9 h 47 m, 31 agos 1995 año - Judge Ito's final ruling on Fuhrman Tapes, part 2

Descripción:

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.

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