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From: [email protected] (Myra Dinnerstein)
Subject: Fuhrman Tapes - Ruling
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SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY
OF LOS ANGELES

Date: 31 August 1995
Department 103
Hon. Lance A Ito, Judge
Deidre Robertson, Deputy Clerk
People v. Orenthal James Simpson
Case # BA097211

FUHRMAN TAPES

The court has read and considered the Defense Offer Of Proof Re:
"Fuhrman Tapes", the amendments to the original offer of proof,
the responses filed by the prosecution, listened to the redacted
audio tapes, read and considered the multiple transcripts of the
redacted audio tapes, and heard the argument of counsel.

The Fuhrman tapes and transcripts raise a number of complex and
compelling issues.  This court's focus, however, is legally
restricted to just two issues: 1) Is Orenthal James Simpson
guilty of the murders of Ronald L. Goldman and Nicole Brown
Simpson, and 2) How should these tapes impact upon the testimony
by and about now retired Los Angeles Police Department Detective
Mark Fuhrman.

A key part of the defense case is the allegation that Fuhrman,
motivated by hatred of blacks/African Americans and interracial
couples, transported a bloody leather glove from the Bundy crime
scene to the defendant's Rockingham residence for the purpose of
placing the blame upon the defendant for the savage murders of
Ronald L. Goldman and Nicole Brown Simpson.  In an earlier
related ruling issued 20 January 1995, this court tentatively
ruled that the defense may present the testimony of one Kathleen
Bell concerning sometime between 1985 and 1986:

"The Redondo Beach incident occurred sometime between 1985 and
1986.  It is alleged that Fuhrman made a comment from which one
might infer racial animus, contempt of interracial couples and
willingness to manufacture probable cause to stop a motor
vehicle. (1)  It has been agreed by the parties that defendant is
African-American and victim Nicole Brown Simpson was Caucasian.
It would also appear from this record that Fuhrman had met
defendant and Brown Simpson on one memorable prior occasion in
1985. (2)  Assuming Bell's statement to be true, a direct
inference of a credibility problem is apparent.  *If the
defendant can make an offer of proof as to what evidence they
will produce to suggest the moving of evidence and the court is
satisfied by that offer of proof, the prosecution's objections
will be denied.* [Note: italicized portion in asterisks]

It is important to note that the basis of the 20 January 1995
ruling was 1) the unique combination of racial animus,
interracial couples and a willingness to fabricate, and 2) the
Kathleen Bell offer of proof which included all three elements.
During the course of the presentation of the prosecution's case
in chief, Fuhrman testified without objection that he had not
used a particular racial epithet in the past ten years.

The defense proffers include 41 examples of Fuhrman using the
particular racial epithet in question and 18 examples of
misconduct argued to be relevant on the issue of Fuhrman's
credibility and willingness to fabricate.  The defense also
offers 2 comments made by Fuhrman in late July of 1994 which are
argued to be relevant to Fuhrman's attitude towards testifying as
a witness.  See Evidence Code Section 780 (j).  Interestingly,
the proffers do not address what evidence supports the allegation
that the Rockingham glove was moved. (3)  The court therefore has
61 incidents to evaluate.

Foundation Testimony By McKinny

Laura Hart McKinny testifies that in 1985 she was engaged in
writing a screenplay about women in police work when she met
Fuhrman at a restaurant in Westwood.  Upon learning Fuhrman was a
police officer with strong negative feelings about women in
police work, McKinny agreed to use Fuhrman as a technical
consultant, eventually agreeing to pay Fuhrman ten thousand
dollars ($10,000.00) upon the sale of the screenplay.  McKinny
testifies that her conversations with Fuhrman were for research
purposes, to provide realistic dialogue, proper police procedures
and insights into a police officer's thought process.  The basic
story to be told was that of a competent woman police officer who
is transferred into a police division patterned after LAPD's 77th
Street Division, and partnered with another officer who is a
member of MAW (Men Against Women) and opposed to women being
police officers.  McKinny testified that racial tensions were not
a subplot of her intended and eventual screenplay.  McKinny
testified that she would tape record portions of her
conversations with Fuhrman, and that she would transcribe those
recorded conversations within a day or two of each interview. (4)
McKinny was adamant that her screenplay was intended as a
fictional work.  Although the screenplay has been optioned, it
has not been purchased as of 28 August 1995.

Use of Racial Epithets

A defendant in a criminal matter is entitled to confront and
cross-examine the witnesses called against him.  This is a right
guaranteed by the Sixth and Fourteenth Amendments to the United
States Constitution as well as article I, section 15 of the
California Constitution.  Evidence Code Section 780 provides that
in determining the credibility of a witness, the jury may
consider "...any matter that has any tendency in reason to prove
or disprove the truthfulness of his testimony at the hearing,
including but not limited to any of the following: ... (f)   The
existence or nonexistence of a bias, interest or the motive."
The California case law requires trial courts to allow cross
examination about bias against racial groups and that undue
restriction upon the right of effective cross-examination is
reversible error per se.  In re Anthony P. (1985) 167 CA3d 502,
507, 513.  This is not to say, however, that the trial court
lacks the authority or is absolved from the duty to appropriately
control the inquiry into a witness' racial bias.  Where the
cross-examination relates to impeachment evidence, as is the
situation in the case, it is the duty of the trial court to make
certain the jury has sufficient information to appraise the
biases and motivations of the witness.   Chipman v. Mercer (9th
Cir. 1980) 628 F2d 528, 530.  Similarly the appellate courts have
wisely noted that the trial court retains discretion to exclude
collateral facts offered for impeachment purposes.  People v.
Lawergne (1971) 4 C3d 735, 743; People v. Atchley (1959) 53 C2d
160, 172.  It is also important to note the unique factual
situation wherein Fuhrman, Nicole Brown Simpson and the defendant
cross paths in 1985, 1989 and finally in 1994.

On the cross-examination the defense was allowed to question
Fuhrman as to his biases against African Americans. (5)  The
defendant now seeks to offer to the jury extrinsic evidence of
Fuhrman's racial bias in the form of 41 statements made by
Fuhrman to McKinny wherein Fuhrman uses the racial epithet
"nigger" in apparent disparaging reference to African Americans.
The court has reviewed each of the 41 uses of the racial epithet
in question either by reference to the transcript(s), audio tapes
or both.  The court finds that each involves Fuhrman's use of the
subject racial epithet in a disparaging manner within the time
frame posed by the cross examination and in contradiction to his
testimony before the jury.  It is therefore relevant and
admissible as impeachment.

Having found Fuhrman's use of the subject racial epithet to be
relevant and admissible, the court must then analyze each usage
under Evidence Code Section 352:  "The court in its discretion
may exclude evidence of its probative value is substantially
outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of
misleading the jury."  The specific racial epithet at issue is
perhaps the single most insulting, inflammatory and provocative
term in use in modern day America.  The court's examination of
each of these 41 uses reveals not only the racial epithet itself,
but a context that only adds to the insulting and inflammatory
nature.  For example:

#5:  "...all these niggers in L.A. City government...all of them
should be lined up against a wall and fucking shot."

#6  " You know these people here, we got all this money going to
Ethiopia.  For what?  To feed a bunch of dumb niggers that their
own government won't even feed."

#32  "What if I've just been raped by two buck niggers, and a
female shows up?"

#34  "It's pretty clear-cut who the assholes are.  You go to
Pacoima, you got bikers and niggers."

The probative value of the evidence of Fuhrman's use of racial
epithets comes from the fact that he has testified that he had
not used the term in the last ten years, thereby implicating his
credibility.  Because of Fuhrman's discovery of a bloody glove at
the Rockingham residence and its scientific significance, he is a
significant although not essential witness against the defendant.
As such, the defendant is entitled to effectively cross examine
him.  However, as noted above, the court retains some discretion
in controlling the inquiry.  The defense may present McKinley's
testimony as follows:

a.   Her acquaintanceship with Fuhrman.
b.   The nature and purpose of their relationship.
c.   That McKinny has had tape recorded and transcribed
conversations with Fuhrman for the nine year period between April
of 1983 and July of 1994.
d.   That during the course of those conversations between 1985
and1986 Fuhrman used the term "nigger" in a disparaging manner 41
times.

The defense may play and display the following excerpt as
impeachment:

#8  "We have no niggers where I grew up."

#13  Q: "Why do they live in that area?"
       A: "That's where niggers live."

The court finds the probative value of the remaining examples to
be substantially and overwhelmingly outweighed by the danger of
undue prejudice.  Evidence Code Section 352.  Just as a defendant
with prior felony convictions testifying before a jury is not
entitled to a false aura of credibility, neither is Fuhrman.  It
is apparent by the prosecution's offer to stipulate that Fuhrman
had used the subject racial epithet in a disparaging manner
within the relevant time period that the prosecution recognizes
the danger of presenting what might now appears to be false
evidence or perjured testimony.  See In re Sassounian (1995) 9
C4th 535.  Having now recognized the problems with presenting
Fuhrman as a witness, the concession is appropriate.

Incidents Of Alleged Misconduct

The defense seeks to offer 18 incidents of alleged misconduct to
attack Fuhrman's credibility, to support the argument that
Fuhrman planted evidence to support the testimony of Bell.  The
defense cites Evidence Code Sections 780 (Credibility Of
Witnesses), 1101 (b) (Prior Bad Acts) abd 1105 (Habit & Custom To
Prove Specific Behavior).  As noted in the ruling of 20 January
1995, there must be some evidence in the record from which
counsel might argue, however reasonably or unreasonably, that
Fuhrman moved a glove from the Bundy crime scene to the
defendant's Rockingham residence for the purpose of placing blame
for two brutal and savage murders upon the defendant.  In
argument in opposition to the admission of these incidents of
alleged misconduct, the prosecution has challenged the
sufficiency of the defense proffer filed 23 January 1995 despite
the challenge from the prosecution and inquiry by the court.
That proffer essentially was arguably favorable to the defendant,
it can be assumed that he would plant the glove.  This assertion
is not supported by the record.  The underlying assumption
requires a leap in both law and logic that is too broad to be
made based upon the evidence before the jury.  It is a theory
without factual support.  It fails to support the admissibility
of these incidents of alleged misconduct as prior bad acts or
evidence of custom and habit.

While the current state of the record does not indicate evidence
that would reach the minimal threshold necessary to find inquiry
into the planting of evidence theory relevant, and the court so
finds, the defense has not yet tested its case.  The court will
therefore analyze each incident, assuming arguendo, the minimal
threshold of relevance is later met.

1.  Reaction to being called names:
McKinny sets the stage by asking what Fuhrman would do in front
of a movie theater while moving the line out of the street and
someone calls the officer a foul name.  Fuhrman replies that the
person would go to jail for interfering with a police officer, a
violation of Penal Code Section 148.  This is clearly an instance
of suggesting a scenario for the screenplay.  As such, it has no
relevance.  The Evidence Code Section 350 objection is sustained.
As a suggested scenario for a screenplay, its negligible
probative value is substantially outweighed by the undue amount
of time that would be consumed in its presentation and
refutation.  The Evidence Code Section 352 objection is
sustained.

2.   Tearing up a driver's license as a pretext to arrest:
This incident is part of the reaction to being called names
incident.  Fuhrman indicates an arrest, i.e. taking the subject
to the station, could be justified if the subject did not have
proper identification, and that if the subject had a driver's
license Fuhrman would just rip it up.  McKinny then asks if
Fuhrman has ever done this before and the transcript indicates a
nod.  McKinny then asks Fuhrman if he has ever falsified a police
report, Fuhrman replies, "Never."  This is the same discussion
suggesting a scenario for a screenplay.  As such, it has no
relevance.  The Evidence Code Section 350 objection is sustained.
As a suggested scenario for a screenplay, its negligible
probative value is substantially outweighed by the undue amount
of time that would be consumed in its presentation and
refutation.  The Evidence Code Section 352 objection is
sustained.

3.   Hype arrest:
This incident is a continuation of the being called names
incident.  In the midst of a long statement, the following is
found in the context of falsifying police reports: "...of some
hype, you know says, ah, pick the scab, squeeze it, looks like
serum's coming out, as if it were hours old...That's not
falsifying a report.  That's putting a criminal in jail.  That's
being a policeman."  This case does not involve an arrest by
Fuhrman.  Because the proffer goes to a collateral matter, the
probative value is therefore non-existent.  The Evidence Code
Section 350 objection is sustained.  No factual basis has been
offered in support.  Admission would require diversion into what
would essentially be the trial of a violation of Health and
Safety Code Section 11550, being under the influence of a
controlled substance, which would necessitate undue consumption
of time.  The Evidence Code Section 352 objection is sustained.

4.   Use of deadly force in making arrests:
This case does not involve the use of deadly force.  The proffer
is completely irrelevant.  The Evidence Code Section 350
objection is sustained.  Admission of this statement would create
the substantial danger of undue prejudice.  The evidence Code
Section 352 objection is sustained.

5.   Use of deadly force in making arrests:
This case does not involve the use of deadly force.  The proffer
is completely irrelevant.  The Evidence Code Section 350
objection is sustained.  Admission of this statement would create
the substantial danger of undue prejudice.  The Evidence Code
Section 352 objection is sustained.

6.   Revenge for killing policemen:
This case does not involve the killing of a police officer.
There is no suggestion that the defendant has in any way
physically harmed any police officers.  The record indicates the
defendant was on friendly terms with the officers of the West Los
Angeles Division.  The proffer is completely irrelevant.  The
Evidence Code Section 350 objection is sustained.  The
inflammatory nature of this statement creates the substantial
danger of undue prejudice.  The Evidence Code Section 352
objection is sustained.

7.   Manufacturing probable cause for arrest:
The discussion involves detaining someone who does not belong in
the area and later being able to justify the arrest:  "If I was
pushed into saying why I did it, I'd say suspicion of burglary.
I'd be able to correlate exactly what I said into a reasonable
probable cause for arrest.  This case does not involve an arrest
made by Fuhrman.  The incident does not speak to racial
animosity.  It is not relevant.  The Evidence Code Section 350
objection is sustained.  Presentation of this incident would
require the undue expenditure of the court's time given its
negligible probative value.  The Evidence Code Section 352
objection is sustained.

8.   Field interrogation techniques:
This case does not involve the field interrogation of any suspect
by former Detective Fuhrman.  The proffer is completely
irrelevant:  The Evidence Code SEction 350 objection is
sustained.  Presentation of this incident would require the undue
expenditure of the court's time.  The Evidence Code Section 352
objection is sustained.

9.   Cover up of unlawful use of force:
McKinny seeks to place one of her female characters in a
situation where she does not inform upon officers who have beaten
her arrestee.  Fuhrman goes on to tell of an incident where he
was the first responding officer until after two policemen had
been shot.  Fuhrman states that he chases and beat the suspects,
and escaped any punishment after an extensive Internal Affairs
investigation since all his fellow officers knew to keep their
mouths shut.  This case does not involve any police officers as
victims, any pursuit of a suspect where there is any allegation
of unnecessary force used in the arrest, or any cover up of
unnecessary force upon an arrestee.  The proffer lacks relevance
to this case.  The proffer does not included mention of a basis
in fact.  The argument of the parties indicates there is
substantial factual dispute as to whether any actual incident
matches the scenario painted by Fuhrman.  There is a substantial
danger that the proof of the underlying incident, if such be
available, would necessitate the undue consumption of the court's
time. (6)  The court also finds that having balanced the indirect
nature of the probative value of the proffered evidence with the
danger of undue prejudice, the court finds that defense counsel's
characterization of this incident as a "blockbuster" most
eloquently speaks to the inflammatory nature of this incident,
creating the substantial danger of undue prejudice.  The Evidence
Code Section 352 objection is sustained.

10.   Necessity for the police officers to be willing to lie:
Fuhrman discusses his then current partner, one of the "good
guys" who is not willing to lie or cover for a partner.  No
argument or allegation has been made that Fuhrman has been lying
to cover for his partner, Det. Phillips, nor has there been any
argument or allegation that Phillips has been lying to cover for
Fuhrman.  There is no direct relevance to this case.  The
Evidence Code Section 350 objection is sustained.  Presentation
of this incident would require the undue and unwarranted
expenditure of the court's time.  The Evidence Code Section 352
objection is sustained.

11.   Revenge against those who oppose the choke hold:
Fuhrman expresses extremely negative attitudes towards the ACLU
and the NAACP with regard to their opposition to the use of the
choke hold by the Los Angles Police Department.  This case does
not involve the use or application of any choke hold.  The
proffer is completely irrelevant.  The Evidence Code Section 350
objection is sustained.  The inflammatory nature of the statement
creates the substantial risk of undue prejudice.  The Evidence
Code Section 352 objection is sustained.

12.   Destruction of a suspect's property:
Fuhrman discusses the actions of another officer which involve
the destruction of personal property of a suspect.  The alleged
actions of this other officer are not relevant to any of the
issues in this case.  The Evidence Code Section 350 objection is
sustained.

13.   Tearing up of driver's licenses:
In the same discussion as Incident 12 Fuhrman relates that this
other officer would often tear up suspect's driver's licenses.
As noted above. the alleged actions of another officer have no
relevance to any of the issues in this case.  The Evidence Code
Section 350 objection is sustained.

14.    Beating of suspects:
This incident appears to be the came as Incident 9, with the
addition that one of the suspects died as a result.  That
addition increases the likelihood the account is fictional.  No
factual basis has been offered to prove the existence of an
incident involving Fuhrman where a suspect was beaten to death.
The proffer is rejected for the same reason stated as to Incident
9.

15.   Testimony for events not witnesses:
In the context of discussing the incompetence of women police
officers, Fuhrman discusses several incidents where he is the
third or fourth car at the scene of a call, the women officers
whom he refers to as munchkins are not capable of handling the
situation and he, as the macho man, is required to step in and
take over the entire situation, including testimony in court.
The proffer implies a willingness to testify to events not
actually witnessed and complicity by the prosecuting attorney.
The proffer does not suggest any actual basis in fact.  Given the
collateral nature of the statement and the inferential nature of
the statement, the court finds its probative value to be severely
limited such that it is presentation would require an undue
consumption of time.   The Evidence Code Section 352 objection is
sustained.

16.   Coercing statements from suspects:
Fuhrman relates taking 3 gang members in for questioning after a
gang related murder and beating information out of them.  The
proffer is not factually connected to any specific incident.
This case does not involve coerced statements.  The proffer is
irrelevant.  The Evidence Code Section  350 objection is
sustained.  The inflammatory nature of the statement create the
substantial rise of undue prejudice.  The Evidence Code Section
352 objection is sustained.

17.   Baton use in different parts of the City:
Fuhrman discusses the non-use of the baton in Bel-Air versus its
use in the south end.  This case does not involve the use of
force, batons or otherwise.  The proffer is irrelevant to the
issues in this case.  The Evidence Code Section 350 objection is
sustained.  The inflammatory nature of the statement created the
substantial risk of undue prejudice.  The Evidence Code Section
352 objection is sustained.

18.   Automobile stops:
Fuhrman discusses stopping cars or suspects that are out of place
in his regular patrol area.  This case does not involve an
automobile stop where there was no probable cause.  The proffer
is irrelevant.  The Evidence Code Section 350 objection is
sustained.  The presentation and refutation of this statement
would require the undue and unwarranted expenditure of the
court's time.  The Evidence Code Section 352 objection is
sustained.

Attitude Towards Testifying

Evidence Code Section 780 (j) and CALJIC 230 provide that the
jury may consider a witness' attitude towards the action in which
he or she testifies or towards the giving of testimony.  The
defense has offered two statements by Fuhrman which appear on the
28 July 1994 tape.  The first deals with Fuhrman's role as the
"key witness," and the second concerns an attorney's advice to
"...go for Shapiro, he's an asshole."  The defense offers the
first as an apparent prior inconsistent statement (7) to the
following:

Q:   "Did you believe that you would be an essential witness if
you were the first to find an important piece of evidence?"

A:   "Well, I couldn't make that determination at the time [upon
discovering the glove on 13 June 1994], sir.  I didn't even know
what the implication of the glove was."
RT 106/18625

The defense offers the following from the 28 July 1994 tape
recorded conversation with McKinny:  "I'm the key witness in the
biggest case of the century.  If I go down, they lose the case.
The glove is everything......bye bye."

The 28 July 1994 statement, made within weeks of the conclusion
of the preliminary hearing in which Fuhrman testified, is not
inconsistent with Fuhrman's testimony of 14 March 1995.  No other
exception to the hearsay rule has been offered.  The objection is
sustained.

The second proffered excerpt from the 28 July 1994 conversation
with McKinny is in apparent reference to an article which
appeared in The New Yorker magazine:

"The funny thing about it is just like the attorney said:  "For
the rest of your life, this is you:  "Bloody Glove Fuhrman."  If
you don't make it pay off, you're going through all this for
nothing.  So, go for Shapiro.  He's an asshole."

On cross-examination Fuhrman was questioned about his plans to
sue various members of the defense team for libel and slander.
The proffered quote appears to be from an attorney and not from
Fuhrman.  It adds nothing to the jury's store of knowledge about
Fuhrman and his credibility.  It is irrelevant.  The 350
objection is sustained.

The clerk of the court is directed to immediately serve a copy of
this order upon counsel for the parties by facsimile and upon
their next appearance in court.

IT IS SO ORDERED

(1) "...During our conversation, Mark Fuhrman stated that he
would pull over any vehicle that was occupied by a black man and
a white woman.  I then asked him, "What if you don't have a good
reason to pull them over?"  Mr. Fuhrman then stated, "I'd make
one up."  I then asked Fuhrman, "What if the two people are in
love?"  Fuhrman then appeared to get disgusted with me and
stated, "If I had my way, they would take all the niggers, put
them together in a big group and burn them."  [Statement of
Kathleen Bell dated 16 August 1994]

(2) These three again crossed paths in 1989 when Fuhrman was
requested by the prosecuting agency, the Los Angles City
Attorney's Office, to submit a written recollection of the 1985
incident for use in the 1989 prosecution of the defendent for the
misdemeanor of spousal battery.

(3) See Defense Proffer Of Evidence Relevant To Impeach Detective
Fuhrman file stamped 25 January 1995 in response to the court's
request for an offer of proof in its related ruling dated 20
January 1995.  The substance of evidence to beset forth in a
valid offer of proof means the testimony of specific witnesses,
writings, material objects, or other things presented to the
senses, to be introduced to prove the existence or nonexistence
of a fact in issue.  Failure to make an adequate offer of proof
with the required specifics has dire consequences.  In re Mark G.
(1992) 7 CA4th 433,444.

(4) The court's comparison of the tape recordings with the
transcripts prepared by McKinny revealed significant errors and
omissions despite McKinny's testimony that her transcripts were
verbatim in nature.

(5) RT 107/18899 - Wednesday 15 March 1995.

(6) The court notes that the jury has been sequestered since
mid-January.  The undue consumption of time is a critical factor
to be considered by the trial court under these unique
circumstances.

(7) See Evidence Code Section 1235.

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