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REPORTER'S DAILY TRANSCRIPT SUPERIOR COURT OF THE STATE OF CALIFORNIA SHARON RUFO, ET AL., N/A, PLAINTIFFS, VS. ORENTHAL JAMES SIMPSON, ET AL., DEFENDANTS.
SANTA MONICA, CALIFORNIA DEPARTMENT NO. WEQ (REGINA D. CHAVEZ, OFFICIAL REPORTER) (The following proceedings were held in open court, outside the presence of the jury.) THE COURT: Juror number 206 requests December 19 and January 7 off as religious holidays. The Court will grant it. THE CLERK: Is the order -- request sealed? MR. PETROCELLI: Your Honor, I -- you said, Judge, January 6? No? THE CLERK: 7th. THE COURT: January 7, December 19. MR. BAKER: We'll be dark? THE COURT: Yes. We can't proceed. MR. PETROCELLI: Are we in session on the 6th of January? THE COURT: I hope to be. Okay. The Court at this time will address the objection and motion to preclude the testimony of witness Nancy Ney. First of all, what is the nature of the evidence that is being offered? MR. GELBLUM: Your Honor, it's set forth in the -- THE COURT: I know what that -- is this a tape or. . . MR. GELBLUM: No, it's a live witness. It's a live witness supported by corroborated -- corroborated by documents, notes that she made at the time. It's primarily live testimony; the documents are just corroboration. THE COURT: What is the specific purpose for which plaintiffs seek to offer this testimony? MR. GELBLUM: To demonstrate the victim, Nicole Brown Simpson's, state of mind. This is five days -- THE COURT: State of mind as to what? MR. GELBLUM: As to her fear of the defendant and the state of her relationship with the defendant, which is really the heart of the case. It goes to the motive of defendant to commit these crimes. Our theory of the case, Your Honor, as you probably know, is that the crimes -- the primary motivation for the crime was retaliation, not rejection, from Ms. Brown's rejection of Mr. Simpson, the termination of the relationship and the rejection, specifically on June 12, as well, after the recital. And her state of mind about the relationship, the state of the relationship, her extreme fear of the defendant, as demonstrated by the phone call with Ms. Ney. It is probative of the fact that she thought he was the one who terminated the relationship and that she would not want to be with him and would want to stay as far away from him as possible. Very much goes to her rejection of him. Mr. Simpson's position is directedly [sic] to the contrary, that he broke up with her, he terminated the relationship, he was happily on another relationship and didn't care about her anymore, had nothing to do with her. I'm sorry. He said that he still loved her, that he was on to another relationship, and that he had put that behind him and was on with his life. And this impeaches that clearly, and really goes to the heart of the motive of the case, as to what's going on in the relationship in these few days before the murders. As the Court in Zack said, antagonism, hostility, enmity in the relationship is highly probative and always relevant. That's exactly what this goes to show. THE COURT: Okay. Defense have anything further they wish to add to your written opposition? MR. BAKER: Well, just a couple things, Your Honor. I don't believe that the state of mind of Nicole Brown Simpson is an issue, nor has it ever been put in issue. It's relevant to the issues in this case, and to the case the Supreme Court said in People versus Ireland. But this is the ultimate, to me, bootstrap argument. They want to attempt, on these hearsay documents, to prove the state of mind of O.J. Simpson by asserting the state of mind of Nicole Brown Simpson on documents that I believe, that if the Court just looks at them on their face, may have some problem relative to their trustworthiness. First of all, the date has been crossed out. Second of all, the -- the second page of the sheet is not filled out, and the third page is a blank page that this woman says she wrote upon. There are contradictions in the first page and the third page of the sheet, but nonetheless, Nicole Brown Simpson is never identified as the caller. They want this Court to extrapolate that there's enough indication in these documents that it was her, and therefore, that this evidence is admissible to prove her state of mind, so we can prove the state of mind of O.J. Simpson. I don't think the law allows that, and that's why we have Evidence Code Section 1200 et seq, and they've been writing -- attempted to ride the Zack case, which doesn't stand for the proposition they used it for. They've attempted to assert that the state of mind was put in evidence by us, when, of course, it was put in evidence by them. And they attempt to use, in my view, Your Honor, a bootstrap's approach, saying -- for example, Mr. Kelly, during questioning, testified that Nicole was not afraid of him in June of 1994, so they asked a question, get an answer, and then attempt to say now it's an issue so we can bootstrap in with the -- This hearsay documents and testimony of Nancy Ney. If you have any questions relative to this, I'd be happy to -- to go into detail on -- on where the documents are, in my view -- in my view, are untrustworthy. MR. GELBLUM: Your Honor, may I respond briefly? THE COURT: You may. MR. GELBLUM: Putting aside Mr. Simpson's testimony in response to Mr. Kelly's question, which was directly relevant here, he said she was not afraid of him in 1994. Mr. Baker, in his opening -- he was not forced to say anything -- said these words: That on May 22, 1994, which is a crucial date in our -- our scenario, that's the day that she terminated the relationship, he said, quote, 'she was hardly afraid of O.J. Simpson.' He said that on May 22. That's less than two weeks before this conversation where she expresses extreme fear of this man. If this testimony is not allowed in, Mr. Simpson is going to be free to get up there, as Mr. Baker has promised he will, and talk about what a rosey relationship this was; it was a mutual ending of the relationship; there were no problems; there was no fear; there was no hostility; there was no enmity, none of that. It's not true. And this evidence is highly probative of that. Ms. Brown Simpson has been silenced. She cannot come here and rebut that on the stand. This is crucial evidence to dispute and rebut the testimony Mr. Simpson is going to give. MR. BAKER: Your Honor, only briefly. I have to respond, in opening statement to what Mr. Kelly said, and the argument that he made, and that's what we were doing, discussing May 22. The fact that Mr. Gelblum wants to assert how relevant it is, does not get around the hearsay rule and does not get around the fact that she is never identified and does not get around the fact that her state of mind is not an issue in this case. And you can't prove Simpson's state of mind through the state of mind of the decedent. THE COURT: Well, the Court has reread People versus Ortiz, 38 Cal.Ap. 4th 377, and I'm reminded by Mr. Gelblum about the Zack case. I think on that basis, on the basis on which the plaintiff has represented that he is offering the testimony, the Court finds that -- that there is an exception, in view of the Evidence Code, for those purposes, and the objection is overruled. Let's bring the jury in. (The jurors resumed their respective seats.) THE COURT: Good morning. JURORS: Morning. THE COURT: Juror number 206, I received your note and we will adjourn on those days that you requested. That will be December the 19th and January the 7th. JUROR: Thank you. MR. LEONARD: Your Honor, can we approach very briefly? THE COURT: Yes. THE COURT REPORTER: With the reporter? MR. LEONARD: Yes. MR. PETROCELLI: The last clip I have is 69 to the top of 73 to which he objects and it starts here and ends here. Maybe the best thing to do is take a quick look at it. MR. LEONARD: Your Honor, before you start reading, obviously, I object. THE COURT: You don't even want me to read it? MR. LEONARD: Yeah, go ahead. Go ahead. You're the Judge. Go ahead. THE COURT: I'm just wondering why you don't want me to read it. MR. LEONARD: Dont want you to read it? (Pause for the Court to read document.) THE COURT: To where? MR. PETROCELLI: To these next two pages. MR. PETROCELLI: And it ends with this last line right there. (Referring to page 73.) MR. PETROCELLI: The relevance of all of this is to show that Mr. Simpson, who denies striking Nicole, lied to Frank Olson to protect his image and his financial interests, all of which we are proffering to impeach his testimony here on the witness stand, that he didn't hit her in 1989, and then he had motivation to lie. MR. LEONARD: First of all, this is -- this is all going to Mr. Olson's state of mind, number one. THE COURT: Excuse me? MR. LEONARD: Go ahead. THE COURT: For the record, we are discussing pages 69 through line 1 of page 73 of the transcript of Mr. Olson's deposition. MR. LEONARD: Number one. It's going to Olson's state of mind. It has -- it's replete with references to Olson's feelings. I was stunned. I was -- I didn't believe it. I don't think he asked him anything about '89 in here; he asked him about whether he had heard of the '83 -- excuse me -- '93 incidents. There's no foundation that he had ever talked to Simpson about that. There's also a section in here about the photographs. Now, they've shown -- how many times have they shown the photographs? They didn't even show Olson these photographs. They asked him, are you aware of some photographs, and then they're asking him his opinion about whether they were consistent with what Simpson had told him. I think it's -- it's cumulative. What they've already proven, they've already gotten in through Olson, Simpson's version of the event. To the extent that contradicts what other people have said, it's there. They've already played that portion where Simpson said he shoved her. This is -- this is cumulative; it's prejudicial; it's -- it's basically Olson's reaction to this other event he has asked him about. Were you aware that Simpson was excessive by following or stalking Nicole? Okay. There's no foundation that, first of all, that in this case, that that's occurred. Number two, that he ever discussed this with Olson, if there was ever an opportunity for Olson to discuss it. There's no foundation. Finally, again, it's cumulative. It's prejudicial. THE COURT: You're repeating yourself. MR. LEONARD: A little cumulative. MR. KELLY: You're cumulative. MR. PETROCELLI: Your Honor, the other part I neglected to mention -- Mr. Leonard reminded me -- this also goes to show that Simpson is capable of acting in a certain way, and at the same time, withhold and hide information from people. And this goes to the demeanor case. And maybe some of this is probably the more appropriate response of their demeanor evidence. They're going to put on the fact that he signed autographs and he's acting normal before and after the murders, indicating that he couldn't have possibly committed the murders; he's a guy who worked for him 20 years, who cultivated his image, to say I never saw this side of O.J. Simpson, to prove that there is another side to Simpson that he doesn't show others; that he's perfectly capable of acting in this normal, outgoing, gregarious personality, even when he's under the utmost stress. THE COURT: I'll sustain the objection. I don't think Mr. Olson's state of mind is relevant. MR. PETROCELLI: Can I have that without prejudice, if they get into this area in their case? MR. LEONARD: No. MR. PETROCELLI: I'm able to ask, Your Honor, to place some of this testimony on our rebuttal case depending on what they do with demeanor. THE COURT: The reason I am sustaining the objection is because I don't think Mr. Olson's reaction -- and that's all it is, is Mr. Olson's reaction -- that you've evoked in your examination to Mr. Simpson's conduct, I don't think they're relevant. That's like putting Mr. Olson in the jury box. That's -- MR. PETROCELLI: What about the part, like, where he said, like, in 17 years, never ever seen the guy lose his temper? MR. LEONARD: I'll agree to that part only. MR. PETROCELLI: Can I reserve some of this for rebuttal? That's all I'm asking, to revisit it with Your Honor. I won't get into his state-of-mind issues, though, okay. MR. LEONARD: We're going to -- THE COURT: The defense case -- you may make an offer and I'll make a ruling. MR. PETROCELLI: Thank you, Your Honor. (The following proceedings were held in open court, in the presence of the jury.) MR. LEONARD: Can you remind me what page we left off? MR. PETROCELLI: At the end of the -- yeah, at end of the -- the -- at the end of the day, we left off with the last video clip, and that will conclude our presentation. I think Mr. Leonard has some portions he wants to read in response. We're now obviously referring to the video deposition of Frank Olson. MR. BAKER: I thought you had five or ten minutes. MR. PETROCELLI: No, I've cut it out. MR. LEONARD: Okay. (Portions of the deposition of Frank Olson were read into the record as follows, Mr. Leonard reading the questions and Mr. P. Baker reading the answers.) MR. LEONARD: Your Honor, we will be reading from the same deposition. And obviously, Mr. Baker will be playing the part of Mr. Olson. If you could turn, please, Mr. Baker, to page 38, beginning at line 12. MR. P. BAKER: Okay. MR. LEONARD: (Reading:) Is that the only -- Is that the one and only time you spoke to Nicole about the incident? A. Yes. Q. And you never spoke to Mr. Simpson again about it; is that true? A. No, did not have another conversation. MR. LEONARD: Okay. Over to page 43, line 19. MR. P. BAKER: Okay. Q. And did he describe to you or say anything to you that Nicole had hit him? A. I don't recall the incident -- what he was saying to me was that Nicole was out of control and was damaging his Tiffany lamps and so forth, and she was just out of control. That's -- That's -- and I don't recall him saying whether she hit him or not. MR. LEONARD: Okay. Over to page 53, line 8. MR. P. BAKER: Okay. MR. LEONARD: (Reading:) When he returned to the subject of Nicole, did you let him talk? A. Yes. Q. And he said -- go ahead. I'm sorry. A. And he said essentially the same thing; he was very disappointed that it hadn't worked out; it was obvious that their reconciliation hasn't worked out. Q. Was this a telephone call? A. No, I was with him. Q. Where were you with him? A. I was with him at our golf club here in New Jersey. Q. You remember the date? A. It was sometime in May, end of May. He had come to New York to do a travel agency talk. Q. Would that be the ASTA regional dinner? A. That could be it. Q. Fairly significant event? A. Yes. Even asked to give a speech there. And that was on a Saturday evening, as I recall. Q. In New York City? A. In New York City. And he called me on Monday morning. I did not attend the ASTA meeting. He called me on Monday morning and wanted to get together and asked if my afternoon was free. And I met him and we played golf in the afternoon at our golf club. And then I had a -- Q. Which golf club was that -- was that? A. Arcola, A-R-C-O-L-A. Q. Did you remember the date of that? A. It was the Monday following that Saturday evening ASTA thing that he did. That was in May, I think. Q. So Saturday, 'cause May 14, then, Monday, would have been May 16? A. Yes, yes. Q. Okay. And the two of you played golf together? A. Played with two friends. Q. Who were the two friends? A. A fellow by the name of James Patton, P-A-T-T-O-N, and a Norman Williams. And then following that, we stopped to have -- Patton, myself and O.J. stopped to have -- I had a Diet Coke and O.J. had a beer, and the club was closed that day, except the golf course was open, so we went down the road to a place to have a Coke and we talked for about a half an hour, then he left, went back to New York. Q. The conversation that you had recounted moments before about Nicole, occurred on this day? A. Yes. Q. On what we believe is May 16, on Monday? A. It was the Monday after that Saturday evening, yes. Q. And did this conversation occur with you and Mr. Simpson alone with regard -- was anyone else present? A. Mr. Patton was there in the beginning, but he didn't stay long. Q. And was this at the restaurant? A. It -- this was at the bar at the -- at this restaurant. Q. What was the name of the restaurant? A. I don't recall. It's not on -- I just don't recall. Q. Did Mr. Simpson talk about Nicole at any point in time when Mr. Patton was still there? A. I don't recall. Q. Did Mr. Simpson know Mr. Patton? A. Yes. Q. They were known -- knowing -- known each other for a long time? A. He knew him from playing golf with him at the club. Q. Arcola? A. Arcola. Q. Was this conversation at the bar at the restaurant, the first time that day Mr. Simpson spoke to you about Nicole? A. I don't recall. Q. May he have spoken to you about her while you were playing golf? A. He may have. O.J. always talked to me about Nicole -- Nicole, over all the years. Q. He had spoken to you the night before, on June -- to make arrangements to play on Monday? A. No. He called me Monday morning. Q. Monday morning? A. At the office. Q. And prior to getting the call from Mr. Simpson Monday morning, May 16, had you heard that this reconciliation attempt of his and Nicole's had failed, or did you first come to learn about it that day? A. I didn't know that they had reconciled again the last time, so it was all news to me. I mean, I thought they were still away, apart from each other at the time. Q. Did Mr. Simpson tell you the reasons why the attempted reconciliation had failed -- A. No. Q. -- in his conversation with you on May 16? A. He did not; just said it was over, that their relationship was over. Q. And what was his demeanor, his facial expression, his words, led you to conclude that he was very upset about this? A. I didn't have the impression that he was upset. I had the impression that there was a finality to his relationship. For the first -- first time I had this -- he communicated a finality of the relationship with Nicole, and he was thinking about moving to New York and starting all over again, as opposed to staying in Los Angeles. Q. Now, earlier, you testified that he seemed upset by this development. A. If -- I didn't realize I said that. Q. Yes. Let me follow up on that. When he was relating this to you and conveying the impression that this was final, he did not appear to be happy about it, did he? A. No, no, he wasn't happy about it. I can't say that he was terribly distressed; I can just say that he was -- It was a different kind of emotion that I had seen from O.J. I mean, he was -- O.J. was not his usual outgoing, effusive self. I mean, he was signing autographs for kids and talking, and a mother came up to him about her son had graduated from law school, and he wrote a note out for her, and he did all those things like he normally did, but he was -- he was more melancholy than anything. I mean, it was like a change in his life, you know, that was occurring. Q. Did he indicate to you, Mr. Olson why he was contemplating moving to New York from Los Angeles? A. He just said he wanted to get away from it all. I've forgotten exactly. I told him I thought it was a good idea. MR. LEONARD: Okay. Over to page 61, line 8. Do you remember the last time, prior to the morning of May 16, when you last spoke to Mr. Simpson? A. I recall a conversation on the telephone, where he was obligated to do something for us that he had agreed to do. And it may have been this event. And there was something to do with the family. And he had already obligated himself to do this event, and he was -- he was calling me to -- not to get out of it, but to ask me how to handle -- was there any way he could possibly handle it with the people that he had -- that he had committed to. It may have been this event. But it was about a Hertz event. But there was a family obligation that he wanted to -- that he had fouled up by not recognizing the obligation of one of his children or both of his children, and he was committed to do this, and if there was any way he could -- any way he could -- and was there any way he could get out of it -- get out. Q. Get out of it? A. Get out of our event. And I referred him to the person that had organized the event. Q. Did you tell him that he couldn't get out of it? A. I told him I didn't realize or know what the commitments were, and that he had to talk to the person that organized the event. Q. Who did you refer him to? A. I just don't remember which event it was. Q. Assuming it was the ASTA regional dinner on May 14, does that cause you to remember? A. That -- then it would have been Bill Maloney, who is our Vice-President of Travel Industries Sales. Q. What does ASTA stand for? A. American Society of Travel Agents. Q. Is that the last you heard of the question of whether he could get out of the event? A. Yes. Q. Did anybody in the company come and talk to you about it after that? A. I talked to -- if this was the event, I talked to whoever it was, to find out what occurred. Q. And what did you find out? A. I found out that, whatever event it was, that he was trying to avoid, that it was impossible to get out of. I mean, there were already brochures printed or something, something. There was a lot of -- There was -- it was not easy to unwind it. I think, as I recall, the conversation was between the person and -- if it was Maloney and O.J. -- that if O.J. insisted on getting out of it, they would have released him, but it was very difficult for us as a company. Q. And to your knowledge, O.J. did not insist that he -- A. No, he did not. Whatever explanation was given to him, he accepted his responsibility. Q. And he did not insist that he get out of it? A. Right. MR. LEONARD: That's it, Your Honor. MR. PETROCELLI: Nothing further. MR. GELBLUM: Nancy Ney, Your Honor. MR. BAKER: For the record, I have -- I object under hearsay 352 and the cases cited in the brief. THE COURT: The Court's already ruled. NANCY NEY, called as a witness on behalf of Plantiff, was duly sworn and testified as follows: THE CLERK: You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth, and nothing but the truth, so help you God? THE WITNESS: I do. THE CLERK: And would you please state and spell your name for the record. THE WITNESS: Certainly. My name is Nancy, N-A-N-C-Y, middle initial N, Ney, N-E-Y. DIRECT EXAMINATION BY MR. GELBLUM: Q. Morning, Ms. Ney. A. Morning. Q. Do you have any relationship with an organization called Sojourn House? A. Yes, I do. Q. What is Sojourn House? A. Sojourn House is a -- there's a few different things that Sojourn does. We have a shelter, crisis shelter, that women can come and stay for four weeks when they're in crisis. Q. What kind of crisis? A. Battering. They're battered women and their children. They come, and they get counseling and help, and any kind of help they really need. And it's a safe place, and it's secret. Q. Secret? A. Secret. Q. The location is secret? A. It's a private place, yes. Q. Why is the location secret? A. So that their batterer can't find them. Q. What do you do at Sojourn House? A. One of the things I do is, I work on the hot line. Q. What's the hot line? A. It's 24 hours. There's someone there every hour of the day and night. And women call with -- battered women can call when they're in crisis or with legal problems, medical problems, any problem that might have to do with their battering situation. Q. Are you also on the Board of Directors at Sojourn? A. Yes, I am. Q. Did you work at Sojourn in June of 1994? A. Yes. Q. What did you do there at that time? A. I was working on the hot line. Q. Same thing you described? A. Yes. Q. How often did you work? A. I worked one day a week, a four-hour shift. Q. The time that you worked remain constant, or was it different each week? A. It was constant. Q. What was it? A. It was the 8:00 to 12:00, 8:00 a.m. to 12 p.m. shift, Tuesday mornings. Q. By the way, did you receive any training before you started working as a person -- working on the hot line? A. Yes. Q. What was the training? A. The State of California mandates a 40-hour training for anyone in -- working in domestic violence. Q. What does the training consist of? A. It consists of learning about the psychology of domestic abuse, what goes on in a relationship, the dynamics between the woman and her partner. We learn about children's issues, how children react to domestic violence. We learn about legal issues. Just everything that has to do with domestic violence. Q. Okay. A. And we also have support groups. Q. And you get certified by the state? A. Yes, we get a certificate, and they -- we are then able to work with battered women. Q. You had completed that training before June 7, 1994? A. Yes. Q. Were you answering the phones on the hot line on June 7, 1994? A. I was. Q. That was a Tuesday? A. Yes. Q. Did you receive a call that morning, at about 11 o'clock, from a woman who identified herself as Nicole? A. Yes, I did. Q. Did she give her last name? A. No. Q. Did you ask for it? A. I did not ask. Q. Is that unusual? A. No, it's not unusual. I never ask and they usually never tell. Q. Why is that? A. For confidentiality. MR. BAKER: Objection. Relevance and speculation. THE COURT: Overruled. A. For confidentiality, they don't want their last names known. Q. (BY MR. GELBLUM) Does this person, this woman who identified herself as Nicole, give you any other information about herself that would help you identify her? A. She did, yes. Q. What did she tell you? A. She told me her age. Q. What did she say? A. When -- I believe at the time was 34. I don't know exactly. But it was in her mid-thirties. Q. Okay. A. She told me that she had -- she was divorced. She told me that she had been married for eight years. She told me that she had two children, a boy and a girl, and I don't remember now the exact ages, but when I heard about the ages of the children, they were the same ages, as I recalled, not right now. I don't remember the ages. But at that point, they were the correct ages; they were under 10. Q. She told you both children were under ten? A. Under ten. Q. Did she say the gender of the children? A. She said she had a boy and a girl. Q. Did she say what part of the city she lived in? A. She said she lived in West L.A. Q. Did she tell you her ethnicity? A. She was Caucasian. Q. Okay. Did she tell you at some point during the call whether she had family in the area? A. She did say she had family in the area, yes. Q. Did she tell you at some point in the conversation whether her ex-husband knew where her family lived? MR. BAKER: I'm going to object to leading, Your Honor. THE COURT: Sustained. Q. (BY MR. GELBLUM) Did she say anything to you about prior -- I'm sorry. Let me -- I'm getting ahead of myself here. Have you -- have you heard since that date, tape recording of an October 25, 1994, 911 call made by Nicole Brown Simpson? MR. BAKER: Your Honor, I'm going to object. I want to approach on this. THE COURT: Overruled. Denied. A. Yes, I have heard the tape. MR. BAKER: Your Honor, I'm going to object to this. There is no foundation for any voice analysis. THE COURT: Overruled. Q. (BY MR. GELBLUM) And was the voice that you heard on that 911 call consistent with the voice that you heard on June 7, 1994 from this woman named Nicole? A. Yes. MR. BAKER: Leading, suggestive. Move to strike. Leading, subjective, no foundation. THE COURT: Overruled. Q. (BY MR. GELBLUM) Did she say anything about her husband's occupation? A. She didn't mention his occupation specifically. But she does say that he was very high profile and she said that if she told me who he was, I would know. Q. Did she tell you who he was? A. No. Q. I'm sorry, I think I misspoke. You said she was divorced? A. She said she was divorced. Q. It was her ex-husband? A. It was her ex-husband, yes. Q. Now, did she tell you anything about what was prompting her to make this phone call? A. Yes, she did. Q. What did she say? A. She said that she was frightened. MR. BAKER: Again, hearsay, Your Honor. THE COURT: Overruled. A. She said that she was very frightened. Q. (BY MR. GELBLUM) Did she say -- did she sound frightened to you? A. She sounded frightened to me, yes. Q. Did she say why she was frightened? A. Yes. Q. What did she tell you? A. She said that her ex-husband had been calling her on the phone. He had been -- during these calls, he would beg her to please come back to him, he needed her, needed her back with him. She said that he had been stalking her. She said that when she went to a restaurant, she would be sitting there and he'd be sitting -- she'd turn around, and he'd be there staring at her. She would go to the market; he'd be there in the next aisle, looking at her. She'd be driving down the street; she'd look in the rearview mirror, he'd be there. And she said this unnerved her and she was very frightened by it. Q. As a result of her telling you that her ex-husband was stalking her, did you ask her any questions about any other activities that her ex-husband had possibly engaged in? A. I had asked her whether he had ever beaten her. Q. And what did she say? A. She said yes. Q. Did she give you any indication about how long the beatings had been going on? A. Well, she didn't say specifically how many years the beatings had been going on, but they'd been going on throughout her marriage. Q. Okay. Did you ask her anything about any threats? A. I did ask, yes. Q. What did you ask? A. I said has he ever threatened you. Q. What -- why did you ask that? A. Because -- well, that's not -- I ask every battered woman that calls; it's a question you ask; it's an important question. Plus, this stalking worried me a lot. Q. Why is that? A. When a man stalks a woman, it's just very serious behavior. It's a red light that you need to pay attention to. Q. Is that something you learned in your training? A. Yes. Q. Did Nicole respond to your question about whether her ex-husband had threatened her? A. She did. Q. What did she say? A. She said that he had told her a few different times that if he ever caught her with another man, he would kill her. Q. Did she express any confusion during this phone call? A. She did, yes. Q. On what subject? A. She was confused because he -- that this -- his behavior so frightened her, that -- MR. BAKER: I'm going to move to strike as nonresponsive and request that the witness be ordered to answer the question, not give her interpretation. MR. GELBLUM: I think she's trying to, Your Honor. MR. BAKER: Well, I request -- THE COURT: Overruled. You may answer. A. She told me that she was -- his behavior frightened her to such an extent that she was considering -- she was asking my opinion, whether I thought it might be safer for her and her children to move back in with him. Q. (BY MR. GELBLUM) And did you and she discuss that subject? A. We did. Q. Did she express coming to a conclusion before the end of the call? A. By the end of the call, she had come to a conclusion. Q. What did she say? A. Well, after discussing the pros and cons, she came to the conclusion that in the long run, it would not be best for her to move back in. Q. Okay. And the reason, again, she said that, she was wondering about whether she should move back in was what? A. She -- MR. BAKER: Asked and answered. THE COURT: Sustained. Q. (BY MR. GELBLUM) How long did the call last, altogether, Ms. Ney? A. I would say about 20 minutes. Q. How did the call end? A. She thanked me for helping her and letting her get out some of her feelings. And she asked me -- told me that she wanted to just think about what we talked about, and could she please call back the following week when I would be there. And I said, sure, call back anytime. Q. Did she ever call back? A. No. Q. Now, did you make some notes during the phone call? A. Yes. Q. Okay. MR. GELBLUM: I'd like to mark as next in order, 2223, a two-page document here. MR. BAKER: I'd like the original to be marked as 2223. MR. GELBLUM: The only problem I have with that, the shelter wants the original back at the conclusion of the case. I don't care. THE COURT: Is there any difference between the original and copies? MR. BAKER: Your Honor, there's going to be -- to be some testimony relative to these documents. THE COURT: Okay. Original marked. (The instrument herein referred to as Two-page document described as a call sheet filled out by Nancy Ney as a result of her telephone call with a woman named Nicole was marked for identification as Plaintiffs' Exhibit No. 2223.) THE WITNESS: These -- Q. (BY MR. GELBLUM) Can you tell us what Exhibit 2223 is? A. Yes. This is a call sheet that, when every -- each call that comes in must be filled out, each woman that calls. Q. Mr. Baker, I think -- MR. BAKER: I certainly did, sure. Q. (BY MR. GELBLUM) Is Exhibit 2223 the call sheet that you filled out during your call with Nicole? A. Yes, it is. Q. The copy you have there is two pages, is the original -- this is the original the two-sided -- A. Right -- yes. Q. The top left entry is the date. Do you see that? A. Yes. Q. And the date you wrote down originally was May 7; is that correct? A. I did. Q. And was that the correct date? A. It was not the correct date. Q. How did you determine what the correct date was? A. Because I was not there May 7, number one. Number two, after I heard about the murders, I thought that this -- the details sounded rather familiar to me, and I went back the next Tuesday I was in and I found my sheet in with the June sheets. And I just, you know, 'cause it was the first Tuesday I was there in June, I just was automatically writing the month before, the five, and, you know, like you do in your checkbook, the first of the month. Q. After you -- You, as you just said, you learned about the murders, you thought this sounded familiar. Did you also make some additional notes shortly after that about the phone call? A. Yes. Q. I'll show you the original of these notes which we'll mark as 2224. (The instrument herein referred to as Handwritten notes of Nancy Ney was marked for identification as Plaintiffs' Exhibit No. 2224.) Q. (BY MR. GELBLUM) Those are notes you made? A. Yes. Q. Why did you make those notes? A. Actually, I think at this point -- that was about two weeks after the murder, and I had already contacted the police department and they were going to be calling me back. And I thought that just for -- just so that I could preserve my own memory, since memories do tend to fade over time, details, that I would just write down a few little details just to jog my memory so I'd remember. MR. GELBLUM: I have no further questions, Your Honor. THE COURT: Cross. CROSS-EXAMINATION BY MR. BAKER: Q. (BY MR. BAKER) Ms. Ney, you -- you testified yesterday in Orange County? MR. GELBLUM: Your Honor, objection. Q. (BY MR. BAKER) -- in the custody hearing -- MR. GELBLUM: Objection. Q. (BY MR. BAKER) -- of Mr. O.J. Simpson -- MR. PETROCELLI: Excuse me. MR. GELBLUM: Objection. Q. (BY MR. BAKER) -- did you not? MR. GELBLUM: He knows this is out of line. THE COURT: The fact that she testified, you may answer yes or no. Contents of the objection sustained. A. I did testify. Q. (BY MR. BAKER) And Mr. Simpson was present at those hearings? MR. GELBLUM: Objection. Q. (BY MR. BAKER) At those hearings? MR. PETROCELLI: This is for the benefit of the jury -- THE COURT: Sustained. MR. PETROCELLI: -- to the question. Q. (BY MR. BAKER) You talked to Natasha Roit. MR. GELBLUM: This is the same subject matter. Counsel has been cautioned to stay away from this area. THE COURT: Excuse me. Is this -- you're asking about her testimony? MR. BAKER: I'm talking about her preparation in talking to the lawyer who's representing the Simpson -- estate of Nicole Brown Simpson and the custody hearing. THE COURT: This is -- not in the trial process. Objection overruled. MR. BAKER: Relative to her preparation? THE COURT: If this was not part of her testimony or examination at the other trial, then the objection is overruled. MR. BAKER: Okay. I'm sorry. I apologize. Q. (BY MR. BAKER) You talked to Natasha Roit before you testified in the custody hearings relative to Mr. Simpson's children, did you not? A. Yes. Q. How long did you talk to her? A. Do you mean on the phone or -- Q. At any -- A. The whole time, I would say no more than 20 minutes. Q. And did you go over the -- the forms that you have before you now? A. No. Q. And then you talked to Mr. Gelblum how long? A. Maybe half an hour. Q. Now, as I understand it, you're on the Board of Directors of the Sojourn House, correct? A. Yes. Q. As I understand it, the -- the form that we have here -- is this 2223? This was the form that was filled out by you, you say, on June 7, 1994, right? A. Correct. MR. BAKER: And, Phil, you want to put this on the Elmo. (Exhibit 2223 displayed on the Elmo.) MR. BAKER: Can you focus that up for me, please, if you can. Q. (BY MR. BAKER) Now -- now, on this form, this -- you say asked -- to ask -- has to be filled out every time there is a call that comes in, right? A. Right. Q. Okay. And on this form, that -- that form -- you have the original in front of you, do you not? A. Um-hum. Yes, I do. Q. That was filled out in ball-point pen, was it not? A. Yes. Q. And the 5-17 -- 5-7 was part of the original form, correct? A. Correct. Q. And you crossed that out sometime subsequently and wrote in, in a different pen, the "6," did you not? A. I didn't cross it out. I mean, I was not the one who did that. Q. So someone else did that? A. Yes. Q. And what's the -- what's the notation next to the 6? A. I think -- oh, it's CD. That's the woman -- one woman who does these statistics in the shelter, Cynthia Davis. Q. You, in the ethnicity, you testified here this morning, that was Caucasian, right? A. Right. Q. You didn't circle anything relative to the ethnicity, did you? A. No, I didn't. Q. Now, you said that the victim's age was mid-thirties, did you not? A. I did. Q. You didn't put anything in there relative to mid-thirties, did you? A. No. Q. And nothing in the subsequent, two-week later notes have anything about age in them either, do they? A. No. Q. And by the way, by the time you filled out the -- the notes that were two weeks later, you had read about the murders; you had seen the media barrage about the murders, correct? A. I suppose so, sure. Q. And when you say you had heard about the ages of the children, you remember testifying -- A. Yes um-hum. Q. -- earlier this morning? A. Yes. Q. You heard about the ages in the newspaper, didn't you? A. Yes. But can I answer? Q. You've answered the question. Let's go on up. I want to show you some more of the forms that you filled out. Now, down here, on -- pull it up, please, where it says (indicating to Elmo) abuser and length of relationship. A. Um-hum. Q. Now, length of relationship is right next to length of marriage, isn't it? A. Right. Q. The length of the relationship of Nicole Brown Simpson and O.J. Simpson, in 1994, was what, 17 years? A. I have no idea. Q. Now, move the form over. And you put -- put nothing relative to married number of years, did you? A. No. Q. And yet you testified that, in fact, they were married eight years, did you not? A. I did testify that -- Q. In fact, in 1994, they hadn't been married eight years, because they were divorced in 1992, they'd been married seven years; isn't that right? A. I guess so. MR. PETROCELLI: That's eight, Your Honor. MR. PETROCELLI: February 1985 to October of 1992. MR. BAKER: Maybe that's new math. In any event, I'll swear Mr. Petrocelli in; we'll put him on the stand. Q. (BY MR. BAKER) In any event, Your Honor, the -- you didn't put down one thing about there how long they were married in the form, where it calls for that information, true? A. Wrong place. I put it -- I mean, I was not -- I put it in a spot that I shouldn't have put it in. Q. You were talking to her about the length of the relationship, were you not, in this 20-minute phone call, Ms. Ney? A. We were talking. I had asked -- Q. Can you answer my question? I asked you if you were talking about, at any point in the 20-minute conversation you had with her, the length of the relationship? A. Yes. Q. Yes or no? A. Yes. Q. That's important if you're talking to a person, is it not? A. Absolutely. Q. And the length of the relationship -- whether a person is married or not married, the length of the relationship is far more significant than -- than the length of the actual marriage, is it not? A. She -- Probably. Q. And if, in fact, they've been living together some six, seven, eight years, whatever it was before they were married, and they were together, that's a more significant statistic for the purpose that you were receiving this call than the length of the actual, legal, marital relationship, is it not? A. I had -- well, I had -- Q. Is it not? A. For the purpose of what I was talking to her about? Q. Sure. Talking about with this person whether or not there are acts of violence and -- and whether or not she's in jeopardy, and that relates not only to whether she's physically near the person who may be the batterer, but how long this has been going on, true? A. True. Q. And whether or not there's been an escalating nature of violence, correct? A. Yeah. She told me that. Q. Well, we'll get into that. Now, so the length of the relationship, you never put down anyplace, and as far as you're concerned, the length of the relationship being eight years is really the length of the marriage, right? A. In my mind, that was the length of the marriage. Q. Can you -- well -- and you never put down anyplace, the length of the relationship; you just made an error and put down the length of the relationship, eight years, correct? A. Correct. Q. All right. Now, you then go back. Names and ages of children, and you put "2-", correct? A. Yes. Q. Now, that could be the -- the age of one child, could it not? A. It could be, but it wasn't what I -- Q. All right. A. That wasn't it. Q. Now, you never put down the ages of the children, did you? A. No. But I know what the ages are. Q. You knew that the ages of the children had been put in the newspaper from the date of June 13 until whenever you got together with Marcia Clark in August of 1994; isn't that true? A. But that's not -- I -- Q. Can you answer -- A. I remember -- Q. -- my question for a change? MR. GELBLUM: Objection. Argumentative. THE COURT: Sustained. Q. (BY MR. BAKER) My question, ma'am, is: You knew the ages of the children from your conversation -- from your looking at the news media before you ever talked to Marcia Clark in August of 1994? A. That's not true. Well, I did know. Where I get the ages of the children are from my recollection of the phone call. Q. And the -- you didn't -- Even in your subsequent notes that you say were done two weeks later, you didn't put the ages of the children in, did you? They're right in front of you. Take a look. A. No. I agree that I didn't. Q. Now, in your form, right on the back of the form is a -- MR. BAKER: Phil, you want to turn it over. MR. P. BAKER: I need the original. You have -- MR. BAKER: I've got the original. Let me take this. You keep the original. THE WITNESS: Okay. Q. (BY MR. BAKER) Now, on the back of the form, right where you flip over on the same sheet of paper you were writing on -- A. Um-hum. Q. -- it says "presenting problem," right? A. Right. Q. And you left that blank, correct? A. Correct. Q. And did you normally fill out only the front page of the form when you were manning the hot lines? A. Very frequently, that would be all that would be filled out. Q. And then you went back two weeks later, you say, and put in what was the presenting problem, correct? A. There's no presenting problem. Q. Well, on your notes, your hand -- A. Oh, yeah, 'cause I remember what she said. Q. So you -- you remembered two weeks later that the presenting problem was this purported stalking and spying on her, right? A. I remembered since the phone call, yes. Q. The purported problem was this stalking and following her around, right? A. Yes. Q. And there's nothing mentioned in here about anything in restaurants, nothing in here, even in your -- in your two-week-later notes about -- A. Well -- Q. -- market, and there's nothing in here about being in the car and seeing you in the -- seeing you in the rearview mirror when driving; you would agree with that? A. I would. Q. And there was, in terms of your particular -- Well, let me ask you this: Right after the -- you publicized this, and said this was Nicole Brown, you got a lot more donations to Sojourn House -- MR. GELBLUM: Assumes facts not in evidence, publicizing this. THE COURT: Sustained. You may ask a question in that regard. Q. (BY MR. BAKER) After you -- By the way, you didn't go meet Marcia Clark until August of 1994; is that correct? A. No, I didn't meet with her until January. Q. 1995? A. Yeah. Q. And you didn't talk to anybody in the D.A.'s office or the LAPD until August of '94, correct? A. Exactly, yes. Q. And you had talked to various people in the media before August of 1994? A. I spoke with nobody in the media. Q. And it wasn't in the media at all, right? A. Not that I know of, no. Q. Now, in terms of your two-week notes, the two-week-old notes, where you say "threatened and confused " -- you see that under number 4? A. Um-hum. Yes, I do. Q. Okay. Now, you -- You, in writing on the front page -- MR. BAKER: Phil, would you go to the first page, right down at the bottom. Q. (BY MR. BAKER) She said under her current needs, she didn't -- you never wrote that she was threatened when you wrote the notes on 5-7 or 6-7, correct? A. Not in this sheet, no, I did not write that. Q. Well, this sheet that we have now on the monitor is the only sheet you wrote contemporaneous with the phone call, correct? A. Correct. Q. You didn't write that she was threatened, did you? A. No. No, I didn't. Q. And the fact if someone is threatened when they're calling in, that's significant to you, is it not? A. Certainly it was. Q. That would be the most significant thing about the caller who was calling in, if in fact they are threatened, would it not be? A. Probably, yes. Q. And if, in fact, somebody related to you that they were threatened, that's something you would want to include in the form, to make it complete, true? A. I suppose -- Well, this form -- Q. Can you answer my question, please. A. Technically, yes. Q. Well, technically. Technically that's something that you want to perpetuate, that this person is, in fact, threatened, and you want to perpetuate it in your notes; isn't that correct? A. This form -- Q. Isn't that correct? If somebody tells you, ma'am, they are threatened, you want to perpetuate it in your notes? A. In hindsight, it should have been written down. Q. Ma'am, I'm talking about when you're doing your job, not talking about hindsight or anything else. I'm talking about you trying to help or -- The purpose of this document is to memorialize what went on and with that call, so if there's a subsequent call or subsequent action, you have a source to go back to; isn't that true? A. That is not the purpose of the form. Q. Now, is it your testimony that she indicated to you that she wondered whether she would be safer to get herself and the kids back together with him? A. She did say that. Q. And -- That appears nowhere on the form, does it, on the form that you wrote contemporaneous with the phone call? A. It doesn't. Q. And is it your testimony that this person who you say identified herself as Nicole, was talking that her children were in danger? A. Yes, she -- yes, she would consider, since she was battered, that her children would be in danger. Q. Now I didn't ask you what you thought she considered; I asked you what she said to you. Did she say to you, ma'am, that it was her belief when she communicated with you, that her children were in danger? A. She didn't say that, not in so many words, no. Q. And you concluded, two weeks after the call, that she was wondering whether it would be safer for herself and the kids to move back in together, right? A. Her -- her -- her concern was her -- Q. No, I asked -- A. -- her safety. Q. Well, you concluded two weeks subsequent to your phone call, that, in fact, this woman had told you that her children were in some sort of danger, correct? A. Exactly. Q. All right. Now -- By the way, did you bring anybody here to watch you testify today? MR. GELBLUM: Objection. Relevance. THE COURT: Sustained. Q. (BY MR. BAKER) You said that the caller had said to you that -- in questions that you were asked this morning by Mr. Gelblum, that if she was with another man, her ex-husband would kill her, correct? A. Correct. Q. Now, that is something that is very, very significant in the line of work that you're in, is it not? A. It is. Q. I mean that is a threat of death to another human being, true? A. True. Q. And that is the most significant thing, according to what you've testified here today, that was told to you in this purported telephone call of June 7, 1994, correct? MR. GELBLUM: Objection, asked and answered. THE COURT: Overruled. A. When she told me about -- Q. (BY MR. BAKER) No, no, no. I asked you about, if in fact, that was the most important thing that was told to you in this 20-minute phone conversation, a threat of death to the caller? A. It was very important, yes. Q. And it does not appear anywhere on either your contemporaneous form or your two week later form, does it? A. Can I explain? Q. Can you answer the question? A. No, it doesn't. Q. And I would take it that, if in fact, she had told you that she had been threatened to be killed, that you might want to report that to some authorities, correct? A. No, I don't do that, we don't do that on the hot line. Q. All right. And did you ever ask her, for example, if she was with another man, since the threat was linked to her being with another man? A. Oh, sure. Q. That doesn't appear anywhere on either your contemporaneous form or your two week later additional form, does it? A. No. MR. BAKER: Thank you. REDIRECT EXAMINATION BY MR. GELBLUM: Q. What's the purpose for filling out the form, Ms. Ney? A. The purpose for filling out the form are basically for statistical purposes. Q. Meaning what? A. Well, we don't get our funding unless we write down certain things on the sheet, such as the woman's name and where she lives. Q. Is the purpose of the form to make a record for future calls? A. No, it's not. MR. BAKER: Objection, leading. THE COURT: Overruled. Q. (BY MR. GELBLUM) Your handwritten notes that you made two weeks later -- A. Um-hum. Q. -- did they say anything about how long Mr. Simpson -- I'm sorry -- how long -- how long Nicole had been married to her ex-husband, her high-profile husband? A. No. Wait a minute. Let me -- I'm sorry. Yes it does. Q. What does it say? A. Just says married 8 years. Q. Okay. Now, why didn't you write down Nicole's report to you that she had been threatened? A. Basically, the reason this form is filled out for statistical purposes only, really. If she had said to me that -- she had told me during the conversation she did not want to come to the shelter. I asked her whether she wanted to come. She said no. As soon as she said no to me -- if a woman says she wants to come to the shelter, this form has to be filled out very -- in great detail. Q. You then ask for the last name? A. I don't -- yeah, if she -- yes, then at that point I would -- she would -- would need to tell me her last name, she would need to tell me a lot more things, but I would need to write down a lot more things. Q. Okay. A. So when a woman calls and has no interest in coming to the shelter, basically this does not need to be filled out in such great detail. I was much more interested, at this point, in speaking to her and seeing what her issues were, and what her problems were, and trying to work with her than to get down the details of the -- just her little details she was telling me. Q. Once she told you she was not interested in coming to the shelter, what was your goal for the rest of the conversation? A. The goal for the rest of the conversation -- MR. BAKER: Objection, irrelevant. THE COURT: Overruled. A. The goal for the rest of the conversation was to work on her problem and to get her to a place where she could feel comfortable about her decision. I wasn't really concerned at that point on writing down the details. Q. Why not? A. Because it wouldn't have mattered. No one looks at these sheets again. Q. What's done with these sheets for people who are not going to come into the shelter, what is done with these sheets after the call? A. Someone takes them, writes down how many women called or what hours they call, and basically puts them away. They're never seen again. Q. Are they used for grant purposes? A. Yeah, grant, and to get our money every month. We get a certain amount of money from the city and the state. Q. Is the level of detail, the amount of information you put on this form, atypical, not typical of what you usually fill out for a call when a woman is not coming into the shelter? A. Sometimes a lot less is written down, quite frankly. Q. Okay. On the subject of the date -- MR. GELBLUM: Like to mark as next in order -- THE CLERK: 2225. MR. GELBLUM: 2225. MR. FOSTER: 4? THE CLERK: 25 next in order. MR. GELBLUM: Is it 5? 2225. Some calendars. (The instruments herein described as calendars for May 1994 and June 1994 were marked for identification as Plaintiffs' Exhibit No. 2225.) MR. GELBLUM: May I approach, Your Honor? THE COURT: You may. Q. (BY MR. GELBLUM) Do you recognize these calendars? A. Yes. Q. What are they? A. Well, they're the schedule of who's going to be on the hot line sessions. Q. Okay. And -- A. The shifts. Q. Is your name -- does your name appear on May 7? A. No. Q. Does your name appear on June 7? A. Yes. Q. What time? A. The 8 to 12 shift. Q. Is that the day that you had this call with Nicole? A. Yes. MR. GELBLUM: I have nothing further. MR. BAKER: Let me see that last calendar, please. (Mr. Gelblum hands exhibit to Mr. Baker.) RECROSS-EXAMINATION BY MR. BAKER: Q. As I understand, Mrs. Ney, the hot line sheet, this says first assessment is not terribly relevant to get funded, right? A. No, it's not. Q. And yet it has filled out -- MR. BAKER: Phil, put up the first sheet. (Exhibit 2223 is displayed.) Q. (BY MR. BAKER) It has sources to make your job easier, so that you can identify a person and just put in basically a checklist; isn't that correct? A. Correct. Q. And, for example, if someone is calling you and saying that they are -- have been a victim of domestic violence, their age is pretty important, is it not? A. Not necessarily, no. Q. Their ethnicity has no importance either? A. Not particularly. Q. And the details concerning the length of the relationship, that we've already been through? A. Um-hum. Q. And are alcohol or drugs a part of the problem, that's not important either? All you have to do is circle a yes or no, don't you? A. Sometimes I don't ask these questions because there are other things that I find, at the moment, more important, and maybe -- and it could be I even asked her, but I don't remember, I mean I -- just in hindsight, I didn't know that I'd be up here on the stand talking about this, so I guess I -- Q. Okay. But you did know you were going to be up on the stand talking about it when you did your two week memorandum -- A. No, I didn't. Q. Let me finish my question. -- you did the two week memorandum to memorialize the details you testified to in the first examination by Mr. Gelblum, to memorialize the details of the conversation, because you said the memory fades with time, correct? A. Correct. Q. And you didn't include in your memorializing the details, the crucial elements that you're now testifying to either, did you? A. Those were my notes; not for anybody else to look at. I remember the details that I felt were important. I didn't think anybody was going to be looking at these. Q. My question to you, when you wrote out the card in a totally different pen and on a -- not going back and looking at the form or -- strike that. Did you go back and look at the form when you wrote this -- A. No, I didn't. Q. -- memorandum? A. No. Q. And so you were trying, then, to memorialize all the details, because memory fades, and you left out the major details about the phone call, right? A. I was not trying to memorialize all the details. Q. Now, Mr. Gelblum showed you some calendars, and can you tell me how these calendars are filled out and who fills them out? A. There's a woman who's in charge of just that, just calls the volunteers and seeing what shifts they would like to take on which days. Q. And obviously, these have to do with scheduling, right? A. Right. Q. And these don't have anything to do with Mr. O.J. Simpson, do they? A. Not at all. Q. And Mr. O.J. Simpson's name doesn't appear on any of these, does it? A. No. Q. Would you kindly read the top of the July 1994 calendar to the jury. Whose name appears there? MR. GELBLUM: June? Q. (BY MR. BAKER) June 1994, tell them what -- just tell them what name appears on the upper right-hand corner of that calendar. Left. A. Can I read the note or -- Q. Can you just tell us . . . A. O.J. Simpson. O.J. Simpson. Q. Now, is there in that calendar any other name of any other human being that is not connected with Sojourn House? A. No. Q. And that just happened to get on there? A. I have no idea what that's doing there. The only thing I can guess -- Q. I don't want you to guess. A. Okay. Q. Nor does anyone else in this courtroom. You have no idea how my client's name is on the scheduling calendar of June 1994 -- well -- A. I -- well, I do have an idea, yes. Q. You can speculate? A. 'Cause I can read what the note here -- REDIRECT EXAMINATION (Continued) BY MR. GELBLUM: Q. Would you do that, please. A. It says, "Calls to the hot line R-E O.J. Simpson, no comment." Q. What do you understand that to mean? A. That means if anyone calls the hot line about O.J. Simpson, not to -- to say no comment. This is for everybody. MR. GELBLUM: Thank you. Nothing further. RECROSS-EXAMINATION (Continued) BY MR. BAKER: Q. So as early as sometime in June of 1994, there wouldn't be any calls to the Sojourn House unless you or somebody else had put out this purported call of Nicole Brown Simpson? MR. GELBLUM: Objection, calls for speculation, no foundation. THE COURT: I don't understand the question. MR. GELBLUM: He asked her if -- if somebody else would have any reason to call. How would she know? THE COURT: Overruled. A. I did not say a word to anybody in June. Q. (BY MR. BAKER) Didn't ask you whether you said a word to anybody. Maybe my question -- MR. GELBLUM: That's the problem with the question. Q. (BY MR. BAKER) I said that was put on that calendar because someone at Sojourn House had publicized what they wanted to publicize as a call from Nicole Brown Simpson, true? MR. GELBLUM: Objection, calls for speculation, assumes facts not in evidence. THE COURT: True. Sustained. No testimony that it was publicized. MR. BAKER: Well, that's circumstantial evidence that it is because -- MR. GELBLUM: Pardon me. MR. BAKER: -- The fact it's on there to deflect calls about O.J. Simpson. THE COURT: Sustained. Jurors to disregard that last comment by Mr. Baker. MR. BAKER: Nothing further, Your Honor. MR. GELBLUM: Nothing further. THE COURT: You may step down. Ten-minute recess, ladies and gentlemen. (Recess.) (The notes of the proceedings held in chambers at this point were ordered sealed by the Court, not to be opened, transcribed, or destroyed except upon order of a Judge of the Superior Court.) (The following proceedings were held in chambers, outside the presence of the jury.) MR. BREWER: I want to be on the record. The next witness is a Ronald Fischman being called by the plaintiff. We'd like to question him under 776. This is a witness who is a recalcitrant witness. He's here on subpoena today. In order for him to appear at the deposition he was subpoenaed. He didn't appear. There was an O.S.C. re contempt. He didn't appear for that. There was a body attachment that was issued and, ultimately, we were able to secure his attendance at the deposition. He is a friend of Mr. Simpson, has been for six years. He still is friendly with him today. We feel under those circumstances he's an adverse witness to our side of the case. We should be able to question him using legal questions under 776. MR. PETROCELLI: I would join in that, add 767 permitting him to be questioned as a hostile witness. THE COURT: Okay. You may. MR. BREWER: Thank you. (All parties exit chambers and resume their respective seats at counsel table.) (Jurors resume their respective seats.) (The following proceedings were held in open court, in the presence of the jury.) MR. GELBLUM: Before the next witness, like to move in Exhibits 2223, 2224 and 2225. THE COURT: All right. (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2223.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2224.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2225.) THE CLERK: 2225. THE COURT REPORTER: Okay. MR. BREWER: Ron Fischman. THE CLERK: The witness is Ron Fischman. (Indicating to bailiff.) RONALD FISCHMAN, called as a witness on behalf of Plaintiffs, pursuant Evidence code section 776 and 767, was duly sworn and examined as follows: THE CLERK: You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth and nothing but the truth, so help you God? THE WITNESS: I do. THE CLERK: Please state and spell both your first and your last name for the record. THE WITNESS: Dr. Ronald A., R-o-n-a-l-d A., Fischman, F-i-s-c-h-m-a-n. DIRECT EXAMINATION BY MR. BREWER: Q. Good morning, Dr. Fischman. Dr. Fischman, you are a neurologist and an internist; is that correct? A. That's correct. Q. And you know Mr. Simpson, and have known him since 1990, is that true? A. That's correct. Q. And in 1990, you became familiar with the Simpson family, Nicole, O.J. Simpson and their children; is that true? A. Yes. Q. And a relationship developed between the children first, Nicole and your ex-wife Cora Fischman, then you and Mr. Simpson became quite friendly, is that true? A. Yes. Q. And you have remained friendly with him through today, is that true? A. I've -- I see him occasionally when I pick up and drop off the children. Q. When you see him, you talk to him, you have friendly conversation with him, true? A. Brief conversation. Q. And during the time period that you've known Mr. Simpson -- MR. PETROCELLI: Can you speak into the microphone? MR. BREWER: Yes, speak into the microphone. Q. (BY MR. BREWER) During the time period that you've known Mr. Simpson, you've had occasion to go to dinner with he and Nicole, true? A. Yes. Q. And you've had occasion to go over their house and visit; is that true? A. Yes. Q. And you've also had occasion to take vacations with one another; is that true? A. Yes. Q. And in fact, in 1994, you went to the Super Bowl together, true? A. Yes. Q. That was just you and your ex-wife Cora Fischman, Mr. Simpson and Nicole, true? A. Yes. Q. And you also had a vacation together in Hawaii, true? A. Yes. Q. Okay. And over the course of six years, you spent quite a bit of time with Mr. Simpson, vacationing, going to dinner, visiting at their house and so forth, true? MR. LEONARD: Objection, leading, Your Honor. MR. BREWER: You made a ruling in chambers. MR. LEONARD: Okay. THE WITNESS: Could you repeat -- MR. LEONARD: Withdrawn, Your Honor. THE WITNESS: Would you -- could you repeat the question. Q. (BY MR. BREWER) Over the course of the six years that you've known Mr. Simpson, you've had ample occasion to interact with him on vacation, going to dinner, going over to his home, going to events, things of that nature, correct? A. The events that you noted are the ones that existed, yes. Q. Okay. And while Mr. Simpson was incarcerated, you visited him on two occasions, is that true? A. That's correct. Q. Now, Dr. Fischman, focusing for the moment on the two-and-a-half, three-month period before Nicole's murder, April, May and June of 1994, you had occasion to speak with Mr. Simpson concerning his feelings about Nicole during that time frame, true? A. Yes. Q. And you spoke with him both by telephone and in person, regarding his feelings about Nicole during that time frame, true? A. Yes. Q. And the statements -- strike that. Mr. Simpson told you in or about April of 1994 that the relationship with Nicole had become a little bit rocky, true? A. What month was that again? Q. April of 1994. A. Yes, I believe that's true. Q. And Mr. Simpson had telephoned you in that same month when he was in Puerto Rico shooting a film, the film "Frogman," true, or the pilot "Frogman," true? A. Yes. Q. And he had phoned you from Puerto Rico looking for Nicole, is that true? A. I don't recall if he was specifically looking for Nicole. Q. And when Mr. Simpson telephoned you and spoke with you during the month of April, he indicated to you that he was having difficulty communicating to Nicole, true? A. Yes. Q. And he also told you that Nicole wasn't available to him and would not return his calls; he told you that, didn't he, sir? A. He was having difficulty communicating with Nicole, yes. Q. He also told you that Nicole was abrupt and short with him on those occasions when they did have telephone conversations, true? A. Yes. Q. And he also told you that Nicole was being cold -- cold, difficult, short and avoiding him, true? A. She was being difficult to reach, to communicate with, yes. Q. She was being short with him, true? A. On occasions she would be short with him. Q. She was cold and difficult for him to deal with, true? A. It became increasingly more difficult during that time frame, yes. Q. And, Dr. Fischman, Mr. Simpson told you that as a result of this, he felt as though he was being ignored, true? A. I don't recall that statement. MR. LEONARD: Can I just have an objection, vague as to time with this particular conversation. THE COURT: Overruled. I think we're talking about April through June. MR. BREWER: That's correct. A. Yes. I don't recall that specific comment. Q. (BY MR. BREWER) Okay. Sir, you remember having a deposition taken in this case? A. Yes. Q. And you understood at the time of the deposition that you were placed under oath? A. Yes. Q. And you were questioned by Mr. Petrocelli and myself during the course of that deposition? A. Yes. Q. And you understood at the time of that deposition, that the testimony that you provided therein had the same force and effect as the testimony that you're giving today in court in front of this jury, true? A. Yes, sir. Q. Like to read from your deposition testimony -- MR. LEONARD: Object. There's no foundation. He says he doesn't recall. If what he's trying to do is refresh his recollection, I don't have an objection. He said he doesn't recall. THE COURT: You may refresh his recollection. MR. BREWER: Let me put this on the Elmo. (referring to transcript). MR. LEONARD: Can we have the page. MR. BREWER: Page 69, line 10 through 11. MR. LEONARD: Before you put it -- just -- before you put it up, can I have -- MR. BREWER: Yeah. Hold one second. MR. FOSTER: 67? MR. BREWER: 69. MR. LEONARD: Which line? I'm sorry. MR. GELBLUM: 10 to 11. MR.LEONARD: That's part of an answer. You going to read the question? MR. BREWER: Yeah. Put the whole thing on the Elmo. Q. (BY MR. BREWER) Read it, Dr. Fischman, see if it refreshes his recollection. MR. BREWER: You have any objection? MR. LEONARD: (Nods.) MR. BREWER: Okay. (Transcript page is displayed.) MR. LEONARD: I think it would make more sense to put the whole thing in context, but go ahead. Q. (BY MR. BREWER) I'm going to ask, Dr. Fischman, if you could look at the answer, where it says "The Witness." And just for the moment, read that to yourself and see if that refreshes your recollection. And I'll reask the question. (Pause for witness to read transcript.) A. I said that I believe -- it says, "maybe he felt like he was being ignored." I think that accurately reflects my memory of that, yes. Q. And so that refreshes your recollection, that in discussions with Mr. Simpson, that it was your sense based upon those discussions, that he felt as though he was being ignored by Nicole, true? A. To the best of my recollection. Q. Okay. And in your discussions with Mr. Simpson during that same time frame, you felt that -- strike that -- he indicated to you that he was frustrated, true? A. Yes. Q. He indicated to you he was confused, true? A. Yes. Q. And he also indicated to you that he felt Nicole was rejecting him, true? A. I don't recall him using that word, but I'm -- I'm certain he felt that, yeah. Q. Okay. And you -- when you say you're certain he felt that, that's based upon your recollection as you sit here today of conversations you had with O.J. Simpson in the three-month period before Nicole's death, true? A. It's reflective of the combination of statements and conversations we had during that time period, yes. Q. Okay. Now, Mr. Fischman, in June of 1994, you had occasion to have a conversation with Nicole Brown in your kitchen, is that true? A. Yes. Q. And during the course of that conversation, an IRS letter came up? MR. LEONARD: I'm going to object to this as hearsay. MR. BREWER: Spontaneous declaration, state of mind. MR. LEONARD: I ask he not make speaking objections. If we could approach. THE COURT: Approach the bench. (The following proceedings were held at the bench, with the reporter.) MR. LEONARD: I assume what Mr. Brewer's trying to elicit is a statement from Nicole Brown Simpson regarding her state of mind about IRS -- the IRS letter from Mr. Simpson. I -- I understand Your Honor's ruling. Don't necessarily agree with it, but I understand it. I don't know how this fits into this state of mind exception as you have articulated in this trial. MR. PETROCELLI: This is a summary I'm showing you, Your Honor, of the testimony on this point. He testified that Nicole was extremely upset and was devastated by this letter, and it provoked an immense amount of anger, and it's critical to the understanding of what was going on in the last week, particularly since Mr. Simpson threatened Nicole and followed through by sending this letter, and this letter was a key event in what led to the final event on the 12th of June, and Nicole's reaction to it, and what happened to the -- between the parties in the ensuing days. MR. LEONARD: How can he say it was a key event? The letter -- I mean the letter is -- at best is a threat -- a financial threat at best. What does that have to do with any potential motive to murder in this case? I don't understand that; I've never understood that. MR. PETROCELLI: Because Nicole disagreed with you, she said how could he do this to the mother of his children, she was forced to leave her home with her children. That's why. MR. LEONARD: Yeah, and that's why -- exactly why you want it in. It has nothing to do with motive of murder. He just wants to smear my guy up with that statement. That's all this is for, that's all it's for. It has no probative value. If it does, the prejudicial value is outweighed. What the hell does that have to -- THE COURT: What are you offering it for? MR. PETROCELLI: Offering it to show the conduct of the parties in the last week leading up to Nicole's death, her state of mind. THE COURT: Conduct of which party? MR. PETROCELLI: The conduct of Nicole Brown Simpson. Her reaction to the letter from Mr. Simpson, what anger and hostility it provoked in her and what she did in rejecting him the remainder of that week, including on June 12, and why she did so. It explains her conduct, which is highly relevant to his motive to kill her. MR. BREWER: And let me add one thing. Because it will also help to explain her subsequent conduct, that I will get into in a moment, at the recital, where there is going to be testimony relative to Mr. Simpson's interaction with Nicole Brown Simpson at the recital. This letter is an integral part of the observations that this witness -- and the attitudes that these people expressed to one another. MR. PETROCELLI: He specifically will testify that, unlike Simpson, that there was a coldness, a chilliness, and no communication at all between Simpson and Nicole, and that Nicole took the kids and whisked them away at the end of the recital. Excuse me, you're sitting on my tie. (Referring to Mr. Leonard's elbow on Mr. Petrocelli's tie on side bar.) MR. LEONARD: I wasn't sitting on anything. Your Honor, this is -- I mean enough is enough. This is an absolute, pure, unadulterated attempt to smear my client. Especially this part about the kids. I mean that's ridiculous. This notion of a motive based upon some speculative concept that she was mad at him and then he got mad at her, I mean, Your Honor, how far are we going to go with this. MR. PETROCELLI: That's for the jury to decide, not you. MR. LEONARD: I agree. But it's also for me to point out to the Court that at some point the probative value becomes so lessened and the prejudicial value is too great, particularly the statement about the kids, that it becomes inappropriate. I really feel very strongly -- MR. BREWER: Not this close to the murders. THE COURT: It appears to the Court that the essential position of the plaintiff is that it's being offered to show Nicole Simpson's state of mind in terms of her relationship with the defendant, which appears to be contrary to the version of the relationship as testified to by Mr. Simpson, and I think, for that reason the Court will allow it. Overruled. (The following proceedings were held in open court in the presence of the jury.) Q. (BY MR. BREWER) Dr. Fischman, I want to direct your attention to a discussion you had with Nicole a week or so before the murders, concerning an IRS letter, in the kitchen, correct? A. Yes. Q. You had such a discussion, didn't you? A. Yes. Q. And she told you about a letter she had received from Mr. Simpson regarding a request on his part that she not list the Rockingham residence as her primary residence, true? A. Yes. MR. LEONARD: May I have a running objection. THE COURT: Yes. MR. LEONARD: Thank you. Q. (BY MR. BREWER) And during the course of this conversation that you had with Nicole, she was angry about the fact that she had received this letter, true? A. Yes, she stated that she was -- it wasn't a conversation, I was listening to her. She was very upset about having received the letter. Q. In fact, she was angrier about receiving this letter -- more angry than she had ever been -- than you had ever seen her since you had known her, true? A. She was extraordinarily angry. Q. And she told you that the reason why she was angry is she couldn't believe Mr. Simpson would do this, to put a wife -- his ex-wife, the mother of his children, and his children out on the street, true? A. That part I don't recall right now. Q. Do you recall testifying at your deposition that Nicole Simpson said to you -- MR. LEONARD: Page and line, please. MR. BREWER: Page 107, lines 4 through 7. Q. (BY MR. BREWER) Do you recall saying that, sir, that she couldn't believe O.J. would do something like that to the mother of his children? A. I believe that's what I said, yes. Q. You said that -- at your deposition, under oath, that's what she said to you in the kitchen during that conversation, true? A. I believe that's what she said, yes. Q. And she also indicated to you that Mr. Simpson was doing this because he was retaliating against her because she ended the relationship, true? A. No, that's not true. Q. She indicated to you that he was doing this to retaliate against her, didn't she, sir? A. No, that's not true. Q. Now, Mr. Fischman, I want to move ahead to the recital. There was a recital held on June 12, 1994, and your daughter was one of the participants in the recital, true? A. Yes. Q. And the recital was to be held between 5 and 6 o'clock that evening; is that correct? A. Approximately, yes. Q. And your wife -- your ex-wife was going to be there; is that correct? A. Yes. Q. And you understood that Mr. Simpson and Nicole were going to be there, true? A. I didn't spend my time thinking about it, but yes, when I got there, it was apparent they were going -- both going to be there. Q. Because their daughter was also participating in the same recital, true? A. Yes. Q. When you got there -- you arrived a little bit late, is that true? A. I believe so, yes. Q. And you went into the auditorium and you sat down with your family; is that correct? A. Yes. Q. And after you sat down, you turned around and made observations -- or an observation with respect to Mr. Simpson and Nicole, correct? A. Yes. Q. And they were seated at the rear of the theater, is that true? A. Yes. Q. And with respect to the observations that you made of them at that time, you sensed that there was a chill between them, correct? MR. LEONARD: Objection, calls for speculation and lack of foundation. THE COURT: Sustained. Q. (BY MR. BREWER) Well, during the time period that you made observations of them in the theater, did you ever see them speak with one another? A. As I said in my deposition, it was a very chaotic situation with parents and children running all over the place. I turned around and I believe I saw Nicole and O.J. sitting next to each other. I don't recall them having any dialogue or conversation, but it would have been difficult to determine that based on where I was sitting. Q. So, sir, you never saw them embrace in the auditorium, did you? A. Correct. Q. You never saw them kiss, did you? A. No. Q. You never saw either one of them smile, did you? A. I don't recall. Q. In fact, you never even saw them look at one another in that auditorium, true? A. I don't recall. I wasn't in a position to see that as I -- as I've explained. Q. Um-hum. Now, at an intermission, Dr. Fischman, you went out into the lobby and you had a discussion with Mr. Simpson in the lobby; is that correct? A. No. There was no break. I think at one point I got up to stretch and O.J. was out in the lobby also, yes. Q. And you spoke with him for about 5 to 10 minutes; is that correct? A. Something like that. Q. And during that time frame, Mr. Simpson indicated to you that he was tired, true? A. Seemed that he was tired, yes. Q. And in the course of four years, during that time you had seen him tired on other occasions, hadn't you? A. Once or twice I'd seen him. Q. I mean you'd seen him come back from trips where he traveled out of town and come back into town, true? MR. LEONARD: Objection, calls for speculation. THE COURT: Overruled. A. I may have. Q. And during the course of having a conversation with Mr. Simpson in the lobby, what you observed about him is that he appeared to you to be slightly withdrawn, true? A. Yes, he was tired, fatigued, slightly withdrawn. Q. Subdued? A. Yes, somewhat. Q. And in the conversation, the brief conversation that you had with him out in the lobby, you sensed that he was frustrated in that conversation, true? A. No, I don't recall him being frustrated, demonstrating any frustration in that conversation. Q. Okay. A. There was, you know -- again, this was a lobby filled with children running around, it wasn't a one-on-one communication where we were having a heart-to-heart about the specific event or people. MR. BREWER: Move to strike as nonresponsive, Your Honor. THE COURT: Overruled. MR. BREWER: Can I have the deposition. Want to put up for the defense page 296, lines 17 through 25. Would you put that on the Elmo, please. MR. LEONARD: I'm sorry, pages again. MR. BREWER: Page 295 -- 296, I'm sorry. Lines 17 through 25. MR. LEONARD: Can I -- can you hold off for a second, Steve. MR. FOSTER: Sure. MR. LEONARD: Okay. MR. BREWER: Steve, go ahead. (Page 296 from transcript displayed on Elmo.) MR. BREWER: I'm going to start reading here. Go to the next page. Could you go to the next page, please, I'll give you the lines. Okay. Right there. Go back up. Mr. Leonard, lines 5 through 7. Okay. Go back up so I can start at line 17. Q. (BY MR. BREWER) All right. (Reading.) "Q. And he appeared at that point to be slightly withdrawn, is that a fair statement?" MR. BREWER: Your answer. (Reading.) "Yeah. "Q. Did he appear to be upset? "A. No. "Q. Slightly upset? "A. No. "Q. Confused? "A. No." MR. BREWER: There's an objection. (Reading.) "Q. Frustrated?" MR. BREWER: Your answer. (Reading.) "I think he may have shown some frustration in the brief conversation we had in the lobby but not afterwards." Q. (BY MR. BREWER) Were you asked those questions, sir, and did you give that answer? A. Apparently, yes, I did. Q. And that was your answer under oath in the deposition, true? A. Yes. Q. Do you want to change your sworn testimony today, Dr. Fischman? MR. LEONARD: I object. That's argumentative. THE WITNESS: Would you like to clarify it? THE COURT: Overruled. Q. (BY MR. BREWER) No. Just answer my question. Did you want to change the sworn testimony that you provided during the course of your deposition today in front of the jury? A. I would just say that -- Q. That's yes or no, sir? A. I stated that throughout that time O.J. had a degree of frustration with Nicole, yes. Q. And that includes frustration that you sensed during your course of interacting with him at the recital, true? A. You're trying to make it -- Q. True, sir? A. It wasn't. No, it wasn't true. It appeared to me that he may have been frustrated throughout the period. You're trying to highlight that frustration during that evening, and honestly, that's not what I sensed. MR. BREWER: Move to strike as nonresponsive. THE COURT: Stricken. Jury to disregard that answer. Q. (BY MR. BREWER) See if you can answer my question, Dr. Fischman. Do you want to change your sworn testimony that we just read from the deposition transcript that he appeared to be frustrated when you spoke with him at the recital? Do you want to change that in front of this jury here today? MR. LEONARD: Objection, argumentative. A. I believe -- THE COURT: Excuse me. A. I've answered the question. THE COURT: Excuse me. You can answer that yes or no. A. No. Q. (BY MR. BREWER) Now, Dr. Fischman, after you had occasion to speak with Mr. Simpson out in the lobby, you went back in and remained inside the auditorium until about the end of the performance; is that correct? A. Yes. Q. And then you all went outside and you gathered outside and you took a photograph of Mr. Simpson at that time, correct? A. Yes, I did. MR. BREWER: Steve, could we have that -- that's 846? MR. FOSTER: 826. MR. BREWER: 826. (Exhibit 826 displayed on Elmo.) Q. (BY MR. BREWER) On the monitor we've had what's been marked and received into evidence as Exhibit 826. Is that a photograph that you took that day after the recital? A. Yes, it is. Q. And can you -- can you tell us how you came to take that photograph? A. At the end of the recital we all withdrew to the courtyard. Sydney had been -- I believe she had the last routine or one of the last routines. When they all broke, we, as I said, went to the courtyard and Sydney came to the courtyard. Shortly thereafter, my wife had requested that I take some pictures, and I did. Q. So this photograph, 826, was taken because your wife had requested that you photograph Mr. Simpson and his daughter Sydney, correct? A. I don't recall whether she specifically asked me to take that picture, or just take pictures as best I could. Q. Well, Mr. Simpson didn't ask you to take a photograph? A. That's right. Correct. Q. It was someone else? A. Yes. Q. Your wife or someone else? A. Yes. Q. True? A. Yes. Q. Okay. And when you took that photograph, that was a posed photograph, that wasn't just a candid shot, true? A. Yes. Q. And by the way, during the course of taking that photograph, or at any time that day, sir, did you ever notice any cuts to any portion of Mr. Simpson's left hand? A. No. Q. Did you ever notice any abrasions to any portion of Mr. Simpson's left hand, either that day or during the course of taking this photograph? A. No. Q. Mr. Simpson is smiling in this photograph, true? A. Yes. Q. That was the first time that you observed him smile that entire day, true? A. I was asked this at the deposition. I was trying to recall whether he smiled in the lobby, and I don't recall. He may have smiled in the lobby when we met earlier. But certainly that was the biggest smile he had during the day, yes. Q. Sir, you were asked to recall a single time that day prior to this photograph, in your deposition, when Mr. Simpson smiled and you couldn't, correct? A. Correct. Q. And the only time that you could recall Mr. Simpson smiling that entire day was when this photograph, this posed photograph was taken following the recital, true? A. That this was -- Q. True? A. He might have smiled. I don't recall. Q. Sir, he might have smiled and he might not. You can't recall one time -- Tell this jury one time that day he even smiled during this joyous occasion until after -- until that photograph was -- photograph was taken, that posed photograph? MR. LEONARD: Objection. THE COURT: Overruled. Q. True? A. As I've stated -- Q. Sir, true or false? True? A. Can you repeat the question, please. Q. You can't recall one time during the entire -- the entire recital, this joyous occasion where your children were performing, where Mr. Simpson smiled, except this posed photograph that was taken after the recital? A. At the present time that's true, yes. Q. Now, after everyone is out and you observed Nicole pull up in her vehicle and all of the kids piled into her car, true? A. I honestly don't recall seeing that happen. I believe it did occur though, yes. Q. And the Browns were also getting themselves together and they were all going to leave, true? A. Yes. Q. And Mr. Simpson came out at that time, while everyone was getting themselves together in order to leave the performance, and go their various ways, true? A. Yes. Q. And, in fact, you were going to have dinner that evening with your wife and your family, correct? A. Correct. Q. And at that time -- in fact, why don't we just show the videotape. At this time we're going to show you what's Exhibit 825. (The instrument herein described as a video of the parking area outside of the Paul Revere Middle School was marked for identification as Plaintiffs' Exhibit No. 825.) (Exhibit 825 displayed on Elmo.) Q. (BY MR. BREWER) Is that you, Dr. Fischman? A. Yes, it is. (Indicating to video.) Q. And is that Lou Brown? A. Yes. Q. And O.J. Simpson? A. Yes. Q. That's his son he just picked up? A. Yes, that was Justin. Q. That's Judy Brown? A. Yes. MR. BREWER: Okay. Stop. Stop. (Indicating to video.) Q. (BY MR. BREWER) Dr. Fischman, you see there where Mr. Simpson was smiling and laughing? A. Yes. Q. You shared a joke with him at that time, didn't you, you shared a laugh together, you and Mr. Simpson, true? A. I don't think it was a joke. Q. In fact, you told Mr. Simpson -- MR. LEONARD: Objection, hearsay. THE COURT: Overruled. Q. You told Mr. Simpson that you were going to dinner that evening with your wife and your family, your ex-wife, true? A. That's correct. Q. And you had had discussions on previous occasions with Mr. Simpson about your own marital difficulties that you were having with your ex-wife; is that true? A. Yes. Q. And when Mr. Simpson walked out of the recital, he asked you about going to dinner with him; is that correct? A. Yes. Q. And when he asked you that, that's when you told him what your plans were for the evening, that you were going to go to dinner with your ex-wife, true? A. Yes. Q. And he said something like good luck; is that correct? A. I don't recall exactly what he said. Q. It was in the context of that conversation that Mr. Simpson is laughing and smiling on that video, true? A. May have been. Q. True? A. It may have been, yes. Q. That's what you testified to in your deposition, Dr. Fischman, didn't you? A. If it's -- MR. LEONARD: I object, it's argument. A. I don't remember the exact words. I'll be happy to review it if you like. MR. PETROCELLI: No speaking objections, please. MR. LEONARD: Yes, Judge. Q. (BY MR. BREWER) Dr. Fischman, Nicole left the recital with her family, correct? A. Yes. Q. And when she left the recital, that was the last time that you ever saw her alive before her murder -- her murder only hours after the recital; is that correct? A. That's correct. Q. And Mr. Simpson left the recital, correct? A. I believe so. Q. And the last time that you saw Mr. Simpson before Nicole was murdered, hours after that recital, was at that recital, true? A. Yes, that's correct. Q. You didn't see him or speak with him after the recital? A. No, I did not. Q. And from everything that you were able to observe about Mr. Simpson, based upon your observations and your interactions with him, concerning his demeanor and appearance, in all the years that you've known him he never appeared the way he did on June 12, 1994, at that recital, did he, sir? A. It's a difficult question to answer. Q. Did he, sir? A. He was very subdued and quiet. Q. Sir. A. That was not his normal state -- normal state. Q. In all the years that you knew O.J. Simpson, he never appeared the way he appeared at that recital to you, true? A. That's true. MR. BREWER: Nothing further. THE COURT: Cross. CROSS-EXAMINATION BY MR. LEONARD: Q. (BY MR. LEONARD) Morning, Dr. Fischman. A. Morning. Q. Did you have any knowledge as of the time that you saw Mr. Simpson, as to what his schedule had been the week before. I'm talking about on June 12, what his schedule had been, what he had been doing that weekend, how much activity had been involved, if -- how much sleep he had gotten; were you aware of any of that? A. No. Q. Okay. And your testimony here, in front of this jury, is that you -- when you saw him your impression was that he was tired, right? A. Yes. Q. And quiet and withdrawn, correct? A. Right. MR. BREWER: Leading, objection. THE COURT: I'll permit it. Q. (BY MR. LEONARD) Did you think there was anything inappropriate about his demeanor or behavior? A. No. Q. You also -- Mr. Petrocelli asked you a number of questions about -- MR. BREWER: Misstates the evidence. MR. LEONARD: Excuse me, Mr. Brewer. Sorry. Q. (BY MR. LEONARD) Mr. Brewer asked you a number of questions about your impressions of whether or not Mr. Simpson was expressing some type of frustration in his discussion with you on that Sunday evening. Do you recall those questions? A. The questions I was asked previously? Q. Yeah. A. Yes. Q. You had a number of discussions during the spring, or at least April through June, with Mr. Simpson about his relationship with Nicole and he had expressed some frustration, right? A. Yes. Q. It's true that -- that the primary reason he was expressing frustration is because she was acting erratically; is that right? That's what Mr. Simpson told you, correct? A. Yes. Q. And he told you that, for instance, he would have trouble dealing with her about the children, especially if he called her in the morning, things like that? Do you remember him telling you that kind of thing? A. He said that he had difficulty communicating with her, and the children were part of that, yes. Q. That some days she'd be up and some days she'd be down; that's what he meant by erratic behavior when he was discussing it with you? A. I believe so, yes. Q. When you were talking about frustration that was exhibited to you by Mr. Simpson, that's the thing he was mentioning to you, that's what you were talking about when Mr. Brewer was asking you questions; is that correct? MR. BREWER: Objection, misstates the testimony. THE COURT: You may rephrase it. Q. (BY MR. LEONARD) When you were talking about Mr. Simpson expressing frustration about his relationship with Nicole, his primary concern that led to the frustration, at least to the extent that he expressed it to you, was her erratic behavior; isn't that right? A. Erratic behavior was certainly the central issue, yes. Q. Okay. It sounds to me like, at least in the discussion you had about a week before Nicole's death, that she was -- she wasn't shy about talking about her problems with (sic) Mr. Simpson, she was venting? A. About Mr. Simpson or with him? Q. With him or about him. In this regard she was talking about the IRS letter, right? A. When I saw her, she would talk about the problem she might be having. Q. Okay. On that particular occasion, she was talking to you about something that made her really mad at Mr. Simpson, this IRS letter? A. Absolutely. Q. And by the way, that would have been approximately the 6th or 7th of June, something like that? A. I don't recall. I think you all have the timeline put together, and I acknowledged the date that you had ascertained as that conversation took place. Q. In that conversation, did she say anything to you about any stalking by Mr. Simpson, that he was stalking her, anything like that? A. No. Q. Did she say that he had threatened to kill her? A. No. Q. Did she say that -- that she was afraid for herself, physically, and for the children? Did she say anything like that, sir? A. No. Q. Now, you were asked questions about Mr. Simpson's demeanor, whether he smiled, whether he talked to Nicole. And you tried to explain a couple of times about your -- the difficulty you had in seeing or observing. Would you explain that to the jury, why it was that you couldn't observe Nicole and O.J. for periods of time. Can you explain that to the jury. A. Yes. My -- My family had obtained seats about two-thirds of the way up in the theater. O.J. and Nicole, as noted before, were sitting in the back. When I went in to sit with my family it was a darkened auditorium, I got there during the performance. I only glanced back briefly so I really wasn't in a position to observe them throughout the performance. Q. And Mr. Brewer asked you very vigorously about whether, and how often Mr. Simpson was smiling. Now, we saw on the videotape that Mr. Simpson smiled and laughed. Do you remember that? A. Yes. Q. Okay. And he was smiling and laughing about -- I know you don't think it was a joke, but he thought -- I guess he thought it was funny, he was smiling and laughing about your predicament at this time, correct? A. I think he was trying to make light of my predicament, yes. Q. And he never expressed anger at Nicole that night, did he, Dr. Fischman? A. Not in my presence, no. Q. He was laughing about your relationship with your wife, and that's how you left him that night; isn't that right, sir? A. That's correct. MR. LEONARD: Thank you. No further questions. REDIRECT EXAMINATION BY MR. BREWER: Q. Dr. Fischman, the erratic behavior that we talked about, by erratic behavior we're talking about Nicole avoiding O.J. Simpson, true? A. Yes, at times. Q. We're talking about her not returning phone calls, true? A. Yes. Q. We're talking about her being short on the telephone with Mr. Simpson, true? A. True. Q. We're talking about her being difficult to him, true? A. Yes, true. Q. That may be what he meant when he said she was acting erratically, correct? A. I believe so. Q. Now, the conversation about Nicole's anger relative to the IRS letter, you just happened to walk in the kitchen when Nicole was talking to Cora about that issue; is that correct? A. I believe that's the case, yes. Q. And so the only thing that you heard was what you happened to overhear as a result of -- by happenstance, being in the kitchen when they were talking about it, true? A. It was my kitchen. I was getting ready to go to work so, yes, that's what I heard. Q. Now, you didn't stay for the entire conversation, did you? A. I don't recall, to be quite honest. Q. If Nicole mentioned fears that she had -- MR. LEONARD: Objection, speculation. THE COURT: Sustained. MR. LEONARD: You know what, Your Honor, if we could approach -- THE COURT: No. MR. LEONARD: Because he knows how speculating -- THE COURT: Excuse me. Just finish your examination. MR. BREWER: Thank you, Your Honor, I appreciate that. Q. (BY MR. BREWER) Dr. Fischman, with respect to the recital, you did have conversation with Mr. Simpson where you had an opportunity to observe how he appeared, and how he was feeling that day, true? A. There were two periods, one was the conversation that we had for 5 or 10 minutes in the lobby, as I mentioned earlier, and the second one was what you saw on the videotape. Q. So you had 15, 20 minutes, maybe longer, maybe shorter, of time and interaction with Mr. Simpson that day, where you could assess the things that you described about his appearance and demeanor, true? A. Yes. Q. And inside the auditorium, you anticipated from what you knew about Nicole's state of mind and Mr. Simpson's state of mind that there would be some tension between them that day, didn't you? MR. LEONARD: Objection, speculation. THE COURT: Sustained. MR. LEONARD: Irrelevant. THE COURT: Not irrelevant. Speculation. Sustained. Q. (BY MR. BREWER) Well, when you got to the auditorium and you looked back, you were looking back, albeit briefly, to see if there was any tension between Mr. Simpson and Nicole, true? A. No. I didn't specifically look to see if there was any tension, no. Q. But you made that -- you made an observation that there was a chilling between them, that's what you testified to at your deposition at that time, true? A. No. MR. LEONARD: Objection. That calls for speculation. That question was specifically ruled on before and the objection was sustained, Your Honor. It was an improper question. Ask that it be stricken. THE COURT: Stricken. Q. (BY MR. BREWER) Inside the auditorium did you look back and make observations about Nicole? MR. LEONARD: Objection, asked and answered three times. THE COURT: Sustained. Q. (BY MR. BREWER) Did Nicole ever talk to you about Mr. Simpson beating her in 1989? A. No. MR. LEONARD: Your Honor, beyond the scope. MR. BREWER: Nothing further. THE COURT: Recross. RECROSS-EXAMINATION BY MR. LEONARD: Q. Dr. Fischman, when Mr. Simpson was talking to you about his frustration at Nicole's erratic behavior, he was -- he was telling you that sometimes she wouldn't return his phone calls, sometimes she was cold, and other -- sometimes she was fine; isn't that what he was telling you, sir, and that's why it was erratic, correct? MR. BREWER: Objection, misstates the testimony. THE COURT: I'm going to sustain it. It sounds like you're testifying. Q. (BY MR. LEONARD) Tell us what you understood, what he told you when he was talking about erratic behavior, sir. MR. BREWER: Asked and answered. MR. LEONARD: Based on -- he opened it up again. THE COURT: Overruled. Answer if you can. A. You know, we're talking about two people who are having a difficult relationship. THE COURT: That's not an answer. MR. BREWER: Move to strike. THE COURT: Stricken. A. Repeat the question, please. Q. (BY MR. LEONARD) The question is describe for the jury what Mr. Simpson was describing for you when he told you that Nicole's behavior was erratic. A. He was describing her attitude towards him. Q. Okay. And if you could -- if you could tell us in a little bit more detail what he was telling you that -- that when he was describing her erratic behavior? A. The erratic behavior revolved around those issues that have been discussed; the phone calls, the interactions, the communication, whether they would be together or not be together. The relationship was coming apart. Q. Thank you very much. I appreciate that. MR. BREWER: Nothing further. THE COURT: Your're excused. Thank you. MR. BREWER: Your Honor, I want to move in 825, the video. MR. LEONARD: No objection. THE COURT: Okay. (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 825.) MR. BAKER: What's the number? THE COURT REPORTER: 825. MR. BREWER: Yes. MR. BLASIER: We have a motion that comes before the next witness. It's going to take a few minutes. THE COURT: Okay. Ladies and gentlemen, 1:30. Don't talk about the case. Don't form or express any opinion. (Jurors exit courtroom.) (The following proceedings were held in open court outside the presence of the jury.) MR. BLASIER: Your Honor, the next witness is Dr. Bruce Weir, who's been called to testify to frequency numbers for DNA mixtures. I am making a motion that he be excluded from testifying for the following reasons: We had a stipulation with the plaintiffs in this case, that with respect to experts that testified in the criminal trial, if their civil trial testimony was going to be the same, then we would save money and time by not taking their depositions, since they weren't going to say anything different. We relied on that in not taking Dr. Weir's deposition. This morning, I had a paper passed to me just across the table, giving a whole new set of numbers, frequency numbers, that are different from what he testified to at the criminal trial. Further, there is one statistic on here regarding the frequency of the combined 303, 304, 305 of the Bronco that was a completely new figure. There was never frequency testified to about that at the criminal trial. Mr. Lambert indicated he used the same method but he came up with different numbers. I asked if there were any work papers. He said, no, he doesn't have any work papers. Some of these numbers are substantially different. One of them with respect to stains G1 and G2 on the Rockingham glove, the number that he testified at the criminal trial as the most frequent occurrence was 1 in 3,000. It's now 1 in 6 billion. These are substantial differences. We have not had any discovery on this. We object to him -- them calling this witness at this time based on violation of the stipulation that they signed. MR. LAMBERT: Yes, Your Honor, Dr. Weir did testify at the criminal trial about this very same subject matter, frequency calculation, just to mixtures. He's not talking about the single stains, but the mixtures only, and the only number that wasn't presented at criminal trial was one for the 303, 304 and 305 combination because that -- at the time that he testified that test hadn't been done. It was done later in the case so that's the only new mixture number that he's testifying to. Other than that, he's recalculated some of the mixture numbers and, in fact, he published these results. They know them. Everyone's seen them. They've been published in journals. That is accessible to everyone. It's basically the same testimony as before. The numbers are slightly different, but it's the same methodology that he's got on the report. In fact, you might remember, Your Honor, it was at their insistence that mixture calculations be put into evidence. They insisted that we put those into evidence at the beginning of the case. That's why we are about to do it. MR. BLASIER: Your Honor, the law requires statistics under People versus Barney. These statistic mixtures aren't available. The difference in 1 and 3,000 and 1 in 6 billion is a substantially new calculation, something new. I would move to exclude the new stain, 303, 304 and 305. I would also move to exclude any testimony about these new numbers. We've had no discovery about them at all. MR. LAMBERT: Your Honor, these aren't new numbers. They've been recalculated. THE COURT: You just finished telling me that the test wasn't made until later. How could they not be new numbers? MR. LAMBERT: I agree 303, 304 and 305 is a new number. At the time of his testimony that item had not been tested by the underlying laboratory. Very late in the criminal case they did an RFLP test on 303, 304 and 305. All he's done is add that one new calculation using the same methodology that he already testified three days in the criminal trial about -- all this methodology. He's now calculated, used the same methodology to calculate it for that one stain that he did for all the other mixtures. That's the only thing that's new. And it's not even new. It's only just the same apply to the same formula in the computer to a new set of data. So there's nothing new about that. THE COURT: I'm inclined not to permit him to testify unless he's subject to a deposition. MR. LAMBERT: If you want, Your Honor, we can present him for a deposition, they can ask him about these numbers and we can call him later. THE COURT: Why can't you do that? MR. LAMBERT: I'll willing to do that, Your Honor. We can have him this afternoon. MR. PETROCELLI: He can have his deposition taken this afternoon. MR. BLASIER: I'm not prepared to do a deposition this afternoon based on new numbers I'm given this morning with no new discovery, no work papers. THE COURT: Where are his work papers? MR. LAMBERT: He doesn't have work papers. This a computer program. He simply takes the data from the Department of Justice that's already been presented, it's already in evidence, and he applies the computer program to it and he gets statistics out of it. And that's what he's prepared to testify about. THE COURT: Okay. When do you want to depose him? MR. BLASIER: I can do it tomorrow. THE COURT: Okay. Do it tomorrow. MR. LAMBERT: Very well, Your Honor. MR. PETROCELLI: We have a witness. I guess he will start right after lunch, Your Honor. THE COURT: Okay. 1:30. (At 11:50 A.M. a recess was taken until 1:30 P.M. of the same day.) SANTA MONICA, CALIFORNIA DEPARTMENT NO. WEQ (REGINA D. CHAVEZ, OFFICIAL REPORTER) (The jurors resumed their respective seats.) MR. PETROCELLI: Thank you, Your Honor. By videotape, Plaintiffs call Paula Barbieri. (An edited version of the videotaped deposition of Paula Barbieri was played in open court.) MR. PETROCELLI: Stop it for a second. Your Honor, just for clarification, the witness, throughout most of the deposition, kept referring to Sunday as June 11 -- MR. BAKER: I object -- MR. PETROCELLI: -- later on corrected it to June 12, because of the video editing, wasn't able to reflect that, just so there's no confusion. THE COURT: Okay. (An edited version of the videotaped deposition of Paula Barbieri resumed playing in open court.) MR. LEONARD: Your Honor -- MR. P. BAKER: Your Honor, we'd object. It's speculation. MR. BAKER: I did in the depo. MR. LEONARD: The question is, did you understand Mr. Simpson already picked up your messages that you left on the Bentley phone. THE COURT: Sustained. MR. PETROCELLI: Your Honor, she indicates that from the -- MR. BAKER: Let's not have speaking objections, to coin your phrase. MR. PETROCELLI: We need to be heard. They've had these designations -- MR. BAKER: Let to go to side bar. MR. PETROCELLI: They didn't indicate to me in advance on this, and I will -- C.C.P. requires him to counter-designate and give me the objections. They did not do so. THE COURT: Okay. MR. BAKER: Does not -- THE COURT: Overruled. (An edited version of the videotaped deposition of Paula Barbieri resumed playing in open court.) MR. BAKER: It's overruled. MR. BAKER: Is it -- turn that -- wait a minute. Is it -- Turn that off. MR. PETROCELLI: You don't run the courtroom. THE COURT: Give me the code section. MR. PETROCELLI: Okay. 2025. You have the code? You have the code? Your Honor, try 2025(l)(2)(I). Is that an L? And in addition, we would like to be -- to be heard on the substance of the objection. THE COURT: Okay. Based on 2025(l)(2)(I), the objection is overruled. MR. BAKER: Your Honor, we objected in the deposition. We don't have to tell him we object again. THE COURT: It must be in writing. MR. BAKER: It is in writing. It's in the deposition. MR. PETROCELLI: That's not what the Code requires. THE COURT: It's not what the Code says. MR. PETROCELLI: Can you rewind it a little bit (The videotape was rewound.) (An edited version of the videotaped deposition of Paula Barbieri resumed playing in open court.) (Videotape concluded playing.) MR. P. BAKER: Can we read our portion, Judge? MR. PETROCELLI: Your Honor, I wanted to hand the clerk, to give to Your Honor, a copy of the deposition. We're going to have some significant objections. MR. BAKER: They better be in writing. MR. PETROCELLI: These don't have to be in writing, Your Honor, because he did not designate anything by way of videotape. MR. BAKER: Your Honor, we are required to -- and in this proceeding, there have been objections to interrogatories as they've come up, and so -- or in depositions, rather, and so since it seems that the rules are now changing, we object to any objections because they're not in writing from Mr. Petrocelli. MR. PETROCELLI: Your Honor, five minutes before we turned that tape on, I got for the first time, the defense designations of what they wanted read. I just got them about 1:30, 1:40 this afternoon. MR. BAKER: That's what we've been doing the whole trial, is giving designations back and forth. MR. PETROCELLI: The rule about the video designations applies when, obviously, you're preparing an edited tape in advance. We have some significant objections, both substantively and to the form of the questions, many of the topics, including beyond the scope of the -- of the direct. MR. BAKER: There is no beyond the scope, Your Honor, in a discovery deposition such as this. MR. PETROCELLI: This is trial testimony. You can read certain parts in your case. (Pause in proceedings for the Court to read the Code Book.) THE COURT: The Court finds that the previous order that the court made is restricted to the videotape portion that was viewed. That's with respect to 2025(l)(2)(I). With respect to deposition testimony that is not presented by videotape, the Court will utilize 2025, subdivision M and subdivision U. You may make your objection. You may proceed. (Portions of the deposition of Paula Barbieri were read by Mr. P. Baker reading the questions and Ms. Bluestein reading the answers.) MR. P. BAKER: Page 308, line 8. (Reading:) "Q. Did Mr. Simpson generally carry a lot of cash? "A. Yes. "Q. And when I say 'a lot of cash,' Mr. Simpson usually had in excess of $5,000 in cash on him at any given time, did he not? "A. I never counted the money, but it was always a big sort of rubber band around a lot of bills. "Q. When you saw those bills, those bills were basically $100 bills, were they not? "A. I don't recall right now. Big bills. "Q. All right. When you would -- strike that. Both of you traveled a fair amount, did you not? "A. Yes." MR. PETROCELLI: Objection. I have a stipulation from Mr. Baker on the fact that all these questions were leading and the -- it appears at page 308 in the deposition transcript. I solicited a stipulation from Mr. Baker on leading grounds. He told me I had a standing objection. That's at page 310 of the transcript which you have in front of you, at line 10. And just so I don't say anything out loud, I would direct the Court's attention to page 367, lines 13 through 19, indicating this witness's status. (Pause for the Court to review transcript.) THE COURT: I'll permit it. MR. P. BAKER: Page 310, line 5. (Reading:) "And Mr. Simpson had a grip bag that he took with him on most occasions when he traveled, did he not? "A. Yes." MR. P. BAKER: Now, page 311 line -- 311, line 3. (Reading:) In the black bag that Mr. Simpson had, he almost always had his passport in there, did he not? "A. Yes. "Q. It was customary for him to have his passport wherever he went? "A. Yes. "Q. Now, did you usually carry a passport? "A. I usually always do, except today. "Q. All right. And we talked about Mr. Simpson's golf a little bit. He was an avid golfer, was he not? "A. Yeah. "Q. That look is exactly the same look I get from my wife, by the way. "In any event, he would usually get up, if you were there, if you knew, early in the morning to go play golf, would he not? "A. Before the sun came up. "Q. And that was usually Saturday and Sunday at the very minimum, was it not? "A. Every day. "Q. Okay. All right. And were you ever aware of Mr. Simpson planning to use a disguise when he would take his children different places? "A. I believe I testified already in the Grand Jury to the Knotts Berry Farm, if I remember correctly, that at the video shoot, the video makeup girl there was helping him with something that he was doing with his children. I can't be specific. "Q. Did O.J. ever indicate to you that he would wear those disguises so he wouldn't have to give autographs and he could spend some time with his children?" MR. PETROCELLI: Objection. Hearsay. THE COURT: Overruled. (Reading continued:) "A. Something about getting a tired hand. "Q. Tired hand? "A. A cast or something." MR. P. BAKER: Page 314, line 17. (Reading:) "Q. Okay. In terms of your relationship with Mr. Simpson resuming in May of 1994, that was after Mother's Day, was it not? "A. Yes, I was looking on my calendar. Is that what I pointed out to be the 10th? "Q. The 10th was -- Mother's Day, it appears to be on your calendar the 8th. "A. All right." MR. P. BAKER: Page 315, line 8. (Reading:) "Q. You saw Mr. Simpson for a total during that month-long period, just over a month long, for a total period of about a week and a half; is that right? "A. You mean 12 days. When I said 12 days, I was saying over the period of time that many days, yes. "Q. Right. And that period of time, both you and Mr. Simpson were traveling a fair amount, were you not? "A. Yes. "Q. And when you ultimately decided to break off the relationship, as you say on June 12th, that wasn't the first time in that period of one month that you had decided that the relationship may not go on; isn't that correct? "A. I don't remember. "Q. In May of 1994? "A. Yes. "Q. In May of 1994, you went to Palm Springs with Mr. Simpson, did you not? "A. Yes. "Q. And at that time, had you or he indicated that maybe the relationship would not continue? "A. Yes, actually. "Q. And who was it that indicated the relationship may not continue at that time? "A. Me. "Q. All right. And yet the relationship did continue, did it not? "A. Yes." MR. P. BAKER: Page 317, line 15. (Reading:) "Q. Now, in looking at May of 1994, you circled May 10th? "A. Yes, sir. "Q. Is that the day, to your best recollection, that you and Mr. Simpson resumed your relationship? "A. Speaking, yes. "Q. All right. The next day you went to Las Vegas. Is that true? "A. Yes, sir. "Q. And stayed in Las Vegas until May 14th? "A. Yes, sir. "Q. And at that period of time, do you have a recollection of whether Mr. Simpson was in New York? "A. Yes, playing golf, I think. "Q. Well, was that New York? "A. Yes. "Q. All right. And then you picked him up on the 16th, correct? "A. Yes, sir. "Q. And then the week of the 16th, were you both out of town? "A. The week of the 16th I was in town. "Q. You have a recollection if Mr. Simpson was in town? "A. I don't recall. "Q. All right. And in terms of the weekend of the 20th, do you have a recollection if Mr. Simpson was in town or out of town the weekend of the 20th, 21st? "A. Yes. I saw him somewhere in there from the 19th to the 21st. I can't remember where." MR. P. BAKER: Page 322, line 2. (Reading:) "Q. I want to talk to you a little bit about, again, Mr. Simpson's conduct relative to a cell phone, and you discussed earlier that he had a portable phone. Do you remember that? "A. Yes. "Q. And he had a cradle in the Bronco for the phone, did he not? "A. Yes. "Q. And he had a cradle in the Bentley for the cell phone, did he not? "A. Yes. "Q. And around the house he used the cell phone kind of as some people would use a -- "A. Portable phone. "Q. Yeah, a portable phone that's hooked to a -- or a cordless phone. Right? "A. Yeah. "Q. And it was common for him to have that phone with him and just dial rather than to go to a phone in the house. Isn't that true? "A. Sometimes he'd sit in his driveway and talk on that phone for a long period of time, or in front of my house if we drove in front of the apartment. So I don't know. "Q. And it was common for him to use that and to move that from vehicle to vehicle and keep it on his person, as well, was it not? "A. Yes, sir. "Q. In other words, when he traveled, he took the cell phone with him, did he not? "A. Yes, sir. "Q. And to your knowledge, he had one cell phone, did he not? "A. Yes, sir. "Q. Okay. Now, I want to go to that call that you made on June 12, 1994, and you suggested that you indicated to the message of the cell phone that it wasn't working and it was over, words to that effect? "A. Yes, sir. "Q. And you don't have, even as you sit here today, any knowledge whether he picked that message up, do you? "A. No, sir." MR. P. BAKER: Page 325, line 11. (Reading:) "Q. Now, in terms of your conversation with Mr. Simpson, I want to again go back to the night of the 11th. Mr. Simpson picked you up at your house, did he not? "A. Yes, sir. "Q. And at that time, you went to the party for the then First Lady of Israel. Correct? "A. Yes. "Q. And you had a fine time. There were no problems. Isn't that true? "A. Just fine. "Q. And you had no arguments with Mr. Simpson the night of the 11th at all, did you? "A. No, sir. "Q. And Mr. Simpson's mood was jovial. There was nothing wrong with his mood. Correct? "A. True. "Q. And there was nothing that you discerned in the messages that you received on the day of the 12th that was anything at all unusual. Isn't that true? "A. True. That I remember, I don't remember what was in the messages. "Q. I understand. But there was nothing -- "A. Specifically. "Q. -- that would trigger your memory that he was angry or upset or anything else. "A. No, sir. "Q. Isn't that correct? "A. Correct." MR. P. BAKER: Page 328, line 10. (Reading:) "Q. Well, you and Mr. Simpson had a relationship, even when you were going together, that that was a relationship that you didn't check on where everybody -- each other was every minute of the day. Isn't that true? "A. True. "Q. As a matter of fact, your relationship was one that, for example, on June 11th, you were aware that Mr. Simpson -- that's 1994 -- that Mr. Simpson was going to Chicago. Correct? "A. Yes, sir. "Q. And you were further aware that he was going to come back and you and he had made plans to go to San Francisco on Wednesday, which would have been the 15th. Isn't that right? "A. We discussed going to San Francisco -- his going to San Francisco, yes. "Q. Do you have any recollection of any discussion with Mr. Simpson on the 11th, or even before that, where you were going to be on the week of the June 12th or June 13th, whether it was going to be Vegas, Arizona, or either place? "A. Yes. I testified to that. "Q. Do you have a recollection of telling him on the 11th that Arizona had been canceled and you're absolutely going to Las Vegas? "A. I don't remember. "Q. So you as you sit here today, do you have any knowledge that you informed Mr. Simpson that you were going, on June 12, 1994, to Las Vegas on that day? "A. No. "Q. And that was -- you had kind of a relationship that both of you would go different places and then call or check in with each other, would you not? "A. Pardon me. You're asking me if I had ever told him that I was going to Arizona or Las Vegas? "Yes, I did. "Q. No, I understand that -- "A. Okay. "Q. -- but my question was -- perhaps it was a poor one -- my question was: Had you told him positively you weren't going to Arizona and you were in fact going to Las Vegas and you were going there on June 12th? "A. No." MR. P. BAKER: Page 332, line 6. "Q. And then you had not seen him from the 6th to the 10th until you picked him up at the airport. Correct? "A. Yes. "Q. And you had some telephonic communication between that period of time. True? "A. Yes. "Q. It was during that week that he indicated to you that he wanted to get back because did want to go to the dinner for the First Lady of Israel and he wanted to go to the recital for Sydney, did he not? "A. Yes. "Q. And as I think you suggested, he never indicated to you that you should be present. It was one of those things where that was more or less a family affair, was it not? "A. Yes. "Q. All right. And Mr. Simpson -- you had indicated to Mr. Simpson that you would probably be in Arizona -- "A. Yes. "Q. -- that evening, had you not? "A. Yes. "Q. Now, in terms of your understanding of Mr. Simpson's schedule on the 12th, he was going to play golf in the morning. Correct? "A. Yes. "Q. And that's what you discussed at least on the night of June 11th. Correct? "A. Yes. "Q. That was kind of customary, certainly on Sunday morning, for him to play golf and get up before dawn. Right? "A. Yes. "Q. And then you knew that after golf, he would be at some point in time going to the recital. Correct? "A. Yes. "Q. Now, did you know what time the recital was? "A. No. "Q. And then you were aware that he had a plane to catch sometime thereafter. True? "A. Yes. "Q. Do you know what time the plane was that he was supposed to catch? "A. No. "Q. I am looking at your face, and you're kind of grimacing in pain. "A. My back's hurting." MR. P. BAKER: Go to page 342. MR. PETROCELLI: Which I may have some objections here. Which line? MR. P. BAKER: 342, line 8. MR. PETROCELLI: Your Honor, if you want to read this question, I object to it. It's beyond the scope, and they can read it in their case, if they want. I don't think it's relevant, either. It's 342, line 8. MR. P. BAKER: To -- 342, line 8, to 343, line 22. MR. PETROCELLI: In addition, they're self-serving hearsay in answer to the ensuing questions, plus relevance. THE COURT: Overruled. MR. P. BAKER: 342, line 8. (Reading:) "Q. All right. Now. In the entire time that you had been with Mr. Simpson as a friend or a girlfriend or whatever, had you ever seen Mr. Simpson exhibit any signs of violence? "A. No. "Q. Did you ever believe he was a violent man? "A. No. "Q. Did he ever indicate in the entire time that you and he had a relationship, albeit '93 or '94 that -- was he critical of Nicole in any way, shape or form? "A. We didn't talk about Nicole. "Q. And so he had never said anything to your knowledge that was critical of her. Correct? "A. No. "Q. Had he ever indicated to you that he thought she was -- she was a good mother to his children? "A. Yes. "Q. And on how many occasions had he mentioned to you that he thought she was a good mother to his children? "A. I don't recall, but I have heard him say that sometime. "Q. I want to go to this issue of whether or not he had ever indicated a denial of killing Nicole or Ron Goldman. "You and he at times, after he was in jail, studied the bible together, did you not? "A. Yes. "Q. And you had a conversation with him while you were studying the bible, when he said, 'Why is God doing this to me? I didn't do it. I never killed anyone.' "A. Yes." MR. PETROCELLI: Objection. MR. BAKER: That was not an infrequent subject. MR. PETROCELLI: That's objectionable hearsay. That's absolutely self-serving hearsay. THE COURT: That's self-serving. Sustained. MR. P. BAKER: Page 362, line 1. MR. PETROCELLI: May that be stricken? THE COURT: Stricken. MR. PETROCELLI: Where, Mr. Baker? MR. P. BAKER: 362, line 1. MR. PETROCELLI: Okay. MR. P. BAKER: I'm sorry. That was already read. We're done. MR. PETROCELLI: I think a little redirect at 362, line 1. MR. PETROCELLI: (Reading:) "Q. Now, in response to some questions by Mr. Baker about the messages you -- that Mr. -- that you left Mr. Simpson on the morning of June 12 at 7:00 o'clock a.m. message. "Do you remember that message? "A. Yes, sir. "Q. I think Mr. Baker asked you if you knew if Mr. Simpson had ever picked that message up. "Do you remember that question? "A. Yes, sir. "Q. And you responded that you didn't know. "Do you remember your answer? "A. Yes, sir. "Q. But you testified earlier today, did you not, that by Mr. Simpson's three messages to you, you could tell he had picked up your earlier message. Correct? "A. I believe I said I assumed. "Q. You assumed it because Mr. Simpson said in words or in substance, 'What happened now? Last night we were talking about a house full of kids.' Is that correct? "A. Yes, sir. "Q. So it's your belief that he had picked up your earlier message of 7 o'clock. Correct? "A. I assume. "Q. That's your belief? "A. Yes, sir." MR. PETROCELLI: Thank you. No further redirect. MR. P. BAKER: Nothing further. THE COURT: Ten minutes, ladies and gentlemen. Don't discuss the case; don't form or express any opinions. (Recess.) (The following proceedings were held in open court, outside the presence of the jury.) MR. BLASIER: With respect to the deposition tomorrow of Dr. Weir, I would ask that the plaintiffs, since we obviously haven't had a chance to generate any -- I'd ask the Court to order the plaintiff to produce the publication that Mr. Lambert referred to from which these new numbers come from, as well as the computer program that he referred to as being used to generate these numbers, the underlying data that went into the numbers, and the new calculations in a form that my experts can look at. MR. PETROCELLI: Mr. Lambert went back to check with the witness on producing this computer program. I do not know whether the witness has access to this publication, nor do I know anything else about this witness. MR. BAKER: Could you be more vague? (Laughter.) MR. PETROCELLI: Your Honor -- in other words, Your Honor, we're checking on it right now. Maybe we could defer this until Mr. Lambert comes back at the break. I'll give him a call. We'll try to -- whatever he has, we'll produce. MR. BLASIER: But the problem is -- MR. PETROCELLI: I may not have the publication. MR. BLASIER: If we had known about this in advance, we could good given him notice to produce it what we ordinarily do. If he can't produce it tomorrow, we're going to object to him testifying at all. MR. PETROCELLI: Whatever he has, we'll produce. We're not going to stand on any notice requirement. MR. BLASIER: We are. THE COURT: Well -- MR. PETROCELLI: Can't produce what he doesn't have, Mr. Blasier, is all I'm saying. THE COURT: Mr. Petrocelli, you obviously had it at one time. MR. PETROCELLI: Whatever he has, Your Honor, we'll get it. THE COURT: And I presume he must still have access to it. So I will order him to produce it for the deposition. If he doesn't have it at the deposition, the Court will have to take remedial steps to correct that problem. And if it's still your desire to use his testimony, it may be that you're not going to be able to use it when you want to use it. MR. PETROCELLI: I'm a little disadvantaged in responding to the Court's questions, but I understand the Court's order. THE COURT: The question is -- it's not a statement. It's -- I'm telling you, if it's not produced and the deposition will have to be deferred, if that's -- if it's your desire to persist in -- your desire to produce that witness, you may have to produce it at some subsequent time. MR. PETROCELLI: Okay, Your Honor. THE COURT: But I'm not going to deny the defense the opportunity to utilize all of the documentation or materials that the expert used in arriving at his figures in conjunction with their deposition. MR. PETROCELLI: Okay. MR. BLASIER: Thank you, Your honor. THE COURT: Are you ready otherwise? MS. MOLINARO: Yes. MR. PETROCELLI: We call Leslie Gardner. THE COURT: We don't have a jury. MR. PETROCELLI: Okay. It's getting late, Your Honor. (Jurors resume their respective seats.) MS. MOLINARO: Thank you, Your Honor. We call Leslie Gardner. LESLIE GARDNER, called as a witness on behalf of Plaintiffs, was duly sworn and testified as follows: THE CLERK: You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth and nothing but the truth, so help you God~? THE WITNESS: I do. THE CLERK: And would you please state and spell your name for the record. THE WITNESS: Leslie Gardner, L-E-S-L-I-E G-A-R-D-N-E-R. DIRECT EXAMINATION BY MS. MOLINARO: Q. Good afternoon, Ms. Gardner. What is your occupation? A. Wardrobe stylist. Q. And as a wardrobe stylist, is that for television, videos or what? A. Television, music videos, fashion, print. Q. How long have you been a wardrobe stylist? A. Approximately eight years. Q. And during that time, how many sets have you been a wardrobe stylist on? A. Numerous sets. Couldn't even count. Q. Would it be more than 100? A. Definitely more than 100. Q. In May of 1994, did you do any work on a video called "Minimum Maintenance Fitness for Men" featuring Orenthal James Simpson? A. Yes, I did. Q. What exactly did you do on that video? A. I was the wardrobe stylist for the video. Q. Was that an exercise video? A. Yes. Q. Did you have any assistants? A. No, I did not. Q. Were you the only wardrobe stylist on the video? A. Yes. Q. What were your duties as the wardrobe stylist? A. To acquire all clothing used in the video; either rent, buy, borrow; keep track of all the clothing during the shoot; decide what everybody wears; and keep track of all the clothing at the end of the shoot. Q. As the wardrobe stylist, did you acquire clothing for Mr. Simpson to wear on the video? A. Yes, I did. Q. Did any other member of the production crew other than you handle any wardrobe or clothing issues for that video? A. No. Q. What dates was the video filmed, do you recall? A. We filmed May 25, 26 and 27. Q. Is that 1994? A. 1994. Q. Where was that video filmed? A. The first two days were filmed at a sound stage in Hollywood and the third day was filmed at O.J.'s house. Q. Were you present on all three days? A. Yes, I was. Q. During the filming, did you see a photographer on the set taking still photographs of the actors and actresses? A. Yes, I did. Q. And you said that you did acquire clothing for Mr. Simpson to wear in that video? A. Yes. Q. What type of clothing did you acquire for Mr. Simpson? A. Everything from sweat clothes, shoes, sport clothes, dress clothes. Q. You said sweat clothing. Is that workout and exercise clothing? A. Workout, exercise clothing and socks. Q. Focusing on that exercise clothing, can you tell me what items did you acquire for Mr. Simpson? A. I acquired everything from T-shirts, tank tops and shorts to sweat jackets, sweat pants, things like that. Q. Focus on the sweat suit. Did you acquire a sweat suit for Mr. Simpson? A. Yes, I did. Q. What color? A. Black, mostly black, and gray. Q. Where did you get the black sweat suit for Mr. Simpson? A. I bought them at the Reebok store in Santa Monica and Bullock's Men's Store. Q. Anywhere else? A. I had some sent in from New York. Q. From what company in New York? A. Donna Karan Men's Clothes. That's DKNY. Q. Did you have a conversation with Mr. Simpson about acquiring a black sweat suit? A. Yes, I did. Q. What did he say to you? A. He mentioned that he wanted a certain cashmere sweat suit from DKNY Men's, and that he dealt with them in the past; he had one previously, and he wanted another one because the old one had gotten pilled up. Q. What does "pilled up" mean? A. When a knit fabric gets a little bit damaged on the surface, they call it pilled. Q. What does that actually look like? A. Just little -- little balls of fibers just get kind of caught together. Q. What causes that? A. Just general wear and tear. Q. After Mr. Simpson asked you to get him a black DKNY sweat suit, did you acquire one for him? A. Yes, I did. MS. MOLINARO: Steve -- (Exhibit 2219 is displayed on the Elmo screen.) Q. (BY MS. MOLINARO) You can just turn and look at the TV monitor there. I'm putting what's been marked as Exhibit 2219. Do you recognize what's depicted in that photograph? A. Yes, I do. Q. What is it? A. The clothing or the people? Q. The people. A. The people. That would be O.J. and Richard, the trainer. Q. Richard was one of the other actors in the video? A. Right. Q. He was the -- A. Personal trainer or actor. Q. Okay. All right. Do you remember on which of the three days, May 25, 26 and 27, which of those three days was that photograph taken? A. That would have been the 27th. Q. Do you know where that picture was taken? A. On the road right outside of O.J.'s house. Q. Were you there that day -- A. Yes, I was. Q. -- when that photograph was taken? I want you to look at the black sweat pants that Mr. Simpson is wearing in Exhibit 2219. Are those the black sweat pants that you acquired for him? A. Yes. Q. And why don't you now take a look at the black sweat top that Mr. Simpson is wearing in Exhibit 2219. Is that a black, zip-front sweat jacket that you acquired for him? A. Yes, it is. MS. MOLINARO: Going to switch the photograph on the monitor to Exhibit 2220. (Exhibit 2220 is displayed on TV monitor.) Q. (BY MS. MOLINARO) Do you recognize what's depicted there? A. Yes, I do. Q. Who are those people. Again? A. O.J. and Richard Walsh. Q. Was that also taken on the third day of the video? A. Yes, it was. Q. Outside of Mr. Simpson's house? A. Yes. Q. Okay. Looking at the black sweat pants that Mr. Simpson's wearing in Exhibit 2220, are those the black sweat pants that you acquired for him? A. Yes, they are. MS. MOLINARO: And the next one, Steve, this will be marked next, 2226, put that on the monitor. Q. (BY MS. MOLINARO) Tell me, do you recognize the person in that photograph? A. Yes, I do. (The instrument herein described as a Photograph of O.J. Simpson wearing a black sweat jacket, with a blue-colored shirt, was marked for identification as Plaintiffs' Exhibit No. 2226.) Q. Is that Mr. Simpson? A. Yes. Q. I want you to focus on the black sweat jacket that he's wearing there. Is that a sweat jacket that you acquired for him? A. Yes, it is. (Exhibit 2219 displayed on Elmo screen.) Q. After the exercise video was completed, when you were done filming, did Mr. Simpson return to you that black sweat suit he was wearing, either the top or the bottom or both? A. He never returned anything to me. Q. Did Mr. Simpson ever tell you that he wanted -- he didn't want to keep that black sweat suit? MR. LEONARD: Objection, leading, Your Honor. THE COURT: Overruled. MR. LEONARD: And irrelevant. THE COURT: Overruled. A. Can you repeat the question. Q. (BY MS. MOLINARO) Sure. Did Mr. Simpson ever tell you that he did not want to keep that black sweat suit? A. He never told me that. Q. Did any member of the production crew working on the video ever return that black sweat suit to you after the filming? A. Nobody did. Q. Did any member of the production crew ask your permission to take that black sweat suit at the completion of the video? A. Nobody did. Q. To your knowledge, did Mr. Simpson give that black sweat suit to any member of the production crew? MR. LEONARD: Objection, lack of knowledge, calls for speculation. THE COURT: To her knowledge. Overruled. A. To my knowledge, to nobody. Q. (BY MS. MOLINARO) Do you remember the other two articles of clothing I showed you on the other two photographs? A. Yes. Q. Did Mr. Simpson ever return those to you? A. No, he did not. Q. Did any member of the production crew ever return those to you? A. No, nobody did. Q. After the filming of the exercise video was completed, did you see any member of the production crew walking off the set with any of the black sweat clothing that Mr. Simpson is shown wearing in this or the other two photographs? A. No. MR. LEONARD: Objection, leading, Your Honor. THE COURT: Overruled. A. I saw no one walk up with any clothes -- no one walked off with any clothes. Q. After the filming was completed, did you ask Mr. Simpson to return any of the sweat clothing to you? A. No, I didn't ask him to return anything. Q. Why not? MR. LEONARD: Objection, irrelevant. THE COURT: Overruled. A. In my profession, whatever we use on a set, if we use it, we buy it, and if we buy it, it's given to the talent. It's given as a gift. Q. When you say "given as a gift," do you mean that they can keep it? A. Yes. MR. LEONARD: Objection, leading. THE COURT: Overruled. Q. Based on your eight years as a wardrobe stylist, is it your experience that's the general custom and practice in your industry, if clothing is acquired, the talent keeps it? A. Yes, it is. Q. Now, you testified earlier that that photograph and the other two were taken on the third and final day, May 27, correct? A. Correct. Q. That was the last day of filming? A. Yes. Q. So when you packed up your things and left Mr. Simpson's house on that third and final day, did you take with you any of the articles of black sweat clothing that you had acquired for Mr. Simpson? A. No, I did not. Q. Did you leave that black sweat clothing at Mr. Simpson's house? A. I left it there. MS. MOLINARO: Nothing further at this time, Your Honor. THE COURT: Cross-examine. CROSS-EXAMINATION BY MR. LEONARD: Q. Good afternoon, Mrs. Gardner. You spent some time with Ms. Molinaro discussing your testimony? A. Yes. Q. Okay. Now, you've had discussions with other members of the plaintiffs' team, have you not, about your testimony, is that -- isn't that true? A. Mainly Ms. Molinaro. Q. Excuse me? A. Mainly Ms. Molinaro. Q. But you've discussed it with other lawyers representing the Brown estate, isn't that right, or representing the Browns? A. Briefly. Q. Okay. You discussed it with Natasha Roit, right? A. With Natasha Roit. Yeah. Q. Representing the Browns? A. Yeah. Q. You know who Natasha Roit is? A. Right. Q. She's your lawyer? A. Um-hum. Q. She's your personal lawyer, right? A. Correct. MS. MOLINARO: Objection, irrelevant. THE COURT: Overruled. Q. (BY MR. LEONARD) She represents the Browns, doesn't she? A. I had no idea. Q. Didn't have any idea about that? A. I had no idea about that. Q. Didn't know that she had been a counsel in this case and that she's representing the Browns in the custody hearing for -- MS. MOLINARO: Objection, irrelevant. Q. (BY MR. LEONARD) You didn't know that? THE COURT: Overruled. Q. (BY MR. LEONARD) You didn't know that? A. I had no idea. Q. She's the first person you ever talked to about this, isn't that right, your observations? A. I don't recall discussing this with her at all. Q. Didn't discuss it with her at all, is that your testimony? A. Not this case. Q. No, what -- your observations about Mr. Simpson, what you said he was wearing and whether or not he took it away. You talked to her about that, right? A. If I spoke to her, it may have been in a conversational way, not knowing she's connected with the case at all. Q. Okay. Now, you say that the talent normally keeps the clothing, is that what you're saying? A. Correct. Q. Okay. You have no idea whether Mr. Simpson kept the clothing -- this clothing for his personal use, right? A. Correct. Q. You don't know that. You don't know whether he gave it to any number of the, what, 20 or more people that were there on the crew, you have no idea? A. I would say -- I wouldn't say I have no idea. I would say nobody came to me with clothing, I didn't see anybody walk off with clothing, I left it as his house. Q. There were how many people there, 20? A. 15, 20 member crew. Q. You didn't see everybody when they left, did you? A. I didn't see everybody when they left. Q. You weren't paying attention to what they were carrying or where they went when they left, did you? A. That's correct. MR. LEONARD: Now, can we get the photographs up again. That one, yeah. MR. P. BAKER: 2219. (Exhibit 2219 is displayed on the Elmo screen.) Q. (BY MR. LEONARD) There's the sweat top you're talking about, right? A. Right. Q. By the way, that doesn't have any kind of white piping or any kind of white striping along the zipper, does it? A. No, it doesn't. Q. None of the clothing -- the sweat clothing Mr. Simpson wore had anything like that, did it? A. No, it didn't. MR. LEONARD: I don't have anything else. Thank you. MS. MOLINARO: Just briefly. REDIRECT EXAMINATION BY MS. MOLINARO: Q. Ms. Gardner, before you came here to take the stand this afternoon, did you have an opportunity to speak with the lawyers representing Mr. Simpson? A. Yes, I did. Q. You spoke with Mr. Leonard? A. Yes, I did. Q. And that was in private, I wasn't there; is that correct? A. Correct. Q. You answered all his questions? A. Correct. MS. MOLINARO: All right. That's all. Nothing further. Thank you. MR. LEONARD: No, I don't have any questions. Thanks a lot. I appreciate it. THE COURT: You're excused. MS. MOLINARO: Your Honor, I'd like to move into evidence Exhibit 2226. MR. LEONARD: Certainly have no objection to that, Your Honor. THE COURT: Received. (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2226.) MR. PETROCELLI: Josephine Guarin. MR. BAKER: Gigi. MR. PETROCELLI: Her formal name is Josephine Guarin. I believe she goes by the name Gigi. Your Honor, this is an employee of the defendant so I assume I can treat her as under 776. THE COURT: All right. MR. PETROCELLI: Thank you. JOSEPHINE GUARIN, called as a witness on behalf of Plaintiffs, pursuant Evidence code section 776, was duly sworn and examined as follows: THE CLERK: You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth and nothing but the truth, so help you God? THE WITNESS: I do. THE CLERK: Was that a yes? THE WITNESS: Yes. THE CLERK: And would you please state and spell your name for the record. THE WITNESS: Josephine Guarin. J-O-S-E-P-H-I-N-E, the last name is Guarin, G-U-A-R-I-N. DIRECT EXAMINATION BY MR. PETROCELLI: Q. Good afternoon, Ms. Guarin. A. Good afternoon. Q. You were hired by Mr. Simpson in about April of 1994? A. I believe so. I think so. Q. And you were hired to do what for him? A. I'm in -- I'm his housekeeper. Q. You have been his housekeeper ever since April of 1994 all the way to the present, right? A. Yes, yes. Q. Okay. And when you were hired by Mr. Simpson, you -- he had a brief interview with you, right? A. Yes. Q. And in that interview, Mr. Simpson told you that Nicole might be moving back into the house, right? A. He might say that, but -- he might, yeah. Q. Correct? A. Yes. Q. Okay. Now, let's focus on the time period, Ms. Guarin, April, May and June of 1994, okay? A. Okay. Q. And you understand that is before the death of Nicole on June 12? A. Okay. Q. Okay. You saw, at one point in time, a fake goatee or disguise kit? A. I saw that, yes. Q. And you saw that in Mr. Simpson's house, right? A. Yes. Q. And you saw that fake goatee and disguise kit on Mr. Simpson's desk in his office in his home, right? A. Yes. Q. Okay. MR. P. BAKER: Your Honor, I don't think there's a need to read from the depo. MR. PETROCELLI: I'm not reading from the depo. Q. (BY MR. PETROCELLI) And you saw it up until the last day that you left the house on Friday, June 10, right? A. I didn't check it there, but I know it's in the office. I cannot say until the last day that I saw it, but I saw it in the office. Q. Let's focus on that weekend, June 11 and June 12, correct? A. I'm not there. Q. You did not work that weekend, right? A. Yes. Q. In fact you were off that weekend, right? A. Yes. Q. And it was Sunday, June 12, you called Mr. Simpson from Knott's Berry Farm, was it? A. Yes. Q. And asked if you could take the rest of the night off, right? A. Yes. MR. P. BAKER: Objection, vague as to time. A. Yes. Q. About 8 p.m. on the evening of June 12? A. Yes. Q. It was Filipino night at Knott's Berry Farm? A. The Filipino Independence Day. Q. You wanted the rest of the night off because you were spending it there with your family? A. Yes. Q. And you asked him and he said okay, right? A. Yes. Q. And the last time you had been at the house was Friday, at the end of the day, right? A. Yes. Q. And as of that point in time on Friday at the end of the day, the last place you had seen that fake goatee or disguise kit was still on the desk in Mr. Simpson's house, right? MR. P. BAKER: Asked and answered. THE COURT: Overruled. A. No, I did not. I did not -- I cannot tell you when was the last time that I saw that fake goatee, but I didn't go to his room before, you know, to the office. Q. (BY MR. PETROCELLI) But to your knowledge, it had never left the desk where you last saw it, right? MR. P. BAKER: Calls for speculation. A. I cannot answer it. I don't know. THE COURT: Overruled. Q. (BY MR. PETROCELLI) Let me read from your deposition at page 231, line 23. Remember when I took your deposition? A. Yes. Q. And you were in my office and you were under oath to tell the truth? A. Yes. Q. You remember that? Let me read what you said. (Reading.) "Q. But to your knowledge it had -- It had not left? "A. It's in there every time I go to the office. "Q. It was in there every time you went in there, right? "A. Yes. "Q. Was it in a packet or how was it packaged? "A. I think it's in the plastic -- it's in the top of his desk. "Q. Sitting on the top of the desk? "A. Yeah, on the top of his desk, yeah." Q. (BY MR. PETROCELLI) Do you remember that? A. Yes. Q. And that's -- those were your observations, right? A. Yes. Q. Okay. Let me move to a different subject. Now, at the time in June of 1994, Mr. Simpson had a dog on the property named Chachi right? A. Yes. Q. And Chachi's kind of an older black dog, right? A. Yes. Q. Did Mr. Simpson ever give you any specific directions with respect to making sure that Chachi did not get outside of the property? A. No. Q. Okay. And isn't it true that Chachi never ran out of the property? A. That's what I know, she never ran out of the property. She never -- Q. Excuse me? A. She never ran out of the property. Q. Okay. A. Get out. Q. And it was never a concern of yours that Chachi would run out of the property, correct? A. No. Q. Correct? A. Correct. Q. Okay. And as far as you knew it was not a concern of Mr. Simpson's, correct? MR. P. BAKER: Objection, speculation. A. I don't know. THE COURT: Sustained. MR. P. BAKER: Move to strike. Q. (BY MR. PETROCELLI) And your -- THE COURT: Stricken. Q. (BY MR. PETROCELLI) And your -- your testimony that Chachi never ran outside of the property was based upon your observations of the dog, correct? A. Correct. Q. Okay. And the dog was trained, correct? A. Correct. Q. And, in fact, during the entire time that you had with Mr. Simpson through June 12 of 1994 there had never been an occasion when you were aware that Chachi had run out of the property, correct? A. Correct. MR. PETROCELLI: I have nothing further, Your Honor. THE COURT: Cross. CROSS-EXAMINATION BY MR. P. BAKER: Q. Good afternoon, Ms. Guarin. A. Good afternoon. Q. How are you? A. I'm fine. Q. You worked for Mr. Simpson for about how long prior to the murders? A. Since April of 1994 up to the present. Q. So about two months? A. Prior to the murder, maybe, yeah, two months. Q. Mr. Simpson was pretty neat? A. Yes. Q. He wouldn't leave socks in the middle of the floor? MR. PETROCELLI: This is outside of the scope. THE COURT: Sustained. But I'll permit it in the interest of time. Q. (BY MR. P. BAKER) He wouldn't leave socks in the middle of the floor? A. No. MR. PETROCELLI: Objection, leading. THE COURT: Sustained as leading. MR. PETROCELLI: Move to strike the answer. THE COURT: Stricken. Q. (BY MR. P. BAKER) In the six weeks that you worked with Mr. Simpson, you were there a couple times when Mr. Simpson had to catch a flight, correct? A. Yes. Q. And Mr. Simpson would -- would he rush around before he would have to catch a flight. MR. PETROCELLI: All leading? A. Always. THE COURT: Sustained. MR. PETROCELLI: Move to strike the answer. THE COURT: Stricken. Q. (BY MR. P. BAKER) How would you describe Mr. Simpson's demeanor when he had to catch a flight? A. He always late. He's always rushing. He will do everything in last minute. Q. Sometimes you'd help him pack? A. Yes. Q. Okay. Did you ever -- Strike that. What room would you normally sleep in when you stayed over in Mr. Simpson's house? A. In the laundry room -- there's a room next to the laundry room. Q. When his mother was in town that's where she usually stays? A. Yes. Q. And that room has -- the laundry room has a side door to it, doesn't it? A. Yes. Q. And does that door open up into a walkway? A. Yes. Q. And did you have a key to that door? A. Yes. Q. And were there any other keys? A. What other -- there's only master key can open that. Q. As far as you know O.J. Simpson had a master key, correct? A. Yes. MR. PETROCELLI: Objection, calls for speculation. THE COURT: Sustained. Stricken. Q. (BY MR. P. BAKER) You talked to Mr. Simpson on the night of June 12, correct? A. Yes. Q. And what did you do that day? A. I went to Knott's Berry Farm. Q. And what time did you arrive at Knott's Berry Farm? A. Around maybe 9 or 10 in the morning. Q. Okay. And who did you go there with? A. With my family. Q. And it was for Filipino Independence Day? A. Yes. Q. And did Mr. Simpson know you were going to call him that night? A. No. MR. PETROCELLI: Objection, calls for speculation. THE COURT: Sustained. Q. (BY MR. P. BAKER) Did you ever tell Mr. Simpson you would be calling him that night? A. No. Q. As far as you knew Mr. Simpson had no idea you'd be calling him that might? MR. PETROCELLI: Objection, calls for speculation. THE COURT: Sustained. Q. (BY MR. P. BAKER) You called Mr. Simpson at about 8 o'clock? A. Yes. Q. And what did you ask him? A. I asked him permission if I can stay at Knott's Berry Farm because I need to get to -- go back to the house that night. Q. Okay. Mr. Simpson granted you permission? A. Yes. Q. And you never told him at any point that day, that you'd be calling him at 8 o'clock on the night of June 12? MR. PETROCELLI: Objection. It's leading. THE COURT: It's leading, but I'll permit it. A. No, I never told him that I would call that night. Q. (BY MR. P. BAKER) And O.J. Simpson sounded normal on that phone, did he not? A. Yes. Q. Now, Mr. Petrocelli referred to the deposition you had. Do you remember that? A. Yes. Q. Was Mr. Petrocelli's demeanor the same today as it was during that deposition? MR. PETROCELLI: Objection, Your Honor, it's irrelevant. THE COURT: Sustained. MR. P. BAKER: Mr. Petrocelli -- MR. PETROCELLI: Objection. I'm going to ask another question in the same line. I think it's out of order. I'd ask the Court to admonish him. THE COURT: Don't repeat that question. (Laughter.) Q. (BY MR. P. BAKER) How would you describe -- MR. PETROCELLI: Objection. Same thing, Your Honor. He just received an order from the Court. MR. BAKER: He didn't receive an order from the Court. MR. PETROCELLI: He absolutely did. THE COURT: Mr. Petrocelli's demeanor in that deposition is not relevant. MR. P. BAKER: I have nothing further. MR. BAKER: Wait. MR. P. BAKER: Oh, well, I do. Q. (BY MR. P. BAKER) What time were you due back on the night of June 12th? A. Supposed to be -- I supposed to be there before he arrived -- catch his flight to Chicago. Q. Around 10 o'clock? A. Might be, yeah, around 10. MR. P. BAKER: I've got nothing further. REDIRECT EXAMINATION BY MR. PETROCELLI: Q. By the way, Ms. Guarin, did you have a chance to talk to any of the lawyers before your testimony today? A. I talked briefly to Mr. Baker last night. MR. PETROCELLI: No further questions. MR. P. BAKER: No further questions. Thank you. THE BAILIFF: Who's buzzing, Your Honor? (Referring to cellular phone.) MR. PETROCELLI: Not me. MR. GELBLUM: The audience. THE COURT: You may step down. MR. PETROCELLI: Call Dale St. John. DALE ST. JOHN, called as a witness on behalf of The Plaintiff, was duly sworn and testified as follows: THE CLERK: You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth, and nothing but the truth, so help you God? THE WITNESS: I do. THE CLERK: Sir, would you please state and spell your name for the record. THE WITNESS: Dale St. John, D-A-L-E S-T. J-O-H-N. DIRECT EXAMINATION BY MR. PETROCELLI: Q. Good afternoon, Mr. St. John. A. Good afternoon. Q. I know it's going to be the first question out of Mr. Leonard's mouth. Let me ask you, did you meet with me at the Doubletree suite? A. No, sir. (Laughter.) Q. We had lunch there? A. Yeah. Q. Okay. We -- You met with Mr. Leonard outside in the hall, didn't you? A. Yes, sir. Q. You answered his questions? A. Yes, sir. Q. Okay. MR. PETROCELLI: Does that do it, Mr. Leonard? MR. LEONARD: Great. (Laughter.) Q. (BY MR. PETROCELLI) Let's move on. What is your occupation? A. Limousine driver. Q. Are were you a limousine driver in June of 1994? A. Yes, I was. Q. How long had you been a limousine driver? A. About 18 years. Q. Were you a limousine driver in June of 1994 for O.J. Simpson? A. Yes, sir. Q. And how long had you been driving for O.J. Simpson? A. Three, three and a half years. Q. How many times had you been to Mr. Simpson's house to pick him up, if you can approximate, as of June 12, 1994? A. Hundred times. Q. Was there ever -- ever a single occasion when you came to pick Mr. Simpson up, that he was not home? MR. LEONARD: Objection, leading. THE COURT: Overruled. A. No. Q. (BY MR. PETROCELLI) When you came to pick Mr. Simpson up, could you describe where you normally would go onto the property to pick him up. MR. PETROCELLI: I'm going to put on the board here. Exhibit 116. (Exhibit 116 displayed.) A. I would pull my limousine on the Ashford gate side and back my car up to the gate and buzz the house. Q. (BY MR. PETROCELLI) And how would you buzz the house? A. There's a call box to the left of the gate with a little telephone receiver in it, as I recall, and a button that you would push. Q. Okay. And if I point to where it says intercom on Exhibit 116, is that the call box? A. Yes. Q. Okay. Was there ever. In the more than 100 times you went to pick up Mr. Simpson. A single time when you buzzed at the intercom at the Ashford gate and someone did not answer your first-time buzzing? MR. LEONARD: Objection, irrelevant, leading. THE COURT: Overruled. A. No. Q. (BY MR. PETROCELLI) For example, was there ever an occasion where you buzzed, no one answered, you went back in the car, sat around, came out and buzzed again? A. No. MR. LEONARD: Same objections, Your Honor, leading. THE COURT: Overruled. Q. (BY MR. PETROCELLI) When you buzzed the intercom, who would answer? A. Usually it was Michele. Q. Who is Michele? A. Michele was the housemaid. Q. And in June of 1994, do you know whether Michele was still the housekeeper? A. As far as I know. She was not. Q. Who was the housekeeper in June of 1994? A. Gigi. Q. And were there occasions when the housekeeper did not answer? A. Yes. Q. And who would answer when the housekeeper did not answer? MR. LEONARD: Objection, relevance, Your Honor. THE COURT: Overruled. A. O.J. Q. (BY MR. PETROCELLI) When Mr. Simpson answered the intercom when you buzzed it, what would you then do? MR. LEONARD: Objection, relevance, Your Honor, what would he then do. THE COURT: Overruled. A. I would tell him that I was at the gate and say, this is Dale, I'm here. Q. (BY MR. PETROCELLI) And what then happened? A. The gate would -- MR. LEONARD: Same objection. THE COURT: Overruled. Q. (BY MR. PETROCELLI) Excuse me? A. The gate would open; he would buzz and the gate would open. Q. And you would pull in? A. Yes. Q. Okay. Now, let me show you a photograph. MR. PETROCELLI: Put it up there, 1984. (Exhibit 1984 displayed.) Q. (BY MR. PETROCELLI) Okay. Do you recognize that gate there that's opened in that photograph? MR. PETROCELLI: Can you make it a little better focused than that. Q. (BY MR. PETROCELLI) Do you recognize the gate? A. That looks like the Ashford gate. Q. Okay. Do you recognize the animal? A. Yes. Q. Who is it? A. It's Chachi. Q. Okay. In all the times that you picked up -- went to Mr. Simpson's house and went into the gates, did you ever once see Chachi walk or run outside? MR. LEONARD: Leading, Your Honor. THE COURT: Overruled. A. No. Q. Did you ever receive any instructions from Mr. Simpson about watching out for Chachi? A. No. Q. Did you ever receive any instructions from anyone about watching out for Chachi? MR. LEONARD: Same objection, leading, Your Honor. THE COURT: Overruled. A. No. Q. Excuse me. Did you ever see, by the way, that dog run anywhere? A. No. Q. The times you picked up Mr. Simpson when the -- when you would buzz the intercom, you indicated the gates were -- would then be opened for you at Ashford, right? A. There's correct. Q. Would the gates be opened after a considerable delay or promptly? A. Pretty prompt. MR. LEONARD: Objection, relevance, Your Honor. THE COURT: Overruled. Q. (BY MR. PETROCELLI) Excuse me? A. Pretty prompt. Q. And during the 1994 time frame did you have occasion to pick up Mr. Simpson? A. Sure. Q. Did you have occasion to see what kind of vehicles he had? A. Yes. Q. Okay. Do you know if he had a white Bronco? A. Yes. Q. Did you ever notice where the Bronco was parked? MR. LEONARD: Objection, relevance, did you ever notice where the Bronco was parked. THE COURT: Overruled. A. Yes. Q. (BY MR. PETROCELLI) Okay. Where did you see the Bronco parked? A. On Ashford. Q. On Ashford in front of the property? A. Yes. Q. At any time, did you ever see Mr. Simpson's Bronco parked on Rockingham? A. No. Q. Were there ever any occasions, by the way, when you arrived at Mr. Simpson's property and the Ashford gates were open? A. There was a couple of occasions. Q. What did you do on those occasions? A. When the gates were opened I would just -- I would just back the limo into the -- into the driveway and wait. Q. Did you ever receive any instructions from Mr. Simpson on letting yourself in the Ashford gate if the gate was closed? A. No, sir. Q. Did you ever receive any instructions from anyone as to letting yourself in that gate when the gate was closed? A. No. Q. Do you know how to let yourself in through the Ashford gate when the gate was closed? A. No. Q. Did you ever let yourself in the Ashford gate when the gate was closed? A. No. Q. When you would pick up Mr. Simpson. Where would you pick him up at, the front door? A. Yes. Q. Did you ever see Mr. Simpson go retrieve items of luggage on the driveway? A. No. Q. When you would get Mr. Simpson in the car and leave to go to the -- wherever you were going, did Mr. Simpson give you any instructions about waiting at the gates to see if Chachi, the dog, would not run out? A. No. Q. Did you have any kind of practice or custom or habit of specifically looking out for Chachi, the dog, so he wouldn't run out when you were -- you would exit the property? A. No. MR. PETROCELLI: I have nothing further. THE COURT: Cross. CROSS-EXAMINATION BY MR. LEONARD: Q. Good afternoon. A. Good afternoon. Q. Let's talk a little bit about Mr. Simpson's habit when you would pick him up, what he would normally do and how he would normally act. It's true, isn't it, that often when you would pick Mr. Simpson up, things were a little chaotic, he'd be hurrying around, picking up things? A. That's true. Q. Right. It wasn't uncommon for him to come in and out of the house, grab an item, come out, grab something else, put it in the car, so forth and so on; he was rushing, right? A. He was rushing. He usually didn't put stuff in the bags. Q. Excuse me? A. He didn't -- he didn't usually fill -- usually Michele would put something in the bag. I don't recall O.J. putting -- coming out with like a couple of shirts and putting them in a bag. Rarely. Q. Now, you said you've picked him up something like 100 times -- A. That's correct. Q. -- is that right? Is it fair to say that the vast majority of the times that you picked him up, Michele was there or Gigi, one of the housekeepers? A. Yes. Q. What you're saying is that, typically, if the housekeeper's there. They might be taking care of putting any last-minute items in Mr. Simpson's bag, as opposed to Mr. Simpson, correct? A. That's correct. Q. Okay. But he was the kind of guy -- as a limousine driver he might make you a little bit nervous about getting someplace on time; is that fair to say? In other words, he wouldn't always give you enough -- as much time as you'd like to get to where you're supposed to go; is that fair to say? Cut it close? A. Yeah. Q. Okay. In fact, about a week before June 12 you had picked him up -- you picked him up and you were taking him on a trip out to LAX, had about 45 minutes to make the flight. Do you remember that? A. Yes. Q. That was kind of rushed, wasn't it? A. Not really. Q. Do you remember on that occasion that you -- and occasions prior to that, having the feeling about Mr. Simpson as a passenger. That you were really cutting it close? A. He -- I think he felt that way, that he was cutting it real close, because when he'd get in the car he'd say, we gotta go, we got a go. Q. Okay. A. But in actuality we would make the airport with usually plenty of time. Q. The bottom line is there was a lot of rushing around? A. Yeah, there was. Q. Okay. Let me see if I can understand some of the things you were saying. You would -- you would buzz, and I guess in the vast majority of times when you buzz, Michele or even one of Mr. Simpson's adult children, Arnelle or Jason, might come out and open the gate, right, vast majority? A. Come out and open the gate? Q. Or buzz the gate open, right? A. Yes. Nobody -- Q. In other words, you would -- go ahead. A. I don't recall someone actually coming out and opening the gate, except for a time when Michele came out, when I think the gate was not working properly. Q. Okay. But the vast majority of the hundred times that you went out to pick up Mr. Simpson and you buzzed you would be talking to Michele, right? A. Yes. Q. Or one of the other housekeepers, right? A. Yeah. Q. Gigi after her? A. Yeah. Q. And when -- on occasion, when you would buzz and Mr. Simpson responded, he wouldn't always respond -- you're not saying before this jury that he would respond on the first buzz on every occasion, are you? A. He didn't respond necessarily on the first buzz, but he responded on the first attempt to buzz him. In other words, I would ring it once and I'd wait maybe 10 seconds. Then I would buzz it again, maybe wait 10 more seconds, and buzz it a third time, and by that third time I always had a response from somebody. Q. Now -- okay. From somebody. That might be Michele or someone else that's in the house, right? A. Right. Q. Okay. By the way, you obviously didn't pick Mr. Simpson up on the 12th, that was a fellow that was working for you; is that right? A. That's correct. Q. You have no idea what Mr. Simpson was doing when he was buzzed that night, you don't know whether he was in the shower or what -- A. No. Q. -- correct? All right. Now, let's talk about the dog. You have no idea -- and I guess Mr. Simpson never discussed this with you -- you have no idea of any complaints that Mr. Simpson got from his neighbors to the ASPCA with regard to his dogs wandering the neighborhood? MR. PETROCELLI: Arguing. No foundation. A. No. THE COURT: This -- Q. (BY MR. LEONARD) And there was -- there was -- are you aware that there was another dog that would be at the Rockford (sic) location from time to time, are you aware of that? A. No. MR. PETROCELLI: Rockingham. Q. Excuse me. Rockingham. A. Yes. Q. Now, you say that you never had any discussion with Mr. Simpson about the dogs. Were you ever there when the other dog was at the location? A. Yes. Q. Of the hundred times you were there, how often were you there that the dog was there? I guess that didn't make -- MR. PETROCELLI: I'm going to object. The undisputed evidence is there was only one dog there, Chachi, that night. THE COURT: Sustained. MR. PETROCELLI: No other dogs involved. MR. LEONARD: This goes to Mr. Simpson's state of mind. MR. PETROCELLI: There was no other dog there. THE COURT: Sustained. MR. LEONARD: I don't have any other questions. MR. PETROCELLI: Nothing. THE COURT: Thank you. MR. PETROCELLI: Thank you. THE COURT: How many more do you have? MR. PETROCELLI: We're going to read depos. Oh. Randy Petee, Your Honor. Call Randy Petee. THE COURT: How long is this witness? MR. PETROCELLI: About 15 minutes. Good time for a break? THE COURT: Yeah. Ten minutes. (The jurors resumed their respective seats.) MR. GELBLUM: Randy Petee, Your Honor. RANDALL PETEE was called as a witness by the Plaintiffs, having been first duly sworn, was examined and testified as follows: THE CLERK: You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth, and nothing but the truth, so help you God? THE WITNESS: I do. THE CLERK: And, sir, would you please state and spell your name for the record. THE WITNESS: Randall Petee, R-A-N-D-A-L-L P-E-T-E-E. DIRECT EXAMINATION BY MR. GELBLUM: Q. What is your occupation, Mr. Petee? A. I'm a private investigator with the firm Gailey and Associates, G-A-I-L-E-Y. Q. Did you do any work related to this case this past Sunday night, Mr. Petee? A. Yes. Q. What did you do? A. I was given an assignment. MR. BAKER: I would object. I want to approach. THE COURT: All right. (The following proceedings were held at the bench, with the reporter.) MR. BAKER: Your Honor, apparently Mr. Petee, who is a private investigator, made certain round trips last Sunday night to and from 875 Bundy, the alley, to various routes. We were just given this piece of paper in the last 30 minutes and -- and so he is not a percipient witness, because he didn't see anything. He's got to be an expert witness for driving his car. He was not designated as an expert. And this is after the joint pretrial statement. And he's here to testify as to how much time it took on various routes. And I object to it. You can't have pretrial discovery frozen and have their guy go out Sunday night and do this particular experiment, and come in here and present it to the jury. I think that's inappropriate under the pretrial order and orders of this Court and the -- and the expert designation. MR. GELBLUM: Expert witness? He drove his client. How long it took. There's no expertise. It's a five-minute witness. THE COURT: Number one, I don't consider this an expert. Number two the streets are still there and you certainly have ample opportunities to run your own -- MR. BAKER: That isn't the purpose of the discovery statute, number one. Number two, things have changed, like he goes to barricade 360 North Rockingham. That barricade wasn't there on June 24th. MR. GELBLUM: He goes and comes around. That's cross. MR. BAKER: That isn't cross; that's -- this is ambush. That's what discovery is for. THE COURT: This is -- I frankly say, this is very de minimus. Overruled. (The following proceedings were held in open court, in the presence of the jury.) Q. (BY MR. GELBLUM) What did you do on Sunday night, Mr. Petee? A. I was given an assignment to conduct a time-and-mileage check to determine travel time and mileage from 875 South Bundy to 360 North Rockingham. Q. Okay. And what kind of car were you driving? A. A 1994 Honda Accord. Q. How many cylinders is that? A. Four cylinders. Q. Are you familiar with this area, with these routes? A. No, I am not. Q. And did you drive several different routes from 875 South Bundy to 360 North Rockingham? A. Yes. Q. And did you drive at different speeds? A. Yes. Q. And did you record the time and mileage for each route that you took? A. Yes. Q. Okay. There should be a pointer right in front of you there, sir. Could you -- would you take that and step over to the board we've put up, which is exhibit next in order, 2227. (The instrument herein referred to as a board entitled Map of Brentwood Area was marked for identification as Plaintiffs' Exhibit No. 2227.) Q. (BY MR. GELBLUM) Can you describe -- how many different routes did you drive, sir? A. There was a total of three routes. Q. Okay. Can you show the jury -- use the pointer and the map, Exhibit 2227 -- the first route that you took. A. The first route? Q. The red dot, down towards the lower right is 875 South Bundy, and the dot up at the top left is 360 North Rockingham. A. Starting on Dorothy Street -- Q. You can extend that pointer so you can stand around so the jurors can see. A? Starting on Dorothy Street, just west of Bundy Drive, and at the north-south alley that serves the rear of 875 Bundy, I traveled eastbound to Bundy, turned right; now, travel southbound on Bundy to Mayfield, making a right turn on Mayfield. Q. Did you -- could you trace that on the map, sir. A. Down here. (Witness indicates route taken on Exhibit 2227.) Q. Making a right turn on Mayfield, traveling westbound to Gretna Green, making another right-hand turn, now traveling all the way to San Vicente. At San Vicente, I made a left-hand turn, traveling westbound, to Avondale, A-V-O-N-D-A-L-E. From Avondale, I traveled northbound. It doesn't show on the map here, but Avondale merges into Rockingham. Q. Is that merger north or south of Sunset? A. It merges south, south of Sunset. Q. Okay. A. Once I was on Rockingham, after the merge, I traveled to Sunset. It's not shown on the map, but it should be in this general area here. (Indicating.) Q. Up to the left side of the map? A. Right. I traveled -- I turned right now, traveling eastbound on Sunset, and I stopped at -- there's a barricade that is now in place on the north side of Sunset at Rockingham. Q. Can you point that out, that location on the map? A. The barricade would be right here. (Indicating.) Q. And does that barricade prevent entrance onto Rockingham from Sunset? A. Yes, it does. Q. Okay. What did you do once you got there? A. That was my first route. I traveled that route the first time at the speed limit. Second time I did it at accelerated speeds. Q. When you say the speed limit, were you literally driving at the posted speed limits, sir? A. Yes, I was. Q. And what are the speed limits in the area you were driving in? A. On Dorothy, it's not posted. Residential streets that are not posted, the speed limit is 25. Bundy, it's 30 miles -- 30 miles an hour in the area that I traveled. It does change in different parts, but it was 30 miles posted just south of -- I mean on Bundy, just south of Mayfield. Traveling to Gretna Green, it's also 25. But when you come up to the three -- the first three streets, there's a 15-mile-an-hour marking for speed bumps, which are not on the street at this time. I don't know if they were there or they're going to be installed there. Continuing on, 25, going up Gretna Green, there's a school located right here (indicating), so the speed limit is 25 miles an hour because of the school. And then on San Vicente, it's 35 miles an hour. I believe it's posted three times from Gretna Green to Avondale, as soon as you turn onto Avondale, it's posted 25. Traveling up Avondale to Rocking -- I mean to Rockingham, I don't recall seeing any other posted signs. But from the merge at Rockingham to Sunset, there's four speed bumps where they are posted at 20 miles -- at 15 miles an hour. Traveling onto Sunset, Sunset is a 35 -- it is posted 35, but some of the curves, it's down, posted at 25. Q. And you actually traveled that at or below all those speed limits? A. Yes. Q. On the one -- one time you did it? A. Yes. Q. Okay. And did you stop at all stop signs? A. Yes, I did. Q. Full stops? A. Yes. Q. Okay. And did you time how long it took you to do that route at the speed limits and stopping at the stop signs? A. Yes. Q. How long did it take you? A. I believe it was five minutes and 51 seconds. Q. Did you make some notes? A. Yes, I did. MR. GELBLUM: I'd like to mark next in order, Exhibit 2228, Your Honor. (The instrument herein referred to as Notes prepared by Mr. Petee was marked for identification as Plaintiffs' Exhibit No. 2228.) Q. (BY MR. GELBLUM) Are these the typed-up version of the notes you made? A. Yes. Q. Now, did you do that same -- did you do that same route not obeying the speed limits? A. Yes, I did. Q. And how fast did you go? A. My speeds fluctuated due to acceleration, deceleration, coming to stop signs, curvatures in the roadway. And just the roadway itself would allow faster speeds than on other parts of the roadway. I traveled on the accelerated speeds, I would say, in the residential areas, between 30 to 45 miles an hour. On San Vicente, I was able to get up to 60 miles an hour. Q. Were you going as fast as you possibly could? A. No. MR. GELBLUM: Can I ask for immunity for this witness, Your Honor, breaking the speed limit? MR. BAKER: Absolutely not. (Laughter.) Q. (BY MR. GELBLUM) And did you come to full stops at the stop signs when you were doing the route in that manner? A. No. Q. Did you stop at all? A. Yes. Q. Slow down? A. I slowed down there. I guess can you call them rolling stops. Q. Okay. And traveling in that manner on this first route that you've described, up Avondale, how long did that take you to get to the barricade at Rockingham? A. That took me three minutes and 31 seconds, approximately. Q. How were you timing yourself? A. With a stopwatch. Q. Did you then continue on to 360 North Rockingham? A. Yes. Q. How did you do that? A. This was the first route of travel, so it had to be broken down in two parts. So after I completed the speed-limit test, and then the accelerated speed, I had to move -- position my vehicle around to Rockingham, and I backed up into the barricade -- that's, again, located on Sunset and Rockingham -- and I conducted a test from the barricade up to 360 Rockingham. Q. And how many times did you do that? A. I did that three times. Q. And did you do that again at the speed limit and breaking the speed limit? A. Yes. Q. And how long did it take you at the speed limit? A. At the speed limit, it took me approximately 46 seconds. Q. Okay. Then you went the faster the method? A. Yes. Traveling that, 46 seconds. I stopped the stopwatch at Rockingham and Ashford. Then my second test at accelerated speeds, which was approximately 35 seconds, I stopped the stopwatch at this starting point, being at Sunset and Rockingham, to the Rockingham gate. Again, that took me approximately 35 seconds. And then I get I did a third test, again starting at the same starting point to the Ashford gate. And that took me approximately 37 seconds. Q. Okay. So, on the -- combining the two segments of this trip at the accelerated speeds, what was the total time from 875 South Bundy to 360 North Rockingham? A. I didn't -- I don't have the -- I did not add it up. Q. The first time is three minutes and 31 seconds, right? A. Right. Q. And the second was about 35 seconds? A. Right. Q. So, I believe 406? A. Approximately four minutes and six seconds. Q. There's a dead stop at the barrier at Rockingham? A. Yes. Q. Do you know whether that barrier was there in June of 1994? A. No, I do not. Q. Now, did you take a a second route? A. Yes, I did. Q. Can you just trace that route for the jury. A. Second route, again starting at the same starting point on Dorothy at the alleyway, traveling again to Bundy, southbound on Bundy to Mayfield, westbound on Mayfield to Gretna Green, northbound on Gretna Green to San Vincenti, westbound on San Vincenti to Bristol. And if I can find Bristol, right here. (Indicating.) And then right turn onto Bristol, now traveling northbound through Sunset to Highwood, and then a left turn. Now westbound on Highwood to Rockingham, and then to 360 Rockingham. Q. Did you drive that both at the speed limit -- in the speed-limit manner and in the accelerated manner? A. Yes. Q. How long did the speed-limit manner take you? A. I'll check my notes. The speed limit, it took me approximately five minutes and 35 seconds. The accelerated speeds, it took me approximately four minutes and three seconds. Q. Okay. And did you take a third route? A. Yes, I did. Q. Can you trace that for the jury. A. Third route, starting at the same starting point, traveling eastbound on Dorothy to Bundy, southbound on Bundy to Mayfield, westbound on Mayfield to Gretna Green, northbound on Gretna Green to San Vicente, westbound on San Vicente to Cliffwood, here (indicating), right turn onto Cliffwood, traveling northbound through Sunset, stopping at Highwood, making a left-hand turn to Rockingham, and then up to 360 North Rockingham. Q. And did you take that route both at the speed limit and at the accelerated speeds? A. Yes, I did. Q. How long did each of those take you? A. The speed limit took me approximately six minutes and nine seconds. The accelerated speed, four minutes and two seconds. Q. What time -- what was the time frame that you drove these routes on Sunday night? A. I started the assignment at approximately 10 o'clock, and I finished at around midnight. MR. GELBLUM: I have no further questions. THE COURT: Cross. CROSS-EXAMINATION BY MR. BAKER: Q. Pretty quiet out there on Sunday night. MR. BAKER: Mr. Petee, you may resume the stand. (Witness complies) Q. (BY MR. BAKER) Pretty quiet out there? A. Yes. Q. Very few cars? A. Oh, yes. Q. Did you see any cars on Gretna Green or Dorothy or Mayfield that were moving? A. Yes. Q. How many on any of the three -- well, any of the six trips that you had? A. At a given time? Q. Yeah. Anything. Just -- did you see one time, period? A. Three. Q. Any more than that? And when you got over to -- up by Brentwood -- Mr. Simpson's house, did you pick the way to get there, or did somebody tell you what routes to take? A. I was told what routes to take. Q. And were you told that -- well, did you get a Thomas Guide out, sir, and take a look and see what the quickest way to get to Rockingham would be from 875 South Bundy in that alleyway? A. Just to look at it for that specific reason. Q. Well, strike that. Let me withdraw the question and ask you a different one. You were certainly told that time was important, were you not, before you started this assignment that you were given Sunday? A. Not directly. Q. You work for Grailey and Associates, right? A. That's right. Q. Grailey and Associates. You know Mr. Marlow works there? A. Yes. Q. And Mr. Marlow is a former LAPD officer who investigated the Simpson case while he was with the LAPD, right? MR. PETROCELLI: Beyond the scope, Your Honor. THE COURT: Overruled. There's no relationship with regard to this. Q. (BY MR. BAKER) That's true, is it not? A. Yes. Q. Mr. Marlow also investigated the case at the direction and through the payroll of the plaintiffs' lawyers during this civil case, right? A. True. Q. And you knew from Mr. Tippin -- and he worked there, too, former LAPD, right? A. That's correct. Q. And Mr. Tippin investigated the Simpson case when he was an LAPD officer, correct? A. That's correct. Q. And he, in fact, reinvestigated the case at the direction and through the remuneration of the plaintiffs in this case, correct? A. Initially, yes. Q. And you were certainly aware when you got this assignment on Sunday, that time lines -- that is, the amount of time it takes to get from 875 South Bundy to 360 North Rockingham -- is critical in this case, correct? You were told that? A. I was not told that it was critical. Q. You understood that it was critical; that is, how much time anybody -- if it was Mr. Simpson, would have to leave 875 South Bundy and to get to 360 North Rockingham, true? A. I wasn't told in that manner. Q. Well, regardless of the words or what manner you were told, before you started this exercise of Sunday evening, you knew that time between 875 South Bundy and 360 North Rockingham was critical to this case, did you not? MR. GELBLUM: Asked and answered three times, Your Honor. MR. BAKER: Well, he won't -- THE COURT: Won't answer it. MR. GELBLUM: He said no. THE COURT: I'm going to overrule it. Well, Mr. Baker is entitled to get an answer. Q. (BY MR. BAKER) Can you answer that, sir, please? A. Yes. Q. All right. And you -- did you have a Thomas Guide before you started this exercise that you did this last Sunday with you? A. Yes. Q. And did you happen to kind of take a look at the Thomas Guide to see if -- if it -- if, in fact, you were trying to get from 875 South Bundy to the Rockingham address, what the quickest route would possibly be? A. No. Q. Well, did you think that by going south on Bundy, that that was the quickest way to go north, to the 360 North Rockingham place of Mr. Simpson? A. There's an arrow at Dorothy and Bundy that indicates you're not to make a left-hand turn onto Bundy. Q. Well, maybe you didn't understand the question. Let me see if I can try it again. If you -- you started -- as I understand it, sir, there's an alley that goes between Bundy and Gretna Green that services the house, including 875 South Bundy, is there not? A. Yes. Q. And as I understand your testimony, you were parked in the corner in the alleyway, true? A. No. Q. Where were you parked? A. At the alleyway on the street. Q. Oh, you were already on the street? A. Yes. Q. So you didn't go behind 875 South Bundy? A. No. Q. Okay. You parked on -- were you told to park on the street? Somebody tell you don't walk -- park behind the house of 875, park out on Dorothy and point your vehicle towards the east, or Bundy, as you commenced this little exercise? A. That's what I was told. Q. Who told you that? A. It came from the law office. Q. Who told you that? A. Specifically, I don't know. Q. So did you get a memorandum as to how the little exercise was going to be undertaken? A. I was given -- regarding the routes of travel. Q. You have that with you? A. No. Q. Why not? A. I -- MR. GELBLUM: Objection. Irrelevant that he doesn't have it. THE COURT: It's a question. He's asking him why he doesn't have it. Q. (BY MR. BAKER) Somebody tell you not to bring it, Mr. Petee? A. (No verbal response.) Q. Oh, so when you come back tomorrow, can you bring that with you? MR. GELBLUM: Objection. I don't know he's coming back tomorrow. MR. BAKER: I think so. Q. (BY MR. BAKER) Now, Mr. Petee, when you were told, then, to park your vehicle, and you were on the south side of Dorothy, heading east -- is that correct, sir? A. Yes. Q. You were told then to go east on Dorothy and then go south on Bundy, correct? A. Yes. Q. And you, of course, knew that your final destination in this time period that you knew was crucial, was to the north, true? A. Yes. Q. And so you certainly knew from reviewing the Thomas Guide, that the quickest way, if you were going to get from 875 South Bundy, would be either to turn right on Dorothy and go up Gretna Green and then take an alternate route up to Ashford and Rockingham, but not to go south, correct? A. Can you repeat that again. Q. Sure. If you had to get from 875 South Bundy to 360 North Rockingham from dot A to dot B, you're sure, and you -- and you're under instructions, given no routes whatsoever, you were requested to get from point A to point B as quick as you can, you sure wouldn't turn right on Bundy, would you? A. No. Q. In fact, if you were parked in an alley and you had committed some heinous crime, would you either turn around in the alley and go in -- Well, strike that. If you were parked in the alley behind 875 South Bundy and wanted to get to Ashford as quickly as possible, and your car was headed in a southerly direction, you would either go out the alley to Dorothy, take an immediate right, take another immediate right, and go north on Gretna Green, right? MR. GELBLUM: Objection. No foundation. THE COURT: Objection sustained. This witness was only asked what his times were and what his routes were, not asked for an evaluation. Q. (BY MR. BAKER) Well, you -- in arriving at the routes, did you have any input into this, or did this all come with direction from the Law Offices of Mitchell Silberberg & Knupp? MR. GELBLUM: Objection. Asked and answered. THE COURT: Overruled. That wasn't asked. A. The assignment came from the law firm. Q. (BY MR. BAKER) You had no discretion as to how you could alter the vehicle [sic] and get from the lower red dot to the upper red dot, correct? THE COURT: Alter the vehicle? MR. BAKER: I'm sorry; I apologize if I said alter the vehicle. Q. (BY MR. BAKER) Alter the route to get from the dot on Bundy to the dot on Rockingham? A. No. Q. Okay. Now, in arriving -- in looking at it, did you ask anybody why these particular routes were chosen, as contrasted to some other way to get from 875 South Bundy to Rockingham? A. No. Q. Did you suggest to anyone that, for example, in your route 3, when you're over here, coming up Cliffwood -- This is Cliffwood right here, isn't it, where my -- (indicating) you can just see the wood up here, the map is -- A. Yes. Q. -- a little. Okay. Did you suggest to anyone, if you wanted the quickest way to get to -- off San Vicente to Clifford to Rockingham, would be to turn left off Ashford? MR. GELBLUM: The witness testified he followed instructions; that's all he did. THE COURT: Sustained. MR. BAKER: I'm asking him if he asked anyone -- THE COURT: The only testimony on direct, he took the routes, gave the times. That's it. Q. (BY MR. BAKER) Now, as I understand your testimony, then, knowing that time was critical, the first -- the first route that you were ordered to take by the plaintiffs' lawyers, you made in six minutes and 37 seconds. That's the total lapsed time of the first trip, correct? A. Yes. Q. And then you chopped that by a third. In other words, you chopped more than two minutes and a half off of the elapsed time by sticking your foot in it, right? In other words, when you did the same route on the second trip, you had, I think, elapsed time of four minutes and six seconds, true? A. True. Q. So you took off over two and a half minutes in a six-and-a-half-minute trip, right? A. Yes. Q. And then you put next to it, traveling at accelerated and reasonable speed -- those are your words, are they not? A. Yes. Q. You think it's reasonable to run down San Vicente at 60 miles an hour? MR. GELBLUM: Objection. Irrelevant. What's relevant? THE COURT: What's reasonable to him is irrelevant. Sustained. Q. (BY MR. BAKER) Well, you would agree with me that you weren't traveling at reasonable speeds, even though that's what you put on your notes, correct? MR. GELBLUM: Objection. Irrelevant. THE COURT: Overruled. That's why you put on this witness. A. That particular roadway will handle freeway speeds. Q. (BY MR. BAKER) You think it's okay, it's reasonable to go 60 miles an hour, right? A. That's how fast I was able to go. Q. Okay. And do you have handwritten notes indicating what the speed was at the times that you made these passes last Sunday night? A. No. My notes were drafted into this form right here. Q. What did you do with the handwritten notes? A. They're destroyed. Q. Why? A. I custom -- Q. Well, you knew you were going to come and sit on this witness stand, did you not, sir? You knew that was the whole purpose of the Sunday night exercise, wasn't it? A. Yes. Q. Now, your route to -- you took over a minute and a half off by traveling at your accelerated speeds, correct? A. I'm sorry? Q. Routes 2. You dropped the time over a minute and a half by sticking your foot in it again, didn't you? A. Yes. Q. And did you get up to over 60 on San Vicente on that trip? A. I don't believe so. Q. Did -- on route 3, when you dropped two minutes again, a third of the time off of that, did you go over 60 on San Vicente at this point in time? A. I don't believe I went over 60. Q. Now, you were told in your directions, I take it, sir, that you were to rush, correct, on the second trip? A. I was not told to rush. Q. You were told to get the elapsed time between 875 South Bundy, after you turned and went south on Bundy, as low as you could. True? A. As fast as I could. Q. As fast as you could, right? A. Within -- within reason. Q. As fast as you could, because you knew the time was critical and crucial, true? A. True. MR. BAKER: I would ask that the witness be requested to return tomorrow with the -- with the memorandum. MR. GELBLUM: I object. There's no reason. MR. PETROCELLI: I would ask Mr. Baker put his foot to it and try to finish the witness up. MR. BAKER: I want to see the memorandum and the order that was given to this witness by these lawyers. MR. GELBLUM: He has no right to see that, Your Honor. This witness is a five minute witness that's been strung out by Mr. Baker for 20 minutes here. THE COURT: Well, I think he's entitled to see what directions -- the directions were. Overruled. And the witness is ordered to produce the document, be here tomorrow at 8:30. Ladies and gentlemen, you're excused until 8:30. Don't form or express any opinions. Don't conduct any experiments on your own. (At 4:30 P.M., an adjournment was taken until Thursday, December 5, 1996, at 8:30 A.M.) |