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In Camera Hearing On Furman Tapes, Disqualifying Ito

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LOS ANGELES, CALIFORNIA; TUESDAY, AUGUST 15, 1995
9:10 A.M. DEPARTMENT NO. 103
HON. LANCE A. ITO, JUDGE
(APPEARANCES AS HERETOFORE NOTED.)

(JANET M. MOXHAM, CSR NO. 4855, OFFICIAL REPORTER.) (CHRISTINE M. OLSON, CSR NO. 2378, OFFICIAL REPORTER.)

(THE FOLLOWING PROCEEDINGS WERE HELD IN CAMERA:)

THE COURT: We're in chambers with Mr. Cochran, Mr. Neufeld, Mr. Blasier, Miss Clark and Mr. Darden.

And I've asked counsel in chambers to discuss the problem that has arisen with regards to the Fuhrman tapes. And I want to make it clear for the record at this point that the court's knowledge of the tapes is based upon the representations that counsel have made to the court in chambers or at the sidebar and that at this point, the court has not -- does not physically have the tapes or the transcripts. I have not listened to the tapes or read any of the transcripts which I think actually is a good state of affairs at this point. There is a potential that one side or the other may wish to call my wife as a witness with regard to mr. Fuhrman. If that happens, then under the code of civil procedure section 171.1, Sub (a) sub (1), I'm required to disqualify myself as the trial judge in this case.

Although I do not have any personal knowledge of my wife's dealings with Mr. Fuhrman while she was a lieutenant at West L.A. And the watch commander back in 1985, the code says that a judge shall be deemed to have personal knowledge within the meaning of this paragraph if the judge or the spouse of the judge is to the judge's knowledge likely to be a material witness.

So I am deemed to have her knowledge for the purposes of disqualification. So if my wife is a material witness, then under this code section, I'm required to disqualify myself and perhaps declare a mistrial at this point. The alternative is to solicit a waiver from the parties.

But the code is very clear that I -- the only thing I can do is make counsel aware of that possibility and ask if that's something that they would contemplate. And that's the extent of what I can do as far as that is concerned. So that is something you should perhaps consider.

My proposal at this point is to transfer to department 100 for reassignment to another judge the issue of whether or not my wife is a material witness, whether or not she has any relevant, admissible or material information to offer on this point.

MR. NEUFELD: I would assume that's a preliminary issue in other words. So if the court finds she's not, then those other alternatives are irrelevant.

THE COURT: well, that's correct. But there is also the -- I mean, both of you will have to determine whether or not there's something -- having not heard the tapes, I don't understand the context of what my wife's potential involvement may be. So, you know -- since both of you have heard it. But it's something at this point I would not prefer to know the details about.

MR. COCHRAN: It's just as well. Judge, what happens to the trial while this is going on? Are we stopping the trial?

THE COURT: That's another thing that you should contemplate because, you know, once I am aware of grounds for disqualification, I have to take action, which I'm doing first thing this morning and have had some time to think about, do some research and see where we are.

My inclination would be to send you up to 100 to get a date and assignment for a hearing, and then if it's your desire to proceed further at this point with these witnesses, to finish the witness that we started, I don't think that there would be any impediment to doing that. And since I don't think my wife has the involvement with Michelle Kestler or any of the other scientific witnesses that we are at now, I don't see that that would be a problem.

But I think we need to resolve this issue at the earliest possible point.

Bob, let me give you a copy of this. This is a draft. Write on the top of it "draft." So that's where we are.

MS. CLARK: I would -- if we're going to --

THE COURT: Because, Marcia, you're the one who indicated that you may want to call her as a witness.

MS. CLARK: Right.

THE COURT: For either the two reasons that are discussed.

MS. CLARK: Right. I mean, she's -- I've had the pleasure of meeting her, and I think she would make an excellent witness. She really would.

THE COURT: No. No. You can't say stuff like that.

MS. CLARK: That's right. I'm sorry.

But yeah, there's that potential. And I just -- it really depends on what the ultimate ruling is, what comes in, what goes out, in what form. That really is going to have a lot to do with our position, what witnesses we need to rebut with, and we don't know that yet.

I would like to proceed with the rest of the trial. If another judge is going to be determining these issues, then I would only indicate that perhaps in an abundance of caution, we should take a waiver from both sides that you can continue to hear all the rest of the case just to make sure it's clear. And I'm sure the defense have no problem with that.

MR. COCHRAN: I don't know that. I don't know. I don't know that we're going to waive. We've tried to see -- I don't know how things are going to happen. That's why I'm having stuff from Dershowitz.

We're perfectly comfortable here. But at this point, I can't say we're going to waive anything. I think -- how can I say that? I've got a client here --

Judge -- let me ask you this, judge. I've never been clear. If the prosecution insists -- we're telling you, we're not going to call Captain York. It's not a certain area where I think we're going to call her. That was something brought out by the people you understand.

If you had to recuse yourself, does that mean there's a mistrial or another judge comes in?

THE COURT: I don't know.

MR. COCHRAN: We don't have a brief on that yet, do we? I don't know that this has ever happened.

MR. SHAPIRO: Yes. I think another judge can come in. There's a lot of precedence for this.

THE COURT: If you can find those precedences in the case law --because I have my eager beavers and legal eagles working on it now.

MR. SHAPIRO: There's a federal case in Nevada where that happened, where a sitting federal judge was actually indicted while he was sitting in the middle of a trial.

MR. NEUFELD: Right on point.

MR. COCHRAN: Very good, Peter.

MS. CLARK: Anyway, I agree. I think it's probably true that you would have another judge sit in at least for these issues.

MR. COCHRAN: I meant not only for these issues.

THE COURT: For the whole enchilada.

MR. COCHRAN: You're talking about the whole enchilada.

MS. CLARK: What about just for the witnesses?

MR. SHAPIRO: What if a judge dies during the trial?

THE COURT: That's legal cause for a mistrial. That's one of the defined causes.

MR. SHAPIRO: Also, couldn't the parties stipulate to continue?

MS. CLARK: I'm sure you can always do that.

THE COURT: I would imagine they could.

MR. NEUFELD: Judge, other people are dealing with the substance. Again, I'll get back to the nitty-gritty of calendar just so you know how quickly we have to do this.

I assume Michele Kestler will be finished if not this morning, certainly this afternoon. We have another witness who's here. That's Larry Ragle. After that, it's, you know, our intent to actually deal with these tapes in front of the jury before we go any further with the trial.

THE COURT: Then that tells me that we need to proceed with alacrity to get this determined.

MR. NEUFELD: That's what I said yesterday.

MS. CLARK: We also need a 402 on Ragle. We just got his notes yesterday for the first time. I don't know what they're calling him for. If it's crime scene collection or something like that, it's cumulative to Henry Lee. We have no clue.

MR. COCHRAN: He hasn't testified yet.

THE COURT: Hold on.

MS. CLARK: Assuming you are going to call Henry Lee.

THE COURT: Hold on. All right.

More importantly, let's resolve what we're going to do with this recusal issue.

MR. COCHRAN: Can we have a little time on this, judge, give us like 10 minutes? We -- I haven't told the client anything. There is a real client in this case. I've got to talk to him. I need to get word from back east.

MS. CLARK: We need to confer too because we got a draft of a brief done last night. The case law would seem to indicate with respect to ruling on the tapes themselves, what comes in and out, it should probably be another court given what's the content based on the appearance standard. And these were the cases that came out. I'll show the court the draft, but --

THE COURT: Make sure you write on the top of it this is a draft that you have.

MS. CLARK: But that's the way it seems to be going. I asked everybody to go out and brief this, tell me what you got here, and that's the way it seems to appear. And it's a question of the appearance, you know, would the appearance of it on its face, you know --

THE COURT: Well, let me ask you this though, Marcia. I hate to dump this issue on another judge because we're talking about several hours of tape and hundreds of pages of transcript plus having to go back and put Fuhrman's testimony in context.

MS. CLARK: Right.

THE COURT: So if -- my proposal to you is that if we determine that my wife is not a material, a relevant witness, if another judge makes that determination, then to have that material redacted from the transcript and from the tapes and then I'll do the evaluation of what's relevant or admissible on the remainder, it would simply be quicker I think by several days.

But if you feel -- I mean, if you think you've got good authority on appearances, I'm willing to listen to that. I'm just offering that as an alternative. It may be a little --

MR. COCHRAN: We need a little time to pull back and talk to everybody. Then we can come back to you at that time and at least tell you where we are.

MS. CLARK: I would like to have that opportunity too.

THE COURT: Okay.

MR. NEUFELD: You know what though?

THE COURT: Let's do this.

MR. NEUFELD: We should preliminarily have those discussions now only because given the chronology you just heard, you may very well -- this matter may have to be referred for that limited purpose to somebody this afternoon. That's all I'm saying. So we should probably have that discussion with our respective sides now.

THE COURT: I was going to say, why don't we come back at 10:00 o'clock. It's a quarter after now. Let's come back at 10:00 o'clock and see what your positions are.

MR. COCHRAN: Thank you very much.

(RECESS.)

THE COURT: All right. We're back in chambers with Mr. Cochran, Mr. Shapiro, Mr. Neufeld, Mr. Douglas, Mr. Blasier, Mr. Scheck; also with Miss Clark and Mr. Hodgman and Mr. Darden.

Counsel, you've had some time to contemplate the conflict issue that appears before the court, the 171.1(A)(1) problem, and the court has proposed a tentative -- shared with you a tentative ruling, and I would like your thoughts.

MS. CLARK: I think that it's -- that the issue as to whether or not Captain York will be a material witness can't really be resolved by anyone until it's determined what if any of the tapes come in or in what manner the evidence comes in.

THE COURT: You mean, you don't feel that can be separated out from the wider hole?

MS. CLARK: I really don't.

THE COURT: Why do you think that?

MS. CLARK: Well, because what the defense is allowed --

THE COURT: The reason -- I don't ask you a rhetorical question. I ask because, you know, having not heard them or read the transcripts, I don't have a flavor for what it is and why you would say that.

MS. CLARK: Yeah. And I appreciate that.

The reason is, there are various ways that you could go in the presentation of the evidence of the tapes depending on what the court thinks is admissible, what's relevant. In my opinion, you already know my opinion on them. I think they're largely irrelevant to the issues.

Whatever we may think of the statements made in them, even if it is assumed that he's speaking in his own voice and not as a character or attempting to embellish to give material for a script, whatever you assume, if the tapes are played, then the issue of the exaggeration and role playing will be squarely framed for the jury in which case --

THE COURT: Are there any other examples? I mean, would this be a cumulative example or a prime example of exaggeration or embellishment?

MS. CLARK: Wait, wait, wait.

With Captain York? It would be a good example. It's the only example we would have really where there is a live witness who can say that's way out of line, you know, a live, credible witness that we know of at this time and that --

you know, I mean, the credibility of the witness that you call to put things back in perspective is key. You know, if all we do is call another person of questionable credibility to say it didn't happen that way, then you're then -- there's nothing to counter really.

But you want to call somebody of greater credibility to say it's a gross exaggeration, if anything happened like that, I would have remembered it, that kind of thing. So this is probably the best way to put it in perspective.

If, for example, though the tapes are not played, if there is a stipulation that Mark Fuhrman back in '85 through '87 used the word, then what's the point? Then that would not be proper rebuttal because what is she rebutting? She's not going to be able to say anything in that regard.

So the nature of the evidence that's put before the jury, the amount, the degree, the kinds of incidents that are put before the jury are going to in large part determine whether or not that's appropriate rebuttal.

THE COURT: So your position at this point is not only would another judge have to make the call on materiality of Captain York, but also materiality of the whole Fuhrman tape issue.

MS. CLARK: Right.

MR. COCHRAN: First of all, with regard to our position, we would like to argue this in open court. We're asking for an opportunity. But let me give you an idea of where we are going.

I really don't think there is an issue at all. We don't want to leave this court. We don't want to go anyplace because we are the ones -- we are the proponents of this evidence. As far as the tapes go, we fought to get them here. We know what they say. We talked to Miss McKinney.

First of all, these tapes are not anything about any role playing. This is real hard evidence where this man is speaking himself. That's going to be the testimony. Without going into it, the part that relates to your honor's wife is very, very small and we propose as follows, because we don't want a mistrial in this case. We're never going to offer that.

We propose that the tapes be given to you with that part redacted. It's not even relevant. It's not relevant at all to the issues here because remember yesterday, when we talked about this, there are three areas; racial animus, the propensity to implicate innocent individuals and overall category that we call credibility where he just lied about certain things.

I can tell you, this man has committed perjury. The district attorney's office can do whatever they want to do. But this is the -- this is going to be the key part of this case because their star witness is caught under oath lying. These tapes prove it in his own voice and Peggy York has nothing to do with it.

We all knew about Margaret York before these tapes. She has nothing to do with it. Disparaging Margaret York has nothing to do with that, none of those categories. So we would be wasting --we're not agreeing voluntarily to go anyplace else. Why should we? We don't want a mistrial. We want to go forward. This has nothing to do with anything.

Our obligation was to advise you, and we're telling you what we propose to do to impeach this man. And as I mentioned to you before before we went upstairs, Captain York will never be called as a witness by us. Anyone who tries to call her, it's preposterous. It has nothing to do with anything.

If they want corroboration, I'll get them corroboration, the people this police officer beat out in Hollenbeck almost to death where he had 66 counts of ADW in his packet -- that was investigated -- all the people he stopped. We know the people. We know the party when he talks about Tom, Tom Betriano. This will come alive for you when he talks about Commander Hickman being a dickhead and all these people over and over, all the people, you know, Commander Fricke, Chief Frankle.

These are real people. These are real incidents. This is this man's view, and it's chilling and it's frightening and they have to face up to it. So it has nothing to do with Captain York, because he didn't like anybody. He doesn't like women. Captain York, to be convenient, falls in that category.

That's not what we're going to be talking about. We're talking about how it relates to the Simpson case. As you said yesterday so well, let's try the Simpson case.

And that's the scenario. In that scenario, it seems to me she wants to put this -- I want to make sure everybody understands where we stand. We want to do this in open court and we are not agreeing to go anyplace because we don't think it's necessary.

MS. CLARK: All right. Your honor, you can see as the issue is framed, of course, they would like to preclude rebuttal testimony. They know that Captain York would make an excellent rebuttal witness if what they are planning to do is permitted by any court.

They want to give us our corroboration. They want to tell us what witnesses to call. You know, do I need to be told I'm being given a pig and a poke? Thank you very much, I know how to try my own case.

Counsel wants to role play. We're not role playing. That is the issue they raised, one of the issues they framed. Let's get on to the Simpson case. I agree.

You want to talk about collateral issues? That man's racial animus, as reprehensible as it is, if it is true, is another issue for another time. We can convene the mini trial of Mark Fuhrman when we are done with this case. But there's no way -- your honor, really the only point of credibility framed here is -- the only point on which his credibility is in issue is that glove. Everything else is cumulative.

THE COURT: Miss Clark --

MS. CLARK: Johnnie Cochran gives pre-condition runs from the tapes. There's more than they're representing. It's not fair. You're being given half a loaf here. I know you are wise enough to realize that, but it's really unfair because there is an impact to all of this.

THE COURT: What you need to do is go back and reevaluate the rulings of January 20th --

MS. CLARK: I have.

THE COURT: -- Where I lay out it is the combination in that particular incident with Kathleen Bell. It was racial animus, interracial couples, willingness to fabricate. It was those three things that got that admissible.

So I don't know what's on the tapes. I don't know what we're talking about here.

MS. CLARK: Right.

THE COURT: So -- but at this point, since obviously we're not going to agree, we'll need to put this on the record in open court in front of Mr. Simpson, and I think the only alternative that I have before me at this point is to send it out for a hearing.

MR. COCHRAN: I think you should here us before you do that.

MS. CLARK: Counsel is saying they're never going to call Captain York. Of course they're not going to call an adverse witness.

MR. COCHRAN: Can I interrupt? She's not an adverse witness.

MS. CLARK: Wait. Mr. Cochran, you want --

THE COURT: We are on the record.

MS. CLARK: It's very unfair for counsel to say we're not willing to frame this issue, but we have to try our case too.

And I did go back over the court's ruling very carefully and I understood the court to rule that certain things had to be shown. But there is one key thing that has never been shown that is the one thing that had to be shown to make this relevant. That is an opportunity to do what they're saying they did, and that's the only relevance for this racial animus evidence; is did he plant the glove.

He couldn't have planted the glove. The proof has been demonstrable. It was very clear and uncontroverted in this courtroom. There was one glove at this crime scene. He never could have had access to the other.

So what is the relevance of any of this? You know, I'm not saying that we want to sweep it under the rug or we want to paint him like this golden knight and shining hero. We don't.

But we want to try the Simpson case. We want to put on the evidence that's -- we're searching for the truth, judge. The truth we are searching for here is who committed these murders, not whether Mark Fuhrman is a racist. That's a separate issue for another time perhaps, maybe an IAD investigation. I understand he's retired.

But the bottom line is not him. It's this evidence, who committed this murder. And the evidence is very clear, concrete that there was no planting of any glove. The defense can't get around that. All they want to do is put on evidence to inflame the jury so they'll forget about the evidence in this case and go ahead and vote emotionally.

I hope their very cynical view of this jury is proven wrong and that the jury will rise to the occasion and say, "no, we're going to look at the evidence" and realize that all of this stuff with the tapes has no relevance to this case whatsoever. It is a very shrewd, cynical and cold- eyed effort to make sure that the jury never looks at the case. That's all this is.

MR. COCHRAN: May we proceed? Without wasting a lot of time here, the only people we have to convince are the 12 people over there. Let me conclude by saying this so that you know.

On the tapes, contrary to what Miss Clark says, on July 28th, 1994, Mark Fuhrman says, "I am the key witness in the trial of the century. They know it. If I go down, their case goes down," and he says, "Bye-bye."

MS. CLARK: That's what he says.

MR. COCHRAN: That's what he says. We want to see what the jury says about that. Can we put this on the record, please?

THE COURT: all right. But given our non-agreement on what ought to occur, I'm going to send it out.

MR. COCHRAN: Well, at least, will you hear us, please? We're arguing you shouldn't do it.

MR. SCHECK: We think this is a deliberate effort to create a mistrial.

MS. CLARK: I don't think Mr. Scheck should be allowed to be heard. One lawyer.

MR. SCHECK: You know, your honor, you heard her the other day when she was opposing these tapes before you tell me to shut up when I pointed out that she should just stop. She has quoted from my bar card. She has called me without a brain. I have been completely civil to her and she should just stop it.

(AT 10:45 A.M., IN CAMERA PROCEEDINGS WERE CONCLUDED.)

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