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

APPEARANCES: (Appearances as heretofore noted; also appearing, William J. Hadden, on behalf of Detective Purdy; S. David Hotchkiss, assistant city attorney, on behalf of custodian of records.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(Pages 44834 through 44835, volume 220B, transcribed and sealed under separate cover.)

(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 before the court with his counsel, Mr. Cochran, Mr. Blasier, Mr. Bailey, Mr. Uelmen. The People are represented by Miss Clark, Mr. Yochelson, Mr. Darden, Miss Lewis. Also present is Mr. Hadden on behalf of Detective Purdy, and Mr. Walsh, regarding the city of Los Angeles. We will take up the matter of the pitchess motion first. I will hear from the requesting party. Anybody wish to speak on behalf of discovery of the police records?

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: Just a second, your Honor.

(Discussion held off the record between Defense counsel.)

THE COURT: I see we are wearing team ties these days.

MR. SCHECK: Your Honor, we just received this and I haven't had a chance to go through it, but in just skimming it, it is clear that the application here is that we should not be entitled to these materials because they are not within five years, which is the limitation of the pitchess motion.

And I would like to reiterate the position of the Defense with respect to the materials, A, internal affairs investigations in this case involving Detective Purdy, Lucienne Coleman, Detective Arneson, Detective Vettraino, any others that were involved in these incidents. We feel that based on the application, the showing we made and the extended remarks that we made last Thursday, that we should be able to examine these materials and have access to them because we think they contain potential exculpatory evidence and even with the statutory limitations on seeking these records. Well, first those are current records. Internal affairs investigation that are within five years, even though they relate back to materials that are over five years old. So we think we are entitled to that. No. 2, for those materials involving Detective Purdy and other law enforcement officials that relate to their contacts with Mark Fuhrman and what we have outlined as the exculpatory evidence that we are seeking in this case, even if these materials are over five years old, we believe under the United States Constitution and our right to exculpatory evidence we are entitled to it notwithstanding limitations set out in the statute.

And I don't believe the statute was intended, passed and explicitly does not purport to go beyond the Defendant's constitutional rights to obtain exculpatory evidence. There is a long line of cases, as I indicated to the court before, starting with Davis versus Alaska and going all the way through where statutory privileges--Davis versus Alaska was the right to obtain records that were sealed pursuant to a juvenile privilege statute, so to speak. Those give way when exculpatory material are being sought. So we think we are entitled to that, notwithstanding this motion, and those are the grounds we are proceeding. Most particularly, and I don't know if the Prosecution has obtained this information, we have particular interest, in terms of Detective Purdy concerning that case where he apparently testified, according to what he told Prosecutor Coleman, at a preliminary hearing in one fashion, then was confronted with a police report that apparently was filled out by Mark Fuhrman that was different than his recollections at the preliminary hearing, and then he subsequently testified in another fashion and was--that conformed to the police report and apparently there was discipline for it. And we are trying to track whether that case is also the same case that Detective Purdy told us about when we had a conversation with him last week where he admitted that he had had a confrontation with Detective Fuhrman around a particular case where the two of them had been paired as partners and also that there were entries in the diary which he burned by his own admission, even after being informed that that diary was going to be sought and was being sought by law enforcement officials involved in this case and/or internal affairs officials, because it contained entries about his relationships with Detective Fuhrman and misconduct by Detective Fuhrman, that he intentionally destroyed that diary, he has admitted that after knowing that it was being sought. So that is material we are interested in. We think we are entitled to it notwithstanding the fact that at least one of these internal affairs investigations is over five years old and the information is over five years old. We also want to be clear that we are seeking not only the records that are stored downtown, but the ones that are stored at the division, because we think all those relate. And of course we are seeking the information with respect to the swastika incident as well.

THE COURT: All right. I will hear from the counsel for the detective, Mr. Hadden.

MR. HADDEN: Thank you, your Honor. Your Honor, Davis versus Alaska does not stand for the proposition that the Defense is entitled to the entirety of someone's file just because they claim there might be some exculpatory information in there. As this court noted last week, Brady is very much a consideration in the statutory scheme that is embodied in the pitchess statutes. The pitchess statutes have, as I noted in my brief, withstood constitutional scrutiny in this state. Particularly I am amazed at the comment by Mr. Scheck regarding what exactly it is that he is seeking. He is saying he is asking for something relating to Miss Coleman's declaration today, but their brief instead asks for citizen complaints against Detective Purdy from 1986, discussing bias, prejudice, ethnicity, et cetera, and falsification of records, neither of which have anything to do with the matter for which Mr. Simpson is on trial here. The--Mr. Scheck noted that there is a statute that precludes discovery of matters that are over five years old. He ignored the fact that 1047 of the evidence code says that the records of an officer who is not involved in the arrest are, per se, not discoverable. It is as simple as that. The legislature was very clear on it, and the court, California Supreme Court in the Santa Cruz case which I cited in my brief, described this statutory scheme as a model of clarity that the legislature said what it meant when it wrote it and the courts should apply it accordingly. The Defendant has, first of all, provided no reasonable cause for the court to even look at Detective Purdy's personnel file. Even if the court were to do so, it would be--exclude--what the Defense is I think seeking is excluded under 1045 of the evidence code and the protective provisions there and 1047 is an absolute bar in this case for the Defense to get any materials from Detective Purdy's file. Thank you, your Honor.

THE COURT: I will hear from the representative from the city of Los Angeles.

MR. HOTCHKISS: Good morning, your Honor. David Hotchkiss, assistant city attorney, on behalf of the custodian of records of the LAPD. I would only add, your Honor, a couple points to underscore the legislative scheme that we are dealing with here and that is that the legislature on behalf of the People has made certain legal conclusions that are binding upon this court, and one that is paramount is that the five-year rule seems to control under these circumstances. They have ruled, they have determined, as a matter of law, that anything that is beyond five years from the date of the event or transaction which is at issue, which is the murders of June, 1994, they are asking for events that preceded that by--by seven years, and those are excluded by operation of law. Moreover, I wanted to underscore a point that Mr. Hadden made and that is that there is absolutely nothing tying officer--excuse me--Detective Purdy to the investigation, the arrest or booking or anything involved in this particular case. However, if the court finds that there has been a prima facie showing under 1043, we are prepared this morning to deal with it in camera at the court's discretion.

THE COURT: Mr. Scheck, do you want to address the language in 1047, please.

MR. SCHECK: This is the language indicating that since he is not involved in the case as a per se bar?

THE COURT: Yes.

MR. SCHECK: All right. The response--well, he is involved in the case insofar as he was interviewed by internal affairs with respect to his connection to Detective Fuhrman in this case. And really everything that we are seeking here flows from the fact that we think that if we have these materials that were--we have reason to believe were brought up in the internal affairs investigation in this case--the reason we have reason to believe it is that we were told this by Prosecutor Coleman, and we have to assume that internal affairs took note of that and they should have questioned Detective Purdy on this. If they hadn't, they should go back and question him now, because we can't be clearer. We believe that there is a basis for pursuing the fact that Detective Purdy has information showing that Mark Fuhrman has falsified police reports, et cetera.

THE COURT: Why don't you address your remarks to the 1047.

MR. SCHECK: Well, I--I find these arguments completely nonresponsive to the point we are making. I have--the fact that he is not--

THE COURT: Well, there is a discovery scheme--

MR. SCHECK: Yes.

THE COURT: --for the specific record that you are seeking. There is a specific statutory provision that has certain--puts certain limitations on this discovery. Mr. Hadden raises 1047 as a complete and absolute bar to the information you are seeking. Do you want to address that or do you want to just ignore it?

MR. SCHECK: Oh, I'm not ignoring it. I think he misstates Davis versus Alaska and all the cases that flow from that, including recent cases concerning statutory protections. I believe the state of Pennsylvania--and there is a whole series of cases. This is fundamental constitutional law. I thoroughly agree that if you read this statute literally and say we are not entitled to get evidence that Detective Purdy has apparently given before internal affairs and find out the results of this investigation, which could bring to light exculpatory evidence concerning Mark Fuhrman's falsification of evidence and get to the bottom of what Detective Purdy really knows about Mark Fuhrman and his racial attitudes as well, but most particularly the falsification of evidence issue, if this statute is read as an absolute bar to getting this information, it is unconstitutional as applied. We have a constitutional right to exculpatory evidence. If they want to say that these materials can't be reviewed by this court for purposes of seeing whether or not it provides exculpatory evidence, based on an internal affairs investigation that apparently has been ongoing with respect to this case within the five-year limit, and concerning officers involved in this case, if that is the way the statute is being read to bar this court from exploring the exculpatory evidence, it is unconstitutional as applied. It violates due process and the right to confrontation. Those statutory privileges are not absolute. It is not a per se rule in light of the constitutional protections we have. It is qualified.

THE COURT: All right. Do you have any case authority dealing with any similar statute, this statute or any similar statute that supports that position?

(Discussion held off the record between Defense counsel.)

MR. SCHECK: I--I--I'm--there are--if the court wants more--I thought this was a black letter proposition. Davis versus Alaska is a case that I think is close to thirty years also, but it is the first in a long line of cases which establishes a fundamental constitutional principle.

THE COURT: Do you have any case?

MR. SCHECK: Any case right now dealing with pitchess that is directly on point?

THE COURT: No. Any case where the theory of Davis versus Alaska is applied to a discovery statute that is anywhere similar to this anywhere in the United States? Do you have anything you can analogize from, because there is no case in California that says this.

MR. SCHECK: Well--

(Discussion held off the record between Defense counsel.)

MR. SCHECK: The court is familiar with Davis, the Davis case? I do not have at my fingertips right now those cases. I can represent to the court I can recall off the top of my head many--I didn't even believe that this point would be in controversy. I can recall--I know a Supreme Court precedent.

THE COURT: You've got a statutory scheme that says you can't do it. You need to have some authority to ask me to completely ignore a statutory scheme, wouldn't you say?

MR. SCHECK: Well, Davis versus Alaska is the first in a long line of cases. That case and all the other cases that I will bring to the court's attention tomorrow all start from this proposition. And Davis versus Alaska there was an effort to confront a witness on the stand--

THE COURT: I recollect.

MR. SCHECK: --and there was a statutory scheme that created a privilege that those records could not be discovered.

THE COURT: I recollect.

MR. SCHECK: There is a long line of cases in this regard. This is a--this is a very simple issue. This is a due process Brady issue.

THE COURT: The answer to my question then is no?

MR. SCHECK: No, that is not correct. The answer is I was given this brief this morning. If you want more authority for what I consider an absolutely fundamental constitutional proposition that has not been addressed by these others, all they are getting up and saying to you is something that you already knew, which is on the face of it--

THE COURT: All right. Well, let's not waste any more time with this.

MR. SCHECK: I won't waste any more of your time, your Honor. If you want more cases, I will submit them.

THE COURT: No, counsel. Counsel, you requested the order shortening time for the hearing on this and if you are not prepared, I will give you until tomorrow morning to file.

MR. SCHECK: Thank you, your Honor.

THE COURT: I will place--Mr. Hotchkiss, the custodian of records is placed on call for tomorrow within one hour.

MR. SCHECK: One further application.

THE COURT: File it close of business today.

MR. SCHECK: Just so the court should note, if it is to be the ruling that these statutory bars prevent us from getting the records that are over five years old and prevent us from getting other records, we would want to call the detective to the stand to establish at a hearing outside the presence of the jury the underlying facts.

THE COURT: Thank you.

MS. CLARK: And giving counsel until tomorrow to file, your Honor, the court is indicating then that the People will not be able to present any witnesses before the jury today?

THE COURT: No. That is not what I'm indicating. All right. Other matter we have is the scope of discovery--excuse me. The scope of People's rebuttal case. That was the issue we had set today. Also, counsel, I have conducted the 1054.7 as to Dr. DeForest's notes, Mr. Neufeld, and the issue that I raised with Mr. Hodgman, he did not understand what Dr. DeForest--I asked him about--a question about a notation in Dr. DeForest's notes and he was not able to interpret that for me, so he is--I directed him to immediately call Dr. DeForest to get an explanation of what this note means or what he is addressing. So as soon as I get that information, I will conclude the 1054.7 as to Dr. DeForest's notes. All right. Scope of Prosecution rebuttal case.

MR. COCHRAN: Your Honor, just before we get to that, would the court--I think it would be more logical, if the court pleases, for the court to entertain Dean Uelmen in the Defense's motion to strike and request remedies for denial of constitutional rights and denial of cross-examination. I would ask the court to consider hearing that first. Dean Uelmen will handle that. And then Mr. Blasier will handle the other motion with regard to scope of the rebuttal.

THE COURT: All right.

MS. CLARK: Your Honor, we just got this brief, what, fifteen minutes ago?

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

MS. CLARK: We had no advance notice they were going to file it. We have just seen it. Could we have just a chance to read it? Perhaps we would like to file a responsive brief. Miss Lewis just had the cases brought down. They are on her lap right now.

THE COURT: Uh-huh, and what is the--what is the practical import of your request?

MS. CLARK: Proceed with other motions first.

THE COURT: All right. Are you prepared on the scope issue?

MS. CLARK: Yes, and we filed briefs on that.

MS. LEWIS: I should mention we filed this morning an additional brief. We filed a brief last Friday with regard to admitting glove evidence. This morning I filed an additional brief on our behalf with regard to admitting the rarity of the Bronco fiber carpeting that the court had excluded from our case in chief.

THE COURT: All right. Mr. Blasier. Scope regarding the gloves.

MR. BLASIER: Good morning, your Honor.

THE COURT: Good morning, counsel.

MR. BLASIER: Umm, it was my understanding that the Prosecution was supposed to also file some document stating when they received various pictures, and I haven't seen anything that has that information. I did prepare a chart for my own use, but I would be happy to provide it to court and to counsel.

(Brief pause.)

THE COURT: Thank you.

MR. BLASIER: And in that chart I attempted to--I attempted to list all of the various pictures and videos and correlate them to the games that were involved. And as you can see, there are nine different football games where they have stills or videos, and I have indicated for those reports which state when they got the pictures, I put those dates on there or when they did their first interview, and as you can see, many of them are before they rested. Now, the ones that don't have any date, I don't know what the date of receipt is because they didn't put that in their reports, but as you can see for most of the games, they had pictures long before or well before they rested in time to put those on.

Let me--and I would also point out, there is an additional argument that should this evidence be allowed we would argue that much of it is cumulative and irrelevant, particularly since most of these games or most of these individual photographs involve pictures where Mr. Simpson is wearing black gloves, not brown gloves. But I don't want to jump ahead. In response to the People's brief, as I understand their argument, they are saying that because we have put on a Defense that evidence may have been fabricated or there may be some sort of skullduggery involved with the evidence that therefore opens up the glove question when we didn't put on any evidence about the glove question, and I think that argument is very easy to destroy. What that in essence would mean is that anytime you put on a Defense, well, that opens up the Prosecution, they can put on anything that they held back on just because we put on a Defense. I would cite one of their cases that they have in their brief that they cited for a different proposition. This is the Carter case and the Contreras case which says that: "Redistributions on the introduction of rebuttal evidence were created to prevent the tactic of withholding crucial evidence from presentation during the case in chief in order to take advantage of the trauma and surprise inherent in confronting the Defendant for the first time at the end of the trial." Now, this evidence was readily available to them. I believe they even took a day at the end of their case because they were considering whether to put it on or not. I have been told just this morning that they have subpoenaed--Mr. Yochelson told me was a ton of videotapes, additional videotapes that they presumably intend to use. I don't know how much a ton is, but I suspect it is probably a lot, and I don't know whether there is any new games involved, anything other than what they have already listed. And I would argue that they knew about these pictures before, they knew about each of these games. If they wanted to subpoena the videotapes from those games, they could have done it then. They have got still photos from then. Mr. Rubin was here I think two or three times. It is my understanding that he is their expert and he is going to testify that he has looked at these pictures and he sees some similar characteristics.

All of that was available before. They could have put that on in their case in chief. They chose not to. We maintain that the reason they chose not to is because they were sandbagging and holding back information that they thought they would put on at the end for dramatic effect. We have opened up nothing that allows this kind of evidence. We specifically did not put on some of our evidence because of that. And that was stated to the court. And as the court might recall, at one point when we were talking about our glove experiment you made the comment that that may open the door to these pictures. Partially because of that comment we did not put that evidence on. If they put--and they have I think 14 or 15 witnesses that they intend to call on this. If they put these people on, then we will be compelled to call back Mr. McDonnell and perhaps some other evidence that we have turned over to the Prosecution and perhaps some evidence from other glove experts and it is going to prolong the trial substantially. They could have done this before. We submit that they should not be permitted at this point to sandbag and introduce this evidence now when they had it perfectly available to them before they closed.

THE COURT: Mrs. Robertson, what is the Defendant's next exhibit?

THE CLERK: 1370.

THE COURT: All right. Mr. Blasier, I'm going to mark your chart as Defense 1370 for the purpose of this motion.

MR. BLASIER: Thank you, your Honor.

(Deft's 1370 for id = chart)

MR. BLASIER: I might indicate also I have indicated "Black" or "Brown" where you can determine what color the gloves are in the photographs or videos.

THE COURT: Okay.

MR. BLASIER: You can also see that many of these people are multiple witnesses on the same set of photographs.

THE COURT: All right. I will hear from the People.

MS. CLARK: First, your Honor, I urge the court not to rely on this chronology by Mr. Blasier. I know for a fact, just looking at it right now, that one is absolutely wrong. Ms. Guidera has the date of July 7th on her letter, but the actual thing did not arrive to us until a month later. I know because I saw when it arrived and when the envelope was opened. It wasn't until early August that we saw that, so--and she may indicate to you why it took so long to get to us, but she may have indicated on her letter she--

THE COURT: Just out of curiosity, why would that be?

MS. CLARK: Why she delayed? I don't know.

THE COURT: In other words, she is going to say that--

MS. CLARK: I don't know what she is going to say, your Honor. I know when we got it. That is all I can tell the court. I know there was a date I saw her letter. The letter had her handwritten date of July 7th on it. The postmark was not until I think July 30th or something like that, and we got it in the first week of August, so we didn't get it until a month after she had the letter dated.

THE COURT: All right.

MS. CLARK: So this is not accurate. That is no. 1. No. 2 there was no effort to sandbag. Obviously the Defense knew about these photographs. That is why they chose not to have McDonnell testify to the glove drying evidence. The fact that they indicate that withdrawing that glove drying experiment in order to avoid cross-examination with the use of these glove photographs does not mean that we don't get to use them in this case in rebuttal. That has nothing to do with anything. Apples and oranges. That just means we couldn't use them on cross-examination. At this point, your Honor, there is no sandbagging. That is clear. The Defense knew that these photographs were in existence. We also did not--we cannot be in a position to present such evidence until we have verified its authenticity. That means we've got to get the negatives, we have to interview the photographer, we have to examine the photographs and compare them to the negatives and the print that we prepared to make sure that there is nothing wrong with them, that they are as represented, they are as they have been represented to be authentic photographs of the Defendant in these gloves. After that we have to be able to show them to the expert who will tell us whether or not it indicates what we think it does. I mean, this is not something where you get a photograph and slap--you know, put the witness on the witness stand. That would be very cavalier and it would not be an appropriate practice for the Prosecution to do. We have to check this evidence out. We have to make sure it is proper before it comes before the court and before the jury. So the fact that they come into our hands at a given point means nothing in and of itself.

If the court can tell, even looking at the dates as--and they are not correct--it was very late in the case that we got these things because--that is because we put on the glove evidence that we had late in the People's case. By the time we rested, and I think it was in the first week of July, many of these photographs had not yet been received. Of those that had been received, they had not been checked out. The negatives had not been received. The fact that people sent us photographs didn't end the inquiry. We then had to recontact these people, get the negatives in, examine the negatives, have our own prints made and interview these people, and then have everything examined by an expert, by which time the People had to rest. Yes, we could have done as the Defense does and ask for a week to go and prepare and get things together and have the jury cool their heels outside, but we elected not to do that for the obvious reason, believing that if it was necessary, if the Defense went a certain way, as it did, it would be a proper rebuttal. As a matter of fact, our predictions proved to be true, more true than we could have imagined, because it was after we rested that we all found out about the McKinny tapes.

Now, as the court knows, the Defense has shifted its primary focus of its Defense based on those tapes to Mark Fuhrman. This has now become a full out attack on the credibility of Mark Fuhrman to prove that he did what we know the evidence has proven he could not do. Reality is not important to the Defense. They are going to go ahead and try and prove it anyway, get the jury to ignore the evidence and let them think that Mark Fuhrman could have planted evidence that wasn't there.

THE COURT: All right. Miss Clark, what the court is most interested in in this situation, however, is the chronology of the People becoming aware of the existence of the information, the subsequent contacting of the individuals volunteering this information, what interviewing was done, what corroboration was done, the nature of the investigation, production of the evidence and the time frames during which all of this occurred. That is what I'm most interested in.

MS. CLARK: I don't have that information, your Honor.

THE COURT: The issue being whether or not this information in the form it is to be presented at this point was available to the People prior to the People resting?

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

MS. CLARK: Well, let me ask the court something then. Why is that even a relevant inquiry at this point, because and I will allow--I ask leave of the court to allow Mr. Hodgman to address the issue because he was the one who received it. Assume for a moment that we got it all during our case in chief. First of all, the court knows that the Defense knew about it. That is not sandbagging. Second of all, more importantly, this is appropriate--if this is appropriate rebuttal, and the People submit it clearly is based on attack on credibility of Mark Fuhrman and the allegations that the Defense is making about planting of evidence, then why does it matter when we received it if it is proper rebuttal?

THE COURT: I stated my inquiry, counsel.

MS. CLARK: Okay. What the People are indicating to the court is this: That even should the court find that we received it soon enough to put it on in the People's case in chief, which we didn't, but even should the court so find, the People submit that it is clearly proper rebuttal based on the nature of the Defense case and the change that it took after the McKinny tapes were discovered and that was clearly after the People rested that that was discovered. Let me also indicate something else to the court. I have at this point interviewed these witnesses. I can tell this court that it is very brief testimony, extremely brief, as will be Richard Rubin's. I don't think that the cumulative amount of testimony, given all of these witnesses and Richard Rubin, is going to exceed three hours max. It is very brief. And I don't know how the Defense can try and drag it out to be more than that. Did you take this picture? Where did you take it? What did you see? When was it? End. That is all we are talking about here.

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

MS. CLARK: And Mr. Yochelson has a chronology and he will present that to the court.

THE COURT: All right. Thank you. Mr. Hodgman or Mr. Yochelson. Good morning.

MR. HODGMAN: Good morning, your Honor. This will be sort of a bifurcated response to the court's inquiry about chronology. I have information with regard to the still photos. Mr. Yochelson has information with regard to video clips or videotapes that were obtained.

THE COURT: All right. Mr. Hodgman.

MR. HODGMAN: And your Honor, in response to the court's inquiry of last Friday, over the weekend we tried to put together a chronology so that the court would have some understanding of when these photos were received. With regard to photographer James Chegia, C-H-E-G-I-A, we received a photo on or about June 20th, 1995. On that date one of our investigators obtained a negative and some prints were made. Color copies were given to the Defense on September 1st.

THE COURT: All right. Negatives were obtained on June 20th?

MR. HODGMAN: No photo, actually; just a negative. On June 22nd, 1995, a photographer named Bill Renken, R-E-N-K-E-N, sent us a single enlarged photo.

THE COURT: That was, I'm sorry, what date?

MR. HODGMAN: June 22, 1995. Subsequent to the receipt of that photo there were a number of phone calls involving Mr. Yochelson and Mr. Renken in an effort to attempt to obtain the negative, and in the course of those conversations, and as I will relate in just a moment, and in July and August, additional photographs were obtained from Mr. Renken. On June 22nd, or shortly thereafter, we had obtained a single two-by-three foot enlargement which was shown to the Defense.

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

MR. HODGMAN: And so the court is aware, we did not receive negatives from Mr. Renken.

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

MR. HODGMAN: The first time the People received negatives from Mr. Renken was this morning.

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

MR. HODGMAN: And to be even more specific about it, Mr. Renken retains the negatives in his possession right now. The People do not have possession of them. A photographer named Rob Seib, S-E-I-B, sent us a photograph on June 27, 1995. We received it some time after that.

THE COURT: Excuse me just a second. Mrs. Robertson.

(Discussion held off the record between the court and the clerk.)

THE COURT: All right. Go ahead.

MR. HODGMAN: And with regard to that, Mr. Seib sent us the photograph from a location on the east coast. On June 28th, 1995, Mr. Renken sent us some additional photographs. These photographs were of the same football game dated January the 6th, 1991.

On June 29, 1995, or thereabouts, we received a photograph--actually a number of photographs from a photographer named Kevin Schott. Last name, S-C-H-O-T-T. We received negatives from Mr. Schott on September 10, 1995, yesterday. Previously on September 1st of this year color copies of what we had were turned over to the Defense. On July 1st, 1995, we received a photograph from Michael Romano. A color copy of this photo was turned over to the Defense on September 1st, 1995. On September 6th negatives were made available to the Defense so that they could obtain a print to whatever size enlargement they wished. Then we have a photograph from Mark Krueger, K-R-U-E-G-E-R. This was received sometime prior to July the 3rd, 1995. Our records don't indicate a precise date that we received this photograph. We can infer, however, that it was received prior to July 3rd, 1995.

THE COURT: And we know that because Mr. Krueger was interviewed July 3rd, correct?

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

MR. HODGMAN: He was interviewed on September 1st, your Honor, and on that date he stated that he still had the negative. A color copy of what we had was provided to the Defense on September 1st, 1995. On July the 3rd, 1995, Deputy District Attorney Alan Yochelson sent a letter to Mr. Richard Rubin containing some copies or prints of what we had available regarding the photos to see whether Mr. Rubin could shed any light with regard to these gloves depicted in the photos. By letter on July 6, 1995, Mr. Rubin made some preliminary observations with regard to the gloves we had sent him, the glove photos. As far as our date of the receipt of the letter, it was sent regular mail and Mr. Rubin's letter is dated July the 6th. The date we received it we can only infer was after July 6th. Photos continued to come in after the date of July the 6th. On July 27, 1995, we received a photograph from Karen Brown. On September 1st, 1995, color copies were turned over to the Defense and that photo was re-produced from a negative on September 8th and turned over to the Defense. On August 11, 1995, Bill Renken sent two more photos of the same game of which we had received photographs earlier. These were two eight-by-twelve photos. As of August 11th we still did not have negatives from Mr. Renken. On August 17, 1995, Mr. Renken sent us an additional photo of the same game. We still do not have negatives of what Mr. Renken had sent us. We did, in the latter part of August, make an effort to obtain a CD copy, that is to have the photos that he had sent us placed on a CD format so that that CD could be shared with the Defense. On August 26, 1995, Deborah Guidera, G-U-I-D-E-R-A, also provided us with a photograph. It had been mailed sometime prior to August 26, 1995. She indicated that she thought she had mailed it to us sometime in July. The People received the negatives regarding this photograph on September 1st, 1995. Color copies and copies made from the negative were available to the Defense on September 6th. And lastly, your Honor, we have a photographer named Stewart West and he has a photograph of a December 25, 1993, game and we simply do not have a record of when we received that photo from Mr. West.

We do know that on September 1st, 1995, color copies were turned over to the Defense. On September 6th negatives were made available to the Defense for copying. And then as well--actually, as the court may not recall, on August the 29th there was a telephonic interview with Mr. Rubin in Las Vegas. During this interview Mr. Rubin made further conclusions regarding various photos and video clips. There became a need to have Mr. Rubin present in Los Angeles in order to get a more definitive opinion. And on or about August 31, if I recall correctly, Mr. Rubin came to Los Angeles and viewed photographs, as well video clips. And notes of that meeting were provided to the Defense.

THE COURT: All right. You have indicated to the court that Mr. Yochelson sent a letter to Mr. Rubin who I take it is going to be your sole expert as to the identity of these gloves; is that correct?

MR. HODGMAN: That's correct.

THE COURT: On July 3rd?

MR. HODGMAN: Correct.

THE COURT: That Mr. Rubin sent a response backdated July the 6th; however, sent United States Mail U.S. Postal Service, so--and he is back east, if I recollect, so we can assume two or three days mail time.

MR. HODGMAN: Okay. And to be entirely accurate, Mr. Yochelson, the letter was fed-ex'd, so I think we can presume that the letter was received July the 7th or thereabouts. And do you have a copy of that letter?

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

MR. HODGMAN: I don't have that letter with me, your Honor, but we do have it.

THE COURT: All right. Let's assume that this was a report from Mr. Rubin regarding his examination of these photos that Mr. Yochelson sent him.

MR. HODGMAN: Well, it was a preliminary report in the sense we wanted to get some idea of what we had, and Mr. Rubin responded that, you know, this is--this is with regard to certain style characteristics. And further, through the course of further investigation, we realized we had to refine even more what time characteristics we were looking for and what--and we made investigative efforts to see if photographs could be enhanced to further indicate those style characteristics.

THE COURT: All right.

MR. HODGMAN: As the court is aware--

THE COURT: What was your next contact with Mr. Rubin after his letter of July 6th?

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

MR. HODGMAN: Your Honor, the next contact I am aware of was on or about August 29 when Mr. Rubin was in Las Vegas, and we have--we had an interview done by telephone in which Mr. Yochelson and an investigator participated. It was realized that we needed to have Mr. Rubin here to be more definitive and arrangements were made to fly him from Las Vegas to Los Angeles.

THE COURT: Did he come then and sit down and actually sit down and look and all of these photographs and the videotape?

MR. HODGMAN: Yes.

THE COURT: Did he give a report or was he interviewed at that time?

MR. HODGMAN: He was interviewed, a report was made, an investigator from our office was present, as well as various attorney personnel.

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

THE COURT: All right. What is the conclusion that Mr. Rubin has come to that you wish to offer?

MR. HODGMAN: Well, Mr. Rubin is prepared to testify with regard to various still photographs and video clips that there are style characteristics present in the gloves that he observes depicted in these various stills and video clips which are identical to the Aris Light style of glove which gloves--which comprise the crime scene gloves.

THE COURT: Consistent with, not definitive?

MR. HODGMAN: Well, his opinion is a little stronger than that, your Honor. There--he is a better expert than I with regard to the gloves; however, there are a number of unique style characteristics which apply to these particular--this particular style of glove. These unique style characteristics are present in various of the still photos and video clips which we intend to present.

THE COURT: All right. Mr. Yochelson, tell me about the chronology of the video clips.

MR. DARDEN: Before Mr. Yochelson addresses the court, may I interject this? I spoke to Mr. Rubin around 7:30 or eight o'clock last night. We were looking at photographs and some of the videotape and there appears to be some type of defect in one of the gloves the Defendant was wearing during one of the football games, and so Mr. Rubin asked that he be allowed to look at the crime scene gloves again to see if that defect is also on the crime scene gloves, just to keep you up-to-date with what was happening.

THE COURT: All right. I'm sorry, let me just ask Mr. Hodgman one last question. The first photograph that you had available was from Miss Guidera and that was on June 20th, correct?

MR. HODGMAN: Yes, your Honor.

THE COURT: All right. Mr. Yochelson. Tell me the chronology of the videotapes.

MR. YOCHELSON: Yes, your Honor. Your Honor, following the arrival of some of the still photographs, we began investigating the possibility that there might be videotaped evidence of some of these games wherein the Defendant was wearing these types of gloves.

THE COURT: When did you start this investigation?

MR. YOCHELSON: This was approximately the 20th of June, 1995, when we received the telephone call from some personnel at a local network. They have provided us with some videotape which actually we do not intend to offer in this case. However, on June 23, 1995, we issued six subpoenas, three of which are relevant to this inquiry. These are for three games. One is--was dated January 6, 1991, between Cincinnati Bengals and the Houston Oilers. The second subpoena issued June 23, 1995, was for videotape of a game between the Buffalo Bills and the Kansas City Chiefs dated or played on January 5th, 1992. And the third is a game played on January 23, 1994, also between Buffalo and Kansas City. Those subpoenas were issued on the 23rd. Their return dates were for the 26th of June, 1995, and we received the actual videotape from NBC on or about the 28th of June, 1995. Based on the evidence of the still photograph which Mr. Hodgman referred to from Miss Guidera, Debra Guidera, we have also issued a subpoena for a game played in 1993 between the Indianapolis Colts and the New York Giants. That subpoena is returnable today and I have not yet heard from NBC. I would also add, parenthetically, that NBC wishes to be heard on some of these issues and Miss Egerton from NBC will be here shortly.

THE COURT: All right. That is the record you wish to rest on?

MR. YOCHELSON: I would also indicate that the copies of a videotape that we intend to offer into evidence was provided to the Defense on or about September 1, 1995.

THE COURT: All right. Which of these videotapes do you intend on offering?

MR. YOCHELSON: The three games that I have just referred to.

THE COURT: January 6th, `91, January 5th, `92, January 23rd, `94?

MR. YOCHELSON: Yes. And there is a possibility of some more videotape if it arrives. It has not yet arrived.

THE COURT: All right. So just so we are clear, you have had these videotapes since June of--June 26th, correct?

MR. YOCHELSON: June 28th, I believe.

THE COURT: All right.

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

MR. BLASIER: Very interesting, your Honor. I mean--

MR. YOCHELSON: Excuse me, your Honor, and excuse me, Mr. Blasier. However, Richard Rubin did not get to see these videotapes until much later.

THE COURT: Why not?

MR. YOCHELSON: Because we had to arrange to send this material to him after the 28th of June and it is my recollection that he did not see these videotapes--it is my belief he did not see these videotapes until after the People's case ended.

THE COURT: When did he actually see these materials?

MR. YOCHELSON: He saw the actual three quarter-inch videotape when we had him here in Los Angeles last week at the end of--at the end of August, 1995, in the meeting that Mr. Hodgman referred to.

THE COURT: All right. Mr. Blasier.

MR. BLASIER: It seems that everything on the list of things they got before they rested, with the possible exception of Guidera and their letter to the court, says that the letter was dated July 7. I don't know what day they got it, but I can tell you that the Guidera picture Mr. Rubin has never said, at least not in the interviews that I have been provided, that he can identify the glove in that particular picture. The primary pictures that he has said in his interview that he thinks looks like Aris Lights are from the Renken pictures and that the Bengals game of January 6th, 1991, when they received the first picture on June 22nd, three weeks before they rested. Mr. Renken is a professional photographer. He has got a big stamp on the back and they know exactly where he was. They knew about that. It is no secret that Mr. Simpson is a commentator on television. They know about that. They knew about these pictures. They could have gotten the videotapes. They did get the videotapes but chose not to present them then, and the reason they chose not to present them then is because they wanted to hold something back for a big dramatic issue. I think the dates you have got demonstrates exactly what I'm arguing. They had this. They could have developed this. The fact that they interviewed people is not our problem, it is not the court's problem. They should have the people to do this investigation and it is not fair to say, well, we can't get to this stuff, we will get to it, later and put it on in rebuttal. And I submit that they should not be allowed to present any of this evidence now at this time.

MS. CLARK: Your Honor, let me indicate to the court that Mr. Rubin saw the Guidera photograph on August 28th.

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

MR. BLASIER: Oh, incidentally, I have never seen these Rubin letters. I didn't know that they sent stuff to him before they rested and they never got it back. I'm not saying we didn't get them, but I have never seen them and I would like to see them.

THE COURT: Do you want to clarify that issue regarding Mr. Rubin's letters dated June 6th.

MR. YOCHELSON: July 6th.

THE COURT: I'm sorry, July 6th.

MS. CLARK: I'm sorry, I didn't--Mr. Yochelson was speaking to me and I didn't hear what Mr. Blasier said.

THE COURT: Has that letter from Mr. Rubin dated July 6th been turned over?

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

(Discussion held off the record between Defense counsel.)

MS. CLARK: As I understand it, your Honor, the letter that we are speaking of was not turned over to the Defense because it was not a definitive letter. All that happened was preliminarily a finding was made. He saw a few photographs and he said looks like there may be a style characteristic here. I have got to see more, I have got to see it more clearly. And so we endeavored at that point, and by this time it must have been at least July 7th, to start getting the things to him in his hand and get him out here and have further contact. There was no final report or finding made by him until--

THE COURT: Don't you think that is something that the Defense is entitled to know, that your expert witness looked at these items and wasn't able to give a definitive opinion?

MS. CLARK: If we decided--well, yes, at the point that we want to put him on, that is true; however, don't forget, your Honor, that we had already had the colloquy during MacDonnell's testimony about glove photographs and we went to side bar and I informed counsel that we had a preliminary indication at that time that we were--that they may have been the same glove. That is what I believe I indicated to you the finding of Richard Rubin at that time. I don't know--that was in August, wasn't it?

THE COURT: My recollection is that your--your impression of Mr. Rubin's opinion was a little more definitive than that.

MR. BLASIER: These are the gloves. That is what she said.

MR. COCHRAN: These are the gloves.

MS. CLARK: But that was much later. That was way after July 6th and there was a lot going on.

THE COURT: My question is don't you think the Defense was entitled to a report or a letter from Mr. Rubin indicating that based upon his analysis of the materials that were submitted to him that he was not able to come up with a definitive answer? Don't you think they are entitled to that?

MS. CLARK: Yes, I certainly do. If we thought that we were going to present it in our case in chief they were entitled to it. We didn't even get it until after we rested, so I don't understand.

MR. BLASIER: Well--

THE COURT: The question is now you propose to put on this evidence, yet you still haven't turned this over; is that correct?

MS. CLARK: The preliminary letter, no, we have not. The actual record and finding of Richard Rubin, yes, we have, but we don't have an obligation to turn over that letter which is a preliminary finding until we know that we are going to put it in our in our rebuttal case. We didn't have the letter until after we rested, so we obviously couldn't put it in in our case in chief. We didn't know where the Defense case was going to go until after we got it, and when we did get it, your Honor, and we started that, I indicate that we wanted to put it on in rebuttal. I have already indicated the legal argument in response to rebuttal and why it is relevant in rebuttal, but we gave them the final report by Richard Rubin.

THE COURT: And when was that turned over?

MR. BLASIER: Last--I think September 1st.

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

MS. CLARK: Right.

MR. BLASIER: We called our--

MS. CLARK: August 31st we had our final interview with Richard Rubin in which he reviewed all the photographs, reviewed all the videos and gave us his final opinion on the gloves. We turned it over on September 1st.

MR. BLASIER: Now, as I understand it, I think we called our first witness on July 10th. Now, is Miss Clark saying that on July 7th--the 20th--

MR. COCHRAN: The 12th.

MR. BLASIER: The 12th, that when she got this letter on the 7th they are already planning their rebuttal case? I think that is very telling.

MS. CLARK: No, your Honor. Obviously--

MR. BLASIER: That is what she said.

MS. CLARK: We didn't have it in time for our case in chief and we had to consider whether it was something that we could put on in rebuttal. We didn't have it in time to put on, so how can we consider putting it on in our case of chief? I don't get it. How can we say we are going to map this out and put it in?

THE COURT: All right.

MR. BLASIER: Incidentally, Mr. Rubin was out here testifying on the 25th. They had a number of these pictures then. We are not entitled to their attorney's notes. I don't know how many conversations they had that weren't in writing about these gloves and what he can tell and what he can't tell, but there is a lot more going on before they rested than we are being told, I believe, and this is just unfair.

MS. CLARK: You know something, I will tell you what is unfair, your Honor. It is unfair to be attacked unfairly with no indication that anything underhanded occurred. The court has been given a full chronology of what happened. We had the letter from Richard Rubin that has a date on it from the east coast and that is the date we rested. I mean, it should be very clear to everyone what happened here. Now we are suppose to have prescience? We are supposed to know what Mr. Rubin is going to say when he gives his final opinion when all we have in our hand at the time we rest is a preliminary finding? He hadn't even seen all the photographs we got. He hadn't even seen the videotapes at all.

MR. BLASIER: The point is they had them and they had access to Mr. Rubin.

MS. CLARK: We cannot be everywhere at the same time, your Honor, and Mr. Rubin doesn't live here; he is on the east coast.

THE COURT: Refresh my recollection as to where he lives now.

MS. CLARK: I'm sorry?

MR. BLASIER: New Jersey, I think.

THE COURT: All right. Well, another interesting issue.

(Discussion held off the record between Defense counsel.)

MR. BLASIER: Your Honor, I believe Miss Clark just said this she didn't know until late in August of this final determination, but that was long after she made representations at side bar that they could now prove these are the gloves.

THE COURT: All right. Thank you, counsel.

MS. CLARK: The representation at side bar--

THE COURT: Counsel, counsel, I have heard the argument. I'm preparing to rule. Thank you. All right. The order in which evidence is presented at trial is governed by penal code section 1093, and specifically that code section says that: "The District Attorney shall offer evidence in support of the charge." In subsection (D) 1093 reads that: "The parties may then respectively offer rebutting testimony only, unless the court for good cause, for good reason in furtherance of justice, permits them to offer evidence upon their original case." And I think that the case law in dealing with whether or not the court can allow the Prosecution to reopen their case indicates that the court has wide discretion; however, there are several cases that deal with an abuse of that discretion. This is a situation where information regarding the Defendant's possession and wearing of these gloves was available to the Prosecution at a period in time prior to their resting their case. The Prosecution rested their case on July the 6th, 1995, and the court believes, from the chronology presented by the Prosecution, that the first photographs regarding Mr. Simpson wearing gloves that may or may not be these Aris Light gloves, was received by them on June the 20th. The court is also persuaded by the representations of counsel that the information from Mr. Rubin was reasonably not presented to them prior to the resting on July the 6th. The photographs submitted to the Prosecution by various persons prior to their resting their case are not usable, are not meaningful without expert testimony and analysis; that expert testimony and analysis coming from Mr. Rubin. The court therefore finds that since Mr. Rubin did not submit his findings in either preliminary or final form prior to the People's resting their case, that this information was not available to the Prosecution during their case in chief. And I will exercise my discretion and allow a limited number of these photographs to be offered. I agree with Mr. Blasier's observations that it appears that some of these may be cumulative and I'm going to ask that the Prosecution present their photos to the court and let's see what we have, because I am not interested in listening to twenty people testify about taking photographs. All right. That is the ruling on that, preliminarily. All right. Let's go to the other argument--I'm sorry.

MR. BLASIER: We would also like to see Mr. Rubin's letters right away.

THE COURT: Absolutely. Forthwith. All right. Let's go to the issue of--Miss Clark, have you had the opportunity to peruse the motion filed by the Defense--or Miss Lewis, motion to strike the testimony of Detective Fuhrman or alternative remedies?

MS. CLARK: Your Honor, I've been--I've been before the court, so obviously I haven't been able to read it. Miss Lewis has been doing some reading. The cases have been pulled and we are going to need a chance to confer, unless the court can give us a preliminary finding or narrow the focus.

THE COURT: Well, this was just served upon me as well.

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

THE COURT: All right. Let's take a 15-minute recess. Why don't you look at it, confer amongst yourselves. I would like to pursue this motion today.

MR. BLASIER: Your Honor, we also have other scope arguments on parts of the rebuttal.

THE COURT: Well, let's deal with the gloves first.

MR. BLASIER: Well--

THE COURT: I want all the glove material down here now.

MR. HODGMAN: Your Honor, prepared to go forward with the Mr. DeForest inquiry at your pleasure.

THE COURT: Yes.

MR. SCHECK: Your Honor, also I wanted to bring to the court's attention that we have an extremely important 1054.7 that I think will affect scheduling that will take ten minutes and we urge upon you an opportunity to present it.

THE COURT: All right. Well, as I indicated to you previously, I was doing the 1054.7's at 8:30.

MR. SCHECK: That was for the Prosecution.

THE COURT: That is when I was set up and doing them.

MR. SCHECK: Your Honor, I was here. Not--8:45. I went to get Miss--

THE COURT: All right. Well, let's take these things one thing at a time because I'm going to have to read this right now.

MR. SCHECK: I understand. I am just bringing it to your attention.

(Recess.)

(Pages 44890 through 44900, volume 220B, transcribed and sealed under separate cover.)

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. Mr. Blasier.

MR. BLASIER: Your Honor, I--

MS. LEWIS: Your Honor, I'm sorry, Mr. Darden and Miss Clark aren't here. Mr. Darden is on his way back from the restroom and Miss Clark on is her way. I would beg the court's indulgence, since I don't know what Mr. Blasier is about to say, and I probably don't have any knowledge about what he is going to address.

MR. BLASIER: I'm going to submit the letter to the court and you may have a chance to look at it and when they come back--

THE COURT: All right. Let me see the letter.

(Brief pause.)

THE COURT: Thank you.

(Brief pause.)

THE COURT: All right. We have been rejoined by Mr. Darden. And Mr. Darden, for your information, the Defense has offered to the court the letter of July 6th from Mr. Rubin. Mr. Blasier.

MR. BLASIER: Your Honor, this is not what we were told it was. He says in this letter, which is in the form of a report: "On all eight photos none of the detail that can be seen indicates that the gloves could be a style other than 70263, which is the Aris Lights." We just confirmed that with Mr. Rubin that he--it is his opinion, which he expressed back on July 6th, that these are the same kind of gloves. This is not a preliminary indication. This is not an indication--well, I'm not so sure. He says in here that these are the gloves and this is what they were told on July 6th. Now, I still haven't gotten the letter that they sent to him asking him for some findings, but I think that this has been totally misrepresented to the court. This is a final report and they had it before they rested.

THE COURT: All right. Mr. Darden, do you want to make any response to that?

MR. DARDEN: Yes, your Honor. This morning of course the court heard our offer of proof and Mr. Hodgman's and Mr. Yochelson's representations to the court. And after this morning's proceeding I saw Mr. Rubin and I discussed the details of that--of those representations by Mr. Hodgman and Mr. Yochelson. And Mr. Rubin indicated that our representations to the court earlier were correct. Just now I asked Mr. Rubin what he meant by that particular sentence and by this letter in general and he indicated to me just now that he needed to see more information, that he was not stating conclusively that these were 70263's. He needed more information. He needed other photos.

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

MR. DARDEN: And--

MR. BLASIER: He just told us the opposite.

MR. DARDEN: Anyway, and that this is in fact a preliminary on his part. And once again I would point out that the date of the letter is July 6th. Our representations to the court this morning are consistent with what is contained in the letter and Mr. Rubin confirms that. I should indicate as well that after we received the letter we went about blowing up photos, enhancing photos, attempting to identify those characteristics that are--that are unique to this particular glove so that Mr. Rubin could come to some conclusive opinion at some point.

MR. BLASIER: He says in here: "All other photos appear to be brown, crime scene gloves' color. Photo no. 4 from Robert Lee is the glove." This is not equivocal, your Honor. This is him saying I saw the pictures; that is the glove.

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

MR. DARDEN: We rested. He sent a letter from I guess New Jersey. Obviously we didn't have this letter. The court will note that the letter is not faxed, the letter was mailed, so obviously we rested with not having this particular information.

(Discussion held off the record between Defense counsel.)

THE COURT: Mr. Rubin, what manner of communication did you use to send this letter to Mr. Yochelson?

MR. RUBIN: Federal Express.

THE COURT: All right. Was it on the day that the letter was written?

MR. RUBIN: I believe it was.

THE COURT: Mr. Blasier.

MR. BLASIER: I think it is obvious from the letter what has happened here, and I think--I think this evidence should be excluded based on this report.

THE COURT: All right. The court notes the first paragraph at page 2 of Mr. Rubin's letter where the text is as follows: "The key to an accurate identification of the glove would be fastest from no. 3, John Cassidy photo, because the fine edge on the fingers shows the Brossier stitching and three points on the back are flat. "Do you have a clear original?" Question mark.

"No. 4 from Robert Lee is clear enough but black," indicating a desire still to have further photographs. Although this does have a conclusion in it, it was sent after the Prosecution rested, so the ruling stands. All right. Let's go to the issue of Defense motion to strike Detective Fuhrman's testimony.

MR. BLASIER: Your Honor, could I say one thing before we go on? I notice Mr. Rubin is here. I am not prepared to cross-examine him. I can cross-examine the photographers, I have no problems with that, but I am not ready for him.

THE COURT: I understand. Thank you. All right. Mr. Uelmen.

MR. UELMEN: Well, your Honor, as in so many other points in this trial, we are back to square one on an issue that we thought we had resolved, but we want to make it very clear that square one for us is the constitutional right to confront and cross-examine the witnesses against the Defendant. And that right is so fundamental that no trial can be called a fair trial where that right has been denied. And the Defendant will not waive that right by resting his case without some remedy that avoids an unfavorable inference from his unexplained failure to recall Detective Mark Fuhrman in the presence of the jury. Saying nothing and doing nothing actually prejudices the Defendant because the jury is aware that he was subject to recall. In light of the evidence that has been presented, the failure to recall him or explain why we were not doing so can only result in an inference unfavorable to the Defendant.

THE COURT: If you recollect that my ruling indicated that I felt that it was not appropriate, that some instruction was appropriate because Mr. Fuhrman had not been subjected to cross-examination with regards to Singer, Hodge and McKinny.

MR. UELMEN: Yes, your Honor. We would add Rokahr to that list. We believe that the contradiction between Mr. Rokahr's testimony that that photograph was taken at night, and the testimony of Detective Fuhrman that the photograph was taken after he returned from the Rockingham premises at 7:00 in the morning, is a very significant contradiction in terms of the access to the evidence that Detective Fuhrman had before he went to the Rockingham premises. What we have proposed, your Honor, are three alternatives that the court has not previously considered, and we have renewed our request for a fourth alternative and we believe that any one of these four alternatives would be a satisfactory resolution of the problem, but no less than one of these is absolutely necessary. The first alternative we propose is moving to strike the portion of the testimony of Detective Fuhrman that dealt with the discovery of the Rockingham glove and to strike the glove itself from evidence. As we noted in our moving papers, we have not previously moved to strike any of Detective Fuhrman's testimony because we intend to rely on some of that testimony and we have a right to rely on it to put in evidence some very important issues from the Defense perspective. That is, we believe that as to some of the evidence provided by Detective Fuhrman, it is favorable to the Defense or it contradicts other witnesses for the Prosecution and can be used to challenge their credibility. It is a question of either Fuhrman is lying or one of these other witnesses are lying, and we believe we can argue, based on Detective Fuhrman's testimony, that perhaps other witnesses have perjured themselves in this trial as well. I have delineated in the moving papers the areas in which we believe we are entitled to rely on testimony of Detective Fuhrman. For example, he testified that he informed the other detectives, most notably Detective Phillips, that he had been to Rockingham on a family dispute on a prior occasion, and I believe that is inconsistent with Detective Phillips' testimony. He testified that when he went to the Bronco in the early morning hours of June 13th, not only did he see the speck above the door handle, but he saw the three to four small lines that he thought resembled blood on the doorsill and he also testified that he told criminalist Fung about that second stain. Both Fung and Larry Ragle testified that those three or four lines were only visible when the door was opened, so we believe, based on that testimony by Detective Fuhrman, we can challenge the contention of the Prosecution that no entry was made to the Bronco at the scene at Rockingham before it was hauled off to the--to the print shed. And that of course is a vital point to the Defense in terms of explaining the presence of blood in the Bronco. And also Mr. Fung denied that Detective Fuhrman had told him about that stain at the Rockingham scene, so there is a contradiction between what Fuhrman said and what Fung said. Detective Fuhrman is also the only source of evidence that Kato Kaelin passed a nystagmus test in the early morning hours of June 13th. He is the only source of testimony that the plastic bag in the back of the Bronco is standard equipment in a Bronco, that it is a bag for the spare tire. He also testified to observing a partial fingerprint on the knob of the back gate at Bundy. He is the only source of testimony that the premises next door to Mr. Simpson's Rockingham residence were inspected by him that morning and he found nothing out of place, which is important evidence in terms of any theory that the Prosecution might offer that entry was made to those premises and somebody climbed over a fence and dropped a glove. We also want to rely on the preliminary hearing testimony of Detective Fuhrman which was elicited from him on his examination at trial that he had referred to the gloves at Bundy as "Them" and that he had referred to seeing blood in the Bronco.

THE COURT: All right. Mr. Uelmen, then have you, given the surgical manner in which you propose to strike Detective Fuhrman's testimony, have you--do you have a proposal concerning where in the transcript, what pages and what lines and where to where, a specific proposal?

MR. UELMEN: Well, frankly, the jury--the jury would be very confused by a delineation of line by line in the transcript in terms of--

THE COURT: No, that is not what I'm asking for as far as the jury is concerned. I mean, you are asking me to strike specific testimony. You want some, but you want some left in and you want some taken out, so I need to know specifically what is it that you are asking me to strike?

MR. UELMEN: Well, what we are asking be stricken is the only portion of Detective Fuhrman's testimony where the denial of cross-examination has seriously prejudiced us the most, and that is with respect to the discovery of the glove. We would like stricken all of his testimony with respect to his discovery of the glove behind the residence at Rockingham and the glove itself, that they be stricken from evidence and the jury just simply be told disregard that, don't rely on Detective Fuhrman's testimony with respect to finding that glove and ignore the glove in your--in your deliberations. We have been prejudiced in terms of cross-examining on whatever motives he might have had to plant that evidence. We have been precluded from confronting him with the testimony of the witnesses McKinny, Hodge, Singer and Rokahr with respect to motives and opportunity in that respect. And we believe the appropriate remedy is simply tell the jury disregard it, forget it happened. Our second alternative is closely related to the first, because it really points out the unfairness and the injustice of the Prosecution putting a witness on the stand and getting the benefit of his direct testimony and relying on that testimony to prove their case without taking the lumps that come along with cross-examination, because of the invocation of the 5th amendment, and the Prosecution really has it within their control to eliminate that obstacle to cross-examination by the grant of immunity to the witness. What we have proposed is that the court actually has judicial authority to grant use immunity to Detective Fuhrman. Under these circumstances to say to Detective Fuhrman none of the testimony you present on cross-examination by the Defense at this point will be used against you in a future Prosecution, and thereby make his testimony on cross-examination available to the Defense. And we believe the Prosecution should be estopped from objecting to that kind of a grant of use immunity because of their past reliance and their future intended reliance on Detective Fuhrman's testimony. I think the strongest authority for that proposition comes from a case in which the Court of Appeals actually said that the Prosecution could be compelled to grant statutory immunity under section 1324 of the penal code, under circumstances very similar to what we are presented with here, and that case has not previously been called to the court's attention, it was not even called to the attention of Court of Appeals in the petition for a writ that was filed by the People last week and, we have ended up with a very curious situation where we have a controlling precedent from the Second District Court of Appeals that apparently was not considered by the court in issuing its alternative writ last week, nor has it yet been considered by this court, and that is the case of People versus Garner where a very analogous situation is presented of a witness who testified at a preliminary hearing and then came in at trial and said I'm worried about Prosecution for perjury for my preliminary hearing testimony, therefore, I'm going to take the 5th amendment. And the Prosecution then offered in evidence the preliminary hearing testimony on the theory that the witness was now unavailable so they could use the prior testimony at the preliminary hearing.

And what the Court of Appeals said about that is highly analogous to the situation that this court faces. In fact, the situations are virtually identical. The court said: "Obviously the People could not in good conscience have urged that the very testimony on which they asked to have the appellant imprisoned for the balance of his life was so untrustworthy that they wished to retain the right to prosecute their declarant for perjury. They already knew, of course, that Phillips claimed to have testified falsely. Under such circumstances one might have hoped the Prosecution would have been as desirous as the Defense to see the truth prevail, whatever that might be." And that points out the irony of the Prosecution's position if they are actually going to oppose the grant of use immunity to Detective Fuhrman, because the use immunity issue only comes up in the context in which he can legitimately claim the 5th amendment, if at all, and that is because I face the risk of Prosecution for perjury in the testimony I presented in this case to this jury. And for the Prosecution to come into this court and say we want to rely on that perjured testimony, we want to use it to convict this Defendant and send him to prison for the rest of their life, and we don't want to immunize this witness from subsequently being prosecuted by us for perjury. Well, you can't have it both ways. And that's essentially the ruling that the court handed down in garner. They said: "Less there be any confusion concerning the extremely limited nature of the remedy we here recommend, we emphasize that a need therefore will arise if, and only if, the witness' invocation of the privilege is based upon a claimed fear of perjury Prosecution." That is no. 1. And no. 2:

"It is the People who wish to use this witness' earlier and assertedly false testimony as evidence against the accused. While the District Attorney may not be required to seek a grant of immunity even in such an instance, his request to make affirmative use of that testimony may be conditioned upon his willingness to expose the witness to full and complete cross-examination." So what the court is saying is, okay, it is your choice. If you are not going to accept immunity, then you have to accept striking the testimony. You can't have it both ways. And that is precisely the situation we have here. Both of those conditions are met. The invocation of the privilege is apparently wasted on a fear of Prosecution of perjury and the People intend to continue to rely on this perjured testimony in making out their case in chief and arguing that the jury should consider the evidence of Detective Fuhrman finding this glove and the evidence of the glove itself. The third alternative that we pose would involve the court making a much more specific determination of the availability of the privilege against self-incrimination by the witness Mark Fuhrman. What Detective Fuhrman did in his brief appearance on the stand is to sweepingly invoke the privilege as to all future questions, and we believe that may be an inappropriate invocation of the 5th amendment, if his only concern is potential Prosecution for--for perjury. And in fact even with respect to potential Prosecution for perjury, if in fact he assumes the risk by getting on the witness stand and in direct testimony willfully and knowingly presented perjured testimony, we believe that itself may have been a waiver of the--of the 5th amendment privilege. Now, we recognize your Honor's prior determination that the invocation of the--of the 5th amendment and the determination of the appropriateness of the invocation of the 5th amendment should be done out of the presence of the jury, but that can be accomplished in a 402 hearing at which Detective Fuhrman is subjected to question-by-question cross-examination and the court makes a ruling in the context of that examination whether he can appropriately invoke the 5th amendment privilege. But bear in mind that the burden is on him. Under section 404 of the evidence code it is the witness who invokes the 5th amendment privilege who bears the burden of showing that his invocation of that privilege is appropriate. Now, once the court has made such a determination, we can then proceed to cross-examination of Detective Fuhrman in the presence of the jury with respect to the issues where the court has determined he has waived his 5th amendment privilege and he may not rely upon the privilege against self-incrimination in declining to testify. That, however, does not eliminate the need for some sort of instruction to the jury, because if we cross-examine on very limited areas where he has not appropriately invoked his 5th amendment and are precluded from cross-examining in those areas where the court has determined his invocation of the privilege is appropriate, we are left with the same problem. The jury will infer from our failure to cross-examine in certain areas that we are conceding the credibility of his testimony when in fact the reason we are precluded from asking in those areas is because of his facing a realistic risk of a perjury Prosecution for that testimony, so just the opposite inference should be drawn. And the--the garner court addressed that problem. In fact, the garner court very specifically said under these circumstances the jury should know that he has invoked the 5th and they should invoke an adverse interest against him because the only basis for his invocation of the privilege is the risk of a perjury Prosecution. Recognizing that your court--the court has already ruled on that--on that issue, we want to emphasize we are not waiving our objection to that ruling, but we are saying under those circumstances the most appropriate instruction to give the jury now would be the 2.25 instruction of Caljic. And it is important to note that the Caljic use note itself indicates that this instruction, as slightly modified, can be given where the invocation of the 5th amendment is taken out of the presence of the jury. And what we have proposed is a slight modification of 2.25. So if we are permitted to cross-examine Detective Fuhrman in the areas where the court has indicated he may not invoke the privilege, the court should instruct the jury that with respect to specific questions his invocation of the privilege has been upheld and they should not infer anything from that invocation of the privilege one way or the other. The final alternative that we propose is one that we have proposed before, that in lieu of cross-examination we be allowed to present additional excerpts from the McKinny tapes and transcripts as declarations against interest. But one of these four alternatives is going to be necessary in terms of the balance that the court must strike. And we would contend that when a conflict arises between the fundamental right of the Defendant to confront and cross-examine the witnesses against him, and the right of a witness to invoke the 5th amendment privilege, it is the 6th amendment right of confrontation that must prevail. And we have proposed four very reasonable alternatives that would accommodate Mr. Simpson's right to confront and cross-examine Detective Fuhrman and still respect any valid assertion of a privilege against self-incrimination.

THE COURT: I will hear from the People.

MS. CLARK: What you have just heard, your Honor, is simply in many respects the repetition of arguments previously made to this court and rejected, and the expression of the Defense frustration at not having obtained the ruling they sought to obtain. That does not mean that any of the proposed alternatives are in any way, shape or form proper, legal or required in this case. Let me remind the court of what occurred in this courtroom during the last week of the Defense case, just so we are clear that the Defense has not only not suffered any detriment, but they have received every possible windfall they could possibly ask for. In the form of the McKinny tapes, in the form of the testimony of Hodge, in the form of testimony of Miss Singer, the Defense has trumped everything they previously planned to give to this jury in an incredibly overwhelming way. They have launched every inflammatory attack they could possibly launch. They were given wide latitude to do so. In doing so they have been allowed to effectively impeach Detective Fuhrman's testimony with respect to his assertion that he never used racial epithets in the past ten years. They have done so conclusively, they have done so without any ability on the People's part to bring Detective Fuhrman back to explain or mitigate the circumstances. We accept that deficit. The Defense is refusing to accept their victory graciously. They want more. They want more. They have won, your Honor. I mean, you know, they got that concession. They have won. They proved to this jury he lied about that, but that is not enough. They want to go farther and want to rub the jury's noses in it and also seek to draw improper inferences from that aspect of the testimony. And that is what is not fair and that is why they have been seeking things that are way beyond the law and way beyond the pale. With respect to--and let me indicate People versus Garner is wholly inapposite. I don't know if the court had a chance to read that, but in the garner case what occurred was that the witness testified, was the sole witness against the Defendant. He testified at the preliminary hearing. After the preliminary hearing he told the People I lied and I'm not coming back to testify and I'm going to invoke because you could prosecute me for perjury. So all the jury had was the former testimony of that one Prosecution witness who was their sole witness to prove all the relevant information against the Defendant, read to them through the former testimony exception under evidence code section 1291, so that the Defense really had no opportunity to cross-examine him before the jury and then the jury was not informed that he had told the Prosecution that he lied. The only thing that the jury was informed in that case is that he invoked his 5th amendment right and they were not to speculate as to why. I don't consider that analogous to this situation at all, nor do I think anyone else would. When you look at the situation in this case, what you have is the fact that Detective Fuhrman was extensively cross-examined as to all aspects of his testimony concerning this case. He is not the key Prosecution witness. What he is is the Defendant's poster boy for the key Prosecution witness. That is what they want. They want to make him as critical as possible because he was so easily and thoroughly impeached on his assertion that he had never used racial epithets in the pass ten years. He behooves them to make him supremely important. I understand. That doesn't mean it is true; it just means that is what they want. They are asserting him to be a key Prosecution witness when in fact if you took hypothetically the situation where you eliminated the glove, you eliminated Mark Fuhrman, we would still have overwhelming evidence of the Defendant's guilt, so we do not have the sole critical witness involved in this case that they did in garner. But more importantly, this witness--

THE COURT: Is that a concession that I should strike his testimony regarding the glove?

MS. CLARK: No, it is not, your Honor. I'm talking hypothetically, and I will address that point. But in garner, you know, you had no ability for the jury to assess the witness' credibility, his demeanor, that is, as he was cross-examined concerning the facts of that case and an admission that he lied in that case. All you had was former testimony. In this case Mark Fuhrman has completely and thoroughly been cross-examined as to all aspects of his testimony involving this case and Kathleen Bell, and the only thing that he was not cross-examined about was the windfall of McKinny, Hodge and Singer that the Defense came up with later. What you basically have here is that he was impeached, though. You know, even though they haven't cross-examined him about it, the truth of the matter is all they want to do is parade him up again in front of this jury so that they can make the jury look at him when they ask him about the "N" word. And they have already heard all the impeachment. He has been impeached with his own voice saying racial epithets. They have got him. But they want more. They want to kick him around in front of the jury. They have got enough to get the instruction about a witness willfully false. They will argue it until the cows come home, I promise your Honor they will. They will parade Mark Fuhrman in front of the jury and talk about a witness willfully false probably for half their case. They have got that instruction. They have got the witnesses who directly impeach his assertion. They have got his voice on tape and they want more. That is all they are saying here. They want more. But in saying that, your Honor, they are not justified getting more. Now, I would indicate to the court with respect to Rolf Rokahr's testimony, he has been impeached by already Robert Riske and Detective Phillips, both of whom testified that they saw that photograph being taken after the detectives got back from Rockingham, and the Defense knows that. I mean, that is another game they are going to play with the credibility of Mark Fuhrman. Talk about shifting sand. Mr. Uelmen get up and tells the court that they think his credibility is intact as to various--various topics and they intend to rely on his testimony about those topics. Now they want it both ways. If their indication is--and I will move on. This is the striking issue, your Honor. If it is their position that they have to strike the testimony concerning the finding of the glove, then they are doing so because they feel that his credibility has been unfairly left intact when in fact he was impeached, but he was not impeached as to whether or not he planted the glove, your Honor, at all. In fact, as the court noted in its own ruling, all of the testimony in this case makes it very, very clear that no evidence was planted by Mark Fuhrman. In fact, his credibility is intact on that issue. Yet they would have you seek--they would have you strike just that portion of his testimony that everyone knows, who reasonably and fairly looks at this evidence, is true. Now, what is the point of that? What is the fairness of that? What is the legality of that? Nil. They just want to strike it because they don't like it. They want to be able to use the striking of that to turn to the jury and say, aha, you see, he did. It is ridiculous. The court's own ruling makes it clear that there was no evidence planted by Mark Fuhrman and they would move you to strike that testimony when they have failed to impeach him in any way, shape or form. The only thing they have impeached is his assertion that he did not use racial epithets. Okay. If they feel that they have not had the opportunity to effectively cross-examine him on that point, strike that. I mean, that is where it goes. That is where the impeachment was, your Honor. They were not able to cross-examine him on Hodge, Singer or the McKinny tapes, so strike his testimony about racial epithets. That is what legally and logically follows, not the striking of the glove. They are going to pour through this transcript and say, as Mr. Uelmen just has, incredibly and inconsistently, he is going to go through the whole transcript and say, well, I like this, I like this, I like this but I don't like that. Strike that. But that was never impeached and that was not the subject of Hodge, Singer and McKinny, so there is no logic to what they are requesting you to do. Moreover, and even more troubling, the court inquired directly of the Defense as to whether or not they wanted to waive or as to whether or not they wanted to strike Detective Fuhrman's testimony, and they expressly and repeatedly said, no, we are aware of that remedy, we choose not to. And they made that assertion at a point in time before they knew how the court would rule, at a point in time before they knew whether they would get that instruction, so they have waived their ability to move to strike at this point, your Honor. And even if they haven't waived, there is absolutely no logic and no reasoning to support the ability to strike the testimony in any part at all. And I would also point out to the court that when they refused that option of striking, they did not do so conditionally. They didn't tell this court, well, we may move to strike if the court doesn't rule favorably on everything else. That was an unconditional waiver. No, we do not want to strike his testimony.

And in point of fact, they are asserting to this court that as to large segments of his testimony they are going to argue to the jury that Mark Fuhrman was credible. I can't wait to hear that argument. That is going to be very entertaining. But nevertheless, I think it does tell the court something about the viability and the integrity of the motion to strike the portion concerning the glove. It is not right. It is not right in logic and it is not right in law. Moreover, your Honor, with respect to the glove testimony, full cross-examination was had on that subject matter. As you recall, Mr. Bailey went extensively into how Mark Fuhrman found the glove and then proposed to go into and did I think cross-examine about how marines carry things in their socks and other interesting points like that, but Mr. Fuhrman was fully cross-examined on that issue. So if there has been no depravation of the right to cross-examine and confront the witness against on him that topic, again, then why strike it? Under the circumstances the court finds in this case there is simply no authority to strike what the Defense is asking the court to strike.

THE COURT: Excuse me just a second.

(Discussion held off the record between the court and Mr. Byrne.)

THE COURT: Miss Clark.

MS. CLARK: Let me cite to the court the case of People versus Daggett, D-A-G-G-E-T-T, 225 Cal. App. 3D, 751 at page 760. That deals with this issue more directly. In that case the court refused to strike the victim's testimony after the victim invoked. There had been a limited exercise regarding impeachment concerning his being charged with a molestation of children. In that case he was the sole accusing witness against the Defendant in a case of molestation. He admitted on cross-examination to having been charged with molesting other children, but exercised his right under the 5th amendment to refuse to testify as to whether he had ever admitted having molested children himself. The court found there was no error in the denial of the motion to strike. Now, I would call that a pretty serious invocation and a very serious aspect of the witness' credibility when you are talking about a molestation case and he invoked on a key issue concerning his own credibility. In that case the motion to strike was denied. Now, interestingly, the Defense belatedly contests Mark Fuhrman's right to invoke.

(Brief pause.)

THE COURT: I'm listening.

MS. CLARK: Oh, okay. At the time that he did invoke, however, they not only conceded that he had the right to invoke, but were obviously not contesting any aspect of his right to invoke. And with respect to that, your Honor, I would really like to hear an offer of proof as to what they think--they say that there are some areas in which he would not need to invoke and other areas in which he would. I would really like to hear what areas they intend to examine him about that doesn't require the invocation. With respect to this case, all aspects of this case have been thoroughly cross-examined on. If they intend to go back into that testimony, it is cumulative and it has been asked and answered and under 352 an undue consumption of time in repetitively asking those questions should properly be granted.

So if they want to go back into that, for which there is no 5th amendment, I believe, then there is no reason to recall him. If what they want to do is go into past acts of alleged misconduct on the tapes, there is obviously a valid 5th amendment right to those issues, so I would really be curious to know what the Defense thinks they can question him on for which there is no valid 5th amendment right? And I think that in itself really exposes the intent here. The intent is nothing more than a game to get him back in front of the jury and parade him around and ask some improper questions as to which the court will sustain proper objections, and infer things they should not be inferring from the manner in which the questions are asked in another effort to make a circus out of this trial involving Mark Fuhrman. There is no valid reason to recall Mr. Fuhrman and the Defense has failed to show this court in specific what reason there might be. And when I say that, question him about what? For what? He has already invoked with respect to those tapes. We know that when he said he didn't use racial epithets, he did not tell the truth. That has been done.

Now they have rebutted his testimony, they thoroughly impeached that assertion by him, and they have not offered this court any valid reason to go into that. Now, with--to recall him, excuse me. Now, based on what I have indicated to the court in the garner case, we don't have the fundamental unfairness here that we do there. This witness has been thoroughly rebutted, thoroughly impeached in his assertion about racial epithets from his own mouth on the tape. The jury has a clear and complete picture of that.

THE COURT: I think you have made that argument.

MS. CLARK: Okay. Okay. So the Defense really has all of the benefits that garner would have urged it to have. Caljic 2.25, do I need to address that argument, your Honor?

THE COURT: It is your record.

MS. CLARK: All right. I don't want to waste the time of the court if it is not necessary. 2.25 is clearly inappropriate to be given. That instruction is included obviously in Caljic because there can occur a situation, as I have previously argued to the court, where there be an assertion, an invocation that was unexpected, and in that sense I mean that someone comes into court and all of a sudden refuses to be--to answer the questions posed to him--

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

MS. CLARK: --in the jury's presence. Now, even though the invocation formally is taken outside their presence, when a witness all of a sudden stops answering and refuses to, some kind of prophylactic measure has to be taken. That is not the situation we have here. And the court is being invited to revisit an issue that has already been resolved on appeal. With respect to the last request, the court has already properly denied it. With respect to declarations against penal interest, the court gave a full recitation of reasons for its ruling and it was not an unconsidered but it was a very carefully considered ruling in which the court appropriately found that the evidence code section requirements were not met; neither for trustworthiness--I can't remember the rest of the ruling. In any case, I remember reading it and hearing it. Therefore, your Honor, I don't think that there is any merit--I will go farther than that--there is no merit to any of the requests posed by the Defense and the request should properly be denied in toto as nothing more than a reassertion of their frustration at their inability to parade Mark Fuhrman again before this jury. They have thoroughly discredited him and they will have every opportunity to remind the jury of that fact in closing argument, as I'm sure they will do. They have been denied nothing in their ability to cross-examine him. They have gotten every benefit out of it they could possibly hope for, and much, much more.

THE COURT: Thank you. Mr. Uelmen.

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

MS. CLARK: Your Honor, I did not address the immunity issue.

THE COURT: I thought did you in terms of garner.

MS. CLARK: No, not necessarily--

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

MS. CLARK: Only I distinguished garner. Let me indicate to the court, though, with respect to the immunity issue--well, we need to hear more about what the Defense wants us to give immunity for. I would indicate to the court that under hunter, although that court--although that court gave a proposal for how the court might grant immunity in the extraordinary case, I would remind the court that that theory was never implemented in any subsequent case by in court and never found to be appropriate. But moreover, you know, I really think the immunity argument is addressed in this manner, your Honor: They have had the ability to thoroughly rebut Mark Fuhrman and there is no reason to recall him for further testimony. And I think that really kind of answers it. There is just no need for immunity.

THE COURT: I take it that is an indication that you, representing the Prosecution, are not in a position to offer Detective Fuhrman any immunity for testimony?

MS. CLARK: Well, I haven't even considered it. Let me indicate this to THE COURT: With respect to his testimony and his actions in this case, he doesn't need immunity. He committed no misconduct. With respect to what is contained on the tape, no one knows, and of course we could not grant immunity as to that, and that is clearly what the Defense would like to get into in cross-examining Detective Fuhrman.

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

MS. CLARK: Furthermore, your Honor, the Defense has been clamoring for the Prosecution of Mark Fuhrman for perjury for the past three weeks and they now want us to grant him immunity so he cannot be prosecuted? I find that position to be highly inconsistent. I don't think that properly anyone should want us to be precluded from prosecuting Mark Fuhrman if there is an appropriate Prosecution to be had. We don't know that. I can only say that with respect to the conduct of his investigation in this case, there is--there was no misconduct, but with respect to what is contained on the tapes, we don't know.

THE COURT: All right. Thank you, counsel.

MR. UELMEN: Your Honor, talk about inconsistencies and contradictions. Isn't it remarkable that the Prosecutor is saying the Defense has already thoroughly impeached and discredited Mark Fuhrman and shown that he is a liar and then to stand up and say, we are not going to grant immunity from perjury, it just represents the degree to which the Prosecution wants to have it both ways in this case. They want to continue to embrace Mark Fuhrman. They want to continue to rely upon his testimony with respect to the discovery of the glove, and yet they want the benefit of the Defendant's denial to confront and cross-examine this witness. Confrontation and cross-examining is not a game, your Honor. It is a right guaranteed by the 6th amendment. And the reason it is guaranteed in the 6th amendment is because it is the greatest engine for getting at the truth that we have been able to devise, and we have been deprived of that right.

Your Honor has already ruled last week in noting that the record is clear that when cross-examination was adjourned it was subject to recall for further cross-examination, and your Honor indicated that further cross-examination about the testimony of these witnesses was likely and reasonably and appropriately the subject of further cross-examination. We've heard some really remarkable legal propositions in the course of the argument just presented and they are propositions that I have never heard before. No. 1, Miss Clark is suggesting that impeachment is a substitute for cross-examination. I have never heard that before. I have never heard that regardless of what extent a court allows a witness to be impeached, that that--that that can be a substitute for cross-examination and be a justification to preclude a Defendant from confronting and cross-examining the witness against him. Your Honor indicated in the cross-examination of Detective Fuhrman being conducted by Mr. Bailey that certain areas should not be explored until we have come up with evidence to back up the assertions that were being made.

your Honor permitted the cross-examination with respect to Kathleen Bell and we are prepared to accept your Honor's determination that further cross-examination in that area is not necessary, because we had essentially what Miss Bell had said at the time we got up to cross-examine. but now we have a lot of additional witnesses who were not even available to us at that time with respect to whose testimony we have the right to challenge Detective Fuhrman's credibility. there has not been any concession by the Prosecution that Detective Mark Fuhrman is a liar and that his testimony should be discredited. in fact, with respect to the impeaching witnesses that we called last week, the Prosecution got up and impugned their integrity, suggesting that they were here to make money, suggested that--that Miss McKinny had some sort of ulterior motives, suggested that she had some sort of relationship with Mr. Fuhrman. so there hasn't been any recognition by the Prosecution that all of these witnesses should be believed in their entirety and we can simply discredit and throw away the testimony of Detective Fuhrman. they still want to embrace Detective Fuhrman. they still want to use his testimony about the discovery of the glove.

The second really remarkable legal proposition we heard in the course of that argument was that in view of what we've already presented with respect to Detective Fuhrman's credibility, we cannot justify getting any more. That is pretty remarkable, that the Defendant has to justify the right to confront and cross-examine a witness against him. I always thought that--that was a given, that was a right guaranteed by the Constitution of the United States. The final really remarkable proposition is that the Prosecution can tell us which parts of this witness' testimony are true, that everyone knows, and which parts are false. I always thought that that was the function of the jury, that we will leave to the jury the question of sorting out what parts of a witness' testimony are true and what parts are false. And the most important tool we have to assist the jury in that process is the opportunity to confront and cross-examine the witness. We don't know what is in the minds of any of those jurors. There may still be people on that jury who were very impressed by how forthright and forthcoming Detective Fuhrman was. That is--that is the last time they saw Detective Fuhrman, when he was on that stand subjected to direct and cross-examination for six days. And remember when he got off that stand what the conventional wisdom was about the credibility of Detective Fuhrman. There may still be jurors who believe that despite all of our efforts to impeach his credibility, he is still a believable witness and who also assume--

THE COURT: You are not seriously suggesting that I should take the, quote-unquote, conventional wisdom into consideration, are you?

MR. UELMEN: Well, apparently the Prosecution is offering your Honor the conventional wisdom in suggesting, well, everybody knows that there is no planting of evidence in this case. Everybody doesn't know that. We certainly don't know it and we don't believe the jury knows it yet either. And we are saying that the risk to us of not recalling that witness and confronting and cross-examining him in the presence of the jury will redound to the Defendant's disadvantage and that is simply not a tolerable resolution of this issue, that they are allowed to use his testimony to rely on it and then foreclose the opportunity to cross-examine, whether by their refusal to agree to the striking of the testimony or to their consent to a limited use immunity under these circumstances.

And we believe garner is directly on point. In garner, too, the witness had been examined and cross-examined and the prior testimony that was presented, because of his unavailability by invoking the 5th amendment, was both the direct and the cross-examination presented at the preliminary hearing. So it is an identical situation to what we have here, and it was the invocation of the 5th amendment privilege that precluded the Defendant from confronting and cross-examining that witness at trial. And the court said that is just not acceptable to allow the Prosecution to say we want to use this evidence to convict the Defendant and send him to jail for the rest of his life and we want to keep our options open to prosecute that same witness for perjury for the testimony that we are relying on. With respect to the suggestion of waiver, there hasn't been any waiver here, your Honor. We are pursuing every potential remedy that the court has available. The fact that we were willing to accept an instruction last week, in lieu of pursuing our right of cross-examination, does not foreclose us from insisting on that right when the instruction has been denied and we are left back with square one again, a witness that the Prosecution wants to rely on that we have not had the opportunity to fully confront and cross-examine as guaranteed to us by the constitution of the United States and the state of California.

THE COURT: All right. Thank you, counsel.

MS. CLARK: Your Honor, in light of the fact, I just want to cite cases to the court because we have not been allowed to--we had fifteen minutes' notice. We were not allowed to file moving papers in this case. I just have some cases to cite to the court.

THE COURT: Cases.

MS. CLARK: People versus Cooper.

THE COURT: Is that the Kevin Cooper case?

MS. LEWIS: Yes, I believe so.

MS. CLARK: 53 Cal. 3D 771 for the proposition that the confrontation clause guarantees an opportunity for effective cross-examination, not cross-examination, that is effective in whatever way and to whatever extent the Defense might wish.

THE COURT: What other case?

MS. CLARK: People versus Superior Court, Piedrahita, P-I-E-D-R-A-H-I-T-A, 34 Cal. App. 4th, 508, for the same proposition. And Delaware versus Van Arsdall, A-R-S-D-A-L-L, 475 U.S. 673.

THE COURT: All right. Thank you. I'm familiar with those cases. With respect to the first request to strike the testimony of Detective Fuhrman as it relates to his discovery of the Rockingham glove, I find that prior to the arguments--the submission of the arguments concerning the request for a jury instruction that that request was waived. Assuming the waiver that--notwithstanding that waiver, assuming the Defendant has the right to renew the request subsequent to the action by the Court of Appeal, I find that with regard to the issue presented and most forcefully argued, that is, regarding the issue of the discovery of the glove, that Mr. Fuhrman was in fact cross-examined with regard to that specific issue, there was a full opportunity to cross-examine him over six days. The motive to--excuse me. The Defense was aware of the comments of Miss Bell. Detective Fuhrman was cross-examined as to the allegations made by Miss Bell and there was in fact the full and complete opportunity at that time. As to the request that the court order the Prosecution to grant use immunity, the court finds that the facts and circumstances in garner are very unlike the facts and circumstances in this case. In that case the sole evidence that was presented of the Defendant's guilt was the preliminary hearing testimony that was presented because the witness was no longer available, having claimed the 5th amendment privilege. Here the situation is, is that Mr. Fuhrman was subjected to cross-examination, direct and cross-examination over a six-day period. His testimony encompasses six full volumes of this court's transcripts. He was ably examined and cross-examined. Garner is distinguishable. The court finds no other authority for the proposition that this court can either on its own grant immunity or direct the prosecuting agency to do so. With regards to the request to recall Detective Fuhrman, the court has previously ruled on that issue. That ruling will stand. The court has previously ruled on giving a jury instruction. This court's ruling on that issue was overturned by the Court of Appeal. I have no authority to go beyond that. And with regards to the declarations against interest, that is a renewal of that request, and the court's previous ruling will stand for the reasons previously stated. All right. We will stand in recess until one o'clock.

(At 12:02 P.M. the noon recess was taken until 1:00 P.M. of the same day.)

LOS ANGELES, CALIFORNIA; MONDAY, SEPTEMBER 11, 1995 1:05 P.M.

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

APPEARANCES: (Appearances as heretofore noted.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. All right. Mr. Cochran, what is your position on the Defense, since you haven't rested at this time?

MR. COCHRAN: Well, let me indicate the following to the court. Thank you, your Honor. Good afternoon, your Honor.

THE COURT: Good afternoon, sir.

MR. COCHRAN: As the court is aware, the Defense really never rests, but more specifically in this case, we cannot rest at this point for a number of reasons. First of all, if the court pleases, we would like an opportunity to take a writ regarding the ruling of the court this morning. The court will recall that I guess it was last Thursday the Prosecution indicated they wanted to take a writ and the court was kind enough to give them in fact more time than Miss Clark could ask for. We are very mindful of our jury back there, but we want to take a writ on this whole issue because we are in a situation, your Honor, where we talked a lot about a search for truth where this jury will basically be lied to, that they will not understand what has really happened in this courtroom. You are not permitted to give a jury instruction. So far we can't call him back. This man has lied and perjured himself to the entire world.

THE COURT: Well, Mr. Cochran, the point being you want to take a writ?

MR. COCHRAN: Yes, we want to take a writ and we would like to take a writ, your Honor, and I just was about to ask our court reporters how soon we can get the transcript. And I would ask--I talked to Mr. Dennis Fisher, who will be handling the writ, and he needs basically until tomorrow afternoon because he has got to get the transcript and all the documents together to do that. That is the first thing I would like to point out to the court. Secondly, there is another issue regarding our inability to rest. The court will recall that Mr. Scheck and I appeared in your chambers under 1054.7. There is a critical witness in this case, who shall remain nameless at this point, that we think there will be startling evidence regarding before this week is out and we may want to impeach further, may want to call back for further cross-examination. We expect by Wednesday that information will be available. We think there are also Brady implications regarding this entire witness, so we can't rest regarding him. Finally, in addition to the writ, we would like to call Detective Fuhrman back to the stand for a specific testimonial circumstance and it is as follows: You will recall that during Mr. Darden's cross-examination of Miss McKinny it seems as though he attacked her credibility and you will remember the colloquy between the two of them. They can say all they want in argument, but we know what has happened before this particular jury, and so we would like to call Mark Fuhrman before the stand and I would like to have him--specifically have him utter those words that were played on that tape so that once and for all we can determine that is his voice and the jury knows that is his voice. We have an absolute right to do that and he is under no 5th amendment problems regarding that and so we would like to do those things. Those are the various things we would like to do at this point. If we can get Fuhrman down here, we can do that and go on and--but other than that, we need a stay involving the writ, but I think the thing involving the witness will become obvious I think by Wednesday at the latest. As far as being able to do other things, your Honor, my colleagues are very, very anxious to be able to argue to your Honor the balance of the motion regarding scope. There is some issue regarding RFLP results. There is all kind of things that we can do.

THE COURT: That argument is scheduled for five o'clock this afternoon.

MR. COCHRAN: Oh, is it?

THE COURT: Yes.

MR. COCHRAN: Very well.

THE COURT: The Bronco, Gary Sims, I think that is set for five o'clock this afternoon is my recollection.

MR. COCHRAN: I think the balance of the scope argument, maybe we can hear that perhaps before that time I think. I think Mr. Blasier has more on the balance of the Prosecution's idea of scope, if the court pleases.

THE COURT: All right. All right. What is the People's position?

MS. CLARK: I believe that one of the orders issued by the Court of Appeal was that there would be no further stays. Secondly, when the People requested their stay, there was no minute of time lost. The court indicated we would begin rebuttal on Monday morning and we then proceeded immediately, during the time that the writ was being prepared, to argue the admission of exhibits. There was not one minute of time lost in this trial. We did not start one minute later than we would have. So our writ took no time away from the jury or away from the court. With respect to Mr. Cochran's request to delay again until Wednesday, I think it is ridiculous. It is up to this court. This court is aware of what the information is, and I am not, so you know, we are operating at a real deficit here. I don't know what would qualify under 1054.7 at this late date, but Mr. Cochran, if he has no further witnesses to call before this jury, has to rest. That is all he has to do. And if he wants to take a writ, he may take the writ. He is always entitled to do that, that is fine, but not take any more time away from this jury. If he has no further witnesses for this jury to hear, he is through and the court has the power and in fact the duty at this point to say it is over. It is over. There is just so much that they can do to mess around and fantasize about other people that have startling new evidence. Only the court is aware of how startling or new it might really be or if it is even admissible before the jury.

THE COURT: Nothing startles me any more. I can understand that and I think I share that, your Honor. But nevertheless, this is another filibuster proposed by the Defense. It is the eleventh hour. We have witnesses siting upstairs that we have flown in waiting to testify in front of this jury, but we will not begin, we can't begin our rebuttal case until they rest and it is time that they do. I mean, that enough monkeying around here.

THE COURT: All right.

MR. COCHRAN: May I respond, your Honor? First of all, we don't need--I don't need counsel to tell us when to rest our case. I have indicated to the court where we are in this situation. And that is flat out an untruth. What happened was she had asked for until Friday noon until--she had asked until Friday morning. Your Honor gave her until Friday noon and then you said we were being to start rebuttal Friday afternoon. It had nothing to do with her. The jurors had something planned on Friday afternoon, so I mean, they can't ever get the record straight. Yes, there was a delay. There was no question there was a delay by virtue of them seeking a writ. Now when we ask for a writ--and under the circumstances it would seem to me they join in this because the record--your Honor's hands have been somewhat tied. We've talked all this time about truth to this jury. This jury is not getting the truth and we cannot say we rest in good conscience. As officers of the court we are not going to say those words. Further, you do know about the 1054.7 and I think they should know and that is why I said there is Brady implications about this. A lot of people know about this. Certainly now that we have become aware of it we have brought it to your Honor's attention. We have a right to pursue that, a key witness in this case. Also, for those reasons, we are not wasting anytime. We ask leave of court to do these various things. They brought this writ. We have a right to do it. And the point I should point out, your Honor, is this is how unfair it all is. What happened was they bring their writ. The Court of Appeals issues some kind of preliminary stay. We never get a chance to file anything. Your Honor then withdraws the jury instruction. They then resume. The issue is mooted. Mr. Simpson hasn't been able to file one piece of paper at this point. What kind of fairness is this? He is talking about wasting time. Nobody is monkeying around. This is serious business and we want our opportunity to have--our chance to file some papers. And just before lunch Dean Uelmen and I spoke with Mr. Fisher. He's prepared to go forward at this point. So this is serious business. We want to make this thing as clear as possible. The court can see where we cannot rest at this point. And I think that, you know, it is a little late for the People to be arguing this, your Honor, because they are the ones who precipitated this problem. If you had gone ahead as we had asked you to, to give that jury instruction, we wouldn't have had this problem, it would have been over at this point. They saw fit to take their writ and we have a right to do the same thing. The court gave them a stay. And as far as the Court of Appeals I think they misconstrue. I cannot believe that a Court of Appeals in this state would tell you that you can't grant any further stays at all in this case no matter what happens. They might as well come down and try the case if that is the case. Maybe they want to do that. But that sounds to me to be rather illogical. And you may take it up on that perhaps, from the look on your face, but I can't believe that was the intent. I know Judge turner and I'm sure that wasn't his intent or his import.

THE COURT: He might enjoy it.

MR. COCHRAN: Yeah. Well, Judge, he also has a lot of reading to do as you were aware earlier a couple weeks ago. He would have a lot of reading to do before he can catch up with this case. But I think we have a right to do that, your Honor. This is not wasting any time and there is other things that we can do. I am not, on behalf of my client, prepared to rest. You can imagine how Mr. Simpson felt on Friday. All these things went by through fax machines and telephone and we are finding out on the news what is happening. What do we say to our client there? All he wants is a fair trial and all these things are going on and he never gets a chance to file one piece of paper and all of a sudden it is mooted out and you are told you can't do that. We don't have to accept that. You might want to accept it. We don't accept it. We want to do something about it.

THE COURT: I'm just a poor trial court Judge.

MR. COCHRAN: Well, no. Well--no. You are too kind, your Honor. You are much more than that. But I think what we have a right to do that, your Honor, because really all of us have roles, transitory roles. But with regard to Mr. Simpson and seriousness, this has an effect upon him, it affects his life and the rest of his life, his ability to get a fair trial and that is what we are trying to do, your Honor. That is why it is so serious.

THE COURT: All right. Thank you, counsel. All right. At this point, the court is mindful first and foremost of the burdens that we've placed on our jury and the fact that they have been seated in our lounge waiting for the presentation of additional evidence today. Likewise, on the basis of the request--these are extraordinary issues. I don't think anybody would agree that--I think everybody would agree that these are unusual and unique legal issues. And if the Defense wishes to pursue their writ remedies, then they have every right to do so. And I am not going to require the Defense at this time to rest. What I will do, though, is exercise my discretion under the penal code and direct that the Prosecution, having indicated their ability to go forward with their rebuttal case, direct that they begin presenting their rebuttal witnesses at this time. The Defense will have leave to present further witnesses in their case in chief on Defense.

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

THE COURT: All right. That will be the ruling.

MR. COCHRAN: Your Honor--

MS. CLARK: Your Honor, may I--

MR. COCHRAN: Will the court listen to Mr. Blasier with regard to the rebuttal aspect?

MS. CLARK: Before you do that, what we are facing here then is for the ability--the People have to go forward with their rebuttal evidence?

THE COURT: That's correct.

MS. CLARK: And the Defense will then be allowed to resume its case in chief at some point during that rebuttal case, perhaps even including witnesses to rebut what we put on during our rebuttal case?

THE COURT: Their case in chief, counsel, subject to the same scope issues. All right. Let's proceed.

MS. CLARK: Will the court at least require that the Defense put on the record outside the presence of the People exactly what witnesses they intend to present in their case in chief to conclusion so that nothing is added as a result of the People's rebuttal evidence?

THE COURT: That has been done in the 1054.7 hearing this morning.

MS. CLARK: At what point is the court going to determine that the People have a right to find out to get disclosure of the secret information?

THE COURT: As soon as the investigation as to that issue has been concluded and the issue is available for public dissemination. That may happen sooner than you think.

MS. CLARK: Perhaps today?

THE COURT: I don't think today, but perhaps by the end of the week.

MS. CLARK: Perhaps by the end of the week? What if the People have to rest their rebuttal case without knowing about that?

THE COURT: Well, that is the nature of 1054.7, unfortunately.

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

MS. CLARK: Then at least can the court take the waiver of the Defendant?

THE COURT: They haven't rested their case yet so I am not inclined to take the waiver from the Defendant at this point.

MS. CLARK: Is there any limitation that the court is going to place on the nature of the testimony they present in their case in chief?

THE COURT: They have had a proffer under 1054.7 as to what they might go into.

MS. CLARK: And there are no other witnesses other than what is contained in the proffer under 1054.7 that they can call in their case in chief at this time?

THE COURT: That is my inclination at that time.

MS. CLARK: Then perhaps we offer to the court the option of asking them to rest subject to the availability of the information under 1054.7.

THE COURT: I'm not going to require them to do so and it is within my discretion not to require them to do so. I exercise my discretion in that manner. All right. Deputy Magnera, let's bring the jurors down, please.

MR. COCHRAN: One other question, your Honor. Did your Honor care to resume on the aspect--we wanted to call Detective Fuhrman for the purpose of having him state those words that were allowed and the one incident your Honor allowed us to play that was on tape. I don't think he claimed the 5th amendment for that.

THE COURT: All right. That request is denied. All right.

MR. BLASIER: Your Honor, it was my understanding that you ordered that all the glove evidence be brought down so we could evaluate. That hasn't been done. I have not received the letter that they wrote to Ruben with the pictures that he was sent. I have seen some boards over here. I have never seen any boards. I thought the pictures I got last week are the ones that they are going to use. I am not ready for Mr. Rubin. I heard a rumor that they are going to call him right now. I am not ready for that. I am not ready for the direct or the cross. Photographers, fine, if we can sort out which pictures they can use and which ones they can't.

MS. CLARK: I thought that was already done.

MR. DARDEN: I already advised--

THE COURT: Mr. Darden.

MR. DARDEN: Good afternoon, your Honor. I advised Mr. Blasier earlier that there were two witnesses that we certainly were not going to call who are on the list, nor were we going to use their photographs. There was a third witness who I advised him was more--most likely not going to be called as well.

THE COURT: All right. Which photographers are you going to call?

MS. CLARK: Are we going to or not going to call?

THE COURT: Are you going to call?

MS. CLARK: Mark Krueger, Bill Renken, Kevin Schott, Karen--I'm sorry--Karen Brown, Stewart West, Jim Chegia, Mike Romano, Robert Seib.

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

MS. CLARK: And Deborah Guidera.

THE COURT: All right. While we are bringing the jurors down, I'm going to ask you to exhibit to counsel the photographs that you are going to use.

MR. BLASIER: For the record, I have never received a print on Schott. All I've got is a color--a bad color Xerox. That doesn't show you anything.

THE COURT: All right. Who are your first two photographers?

MS. CLARK: Krueger and Renken.

THE COURT: All right. Do you have those photographs?

MS. CLARK: Yes.

THE COURT: All right. Show them to counsel.

MR. NEUFELD: Good afternoon, your Honor.

THE COURT: I'm fine. How are you? Nice tie.

MR. NEUFELD: I am glad to hear that.

MR. SHAPIRO: Cheaper by the dozen.

THE COURT: Mr. Neufeld, let me resolve this issue first.

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

MR. BLASIER: Your Honor, Renken they have ten pictures of the same game. I don't know why they really need ten. I was told that they were going to use two. Krueger, he is not down here yet.

MS. CLARK: There are taken from different angles, your Honor, and at different times during the day, which is important, because at one point a flash was used; another point a flash was not used, so all of these pictures are relevant. I mean, this is--

THE COURT: All right. I just want to make sure that they have been shown to Mr. Blasier, that he has had copies of them, he has had the ability to look at them. And the second witness, you don't have the photographs down here yet?

MS. CLARK: Somebody else was--I really--

MS. LEWIS: Your Honor, I had asked them to bring them down and he must have misunderstood.

THE COURT: This morning I ordered all of this stuff to be brought down, if you recollect.

MS. LEWIS: Okay.

THE COURT: I hate all the time we are wasting.

MS. CLARK: It was down here this morning