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Ito Rejects Defense Motion on Fuhrman Tapes; Clark Says Some Tapes Missing

August 21, 1995

LOS ANGELES (AP) _ The anxiously awaited disclosure of tape recordings in the O.J. Simpson trial was mired in confusion Monday. The judge rejected defense paperwork as incoherent and a prosecutor said some of the most volatile material had been destroyed.

The judge, quoting excerpts from the bungled defense motion, confirmed Fuhrman repeatedly used a racial slur, advocated police brutality and said one of his superiors ``should be shot.″

In an unusual written ruling heaping scorn on Simpson’s high-powered defense team, the judge said he searched the transcripts for 10 incendiary statements by Detective Mark Fuhrman that were cited in a defense motion by their page numbers.

But when Superior Court Judge Lance Ito tried to correlate the recordings with transcripts, he couldn’t find the quoted passages and eventually gave up. He blasted the defense for submitting such shabby paperwork.

``Given the fact that there are more than a dozen attorneys working for the defense, it is not too much to ask that there be some basic correlation between the quoted proffer, the reported transcript and the audio tapes,″ Ito wrote. ``The proffer is incoherent. It will not be further considered by this court in its current form.″

A proffer is a written offer of proof to support the admissibility of evidence. The defense has said it offered Ito 30 separate racially charged statements by Fuhrman, but the judge sealed the documents.

Ito left an opening for the defense to refile its papers _ which the Simpson’s lead attorney said would be done _ and warned sequestered jurors yet another delay might be looming.

To complicate matters further, prosecutor Marcia Clark asserted that the reason the judge couldn’t find some cited passages was because some taped material had been destroyed.

Those passages, she said, are some of the most inflammatory because they involve racial epithets.

``All of those portions are not on tape,″ she said. ``That tape has been destroyed. ... If you are listening for it on tape, you will not find it.″

Outside court, Clark said Fuhrman’s interviewer, North Carolina screenwriting professor Laura Hart McKinny, had destroyed tape of some of her conversations with Fuhrman after transcribing them. The interviews were for a McKinny project on the Los Angeles Police Department.

Clark is expected to oppose use of any passages unavailable on tape. She will also fight to keep large sections of the tapes away from the jury.

The defense wants to use the tapes to discredit Fuhrman, who testified about finding a bloody glove on Simpson’s property that matched one near the slashed bodies of ex-wife Nicole Brown Simpson and her friend Ronald Goldman.

The murder charges against Simpson, who has pleaded innocent, have been overshadowed in recent days by discovery of the tapes, which cast a cloud over critical police testimony. Simpson’s lawyers maintain their client was framed by Fuhrman and other overzealous authorities.

Fuhrman’s use of racial epithets flies in the face of his trial testimony that he had not uttered the word ``nigger″ in the past decade. But the tapes also include volatile accounts of police brutality that now threaten to ignite a major scandal.

Ito’s written ruling quoted several passages in which the word ``nigger″ is used by the 43-year-old detective, who is now retired and living in Idaho.

In one segment, the ruling said, Fuhrman denounces a police commander, saying, ``He should be shot″ and then declares ``all these niggers in LA city government ... all of ’em should be lined up against a wall and ... shot.″

While Ito told jurors to expect ``substantial″ time away from court this week so he can deal with a legal issue _ they are unaware of the tapes _ he allowed testimony to go forward Monday. The defense called John Larry Ragle, former head of the Orange County crime lab, who told jurors the LAPD forensic work in the Simpson case was substandard.

Meanwhile, Ito’s ruling on the defense proffer confirmed that sections of the tape transcripts that were leaked to the news media were accurate.

A lawyer for McKinny, who owns the tapes, complained to Ito about the leaks and demanded an investigation into who might have disseminated the information, which was under protective court order. Attorney Mathew Schwartz said he may seek to have reporters identify their sources under oath. The judge took no immediate action.

Among the statements from Fuhrman quoted in Ito’s ruling were:

_ ``Where would this country be if every time a sheriff went out with a posse to find somebody who just robbed and killed a bunch of people, he stopped and talked to them first?″

_ ``We’ve got females ... and dumb niggers, and all your Mexicans that can’t even write the name of the car they drive.″

_ ``If I’m wrestling with some nigger, and he gets on my back, and he gets his hands on my gun, it’s over.″

_ ``He was a nigger. He didn’t belong ... And you’re going, `Where do you live?′ `Twenty-second and Western.′ `Where were you going?′ `Well, I’m going to Fatburger.′ `Where’s Fatburger?′ He didn’t know where Fatburger was. `Get in the car.‴

Legal analysts said the defense bungled the important tape issue by submitting bad paperwork.

``I’d be terribly embarrassed if it was me,″ Loyola Law School professor Stanley Goldman said. `` You have all this allegedly key evidence for the trial and you can’t get the judge the right quote, the right page, and it may end up stalling the trial for a while.″

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