Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted; also present, Darryl Mounger, Esquire, for Mark Fuhrman.)
(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. The Defendant is again present with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Douglas, Mr. Blasier, Mr. Bailey and Mr. Spaulding, People represented by Mr. Hodgman, Mr. Darden and Miss Clark. Counsel, anything we need to take up before we resume with our next witness?
MR. COCHRAN: Yes, your Honor.
THE COURT: Mr. Cochran.
MR. COCHRAN: We need to take up several matters, and I'll try to lay them out for the court at this point. Based upon the court's ruling, which the court took two days to render or a little short of two days, we're not ready to proceed either with Laura McKinny or with Mark Fuhrman today. I've asked Mr. Fuhrman's lawyer, Mr. Mounger, to come today, and I plan to talk to him when we take a break this morning further. We have several other issues that we need to resolve. We have a discovery matter which has come up which we think is very urgent and it bears upon Mark Fuhrman and whether or not we've received discovery timely and it bears critically on this whole idea of planting evidence, and I would ask the court to hear from Barry Scheck on that. That's one. We have secondarily a--we filed a motion to suppress evidence based on newly discovered evidence, which I'm going to ask the court to listen to Professor Gerry Uelmen on.
THE COURT: Motion to suppress newly discovered evidence?
MR. COCHRAN: Well, it's a motion to the court to review the suppression motion based upon newly discovered evidence, to wit, Fuhrman, the Fuhrman tapes, ask the court to hear that matter because it ties to Fuhrman. The third thing that we have is a Brady motion which I indicated to the court we're filing, the Brady motion with declaration attached thereto. We're going to ask the court to hear that. And finally, we have--we'll be making an offer of proof regarding two witnesses that we would call today, Roderic Hodge and Natalie Singer, relating to this same general area. You've heard something about them before. Mr. Bailey will make an offer of proof in that regard. Those things we want to do and pretty much in that order if the court will allow us starting with--because they tie in together--hearing from Barry Scheck first. Then the court perhaps will hear from Professor Uelmen--Uelmen and the court can hear from me on the Brady motion and then lastly from Mr. Bailey on the offer of proof. And then we perhaps need a break to talk with Mr. Mounger with regard to Detective Fuhrman. He's on call also.
THE COURT: All right.
MR. DARDEN: Your Honor, if I can be heard.
THE COURT: Yes. Mr. Darden.
MR. DARDEN: We were just handed their moving papers on these issues less than three minutes ago. So we have not had an opportunity to review the documents. In addition, with regard to Hodge and Singer, as the court may recall, the court earlier ruled, after an argument by Cheri Lewis, that the court would wait to rule on Hodge and Singer until after the court heard testimony from Kathleen Bell and Andrea Terry. So we're not ready to proceed on Hodge or Singer. I'm not even ready to argue the 352 issue for the second time, for a second time.
THE COURT: All right. How about the discovery matter?
MR. DARDEN: We just received a letter a few moments ago on the discovery matter and we have one copy and we're trying to read it, read over it right now.
THE COURT: All right. Well, I'll hear from Mr. Scheck on the discovery issue and let's see how far we get.
MR. SCHECK: Thank you, your Honor. As you know, yesterday, we had a status conference on discovery, and you were I know occupied writing your decision, and as a consequence, were unable to join us and asked us to put some of the results of that conference in a letter. We have a number of issues that we believe the court must take up. The first--many of them dealing with the rebuttal case and discovery of the Prosecution's rebuttal case. But before I get to that, we would like to call to the court's attention an extremely significant point. As the court probably recalls, the Defense has been requesting for several months in this case, really from the beginning, contact sheets of the crime scene photographs. We have never had a photo log in this case and we never had contact sheets indicating the order in which pictures were taken. Yesterday, we saw for the first time big beautiful color contact sheets of crime scene photographs. We saw those because Mr. Bodziak of the FBI had requested negatives and prepared contact sheets apparently in anticipation of assisting the Prosecution in the cross-examination of Dr. Lee and calling Mr. Bodziak as a rebuttal witness in this case. Examination of those contact sheets reveal that the picture of Mark Fuhrman pointing to the glove at Bundy appears to have been taken at night because the pictures to our eyes at this point prior to and subsequent to the Fuhrman picture, pointing at the glove, revealed that to be taken at night. Now, this has very serious implications. The Prosecution turned over a long time ago a statement of a photographer named Rolf Rokahr who initially told investigators, Detective Luper, that he had arrived at the Bundy scene sometime after midnight, had waited for the arrival of Detective Phillips and Fuhrman. When they arrived, he was then directed by them to go take individual pictures of evidence. Prior to their arrival, he had taken some overall shots. He then indicated in his statement--
THE COURT: Did he--I thought Mr. Rokahr testified. I know we've heard his name and seen his likeness on some of the--
MR. SCHECK: I understand that. But my point is--
THE COURT: No. I'm just asking you if you have some--
MR. SCHECK: I don't recall him testifying at the trial--
THE COURT: All right.
MR. SCHECK: --but his name did come up in the suppression hearings, and in fact, there was an indication by the Prosecution--they filed I think in a responsive brief to Mr. Uelmen's papers--that his initial statement as to the chain of events on the morning of June 13th was mistaken as to times and perhaps as to sequence, and they submitted an amended version of his testimony. The point is, is that he had given us this statement a long time ago indicating that the pictures of Fuhrman pointing to the glove would be consistent with having been taken at night. The crime scene log at Bundy indicates his arrival at 3:25. His initial statement says later. But even if he had arrived at 3:25 and took pictures at that time, that's still night. The sworn testimony of Detective Fuhrman in this case--
THE COURT: Darkness hours, yeah.
MR. SCHECK: --is that that picture was taken after 7 o'clock in the morning. That is also essentially the testimony of Detective Phillips. It is consistent with the testimony of Detective Lange and Vannatter, indicating that they directed Fuhrman to go back and do this comparison of gloves and take a photograph.
THE COURT: All right. So you feel at this point that you need to have this contact.
MR. SCHECK: Yes. We need to have that contact print because we think that that opens up a whole avenue that impeaches not only Detective Fuhrman's testimony, but it impeaches the other detectives as to their movements between crime scenes that evening. There are no notes about exactly how they proceeded and there are other contradictions, substantial contradictions.
THE COURT: All right. Mr. Scheck, does the contact sheet that you saw yesterday include frame numbers?
MR. SCHECK: Yes, it did. What we arranged with Mr. Hodgman at the end of the day--Mr. Hodgman--and I'm sure he'll speak for himself, but he indicated to us at that conference, and I'm sure he'll confirm today, that he personally recalls Mr. Neufeld asking him several months ago for these contact sheets, had determined they didn't exist. And I know that we asked for them previously.
THE COURT: I recollect our discussion about the lack of a photo log.
MR. SCHECK: And these contact sheets. Right now, it's my understanding that we have made arrangements, and at this moment, Mr. Neufeld is at a laboratory with the representative of the District Attorney's office attempting to have high quality reproductions made of these contact sheets. Also, I should add--
THE COURT: Well, let me ask the more important question. Where are the original negatives?
MR. SCHECK: I believe that--
MR. HODGMAN: Well, they're at the photo lab now.
MR. SCHECK: They're at the photo lab.
MR. HODGMAN: They're being handled right now, your Honor.
MR. SCHECK: So we are very, very concerned about that. In addition, as the court noted when Dr. Lee testified--
THE COURT: Well, let me ask another question, see if we can just cut to the chase at this point. When will they be available to the Defense, Mr. Hodgman?
MR. HODGMAN: Well, your Honor, they're being made available to the court or--excuse me--to the Defense right now. We made arrangements with the Defense yesterday. We obtained the negatives. We have an investigator. We agreed to a non-machine reproduction or development of these photos. We have an investigator there just to make sure we don't lose our negatives. But it's being taken care of right now. These contact sheets, which simply show an order--photos which the Defense has had for months and months, were recently acquired by us. I don't know precisely when. I would estimate, but I'll have to let Mr. Goldberg address this.
THE COURT: All right. So don't we need to see these contact sheets, have Mr. Scheck evaluate them and then take the matter up at that point to see what the significance is?
MR. HODGMAN: I think that would be appropriate, your Honor. But the point is, your Honor, discovery is being made. We made the arrangements yesterday. And I'm sure Mr. Scheck has more he'd like to address the court about. So we'll handle it item by item.
THE COURT: All right.
MR. SCHECK: But the major point here is that we've been asking these for a long time and they told us they didn't exist and they couldn't be made. And now, just because Mr. Bodziak had them made in an effort to confront Dr. Lee's testimony, all of a sudden, we find something that we think is extremely significant on a crucial matter.
THE COURT: All right. Well, Mr. Scheck, why don't we do this. Let's assume that you get your copies of the contact sheets sometime later today. You'll have time to evaluate them.
MR. SCHECK: Yes.
THE COURT: And if you can--after evaluating them, there is some significance to you and to the Defense position, then we'll take that up at that time.
MR. SCHECK: Yes. Your Honor, I should note in the Brady motion that we filed with the court today, we indicate the lines we are pursuing here because we think it has significance with respect to the decision you rendered. I should note also with respect to the--these photographs that the enlargements in the treated photographs that we saw yesterday--and we're endeavoring to have these copies made as well--we think provide, just from my untrained eye, looking at them--and that doesn't substitute, as the court has acknowledged, for Dr. Lee's trained eye, Dr. Lee's magical eye frankly. But looking at those photographs, I think that there may be some additional parallel line imprints in the walkway area that are consistent with our contention that we have footprints of two individuals involved in this homicide.
THE COURT: All right.
MR. SCHECK: And we think that those pictures are potentially quite exculpatory as well and we should have seen them earlier. The next issue with respect to discovery is that Miss Clark had indicated that we were going to see all these photographs. And of course, they were slow in coming, but you had ordered forthwith it was our understanding.
THE COURT: Which photographs are we speaking about since we've done this several times?
MR. SCHECK: Let's start with the gloves. We thought that you had ordered forthwith for production yesterday or--
THE COURT: Day before.
MR. SCHECK: --whatever forthwith means, the--what they had with respect to videotapes or blow-ups on the gloves and whatever they propose to introduce in their rebuttal case.
THE COURT: I recollect--
MR. SCHECK: And we're not by any means conceding they have a right to do that. We haven't gotten that.
THE COURT: All right. Mr. Hodgman.
MR. HODGMAN: Your Honor, as I indicated to the court I believe it was Wednesday, there was an event concerning these photographs yesterday and basically we were having them reviewed by someone. We've had the benefit of that event having occurred. Accordingly, I've instructed our staff to prepare for submission either to the Defense or to the court under 1054.7, just to be overly cautious about it, the photos and videos that we would either potentially or actually seek to introduce in our rebuttal case. I was informed earlier this morning that we should have the package complete by noon. I should advise the court that--
THE COURT: They're to be turned over by noon?
MR. HODGMAN: Yes. And by being turned over, the bulk of it we'll give to the Defense. There will be perhaps one or two submissions to the court where we're still not quite sure. So--but out of an abundance of caution, we will turn it over to the court under 1054.7.
THE COURT: All right. Then what I'm going to do is direct that that package be made available to the Defense by noon today, that anything that you feel is not within the discovery statute, submit to the court by noon today for the court's review.
MR. SCHECK: Your Honor, I--
THE COURT: All right. And that's both videotapes and photos, correct?
MR. HODGMAN: Correct.
THE COURT: All right.
MR. SCHECK: Your Honor, I appreciate that order, but I just want to note for the record that we have been--we were promised this earlier. And the reason that's of critical importance is, this case is drawing to an end. We anticipate resting in the middle of next week or Tuesday or Wednesday. And the problem is that we have to get these things out to experts, and we think that the Prosecution has been withholding all of this despite the court's orders because we can't--this is labor day weekend. When are People going to look at this? We don't want any further unnecessary delays in this case and we think that this has been an unfair course of conduct. In that regard, yesterday, they announced--
THE COURT: Mr. Scheck, I'm aware of the fact that when I made the direction that it be produced forthwith, nobody told me that those matters were out being examined by experts.
MR. SCHECK: Well--
THE COURT: So--but let's take up that issue--
MR. SCHECK: I'm not sure that that's what they just said.
THE COURT: Once you've seen it--
MR. SCHECK: Then we'll be in a better position to Judge.
THE COURT: --you'll be in a better position to evaluate what prejudice there is, if any.
MR. SCHECK: All right. The next--
MR. HODGMAN: Excuse me. I will point out to the court, a portion of this material has already been turned over to the Defense as well.
THE COURT: Okay. Well, but, Mr. Hodgman, make your best effort--not make your best effort. Have it turned over by noon today.
MR. HODGMAN: I understand.
MR. SCHECK: For the first time yesterday, they indicated that Mr. Bodziak would be a rebuttal witness, but we have no reports or notes of Agent Bodziak with respect to that at all, although we did see these photographs that he apparently produced for purposes of cross-examining Dr. Lee. But--and wait until you see those. They have pictures of those jeans that are so much clearer than anything we had.
THE COURT: NASA quality.
MR. SCHECK: I'm sorry?
THE COURT: NASA quality.
MR. SCHECK: NASA quality. There is also the matter of Dr. Bradley Popovich. We were--disclosed to us were a set of notes, one from January 1994, another from March, rough notes, where there is no report from Dr. Popovich, but they told us yesterday that he would be testifying as a rebuttal witness.
THE COURT: As to what issue?
MR. SCHECK: Presumably on DNA. I happen to know he's a medical geneticist. What concerns me, your Honor, is that I am finding it very hard to understand how these rulings work. When Mr. Sims testified, I got his report at the last minute, then I got 80 pages of notes a day before he testified. I was told, well, that's the way it works. You get the report, then you get the notes when the witness testifies. So I did it. Last week, we went through this vitriolic discovery motion concerning Dr. Lee where I think the record now is clear with the submission by Mr. Blasier that they received so much more from Dr. Lee in terms of witnesses in a timely fashion and that were able to speak to him about his testimony, had their own experts speak to him at great length, that--
THE COURT: Well, let's not revisit that. Let's focus on Mr. Popovich.
MR. SCHECK: I just--I just--this must be a problem that we're just getting these notes from January and March and no report and discovery at this late date of this witness. Certainly if he's testifying to any great substance with respect to DNA, this could cause unfair delays.
THE COURT: Mr. Hodgman, as to Mr. Popovich and Mr. Bodziak, what is the status of reports as to both those individuals?
MR. HODGMAN: We turned over a recently acquired report, that I believe supportive notes from Mr. Popovich to the Defense yesterday here in court.
THE COURT: And when did you request that report from Mr. Popovich?
MR. HODGMAN: Well, his testimony is anticipated will be in rebuttal to Mr. Gerdes amongst other things. So it's being--the report was being prepared all along and it was just recently completed. We turned it over just about as soon as we got it. I think there may have been just one day for processing, renumbering, and I know it was in my in-box late Wednesday afternoon and we turned it over to the Defense yesterday morning.
THE COURT: All right. So the Defense is now in possession of Mr.--Dr. Popovich's notes and a report?
MR. HODGMAN: They have what we have. And I would have to admit--I mean it's--I've been working on quite a few other things as well. I haven't even reviewed this report ourself. You know, our science subteam has been dealing with that. So I can't even address the content of the report other than I know we just recently received it and we just turned it over yesterday morning.
THE COURT: All right.
MR. HODGMAN: As far as Mr. Bodziak goes, we do not have a report or notes as of yet. Mr. Bodziak will be testifying within some perimeters as yet completely defined, as yet completely undefined.
THE COURT: But it's--
MR. HODGMAN: --in response to Dr. Lee.
THE COURT: It's unusual though for the FBI not to produce a report.
MR. HODGMAN: Oh, I fully anticipate Mr. Bodziak will prepare a report. We don't have it. So it's--again, his testimony will be in response to what Dr. Lee testified. And again, the scope of that testimony is as yet undefined because we don't even know the results or the opinions or the analysis of Mr. Bodziak at this time. You know, we're entering the labor day weekend, and indeed we will be laboring. There won't be time off for anyone. We're bringing this case to a close. When we get a report--and we will encourage Mr. Bodziak to get his report together as soon as possible--we'll give it to the Defense.
THE COURT: All right. Mr. Scheck.
MR. SCHECK: Well, I must say that Mr. Hodgman apparently is not in touch with these witnesses with his lawyers with respect to the science because there is no report from Dr. Popovich. There's none.
THE COURT: What do you have?
MR. SCHECK: I have notes. That's all he gave me yesterday. If there's a report, Miss Clark, then why don't you turn it over?
MS. CLARK: It has been turned over. Mr. Scheck as usual is uninformed. I'm going to call my office, if I may have leave of the court, to bring it down again. But it has been turned over.
THE COURT: Have it brought down.
MS. CLARK: I'll have it stamped and numbered.
THE COURT: All right. As to Bodziak, it's clear that Bodziak is a shoeprint person who's going to testify in response to Dr. Lee's testimony. Dr. Lee completed his testimony just a few days ago.
MR. SCHECK: Well, they had Dr. Lee's report in July and it's perfectly apparent, and we'll see when Mr. Goldberg can be contacted because apparently he couldn't be contacted within the last two days, as to when these photographs and contact prints were first turned over to him.
THE COURT: Different issue.
MR. SCHECK: Well, related issue.
THE COURT: Different issue.
MR. SCHECK: If he's--if Bodziak is preparing all of this, then it seems to me that there's an awful good idea as to the substance of what, if anything, he's going to say and what he will say about whether imprints exist or not.
THE COURT: All right.
MR. SCHECK: They should know. There should be something. And to say, "Well, it's vague and undefined. We have no idea what he's going to say and we can't make any offers and we can't tell you and we don't know what he's going to say, but all we can tell you, he's testifying," is the kind of stuff that guarantees that this trial is going to be unnecessarily extended and they're holding back.
THE COURT: All right. Next issue.
MR. SCHECK: They have said they still don't know whether Dr. De forest is going to be a witness or not and they still haven't turned over to us the photomicrographs that Dr. De forest took with respect to the sock.
THE COURT: All right. Mr. Hodgman, what about the photomicrographs of the sock by Dr. De forest?
MR. HODGMAN: Yes, your Honor. We indicated we were going to submit those to the count under 1054.7. I have a package prepared to the--for the court, and a cover letter was being attached to the package, and that will be submitted this morning.
THE COURT: All right. Then we'll hold the 1054.7 hearing at 2:00 P.M.
MR. HODGMAN: Very well.
THE COURT: Mr. Scheck.
MR. SCHECK: And finally, they have told us nothing about whether or not they intend to call a witness on the EDTA issue. And it seems to me that whether they're going to call such a witness and if there's notes, experiments, data of some kind, it's something that should be known to the People at this late date and there's--you know, if they're going to dump all of this on us the day after we rest without even the labor day weekend to try to find experts to deal with all of this, which is exactly what's occurring here, it seems to me that that is intentional, it's intended to delay the trial, put us in an impossible position because the more you delay turning over this kind of discovery and that puts the Defense in the position of being the ones that are delaying this case from getting to the jury, and it seems to me that it's an unfair tactic.
THE COURT: All right. Mr. Hodgman, any determinations regarding EDTA witnesses?
MR. HODGMAN: No. Not as of yet. I mean, it's under consideration. I have nothing to report to the court. If the court under 1054.7 would like a private report of what's going on, I would be happy to submit that at the court's convenience. We may or may not call EDTA witnesses. That's still being determined.
THE COURT: All right. 2 o'clock. Madam Clerk, would you make sure we have a court reporter available 2 o'clock? Miss Moxham, you're available? All right. The 1054.7 on the photos of the gloves and the videotape, we'll do that at 2 o'clock as well. We'll just do all of these at 2 o'clock. All right. Mr. Uelmen.
MR. UELMEN: Thank you. As your Honor is aware, the Defense first raised issues with respect to the suppression of evidence seized at the Rockingham residence in the preliminary hearing. We renewed that motion in the--in this court prior to trial. And as a result of the newly discovered evidence, which just came into the possession of the Defense essentially two weeks ago, we believe we have very credible and important new evidence that must be considered by the court with respect to the ruling on the suppression issues.
THE COURT: When do you anticipate being able to present that?
MR. UELMEN: Well, the evidence essentially is contained in our offer of proof and, your Honor, of course, has considered that offer of proof only in the context of the presentation of that evidence to a jury and the 352 implications of that. Of course, there are no 352 implications in the context of a suppression hearing. We believe that the court should reopen the suppression issue, it should consider all of the evidence contained in the Fuhrman tapes and it should give us an opportunity to confront and cross-examine Detective Fuhrman with this newly discovered evidence so the court can make an informed judgment with respect to his credibility.
THE COURT: When do you anticipate being able to submit your points and authorities in writing with specific references to which parts of the tapes and transcripts you wish to consider as newly discovered evidence? When do you anticipate being able to do that?
MR. UELMEN: I'm sure we could do that by Tuesday morning, your Honor. We also believe the recently made available evidence with respect to the contact prints may be highly relevant to determining the credibility of Detective Fuhrman on these issues. What we have filed today addresses the propriety of the court hearing a motion in the midst of trial on the basis of newly discovered evidence and a declaration establishing that indeed this evidence is newly discovered, was not available to the Defense prior to the release of the Fuhrman tapes.
THE COURT: Well, let's assume that you'll probably prevail on that point.
MR. UELMEN: Well, then I think the court has to revisit not only the offer contained in our offer of proof, but the tapes as a whole in terms of the light that they shed on the credibility of Detective Fuhrman with respect to the manufacturing of probable cause. Here we're talking about his believability in terms of all of the circumstances leading up to the decision to go over the wall and enter Mr. Simpson's premises. That was a very close issue both at the preliminary hearing and I believe in the motion that was renewed in this court, and we believe that this newly discovered evidence is of such weight that the court will be compelled to come to a different conclusion with respect to the credibility of the explanation of the reason that the officers entered the premises and will be required to suppress all of the evidence found as a result.
THE COURT: And you anticipate recalling Detective Fuhrman--
MR. UELMEN: Yes, your Honor.
THE COURT: --for that purpose?
MR. UELMEN: Yes.
THE COURT: All right. Mr. Hodgman, Miss Clark.
MR. UELMEN: We'll be ready to proceed on that Tuesday morning.
THE COURT: Any response to the Defense request to reopen based upon 1538.5--excuse me--newly discovered evidence?
MS. CLARK: I would just urge the Defense to file their motion, but I would remind the court that--I'd like to see what the Defense has to argue in this regard. I would remind the court that the testimony regarding probable cause was elicited from Detective Vannatter and I believe Detective Lange as well in numerous motions, but Detective Fuhrman's testimony was cumulative to theirs. So how the tapes may impact on his credibility, it--I frankly fail to see how that's going to have any impact on the ultimate determination of probable cause, but if the Defense thinks they have an argument to make, of course, they'll make it and we'll--
THE COURT: Well, you'll concede though that the Fuhrman tapes are newly discovered.
MS. CLARK: I will concede that.
THE COURT: Subsequent to the 1538.5 both at the preliminary hearing and in the superior court?
MS. CLARK: Yes, your Honor. Yeah. There's no dispute about that. Whether they'll relevant or whether they have any impact on the determination of probable cause is another matter, but they are newly discovered.
THE COURT: All right. So I think the Defense is entitled to make the motion.
MS. CLARK: Yes.
THE COURT: All right.
MS. CLARK: I agree.
THE COURT: Okay.
MR. SCHECK: Your Honor--
THE COURT: All right. Just for scheduling purposes then, Dean Uelmen, you'll probably have that filed by Tuesday?
MR. UELMEN: Yes, your Honor.
MS. CLARK: I'm going to need time to examine it and respond, your Honor. Obviously, if they file it Tuesday morning, I'm not going to be able to respond Tuesday morning.
THE COURT: I understand. When they file it, you can take a look at it, see how much time you need to respond. But since the issues have already been framed and since we have significant testimony already in the record and that the subsequent hearing would likely involve the recalling of Detective Fuhrman--I mean it's a pretty precise issue since the newly discovered evidence deals only with Detective Fuhrman.
MS. CLARK: Well, we would urge the court to urge the Defense to give us some points and authorities as to why they feel they would need to recall Detective Fuhrman for that purpose. They have the tapes. On what--no, I'm serious, your Honor. To the extent that have impeaching material on them, they are 10 years prior to the events of the night of June the 12th, 1994. So--
THE COURT: Well, let's not--Miss Clark, let's not argue the merits of it now.
MS. CLARK: I'm not even attempting to. I just don't know why we have to elicit further testimony from him.
THE COURT: Well, I mean it might be interesting to know if some--if there's a factual basis for some of those matters.
MR. UELMEN: The motion--
MS. CLARK: Excuse me.
MR. UELMEN: I'm sorry. The motion was filed this morning. The only thing we still need to file at your Honor's request is a specific identification of portions of the Fuhrman tapes that we believe are relevant to this determination. We believe we're entitled to reopen the motion and re-examine Detective Fuhrman prior to calling and cross-examining him as a witness at the trial. So we'd like to proceed with that as expeditiously as possible so we can then proceed to concluding our case for the trial.
THE COURT: All right. Mr. Uelmen, let me direct you then to fax to the Prosecution and to the court any additional--any supplemental memorandum points and authorities if you work on it over the weekend, and so hopefully we can get this up and running because I'm concerned that our jury is sitting here again.
MR. UELMEN: Yes. We are too.
THE COURT: All right.
MR. SCHECK: Your Honor, just for the record, yesterday I was provided DNA discovery pages 9679 through 9688, which are entitled "Personal notes of Brad Popovich regarding People of California versus Orenthal James Simpson," which are really nothing more than recitations of his visits to three different laboratories. There is no report.
MS. CLARK: If there is no report, then how can we turn it over?
MR. SCHECK: Well, I don't know why--if she's seen a report as she just said and Mr. Hodgman said, where is it? I'm not ill-informed.
THE COURT: Miss Clark.
MS. CLARK: Your Honor, you know, I guess reasonable minds can differ about what is a report. This, you know, looked like a report to me. Details what he saw and what he did at the laboratories and we've turned it over. We have given them everything we have. You know, what else can we do, your Honor? We give discovery when we get it. If we have notes, we have reports, we turn them over. We have nothing more than what we've given them. I don't know what else we can be required to do.
MR. SCHECK: I don't know how anybody can look at a document that says "Personal notes" and turn around and say--
THE COURT: Well, counsel, if that's all they have and that's what Dr. Popovich calls a report, that's a report.
MR. SCHECK: No. No. No. These are called--this is what Dr. Popovich in his own writing calls personal notes. It is not a report. If there is a report or there's going to be a report or there should be a report and she's indicating she saw a report--
THE COURT: She's saying this is the report.
MS. CLARK: This is what I saw.
MR. SCHECK: This is--these are notes. They're entitled "Notes." There is no report.
MS. CLARK: Fine. Let's talk all day about what's a note, what's a report. We've turned over what we have. That's the bottom line.
THE COURT: All right. Thank you. Thank you. Mr. Bailey.
MR. BAILEY: If it please the court, mindful as we are of the fact that the jury needs to conclude this case, we brought into town on Tuesday to have them at their ready two witnesses from the other side of the country relating to Mr. Fuhrman. The names have been listed. The notes of their interviews were turned over a long, long time ago. They are Natalie Singer. Natalie Singer in 1987 suffered a kidney stone attack, was taken to the hospital. While there, her roommate met two officers in the emergency room, Mark Fuhrman and Tom Vettraino, his then partner. Miss Hannak, the roommate, became friendly with Officer Vettraino who used to visit the apartment of Hannak and Singer with Mark Fuhrman. On the very first visit with Miss Singer present in the room--it is a very small apartment or was--Mark Fuhrman regaled his audience with tales of how he liked to take niggers into the alley and hit them with a baton and practice his kicks upon them until they twitched and how it relieved his tensions to have such an experience. He visited one or two more times to the disgust of this witness. And finally, on a third or fourth occasion, she was looking out her bathroom window when the pair arrived on duty, uniformed, but, of course, taking a little time off to socialize. As they started up the sidewalk, she yelled out the window, "Hello, Tom." Officer Fuhrman responded in vintage Fuhrman, "That fucking bitch," at which point, principally because of his revolting racial conduct, she ordered him never to come in the apartment again. He went back to the cruiser. Vettraino came in and visited. Vettraino was a witness to each of Fuhrman's utterances that I have described. This occurred in the fall of 1987. In late 1986, Mark Fuhrman made the acquaintance--I use that word sparingly--of Roderic Hodge, recently released from active duty in the Marine Corps, a member of the reserve, who was earning his room and board by supervising a certain small apartment building within Fuhrman's territory. Fuhrman had expressed an interest in Hodge's brother-in-law, Juan Sykes by name now deceased, and was querying Hodge on a regular basis as to whether he and Sykes were involved in some elicit activity. On January 10th, 1987, Hodge came out of a passageway in the building that he supervised and knocked down someone that he didn't recognize. The following day, officers came to arrest him, and Officer Fuhrman and Vettraino took him downtown in the cruiser. Vettraino was driving. Fuhrman was in the front seat. Officer Fuhrman turned around and said to Hodge, "I told you I'd get you, Nigger." He then learned and commented unfavorably on the fact that Mr. Hodge's mother is white and that the couple is racially mixed. At the police station, he told Mr. Hodge to undress and bend over, and while looking at his backside said, "You do all look alike, don't you?" Hodge was then prosecuted, not on the charge of assaulting Mark Fuhrman for which he was arrested, but on some kind of conspiracy charge having to do with drugs. He and his codefendant, I believe a man named earl gray, were tried in the superior court in West Los Angeles in Santa Monica and acquitted. Those are the two witnesses that we have available. Now, you had indicated earlier and I took a moment to reaffirm your Honor's ruling made many months ago that in order to cross-examine Mark Fuhrman on incidents such as this--and this ruling arose from the Cordoba confusion, as you remember--that it would be necessary that the witnesses testify and that you have some assurance that they would say what the offer of proof said that they would say.
And I believe it appropriate to put them on as well as Angela Terry and Kathleen Bell, Kathleen Bell having been introduced into this case by the Prosecution for the purpose of showing that she lied about even knowing Fuhrman and, therefore, a witness who I assume is not only permissible, but essential at this point. We will prove that she knew him far too well. They are scheduled for Tuesday first up once you have whatever legal matters are necessary out of the way. The remaining two witnesses are Fuhrman's partner Vettraino. We obviously have a foundation to ask him whether or not he was present at the several incidents I've described because the witnesses by that point will have said so and then he can decide how he will respond to whether or not he heard these words. And finally we have Dr. Goulston employed by the Prosecution apparently to condition and we think possibly medicate Mark Fuhrman for his performance on that stand who sat here when I pointed to him and asked Fuhrman if he knew him, he said he didn't, and the Prosecutor sat silent, knowing full well that he was a member of their team. Those are the people that we have in addition to Kathleen Bell and Angela Terry that we would like to put on. We are prepared to put Miss Singer and Mr. Hodge on this morning so that we don't waste the morning. Thank you.
MR. DARDEN: You know, I think we're way beyond the point of what is ridiculous, but let me say this. The court ruled earlier that neither Hodge nor Singer would be allowed to testify in these proceedings unless and until the court had the opportunity to hear from Kathleen Bell and Angela Terry. There's a 352 issue as to Hodge and Singer. Cheri Lewis filed a motion with the court and argued that issue to the court, and the court issued its ruling. I don't know why they have Hodge and Terry here today. The court has not indicated that they will be allowed to testify in this proceeding. I haven't read the file completely on Hodge and Terry. However--
THE COURT: Hodge and Singer.
MR. DARDEN: I'm sorry. Hodge and Singer. But in the event they do call Mr. Hodge at some point, then we'll have another little mini trial in this case, the mini trial of Mr. Hodge. At any point or any event, I'm not ready for that. The court shouldn't allow them to attempt to force us into hearing testimony from these two witnesses today. I will say this. Some of what I hear today from Mr. Bailey, I have never heard or read before. I think there may be a discovery issue on some of what Mr. Bailey said. At any event, we're not ready to go forward on Singer and Hodge. We have had no indication from the court that they'll be allowed to testify. I don't know why the Defense doesn't have witnesses here today, witnesses who are on the witness list and who have been approved by the court already as witnesses who have relevant and probative testimony to offer this jury. And what's going on here today? Are we going to allow the jury to sit another day and then three days over the weekend?
THE COURT: No. We might work tomorrow.
MR. DARDEN: We should work tomorrow. We should work tonight. Let's get this thing on, Judge. If they want to call Andrea Terry or Kathleen Bell, they did not indicate that they would call them today. But I will prepare to cross-examine those witnesses, myself and Miss Clark. We will get ready this morning if they'd like. But Singer and Hodge, they should be off limits as they have been.
THE COURT: Mr. Bailey.
MR. BAILEY: If it please the court, I also called Mr. Taylor Daniel who is inscripting or enrolling his daughter in college in Michigan. He had planned to spend the week there on Tuesday and said so as not to delay the court--we did not anticipate you would be two days making your ruling--that we needed to have him here with Miss Bell. Now, we have never spoken to Miss Bell and I don't think they have either. She's willing to testify and that's it. He came all the way back the following morning anticipating that he would be here with his client. When we found out the ruling would come down Friday morning, we anticipated the morning would be spent putting in the evidence that you would permit as to Laura hart McKinny. We didn't learn till last night that that would be much truncated. I had already committed to Mr. Taylor Daniel down in Torrance that he would be the first witness Monday, because I thought we could get rid of the two witnesses who are now asked to sit here the whole labor day weekend because Mr. Darden isn't ready. Mr. Darden is able to get ready quickly. He's known all about these people. These are the last witnesses in the case. And if he's not ready to confront them when they finish testifying, I recommend that he sit down because he knows, as the jury never will, that they're telling the absolute truth. I would like to put them on today and not put them up over the weekend. They would like to go home and the jury would like to hear some evidence.
MR. DARDEN: Your Honor, Mr. Bailey scheduled witnesses in derogation of the court's own order. We had no duty to be ready on these witnesses, no responsibility whatsoever and we are not. And I'm sorry that that upsets Mr. Bailey. I'm sorry that he is upset with the court's ruling, but it's been three days now--
THE COURT: Excuse me. When will Kathleen Bell be available?
MR. BAILEY: By Tuesday morning.
MR. DARDEN: Why not Saturday morning?
MR. BAILEY: I might be able to get her here tomorrow, but I thought if we got to anyone today, I held them specifically that in the unlikelihood that you would be able to hear them today because we would be tied up with other matters on the chance they could go home, Miss Singer and Mr. Hodge. In addition, your Honor, Mr. Hodge is here with his lawyer who's been here since Wednesday, and we're bearing those expenses as we must. Now, to say that families can't spend the labor day weekend together because Mr. Darden isn't ready to cross-examine is pretty poor response with me.
MR. DARDEN: We know we're missing cartoons tomorrow. We can work through the day. No big deal, your Honor. We can move along.
THE COURT: All right. What else do you have besides Hodge and Singer available today? How about Miss McKinny?
MR. COCHRAN: Your Honor, the other matter--we have one other motion we'd like to address the court on, which may be relevant at this point.
THE COURT: All right.
MR. COCHRAN: This is the so-called Brady motion that I told the court earlier this week I'd be filing, and I think this matter deserves this court's very, very serious consideration, and it's a very serious motion and we take it seriously. And specifically what I'd like the court to be aware of is the declaration of a Deputy District Attorney by the name of Lucienne Coleman. In this declaration, she spells out in detail conversations with Shawn Snider Chapman of my office what we think--
THE COURT: My recollection is that during one of our--I don't recollect if it was a 1054.7 or a pitchess--I think it was a pitchess motion. My recollection is that I ordered the disclosure of a statement that Miss Coleman gave; is that correct?
MR. COCHRAN: Yes, you did, your Honor, a redacted statement that addresses--and I'd like to talk about that. The statement we got does not comport with what she says the facts are, and it's very, very serious. And so if the court will allow me, I would like to spell this out. This is a matter in which Miss Coleman is on a day off today. She is standing by the phone and is available should you want her to testify today. She has been a Deputy District for some 16 years, and I might indicate that I was the assistant D.A. when she was hired, and I've known her for a very long time. It has nothing to do with what she's done in this case however. She--on July 19, 1994, she was working in complaints, and at that time, she had a conversation with LAPD homicide Detective Andy Purdy here in this building. And Purdy was there to file a case. At that time, the story had first surfaced about the possibility of Fuhrman planting the glove at Rockingham. And she indicated to Purdy at that time and commented how ridiculous she thought that thought was. Purdy responded these allegations were not ridiculous at all and that he wouldn't put any such thing past Fuhrman.
He then went on to tell Lucienne Coleman about his experiences in working with Fuhrman at West L.A. Station, your Honor. At that time, Purdy had recently married a Jewish woman and he returned from apparently his honeymoon or whatever, and it was his contention that Fuhrman had painted Purdy's locker with swastikas. And during this conversation, Purdy, Miss Coleman and another D.A. by the name of Julie Sergojan walked up and they heard many of the things that Purdy was saying about Fuhrman. Later on and in July of 1994, Deputy D.A. Ellen Burke told Lucienne Coleman about a black officer who had heard Fuhrman at a picnic or a barbecue talking about and discussing his relationship with Nicole Simpson, quote, that her, quote, unquote, boob job had looked real great. Burke did not tell the name of the black officer at the time, but Miss Coleman later confirmed that it was an officer named Maxwell. So these names may become relevant to you when you think about what you saw. And then continuing on, a day or two later, an LAPD detective by the name of Mark Arneson--this is in July of 1994, your Honor--came to file a case before Lucienne Coleman. The topic, as usual, then turned to Simpson. And Arneson--
MR. HODGMAN: Excuse me, Mr. Cochran. Your Honor, I'd point out for the court at this point in time, Mr. Cochran is reading apparently for the benefit of the public what is contained in a declaration filed under seal to the court. Has the court had an opportunity to review this declaration?
THE COURT: No.
MR. HODGMAN: Nor have we.
THE COURT: I took the bench before--
MR. COCHRAN: Two things. First of all, it's not filed under seal and I'm not reading it. I'm using the references to speak out to the facts as I understand it. As usual, your Honor, they want to cut off everything that relates to them. This is a very important motion. I have a right to spell this out to the court. It's very serious and it bears upon our ability to go forward at this point.
THE COURT: Proceed.
MR. COCHRAN: Thank you, your Honor. So as I indicated to the court, Arneson said that he already knew about the boob job comment and that he had talked to two other officers and said they had heard Fuhrman make such statements about Nicole's breasts as well. Arneson did not say who these two officers were.
Then in the first two weeks of August of 1994, this Deputy D.A., Lucienne Coleman, went to see Marcia Clark and Bill Hodgman as she was troubled about the information that she had heard. Miss Clark she says had been a friend of hers for many years and they had been friends. And she found Clark and Hodgman in Clark's office and told them what she had heard, what I just indicated to the court. By then, she had also heard that Fuhrman walked around on weekends wearing nazi paraphernalia. When she told Clark and Hodgman what she knew, Clark stated, "This is `BS'" in no uncertain terms. Hodgman suggested the office should look into these allegations. Clark said, "This is just `BS' being put out by the Defense." Coleman then indicated that she hadn't heard any of these allegations from the Defense, but rather from LAPD officers and she suggested that the L.A. County District Attorney's office look into these allegations. Now, your Honor, it's important as I go through this, this was in the first two weeks of August of 1994. She then spoke with Clark and Hodgman about matters unrelated to Detective Fuhrman, and thereafter, she suggested that--
THE COURT: Mr. Cochran, excuse me for interrupting you, but refresh my recollection as to when it was those matters were--those--Miss Coleman, Miss Burke, Miss Sergojan, Detective Maxwell, Detective Purdy--my recollection is that the court ordered the disclosure of those reports to you with those names. But just refresh my recollection as to when that occurred.
MR. COCHRAN: As I recall, your Honor, and I don't have the exact date, Mr. Hodgman came down and indicated that he had a matter to discuss with the court. This was brought to the court's attention at some point. It started off by him saying he didn't think this had any basis in fact, but it was much, much later. It was this year. But it was in maybe February or March of this year, and we can find out and let you know.
THE COURT: Okay.
MR. COCHRAN: What we got, your Honor, is a redacted version. And you'll see when I tie this in, the version we got certainly speaks a cover up or something because what we got, you couldn't tell anything from this. And so that's the point I want to point out. And let me continue on if I might, your Honor. This--so Marcia Clark continues on, "This is `BS,'" says that over and over again. And then it goes on and says, "I again suggest to the D.A.'s office look into these allegations because the Defense would one day learn of the information and questions might be asked about why it had not been revealed to the D.A.'s--by the D.A.'s office sooner." This is what this witness is prepared to testify as an honest Deputy District Attorney. She said--and this is what she quotes her former friend Marcia Clark as saying. She then angrily stated, Clark said she was tired of other D.A.'s trying to get involved in her case for their own self aggrandizement, and she went on to say that she had no interest in this case other than doing the right thing and understanding what Brady mentioned. She also mentioned that she thought the information might prove false and they should really check it out. Later on, she saw Detective Arneson in the hall and asked him if the Defense knew about the allegations against Fuhrman. Of course, he said, well, perhaps they do because of Pavelic. And there's another Deputy D.A., Jeannette Bernstein, who was present during that conversation.
On August 24th, 1994, your Honor, another key date, this Deputy D.A. received a call, an irate call from Officer Purdy. Purdy wanted to know if she had contacted the media about what he had told her. She told him he hadn't. Purdy wanted to know why she had informed Clark and Hodgman about their conversation. He was upset and he told her at that time that he would deny having told her anything about Fuhrman and that he would lie about the whole thing. "And I told Purdy if ever I had to testify, I would tell the truth, and he said he would lie." And she's in fact doing that now. On August 25th, 1994, your Honor, after that, Purdy left a message for her to call him back. When she did, Purdy told me that his, quote, unquote, "Story" was going to be that Fuhrman was only suspected of having left the swastikas in his locker, that it was never proven. She reminded him that it was not what he had told her in July. Purdy indicated that that was going to be his story now. Purdy also said that he kept a log. And this is a key thing. Purdy told Juliann--Lucienne Coleman that he had kept a log of all incidents involving Fuhrman when they both worked in West Los Angeles Station, but that he had destroyed the log that morning at 3 o'clock A.M. so that he would not have to turn it over to the Prosecution. And that becomes a very key matter because Purdy, of course, remembers what's in that log even if he did destroy it. On February 13th, 1995, Lucienne Coleman spoke to Bill Hodgman by telephone, and Hodgman told her that he had heard from two Deputy D.A.'s in the branch and area offices that they had some negative information about Fuhrman. And this is in February now. Keep in mind, this all occurred in July and August earlier. She then had to remind Bill Hodgman of the conversation she had had with Clark and he back in August. Hodgman claimed to have had no recollection of her ever discussing Fuhrman during that conversation. And she reminded Mr. Hodgman of the information that she had given back in August. He wanted names of the officers who had given her the information and said he needed to check with the officers--and she said she needed to check the officers first before she gave out their names. My recollection is that she called Purdy and told him she was going to give Hodgman his name. Purdy indicated he would tell Hodgman "The story" he had mentioned in his prior conversation, not what he told her originally.
She then proceeded to call Hodgman and gave him Purdy's name. She also told Hodgman about Purdy's log. And I don't think we ever saw anything about this log ever in any of the documents, and you'll have to search your memory as to what you were told in the conversation or what you got the records from IA. She relayed the conversation she had had with Detective Arneson and gave Hodgman the names of Sergojan and Burke as D.A.'s who had also heard some portions of these conversations. Hodgman and she had three or four conversations that night, and that's in February of 1995. Hodgman said that Detective Lange would be conducting the investigation into these allegations. Later, Hodgman said that internal affairs would be conducting the investigation. She called Burke and Sergojan to tell them that she had given Hodgman their names and that internal affairs would be contacting them shortly. On February 14th, your Honor, 1995, while she was on vacation, she got a call from Purdy at home, and Purdy said that he had destroyed the logs again and that he would not testify against the Prosecution no matter what. Purdy said that the LAPD was protecting Mark Fuhrman because it felt that the Defense was using Fuhrman as a scapegoat. Purdy said that he could lose his job for speaking out against Fuhrman in view of the fact that the LAPD and she quotes, "Was circling the wagons," end quote. On February 15th, she was in fact interviewed by internal affairs, and I think that will probably be the date you will find if you look back. She indicates this interview was more like a--was more than an interview. It was more like an interrogation because of the hostile tone of the questioning and the type of questioning from these so-called investigators from IA. She said she was asked questions, "Isn't it true that you think O.J. Simpson is innocent and you want to have him acquitted? And did anyone besides your husband ever hear your telephone conversations with Officer Purdy?" On February 16th to February 24th, this Deputy D.A. requested of her office a copy of the tape of her interview with internal affairs. On February 24th, Mr. Hodgman indicated to her that a tape might available for her that day. Later that day, Mr. Hodgman came to her and informed her that he had discussed the matter with assistant D.A. Frank Sundstedt and that it had been decided that no copies of the tape should be released while the case was pending, while this case was pending because the tape might be Brady material and would then have to be turned over to the Defense.
Hodgman further indicated that it had also been decided that the tape should only be turned over as part of a pitchess motion by the Defense and would therefore not be given to me at that time. She still to this date does not have that tape and has told me that their office will not ask for the tape until the Simpson case is over. "I told the officers"--she goes on to say to internal affairs--"Everything I had been told, including the fact that Purdy had kept logs and had told me that he had destroyed them as he would never testify against the Prosecution." Internal affairs asked her if she thought Purdy had destroyed evidence. I said that I thought that Purdy would do anything to avoid testifying in this case and further that Purdy had specifically told her he did not want to testify under any circumstances. This lady came to our office the other day. I didn't want to put her in a compromising position. I didn't issue a subpoena for her. She gave us this declaration. I asked her not not to sign it, but to verify that it was true because she was told, has been told by one of her supervisors that the D.A.'s office wants to go slow on this and that if she believes that if she signs this and she has to appear in this court--let me quote. During the course of her conversation just last night with Shawn Chapman, she's been told, that at least one of her supervisors told her to go slow on this matter, and it's her feeling that if she signs this declaration, appears in this court, it will adversely affect her status of a Deputy District Attorney. However, she said she's willing to make that sacrifice because what they've done is wrong. It's from one of their own people. The court needs to take this and look back at what you gave us. The redacted version we have bears no semblance of this. We are entitled to this information. We should have had it back in July and August. We should have had it in February. What we got is a travesty. If you look at what we got, it doesn't make any sense at all and we need this before we can go forward with Fuhrman. They can talk all they want about witnesses and moving ahead. We have an absolute right in defending our client to have this information. This supposedly is a search for truth. I have my doubts, but I have to do everything I can for my client in this instance. And when these kinds of things happen, we have to demand an investigation.
It doesn't matter to me if we work on Saturday, Sunday, holidays or whatever. We do that anyway, your Honor. That doesn't matter. But the point is, we need to have these matters resolved before we can go forward and effectively represent our client. And I mentioned in court the other day that we were going to ask your Honor to provide us with the questions asked of the D.A.'s in camera regarding the meeting where Detective Fuhrman was prepared because we think that now with the additional information, we think it's entirely relevant. The court may not have known the appropriate questions to ask. All we're trying to do, your Honor, is have a level playing field here and to be able to get this information before the jury. Because I don't hardly have to point out to this court, this is a jury trial. This is not a court trial. The jurors will decide the evidence in this case. And we have a right in representing Mr. Simpson, it's a fundamental constitutional right to have this information under Brady. And you've seen other examples such as those photographs where we have possible exculpatory evidence. We want it. We have a right to have that before we go forward in this critical part of our case at the very end. And now we have somebody from their own office. And there are other D.A.'s who I think will also back her up. She's a very credible person who puts her job on the line in the interest of telling the truth and being honest in this matter, and we find out that there's been an attempt to cover it up. So--that's the only one way to put it. We need a hearing on this. They can take as much time as they want. She's on call. She can come down here today if they want. What I indicated to you she will say on the stand, and we need to resolve this.
THE COURT: All right. Mr. Cochran, just so I understand, the two matters that you find of interest in this discussion with Miss Coleman is the observation by Detective Fuhrman regarding Nicole Brown Simpson's anatomy and, secondly, the racial animosity regarding Jews; is that correct?
MR. COCHRAN: Well, regarding Jews--
THE COURT: Those are the two--
MR. COCHRAN: Well, yes. Well, the swastikas and that sort of thing. But also, your Honor, the log. I think--
THE COURT: And Purdy's log.
MR. COCHRAN: Obviously if there's a log of all his misconduct in West Los Angeles, I'm sure it will track some of the things he's telling Laura McKinny about. We have a right to those things, Judge. I mean I think--
THE COURT: Let me ask a question though. If your recollection is correct that in March, February or March, these names were turned over to you--and my recollection of our discussions in the hearings that I conducted, I recollect Detective Maxwell, Detective Purdy, obviously Miss Coleman, Miss Sergojan, Miss Burke, Detective Arneson, these names coming up. And those names were disclosed to you. And my recollection of the comment about Nicole Brown Simpson's breast enlargement was mentioned in those reports. I don't recollect if there was inquiry about the swastika incident. I don't recollect that, but I recollect something about swastikas. Have you had the opportunity to interview all of these individuals besides Miss Coleman, Miss Sergojan?
MR. COCHRAN: We haven't. Let me put it this way, your Honor. First of all, your Honor, let me say this as respectfully as I can. You might find it hard to believe, but some of us believe there is a conspiracy of silence. Police officers aren't going to talk to us about this case. They don't talk to anybody. There are special rules regarding this case, your Honor. They're not going to talk to us about this case. Deputy D.A.'s, where their job is on the line, it's very hard to talk to them also. This Lucienne Coleman is a very unique person, and there are some very fine Deputy D.A.'s up there who well may do this, who may speak out regarding this. But there's no mention. And the point we have, we had to rely upon your Honor looking at this stuff. And I think there may have been some mention about Nicole Brown Simpson's anatomy. Nothing about these logs. I'm pretty clear about that, as I recall, that we ever got, and we can show you the redacted copy. What we got left--because, let me tell you, in talking to Miss Coleman, the redacted version was something she could hardly recognize. She wants the tape. She says if you get the tape, you will see how IA works. They came at her as though she was the worst person in the world. It was an interrogation where she was made to feel like she was some sort of a traitor in this instance and it's outrageous. That's what's actually happening here. So I mean, I don't think it's fair to put that back on us. We knew about certain things and we're now trying to say to you that if these things are covered up--and there are other things, and I think you have to take this altogether, your Honor. Just with regard to Henry Lee, as Barry Scheck has pointed out, those photographs that all of a sudden have been enhanced, we've been told there's no log and now we find out all these things that Henry Lee looks at the photographs and can tell there are imprints walking in the back. They have exculpatory evidence that they may not even know about. I mean, may be partly inadvertence, partly may be negligence, partly may be hiding it, but we have a right to Mr. Simpson. We cannot go any further without this.
THE COURT: So specifically--let me just--let's just get back to the fundamental what you're asking here for. Specifically what you're asking for then is to make inquiry of Detective Purdy regarding this log and his recollection; is that correct?
MR. COCHRAN: Yes, we want to do that.
THE COURT: All right. And what else specifically?
MR. COCHRAN: We want--assuming the things that Miss Coleman has indicated, we want to look at--
THE COURT: Because the interesting--I mean, the evidence that would be of interest to you and your client would be observations, direct observations by another LAPD officer, supposedly Purdy or Maxwell, regarding relevant misconduct or racial animosity by Detective Fuhrman, correct?
MR. COCHRAN: Absolutely.
THE COURT: All right.
MR. COCHRAN: And especially--and it also becomes very relevant if the Prosecution knew about this early on because they embraced this witness. And so we have--that's a pretty good starting point. Purdy, Coleman if necessary. We have her declaration.
THE COURT: Well, Coleman is interesting only because she's the hearsay source for, you know, "Somebody told me that Fuhrman said this."
MR. COCHRAN: Right. Or Fuhrman did this--
THE COURT: She directs the inquiry, but she's not firsthand.
MR. COCHRAN: See, Judge, the problem is, if you recall--and I'll try to provide this for you. What we get from you is a little redacted thing. Everything's all cut out, you know. And so you may want to go back yourself and take a look at this. We want though Purdy, Maxwell, Arneson, we want all those people under oath. That's what we want. We want them under oath. We're not going to trust what they tell us. We're not going to trust them. We want them under oath. And we think we have a right to do that, and that's why I'm bringing this motion up now. You know the witnesses. I've been telling you for the last week and a half the witnesses I have at the end. But we have--and so there's no secret about that. But in view of your Honor's ruling and what you've cut out of what we're able to do, we have to--we cannot go forward until we pursue these thing. And it's very important to do that. So it doesn't matter. We don't mind working every day. If you want to have a hearing and have these officers here tomorrow, we'll be here. You want to have it tonight, we'll be here. You want to have it Sunday morning after I go to church, we'll be here. But the question is, let's--let's get it on. But I think we have a right to this. And as soon as we can, I want to take a break because I want to talk to Mr. Mounger also as I indicated to the court. That's another thing we have to deal with, your Honor.
THE COURT: All right. Mr. Hodgman.
MR. HODGMAN: Your Honor, I have to confess I'm a might perplexed by the Defense bringing a motion at this particular time. As the court will recall, in February of this year, I brought these matters to the attention of the court. The court reviewed in camera a variety of material. I'm not sure what material, but presumably statements of the witnesses involved and various tapes. The court issued an order on March the 8th, 1995, directing that these materials be given to the Defense. The Defense had these witnesses' names apparently and is quite obvious. They've interviewed Miss Coleman. They've had Officer Purdy's name, Detective Maxwell and a number of other people's names per the court's order since March of this year, and I don't understand what we're doing here now. I presume that the court will make inquiry of the Defense, have they interviewed Detective Purdy or Officer Purdy, have they interviewed Detective Maxwell.
THE COURT: They indicated no, they have not.
MR. HODGMAN: Well, they raise this now. They indicate they'd like to have a Saturday session in order to pursue these matters. Where have they been with this information for the last five months? I brought it to the attention of the court last February. This information was in the hands of the Defense before Detective Fuhrman even testified. So I ask the court to take this into consideration as they review this motion. But the Defense has had these materials. Apparently they've had tapes, they've had redacted reports that the court provided to them. I don't understand what they're doing here now filing this motion. I can suspect certain things, but I leave that unstated.
THE COURT: All right. Mr. Cochran, would you provide to the court a copy of the reports and witness statements that you received?
MR. COCHRAN: I will. I just asked Mr. Douglas. Apparently it's in my office. I'm going to have it brought down here as soon as I can. He's going to call and get it down. Let me just respond briefly to Mr. Hodgman's question. First of all, I think you'll find--and I don't recall ever seeing anything about this log until Miss Coleman told us about the log kept of Fuhrman's activities. Also, your Honor, as Lucienne Coleman will tell you--
THE COURT: I have to tell you, you know, that's why I asked if you would produce those materials, because my recollection of reading those materials was that the log was mentioned and that Purdy's desire not to get dragged into this case was apparent from the statement of Miss Coleman. But be that as it--let me see what's there, and then we'll take it from that point.
MR. COCHRAN: Let's do that. The other thing I just want to point out to the court, I mean, it's the height of naiveté to stand here and say that--we've been told Purdy is going to lie. He tells the D.A. he's going to lie, Deputy D.A. Lucienne Coleman--he's really going to tell us the truth. The question is, if he's going to lie, you know, we need him under oath. We've seen other--we know that Fuhrman has lied. And we need him under oath. This whole thing has brought out the worst in these people and we need to get them under oath and see. That's all we're saying. And so we can't be held to that standard. I mean, we know about these people. Are we going to go over to the station and talk to Arneson? They'd stonewall IA and IA takes this hostile tone toward this one witness who is trying to tell the truth and says gets this stuff out. It may not be true. That's the point.
THE COURT: Give me the stuff.
MR. COCHRAN: I'll get it for you. Certainly.
THE COURT: All right. Well, I think that wraps it up at this point as far as all your comments. All right. I think the thing we need to address first is whether or not we're going to have any testimony this morning. The court's previous ruling regarding Kathleen Bell was that her testimony was relevant for this reason. We have a unique situation where Detective Fuhrman met Mr. Simpson and Nicole Brown Simpson in 1985, that Mr. Fuhrman is again in contact indirectly with the Defendant in 1989 at the request of the Los Angeles city attorney's office to prepare a statement regarding the 1985 incident. My recollection of that statement that Detective Fuhrman provided to the city attorney's office for use in the domestic violence Prosecution was that it was an incident that was indelibly impressed upon his memory or words to that effect. Then we have the unusual circumstance in 1994 of Detective Fuhrman then being brought to--brought into this case, being called out from his home as a homicide investigator. So we have that unusual circumstance first. We understand that Nicole Brown Simpson was Caucasian and that Mr. Simpson is African American. The offer of proof as to Kathleen Bell was that Detective Fuhrman, in her presence and directly to her, made a statement that was indicative of racial animus, that was indicative of contempt of interracial couples and was indicative of a willingness to harass and unlawfully detain interracial couples because of that fact. And I indicated at that time that I felt that that was a sufficient unusual and unique combination of events to make Kathleen Bell's testimony relevant. Subsequent to that finding, Detective Fuhrman testified that he did not in fact refer to African Americans in a--with a particular racial epitaph, and it appears that the offer of proof regarding Mr. Hodge does indicate that he was arrested by Mr. Fuhrman, that Mr. Fuhrman referred to him in a racially disparaging way and made two comments to him that are disparaging in nature and using the particular racial epitaph in question. So that would appear to be direct impeachment evidence of Detective Fuhrman. So I think there's an independent basis, a basis independent of Miss Bell, the issue being, are you available--are you ready to cross-examine Mr. Hodge.
MR. DARDEN: I've never gotten the discovery to cross-examine Mr. Hodge on this issue. I'm hearing about this stuff for the first time.
THE COURT: Is there a statement?
MR. BAILEY: Investigators' notes are the only thing that was ever taken down. They were turned over other than the attorney interview. That's it.
MR. DARDEN: Not only am I not being allowed an opportunity to prepare to cross-examine this witness--
THE COURT: Wait. Do you have--did you have the name and address of Mr. Hodge?
MR. DARDEN: Do I have a name and address for Mr. Hodge? Yes, in Chicago, some place in Illinois.
THE COURT: Did you make any effort to interview Mr. Hodge?
MR. DARDEN: No, I did not. Mr. Hodge--I'm sorry.
THE COURT: My recollection is that Mr. Hodge, his name came up in our discussions back in January if I recollect correctly.
MR. DARDEN: I think his name came up in April frankly and he was the subject of a 352 motion and hearing filed by the Prosecution and argued by Cheri Lewis. The court said he couldn't testify. So why would I go out and interview him, Judge?
THE COURT: Until Kathleen Bell had testified.
MR. DARDEN: The court thought it might be that there might be a 352 issue, it might be cumulative.
THE COURT: Well, Kathleen Bell hasn't testified and Mr. Hodge has testimony with regards to the--that is directly impeaching.
MR. DARDEN: We are just going to accept Mr. Bailey's--
THE COURT: Well, is Mr. Hodge here?
MR. BAILEY: He is here. So is Miss Singer.
THE COURT: All right. Why don't you make them available to talk to Mr. Darden.
MR. BAILEY: Sure.
MR. DARDEN: So the court's prior ruling is out the door, I don't get to argue it, I don't get to prepare. We just jam the Prosecution and put this man up here and have him testify in front of the jury, Judge?
THE COURT: Well, counsel, if you've known about him for five months and you haven't bothered to interview him, that's a problem, I agree.
MR. DARDEN: You said he wasn't going to be a witness.
THE COURT: Until Kathleen Bell had testified. All right. The offer of proof that I've heard here today is that he has direct impeachment testimony. We may not see Kathleen Bell.
MR. DARDEN: So the court--
MR. BAILEY: Is your Honor suggesting that Kathleen Bell wouldn't come to court as I promised you she would?
THE COURT: No. No. I just said we may not see her testify. You may make a tactical decision after certain witnesses are called not to call her. I don't know.
MR. BAILEY: I want you to bet your life on the fact that that decision will not be made.
MR. DARDEN: You know, I would like a 402 on this witness' testimony now. Are we going to do that today? I have two boxes of material on Mr. Hodge. How much time will I get to prepare?
MR. COCHRAN: He said he was ready.
MR. BAILEY: He promised a mini trial. Let's have it.
MR. DARDEN: Yeah, there will be a mini trial.
THE COURT: There are no mini trials. What we'll do is--we've had two requests now for a recess for Mr. Cochran to talk to Mr. Mounger. And, Mr. Bailey, I'm going to direct you to make Mr. Hodge and Miss Singer available to Mr. Darden.
MR. DARDEN: I'm sorry. I didn't mean to interrupt. I apologize. But it's going to be Hodge and Singer as well?
THE COURT: At least Mr. Hodge. All right.
MR. DARDEN: And they're going to testify--
THE COURT: They may well.
MR. DARDEN: --potentially testify today?
THE COURT: Unless you can tell me a good reason why, since you've known about them, that you're not ready.
MR. DARDEN: Because you said they weren't going to be a witness in this case, because you have not ruled that their testimony is admissible, Judge.
THE COURT: That's not what I said.
MR. DARDEN: That's exactly what you said.
THE COURT: All right. Fifteen.
MR. COCHRAN: May we have 20 minutes?
(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. The jury is not present. All right. Mr. Cochran, did you have the opportunity to speak with Mr. Mounger?
MR. COCHRAN: Yes, I did, your Honor. We have--yes. Let me approach the mike. Yes. Thank you for the time. We were able to talk to him over in department 104. Not as much time as we would have liked to have obviously, so we're going to continue our conversation after this is over this evening obviously with Mr. Mounger. But with regard to Mr. Hodge and Miss Singer, they are present and we can proceed now with Mr. Hodge if the court pleases.
THE COURT: All right. I'll hear from Mr. Darden. And, counsel, just so we're straight, I went back and reviewed the record regarding our discussions regarding Hodge and Singer, and that was after the court had made its ruling on Terry and Bell indicating that it was premature to make a ruling as to Hodge and Singer because the objection was also 352, cumulative, and that the court would not be in a position to make a ruling on that until--unless and until I heard the testimony of Bell and Terry. So that's where we are.
MR. DARDEN: Okay. And so that's where I am as well, your Honor, having no indication, no firm indication that these witnesses would be allowed to testify.
THE COURT: Have you had the opportunity to interview Mr. Hodge and Miss Singer?
MR. DARDEN: Mr. Hodge refuses to speak with us. He is here represented by counsel from Illinois as I understand it, whom I have not met as well. I did not get a chance to speak to Miss Singer. I was attempting to gather my documents in this regard. We have a problem with Hodge, a discovery problem that we would like to take up with the court. Also, we have a foundational matter as I think--and as I said before, I'd like a 402--
THE COURT: All right. What's the nature of the discovery?
MR. DARDEN: The Prosecution filed its 352 motion on July 14, 1995 as it related to Mr. Hodge, and we included in that motion a copy of the discovery we were given as it related to roger Hodge. Nowhere in that discovery from what I can discern--I should mention that these are handwritten notes. They are difficult--somewhat difficult to read. I only have a Xerox copy. There are portions that were cut off or cut off during the Xeroxing and I complained about this on more than one occasion to the court and on the record. At any event, nowhere in this discovery is there any mention that Detective Fuhrman, while transporting this man to the police station, turned to him and mentioned any racial epitaph. And this is a document or report I assume was prepared by either Mr. Bailey himself or a Defense investigator. And so we are surprised today to hear of this additional allegation.
THE COURT: My recollection though is that in our discussion back in March of 1995, that Mr. Bailey did in fact make an offer of proof regarding Mr. Hodge and that that offer of proof did include that first portion.
MR. DARDEN: I'm sorry?
THE COURT: Perhaps Mr. Blasier can find that. I'm looking somewhere on 18599.
MR. DARDEN: Okay. Can Mr. Hodge be asked to step outside?
THE COURT: All right. Is Mr. Hodge present in the courtroom? All right. Mr. Hodge, would you step out of the courtroom, please?
MR. BLASIER: Your Honor, there was an offer of proof on July 27th, 39039.
THE COURT: July 27th?
MR. BLASIER: Yes.
MR. BAILEY: Precise language, your Honor, I don't think is in there.--
THE COURT: All right. That is correct. 39039 starting at line 8. Do you have that, Mr.--
MR. DARDEN: I see that now, your Honor. I apologize. Not having a moment to prepare for this, I overlooked that. Would the court inquire of the Defense--
THE COURT: Well, here's--let me tell you what my dilemma is. You are entitled to a reasonable opportunity to get prepared, I agree. I would like to present something to this jury today. The jury I'm told are not happy campers. Apparently they came back from Catalina barking at the seals. That's a seaman's term, a fisherman's term, "Barking at the seals." It's being seasick.
MR. DARDEN: Well, it's not our fault--
THE COURT: No. I understand that.
MR. DARDEN: --the Defense has no witnesses.
THE COURT: I understand. I'm just saying if you can accommodate me and get ready on some of this though. But the dilemma that you posed and the dilemma that we create is that by calling Mr. Hodge first, that may make Bell cumulative. So I mean that's the situation we're in.
MR. COCHRAN: Your Honor, may I suggest something? Certainly we don't intend to make Bell cumulative. We don't think any--your Honor, let me just say this. If you have 69--60--so many I can hardly remember--61 incidents on tape which we no longer have, 59 have been thrown out, and we have some live witnesses, your Honor--
THE COURT: That's not correct, Mr. Cochran.
MR. COCHRAN: Well, I read your order, your Honor, and with all due respect, that order, there are some parts that are incoherent and we would like to have some clarification of that and we would like to talk to you about that sometime today, if possible, because we expect perhaps in a motion in reconsideration on Tuesday to address that because certain parts we don't understand. You said that's not correct. So maybe we're still entitled to do certain things that is not totally clear that we can do. Is that what you're indicating?
THE COURT: No. My order is very clear.
MR. COCHRAN: Not to us, your Honor.
THE COURT: Well, maybe it's--well--
MR. COCHRAN: It's not clear to us. Let me make that clear. But what I was going to suggest, we have Miss Singer here. Why don't we start off--I haven't heard a complaint about Miss Singer. Let's start by calling Miss Singer. We don't want--by calling Singer and Hodge, we're not saying this--we don't want to be duped by anything where later than Tuesday or Wednesday, you say, well, you called them. Now you can't call Kathleen Bell and Terry.
THE COURT: I'm warning you, counsel, I'm just being--I told--this issue we brought up very early, that Hodge and Singer or anybody else might be cumulative after Terry and Bell because it is a collateral issue and at some point in time, it gets to be redundant.
MR. COCHRAN: Well--
THE COURT: So you have available to you the testimony of Bell, Terry, McKinny. McKinny can come in and testify that she interviewed Detective Fuhrman over this nine-year period, that she tape-recorded and transcribed these conversations, that during the course of these conversations, on 41 occasions that she can document, he referred to African Americans with a racial epitaph in a negative and disparaging manner, two examples of which are x and Y, and that there is no doubt--and that the subplot of this particular screenplay was not--the racial animosity was not a subplot. That's what she can do.
MR. COCHRAN: Well, let me just ask you a question regarding that. One of the problems we have with is that the fact that the two instances you picked--first of all, you picked an instance on the tape that you can hardly hear the word. We don't think that's fair. The two more innocuous instances, we don't think that's fair. How--may I ask how could you arrive at just these two, your Honor.
THE COURT: Mr. Cochran, we're not revisiting that at this point. The point is, at some point in time, it becomes cumulative. So you will have--in the record, after Bell, Terry and McKinny, you will have three witnesses that may determine--that you can reasonably argue from that Detective Fuhrman is, A, a liar and, B, a racist.
MR. COCHRAN: Your Honor--
THE COURT: And that is a collateral issue.
MR. COCHRAN: With all due respect, your Honor--
THE COURT: Well, wait a minute. I'm just saying that then, if you want to bring in Hodge and Singer on a collateral issue, at some point in time, it's going to be cumulative. If you make a tactical judgment who you want to bring on first, who you want to bring on second, that's entirely up to you. But the cards are on the table. We all know who the witnesses are. But at some point in time, enough is enough.
MR. COCHRAN: Judge, you just finished telling us how the jurors came back barking at seals, you want to get something done today. We've indicated to you--these witnesses, your Honor, all live out of state now. We're bringing these people back all at his expense. Nobody is paying for this except Mr. Simpson. So we have two witnesses that we've had since Wednesday in an effort to finish this case. So we say to you as an offer of proof this morning we have these people available. We're trying to accommodate the court. We were sitting for two days for this order. Now, you say to us well, you make a tactical decision. Terry and Bell, you previously said we could call. The other two we think are also very important. Reasonable minds may differ about what is collateral. And perhaps when you hear the argument--
THE COURT: I'm just telling--Mr. Cochran, understand what I'm saying.
MR. COCHRAN: Yes.
THE COURT: It might make the subsequent witnesses redundant. That's all I'm saying. I don't know.
MR. COCHRAN: Well, your Honor, let me say this, your Honor. You're the only one who will ultimately know that. It will never be redundant to us because we think when we have this overwhelming evidence against this man having perjured himself and being a racist and this man being a key witness in this case, we think it's important to show this. I just remind the court that we have been six weeks, they have been six months, and it's not fair to Mr. Simpson that all of a sudden, we have to rush through everything now when we get to the end of the case. Now, we understand that. But we weren't--the other six months, they were putting their case on. And so I'd ask the court to remember that when you make these kinds of judgments. We want to get this case to the jury also. But at the same time, we also have to fight for our client to get a fair trial on a level playing field, Judge. That's what we're trying to do. So I mean, so you put us in this quandary. We come to you and say we got these two people here. They're here from--one is from--they're both from back east, way back east.
THE COURT: Counsel, the scenario that you set for me was that Miss McKinny was going to testify next.
MR. COCHRAN: Yes. Absolutely, your Honor. And then--but then we got your order last night at 4:30 or so. We don't understand that order clearly. We're going to obviously be asking you to reconsider that order. We are going to point out to you--you may think it's clear--where it's not clear. We plan to do that for early Tuesday morning. We're going to ask you--
THE COURT: Well, I just explained it to you.
MR. COCHRAN: Well, I think that among us, we still have some difficult with it and we still would ask you to reconsider certain aspects. Now, with regard to McKinny, if we are told--let me just say this one thing, if you'll allow me. One of the things we've talked about a lot in this case is misleading the jury. How in the world can we be part of your order and play those two instances that, "I grew up in Washington where there were no blank words," the other thing, "That's where they live," when talking about the black Muslims? That's not representative of what happens. This man has been painted as a choir boy, your Honor, to this jury and the jury ultimately makes the decision. We're now left with--sure, we can talk about 41 references, but you picked instances where it doesn't allow us to show what he's done as it relates to this case, and that's what we have a real problem with. We don't think that's fair if you understand what I'm saying. The two instances--and I don't know how you picked them--those are not the instances that we think are appropriate, not even mentioning the 18 things of misconduct on a theory that is--the probative value is outweighed by the prejudicial effect. And I'm not going to argue now except to say when you make that kind of blanket order in this kind of a case where perhaps never before in the history of criminal jurist prudence has there been this level of impeachment out of somebody's mouth, that causes problems for the Defense. I think you might understand that and you might understand that we stand before you today not having a lot of sleep--
THE COURT: Well, Mr. Cochran, here's the problem. This is not a motion to reconsider at this point.
MR. COCHRAN: No.
THE COURT: You should understand that.
MR. COCHRAN: I'm just alerting you that's happening on Monday--on Tuesday.
THE COURT: I expect that. You also can walk down the street a block and a half and go to the court of appeal if you don't like the ruling. You have that option.
MR. COCHRAN: We understand our remedies. But we got the order last night at 4:30 or so, Judge, is what I'm trying to say to you. I have witnesses here and we are prepared to put them on. And then you say, well, wait a minute. If you put them on, you might run into cumulative. So obviously we're concerned about that, Judge.
THE COURT: They're saying they're going to make the argument. I'm just warning you that that's a possibility. That's all I'm doing. You want to call them, call them.
MR. DARDEN: You know--
THE COURT: Were these people on your witness list?
MR. COCHRAN: Absolutely. They've been told--we gave them to them last Saturday.
MR. DARDEN: We were told that the last witnesses were going to be Blasini, Gobern and Menzione and with McKinny ahead of those. That's what we were told. It's Friday, it's a short day. So obviously we would not be wasting our time preparing for Hodge and Singer. And, of course, the Prosecution had no idea as to what the court would rule on the McKinny issue. So we had to prepare on all 41 incidents. But my point here is, again, why are we being jammed this way just because--
THE COURT: You're being jammed because I got a jury that's going nuts. That's why you're being jammed.
MR. DARDEN: They're holding you hostage, us hostage and the jury hostage as well.
THE COURT: No. No. But you've known about this witness for a long time, Mr. Darden.
MR. DARDEN: And the next representation I want to make to the court about this witness is that the discovery we have is not consistent with Mr. Bailey's representations. If there are other reports, other statements to investigators, other notes that is related to Hodge and Singer, we would like to have them now.
MR. COCHRAN: May I just say one thing about discovery? Mr. Douglas, who handles all our discovery, gave the District Attorneys all of our remaining witnesses last Saturday. They've known about all these witnesses. No question about that. Absolutely called, gave them notice last Saturday. He's right here. And so they're known about it. This is just a--we need obviously a moment to caucus with regard to what your Honor's indicated because--your Honor, it's not just us, it's Mr. Simpson. So I'd like an opportunity to talk to my client.
MR. DARDEN: Why do they need a minute to caucus? 352's been in the evidence code for 50 years. I mean, it's obvious that at some point, issues become cumulative.
MR. COCHRAN: My remarks are directed to your Honor.
MR. DARDEN: Yeah. They should be.
THE COURT: All right, guys, we're getting--
MR. BAILEY: Can I put something on the record, your Honor?
THE COURT: Briefly.
MR. BAILEY: Yes. You had asked whether or not they had had an opportunity to talk with Miss Singer. Miss Singer received a call from Mr. Pellicano, who indicated he was working with the Prosecution last March.
MR. DARDEN: Your Honor, this is untrue.
THE COURT: Wait, wait. Mr. Darden, don't interrupt Mr. Bailey.
MR. BAILEY: As a result of which she hired an attorney in Nashville. He affiliated an attorney here. She has been prepared to talk with the government in the presence of her attorney since then. Today is the first time they have ever asked, no. 1. No. 2, on suggesting that we run the risk by calling these two witnesses on this one point of collateral estoppel later on--excuse me, Mr. Darden.
THE COURT: Wait, Mr. Darden.
MR. DARDEN: Judge--
THE COURT: Mr. Darden, I am going to instruct you not to interrupt Mr. Bailey again on pain of being held in contempt. Do you understand that?
MR. DARDEN: Judge--
THE COURT: Mr. Bailey.
MR. BAILEY: If it please the court, I respectfully request that you remember the circumstances of Bell and Terry. They are completely separate. They were brought in by the Prosecution at the opening of Fuhrman's testimony, and the issue as to them is not racism. It's whether Fuhrman lied when he said he didn't even know them, because if the jury concludes that that was a lie, they certainly will accept that he made the remarks they attribute to him. That is a box they built and should not be used to cumulatively exclude witnesses who directly impeach Fuhrman who lied in a capital case which under Alaska V. Davis is not collateral. Thank you.
THE COURT: Mr. Darden.
MR. DARDEN: I'm just wondering if anybody else wants to argue the 352 issue by the Defense. I mean, you issued a ruling on this yesterday. As far as Hodge and Singer are concerned, what do you want us to do? You want to jam us, Judge, put them on. Let's get on with the trial then.
THE COURT: Are you ready to proceed with them?
MR. DARDEN: Am I ready? No, I'm not ready. Frankly, I don't feel I'm competent to represent the People of the State of California this morning as it relates to Mr. Hodge, but--
THE COURT: How long is this testimony going to take?
MR. BAILEY: Each witness is probably good for 10 minutes, 15 on direct.
MR. DARDEN: That's what he said about Fuhrman.
THE COURT: All right. I don't see there's any chance we're going to have--because we're going to bring the jury down, I don't see any chance we are going to finish more than the direct this morning.
MR. DARDEN: Can we hear what Mr. Hodge's testimony is expected to be?
THE COURT: I'm sorry?
MR. DARDEN: Can me have a 402? Can we hear what it is he is going to testify to?
THE COURT: I thought we had an offer of proof.
MR. BAILEY: We have.
MR. DARDEN: There's no records to support that, Judge.
MR. BAILEY: Page 39039.
MR. COCHRAN: Your Honor, with regard to--
THE COURT: Wait a minute. I need to resolve this issue. All right. We will proceed with Mr. Hodge's direct testimony. We will not complete that this morning.
MR. COCHRAN: May I do one other thing, your Honor? Obviously--two things I would like to convey to the court. If you--if there is a possibility that by calling Hodge, you will not let us call Kathleen Bell--they're all flying in this weekend--I've got to discuss that with Mr. Simpson, your Honor. I can't just do this just to accommodate them. Do you understand what I'm saying on that? Also, there's something else about Hodge's testimony I should indicate as an offer of proof. I talked to him during the break. I would like to make--put on the record.
THE COURT: What is that?
MR. COCHRAN: That--and I'm not sure the original offer of proof contained all this. Mr. Hodge will testify that he had numerous contacts with Detective Fuhrman between 1985 and 1987, that in addition to these numerous contacts, he made numerous complaints with internal affairs complaining about how he's been harassed by this officer and that--the other things Mr. Bailey indicated. He referred to him as--with the "N" word, he had him bend over and take his pants down, all those things he will testify about. But he had numerous contacts with this officer. He also had contacts with Detective Purdy. Purdy was at the--at the time when he was arrested, it was Purdy and Anderson who first stopped and arrested him before Fuhrman and Vettraino came and got him. So you should know that also. But the point I have to make is--with our client as to--so that he can understand what the risks are. I need time to do that if I can.
THE COURT: All right. Bring the jury down.
MR. DARDEN: Judge, would you inquire of the Defense, is there more discovery? I mean, is there more offers of proof?
THE COURT: Mr. Douglas indicated you have what they have. All right. Bring the jury down.
(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. Are we ready to proceed?
MR. COCHRAN: Yes, we are.
THE COURT: All right. Do you have Mr. Hodge available?
MR. BAILEY: We're ready with Miss Singer, not Mr. Hodge.
THE COURT: I thought we talked about Mr. Hodge.
MR. BAILEY: I understand. The problem with Mr. Hodge, we'd rather not start him today and finish him Monday. Miss Singer, we might be able to finish today with a couple of extra minutes. I sent word back to the court that we wanted to call Miss Singer.
THE COURT: No. Our discussion revolved around Mr. Hodge. Call Mr. Hodge.
MR. BAILEY: You're ordering me to call Mr. Hodge?
THE COURT: No. I'm saying that's the witness we just finished discussing that I've indicated I'm going to direct that the Prosecution go forward with this witness since they've had adequate time. We did not discuss Miss Singer.
MR. BAILEY: Well, I'm sorry. I discussed both this morning. They had the same amount of time for both. They never lifted a finger to try and talk to him. That's a lawyer's obligation. He can't come in here and say well, "Judge, I didn't think they'd call her." She's been on the witness list. Why does the court say call Hodge--
THE COURT: No. Mr. Bailey, we just finished discussing Mr. Hodge. I just finished looking at the discovery notes regarding Mr. Hodge. I didn't contemplate anything with regards to Miss Singer. You want to call Miss Singer, you'll do it Tuesday.
MR. BAILEY: Fine.
THE COURT: After I've had the opportunity to look at this and hear their objections. We just finished--
MR. BAILEY: Fine. We'll call her Tuesday.
MR. COCHRAN: May I ask one last question, your Honor? Mr. Hodge is my witness. I'm ready to proceed. The question I want--and Mr. Simpson--directed to Mr. Simpson--if I call Mr. Hodge right now, is the court going to entertain a motion and grant a motion of 352 on Kathleen Bell and Andrea Terry and Natalie Singer?
THE COURT: I don't know.
MR. COCHRAN: That's the question he asked me, and I think I have a right to bring that out to the court.
THE COURT: I don't know. It depends on the nature of the testimony, counsel. At some point in time, this is going to become cumulative.
MR. COCHRAN: We're fully aware of that, your Honor, and we are aware of that. But as Mr. Simpson's wants--he would like to know that before he proceeds and calls Hodge now, because obviously, we've always thought, based upon the People introducing the letter, that Kathleen Bell and Andrea Terry would be called and Fuhrman's testimony.
THE COURT: Well, counsel, you have to make a tactical decision based upon your legal knowledge and experience. You have to rely upon Mr. Bailey's argument perhaps that there are reasons independent to call Bell and perhaps Terry. If you recollect, there was also testimony he had no idea who these people were and denied ever having talked to them.
MR. COCHRAN: I recall that.
THE COURT: I don't know. But I don't know. I can't make these judgments until I hear what the testimony is. It's very difficult for me to define these things.
MR. COCHRAN: No. I understand that, and this has come up because your Honor did mention it to us.
THE COURT: I mentioned it because they made the objection.
MR. COCHRAN: I understand, your Honor. May I have just a second?
(Discussion held off the record between Defense counsel and the Defendant.)
MR. COCHRAN: May I propose something to the court? I--after talking with Mr. Simpson and my cocounsel, we propose that we start Tuesday with Bell and then Singer, and then we'll come back to Hodge and with Bell and Terry and then Singer. That way we don't lose anything. Mr. Simpson is adamant that the jury's been told about Bell and about Terry and he does not want to lose that chance. Your Honor can't prejudge it, you won't tell us at this point. So he doesn't want to lose that thing. And I can't tell him what your ruling is going to be. I understand it's a tactical decision and I think tactically, that's what I've got to advise him, that he wants to start with Bell first then. They cannot be here. She lives in another state. She'll be here Tuesday morning.
THE COURT: Mr. Darden, any comment on that?
MR. DARDEN: Your Honor, the delays that we have endured the past couple of days, these are delays brought about by the Defense.
THE COURT: Well, no. Part of the delay is, I've got to sit and think about these things.
MR. DARDEN: Well, the other part of the delay is, they didn't get the stuff to you last week when they were supposed to.
THE COURT: Let's not nit-pick over that.
MR. DARDEN: Well, my point is simply this. We're going to have a six-day delay now. We're going to have the jury sit--wait at this hotel for six days.
THE COURT: They'll be doing things.
MR. DARDEN: Okay. Mr. Hodge is here. Okay. He is here ready to testify--
THE COURT: Well, it's their case. It's their case. They get to make their decision.
MR. DARDEN: Well, the court ought to order them to call him now or preclude him, Judge.
THE COURT: No. That's not the way it works. I wish it worked that way, but it doesn't.
MR. DARDEN: Well, surely the way it doesn't work is that they just get to delay these proceedings for days and days on end until they're ready to call a witness.
THE COURT: No. I understand their tactical reason for wanting to call Bell first because that--Kathleen Bell was discussed in the opening statement, that witness has been promised by the Defense and there's a particularly unique fact situation with her that they don't want to lose and they don't want to risk that.
MR. DARDEN: There's also 15 lawyers on the Defense and I'm sure somebody thought of this before, Judge.
THE COURT: They probably did.
MR. DARDEN: What about Blasini, Gobern, Menzione and the other 20 or so witness names they throw through the air from time to time? What about those people?
THE COURT: Well, the commitment from the Defense is, we're going to start with Bell and Terry. Where do we go after Bell and Terry?
MR. COCHRAN: Well, we'll do Bell, Terry, probably we'll start with McKinny. By that time--
THE COURT: Terry and McKinny.
MR. COCHRAN: We'll deal with the tapes and we'll deal with Singer. And we'll deal with--
THE COURT: Hodge.
MR. COCHRAN: --Mr. Hodge. And we have Vettraino and we have the psychologist, Mr. Goulston.
MS. CLARK: Judge, we're going to need a 402 on that.
THE COURT: On the psychologist?
MS. CLARK: Well, Dr. Goulston's never spoken to Detective Fuhrman or anybody else.
THE COURT: We'll take up that matter--
MR. COCHRAN: Those are the witnesses we are talking about.
MS. CLARK: I just want to alert the Defense that there's going to be an end to these games. At some point, the court's going to hear what's going on.
MR. COCHRAN: Can we hear from one lawyer per side, your Honor?
THE COURT: That's a different issue, Dr.--what's his name?
MS. CLARK: Goulston.
THE COURT: Goulston. My apologies to the doctor.
MS. CLARK: So we're clear, your Honor, I just want to make sure, can we get a final list from the Defense so we know--Bell, Terry--
THE COURT: That's what you just got.
MS. CLARK: Bell, Terry, McKinny, Singer, Hodge and Dr. Goulston and that's it?
THE COURT: I would imagine--
MR. COCHRAN: There's Mr. Menzione.
THE COURT: Menzione.
MR. COCHRAN: We're going to be calling Fuhrman, Menzione.
MS. CLARK: What about Gobern, Menzione, Rivas Matsuda?
MR. DARDEN: They put the Defendant on the witness stand. We can handle him today. We're ready for that.
MS. CLARK: He's here.
MR. DARDEN: We're ready for that.
THE COURT: Nice try.
MS. CLARK: May I inquire, your Honor, ask the court to inquire about Blasini, Gobern, Menzione, Rivas, Matsuda? We have all these names floating around and--
THE COURT: Well, you've been given half a dozen names that are interesting witnesses. So be ready.
MR. COCHRAN: Your Honor, the problem is, because of all their discovery violations, Rokahr--
THE COURT: Wait. Wait. Wait. Deputy Magnera--I'm sorry. Deputy Jex, jurors, please.
MS. CLARK: Your Honor, these are brief witnesses. They're not going to take up--
THE COURT: They're not here.
MS. CLARK: No. I realize. What I'm saying is that we need more than this. This won't take up a morning and we are entitled to three days I believe of witnesses. This is not it.
THE COURT: You think Bell's going to be a short witness?
MS. CLARK: Very.
THE COURT: Okay.
MS. CLARK: So I'd ask the court to inquire.
MR. COCHRAN: So there's no mistake about it--
MS. CLARK: Wait. Your Honor, I was addressing the court. I asked that the court inquire please of the Defense as to what the remainder of their witnesses will be because the witnesses they have listed will not consume the morning.
MR. COCHRAN: We'll decide over the weekend. I've told her and she should have Mr. Simpson's name after that if they want him so badly.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect that all the members of our jury panel have rejoined us, folks that we haven't seen for several days. I seem to recognize most of you. Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: I understand that the ride back yesterday was a little rough?
THE JURY: Pretty rough.
THE COURT: Pretty rough? I understand Deputy Dinwittie was the worse of them all. Thank you for the Catalina hourglass. I appreciate that. As you know, we've been engaged--as I mentioned to you the other evening when I came over to the hotel to talk to you all, that we've had some serious evidentiary problems that I've had to resolve and that we've been working on ever since. And part of the problem was, one of the issues was very complex, and I had to take two full days both here in the courthouse and at home working on some of these issues, and we've pretty much shot the day resolving those matters. So I apologize to you. The bailiffs have communicated to me on six separate occasions this morning that you are not happy campers to be kept on ice again for such a long period. And the attorneys will tell you, will nod in unison that my proddings to them are always, we have to remember that we have a jury that is sequestered and that is sitting and doing nothing and essentially going nuts while we're out here arguing these legal points. And I want you to know that we are all very cognizant of the fact that you're back there or that you're back at the hotel. We know that you don't all like to go shopping all day every day, and I apologize to you. I've tried to convey to you how personally I feel for your welfare. And I know that you're not happy to hear this again, but we have concluded the session. I have other sessions scheduled this afternoon with the lawyers to try to resolve these matters. I had wanted to at least get one witness on and start it in front of you today so you would feel that the day was not a complete waste of your time. But unfortunately, the time has come where we just don't have enough time to do that for the remainder of the day. I don't want to be overly dramatic about this with you, but I want you to know that it pains me deeply to know that you're there and that we're not accomplishing things and it seems to you that we're not moving forward, and I can't think of any other way to express it other than to tell you that I'm deeply sorry for that. I'll do my best to make sure you have some other activities to take up your time and we will proceed with witnesses Tuesday morning when we come back after the holiday. So having said that--oh, by the way, thanks for the cigar. I appreciate that as well. Remember my admonitions to you; don't discuss the case amongst yourselves, don't form any opinions--this is especially important--do not allow anybody to communicate with you with regards to the case. You may have a deep curiosity as to what it is that has interrupted the trial for such a long period of time. And at some point in time, after the trial is over, we'll let you know what that is. But you have to remain steadfast in your commitment to the court that you will not allow anybody to communicate with you with regards to these matters. I indicated to you when we started the trial that we would keep a compilation of the press clippings, some of the television coverage on videotapes so that you'll be able to find out what the big deal was or wasn't as the case may be while you were being kept in the dark. And I understand it's not fair to you. It may not seem fair to you, but at some point in time, you will be able to know what it was that was occupying our time here. I can just assure you that this has been very difficult for me, it's been very difficult for the lawyers and it's been a very difficult process for us all, and I know I share the opinion of both sides that we are deeply saddened that this has been a burden to you. All right. Having said that, we'll stand in recess, as far as the jury is concerned, until Tuesday morning. As far as the lawyers are concerned, we'll stand in recess until 2 o'clock.
(At 11:50 A.M., the noon recess was taken until 2:00 P.M. of the same day.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
Department no. 103 Hon. Lance A. Ito, Judge
The People of the State of California,)
Vs.) No. BA097211)
Orenthal James Simpson,)
Reporter's transcript of proceedings
Wednesday, August 30, 1995 Friday, September 1, 1995 volume 215
Pages 43658 through 43767, inclusive
(Pages 43644 through 43657, inclusive, sealed)
(Pages 43768 through 43805, inclusive, sealed)
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: Darryl Mounger, Esquire
I N D E X
Index for volume 215 pages 43658 - 43767
Day date session page vol.
Wednesday August 30, 1995 A.M. 43658 215 Friday September 1, 1995 A.M. 43670 215
Hearing re Defense motion re disclosure 43670 215 of exculpatory information re misconduct of Mark Fuhrman
DEFENSE for in exhibit identification evidence page vol. Page vol.
(None this volume)