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SANTA MONICA, CALIFORNIA; FRIDAY, FEBRUARY 7, 1997 9:16 AM DEPARTMENT NO. WEQ HON. HIROSHI FUJISAKI, JUDGE APPEARANCES: (PER COVER PAGE) (REGINA D. CHAVEZ, OFFICIAL REPORTER) (Jurors resume their respective seats.) THE COURT: Good morning. JURORS: Good morning. MR. BAKER: Morning, Your Honor. Okay. Where is Steve? MS. MOLINARO: He's coming right back. MR. BAKER: Phil can't be here today. I need Steve. THE CLERK: Would you please state your name again for the record. THE WITNESS: Leroy Taft, L-e-r-o-y T-a-f-t. LEROY TAFT, called as a witness on behalf of the Defendant, was previously sworn and testified as follows: MR. BAKER: Morning ladies, and gentlemen. JURORS: Morning. DIRECT EXAMINATION BY MR. BAKER: Q. Morning, Mr. Taft. A. Morning. Q. Before we get back to the summary of financial condition of Mr. Simpson and his statement of net worth, let me ask you a couple questions. You heard yesterday about the six trademarks that were applied for Mr. Simpson? A. Yes, I did. Q. Was one dollar ever made off any of those trademarks? A. No, they were not. Q. You heard about two lawsuits Mr. Simpson filed to protect his name and likeness yesterday? A. Yes. Q. What happened to those? A. Those cases were dismissed with prejudice. Q. And, by the way, we've heard these assertions from Mr. Freeman, who didn't see any documents relative to expenditures, were you asked to bring one piece of paper relative to Mr. Simpson's expenditures for your testimony here today? A. No. Q. Was there a subpoena issued to you relative to this phase of the trial? A. Yes. Q. Were you required by that subpoena to bring one piece of paper relative to Mr. Simpson's expenditures? A. Not that I recall. All I recall is that we complied completely with both the Court order ordering certain records to be produced and the personal subpoena duces tecum served on me. Q. As custodian of records of Mr. Simpson's financial documents? A. Correct. Q. All right. Now, we talked a little bit about the video situation that Mr. Simpson was in, and it wasn't a commercial success. Do you recall that? A. Yes. Q. Would you tell the ladies and gentlemen of the jury what happened relative to the marketing of that video produced by, I guess, Mr. Hoffman? A. Yes. The video itself, as a production product, was considered very successful by many people. The problem was we couldn't market it very successfully, or the production company couldn't market it very successfully, because it was marketing under two sources. One, an 800 telephone line and, two, it had a budget for infomercials to be sold on television. The infomercials course -- we couldn't get one television company, not one, to take our money or the production company money to produce an infomercial to advertise the video. So we were completely blocked on one of the main sources for marketing. The other source, Mr. Baker, was the -- was the telephone, the 800 number, which as soon as that number was announced, we were flooded, that is, the operators were flooded by crank calls, people that didn't agree with the criminal verdict were blocking virtually -- blocking hundreds of thousands of calls within hours, blocking the lines from those people that wanted to get in to order the video. Q. When Mr. Simpson has attempted to market any type of memorabilia or sports items, have similar things occurred, i.e., blocking or demonstrations? A. Yes. Q. And where did that occur? A. Well, one specifically was a show that was to be scheduled in Atlantic City where we got bomb -- where the promoter got bomb threats and threats there was going to be a mass demonstration, and the promoter finally had to cancel the show. He even attempted to move it to New Jersey and met with a similar fate. Q. And do you have an opinion whether it's a concentrated effort by people in the public to ensure that Mr. Simpson cannot sell any of his memorabilia? MR. GELBLUM: Objection, no foundation. THE COURT: Sustained. Q. (BY MR. BAKER) You have in the past years watched and attempted to sell some of Mr. Simpson's name and likeness to produce income for him to live on, have you not? A. Yes. Q. You have, you in your duties and responsibilities as business manager of Mr. Simpson, had occasion to become familiar with what is going on relative to preclude Mr. Simpson from marketing any memorabilia or his name and likeness? A. Yes. Q. And tell the ladies and gentlemen of the jury what your opinion is relative to whether or not there's organized members of our country trying to preclude Mr. Simpson from earning a living? MR. GELBLUM: Objection, no foundation. Talk about what he's experienced himself. THE COURT: Sustained as to foundation. Witness may state what he observed. Q. (BY MR. BAKER) What did you observe relative to the -- anything that's organized to prevent Mr. Simpson from selling sports memorabilia? A. Well, in the several discussions I had with people that do promote shows for sports memorabilia -- MR. GELBLUM: Objection, called for hearsay. THE COURT: Overruled. It's his observation as to his marketing efforts. A. In discussing these matters relative to their interest to promote a show where Mr. Simpson would attend, they -- they themselves felt that it wasn't worth the grief because they knew from prior experience, and they'd seen it, that there was organized and unorganized demonstrations, and it also concerned the other athletes that might also be in attendance at those shows. Q. (BY MR. BAKER) Okay. Now, Mr. Taft, we've heard testimony from Mr. Roesler, who's sitting here in the audience, that Mr. Simpson could earn between two and a half and three million dollars a year. MR. GELBLUM: Misstates the testimony. It's two to three million. MR. BAKER: I'm sorry. It's two to three million. That's about a 50 percent difference; is that right. Two to three million. Q. (BY MR. BAKER) In any event, would you tell the ladies and gentlemen of the jury when Mr. Simpson had a contract with NBC, had a contract with Hertz, had an untarnished image, and was selling memorabilia, would you tell the most he earned including all of his contracts, all of his personal appearances, and sports memorabilia? A. Yeah. I would say as an average, in what I would call his glory days, where he was working for NBC, he was working for Hertz, he was doing movies, he was doing television appearances, and he was selling some sports memorabilia through sports shows, maybe during that time he might have reached two and a half million dollars a year, gross. Then he had taxes of 45 percent. Then he had expenses on top of that. So it's -- it's ludicrous to say, in my opinion, that he could earn this kind of money that Mr. Roesler testified to. Q. And what was, approximately, your best estimate as to how --the most he ever earned on sports memorabilia in any given year? A. Well, before all of this occurred. Q. Sure. Before any of this occurred? A. Before any of this occurred it would have been maybe 200,000. MR. BAKER: I don't have any further questions. THE COURT: Cross-examine. MR. GELBLUM: Thank you, Your Honor. CROSS-EXAMINATION BY MR. TAFT: Q. Welcome back, Mr. Taft. A. Thank you. Q. You testified in the first phase of this trial as well? A. Yes. Q. About the cuts in Mr. Simpson fingers -- MR. BAKER: Object. This is irrelevant. Outside the scope. THE COURT: Sustained. You've already established that at the first part of the trial. You don't have to reestablish it at this part. MR. GELBLUM: Q. And the reason -- this -- it is foundational. The reason you happen to be with Mr. Simpson that day on June 13, 1994, to observe -- MR. BAKER: I object. It's irrelevant whether he was. THE COURT: Sustained. MR. GELBLUM: Your Honor, it goes to bias. THE COURT: I think you've already established whatever you're going to establish in that regard at the first phase of the trial. We don't have to go through this again. You may argue it at the time of your closing argument. We don't need it now. Q. (BY MR. GELBLUM) Mr. Taft, your professional life -- much of your professional life of the past 30 years has been devoted to protecting and enhancing Mr. Simpson's financial interest, correct? A. Well, I wouldn't say most of it, but a large percentage maybe 50, 60 percent, consumed my personal time related to Mr. Simpson's matters, business matters. Q. This one client, right? A. Pardon me? Q. This one client has been that percentage of your life? A. I would say so, particularly over the last 15 years. Q. And that's still your job today, right? A. Yes. Q. And you certainly would never do anything to hurt his financial interest, would you? A. Well, I certainly wouldn't do it by negligence or intention. But if you're suggesting I would lie for him, no, I wouldn't lie for him. Q. You lied for him before on the stand. Didn't you? A. No, I didn't. MR. BAKER: I object, move to strike that question. Wait a minute. THE COURT: Overruled. The witness answered it in that form. Q. (BY MR. GELBLUM) You lied about the cuts on his hand. THE COURT: No. I'm going to sustain that objection. Mr. Gelblum, stay away from that. Q. (BY MR. GELBLUM) Well, Mr. Taft, you would do everything in your power to make sure Mr. Simpson does not go broke, wouldn't you? MR. BAKER: Asked and answered. A. No, not anything in my power. Q. No. Okay. Have you been working pretty hard for him for the past 12 months or so to try to make money for him? A. Yes. Q. What have you done? A. Negotiated with several prospective licensees to produce a video to -- Q. That's another video? I don't mean to interrupt. That's another video that did get produced by Mr. Hoffman? A. Yes. By H&K Productions. Q. Mr. Simpson netted over $300,000 from that video, correct? A. Yes. Q. Okay. Go ahead. A. And, you know, other similar projects in regard to any opportunities such as personal appearances -- excuse me, personal appearances -- personal appearances both in the context of sports shows and with respect to autographs, and attempting to sell sports memorabilia and -- Q. You've negotiated -- A. -- I would say within the past 12 months, Mr. Gelblum, that is probably the three areas that we tried to focus on. It didn't produce little if any income. That's the areas I've been working hard on. You asked if I was working hard. Yes, I'm working hard. Q. How many hours do you think you spent over the last 12 months trying to make money for Mr. Simpson? A. I don't know. I would say probably 20 hours a week on that, and maybe 20 hours on all the other business management of his -- all of his finances. Q. So pretty much full time for Mr. Simpson for the last 12 months? A. Pretty much. That may be is a little high 'cause that's right, I am in general practice, so I do other work. But it's been my major consumption of my work for last 12 months. Q. You listed 40 hours a week. How do you charge Mr. Simpson? A. It's on -- MR. BAKER: Objection, relevancy. THE COURT: Overruled. A. It's on a retainer basis. Q. How much is the retainer? MR. BAKER: Objection, relevancy. THE COURT: Overruled. THE WITNESS: It's a retainer. I'm to answer that? THE COURT: Yes? A. The amount of $5,000 a month plus overages of -- on an hourly of $325 an hour. Q. So you work 5,000 a month at 325 an hour and once you've worked whatever that is, 15 hours or so in the month, then you bill at $325 for the rest? A. Yeah. I keep track of my time. I haven't been paid all of that money. Q. Okay. You expect to be paid? A. No. Q. You hope to be paid? A. Hope, yes. Pardon me? Q. Hope to be paid? A. Sure. I hope. Q. You're not doing the work pro bono, are you? A. It wasn't my intention to. Q. So 40 hours a week at $325 an hour for a year; is that right? A. Yeah. Yes. Q. Do you know what that comes to for the last 12 months? A. No. Q. About $13,000 a week; does that sound right? A. That's a little high. That's a little high. Q. It's well over a hundred thousand dollars in the last 12 months that you've rung up charges for him, right? A. Yes. Q. This is somebody you say who has no means of income and can't pay his bills? A. That's right. Q. Okay. And he's also got Marvin Goodfriend sitting in the audience working for him? A. Correct. Q. And he's got a full-time bodyguard? A. Correct. Q. And he's got a $64,000 Suburban automobile? A. Correct. Q. And a Bentley? A. Bentley owned by the corporation, but -- Q. The corporation owned by him 100 percent? A. Correct. Q. And by the way, the Bentley wasn't listed on the financial statements he produced, were they? A. Yes, they were. Wasn't it on Orenthal Productions' financial statement? Q. It's not on his financial statement, right? A. I said it was not. It didn't belong to him. Q. If he -- well, he has the ability to sell that Bentley at any time and he would get the proceeds, right? A. No. The corporation would. Q. Well, he's the corporation, isn't he? A. Yes. Q. Okay. And how much is that Bentley worth? A. 35 or 40,000. Q. Okay. So he's got the Bentley, and he's got the Suburban, and you, and Mr. Goodfriend, and the bodyguard. And he's got gardeners? A. Yes. Q. And pool men? A. Yes. Q. And people who maintain the tennis court? A. No. Q. Housekeeper's? A. Yes. Q. Kathy Randa at 3,000 a month in his office? A. Yes. Q. Maintains an office? A. Well, it's in the home. Q. Doesn't have the office next door to yours any more? A. No. Q. Still pays Kathy Randa 3,000 a month? A. Yes. Q. How much is his mortgage payment on Rockingham every month? A. Well, when he's paying it, right now it's $24,000 a month. Q. Hasn't been a notice of default filed? A. No. Q. Okay. ,000 a month just for the mortgage payment on Rockingham? A. Yes. Q. And over 10,000 a month for you and 3,000 a month for Kathy Randa, right? A. Right. Q. How much does it cost to keep up Rockingham every month? A. I don't know. Q. You've been paying his bills. You told us yesterday you're the one that writes all the checks. A. I know, but I don't have that information right at my fingertips. Q. Well, about how much? A. I'd rather not estimate. Q. No idea? A. Yeah, I have an idea, but I think it would be speculation. I'd rather look at the records. Q. Well, in fact about five years ago when his mortgage was less than half that much, and cost him about over $20,000 a month to maintain Rockingham, right? A. That sounds right. Q. So it's probably up in the 30, $40,000 a month range now? A. Probably. Q. He also plays golf regularly, right? You know that -- A. Yeah. Q. -- don't you? A. Yes. Q. Green fees? A. Where he plays it's $17 a day, but -- yeah, it's $17. Q. Okay. Golf carts, golf clubs, all that equipment? A. Well, you know, that's a one-time cost, but yeah, he's got golf clubs if he plays golf. Q. But he's got no means of income, right? A. He's been -- that's right, but -- Q. Okay. Thank you. That's the answer to the question then. A. May I explain that? Q. No, you may not. MR. BAKER: He's trying to explain that. MR. GELBLUM: Your attorney can ask you. MR. BAKER: I think's he entitled to explain that. Every other witness seems to be entitled to explain things. THE COURT: You may explain it on your redirect examination. MR. BAKER: Thanks very much, Your Honor. MR. GELBLUM: Just like every other witness. Q. (BY MR. GELBLUM) Now, in addition to wherever he's getting the money to pay for all these expenses, he took in about $3 million last year just from two years; million and three quarters from insurance policies and a million and a quarter from Pigskins? A. Correct. Q. Okay. And how much of that $3 million went to pay criminal defense expenses? A. Criminal expenses? Q. Very, very little, right? A. Very, very little. Probably just some monies that we owed to the experts that were still unpaid in the criminal matter that we were going to use in the civil matter. Q. Maybe $100,000? A. Probably, yes, that's a fair estimate. Q. Even though all of that debt was incurred before October 3 of 1995, right? A. Correct. Q. Mr. Simpson's not in any rush to pay off those bills? A. Doesn't have the money. Q. Okay. A. Well -- Q. He's finding it to pay these other expenses, isn't he? A. Matter of selection. Q. That's right. By the way, you were here in court yesterday when we put up an exhibit about the money that Mr. Simpson has earned on account of the murders. It listed about $2.8 million. You saw that, right? A. Yes. Q. That was all accurate, wasn't it, all those dollar amounts? A. I would like to see that again, Mr. Gelblum? Q. Okay. MR. GELBLUM: Do you have that exhibit? 2414. We're going to try to do this without Mr. Foster. If it doesn't work out in one second, I'll show it to Mr. Taft. Hey, nice work (indicating to Elmo). Bring it down and zoom in. (Ms. Molinaro complies) THE COURT: It's not terrific. MR. GELBLUM: It's pretty good for a first time, Your Honor. Q. (BY MR. GELBLUM) Can you see the numbers? A. Yes. Were these taken from our books? Q. Yes, sir. A. Well, then they're right. Q. Okay. You have no reason to quarrel with those? A. If they were taken from my books, they're right. Q. Okay. Very good. Very good. Now, you had some input in connection with -- (Steve Foster arrives.) MR. GELBLUM: We don't need you any more, Steve. (Laughter.) Q. -- with Mr. Simpson's trademark applications that Mr. Baker and you discussed, right? A. I'm sorry? Q. You had some input into those applications, right? A. Yes. MR. GELBLUM: Like to just put some of these up on the Elmo. This one -- this is a summary of it from Puck records computerized records been -- highlighted this the one for Team O.J. Justice For All. You see that? A. Yes. MR. GELBLUM: I think it's on the second page Mr. Taft's name appears. MR. BAKER: I object, Your Honor. These documents are not official correspondence of anything. MR. GELBLUM: These were received into evidence yesterday, Your Honor. THE COURT: Overruled. Q. (BY MR. GELBLUM) You're listed as the filing correspondent there. That's your name and address? A. Yes. Q. That was filed April of 1996, long after the criminal trial ended? A. Right. MR. GELBLUM: Go back to the first page. Q. (BY MR. GELBLUM) This is an application for a trademark for the mark Team O.J. Justice For All; is that right? A. Yes. Q. And these -- for the goods listed there, jewelry, paper goods, clothing, toys and sporting goods? A. Yes. MR. BAKER: Outside the scope, Your Honor. THE COURT: Overruled. Q. (BY MR. GELBLUM) And that was -- this is what is known as an intent to use trademark? A. Right. Q. Meaning Mr. Simpson has not previously used this trademark for any of these goods, but as of April, 1996, when he signed this application under penalty of perjury, he intended to use that mark for these goods, right? A. If there was a market out there, we intended to use it. Q. Well, you weren't in the habit of taking -- spending your time on futile gestures, were you? A. No, we were hopeful. That was April of '96. We were hopeful. Q. You expected to make money from this trademark? A. We didn't do it idly, no. Q. Okay. By the way, was that your creation, that name, Team O.J. Justice For All? A. No, it wasn't. Q. Whose idea was that? A. I don't know. MR. BAKER: Relevance. MR. GELBLUM: Put up the next one, Steve. Q. (BY MR. GELBLUM) This one is for the Juice. Again -- MR. GELBLUM: Go down to the bottom of that, Steve, with Mr. Taft's name. (Mr. Foster complies) Q. (BY MR. GELBLUM) And you signed this application along with Mr. Berman; is that right? A. Yes. Mr. Berman was the trademark attorney and I was signing on behalf of an officer of Orenthal Productions. Q. Okay. And this is February, 1996? A. Yes. MR. GELBLUM: Steve, can you go to the highlighted date. Q. (BY MR. GELBLUM) January, 1996 is when it was filed? A. Yes. That's a year ago. Q. Okay. And that's for prepaid telephone calling cards? A. Yes. Q. Is that the card we saw in court yesterday? A. Yes. Q. Okay. And is that -- so that's an actual use trademark, right? A. Yes. Q. Can you tell the jury the difference between an actual use trademark and an intent to use trademark? A. Well, it's -- it's I think self-evident. If you're actually using the name of -- the mark on a product and you're out selling it in the stream of commerce, I think that's considered an actual use. If you have an idea about maybe using a particular mark for future merchandising of the product, it's an intent to use. Q. Just whether as of the time of the application it's already been used; is that in a nutshell what it is? A. Say again. Q. Whether at the time -- A. Yeah. Q. -- the application is filed, the applicant has already used the mark? A. Correct. Q. All right. MR. GELBLUM: Put up the next one please, Steve. Q. (BY MR. GELBLUM) This one is just simply for the name O.J. Simpson; is that right? A. Correct. Q. And again -- MR. GELBLUM: Go down to find Mr. Taft's name. Q. (BY MR. GELBLUM) You signed this one, too? A. Yes. Q. Okay. And this was May 8 of 1995. That's during the criminal trial, correct, while Mr. Simpson was in jail? A. That's right. Q. All right. MR. GELBLUM: Go back up, Steve. Q. (BY MR. GELBLUM) And this was for jewelry, paper goods, printed matter, adhesives, games, toys, cutlery, et cetera, as the jury can see there? A. Yes. Q. And again was an actual use application; is that right? A. On what product? I don't know. I can't answer your question. Q. Go to the next one. This is the fourth one. This one again is for O.J. Simpson, the name, and this is for additional materials; is that right? A. Yes. MR. GELBLUM: And show Mr. Taft's name on that, please. Q. (BY MR. GELBLUM) You signed this one also under penalty of perjury? A. Yes. Q. And this was just about five weeks after the murders you did this, right? A. What date are we looking at for -- Q. File date, July 21, 1994. A. After the murders? Q. The murders were June 12, 1994. A. Yes. Q. This is five weeks later, right, you filed this application with the trademark office to trademark Mr. Simpson's name on an intent to use basis? You can see that one under the status heading intent to use. Do you see that? A. Yes. Q. So five weeks after the murders, you filed this application to protect Mr. Simpson's name with the idea that you would go ahead and help him make some money by selling these kinds of goods with his name on them? A. Absolutely. Because he was in jail and otherwise couldn't perform personal services so we were trying to sell his name. Q. Okay. Show you the next one. This one's for the mark Juice. MR. GELBLUM: Find Mr. Taft's name again, please, and the date. Q. (BY MR. GELBLUM) And that one again is about five weeks after the murders, correct? A. Correct. Q. And you signed this one -- A. Correct. Q. -- as well? MR. GELBLUM: Go back to the first page, Steve, show the goods covered by this. Q. (BY MR. GELBLUM) This is again the same kinds of goods but for a different mark; instead of O.J. Simpson, this is for Juice, right? A. Correct. Q. Okay. MR. GELBLUM: Thank you, Steve. Q. (BY MR. GELBLUM) And again, certainly when you filed these applications the goal was -- and not just the goal, but your belief was that you would be able to make money by exploiting these trademarks, correct? A. Correct. Q. You've been working with this man for 30 years? A. Almost 28 years. Q. Mr. Simpson has generated millions and millions of dollars through his name and likeness over the years, hasn't he? A. No, not millions and millions, not on that basis. Q. You just told us he made $2 and a half million in one year alone, didn't you, Mr. Taft? A. That was a very unusual year -- Q. The year he was in jail, was it -- THE COURT: Excuse me. Would you let the witness finish answering the question. MR. GELBLUM: Sure. Q. (BY MR. GELBLUM) Go ahead, Mr. Taft. You were talking about the year he made $2 and a half million. A. That was a very unusual year. That was a case of, I believe -- if I could see that again. There was a book. For about a year during the time he was incarcerated -- Q. No. Back up. I'm not talking -- MR. BAKER: Let him finish his answer. Q. (BY MR. GELBLUM) I'm not talking about the year -- the money he made off the murders, the 2.8 we showed. I'm talking about the year -- you told Mr. Baker just a few minutes ago he made $2 and a half million in one of his good years before the murders. A. Right. Q. Do you remember that? A. Yes. And that was primarily, Mr. Gelblum, primarily, maybe 95 percent from three contracts, the Hertz contract, the NBC contract and motion picture contract, such as Naked Gun. He did three Naked Guns during the last seven or eight years. Q. Okay. And because he had all those sources of income, the NBC contract, the Hertz contract, the movie contracts, there really wasn't much need for him to try to market his autograph and memorabilia? A. He didn't have time. Q. Right now he's got lots of time to do that because he doesn't have those kind of contracts anymore? A. He's got the time. We don't have the market. Q. That's what you keep telling us. I know. You familiar with the publications Mr. Roesler was talking about that list the market -- about various athletes? A. Trade magazines mean nothing, mean nothing. It's what the dollars -- show me, the money. That's the deal. There's nobody there, Mr. Gelblum, to buy the product. Q. My question was are you familiar with the publications that people who work in that industry use to gauge the value of autographs? A. Yes. Q. Okay. And you would agree, wouldn't you, that those publications show Mr. Simpson to have one of the highest per autograph value today, not before the murders, but today, of any living athlete? A. I haven't seen the magazine so -- Q. You just said you were familiar? A. I am familiar with it but I haven't seen that. I heard Mr. Roesler testify that it was $60. Q. Okay. And that before -- and that's for an 8-by-10 signed autograph, right? And that before, before the murders, it was $25? MR. BAKER: Can he let him answer a question. THE COURT: You going to ask a question, I presume you want an answer. MR. GELBLUM: Well, it doesn't sound like I was getting one. MR. BAKER: How could you tell? THE COURT: Save it for closing argument. MR. GELBLUM: Why don't I start over. THE COURT: Okay. Please. Q. (BY MR. GELBLUM) You're not disputing, are you, sir, that Mr. -- the value of Mr. Simpson's autograph as published in these magazines used by people in the trade tripled after he was arrested for the murders and has kept that value to today? A. Yeah, I'm disputing that it went -- I could have answered yes for the first 12 months after the June 12 murders of 1994, but since then it's gone -- really dried up to virtually nothing. Q. Well -- A. That's what that's based on -- my opinion is based upon. I'm there, sitting there, waiting for the offers. Q. Well, you're more than sitting. You're running up bills of over $100,000 a year trying to make money? MR. BAKER: That's argumentative. THE COURT: Overruled. A. Yes, I'm working at it, trying, but I'm -- doing everything else to -- but yes, I'm conducting and I'm using other people to try to find business. Q. (BY MR. GELBLUM) Now, when you negotiate -- you've been negotiating deals for 30 years, your whole professional life? A. Yes. Q. When you're trying to sell something to somebody like Mr. Simpson, like when you're trying to sell Mr. Simpson, and somebody says no, one rational and typical response is to lower your asking price, right? A. Sure. Q. And you've done that? A. Sure. Q. Okay. And you're generally familiar with the law of supply and demand? A. Yes. Q. And if people will pay a certain price, you can charge it; if they won't, you have to lower your price? A. Correct. Q. Okay. And so if these -- if people who are offering Mr. Simpson's autograph for sale keep offering it at the same price, $60, $75, they must be getting it, right? MR. BAKER: I object. No foundation for that. THE COURT: I'll sustain the objection. Q. (BY MR. GELBLUM) You familiar with the Tuff Stuff magazine that Mr. Roesler -- A. I'm familiar -- I'm familiar with that name and I -- and I've seen maybe one edition. Q. Let me show you a couple pages from Mr. -- MR. BAKER: I object to that, Your Honor. There's no -- THE COURT: Overruled. MR. BAKER: -- indication under 721 -- THE COURT: He says he's familiar with these things. MR. BAKER: Familiarity is not the test. Q. (BY MR. GELBLUM) One page is May, 1996. You see Mr. Simpson -- and these are somebody who's selling autographs; is that right? A. Yes. Q. Okay. And one is May 1996, and that shows Mr. Simpson's autograph being offered for sale at $75? A. Yes. Q. Then the next one is February 1997, and that shows Mr. Simpson's autograph still being offered at $75? A. Yes. Q. So, assuming this person's a rational person, he must have -- must be getting that money? A. No, it doesn't mean that he's getting it; that's what somebody out there -- that's what a trade promoter is trying to get for it. Q. As I said, if you can't get it, you can lower your price? A. Well, I don't work for that promoter. I don't know what he's doing or not doing. But, you know, you just can't say that because a property's listed and at that price, that's what you're going to get. Q. You said yesterday that the video was a commercial sale failure, right? A. Well, it was a market -- I misspoke myself. It's real marketing failure. The product was fine as far as the production company's opinion; it was fine. Q. Do you consider something that generates $300,000 for Mr. Simpson in less than a year to be a commercial failure for Mr. Simpson? A. Yeah. We expected a lot more. Q. But it was over 300,000? A. Yes. I testified to that, now, twice. Q. Okay. You mentioned just -- Mr. Baker's testimony that -- or Mr. Baker questioning that the two complaints that Mr. Roesler talked about that were filed on behalf of Mr. Simpson against Mr. -- people selling his name and likeness had been dismissed? A. Yes. Q. In fact, in one of them, even when Mr. Simpson was the one who sued, Mr. Simpson ended up paying one of the people he had sued, didn't he? A. Well, it was an award for attorney fees. As the prevailing party, under a dismissal with prejudice, the other side is entitled to attorney fees under a certain code section, CC 33 -- 3344. Q. For the -- all right. To the person who wins the case, right? A. Yes. Q. Okay. A. Well, not wins the case, just is considered the prevailing parties because of the dismissal with prejudice. MR. GELBLUM: Could you get the board out, the big board. MR. FOSTER: The big one? MR. GELBLUM: Yeah, the big one. (Mr. Foster placed on the display easel, Exhibit 753, page 1.) Q. (BY MR. GELBLUM) Just a few questions about some of the items on the assets. A. Sure. Q. Balance sheet. MR. GELBLUM: Thank you, Steve. Q. (BY MR. GELBLUM) I've put up before the jury the enlargements -- the enlarged board of 753, that first page. Now, in response to Mr. Baker's questions on the first adjustment that's listed in the middle column, this $265,000 -- can you see it from where you are, sir? A. Yeah. It's got -- Q. Would you like -- A. Yeah. That's fine. Okay, I can see it. Q. All right. Now, you testified that the reason you put down one dollar was because the liability of Orenthal Productions exceeded the assets, right? A. Yes. And it had no, seemingly, income stream to pay bills. Q. Now, that was your same excuse for putting that at one dollar on the balance sheet for February 15, 1996, right? A. Same reason. Q. Okay. And February 15, '96, the amount owed by Orenthal Productions to Mr. Simpson was over a million dollars, right? A. I'd have to look at the statement. Q. Do you remember it was substantially more than a $265,000 that's listed there? Do you remember that, sir? A. I just have to see the statement, Mr. Gelblum. Q. Showing you the O.J. Simpson financial statement for February 15, 1996. A. This is -- this is Simpson's statement, and it does show a dollar. Q. Do you recall what the debt was from Orenthal Productions -- A. No, it -- Q. -- to Mr. Simpson? A. You said it was over a million dollars. I asked if I could see that statement. Q. Yes, you can. This is Orenthal Productions balance sheet from February 15, 1996. You can retake your seat, sir. A. Yes. The Orenthal Productions balance sheet as of February 15, 1996 shows a current liability due to Mr. Simpson of $1,043,091. Q. That's been reduced over the last ten months or so to by almost $800,000, correct? A. That's correct. Q. That was reduced by Orenthal Productions paying Mr. Simpson that money, correct? A. Yes, repayment of loans. Q. Okay. A. In which he then turned around and paid bills. Q. So you're putting down at one dollar on February 15 turned out not to be true, because, in fact, that money, a substantial amount, was repaid so that wasn't an accurate characterization, was it? A. Well, it all depended on the cash flow. It was our opinion in February of '96 that -- that there wouldn't be sufficient cash flow. Q. And it turned out to be over $800,000 of cash flow, right? A. Because of certain -- Q. Is that right? A. Pardon me? Q. Is that right, that it turned out to be over $800,000 of cash flow? A. Yes. Q. Okay. Now, the next adjustment is the Apollo residence, where Mr. Simpson's mother lives. That's $250,000, right? That's the value of that house, right? A. Yeah, that's the estimated market value. Q. And you carried on that -- carried that house at that value right through to February 15, 1996 financial statement, in fact, that you prepared for giving to us in this litigation, right? A. Yes. It was on -- on the February 15, 1996 statement. Q. Okay. And you've included the liability for that residence in Mr. Simpson's current net worth statement, right? A. Yes. He's the primary borrower. Q. And he can barrow more money against that today, can't he? A. Probably, not. Q. Well, it's worth $250,000, right, and there's $2,000 in mortgage against it, right? A. Right. Q. And when Mr. Simpson's mother passes away, he's going to get the house, isn't he? A. I don't know that. Q. Well, it's in his name, isn't it? A. Yes. Q. Okay. So that's really his asset, isn't it? A. No, it's not. I took -- May I explain? Q. If your -- Mr. Baker wants you to explain, he'll ask you to explain. You listed down there at the bottom here, certain accounts payable for mostly the criminal defense litigation? A. Yes. Q. And some of those fees, in fact, were not even for representation of Mr. Simpson, were they? A. I don't understand that. Q. You've included fees in there for Mr. Kardashian's lawyers and Ms. Barbieri's lawyers, haven't you, sir? A. Well -- Q. Have you not, sir? A. Yes. But Mr. Simpson accepted the responsibility of those fees. MR. GELBLUM: Nothing further, Your Honor. THE COURT: Redirect. REDIRECT EXAMINATION BY MR. BAKER: Q. Go ahead and explain about the Apollo house, Mr. Taft. A. The Apollo house is a small house in San Francisco that Mr. Simpson bought for his mother in 1969 for -- for $26,000. He took out about a $20,000 lien for it, loan for it. And because his mother didn't have the financial statement to support the loan, he had to go on the title, and he also was the responsible party for the loan. She has lived there the entire time since the property was purchased, and even some time ago, maybe ten years ago, Mr. Simpson deeded the property over to his mother. But then his mother fell ill and she was going into surgery, and she wasn't really sure whether she was going to make it through, so she deeded it back to O.J. to avoid the probate, in case she didn't make it. And he continued to carry it on his books as an asset. Although every time we talked to the banks, they know it's his mother's asset, and they know it's carried there for technical purposes only. Q. And Mr. Simpson has never claimed any beneficial interest in that house from 1969 to today? A. That's correct. Q. Now, Mr. Gelblum asked you about this $800,000 income to Orenthal Productions between February of '96 and summer of '96. Do you recall that? A. Yes. Q. Now, when money was received from CNA or from the insurance company, that money went in no small measure to Orenthal Productions, did it not? A. Yes. Q. And that money -- then some of that money flowed through to Mr. Simpson, did it not? A. That's correct. Q. That was a one-time event where he had to sell his insurance policies to get that income? A. Correct. Q. Relative to the Honeybaked Ham, some of that money went through Orenthal Productions, did it not? A. Yes. It originally came in to Pigskins, Inc., who owned the 50 percent partnership in the Cornerstone Company that owned the Honeybaked Ham stores. And from there, it was drawn down by Mr. Simpson and loaned back to Orenthal, if Orenthal didn't have the income, there was -- or cash flow, it was loaned back to Orenthal to pay bills. All of the money that's come in has gone to pay bills and taxes. Q. Now, Orenthal Productions, when it got the one-time event from CNA Insurance comprises the one-time event from Honeybaked Ham; that's true, is it not? A. Correct. That's true. Q. Mr. Simpson drew an income off the Honeybaked Ham franchise on an annualized basis? A. That's correct. Q. Of course, that's now gone, too, isn't it? A. Correct. Q. Mr. Gelblum asked you a little about those phone cards. Do you recall that? A. Yes. Q. That was a flop, wasn't it? They never sold? A. They did not. The licensee had very poor results from trying to sell the cards. Q. And lost over a couple hundred thousand dollars in that event? A. That's my understanding. Q. That's because there's no market out there for memorabilia for Mr. Simpson? A. There was no market for that card with his face and name and signature on it. Q. And Mr. Simpson has financed his lifestyle through the one-time sale of assets up to the present time? A. That's right. He's been liquidating assets since June of 1994 and incurring taxes when he did liquidate if taxes were due. And the rest of it he's been paying bills and taxes with and attorney fees. Q. Now, in the last six months, have you taken any fees from Mr. Simpson? A. Last six months? Yes. Yes, I have. Q. Okay. And how much have you -- A. I would say in the last six months, I've taken maybe 40 or $50,000. I've been paid. Q. Now, in terms of the income that Mr. Simpson has presently, does he have any income that is being generated on a regular basis that would produce anything in the neighborhood of two to three million dollars a year? A. No, he does not. Q. And you never put, ever, in the 28 years that you've been representing Mr. Simpson as his business manager, any dollar amount whatsoever for the value of his name and likeness in any balance sheet or summary of financial condition, did you? A. No. MR. BAKER: Nothing further. FURTHER REDIRECT EXAMINATION BY MR. GELBLUM: Q. You never once, on any single balance sheet you ever prepared, prior to being prepared for this litigation, put down any liability for deferred income taxes, did you? MR. BAKER: Outside the scope. A. No. THE COURT: Overruled. A. (Continuing.) Well no; no, we didn't. MR. GELBLUM: Thank you. Nothing further. FUR THER RECROSS-EXAMINATION BY MR. BAKER: Q. And the reason -- just a second, Skip -- the reason that you didn't is because you, in preparing the summary of financial condition, you weren't preparing a summary of financial condition based upon imminent liquidation; isn't that correct? A. That's correct. That's the reason. Q. And when you have liquidation of the assets, that produces taxable consequences, does it not? A. Correct. Q. And those are real consequences, in that Mr. Simpson has to pay those taxes when items such as his house or his condominium in New York or whatever is liquidated, those taxes are obligated to be paid, are they not? A. Correct. MR. BAKER: Nothing further. MR. GELBLUM: Nothing further. THE COURT: Ten-minute recess, ladies and gentlemen. Don't talk about the case. Don't form or express any opinions. (Recess.) (Jurors resume their respective seats.) MR. BAKER: Like to move into evidence 2424, the balance sheet. MR. GELBLUM: I have an objection to one of the notes on it, the description about some of the assets. I don't think it should be in front of the jury. It hasn't been in front of them yet. I prepared -- MR. BAKER: Sure it has. We talked about them with Mr. Taft. THE COURT: Statement of net worth received. (The instrument herein described was received in evidence as Defendant's Exhibit No. 2424.) MR. GELBLUM: Your Honor -- MR. BAKER: Call Marvin Goodfriend. MARVIN GOODFRIEND, was called as a witness on behalf of the Defendant, 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: Thank you. Please be seated. State and spell your name for the record. THE WITNESS: Marvin Goodfriend, M-a-r-v-i-n G-o-o-d-f-r-i-e-n-d. DIRECT EXAMINATION BY MR. BAKER: Q. Mr. Goodfriend, what is your occupation? A. I am certified public accountant. Q. Tell us your educational background. A. I'm a graduate of the University of Pennsylvania where I majored in accounting, and I received my CPA degree over 30 years ago. Q. And have you practiced accounting for the last 30 years? A. Yes. Q. And including tax accounting? A. Excuse me? Q. Including tax accounting? A. Yes. Q. And how long have you been an accountant for Mr. Simpson? A. Approximately 15 years. Q. Okay. And throughout that period of time, have you prepared financial statements for him and reviewed the financial information for Mr. Taft? A. Yes. Q. And have you prepared tax returns and that sort of thing? A. Yes. Q. All right. Now, let me ask you -- first, let me get the exhibit out of here. (Counsel displays board entitled Summary of Orenthal Simpson's Financial Condition as of December , 1996.) Q. (BY MR. BAKER) I know it's difficult to see there, so let me give you -- I think I had a copy here a minute ago. Yeah, let me give you a copy of that page so you can look at it. It will be a little more convenient for you. Here. (Mr. Baker hands document to the witness.) Q. (BY MR. BAKER) Now, to be a CPA do you have to pass an accounting exam? A. Yes. Q. Do you have to take professional courses and continuing accounting education courses? A. Yes. Q. Is it the parameter of a CPA to speculate? A. No. Q. Tell the ladies and gentlemen of the jury whether or not you believe a $25 million value of name and likeness should be included on Mr. Simpson's financial condition? A. I'm not totally qualified in that area. That has to do with generally accepted accounting principle area and I do not have any great expertise. What I do know is that placing any value on future revenue streams where there are no contracts is totally speculative. Q. Are speculative numbers supposed to be included in a financial condition or a summary of net worth? A. In my opinion, no. Q. To your knowledge, there is not one contract or one signed piece of paper that back up a present value income stream for the next 25 years of $25 million? A. Not to my knowledge. Q. All right. MR. BAKER: Now, may I see 2424 and 2413, please. (Clerk hands exhibits to counsel.) MR. BAKER: Let me give you a copy of 2413 so you can see it. (Exhibit 2413 displayed on Elmo.) MR. BAKER: It's even a little hard to see on the Elmo monitor. This was prepared by Mr. Freeman. This is 2413, I believe. Q. (BY MR. BAKER) Now, on 2424, which is the statement of net worth of Mr. Simpson on December 31, 1996, did you assist in the preparation of that document? A. Yes, I did. Q. And 2424 is Mr. Taft's and your statement of financial net worth of Mr. Simpson as of December 31, 1996? A. I didn't prepare the financial statement. I assisted in the preparation of the tax consequences. Q. And that's what I want to discuss for a moment. Now, if items of Mr. Simpson are liquidated, does that trigger any tax consequences? A. Yes, very substantial. Q. All right. Now, let's go to the vested pension plans, the 4,121,000 that is in the two combined pension plans. If that is liquidated, sir, what is the tax rate? A. If it were to be fully and immediately liquidated now, there would be a 10 percent federal premature distribution penalty, a two and a half percent State of California premature distribution penalty, totaling 12 and a half, plus federal and state income taxes of close to 50 percent. Q. And is that where the 62.50 percent comes up, that is, your estimation that he would be penalized to the tune of 62 and a half percent for liquidating any monies in the pension plan? A. That is my estimate if it were fully and immediately liquidated. Q. Now, on May Medical Associates, -- Mr. Freeman has said there's a negative basis attributable to prior partner and says that you have over-estimated the taxes by $294,000. Do you agree with that? A. No, I do not. Q. What is wrong with his computations? A. There are two things incorrect with his computation. No. 1, the negative basis in the property as of December 31, '95, was 1,938,945, not the figure that he is using of 1,685,476. In addition, for some reason he is making an incorrect assumption that only 50 percent of that belongs to Mr. Simpson. That came from Mr. Simpson's K-1 form from the partnership and it indicates his entire interest. Q. And so is there any deferred tax liability overstatement of $294,000 in your calculation, sir? A. Absolutely not. MR. BAKER: Will you move that up, please, Steve. Q. (BY MR. BAKER) Relative to the deferred tax benefit from attorney's fees, if, in fact, those are allowable expense items, there would have to be income to offset that, correct? A. Correct. Q. And do you believe there's a deferred tax benefit of $1,310,229 for the attorney fees that Mr. Simpson owes of approximately 2.9 million? A. No, I do not. Q. Why not? A. No. 1, because an assumption is being made that all of those fees are tax deductible. I believe that's an incorrect assumption. No. 2, to get a tax benefit he would have to be able to generate income. Q. And that hasn't been the case based upon your review of Mr. Taft's accounting data? A. Correct. Q. Now, when you reviewed the data on the financial condition of Mr. Simpson for 12/31/96 and figured out the taxes he would be owing, those taxes were approximately what, sir? A. On that December 31, '96 statement 4,121, 508. Q. Those would be the taxes triggered by a liquidation of assets, correct? A. Correct. Q. Those are monies that would be due and owing, those are liabilities that he would have to pay, true? A. Correct. Q. And have you noticed that on this board, that plaintiffs' seem to have left -- well, in this piece, anyway, they've left that out. MR. BAKER: I guess -- is that on the second sheet, Peter? MR. GELBLUM: Yes. MR. BAKER: Okay. Let me get the second sheet. Q. (BY MR. BAKER) Now, with the tax liability of 4,121,000, Mr. Simpson, before the judgment of 8.5 or the verdict of 8.5 million, would have a negative net worth of $856,000? A. Correct. Q. And with the payment or -- strike that. Including the verdict that was rendered by this jury on Tuesday of 8.5 million, he'd have a negative net worth of $9.3 million? A. Correct. MR. BAKER: I don't have anything further. THE COURT: Cross-examine. CROSS-EXAMINATION BY MR. GELBLUM: Q. Your analysis are information based -- information provided by Mr. Taft, correct? A. Correct. Q. Now, I think you acknowledge you're not here as an expert and you're not in fact an expert on valuing name and likeness; is that correct? A. Yes. Q. And you're not here to tell us that Mr. Simpson's name has no value, are you? A. No. Q. And you really don't know one way or the other, do you, sir, whether he has the ability to earn substantial amounts in the future? A. No. I only know what he earned in the past. Q. That's been quite substantial, right? A. In the past six months, no. Q. Prior to that? A. Quite substantial. Q. Including almost $3 million based on activities related to the murders? A. During a two and a half year period. Q. About 15 months, right, from June of '94 to the end of '95? About 18 months? A. Oh, those figures were through the end of '96? Q. No, no. A. Okay. Q. Now, on the -- MR. GELBLUM: Could you put back up the deferred -- calculation of the deferred income tax. MR. BAKER: I'm sorry. I took it. I'm sorry. I was going to give it back to the Court. Q. (BY MR. GELBLUM) On the pension plan, are you the one who decided to put down the 62 and a half percent rate? A. Yes. Q. That's based on what assumption? A. Based on an assumption of full and immediate distribution. Q. Prior to what age? A. Prior to age 59 and a half. Q. So there's a penalty if you pull it out before the retirement age; is that right? A. Yes. Q. Okay And you do know, sir -- 'cause you helped prepare the December 31, 1996 financial statement, didn't you? A. Yes. Q. And did you read the notes that were accompanying that? A. Yes, I did. Q. Did you read note 4? A. Note 4, vested interest in retirement plans. Q. I'm asking you if you read it? A. Yes, I did. Q. You read the part about the plans are not subject to execution on a judgment in this case; is that right? A. Yes. Q. So why is the money going to come out all of the sudden and be taxed at this higher rate, sir? A. Well, it would seem to me that if you're going to include the assets in the balance sheet in a net worth statement -- Q. Yes? A. -- that you must affix the ultimate taxes on that. Q. Well, you want to affix a tax that's 17 and a half percent higher than it normally would be because you're assuming it's going to get taken out right now for immediate liquidation, right? A. I was asked to prepare -- Q. Is that right? A. That's -- Q. The 62 and a half percent rate is for immediate liquidation? A. Correct. Q. Okay. And do you know of any plans Mr. Simpson has to immediately liquidate those pension plans? A. I don't know. Q. If he doesn't liquidate them they're not subject to execution in this case, and if he takes them out when he's supposed to take them out, then he will not have that higher rate, he'll have the lower rate Mr. Freeman used, right? A. He would possibly not have those penalties of 12 and a half percent. Q. Not possibly. He wouldn't have them, would he? A. Correct. Q. All right. MR. GELBLUM: Nothing further. REDIRECT EXAMINATION BY MR. BAKER: Q. Well, Mr. Goodfriend, you originally prepared a balance sheet where you didn't include the pension plans because they aren't available for execution, that 4.1 million; isn't that true? A. Correct. Q. And Mr. Gelblum wanted them included in the summary of Mr. Simpson's financial condition, didn't he? MR. GELBLUM: Objection. Your Honor ordered they be excluded. THE COURT: At your request. Overruled. Q. (BY MR. BAKER) He's the one that wanted them included, isn't he? A. To my knowledge, yes. Q. And so you were going to leave them off his financial statement because they're not subject to execution, but once you included the 4.1 million, it was an obligation of yours as a CPA, if they're going to liquidate or attempt to liquidate those assets, to tell them what the taxes are; isn't that correct. MR. GELBLUM: Objection, leading. THE COURT: Overruled. Q. (BY MR. BAKER) You can answer that, Mr. Goodfriend. A. I'm sorry. Can you please repeat the question. Q. Sure. After Mr. Gelblum wanted the 4.1 million in his pension plans, which are not executable on the judgments in this case, or any other case, included in his financial statement, you felt compelled as a CPA to put what the tax consequences would be if they were immediately liquidated; isn't that correct? A. Yes. In the preparation of a net worth statement any asset that is shown that has not yet been taxed, it's only proper to affix taxes to that asset or it would not be a net worth statement, it would be an asset statement. Q. Okay. MR. BAKER: I'm sorry, Steve, could you start on the prior page on No. 4. MR. FOSTER: There this no No. 4. MR. BAKER: There is -- THE COURT REPORTER: Which exhibit number is this, please? MR. BAKER: I think it's 2424. Yes, 2424, Gina. Now, the note under the retirement plan says these assets are Orenthal Productions Inc. Defined Benefit Pension Plan and Trust, and the Orenthal Productions, Inc. Profit Sharing Plan and Trust (hereinafter (sic) "Plans" or "Plan", whichever is applicable). You're referring to the OPA OPI Orenthal Productions Inc. Defined Benefit Pension Plan and the Orenthal Productions Inc. Profit Sharing Plan, right? A. Yes. Q. Okay. And those are the 911,000 and $3.2 million entries on Mr. Simpson's financial condition, correct? A. Yes. Q. Okay. MR. BAKER: Steve, would you be kind enough to it put it back. Q. (BY MR. BAKER) This is the note that you put down relative to those two items, correct? (Exhibit 2424 displayed on Elmo) A. This is Mr. Taft's note. Q. Okay. And that is, "Mr. Simpson is a participant in both plans. Both plans are subject to Title I of ERISA and qualified under the Internal Revenue Code. And accordingly, all participants' benefits in both plans are shielded from any and all judgment . . ." That's a U.S. Supreme Court case, right, Guidry versus Sheet Metal Workers? A. I believe so. Q. "In addition, the benefits of any participant in either plan, including payment of retirement benefits, are unavailable to and exempt from creditors pursuant California Code of Civil Procedure Section Code 704.115." That's the reason you wanted to exclude it totally from his balance sheet for purposes of this punitive aspect of the trial; is that correct? A. Yes. MR. BAKER: I don't have anything further. RECROSS-EXAMINATION BY MR. GELBLUM: Q. Are you aware that Mr. Baker made that argument to the Judge and the Judge rejected that argument and ordered it included on the balance sheet? MR. BAKER: I object. THE COURT: Objection sustained. MR. GELBLUM: Your Honor, he brought it up at my request. THE COURT: Excuse me. You can't ask him about my rulings or the basis of my rulings. Where do you get off with that? Q. (BY MR. GELBLUM) Mr. Goodfriend, you left it off initially and then Mr. Baker told you that you had to put it back on, right? A. It was left off initially, and then we were told by the Court that it had to be put back on. Q. And you are aware, sir, aren't you, that there are numerous uses that Mr. Simpson could make of those pension funds currently, prior to retirement age, where they would not pay -- where he would not have to pay the increased tax rate that you put down on this sheet? MR. BAKER: Objection, outside the scope. THE COURT: Overruled. A. I'm not aware of that. Q. (BY MR. GELBLUM) He can borrow from it, can't he? A. No, he can't. Q. He can't borrow from that? You sure? A. He had -- Yes, I'm sure. Q. He has borrowed from it in the past, right? A. Yes, once. Q. And he can use that as collateral for loans, right? A. No. Q. You're positive? A. If he were to use his pension plan or any part of it as collateral for a loan, it would become immediately taxable. If he were to take a loan from the pension plan right now, it would become immediately taxable. Q. He can and has used it for -- to list on his assets to help him get loans; you're aware of that, aren't you? A. Yes. It would be required that he list that on a balance sheet to a bank. Q. That's something that a bank looks at to determine whether's he credit worthy, right? A. Correct. Q. And I wanted to ask you one question about the attorneys' fees that you talked about with Mr. Baker on the first time around, if I may. You said that you didn't think the fees were tax deductible; is that right? A. I said they are not fully tax deductible. Q. Okay. But you are aware that Mr. Taft, with some tax attorney advice, did seek to shelter or to deduct a substantial portion of the fees? A. Yes. Q. Okay. And you also said to Mr. Baker that he can only use the tax benefit of those deductions if he has income to shelter it, right? A. Yes. Q. Okay. And by the same token, if he has losses, as Mr. Taft seemed to be suggesting he's going to be having, he's not going to pay all those taxes that you've listed, is he? A. I question that because the tax benefit would go to his corporation, because any tax deduction taken for a portion of those fees are taken on the corporation. Q. No. I'm talking about taxes that you said he's going to incur on the sale of assets. Some of those taxes, he will not have to pay if he has losses to offset against those, against the profits from the sales, right? A. Depends on the kind of losses. Q. He could? You just don't know, do you? A. I just don't know what? Q. What he's going to have in the future, what losses he's going to have, if any? A. I don't know what losses he's going to have in the future. Q. Okay. But you put down all the deferred taxes anyway just to be safe, assuming's he going to pay all those taxes? A. I don't know of any losses that he will have in the future. MR. GELBLUM: Nothing further. REDIRECT EXAMINATION BY MR. BAKER: Q. You don't speculate about future losses and you don't speculate about future income 25 years in the future, do you, sir? A. No, I do not. Q. One loan that Mr. Simpson took out on the pension plans was in 1977 before ERISA was even on the books that precluded it; isn't that true, sir? A. Actually, that loan was repaid in 1996, finally. And as a result of the fact that there was an outstanding loan in '96, he could not borrow again for another year, and the maximum amount that he would be able -- allowed to borrow one year later without tax liability would be $50,000. MR. BAKER: Thank you. Nothing further. MR. GELBLUM: Nothing. THE COURT: You may step down. MR. LEONARD: Call Mike Gilbert. MR. GELBLUM: Your Honor, we have an objection. I'd like to be heard on it. THE COURT: Approach the bench. (The following proceedings were held at the bench with reporter:) MR. GELBLUM: Beginning August up to the week before trial we demanded Mr. Gilbert's deposition. They listed him as an expert. We said, finally, on September 6, if we don't get his deposition we're going to seek to preclude him. We never got his deposition. I'm seeking to preclude him here. MR. LEONARD: This is impeachment, direct impeachment, of Mr. Roesler on facts. It's not opinion. My understanding of the rule is that we can call non-disclosed experts. But he's also being called as a fact witness. So he's not an expert. He's another business agent for Mr. Simpson with regard to his memorabilia and autograph sales and he's going to directly contravene what -- THE COURT: Why didn't you provide him for deposition? MR. BAKER: The answer to that, Judge, is we didn't think you would allow the speculative, 25 years in the future of income, because it's exceedingly, I thought, very speculative, and under your present cash value -- THE COURT: That's not very good grounds for not providing him for deposition. MR. LEONARD: Your Honor, first of all, we would rely on the section of the code which allows for using non-disclosed experts for purposes of impeachment of expert's opinion on fact alone. THE COURT: What exactly is he going to impeach? MR. LEONARD: He's going to say there's no market. And he's also a fact witness. He's going to say there's no market, he's been trying to sell memorabilia and autographs, and there's nobody out there. Simpson can't even get placed at the shows. THE COURT: Is that the very subject matter on which he was going to be deposed? MR. GELBLUM: Exactly. THE COURT: Sustained. MR. LEONARD: Your Honor, we also have two witnesses that are fact witnesses; one has a shop in Manhattan Beach, and he also attends all the shows, and he will testify -- THE COURT: A shop? MR. LEONARD: A card shop. A memorabilia shop, excuse me. He will testify that there is no market, there is none, you can't give them away. The photographs of cards and so forth, and also him, the person, who has actually attended the card shows on Mr. Simpson's behalf, his name is Bruce Fromong. He's come down from Oregon. He also has a shop in Oregon. Again, these witnesses just would testify, again direct impeachment of Mr. Roesler's testimony, that there is no market. Roesler also testified he hasn't even contacted any of the people that actually sell the material. This is direct impeachment. MR. GELBLUM: Sounds like they're going to render opinions. These are undisclosed experts. MR. LEONARD: They're -- MR. GELBLUM: These are released -- undisclosed experts for impeachment. That's the code -- MR. LEONARD: Well, that's what -- Gilbert falls in this category. THE COURT: Gilbert is a whole different ball game. You made a tactical decision not to provide him for deposition and I think you have to stand by that so I'm excluding him. The other two you may call. MR. LEONARD: Okay. (The following proceedings were held in open court in the presence of the jury.) MR. LEONARD: Call Bruce Fromong. BRUCE FROMONG, called as a witness on behalf of Defendants, 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: Would you please state and spell your name for the record. THE WITNESS: My name is Bruce Fromong, spelled F-r-o-m-o-n-g. DIRECT EXAMINATION BY MR. LEONARD: Q. Morning, Mr. Fromong. A. Morning. Q. Are you employed? A. I'm currently employed with the Department of Corrections as a material and storage supervisor at Folsom Prison. I'm also self-employed. I deal in wholesale as well as retail memorabilia across the country. Q. And when you say memorabilia, can you tell us what you're referring to, at least in general terms? A. Anything signed. Sports equipment, be it footballs, jerseys, photographs, sports cards, hats, almost anything with a signature on it can be considered memorabilia. Q. Are you the director of sales and marketing for an organization? A. Yes I am. Q. And what is that? A. Locker 32. Q. What is locker 32? A. Locker 32 is a company that primarily deals with O.J. Simpson memorabilia. Q. Do you also -- do you sell other memorabilia from other athletes and celebrities? A. Yes, I do. Q. Can you give us an example? A. Jerry Rice, Joe Montana, Jim Browne, Jim Plunkett. There's a number of different players that I have sold memorabilia for. Q. How long you been doing this? A. I've been in the memorabilia business for approximately 12 years. Q. You always involved in the retail end of the business? A. Yes, I am part owner of a sports card shop in Lincoln City, Oregon. Q. And how long you been involved in the retail end? A. Retail, approximately -- well, with the shop in Oregon, approximately six years. And before that we did what are called sports card shows. We done that two to three years before that. THE COURT: Excuse me. Reporter, you're putting out "sports (The Court reviews realtime computer screen) THE WITNESS: "Cards." THE REPORTER: Oh, thank you. Q. (BY MR. LEONARD) Now, as part of your experience and your duties both in trying -- in selling memorabilia related to Mr. Simpson, also other athletes, celebrities, do you go to the various trade shows and card shows and so forth around the country? A. Quite often. I just returned last week from Super Bowl. Q. Okay. Now -- and have you been doing that for a number of years? A. Yes, I have. Q. Are you familiar with all the large card shows and memorabilia shows? A. Yes, I am. Q. Familiar with the operator shows and -- A. Yes, I am. Q. You familiar with their operation? A. Yes. Q. How long have you been involved in the actual selling of Mr. Simpson's autographs and memorabilia? A. I've been with Locker 32 for approximately, I would say it's been five, maybe six years now. Q. Directing your attention to the last two years, can you describe how the market has been for O.J. Simpson memorabilia? A. Before this came up it was like any other athlete, you know, it was -- it was -- stuff sold. After the indictment, then it was like sharks to blood. People started buying more and more and more. And when the verdict came down -- the day before they had a verdict at the first trial, there was -- it was a frenzy. I mean my phone literally rang for 24 hours. Q. So just -- you're identifying the time period the Mr. Simpson was arrested until the verdict came down? A. Yes. Q. Are you saying there was a great demand for Mr. Simpson's memorabilia, signature, autograph and so forth? A. There was a much higher demand, yes. Q. Why was that, in your opinion? A. There was a -- people felt that under California law, if Mr. Simpson had been convicted, he would no longer be able to sign and people wanted his memorabilia, they wanted stuff to remember O.J. Simpson, the football player. Q. Describe the market since the verdict? A. The first few months after the verdict it continued pretty well. Since then it has waned down to almost nothing. In the last six months on the wholesale side I've moved less than 10 pieces. My retail shop in Oregon has sold -- in the last 15 months has sold four pieces. Q. Why is that, sir, in your opinion, based on your knowledge and experience in the market? A. A couple of things. Number one, the market has -- number one, it's become flooded. There's a lot of O.J. Simpson memorabilia out there now. And then along with that a lot of people got a bad taste in their mouth for O.J. Simpson. We've had people come into our retail shop and say how can you carry that, why would you carry that. It's real simple. It's representing O.J. Simpson, the football player. Q. Now, you have had some experience recently at -- you said you just came back from Super Bowl? A. Yes, I did. Q. How did O.J. Simpson memorabilia and articles sell there? A. It didn't. Q. Excuse me? A. It did not sell. We tried. I took out a number of different cards, helmets, and there is -- I could not find a market. With 100 some-odd tables and dealers from around the country, I could not find a single person that wanted to purchase O.J. Simpson memorabilia. Q. Now, in years gone by, you've gone to various shows. In fact, Mr. Simpson has appeared in the past at shows where the athletes showed up and signed autographs and they get a fee? A. That is correct. Q. Has Mr. Simpson been permitted to do that since he's been released from jail, sir? A. No, he has not. Q. Has he in fact been turned down? A. Numerous times. Q. Can you give us some examples? A. The very first one -- we had arranged a sports card show out in Atlantic City, and they tried to move it to New Jersey because of the media and the public. Q. You say New Jersey. As far as I know, last time I checked, Atlantic City was in New Jersey. A. Yes. They were two different places -- they tried at two different places in New Jersey to hold the show because of the media, all the publicity it was getting. The promotor received death threats. He was -- had been threatened with protests. People said they would disrupt the show. Athletes -- there were athletes at the time, from what I was told, I was not told who it was, there were athletes that said they would not appear with Mr. Simpson. And so subsequently the promotor ended up cancelling that appearance. Q. Every year there's a trophy given out for the country's best collegiate football player, the Heismann trophy? A. That is correct. Q. Is there a memorabilia show in conjunction with that? A. Yes. I just returned from New York back in December from a show out in -- that was held -- actually the show itself was held at the Meadowlands. Q. Did you have any success in selling any O.J. Simpson memorabilia? A. I attended the show for two days and was not able to sell one piece of O.J. Simpson memorabilia. Q. Now, you get -- how do you get paid? A. Strictly off of the materials that come to me, when I sell them. I'm told what Locker 32 wants. Basically, it's given to me on a pay as I -- you know, I sell it. I'm told what, you know, what the price is going to be to Locker 32. I mark it up usually 10, 15 percent and resell it. Now some of the stuff I bought outright and I sell myself. Q. So if you don't sell it, you don't make any money? A. That's correct. Q. Were you using your best efforts to sell the O.J. Simpson material, sir? A. I like money. I was trying. Q. Now, Mr. Roesler was on the stand yesterday. He was talking about -- and I think Mr. Gelblum alluded to it this morning as well -- some publications. I think one of them was Tuff Stuff. You familiar with that publication? A. Yes, I am. Q. In the publication there are listings of various prices for those cards? A. Yes. Q. Does that have any meaning at all to you, sir, as far as how much money you can actually make off selling -- A. Price guides -- Q. -- O.J. Simpson memorabilia? A. Price guides are exactly that. They are a guide. Along with Tuff Stuff you also have Beckett Magazine out of Dallas, Texas, as well as Sports Collectors Digest. They are three of the main publications of the memorabilia world. Those are not viabilities. Those are only, as they say, suggested guides. Q. Some of these guides, there's a rookie card of Mr. Simpson that's listed for what, 600 bucks? A. No, the O.J. Simpson rookie card from 1970 is currently listed for $120. I haven't checked the book in the last couple of months. $120. Q. Okay. And how much can you buy them for? A. When I was out at the Super Bowl show, there was a dealer out there that had three of them in his case. He wanted 50 bucks apiece. And when he left on Sunday, they were still in his case. Q. Okay. You know a fellow named Hessler? A. Yes, I do. He is head of National Pastime. Q. Is he in charge of any of the card shows you've gone to recently, or memorabilia shows? A. Yes, the last one that I attended of his show was the Heismann trophy show out in New Jersey. Q. Did you attempt to place Mr. Simpson there? A. We had talked to Mr. Hessler about it and he said there was no way that he would have Mr. Simpson appear. Q. Now, based on all the information you have and all your experience in selling -- attempting to sell Mr. Simpson's memorabilia, what's your opinion as to the prognosis of the likelihood of being able to sell in the future, sir? MR. GELBLUM: Objection, improper. THE COURT: Sustained. MR. LEONARD: What basis, Your Honor? MR. GELBLUM: Ask for facts; not opinions. THE COURT: You're offering him not as an expert. Q. (BY MR. LEONARD) How much O.J. Simpson memorabilia have you been able to sell in the last year, sir? A. In the last year? Q. Yeah. A. Without looking back into the books, in the last year -- like I say, the last six months, basically almost nil. Before that, like I said, right after the trial it was still going pretty good for the first few months. Then it waned down to like what I say now, basically nothing. MR. LEONARD: I don't have anything else. THE COURT: Cross-examine. CROSS-EXAMINATION BY MR. GELBLUM: Q. You have a full-time job at Folsom Prison? A. That is correct. Q. 40 hours a week? A. That is correct. Q. And -- A. Although right at the moment, I take that back, right at the present time I'm only working 20 hours a week. Q. How much -- A. I have been for six months. Q. I'm sorry. A. I have been for approximately six months, since August. Q. Okay. And how much time were you able to devote to your job with Locker 32? A. I get up early in the morning. I make a lot of phone calls to the East Coast. When I'm done in the afternoon, come home, check the answering machine and, you know, if there's calls, I make calls to the, you know, my calls to the West Coast. If there are orders for other memorabilia, because I do deal in a lot of other memorabilia, I've got packaging, shipping, make a trip over to UPS. I may spend anywhere from 10, 15 minutes a day to spending anywhere up to four, five hours a day. It depends on what's going on at the time. When I'm going to a show, I may spend an entire weekend. When I went out to Super Bowl, I took a week off. Q. Okay. Do you only deal in sports memorabilia? A. When you say sports memorabilia, you're classing that as -- Q. As opposed to political or other kinds of memorabilia? A. I have dealt limited in other memorabilia but sports memorabilia is my largest commodity. Q. You're aware, for example, that an autograph of Lee Harvey Oswald sells for twice as much as an autograph of the man he's charged with killing, John Kennedy? MR. BAKER: I object, relevance. THE COURT: Sustained. A. I can't tell you that. Q. You're aware that just because somebody is charged with some infamous crime, doesn't reduce their marketing potential, aren't you? A. At times it does. Q. At times it doesn't, right? A. Sometimes. Q. Well, you know Mike Tyson's, the value of his autograph has gone up since he was charged and convicted of rape? MR. LEONARD: Objection, relevance. THE COURT: Overruled. A. I don't know what the price -- Q. (BY MR. GELBLUM) You don't know? A. No, I'm asking you what -- you say it's gone up. Q. You're the one in the business. A. No, sir. I have seen Mike Tyson's autograph go down. Q. Okay. And -- A. I recently purchased a Mike Tyson photograph for $20. Q. If these guides that you talked about which are the guides that people in the industry use as guides, show the value of Mike Tyson has gone up, they're wrong? THE COURT: You going to ask him -- A. Very possibly. THE COURT: You going to ask him those questions, I'm going to permit redirect on the portion sustained. MR. GELBLUM: I'm asking about Mike Tyson. THE COURT: I'm telling you what my ruling is. Q. (BY MR. GELBLUM) Have you seen Mike Tyson's, the value printed in the guides has increased? A. I haven't watched Mike Tyson's autograph. Q. And the value of Pete Rose's autograph since he was incarcerated for tax evasion? A. That's fluctuated. Q. Did you see in the guides that that increased as well? A. In the guide. Q. Okay. And you are aware that the guides show Mr. Simpson's autograph as being among the top five of all living athletes, the value of the autograph? A. Of all living athletes, I don't believe of all -- in the top five you said? Q. Yes. A. Living athletes? Q. Yes, sir. A. It's possible. I would say within the top ten. Q. And would you agree with the statement that -- A. That's what the guide says. Q. -- based on your work with Mr. Simpson -- strike that. You're not saying, are you, that the sales of Mr. Simpson's memorabilia might not pick up sometime in the future when things settle down? A. Possibly the next generation. Q. Okay. years from now? A. Maybe 40. Q. You don't think it will pick up before then? A. I -- speculation. I know what it's doing now. Q. Okay. And you haven't tried to market a book for him, have you? A. No. Q. Set up any interviews for him? A. Interviews? No. Now, are you including appearances at shows? Q. No. Interviews. Not autograph signings. We talked about that. A. No. Q. Interviews, like television interviews? A. No. Q. Or tried to make any movie deals for him? A. No. Q. Or tried to sell any of his personal items -- his personal items that he owns, as opposed to memorabilia? A. There have been one or two items that I have been told about that might possibly be on the market but I have not actively tried to sell them, no. Q. What are those items? A. There was a suit that was worn the day of the verdict. Q. Okay. How much was that being offered for? A. There was no price given. Q. What else was there? A. There was a -- in fact there was a jet ski at one time. Q. Do you remember how much that was being offered for? A. There was no price mentioned. Q. It was being offered as O.J. Simpson's jet ski? A. My son was interested in buying it. Q. The suit was being offered as the suit he wore -- O.J. Simpson wore on the day of the verdict? A. That's correct. Q. And you say his products haven't been selling very well in your shop? A. No, they have not. Q. You still carry them, do you not? A. Yes, I do. MR. GELBLUM: Nothing further. MR. LEONARD: No questions. THE COURT: Step down. THE WITNESS: Thank you. MR. LEONARD: Call Larry Levine. THE COURT: Sir, would you please raise your right hand to be sworn. LARRY LEVINE, called as a witness on behalf of Defendants, 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: Please be seated. Sir, if you would please state and spell your name for the record. THE WITNESS: Larry Levine, L-e-v-i-n-e. DIRECT EXAMINATION BY MR. LEONARD: Q. Morning, Mr. Levine. A. Morning. Q. Are you employed, sir? A. I am the owner of a sports memorabilia store in Manhattan Beach called Memory Lane. Q. How long have you been involved in that business, sir? A. I've been involved in the business as a dealer for approximately 10 years and before that I've been a hobbyest and collector of sports memorabilia basically my whole life. Q. And do you get involved not only in the retail level but do you go out to the card shows and the memorabilia shows? A. Yes, I do. In addition to owning a retail store, I've been an exhibitor at probably over 500 card shows over the last ten years. Q. And based on your experience both on the retail level and also at the card shows and memorabilia shows, have you come to be knowledgeable about the market for sports memorabilia? A. Yes. I'm dealing in it every day. I'm very familiar with the market. Q. Let's cut right to the chase. What's the condition of the market for O.J. Simpson memorabilia right now, sir? A. Right now, the market for O.J. Simpson memorabilia is ice cold. Over the past year and a half, I think I've -- I may have sold one autographed photo of O.J. Simpson. Prior to that, back in '94, June of '94, when this thing happened, the O.J. Simpson memorabilia market was very, very hot. It was the hottest thing around. Prices basically doubled overnight and got to a point where it leveled off. And after -- after the verdict it just went totally dead and it's basically nonexistent at this point. Q. Do you actually display O.J. Simpson memorabilia in your store? A. We have displayed O.J. Simpson pictures at my store. However, it got to the point where I was getting more negative feedback having it in there so I had to take it down and now we just have a few pieces that we keep in the back room if anyone asks for it. MR. LEONARD: No further questions. CROSS-EXAMINATION BY MR. GELBLUM: Q. Did you offer your services to the defense today? A. Yes, I did. Q. You called them up and asked if you could testify? A. No. They actually called me. Q. Did you offer your services? A. They asked me if I would be willing to testify as far as the market value of O.J. Simpson memorabilia and I said I would. Q. When you talked about -- said in June of 1994 that this thing happened, you mean the murders of Ronald Goldman and Nicole Brown Simpson? A. Yes. Q. And you're not here to tell us that Mr. Simpson's not going to make money in the future, are you? A. I'm here to basically testify -- Q. My question is yes or no? A. Would you repeat it. Q. You're not here to tell us that Mr. Simpson's not going to make money in the future? MR. LEONARD: Objection, argumentative. THE COURT: Overruled. A. I haven't been asked that. MR. GELBLUM: Nothing further. THE COURT: You may step down. MR. LEONARD: Based on Your Honor's ruling, the defense rests. THE COURT: Mr. Gelblum? MR. GELBLUM: Nothing further. THE COURT: Both sides rest? MR. PETROCELLI: Yes. MR. KELLY: Yes, Your Honor. THE COURT: Okay. Counsel be ready to argue . . . MR. BAKER: Right now. Let's go. THE COURT: Okay. You may commence. CLOSING ARGUMENT MR. PETROCELLI: Morning, ladies and gentlemen. JURORS: Morning. MR. PETROCELLI: I'd like to take this time to thank you one final time. You've made a great sacrifice, all of you have made, to serve on this jury and the extraordinary commitment to the --and the dedication that you have demonstrated as jurors on this important case. And for that we will always be grateful. You do have one final duty to perform. You are going to have to determine how much responsibility O.J. Simpson should bear for the senseless, tragic and irreversible acts of murder he committed on June 12, 1994. Now, we all know that generally in our society when a jury like yourselves finds that a man has committed murder, killed two people, the guilty man goes to jail. Typically for the rest of his life. MR. BAKER: I object, Your Honor. Mr. Simpson hasn't been found guilty of murder. THE COURT: Overruled. MR. PETROCELLI: That, of course, as Mr. Baker just pointed out, that, of course, is not going to happen here. Mr. Simpson is a free man. Mr. Simpson is a free man. He killed two people. He's a free man. He will get to enjoy the rest of his life as a free man while his two victims lie in their graves and while their families suffer for the rest of their lives. So how is it -- how is it that O.J. Simpson will bear responsibility for the unspeakable acts that he committed. Well, we know one thing for sure. You've been in this case long enough to know one thing: He will not accept that responsibility. He has never accepted any responsibility for anything in his life. He has done everything in his power to avoid accepting responsibility for killing Ron Goldman and Nicole Brown Simpson. You saw the numbers. Look at all the millions of dollars that he spent hiring lawyers, experts, consultants, everybody under the sun, to hide and cover up his murders. And he succeeded until recently, until Tuesday. When he came into this courtroom, he took the witness stand and he turned to you, looked you straight in the eye, and lied, and lied, and lied, and lied to deceive you into rendering a false verdict. But all of you, all of you, for the first time, saw through the lies, and you saw the truth. And you rendered a true verdict. And you put responsibility on Mr. Simpson for these two murders. And when it is now time to determine the full extent of that responsibility, the last thing you will do, what does O.J. Simpson do? Well, he brought in his lawyers, Mr. Taft, his good friend. He brought in his vendors. He brought in a whole bunch of people, folks, to tell you he is broke. He's broke, and he cannot accept any more responsibility. Did he come? (Counsel indicates to table.) Where is he? MR. BAKER: I object, Your Honor. This is irrelevant and immaterial. He's not required to be here and doesn't have to be here. MR. PETROCELLI: Excuse me. MR. BAKER: Excuse me. THE COURT: Overruled. You may argue. MR. PETROCELLI: Is he here, ladies and gentlemen? Not required to be here. Required to be out on the golf course someplace. You see, he still refuses to accept responsibilities. He can't come here and face you ladies and gentlemen because you are the truth, have declared that he is a killer, and he can't face you, you, and you. He can't face the truth. And that's why he's not here, and that's why -- that's why he sent his messengers to tell you that he's broke and he'll never earn a dime again for the rest of his life. I guess he'd like to you believe that he'd be lucky to own a credit card. Well, he still has his life, doesn't he, ladies and gentlemen? He still has his life. You know, I'm not going to go through all this evidence. You've been here long enough. His people can came in here and say he's a pauper; he's got no ability to earn a dime. We're required by law to present some evidence about his financial condition. We put folks on to try to explain to you that he has money. He's gotten greater wealth than he had before and he stands to earn millions and millions of dollars for years to come. And don't be fooled by this idea that he's going to walk off into the sunset and get a job at McDonald's. We put up this board (indicating to board entitled Orenthal Simpson's Net Worth, Reported by Simpson). I should talk a little bit about Mr. Simpson's credibility and honesty, which I think is really at the bottom of what we've been listening to the last day or so. It's really coming down to who do you believe. Do you believe O.J. Simpson and guys like Mr. Taft? Before there was any problem, before there was any dispute, 12 million, 13 million, 8~million, whatever, all of a sudden, when we asked for financial records for this case, to be used against him in this case, look what happens. All of a sudden, the money's gone. It all disappears. And they've got answers for it all. It's all gone, look. When we asked for what we asked for in 1996 for this case, to show you folks so that you can make an intelligent, informed decision, gone. That's what that chart means. Where's all the money? No one knows where it is. They know. We tried to do whatever we could with the limited records they gave us. They didn't give us the real records and all the books. You heard -- MR. BAKER: Your Honor, I object. There's no evidence to that. There's no inference that we didn't give them all the records. That's -- MR. PETROCELLI: You heard Mr. Freeman -- THE COURT: Overruled. MR. PETROCELLI: -- say he cannot account for all the cash; he didn't -- doesn't know where all the cash is. You heard him. They know where it is. Let them explain it. If it's 15 million, 13 million, 8 million, whatever, but don't -- don't be fooled. Don't be fooled. Mr. Taft comes up here and tells us, you know, Mr. Simpson has no money, but I'm billing hundreds of thousands of dollars to him; my full-time job is taking care of O.J. Simpson. You've got bookkeepers; you've got computers; you've got Mr. Goodfriend working for Mr. Simpson. We've got a full-time secretary, Kathy Randa. Why does a guy with no money need all these people to take care of nothing? What are they all doing? What's this whole big financial enterprise doing if he doesn't have any money? Let me tell you what they're doing: They're waiting for your final verdict; they're waiting for these six months that the trial's going on to end. Everything dropped off the last six months. You think Simpson might be lying in the weeds? Do you think he might be maintaining a low profile, like he might be trying to show you that he doesn't have any earning capacity? Do you think Mr. Simpson is the kind of guy to do something like that? Do you think he might try to mislead you? They tell us he's made $600 in autographs in the last six months. I hope he pays his housekeeper more than $600 a month. $20,000 in mortgages; $25,000, pool man, gardeners, Taft, Goodfriend, this person, that person. Where did all this -- who pays for all this? Mr. Taft says, I've got bills -- Mr. Simpson's got bills to pay. He's got bills to pay. What do you mean, bills? What are bills? He's got to pay for his luxury; he's got to pay for his mansion; he's got to pay for his golf; he's got to pay for his trips; he's got to pay for his cars; he's got to pay for his housekeeper; he's got to pay for his beautiful lifestyle that he lives. That's what the word "bills" means. Don't be fooled. And -- and the unconscionable irony of all this, ladies and gentlemen, is that this man is making more money because he murdered two people than ever before. Just think about that. He murders two people, and within four weeks, he puts out a trademark application for cutlery. Think about that one. For knives, O.J. Simpson knives. That's the kind of man we're dealing with. Sits in jail and he writes a book called "I Want To Tell You," the idea being, I want to tell you the truth; I want to tell you that I'm innocent. Makes a million dollars on that book, which is one big lie. Then he gets out of jail and he makes a video. Can you imagine that? He hires guys with cameras and scripts and writers, and they come over to his house and they actually sit down and write down -- write out a movie they're going to put on video and sell about the evidence in the case against him, talking about the glove that had his murdered wife's blood on it, talking about blood in the house. What kind of guy is this? Makes a video, after murdering two people, about the murders and sells it for money. And his lawyer gets on the stand and he says, gee, we're disappointed we didn't make more money off that video. That video that talks about Ron Goldman's blood and Nicole's blood. Gee, we're disappointed. We should have made more money. Well, maybe in the next video, in the next book, whatever else this man's going to do, maybe they will make more money. Maybe they'll get their wish. You know, the bottom line here is, this man, wherever he is now, whatever golf course he's playing on right now, he comes home every day, pulls his car in, has dinner, talks to his friends, and goes to sleep. Has his family. He has his plans for the future. He has his life. But Nicole's life is over. My client's son's life is over. And they do not return to their homes every day. They do not get to come home and sit down at the dinner table. They do not get to return to the warm comfort of their beds at night. Because O.J. Simpson took all of this away from them forever. And he doesn't have the courage to walk into this courtroom and face you and tell you to give him a break, which is what he wants. He wants a break. Go easy on him. He doesn't have the courage to face you and ask you himself, so he asks his good lawyers and friends and colleagues. Give me a break, ladies and gentlemen. Let me make money again. Don't take it away from me. Just listen to me and believe me this one last time. I have no money and I'll never be able to make money again. Just believe me. Just trust in me. This is what he's saying to you, ladies and gentlemen, except he doesn't have the guts to get up there and tell you himself. So they send all these imposters here. Don't fall for it. It's another O.J. Simpson con. Don't fall for it. You're too smart. You are the ones who have finally stood up to this man and said no. You are the only ones who have not allowed him to escape responsibility. You know, punitive damages are things we usually see in cases when somebody cheats another person out of some of money, someone slanders another person, libels them, commits a dishonest business practice, breaks a contract in bad faith. This is where we usually see punitive damages get awarded against the person. We're not talking about lost profits, are we? We're talking about murder, double murder. We're talking about the most despicable act a human being can commit. And O.J. Simpson must be punished for that. He must be punished. He must be punished. Even though he will not come here and listen to you, you must send him a message. You must send him a message as loud as humanly possible, so that he can hear it on whatever golf course he is hiding out on right now. You send him a message with your verdict: You cannot kill two people and get away with it, no matter how much money you have, no matter how many lies you tell. You are not above the law. Make him pay, ladies and gentlemen. Don't let him dismiss away your verdict by signing a few more autographs or flashing his million-dollar smile on a few extra photographs. You are the last ones who will have the power to reach out and punish him for what he did to two innocent people. There is no one else after you. You are the only ones who can speak for the victims. You are their last resort. As I told you last week, there will never be true justice in this case. All you can do is assure some small sense of justice, some small vindication for two beautiful, wonderful, young, innocent people, who he took away from all of us. That's the only thing you can do. I know and I trust that you will do the right thing. CLOSING ARGUMENT MR. KELLY: Good morning. JURORS: Good morning. MR. KELLY: First of all, and I hope that at this point, these words don't start to ring hollow, but I just really want to thank all of you, from the bottom of my heart, from the bottom of my client's heart. What you've done is, you put in some extraordinary effort. You have suffered inconveniences, and you've had to go through some sacrifices that were attendant to the extraordinary pressures of this particular case. And now what you have is one final question. And that is, what type of punitive damages should be awarded to the estate of Ron and to the estate of Nicole. As you know, Nicole -- that there are two beneficiaries, Sydney and Justin. This would be for their benefit, held in trust until adulthood, independent of Mr. Simpson. And this will be the only time that you will have the capacity, the ability to act financially to enhance these estates. Mr. Petrocelli addressed the money issue, the financial situation of Mr. Simpson and his lifestyle. What I want to talk about a little bit is to just touch back on the reprehensibility of Mr. Simpson's conduct, the harm he caused. You already know from the evidence what Mr. Simpson did to Ron Goldman and Nicole, and you know what resulted from it. You've heard about families shattered by a phone call on June 13, 1994. You've heard of hearts broken from the loss of loved ones. You've heard of recurring nightmares that are played out nightly in homes of parents and children. And I could bring out the crime-scene photos again and the autopsy photos. But at this point, it sort of upsets my stomach to try to play upon your human sensibilities by even asking you to look at that. But I want to you remember it and I want you to think of it. What I do want you to remember is Nicole's blood flowing east down the sidewalk, and Ron's blood, these people facing east, and Mr. Simpson's bloody shoe prints heading west. Remember that Ron's death was one of extraordinary courage, while Mr. Simpson's acts were that of a consummate coward. Now, the punitive damages that you're going to award are intended to set an example, as well as punish Mr. Simpson for his acts that were so willful, so malicious, so oppressive, and in such total disregard of human life. And you have to act in such a way that no other parents will suffer the way that the Goldman's have had to suffer, the way that the Browns have had to suffer every day of their lives, or that no other children will have their mother taken away from them in the bastion of their own home, when they're upstairs sleeping, from one place that a child is supposed to feel comfort, feel safety. Your duty is to punish Mr. Simpson for his reprehensible conduct on that night. And not only punish him, but deter any morally reprehensible conduct of this sort from ever, ever happening again. And you have to make an example of Mr. Simpson. And by awarding punitive damages, exemplary damages, you're going to tell not only Mr. Simpson, but any man, that -- any man who can't quite accept the fact that a woman doesn't love him, after years of humiliation or embarrassment, or any man who contemplates a master plan of murder of concealment and creation of an alibi with a callous disregard of children sleeping upstairs, that they're not going to get away with it. And your message will have the intent and the purpose of sparing others the mistreatment and the murder that Nicole and Ron suffered that night. Now, the one thing you should keep in mind is just some very specific conduct of Mr. Simpson, and look back a little bit before that night. The fact that Nicole, in particular, was living in fear before this night, even living in fear to the extent that she even had to call a shelter. In addition to that, that she died at his hand that night. Just keep in mind that he went to the measure of calling that house that night, making sure that she was home, making sure the kids were upstairs in bed, before he headed over there: Before he headed over there in that dark sweat suit, the rubber-soled shoes, the ski cap. The gloves he donned, the gloves that Nicole brought him for Christmas, he put on his hands to butcher his wife that night. And he took that razor-sharp knife, and he hid in the pitch black, and he stalked her like prey, and he murdered her and he murdered Ron. And that's what you're going to punish him for. And the reprehensibility of this despicable conduct jolts the sensibilities of all our minds. And you have to act on that. Ron Goldman died bravely, and as a result of unfortunate circumstances. He was in the wrong place at the wrong time. But he died valiantly; he died protecting a friend; he died protecting a woman, and he died protecting a mother. And Nicole died for one reason and one reason alone: And that's because Mr. Simpson wanted her dead. He planned her murder; he executed her; and then he acted to cover up and conceal his actions. And nothing is more reprehensible than a calculated killer. And here's a man, or a charade of a man, I should say, who had the presence of mind afterwards to get rid of the murder weapon, the killing clothes. He manipulated his demeanor on his way to Chicago and upon his return. He changed his purported alibi to fit facts. As they emerged, he lied to you on the stand. And when confronted with uncontroverted facts, under oath, he accused the world of a colossal conspiracy. And utterly without remorse, he assassinated the character of witnesses. He jeopardized careers. He embarrassed ordinary citizens who just came in here to tell the truth. And he brutalized Nicole's character. He attacked her very moral fiber, when she wasn't here to defend herself, all to cheapen her life and make him look better in your eyes. This is the kinds of man he is. All in an attempt to save Orenthal James Simpson. Now, just about everything we do as citizens, we sort of do passively or incorrectly in a democracy to change things, whether it's voting, writing to elected officials. Even the people demonstrating outside this courthouse, they want to say something that is of a passive nature. But you collectively, as jurors, are a rare institution that can collectively and directly make a decision or send a message that could affect public policy or change public perceptions. And by you having the power to impose punitive damages on Mr. Simpson, the law has given you people, as representatives of the community, the authority and discretion to go beyond this case and make a community statement to your peers as to what you think of Mr. Simpson's conduct and what is necessary to prevent this from happening in the future. You people can say and set what your community standards are and what your community statement is going to be about this man. And the particular message has to be that the fame and fortune and celebrity status does not enable any man to act in the manner Mr. Simpson did; that no husband has a right to batter his wife; that no man has the right to embarrass, humiliate a woman; and that no man has the right to take a mother from her children or a son from his parents or a daughter from their parents. You just can't do it. And you people will can take the measures to do everything possible to ensure that that never happens again. I don't know if you remember my rebuttal statement a while back. I thought I'd mention this about, bring Nicole's children under her wing; let an angel protect them. But right now, Nicole's like an angel with one wing; and you, the jury, collectively, are like an angel with one wing. Only the combination of the two of you that will enable this message to fly, that will protect mothers, children, sons, daughters, and parents in the future. You have to say that you're not going to accept this conduct. And you're being asked to determine what's the appropriate amount of dollars and cents to be levied against Mr. Simpson. What type of monetary award will convert the otherwise water in this man's veins to make it boil? I don't know if it's possible. But you have to use your everyday sensibility in reaching this decision, and that's why you jurors are asked to do it. You don't need a machine to do it. You don't need a computer to do it. You don't need a calculator to do it. We need you people to do it. And to quantify the taking of a human life is no easy task. And collectively, between you, you are going to have to engage in some discourse, some logical starting point in doing that. When Mr. Baker, in his opening statement yesterday, he had the gall to mention this $250 stipulation regarding Nicole's estate, suggesting, perhaps, that that might be the appropriate amount to punish Mr. Simpson for the taking of a human life. That's roughly like a fine that might be imposed for smoking in a public place. That amount was simply a vehicle, a mechanism to get to this phase of the case. You'll hear the Judge instruct you on the reprehensibility and nature of Mr. Simpson's conduct in the cause, what we consider to be considered by you in making your determination. To quantify or put a dollar sign on anything is almost impossible to do. There's only one man who I can think of: That's the deal-maker who you've tried, to do anything like that. Five or six million dollars. That's what Mr. Simpson wanted to impose upon himself as a fine, as a punishment, by a written contract, if he ever even hit Nicole again. That is what he felt his punishment should be just for striking a woman, for striking the mother of his children. He is the one that always wanted to put a value on relationships. It's unfortunate that you people have to even think in these terms, but this man also did. "You're not going to have a fucking dime left, bitch. I've already talked to my lawyers about this." Sound familiar? June 3, 1994. That is still what Mr. Simpson would want today. What does he do? He sends in Leroy "Skip" Taft, his lawyer, to try to deliver on that deal, still. It's outrageous. And the unfortunate thing is, in Mr. Simpson's mind, as we said, in the empty chair over there, it still may all be worth it to him if he's left to play golf while these people lay in their graves. You know, Mr. Petrocelli discussed the financial aspects of this case. But unfortunately, in our society, sometimes we tend to elevate, glorify, almost deify villains. It was Mr. Baker who said that there's been no case like this in the history of the world. And by implication, there's been more -- no man more vilified than his client, which we've heard could be making him the most well-paid villain in the world down the road, too. And sure, there might be some speculation in there. That all we can ask you people to do is err on the side of safety, on the side of good. Because if he doesn't have the money to pay it down the road, he won't. But if it's there -- MR. BAKER: I object to that argument. That's contrary to law. THE COURT: Sustained. MR. KELLY: Don't let Mr. Simpson laugh at you people down the road. Don't let him mock you people, what you do with this phase of the trial, the way he did with every good witness who took the stand. Don't be swayed by pleas for compassion or sympathy. Only remember -- only remember the enormity of Mr. Simpson's conduct, nothing else. Now, probably the hardest thing to do right now is say thank you and sit down. Because, after all this time, I'm not going to have the chance to speak again. But I know one thing that's been developed during the course of this trial is belief and trust and faith that you people will do the right thing. One of God's great miracles is enabling ordinary people to do extraordinary things. And if you can deter one man from killing one woman, and deter one man from leaving a child motherless, or deter one man from taking away a son or a daughter from their parents, then you people have done something extraordinary, and you should be proud. Thank you very much. THE COURT: Ladies and gentlemen, we'll adjourn till 1:30. Don't talk about the case. Don't form or express any opinions. (At 12:00 noon, a recess was taken until 1:30 p.m. of the same day.) SANTA MONICA, CALIFORNIA; FRIDAY, FEBRUARY 7, 1997 1:41 PM DEPARTMENT NO. WEQ HON. HIROSHI FUJISAKI, JUDGE. APPEARANCES: (PER COVER PAGE) (REGINA D. CHAVEZ, OFFICIAL REPORTER) (Jurors resume their respective seats) (The following proceedings were held in open court, in the presence of the jury.) THE COURT: Mr. Baker. MR. BAKER: Thank you. CLOSING ARGUMENT MR. BAKER: Good afternoon, ladies and gentlemen. JURORS: Good afternoon. MR. BAKER: The end is in sight. We've been here since September 17th, four and a half months. Now, I will not take up a lot of your time. This afternoon you've heard a lot of oration, you've heard a lot of public speaking, and I'm not sure you want to hear a lot of what I have to say relative to this, but let me suggest to you that in a case such as this, it is incredibly easy to inflame the passions of you folks, and the folks in the audience, of anyone. You have, at the outset, promised us that you would follow the law. And you didn't hear much law from either of my two adversaries. You didn't hear much about the parameters that you're to use to decide whether or not punitives will be awarded, and if so, how much. Those were basically omitted. The Judge is going to instruct you whether punitive damages should be imposed, and, if so, the amount, therefore, is left to your sound discretion, exercised without passion and without prejudice. Reasonable deliberations. Based upon what? Based upon three items. The second item of the three items is what the testimony you've heard for the last two days is all about. The amount of punitive damages which will have a deterrent effect on defendant Simpson in light of defendant Simpson's financial condition. That is why you heard all of these numbers. The plaintiffs have the burden of showing a net worth and of proving to you that he has that net worth, so that you can use a net worth statement, and a net worth, to render an award, should you decide that you have not on Tuesday, last, rendered a large enough award. That's in your discretion. And what you have to do in that regard is to, obviously, as I suggested, to you punitive damages -- my worthy adversaries are trying to get you to substitute punitive damages for the incarceration of Mr. Simpson. You're not entitled to do that. He's already been acquitted in the criminal trial. And the reason the law says that punitive damages are to punish, as contrasted to destroy, is the same reason Mr. Kelly was arguing about. Mr. Simpson still has obligations. He still has to raise his two kids. And that's why an amount that would destroy him financially is excessive, as a matter of the law. And that's why we then talked about, with their experts and our experts, the dollar amounts. And I want to just take a minute of your time and remind you of a couple of things. (Counsel displays blow-up entitled Summary of Orenthal Simpson's Financial Condition as of December , 1996, revised as of 1/31/97.) MR. BAKER: You recall Mr. Freeman, their CPA, and I took the liberty of getting the transcript from yesterday, and he agreed that if you remove this $25 million from the balance sheet, Mr. Simpson has a negative net worth. Now, if Mr. Simpson has a negative net worth, to award punitive damages is just destruction, it's contrary to the law. And he admitted that if that number is a fallacious number, there is no wealth that Mr. Simpson has any longer. And then their other expert, Mr. Roesler, he said, "If people out there " -- (Mr. Baker read a portion of the testimony of Mark Roesler from the civil trial transcript.) Q. If people out there are trying to sell Mr. Simpson's signature on football cards, et cetera, and there's no market, you would agree that if that's the case, your opinions relative to this 50 million, 25 million, or whatever million dollars, is flawed, correct? A. I think that's correct. MR. BAKER: That's what he admitted. That's what Mr. Roesler said. He said it is correct. That if there isn't a market, to put $25 million is pure, abject speculation. Now, let's take a look at it. Mr. Simpson has not one contract. Nothing. He doesn't have anything that is going to produce $50,000, $100,000, whatever the number. He doesn't have it. There is no contract. There is nothing. And yet, to listen to what they're -- I mean think of it. Only in a court of law, it seems to me, can you come in and say this man can earn 2 to 3 million dollars a year. Now, consider just that spread. Consider Mr. Roesler's testimony relative to spreads. He said his commercial endorsement value is virtually zero. That's what he testified to the Indianapolis Star before he was retained. Then he testified to you here in this courtroom, he said well, virtually -- virtually zero is 100 to 500,000 a year. Man, if that's virtually zero, I'm somebody's aunt. That's an incredible thing to say. So I think you can see that relative to the earning potential of Mr. Simpson, it is not there. This is made out of whole cloth. This is a man who doesn't market him, wouldn't market him, saying to you that he can do this. I can read a cook book, but I'm not a chef. I can tell you how to make a souffle, but I couldn't make one. That's what's going on here. And it's wrong. It is not appropriate in this -- this is a court of law. You are obligated to follow that law. And the law is you can not base your verdict on speculation. And this is total speculation. One more thing that I think is of significance. Mr. Petrocelli gets up and he accuses us of hiding assets, of being less than candid with you, of spending money, or shipping it someplace, or saying where did it go, where did it go? And he knows, as he sits there and as he talked to you, that they did not ask us to produce one piece of paper about disbursements. They wanted to know all the revenue. They didn't get the disbursements. Then they want to come and tell you, we hid assets. Now, if you wanted to find out if we hid assets, or moved, or anything, wouldn't you want the disbursement records of Mr. Simpson? Or would you say to yourself, I don't want the disbursement records because then I can't argue that he has done anything with the money? They had the right to get those. Everything -- every record the Court asked us and ordered us to produce was produced. There were documents upon documents that were produced even in the last week by Mr. Taft. There hasn't been one iota of evidence, not a shred, put before you that Mr. Simpson has tried to do anything with his assets. Do you think, ladies and gentlemen, for one second, just for a New York minute, if you will, that if Mr. Simpson were going to try to hide assets, he wouldn't protect his mother? You think if for one second he was going to move anything, he wouldn't have when they filed this lawsuit against him. Deeded the house over, quit claimed it to his mother. So that they can't now say that's your $250,000, and we want it. You think that -- I mean, of course not. Hasn't moved a cent. Has gone on living, that's true. And let's look at these numbers. I mean, Mr. Freeman gets up here and basically says, well, these are the numbers, I don't know if I can trust them, these are the numbers that we got, they are indeed the numbers we got and these are my adjustments and these adjustments are, well, they're a little speculative but I think they ought to be included. Well, CPA's don't include speculation. And this is total speculation and this is speculative whether or not Mr. Simpson survives. And those items don't belong in the balance sheet. They produce a negative net worth of Mr. Simpson. (Counsel displays blow up entitled Summary of Orenthal James Simpson's Financial Condition as of December 31, 1996. Page 2.) What you're to decide is the punitive damages award today. Today. Monday. Whenever you make your decision. Not 25 years in the future. Not 2022. God knows where we'll all be in the year 2022. God knows whether Mr. Simpson will be alive, and the ages of his children and whatever, we don't know that. That's what they're asking you to do, is to speculate that this -- and can you imagine, can you imagine an income stream of 2 to 3 million a year guaranteed through the rest of your life. Holy moly. That would be wonderful. That would be terrific. But it doesn't exist for Mr. Simpson. And that's why we put on the people who actually market the memorabilia. Because Mr. Roesler even had to admit that if you can't market this stuff, that $25 million number is flawed. His opinions are flawed if you can't market it. There is no market for Mr. Simpson's memorabilia. It has been blackballed. There has been demonstrations. They block lines on calls. That is the real world that exists out there, and that precludes him from making a living. Making a living that was greater than he ever made before, is what they're telling you. And in his glory days he never made that, but they're telling you he can do that now. It is total conjecture. You didn't hear much about it from either of my adversaries because they don't want to deal with that. I just want to show you their views. I mean, I think it was pretty -- Mr. Freeman didn't have any problem inserting $25 million in his adjustments when he came to an adjusted net worth of 15, seven. And although the whole world is well aware of your verdict on Tuesday, he wouldn't reduce it by that. He wouldn't take the 8 and a half off to come to 7.2 because he doesn't want it on the chart or anything else a number of 7.2 million that you, under the law, cannot award in punitive damages because if that -- even if you believe all of this 2 to 3 million a year for 25 years, you couldn't award 7.2 because that would be excessive, that would be the destruction of Mr. Simpson, that would not be in accordance with the law. And it's to deter, not to destroy. MR. PETROCELLI: Object to what he stating the law, he's not stating the law. That's the Court's responsibility. THE COURT: You may argue as to destruction or nondestruction. MR. BAKER: And so that's why he wouldn't put up 7.2. And then Mr. Petrocelli says that we have altered the books, cooked the books or something because of the diminution of assets at the time we were required to produce documents. And of course you know the reason. The reason is because on liquidation of assets, you have to pay taxes. Taxes are figured in. Mr. Simpson has had all of the taxes that go with the house, that go with the distribution and liquidation of all of his assets, and his assets go down to basically nothing. He has been living -- and when he got the $3 million that he got from the insurance policies, that he got from the sale of the only asset that produced an income for him, the Honeybaked Hams, those had to go to pay bills and they went to pay bills and that money is gone. You see how much Mr. Simpson has or had. In $6,849. And so now they're asking you to award millions upon millions. Based upon what, ladies and gentlemen? Based upon what? Based on passion. Based on the inflammatory nature of the facts of this litigation. And they are inflammatory, and I agree with that. But you have to follow the law. You promised you will follow the law, and the law is that you cannot have an award that is excessive in light of his ability to pay. What is his ability to pay? His ability to pay is negative. And so in light of all of that, they're asking you on top of the 8.5 million you already awarded to award whatever more. And the law is, as I suggested, in light of his financial condition, to deter but not to destroy. And so even under their numbers, even under their numbers, ladies and gentlemen, the 7.2 would have to be significantly reduced if in fact you believed that Mr. Simpson would earn 2 to $3 million per year for the next 25 years. And if you don't, then the award is -- basically you've done it on Tuesday. Because even by their own experts he has a negative net worth. And you can't then punish him for an act that would financially be destructive. And so, ladies and gentlemen, with the emotion aside, your decision is to determine whether or not you believe that in spite of the people that try to market Mr. Simpson's memorabilia and say there isn't one, that Mr. Roesler, who says there's a market of 2 to $3 million a year, is correct, or are those people that actually market correct. You make that determination. You make the determination as to whether or not you believe that this $25 million ought to be included to produce a present net worth of 7.2. If you believe it ought not, as I think you must believe, then, ladies and gentlemen, you have done your job and Mr. Simpson has been punished by the $8.5 million award of Tuesday. Thank you very much. MR. PETROCELLI: Ladies and gentlemen, the judge will instruct you on the law and you will be given a jury instruction that will tell you that in determining whether to exercise your discretion to award punitive damages, you should consider not just the defendant's financial condition, as Mr. Baker was suggesting, but three separate elements. The other two he doesn't like to talk about, and they are the reprehensibility of the conduct of the defendant and relationship between the damages and the harm suffered. Here, ladies and gentlemen, the reprehensibility of the conduct of the defendant is murder. There isn't anything more reprehensible. In fact, it's double murder. And you are required to consider that, as the law will be read to you by the Judge, and you will be given a jury instruction: The damages must bear reasonable relationship to the harm suffered. The harm suffered is death. MR. BAKER: I apologize. I think that is not rebuttal from anything I said, Your Honor. THE COURT: Overruled. MR. PETROCELLI: The harm suffered is death. Two deaths. These are the factors that you have to take into account. All Mr. Baker is saying to you is, give his client a break. Give him a break. And his client didn't have the guts to come in here and ask himself. But he would like to you believe that he doesn't have the ability to earn a dime for the rest of his life, yet he lives in a mansion and drives a Bentley and has servants, and has an army of professionals to look after his estate and his fortune. And yet, he wants you to all go into that jury room and believe that he is absolutely flat broke. And the defendant was smart enough to know that he couldn't sell that to you, so he asked others to do so on his behalf. And I'll just leave it to your good judgment whether you believe that for one second, whether you're going to believe for one second he has no money, no ability to earn money. And you heard the experts that we put on, and they told you that when you add up this man's value -- and his greatest value is in his earning capacity, 15, 16 million, whatever it is, today's dollars, today's dollars -- we heard some testimony today or yesterday that he didn't make more than $600 the last six months in autographs or $30,000 in income. Yet, we see on a bank deposit, $70,000 show up. No explanation for that. We're not going to get into all the details. Let me just remind you what I said to you earlier today: You are the last ones. It stops here. You are the last ones who have the power to protect the victims. You have the power to punish Mr. Simpson for killing two people and walking away from it scot-free. I leave it to you to decide what is just. MR. KELLY: Just one thing, Your Honor. I told you I wasn't getting up again. I am for just one thing. There was just one line that Mr. Baker said to you people; that was, that Mr. Simpson still has two kids to raise. And I just want to remind you, you have heard of lawyers being paid, accountants being paid, bodyguards being paid, pool people being paid, landscapers being paid, personal services people being paid. You didn't hear anything about kids' expenses. The children will be fine. This is a man who remains at Rockingham, and two wives and four children have come and gone. There's no assurance of personal protection in a financial sense for these children for the future beyond you people. Keep that in mind. I'm asking you to remember that. Thank you. THE COURT: Ladies and gentlemen, you must now determine whether you should award punitive damages against defendant Simpson for the sake of example and by way of punishment, whether punitive damages should be imposed; and if so, the amount there is left to your sound discretion to exercise, without passion or prejudice. If you determine that punitive damages should be assessed against the defendant Simpson, in arriving at that amount of such award, you must consider one, the reprehensibility of defendant Simpson's conduct; Two, the amount of punitive damage which will have a deterrent effect on defendant Simpson and in the light of defendant Simpson's financial condition; Three, that the punitive damages must bear a reasonable relationship, a reasonable relationship to the injury, harm or damage actually suffered by Ronald Goldman or Nicole Brown Simpson. You have heretofore returned your verdict on the issue of liability and compensatory damages in favor of the plaintiffs against the defendant. Now, you shall retire and deliberate on the issue of punitive damages. The foreperson previously selected may preside over your deliberations, or you may elect to choose a new foreperson. Your deliberations on the issue of punitive damages shall be governed by the same instructions previously given to you, so far as they are applicable, as well as by the instructions on punitive damages. As soon as nine or more jurors have agreed upon a verdict on the issue of punitive damages, have it signed and dated by your foreperson by number and not by name, and then return with it to this room. Okay. The bailiff has previously been sworn to take charge the jury. You may take charge of the jury. THE BAILIFF: Thank you, Your Honor. Will deliberating jurors, if you'll get your notebooks and personal property, we'll retire to the jury deliberation room. Our alternates, give me your notebooks. Thank you. And Deputy Shaw will take you downstairs to your jury room. (Twelve jurors exited to the jury deliberation room.). (Alternate jurors retired to a separate jury room.) (The following proceedings were held in open court, outside the presence of the jury.) THE COURT: The jury has left the courtroom. The attorneys are ordered to be here in court on one-hour call. I don't want a repeat of the last verdict call, Mr. Kelly. MR. KELLY: My clients are remaining here. THE COURT: I'm not concerned about your clients; I'm concerned about counsel being here. MR. KELLY: I will certainly be here, Your Honor. THE COURT: And the Court has not taken any action with regards to your failure to abide by the Court's previous order. And I shan't go through that again. MR. KELLY: Yes, Your Honor. THE COURT: Okay. Thank you. (At 3:40 a recess was taken) (Twelve sworn jurors resume their respective seats.) (The following proceedings were held in open court, outside the presence of counsel and the alternate jurors.) THE COURT: Okay. Ladies and gentlemen, we're going to adjourn for the evening and have you come back Monday at 8:30. Remember where you are in this case, don't jeopardize the distance you've come. Don't talk about the case, don't read anything, don't watch anything on TV, don't let anybody try to get next to you and talk about the case. Don't read any newspapers. Okay. You've done a good job in concentrating your efforts and keeping yourself from being affected by outside influences. Stay that way. I almost hate to let you go home since it's a weekend. That's two days without supervision but I am trusting you to obey the Court's orders in that regard. Okay. So thank you very much. We'll see you Monday at 8:30. JUROR: Thank you. (At 4:32 P.M. an adjournment was taken until Monday, February 10, 1997 at 8:30 A.M.) |