceed then with excerpt no. 11.

(At 1:11 P.M., Defense exhibit 1365, a videotape, was played.)

(Discussion held off the record between Defense counsel.)

MR. UELMEN: Just one further clarifying question.

MR. UELMEN: The excerpt you heard, did it capture the essence of what Officer Fuhrman was saying?

MR. DARDEN: Objection, calls for a conclusion.

THE COURT: Overruled.

MR. DARDEN: Speculation.

THE COURT: You can answer the question.

MS. MCKINNY: Yes. We were discussing partner relationships.

MR. UELMEN: Thank you. No. 11.

(At 1:11 P.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Now, in this excerpt there is a question asked by you with reference to an article that you have that does not appear in the transcript. Is this an example of the kind of editing that you were talking about?

MS. MCKINNY: Yes, that would be an example of something that I might have edited. I don't have any of my other research material with me, but there had been some articles in the Los Angeles times that I had--I was referring to in this particular portion.

MR. UELMEN: All right.

MS. MCKINNY: And I believe I had the article there with me.

MR. UELMEN: Excerpt no. 12.

(At 1:14 P.M., Defense exhibit 1365, a videotape, was played.)

(Discussion held off the record between Defense counsel.)

MR. UELMEN: There is a point in that excerpt where he makes a noise "Okay, let's go." Did you hear that?

MS. MCKINNY: Yes.

MR. UELMEN: Could you describe what was going on at that point?

MS. MCKINNY: It was the--he was making the sound that the skateboard would make when it was ran over by the tire of the car.

MR. UELMEN: So he was imitating kind of a bumping sound?

MS. MCKINNY: Yes.

MR. UELMEN: Thank you. No. 13.

(At 1:15 P.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: A couple questions about that excerpt. In your transcript I believe you had referred to some sort of motion made by Officer Fuhrman as he was describing taking the driver's license and then telling someone "You are a fucking jerk, you get out of here." Did he make some motion at that point? Do you recall this?

MS. MCKINNY: Yes.

MR. UELMEN: Could you describe the motion he made at that time?

MS. MCKINNY: It would be similar to one that you would make to rip up something with your two hands.

MR. UELMEN: Could you demonstrate that for us?

MS. MCKINNY: (No audible response.)

MR. UELMEN: With your hands?

MS. MCKINNY: I don't remember exactly how he did it, but it would be something along that line, (Indicating).

MR. UELMEN: Pulling your hands apart?

MS. MCKINNY: Pulling your hands apart, ripping something up.

MR. UELMEN: As though you were tearing something?

MS. MCKINNY: Yes.

MR. UELMEN: The transcript that we have on the video refers to "Officers only want to go so far and they are not chicken up to supervisors." As I heard that it sounded like "Kissin' up to supervisors." Do you recall whether one word or the other was used there?

MS. MCKINNY: The latter would be correct.

MR. UELMEN: It would be kissin' up?

MS. MCKINNY: Yes.

MR. UELMEN: Excerpt no. 14.

(At 1:17 P.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: In the middle of that excerpt there was a high-pitched voice saying "Thank you." Like "Thank you." Was that Officer Fuhrman speaking?

MS. MCKINNY: Yes.

MR. UELMEN: What was he doing?

MS. MCKINNY: He was speaking in the voice of a woman officer who would have been thanking him or any other officer that he would be describing for doing whatever he did to help.

MR. UELMEN: Thank you. No. 15.

(At 1:20 P.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: No. 16.

(At 1:21 P.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Now, the female voice on that excerpt is the voice of Laurie Diaz?

MS. MCKINNY: That's correct.

MR. UELMEN: So this was the interview you had arranged to have Miss Diaz come in and role play?

MS. MCKINNY: Yes.

MR. UELMEN: No. 17, please.

(At 1:24 P.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Once again the female voice on that excerpt is the voice of Laurie Diaz?

MS. MCKINNY: That's correct. There is a slight error in the transcript there. Where it says "McKinny" that last time would be Laurie Diaz.

MR. UELMEN: Okay. The final comment was Miss Diaz, not your voice?

MS. MCKINNY: Yes.

MR. UELMEN: The last excerpt in the police misconduct offer of proof no. 18, your Honor, is another one that we do not have audiotape for.

MR. UELMEN: So if you could observe this one carefully and I will have a few questions for you. If we could have no. 18.

(At 1:25 P.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: Do you recall those words being spoken by Officer Fuhrman?

MS. MCKINNY: Yes.

MR. UELMEN: And when and where were they spoken?

MS. MCKINNY: They were spoken in--I believe--I believe it was 19--the spring of `87.

MR. UELMEN: All right. And is this the interview you referred to earlier where the tape was inadvertently erased?

MS. MCKINNY: Yes.

MR. UELMEN: This was no. 9?

MS. MCKINNY: Yes.

MR. UELMEN: I believe we had some earlier excerpts from no. 9. And this transcript was prepared how long after the interview took place?

MS. MCKINNY: It would have been prepared within a day or two of the interview.

MR. UELMEN: And is the transcript an accurate record of what Officer Fuhrman said?

MS. MCKINNY: Yes.

MR. UELMEN: You didn't change any of his words?

MS. MCKINNY: No.

MR. UELMEN: Your Honor, the final two offers relate to the attitude of the witness. They are excerpts from a tape that was made on July 28, 1994, after this case was initiated, and after Officer Fuhrman had testified as a witness at the preliminary hearing.

MR. UELMEN: Do you recall meeting with Officer Fuhrman in July of 1994?

MS. MCKINNY: Yes.

MR. UELMEN: And did you tape-record that meeting?

MS. MCKINNY: Yes.

MR. UELMEN: And did you prepare a transcript of that meeting?

MS. MCKINNY: Yes.

MR. UELMEN: And what was the purpose of this meeting in July of 1994?

MS. MCKINNY: I was meeting with the gentleman who had optioned the property and Officer Fuhrman and myself. It was in part to be a story conference updating Officer Fuhrman with what was happening with the property at that time.

MR. UELMEN: And Mr. Flynn, who was he?

MS. MCKINNY: Mr. John Flynn, he was the gentleman who was the producer who had optioned the property, the script.

MR. UELMEN: All right. When you talk about the property, you are talking about the screenplay that you wrote?

MS. MCKINNY: Yes, I'm talking about the screenplay.

MR. UELMEN: And where did this meeting take place?

MS. MCKINNY: In Alice's restaurant in Westwood.

MR. UELMEN: All right. So you had returned from North Carolina for the purpose of this meeting?

MS. MCKINNY: I returned from North Carolina for the purpose of this meeting as well as other business meetings, yes.

MR. UELMEN: And did the subject of Officer Fuhrman's role as a witness in this case, the case of People versus O.J. Simpson, come up in the course of that conversation?

MS. MCKINNY: Yes.

MR. UELMEN: If we could have excerpt D-1, please.

MR. DARDEN: Your Honor, this is irrelevant to the issue in front of the court.

THE COURT: Overruled. Overruled.

(At 1:28 P.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: And if we could have excerpt no. 2.

(At 1:29 P.M., Defense exhibit 1365, a videotape, was played.)

MR. UELMEN: That concludes our direct examination, your Honor.

THE COURT: Mr. Darden.

(Discussion held off the record between Defense counsel.)

MR. UELMEN: If I could have one moment.

(Discussion held off the record between Defense counsel.)

MR. UELMEN: I'm sorry, your Honor, I misspoke. Just a couple more questions.

MR. UELMEN: Was there any arrangement for Officer Fuhrman to receive any compensation for the role he played in assisting you with this screenplay?

MS. MCKINNY: Yes.

MR. UELMEN: And what was that arrangement?

MS. MCKINNY: We had a verbal agreement of $10,000 upon the sale of the screenplay.

MR. UELMEN: And was any credit in the screenplay itself given to Officer Fuhrman for the role that he played?

MS. MCKINNY: He was on the title page as technical advisor, Officer Mark Fuhrman.

MR. UELMEN: All right. So the title page indicates "Technical advisor, Officer Mark Fuhrman"?

MS. MCKINNY: Yes.

MR. UELMEN: And does the term "Technical advisor" have any meaning within the trade? What does "Technical advisor" mean?

MS. MCKINNY: It would mean to someone in the trade that the information--procedural information, some of the dialogue, some of the situations would have--would be fairly accurate and it indicated that--it would indicate that the writer went to some length to make sure that that information was accurate.

MR. UELMEN: Thank you.

(Discussion held off the record between Defense counsel.)

MR. UELMEN: That concludes our examination.

THE COURT: Mr. Darden.

CROSS-EXAMINATION BY MR. DARDEN

MR. DARDEN: Good afternoon, Miss McKinny.

MS. MCKINNY: Good afternoon, Mr. Darden.

MR. DARDEN: Doing okay?

MS. MCKINNY: I'm all right.

MR. DARDEN: Me, too. You had a financial arrangement with Mr. Fuhrman; is that right?

MS. MCKINNY: We had a verbal agreement, yes.

MR. DARDEN: And he was to receive $10,000 as a result of being the technical advisor in the screenplay?

MS. MCKINNY: Yes.

MR. DARDEN: And you made that agreement when?

MS. MCKINNY: In 1985.

MR. DARDEN: Okay. Would this be at the April 2nd meeting or would it be before the April 2nd meeting?

MS. MCKINNY: It was sometime during that April to June period. I don't remember exactly when the agreement was, but it would have been sometime in June.

MR. DARDEN: Could it have been at your very first meeting, the first time you met him at Alice's restaurant?

MS. MCKINNY: I don't believe so, no.

MR. DARDEN: Okay. But when you met Mr. Fuhrman, you told him that you were doing a screenplay, right?

MS. MCKINNY: (No audible response.)

MR. DARDEN: Is that right?

MS. MCKINNY: I told him that I was--wanted to do a screenplay about a particular situation, yes.

MR. DARDEN: Okay. Did you tell him that it would be fictional?

MS. MCKINNY: I told him that I wanted to do a fictional piece based on reality.

MR. DARDEN: Did you tell him that it would be about female police officers and their--and their circumstances, the circumstances they confront as police officers in the LAPD?

MS. MCKINNY: (No audible response.)

MR. DARDEN: Did you tell him that?

MS. MCKINNY: I told him that I wanted it to be--to reflect how certain officers in--who were members of men against women responded to certain women in LAPD and what those frustrations the men were facing were like and what the frustrations and obstacles the women were facing as a result of that were like.

MR. DARDEN: Did you make it clear to Mr. Fuhrman that the screenplay would be a fictional piece of work?

MS. MCKINNY: I believe I already answered that question.

MR. DARDEN: Did you make it clear to Mr. Fuhrman that it would be a fictional piece of work?

MS. MCKINNY: I made it clear to Mr. Fuhrman, that was Officer Fuhrman, that it would be a dramatic fictional piece based on reality.

MR. DARDEN: Okay. Well, is everything contained in the screenplay--well, strike that. You have written a screenplay; is that correct?

MS. MCKINNY: Yes, I have.

MR. DARDEN: Is everything in the screenplay true?

MS. MCKINNY: I don't know if everything is true in the screenplay.

MR. DARDEN: And that is because you have never done any fact checking, that is, with the exception of reading L.A. Times articles as they relate to men against women; is that correct?

MR. UELMEN: Object, your Honor, as to L.A. Times articles.

THE COURT: Overruled.

MS. MCKINNY: Would you repeat the question, please.

MR. DARDEN: The only fact checking you have done or did in preparation of your screenplay was in reading L.A. Times articles as they relate to men against women?

MS. MCKINNY: I would try to talk with other officers about men against women and see if they would tell me anything, so that I knew that it existed. I was unable to obtain any details about the group men against women from anyone else other than Officer Fuhrman.

MR. DARDEN: Okay. And so is it fair to say then that other than the information given to you by Officer Fuhrman and the L.A. Times articles, you had no other facts or sources to corroborate the things Detective Fuhrman told you?

MS. MCKINNY: Aside--as well as the other information that people had given me to let me know that it existed.

MR. DARDEN: Okay.

MS. MCKINNY: Yes.

MR. DARDEN: Did you look at any official police records?

MS. MCKINNY: I was unable to look at any official police records. They were--

MR. DARDEN: Now, during the conversations you had with Mr. Fuhrman he would recount to you certain events; is that correct?

MS. MCKINNY: Yes.

MR. DARDEN: Okay. And you never did a fact check to determine whether or not the things he told you were true or not; is that correct?

MS. MCKINNY: There were certain things that Officer Fuhrman discussed regarding women and the LAPD and the academy and some of the changes that had been made at the academy due to the consent decree that had been signed in the early eighties that really mandated that more women be in the police departments. And so we had discussed some of the changes that were made at the academy.

MR. DARDEN: Okay. May I interrupt you for a moment? This is nonresponsive.

THE COURT: Overruled.

MR. DARDEN: May I ask another question?

THE COURT: You may.

MR. DARDEN: Miss McKinny, is it your impression that we are on opposing sides of an issue here?

MS. MCKINNY: You and I?

MR. DARDEN: Yes.

MS. MCKINNY: No.

MR. DARDEN: Okay. Because we are not. Okay. But my question to you is simply this: Did you--well, strike that. Do you recall the incidents involving the four men in Hollenbeck area that according to Fuhrman were beaten by him and three other officers?

MS. MCKINNY: Certainly.

MR. DARDEN: Okay. Did you look at any official police record to see whether or not that event actually occurred?

MS. MCKINNY: No, I did not.

MR. DARDEN: Did you ever review any civil suits or the civil index to see whether or not any plaintiff filed a lawsuit alleging facts resembling the facts or the information Detective Fuhrman gave you?

MS. MCKINNY: No.

MR. DARDEN: Now, you have heard a number of incidents recounted by Detective Fuhrman on tape here today; is that correct?

MS. MCKINNY: That's correct.

MR. DARDEN: Okay. Can you recall any specific incident, that is, among those you heard hear today, wherein you searched a civil index for information for plaintiffs alleging facts or allegations similar to the ones we heard today?

MS. MCKINNY: No.

MR. DARDEN: And one of the reasons you never did that is because you were writing a fictional screenplay based on what? On reality?

MS. MCKINNY: That's accurate.

MR. DARDEN: Okay. Based somewhat on reality; is that right?

MS. MCKINNY: Yes.

MR. DARDEN: Some of the more realistic aspects of your screenplay was the procedures used by the LAPD, correct?

MS. MCKINNY: I'm sorry, could you repeat that again?

MR. DARDEN: Some of the aspects of your screenplay that are factual, as opposed to fictional, include things like the procedures utilized by the LAPD?

MS. MCKINNY: Yes. Some of them are factual.

MR. DARDEN: Okay.

MS. MCKINNY: As far as I would know.

MR. DARDEN: Now, when you--when you spoke to Detective Fuhrman about the screenplay initially, did you tell him that you were hoping to write a screenplay suitable for movie theaters, as opposed to a television movie?

MS. MCKINNY: That wouldn't have been discussed initially, but yes, I did tell him that I wanted to write a feature.

MR. DARDEN: And the reason you wanted to do a feature film, as opposed to a TV movie, was because you wanted to make certain that the movie or screenplay was extremely dramatic, correct?

MS. MCKINNY: I wanted to make certain that if we were dealing about issues of whether or not women could succeed in areas of high crime, that I was accurately representing to the best of my ability what might in fact take place there and I didn't know if that could be accurately depicted on television.

THE COURT: All right. Miss McKinny, would you just sort of pull the microphone a little bit closer to you.

MS. MCKINNY: Yes.

THE COURT: Thank you. Mr. Darden.

MR. DARDEN: Thank you, your Honor.

MR. DARDEN: And the kind of things that might take place include violence of course, correct?

MS. MCKINNY: Yes. I was writing about an area of violent crime.

MR. DARDEN: Okay. And you didn't want to do a TV movie because you were concerned that some of the violence that you thought was relevant might be cut out of a television movie; is that right?

MS. MCKINNY: It wasn't just the violence. That can be adapted for television. That was a concern, but that wasn't exclusive. It was the language as well.

MR. DARDEN: You wanted to make sure that any profanity that you felt was appropriate in the context of this screenplay or this movie was included in the movie; is that correct?

MS. MCKINNY: That's correct.

MR. DARDEN: And did that include racial epithets as well?

MS. MCKINNY: If appropriate it would.

(Discussion held off the record between the Deputy District Attorneys.)

MR. DARDEN: You assumed or hoped, rather, that the movie would be extremely violent; is that right?

MS. MCKINNY: No, I didn't want it to be extremely violent. I wanted it to reflect what kind of issues and situations men and women who worked in an area of high crime late at night, what kinds of situations they might encounter.

MR. DARDEN: All right. And were you concerned at all that if the movie was made into a TV movie that the issues and the language and the violence might be watered down?

MS. MCKINNY: Yes.

MR. DARDEN: Okay. Now--and did you tell all of this to Mark Fuhrman about your concerns about the issues and the language and the violence being watered down if it was made into a TV movie? Did you tell this to Mark Fuhrman?

MS. MCKINNY: I don't think initially. That is something that we might have discussed more at a much later date.

MR. DARDEN: Okay. But you would have told him this sometime in 1985, correct?

MS. MCKINNY: No, not necessarily. I could have told him later when a gentleman who optioned it would be taking it to television. It wasn't something that I might have told him initially.

MR. DARDEN: Okay. And we are speaking in terms of whether you might have told him or when you might have told him at this point. Is it fair to say that you don't recall when exactly you told him?

MS. MCKINNY: That would be fair to say, yes.

MR. DARDEN: Okay.

(Discussion held off the record between the Deputy District Attorneys.)

MR. DARDEN: When we spoke to you on August 17--and we did speak to you, Miss Clark and myself and other members of my staff; is that correct?

MS. MCKINNY: Yes, we did.

MR. DARDEN: You came to our offices and spoke to us?

MS. MCKINNY: Yes.

MR. DARDEN: You and your lawyers?

MS. MCKINNY: Yes.

MR. DARDEN: And you had spoken to the Defense previously; is that right?

MS. MCKINNY: That's correct.

MR. DARDEN: Okay. When you spoke to us on August 17th didn't you tell us that you had always told Fuhrman that it was a feature because it was very controversial and quite violent?

MS. MCKINNY: Could you say that again, please?

MR. DARDEN: When you spoke to us on August 17th didn't you tell us that you had always told Fuhrman that it was a feature, that you were writing a feature because it was very controversial and quite violent?

MS. MCKINNY: I think that was an understanding, that it was a feature, that I wanted to write a feature, and that given the nature of the location of violent division, 77th, the question is can a woman officer succeed in a violent area of crime, so he knew that.

MR. DARDEN: I'm sorry.

MS. MCKINNY: Go ahead.

MR. DARDEN: Let you finish. Did you finish?

MS. MCKINNY: I'm not sure if I answered exactly your question. If you want to rephrase it I will try to answer it.

MR. DARDEN: Well, this is an understanding both you and Fuhrman had from the beginning of his involvement in the project; is that right?

MS. MCKINNY: Could we go over the part so I'm clear for you? One, that it would be a feature and--

MR. DARDEN: Two, it would be violent?

MS. MCKINNY: It would be--that the story would take place in an area of violent crime which, as it might develop, I would certainly want to know what kind of situations would occur with men and women.

MR. DARDEN: At some point you learned of Detective Fuhrman's testimony when he was asked if he had used a certain slur in the past ten years? You learned of that testimony sometime after Fuhrman gave that testimony?

MS. MCKINNY: I--again, please.

MR. DARDEN: Did you learn of Fuhrman's testimony in this case regarding the "N" word sometime after he gave the testimony?

MS. MCKINNY: I learned of his testimony, yes.

MR. DARDEN: Okay. Were you watching that day when he testified?

MS. MCKINNY: I wasn't watching during the day, but I believe that night or shortly after I saw a snippet of it on CNN.

MR. DARDEN: Okay. And when you saw his testimony and heard him testify that he had not used the "N" word in the past ten years, did you realize at that point that that was not true?

MS. MCKINNY: I would have realized at that point that it would probably be false.

MR. DARDEN: And when you say you would have realized--

MS. MCKINNY: I don't remember what I thought--

MR. DARDEN: Okay.

MS. MCKINNY: --at that time. I was--I don't remember what I thought when I heard his testimony.

MR. DARDEN: Okay. But you learned of it that night?

MS. MCKINNY: Or soon after, yes. I don't know if the snippet I saw was that night or the next night.

MR. DARDEN: Okay. And after learning of Mark Fuhrman's testimony you did not contact the Defense, nor did you contact the D.A.'s office; is that right?

MS. MCKINNY: That is accurate.

MR. DARDEN: You didn't come forward with these tapes and the information you had?

MS. MCKINNY: That's correct.

MR. DARDEN: And you didn't come forward immediately or within a few days of your learning of his testimony? Well, why didn't you come forward immediately?

MS. MCKINNY: The information on the tapes and the testimony on the tapes I felt does not directly exonerate Mr. Simpson and therefore I didn't have a responsibility to come forth with the information, and there are other people on the tapes and I wanted to protect their confidentiality and interviews they had given to me.

MR. DARDEN: Well, you could have provided the Defense or the D.A.'s office with a single tape, that is, a single tape recording of conversations occurring within the last ten years that included these epithets, had you wanted to; is that correct?

MR. UELMEN: Objection, argumentative.

THE COURT: Overruled.

MS. MCKINNY: Sorry.

THE COURT: Rephrase the question.

MR. DARDEN: You could have given us a single tape, a tape containing only conversation between yourself and Mr. Fuhrman had you wanted to; is that right?

MS. MCKINNY: Given that I wish to protect the confidentiality of the people with whom I had interviewed on those tapes, as well as the confidentiality and the nature in which I gather information as a writer, I doubt seriously, given the enormous leaks that have occurred in the last two months, that I could have offered a tape to the Defense or the Prosecution that specifically delineated some portions of Officer Fuhrman's testimony.

MR. DARDEN: Another reason that you didn't come forward immediately is because it was your view that there was nothing in those tapes that suggested to you that Mark Fuhrman planted evidence in this case; is that correct?

MS. MCKINNY: There was nothing to me that made me feel that Officer Fuhrman could have planted evidence in this particular case, no.

MR. DARDEN: At one point today you testified regarding proffer no. 41, I believe it is, the one that relates to Farrell and this term anthracite. Do you recall that?

MS. MCKINNY: Yes, I do.

MR. DARDEN: Now, during that conversation with Mr. Fuhrman, to put that in context, is it true that Mr. Fuhrman was telling you about a word that some other individual had created?

MS. MCKINNY: I think so.

MR. DARDEN: Okay. Well, would it help you to look at page 16 again?

MS. MCKINNY: Yes, it would. Thank you. (Witness complies.) Okay. Now, can you reask the question?

MR. DARDEN: So having looked at page 16, would you agree that to put that portion of the conversation in context, it was Detective Fuhrman telling you about a word that some other person had created?

MS. MCKINNY: I think that is a possible interpretation, yes.

MR. DARDEN: Do you think that is the appropriate interpretation?

MS. MCKINNY: I don't know. I don't know if he came up with that or somebody else did. I don't know.

(Discussion held off the record between the Deputy District Attorneys.)

MR. DARDEN: It is under the column labeled "Farrell"; is that correct?

MS. MCKINNY: Right.

MR. DARDEN: Obviously when you began to write this screenplay you wrote it with the purpose of perhaps selling it some day; is that correct?

MS. MCKINNY: Yes.

MR. DARDEN: And the market for screenplays is a very, very competitive business, isn't it?

MS. MCKINNY: Yes, it is.

MR. DARDEN: Okay. And was it your view at the time that to sell your screenplay that you had to make it provocative or shocking, controversial?

MS. MCKINNY: No, absolutely not. I think the issue itself is enormously controversial. What I was really trying to do was gather as much information as I could from different points of view to be able to dramatize the material in a cinematic fashion.

MR. DARDEN: Well, you wanted to make it extremely dramatic, I think you told us?

MS. MCKINNY: Yes.

MR. DARDEN: Now, when you spoke to Fuhrman on April 2nd, 1985, did you already have in mind who the characters would be or might be in the screenplay?

MS. MCKINNY: I'm sorry, could you give me the dates again? In `85 you said?

MR. DARDEN: Yes, April 2, `85?

MS. MCKINNY: 2, `85? In the initial meeting did I have--I missed the date.

MR. DARDEN: You met him at some point at Alice's restaurant?

MS. MCKINNY: Yes.

MR. DARDEN: You are talking about April 2, 1985?

MS. MCKINNY: We are talking about April 2, 1985, and the question is?

MR. DARDEN: By the way, that is the tape that is missing, correct?

MS. MCKINNY: Yes.

MR. DARDEN: What was the question?

THE COURT: Whether or not the characters had been cast or formed at that time.

MR. DARDEN: Thank you, your Honor.

MR. DARDEN: When you met Detective Fuhrman on April 2, 1985, had the characters been cast or formed at that point?

MS. MCKINNY: No. I only knew that I wanted the epitome of a woman officer to be transferred into an area of high crime and have to be partnered with an officer who was a member of men against women.

MR. DARDEN: You asked Detective Fuhrman to help you develop those characters or some of those characters; is that correct?

MS. MCKINNY: Yes.

MR. DARDEN: You asked him to help you develop some of the characters in his fictional screenplay based on what? On fact?

MS. MCKINNY: I made it clear that I wanted him to give me ideas and some of his points of views so that I could develop the characters, and in that sense he was very helpful in helping to develop the characters, yes.

MR. DARDEN: Okay. So you would give Detective Fuhrman certain scenarios or situations and you would ask him how a police officer might respond to those situations; is that correct?

MS. MCKINNY: That's correct.

MR. DARDEN: Okay. And you would ask him these questions in the context of a police officer whom you envisioned as being an officer who did not like having a female partner?

MS. MCKINNY: Correct.

MR. DARDEN: And you asked him these in context of a police officer who was very difficult to get along with; is that correct?

MS. MCKINNY: Those would have been some of the questions. They weren't all of the questions.

MR. DARDEN: Okay. And you would ask him these questions in the context of a police officer who might not always play by the rules?

MS. MCKINNY: Well, that was an element that seemed to present itself as the interviews progressed. I didn't know that initially.

MR. DARDEN: Okay. You asked him these questions in the context of a police officer who lied on occasion, who would lie on occasion?

MS. MCKINNY: Again, it is within the context of the story. The men who are involved--some of the men who were involved in men against women routinely stonewalled women, embarrassed them and humiliated them by keeping them out of their group, and within that context there was a certain amount of lying that went on. I was interested in that.

MR. DARDEN: Okay. And Detective Fuhrman was interested in helping you?

MS. MCKINNY: Yes, he was very supportive.

MR. DARDEN: Okay. Could you have written a screenplay that you eventually produced without the help of Detective Fuhrman?

MS. MCKINNY: Could I have written the screenplay? Yes. I did an enormous amount of research on the screenplay, interviewed many officers from LAPD and Los Angeles academy; however, I would not have had the same--there is a good chance that I would not have had some of the point of view of Officer Fuhrman and some of the scenarios that have been recently revealed in the news were given to me by him, and I included a couple of them in the script, I abridged them significantly, but it is unlikely that I would have gotten that information regarding men against women.

MR. DARDEN: Is it fair to say that Detective Fuhrman was helping you make up a story?

MS. MCKINNY: Helping me make up a story?

MR. DARDEN: Yes. He was helping you to make up a story?

MS. MCKINNY: I would say it is very fair to say that he was giving me information that helped me develop characters for the story, yes. There is a huge bulk of story of which Officer Fuhrman didn't comment on or offer information for.

MR. DARDEN: But when you testified in North Carolina at line 20 of the transcript you told the Judge that Mark Fuhrman was helping you make up a story; is that correct?

MS. MCKINNY: I thought I answered that he was helping make up certain--giving me certain points of view that then helped me make up characters and in that light he certainly was helping.

MR. UELMEN: Your Honor, could we have a page reference?

THE COURT: I thought he gave it.

MR. DARDEN: Page 20 on my transcript which is a fax. It may be different on counsel's.

MR. DARDEN: Detective Fuhrman didn't tell you that he planted evidence on innocent people, did he?

MS. MCKINNY: I would have to find that in my transcripts. I don't recall a particular incident right now where Detective Fuhrman said he planted evidence on innocent people.

MR. DARDEN: You don't recall a particular incident?

MS. MCKINNY: No.

MR. DARDEN: And the views that Detective Fuhrman expressed on the tape, you don't know that what is reflected on the tape are his real views or his true views about African Americans; is that correct?

MR. UELMEN: Objection, calls for speculation.

THE COURT: Overruled.

MS. MCKINNY: Could you say that again, please.

MR. DARDEN: The views expressed by Detective Fuhrman on the tapes, you don't know that those views reflect his true views about African Americans, do you?

MR. UELMEN: Objection, vague.

THE COURT: Overruled. Do you understand the question?

MS. MCKINNY: Just--it feels--it feels vague to me, but I can answer it.

MR. DARDEN: Okay.

MS. MCKINNY: I--what is on the tape is what Officer Fuhrman said to me. I don't know if he was lying to me or saying anything else. It is what he said.

MR. DARDEN: Okay. And so that the record is clear and there is no dispute between you and I certainly, he used this epithet, correct, in the last ten years? I mean, he uttered this word, didn't he?

MS. MCKINNY: Yes.

MR. DARDEN: Okay. Now, to go back to the--excuse me.

(Discussion held off the record between the Deputy District Attorneys.)

MR. DARDEN: The screenplay that you wrote was not a biography of Detective Fuhrman's life, was it?

MS. MCKINNY: No, it was not.

MR. DARDEN: To go back to the 1985 tape, the one that was lost--and this would be the first tape?

MR. UELMEN: Objection, misstates the evidence.

THE COURT: Rephrase the question.

MR. DARDEN: The April 2, 1985, conversation that you had, was the tape lost or copied over?

MS. MCKINNY: No, I inadvertently rerecorded over it.

(Discussion held off the record between the Deputy District Attorneys.)

MR. DARDEN: You say you made a transcript of that tape; is that right?

MS. MCKINNY: Of the April 2nd taped interview?

MR. DARDEN: Yes.

MS. MCKINNY: Yes, I did.

MR. DARDEN: Now, you didn't begin the tape initially or immediately upon seeing Detective Fuhrman on April 2nd; is that correct?

MS. MCKINNY: No.

MR. DARDEN: Okay. You met him, you spoke to him for a while, and then you turned the tape on; is that right?

MS. MCKINNY: Yes.

MR. DARDEN: There is conversation--there was conversation that you had with Detective Fuhrman that is not on the tape; is that correct?

MS. MCKINNY: That would be correct.

MR. DARDEN: Okay. And there were times and occasions during the conversation that you had with him when you turned off the tape; is that right?

MS. MCKINNY: Yes, or at the end of the discussion.

MR. DARDEN: Okay. So you might discuss a particular topic or have a certain discussion and turn the tape on and then turn it off at the end of that discussion?

MS. MCKINNY: It is possible, especially if I was trying to protect--I only had a couple tapes with me and I was concerned about time, yes.

MR. DARDEN: Okay. So when you say it is possible, what you are intending to convey to us is that you are not sure when and if and at what time you may have turned the tape on or off during that April 2nd, 1985, conversation; is that correct?

MS. MCKINNY: I don't recall.

MR. DARDEN: Okay. And when you transcribed the tape, the April 2nd tape, you didn't transcribe each and every word contained on that tape; is that correct?

MS. MCKINNY: Well, for the initial tapes I was very judicious about transcribing my questions and Officer Fuhrman's responses, because it was a new topic and I wanted to try to understand and catch his cadences, specific situations, procedure, elements that would give me fodder and information upon which to develop this screenplay.

MR. DARDEN: Okay. So if there was other information on the tape, information that you didn't feel helped to develop the screenplay, you would transcribe that information?

MS. MCKINNY: Initially I would have transcribed the first interviews.

MR. DARDEN: Okay.

MS. MCKINNY: Yes.

MR. DARDEN: When you say--I'm sorry. When you say that initially you would have transcribed those portions of those interviews, you are assuming, correct, that you did that or would have done that?

MS. MCKINNY: I am assuming, yes.

MR. DARDEN: Okay. How long did the April 2nd, 1985, interview--strike that. How long did you and Detective Fuhrman talk and speak to each other on April 2nd, 1985?

MS. MCKINNY: I'm not sure. Probably about between an hour and a half to two hours.

MR. DARDEN: And you are not sure actually just how long that conversation lasted, are you?

MS. MCKINNY: No, I am not.

MR. DARDEN: Was it during that April 2nd, 1985, conversation that you first heard Fuhrman use the "N" word?

MS. MCKINNY: I believe so, yes.

MR. DARDEN: And when you heard him use that word you did not react to his use of the word; is that correct?

MS. MCKINNY: No, I did not.

MR. DARDEN: You did not tell him to stop using the word; is that correct?

MS. MCKINNY: That's correct.

MR. DARDEN: You didn't ask him not to use it again; is that correct?

MS. MCKINNY: That's correct.

MR. DARDEN: And why is that?

MS. MCKINNY: Again, please.

MR. DARDEN: Why is that? Why didn't you stop him?

MS. MCKINNY: Oh, I was, as I mentioned before, in a journalistic mode, not a judgmental one, and I wanted to hear what he had to say and encourage him to feel that he could speak comfortably and--and use whatever words he felt appropriate.

MR. DARDEN: That is what you did? Did you encourage him to continue to speak in the tone and manner in which he had during the April 2nd, 1985, interview?

MS. MCKINNY: I didn't discourage him by asking him not to use certain words or asking him not to tell me about certain things or that I didn't want to hear about certain situations that might have occurred, would have closed the door to really helping me understand what his point of view was regarding this issue, which he did understand I wanted to convey in the context of the screenplay. It would have been counterproductive to my research.

MR. DARDEN: Now, some of the interviews you had with Detective Fuhrman, and that are on tape, were telephonic interviews; is that right?

MS. MCKINNY: That's correct.

MR. DARDEN: You were in North Carolina at the time?

MS. MCKINNY: No, I was not.

MR. DARDEN: Okay.

MS. MCKINNY: I was in Santa Monica.

MR. DARDEN: And you also told us this morning that at some point you sent Fuhrman's transcripts of your interviews to him; is that right?

MS. MCKINNY: I recall sending him one transcript which would have been the first one. It would--and the questions, because I had written questions for him to consider answering during our next meeting. So I felt that he might--the transcript might be useful to him in refreshing his memory to help him ponder those questions. I don't recall sending him all of the other transcripts during those `85 taped interviews independent--I don't recall sending him the transcripts independently. I think I gave them to him again all at once in a bound three-ring binder similar to this one which is how I file my transcripts.

MR. DARDEN: You say you think you gave those to him?

MS. MCKINNY: I know I gave them to him, but I don't remember exactly when, whether it was in June or early June, late June. I just don't remember if I sent him by mailing any more than the first transcript. I gave the others to him bound in a three-ring binder.

MR. DARDEN: Do you know whether or not he read those transcripts?

MS. MCKINNY: I have no idea.

MR. DARDEN: You never sent him the tapes?

MS. MCKINNY: No.

MR. DARDEN: Have you ever given him a copy of the tapes?

MS. MCKINNY: No.

MR. DARDEN: Never gave him a copy of the tapes before he testified at trial in this matter?

MS. MCKINNY: I'm sorry?

MR. DARDEN: You didn't give him a copy of the tapes prior to his testimony in this trial?

MS. MCKINNY: No.

MR. DARDEN: Is it fair to say that the only time that Fuhrman used these epithets was in the context of his discussions with you regarding the screenplay?

MS. MCKINNY: Could you rephrase that, please?

MR. DARDEN: Is it fair to say that the only time that Fuhrman used these epithets was during the conversations he had with you and in the context of your discussion of the screenplay?

MS. MCKINNY: I can say that he used the epithets in the context--in the tapes. Umm--I don't--and the--in the taped interviews and the transcripts? I don't--I don't--that is accurate. I don't know what else to say about that. Sorry.

MR. DARDEN: Well, you met with Fuhrman during July of 1994; is that right?

MS. MCKINNY: That's correct.

MR. DARDEN: July 28 was it?

MS. MCKINNY: Yes.

MR. DARDEN: And you mentioned the name of a producer who was also present at the time?

MS. MCKINNY: Yes.

MR. DARDEN: And who was that?

MS. MCKINNY: That was Mr. John Flynn.

MR. DARDEN: Okay. And you and Mr. Flynn had a conversation with Fuhrman regarding the glove issue, correct?

MS. MCKINNY: Umm, there was reference made to the glove during that conversation, yes.

MR. DARDEN: And he told you that he did not plant the glove, didn't he?

MS. MCKINNY: Yes.

MR. DARDEN: And you had known Fuhrman at that point for a period of ten years; is that correct?

MS. MCKINNY: Yes.

MR. DARDEN: And would you agree that you and he had the kind of relationship where he could be candid with you?

MS. MCKINNY: Yes.

MR. DARDEN: If I could have one moment, your Honor?

THE COURT: Certainly.

(Brief pause.)

MR. DARDEN: To place into context the portion of the July 28th conversation that we've heard here today, that is that portion of the conversation where Detective Fuhrman spoke of Mr. Shapiro, Detective Fuhrman was talking about suing Shapiro for libel at that time; is that correct?

MS. MCKINNY: I believe that was the context, yes.

MR. DARDEN: Detective Fuhrman claimed he had been libeled and slandered when Mr. Shapiro alleged that he, Detective Fuhrman, had planted the glove in this case; is that right?

MS. MCKINNY: I actually don't know why Detective Fuhrman was libeled. I know that we discussed that, but I don't know what that issue was between Mr. Shapiro and Officer Fuhrman.

MR. DARDEN: During that conversation Mr. Fuhrman told you that on the night of June--during the early morning hours of June 13th that he was just doing his job; is that correct?

MS. MCKINNY: Yes.

MR. DARDEN: He said that he was doing his job like he did in every other investigation that he handled; is that correct?

MS. MCKINNY: Umm, yes.

(Discussion held off the record between the Deputy District Attorneys.)

MR. DARDEN: Can I have one moment, your Honor?

THE COURT: Certainly.

(Discussion held off the record between the Deputy District Attorneys.)

MR. DARDEN: With regard to the April 2nd, 1985 tape, umm, throughout your testimony this morning as it related to that particular tape, you had to refer repeatedly to your outline; is that right?

MS. MCKINNY: To my transcript?

MR. DARDEN: Yeah, to your transcript.

MS. MCKINNY: Yes.

MR. DARDEN: And that is because for the most part you have no independent recollection of what was said during the April 2nd, 1985, conversation; is that correct?

MS. MCKINNY: No, I don't think that is correct.

MR. DARDEN: If I can have one moment, your Honor.

(Brief pause.)

MR. DARDEN: Directing counsel to page 19 of the North Carolina transcript.

MR. DARDEN: Let me ask you specifically about the--the portion of the tapes where Detective Fuhrman--Detective Fuhrman talks about tearing up driver's licenses. When you testified in North Carolina you didn't recall the--Detective Fuhrman's statements; is that correct?

MS. MCKINNY: Could you refer--are we referring to the North Carolina hearing?

MR. DARDEN: Yes.

MS. MCKINNY: Testimony?

MR. DARDEN: Yes.

MS. MCKINNY: Could you repeat it then again, please.

MR. DARDEN: Okay. Well, do you recall being asked this question and giving this answer at line 12--lines 12 through 17, page 19? And to put that in context, Mr. Cochran here handed you a copy of your outline to refresh your recollection. Do you recall that?

MS. MCKINNY: I don't know where we are. I'm sorry, I'm just--I don't know where we are in North Carolina. I don't know where we are here, so if I could--

MR. DARDEN: During your testimony in North Carolina--

MS. MCKINNY: Yes.

MR. DARDEN: --there was an occasion where you were asked questions by Mr. Cochran about allegations that Detective Fuhrman had torn up driver's licenses. Do you recall that?

MS. MCKINNY: I don't recall, but if it is on my testimony, I'm sure I did.

MR. DARDEN: Well, would it refresh your recollection if I gave you a transcript to take a look at? Do you have this, Jerry?

MR. UELMEN: (Nods head up and down.)

MS. MCKINNY: Yes, it would. Thanks a lot.

MR. DARDEN: Let me show you page 19, lines 12 through 17.

THE COURT: Miss McKinny, why don't you take the time to read it to yourself and see if that refreshes your recollection as to your testimony back in North Carolina.

MS. MCKINNY: (Witness complies.) Okay. I remember now.

MR. DARDEN: All right.

MS. MCKINNY: Sorry. What is the question now?

MR. DARDEN: The question is this: Isn't it true that you have no independent recollection of what Detective Fuhrman told you as it relates to the tearing up of driver's licenses?

MS. MCKINNY: Well, in North Carolina when I testified to that, I needed to see it on the transcript--I needed to see it. I hadn't looked over the transcripts, nor any of the information that I have discussed today, so I--you know, that is what I testified. Since that time, and since having read that over in North Carolina and having refreshed my memory, I remember that element of tearing up licenses, but I needed to read it in the transcript.

MR. DARDEN: Okay. So when you testified then in North Carolina you told the Judge that you did not remember what, if anything, Fuhrman said regarding tearing up license plates--I mean driver's licenses; is that right?

MS. MCKINNY: I needed to see it in the transcript, yes.

MR. DARDEN: Okay. You were shown a transcript, correct?

MS. MCKINNY: Yes.

MR. DARDEN: And even after you were shown that transcript you still couldn't recall what, if anything, Fuhrman said in that regard; is that right?

MS. MCKINNY: Like I knew what was in the transcript, but beyond that, I couldn't say what he would have said about ripping up driver's licenses.

MR. DARDEN: Okay. And is that your position today, that is, that the testimony you have given us as it relates to the April 2nd, 1985, interview, really what you are telling us is that you transcribed the tape, here is a transcription, if it is in the transcription, then that is what he said, right?

MS. MCKINNY: I'm saying that I transcribed Officer Fuhrman's words to the best of my ability accurately, yes.

MR. DARDEN: So the answer to my question is yes?

MS. MCKINNY: Yes.

MR. DARDEN: Your Honor--may I have one moment, your Honor?

(Discussion held off the record between the Deputy District Attorneys.)

MR. DARDEN: To go back to the issue we just discussed, Miss McKinny, is it fair, with regard to your recall, your specific recall of what was said during the April 2nd, 1985, interview, is it fair to say that you have no independent recollection of what was said with that, but that you only know what was said because it was on the transcript?

MS. MCKINNY: I really need to have "Independent recollection" defined for me I think, because if you were to ask me what is on each one of these transcripts, I wouldn't--aside for maybe a few that are--that have somehow come to light, it would be hard for me to tell you what is on each transcript. But if I read it, then I remember it. I recall. It is like writing something. I won't remember that I maybe wrote it, but if I read it in one of my files, I will remember that I wrote that. So could you define then what you mean by "Independent recollection," what that would mean to you, so I can be more helpful?

MR. DARDEN: Let me ask you a series of questions and ask you about some answers you gave in North Carolina, at page 19 line 12 through 17. Do you recall being asked this question and giving this answer: "Question: Does that refresh your recollection that Detective Fuhrman told you that if the suspect, the African American suspect, gives him identification he will just rip up the license?" Your answer was: "Again, if it is here, he said it. I transcribed it. I actually don't remember. It has been ten years."

MR. DARDEN: Do you recall being asked that question and giving that answer?

MS. MCKINNY: Yes, I do.

MR. DARDEN: Is it your testimony today that now your memory is better as it relates to that specific question and answer?

MS. MCKINNY: My memory regarding the transcript of what the transcript says is better, because I have read that portion of the transcript since the testimony in North Carolina.

MR. DARDEN: Okay. And so are you telling us then here today, as it relates to the April 2nd, `85, transcript, what you are telling us is what is contained in the transcript and not what was actually said; is that right? Are you with me on this?

MS. MCKINNY: No, I'm not.

MR. DARDEN: Okay. Me either. Okay. What you are recalling today is what is contained in the transcript; is that right, as opposed to what was actually said?

MS. MCKINNY: What I'm recalling today is what is transcribed in that transcript of mine and I am saying that that was what was said.

MR. DARDEN: And you are saying that that is what was said because in your view you accurately transcribed the tape?

MS. MCKINNY: Yes.

MR. DARDEN: Okay. And not because you know for a fact each and every word said between you and Detective Fuhrman on April 2nd, 1985, correct?

MS. MCKINNY: I think we almost have it. Just could you repeat that one last part, "And not because"?

MR. DARDEN: Are you testifying today that you have an independent recollection of what is contained in the transcript, as opposed to having an independent recollection of what was said between you and Detective Fuhrman?

MS. MCKINNY: Again I would probably need to have "Independent recollection" defined, but my understanding of it is that when I read the transcript I can remember having those words said to me. I can't tell you everything that is on that transcript, but when I see that excerpt in the transcript I can tell you if it was said to me or not.

MR. DARDEN: Can you tell me what is not contained on the transcript, what was said that is not contained on the transcript?

MS. MCKINNY: You mean what would have been not taped and said?

MR. DARDEN: Yes.

MS. MCKINNY: No.

MR. DARDEN: If I were to ask you to recount everything Mark Fuhrman said during the April 2nd conversation, could you tell me?

MS. MCKINNY: No.

(Discussion held off the record between the Deputy District Attorneys.)

MR. DARDEN: Can you tell us each and everything that was said before and after each of the notations and conversations included in your transcript?

MS. MCKINNY: You mean before the taped interview would start and then after the taped interview was concluded can I tell you what was said during those times?

MR. DARDEN: Okay. Let's start there. Yes.

MS. MCKINNY: No.

MR. DARDEN: And during those occasions when you would stop the tape during the middle of your conversations and then start it again, could you tell us what was said between that time period?

MS. MCKINNY: No. However, it wasn't a practice to stop and start the tape. I wanted to make it clear that--that I would stop them on occasion for different reasons, but it wasn't a practice to edit material by stopping and starting. I never intended anyone--for anyone to be listening to these tapes or reading these transcripts.

MR. DARDEN: Okay. Is it fair to say that without looking at the transcript, the transcript you prepared from the April 2nd, `85, interview--well, let me put it this way: Unless you look at that transcript, you can't tell us what was said; is that right?

THE COURT: I think we have asked this question now about eight different ways.

MR. DARDEN: Okay. Thank you.

(Discussion held off the record between the Deputy District Attorneys.)

MR. DARDEN: And there were other interviews that were had between yourself and Detective Fuhrman during April of 1985; is that correct?

MS. MCKINNY: Yes.

MR. DARDEN: And is it fair to say that before you could recount to us what was said even on the tapes would you have to listen to the tapes or first read your transcript of the tapes?

MS. MCKINNY: Specifically. If it is a specific instance you would like me to recall or discuss, yes. Generally I have a clear understanding.

THE COURT: We will take a break in a couple minutes.

MR. DARDEN: I'm sorry, what did you say?

THE COURT: We will take a break in a couple minutes.

MR. DARDEN: Why don't we take one now, your Honor. It might hurry things along if we take one now.

THE COURT: All right. We will take a 15-minute recess. Miss McKinny, you may step down. Come back in 15, please.

(Recess.)

THE COURT: All right. Back on the record in the Simpson matter. Mr. Simpson is again present. All parties are present. Miss Laura Hart McKinny is again on the witness stand, still under oath undergoing cross-examination by Mr. Darden. Mr. Darden, you may continue with your cross-examination.

MR. DARDEN: Thank you, your Honor.

MR. DARDEN: Miss McKinny, when we spoke, you and I, Miss Clark and your lawyers, on August 17th, do you recall being asked this question and giving this answer: "Question: And you transcribed the first tape just as--just the same as you transcribed any other tape, right?" And your answer was: "Yes." Do you recall being asked that question and giving that answer?

MS. MCKINNY: Yes, I do.

THE COURT: Could you pull the microphone in closer, please.

MS. MCKINNY: (Witness complies.)

MR. DARDEN: That was true; is that correct?

MS. MCKINNY: (No audible response.)

MR. DARDEN: And that was true; is that correct?

MS. MCKINNY: That I transcribed them, yes. I was the only one to transcribe the tapes.

MR. DARDEN: Okay. And you transcribed them just as you had the other tapes?

MS. MCKINNY: I transcribed all of the tapes, yes; no one else.

MR. DARDEN: The same way?

MS. MCKINNY: Yes.

MR. DARDEN: Okay. Now, let me just ask you some questions about your North Carolina testimony starting on page 7, line 17 through 19. So that the record is clear, do you recall being asked this question and giving this answer: "Question: That transcript that you prepared a fair and accurate copy?"

THE COURT: Why don't you start with line 15.

MR. DARDEN: Line what?

THE COURT: 15.

MR. DARDEN: Thank you, your Honor. Line 15. "Question: Did you prepare a transcript of that tape, however? "Answer: Yes. "Question: That transcript that you prepared a fair and accurate copy of what was stated on the tape? "Answer: Of most of the things that were said on the tape, yes."

MR. DARDEN: Do you recall being asked those questions and giving those answers?

MS. MCKINNY: Was this about all of the tapes or about one this particular tape? I don't--the initial part of that question I would need to hear again.

MR. DARDEN: This is regarding the first tape.

THE COURT: Actually you should start--

MR. DARDEN: Line 13?

THE COURT: Probably line 11.

MS. MCKINNY: Thank you.

MR. DARDEN: May the record reflect I'm showing the witness page 7 of the transcript.

MS. MCKINNY: Thank you.

THE COURT: Yes.

MS. MCKINNY: Yes, thank you.

MR. DARDEN: Have you read lines 11 through 19?

MS. MCKINNY: Yes, I have.

MR. DARDEN: Okay. Is that accurate?

MS. MCKINNY: Yes.

MR. DARDEN: That is what you testified to; is that correct?

MS. MCKINNY: Yes, that is what I testified to.

MR. DARDEN: The first tape, the first transcript of the first tape contains most of the things that were said on the tape; is that right?

MS. MCKINNY: I would say yes.

MR. DARDEN: On page 13 at line 4 do you recall being asked this question and giving this answer, line 4 through 9: "Question: Do you recall an instance where Detective Fuhrman indicated to you that when he didn't have a reason to arrest someone, an African American, that he would--strike that--that we would perhaps tear up their license and charge them with not having a driver's license?" Your answer: "I don't recall." Do you recall being asked that question and giving that answer?

MS. MCKINNY: I don't recall being asked that question, but if it is there, I remember the issue of tearing up the license was something that came up.

MR. DARDEN: Would you like to see the transcript?

MS. MCKINNY: That would be useful if you want me to say something about it.

MR. DARDEN: Okay.

(Brief pause.)

MS. MCKINNY: Right.

MR. DARDEN: Do you recall being asked that question and giving that answer?

MS. MCKINNY: I recall needing to see the transcript when I was asked anything that was on the transcript. I needed to see it before I could comment on it.

MR. DARDEN: Okay.

(Discussion held off the record between the Deputy District Attorneys.)

MR. DARDEN: Do you recall being asked that question and giving that answer?

MS. MCKINNY: Now, I do, yes.

MR. DARDEN: Okay. And you could not recall what was said unless you looked at the transcript; is that correct?

MS. MCKINNY: I could not testify to accurately recalling unless I looked at what I had transcribed.

MR. DARDEN: Okay. And that stands true today; is that correct?

MS. MCKINNY: I need to look at the transcript so that I can testify to what I have transcribed, yes.

MR. DARDEN: Okay. And going to page 16--can I just confer with counsel for a moment?

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. DARDEN: On line 17 page 16 beginning in the middle of the line, do you recall being asked this question and giving this answer: "Question: Did he on other times tell you about implicating or fabricating evidence, things of that nature, any implication charges?" Your answer: "Only in the context of developing a story that I can remember." Do you recall being asked that question and giving that answer?

MS. MCKINNY: No, I don't, but if it is there, I know that I was asked that.

MR. DARDEN: Would you like to look at the transcript.

MS. MCKINNY: Thank you. Yes, now I remember, and the following example that I give is applicable to the story.

MR. DARDEN: Now, you are having some trouble recalling what you testified to just a month ago; is that correct?

MS. MCKINNY: It is very useful to see the transcript so that I can see in what context the questions were asked and how that was--how they were answered.

MR. DARDEN: Is that because by looking at the context or reading about the context in which questions were asked that that will help stimulate your memory?

MS. MCKINNY: Could you say that again, please?

MR. DARDEN: Does that help stimulate your memory, that is, to see and hear in what context questions were asked and answers were given?

MS. MCKINNY: Yes, it does.

MR. DARDEN: May I have one moment?

(Discussion held off the record between the Deputy District Attorneys.)

MR. DARDEN: Directing court and counsel to page 18 line 16 through 21.

MR. DARDEN: Do you recall being asked this question and giving this answer: Question by Mr. Cochran--strike that. To put this in context, do you recall Mr. Cochran asking you what if anything Fuhrman told you he would do if someone called him a mother fucker? Do you recall being asked about that in North Carolina?

MS. MCKINNY: I would appreciate seeing the transcript.

MR. DARDEN: Will this help refresh your recollection?

MS. MCKINNY: Yes, it would.

(Brief pause.)

MS. MCKINNY: Right. Thank you very much.

MR. DARDEN: Do you recall Mr. Cochran asking you whether or not you recall Fuhrman telling you that if someone called him a mother fucker he got a traffic warning?

MS. MCKINNY: Yes, I recall Mr. Cochran asking me that.

MR. DARDEN: Okay. And when Mr. Cochran asked you that you responded--you responded at line 19. "Answer: I don't remember it, but if it is on the transcript, it was said. I transcribed it. No, I don't remember it." Do you recall being asked that question and giving that answer?

MS. MCKINNY: Reading it I would say that the transcriber transcribed my words, and although I don't remember all of them, I'm sure that is accurate.

(Discussion held off the record between the Deputy District Attorneys.)

MR. DARDEN: You surrendered the original tapes to the court; is that correct?

MS. MCKINNY: Yes.

MR. DARDEN: Now, just a few more questions if I may. Now, if I were to show you the transcripts, the transcript you prepared, transcripts of the tapes, you couldn't tell me what was missing from those transcripts; is that correct?

MS. MCKINNY: The transcripts of my--if you were to show me the transcripts of my tapes?

MR. DARDEN: Yes.

MS. MCKINNY: My transcripts of the tapes?

MR. DARDEN: Yes.

MS. MCKINNY: I couldn't tell you what was missing.

MR. DARDEN: Okay. And those transcripts weren't prepared for court and they weren't prepared for purposes of accuracy; they were prepared to help stimulate your recall of what was said between yourself and Detective Fuhrman; is that correct?

MS. MCKINNY: Partially correct.

MR. DARDEN: Okay.

MS. MCKINNY: I tried to prepare them as accurately as possible to maintain dialogue, situations and procedural information in a sequential fashion so that I would be able to write it cinematically. That would have been critical to me.

MR. DARDEN: But they weren't prepared for purposes of court, correct?

MS. MCKINNY: They were not.

MR. DARDEN: And you weren't under any duty to anyone to prepare an accurate transcript of the April 2nd, 1985, tape, correct?

MS. MCKINNY: No.

MR. DARDEN: Okay. There is a second tape that was taped over or is missing now; is that right?

MS. MCKINNY: That's correct.

MR. DARDEN: And which tape was that?

MS. MCKINNY: (No audible response.)

MR. DARDEN: Do you recall?

MS. MCKINNY: I believe that is tape no. 9.

MR. DARDEN: Okay. And you were under no duty to anyone to create an accurate transcript of that tape; is that correct?

MS. MCKINNY: That's correct.

MR. DARDEN: The only things that you put into those transcripts were the things that were of interest to you as a screenplay writer; is that right?

MS. MCKINNY: I didn't hear that last--

MR. DARDEN: The only things that you put into the transcript were those things that were of interest to you as a screenplay writer; is that correct?

MS. MCKINNY: That's correct.

MR. DARDEN: Okay. Now, with regard to the tapes in this case, does Detective Fuhrman have a financial interest in the tapes?

MR. UELMEN: Objection, irrelevant.

THE COURT: Overruled.

MS. MCKINNY: So the question is again, please?

MR. DARDEN: Does Detective Fuhrman have a financial interest in the tapes?

MR. UELMEN: Objection, calls for a legal conclusion.

THE COURT: Overruled.

MS. MCKINNY: To my knowledge, no, he has no interest in the tapes.

MR. DARDEN: Have you attempted to sell those tapes?

MS. MCKINNY: No, I have not.

MR. DARDEN: Has anyone on your behalf attempted to sell those tapes?

MS. MCKINNY: Again, please, I'm not understanding.

MR. DARDEN: Has anyone acting on your behalf attempted to sell those tapes?

MS. MCKINNY: The tapes are not for sale, they have not been for sale.

MR. DARDEN: And how about the transcripts that you prepared of the tapes, have you attempted to sell those?

MS. MCKINNY: The transcripts have not been for sale.

MR. DARDEN: I'm sorry?

MS. MCKINNY: The transcripts have not--the transcripts that I prepared of the tapes have not been for sale.

MR. DARDEN: Okay. And has anyone on your behalf, acting on your behalf, attempted to sell those transcripts?

MS. MCKINNY: No one to my knowledge on my behalf has attempted to sell those tapes.

MR. DARDEN: And that would include these two gentlemen here, Mr. Regwan and Mr. Schwartz?

MS. MCKINNY: That would include Mr. Regwan and Mr. Schwartz.

MR. DARDEN: And so if I showed you a confidentiality agreement that related to the transcript and the tape signed one by Mr. Schwartz and the other signed by Mr. Regwan, you would be surprised to see that?

MS. MCKINNY: My understanding is that the tapes and the transcripts have not been for sale, so in terms of any confidentiality agreement, I don't--you will have to show it to me.

(Discussion held off the record between the Deputy District Attorneys.)

MR. DARDEN: Thank you.

THE COURT: Mr. Uelmen, any redirect?

MR. UELMEN: Very briefly, your Honor.

REDIRECT EXAMINATION BY MR. UELMEN

MR. UELMEN: Miss McKinny, the hearing that took place in North Carolina was with respect to the enforcement of the out-of-state subpoena; is that correct?

MS. MCKINNY: Yes, it was.

MR. UELMEN: And before you attended that hearing did you have an opportunity to review the transcripts?

MS. MCKINNY: I didn't review the transcripts.

MR. UELMEN: Did you listen to the tapes?

MS. MCKINNY: No.

MR. UELMEN: So the questions that were asked in that hearing were presenting you with transcripts and information in the transcripts cold or without any preparation on your part; is that correct?

MR. DARDEN: Objection, leading, your Honor.

THE COURT: Overruled.

MS. MCKINNY: That's correct.

MR. UELMEN: Now, the questioning in that hearing with respect to Officer Fuhrman tearing up driver's licenses, actually in the transcripts and tapes there are two references to the tearing up of driver's licenses, are there not?

MS. MCKINNY: I remember one now. Umm--

MR. UELMEN: All right. Well, let me refresh your memory. One occurs in transcript no. 1 and it is contained in our offer of proof as item C-2.

THE COURT: Counsel, what is the purpose of this?

MR. UELMEN: Well, I believe the questioning in the North Carolina proceeding related to a different driver's license tear-up--

THE COURT: Counsel, I have read all this stuff.

MR. UELMEN: --than the one that she testified to.

THE COURT: I have read it all. I have listened to it all. I am aware that there are two different incidents.

MR. UELMEN: I won't burden the court then.

MR. UELMEN: With respect to the testimony in North Carolina about implicating or fabricating evidence, the testimony that Mr. Darden showed you indicated that you testified he told you about implicating or fabricating evidence only in the context of developing a story that you could remember; is that correct?

MS. MCKINNY: Yes, that's correct.

MR. UELMEN: And did you in that proceeding describe one example where in the context of developing a story Detective Fuhrman did tell you about how evidence could be fabricated or manufactured?

MS. MCKINNY: Could we go over that again? I'm thinking--I think I was thinking ahead. I was thinking of the example that I gave and that might not be what you want.

MR. UELMEN: You gave this testimony on page 17 at line 13: "I needed to know from mark how two officers who transported the suspect would cover up that information so that they would say that they were someplace else. How could you do that in their log, how that procedurally occurred, so that was one portion, and he explained to me how an officer could fabricate information and stated they were at one place when they were actually in another place." Did you give that testimony?

MR. DARDEN: Objection. 356 objection.

THE COURT: Overruled. You will have the opportunity on recross.

MS. MCKINNY: Yes, I did give that example.

MR. UELMEN: And did that happen? Did Officer Fuhrman explain to you procedurally how officers could fabricate a log to appear one place when they were actually at another?

MR. DARDEN: Objection, misleading.

THE COURT: Overruled.

MS. MCKINNY: Yes.

MR. UELMEN: Now, Mr. Darden asked you whether there was anything in these transcripts about planting evidence and you indicated that you did not believe there was; is that correct?

MS. MCKINNY: I don't recall if there is.

MR. DARDEN: That misstates the question.

THE COURT: Overruled.

MR. UELMEN: I want to make certain that we understand your understanding of that term of planting evidence. Let me ask you this: Would you regard it as planting evidence if a police officer scratched a scab on a drug addict to make it bleed so that there would be evidence of fresh blood?

MR. DARDEN: Objection, argumentative.

THE COURT: Overruled.

MS. MCKINNY: No. When I think of planting evidence, I think of taking a physical object and putting it somewhere where it wasn't previous to that placement.

MR. UELMEN: All right. So you would not regard the creation of blood as evidence from the arm of a suspect himself as planting evidence?

MR. DARDEN: Objection, asked and answered.

THE COURT: Overruled.

MS. MCKINNY: In that response, no, I wouldn't. If you edified me to regard those kind of activities as planting evidence, then I would rethink.

MR. UELMEN: Now, Mr. Darden asked you whether you made any independent checks of records to corroborate the information that Officer Fuhrman was giving you. Did he ever offer to give you access to any police records?

MS. MCKINNY: Officer Fuhrman?

MR. UELMEN: Yes.

MS. MCKINNY: No.

MR. UELMEN: At one point he boasted of having two to 3000 pages of investigations in internal affairs. Was it your understanding that you could just go down to internal affairs and ask to see those records?

MS. MCKINNY: No, it wasn't.

MR. UELMEN: In fact, you knew enough about internal affairs to know that those records would not be available to you, didn't you?

MR. DARDEN: It is leading.

MS. MCKINNY: Yes.

THE COURT: Overruled. The answer will stand. It was leading.

MR. UELMEN: Now, with respect to the realism of the language that was used by Detective Fuhrman, you were not asking him to assume a role, other than himself, in his conversations with you, were you?

MR. DARDEN: Objection, vague.

THE COURT: Overruled.

MS. MCKINNY: On occasion I may have asked him what would this person say in a given instance and he would tell me what someone might say in that situation.

MR. UELMEN: All right. And those occasions would be indicated in the context of your conversations?

MR. DARDEN: That is leading.

THE COURT: Sustained.

MR. UELMEN: Would those be situations where you were talking about a particular character and how you wanted to portray that character?

MS. MCKINNY: I was generally very specific about the situations and the character, whether it was something that the male officers would be saying in the locker room or something that would be happening at a particular situation where there would be only men, or something procedural, something in a car. It was specific.

MR. UELMEN: And those occasions occurred as you actually developed a finished screenplay; is that correct?

MS. MCKINNY: It would be easier for me to ask those specific questions the more I knew about the story and the characters, yes.

MR. UELMEN: Now, on at least one occasion, in the taped conversations where we still have tapes, there was a conversation with Detective Fuhrman about the nature of the language that was being used, was there not?

MS. MCKINNY: Yes, there was.

MR. UELMEN: All right. That was in the context of tape no. 4? Would that have been the fourth conversation you had with Detective Fuhrman?

MS. MCKINNY: It might have been the fourth taped interview.

MR. UELMEN: All right. And let me ask if--if these words were spoken in the context of that interview. I'm referring to page 1 of tape no. 4. You stated: "I just transcribed." And Detective Fuhrman responded: "Verbatim." And you replied: "I have to." And he said: "All the cocksuckers, everything, that is important. That is policemen's talk." And you said: "It is life talk. It is not just policemen's talk." And he said: "But we have mastered it. No, the Marine corps mastered it." Did that conversation take place?

MS. MCKINNY: Yes.

MR. UELMEN: So he was aware of your need to have real life language just as police officers normally talked?

MS. MCKINNY: Yes.

MR. UELMEN: And that is what you thought you were getting?

MS. MCKINNY: Yes.

MR. UELMEN: Later in that same interview let me ask you if this was said, and I'm quoting you, and this is on page 12: "Exactly. Look, mark, all we are really trying to do--first of all, the premise is real clear and none of the research that I do, no matter what I'm doing, riding along, spending the night in watts, it doesn't change the premise. It is just that that kind of story is so controversial that it has to be so well-documented that you get enough other people's point of view so that if somebody calls you on it you say yeah, I did that. I heard what they had to say. I was there." And Officer Fuhrman replied: "Yeah. The only thing is are they telling the truth?" And you replied: "It is their truth." And he asked: "How do you prove it?" And you replied: "You perceive things the way you perceive them due to your frame of reference, background and learned experience. Same with me. Same with Joe." Did that conversation take place?

THE COURT: Which transcript are you referring to, counsel?

MR. UELMEN: Transcript no. 4.

THE COURT: You are reading--

MR. UELMEN: Page 12.

THE COURT: What you just read is not on the transcript that I have.

MS. CLARK: Me either.

MR. UELMEN: It is in our offer of proof, your Honor.

MR. DARDEN: But it sounded good.

MR. UELMEN: Let me retrieve the transcript.

THE COURT: Well, I have here--you provided me with tape four and that is not the passage that is there.

MR. UELMEN: I'm sure we can clear it up.

THE COURT: All right. Well, let's not waste time on this issue. Let's move along.

MR. UELMEN: Do you recall that conversation taking place?

MS. MCKINNY: Yes.

MR. UELMEN: That concludes our redirect.

THE COURT: Any recross?

MR. DARDEN: No, your Honor.

THE COURT: Miss McKinny, my understanding of the story line then is that this was a woman officer who was going to be transferred into 77th division and then partnered with somebody who is a member of maw, correct?

MS. MCKINNY: That's correct.

THE COURT: Was there a subplot regarding racial conflict amongst police officers?

MS. MCKINNY: No.

THE COURT: You indicated that in discussing these matters with Mr. Fuhrman that you didn't confront him on any of the items that he might have mentioned to you that you personally found offensive, that you wanted to establish a level of comfort and I take it a level of candor in your discussions; is that correct?

MS. MCKINNY: That's correct.

THE COURT: All right. Did you make any representations or agreements with Mr. Fuhrman regarding any confidentiality concerning these tape-recordings or any of these interviews?

MS. MCKINNY: My feeling was that the extent of confidentiality was implicit in our agreement, as were the agreements that I had with others who interviewed with Officer Fuhrman.

THE COURT: And what is the current status of the screenplay?

MS. MCKINNY: It is with my agent in Santa Monica.

THE COURT: All right. Is it still being--has anybody picked up the option?

MS. MCKINNY: It is not optioned as of now, no.

THE COURT: All right. Thank you.

(Discussion held off the record between Defense counsel.)

THE COURT: All right. Counsel, any questions in light of the court's questions?

MR. UELMEN: Your Honor, the reference that I was quoting is on page 12 of the tape transcription from lines 8 to 18 and it appears in the McKinny transcript, that is her transcript, at page 15.

THE COURT: All right. But what you were reading on the page 12 that I have was something different. It is about eighty percent the same is my concern. So maybe you have a different transcript than what I have been working with here, which causes me some concern.

MR. UELMEN: Okay. I can tell you that what is in the offer of proof was prepared from the McKinny transcript and we now have a separate transcription of the tape which you have.

THE COURT: Okay. All right. You are just determined to make my life more difficult than it has to be, aren't you?

MR. UELMEN: Not on purpose.

THE COURT: All right. Anything else from Miss McKinny?

MR. UELMEN: Nothing.

THE COURT: All right. Miss McKinny, thank you very much. You are excused.

MS. MCKINNY: Thank you.

THE COURT: All right. Any other witnesses?

MR. UELMEN: No, your Honor.

THE COURT: All right. I will hear argument.

MS. CLARK: Perhaps Miss McKinny should be excused from the courtroom.

THE COURT: I'm sorry?

MS. CLARK: Perhaps Miss McKinny should be excused from the courtroom.

THE COURT: Yes, I have just excused her.

MR. COCHRAN: Not excused.

MS. CLARK: Just outside.

THE COURT: Yes.

(Brief pause.)

MR. UELMEN: Your Honor, in approaching the issues that--

MS. CLARK: Excuse me, your Honor.

MR. UELMEN: I'm sorry.

(Ms. McKinny exits the courtroom.)

THE COURT: All right. Miss McKinny has withdrawn from the courtroom.

MS. CLARK: Your Honor, is there any reason why her attorneys are remaining?

THE COURT: It is a public hearing, counsel. Proceed.

MR. UELMEN: At first blush there may seem to be a remarkable similarity to--between the issues that we are litigating with respect to these tapes and the issues that were raised regarding the evidence of domestic violence in which the court ruled on 59 different individual items of evidence and--

THE COURT: My recollection it was 74.

MR. UELMEN: 74. I'm reminded of--of Yogi Berra's famous aphorism that is deja vu all over again and perhaps that is a comment on the duration of this case that we are having deja vu experiences in the course of litigating these issues. But I would suggest there is one very crucial difference between what we litigated then and would we are litigating now and that makes all the difference in the world. In that context the Prosecution had only one argument and that argument was based on evidence code section 1101(B) with respect to the admissibility of prior similar acts. There was no question in the context of any of that evidence of the credibility of the Defendant, and of course your Honor's ruling did not address the potential use that could be made of that evidence to cross-examine the Defendant or as extrinsic evidence to impeach his testimony if he testified. So I think it is important at the outset that we recognize here the evidence has at least two purposes and in many cases more than two. We are talking about double-barreled evidence or in some cases triple-barreled evidence. It is offered not just to prove conduct, that is, to support the inference that Detective Fuhrman would have altered or moved evidence in this case or presented perjured testimony in this case. More important, it is being used to challenge the credibility of a witness who has testified to assist the jury in assessing his credibility and the weight that they should give to his testimony, all of his testimony, not just the evidence or testimony he presented with respect to the finding of the glove. And I think it is important to put ourselves in the position of the jury looking at the testimony of Mark Fuhrman. I know that is hard, after we've read all of these transcripts and listened to all of these tapes and come to the sickening realization of who Mark Fuhrman really is, Los Angeles' worse nightmare, probably the greatest liar since Ananias. But the jury has only seen a very polished and professional performance that was carefully orchestrated in which Detective Fuhrman sounded more like a choirboy. In one of the tapes he says, "I'm the only one who knows how to testify." Well, I think he certainly proved that in this courtroom. He flatly and unequivocally denied harboring any racial bias. He said he had not used the word "Nigger" in ten years, and most important, he said that those who said any different were liars, all of them. And he was confronted with the statement of Kathleen Bell that in 1985 or 1986, precisely at the same time that these meetings with Miss McKinny were going on, that he stated he would find a reason to arrest a mixed couple that he saw in an automobile, a black person with a white woman, he would stop them, and if he didn't have a reason he would find a reason. And he went on to say that he believed that all African Americans should be put in a group and burned.

And he denied making those statements, in effect, labeling Kathleen Bell a liar, and he did it in a very convincing and persuasive manner. Now, items B-1 through B-41 of our offer of proof include 41 instances in which Detective Fuhrman uttered the word "Nigger," all within the past ten years, and there can be no doubt about that. There is no question but that those words were not inserted into transcripts by Miss McKinny until they were said by Detective Fuhrman, and of course we hear those words being used repeatedly on the tapes. All but 15 of the 41 instances are recorded on audiotape and those that are not are in verbatim transcripts. Of these 41 references, 31--

THE COURT: Do you feel it is fair to characterize these transcripts as verbatim?

MR. UELMEN: Yes. With respect to the words used by Detective Fuhrman, absolutely.

THE COURT: Verbatim transcripts in a legal context have a very specific meaning. I don't think you mean that.

MR. UELMEN: Well, obviously she was not transcribing them as a legal reporter to certify that every word was--that every word that was spoken was transcribed, and in fact she admitted that.

THE COURT: My listening to these tapes and comparing them to the McKinny transcripts indicate that there is substantial inaccuracies in those transcripts, so I don't think it is fair--I don't think you should refer to them as verbatim transcripts because I think you overstate the case.

MR. UELMEN: Well, I don't think substantial inaccuracies is a fair characterization either, your Honor. The substance of what was said in every case is accurate. The--the--where we have the tapes--

THE COURT: But luckily we have the tapes as to all but 15.

MR. UELMEN: As to all but 15.

THE COURT: But that is sort of a warning that if you--I think the court--let's assume that I'm going to allow some of this. It will only be with an accurate transcript.

MR. UELMEN: And I think with respect to these uses of this word we have an accurate transcript. We have the word being used in the context in which it was spoken and we can with certainty conclude that the word was actually used, that Miss McKinny would not inject this word if it had not been spoken and did not appear on the tape recording.

I think it is also useful to sort out the temporal proximity and frequency of these words. That is, that 31 of these references are in 1985, four are in 1986, five are in 1987, and one is in 1988, and to remember that the numbers are not a reflection of some sort of monologue on the part of Detective Fuhrman, but simply a reflection of the nature and the duration of Miss McKinny's interviews. She conducted the most extensive, the longest interview process in 1985. The interviews that took place in `86 and `87 and `88 were of shorter duration, and that alone explains the frequency of the use of this word. And the word--the use of the word, it is clear from the context, is not inadvertent, the kind of thing that one might forget. In fact, I think it is very important that Laura McKinny sent Officer Fuhrman copies of the transcripts in which these words appeared, so he had an opportunity to look at them. In fact, his attention was called to particular references in the first transcript and that is the first one, no. 1, where the tape is missing. He had a copy of that transcript and he had a list of questions that referred to specific passages in that transcript.

THE COURT: Very similar to the civil process with depositions.

MR. UELMEN: So he knew what was in there. Now, it is arguable I think, and Miss McKinny recognizes that and concedes that, that in only two of these instances when the word was spoken was it in the context of talking about a character in the screenplay, and those are B-12 and B-15. And the Prosecution will argue, I'm sure, that where the word is spoken in this context it should not be admitted in evidence. We believe that is a question for the jury, not a question for the admissibility of the--of the reference, because the testimony that we are impeaching of Detective Fuhrman was a flat denial of ever using the word without any qualifications. He didn't say, well, the only time I have used that word was speaking in a fictional context. So if we are going to put that kind of spin on the use of the word in any of these 41 instances, that is a question for the jury to decide as to whether that would be a context that would be within the scope of his flat denial of having ever used the word. So we believe that all 41 of these references, of these uses of the word, are directly relevant as impeachment evidence to directly contradict Detective Fuhrman's testimony. But with respect to 17th of the examples, and that is the list that we provided to your Honor this morning, we contend they are relevant for a second purpose as well. And that purpose is as evidence of Detective Fuhrman's racial bias against African Americans. These 17 examples go beyond simply using an offensive epithet. They express overt hostility towards African Americans. They imply a judgment that people are of lesser value if they are black, that people can be treated differently because of their race, and that kind of racial bias and hostility goes directly to his credibility in terms of bias and prejudice. And we believe it is precisely the kind of bias and hostility that the court was speaking of in the--in the case of in re Anthony P. And we cited the quotation from that case in our brief in which the court makes the point that expressions of racial hostility does not necessarily mean that a witness would come in and give false testimony against a person simply because of their race, but by the same token, the court can't keep out those expressions of hostility by making the judgment, well, this witness' testimony is credible anyway and I don't think the jury would discredit it based on these expressions of racial hostility. What the court in Anthony P. Is saying is that these are questions of credibility for the jury to resolve. It is for the jury to determine whether these expressions of bias and hostility would infect the testimony of a witness so that they should mistrust that testimony, so that they should disbelieve that testimony, and of course is a process quite apart from the direct impeachment of showing he used the word when he didn't. Here we are saying this is his extrinsic evidence that he is biased, that he has hostility toward people of the African American race, and that that hostility could and did in this case infect the credibility and believability of his testimony. Now, among these 17 examples we contend there are seven that are especially relevant for even a third purpose. Not only do they contradict Detective Fuhrman's denial that he had used the word, not only do they prove his racial bias and hostility, but they give strong corroboration, independent corroboration to the testimony of Kathleen Bell. Miss Bell's account of her meeting with Detective Fuhrman in Westwood in 1985 or `86--

THE COURT: Redondo Beach.

MR. UELMEN: Redondo Beach. I'm sorry, I stand corrected. That testimony was attacked even before she walked into this courtroom. The Prosecutor, Miss Clark, on the record, labeled this a fantasy cooked up by the Defense, and Detective Fuhrman on the witness stand flatly denied that it occurred. And indeed, without these tapes, it does sound a little bit implausible that on practically their first meeting an LAPD officer speaking to a woman he barely knew would frankly admit that he would make up a reason to stop a mixed race couple and that African Americans should be all put in a group and burned. Well, that conversation was not in the context of developing a screenplay and yet the credibility of Kathleen Bell's account can hardly be doubted after hearing the Fuhrman tapes or reading the transcripts of what he said to both Miss McKinny and to Miss Diaz. And it is important that those statements are exactly contemporaneous, that is, they were made at precisely the same period of time that Kathleen Bell asserts she heard these remarks made by Detective Fuhrman. These seven statements are of a very similar tenor to what was said to Kathleen Bell.

THE COURT: All right. And for ease of referring back to these, which of these incidents are you referring to as the second category?

MR. UELMEN: All right. First of all, it would include item 4, item 12 and item 35, because these are three instances in which very similar to the statement about finding a reason to stop a mixed race couple, he indicates he would use race as the basis to stop someone. He refers to stopping someone in Westwood the night before because they were from 22nd and Western and they didn't know where a particular restaurant was in Westwood, end of inquiry, into the car. No. 12 talking about whether you need probable cause to stop two what he referred to as niggers. He said probable cause, you are God, and the Porsche incident where he talks about seeing a black person driving a Porsche who wasn't wearing a $300.00 suit, you would immediately stop them. So it is the same kind of tenor as the statement made to Kathleen Bell at approximately the same time in the second category, and this would include item 5, item 6 and item 40. He is actually talking in genocidal terms about--

THE COURT: All right. I asked you about the third category. In the third category--

MR. UELMEN: Yes, that is what I'm saying. All of these six incidents; 4, 12 and 35 relating to arrests without probable cause; 5, 6 and 40 relating to genocide which I think are very much the same tenor as a statement to Kathleen Bell about putting people in a group and burning them. In one he says the black people on the city council in Los Angeles should be lined up and shot. In another he refers to spending money to keep people in Ethiopia from starving to death as being a waste of money. And in item no. 40 the reference to the building of a new precinct station or new station in division 77, that the old station should be preserved because it has the smell of niggers who have been beaten and died within the premises of those walls. And there is one other we would put in this category no. 7, and that is 28. 28 because it is addressed directly to Laurie Diaz, another woman he had just met for the first time, in which he says to her, "You are talking shit. You sound like a Nigger. You are talking shit." The fact that he would speak that way to a woman he had just met for the first time speaks volumes about whether he would address comments of this tenor to Kathleen Bell in Redondo Beach at approximately the same time, 1985 or 1986. Now, moving on to the second category of our offer of proof, which is subdivision (C), items C-1 through 18, it is important again to remember that this evidence also has two purposes: It is not just to prove conduct under section 1101(B), but also to attack credibility. Now, the Prosecution argument in their brief is that many of these excerpts are statements of attitude so they don't really qualify as acts that would be admissible under 1101(B). We believe, first of all, that is an inaccurate characterization, that in most of these incidents Detective Fuhrman is describing conduct. In most cases his own conduct; in other cases the conduct of other officers that he observed and approved of. But even attitude, I mean even to the extent these merely show his own attitude, it is highly relevant to challenge his credibility, because section 780(J) of the California penal--evidence code, in laying out the grounds upon which credibility may be challenged, includes as subsection J, "The witness' attitude toward the action in which he testifies or toward the giving of testimony." And I think it is important that 1101(B) underlines the point by saying in 1101(c), "Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness." So we are talking about two completely independent grounds for the admission of evidence; 1101(B) when we are offering conduct to prove similar conduct on a later occasion, and 780(J) when we are talking about the attitude reflected in these descriptions by Officer Fuhrman and how that relates to his attitude toward the giving of testimony in this case. These incidents, every one of them, provide fertile ground for further cross-examination of Detective Fuhrman about his attitude, about his attitude toward the giving of false testimony and the planting or manufacturing of evidence. Whether we call it an attitude, a philosophy, an MO, or just call it unmitigated gall, we now have a good faith basis contained within these tapes and transcripts to put Detective Fuhrman back up on that witness stand and ask him: "Detective Fuhrman, have you ever destroyed evidence?" "No. "Well, what about the driver's licenses you were talking about in these tapes and transcripts? Have you ever criticized LAPD officers because they won't lie?" "No. "What about your partner who you say had more morals than hair on his head because he wouldn't lie? Have you ever manufactured evidence? "No. "What about the occasions when you scraped the scab from an addict so that you would have fresh blood to justify an arrest for being under the influence of a drug? And I think that is particularly relevant in the context of the case where we are talking about blood evidence. "Do you believe, Detective Fuhrman, that police should play by the rules? "Yes. "Well, what did you mean in these tapes and transcripts when you said fuck the rules, we will make up the rules later? Detective Fuhrman, did you ever testify to events you did not observe? "No.

"Well, what about that incident you described when you were the fourth car on the scene and you came in and testified, because, quote, you were the only one who knew how to testify?" I could go on and on. "Do you believe you have some special ability to sort out good people from bad people on the basis of where they live or the color of their skin?" We have the switch hitter description. "Do you believe police officers should never testify against each other? How else do you explain the references in excerpt C-9 to the group being tight and getting away with something that you knew they had done because the group all told the same story without even having to consult with each other?"

THE COURT: Well, speaking of C-9, would you address the argument that the Prosecution raises regarding factual bases for some of these?

MR. UELMEN: Yes, your Honor. To the extent that they are going to argue that these incidents should not be admitted because Detective Fuhrman has a tendency to exaggerate, to puff, to put in details that did not happen, that may be a fertile area of inquiry with Detective Fuhrman. But we believe in the record we already have, there is ample corroboration of the basic facts that he is describing. In fact, one particularly telling example of that kind of corroboration can be found in the very psychiatric reports that were prepared when Detective Fuhrman applied for disability. And these are the terms in which he described this same incident in 1982 when he is going to the police department and saying I want to be relieved on the basis of a disability. He said: "I had two friends shot by a bunch of those slimes. He rode a beef for 18 months regarding what happened to four guys that he and his partner caught." He says he was smarter than the people who investigated this incident. He says, quote: "You don't see, you don't remember and it didn't happen. Those are the three things you say and you stick to it." So that is his account of this incident in 1982, three years before these tapes were ever made. So there is plenty of corroboration. I believe we can show that in the essential details with respect to covering up, there is corroboration.

THE COURT: How are we going to do that?

MR. UELMEN: Well, first of all, we can do it with--with the inquiry of Detective Fuhrman on cross-examination.

THE COURT: Given the--given the very rapid fire cross-examination that you suggested and which, if it happens I would like for you to do it, since you seem to be able to do it in a very quick manner, Mr. Uelmen, do you think counsel representing Mr. Fuhrman would allow him to testify in light of that proposed line of questioning?

MR. UELMEN: Umm, that--that is a bridge we will cross when we get to it. We intend to call Detective Fuhrman to the stand. We also believe--I know that he was not excused. He is subject to further cross-examination. If he does invoke the 5th amendment, that simply means he is no longer available as a witness. Once he is no longer available as a witness, every one of these items becomes admissible as a declaration against interest under the evidence code and we believe we can offer it extrinsically to impeach his testimony. We can offer it to show the pattern of conduct under 1101(B). We can offer it to show habit under 1105, and if they want to come in with some counter evidence saying, well, this stuff isn't all true, Detective Fuhrman was lying or exaggerating, they are welcome to do that. In fact, I'm looking forward to hearing that argument addressed to the jury, for the Prosecution to get up and say, ladies and gentlemen, all of this stuff you heard on the tapes of Detective Fuhrman admitting that he lied, that he planted evidence, that he tore up driver's licenses, you shouldn't trust that, because Detective Fuhrman exaggerates, so just ignore that and believe his testimony on the witness stand as though his tendency to exaggerate had nothing to do with the testimony he presented when he got on the witness stand and testified in this case. That is an argument I look forward to hearing, because I think we will have an answer for it. So it is not a question of we can't let any of this in until we have independent evidence showing that it actually happened. We have here the statement of the witness himself in which he is recounting it. And to the extent that the Prosecution wants to undercut it, to challenge it, to say it is an exaggeration, to show that some detail is not accurate, they are welcome to bring that evidence in and present it and argue it to the jury. Now, apart from the attitude--

THE COURT: Just shouldn't I be concerned, though, that then I have to try 18 little trials? Shouldn't I be concerned with that?

MR. UELMEN: No, I don't think your Honor should be. No. 1, it is very unlikely that we are going to see that kind of evidence brought in with respect to all 18 of these--of these incidents. I think for the most part the description that we have culled through the editing process from these transcripts is a very precise description, umm, and, umm, it is not going to, umm, occupy a lot of detours or false pursuits in terms of litigating the accuracy of every one of these--of these incidents. What is relevant is--is not just whether they happened, but the attitude they reflect on the part of the witness. The fact that he is personally boasting about engaging in this--in this kind of activity says a lot about the credibility we should give to the testimony he presented from the witness stand about what happened in this case. And bear in mind, your Honor, that Detective Fuhrman was on the witness stand, I believe, six days--was it a total of six days? It was close to that. It was--and it was a major part of the Prosecution's case. It is the foundation for the most significant evidence that they have presented against the Defendant in this case. So to be concerned that with one or two of these incidents we may have some evidence that they want to bring in challenging the accuracy, let them make a proffer of what--what challenges they have. And I hope it is a proffer that is better than the one they offered in their brief, which was simply a citation of the Los Angeles times. If they have some evidence to challenge the accuracy of any of these incidents, let them offer it and then your Honor can make an assessment of whether indeed that will take us off on a tangent that would consume too much time. Now, let me quickly address the 1101(B) issue, because here again we are on that familiar terrain that we trod in the context of the earlier motions litigated in this case. Apart from the attitudes on the part of Detective Fuhrman reflected in each of these 18 police misconduct excerpts, they are relevant to prove motive, opportunity, intent, preparation, planning, knowledge, identity and absence of mistake or accident. And we believe that any evidence allegedly collected or observed by Detective Fuhrman should not be trusted in this case because on prior occasions he has destroyed evidence, ripping up driver's licenses. He has planted evidence, including fresh blood from the scab of a hype. He has testified falsely, making up probable cause, testifying to events he did not observe. He has beat suspects in order to obtain confessions. He has ignored department rules and regulations. He has covered up the misconduct of other officers. These are all specific instances of conduct that are relevant to show his intent, his motive, his opportunity, the lack of mistake or accident, all of the items listed under 1101(B) that permit the admission of this kind of evidence. The--there are six incidents that we believe are relevant for a third purpose, not only to show attitude, not only to show 1101(B) conduct being repeated, but for the third purpose of--of showing habit or custom under section 1105. And there is an important difference between 1105, your Honor, and 1101(B), because 1101(B) does talk about the admission of evidence that a person committed a crime, civil wrong or other act. But 1105 says: "Any"--"Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion." And that means it doesn't have to be evidence of an act. It can be evidence of an admission, it can be evidence of a practice or it can be evidence of a specific incident or act. And we believe that the most chilling of the--the incidents of police misconduct that we have culled for purposes of the offer of proof are when Detective Fuhrman talks about how it really works and how it has worked in the past. Especially item C-9 where he talks about how I got away with it. "I got away with it. They knew I did it, but I got away with it because we were tight, because 37 officers from that division told the same story without having to call each other up and consult each other." What he is describing is what we will contend is the code of silence, and he identifies it in even more chilling terms in item C-10 when he talks about his disgust with a partner who won't lie for him. If he is not describing in that excerpt a code of silence, I don't think we could find a better description of the code of silence, of the understanding that police officers cover for each. And the reason this is particularly relevant in this case is because the Prosecution's argument with respect to the planting or moving of evidence by Detective Fuhrman is it couldn't have happened because there were other police officers around. So they are going to argue to the jury to reject any suggestion that there could have been any tampering with evidence by Detective Fuhrman simply because there were other cops around. Well, when this same cop gets on the--on tape and describes how police officers cover for each other and lie for each other, we believe that is relevant in terms of how the jury is going to assess this explanation, it couldn't have happened because there were other officers around.

There are also references to covering for each other in item C-6 where he talks about being able to kill someone if you have a partner like a brother. Item C-14, item C-1 and item C-13, both of which he specifically refers to how he describes what he did or how he conducts himself, depending on whether there are witnesses present or not and applies two different standards if there are non-police third party witnesses present observing what he is doing and how that affects how he describes what he is doing. So we believe these six items; C-9, C-10, C-6, C-14, C-1 and C-13, are all highly relevant under 1105 as evidence of habit and custom. The final category in our offer of proof goes directly toward Detective Fuhrman's attitude toward his testimony in this case, attitudes that we inquired into on cross-examination, asking him whether he realized the importance of the glove to this case, what kind of preparation he went through in order to prepare him to testify in this case. And here virtually contemporaneous, just before the--the beginning of the trial in this case, we have him in taped statements directly addressing his role in this case, describing himself as the most important witness in the case of the century, and that if he goes down, the case goes down. Describing himself as bloody glove Fuhrman and suggesting that if he is going through all of this agony, he should make it pay, that there should be some pay-off for him from what he is experiencing as a witness in this case. Finally, your Honor, I want to address the 352 arguments, and I believe that these are arguments the court has already addressed when your Honor directed the parameters of the cross-examination that would be permitted of Detective Fuhrman in the first place. And at the same--at that time your Honor heard the arguments about how a jury might react to this evidence and ruled by limiting the--the cross-examination of Detective Fuhrman, but recognizing that this was not an issue that could be avoided and that we can trust, indeed we must trust the jury to treat this evidence appropriately and not overreact because of the inflammatory nature of the evidence. We believe we have been very sensitive to that. We took 13 hours of very--and your Honor listened to all of them--very inflammatory tapes, something in there really to insult everyone, and we very judiciously edited to a bare minimum, to a tape, that the tape itself takes less than an hour to play, so we are not trying to capitalize on this. The 352 arguments about how the jury might react to this evidence are an especially strong deja vu experience for me because they are the same arguments I made on the other side when we were arguing that your Honor should keep out the evidence of spousal abuse, that your Honor should keep out the gruesome autopsy photographs. And we were arguing, well, there is a risk that this evidence will be used for the wrong purpose, that it will be used as evidence of bad character to show a propensity on the part of Mr. Simpson. And your Honor, it is important, I think that that risk, where that risk exists is much greater where the evidence is offered against the Defendant who is on trial and the risk of prejudice is that this evidence may be wrongly used against him than the risk that is presented when we are talking about a mere witness who is testifying on the witness stand. And the risk in terms of personal risks to him are simply not of the same dimension as the risks for the Defendant who is actually on trial. At that time your Honor expressed confidence that the jury is capable of following the instructions, of using the evidence for the limited purpose for which it is admitted, and we believe there is no reason not to have the same confidence in the jury with respect to this evidence. Your Honor concluded, for example, in the context of the gruesome autopsy photographs--

THE COURT: Mr. Uelmen, I have to tell you that one of the most unconvincing lines of argument as a Judge is comparison with prior rulings and mixing apples and oranges. I think the closer comparison of your 352 argument is this court's ruling January 20th regarding Kathleen Bell and the confidence that I had in the jury that if we had to use the racial epithets, if they came in in appropriate context, I mean, those are the rulings that are similar in the same context. Autopsy photographs are interesting; not relevant to this argument.

MR. UELMEN: All right. I won't press the point, but--

THE COURT: And not helpful to me.

MR. UELMEN: The--the only analogy I was seeking was that--that we don't reject evidence because it is painful to look at. And your Honor noted that. Murder is ugly. Jurors have to face it. They have to confront it.

THE COURT: Racism is ugly.

MR. UELMEN: Racism is ugly. These tapes are ugly. These transcripts are ugly. Fuhrman is ugly. And I would hope that if any good comes out of the painful process of this trial, it is that we confront that ugliness, that we look it in the face and we deal with it. And we think the jury is capable of doing that.

THE COURT: Madam reporter, how are you?

THE REPORTER: Small break.

THE COURT: All right. We will take a court reporter recess. We will take 15.

(Recess.)

(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 are again present. I'll hear from the People.

MS. CLARK: Thank you, your Honor. Let me begin by saying that the content of these tapes is so repugnant and so offensive that this may well be the most difficult thing I've ever had to do as a Prosecutor. I don't think that there is anyone in this courtroom in this county that could possibly envy me, and I'm talking about any Prosecutor or perhaps any Defense attorney. And as a citizen, I am deeply offended and I'm shocked and I'm disgusted with what I've heard. But I can not afford the luxury of being Marcia Clark the citizen. I am Marcia Clark the Prosecutor and I stand before you today, your Honor, not in Defense of Mark Fuhrman, but in Defense of a case, a case of such overwhelming magnitude in terms of the strength of the proof of the Defendant's guilt that it would be a travesty to allow such a case to be derailed with a very serious and important, but very inflammatory social issue.

What has occurred and what the Defense is attempting to do is to tell the jury to turn a blind eye to the evidence, a deaf ear to the testimony, disregard logic, dismiss reason and listen only to racial epithets and bragging accounts of hideous acts of misconduct if any are true. And I pray that they are not. The point, your Honor, as I was trying to make to the court earlier, was not to suppress the information. The information should be let out. The information should be publicly aired. It should be investigated. It should be examined carefully, every single alleged incident, to determine whether or not it did happen or did not happen; and Mr. Hahn, the city attorney's office is present to accomplish that very goal. The point I make is that this is a murder trial, a murder trial where none of this is relevant. This is not the forum. This is not the forum. We need to keep our eyes focused on the evidence that is relevant to this case. And I wanted to share with your Honor something I saw that occasionally these cartoonists come up with something that's edifying. It's a little child speaking to his mother watching television who says, "What's the forbidden `n' word they keep talking about, Mommy?" She said, "Nicole." I think that sums it up. I think that's what it's all about, and I think that we have to look carefully to the law in a lawyerly fashion and see if there's anything here that is legally relevant that belongs in this trial that this jury should hear about. The Defense asks the court to take the escape patch if you will, your Honor, of saying let the jury decide. That's that great way of avoiding all responsibility and saying they can figure it out. Obviously they can't. That's why we have rules of evidence. There comes a point after which you have to say, you know, a jury is just never going to be able to winnow the weak from the chaff, to get past this, whatever the this may be. And we've seen evidence of it in the past, and that's why the courts have ruled that there are certain things that are just so inflammatory or irrelevant or confusing or time consuming that they do not come in or unreliable or untrustworthy. That's really the bottom line of the evidence code. It just should not come in for some of those--for much of those reasons. This is a case like that. And you saw in our brief references throughout history to various socially inflammatory issues of the day in which the court said no, you don't get to bring that in because all you will do is inflame the jury unfairly and cause them to look away from the evidence or read too much into it. And that is the problem we face with this evidence. Now, I find it very interesting that the Defense in its argument never once really alluded to the evidence in this case, and it is--it does highlight the very point that I'm trying to make, your Honor; is that you can not get away from the factual predicate if you are to base an intelligent ruling on what should come in on this case. You have to look at the facts that we have. And what are those facts? It is a fact that we have a number of police officers already at Bundy before Detective Fuhrman ever got there. It is a fact that those officers saw one glove at Bundy before Detective Fuhrman ever got there. It is a fact that Detective Fuhrman was never alone outside around the evidence where he could have gotten the glove to take to Rockingham. And it is a fact that we have thumps against Kato's wall right where the glove appears. And if the Defense theory is to be accepted, the thumps on the wall--which no one disputes occurred. That's an accepted fact--the thumps on the wall would have to have no connection to the appearance of the glove. That's ridiculous, suspension of reason, suspension of logic. We also have to believe that Detective Fuhrman is going to go and move evidence in a case where he doesn't know if there are eyewitnesses, he doesn't know if there are earwitnesses, he doesn't know if Mr. Simpson has an alibi, he doesn't know what the other officers have seen or done among many other things. I just can go on and on with that. Ridiculous comes to mind.

THE COURT: Bronco fibers on the glove.

MS. CLARK: Right. Bronco fibers on the glove, on the Rockingham glove and on the knit cap. I mean, these are things that Detective Fuhrman could not know. You know, this is way beyond the ken of anyone. And then, you know--so to say that he's going to plant evidence when he doesn't know what it's going to turn up, let alone what the blood typing will turn up--and that will get me into yet another of the Defense arguments which is beyond silly--is, you have blood evidence that comes back on the Rockingham glove to the Defendant, Ron Goldman and Nicole. Now, how can you plant the glove? What if the third party that comes up on that glove in that blood is someone other than the Defendant? Then hasn't Detective Fuhrman completely messed up a murder scene? He has dumped a glove where it doesn't belong. It will mean nothing when the glove evidence is finally analyzed except point the finger at him. And by the way, your Honor, while we're at it, if there's going to be evidence planted, why not plant a fingerprint? It's so simple. We don't have to worry about autorads and laboratory error rates and Dr. Weir and population genetics. Plant a fingerprint. So simple. No one thought to do that. If there was going to be evidence planted, I would think they would do a better job. But that's what's so silly about this. Now, the Defense counters with the torture logic that of course the conspiracy had to involve more. And this is what you heard Mr. Uelmen argue. This is another glaring problem with the argument. They would seek to bring in Mark Fuhrman's statements to swipe the entire police department, at least every police officer out there at Bundy.

THE COURT: Swipe has a particular connotation in this case.

MS. CLARK: As opposed to compression. That's right.

THE COURT: Yes.

MS. CLARK: I mean, to basically just to color the entire police department with the same brush that they do Mark Fuhrman. Mark Fuhrman makes certain statements that may or may not truly be his state of mind. It may be posturing for Laura McKinny. I don't know. But the unfairest cut of all is to allow them to bring in such evidence in order to say--to impute that state of mind to other police officers. Lieutenant Spangler thinks that way? Detective Ron Phillips thinks that way? Detectives Vannatter and Lange on the eve of their retirement due to collect their pension are going to risk it all for this D-2 they met that night? I mean, what, are they kidding? You know, when I think about it in those terms and I think about the jury, I think, you know, they're not that dumb. But the problem you have is not an issue of intelligence. It's an issue of emotionalism. It's an issue that is so inflammatory, I get upset when I think about it. I get upset on levels that go way beyond the case, way beyond it, levels that take me back to when I was a teenager and believed that we were going to eradicate all of this, we weren't going to have to be talking about this anymore. And here we are. I get totally--I get totally unfocused, I get totally taken away from this case and on to my disillusionment, my discouragement, my frustration, my anger that this insanity still exists. And this is what we invite to the jury. I'm a professional. I'm supposed to be able to not do that, and I have a hard time, very hard time. Now, the factual predicate that I urge to the court, I urge for a very specific reason. Counsel brought up the case of Anthony P., and in their moving papers, they also cited Mascarinas. Now, it's interesting they cited Mascarinas, your Honor, because I was going to cite that in our moving papers because I think that it's a case helpful, more helpful to the Prosecution. And the reason for that is this. Mascarinas makes it very, very clear that it is important for the court to determine when it weighs impeachment evidence to be offered the nature of the inculpatory evidence offered. In Mascarinas, the court took great pains to point out the fact that the Prosecution case--as I recall it, the statement was far from overwhelming. And in that case, it was a case of one on one credibility where a minor who intended to--who was aspiring to become a narcotics officer was working undercover for a police officer, and he claimed that the defendants sold him codeine and he turned the codeine over to the officer, and only his uncorroborated testimony, that was the sole testimony in evidence offered to prove the Defendant's guilt.

The court noted the fact that the Defense proffered evidence of very probative value to show that this minor had worked for this undercover police officer on two prior occasions, and on both prior occasions, were able to show that either, one, the minor fabricated false charges and proffered them to the officer to get a filing, or, two, that he actually I believe it was stole liquor in order to curry favor to get a customer to sell him drugs so that he could make a case again for the same officer. But the conduct and the logical nexus is shown there. Now, this is a one on one case. Not ours. Our case is--if we took that Rockingham glove and threw it out, we'd have overwhelming proof of the Defendant's guilt. I mean, that's how strong this case is. That's how little this case relies on Detective Fuhrman. And I smile when Mr. Uelmen says--argues the point about Mr. Fuhrman being such a critical witness. He knows better than that. Mr. Fuhrman's not necessary to our testimony at all because we have Detective Lange, Detective Vannatter, Detective Phillips who all saw the glove in place. Detective Fuhrman didn't even collect it. He saw it, he went and brought everybody back there, they all saw it and then Dennis Fung collected it.

We don't need Detective Fuhrman, and he knows that. Detective Fuhrman's view of whether he's an important witness or not has a great deal to do with the fact that he's trying to sell his role as a technical advisor in this screenplay to Mr. Flynn in the relevant passages. And by the way, I should mention to the court that the Defense neatly steps around the excerpts where he vehemently denies planting any evidence in this case, where he vehemently asserts he was doing nothing more than his job in this case. He said, "You know, I've had many more interesting exciting cases where I had so much more involvement and really did some work. Here, I was just out there just doing my job, I happen to see this glove, end of line, and I get all this." But then, if only because of Defense tactics, Mark Fuhrman likely thought he became very important. That was his view and it may very well have to do with the fact that they've decided to make him a key aspect of their case. Nevertheless, he's not important to ours. So we have a case that is so solid in its corroboration, all of the physical evidence, the DNA, evidence on the Rockingham glove, on the Defendant's sock, we have--and at the Bundy walk. We also have the hair and trace evidence of very powerful magnitude showing the Bronco fiber on the hat, on the Rockingham glove. We have the blue black fibers connecting the Defendant's sock to Ron Goldman's shirt and to the Rockingham glove. We also have the Defendant hairs on Ron Goldman's shirt and in the ski cap. I mean, this is an extremely powerful case that requires no one witness for its proof, but many, Mark Fuhrman the least of which. Now, contrast that with Mascarinas where you have one Defendant, one alleging accuser as the witness with no physical corroboration whatsoever. And the court appropriately looked at that and said--here it is. "Eric's testimony--" and that was the minor--"Is the only evidence in any way tending to establish appellant's guilt. That testimony is totally uncorroborated, there apparently having been no effort made to supply eric with marked funds for a transaction or to conduct a surveillance of his meetings with appellate. The prosecution's case was by no means overwhelming. There was not a scintilla of corroboration for eric's testimony." That makes it clear that the focal point was the lack of corroboration and the fact that you have a one on one case. Anthony P. Is the very same thing. In anthony P., you had the allegation made of sexual harassment by this girl against a guy in her class. I think they were both minors. I think they were both in high school. And it happened that he was african american and she was white, and the defense--it was a one on one case. There was no other corroborating witness, no physical evidence. And the defense sought to attack her racial bias as a basis for fabricating the charges, which in that context, she could have done. It was physically capable for her to do it. And in showing bias and a motive to do so, there was an opportunity for her to do so that made sense that they should have been allowed to. In this case, contrast with this case, the defense in the beginning of this case has made many--gave a lot--did a lot of posturing about how they would show that the glove was planted at rockingham. Not only have they failed to do that, but their posturing has been exposed as baseless, as a sham.

They can't. All of the evidence has proven conclusively and consistently that there was nothing planted in this case, that Mark Fuhrman had no opportunity to do so. Whatever his attitudes, whatever his beliefs, whatever he would have liked to have done, he could not do it. And the evidence has now demonstrated to this court that even under the third party culpability analysis, people versus hall, that you--where they say mere motive and opportunity is not enough to bring in evidence of a third party, in this case, we don't even have the opportunity, assume you have the motive. So they don't even come close in this case. They have failed in their proof. If they wanted to get in this kind of evidence, the kind of proof they should have brought to this court, the kind of evidence they should have been able to proffer is, "I was at bundy. I saw two gloves," or, "I was at rockingham. I saw Mark Fuhrman run behind there and drop something." It never happened. No such thing ever happened. And in fact, what we have here--I mean, what's really kind of interesting is, for all intents and purposes, given the state of the evidence, your Honor, and what the officers testified to at Bundy, Mark Fuhrman may as well not have been there.

I mean, when you look at it in an analytical sense, what they're looking to do is bring in a whole bunch of inflammatory material on a witness who had a very small part in this case, whose part they want to pump up as big as they can so they can make this issue as big as they can to totally divest the jury from this case. And the admission of this evidence is in essence telling the jury disregard the case, look somewhere else. I know that in--I do want to remind the court of the January 20th ruling--January 20th I think where the court ruled in its written ruling concerning the admissibility of Kathleen Bell. And the court at that time said that it found it to be relevant because there was adjusted position of two things; and that is the indication of racial animus, that is the willingness to focus on an inter-racial couple just opposed with fabrication of probable cause, that he would make something up in order to stop them. And it was the combination of those two factors together that made the court determine it to be relevant. Now, in this context that now that we have seen that Detective Fuhrman could not have planted any evidence, I would think that the standard would get even higher, but certainly, it would not get any lower than that.

In none of the excerpts that the Defense has proffered have we seen any evidence that Detective Fuhrman would fabricate or move evidence in order to frame someone because they are African American. And I wanted to read to the court in context the passages that Mr. Uelmen has stated he feels are relevant for that purpose because I think when you see them in context--let me see. Proffer 4.

(Brief pause.)

MS. CLARK: Now, proffer no. 4, of course, the court is aware that's, again, the transcript without a tape and I will address--well, I'll address it now. We have a real problem with these transcripts without the tapes, your Honor. The court has already noted the substantial variance. I had pulled out a few of the examples, but since the court is aware of it and the hour is getting late, I think it's probably unnecessary. But if the court would like me to--

THE COURT: Well, it's a 6:00 o'clock day.

MS. CLARK: That's true, but you've been listening to us talk for an awfully long time.

THE COURT: That's what I'm paid to do.

MS. CLARK: That's true. Would you look me to cite them for you?

THE COURT: It's your record, counsel. But I have read the transcripts. I have listened to the tapes.

MS. CLARK: Right. Then perhaps if I can just refer to it in the record so that the citation is in the record.

THE COURT: All right.

MS. CLARK: I won't have to waste the court's time. I won't read it.

THE COURT: Actually, Miss Clark and Mr. Uelmen, we'll go to 5:30 today.

MS. CLARK: Okay. I'll be done way before then. I'll have that in a minute, your Honor, just so I can put that cite in the record. But we do have a real problem with the accuracy. In a case where we are leaning on every word and every nuance and the context in which it's made to make arguments to a jury, it's extremely important that we have a very accurate transcript, one that gives the entire context in the most accurate manner possible. Obviously we don't have that in this case. And as we were going through one of the--I think it was proffer no. 12, it became very clear that the transcript prepared by Miss McKinny and the transcript prepared by the Defense were at variance, even as to one small excerpt. So we have real substantial problems with that and with the inability for the People to ever accurately determine whether there was some license taken by Miss McKinny whether there were things left out that would have minimized or aggravated the passage. We'll never know because she can not remember what is not in the transcript. And that much is very clear. So with that caveat, proffer no. 4 goes to transcript no. 1 at page 33. Mr. Uelmen cites this as an example of how Kathleen Bell is corroborated. Here's the entire passage. "Like last night, I picked up this burglar. He's a known burglar and car thief and he lived at 22nd and Western and he's up in Westwood in a residential area. I just threw him in the car, handcuffed him, took him to the station.

"How did you know he was a known car thief? "He was a African American. He didn't belong. Two questions. And you're going--where you live? "22nd and Western. "Where are you going? "Well, I'm going to Fat Burger. "Where's Fat Burger? "He didn't know where Fat Burger was. "Get in the car. "So under what did you arrest him? "I didn't arrest him under anything. Just took him to the station, ran him for prints, gave him to the detectives to compare with what they've got in the area. I'll probably arrest a criminal that way." Now, when you put all that in context, how is that a fabrication? What has he misstated there? He is stating to her, I have seen these things, I have heard these things, and my experience tells me something's wrong. We know that police officers act on these hunches all the time. Sometimes they're right, sometimes they're wrong, sometimes what they do amounts to an arrest without probable cause in which case the case is thrown out. Sometimes it doesn't.

But how does that corroborate Kathleen Bell? How does that show that he is singling this person out because of his race? What he is saying in fact is that he is looking at the way someone is behaving, at their inability to answer certain questions. He used a racial epithet in that context, but it certainly is a far cry from what Kathleen Bell said. It's a far cry from that. Proffer no. 12: And so it's clear, your Honor--I mean, I'm reading that passage to you. In no way should it be understood that I think or have ever thought that anyone's race or gender should be something to be considered as to whether or not someone gets arrested. But I think that what I'm actually saying is, I'm distinguishing this passage from Kathleen Bell because that was one of the theories on which it's been offered today by Mr. Uelmen as corroborative, and I don't see it as corroborative. And proffer no. 12--again--now, the problem with proffer no. 12 is that this is clear acting. In this one, she is asking him, how would this officer react if this situation occurred, and then he's doing--he's playing it out for her, and it's fictional. I mean, it is fictional. It's admittedly fictional. There's no bones about it here. And that's in tape no. 1 at page 26.

And the lead in is, they're talking about--McKinny says on page 25: "Missed a gun? "No, no, no. This is not the one that's missing the gun. "Oh, okay. Okay. I got you. This is the one that's the really competent one. "Oh, okay." McKinny says, "Plays the female lead. Fuhrman, "You're in the 77th division? I think the scene here, you leave him in. You make it summertime. Okay. It's not getting dark until about 8:00. You get the flavor." The whole--that's the whole passage, is we're talking about a scene. They're setting a scene. So we're not even talking about a fact here. Proffer no. 35. In this context, we have the use again of a transcript without a tape. So we have the same problem we confronted with the other one. And this is the problem again in this--in the proffer, they say this passage occurs on page 11.

(Discussion held off the record between the Deputy District Attorneys.)

MS. CLARK: Oh, excuse me, your Honor. This is the one with no tape. Okay. Let me read the beginning of this passage so that the court can get the flavor, because, again, the context, as Mr. Uelmen is saying, this indicates a willingness to fabricate evidence or to plant evidence. "Guy doesn't know how to drive it very well, like a stick shift, especially a Porsche. Big lulls where the car drops a little bit between shifts and jerks a little bit." So it starts out, and then it goes into some of the other stuff and then continues: "Somebody doesn't seem to know how a car drives too well. License plate's dirty and the car's clean." So--and then it goes into: "We work the same 10 blocks, square 10 blocks every day," et cetera.

There's a lot more there, but what's indicated--and I refuse to repeat the racial epithets, but what it indicates is not a willingness to fabricate evidence. It does not indicate a willingness to move evidence. He's talking about what he sees. He's not talking about a willingness to take a piece of evidence and incriminate someone because of their race. That's the issue that we have here. That's what the Defense is trying to prove. And of course, it's not appropriate as propensity evidence. But the point is, your Honor, that even if it were, the passages cited by counsel do not prove that. That's the problem that we have. We have a--we have a capital case here. And the commission of perjury in a capital case that causes someone to get the death penalty--which Mark Fuhrman could not have known whether or not that would happen at the time he was out there at Bundy--if you perjure yourself in a death penalty case causing someone to receive the sentence of death, you yourself are sentenced to death. He's willing to do that? There is nothing in here, there is nothing in these tapes, nothing in these transcripts that even comes close to what the Defense is alleging in this case, let alone the conspiracy that they're trying to allege here with the code of silence. And that brings me to another point, which is, if the Defense were to be allowed to bring in this code of silence argument, which would be vastly inappropriate, wildly inappropriate, then in response, would the People be allowed to bring in all of the good officers who've done acts of heroism, acts of courage, saved lives to show the jury that that conspiracy stuff, you know, has a lot to do with comic books and nothing to do with the evidence in this case and there are good police officers out there too. I mean, you want to talk about a mini trial? We'll be here til `97 proving all this stuff. There has to come an end to this at some point, but we do have to use the rules of logic and the rules of evidence, and that's what the Defense is trying to prevent. The very cross-examination previewed for this court by Mr. Uelmen shows you the way the admission of these tapes will derail this trial and all without any basis in the evidence. When you look at the passages that I've now shown to the court in context, you can see that the conduct they're talking about bears no relationship to the conduct that they are trying to prove, which never occurred in this case, which could not occur in this case.

I mean, that's what's so silly. Every time I get into arguing this, I say, you know, but it couldn't happen, it couldn't happen. I mean, that's really the bottom line here. We have a witness with a limited role whose credibility is at issue for the Defense, the Defense has sought to put it at issue, with respect to planting evidence. We have proven conclusively and consistently without any, any ability to refute it at all by the Defense that he could not do what they have been desperately trying to prove he did. Could not and did not. All right. So whatever he is--and as far as I can tell, none of it's good--but whatever he is, he couldn't do it. So what are we talking about? What are we going to bring in front of this jury? What is the theory of relevance here? What are we doing? We're going to bring in all of this extraneous stuff to impeach a witness whose credibility is established by other people with respect to this one point, and that's all we're doing. In other words, we're inflaming the passions of the jury, introducing irrelevant or, at best, collateral evidence to distract them from their duty as to an issue that is resolved by other evidence. That's all we're doing.

THE COURT: Isn't the issue broader? I mean, doesn't the language in in re Anthony P. Despite the unique facts of that case, aren't I required to allow broad latitude in cross-examining regarding bias and, in particular, racial bias?

MS. CLARK: Your Honor, I mean, we have argued this previously, but no. Yes and no. Excuse me. Yes and no. When there is an opportunity for a witness to have fabricated charges, when there is an opportunity for a witness to have done what they allege, yes, wide latitude should be permitted, and because in that situation, the opportunity combined with a motive adds up to something. You don't have that situation here, your Honor. That's why Anthony P. Is Anthony P. That's why Mascarinas is Mascarinas. In both of those cases, it is not inconsequential that it is a one on one case where the witness could very well do what they were alleging, and so the ability to prove a motive to do what they had the opportunity to do is an entirely different story. But that's apples and oranges because in this case, the witness could not have done what they are attempting to proof with this evidence he did. That's the point.

And so what we're really left with in terms of relevance, your Honor, is collateral impeachment. The fact that someone--the fact that we have something in the record does not in and of itself mean that rebuttal of that evidence comes in. For example, if I'm testifying in a burglary case and I'm a victim of a burglary and I say, and by the way, the Yankees won the pennant in `55 and I've wrong, does the Defense get to rebut that by putting on extrinsic evidence that the Yankees didn't win the pennant in `55? No. I mean, that's an extreme example, but it makes the point. The fact that there is something in the record in and of itself doesn't mean we get to start slopping into the record extrinsic evidence, especially when it's so inflammatory. This evidence can be characterized no other way but incendiary and inflammatory, but it is definitely collateral. It is so collateral. It goes to impeach the question posed to Detective Fuhrman as to whether he used a racial epithet in the last 10 years. And lo and behold, nine years and 11 months before he made that statement, we have the bulk of the racial epithets being used. And I think that there is--to the extent that there is any relevance, the People have offered in their moving papers and we reiterate the offer now, to stipulate that between `85 and `87, Detective Fuhrman used the racial epithet in question. And that's the value of that evidence. That's it, your Honor. That's it. It is collateral impeachment of a non-material point in the witness' testimony as to--a witness whose testimony the court has seen. But again, this is not Anthony P. We cannot divorce the latitude the court gives to cross-examination from the facts of the case. To do that would stand every ruling on its head. Anthony P.--the court in Anthony P. Confronted one situation that is of vastly different situation than that confronted by this court. This court confronts a case with overwhelming corroboration, a case where there is no opportunity for the witness to have fabricated in the manner alleged. In Anthony P., there was all the opportunity. And hence when they had evidence of motive, it was improper to exclude it. A very clear-cut case. But every fact--but the facts in the case have to determine the outcome in terms of the ruling. And so yes, I do think that the latitude that the court permits in terms of cross-examining as to bias should be governed by the nature of the case, by the facts of the case, by what impact that witness has. Are we to turn a case on its head because a witness who has a small part of the case has a lurid past? Is the Defense entitled to do that? Is the Defense entitled to take a case, turn it upside down, turn the jury away from all of the evidence and say look at that, oh, but look at that? And that's what they'll do. That is what they will do. They already have the ability to do that to some extent. I'm asking the court to not let it go completely out of hand. Now, I think that every trial in California could be turned on its head in this manner. I mean--but I think it is clear and I think that the facts in the Anthony P. Case make it clear that we don't have the same situation. I know that--I'm sorry. I know that the court is sensitive to the problems that are going to be engendered by the admission of such testimony, but it's not enough, it's not enough to split the baby, your Honor, you know. When you split the baby, the baby dies. And sometimes, sometimes, it has to be a little bit more. Sometimes you just have to come down on one side. And I submit to the court that this is one of those times.

The Defense does have the Kathleen Bell incident and Andrea Terry to back that up. The Defense will have the opportunity if they take the stipulation to argue from the Caljic instruction. The People will have stipulated that Detective Fuhrman lied. That's a lot. That's not a little. They will stand up with the Caljic argument--the Caljic instruction that I know the court's aware of, a witness willfully false, and they can argue everything they need to argue from that with the People's stipulation to the fact that he used that racial epithet. And that is the attention and the time at most that this issue deserves. But to turn this into the mini trial of Mark Fuhrman in the context of a murder case where his credibility has already been resolved as to the issue that the Defense is interested in would be a travesty. We need to keep this jury focused. This is a tired jury and a jury that has been here way too long. We've all been here way too long. And Mark Fuhrman and the content of those tapes is the subject for another day and another forum, and it clearly will be. It's clear to everyone that it will be. This will not be swept under the rug. We have no fear of that. But this is not the place to take care of that.

There is nothing good that can come of the interjection of a very serious social issue into a murder trial where it has no relevance. It is manipulative, it is crafty, it is cunning, but it is not proper, it is not relevant, it is not the way to prove a murder case and it's not the way to defend a murder case. It is nothing but the very blatant attempt to inflame the jury, distract them from the evidence, mislead them, confuse them and make sure that they do not look at the proof and the properly admitted evidence in this case.

(Brief pause.)

MS. CLARK: I want to remind the court, because we hear--we have heard all day about the Defendant's right to a fair trial, the victims have one too. Nicole Brown's family deserve to see this case tried on the facts and the evidence that is relevant to the proof of the murders that were committed in this case. Ron Goldman's family has the right to see that this case is kept on track and that this evidence--that this jury is not distracted by inflammatory evidence that does not belong, that is not relevant to this proof of this case.

This is a search for the truth, but it's a search for the truth of who committed these murders, your Honor. Not whom Mark Fuhrman is. That truth will be sought out in another forum. We have to search for this truth now, and I beg the court to keep us on track and to allow the jury to pursue that search for the truth based on evidence that is properly admissible in this case and relevant to that determination.

THE COURT: Miss Clark, you say that the court shouldn't split the baby here and that the court should come down on one side or the other, and you urge me of course to come down on the side that you would prefer me to land on. But in the same breath, you also say that you're willing to stipulate that Detective Fuhrman used the term numerous times and you're willing to agree to the 2.21 instruction that a witness willfully false. So aren't you splitting the baby there yourself in your argument?

MS. CLARK: In a sense, your Honor, yes. See, it is my view that as reprehensible as the contents of the tape are, the evidence itself is collateral impeachment that is so inflammatory, it should not come in. And under 352, I think we have made our position very clear that it should not come in at all. Yet, I wanted to extend the stipulation because it is a fact that there was a statement in the record for which these transcripts are directly impeaching. And to the extent that they do directly impeach that statement by Detective Fuhrman, that is the only arguable admissibility that I can see, is a stipulation that the word was used. The context in which he uses it is not relevant to this case and his views on ideology are not relevant to this case, but the fact that the epithet was used when there was a direct denial of that, I can see the court saying, "Well, you know, Miss Clark, that's really kind of unfair. He did deny that under oath." He did. He did, and that is why I've offered to stipulate because I think that's the maximum that should occur. But I think that it would be well within the court's discretion and a very appropriate exercise of that discretion to keep it out altogether because it is collateral, it is inflammatory, it is not material. So I reasoned it that way. But I do not see that parceling out portions of these tapes to be played will be fair. I do not think it will be fair. I do not think that really any of these tapes should be played for the jury only because of the arguments that I've made to the court, because I think that we will wind up interjecting inflammatory evidence that really has no relevance here. That's--

(Brief pause.)

MS. CLARK: So I think that's--it was in that spirit that the People offered the stipulation to the extent that the court thought that an admission should be made of the fact that the witness was impeached in some manner to the extent--to that extent then, we offer the stipulation.

THE COURT: All right. Thank you. Mr. Uelmen.

MR. UELMEN: Yes. If I could just have a moment, your Honor.

(Discussion held off the record between Defense counsel.)

THE COURT: Mr. Cochran.

MR. COCHRAN: Yes.

THE COURT: You want a moment?

MR. COCHRAN: Just another minute. Just one minute.

(Discussion held off the record between Defense counsel.)

MR. UELMEN: Well, your Honor, I certainly have to concede that Miss Clark is not in an enviable position. Certainly, the Prosecutor is never in an enviable position upon being confronted with really incontrovertible evidence that perjured testimony was presented by a police officer during their case in chief. But what we're trying--what we're seeing here is an effort to salvage what can still be salvaged from Detective Fuhrman's testimony without conceding that this is a man in whom we can put no confidence whatsoever with respect to anything he said. This is a man who very early in the investigation of this homicide put himself right in the middle of everything. It was Detective Fuhrman who led the detectives over to the Rockingham residence. It was Detective Fuhrman who discovered the Bronco parked askance, even though the photos didn't demonstrate that. It was Detective Fuhrman who discovered the little speck of blood on the car door that provided the probable cause to jump over the wall and enter the premises, and of course it was Detective Fuhrman who finds the glove in a place that is totally inconsistent with all of the other physical evidence in the case including alleged blood drops leading into the house.

THE COURT: What about Miss Clark's argument that if Detective Fuhrman had been motivated to frame your client, then perhaps a better place to drop the glove would have been in the kitchen or the bedroom or someplace that--a little more logical place since he clearly had the opportunity to do that as well?

MR. UELMEN: And he well might have if it turned out that that was an opportune place to drop it. We would contend that the location where it was dropped became an opportune place to drop it when he heard what Kato Kaelin had to say. What you have heard was an argument that--it was just presented facing the wrong way. It should have been presented facing this way to the jury because what Miss Clark is saying is, here are the facts. These are the facts. We know that the glove--that there was only one glove at the Bundy scene. We know that there's blood in the car. We know--those aren't facts. There aren't any facts yet in this case. The facts haven't been determined yet by the jury. And I could get up and present the closing argument that we're going to present to the jury controverting most of what Miss Clark said to you was facts. We don't concede those are facts. They're not facts at all. In fact, we have very plausible credible evidence to controvert virtually every essential fact that is in issue in this case. So we don't have any facts. The facts are going to be determined by this jury. And Miss Clark's argument to you is simply, well, we have such a strong incontrovertible case, we know what all the facts are. So if you give this evidence to the jury, somehow, this jury is going to go ballistic and ignore all the facts. I'm embarrassed. I have never heard a jury sold as short as it was in the argument that your Honor just heard. I'm reminded of what Justice Robert Gardener once said about jurors are not some dithering nincompoops who were brought in from a pumpkin patch. We have confidence in the jury's ability to address the evidence in this case. We're not going to be getting up and saying turn a blind eye to the evidence or turn a deaf ear to the evidence. We're going to argue evidence in this case. And among the evidence we're going to argue is the testimony of Detective Mark Fuhrman, a central witness in this case no matter how you cut it. And I'm not surprised that there's a lot of back peddling now about how oh, he's not a very important witness. What would we expect the Prosecution to say when the witness has been proven to be a perjurer?

This jury is sitting in judgment on this case simply because they bring some experience of life into the jury box, because the events that they're going to be asked to sort out, the issues that they're going to be asked to resolve will be assisted by their life experience. And the existence of 12 people who are brought in from the community to resolve these issues is really the central premise of our whole adversary system. And for us to prejudge the facts and to say we can determine what happened here and what happened here is not consistent with what the Defense is presenting, therefore, the Defense should be precluded from challenging the credibility of this witness from showing his propensity to fabricate simply takes the case away from the jury. Why even have a jury? And that's certainly a legitimate question to ask in light of the argument that was just made. Why have a jury if we don't have any trust or faith in their ability to sort out the evidence and make their ruling based on the evidence in this case?

THE COURT: Well, why have 352 of the evidence code?

MR. UELMEN: We have 352 of the evidence code to--to have a court make a determination of balancing probative value against the risk of substantial prejudice. And we're not afraid of the court making that kind of balance in this case. We are talking about evidence that is highly probative on several scores. It's not just probative on whether there's a likelihood that Mark Fuhrman planted evidence. It is relevant on the issue of whether you believe any and all of his testimony from start to finish about every aspect of this case. It is relevant on the issue of habit and custom of police officers. It is relevant on the issue of 1101(B) in terms of plan, motive and opportunity. It is relevant to corroborate Kathleen Bell. It is relevant for all of these purposes and it is highly probative evidence and it should not be excluded simply out of fear that jurors are going to become dithering idiots when they hear it. They're not. They'll be able to understand the argument that Miss Clark made and she's going to have her opportunity to convince this jury that they should still put some stock in what Mark Fuhrman testified to in terms of how he discovered the glove despite all of the reasons why we should disbelieve Mark Fuhrman.

Now, the argument that there's just no way that under these circumstances Mark Fuhrman would have planted evidence or fabricated evidence in this case assumes that the only motive that Fuhrman could have had to do this would have been because he wanted to frame an innocent man. But when you look at the context of how Mark Fuhrman explains what he does and how he testifies and how he conducts investigations and how he makes a decision of who to arrest, it tells you a lot about Mark Fuhrman, and I find it speaking loud and clear in the context of that one example where he's playing with blood, where he's squeezing a scab to have fresh blood in order to justify an arrest. Now, if that isn't planting or fabricating evidence, I don't know what is. But in the mind of Mark Fuhrman, it wasn't. In the mind of Mark Fuhrman, here's what he thought it was.

THE COURT: Counsel, I'm eight feet away.

MR. UELMEN: He says it's putting a criminal in jail. It's being a policeman. So in the mind of Mark Fuhrman, this kind of activity is justified if it's putting a criminal in jail and it's perfectly consistent with everything he did that that's what he thought he was doing even if he was falsifying evidence, even if he was testifying falsely in a number of respects in his testimony presented to this jury. Now, with respect to the specific incidents that we pointed to, that is items 4, 12 and 35, we invite the court to put those in context, look at the broader context. I mean what we were doing in this offer of proof was attempting to get right to the essentials that we believe conveyed the idea of what he is saying, what he is advocating without a lot of extraneous material. But even putting these precisely in the context in which they were spoken, there's no question what he's saying in item no. 4. There is no question, but that what he is saying is, if somebody in Westwood is black, he doesn't belong and that provides a reason to stop them and you can make up the reason later on to justify it. What he's saying in no. 12 is about--in the context of Laura McKinny's question, "Don't you need probable cause," when he describes stopping someone who is, as he puts it, "A Nigger," he says, "Probable cause? You're God. You're God." That's Mark Fuhrman's vision of his role in this process. And we contend there is ample evidence to point to in this record where he was playing God, and it's going to be up to the jury to decide whether that's what was going on or not. Item no. 35, same thing. "Nigger driving a Porsche that doesn't look like he's got a $300 suit on, you always stop him." I mean, let's not mince words. We know what he's saying. He's saying that based on racial considerations, a police officer can make decisions about who to stop, who to arrest, who to put in jail, who's a criminal, who the good guys are, who the bad guys are. I have been given lots of advice by my colleagues about responding to specific factual issues that Miss Clark was raising, but I think to do that would detract from my main point. And my main point is that these are arguments to be addressed to the jury. These are not facts. We have a version that we want to argue to the jury and the jury will determine the facts. And we all need to be reminded that we have a system where we put faith in the jury to determine facts, that we have confidence that they can hear evidence, even evidence that is ugly to hear, ugly to look at that they can look at in the face, evaluate it for what it is worth, give it the appropriate weight and then address the evidence and come to a rational conclusion in this case.

THE COURT: All right. Thank you, counsel. All right. Counsel, I think you have presented to me dozens of separate issues. Each one of these incidents is an incident that stands on its own, has to be evaluated on its own, that has to be weighed not only in the 220 credibility witness context, but also in the context of the 1101(B) argument, the 1105 argument and then the court has to make an independent 352 evaluation each and every one of these individual items. So I'm not prepared to rule now. And I'm going to go back and reread in re Anthony P. Because I want to see if I recollect Justice Johnson's opinion the way I recollect it and if I recollect the facts that were before Judge Burke at the time that he ruled, made those rulings. I don't recollect the facts specifically. The interesting thing about in re Anthony P. Is that was the first California case that actually--appellate court case that dealt specifically with this particular issue, and I want to go back and revisit that case before I rule because I think that's clearly the guiding case and the issue that's before the court. The difficulty I have is that this is an unusual situation where you have somebody talking to somebody in the context of a screenplay. So this is not an interview of somebody for the purposes of the life of Mark Fuhrman. This is in a context where somebody is trying to create a work of fiction. But it appears to me that there are instances where it is not role playing. So the issue is--I mean, I have to evaluate each one of these items individually. And the quality of your arguments today, which I will compliment both sides on, has given me a lot to think about, and this is not something that I can rule upon from the seat of my pants. I need to sit down and look at each one of these individual situations and make the appropriate ruling. Unfortunately, that creates a time problem for us all. So why don't we address that issue at this point.

MR. COCHRAN: If I might, your Honor. We would expect that Miss McKinny would be the next witness. And so having said that, we're mindful of what your Honor just indicated about the need for time. And I'd like to balance that with the fact that we do have a jury that wasn't here today and we want to get this case to the jury as soon as possible. Would the court care to indicate to us what is reasonable for you to render a decision in this case, because once you render the decision, assuming arguendo that a number of these incidents are going to be appropriate, then we have to have the transcripts changed to allow what you let in, to have it redone to cut the time down between them. And so there's a little bit of hiatus. We have people standing by this afternoon in the laboratory to do that. So obviously we'll let that go. I mean, I understand. I did not know where we would be at the end of the day. So we want to move ahead.

THE COURT: Well, to show you how optimistic I was, I thought we'd finish this argument this morning.

MR. COCHRAN: Well, you did say--well, you were smart enough to decide by 11:00 o'clock we wouldn't. So that was good. Would the court care to tell us--because that would really be the next witness if at all possible.

THE COURT: Well, here's the difficulty I have, Mr. Cochran. You've given me what, 60 odd separate incidents. I need to go back and review the record, to look at each one of these individually, perhaps even listen to the tape again. And this is not something that I want to do being rushed.

MR. COCHRAN: No. Judge, I want to make this perfectly clear. We're not rushing. I was just asking so we could see.

THE COURT: Let me ask you this. Are there other witnesses, Miss Menzione, or any of those other witnesses we could deal with over the next couple of days? Unfortunately, I have a commitment this evening that will limit the amount of time I have to work on it this evening.

MR. COCHRAN: May I have a moment to talk to my colleagues, your Honor? There may be--if the court's saying you would like probably until Thursday, certainly we understand that. Let me see what we have, and perhaps--may I get right back to you? Perhaps we can take--I know you want to stop at 5:30. Give us about three or four minutes, your Honor. Would you do that?

(Discussion held off the record between Defense counsel.)

THE COURT: All right. Excuse me. Mr. Cochran, let's do that. Let me stand in recess until tomorrow morning at 9:00 o'clock. When you have your scheduling plans, let me know, and we'll make that public.

MR. COCHRAN: Let me see if I understand. You are going to let us talk about it now, come back and tell you?

THE COURT: Come back and tell me. You and Miss Clark and Mr. Darden, Mr. Shapiro, come back and tell me what your scheduling desires are. We'll just stand in recess and then we'll select a date and time to reconvene and we'll announce that.

MR. COCHRAN: Can we keep Mr. Simpson out here so we can all talk with him?

THE COURT: Sure. Okay.

(At 5:25 P.M., an adjournment was taken until, Friday, September 1, 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,)

Plaintiff,)

Vs.) No. BA097211)

Orenthal James Simpson,)

Defendant.)

Reporter's transcript of proceedings Tuesday, August 29, 1995 volume 214

Pages 43373 through 43636, inclusive

(Pages 43637 through 43643, inclusive, sealed)

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APPEARANCES:

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

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I N D E X

Index for volume 214 pages 43373 - 43636

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Day date session page vol.

Tuesday August 29, 1995 A.M. 43373 214 P.M. 43479 214

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PROCEEDINGS

402 hearing re Mark Fuhrman tapes 43381 214

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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

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CHRONOLOGICAL INDEX OF WITNESSES

DEFENSE (402) witnesses direct cross redirect recross vol.

McKinny, 43385u 214 Laura Hart (Resumed) 43480u 43494d 43548u

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ALPHABETICAL INDEX OF WITNESSES

WITNESSES direct cross redirect recross vol.

McKinny, 43385u 214 Laura Hart (Resumed) 43480u 43494d 43548u

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EXHIBITS

DEFENSE for in exhibit identification evidence page vol. Page vol.

1364 - 3-page document 43405 214 described as questions asked of Mark Fuhrman by Laura Hart McKinny

1365 - Videotape 43411 214 depicting written excerpts from the taped interviews with Mark Fuhrman