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(Court TV) -- Developments in the murder trial of O.J. Simpson from August 28-September 1, 1995
Prosecutors tried to minimize the impact of the testimony of Dr. Henry Lee, whose testimony solidified several aspects of the defense theory of the case.
Lee conceded that he was unable to determine with certainty whether some of the imprint patterns he observed were actually footprints.
After Prosecutor Hank Goldberg showed a videotape of policemen walking through the walkway at Nicole Brown Simpson's home on June 13, 1994, Lee conceded that two police officers' shoes could not be eliminated as the source of suspicious prints at the murder scene. But the witness said it was an unlikely scenario.
"I don't think these two officers deposited these shoe prints," Lee said of marks on the bloodstained tiles. "I don't think their shoes are parallel design." But when asked if he could eliminate the chance that the officers deposited some imprints, Lee said, "I cannot eliminate."
Lee told jurors earlier that he examined photos taken by police but also went to the crime scene two weeks after the killings and did his own investigating. He said that was when he discovered extra "imprints" with a parallel design on the walkway that could be consistent with shoes.
Using a giant magnifying glass to look at photos, Lee showed jurors the extra imprints. Prosecution experts saw only one set of prints from a Bruno Magli shoe that prosecutors have tried to link to Simpson.
Lee's imprint testimony is crucial to the defense hypothesis that more than one attacker was involved in the murders. Lee also has told jurors he saw extra imprints in police pictures of Ronald Goldman's jeans, a bloodstained envelope and a piece of paper found near the bodies.
On re-direct examination, defense attorney Barry Scheck pointed out that the envelope, paper and jeans all were collected by police on June 13. Lee testified that the prints he saw on the items could not have been made by police officers who walked on the Bundy walkway afterwards.
In other testimony, Lee conceded that his laboratory uses a type of DNA testing that another defense scientist challenged as unreliable.
At another point in his testimony, Lee appeared to contradict another defense expert by testifying that he uses the DNA analysis test known as PCR in his crime lab. Microbiologist John Gerdes previously testified that PCR works well in sterile environments but could falter with evidence collected at messy crime scenes.
The court was transformed into a forum for the ravings of a racist police officer as Judge Lance Ito allowed the world to hear portions of the Fuhrman tapes.
The judge said he had a duty to the public to allow the tapes to be played in open court outside the presence of the jury. Even though Judge Ito privately had heard the tapes and read the transcripts, he allowed the defense to play them because he said he did not want anyone to ever suspect him of participating in a cover-up.
The decision infuriated the family of victim Ronald Goldman. During an emotional press conference, Fred Goldman said the tapes had no business at the trial which is supposed to determine whether O.J. Simpson killed his son and Nicole Brown Simpson.
"There was no reason to have two hours of this hate to be spewed out over the public airwaves," Goldman said. "My son, Nicole and her family have a right to a fair trial and this is not fair."
The day began with Laura Hart McKinny testifying about her many conversations with Fuhrman since 1985. She described how Fuhrman approached her in a Los Angeles coffee shop a decade ago, ostensibly to discuss her laptop computer. Fuhrman told her about his membership in Men Against Women, a group of policemen opposed to women in the force. The defense then played sickening quote after quote of Fuhrman uttering the word nigger 41 times and boasting of police brutality and other misconduct.
The chilling passages included:
"Do you people, don't you shoot to wound them? No, we shoot to kill em. Now the department says we shoot to stop, not kill, which is horseshit. The only way we can stop somebody is to kill the son of a bitch. And what's the big deal? If you've got reason to shoot somebody, you've got reason to kill him."
"No, if I would have arrested the son of a bitch, I would have killed him. If I ever see the son of a bitch and we're alone, I would kill him...If there's nobody except him and me, dead men tell no tales. See, he killed two policemen. I have an obligation if I ever have the opportunity, I should kill him. And that's all there is to it."
Perhaps the most devastating passages could be Fuhrman's bragging about manufacturing probable cause to arrest someone. "I didn't arrest him under anything, just took him to the station, ran him for prints, gave them to the detectives to compare with what they've got in the area. I'll probably arrest a criminal that way...I'd be able to correlate exactly what I said into a reasonable probable cause for arrest."
The quote could prove devasting to the prosecution because it was Fuhrman who found probable cause -- the blood stains on O.J. Simpson's Bronco -- that convinced police to jump the wall onto his Rockingham estate.
If it can be determined that Fuhrman has a pattern of fabricating probable cause, and if the defense can show there is evidence he made have done so in this case, the defense could seek to have all the evidence found by Fuhrman thrown out of the case.
Under cross-examination by Prosecutor Christopher Darden, McKinny admitted she had told Fuhrman that she was interested in a very dramatic screenplay with a lot of violence. The prosecution has argued that much of what Fuhrman said was in the context of creating a piece of fiction.
McKinny also told Darden that said she had not produced the tapes earlier in order to protect her sources and because she considered them to have minimal evidentiary value.
"The information on the tapes does not directly exonerate Mr. Simpson, and therefore I didn't have the responsibility to come forth with the information," she testified. Later, she added: "There was nothing to me that made me feel that Officer Fuhrman could have planted evidence in this particular case, no."
But Judge Ito then asked McKinny a crucial question: "Was there a subplot to her screenplay regarding racial conflict with officers?" McKinny said no, it was about women in the Los Angeles police department.
As a result, the judge might be suspicious of all the racial slurs and boasting of police misconduct if it was not needed for the screenplay.
In arguing for the admissibility of the tapes, attorney Gerald Uelmen said the defense was not trying to inflame the passions of the jury but simply trying to challenge Fuhrman's credibility and to help the jury assess the weight they should give to his testimony. Uelmen complained that the jury only has seen a polished and professional performance by Fuhrman on the witness stand.
Secondly, the defense wants to use the tapes to show racial bias, which, Uelmen said, goes directly to his credibility. California case law says expressions of racial hostility are questions of credibility for the jury to resolve.
Uelmen then argued that the tapes corroborate the statements of Kathleen Bell, who is expected to testify that she heard Fuhrman used the word nigger and say that black people should be rounded up and burned.
Lead Prosecutor Marcia Clark began her argument by saying it was probably the toughest thing she had ever been called upon to do as a prosecutor. As a citizen, she said, she was offended, shocked and disgusted, and wanted the tapes disclosed to the public, but as a prosecutor she had to argue that the tapes had no place in the murder case.
"This is a murder trial where none of this is relevant," she said. She also said that Fuhrman was peripheral to her case given the mass of evidence pointing to Simpson's guilt. "The admission of this evidence is telling the jury: 'Disregard the case. Look somewhere else,' " she said.
Clark argued the defense has not presented any evidence to prove Fuhrman planted the bloody glove or any other evidence in the case. She said if he had the opportunity to plant anything, he would have been foolish to try, not knowing whether there were eyewitnesses to the crime or whether Simpson had an alibi.
After a quick huddle with the rest of the defense lawyers, Uelmen countered that the basis of Clark's argument -- what the facts are in the case. He argued that there are no facts in the case -- as least not yet. The facts are to determined by the jury, and if he were to present the defense closing argument today, Uelmen said, he would dispute any and every issue that Clark referred to as fact.
The court is in recess while Judge Lance Ito contemplated a ruling on the admissibility of the Fuhrman tapes.
Judge Lance Ito ruled that jurors could hear only 2 of the 41 tape-recorded instances in which Detective Mark Fuhrman referred to blacks as "niggers."
And, in another setback for O.J. Simpson's lawyers, the judge barred the defense from offering any of Fuhrman's explosive statements about police misconduct, mostly on grounds that the statements are too inflammatory to be worthwhile and that the defense failed to prove the incidents actually happened.
These are the two relatively innocuous taped statements the jury will hear:
"We have no niggers where I grew up."
The second is a question and answer:
"Why do they live in that area?" McKinny asks.
"That's where niggers live," Fuhrman responds.
Judge Ito ruled that the defense can have North Carolina professor and screenwriter Laura Hart McKinny, who recorded the tapes for a screenplay project, testify that Fuhrman used the word "nigger" in a disparaging manner 41 times during the interviews.
But in rejecting the playing of the 39 other examples offered by the defense, the judge wrote: "The court finds the probative value of the remaining examples to be substantially and overwhelmingly outweighed by the danger of undue prejudice."
The judge said, however, that the jury should hear evidence that speaks to Fuhrman's credibility as a witness. During his testimony, Fuhrman said he had not used the word nigger in the past 10 years.
"Just as a defendant with prior felony convictions testifying before a jury is not entitled to a false aura of credibility, neither is Fuhrman," Judge Ito wrote in a 10-page ruling.
"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," he wrote.
In his ruling on the police misconduct comments, the judge attacked the defense theory that Fuhrman moved a glove from the murder scene to Simpson's house to frame Simpson for the slayings of his ex-wife and her friend.
The judge said that the only evidence the defense has to support this theory is an assertion by Rosa Lopez, the maid of Simpson's neighbor, that she gave information favorable to Simpson to Fuhrman but Fuhrman never passed that information along.
"This assertion [of glove planting] is not supported by the record," the judge wrote. "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."
The defense shifted strategy in light of Judge Lance Ito's ruling on the Mark Fuhrman tapes.
Instead of attacking Fuhrman's credibility with two excerpts from taped interviews with Laura Hart McKinny, the defense did not call the screenwriter and professor to the witness stand. Instead, defense attorneys announced plans to call a half-dozen other witnesses to attack Fuhrman's character.
The defense also spent time challenging Judge Lance Ito's ruling on the tapes. At one point, defense attorney Johnnie Cochran Jr. called it "incoherent" - the same word the judge had used to describe the defense's initial motion to introduce the tapes.
Cochran complained that two excerpts including the word "nigger" and allowed by Judge Ito - one of which can be heard on the tapes, the other included in a transcript - misrepresented Fuhrman's character to the jury.
"You picked instances where it doesn't allow us to show what he has done as it relates to this case," said Cochran. "Perhaps never in the history of criminal jurisprudence has there been this level of impeachment out of somebody's mouth."
Cochran vowed to file a motion asking the judge to reconsider his ruling.
"I expect that," the judge told Cochran. "You also could walk down the street a block and a half to the Court of Appeals if you don't like the ruling."
The judge did grant the defense the opportunity to call witnesses out of order. But because of the short court day, and a last- minute change in tactics, no testimony was heard.
Simpson's lawyers said witnesses they planned to call would tell of Fuhrman's use of the racial epithet derogatory to African-Americans, his propensity to falsify evidence and his disdain for interracial couples. The defense even wants to call a psychiatrist who attorney F. Lee Bailey contends "conditioned" Fuhrman, perhaps medicating him, for cross- examination in March. Fuhrman has testified that he did not know the man. E-mail to a friend