Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted; also present, Jeffrey C. Eglash and Beverly Reid O'Connell, assistant United States Attorneys; Stephen C. Robinson and Luis Flores, deputy general counsel, Federal Bureau of Investigation; Stephen M. Kohn, Esquire, appearing on behalf of S.S.A. Frederic Whitehurst.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Neufeld, Mr. Scheck. The People are represented by Miss Clark, Mr. Hodgman and Mr. Kelberg. The jury is not present. The record should reflect that earlier this morning the court had a brief chambers conference with counsel off the record as the court wanted to determine the course of our proceedings today. I understand Mr. Shapiro is going to be offering the testimony of Detective Vannatter and I understand that the Prosecution is going to resist calling Detective Vannatter; is that correct?

MR. KELBERG: That is correct, your Honor.

THE COURT: All right. I will hear the proffer from Mr. Shapiro. Good morning, counsel.

MR. SHAPIRO: Good morning, your Honor, and thank you very much. Your Honor, we asked the court to allow us to recall Deputy Philip Vannatter based on newly discovered--

THE COURT: Detective.

MR. SHAPIRO: Detective Philip Vannatter, based on newly discovered evidence that was provided to us last Friday by Mr. Hodgman of the District Attorney's office in chambers with your Honor. And that basic information concerns statements that are attributed to Deputy Vannatter made in the presence of at least three people who say they heard the statements and two other people who were present who may or may not have heard those statements. And those statements were made in January and February of this year. The first statement concerns a conversation that took place with Detective Vannatter, Detective Lange, Deputy District Attorney Davidson, Larry Fiato and Craig Fiato. They were meeting in a hotel room going over testimony for presentation on behalf of the witnesses for the District Attorney in a homicide case known as the Christi case.

THE COURT: What is the present status of the Christi case?

MR. SHAPIRO: You are going to have to inquire of the District Attorney, your Honor.

MR. KELBERG: I'm sorry, your Honor?

THE COURT: What is the present status of the Christi case?

MR. KELBERG: The last I heard the case is nearing completion. In fact, I believe they resumed on Friday in Judge--it is in Judge Flynn's court.

MS. CLARK: Actually--

(Discussion held off the record between the Deputy District Attorneys.)

MS. CLARK: Let me put it all in context, your Honor. There were two defendants who were convicted last February, not last February, February of this year, I believe, and then one Defendant set for retrial who has just completed the retrial in Judge Flynn's court, almost completed the retrial. I think it is still in litigation.

THE COURT: All right. Thank you.

MR. SHAPIRO: A conversation allegedly took place in a hotel room where Detective Vannatter was allegedly quoted as saying, by Mr. Larry Fiato, that regarding the O.J. Simpson case "We went over to Rockingham because he was a suspect. The husband is always a suspect." He was interviewed, upon getting that information, in the last week or two, by Mr. Hodgman and Mr. Kelberg, and he made those statements to these members of the District Attorney's office in a tape-recorded interview. He then--

THE COURT: You are saying that Mr. Larry Fiato confirmed the report of that statement having been made back in January or February?

MR. SHAPIRO: Correct.

THE COURT: Okay.

MR. SHAPIRO: He also said that at a later time, perhaps in February of that year, he was having a cigarette on the 18th floor in an area known as the smoking area, with Detective Vannatter, and at that time Detective Vannatter repeated the same phrase, that O.J. was a suspect and the husband is always a suspect. A--two other people came out during that conversation. One was Craig Fiato who confirms that he heard Detective Vannatter say those words, and the second is Special Agent Wacks from the Federal Bureau of Investigation. They were also interviewed by Mr. Hodgman and by Mr. Kelberg. And in their interviews Mr. Fiato, Mr. Craig Fiato, indicated that he had overheard that conversation and those words come from Detective Vannatter and Agent Wacks. Also says he heard those things come from Detective Vannatter. Finally, the investigator on the homicide case, on the second homicide case, is investigator McLean and he was interviewed and he says that he had a conversation with Special Agent Wacks regarding this same issue. And apparently how this came to the attention of the District Attorney was that Mr. Craig Fiato was working on a special case involving organized crime with a network investigative journalist for ABC and just the next day after he had the conversation a story came out that the Defense was going to call a mystery witness. At that time he thought he was going to be that mystery witness, so he called up the FBI agent who is his handler, who works with him, Agent Wacks, and told him about it. Agent Wacks then reported that to his supervisor and eventually it was reported to the District Attorneys who met in chambers with your Honor outside of our presence, went ahead and did their investigation and have turned over all of that material to us. So the essence of this testimony is that your Honor has already made a finding regarding the credibility of Detective Vannatter on a search warrant that he signed under penalty of perjury, and in that case your Honor has found that Detective Vannatter demonstrated a reckless disregard for the truth in offering testimony under oath for the purpose of securing a search warrant. The jury, however, has not heard nor will they hear that testimony, but the jury is going to have to Judge the credibility and bias of Detective Vannatter, and in--

(Discussion held off the record between Defense counsel.)

MR. SHAPIRO: And in that endeavor the jury now is entitled to know whether or not Detective Vannatter was untruthful to this jury when he said the purpose for going over to the Rockingham estate was to make a notification to Mr. O.J. Simpson and because of the welfare and well-being of the children, that he was a concerned grandfather and he was concerned for the children of O.J. Simpson. We have always questioned that motive, we have questioned it throughout in all of our motions, and he testified before the jury on three direct occasions to questions by the Deputy District Attorney who was questioning him at that time that O.J. Simpson was not a suspect. We have specific quotes that I have given to your Honor. Three specific questions in a row. Are you saying he was not a suspect? Are you sure he was not a suspect? Did you not go there because he was a suspect? Is that correct? I followed up on that line of questioning on cross-examination and asked him that question four times and finally I asked him, "It sounds like you've memorized this answer." So there was no equivocation whatsoever. Further, as an offer of proof, we have Detective Vannatter's testimony before the grand jury under oath in this case, and that testimony was that the reason they went over was because they wanted to make a notification--let's see if I can get--on page 326 of the grand jury testimony. Detective Vannatter testified under oath: "The purpose was to make a death notification and to arrange for the children." And then at the preliminary hearing Detective Vannatter was again asked those questions by Miss Clark and myself. He responded: "We went to O.J.'s to check on his welfare, the next of kin to the children." He goes on to say: "If he was a suspect it could have been a tactical situation, we would have placed officers around the residence to secure this, to secure it, and they obviously didn't, the purpose was to make a death notification and arrange for the children."

THE COURT: All right. Mr. Shapiro, the problem being you are making--you are quoting from various transcripts. I think just for the record purposes you need to identify--

MR. SHAPIRO: Yes.

THE COURT: What page you are referring to?

MR. SHAPIRO: From the grand jury page 326 was the first statement, "The purpose was to make a death notification and arrange for the children." From the preliminary hearing, volume 8, page 35 and 36, they went to O.J.'s residence to check on his welfare. Page 104, about the next of kin to the children. And in volume 9, page 14 and 15, Detective Vannatter talks about that if the suspect--if he was a suspect it would have been a tactical situation and therefore he would have placed officers around the residence to secure it. He didn't do that. Now, to put it in terms of its legal significance, the conversation with Mr. Larry Fiato, the two conversations with Mr. Larry Fiato took place prior to the time that Detective Vannatter testified before this jury and testified in direct contradiction to those statements. So it is a prior inconsistent--prior inconsistent statement that Detective Vannatter is making. The second area that we would like to examine Detective Vannatter on is the code of silence, and this becomes particularly important for several reasons.

First, that in presenting the evidence that I've just talked about to your Honor, both Larry and Craig Fiato talk about the fact that this is going to be discoverable and there is no reason to make a big deal of this and let's just keep it quiet and why is the FBI so worried about it? And if they don't say anything, nothing will happen. But if they do, it is going to become very, very significant. I want to--then Detective Vannatter, on at least three occasions, has talked to witnesses that we have retained that are witnesses who are employed by government agencies and who generally testify for the Prosecution. And we would offer, as an offer of proof, that Mr. Larry Ragle would testify that Detective Vannatter came up to him and criticized him for testifying for the Defense, saying, "You are a cop and cops stick with cops." He gave that same type of view to Dr. Baden and Dr. Wolf, that they were employees of government agencies and how could they come testify against the police in a criminal homicide case. That is the second area we would like to get into. The third area is an area of clarification regarding the finding of the brown glove in the Rockingham residence and that is just a clarification of earlier testimony.

THE COURT: That is the one that was on the--

MR. SHAPIRO: On the table.

THE COURT: Table.

MR. SHAPIRO: Table in the family room.

THE COURT: Right. Okay.

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. SHAPIRO: Thank you very much, your Honor.

THE COURT: All right. Thank you, Mr. Shapiro. Mr. Kelberg, good morning, sir.

MR. KELBERG: Thank you, your Honor. Mr. Shapiro has the facts somewhat wrong and certainly has the interpretation quite extremely erroneous. No. 1, the circumstances from the Fiatos perspective is as follows: And I'm going to quote Craig Fiato who I think would be accurately characterized as somewhat of a salty figure, so pardon the language. "This is all a bunch of bullshit. What he would talk to this court about is Vannatter was there at the hotel, but Vannatter was not a part of the Christi investigation because Lange had a different partner for the Christi investigation. Vannatter just came along." At some point these guys are just, again to use Craig Fiato's term, just bullshitting, just shooting the breeze, and some statement is made by Vannatter to the effect of Simpson being a suspect, the husband is always a suspect. And it was a nothing statement, it was said in the course of a bunch of guys, quote, "Bullshitting," unquote, like Phil Vannatter is going to lay out the Prosecution's case on O.J. Simpson to Craig and Larry Fiato who are, quote, "Mafioso" type people who have turned government witnesses. Okay. That is the context in which this statement initially is supposedly said. The statement is allegedly said to Larry Fiato and overheard by Craig Fiato. It was of such great significance Mr. Davidson has no recollection of it and Mr. Vannatter says I wouldn't say something like that to the Fiatos, but if I talked in any sense, it could be talking in general terms about homicide investigations or could be talking about, as the court is well aware, allegations have been made against the police throughout this case by the Defense, that the Los Angeles Police Department has done a conspiratorial act to convict an innocent man, and so in response to some kind of comment for Vannatter to say sarcastically, you know, something like, yeah, sure, we went up there, Simpson was a suspect, the husband is always a suspect. The context is not that Vannatter made a statement saying we went up there, Simpson was a suspect. That is not the way it will come out if the court hears from the Fiatos. No. 2 statement on the smoking deck, and it is because as the court is well aware, the rule in the criminal courts building, people who wish to smoke have to do so outside the interior walls of the building and there are areas exposed to the outside where they can go I believe on the 18th floor. The Fiatos are here in February as witnesses in the retrial that Miss Clark correctly identified as the retrial of I think the remaining Defendant from the first trial. And in the course of a smoke break with Larry Fiato out on the smoking area--Craig Fiato is not present for this conversation. He is not a percipient witness to this--Agent Wacks comes into the middle of something and all he hears is a statement from Vannatter to the effect of "We didn't go up there trying to save lives. We went up there because Simpson was a suspect." Now, in our interview, I participated in one interview with Mr. Hodgman of Agent Wacks and there was an earlier interview, I was not a party to it, and I wanted to have a personal opportunity to speak with Agent Wacks and that is why there was a reinterview. Agent Wacks said Vannatter was sarcastic in his tone and perfectly consistent with someone who is saying, yeah, you know, they are accusing us of all these things, sure we went up there not to save lives, sure we went up there because Simpson was a suspect, and these accusations have been made against Vannatter. Now, when you put all of this in context and you remember the immortal words of Craig Fiato to Mr. Hodgman and me at the conclusion of our interview, that everybody was making, again the language of Craig Fiato, a fuckin' big deal out of stuff that was bullshit, what he was pissed off about, his term, was that he made a call--

THE COURT: I'm glad you qualified that.

MR. KELBERG: Thank you. My mother might be watching this so I would like to make at least a decent impression. He called--this is nine months later--he called this man Vic Walters at ABC who apparently is working with him on some possible deal, book, movie, I'm not clear, unrelated to Simpson. It has nothing to do with it. And Mr. Fiato is a little ticked off with Detectives Lange and Vannatter because of what he believes to be comments they made to another person about whether that person should be associating with Craig Fiato. So Mr. Craig Fiato tells Mr. Walters allegedly what Vannatter said and then what he does is he tells Agent Wacks, who is picking these guys up to take them wherever they are going, that he talked to this guy Walters, and Agent Wacks goes--not berserk--that is not an accurate characterization, but he had a definite reaction. And the reason Wacks has told us for this reaction is because after watching this trial and seeing the media coverage and seeing the spins that are put on things and the way that things are taken out of context that are nothing, he was worried that that is exactly what would happen here, exactly what Craig Fiato was concerned about when he told us that this was all a bunch of B.S. that was being taken way out of context from what it was. But Agent Wacks, no code of silence. He reported it to his supervisor, and out of an abundance of caution it was reported to our office. They are not sitting on information.

People want to characterize this as Brady material. Hey, that is for the D.A., the Defense and the court to worry about in Simpson; not our problem. We are turning it over. Let them deal with it. And that is when Mr. Hodgman alerted the court. That is when I was asked with Mr. Hodgman to participate in investigating these materials. We have turned over what we have acquired and what you get down to as a bottom line is the context in which any of these statements was made is certainly not one of seriousness. It is not conveyed as seriousness by the Fiatos. It is not remembered by the participants because it was not a significant statement. If the Fiatos wanted to make something of the O.J. Simpson case, as Craig Fiato said, they could have done a lot better job than just to make this statement, and they are the ones who are saying this is a bunch of b S. We are going to have a trial as to what in fact was said, and more importantly, even if a statement or statements were said, what was the context and meaning? Now with that, if I may have just a moment of silence--a moment to--not a moment of silence. I may need that, too.

(Discussion held off the record between the Deputy District Attorneys.)

MR. KELBERG: Just so it is clear, Mr. Hodgman suggests I point out the original trial with multiple defendants in the Christi case was in February. There was one Defendant on which the jury could not reach a conclusion. That is the retrial in Judge Flynn's court going on right about now. And that is why the Fiatos were out here being picked up by Agent Wacks, where this statement is ultimately heard, because everybody on the 18th floor from all these cases have to wander in some common areas and that is how it was heard. Incidentally, I have to also point out, Craig Fiato would say that he deliberately embellished on what had actually occurred as he is telling this to Wacks to, quote, "Pimp him," unquote, and that at the end of all this Agent Wacks says, "You prick." That is the context of all this, your Honor. Now, how about a little bit of the law before I talk about the code of silence? This is nothing about the code of silence. Let me turn it around. This is nothing about the code of silence. The FBI came forward with information because what Agent Wacks heard initially, with no context provided, but in the sarcasm in which it was said, was obviously nothing of significance to him. That is what he has told us and that is what the evidence would support. And what he then did, when he heard, oh, the media may get this, the media may put a spin on this, is he did report it, so that at least in a bureaucracy of which the court is aware I'm sure the Federal Bureau of Investigation is, our office is and so forth, the supervisors want to know these things, because the last thing they want to do is turn on their TV set at the six o'clock news and hear some story about what one of their employees allegedly heard or said and has become a witness in the, quote, "Case of the century," or it was reported and turned over. There is no code of silence. This is completely irrelevant to establish any aspect of the so-called code of silence. Now, with respect to the law, the simplest case to read, I think the court is well aware of it, is People versus Lavergne, Lavergne, 4 Cal.3D 735, starting at page 742. Just factually, you have a bunch of Defendants who are charged with robberies. One of the Defendants gets a deal and is going to testify at the trial of the others. The first question on cross-examination of the--

THE COURT: About the stolen car?

MR. KELBERG: Exactly.

THE COURT: All right.

MR. KELBERG: So the court knows the fact. The law from page 742, the Defense sought to impeach Oliver, the accomplice, on what the trial Judge correctly noted was a collateral matter. "The fact that the car was stolen had nothing to do with the facts at issue in the trial," et cetera, et cetera. "While collateral matters are admissible for impeachment purposes, the collateral character"--

THE COURT: What page are you referring to?

MR. KELBERG: I'm sorry?

THE COURT: What page are you testifying to?

MR. KELBERG: 742, your Honor. "While the"--"While collateral matters are admissible for impeachment purposes, the collateral character of the evidence reduces its probative value and increases the possibility that it may prejudice or confuse the jury." Flipping to page 743: "California courts have in cases similar to this one held the court's exclusion of collateral facts offered for impeachment purposes are a proper exercise of the trial Judge's discretion." And in fact they going to say on page 743 how it appeared that the Defense in the Lavergne case on cross-examination purposely elicited the testimony for the very purposes of impeaching the witness with this collateral information and that that was not appropriate to do in order to allow the impeachment to come in as collateral matter.

THE COURT: But that is not the circumstance of our case, is it?

MR. KELBERG: No, that is not the circumstance. I just wanted to point out how the court, the Supreme Court has gone to even point out that one cannot deliberately try and create the situation and then argue that now that the situation is there, the party should be allowed to impeach.

THE COURT: But let me ask you this, Mr. Kelberg: The justification for the probable cause to conduct a warrantless search is a pretty significant determination that has to be made, although albeit not in front of the jury.

MR. KELBERG: That is the interesting point. I wasn't down here to conduct the examination of Detective Vannatter. I must also say, from my perspective, I would have objected as irrelevant. As the court is well aware, that you have just stated that issues going to search and seizure are irrelevant for the jury's consideration.

THE COURT: But the initial examination elicited on direct examination giving an explanation for going up to Rockingham was elicited by the Prosecution.

MR. KELBERG: And I understand that and that is why I cite the Lavergne case. I don't think that Miss Clark or Mr. Darden, whoever did the examination, elicited that with the expectation that nine months later we would be down here with the Fiato brothers and everybody talking about it.

THE COURT: I would say that is a safe assumption.

MR. KELBERG: But the point is, your Honor, in deciding whether it is a collateral matter or not, the fact that was brought out, but--is not what I think is controlling. What is controlling is its relevancy to the issues before the jury. It is not relevant. The issues are relevant if at all on search and seizure issues. This does not go to code of silence. This does not go to impeach Detective Vannatter on any relevant point. And the important thing is the circumstances of this statement, the clarity of what was actually said is going to be in dispute. It is not clear, from everybody's account, what actually was said. The only thing that is clear from everybody's account is that this was not a serious conversation, this was a bunch of guys at the hotel B.S.'ing and the statement on the smoking deck was nothing more than B.S. and Wacks' interpretation, a statement said in sarcasm, and he only heard the segment. He didn't hear what came before; he didn't hear what came after. May I have just a moment with counsel?

THE COURT: Certainly.

(Discussion held off the record between the Deputy District Attorneys.)

MR. KELBERG: Submit the matter, your Honor.

THE COURT: Thank you. Any brief response, Mr. Shapiro?

MR. SHAPIRO: Yes, your Honor. Thank you. As the court has correctly pointed out, these questions were brought out by the District Attorney in their direct examination of Detective Vannatter, and the reason they were brought up is because the District Attorney decided early on that they were going to be very defensive in their presentation of the case, and since we had let them know in opening statements that we were going to be talking about a rush to judgment, this was their way of diffusing a rush to judgment, so they brought that up. The second thing regarding Mr. Craig and Larry Fiato, these two men have been embraced by the United States government, by the Federal Bureau of Investigation, by the United States Department of Justice and by the Los Angeles District Attorney's office. They have been acting as informants. They have been vouched for as informants by all of those people as being credible. They have been acting in that capacity since 1983. They are personally responsible for at least fifty to sixty people being convicted based primarily on their testimony.

When Craig Fiato talks on the tape of this being B.S., he is not talking that Phil Vannatter is not telling the truth. He is saying why is everybody making such a big deal out of this? This is making a mountain out of something less than a molehill. This really is not that important and this is really going to embarrass us. This really puts us in a bad position because now the police, who we depend on for a living, are not going to like us. It is very, very interesting, Detective Vannatter was not a stranger to Mr. Craig Fiato. They had met before and Detective Lange had worked with him before. They had testified previously six months before. They had testified previously, I believe, for them, but at least had worked with them before. And this issue really came up because of Denise Brown. And Craig Fiato told Mr. Kelberg and Mr. Hodgman that he was having an affair with Denise Brown and the District Attorney's office was embarrassed by it and that Mr.--that members of the District Attorney's office called this to Denise Brown's attention, that members of the Los Angeles Police Department called this to Denise Brown's attention, that they were being embarrassed. And this irritated Mr. Craig Fiato because he didn't think that was fair, since he now, and for the last twelve years, has considered himself an integral part of law enforcement, so that is the reason that this issue came up. And what happened was Craig Fiato never told anybody about this because he knew it had great potential damage to the District Attorney's case. And it was only when fortuitously ABC was interviewing him on an organized crime show that at the same time there was speculation of a mystery witness and he thought, oh, my God, ABC must have called up Defense attorney Robert Shapiro and told them about this and therefore they are going to know and embarrass us, so I better turn it over to Special Agent Wacks who took the appropriate position, so that is how it came about. There is no question, based on the interview of Craig Fiato, based on the interview of Larry Fiato, and based on the interview of Special Agent Wacks, that Detective Vannatter on two occasions said he went to O.J. Simpson's house because he was a suspect, the husband is always a suspect. They repeat that consistently. It will be up to the jury to determine what weight to give that testimony, not whether or not it is admissible. Contra to Lavergne, which has been taken and not properly cited to your Honor as authority, Lavergne involved extrinsic impeachment. This is direct impeachment. This is directly contradicting from his own words exactly what was said. And so there is no doubt about it, here are the questions that were initially put to Detective Vannatter before this jury.

THE COURT: It is already in the record. You read to it me once.

MR. SHAPIRO: I'm sorry?

THE COURT: It is already in the record.

MR. SHAPIRO: I did not read the direct testimony at the trial. I read the testimony--I just said at the trial it was said three times.

THE COURT: Why--

MR. SHAPIRO: Just for the purpose of the record, read one excerpt?

THE COURT: Why don't you just give me the page cite. We are talking about specifically volume 109, 19266, correct?

MR. SHAPIRO: Correct, your Honor, and I have given your Honor twelve pages, if we could mark this as an exhibit and attach it as part of the record.

THE COURT: We are referring to the record that is in existence. We don't need additional paper.

MR. SHAPIRO: Thank you.

THE COURT: Thank you, counsel.

MR. KELBERG: Your Honor, your Honor--

MR. SHAPIRO: Clearly, clearly this is perhaps the best evidence in this entire case of credibility of a witness, and the theme of the Defense in large part has to do with credibility throughout this case, and if we can demonstrate, as we clearly will be able to, specific and direct impeachment of a lead detective who has testified under oath on three different occasions, that that testimony was not correct, that testimony was untrue, and that the true facts are as probably most people would believe, that four lead detectives did not leave Bundy because they didn't want to investigate a murder scene and they felt it incumbent as good will ambassadors to go notify Mr. O.J. Simpson of the tragedy regarding Nicole Simpson and nobody was left all day to investigate anything and that is why this case is in the posture it is right now, I don't think any clear thinking person could ever believe that. But furthering that, that all four people now went over there and did not consider Mr. Simpson to be a suspect is something that I don't think any trier of fact would find credible. It is essential evidence for the Defense.

THE COURT: All right. Thank you, counsel.

MR. KELBERG: Your Honor, could I briefly set the record--

THE COURT: No. I've heard the legal argument. Thank you. All right. What we have here is a proffer of a statement by Detective Vannatter alleged to have been made to a Larry Fiato, a Craig Fiato and FBI Special Agent Wacks that appears to be a statement that is inconsistent with his testimony here in court before the jury. As such, it would appear to be a prior inconsistent statement as defined in I believe it is 1235 of the evidence code. I think it is a material issue, the explanation for the trip up to Rockingham, and I don't find it to be collateral, and I'm going to allow the Defense to present the inconsistent statements by Detective Vannatter. Having said that, I am going to deny the request to go into Mr. Ragle, Mr.--Dr. Baden and Dr. Wolf, because I find the proffer is not of sufficient weight to go forward into that avenue of inquiry. And on the explanation that there is a clarification question on the brown glove and its location, I will allow that; however, that strikes me as a three-question area. Mr. Shapiro, how do you--in light of the court's ruling, Mr. Shapiro, how do you propose to proceed? Under--

MR. SHAPIRO: We would like to call Detective Vannatter.

THE COURT: Under 770?

MR. SHAPIRO: Yes, your Honor, first.

THE COURT: All right.

MR. KELBERG: Your Honor, before--

THE COURT: We may get to the point where it will become redundant or cumulative.

MR. KELBERG: And your Honor, I think the court is aware there was a request, we have representatives--or a representative, I think we lost the second representative from the United States Attorney's office, concerning a protective order dealing with the Fiatos as witnesses. And in the event either one of them is called, I think that order has to be dealt with.

THE COURT: All right. Mr. Shapiro, after Detective Vannatter is recalled, who do you anticipate calling?

MR. SHAPIRO: Your Honor, depending on his answers, we would anticipate calling Larry Fiato, Craig Fiato, Special Agent Wacks, Deputy District Attorney--again depending on answers--Davidson, Mr. McLean and that would be our testimony.

THE COURT: All right.

MR. SHAPIRO: For sure--well, I shouldn't say for sure; based on testimony.

THE COURT: Please, when you evaluate who you are going to call in what order, my concern is that it will become cumulative quickly.

MR. SHAPIRO: Yes. I understand that. Your Honor, I have also talked to Mr. Eglash of the United States Attorney's office and we are not going to oppose the protective order.

THE COURT: Mr. Kelberg.

MR. KELBERG: One last thing, your Honor, for clarification. This is still part of the Defendant's case in chief because there will be rebuttal evidence offered to this aspect of the evidence.

THE COURT: All right. Just--I did not make a ruling on that aspect, but clearly the record supports this as newly discovered evidence, since it was disclosed to the Defense just last week, and since it was not available to the Defense during what would normally be their case in chief, I will deem it as such, meaning the People have the right of rebuttal.

MR. KELBERG: Thank you, your Honor.

THE COURT: All right.

MR. SHAPIRO: Thank you very much, your Honor.

THE COURT: All right. We don't have the jury down, so we will take a ten-minute recess, bring the jury down, and then we will start with Detective Vannatter. All right.

(Recess.)

THE COURT: All right. Let's have the Defendant, please.

(Brief pause.)

THE COURT: Let's have it quiet.

(Brief pause.)

MR. SHAPIRO: Your Honor, may Mr. Kelberg and I approach just for a moment?

THE COURT: Sure.

(A conference was held at the bench, not reported.)

(The following proceedings were held in open court:)

THE COURT: All right. Back on the record. The record should reflect that we have now been rejoined by Mr. Simpson. All right. Deputy Trower, let's have the jurors, please.

(Brief pause.)

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. And let the record reflect that we have been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.

THE JURY: Good morning.

THE COURT: Apologize for the delay. I had a few legal matters to take up out of your presence. We are ready to proceed. Mr. Shapiro.

MR. SHAPIRO: Thank you very much, your Honor. I would like the court to kindly ask to recall to the witness stand Los Angeles Police Department Detective Philip Vannatter.

THE COURT: All right. Detective.

MR. SHAPIRO: Good morning, ladies and gentlemen of the jury.

THE JURY: Good morning.

Philip Vannatter, called as a witness by the Defendant, pursuant to evidence code section 770, was sworn and testified as follows:

THE CLERK: Please raise your right hand. 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.

DET. VANNATTER: I do.

THE CLERK: Please have a seat on the witness stand and state and spell your first and last names for the record.

DET. VANNATTER: Philip Vannatter, P-H-I-L-I-P V-A-N-N-A-T-T-E-R.

THE CLERK: Thank you.

DIRECT EXAMINATION BY MR. SHAPIRO

MR. SHAPIRO: Detective Vannatter, on March the 16th of 1995, did you previously testify before this jury?

DET. VANNATTER: I believe that was the date, yes.

MR. SHAPIRO: And were you asked questions on direct examination by the District Attorney regarding your reasons for going from Bundy to Rockingham?

DET. VANNATTER: Yes.

MR. SHAPIRO: And have you had an opportunity to review that testimony?

DET. VANNATTER: I know what I testified to, yes.

MR. SHAPIRO: Have you had an opportunity to review it since the time you testified?

DET. VANNATTER: To read the testimony?

MR. SHAPIRO: To review it in any way?

DET. VANNATTER: No. I know what I testified to.

MR. SHAPIRO: Have you gone over that testimony with anyone?

DET. VANNATTER: No, I have not.

MR. SHAPIRO: Have you talked to either Mr. Kelberg or Mr. Hodgman recently about the credibility of that testimony?

MR. KELBERG: Objection, your Honor, as to the characterization.

THE COURT: Sustained. Rephrase the question.

MR. SHAPIRO: Have you talked to Mr. Hodgman or Mr. Kelberg recently about the testimony regarding why you went to Rockingham?

DET. VANNATTER: I didn't talk to them about that, no.

MR. SHAPIRO: Was that discussed during a recent conversation with them?

DET. VANNATTER: The reason I went to Rockingham? No, it was not discussed.

MR. SHAPIRO: Did they question you about why you went to Rockingham--well, let's put it in perspective. Were you called in to give a tape-recorded interview to Mr. Kelberg and Mr. Hodgman within the last ten days?

DET. VANNATTER: Yes, I was.

MR. SHAPIRO: When was that?

DET. VANNATTER: I believe it was last Friday.

MR. SHAPIRO: Did you give a tape-recorded interview?

DET. VANNATTER: I did, yes.

MR. SHAPIRO: Was that under oath?

DET. VANNATTER: I don't think I was put under oath. I was interviewed on tape.

MR. SHAPIRO: And was the subject matter of why you went to Rockingham discussed?

DET. VANNATTER: That was--that is in the context of the interview, yes.

MR. SHAPIRO: Now, I want to direct your attention back to your trial testimony on March the 16th, and ask you, sir, if you were asked the following questions and gave the following answers to this jury under oath. And I want to--I have given Mr. Kelberg a copy of this and your Honor a copy of this.

MR. KELBERG: Mr. Shapiro, are you going in sequence?

MR. SHAPIRO: Yes, yes. We are going to go now to page 19169.

MR. SHAPIRO: This was a question that was directed to you by Mr. Darden. "Now we have heard testimony that Commander Bushey ordered Detective Phillips to notify Mr. Simpson personally? "Answer: That's correct. "Question: Okay. During that discussion did any detective voice any opposition to scaling the wall? "Answer: No. "Question: At that point did you consider Mr. Simpson a suspect in the murder of Nicole Brown and the other man? "Answer: No. "Question: You told us that Detective Fuhrman did not convince you of anything? "Answer: Well, it would be--I think it would--I would take an independent look. I don't think I would be convinced of anything by anybody outside of my own." Do you recall being asked those questions by Mr. Darden?

DET. VANNATTER: Certainly.

MR. SHAPIRO: Do you recall giving those answers?

DET. VANNATTER: Certainly.

MR. SHAPIRO: On page 19265 were you asked--do you recall being asked the following question by Mr. Darden--

MR. KELBERG: Excuse me, your Honor. I object to having this read. If counsel wants to go into alleged inconsistent statements, that is what I understand the witness to be here for.

THE COURT: Overruled.

MR. SHAPIRO: "Now, you earlier told us that Mr. Simpson was not a suspect while you were at Bundy; is that correct? "Answer: At what point are you asking, sir? "Okay. Well, after your first walk-through at Bundy was he a suspect? "Answer: No. "And when you first arrived at Rockingham was he a suspect? "Answer: No. "During the time that you were ringing the buzzer at the front of the property was he a suspect then? "Answer: No. "And when you rang the front door at Rockingham, was he a suspect then? "Answer: No."

MR. KELBERG: Mr. Shapiro, are you going to go on on that page?

MR. SHAPIRO: I'm turning the page.

MR. KELBERG: Are you going to a different--

THE COURT: Proceed, counsel.

MR. SHAPIRO: Thank you very much, your Honor. "At some point in time did you consider him a suspect? "Answer: Absolutely, yes. "And at what point in time was it that you considered him a suspect? "He became a suspect as soon as I saw the glove at the side of the house. It appeared to be a match to the glove, the opposite glove to the glove I had seen earlier at Bundy."

MR. SHAPIRO: Do you recall giving those answers to those questions regarding--

THE COURT: I don't believe that is the complete answer to that question, counsel.

MR. SHAPIRO: That is all I have here, your Honor, so if there is more--

THE COURT: There is a continuation to that.

MR. SHAPIRO: "Answer: He became a suspect as soon as I saw the glove at the side of the house. It appeared to match the glove, the opposite glove to the glove I had seen earlier at Bundy, and then after coming out of the driveway and finding the blood trail, he became a very strong suspect."

MR. SHAPIRO: Do you recall being asked those lines of questioning when Mr. Simpson became a suspect?

DET. VANNATTER: Certainly I do.

MR. SHAPIRO: And did you give those answers?

DET. VANNATTER: I certainly did.

MR. SHAPIRO: And on page 19519, this is cross-examination by me, were you asked the following question: "Your purpose in taking four officers to go to the Rockingham estate was solely for notification; is that correct? "Answer: Our purpose for taking four officers was actually two-fold. No. 1, they could direct us to the location because Fuhrman had been there before. And no. 2, we intended on them helping us with the notification, helping Mr. Simpson to make a disposition of the children, for us to meet Mr. Simpson for a later interview." Do you recall being asked that question by me and giving that answer?

DET. VANNATTER: Yes.

MR. SHAPIRO: Page 19536, questions by me. To put this in perspective: "Four detectives are now taking turns pushing the buzzer device on the gate? "Answer: Well, I think there were three of us that rang it. I don't recall of Fuhrman ringing the bell. "Question: Now, Fuhrman's role in coming there was purely to show you how to get there; is that your statement? "Answer: No. Question by me:

"Was he coming as a back-up unit for you? "Answer: No. "Question: Was he coming to help you investigate? "Answer: No. "Was he coming to introduce to you Mr. Simpson? "Answer: No. "Question: Was he coming to help you in the notification? "He was coming--we were going to make the notification and he was coming to assist Mr. Simpson if he needed assistance. "Question: And he had volunteered for that? "Answer: No. We asked him to accompany us." Do you recall being asked those questions and giving those answers?

DET. VANNATTER: I recall that line of questioning. If you are reading verbatim from the transcript, yes.

MR. SHAPIRO: And do you recall finally on page 19537 that--to put this in proper context, you were talking about the difference between an emergency situation and a tactical situation and you gave this answer. "If I would have had a tactical situation and knew that I had a suspect or knew that I had a hostage or knew that I had a murder suspect in there, it would have been handled totally differently. This was a situation where I was worried that something had occurred there possibly like had occurred at Bundy." Do you recall being given--giving that answer?

DET. VANNATTER: Yes, I do.

MR. SHAPIRO: And finally--I said finally, but on page 19709: "At some time you wanted to interview Mr. Simpson?" And you said: "Yes, at some point." My question was: "Well, did you consider him a suspect at that time? "Answer: No."

MR. KELBERG: Your Honor, there is a difference in the page number between what Mr. Shapiro has from his printout and what are the actual page numbers.

MR. SHAPIRO: Why don't you give me the actual page numbers.

MR. KELBERG: We are still trying to find the last one.

MR. SHAPIRO: Do you have it?

THE COURT: All right. We will correct that later.

MR. SHAPIRO: "Did you have any notion at all that time that--"Answer: I didn't know who the suspect was. Anybody could have been a suspect at that point."

MR. SHAPIRO: Okay. Did you give those answers?

DET. VANNATTER: Yes, I gave those answers.

MR. SHAPIRO: Is there any doubt in your mind that you conveyed to the jury under oath that when you went to Rockingham Mr. Simpson was not a suspect?

DET. VANNATTER: There is no doubt in my mind. Mr. Simpson was no more of a suspect at that point than you were, Mr. Shapiro.

MR. SHAPIRO: And you gave that same testimony before the grand jury under oath?

DET. VANNATTER: That is absolutely correct.

MR. SHAPIRO: And you gave that same testimony at the preliminary hearing under oath?

DET. VANNATTER: That is absolutely correct, yes.

MR. SHAPIRO: In January of 1995 were you in the company of an individual known as Craig Fiato, a Deputy District Attorney dale Davidson, an individual Larry Fiato and Detective Tom Lange?

DET. VANNATTER: Yes, I was.

MR. SHAPIRO: Is that hotel located in the downtown Los Angeles?

DET. VANNATTER: No, it is not.

MR. SHAPIRO: Where is that hotel located?

MR. KELBERG: Your Honor, there is an objection based upon--

THE COURT: Sustained.

MR. SHAPIRO: Just general area for reference.

THE COURT: Sustained. Not relevant. Somewhere in the Los Angeles area.

MR. SHAPIRO: And at that meeting was--were you aware that Larry Fiato and Craig Fiato were brothers?

DET. VANNATTER: I was told that, yes.

MR. SHAPIRO: And had you--you had known that your partner had had previous dealings with them; is that correct?

DET. VANNATTER: I had previously met them prior to that meeting.

MR. SHAPIRO: And your partner had previously dealt with him?

DET. VANNATTER: My partner was investigating a case that involved them, yes.

MR. SHAPIRO: How many times had you met them before?

DET. VANNATTER: I believe one time.

MR. SHAPIRO: And at some point in time you were aware that Denise Brown--

THE COURT: Sustained. Not relevant.

MR. SHAPIRO: You were aware that both Larry and Craig Fiato were certified as reliable informants?

MR. KELBERG: Objection, your Honor.

THE COURT: Sustained. Legal conclusion, counsel. The issue is the statement.

MR. SHAPIRO: Was there any discussion about your role in the O.J. Simpson case in the presence of those individuals?

DET. VANNATTER: There was a lot of discussion from Craig Fiato, yes.

MR. SHAPIRO: Did you have any part in the discussions regarding your role in the O.J. Simpson case?

DET. VANNATTER: I think I responded to some questions that he asked me regarding the testimony that he had seen at the preliminary hearing, yes.

MR. SHAPIRO: And they told you they had watched your testimony on television--did Mr. Craig Fiato tell you he had watched your testimony on television?

DET. VANNATTER: Yeah. The gist of his conversation was he was talking about the difference in personality of myself and my partner. That was the gist of the conversation.

MR. SHAPIRO: During that conversation did you state that you went to the home of O.J. Simpson in the early morning hours of June the 13th, 1994, because he was a suspect?

DET. VANNATTER: Did I state that exactly? No, I did not.

MR. SHAPIRO: In sum and substance, did you convey to anybody in that room that the reason you went to the O.J. Simpson residence was because he was a suspect?

MR. KELBERG: Objection, your Honor, calls for speculation.

THE COURT: Overruled.

DET. VANNATTER: No, I didn't. There was general conversation going on. If something was taken out of context or if something was said in jest, I can't answer to that. I never said that O.J. Simpson was a suspect. O.J. Simpson was not a suspect when I went to the Rockingham location.

MR. SHAPIRO: Did you say that of course he was a suspect, the husband is always a suspect?

DET. VANNATTER: Mr. Shapiro, no, I didn't say that. Anybody that has personal contact with a murder victim, before they are eliminated, is a potential suspect and can be a potential suspect. I wish I was good enough to go to a crime scene and within less than an hour be able to figure out who committed a murder. That would be great.

MR. SHAPIRO: Did you state that the real reason was not to save lives but because O.J. Simpson was a suspect, the husband is always a suspect?

DET. VANNATTER: The real reason was not to save lives. I went to the location to make a death notification, to make a disposition of two small children, minor children that were in police custody, and in the furtherance of my murder investigation.

MR. SHAPIRO: Do you know a Special Agent from the FBI by the name of Wacks?

DET. VANNATTER: Yes, I have met Mr. Wacks.

MR. SHAPIRO: And how did you come in contact with Mr. Wacks?

DET. VANNATTER: Because Mr. Wacks is associated with the Fiatos and I met him through my partner who was investigating and working on the case that they are all involved in.

MR. SHAPIRO: How is he associated with the Fiatos?

DET. VANNATTER: I believe my understanding is he is a Special Agent from the FBI that was working with the Fiatos in an undercover operation. That is my knowledge of it.

MR. SHAPIRO: And how long had he been working--how long had the Fiatos been working with the FBI?

MR. KELBERG: Objection, your Honor.

THE COURT: Sustained.

MR. SHAPIRO: Do you have any information as to how long the Fiatos were working with the FBI?

THE COURT: Sustained.

MR. KELBERG: Both hearsay and the objection on the other grounds.

THE COURT: Sustained.

MR. SHAPIRO: And during February of this year were you up on the 18th floor with Larry Fiato?

DET. VANNATTER: Yes.

MR. SHAPIRO: And did you go out on the balcony with Larry Fiato for the purpose of smoking a cigarette?

DET. VANNATTER: Yes.

MR. SHAPIRO: And did you have a conversation with Larry Fiato and in that conversation discuss the O.J. Simpson case?

DET. VANNATTER: Larry Fiato was asking questions about a lot of things. I have not specifically discussed the O.J. Simpson case with anybody.

MR. SHAPIRO: And did--

DET. VANNATTER: I don't discuss my murder cases with anybody other than people that are involved in the case.

MR. SHAPIRO: And did you tell Larry Fiato that you did not--that you went to Rockingham because O.J. was a suspect, the husband is always a suspect, on the 18th floor of the balcony while smoking a cigarette in February of this year?

DET. VANNATTER: Again, if something is taken out of context, I don't have a specific recollection of making that statement. I don't believe I did make that statement.

MR. SHAPIRO: Are you saying you didn't make that statement?

DET. VANNATTER: May I finish my answer, please?

MR. SHAPIRO: Please.

THE COURT: Yes.

DET. VANNATTER: Again, any person that has personal contact with a murder victim is a potential suspect until they are eliminated, until the investigation is completed. He may have taken something out of context. I have no recollection of making that statement. That is not a true fact. I went to the location to make a death notification and a disposition of two minor children.

MR. SHAPIRO: And you went to that location with four of the only lead homicide detectives and ignored the investigation at Bundy, and your testimony is for the purpose of only making a death notification? Is that your testimony, sir?

MR. KELBERG: Objection, your Honor, compound and outside the scope of--

THE COURT: Sustained, sustained.

MR. SHAPIRO: When you say you don't have a recollection of saying it, are you telling this jury you did not tell Larry Fiato that you went to Rockingham because O.J. Simpson was a suspect?

DET. VANNATTER: I'm saying I would never say that because O.J. Simpson was not a suspect at that time. O.J. Simpson became a suspect after I--I was shown the glove by mark Fuhrman and after I saw the blood drops in the driveway. That is when he became a very strong suspect.

MR. SHAPIRO: During--

DET. VANNATTER: Up to that point he was not a suspect to me.

MR. SHAPIRO: During your conversation with Larry Fiato on the 18th floor in February did Special Agent Wacks from the Federal Bureau of Investigation come out?

DET. VANNATTER: Well, he was out there a number of times.

MR. SHAPIRO: Was he in a position to overhear what was being said in that conversation?

MR. KELBERG: Objection, your Honor, that calls for speculation.

THE COURT: Sustained.

MR. SHAPIRO: How large an area is this.

DET. VANNATTER: It is a very small area.

MR. SHAPIRO: How large? Describe it to the jury.

DET. VANNATTER: Very small. Maybe six foot by six foot. Make seven foot by seven foot.

MR. SHAPIRO: How close did Special Agent Wacks get to you while you were talking to Larry Fiato?

DET. VANNATTER: Well, there were many times that we were out there. It--everybody is in a small confined area.

MR. SHAPIRO: Did Craig Fiato also come out during that period of time?

DET. VANNATTER: I don't recall ever seeing him out there.

MR. SHAPIRO: Are you saying he didn't come out?

DET. VANNATTER: I'm saying I don't recall ever seeing him out there. I don't believe he ever was out there.

MR. SHAPIRO: May I just have a moment, your Honor?

THE COURT: Yes.

(Discussion held off the record between Defense counsel.)

MR. SHAPIRO: Why did you go to the hotel to meet with the Fiato brothers in January?

DET. VANNATTER: Because I was requested to accompany my partner to that location.

MR. SHAPIRO: For what purpose?

DET. VANNATTER: My partner informed me that he and Deputy District Attorney Davidson were going to interview them regarding their testimony in an upcoming trial.

MR. SHAPIRO: Why were you going?

DET. VANNATTER: Because Detective Lange is my partner and he asked me to go with him.

MR. SHAPIRO: Were you going there to work on the case?

DET. VANNATTER: No, I wasn't working on the case.

MR. SHAPIRO: Were you going there to keep him company?

DET. VANNATTER: I think I answered the question. He asked me to go along in case he needed any kind of assistance. I accompanied him there.

THE COURT: All right. This is not particularly relevant, counsel.

MR. SHAPIRO: May I just have one more moment, your Honor?

(Brief pause.)

MR. SHAPIRO: Did you, Detective Lange, Detective Phillips and Detective Mark Fuhrman all agree to testify that O.J. was not a suspect when you first went to Rockingham?

THE COURT: Sustained. Sustained.

MR. SHAPIRO: Isn't it true that from the moment you learned about the circumstances of Nicole Simpson's death--

MR. KELBERG: Your Honor, I have to object. It is argumentative and it is irrelevant.

THE COURT: Sustained.

(Discussion held off the record between Defense counsel.)

MR. SHAPIRO: May we just have a moment, your Honor? May we approach for a moment?

THE COURT: Proceed.

(Discussion held off the record between Defense counsel.)

MR. SHAPIRO: Detective Vannatter, I want to go into one other area just to clarify other testimony regarding a glove that you seized at Rockingham, if I might direct your attention in that area. As the lead detective in this case was Mr. Simpson's residence searched for clothes, shoes, gloves or anything else that may be significant to your investigation?

DET. VANNATTER: Yes, it was.

MR. SHAPIRO: Other than a pair of socks and tennis shoes, were any other items of clothing seized?

DET. VANNATTER: Yes.

MR. SHAPIRO: Was a brown glove identified as Los Angeles Police Department no. 94 seized from Mr. Simpson's house?

DET. VANNATTER: I know a brown glove was seized. I don't know whether it was item 94 or not, but I know a brown glove was seized.

MR. SHAPIRO: Is that the glove that was displayed in the videotape shot by Willie Ford?

DET. VANNATTER: I believe so, yes.

MR. SHAPIRO: Were any black--let me--one moment, please.

(Discussion held off the record between Defense counsel.)

MR. SHAPIRO: Let me show you a glove that was seized that has been marked as an exhibit.

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. SHAPIRO: I'm going to show you a brown leather glove that has been previously marked--

DET. VANNATTER: Do I need my glasses? Do I need to read anything?

MR. SHAPIRO: As exhibit 609. Is that the glove that was seized?

DET. VANNATTER: It would appear to be, yes.

MR. SHAPIRO: And finally, Detective Vannatter, were any black leather gloves seized from the Simpson residence?

DET. VANNATTER: There were two additional pair of gloves seized from the master closet on June the 28th. I believe--I believe one pair of them was black, yes.

(Discussion held off the record between Defense counsel.)

MR. SHAPIRO: And that was not a leather dress glove, was it? That was a ski glove?

DET. VANNATTER: The additional gloves that were seized?

MR. SHAPIRO: Yes.

DET. VANNATTER: They were totally different than a leather men's dress glove.

MR. SHAPIRO: Were any black leather men's gloves seized?

DET. VANNATTER: As I recall, the additional gloves that were seized were heavier than what I would consider a dress glove. It looked like they were cold whether gloves that a person would wear skiing or when they were really in gold whether.

THE COURT: Thank you. Mr. Kelberg.

MR. KELBERG: Thank you, your Honor. Good morning, ladies and gentlemen, and I will be brief.

CROSS-EXAMINATION BY MR. KELBERG

MR. KELBERG: Detective Vannatter, just to go in that area first and then we will go back to the conversation issue, were there any other ski caps, knit ski caps, seized from Mr. Simpson's house in the search for clothing and so forth?

DET. VANNATTER: You know, I would have to refresh my memory on that. I believe--I believe there were additional caps that were seized or were observed in the master closet.

MR. KELBERG: And caps of a knit ski cap variety?

DET. VANNATTER: Yes.

MR. KELBERG: Would it be accurate to say that other than this single glove, the exhibit number I have to say I did not catch--

THE COURT: 609.

MR. KELBERG: Thank you, your Honor.

MR. KELBERG: --609, was there any Aris gloves recovered at all from the residence of Mr. Simpson?

DET. VANNATTER: No.

MR. KELBERG: Now, going back to this other issue, you had testified at the preliminary hearing as a witness; is that correct?

DET. VANNATTER: Yes, sir.

MR. KELBERG: How did you feel about the manner in which you were examined by Mr. Shapiro at that preliminary hearing?

MR. SHAPIRO: Objection, improper question.

THE COURT: Overruled.

DET. VANNATTER: How did I feel about it? I thought he was a little antagonistic and I was trying to tell him the truth is all I am trying to do now.

MR. KELBERG: Have you, result of the exposure of this case, felt that you have been falsely accused, you as a Los Angeles Police Department officer, have been falsely accused of entering into a conspiracy to convict an innocent man, Mr. Simpson?

MR. SHAPIRO: Objection, leading.

THE COURT: Overruled. It is cross-examination.

MR. SHAPIRO: No. He is called as an adverse witness.

THE COURT: Overruled.

DET. VANNATTER: You bet I have. I have dedicated over 25 years of hard service to this city and I've done a lot of work and I have seen a lot of people murdered, innocently murdered, and I have attempted to do the best I can to come to successful conclusions on those.

THE COURT: Next question.

MR. KELBERG: And sir, have you expressed your frustrations at any time since the trial began?

MR. SHAPIRO: Objection.

MR. KELBERG: About the accusations that have been leveled against you?

MR. SHAPIRO: Objection, irrelevant, beyond the scope.

THE COURT: Overruled.

DET. VANNATTER: You bet I have, yes.

MR. KELBERG: And in the manner in which you have expressed such frustrations please tell us what you have done or said.

DET. VANNATTER: Well, it--

THE COURT: Hold on. That is a vague and overbroad question.

MR. KELBERG: All right.

MR. KELBERG: Have you expressed verbally your frustrations to accusations specifically about the police conspiring to frame O.J. Simpson?

DET. VANNATTER: Yes, I have.

MR. SHAPIRO: Objection.

THE COURT: Sustained.

MR. KELBERG: Have you--

MR. SHAPIRO: Motion to strike.

THE COURT: The answer is stricken. Counsel, let me see you at side bar with the court reporter.

(The following proceedings were held at the bench:)

THE COURT: Mr. Kelberg, the court's ruling regarding code of silence, police conspiracy, was pretty clear, I had thought.

MR. KELBERG: I understand, your Honor.

MR. COCHRAN: Let him finish.

THE COURT: Stay away from it. Move on.

MR. KELBERG: My concern was to put in context the statement that I think--

THE COURT: Then let's get to the statement.

MR. SHAPIRO: Your Honor, also, we would suggest now that Mr. Kelberg has opened the door for us to bring in the Larry Ragle statements.

THE COURT: Denied.

MR. SHAPIRO: Thank you.

(The following proceedings were held in open court:)

THE COURT: All right. Thank you, counsel. Proceed.

(Discussion held off the record between the Deputy District Attorneys.)

MR. KELBERG: Thank you, your Honor. Detective Vannatter, just to set the scene correctly, the case that Mr. Lange was going out to talk with Mr. Davidson and the Fiato brothers about was not a case for which you were one of the investigating officers; is that correct?

DET. VANNATTER: That's correct.

MR. KELBERG: And Detective Lange had had a partner at the time of that particular incident by the name of Mac McLean; is that correct?

DET. VANNATTER: Well, no, I don't think that is correct. I think that was way before he started working with Detective McLean. I believe his partner at the time--and I believe the case is a 1982 case--I believe his partner was a detective by the name of Souza when he actually first got the case.

MR. KELBERG: And subsequently did you find that he was working with Detective McLean on the case?

DET. VANNATTER: Yes.

MR. KELBERG: Then you became his partner; is that correct?

DET. VANNATTER: That's correct, yes.

MR. KELBERG: Now, in the course of being here for the Simpson case in January and February was the case for which the Fiato brothers were witnesses also going on in the same building?

DET. VANNATTER: That's correct, yes.

MR. KELBERG: And our offices are, among other places, on the 18th floor of this building?

DET. VANNATTER: Yes, sir.

MR. KELBERG: And from your experiences has it been common to see witnesses from a lot of different cases wandering around in common areas?

DET. VANNATTER: Many, many people are up there, yes.

MR. KELBERG: And because of the code regulations, smoking is not permitted inside the building; is that correct?

DET. VANNATTER: That's correct.

MR. KELBERG: So if people want to smoke, from whatever case they may be coming to the building for the purpose of being witness, they have got to go to designated areas; is that correct?

DET. VANNATTER: They have got to go to the outside, yes, that's correct.

MR. KELBERG: Would it be accurate to say that that is where you and Larry Fiato would spend some time smoking cigarettes?

DET. VANNATTER: That's correct, yes.

MR. KELBERG: Now, going back to the--just the initial finding at Bundy, would it be accurate to say that you saw no evidence which in your 25 years of experience led you to believe Nicole Brown Simpson was the victim of a rape?

DET. VANNATTER: It--

MR. SHAPIRO: Objection, beyond the scope.

THE COURT: Overruled.

DET. VANNATTER: I didn't even know what her cause of death was at that point. All I knew was the two victims appeared to have massive injuries. I didn't even know what the cause of death was. How could I make a determination on anything?

MR. KELBERG: Did you see any evidence that indicated to you there was a robbery?

DET. VANNATTER: Nothing--again--again, I had a very brief walk-through by Ron Phillips who pointed out certain items of evidence.

MR. SHAPIRO: Your Honor, I'm going to object. This is nonresponsive and irrelevant.

THE COURT: Overruled.

DET. VANNATTER: And I couldn't at that point answer that question because I didn't know what had occurred there.

MR. KELBERG: Did you see any evidence that caused you to believe there had been a burglary?

DET. VANNATTER: The front door of the residence was standing open. That was a possibility. I didn't see any ransacking. But again, I only got a real brief walk-through.

MR. KELBERG: Now, in your experience have you found that where women who have been either the wives or ex-wives--been in a relationship with a man, either a married relationship or a living relationship, that when such a woman is killed that statistically the killer is most commonly associated with the husband, the ex-husband or the live-in?

MR. SHAPIRO: Objection. May we approach?

THE COURT: No. Only one person makes objections and I'm hearing too much noise over here. The objection is sustained. Rephrase the question.

MR. KELBERG: Detective Vannatter, in your experience--may I have a moment, your Honor?

(Discussion held off the record between the Deputy District Attorneys.)

MR. KELBERG: Detective Vannatter, bottom line, if you thought Mr. Simpson was a suspect when you first are going from Bundy to Rockingham, no. 1, would you have told that to this jury?

MR. SHAPIRO: Objection.

THE COURT: Overruled.

DET. VANNATTER: You bet I would have.

MR. KELBERG: Would you have told it to the Judge at the preliminary hearing?

DET. VANNATTER: Yes, sir. You bet I would have.

MR. KELBERG: Would you have told it to the grand jury?

DET. VANNATTER: I would have told it to anybody that asked me.

MR. KELBERG: Is there any reason in your mind why you would not have said that if that is in fact how you honestly felt at that particular time?

MR. SHAPIRO: Objection, self-serving.

THE COURT: Overruled.

DET. VANNATTER: That is not a true statement. I wouldn't say something like that. The truth of the matter is Mr. Simpson was not a suspect. I went there to make a death notification and a disposition of two minor children. That was my purpose for going to that location.

MR. KELBERG: And wouldn't you agree, sir, that it would have been very easy for you to say if you wanted to, that Mr. Suspect--Mr. Simpson of course was a suspect, if you wanted to?

MR. SHAPIRO: Objection.

THE COURT: Sustained. Speculation.

MR. KELBERG: May I have one more moment?

THE COURT: Certainly.

(Discussion held off the record between the Deputy District Attorneys.)

MR. KELBERG: Detective Vannatter, when you were with the Fiatos, Detective Lange and Mr. Davidson, did you joke around with these people?

DET. VANNATTER: Yes.

MR. KELBERG: If somebody characterized it as a bunch of guys bullshitting at times, would that be an accurate characterization of what took place at times during that hotel visit?

MR. SHAPIRO: Objection, hearsay.

THE COURT: Overruled.

DET. VANNATTER: That was mainly my contact with the Fiatos, would be characterized as that, yes.

MR. KELBERG: Would the same apply to any conversations that you may have had with Larry Fiato on a smoking deck while you were here for the Simpson case and he was here for whatever case he was a witness?

DET. VANNATTER: Absolutely. I had no business with him whatsoever.

MR. KELBERG: Did you ever speak seriously to Larry Fiato about the Simpson case?

DET. VANNATTER: Absolutely not.

MR. KELBERG: Is there any reason why you would speak seriously about the Simpson case to a witness on another case?

DET. VANNATTER: No, no. Again, I don't talk to anybody about the particulars of my murder cases.

MR. KELBERG: I have nothing further, your Honor.

THE COURT: Mr. Shapiro.

REDIRECT EXAMINATION BY MR. SHAPIRO

MR. SHAPIRO: Would you agree, Detective Vannatter, that it would be improper for a lead detective to talk about anything regarding a pending case with anyone else other than law enforcement officers, witnesses or Prosecutors?

DET. VANNATTER: I don't know that I would totally agree with that, because everybody in the world has been talking about this case. I never had any specific conversations with anybody regarding this case, other than my partner, my supervisors, the District Attorney's office that is prosecuting the case, and witnesses. When you interview them you have to ask them specific questions. I--I do not discuss specifics of any case with anybody that does not have a need to know what those specifics are.

MR. SHAPIRO: And have you ever made the statement "The husband is always a suspect" as it relates to the O.J. Simpson case?

MR. KELBERG: Objection, your Honor. It has been asked and answered.

THE COURT: Sustained.

MR. SHAPIRO: Is it your testimony that four of the--the only four investigating homicide detectives were at the Bundy crime scene and all four left for the sole purpose of making a notification of--to O.J. Simpson and for taking care of his minor children?

MR. KELBERG: It has been asked and answered, your Honor.

THE COURT: It has.

MR. SHAPIRO: Thank you. Nothing further.

MR. KELBERG: He have nothing further. May the witness be excused?

DET. VANNATTER: Thank you, your Honor.

MR. KELBERG: I'm sorry, your Honor. A document has just come down that may refresh the witness' memory about something that I asked initially. Could I just take a look at the document?

THE COURT: Yes.

(Discussion held off the record between the Deputy District Attorneys.)

(Discussion held off the record between Defense counsel.)

MR. KELBERG: May I ask that the witness be allowed to be recalled?

THE COURT: All right. Detective.

DET. VANNATTER: Yes, sir.

MR. KELBERG: May I be allowed to reopen my cross on a very limited area?

THE COURT: Why don't you show this document to Mr. Shapiro so he knows what we are talking about.

MR. KELBERG: Do would he have an extra copy?

MR. HODGMAN: Yes.

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. KELBERG: May I approach the witness, your Honor?

THE COURT: You may.

CROSS-EXAMINATION (REOPENED) BY MR. KELBERG

MR. KELBERG: Detective Vannatter, showing you a document, does that appear to be a Los Angeles Police Department property report listing various items recovered from Mr. Simpson's residence?

DET. VANNATTER: Yes, sir, it does.

MR. KELBERG: Would looking over that report refresh your memory regarding what, if any, additional ski knit caps were recovered?

DET. VANNATTER: Yes.

MR. KELBERG: And would you please do so.

DET. VANNATTER: Certainly. Item 95 was a navy blue watch cap, knit cap.

MR. KELBERG: And is there also item no. 98?

DET. VANNATTER: That's correct. There was an additional one, item 98, a watch cap, navy blue in color.

MR. KELBERG: And the additional gloves that were recovered, are they also identified on this form, 99 and 100 are the item numbers?

DET. VANNATTER: (No audible response.)

MR. KELBERG: That is the one--

DET. VANNATTER: Yes.

MR. KELBERG: The ones other than the exhibit that you were shown?

DET. VANNATTER: Yes, sir, they are.

MR. KELBERG: And what description can you give us regarding those?

DET. VANNATTER: Item 99 is two gloves, brown in color, made of deer skin. Item 100 is two gloves, leather, black, made in western Germany.

MR. KELBERG: And they were neither set of gloves Aris; is that correct?

DET. VANNATTER: No, sir, they were not.

MR. KELBERG: And this is the only Aris glove, this exhibit, that was recovered from Mr. Simpson's house?

DET. VANNATTER: That's correct, yes.

MR. KELBERG: One moment, please, your Honor.

(Discussion held off the record between the Deputy District Attorneys.)

MR. KELBERG: Your Honor, Miss Clark tells me that the jury has not seen this glove. Could I pass that to the jury?

(Brief pause.)

THE COURT: All right. This is previously 609.

MR. KELBERG: I think that is the number you gave me, your Honor.

THE COURT: Yes, it is.

MR. KELBERG: It is. May I pass it to the jury?

THE COURT: Yes.

(People's exhibit 609 was passed amongst the jurors.)

MR. KELBERG: And I have no further questions of the witness.

(Discussion held off the record between the Deputy District Attorneys.)

THE COURT: Hold on.

MR. SHAPIRO: Detective Vannatter--

THE COURT: Hold on. The jurors are viewing the exhibit.

MR. SHAPIRO: I'm sorry. I apologize.

(Brief pause.)

THE COURT: All right. Mr. Kelberg, would you collect that from Deputy Long, please. All right. The record should reflect that each of the jurors has had the opportunity to examine People's exhibit 609, which appears to be a brown leather glove.

MR. SHAPIRO: Thank you.

THE COURT: Mr. Shapiro.

FURTHER REDIRECT EXAMINATION BY MR. SHAPIRO

MR. SHAPIRO: Detective Vannatter, so we are all clear, this brown glove is the only glove of a dress description that was found inside O.J. Simpson's residence; is that correct?

DET. VANNATTER: To my knowledge, yes.

MR. SHAPIRO: And this is not the same glove, based on lining, stitching and other material, as the gloves you've described as the gloves found at the murder scene?

DET. VANNATTER: That is not the same glove as the Aris light, no, it is not.

MR. SHAPIRO: And the other gloves that you found, the men's black gloves were found in a ski closet with other ski equipment; is that correct?

DET. VANNATTER: As I recall, they were found in the master closet in the bedroom.

MR. SHAPIRO: Were they separated by ski equipment?

DET. VANNATTER: Well, as I recall, the clothing in the closet was very orderly and I believe they were separated with other gloves and everything in the drawers were separated in an orderly fashion.

MR. SHAPIRO: Are you sure they were not found in a ski closet with ski clothes that belonged to both men and women and children?

DET. VANNATTER: I'm not positive of that because I was not the one that actually recovered them.

MR. SHAPIRO: And isn't it a fact that a knit ski cap, similar to the one you've described at Mr. Simpson's house, was also found inside the residence at Nicole Brown Simpson's condominium?

DET. VANNATTER: I wasn't there. I have been told certain things and I don't know that I can answer that question.

THE COURT: All right. He wasn't the one who recovered that.

MR. SHAPIRO: You are aware that one was found there, are you not?

MR. KELBERG: I will object, your Honor.

THE COURT: He is the lead detective.

DET. VANNATTER: I was told by my partner that a child's cap was recovered from the children's bedroom at Bundy, yes.

MR. SHAPIRO: Did you try that cap for size?

DET. VANNATTER: Did I?

MR. SHAPIRO: Yes.

DET. VANNATTER: No, sir, I did not.

MR. SHAPIRO: Are these generally one size fits all caps?

DET. VANNATTER: Well, I think there is caps made for children and I think there is caps made for adults, yes, and they are a stretchy knit material so they would probably fit anybody that wanted to pull them on their head, yes.

MR. SHAPIRO: One moment.

(Discussion held off the record between Defense counsel.)

MR. SHAPIRO: Isn't it a fact that the ski cap that was found at Nicole Brown Simpson's condominium is the exact same size the ski cap found at O.J. Simpson's house and you refused to take it?

MR. KELBERG: Objection, your Honor, both compound, leading and assumes facts not in evidence.

THE COURT: Assumes facts not in evidence. Rephrase the question.

MR. SHAPIRO: Has a comparison been made with the size of the ski cap that was found at Nicole Brown Simpson's condominium and the one that was found at O.J. Simpson's house? Excuse me. Let me withdraw that question.

(Discussion held off the record between Defense counsel.)

THE COURT: Counsel, we are sort of in the clarification area.

MR. SHAPIRO: Inside. I was corrected. Inside Nicole Brown Simpson's condominium and at O.J. Simpson's house were those compared to see if they were the same size?

DET. VANNATTER: You are asking me questions that I have no personal knowledge of. I was not there when that cap was found.

MR. SHAPIRO: As the lead detective, did you ask to see for a comparison of those caps?

DET. VANNATTER: Well, I believe my partner was there. He would have handled anything that had to be done. You keep referring to lead detectives. We work as partners. We are both responsible for the same thing.

MR. SHAPIRO: Talk to each other?

DET. VANNATTER: Yes, yes. He is a friend of mine.

MR. SHAPIRO: Did you ask him whether a comparison was made?

DET. VANNATTER: I--I don't know that I ever did. I can't honestly answer that.

MR. SHAPIRO: Thank you. Nothing further.

THE COURT: Thank you. Mr. Kelberg.

MR. KELBERG: I think I can confidently say, your Honor, may the witness be excused?

THE COURT: All right. Thank you, detective. You are excused.

THE COURT: Your next witness.

MR. COCHRAN: We will next call FBI agent Michael Wacks, if the court pleases.

THE COURT: Ladies and gentlemen, there is a matter I must take up before we call the next witness. Let me ask you to step into the jury room, please.

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Let the record reflect the jury has withdrawn from the courtroom. Counsel, previously this morning it was indicated to the court that the United States Attorney, as counsel for the FBI and other interested parties, was going to make an application to the court to modify the terms and conditions of news media coverage of this case, if in fact one party or another was going to call either Special Agent Wacks and/or Mr. Fiato, Mr. Fiato, Larry Fiato or Craig Fiato.

MR. COCHRAN: I wasn't sure that it included the Special Agent. I thought it included the Fiatos. Perhaps counsel--

THE COURT: Good morning, counsel.

MS. O'CONNELL: Beverly Reid O'Connell, assistant United States Attorney on behalf of the FBI and the U.S. Attorney's office. The federal government made an application requesting two different safeguards for the testimony of Special Agent Wacks and the Fiato brothers. First, the government asked this court to consider turning off the cameras to protect the likenesses of the Fiato brothers who have assisted the federal government in investigations, testified against Italian Mafia members.

THE COURT: Counsel, I have read your application.

MS. O'CONNELL: Okay. The second inquiry was to limit the substantive questioning of Special Agent Wacks and the Fiatos to exclude certain areas, including identifying characteristics of the Fiatos, investigation techniques of Italian Mafia, organized crime, done by the FBI, and methodology of the FBI with respect to infiltrating organized crime. So there are two limitations; one with the cameras, one with respect to questioning of Special Agent Wacks.

THE COURT: All right. Are you objecting to the televised coverage of the testimony of Agent Wacks?

MS. O'CONNELL: No.

THE COURT: All right.

MR. COCHRAN: I have no problem with that. I don't think the FBI agent--the FBI hasn't anything to hide and I didn't think it included him.

THE COURT: Some law enforcement officers have undercover capacities.

MR. COCHRAN: Right. I didn't think it included FBI Agent Wacks and we have their objections. We indicated that if they want to turn the cameras off on the Fiato brothers, fine. We would like, your Honor, if I might, an opportunity to talk to the FBI Wacks for a minute before he takes the stand however. We have his reports but we have not been able to talk to him. Is that possible?

MS. O'CONNELL: No objection from the federal government, your Honor.

THE COURT: All right. Okay. We will take ten.

MR. COCHRAN: Okay. Where is he?

MS. O'CONNELL: He should be just outside.

MR. COCHRAN: We will see if we can talk to him, your Honor, and we will let you know shortly.

THE COURT: All right. We will take a ten-minute recess.

(Recess.)

THE COURT: All right. Back on the record in the Simpson matter. Deputy Bashmakian, let's have the jurors, please.

(Brief pause.)

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Mr. Cochran.

MR. COCHRAN: Thank you very kindly, your Honor. We will next call to the stand FBI agent Michael Wacks, your Honor.

THE COURT: All right.

Michael F. Wacks, called as a witness by the Defendant, was sworn and testified as follows:

THE CLERK: Please raise your right hand. 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.

MR. WACKS: I do.

THE CLERK: Please have a seat on the witness stand and state and spell your first and last names for the record.

MR. WACKS: It is Michael F. Wacks, W-A-C-K-S.

THE COURT: Mr. Cochran.

DIRECT EXAMINATION BY MR. COCHRAN

MR. COCHRAN: Mr. Wacks, you are here today pursuant to subpoena; is that correct?

MR. WACKS: That's correct.

MR. COCHRAN: And by whom are you employed, Mr. Wacks?

MR. WACKS: I'm a Special Agent with the FBI.

MR. COCHRAN: And for how long have you been so employed?

MR. WACKS: It will be 24 years this October, or 25, excuse me.

MR. COCHRAN: And you are presently assigned to the Los Angeles office?

MR. WACKS: Yes, I am.

MR. COCHRAN: Now, are you acquainted with two individuals by the name of Larry and Craig Fiato?

MR. WACKS: Yes, sir.

MR. COCHRAN: Approximately how long have you known these individuals?

MR. WACKS: I have known the Fiatos since approximately 1982.

MR. COCHRAN: And in what capacity have you known them since 1982?

MR. KELBERG: Objection, your Honor.

THE COURT: Sustained.

MR. COCHRAN: Well, you have worked with them over the course of the last twelve or thirteen years; is that correct?

MR. WACKS: Yes, I have.

MR. COCHRAN: Have they been witnesses for the government during that period of time?

MR. WACKS: Yes, they have.

MR. COCHRAN: And they have testified for the Prosecution?

MR. WACKS: Yes, they have.

MR. COCHRAN: Now, in this matter, just a few moments ago, you refused to talk with me prior to your taking the stand; isn't that correct?

MR. WACKS: Well, I was asked by the--the assistant United States Attorney if I wanted to speak to somebody from the Defense and I said no.

MR. COCHRAN: Well, that happened to be me?

MR. WACKS: Well, I didn't know that, sir.

MR. COCHRAN: It wasn't personal I'm sure.

MR. WACKS: No, sir.

THE COURT: Wait, wait.

MR. COCHRAN: Sorry. Go ahead.

THE COURT: You know the drill; don't talk when the lawyer is asking you question.

MR. COCHRAN: And I know the drill.

THE COURT: You know the drill.

MR. COCHRAN: I know the drill and I will remember the drill.

THE COURT: Thank you.

MR. COCHRAN: You refused to talk to the Defense; isn't that correct?

MR. WACKS: That is correct.

MR. COCHRAN: You previously talked to the Prosecution on at least two occasions; isn't that correct?

MR. WACKS: Yes, sir.

MR. COCHRAN: On September 14th and also on September 16th; is that correct?

MR. WACKS: I believe it was Tuesday and Friday, yes.

MR. COCHRAN: All right. Now, sir, when the Fiatos have come to California to testify on cases, have you been out here kind of looking out here for them when they come here and testify?

MR. WACKS: Yes, sir.

MR. COCHRAN: They have been to California to testify on a murder cases down the hall in this building how many times this year?

MR. WACKS: Umm, they have been out at least three or four times I believe.

MR. COCHRAN: All right. I want to direct your attention back to the month of February of 1995. Do you remember that particular month?

MR. WACKS: Yes, sir.

MR. COCHRAN: And on that month did you have occasion to walk out on a landing on the 18th floor of this building during the middle of a conversation between Larry Fiato and Detective Philip Vannatter?

MR. WACKS: Yes, sir, I did.

MR. COCHRAN: And Detective Philip Vannatter is the gentleman who just preceded you to the stand; is that correct?

MR. WACKS: That's correct.

MR. COCHRAN: And when you walked out on this landing, first of all, I want you to describe for the jury who was present on this landing?

MR. WACKS: Umm, when I walked out it was Detective Vannatter and Larry Fiato.

MR. COCHRAN: And were they the only two there?

MR. WACKS: Yes, sir.

MR. COCHRAN: And this landing, is this an area where people go to smoke outside of this building?

MR. WACKS: Yes, on the 18th floor.

MR. COCHRAN: Do you know how long these two individuals had been out there before you went out there?

MR. WACKS: I believe it was only a matter of minutes.

MR. COCHRAN: A short time?

MR. WACKS: Yes, sir.

MR. COCHRAN: And you were there in furtherance of your duties of kind of looking after the Fiato brothers; is that correct?

MR. WACKS: Part. I was also going out to have a cigarette.

MR. COCHRAN: All right. But you were up in the D.A.'s office because you were with the Fiatos?

MR. WACKS: Yes, sir, I was.

MR. COCHRAN: All right. Do you still smoke?

MR. WACKS: Unfortunately, yes.

MR. COCHRAN: Don't have to answer. Now, at any rate, you walked out there, and when you walked out there you heard some conversation that went on between Detective Vannatter and Larry Fiato; isn't that correct?

MR. WACKS: That's correct.

MR. KELBERG: Objection, leading and suggestive.

THE COURT: Overruled.

MR. COCHRAN: And what you heard was you heard Detective Vannatter state to Larry--

MR. KELBERG: Objection, your Honor.

MR. COCHRAN: Calling him as an adverse witness, your Honor.

THE COURT: Sustained.

MR. COCHRAN: Adverse witness.

THE COURT: Proceed. Not until it is necessary, counsel.

MR. COCHRAN: Well--

THE COURT: Not until there is a showing that it is necessary. Proceed.

MR. COCHRAN: All right.

THE COURT: I understand, counsel. Ask him a question. We will see what the response is.

MR. KELBERG: Your Honor, I can't hear counsel's remarks to the court when he sotto voces them.

THE COURT: I know. Proceed.

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. KELBERG: Thank you.

THE COURT: It should be clear.

MR. COCHRAN: Yes.

THE COURT: Proceed.

MR. COCHRAN: Thank you.

MR. COCHRAN: Now, when you walked out there you heard Detective Vannatter make a statement to Larry Fiato; isn't that correct?

MR. WACKS: (No audible response.)

MR. COCHRAN: Answer that yes or no.

MR. WACKS: Yes.

MR. COCHRAN: And what statement did you hear Detective Vannatter say to Larry Fiato?

MR. WACKS: Well, I can't give you an exact quote. It was more of a comment, something to the effect of not going up to the house to save victims and that he was a suspect.

MR. COCHRAN: All right. Well, let me ask you specifically if this is what you indicated in your interview on September 16th, 1995, in the D.A.'s office. "We didn't go up there with the intention of saving lives. He was the suspect." Isn't that what you said he said?

MR. WACKS: I said I heard something to that effect. I also said in the statement I do not recall the exact words.

MR. COCHRAN: All right. That is as close as you can remember as you sit here now?

MR. WACKS: Something to that effect, yes.

MR. COCHRAN: All right. That--they went to the Simpson's Rockingham residence. They didn't go there with the intention of saving lives but because O.J. Simpson was a suspect, right?

MR. WACKS: It was something to the effect that we went up to the house with no intention of saving lives, that he was a suspect. I never heard the word Mr. Simpson's name mentioned nor did I hear the Rockingham house mentioned, but I just heard--

MR. COCHRAN: You knew that Detective Vannatter was talking about O.J. Simpson; isn't that correct?

MR. WACKS: I assumed he was, yes.

MR. COCHRAN: Because you knew from conversations with the Fiato brothers that there had been an earlier conversation in January of 1995; isn't that correct?

MR. KELBERG: Objection, your Honor.

THE COURT: Sustained, sustained.

MR. COCHRAN: Well--

THE COURT: Sustained.

MR. COCHRAN: Let me phrase it another way, your Honor.

MR. COCHRAN: Weren't you aware, through conversations with the Fiato brothers, that there had been an earlier conversation in a hotel room downtown here?

MR. KELBERG: Objection, your Honor, calls for hearsay.

MR. COCHRAN: Let me finish.

THE COURT: Sustained, sustained.

MR. COCHRAN: With regard--

THE COURT: Hearsay, counsel, at this point.

MR. COCHRAN: All right.

MR. COCHRAN: At any rate, there was no doubt in your mind he was talking about the O.J. Simpson case, was there?

MR. WACKS: No.

MR. COCHRAN: In fact, you were quite surprised that Detective Vannatter would be discussing the Simpson case with Larry Fiato; isn't that correct?

MR. KELBERG: Objection, leading, your Honor.

THE COURT: Sustained.

MR. COCHRAN: Were you surprised that Detective Vannatter would be discussing the Simpson case with Larry Fiato?

MR. WACKS: I was somewhat surprised, yes.

MR. COCHRAN: That is not something you would do, is it?

MR. WACKS: Discuss the Simpson case with--

MR. COCHRAN: Well, no. You wouldn't even discuss the Simpson case with me, so I'm sure you wouldn't, but that is not something that you would do in discussing one of your cases with a witness somewhere, would you?

MR. WACKS: Normally not, no.

MR. COCHRAN: Now, after this conversation, after the part that you heard, you then were out on the landing with the two of them; is that correct?

MR. WACKS: Yes. We were out there for a brief period after that, yes.

MR. COCHRAN: How much longer were you out there before that conversation terminated?

MR. WACKS: I would just say two or three more minutes, enough to finish the cigarette.

MR. COCHRAN: All right. Was there any further discussion, during this particular period of time now, the time after you arrived, about the O.J. Simpson case and what Vannatter did?

MR. WACKS: No, none at all.

MR. COCHRAN: All right. Was Detective Lange on this landing at any time that particular day?

MR. WACKS: No, sir.

MR. COCHRAN: Did Craig Fiato, Larry Fiato's brother, come out at any time during that conversation?

MR. WACKS: No, sir.

MR. COCHRAN: Where was Craig Fiato, if you know, during the time of this conversation on the landing?

MR. WACKS: I believe he was in the District Attorney's office reception area.

MR. COCHRAN: All right. Now, I want to direct your attention back to that conversation that took place that we have just been talking about in February of 1995, right?

MR. WACKS: I believe it was the first week or two of February, yes.

MR. COCHRAN: First week or two?

MR. WACKS: Yes.

MR. COCHRAN: Do you have a specific date for us?

MR. WACKS: No, I do not.

MR. COCHRAN: All right. Now, are you aware whether or not there was another conversation involving Detective Vannatter and the Fiato brothers wherein the subject matter of going to O.J. Simpson's house took place in January of 1995?

MR. KELBERG: Calls for hearsay.

MR. COCHRAN: Are you aware of that? Yes or no?

THE COURT: Overruled. You can answer that question yes or no. Are you aware of any other conversation?

MR. WACKS: I am aware of the comment that the Fiato brothers overheard Detective Vannatter make, yes.

MR. COCHRAN: All right. And when was that comment?

MR. KELBERG: Objection, your Honor. That would call--

THE COURT: Sustained. Foundation.

MR. COCHRAN: Well--now, with regard to that particular comment, you say that you are aware of it, and as a result of your being aware of that conversation are you aware of when that conversation took place, the one between the Fiato brothers and Detective Vannatter that preceded the February of 1995 conversation?

MR. KELBERG: Same objection, your Honor.

THE COURT: Sustained.

MR. COCHRAN: I am seeking to lay a foundation, your Honor.

THE COURT: Proceed.

MR. COCHRAN: All right. Now, were the Fiato brothers here in southern California in January of 1995?

MR. WACKS: Yes, they were.

MR. COCHRAN: And were they housed in a hotel downtown Los Angeles?

MR. KELBERG: Your Honor, I will--

THE COURT: Sustained, sustained.

MR. COCHRAN: Were they in some hotel in this general area?

THE COURT: Sustained.

MR. KELBERG: And--

MR. COCHRAN: Was there a time when Detective Vannatter and Detective Lange and the Fiato brothers met in January of 1995 that you are aware of, sir?

MR. KELBERG: Calls for speculation or hearsay.

THE COURT: Overruled. Are you aware of that meeting?

MR. WACKS: Yes, I am.

THE COURT: Next question.

MR. COCHRAN: And can you tell us when that meeting took place generally?

MR. WACKS: Sometime in January, early January, I believe.

MR. COCHRAN: All right. The first week or first two weeks?

MR. WACKS: Yes. It was sometime right after the Superbowl.

MR. COCHRAN: Around the Superbowl?

MR. WACKS: I believe sometime after the Superbowl.

MR. COCHRAN: Well, let's see now. The Superbowl usually takes place the last Sunday in January?

MR. WACKS: Well, then it--it was my impression it was sometime around the Superbowl. It may have been one or two weeks on the early side of January.

THE COURT: Counsel, we have narrowed it down to January. Is there a really a precise date that is necessary?

MR. COCHRAN: That is fine.

MR. COCHRAN: January of 1995; is that correct?

MR. WACKS: That's correct.

MR. COCHRAN: At that time of this conversation that we are about to talk about were you present during this conversation at all?

MR. WACKS: No, I was not.

MR. COCHRAN: And with regard to your knowledge of this conversation, would I be correct in assuming that you got the information about what was said during this January conversation from the Fiato brothers?

MR. WACKS: Yes.

MR. COCHRAN: They told you what had been said; is that correct?

MR. WACKS: Well, they told me about the meeting, and in the course of this meeting what had been said, yes.

MR. COCHRAN: All right. And when were you told about what had been said--

MR. WACKS: I believe--

MR. COCHRAN: --by the Fiato brothers?

MR. WACKS: Excuse me. I believe it was the next day or two, whenever I went back to the hotel to pick them up to transport them down to--to testify in the Christi murder trial.

MR. COCHRAN: All right. This is during the time they were out here to testify; is that correct?

MR. WACKS: Yes, sir.

MR. COCHRAN: Did you ascertain whether or not there was a Deputy District Attorney by the name of dale Davidson also present during this time?

MR. WACKS: I was told he was at this meeting, yes.

MR. KELBERG: Move to strike, your Honor.

THE COURT: Stricken. Hearsay. The jury is to disregard.

MR. COCHRAN: All right.

MR. COCHRAN: Now, were you--may we approach just for a moment, your Honor? We may want to take a break, but I want to ask one question.

MR. COCHRAN: And I want to ask you--

THE COURT: I don't think we are going to finish.

MR. COCHRAN: No.

THE COURT: All right. Ladies and gentlemen, we are going to take our noon recess at this time. Please remember all my admonitions to you. Don't discuss the case among yourselves, form any opinions about the case, conduct any deliberations until the matter has been submitted to you or allow anybody to communicate with you with regard to the case. We will stand in recess until 1:00 P.M. and Agent Wacks, you are ordered to come back at 1:00 P.M. thank you, sir.

(A conference was held at the bench, not reported.)

(At 12:05 P.M. the noon recess was taken until 1:00 P.M. of the same day.)

LOS ANGELES, CALIFORNIA; TUESDAY, SEPTEMBER 19, 1995 1:10 P.M.

Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted; also present, Douglas Mirell, Esquire; Karen N. Frederiksen, representing, ABC, NBC, CBS, Times Mirror.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: Back on the record in the Simpson matter. All parties are again present. All right. Deputy Trower, let's have the jurors, please.

MR. KELBERG: Your Honor--

MR. COCHRAN: Your Honor, there is a couple--

THE COURT: Get them out of the jury box. The jury is coming in, guys. I know we are desperate for volunteers, but--

MR. MIRELL: Not that desperate, your Honor.

THE COURT: Well--

(Brief pause.)

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. And Agent Wacks, would you resume the witness stand, please.

Michael J. Wacks, the witness on the stand at the time of the noon recess, resumed the stand and testified further as follows:

THE COURT: Let the record reflect that we have been rejoined by all the members of our jury panel. Special Agent Michael Wacks is again on the witness stand undergoing direct examining by Mr. Cochran. And Mr. Cochran, you may conclude your direct examination.

MR. COCHRAN: Thank you very kindly, your Honor. Good afternoon, FBI Agent Wacks.

MR. WACKS: Good afternoon.

MR. COCHRAN: Good afternoon, ladies and gentlemen.

DIRECT EXAMINATION (RESUMED) BY MR. COCHRAN

MR. COCHRAN: Now, when we left this morning I was asking you some questions about your--this conversation that you overheard in February of 1995 in this building involving Detective Vannatter and Mr. Larry Fiato. Do you recall that?

MR. WACKS: Yes, sir.

MR. COCHRAN: By the way, are the Fiato brothers in this building today right now?

MR. WACKS: To the best of my knowledge they are, yes. Where in this building I have no idea.

MR. COCHRAN: They are still under your care and control?

MR. WACKS: They are under the care and control of another agent at this particular time.

MR. COCHRAN: All right. Because you are a witness now?

MR. WACKS: That's right, sir.

MR. COCHRAN: But they are still under the care and control of the FBI; is that right?

MR. WACKS: Yes, sir.

MR. COCHRAN: By in large their identities are secret; is that correct?

MR. WACKS: Yes, they are.

MR. COCHRAN: They have been part of this program for about twelve years?

MR. KELBERG: Objection, your Honor.

MR. COCHRAN: Just generally.

THE COURT: Sustained, sustained.

MR. COCHRAN: During this period of time you have vouched for them and their credibility, have you not?

MR. KELBERG: Objection.

THE COURT: Sustained.

MR. COCHRAN: Now, this conversation that you walked out on on this balcony, you have described for us earlier what you heard and I want to ask you specifically did you, when you walked out on this conversation, hear Detective Vannatter say to Mr. Larry Fiato that, quote, "The husband is always a suspect"? Did you ever that?

MR. WACKS: No, sir, I did not hear that.

MR. COCHRAN: Didn't hear that part of the conversation?

MR. KELBERG: Objection, your Honor. That assumes a fact not in evidence.

THE COURT: Sustained. Rephrase the question.

MR. COCHRAN: All right. You don't recall hearing that portion of the conversation where the husband is always the suspect; is that correct?

MR. KELBERG: Same objection.

THE COURT: Sustained.

MR. COCHRAN: All right. Did you hear, at any time when you were out there, Detective Vannatter say, in addition to the things you have told this jury about, "The husband is always the suspect"?

MR. WACKS: No, sir, I did not.

MR. COCHRAN: All right. Now, in the course of this conversation you described for us that you went out there to smoke yourself and that you--the conversation continued over a period of time. And it is correct, is it not, that during the time of this conversation you heard Detective Vannatter and Mr. Larry Fiato talking about things like Detective Vannatter's house?

MR. KELBERG: Objection, leading and suggestive.

MR. COCHRAN: Well--

THE COURT: Counsel, the only thing that is relevant here are the twelve words.

MR. COCHRAN: No, no, no, your Honor.

THE COURT: Yes.

MR. COCHRAN: Respectfully, would the court allow me some leeway? It has to be with what happened--

THE COURT: No. Proceed.

MR. COCHRAN: Credibility.

THE COURT: Proceed, counsel.

MR. COCHRAN: Okay. At the appropriate time maybe you will let me approach.

THE COURT: Proceed.

MR. COCHRAN: All right.

MR. COCHRAN: Do you know whether or not Larry Fiato and Detective Vannatter had spoken on occasions prior to this date in February of 1995?

MR. WACKS: Yes, I believe they have.

MR. COCHRAN: Do you know on how many occasions they had spoken before that time, the time on the landing?

MR. KELBERG: That would call for hearsay.

MR. COCHRAN: If you know. I'm asking.

THE COURT: Overruled.

MR. WACKS: No, sir, your Honor. There are many times where we were put into the company of Detective Vannatter only because where we are being required to stay in the D.A.'s office.

MR. COCHRAN: I understand. So many times--well, how many times is "Many"?

MR. WACKS: Oh, I would say maybe a dozen times.

MR. COCHRAN: Have you ever seen them drink a beer together during any of these times?

MR. WACKS: No. No, sir, I haven't.

MR. COCHRAN: You weren't in that hotel room back in January, were you?

MR. WACKS: No, sir, I was not.

MR. COCHRAN: Now, after you heard this statement that Detective Vannatter made to Larry Fiato, did you and Larry Fiato have occasion to talk about that statement shortly after the statement was made by Vannatter?

MR. WACKS: We talked on the way back to the hotel that night--that afternoon.

MR. COCHRAN: In the course of that conversation did the subject matter of what Vannatter had said out on the landing come up?

MR. WACKS: Yes, it did.

MR. KELBERG: Move to strike.

MR. COCHRAN: You have answered that. You have answered that.

MR. COCHRAN: So the subject matter came up and you had a further conversation about that on the way back to the hotel?

MR. WACKS: It wasn't really a conversation; it was more of a comment by Mr. Fiato.

MR. COCHRAN: All right. Mr. Fiato made some comment on the way back to the hotel, right?

MR. WACKS: Yes, sir.

THE COURT: While we are talking to Larry Fiato, right?

MR. COCHRAN: Larry Fiato, yes, your Honor.

MR. COCHRAN: You can't tell us what the comment was, but did the comment relate to whether or not Larry Fiato had heard--

MR. KELBERG: Objection, your Honor.

THE COURT: Sustained, sustained.

MR. COCHRAN: May I finish?

THE COURT: Sustained. Hearsay, counsel, the way it was phrased.

MR. COCHRAN: The way it is phrased?

THE COURT: The way it is phrased. Proceed.

MR. COCHRAN: This comment that you were about to talk about or we were about to ask you about, were just you and Larry Fiato in the car alone at that time?

MR. WACKS: No. Craig Fiato was in the car with us.

MR. COCHRAN: The comment was made by Larry Fiato right?

MR. WACKS: Yes, it was.

MR. COCHRAN: Did it relate to events of January of 1995?

MR. KELBERG: Objection, your Honor, hearsay.

THE COURT: Overruled.

MR. COCHRAN: Did it relate to January of 1995?

MR. WACKS: It related to the event at the hotel.

MR. COCHRAN: All right. We talked about that briefly. Now, after that, after the conversation on the way back to the hotel, did you have occasion to talk again with Larry Fiato at any time after that about this conversation with Vannatter after that date?

MR. WACKS: We may have, but I don't recall any conversation.

MR. COCHRAN: All right. Now, Detective--FBI Agent Wacks, did you, after hearing this conversation, ever report this conversation to any of your superiors after the conversation in February of 1995 up until Monday, September 11th--prior to Monday, September 11th, did you--1995, did you report that conversation or the contents of that conversation to your superiors?

MR. WACKS: No, sir, I did not.

MR. COCHRAN: All right. Did you have occasion last week, on or about Monday, September 11th, 1995, to report that conversation to your superiors?

MR. WACKS: Yes, I did.

MR. COCHRAN: And on what date did you do that?

MR. WACKS: It was--what date?

MR. COCHRAN: Yes. What date was it?

MR. WACKS: I believe it was Monday, the 11th.

MR. COCHRAN: All right. So let me make sure I'm clear. Between February of 1995 and September 11th you didn't report it to anyone, right, any superior?

MR. WACKS: No, sir, I did not.

MR. COCHRAN: Okay. On Monday, September, 11th did you in fact report it?

MR. WACKS: Yes, sir.

MR. COCHRAN: And did you report it to Special Agent Marshall?

MR. WACKS: Yes, I did.

MR. COCHRAN: Did you prepare a written report of some kind?

MR. WACKS: No, no.

MR. COCHRAN: Report it to him orally?

MR. WACKS: Yes, I did.

MR. COCHRAN: And that was on the 11th of September; is that correct?

MR. WACKS: (No audible response.)

MR. COCHRAN: And then after that it was on the 14th of September that you were interviewed by Mr. William Hodgman, the gentleman right here in the middle, from the L.A. County District Attorney's office; isn't that correct, the first time?

MR. WACKS: No. I believe it was on the 12th.

MR. COCHRAN: I think on the 12th, the very next day?

MR. WACKS: I believe it was the 12th, the night of the 12th.

MR. COCHRAN: I think you are right. September 12th, that was the day after you reported this matter to your superior, right?

MR. WACKS: That's correct.

MR. COCHRAN: Did you know if your superior contacted anyone in the District Attorney?

MR. WACKS: I couldn't tell you that.

MR. COCHRAN: Okay. But you talked to your superior on the 11th and at about 7:25 P.M. on the 12th you then talked to Mr. Hodgman; isn't that right?

MR. WACKS: That's correct, yes.

MR. COCHRAN: Where did that conversation take place?

MR. WACKS: At the District Attorney's office.

MR. COCHRAN: Was that conversation tape-recorded?

MR. WACKS: No, it was not.

MR. COCHRAN: Why wasn't it tape-recorded?

MR. WACKS: I wasn't asked to be subject to a tape-recorded interview.

MR. COCHRAN: That is not against FBI policy?

MR. WACKS: It is against FBI policy, but when I came down to give the interview I was never asked if I would mind if the interview was taped.

MR. COCHRAN: All right. At any rate, the interview started at about 7:25 and it lasted until about 8:15 in the evening; is that correct?

MR. WACKS: That's correct.

MR. COCHRAN: Who was present during that interview?

THE COURT: Counsel, hold on. This is not relevant.

MR. COCHRAN: Well, I can link it up, but I will move on, your Honor.

THE COURT: Move on.

MR. COCHRAN: All right.

MR. COCHRAN: And in that interview with Mr. Hodgman you tried to be as accurate as you could about what took place; isn't that correct?

MR. WACKS: Yes, I did.

MR. COCHRAN: And then after that interview there was a subsequent interview that took place three days later on September 15th, last Friday; isn't that correct?

MR. WACKS: That's correct, Friday morning.

MR. COCHRAN: Friday morning. And that interview took place where?

MR. WACKS: In the District Attorney's office.

MR. COCHRAN: Same location?

MR. WACKS: Yes.

MR. COCHRAN: And who was--was Mr. Kelberg present during that interview?

MR. WACKS: Yes, he was.

MR. COCHRAN: Along with Mr. Hodgman?

MR. WACKS: Yes.

MR. COCHRAN: And again you told what you knew about this particular incident; isn't that correct?

MR. WACKS: That's correct.

MR. COCHRAN: Now, in this conversation that you had that you overheard Detective Vannatter making these statements to Larry Fiato, you never saw Detective Vannatter laughing during this conversation, did you?

MR. WACKS: No, I--no, I did not.

MR. COCHRAN: All right. You didn't see him smiling during the time of this conversation either, did you, sir?

MR. WACKS: I don't recall whether he was smiling or not.

MR. COCHRAN: And you, during the time that you heard him make this statement regarding Mr. Simpson being the suspect and they weren't there to save lives, did you ever ask him any questions at that point?

MR. WACKS: No, I did not.

MR. COCHRAN: Did you say anything yourself to him at that point?

MR. WACKS: No, I did not.

MR. COCHRAN: So whatever concerns you registered or thought at that time, you kept them to yourself; is that right?

MR. WACKS: I didn't really have a thought about it. It didn't mean very much to me. I didn't make any comment one way or the other.

MR. COCHRAN: Well, didn't you say that--didn't you tell the District Attorney's, when you were interviewed by them, as follows: "That I was just surprised because he has never discussed the case before." Do you remember saying that to the D.A.'s?

MR. WACKS: I thought you asked me if I made a comment to Mr. Vannatter.

MR. COCHRAN: Sure.

MR. WACKS: I did say that to the District Attorney's office, yes.

MR. COCHRAN: What I was asking you--I will put it in context for you so we are clear--you did not make a statement to Detective Vannatter when you heard him make those statements, did you?

MR. WACKS: No, sir, I did not.

MR. COCHRAN: You shared with this jury earlier that you would not discuss your cases with witnesses normally?

MR. WACKS: That's correct.

MR. COCHRAN: Right? And you told the District Attorney's office that you were surprised that Vannatter was discussing this case with this witness, right?

MR. WACKS: Yes, I did.

MR. COCHRAN: All right. And my question to you was did you say anything to Vannatter at that time, registering your surprise at all?

MR. WACKS: No, I did not.

MR. COCHRAN: All right.

MR. COCHRAN: All right.

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: Now, during the course of this conversation between Larry Fiato and Vannatter, did they discuss personal things? Did you hear Vannatter discussing personal things?

MR. WACKS: No, I did not.

MR. COCHRAN: Do you remember--

MR. WACKS: Not--

MR. COCHRAN: Okay. Go right ahead, please.

MR. WACKS: When I came into the conversation it was either in the middle or the very end. The conversation stopped. Then we talked about some personal matters, as we always do.

MR. COCHRAN: All right. As you always do?

MR. WACKS: Yes.

MR. COCHRAN: So when you talked about personal things--and your Honor, I would like, if I might, just briefly approach?

THE COURT: It is not relevant. You have got the statement in, the fifteen words that are relevant here. Let's move on. Very limited scope here, counsel.

MR. COCHRAN: I appreciate that and I--

THE COURT: Let's move on.

MR. COCHRAN: All right, your Honor. May I have just a second, your Honor?

THE COURT: Certainly.

(Brief pause.)

MR. COCHRAN: Do you know who Vic Walters is?

MR. WACKS: Yes, I do.

MR. COCHRAN: And you met him in April of 1995?

MR. WACKS: Yes, I did.

MR. COCHRAN: And by whom is he employed?

MR. WACKS: ABC.

THE COURT: This is not relevant.

MR. COCHRAN: I have one other question in that regard, your Honor.

MR. COCHRAN: Well--

THE COURT: It is not relevant. Anything else?

MR. COCHRAN: If I may have just a second?

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: May I have just a second, your Honor?

THE COURT: Certainly.

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: Nothing further at this point, your Honor.

THE COURT: Very well. Mr. Kelberg.

MR. KELBERG: Thank you, your Honor. Very briefly. Good afternoon, ladies and gentlemen, and good afternoon, Agent Wacks.

CROSS-EXAMINATION BY MR. KELBERG

MR. KELBERG: Agent Wacks, I was not present for the first conversation you had with Mr. Hodgman, correct?

MR. WACKS: That is correct.

MR. KELBERG: Basically, would it be accurate to say that in the second conversation in our offices where I was present that we asked you to tell us what you knew, much the same--

MR. COCHRAN: Objection, your Honor. This is hearsay, self-serving.

THE COURT: Overruled.

MR. KELBERG: Much the same ground that had been gone over with Mr. Hodgman in my absence in the earlier interview; is that correct?

MR. WACKS: That is correct.

MR. KELBERG: At that time we did ask to tape-record the interview?

MR. WACKS: That is correct.

MR. KELBERG: You had an attorney representing the Federal Bureau of Investigation who told us it was against policy to do so, as a result of which it was not tape-recorded; is that correct?

MR. WACKS: Yes, sir.

MR. KELBERG: Now, going back to the smoking deck incident, it would not be accurate to say that you interrupted a conversation? What you interrupted was a comment being made by Mr. Vannatter. That would be accurate, would it not?

MR. COCHRAN: Objection, leading and suggestive.

THE COURT: Overruled.

MR. WACKS: That's correct, yes.

MR. KELBERG: You have no idea what was said, if anything, before you heard the comment?

MR. COCHRAN: Leading and suggestive, your Honor.

THE COURT: Overruled.

MR. WACKS: I have no idea what he said before.

MR. KELBERG: And sir, in fact the tone you heard in Mr. Vannatter's voice, as he was saying the comment you heard him say, was one of sarcasm, wasn't it?

MR. COCHRAN: Object again, your Honor, leading and suggestive.

THE COURT: Overruled. Counsel, that objection is not well taken. This is cross-examination. Proceed.

MR. WACKS: In my opinion it was totally sarcastic, yes.

MR. KELBERG: And from what you heard it would be consistent with a man who is venting his frustrations over accusations that had been made against him by other Los Angeles--

MR. COCHRAN: Objection, your Honor, calls for speculation.

MR. KELBERG: Isn't that correct?

THE COURT: Sustained, sustained.

MR. KELBERG: Now, sir, there was nothing about what you heard that you thought was significant, is that a fair statement?

MR. COCHRAN: Object to the form of that question. Calls for speculation, your Honor.

THE COURT: Overruled.

MR. WACKS: I put no import to the statement whatsoever.

MR. KELBERG: Were you trying to hide something that you thought was exculpatory evidence from Mr. Simpson by not reporting it?

MR. WACKS: Absolutely not.

MR. KELBERG: Now, sir, why did you report, on September 11th, 1995, the comment that you had heard Mr. Vannatter make on some date in February of 1995?

MR. WACKS: I thought by what Mr. Fiato had told me that this information was now in the hands of the media and I thought the media was going to make a big deal over nothing, and I thought that it was my duty to tell my supervisor that at least this situation existed and was going on.

MR. KELBERG: And to set it in context, sometime around September 11th Craig Fiato told you that he had talked to Vic Walters at ABC and had mentioned the comment that you had overheard Mr. Vannatter make on the smoking deck, right?

MR. COCHRAN: Object to the form of that. That misstates the two comments.

THE COURT: Overruled.

MR. KELBERG: You may answer the question.

MR. WACKS: Yes, that's correct.

MR. KELBERG: May I have a moment, your Honor?

(Discussion held off the record between the Deputy District Attorneys.)

MR. KELBERG: And would it be accurate to say, sir, that you have followed some of the proceedings in the Simpson case over the last year's time?

MR. WACKS: Somewhat. Like any other citizen, I suppose.

MR. KELBERG: And given what you have seen, were you concerned that the media might try and make something out of that comment that would be out of proportion to its significance as you understood it when you heard it?

MR. COCHRAN: Calls for speculation. I object.

THE COURT: Sustained. Rephrase the question.

MR. KELBERG: All right. Mr. Wacks, were you concerned that the media might twist what was said into something that was never of substance?

MR. COCHRAN: I object to the form of that question, your Honor.

THE COURT: Overruled.

MR. WACKS: That is exactly what I thought, yes, sir.

MR. KELBERG: And that is why you told your supervisor?

MR. WACKS: That's correct.

MR. KELBERG: And as a result of telling your supervisor, out of an abundance of caution, the matter was reported to our office, correct?

MR. WACKS: That is correct.

MR. KELBERG: And you were interviewed as part of that investigation?

MR. WACKS: On two occasions, yes.

MR. KELBERG: And it was your understanding that reports were prepared of your two interviews with our lawyers, correct?

MR. WACKS: Yes, yes, they were.

MR. KELBERG: And it was your understanding that we turned over, along with whatever else we had in the way of the investigation, those reports to Mr. Cochran and to the other lawyers on the Defense team so they would know what you had told us; is that correct?

MR. WACKS: I assume that is what happened, yes.

MR. KELBERG: That is basically your understanding of how the process works?

MR. WACKS: That is why I'm sitting here today, I believe, yes.

MR. KELBERG: May I have one more moment, your Honor?

(Discussion held off the record between the Deputy District Attorneys.)

MR. KELBERG: I have nothing further.

(Discussion held off the record between Defense counsel.)

THE COURT: Mr. Cochran, you may redirect. You may redirect into the ABC issue.

MR. COCHRAN: Thank you, your Honor.

THE COURT: You are welcome.

REDIRECT EXAMINATION BY MR. COCHRAN

MR. COCHRAN: Now, Mr. Wacks, you became aware, sometime around September 11th, 1995, that Craig Fiato had called Vic Walters of ABC news; isn't that correct?

MR. WACKS: Did you say September or--

MR. COCHRAN: Well, sometime around September of this particular month?

MR. WACKS: Well, I became aware on September 11th, yes, that he called, but I believe the phone call was on the preceding Friday.

MR. COCHRAN: I'm talking about the time you became aware of it, sir?

MR. WACKS: Yes. I'm sorry, yes.

MR. COCHRAN: The phone call was probably on September 8th; is that correct, of 1995?

MR. WACKS: I believe so, yes.

MR. COCHRAN: You became aware of that phone call on September 11th, right?

MR. WACKS: That is correct, yes.

MR. COCHRAN: You became aware that Craig Fiato was upset at the way he had been treated out here in Los Angeles the last time he was out here; isn't that correct?

MR. WACKS: (No audible response.)

MR. COCHRAN: By people in the D.A.'s office?

MR. WACKS: Are you speaking about the conversation with Mr. Walters?

MR. COCHRAN: Yes. You became aware that Craig Fiato was upset at the way he had been treated by members of the District Attorney's office the last time he was out here?

MR. WACKS: I became aware that he related that to Mr. Walters, yes.

MR. COCHRAN: And you are aware that he made a statement to the effect that if they treat me the same way as they treated me before I will tell them what I know about the Simpson case? Didn't he tell Vic Walters that?

MR. WACKS: That is what he related to me that he told Mr. Walters. I don't know exactly what he told Mr. Walters. That is what he related to him.

MR. COCHRAN: He told him, I will tell `em what I know about the Simpson case, right?

MR. WACKS: Yes.

MR. COCHRAN: In that regard he was talking about the two incidents, the one in the hotel room in January of 1995 and the one on that landing in February of 1995, right?

MR. WACKS: When he told me that I wasn't exactly sure what he was talking about.

MR. COCHRAN: But at any rate, when you knew that ABC news knew about this, you were concerned there would be a program regarding this, weren't you?

MR. WACKS: No. I was concerned that ABC news if--if we are talking about the two incidents that I knew about, that they were going to make a big deal over nothing.

MR. COCHRAN: Yes. Now, you will--you met Vic Walters back in April of 1995, had you?

MR. WACKS: I was just introduced to him.

MR. COCHRAN: And you knew that Craig Anthony Fiato was working on a program, a TV program with ABC that is supposed to come out this fall. You knew that, didn't you?

MR. WACKS: Yes, I did.

MR. COCHRAN: You were aware he had been cooperating with him; isn't that correct?

MR. WACKS: That's correct.

MR. COCHRAN: I won't go into the subject matter, but you knew what the subject matter of that was, too, didn't you?

MR. WACKS: Yes, I did.

MR. COCHRAN: You knew when he made this statement--strike that. You also heard that there was--that there was a mystery witness in this case, did you not?

MR. WACKS: Yes, I did.

MR. COCHRAN: Once you heard that there was a statement in this room there was going to be a mystery witness, you thought and believed that Craig Fiato and Larry Fiato were those mystery witnesses? Didn't you think that.

MR. KELBERG: Objection, leading and suggestive.

THE COURT: Overruled.

MR. COCHRAN: I'm asking.

MR. COCHRAN: That is what you thought, isn't it?

MR. WACKS: No, that is not what I thought.

MR. COCHRAN: You didn't think they were the mystery witnesses?

MR. WACKS: No, I did not.

MR. COCHRAN: When you went and talked to your Special Agent Marshall about this, you told him what you had heard and what you through about this, didn't you?

MR. WACKS: That's correct.

MR. COCHRAN: He then immediately told you this was important and contacted the District Attorney's office; isn't that right?

MR. WACKS: No, that is not what happened.

MR. COCHRAN: Do you know what he said to the D.A.'s office? Were you present?

MR. WACKS: No, but there was--there was another sequence of events before it was reported to the District Attorney's office that happened that caused him to believe they were or at least Craig Fiato was this mysterious witness.

MR. COCHRAN: All right. Well, let me take it a step at a time. At some point after Craig Fiato made this telephone call to Vic Walters of ABC news and Vic Walters and Brian Ross--who is the investigative reporter; isn't that correct?

MR. WACKS: Well, he told me he talked to Vic Walters.

MR. COCHRAN: All right.

THE COURT: Wait a minute. The subject matter of this ABC report has nothing to do with this case, correct?

MR. COCHRAN: Well, it may.

MR. KELBERG: Your Honor, it doesn't.

THE COURT: All right.

MR. COCHRAN: Just--

THE COURT: Let's move on.

MR. COCHRAN: They opened the door, your Honor.

THE COURT: Mildly, but now we have explained what the contemplation was, what the issues were. We have covered it. Let's move on.

MR. COCHRAN: We will move on. Let me just get a sequence, your Honor.

MR. COCHRAN: After you became aware this conversation was made to ABC news by Fiato, you then had a conversation with Craig Fiato, didn't you?

MR. WACKS: Well, I had a conversation with him on the 11th when I picked him up at the airport.

MR. COCHRAN: He came back out here, right?

MR. WACKS: Yes.

MR. COCHRAN: All right. And at that time--did you call him some unusual name at that point?

MR. WACKS: Well, I--we called each other a lot of unusual names over the years.

MR. COCHRAN: What--well, the specifics--

MR. WACKS: On both sides.

MR. COCHRAN: I understand you guys talk about each other, and I don't want to embarrass anybody, but did you call him a special name on this occasion by virtue of the fact that he called Vic Walters?

MR. WACKS: Possibly. Oh, because he called Vic Walters?

MR. COCHRAN: Yes.

MR. WACKS: No. I have no control what Mr. Fiato does.

MR. COCHRAN: All right. You didn't go bonkers or berserk because he made this call?

MR. WACKS: No, I didn't show that much concern at all.

MR. COCHRAN: You didn't get all emotional?

MR. WACKS: No.

MR. COCHRAN: All right. Now, at any rate, moving on then, after that you talked with him and then you talked to Marshall after that; is that right?

MR. WACKS: After I dropped him off at the airport, I had lunch with Pat Marshall at another meeting and I mentioned the fact that this had occurred.

MR. COCHRAN: Marshall then called you back and beeped you or called you back the next day, was it?

MR. WACKS: It was the next morning, yes.

MR. COCHRAN: Early in the morning; is that right?

MR. WACKS: Yes. I was on my way to court--well, actually I was at home and I got a telephone call and a beep. I talked to him and he asked me to come into the office.

MR. COCHRAN: All right. You then went into his office and that is when you told him everything that you knew about this, right?

MR. WACKS: I told Mr. Marshall everything I knew about it the day before.

MR. COCHRAN: All right. But at that time he indicated to you--

MR. KELBERG: I will object, your Honor, as calling.

MR. COCHRAN: May I finish the question.

MR. KELBERG: We would object, your Honor.

THE COURT: Sustained.

MR. COCHRAN: After this second conversation with Marshall, that is when the D.A.'s office was notified?

MR. KELBERG: Objection, calling for speculation.

MR. COCHRAN: If you know?

THE COURT: Overruled.

MR. COCHRAN: He can answer that.

MR. WACKS: I believe it was, yes.

MR. COCHRAN: You talked to Bill Hodgman later that night?

MR. WACKS: That's correct, yes.

MR. COCHRAN: That started the road to getting us to this point; isn't that right?

MR. WACKS: That's correct.

MR. COCHRAN: Now, you described for us--and remember I asked you the question you never saw Vannatter laughing during this conversation or whatever. You--

MR. KELBERG: Objection, your Honor, as outside the scope of the court's limited reexamination.

THE COURT: Overruled, overruled.

THE COURT: Overruled.

MR. COCHRAN: Thank you, your Honor.

MR. COCHRAN: In this conversation that you told us about there were discussions about other things of a personal nature during this conversation; isn't that right?

MR. WACKS: Yes, there were.

MR. COCHRAN: And Vannatter talked about his--

THE COURT: Sustained. I have also sustained objections to the other matters.

MR. COCHRAN: What I'm trying to get at is based upon--

THE COURT: No, no.

MR. COCHRAN: He opened it.

THE COURT: I have already sustained the objections. We have heard the pertinent part of the conversation. This is a conversation during one cigarette length, all right?

MR. COCHRAN: I don't know if it is one cigarette or more for that matter.

THE COURT: Let's move on.

MR. COCHRAN: Now, during this conversation you answered one of Mr. Kelberg's questions--by the way, with regard to Mr. Kelberg, you refused to talk to me but you talked to Mr. Kelberg prior to your taking the stand, didn't you?

MR. KELBERG: Your Honor, outside the scope.

THE COURT: Sustained. It is outside the scope. We went through it once before, counsel. It is evident this Special Agent talked to Mr. Hodgman, then talked to Mr. Hodgman and Mr. Kelberg. He has talked to the Prosecution. He declined to talk to you. The jury knows that. Let's proceed.

MR. COCHRAN: All right.

MR. COCHRAN: Now, with regard to this conversation where you said that you believe that Detective Vannatter was sarcastic, did you say anything to him when you heard the sarcasm?

MR. KELBERG: Same objection.

THE COURT: Overruled.

MR. WACKS: No, sir, I did not.

MR. COCHRAN: Why don't you demonstrate for the jury how he said--tell us how sarcastically he said, "We didn't go up to Simpson's house not to save lives but because he was a suspect." Tell this jury how he said that sarcastically.

MR. WACKS: Well, I'm not much of an actor but he said something to the effect "Going up to the house to save lives, he is a suspect." It was so out of context that I couldn't give you an exact quote or the contents of it, but to my way of thinking it was said in a severe sarcastic tone.

MR. COCHRAN: You are right, you aren't an actor. But with regard to that, you don't know what was said before that, do you, because you told us you didn't?

MR. WACKS: No, sir, I do not.

MR. COCHRAN: You walked out there and what you heard him say was--

MR. KELBERG: Objection, your Honor, leading and suggestive, outside the scope. I have not objected to all of these leading questions.

THE COURT: Sustained, sustained.

MR. COCHRAN: Okay. With regard to the last thing you said, didn't you tell us before that you heard him say--

MR. KELBERG: Same objection your, Honor.

THE COURT: Counsel, we've gone through the statement now five times.

MR. COCHRAN: I will deal with this particular aspect, your Honor. I have a right to do that.

THE COURT: Five times is too many. Proceed. Either conclude with something that is new or sit down.

MR. COCHRAN: Well, I want to relate this part, your Honor. This is on redirect examination, if the court pleases.

THE COURT: Sarcastic, that is what you can cross on.

MR. COCHRAN: That is what I'm dealing with, if the court will allow me to.

MR. COCHRAN: Now, with regard to this sarcasm, when you heard this sarcastic statement, he said in the sarcastic manner that we didn't go up there to save lives; isn't that right?

MR. WACKS: Something to that effect.

MR. COCHRAN: We went up there because he was a suspect; isn't that right?

MR. WACKS: Something to that effect, yes. I do not know the exact content of what he said. I cannot recall the exact content.

MR. COCHRAN: You gave us your best recollection of that; isn't that correct?

MR. WACKS: That is correct.

MR. COCHRAN: All right. And this statement was made and you never made any comment at all; is that correct?

MR. WACKS: None whatsoever.

MR. COCHRAN: All right. You didn't think that was funny at the time, did you?

MR. WACKS: No.

MR. COCHRAN: You understand this is a very serious case about a man's life here? You understand that?

MR. KELBERG: Your Honor--

THE COURT: Sustained.

MR. COCHRAN: All right. Thank you.

THE COURT: You are welcome.

MR. KELBERG: May the witness be excused?

THE COURT: Anything further?

MR. KELBERG: Nothing.

THE COURT: All right. Thank you very much, sir.

MR. WACKS: Thank you, your Honor.

THE COURT: Next witness.

MR. SHAPIRO: Thank you, your Honor.

THE COURT: Who is your next witness?

MR. SHAPIRO: Mr. Larry Fiato, your Honor.

THE COURT: All right. Ladies and gentlemen, there is a matter I need to take up out of your presence before we call the next witness. Let me ask you to step out to the jury room, please.

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: The record should reflect the jury has withdrawn from the courtroom. Counsel, I have received and heard an application from the United States Attorney, Judge Manella, asking the court to take certain precautions if one of the Fiato brothers was called as a witness. I've heard the comments by the real parties in interest, both of whom have no opposition to the application by the United States Attorney. And I see Mr. Mirell is present. I don't see Miss Sager.

MS. FREDERIKSEN: My name is Karen Frederiksen. I am here for Miss Sager. She is out of town today.

THE COURT: Do you have any brief comment, counsel? Good afternoon.

MS. FREDERIKSEN: Good afternoon, your Honor, I will be brief. I'm a lawyer with Davis, Wright and Tremaine and I am here today representing NBC, CBS, ABC and times mirror. We have just caught wind this morning that there is a possible protective order presented to this court concerning Larry and Craig Fiato. We feel several concerns about that protective order. First and foremost we have not been informed of any reasons for treating the testimony of these witnesses in this courtroom differently than any other witnesses. We've learned from the U.S. Attorney's office today that neither of these individuals are former members of a--excuse me--a witness protection program.

MR. KELBERG: Your Honor, excuse me. Based upon the order that the court agreed to with respect to what their status is or isn't, it seems to me inappropriate for counsel on the record to go into that.

THE COURT: Well, she is indicating she has no information. The application by the United States Attorney, though, for the justification is under seal. Proceed.

MR. KELBERG: Okay.

MS. FREDERIKSEN: Your Honor, what we have learned from two sources today, two other media attorneys have learned today from the U.S. Attorney's office just what I've said, that these two individuals are not former members of the witness protection program.

I understand that there may be other concerns as to them. It is also our understanding, and I wanted to point out, your Honor, that both of these individuals have not only been photographed by the media and appeared widely, one of them last night, on TV was on several television programs, that both of them cooperated with ABC, as I think was reflected maybe earlier in the testimony today, in June of 1995, I'm informed from ABC, not only to have their photographs and being photographed on camera at length, but also to extensive interviews. And therefore, it is our belief that whatever interests they may have had about their protection, and again we don't know the detail, the information has been kept from us, that there is no reason not to have the cameras present and treat those as all other witnesses.

THE COURT: Do you have any of that information, any hard evidence from ABC interviews, photographs, anything that would convince the court that these persons are not interested in protecting their identities for or their own safety.

MS. FREDERIKSEN: I believe I can get that. I think there is a person in the audience, your Honor, but I need to check with her first, but I have spoken with the individual at ABC directly and they just provided me that information on my way over here.

THE COURT: All right. Any other comment, counsel?

MS. FREDERIKSEN: My only other comment, your Honor, is that if there is any special consideration to be given for these individuals, for reasons again that we are not told about, that there seems to be no compelling interest, I'm sure you will recall Miss Sager's frequent arguments before the court on the first amendment, the need for a compelling interest and the need for any restrictions on media access to being narrowly tailored. First of all, the first protective order as written is certainly overbroad. There are many photographs already out there of these two individuals. The protective order, as written, is not limited to either photos or testimony given during these proceedings. There is no time limitation. And we would, your Honor, conceive of no possible reason at this point why at least an audio feed, again if there is a special concern with these two individuals, and we don't believe that there is, but if there is, that there should at least be audio feed so that their testimony will be heard. The first amendment, we believe, requires this. They are two critical witnesses, from what we understand, if they are allowed to testify, we are not sure that they will be, but if they are, and there is no--there is no reason not to. We also understand besides, your Honor, and I know I don't have hard evidence with me, as to the ABC broadcast, that these individuals have, at least one of them, given interviews in the Boston Globe, other print media and several other broadcast media. It is not just one or two interviews; it is more than that. We are talking about and as recently as last night. I'm told there were several pictures of one of these individual on local networks and it was widely distributed and known.

THE COURT: Under interview conditions or surreptitious or candid conditions?

MS. FREDERIKSEN: My understanding, your Honor, the ABC interview was under interview conditions. These individuals were not disguised, I'm told, in any way, nor did they even request to be disguised in fashion. I don't know if the photographs that were broadcast last night were in the context of an interview or if they were merely out on the town, but they have made themselves widely known to the public and to the press. They have not shied away from the media at any turn. And these are not the kind of individuals that are deserving of any special protection and certainly don't present the kind of compelling interest that is necessary in this trial to treat them differently at this point this time.

THE COURT: All right. Thank you, counsel. Any response from the United States Attorney?

MS. O'CONNELL: Yes, your Honor. We have recently received similar information and we would like the opportunity to confirm that information with the Fiato brothers. And based on that, if this information turns out to be true, the government would withdraw the request with respect to the cameras. It would still ask this court to impose substantive restrictions on questioning, but what would withdraw the--

THE COURT: The scope of examination?

MS. O'CONNELL: Yes.

MR. KELBERG: Your Honor, could I just interject one thing? Participated in the interview of Larry Fiato, who is the next expected witness, Larry Fiato indicated, and I have asked if I can put this on the record and I've been informed by the federal lawyers that it is appropriate, he has a job, a very good job, and in our interview with him he did express concern that he doesn't want anything to happen to that job. And so I don't know if perhaps in her efforts to confirm the information that was indicated earlier, perhaps the representative from the United States Attorney's office could also check with Mr. Fiato on that aspect.

THE COURT: All right. Well, then what I would suggest we do is take a 15-minute recess. We can have counsel check with the proposed witnesses. We will see what our status is. And we will make a determination one way or the other.

MS. O'CONNELL: Thank you, your Honor.

MS. FREDERIKSEN: Thank you.

THE COURT: All right. We will stand in recess for fifteen.

(Recess.)

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. Counsel, did you learn anything new?

MS. O'CONNELL: Yes, your Honor. Based on both of my conversations with both of the Fiatos, the federal government would persist in a protective order. Both Craig Fiato and Larry Fiato--and I would like to break them down and deal with them separately first, your Honor. With respect to Craig Fiato, although this individual is not in the witness security program, the FBI has taken steps to protect Mr. Craig Fiato. He has granted an interview with ABC. This interview has not yet aired. I have spoken with him and he has stated to me that he is concerned with the cameras trained on him at this witness stand for his personal safety. With respect to Mr. Larry Fiato, Mr. Larry Fiato vehemently--he also has been protected by the FBI and has been given a new identity. He vehemently denies ever giving any interviews to ABC or anyone. He is concerned for his safety as well and feels that if his likeness or voice would be broadcast it would jeopardize his safety. And based on those reasons the government believes that there is sufficient cause to prohibit broadcast media of these witnesses likenesses.

THE COURT: All right. Any response?

MS. FREDERIKSEN: Your Honor, it was a very short time. We tried to reach folks at ABC to confirm. We can essentially confirm what I told you earlier which I think is what you've just been told, is that at least one of these individuals has given an interview, possibly more than one, I don't know. There is footage of these individuals, both of them, and they were not disguised, did not request to be disguised, and that exists. And again, your Honor, just because somebody comes up and says they are fearful for their safety, we are concerned about that, but that alone is not a reason that a witness' request to prohibit the public from having access to what could be very critical testimony in this case--

THE COURT: You are not being denied access. You are in the courtroom.

MS. FREDERIKSEN: Your Honor I think understands how difficult it is to get into this courtroom.

THE COURT: Okay. Thank you, counsel.

MR. SHAPIRO: Your Honor, we have slightly a different position. That is, we do not have any change in our previous position regarding the photographs of the Fiatos, but we do believe that the audio should be broadcast, and if the court wants to somehow muffle the voice in some way, but I don't think that is really an identity issue. But I would also like to be addressed on the scope of the direct examination as it relates to the issues that have been raised by the United States Attorney. In particular, I believe we should be entitled to present to this jury the following information: That the United States Attorney's office does have a vested interest in the Fiato brothers and in their welfare, that these--these men have for the last twelve years been cooperating with the United States government, that they have frequently testified before grand juries and juries on the trial level and that their testimony has resulted in the conviction, in their own words, of fifty to sixty individuals of serious crimes. And that they do have a cooperation agreement with the United States government and the United States Attorney's office whereby they are required by that agreement to give truthful testimony. And a violation of that agreement, in and of itself, is cause for prosecution of them. And I think those issues are very important for the jury to hear, not for purposes of identity or disclosure, but for purposes of credibility, because we believe that without any question, based on the interviews from the District Attorney's office, that they will directly contradict and impeach Detective Vannatter and their credibility then becomes an issue.

MS. O'CONNELL: Your Honor, I am unaware of any plea agreement or cooperation agreement that the Fiato brothers have with the United States Attorney's office. That doesn't mean that it doesn't exist, but for the record, I am unaware of any cooperation agreement.

MR. KELBERG: Your Honor, I don't anticipate any position being posited by our office that the Fiato brother or brothers are untruthful based upon the review of what they have told us in the interviews at least in which I have participated. It seems to me that the law is quite clear that until their credibility is attacked, there is no need to rehabilitate their credibility. The issue is was a statement made or were statements made, the context in which the statements were made. That seems to be the bottom line, short and simple.

THE COURT: All right. Thank you, counsel.

MR. SHAPIRO: Your Honor, in that regard then, if there is not going to be any issue as to truthfulness, we would be willing to stipulate that the interview that was conducted by Mr. Hodgman and Mr. Kelberg on September the 13th, which takes about 27 minutes, be played to the jury, and we have no need to call the witness or jeopardize his life whatsoever.

MR. KELBERG: We are talking about Larry Fiato's?

MR. SHAPIRO: Yes, yes, Larry Fiato's interview that you conducted.

MR. KELBERG: May I have a moment to talk to Mr. Hodgman?

(Discussion held off the record between the Deputy District Attorneys.)

MR. SHAPIRO: Your Honor, we would, however, want him for purposes of authenticating the tape, just for that limiting purpose.

MR. KELBERG: If there would be an offer to stipulate, we would stipulate that it is authentic.

MR. SHAPIRO: We would like the jury to see visually who the person is.

MR. KELBERG: No, no, that--you get--if we were willing to stipulate, it would be a stipulation and the tape would be played and it would be with stipulation as to authentication. It is not you get one-half of the loaf and then you get the rest of the loaf, too.

THE COURT: All right. Okay. Then we will proceed with the witness. All right. The application of the United States Attorney for the modification of rule 980 is granted. No photography will take place during the testimony of Larry Fiato. All photographers are excluded from the courtroom. There will be no courtroom sketch artists. All sketch artists are excluded from the courtroom. All electric recording devices, other than the court's recording devices, will be excluded, and the video and audio feed will be terminated. All right.

MS. FREDERIKSEN: Your Honor, if I may, is there any reason why we cannot just have audio even if it is altered, your Honor?

THE COURT: Counsel, I have ruled.

MS. FREDERIKSEN: Thank you.

(Brief pause.)

THE COURT: All right. Let's exclude the photographers, please, and the sketch artists.

(All photographers and sketch artists exited the courtroom.)

THE COURT: Let me have that camera turned around as well, please. Mr. Galbreath--there you go. Thank you.

(Brief pause.)

THE COURT: All right. Mr. Cochran, is this your witness or Mr. Shapiro's?

MR. COCHRAN: This will be Mr. Shapiro's witness, your Honor.

MR. KELBERG: I think we are making arrangements to bring the witness in, your Honor.

THE COURT: All right.

(Brief pause.)

MS. FREDERIKSEN: Your Honor, one issue that has come up in my brief issues now with the United States Attorneys, the protective order, as written, is rather broad and could perhaps limit photographs taken outside these court proceedings and we just want to make clear--

THE COURT: No. This order is within the confines of this particular courtroom and consistent with the supervising Judge's orders regarding photography at other parts of the courthouse.

MS. FREDERIKSEN: Thank you, your Honor.

THE COURT: Thank you.

(Brief pause.)

THE COURT: Mr. Shapiro. All right. Mr. Fiato, would you come over here and stand by the court reporter, please.

MR. WACKS: Court reporter?

THE COURT: Face the clerk.

Lawrence Fiato, called as a witness by the Defendant, was sworn and testified as follows:

THE CLERK: Please raise your right hand. 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.

MR. WACKS: Yes, I do.

THE COURT: I forgot one minor detail.

REPORTER OLSON: The jury.

THE COURT: Deputy Trower. I'm sorry, Mr. Fiato, we got so wound up in all of our other issues--

MR. WACKS: You should try sitting over here.

THE COURT: Let's have the jurors, please.

MR. KELBERG: Do you want Mr. Fiato to--

THE COURT: Yes, we will swear him in front of the jury. Mr. Fiato, why don't you step down.

MR. KELBERG: Here, your Honor?

(Brief pause.)

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. All right. Mr. Shapiro, your next witness.

MR. SHAPIRO: Yes, we call Larry Fiato.

THE COURT: Mrs. Robertson.

Lawrence Fiato, called as a witness by the Defendant, was sworn and testified as follows:

THE CLERK: Please raise your right hand. 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.

MR. FIATO: I do.

THE CLERK: Please have a seat on the witness stand and state and spell your first and last names for the record.

MR. FIATO: Yes, I do. First name is Lawrence, L-A-W-R-E-N-C-E. Last name is Fiato, F-I-A-T-O.

THE CLERK: Thank you.

DIRECT EXAMINATION BY MR. SHAPIRO

MR. SHAPIRO: Are you also known as Larry Fiato?

MR. FIATO: Yes.

MR. SHAPIRO: Mr. Fiato, I want to direct your attention to January and February of this year. Were you acquainted with a detective from the Los Angeles Police Department named Philip Vannatter?

MR. FIATO: Yes.

MR. SHAPIRO: And how long had you known him as of January of 1995?

MR. FIATO: I think it was a period of months. I think I had met him prior. I believe it was--I came out for--I can't remember when. I think it was a period of months. I had met him with his partner, Detective McLean a couple months before that.

MR. SHAPIRO: Approximately on how many occasions had you seen him prior to January?

MR. FIATO: A handful of times.

MR. SHAPIRO: Handful being how many?

MR. FIATO: Single--like three, four times maybe.

MR. SHAPIRO: And were all those meetings, meetings where you were comfortable with him?

MR. FIATO: Yeah.

MR. SHAPIRO: And was he comfortable with you?

MR. FIATO: I believe so.

MR. SHAPIRO: Now, you have been involved as a person who has cooperated with law enforcement for the last twelve years; is that correct?

MR. FIATO: Umm--yeah, I will say eleven, eleven.

MR. SHAPIRO: Along with your brother?

MR. FIATO: That's correct.

MR. SHAPIRO: What is his name?

MR. FIATO: Craig Anthony Fiato.

MR. SHAPIRO: And the two of you in that period of time have testified before numerous grand juries?

MR. FIATO: I believe I've testified in front of two.

MR. SHAPIRO: Have you testified in front of any juries that sit on a federal court level?

MR. FIATO: Once, yes.

MR. SHAPIRO: And state level?

MR. FIATO: Once, yes.

MR. SHAPIRO: And have you offered testimony that has resulted in the apprehension of people?

MR. KELBERG: Objection, your Honor, calls for speculation.

THE COURT: Sustained.

MR. SHAPIRO: Has your testimony been accepted as truthful in the federal district court?

MR. KELBERG: Same objection.

THE COURT: Sustained.

MR. SHAPIRO: Do you continue to work with government agencies in the--in their efforts and cooperate with them as a witness?

MR. KELBERG: Your Honor, I think that is subject to the order.

THE COURT: Overruled. You can answer that question.

MR. FIATO: Explain "Cooperate." I have nothing--no, I don't, I don't cooperate with them at all any more.

MR. SHAPIRO: Do you testify for them?

MR. FIATO: For the federal government?

MR. SHAPIRO: Yes.

MR. FIATO: No.

MR. SHAPIRO: What about the state government?

MR. FIATO: Umm, there was that one issue, yes.

MR. SHAPIRO: Are you still cooperating with the state?

MR. FIATO: I don't know.

MR. SHAPIRO: Up until yesterday were you still cooperating with the state?

MR. FIATO: Umm, the trial--I have a trial to--I am supposed to testify at a trial.

MR. SHAPIRO: And that involves a case with--in the state court that is being prosecuted by the Los Angeles District Attorney's office?

MR. FIATO: That's correct.

MR. SHAPIRO: And you had previously testified in that trial?

MR. FIATO: Yes, I have.

MR. SHAPIRO: And the detectives in that trial are whom?

MR. FIATO: Detective McLean and Detective Lange.

MR. SHAPIRO: And have you ever signed any agreement with the federal government to be truthful in your testimony?

MR. FIATO: Umm, I've signed agreements with the government. I mean, I really didn't read them, but I'm assuming that, yes, it there is.

MR. SHAPIRO: And have you been truthful in your testimony?

MR. FIATO: Absolutely.

MR. SHAPIRO: In the past? Have you ever wavered in your honesty in testifying before any tribunal whatsoever?

MR. FIATO: Have I ever not been honest?

MR. SHAPIRO: Not honest?

MR. FIATO: No, I have never been not honest.

MR. SHAPIRO: Do you recall a conversation you had with Detective Vannatter in January of 1995?

MR. FIATO: I don't remember the months, but I had a conversation with him.

MR. SHAPIRO: Earlier this year?

MR. FIATO: There you go. That is fine, yes.

MR. SHAPIRO: And that conversation included what other people?

MR. FIATO: Umm, I--myself, my brother, dale Davidson, Detective Lange, Detective Vannatter.

MR. SHAPIRO: Dale Davidson is whom?

MR. FIATO: He was the prosecuting attorney in the first state case.

MR. SHAPIRO: And Detective Vannatter was there for what purpose?

MR. KELBERG: Objection. That would call for speculation or hearsay.

THE COURT: Sustained.

MR. SHAPIRO: Did you have a cordial relationship with Detective Vannatter during the time this meeting took place?

MR. FIATO: Umm, cordial--profession--yeah, cordial, professional, yeah.

MR. SHAPIRO: And would you talk to each other during the times that you had met him previously and up until including his conversation in January?

MR. FIATO: Yes.

MR. SHAPIRO: And would you talk about his family?

MR. FIATO: Yeah. We did, yeah.

MR. SHAPIRO: Talk about his farm?

MR. FIATO: Yup.

MR. SHAPIRO: What other--did you talk about any other personal things with Detective Vannatter?

MR. FIATO: How things were going on my job, that kind of stuff.

MR. SHAPIRO: And did the conversation ever lead to a discussion of the O.J. Simpson case?

MR. FIATO: (No audible response.)

MR. SHAPIRO: You can answer that yes or no.

MR. FIATO: Umm, yes.

MR. SHAPIRO: And this conversation, without telling us where it took place, can you describe the atmosphere where it took place?

THE COURT: That is kind of vague.

MR. SHAPIRO: Well, I didn't say room.

THE COURT: What type of building were you in?

MR. FIATO: Hotel.

MR. SHAPIRO: And what type of room within the hotel?

MR. FIATO: A room. I'm not trying to be funny.

MR. SHAPIRO: Was it a suite?

MR. FIATO: I think it was my brother's room.

MR. SHAPIRO: Was it a single room, a double room?

MR. FIATO: Yeah, single room.

MR. SHAPIRO: And the approximate size of the room?

THE COURT: That is not particularly relevant.

MR. SHAPIRO: I'm sorry?

THE COURT: Not particularly relevant.

MR. SHAPIRO: It may be for the next witness, your Honor.

THE COURT: Proceed.

MR. SHAPIRO: Thank you, your Honor.

MR. SHAPIRO: And during the course of the conversation regarding the O.J. Simpson case, did Detective Vannatter make a statement to you as to why he went to the Rockingham location for the investigation of the murder of Nicole Brown Simpson?

MR. FIATO: Yes.

MR. SHAPIRO: What did he tell you?

MR. FIATO: The exact words I don't know. I don't know the exact--if you want it word for word, I don't know, but it was something to the effect that he went over there as Mr. Simpson as the suspect.

MR. SHAPIRO: And you have told this to the District Attorneys in this case?

MR. FIATO: Yes.

MR. SHAPIRO: And that has been tape-recorded?

MR. FIATO: Probably, yeah.

MR. SHAPIRO: That took place on September the 13th?

MR. FIATO: I don't know what day it is today, so I--it was a couple of days ago.

MR. SHAPIRO: And this was during--during this conversation was Detective Vannatter drinking any beer?

MR. FIATO: Umm, I remember there was beer in the room, yeah. We were all having beer, yeah.

MR. SHAPIRO: So it was a comfortable place where everybody felt at ease with one another, all being parts of law enforcement to one degree or another?

MR. FIATO: Umm, yeah.

MR. SHAPIRO: Did you have another conversation with Detective Vannatter within that same time framework but sometime later?

MR. FIATO: Uh-huh, yes.

MR. SHAPIRO: And would you--did you estimate that as around February?

MR. FIATO: I believe so. It is very hard to--you know, all these things run into one another, but yes.

MR. SHAPIRO: And did that take place in this building?

MR. FIATO: Yes.

MR. SHAPIRO: The District Attorney's office is located on the 18th floor?

MR. FIATO: Is that the--it is upstairs.

MR. SHAPIRO: And did you have a conversation with Detective Vannatter on the 18th floor outside on the balcony?

MR. FIATO: Yes.

MR. SHAPIRO: What were you doing out there?

MR. FIATO: I was having a smoke.

MR. SHAPIRO: What was he doing there?

MR. FIATO: Smoking.

MR. SHAPIRO: And why were you here in this building?

MR. FIATO: Umm, testifying at the first Frank Christi trial. I'm not sure if I was a rebuttal or what. I don't know.

MR. SHAPIRO: So you were here as a witness for the District Attorney's office?

MR. FIATO: Yes.

MR. SHAPIRO: And during the conversation that you had with Detective Vannatter on the balcony of the 18th floor did the subject of the O.J. Simpson case come up?

MR. FIATO: (No audible response.)

MR. SHAPIRO: You can answer that yes or no.

MR. FIATO: Umm, yes.

MR. SHAPIRO: And did Detective Vannatter tell you why he went over to the Rockingham house in February while on the 18th floor having a cigarette?

MR. FIATO: I don't know if he--that was why. All I can say is what he--what the words were. It was similar to what he said up in the hotel room.

MR. SHAPIRO: Would you tell the jury what that was.

MR. FIATO: Again, that he went over to Mr. Simpson's house with Mr. Simpson as a suspect.

MR. SHAPIRO: And did he say anything about the husband always being the suspect?

MR. FIATO: He could have. I'm not sure.

MR. KELBERG: Your Honor, I move to strike as calling for speculation.

THE COURT: Sustained. The last part of the answer is stricken after "Could have."

MR. SHAPIRO: Do you remember being asked that exact question by Mr. Kelberg in your tape-recorded interview on September the 13th?

MR. FIATO: Umm, I don't know. They asked me a lot of questions. He could have.

MR. SHAPIRO: Has anybody played that tape-recording for you after it was taken?

MR. FIATO: No.

MR. SHAPIRO: Have you ever been shown a transcript of it?

MR. FIATO: No.

MR. SHAPIRO: You have talked to the District Attorneys about your conversations with Phil Vannatter, obviously, and you told them that?

MR. FIATO: Yes.

MR. SHAPIRO: Was a request made, through either the District Attorney or the lawyers for the FBI, that a Defense lawyer would like to talk to you?

MR. FIATO: Yes.

MR. SHAPIRO: What was your response?

MR. FIATO: No.

MR. SHAPIRO: May I approach the witness, your Honor?

THE COURT: To refresh recollection?

MR. SHAPIRO: Yes.

MR. SHAPIRO: This is Mr. Kelberg's questioning on page 12 of the tape-recorded interview. Let me see if I can just direct your attention to this. Here is the question by Mr. Kelberg on line 21. I would like you to read to yourself line 21 through 28, and if you need to go back to get the sequence, please fell free to do so, but let us know.

MR. FIATO: (Witness complies.) Okay. Where did he go? Oh.

MR. SHAPIRO: Did you have a chance to read that?

MR. FIATO: Yeah.

MR. SHAPIRO: Does that refresh your memory as to the questions that Mr. Kelberg asked you and the answers you gave?

MR. FIATO: It doesn't refresh my memory, but it is there, so I must have said it.

MR. SHAPIRO: All right. So we know what we are talking about, the question was--

MR. KELBERG: I object, your Honor, as calling for hearsay, lack of foundation.

THE COURT: Sustained.

MR. SHAPIRO: Were you asked by Mr. Kelberg--

MR. KELBERG: I'm going to object to any reading from the transcript.

MR. SHAPIRO: I'm not going to read from the transcript.

MR. SHAPIRO: Did Mr. Kelberg ask you whether or not--

MR. KELBERG: It calls for hearsay as to what was said in this out-of-court conversation.

THE COURT: It is hearsay.

MR. SHAPIRO: Was there a conversation you had with Mr. Kelberg in the District Attorney's office with Mr. Hodgman on September the 13th, 1995?

MR. FIATO: If that is the day I was in the room with them, yes.

MR. SHAPIRO: The transcript says that is the date.

MR. FIATO: Okay. Then that's the date.

MR. SHAPIRO: I will show you the transcript here and then you can see if--

THE COURT: There is no dispute as to the date, is there?

MR. KELBERG: None whatsoever, your Honor.

MR. FIATO: I just can't remember the date.

MR. SHAPIRO: Do you know this gentleman seated to my left?

MR. FIATO: Yeah.

MR. SHAPIRO: That is Mr. Kelberg?

MR. FIATO: Yes.

MR. SHAPIRO: Deputy District Attorney?

MR. FIATO: Yes.

MR. SHAPIRO: And this is Mr. Hodgman seated to his left?

MR. FIATO: Yes.

MR. SHAPIRO: Were both of those gentlemen there?

MR. FIATO: Yes, there were.

MR. SHAPIRO: Was also an investigator there by the name of Bill Guidis or Guidas?

MR. FIATO: There was another person there.

MR. SHAPIRO: Guidas?

MR. FIATO: There was another person there, yes.

MR. SHAPIRO: And you were there?

MR. FIATO: Yup.

MR. SHAPIRO: The interview start at approximately 1:30 P.M.?

MR. FIATO: I have no idea.

MR. SHAPIRO: Did it go for approximately a half hour?

MR. FIATO: Felt like three hours, but I don't know.

THE COURT: All right. Counsel, let me see you without the court reporter.

(A conference was held at the bench, not reported.)

(The following proceedings were held in open court:)

MR. SHAPIRO: May we just have a moment?

THE COURT: Yes. Mr. Shapiro, you can lead into that question.

(Discussion held off the record between Defense counsel.)

MR. SHAPIRO: Did you have any conversation with Mr. Kelberg about whether Vannatter, Detective Vannatter, said the husband is always a suspect?

MR. FIATO: I may have.

MR. SHAPIRO: And if you did, is that something that you have any recollection at all of Detective Vannatter saying?

MR. FIATO: Right now, no.

MR. SHAPIRO: How about then?

MR. FIATO: Right now--then I might have. I--I don't remember saying it. I vaguely remember the meeting.

MR. SHAPIRO: Have you seen Detective Vannatter after February?

MR. FIATO: (No audible response.)

MR. SHAPIRO: Of this year?

MR. FIATO: I don't think I have seen Detective Vannatter since then.

MR. SHAPIRO: Were you present when Detective Vannatter made some comments about your brother dating Denise Brown?

MR. FIATO: I don't--I don't think so, no. I don't think so.

MR. SHAPIRO: Did your brother ever discuss that with you?

MR. FIATO: He had mentioned it, yeah, vague, something like that.

MR. KELBERG: Your Honor, I'm going to object.

MR. SHAPIRO: And that the LAPD--

THE COURT: Sustained.

MR. KELBERG: Irrelevant.

MR. SHAPIRO: Thank you. Nothing further.

THE COURT: Mr. Kelberg.

CROSS-EXAMINATION BY MR. KELBERG

MR. KELBERG: Mr. Fiato, is it fair to say that the conversation you had in the hotel room with Mr. Vannatter was on a night that you would not describe as a serious night?

MR. FIATO: It was not a serious night.

MR. KELBERG: How would you describe that night?

MR. FIATO: We were laughing and joking and it was like--I think it was when we first got back and we were all, you know, seeing each other again and you know, yeah, yeah, yeah, you know, shooting the breeze.

MR. KELBERG: If somebody characterized it as a bunch of guys bullshitting, would that be an accurate characterization?

MR. SHAPIRO: Object to that, your Honor.

THE COURT: Sustained.

MR. KELBERG: Would it be accurate to characterize it as a bunch of guys B.S.'ing?

MR. SHAPIRO: Objection, your Honor.

THE COURT: Overruled.

MR. KELBERG: You may answer that question?

MR. FIATO: I can answer that?

MR. KELBERG: Yes.

MR. FIATO: Yes.

MR. KELBERG: And the statement out on the smoking deck, would you describe the circumstances, in general, of that particular event, similar to what we were asking you about as to whether it was a serious night at the hotel room?

MR. FIATO: No. I mean, it was not serious--it was similar to the hotel room.

MR. KELBERG: And in fact was part of the conversation with Mr. Vannatter on the smoking deck involving the stress that he had been suffering from the publicity of the case, the cameras?

MR. FIATO: Both.

MR. KELBERG: And the nature of the case?

MR. FIATO: Both.

MR. SHAPIRO: I'm going to object. That is irrelevant, your Honor.

THE COURT: Overruled. Move on.

MR. KELBERG: I'm sorry, may the answer--

THE COURT: He said yes. Move on.

MR. KELBERG: And would it be accurate to say, Mr. Fiato, that neither one of these statements is something on which you have a clear memory as to exactly what was said?

MR. FIATO: That's correct.

MR. KELBERG: Would it be accurate to say that you did not attribute anything of significance to whatever Mr. Vannatter may have said on either occasion?

MR. SHAPIRO: Objection. His state of mind is irrelevant.

THE COURT: Overruled.

MR. KELBERG: You may answer.

MR. FIATO: That's correct.

MR. KELBERG: May I have just a moment, your Honor?

(Discussion held off the record between the Deputy District Attorneys.)

MR. KELBERG: Mr. Fiato, as best you recall, did Detective Vannatter make the statement about the Rockingham visit in the context of venting frustration over the allegations raised against him?

THE COURT: Sustained, sustained.

MR. KELBERG: Without--withdraw the question. May I have just one moment?

(Discussion held off the record between the Deputy District Attorneys.)

MR. KELBERG: By the way, Mr. Fiato, when you were interviewed by myself and Mr. Hodgman, you had never meet either one of us before, had you?

MR. FIATO: I know I never met you. I know that. I might have seen Mr. Hodgman before, but I don't think we were formally introduced.

MR. KELBERG: And in the--was the comment about the visit to Rockingham made in the context of the discussion of the stress of the case, both your case and the case that Mr. Vannatter was on?

MR. FIATO: We were talking about stressful things, so yes.

MR. KELBERG: And the cameras were a part of that stressful thing conversation?

MR. FIATO: Yeah, yes.

MR. KELBERG: And that was the substance on both occasions, both at the hotel and in the smoking deck?

MR. FIATO: I know it was at the smoking deck. I'm not too sure about the hotel room, but we were, you know--

MR. KELBERG: I have nothing further, your Honor.

THE COURT: Mr. Shapiro.

REDIRECT EXAMINATION BY MR. SHAPIRO

MR. SHAPIRO: When you talked to Mr. Hodgman and to Mr. Kelberg, you clearly remember that you told them on two occasions that Detective Vannatter told you that he went to the Rockingham house because O.J. Simpson was a suspect? There is no question in your mind about that, is there?

MR. FIATO: That's correct.

MR. SHAPIRO: And that is in fact what Detective Vannatter told you?

MR. FIATO: That's correct.

MR. SHAPIRO: And he wasn't telling you any jokes that day, was he?

MR. FIATO: Well, we were kidding around. Not like a joke joke, but we were messing around.

MR. SHAPIRO: But there was nothing funny about the O.J. Simpson, was it?

MR. FIATO: Well, I don't believe--I don't remember--I don't think we were talking directly about the case, but stuff on the outer edges, you know.

MR. SHAPIRO: You were talking about police intention and why he went over there, were you?

MR. KELBERG: Objection, your Honor, outside the scope and leading.

THE COURT: Overruled. You may answer.

MR. FIATO: I don't remember that.

MR. SHAPIRO: And when you were outside up here on the 18th floor, you were here for serious business? You were here as a witness in a murder case, weren't you?

MR. FIATO: That's correct.

MR. SHAPIRO: And when you were talking to Detective Vannatter, you are absolutely certain he again brought up the fact that when he went to O.J. Simpson's house he went there because he was a suspect, didn't you?

MR. KELBERG: Asked and answered.

THE COURT: Overruled.

MR. FIATO: I--

THE COURT: You may answer that.

MR. FIATO: That's correct.

MR. SHAPIRO: There is no doubt in your mind he said that, is there?

MR. FIATO: There is no doubt in my mind he said that.

MR. SHAPIRO: Thank you very much.

MR. KELBERG: Very briefly, your Honor.

RECROSS-EXAMINATION BY MR. KELBERG

MR. KELBERG: Mr. Fiato, when you testified as a witness at the first trial when you were in court, that was very serious business, wasn't it?

MR. FIATO: When I was in court, yes.

MR. KELBERG: When you were not in court did you in fact joke around with Detective Vannatter?

MR. FIATO: Yes. It is one of the ways to get this stuff off of your chest.

MR. KELBERG: Did you find that that was also what Detective Vannatter did with you?

MR. SHAPIRO: Speculation, objection.

THE COURT: Sustained.

MR. KELBERG: Did it appear to you that that was what Detective Vannatter was doing with you?

MR. SHAPIRO: Objection.

THE COURT: Sustained. Rephrase the question.

MR. KELBERG: Did it appear, as you were joking with Detective Vannatter to relieve your stress, that Detective Vannatter was similarly joking with you?

MR. SHAPIRO: Objection, your Honor.

THE COURT: Sustained. Rephrase the question.

MR. KELBERG: All right.

MR. KELBERG: How would you characterize what Detective Vannatter was doing with you when you were joking with him to relieve your stress?

MR. FIATO: He was acting the same way I was acting, so if that means that he was acting like me, I would have to say he was acting like me because it looked that way.

MR. KELBERG: Is that the circumstance both at the hotel and out on the smoking deck?

MR. FIATO: Yes. That is what we had in common.

MR. KELBERG: He have nothing further, your Honor.

FURTHER REDIRECT EXAMINATION BY MR. SHAPIRO

MR. SHAPIRO: Were you lying to Detective Vannatter on either of these two conversations?

MR. FIATO: No.

MR. SHAPIRO: Was he lying to you?

MR. KELBERG: Your Honor--

THE COURT: Sustained.

MR. FIATO: I--

MR. SHAPIRO: Nothing further.

MR. KELBERG: May the witness be excused?

THE COURT: Yes. Mr. Fiato, thank you very much, sir.

MR. FIATO: Thank you.

(Brief pause.)

MR. COCHRAN: Next witness, your Honor.

MR. KELBERG: Your Honor, I would ask to approach before any further witnesses are called.

THE COURT: All right. With the court reporter, please.

MR. KELBERG: Please.

(The following proceedings were held at the bench:)

THE COURT: We are over at the side bar. The court reporters have both threatened to quit if you are allowed to do another witness.

MR. COCHRAN: They won't quit; I will slow down.

THE COURT: It is not slowing down, but talking over people and other things. They said if Cochran is doing the next witness, I am quitting. That is what they just told me. Okay.

MR. KELBERG: Anticipating that the next witness is on the same subject matter as we have heard from the previous three witnesses, your Honor, we object under 352. This is cumulative. There is not going to be any issue as to that statements were made. The context in which they were made has been set by two witnesses. Larry Fiato was present for both of them, Agent Wacks was present for one of them. Anything further is purely cumulative.

THE COURT: Mr. Shapiro.

MR. COCHRAN: Well, I will be calling this witness. Let me say this: That is not true at all. This witness, Craig Anthony Fiato, is in a different position, and the reason why we are allowed to call him is because the attack that this was like some kind of a sarcasm or some kind of joke or whatever. It is not clear what the D.A. is trying to say. But this man, Craig Anthony Fiato, felt strongly enough about it that he went and told Vic Walters, and I gave you the quote from ABC, that "If they treat me like they did before, I will tell them what I know about the Simpson case." There was not any joke, any sarcasm. Serious business. Very limited, your Honor, because he heard the first conversation. He has a better memory of the incidents in the hotel room when they are all sitting around drinking beers of what took place. It is extremely relevant and it is relevant to the point where he is the one who triggered--he is the reason that we are here today, because he tells Vic Walters, the FBI finds out about that. As you know, they then track them down and we find out, because they tell the D.A.'s office, this man who just left here has some vagueness in his recall, but the important thing--because the People continue with each of them to object--is that sarcastic according to the FBI agent or they are joking around with to this witness? I think we have a right to go into this. They have not laid, as they claim they did in Fuhrman or whatever--this is a little different. When you talk about the use of time, this is a very small--the direct would be no more than five or ten minutes and so we are not wasting a lot of time.

THE COURT: I must say that I'm more pleased with Mr. Shapiro's examination on direct than I am with most lawyers these days.

MR. COCHRAN: I will try to follow what he did in that regard then. We are talking about five or ten minutes from that standpoint of getting right to the point and betting it over with. This is another witness on a critical point for us because the point is, Judge, this is not an issue that you can talk about a 352 situation. It is not resolved. Clearly it is relevant as to where we are, and so we should have a right to bring this person in. These are witnesses that--we have had a lot of trouble trying to get these witnesses in on this particular issue. If they concede this had taken place or whatever, it wasn't sarcastic or it wasn't this, it would be something else. We have a right to explore that from that standpoint so we can then argue that.

And this is a search for truth. I am indicating to the court we are allowed to call this witness. If you are impressed with the direct examination that is very short, you will get a direct examination that is very short. I always watch your Honor as we are putting this on. And I think we have a right to do that, Judge, and that is the only issue we are going to try to go into.

THE COURT: All right.

MR. KELBERG: Your Honor, I would like to be heard.

THE COURT: Yes.

MR. DARDEN: No. 1, Craig Fiato was not present for the conversation that was described as sarcastic. Larry Fiato was the only one present for that one, so Craig Fiato can offer no personal knowledge of that statement. With respect to the statement in the hotel room, we have Larry Fiato describing it not as sarcastic but describing it in a completely different way, and if we get into Craig Fiato--and I can show the court the transcript--Craig Fiato, no. 1, is a very nonresponsive witness. But the bottom line to all of what he would say is this was all taken out of context. It was completely taken out of context. These were just a bunch of guys shooting the breeze. So all of that is in with Larry Fiato. This man adds nothing. All he adds is going--they have already gone--excuse me, Mr. Cochran--they have already gone into this with Agent Wacks with respect to the telephone conversation with Vic Walters. It was as a result of that information being passed to Agent Wacks that the report was made to the FBI. All of that is in the record. And if you call five witnesses on this, you have different perspectives from everybody, but Craig Fiato's perspective is not different from Larry Fiato's perspective on the first conversation. He is not a witness to the second conversation. The other people have no recollection of the conversation taking place.

THE COURT: Okay.

MR. KELBERG: Enough us enough.

MR. COCHRAN: May I respond?

THE COURT: No, you may not. All right. The objection is overruled; however, it should be brief, to the point. And the only thing that can be mentioned about the ABC connection is that he did in fact relate this conversation later to somebody in the news media period, because that is the only relevance that it has because it connects with what Agent Wack's said, that the reason, the motivation to go to his supervisors, that they heard about the news media interest. So he can say this statement was made to him by Detective Vannatter. He can describe the facts and circumstances that that statement was made. He can also say that he later told this same information to the news media.

MR. KELBERG: And is Mr. Cochran entitled to ask or am I allowed to ask, if he goes into that area, the circumstances under which the statement was made to the news media, how it came up?

THE COURT: Why do we want to do that?

MR. KELBERG: I'm not sure we do, but I just want to understand the groundrules of the court.

THE COURT: Well, if he wants to go into that. He seems to think that is an appropriate part of it, which explains why it came to all of our attention this late in the case--

MR. KELBERG: Okay.

THE COURT: --so that is relevant.

MR. KELBERG: I would object as to why I called them, because the point has really already been identified by Wacks, that it is the fact of Wacks saying that the call has been made.

THE COURT: That is true.

MR. KELBERG: That is the motivating force.

THE COURT: All right. Statement made; circumstances.

MR. COCHRAN: He didn't say anything about why he is the one that said that.

(The following proceedings were held in open court:)

THE COURT: All right. Mr. Shapiro, your next witness.

MR. SHAPIRO: Yes, your Honor. We call Mr. Craig Fiato. Mr. Cochran will be examining.

MR. KELBERG: Your Honor, we may need a moment.

(Brief pause.)

MR. KELBERG: I believe they are trying to make arrangements to bring him down.

(Brief pause.)

THE COURT: How we doing? Anybody need a break? Doing okay?

(Brief pause.)

MR. KELBERG: Your Honor, could we have just a brief moment? I need to find out if somebody is actually going up.

MR. HODGMAN: Yes, it will be a couple minutes.

(Brief pause.)

THE COURT: Counsel, why don't you approach without the reporter.

(A conference was held at the bench, not reported.)

(The following proceedings were held in open court:)

THE COURT: All right. Counsel, are we ready?

DEPUTY LONG: Excuse me, your Honor. We are missing one of our jurors.

THE COURT: All right. Mr. Fiato, why don't you have a seat there.

(Brief pause.)

THE COURT: All right. Let the record reflect that we now have all our jurors. Mr. Cochran, you may call your next witness.

MR. COCHRAN: Thank you very kindly, your Honor. We will next call Mr. Craig Anthony Fiato to the stand.

THE COURT: Mr. Fiato, would you stand next to the court reporter, please.

MR. CRAIG FIATO: Right here?

THE COURT: Right there.

Craig Anthony Fiato, called as a witness by the Defendant, was sworn and testified as follows:

THE CLERK: Please raise your right hand. 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.

MR. FIATO: I do.

THE CLERK: Please have a seat on the witness stand and state and spell your first and last names for the record.

MR. FIATO: Craig Anthony Fiato, F-I-A-T-O.

THE COURT: Mr. Cochran.

MR. COCHRAN: Thank you.

DIRECT EXAMINATION BY MR. COCHRAN

MR. COCHRAN: Good afternoon, Mr. Fiato.

MR. FIATO: Good afternoon, Mr. Cochran.

MR. COCHRAN: Good afternoon, ladies and gentlemen.

MR. COCHRAN: Mr. Fiato, I would like to ask you a few questions, if we might. You and I have never met before, have we?

MR. FIATO: No, we haven't.

MR. COCHRAN: Did you get a request, through the District Attorney's office or through the United States Attorneys or through the FBI, that the Defense in this case wanted to talk with you?

MR. FIATO: Yes, I did.

MR. COCHRAN: And did you reject that request?

MR. FIATO: Yes, I did.

MR. COCHRAN: So we have never had an opportunity to talk before this?

MR. FIATO: No, we haven't.

MR. COCHRAN: All right, sir. Are you here to testify in another case?

MR. FIATO: Yes.

MR. COCHRAN: And which case is that?

MR. FIATO: The Norman Freeburg trial, Frank Christi matter.

MR. COCHRAN: Is that a case that you have testified in before, sir?

MR. FIATO: Yes.

MR. COCHRAN: How many times when you have testified before?

MR. FIATO: Once.

MR. COCHRAN: All right. And are you still waiting to testify now on that case?

MR. FIATO: Yeah, I believe so.

MR. COCHRAN: All right. Now, you have cooperated with the government in the past eleven or twelve years and testified for them in cases; is that correct, sir?

MR. FIATO: Yes.

MR. COCHRAN: And your brother is named Larry Fiato?

MR. FIATO: Yes.

MR. COCHRAN: All right, sir?

MR. FIATO: Excuse me. I would like to clarify something. I don't believe I am going to testify in the Christi trial. I'm not sure. I don't know what the disposition of that is.

MR. COCHRAN: All right. You have testified before, you don't know if you will be called to testify again; is that right?

MR. FIATO: Yes.

MR. COCHRAN: All right. Now, you are aware and acquainted with the detectives in the Christi case, are you not?

MR. FIATO: With the detective?

MR. COCHRAN: Yeah, the detective assigned to that case?

MR. FIATO: Yes, yes.

MR. COCHRAN: You know Tom Lange?

MR. FIATO: Yes, I do.

MR. COCHRAN: You know a detective by the name of McLean?

MR. FIATO: Yes, I do.

MR. COCHRAN: They are partners in this case; is that correct?

MR. FIATO: Yes, they are.

MR. COCHRAN: How long have you been involved in that case altogether?

MR. FIATO: Probably I believe somewhere since 1988.

MR. COCHRAN: All right. Over a period of last five years or so; is that correct?

MR. FIATO: Yes.

MR. COCHRAN: Now, sometime during that period of time did you meet another detective by the name of Philip Vannatter?

MR. FIATO: Yes.

MR. COCHRAN: When was that approximately, Mr. Fiato?

MR. FIATO: Oh, let's see. I believe it was in 1994.

MR. COCHRAN: All right. So would it be a fair statement--

MR. FIATO: Excuse me.

MR. COCHRAN: Sorry.

MR. FIATO: I'm not exactly clear. I believe it might have been in--in January of--I think--I believe I met him one time prior to that, but I think I can say for sure in January of 1995.

MR. COCHRAN: All right, sir. Let me see if I understand what you just indicated to us. You may have met Detective Vannatter sometime during the year of 1994, but you specifically recall talking with him in January of 1995; is that correct?

MR. FIATO: Yes.

MR. COCHRAN: All right. And let's direct our attention to the conversation in January of 1995. Do you recall a conversation you had with Detective Vannatter where you were present at a hotel room somewhere?

MR. FIATO: Yes.

MR. COCHRAN: And would you tell us who else was present during this conversation?

MR. FIATO: Tom Lange--Detective Tom Lange, Detective Vannatter and myself, dale Davidson, the District Attorney, and my brother, Lawrence Fiato.

MR. COCHRAN: Dale Davidson is a member of the Los Angeles County District Attorney's office; is that correct?

MR. FIATO: Yes, and he was--yeah.

MR. COCHRAN: He was the Prosecuting Attorney on this other case you have been talking about?

MR. FIATO: Yes.

MR. COCHRAN: And we have described this conversation took place in a room. Do you recall on this occasion that all of you gentlemen were kind of sitting around drinking beer?

MR. FIATO: Yes, we--yeah. Yes.

MR. COCHRAN: Yes?

MR. FIATO: Yes.

MR. COCHRAN: All right. And that included you and your brother and Vannatter and Lange, et cetera; is that correct?

MR. KELBERG: Objection, leading, your Honor.

MR. FIATO: Yes.

THE COURT: Overruled.

MR. COCHRAN: Do you know the approximate date in January of 1995 this conversation took place?

MR. FIATO: No.

MR. COCHRAN: All right. You just know it was in January; is that right?

MR. FIATO: I believe so.

MR. COCHRAN: Anyone else present during that conversation that you recall now?

MR. FIATO: No.

MR. COCHRAN: All right. During that conversation do you recall Detective Vannatter making a statement regarding his going to the Simpson residence in the early morning hours of June 13th, 1994?

MR. FIATO: No.

MR. COCHRAN: You don't recall him making a statement to you?

MR. FIATO: Not saying that, no.

MR. COCHRAN: All right. You don't recall him making a statement about going to the Simpson house, Mr. Simpson being a suspect?

MR. FIATO: I--no, he didn't say that.

MR. COCHRAN: All right. You don't recall--let me ask--listen to my question. Do you recall a conversation wherein the subject matter of Detective Vannatter going to Mr. Simpson's home in the early morning of January 13th came up?

MR. FIATO: No.

MR. COCHRAN: You don't recall that at all?

MR. FIATO: No.

MR. COCHRAN: All right. Now, do you recall that you gave a tape or a tape-recorded interview with the District Attorney's office in the recent past?

MR. FIATO: Yes.

MR. COCHRAN: And you were asked questions about this conversation back in January of 1995; is that correct?

MR. FIATO: I believe so.

MR. COCHRAN: Have you listened to that tape at all, sir?

MR. FIATO: No, I haven't.

MR. COCHRAN: You have not heard it? Have you seen any transcript of that particular tape?

MR. FIATO: Not at all.

MR. COCHRAN: Have you read anything prior to your coming here to testify today?

MR. FIATO: Not a thing.

MR. COCHRAN: Did you get a chance to talk to Mr. Kelberg today prior to your testifying?

MR. FIATO: No, I haven't.

MR. COCHRAN: That gentleman over there?

MR. FIATO: No, I haven't.

MR. COCHRAN: You not talked to him at all today?

MR. FIATO: I would remember him. No.

MR. COCHRAN: Would you have talked to him? You talked to him on the tape, did you not?

MR. FIATO: Yes.

MR. COCHRAN: All right. You recall that? He asked you a lot of questions?

MR. FIATO: Yeah. He asked me questions, yes.

MR. COCHRAN: All right. You have not talked to him today?

MR. FIATO: No.

MR. COCHRAN: Did you talk to Mr. Hodgman today?

MR. FIATO: Yes.

MR. COCHRAN: When was that?

MR. FIATO: I think about an hour ago, an hour and a half.

MR. COCHRAN: During the lunch hour?

MR. FIATO: Yes.

MR. COCHRAN: Preparatory to your testifying here?

MR. FIATO: No.

MR. COCHRAN: Well, he talked to you before you testified here, right?

MR. FIATO: Not in relation to my testimony.

MR. COCHRAN: Just had a conversation?

MR. FIATO: Yes.

MR. COCHRAN: Now--just a moment, your Honor.

(Brief pause.)

MR. COCHRAN: By the way, you were never present during a conversation between your brother and Detective Vannatter on a landing up on the 18th floor of this particular building, were you?

MR. FIATO: No.

MR. COCHRAN: Was the beer you were drinking at this hotel room Heineken?

MR. FIATO: Yes.

MR. COCHRAN: Do you know who Michael Wacks is?

MR. FIATO: I sure do.

MR. COCHRAN: Who is he?

MR. FIATO: He is an FBI agent.

MR. COCHRAN: Did you have contact with him?

MR. FIATO: Yes, I do.

MR. COCHRAN: Do you recall that in this January conversation that you heard Detective Philip Vannatter say that O.J. Simpson was always a suspect and we always go after--we always go after the husband? Do you remember him saying that?

MR. FIATO: No.

MR. COCHRAN: Do you remember him saying that? Do you remember saying that on tape to the District Attorney's office?

MR. FIATO: No.

MR. COCHRAN: If I were to show you--you are Craig Fiato, right?

MR. FIATO: I sure am.

MR. COCHRAN: If I were to show you a transcript of a tape, would that perhaps refresh your recollection?

MR. FIATO: Yes.

MR. COCHRAN: Counsel, I'm referring to page 9, line 24, I believe.

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: May I approach, your Honor?

THE COURT: You may.

MR. COCHRAN: May I direct him, your Honor?

MR. COCHRAN: I'm going to direct you to a point, and I will ask to you read this to yourself first and we will see if it refreshes your recollection at all. Let's start here for C, that is Craig, starting here at the bottom of the page to yourself.

MR. FIATO: (Witness complies.) Yes.

MR. COCHRAN: Have you read that?

MR. FIATO: Yes.

MR. COCHRAN: And you, of course, have never listened to the tape you said?

MR. FIATO: Yes, sir.

MR. COCHRAN: Does that refresh your recollection? You said that Phil Vannatter said regarding O.J. Simpson that he was always a suspect and we always go after--we always go--go after the husband? You went on to say that is what you said. Is that what he said?

MR. FIATO: I don't believe that was in the context of the question that you asked me. I don't believe that.

MR. COCHRAN: The question I'm asking you, sir, does that refresh your recollection that that is what you told the District Attorney's office that Detective Vannatter said in the January conversation? That is the question.

MR. KELBERG: Objection, your Honor. That assumes a fact not in evidence. It is out of context, if the court would look at the entire page.

MR. COCHRAN: Speaking objection, your Honor.

THE COURT: Overruled.

MR. COCHRAN: Would you answer the question, sir, for me?

THE COURT: Do you understand the question?

MR. FIATO: I don't understand the question, but I don't know who I was talking to here.

THE COURT: Why don't you restate the question, Mr. Cochran.

MR. COCHRAN: Let me see if I can restate this.

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. COCHRAN: Let me ask you this: The statement I just had you read, does that refresh your recollection that you heard Phil Vannatter in the hotel room in January of 1995, when you were all sitting around drinking beers, say that O.J. Simpson was always a suspect, we always--we always go after the husband? Does that refresh your recollection that you heard that?

MR. FIATO: I heard--I heard Detective Vannatter say the suspect is always--I mean, the husband is always the suspect. That is what I heard him say.

MR. COCHRAN: All right. That is what you heard?

MR. FIATO: Excuse me. Let me finish. He didn't say O.J. Simpson? He said the suspect is always--is always the husband?

MR. COCHRAN: All right. He when he made that statement, he was talking about the O.J. Simpson case; isn't that credit?

MR. FIATO: I believe so. I believe that was in general.

MR. COCHRAN: That is what we are talking about. He was talking about the O.J. Simpson case; isn't that right, sir?

MR. FIATO: I believe that was--I don't know. I believe that was--that was a general statement. That is how I took it. I don't know the context--excuse me. I don't know the context in which he said it.

MR. COCHRAN: All right. Well, when you said on the tape, as follows: "I heard Phil Vannatter say that--that O.J. Simpson was always a suspect, we always go off--we always go after the husband," you used the words "O.J. Simpson" on the tape, did you not?

MR. KELBERG: I object, your Honor. That misstates what the statement is in the context--

THE COURT: Sustained.

MR. COCHRAN: Did you use the word "O.J. Simpson" in referring to this statement about Vannatter at some point?

MR. FIATO: I see that--I see that that is the transcript of what I said, but I don't know in what context--

MR. COCHRAN: All right.

MR. FIATO: --and who I'm talking to here.

MR. COCHRAN: All right. Well, let me ask you, after you had heard this statement of Detective Vannatter back in January--

MR. FIATO: Uh-huh.

MR. COCHRAN: --and later this year, perhaps in September, on or about September 8th, 1995, you had occasion to have a conversation with a man named Vic Walters at ABC television?

MR. FIATO: Yes.

MR. COCHRAN: And at that time you made a statement to Vic Walters, didn't you?

MR. FIATO: I said a lot of things to Vic Walters.

MR. COCHRAN: Let's talk about the statement you made to Vic Walters about Vannatter's statement regarding O.J. Simpson and going to O.J. Simpson's. Do you recall that?

MR. FIATO: I don't know. No, I don't recall it.

MR. COCHRAN: You don't recall it?

MR. FIATO: I'm sure I discussed something about Detective Vannatter with him, but specifically I think you are being vague. If you can ask me a specific question, then I can give you an answer.

MR. COCHRAN: Sir, I don't want to be vague. This is a conversation that took place on September 8th. Your memory is not vague about that?

MR. FIATO: On September 8th?

MR. COCHRAN: Yes, September 8th?

MR. FIATO: Yeah.

MR. COCHRAN: Did you have a conversation with Vic Walters on September 8th?

MR. FIATO: I said so.

MR. COCHRAN: And at that time were you angry at Phil Vannatter?

MR. FIATO: Yes.

MR. COCHRAN: And at that time were you angry because Detective Vannatter and some members of the District Attorney's office had said some things about you and you weren't happy about?

MR. FIATO: Yes.

MR. COCHRAN: It had to do with Denise Brown?

MR. FIATO: Yes.

MR. COCHRAN: And at that time you had a conversation with Vic Walters, right?

MR. FIATO: Yes.

MR. COCHRAN: And did you not say at some point, "If they don't treat me better when I come out to California, I'll tell them what I know about the O.J. Simpson case"? Didn't you tell Vic Walters that?

MR. FIATO: Absolutely not.

MR. COCHRAN: You never told him that?

MR. FIATO: Not, no.

MR. COCHRAN: All right. But you then had a conversation with Vic Walters, didn't you?

MR. FIATO: I said I did.

MR. COCHRAN: And in that conversation didn't you tell him that Vannatter said that O.J. Simpson was always a suspect and we always go after the husband? Did you tell Vic Walters that?

MR. FIATO: Yes.

MR. COCHRAN: And that was on or about September 8th of 1995; is that right?

MR. FIATO: Would you please repeat that back to me one more time?

MR. COCHRAN: Certainly, sir. We were talking about the conversation you had--

MR. FIATO: I know what we were talking about, but what did I say?

MR. COCHRAN: I will read it verbatim. "heard--I heard Phil Vannatter say that that--that O.J. Simpson was--was--was always a suspect and we always go after--we always--we always go--go after the husband." Is that what you told Vic Walters on or about September 8th, sir?

MR. FIATO: I believe so.

MR. COCHRAN: Now, after you had had this conversation with Vic Walters, Agent Wacks of the FBI found out about your conversation with Vic Walters; isn't that correct?

MR. FIATO: I told him.

MR. COCHRAN: The answer is yes, that he found out about the conversation?

MR. FIATO: Yes, yes.

MR. COCHRAN: All right. And then after that conversation--are you aware of what happened after that regarding Agent Wacks, that he made a report to his supervisor?

MR. FIATO: Yes.

MR. COCHRAN: Then of course you are here pursuant to a subpoena; is that correct, sir?

MR. FIATO: Yes.

MR. COCHRAN: You are not here voluntarily, are you?

MR. FIATO: No.

MR. COCHRAN: Now, to go back to the conversation in January of 1995, had Detective Vannatter ever discussed the O.J. Simpson case with you prior to that particular day, January of 1995, and the other time you met him in `94?

MR. FIATO: No.

MR. COCHRAN: That was the first time?

MR. FIATO: Yes.

MR. COCHRAN: Did he talk to you about the O.J. Simpson case at any time after the conversation in January of 1995?

MR. FIATO: No.

MR. COCHRAN: Have you had occasion to discuss with your brother his recollection regarding this conversation in January of 1995?

MR. FIATO: No.

MR. COCHRAN: You have not talked to him about it?

MR. FIATO: My brother's testimony?

MR. COCHRAN: Yeah, about his testimony.

MR. FIATO: No.

MR. COCHRAN: About what he recalled?

MR. FIATO: No.

MR. COCHRAN: You haven't talked about that today either?

MR. FIATO: No. The cops rushed me out, him up and me out.

MR. COCHRAN: So you didn't talk to him before you came down?

MR. FIATO: I didn't get a shot.

MR. COCHRAN: Hum?

MR. FIATO: I didn't get a shot at it, no.

MR. COCHRAN: Didn't get a shot at talking to him?

MR. FIATO: No.

MR. COCHRAN: Before you came down here when the two of you were up there, you never talked about it at all?

MR. FIATO: Did we ever talk about what we were going to testify to?

MR. COCHRAN: Yes, sir.

MR. FIATO: Me and him?

MR. COCHRAN: You and your brother Larry?

MR. FIATO: Yeah.

MR. COCHRAN: You did talk about it, right?

MR. FIATO: About what we were going to testify about?

MR. COCHRAN: Yeah.

MR. FIATO: That is very vague, sir.

MR. COCHRAN: I'm trying not to be vague, sir.

MR. FIATO: Thank you.

MR. COCHRAN: About your testimony, you and your brother Lawrence discussed what your testimony might be in court before this jury?

MR. FIATO: No.

MR. COCHRAN: You never did at all?

MR. FIATO: No.

MR. COCHRAN: Okay. Did you fly out here together?

MR. FIATO: Yes.

MR. COCHRAN: Are you staying together?

MR. FIATO: Yes.

MR. COCHRAN: You came to court together?

MR. FIATO: Yes.

MR. COCHRAN: Upstairs in the D.A.'s office together?

MR. FIATO: Yes, with an FBI agent. Yeah. We didn't stay in the same hotel room together. He did his thing and I did mine.

MR. COCHRAN: But you do talk as brothers, don't you?

MR. FIATO: Yeah, we talk as brothers.

MR. COCHRAN: All right. May I have just a second, your Honor?

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: Just a second, your Honor. Thank you very much.

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: A few more questions, your Honor.

MR. COCHRAN: Have you had lunch with Detective Vannatter at any time since that conversation in January when you were out here in California and had lunch with him, do you recall?

MR. FIATO: No, I haven't.

MR. COCHRAN: After you told FBI Agent Wacks about your conversation with Vic Walters at ABC, he called you a name, didn't he?

MR. FIATO: No.

MR. COCHRAN: He didn't call you a name?

MR. FIATO: After I told him?

MR. COCHRAN: Yeah.

MR. FIATO: After I told him specifically?

MR. COCHRAN: Yes.

MR. FIATO: No.

MR. COCHRAN: Wasn't he angry at you?

MR. FIATO: Was he angry?

MR. COCHRAN: Yes.

MR. FIATO: Later on, not after I told him.

MR. COCHRAN: Later on when you saw him he was angry; is that correct?

MR. FIATO: I can't characterize as somebody being upset as angry. He didn't raise his voice to me. He didn't hell at me. He was upset.

MR. COCHRAN: All right. Describe for us how he appeared to you to be upset.

MR. FIATO: Nervous and upset. Upset.

MR. COCHRAN: Nervous and upset after he found out you had told ABC; is that right?

MR. FIATO: Yes.

MR. COCHRAN: And how did he manifest this upset?

MR. FIATO: He called me--after I told him about that, I told him--I saw him being upset and I said I was pimping him and I was kidding. And then when I said that to him, he said, oh--excuse me. Can I swear in here?

THE COURT: Be my guest.

MR. FIATO: I don't want to, your Honor, but--

THE COURT: Tell us what he said.

MR. FIATO: Excuse me, ladies and gentlemen. He called me--he said it in this vein. "You prick, you really had me going."

MR. COCHRAN: This is after you had told him about the conversation with Vic Walters at ABC, right?

MR. FIATO: Yes. Not exactly after. A little ways down the line.

MR. COCHRAN: How much down the line?

MR. FIATO: Maybe ten minutes later.

MR. COCHRAN: Well, ten minutes later down the line?

MR. FIATO: Yeah. We talked about a lot of things and then I let him know that I was pimping him.

MR. COCHRAN: Okay. I understand. Did you ever use these words: "They better treat me better or I'll tell them what I know about the O.J. case"? Did you ever say that?

MR. FIATO: Never.

MR. COCHRAN: You never used those words at all?

MR. FIATO: I already answered that. I said never.

MR. COCHRAN: Nothing further at this point, your Honor.

THE COURT: Mr. Kelberg.

MR. KELBERG: Very briefly, your Honor.

CROSS-EXAMINATION BY MR. KELBERG

MR. KELBERG: Mr. Fiato?

MR. FIATO: Yes, sir.

MR. KELBERG: You were interviewed separately from your brother by Mr. Hodgman and me; is that correct?

MR. FIATO: That's correct, sir.

MR. KELBERG: You had never met, at please me, before the interview?

MR. FIATO: That's correct.

MR. KELBERG: Have you ever met Mr. Hodgman before?

MR. FIATO: I don't believe so. I have seen him. I had seen him upstairs.

MR. KELBERG: We asked you a lot of questions basically about your knowledge of any conversations with Mr. Vannatter; is that correct?

MR. FIATO: Yes.

MR. KELBERG: Now, sir, going back to the hotel and this conversation, would it be accurate to say that the main purpose of the group being together was a debriefing of you and your brother about--

MR. COCHRAN: Assumes a fact not in evidence, your Honor.

THE COURT: Overruled.

MR. KELBERG: --about your upcoming testimony in the retrial of the Christi case?

MR. FIATO: Yes.

MR. KELBERG: How would you characterize the atmosphere in that hotel room during the time of this meeting?

MR. FIATO: Very friendly.

MR. KELBERG: And was there casual conversation about things unrelated to the debriefing?

MR. FIATO: Yes.

MR. KELBERG: Was the subject of the debriefing the majority of what was taking place?

MR. FIATO: Yes.

MR. KELBERG: Did you overhear Mr. Vannatter making some statement that was directed either to you or it appeared to someone else, about someone being a suspect?

MR. FIATO: Yes.

MR. KELBERG: Did you catch all of what Mr. Vannatter said on the subject or did you catch a part of it?

MR. FIATO: A part.

MR. KELBERG: And do you have any independent memory of what led up to the part you heard?

MR. FIATO: No.

MR. KELBERG: And what part did you hear?

MR. FIATO: "The husband is always the suspect."

MR. KELBERG: Was there also conversation in general terms about how a homicide investigator--

MR. COCHRAN: Object. This is leading, suggestive, assumes fact not in evidence.

THE COURT: Overruled, overruled.

MR. KELBERG: Was there also conversation that you heard involving Detective Vannatter about how in general terms homicide investigators begin the task of trying to identify a killer?

MR. FIATO: I don't believe I heard that at all.

MR. KELBERG: Can you provide any more context to what you heard Mr. Vannatter say than what you have just said, the husband is a suspect?

MR. FIATO: No.

MR. KELBERG: You were not present for any February conversation; is that correct?

MR. FIATO: No. That is correct, yes.

MR. KELBERG: And you described--would it be accurate to say that you were pimping Mr. Wacks, the FBI agent, after you had had this phone conversation with Mr. Walters?

MR. FIATO: Well, the phone conversation I had with Mr. Walters concerning Vannatter was maybe two minutes out of a 40-minute phone call concerning another project so--

MR. KELBERG: And what was it that you were doing that in your mind was pimping Mr. Wacks?

MR. FIATO: I was exaggerating the circumstances to aggravate him.

MR. KELBERG: Why did you want to aggravate Mr. Wacks?

MR. FIATO: Well, that is what pimping does. You pimp each other and I got one over on you and he has done it to me in all these years I have known him.

MR. KELBERG: And you enjoyed that exercise; is that correct?

MR. FIATO: I was ecstatic with that exercise.

MR. KELBERG: Would it be accurate to say that it did not appear that Agent Wacks shared your enthusiasm for what you had done?

MR. FIATO: The blood drained from his face.

MR. KELBERG: I have nothing further, your Honor.

THE COURT: Mr. Cochran.

REDIRECT EXAMINATION BY MR. COCHRAN

MR. COCHRAN: So do I understand, in using this term "Pimping," that you and Agent Wacks pimp each over the years; is that right?

MR. FIATO: Yes, Mr. Cochran.

MR. COCHRAN: This is like a little thing between you; is that right?

MR. FIATO: Yes, sir.

MR. COCHRAN: When Mr. Vannatter was talking back in January of 1995, you have told us the part of the conversation that you heard, right?

MR. FIATO: Yes.

MR. COCHRAN: You have been as accurate as you could about that, right?

MR. FIATO: Yes.

MR. COCHRAN: The husband always being the suspect, right?

MR. FIATO: Yes.

MR. COCHRAN: We thank you very much for coming today, sir.

MR. FIATO: Thank you, sir.

MR. KELBERG: May the witness be excused, your Honor?

THE COURT: Yes. Mr. Fiato, thank you very much.

MR. FIATO: Thank you, sir.

THE COURT: All right. May I see counsel without the court reporter, please.

(A conference was held at the bench, not reported.)

(The following proceedings were held in open court:)

THE COURT: All right. Ladies and gentlemen, we are going to take our mid-afternoon recess at this time. Remember all my admonitions to you. We will stand in recess for about fifteen minutes. Okay.

(Recess.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Miss Clark, as far as Commander Bushey is concerned, you want him ordered back for tomorrow morning, 9:00 o'clock?

MS. CLARK: Thank you, your Honor.

THE COURT: Commander Bushey, tomorrow morning, 9:00 o'clock.

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect that we've now been rejoined by all the members of our jury panel. Ladies and gentlemen, I just finished a conference with the lawyers in my chambers regarding scheduling, and I've indicated to them that my anticipation at this point is that we will conclude the presentation of the evidence this week, that I will actually get to the instruction of the jury. In other words, telling you the law that applies to this case I hope to give to you this Friday morning, and it's my anticipation that we will start with the arguments of the attorneys next Tuesday, September the 26th. So we'll be making some progress. At this point today, we have no other witnesses to present to you. The reason for that is, there's some very significant legal issues that I have to resolve. Just to give you an example, these are the papers that one party filed for me to read to resolve this problem. So just to tell you, it is a complex issue and it will take me some time to deal with. So I'm going to excuse you for the afternoon today. I'm told we have one other witness that is scheduled promptly for 9:00 o'clock tomorrow morning. So we'll get started with some additional testimony, but I anticipate winding this up this week. Remember all my admonitions to you; don't discuss the case, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you with regard to the case. As far as the jury is concerned, we'll stand in recess until 9:00 clock. As far as counsel is concerned, as soon as the jury is clear, we'll reconvene on the other matters. All right. See you tomorrow.

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Back on the record on the Simpson matter. All parties are again present. All right. Counsel, our agreement was to have our discussion regarding Dr. Whitehurst at this time. I'll hear from the Defense first since they're the party proffering the witness.

MR. BLASIER: Thank you, your Honor.

THE COURT: Mr. Blasier, good afternoon.

MR. BLASIER: Initially, I would like to present to the court Mr. Steven Cohen who is a member of the Washington D.C. bar who is Mr. Whitehurst's attorney and asked me to request that he be allowed to represent Mr. Whitehurst in this proceeding should we need any input from him.

THE COURT: Certainly. Good afternoon, counsel.

(Discussion held off the record between the Deputy District Attorney and Defense counsel.)

MR. COHEN: Thank you, your Honor.

MR. BLASIER: Also, there are a number of things pending with respect to Whitehurst and the issues that are raised by Dr. Whitehurst, and we issued four subpoenas. Actually they were two sets of two. They were identical. There was one subpoena that called for a great deal of information. Then there was a second subpoena after we had interviewed Dr. Whitehurst that made some specific requests that were in addition to the general request. Both of those subpoenas we served, some on the FBI and on the Department of Justice, which is the agency that is responsible for the office of the inspector general. I was handed this afternoon a response to or a brief that the federal government filed as to our subpoenas and I have not had a chance to go through it carefully, but I have read the first part of it, and it appears that they have broken up the information into several categories, some which they're asking you to review in camera, which I assume is the large package that you have there because that's a lot larger than they provided to us. What I would suggest is that I be permitted to proceed with our proffer as to what it is we would like to recall Agent Martz for and what we would like to call Dr. Whitehurst for, and hopefully that will frame the issues well enough that it will save you some time, save the court some time in going through these materials to determine what might be relevant. I would, however, in light of the brief that we received--and I don't know whether there are other documents that are in the process of being produced to us, but I would like to also reserve the opportunity to add to that based on new information if I get something tonight, perhaps tomorrow.

THE COURT: All right. That makes sense.

MR. BLASIER: First, it's important to point out that we became aware of Dr. Whitehurst only last week when there was a television show on prime time live that reported a series of allegations that Dr. Whitehurst was making against members of the FBI and specifically members in the crime lab of the FBI. Dr. Whitehurst is a--he has a Ph.D. in chemistry that he received in 1980. He joined the FBI in 1982. In 1986, he was assigned to the crime lab in Washington D.C., specifically in the materials analysis unit. His area of specialty was explosive residue analysis and explosive analysis. He worked on bomb cases where they would be required to analyze the remnants of the bomb or bombs that had been unexploded. He is also in his fourth year of law school at Georgetown University. During the course of his employment at the crime lab, which has been from 1986 to the present, he has had extensive contact with Special Agent Roger Martz who testified in this case. Many times when he would be called upon to investigate explosive analysis, he would be required as to the presence of certain chemicals or compounds in explosive residues or in bombs, and that would involve working with Special Agent Martz with Agent Martz doing mass spectrometry as he did in this case. Dr. Whitehurst became concerned about nine years ago, about the time that he started in the lab, he became concerned about the practices of a few individuals at the lab, specifically Agent Martz and a few others with respect to the practices that they would indulge in with respect to the cases that he was familiar with. And I might state that he's--he worked closely with Agent Martz on at least 10 cases. He wasn't sure how many more than 10, but it's a minimum of 10. He's had contact on many, many cases with Agent Martz' work. The allegations that he has had fall into several categories, and they include Agent Martz systematically and regularly not providing Brady material or suppressing Brady material or material that could be exculpatory to the Defense, either changing or not including in reports that are prepared in casework information that might be considered exculpatory information, slanting reports and testimony in ways designed to help the Prosecution and hurt the Defense, reaching conclusions in advance of testing and then designing the test around those conclusions that would help the Prosecution. He also makes extensive allegations about Agent Martz working on cases where he is not qualified, specifically bomb residue cases. And it would be our proposal that Dr. Whitehurst, if he is allowed to testify, one of the areas that we would like to go into is his opinions, observations of the custom and habit of Agent Martz with respect to these issues I've listed. Let me state before I go further, I think we can break this down into fairly distinct categories as to what it is we want to do. We want to recall Agent Martz for some very specific purposes that I'll state in a minute that are purposes in a sense irrespective of Dr. Whitehurst. The information that we have that causes us to want to recall Agent Martz came from agent Whitehurst and now it's come from the FBI and the office of the inspector general. But there's an independent proposal that we are making to recall Agent Martz. We would also like to call Dr. Whitehurst to cover some of these general areas that I've just described as well as in response to what Agent Martz says. If Agent Martz answers questions a certain way, then we may not need Dr. Whitehurst to answer the same kind of questions. Now, agent or Dr. Whitehurst has explained that the allegations about not including Brady material or not including information in reports that might be helpful to the Defense can be explained fairly easily, and that is, in explosive residue cases--which is his area of expertise and his area of expertise with Agent Martz, although he's also worked with Agent Martz in sexual assault cases, poisoning cases and one or two other areas, but primarily explosive residue. The way Dr. Whitehurst explains what he feels is improper activities on the part of Agent Martz is that, when they do analysis of explosive residue in a particular case, the analysis might show that what they have found is consistent with the presence of a particular compound that is a compound that perhaps could be tied to a suspect, is the compound that would help the Prosecution's case if they were able to determine if that compound was present.

With these tests, there are also many types of compounds that are also consistent with the results produced by the FBI lab, and it is the elimination of these other compounds that are in many cases innocent in nature. In other words, they would not help the Prosecution's case, they would help the Defense case that are either taken out of reports or not included within reports so that if they find that what they have analyzed could be one of five different things, they only include the one that is incriminating and helpful to the Prosecution. Now, under evidence code section 1105, it is our position that these are repeated situations that have a regular response by Agent Martz and the crime lab that fall in the category of habit and custom, and we are entitled to present that information to the jury as it might reflect actions in conformity with their habit and custom in this case. Now, I might point out that as a result of Dr. Whitehurst's allegations, the Department of Justice just announced yesterday that they are convening an independent panel of scientists to review the work done in the crime lab. Now, getting specifically to Agent Martz, you might recall that some of the points that we felt were relevant with Agent Martz and that I attempted to bring out in my examination of him were that he had designed the testing in this case intentionally to fail. In other words, the test was not designed in a way that it would find EDTA in the best possible way. In other words, the testing was not very precise, was not very scientifically precise, was designed to fail. Another point that we attempted to make with Agent Martz was that with the test that was designed, he was looking for basically four things, as the court might recall. And it was our position that once he found the first three things, he stopped looking for the fourth thing in any kind of an effective way at all. You might recall that was the 132 daughter ion that he admitted he had not specifically looked for that. He had tried to do a full daughter ion spectrum. We also tried, attempted to make the point that Agent Martz was bias towards the Prosecution and particularly after we had the morning break after my first session with him where he answered that he had changed his attitude and became more hostile, and I think he made a comment to the effect that he wanted to tell the truth more or he didn't feel like the truth was getting out with the answers that he had been giving previously.

We also brought out the fact that he had destroyed data. And it's important to understand that it was not just the digital data from the computer that we maintained he improperly destroyed, but it was also one full daughter ion, full daughter ion chart on a piece of evidence in this case that he said, "I didn't print out the chart," because he didn't see anything there, so he didn't see any need to print out the chart. We also raised the same issue about not recording testing that he had done with respect to his testing of his own blood where he produced charts but no work papers. He didn't write anything down about the conditions under which he had done those particular experiments. And he also testified that he had done experiments on old blood to determine old blood that he knew would have had EDTA in it to determine whether or not he could detect it after a period of time, and he admitted in his testimony that he had not written any of that down, had not made any record at all of that testing that he had done in connection with this case. And, of course, we also allege that he had not taken any of the steps that one might expect him to take to try and determine if there is EDTA on these evidence samples, how much EDTA would you expect to find eight months later under the conditions that each of these samples was subjected to. Now, I want to give a specific chronology of the information that we received from Dr. Whitehurst with respect to Agent Martz' performance in the Simpson case. And this is the main reason we want to call Agent Martz back to the stand. Apparently, during the time that Agent Martz was testifying in this case, Dr. Whitehurst was present at Quantico at the research lab where he thinks he had done some of the validation or the validation studies that Agent Martz used to present his results in this case. There was apparently allegations made by Dr. Bruce Budowle and Larry Presley and a doctor--I think it's a Dr. Dean Federoff who works at Quantico, that in their opinion, Agent Martz had committed perjury with respect to their validation study and whether he had done his own validation study. They were very upset about his testimony in the Simpson case. Dr. Whitehurst also was present during a comment made by a Dr. Mary Tungol, t-u-n-g-o-l, who is not connected I don't believe with the research lab, but is in their trace unit downtown I believe; and Dr. Tungol also had been watching Agent Martz' testimony and felt as well that he had committed perjury with respect to his statements about the technique that he used and who developed it and how it was developed and that sort of thing. Dr. Whitehurst indicated to these people that they probably ought to complain about that if they felt strongly about it. Now, we've been receiving documents kind of here and there in the last couple of days. Some of the documents that we've requested that we have not received are documents that may have been produced by Dr. Budowle and others at the FBI alleging Agent Martz not testifying truthfully in the Simpson case. In any event, on August 30th, 1995, a memo was written by K.W. Nimmich, N-I-M-M-I-C-H, who is the head of the research lab at Quantico or the acting head I believe to Mr. Ahlerich, A-H-L-E-R-I-C-H, who is the acting head of the entire lab. And in that memo, Mr. Nimmich recommends that Agent Martz be reprimanded for his testimony in the Simpson case based on two different grounds. The first ground that's cited in the memo cites a portion of the MAOP, which I assume is some sort of operating procedure regulation or something that governs notes made during investigations, and this letter recommending reprimand talks about that an agent's--quotes from that regulation:

"An agent's notes of precise character made to record his or her own findings must always be retained. Such notes include but are not limited to accounts, work papers, notes covering such matters as crime scene searches, laboratory examinations, fingerprint examinations. If a doubtful situation arises, resolve the question in favor of keeping the notes." And it points out that Agent Martz did not adequately preserve records, although it talks in the context of the underlying data that was not saved on the computer. The memo doesn't specifically reflect other records, records of the testing that we brought up that were not preserved at all, which in my view are more significant failures to comply with their regulation. The second area of concern of Mr. Nimmich is Agent Martz' testimony about the validation study that he did, vis-à-vis the validation study done by Quantico. The memo describes what Agent Martz did and what was done at Quantico in the context of Agent Martz in conducting the examination for EDTA, research chemist mark miller, who I assume is from the--from Quantico, working closely with Agent Martz in setting up the protocol to do this testing, that chemist mark miller conducted experiments to optimize the instrumental conditions for the analysis and that he worked closely with Agent Martz to do this. Further, a report, according to Mr. Nimmich, a report was sent to the chemistry toxicology unit, which is the unit that Agent Martz was the acting head of, stating what the protocol was, "This is our recommendation for the procedure that you should use, you Agent Martz should use in this case." The procedure itself was the procedure that hadn't been validated at Quantico. And he points out that Mr. Miller had worked alongside Agent Martz for two days while conducting this initial examination and the report--the memo goes on to conclude that Agent Martz was, quote, unquote, less than candid in his testimony about those issues. Now, I'm assuming that this memo got generated based on complaints that were made about Agent Martz by people other than Dr. Whitehurst. Dr. Whitehurst at that point in time had long since been in touch with the inspector general's office through the Department of Justice and had been providing them with information about the Simpson case as well as other cases that I'll talk about in a minute.

THE COURT: Excuse me a second.

(Brief pause.)

THE COURT: Mr. Blasier, with regard to that, you indicated that Dr. Whitehurst apparently over a long period of time had brought some of his concerns to the attention of the powers that be at the FBI and the other federal agencies. And the main memo, the first memo that you gave to me, what was the date of preparation? I could not determine that from looking at it.

MR. BLASIER: That was the first 26-page memo?

THE COURT: Yes.

MR. BLASIER: I don't think there was a date on that. I think that was an earlier memo from `93 I believe. Wait a minute. I'm sorry.

MR. KELBERG: May we have a moment?

MR. BLASIER: I'm sorry. That one that refers to an agent's retirement in July of this year. So that's a fairly current memo.

MR. KELBERG: We think it's 19--I would like to introduce to the court Mr. Steven Robinson.

MR. ROBINSON: Yes. Steve Robinson, Deputy General Counsel of the FBI.

THE COURT: Welcome, sir. Thank you.

MR. KELBERG: And Mr. Robinson informs me he believes it's a 1995 memo because it refers to the pending retirement in July of 1995.

THE COURT: Of Mr. Kerney. All right. Because I found no date that would tell me.

MR. BLASIER: In any event, that memo is one I believe of a number of memos that Dr. Whitehurst has submitted to the inspector general's office in the last couple of years expressing his concerns about the activities of Agent Martz and a couple of other agents. And just as a bit of background, Dr. Whitehurst had--prior to going to the inspector general had tried to deal with these problems within the FBI and had not--in his view, they had not been satisfactorily dealt with. So he at this point contacted the inspector general. Now, Agent Martz made a response to the memo of Mr. Nimmich recommending that he be reprimanded, and that response which I just got today I believe, this is 9-15, this is Agent Martz' response of September 15, just a couple days ago to the memo from Mr. Nimmich recommending that he be reprimanded.

(Discussion held off the record between the Deputy District Attorney and Defense counsel.)

MR. BLASIER: And we have a copy for the court.

MR. KELBERG: In fact, I think there are several memos that follow. Mr. Blasier has them all, but I made copies because I think the court will want them. In the transcript--end of the transcript, your Honor, of volume 2, there are attached a number of documents. I think the court will find two of the documents out of sequence, the August 30 memo I believe--

THE COURT: August 30, 1995?

MR. KELBERG: --and the September 15 memo, no. 18, memo 1 of the two.

THE COURT: From Mr. Martz?

MR. KELBERG: From Mr. Martz. Then we have subsequent to that a 19--September 18th memo and then a document that's a one-page routing slip with a comment. And those are for the court.

THE COURT: All right. Mr. Blasier.

MR. BLASIER: And in any event, this response by Agent Martz obviously is a response that's prepared as part of the Simpson case. These are memos that have all been generated since this became public. Anyway, Agent Martz in his response of just a couple of days ago makes the following statements, which I think are completely inconsistent with his testimony in this case. He says that--he acknowledges that--and he refers to himself in the third person. He acknowledges that SSA Roger Martz of the chemistry toxicology unit--various efforts at methods development were performed by members of the chemistry toxicology unit of the FBI.

THE COURT: I'm sorry, counsel. What page are you referring to?

MR. BLASIER: Page 4.

THE COURT: This is a memo dated 9-15?

MR. BLASIER: Yeah. Let me give you a copy of that.

MR. KELBERG: It's on the transcript.

MR. BLASIER: Oh, okay. I'm reading from page 4 at the top.

THE COURT: Well, hold on just a second. It's a memo from Martz to Ahlerich, right?

MR. BLASIER: Yes. Martz to--

MR. KELBERG: Correct.

THE COURT: Dated 9-15?

MR. BLASIER: Correct.

THE COURT: All right. This is the one that's entitled "Validation studies"?

MR. BLASIER: Yes.

THE COURT: All right. Proceed.

MR. BLASIER: And in that memo, he says that various efforts at methods development were performed by members of the chemistry toxicology unit of the FBI laboratory and the forensic science research unit of FSRTC. In other words, Quantico was working with Agent Martz and chemistry toxicology to develop these methods. He states further on down SSA Martz readily acknowledges having worked with specific members of the FSRU on specific methods development efforts, but was not specifically asked about this assistance and cooperative effort, and he states although SSA Martz certainly acknowledges lengthy interactions and discussions about these efforts, he does not recall having received a specific written report containing specific recommendations of SRU personnel. Now, in his testimony in this case at page 38711, line 10, I asked him, Agent Martz: "Agent Martz, did you review the validation materials that Quantico prepared for you? "Answer: No, I did not. They not prepared for me." And later on at page 38712, line 16, Agent Martz indicated: "Quantico's testing was done to determine whether or not a procedure could be developed to give to another laboratory to do the testing ." And then I asked him whether their validation study was for the purpose of this case, and his testimony was, "You'd have to ask them." And then I asked: "You didn't ask them," and he stated: "No." Then I asked him whether he had looked at the validation study, and he testified: "I never looked at it, no." And it's our position that that testimony is simply not true, and that's one of the areas that we want to ask Agent Martz questions about.

(Discussion held off the record between Defense counsel.)

MR. BLASIER: And if it wasn't clear, Nimmich's memo points out that Quantico was working side by side with Agent Martz and Quantico developed the validation procedure that Martz used but took credit for on his own. Now, there was another case, the World Trade Center case, that will tie into the Simpson case in a second. The World Trade Center case was a bombing, of course, that took place in New York in 1993. Dr. Whitehurst and Special Agent Burmeister, who is also an expert in explosive residue analysis, were assigned to work on that case in the field in New York. Agent Martz was also working on the case in the laboratory in Washington. It became important to determine whether among the debris at the World Trade Center, they could find a compound called urea nitrate, which is a compound that is used in explosives, and that would have been helpful to the Prosecution's case had they found that compound. Agent Martz attempted to develop a protocol to identify the presence of urea nitrate, and he developed a protocol that involved mass spectrometry that he believed if you saw the appearance of one particular peak, you could then conclude that the material tested was consistent with the presence of urea nitrate. Dr. Whitehurst and Agent Burmeister were very concerned that this particular protocol did not do what Agent Martz claimed that it would do, that it would not identify that particular compound, that it could not distinguish between urea nitrate. Because of that concern, Dr. Whitehurst and Agent Burmeister prepared what amounts to a blind test. They prepared a sample of urine that was allowed to evaporate and acetone was added--

THE COURT: Liquid fertilizer.

MR. BLASIER: --and they prepared a second sample of fertilizer that just had nitrate in it, and they submitted both of those samples to Agent Martz, and I believe there was another agent, Thurman, working on the case with Agent Martz in order to test whether Agent Martz' protocol would identify the presence of urea nitrate as opposed to just the individual compounds. Well, when the two items were tested, Agent Martz took the position that his test worked, he found urea nitrate and we can go forward with further testing. It was at that point that agent Whitehurst, Dr. Whitehurst and Mr. Burmeister told him that no, what we had provided was just urea and just nitrate, your test doesn't work, it cannot distinguish between the compounds that would help the Prosecution's case and other chemicals. And, incidentally, it's important to understand that in the World Trade Center bombing case, there were broken sewage lines that caused a lot of human waste, urine, et cetera, to be in the area of the bombing. There also--

THE COURT: I know in the location of the suspects, there were--

MR. BLASIER: I'm sorry?

THE COURT: I know in the location of the suspects, there were other containers of this. Okay. I understand the significance.

MR. BLASIER: Okay. And also--but there was also nitrate was a very common thing that might have been innocently there at the crime scene. So they had a long discussion and argument about whether Agent Martz' protocol should be used, and Dr. Whitehurst indicated at the end of that discussion that they were under the impression that Agent Martz agreed that this was--this was not going to be satisfactory to use in the case and was not going to be used. It was sometime later that the reports that the FBI intended to use in that case came through the mill and they were signed off by Agent Martz, and they took the position that this test that agent--Dr. Whitehurst and Mr. Burmeister had thought they convinced Agent Martz was not an adequate test. The report had that test in there, had results based on that test, did not provide information to the effect that--by the way, these other things--these other innocent things that are probably all over the place there would give you the same signals as what we got here. Dr. Whitehurst complained about that, and eventually the reports were given to Dr. Whitehurst and Agent Burmeister to correct, to make them accurate if you will. Now, we have asked for the reports that were originally submitted after they had the discussion with Agent Martz and we've asked for what the corrected reports are, and we have not received those as of yet. I don't know whether there's an objection to those particular reports, but we don't have those yet, so I don't know what the exact language was. Now, as a result of Agent Martz' activity in the World Trade Center case, Dr. Whitehurst made a number of complaints, and I think you've reviewed part of the litany of the complaints that were made by Dr. Whitehurst.

We know that Agent Martz was aware of the fact that complaints had been made and that he was under investigation for the substance of those complaints at the time that he testified in this case in July. One of the reasons we know that is that we have a young man working for us, Gary Randa, who is the son of Cathy Randa, who, among other things, has the responsibility of escorting witnesses from the airport to their hotels or the court as necessary. Mr. Randa picked up Agent Martz in July prior to his testimony in this case. As they were driving from the airport to the hotel, Agent Martz--they were making some small talk--Agent Martz told Mr. Randa about his family, and then Agent Martz started to make some comments about Dr. Whitehurst. He expressed his concern that Dr. Whitehurst not talk before he was done testifying in the Simpson case. Now, it's our supposition that Mr. Martz didn't realize that Gary Randa was working for the Defense. In any event, there was clear conversation by Agent Martz that he was concerned about the Whitehurst allegations coming up, becoming public at the time he testified. It's our position that--oh, by the way, and the very next time that Mr. Randa picked up Agent Martz to go somewhere, Agent Martz didn't say hardly anything to him. Mr. Randa has described his demeanor completely changed, that he did not say anything about anything of significance. It's our position that we should be allowed to recall Agent Martz to probe into his bias and his state of mind at the time he testified in this case, vis-à-vis, his fear, his knowledge that he was being investigated, his fear that allegations might become public. Obviously that's going to result in certain pressures on him to testify a particular way. These are all issues that had I known about them at the time, I think it certainly would have been proper to bring out to the jury that these were things that might affect his credibility, these are things that would show bias and interest on his part. Now, another area, Agent Martz, when he testified in this case, was the acting chief of that particular section. He had been appointed acting chief I think about 60 or 70 days before his testimony in the Simpson case. Within a week--I believe it was within a week after his testimony in the Simpson case, he was demoted. He was no longer the acting chief. He was back to the head of the chemistry toxicology unit. We maintain that certainly there is a reasonable inference that if Agent Martz was so concerned about the Whitehurst allegations becoming public, that he would express it to Mr. Randa, that he also would have expressed it to the Prosecution in this case and we should have been--if that had happened, that we should have been advised of that as potentially Brady material. I don't know that that's true or not, but I think that's one inference that it is reasonable to argue. Now, with respect to--so I guess if I had to sum up why we want to recall Agent Martz, it would be to show the violations of their own regulations with respect to record keeping, the inaccuracy of his testimony about the validation study done at Quantico and his bias and interest at the time that he testified because of the Whitehurst allegations that were pending against him. Now, one other area that we want to go into with Agent Martz concerns the World Trade Center case. If you'll recall, the Prosecution spent most of their--much of their time examining Dr. Rieders about the sconce case. And one of the allegations against Dr. Rieders that was presented to this jury was to the effect that Dr. Rieders had made a determination that oleander might be present in tissue samples based on inadequate tests. In other words, he had not performed enough tests to reach that conclusion. He should have done more testing. That was bad. Therefore, the jury should take that as some indication of lack of credibility or competence in this case. It's our position that the World Trade Center situation, the World Trade Center case, where he issued a report or signed off on a report that made certain representations about the presence of urea nitrate based on inadequate testing, that that's just like the sconce case and that we ought to be able to cross-examine Agent Martz about that specific case as it relates to the credibility of his testimony about the testing that he did in this case.

(Discussion held off the record between Defense counsel.)

MR. BLASIER: Now, as to--

(Discussion held off the record between the Deputy District Attorney and Defense counsel.)

MR. BLASIER: And I might also point out that I don't think we got a--what is described as a report to Martz about the results of the validation study at Quantico. We got the validation study itself, but it was all handwritten papers. I don't believe there was anything in there that fits that description. Now, as to agent Whitehurst, we would propose to call him after Agent Martz to testify and, again, it would depend on what Agent Martz testified to about the various areas that we want to go into with him. That would determine certainly what we could go into with Dr. Whitehurst about those specific areas. If we felt Agent Martz was untruthful or inconsistent with statements that may have been made in Dr. Whitehurst's presence, then presumably that would be one area of examination of Dr. Whitehurst. And we would also propose calling Dr. Whitehurst, who has had extensive contact with Agent Martz, worked with him on many cases, to testify with respect to Agent Martz' character for honesty and veracity, the existence of any bias, interest or motive, the categories I talked about at the beginning, slanting research, slanting his position to favor the Prosecution and hurt the Defense. There is one phrase that Dr. Whitehurst has heard Agent Martz use on many occasions, and that is, "It's good enough for me," and that phrase is used by Agent Martz in the context of when people are critical of his methodology saying, you know, you got to do more than that, this is not adequate, you got to be--you got to be more precise than this, his response is, "It's good enough for me."

Now, the memos that I--some other memos that we got today, which you may not have, you probably don't have in my view are I would describe them as, "Let's circle the wagon" memos. There's a memo from Mr. Nimmich to Mr. Ahlerich dated yesterday, the 18th, which states that the use of the terminology in the earlier memo, less than candid, was meant to imply a posture of enhanced self-importance rather than a misstatement of factual data. He also recommends, however, in that--in this later memo that we feel was written for the purpose of trying to keep Agent Martz from being recalled in this case and trying to minimize the seriousness of his testimony in this case or that his testimony, if you will, state that the manner in which Special Agent Martz described these events during his testimony should be discussed and clarified for future testimony.

MR. KELBERG: Your Honor, did the court--I gave Mr. Blasier a copy that was intended for the court of that and the subsequent memo. I'm not sure that was given to the court.

THE COURT: I don't believe I've seen that.

MR. BLASIER: I think I just got one.

MR. KELBERG: You had--I gave you a copy in discovery, but I just--what I handed to you was intended for the court because you already have seen it.

MR. BLASIER: This is what you handed to me, these two.

MR. KELBERG: May I give that to the court?

MR. BLASIER: That memo is not in there I don't think, is it?

(Discussion held off the record between the Deputy District Attorney and Defense counsel.)

MR. BLASIER: This is the September 18th, yesterday's memo. And I'm also presenting to you a one-page memo. Actually looks like a circulation sheet where they just write the note and you send it around, from Mr. Ahlerich directed to Randy, who is Randy Murch. I'm not sure exactly what his title is. It--in any event--what this document says: "In any event, I view this as a performance issue, not misconduct. Please give me your recommendations." And that I'm assuming is in--is related to Agent Martz' testimony in this case--

THE COURT: Thank you.

MR. BLASIER: --and related to the recommendation that Agent Martz be reprimanded for his testimony. Now, we have asked for a number of materials in our subpoenas including personnel records of Agent Martz. We've been provided with partial documents. Some of the documents we have have huge black areas in them where lines have been blacked out. I, of course, don't know what's in those parts of the documents, but we've been able to piece together this whole chronology from the information that we have been provided both by Dr. Whitehurst and now through the FBI and the inspector general's office. It's our position that this is very relevant important testimony. It can be done quickly. We would propose that we call Agent Martz to testify in the limited areas that I expressed to you and that we then be allowed to call Dr. Whitehurst to testify in the broader areas as well as to rebut anything that Agent Martz might testify to that would be proper for him to comment on. I don't think it will be tremendously time consuming. I've broken it into fairly logical groups. And that would be our proposal with respect to both Agent Martz, who we would call first obviously, and Dr. Whitehurst. May I have a moment?

(Discussion held off the record between Defense counsel.)

MR. BLASIER: I think it's important to know that the World Trade Center, that Agent Martz or the report that he signed off on was pulled by the FBI and changed and corrected by Dr. Whitehurst to make it more accurate, more complete. And we would argue that during the course--during the time of his testimony in this case, Agent Martz was presumably up for being appointed the chief rather than acting chief, that he was a candidate for that promotion and he knew that agent--Dr. Whitehurst had made these allegations against him and that that created a motive for Agent Martz to cover up any mistakes that he made in this case, to also succumb to any pressure that might be there to explain the exculpatory nature of the results in this case just as he had done in the World Trade Center case. So we would offer both high profile cases--and I might point out also that the World Trade Center case, we have a lot of detailed information on. We've only been able to ask him specific questions about the World Trade Center case, the moody case in Alabama and the Simpson case in effect. There are a lot of other high profile cases that we know about that we haven't been allowed to ask him questions about that he is not allowed to talk about, that he is not allowed to identify to us. So from what we know, we have the World Trade Center case, which has significant importance, vis-à-vis, the Simpson case. Thank you.

THE COURT: Mr. Kelberg.

MR. KELBERG: Thank you, your Honor. Your Honor, if it didn't ruin my weekend, actually speaking to Dr. Whitehurst I found to be an interesting experience, and I view him as a sad figure, a tragic figure in my mind. He is a man who has a very difficult time moving from his concepts of pure science to the field of applied science in forensic settings. And let me give you an example. I don't know if the court's read the transcripts, but let me give you a couple of examples. He is going to law school. And if the court looks at my examination near the end of the second transcript, you'll find out that the reason he is going to law school--he's in the fourth year at Georgetown law school--is because he's searching for answers. He doesn't understand what he can say as an expert, when he should say things as an expert and he doesn't understand, and at one point, he asked to have an opportunity to speak with me when this case is over for me to give him the answers. Very tragic, your Honor, because obviously I don't have the answers. But the real answer that I think is applicable is that pure science and forensic science are not coexistent in their approaches. What Dr. Whitehurst doesn't understand is that if an agent has a case involving let's say a bomb and you have a suspect at whose house you find some fertilizer that could be used to make up a bomb, that it's important for the purposes of either pursuing that suspect or excluding that suspect to know whether the bomb in question has materials consistent with the fertilizer that's found. And so the report that is issued which says it's consistent with whatever the substance is, let's say urea nitrate--by the way, Mr. Blasier is wrong. Mr. Martz did not do the testing on the urea nitrate. It was done by a lab technician, Mr. Laswell. Mr. Martz signs off as his supervisor regarding that result. But the point is that what Dr. Whitehurst believes needs to be said is that whenever you say it's consistent with something that may be inculpatory, it's mandatory that the reports say also what it is consistent with which may be exculpatory. And Dr. Whitehurst tells us it is well understood by scientists that if you say something is consistent with, you're not saying it is that something that it only is consistent with being that, but it can be other things. The memo I asked the court to read, the 26-page memo from Dr. Whitehurst tells the court how Dr. Whitehurst uses terms, "Fabrication of testimony," "Perjured testimony," "Fraud on" Dr. Whitehurst calls the jury, "The customer." That's in the transcript in the area where I examined him. He's asked what his job is for "The customer," who is "The customer," the jury, the jury needs to have all of the facts. Well, his problem is, he doesn't understand that in an adversarial system, the jury will get all of the facts through cross-examination. He acknowledges the cases are not tried on reports and that a report in no way is going to be complete as to all possibilities, but for that agent in the field who needs to know, hey, is there something further to pursue with this person or to exclude this person, I need to know, is this consistent with--and by the way, there is nothing that has been identified from Dr. Whitehurst that says that--in fact, it was never said in the urea nitrate tests by Mr. Laswell in the reports signed off that it was urea nitrate to the exclusion of all others. Now, I analogized Dr. Whitehurst's confusion to the confusion in an area where I think I do have a little bit of expertise, and that is forensic psychiatry. This court I'm sure is well aware that for years and years and years, the experts in mental health, psychiatrists and psychologists have argued that when they have to evaluate people for their mental well-being and then come into a courtroom and apply what the law is concerned about which has to do with mental states, separate from the psychiatric evaluation of any psychiatric condition, things get twisted and perverted, and they have a very hard time understanding this. That is Dr. Whitehurst, bottom line. What he knows about the Simpson case, he has told us. He has not one iota of basis on which to question the bottom line from Roger Martz that those stains on the gate, those stains on the socks did not come from EDTA preserved blood. If I may briefly, it's one page tells you everything that he can tell you about what is really important. Did those stains come from EDTA preserved blood? Page 281 of the transcript starting on line 8, my question, line 4: "Do you consider your Ph.D. in quantum chemistry to qualify you in the analysis of biological fluids for the presence of EDTA? "No. "Do you consider yourself to have the qualifications based upon anything, education, experience or training to allow you to undertake an analysis of biological fluids for the presence of EDTA? "No. "Have you heard anyone say that Mr. Martz' ultimate conclusions in the Simpson case that stains from the gate and from the socks did not come from EDTA preserved blood were wrong? "No. "Do you have any basis on which to say that Agent Martz' testimony that the stains from the gate and from the socks did not come from EDTA preserved blood are wrong? "I have no such data, sir." That's what he knows about what is in issue here.

Now, what's really relevant I think, your Honor, is if the Defense really wants to raise the issue of the EDTA preserved blood source, why haven't they brought in an independent expert properly qualified to tell the jury, "I examined the stains with the appropriate methodology, and unlike Agent Martz, I conclude--using all the appropriate methodologies that Dr. Rieders claimed should have been used and weren't used, I conclude these are from EDTA preserved blood." That's really the issue. But instead of bringing in a direct attack, which they can't bring--because Martz is right. Instead of bringing a direct attack, they're trying to do the end around, and all the end around is, when you read all these memos of Martz and Nimmich and Ahlerich and so forth, it's a question of who gets credit, who gets credit for the validation studies. Not that the validation studies are wrong, not that Martz is wrong. Who gets the credit. In a bureaucracy, we have people that sometimes are more concerned with who gets the credit than the bottom line of what is the answer. On the issue of what is the answer, there is no dispute. There is no dispute and Dr. Whitehurst offers not one iota of evidence. He says he is not qualified to offer one iota of evidence.

And incidentally, if we are talking about habit and custom of changing reports, that's not what you're going to find. When you read this transcript, your Honor, no. 1, he's got one report, one report that he can remember specifically where somebody came in and yellowed out what they thought should not be in the report. And this gets back to the you just say consistent with or do you say consistent with this and a zillion other things. One report. You will find that much of what he bases his impressions on is based upon hearsay, both first level and multiple levels of hearsay and not from Martz. What you will find, your Honor, with Dr. Whitehurst is that he acknowledges that the same standard that he would apply to an expert witness called by the government at trial about being required to say not only what it is consistent with that points to guilt, but point to those things consistent with innocence he would apply to a Defense expert who is called in a criminal trial. And I think the court can probably figure out that if we get Dr. Whitehurst on the stand--and so much is his interpretation of things. What we will go into and show is that what Dr. Baden did. The shoes, remember the defect on the shoe consistent with a knife? Didn't bother saying consistent with things that might point to guilt. Dr. Gerdes, remember those five errors that Dr. Gerdes attributed his analysis of the LAPD lab? Through Mr. Clarke's quite expert cross-examination, we learn, wait a minute, there were some innocent explanations that, in fact, were the more logical explanations that Dr. Gerdes just said didn't exist. Never mentioned that on direct. Those people, under the terms used by Dr. Whitehurst, have perpetrated a fraud on the customer, the jury. That's his thinking. Now, with respect to--well, let me give you another example of where Dr. Whitehurst is coming from. In the memo that we asked you to read, near the end, about 23, 24, 25, he talks about Mr. Free, the present FBI director. Mr. Free was the attorney in the first World Trade Center case.

THE COURT: Refers to him as Louie Free, yes.

MR. KELBERG: In the moody case. I'm sorry. In the World Trade Center case.

THE COURT: Has to do with the red dot Hercules gun powder. I recall the discussion.

MR. KELBERG: There's a discussion also about his argument to the jury about the colors of paint that were found at the suspect's home.

THE COURT: Spray paint versus flesh versus black.

MR. KELBERG: Exactly, your Honor.

THE COURT: I recall.

MR. KELBERG: And the argument was from Mr. Free to the jury that, "Gee, what an amazing deal. They find all these colors of paint, every color of paint, but they don't find black which happens to be the color that's associated with the bomb." And what is Dr. Whitehurst's comment to that? That was a fabrication to the jury by Mr. Free. Why? Because obviously they didn't find every imaginable color of paint that exists in the universe. To say that Dr. Whitehurst is a literal thinker, a very concrete thinker and a very troubled person as a human being, a scientist, well intention, sincere, honest in his belief, I acknowledge all, but completely out of his element as to what is the true application in forensic settings of science. With respect to his knowledge of Mr. Martz and his qualifications, there is no question that he believes Agent Martz is not qualified in explosive residue analysis. And the reason, as you will read in the transcript, your Honor, because he has not completed the exact identical protocol that exists in the materials analysis unit, which is the unit that is the unit within which Dr. Whitehurst does his work. He has not done that protocol. I have a memo that I'm going to ask the court to read where Agent Martz spells out his training and experience to do explosive residue analysis. But Dr. Whitehurst takes the point of view that because he believes Martz is unqualified when Martz gets on the witness stand and testifies as to any conclusion, Martz is perjuring himself, Martz is fabricating testimony for the jury. And then I asked Dr. Whitehurst during my portion of the questioning, "Well, doctor, can you acknowledge the possibility that someone could honestly believe they were an expert in the field even if you didn't think they were, that they honestly believed they were?" He acknowledged that that was possible and that a person could honestly believe as an expert in the testimony that was given on the subject, that was possible. "If somebody did that, if Mr. Martz felt that way, honestly believed he was qualified even though you didn't and he honestly gave answers that he believed in, sir, in your judgment, is that perjury, is that fabrication? "No, that is not."

Now, I don't think we're here to try the world trade or the moody case or really anything more than what is on the court's plate as the court presently has it. And when you get to the bottom line of all of Dr. Whitehurst's material that he can offer, he can offer nothing on Simpson. There is no habit and custom. Gee, habit and custom? Here, you've got this trail of paperwork that shows that the FBI was going to recommend some kind of disciplinary action against Mr. Martz. Martz gets an opportunity to offer his explanation. That explanation is reviewed and assessed. And when you get down to it--and you have to read all the memos, these new ones that we've just given the court--you find that it's all semantics. And who gets the credit? This is collateral to the interest degree. What would be significant? Bring in an expert to say these are not EDTA preserved blood source stains. That's not what they're going to do. Now, with respect to--if I can just have a moment, take a look at some of my notes. One other thing, and I'm going to ask the court to read this. But to give you a flavor with respect to Dr. Whitehurst and the kind of reports that he believes are necessary--

THE COURT: Excuse me just a second. Madam reporter, how is your paper supply?

THE COURT REPORTER: Fine.

MR. KELBERG: Incidentally, while I recall, all of the memos involving Martz and this issue start with--on the August 30th memo that his testimony was reviewed. It is not like it says attached as a transcript of SA Martz' testimony from Los Angeles on September--on July 25th and 26th, `95. It is not like people are going on hearsay or whatever. So it is apparently a review based upon what he actually said, and then the things get flushed out. What I wanted the court to see from a memo of Dr. Whitehurst as to the kind of report that he thinks needs to be written, he talks about DNA reports that the FBI laboratory reports out. And it's one paragraph, your Honor, a one-paragraph memo. DNA profile, forget loci, D2S44, D17S79, D1S7 and DS4139 were developed from HAE, H-A-E, capitalized, roman numeral III, digested high molecular weight, DNA extracted from specimens, capital Q1, capital K1 and capital Q2. Based on these results, the DNA profiles from Q1 match K2.

The probability of selecting an unrelated individual at random from the population having a DNA profile matching the K2 sample is approximately one in 10 million. Then this is what Dr. Whitehurst adds as his comment on this. "That passage means absolutely nothing to me. I hold a BS degree in chemistry from East Carolina University, a Ph.D. in chemistry from Duke University--" and may I add, it is in quantum chemistry, your Honor, not related to biological analysis like Martz is doing.

"I was for two years, before entering on duty with the FBI, at the Robert Welch research fellowship conducting research in one of the most complex areas of theoretical physical chemistry. I should understand that passage, and yet hundreds upon hundreds of DNA cases leave the FBI laboratory yearly utilizing just such dictate. I'm sure that personnel in FBI field offices in the United States Attorney's office do not dictate the format of DNA reports. They would not dare be so stupid." Your Honor, I hate to admit it; I understand what that paragraph says. And I have no degrees in chemistry, but as a lawyer working in forensic science areas, this is meaningful. And I would defer to people I'm sure of much greater expertise than I sitting across from the table and those people in our office who have presented this area of the scientific evidence who have I think similar expertise. If I can understand it, it's because I work in a forensic setting where I have to look at all of the evidence, and these things are easily understood. So you have to put Dr. Whitehurst into the very unusual perspective that he himself has painted a man who would go to four years of law school at a first rate law school and I'm sure an expensive law school, Georgetown, to find answers that he still cannot find. Now--one moment if I could, please your, Honor.

(Brief pause.)

MR. KELBERG: Also, your Honor, because the Defense would suggest that--may I put this on the railing? Because the Defense would suggest through testimony from Dr. Whitehurst that the FBI is not interested in the truth, but only interested in convicting, I would go into page 282, I thought it might be worthwhile: "Dr. Whitehurst, do you know Mr. Bodziak? Do you know Mr. Deedrick?" Because he had been asked I think by Mr. Blasier questions regarding the reputation of Mr. Martz. "Mr. Bodziak, do you know him? "Yes, I do. "Have you ever raised any concerns about the quality of the scientific work performed by either of those two gentlemen?" I should back up. "Mr. Deedrick, do you know him? "Yes, I do. "Mr. Bodziak, do you know him? "Yes, I do.

"Have you ever raised any concerns about the quality of the scientific work performed by either of those two gentlemen? "Not at all. "And have you heard of any complaints raised about the quality of the scientific work performed by either such gentlemen? "Not at all. "And have you heard, on the other hand, favorable reviews of the quality of the scientific work by either--performed by either of those individuals? "High praise, sir. "And have you heard their reputation in the scientific community regarding their quality as scientists in their areas? "Yes, I have. "And what is that? "Only high praise is all I've heard." If Dr. Whitehurst is allowed to testify to suggest that the FBI is not interested in the truth, I fully expect to cross-examine him regarding his knowledge of the reputations of two of the FBI's finest scientists who have given this jury the benefit of their expertise. Now, your Honor, on the issue of the Rieders'--

THE COURT: Sconce.

MR. KELBERG: --chronology--and I just wanted to frame it in a way I think is most helpful. I don't know if the court will remember this, but I kind of remember it because I think it had just been I think the Friday before the brunt of some difficult examination with Dr. Baden, and I think Miss Clark then had the benefit of coming up on Monday with Dr. Rieders part two, and in her efforts to question Dr. Rieders about sconce, I recall quite vividly the court, with no disrespect intended, showing some degree of irritation with the extent of this questioning, saying to Miss Clark, "When are we going to try the Simpson case?" And, your Honor, that's what this comes back to. If you really have something to put on, you don't put on trying the moody or the World Trade Center case as to an analysis which was not done by Martz. He only signs off on the record. I'm sorry. Mr.--Mr. Robinson helps me out by pointing out that, of course, it is in a completely different area. Dr. Rieders at least is supposed to be qualified in the area of the oleandrin testing which should in our judgment have been done by the very technique which Martz used in the Simpson case.

What we were really trying to show with sconce is that Dr. Rieders was out of touch with modern scientific techniques, that what he used were techniques of the 60's--I'm trying to think--thin layer chromatography, infrared spectrometry--the third test, the title which escapes me at the moment, but that he used these to say that this was not detection of oleandrin, but identification of oleandrin. And I will tell this court right now this is not going to be any short hearing if the court allows either of these gentlemen to testify because we will bring Dr. Henyon back. Dr. Henyon has reviewed the EDTA material. Dr. Henyon says Martz' ultimate conclusion is correct. Those stains on the gate, those stains on the socks did not come from EDTA preserved blood. He will also tell this court and jury that Dr. Rieders' use of the techniques he used in 1989 on--1988 on the sconce case were out of date for the purpose of identification. They can be used as screening techniques to see whether you may have the substance, but not for identification. Now, what's interesting to me is, in the Simpson case, what is Martz saying? Martz is not saying that the results he got from the stains do not include EDTA. He is saying that it is possible there is EDTA in the stains. And I think the court has a vivid memory of his conclusion in that regard. But what he said was, when you run EDTA preserved blood through the mass spec and you look at the peak heights for the EDTA preserved blood--

THE COURT: It's off the scale.

MR. KELBERG: --it's off the scale. And Dr. Henyon says that conclusion based from that comparison is sound scientifically and that the conclusion it shows, these were not EDTA preserved stains sources--source stains is a reliable and valid scientific conclusion. But if Martz comes back in--the court thinks that Martz can testify about who should get credit for what and you have all these memos trying to sort it out and if Martz can be questioned about world trade or any of these other cases that he has done, this will not be short. There will be rebuttal by the Prosecution with Dr. Henyon. And I submit to the court this is collateral to the key issue. The Defense has perfect ability to bring in an expert to tell this jury it ain't there. That is the evidence. To say this is not EDTA preserved blood as a source for the stains is not reliable and valid. You bring somebody in, do the tests, come in, give the opinion. That's what's central. This is collateral to, I need not say, to a jury that wants to start deliberating on this case. Now, one of the memos the court has, I think it's the last memo in the transcript, was provided the day--Monday I believe although I think it was prepared Sunday night as I recall, a clarification of Dr. Whitehurst's views of the qualifications of Mr. Martz and whether or not he has misrepresented things. First of all, when the court reads the transcript, it is very important to see how Dr. Whitehurst also believes that Mr. Martz has acknowledged he is not qualified in explosive residue analysis. What the court will find is Dr. Whitehurst tells us there was a meeting attended by seven people, some from the MAU, M-A-U, not M-A-W, materials analysis unit, some from there, some from chemical toxicology, Martz' people, Martz and Laswell. And the question was asked I think by Mr. Kearney, who is identified--I think he was the section chief of the scientific section. Mr. Corby I believe was the unit chief of materials analysis. The question was posed, how many here have basically completed the protocol and training formulated by the materials analysis unit, for example, explosive residue analysis. Dr. Whitehurst raised his hand. His protégé, his student, Dr. Burmeister raised his hand and I believe Mr. Corby raised his hand. What Dr. Whitehurst said he cannot tell us is whether when there was a consensus reached that Martz was not qualified, what--and that Martz said he wasn't qualified. What Martz was saying was, "I am not qualified based upon the questions you ask." That is--"I have not gone through that program." But as I will give the court, I believe in additional memos we have received, Martz explains his training. He's been doing smokeless powder cases. He's gotten training--he's helped the Australian government in explosive residue analysis cases. Again, is Dr. Whitehurst sincere in his belief that Mr. Martz is not qualified? Absolutely. But as Dr. Whitehurst has to acknowledge, you know, people come into court and they're called as expert witnesses and the attorney opposing that witness raises an objection on lack of foundation. Judges have to decide is this person sufficiently qualified to be able to testify, testify in front of the jury, leaving the ultimate conclusion of weight of the testimony to weight of such an expert to the jury for consideration. As the court well knows, it's a 405 preliminary fact in California. In other words, the proponent has to establish by preponderance of the evidence to the satisfaction of the Judge that the expert is qualified if there's an objection raised to the expertise. So Dr. Whitehurst understands that people can actually come into court and testify as experts who he doesn't think are qualified because the criteria he uses in explosive residue analysis--and that's the only area that's really in question, the explosive residue analysis, the criteria he uses and the criteria the court uses, they're two different things, and that's why when you see his memo, that 26-page memo and he uses terms like "Fabrication" and "Fraud" on the jury and "Perjured testimony," it is the state of mind of a man who is troubled. He is troubled by these questions that he has been asking himself. He takes to heart what the FBI--I think he told us in sessions the previous director had a memo, you will rule out corruption, fraud, so forth. He takes to heart that memo as well we would hope all people do. But things kind of get lost in the translation. And that's why I viewed him as a very tragic figure. I enjoyed talking with him. He's a very bright man, very sincere man. He has nothing to offer on this case, and for the same reason, this area that Mr. Blasier suggests Mr. Martz be cross-examined about further is not an appropriate area. The data--oh, kind of the last thing. Mr. Randa allegedly heard a statement from Mr. Martz. Both Mr. Yochelson and I have questioned Mr. Martz about that last night by telephone. No such conversation took place. Mr. Randa obviously will be vigorously cross-examined on facts like, no. 1, he never reported this to anybody, and allegedly it's only now come to light because Whitehurst has come to light. Yet in an interview that Mr. Yochelson conducted with an investigator of our office this afternoon, earlier this afternoon with Mr. Randa, Mr. Randa was asking probing questions trying to find out some information on a subject that he then claimed meant nothing to him. So he reported nothing. This information if it ever existed was known by the Defense. I don't think it existed because I think the evidence will show by the weight of the evidence that no such statement would have been made by Mr. Martz who did know who was picking him up. I mean Mr. Martz understands who is from the Prosecution and who is from the Defense. Mr. Martz is going to be talking about Dr. Whitehurst to Mr. Randa, the son of Mr. Simpson's personal assistant or executive assistant. We will be litigating all of this in front of the jury, your Honor, and it doesn't go to the core issue. The core issue is what's the source of those stains. May I have just a moment to speak with my colleagues?

(Discussion held off the record between the Deputy District Attorneys.)

MR. KELBERG: Let me leave with the interesting observation, to me anyway. That in this case, who is the person who is saying it definitely is EDTA preserved blood? Who is the person interpreting this stuff? Is it Mr. Martz? No. Mr. Martz is saying hey, there could be EDTA there. We got Dr. Rieders doing that. Let's focus on that issue, not on who's a qualified explosive residue analyst, not on who gets credit for validation studies that everybody accepts were good studies with good results and with honest opinions accurately provided. That's what this case should be about. Everything else is 352.

I ask the court--I urge the court not to allow Mr. Martz to be recalled, not to allow Dr. Whitehurst to be called, not to allow Mr. Randa to be called and cross-examined, not to allow us to bring Dr. Henyon back to go into these areas, not to have the kind of mini trial that nobody wants if one is searching for the truth. I would be more than happy to make certain that if the Defense wanted to reopen their case in chief and bring somebody in who did the analysis on the stains to say that they came to a reasonable scientific certainty from EDTA preserved blood, I believe I could prevail even on Miss Clark to say let's hear it. That's important testimony. I don't think we'll hear that. We shouldn't hear the collateral stuff either. Thank you, your Honor.

THE COURT: Thank you. Mr. Blasier, any brief response?

MR. BLASIER: Yes, briefly, your Honor. It absolutely amazes me that statement will be made about Mr. Randa. And what they asked Agent Martz is, "Did you say that to Gary Randa?" Apparently they didn't ask the question, "Were you concerned about the fact that you were under investigation at the time you testified?"

That's the issue. It's not whether he said something to Gary Randa. The fact that he said something to Gary Randa just triggers--tells us that he was concerned. And I have to infer from what Mr. Kelberg just said, they didn't ask him that whether he knew he was under investigation and whether he was concerned about that at the time of his testimony.

MR. KELBERG: We did ask him, your Honor. I just didn't make reference perhaps to it in my statement.

MR. BLASIER: Well, we still don't know whether he admits he was under investigation and was concerned about that.

MR. KELBERG: He tells us neither.

THE COURT: Counsel, thank you. Mr. Blasier.

MR. BLASIER: I also--I find it flabbergasting on Sunday and again today with Mr. Kelberg apparently having taken the position that with material that might be exculpatory that a scientist might put into a report that might help the Defense shouldn't be there and the reason it shouldn't be there is because a Defense attorney in a trial should be able to ask that question.

Now, that's not the way it works. Most cases don't go to trial. Most cases are settled. I would not put an expert--I would not call an FBI expert and start doing discovery on the stand in front of a jury to ask them, "Well, what else do you know?" That's just not the way it works. Brady requires that exculpatory material be made available, not that it be suppressed, not that we have to go hunt for it, not that we have to ask questions in front of a jury about it not knowing what we're going to find. I think this particular issue as to whether Dr. Whitehurst is a sad man or not and whether he's being unreasonable or not is very easy to solve. Mr. Cohen has the World Trade Center report that was prepared, the corrected report that was prepared by Dr. Whitehurst and he has the returned copy that was sent back to Dr. Whitehurst to say take these things out of this report. And I understand the FBI has just given us permission to allow the court to review that report in camera so you can see--the court can see what it is the FBI wanted him to take out of his report to determine whether this is suppression of exculpatory material or not.

The question that Dr. Whitehurst has--and he talked to me about it as well--his question as a scientist--and by the way, he is very proud of being a member of the FBI. He is very proud of that laboratory. He is not maintaining that they are all crooks. His complaints have been with very few people, and he is a very dedicated man and very proud of his law enforcement role. But the question that he has is, as a scientist, "Why do I have to slant my reports, why do I have to leave things out because it might help one side or the other?" Those are the questions that he is searching answers for and have not gotten those answers within the FBI. That's the question that he has. I would submit to you that the issues as to Agent Martz are highly probative. Mr. Kelberg can make all the statements he wants about other ways we may have pursued this case. That's totally irrelevant and to whether we have a right to recall Agent Martz and whether we have a right to call Dr. Whitehurst.

THE COURT: All right. Thank you, counsel. All right. I have one other question before I make a ruling on this matter. I have received from the United States Attorney's office a package of documents that appear to be segregated into different types, and apparently I'm being asked to review these as well. No?

MR. EGLESH: There are two categories of documents there, documents that have been produced to counsel. The court--those are very few in number and the court can easily review those. The larger percentage of those documents are documents which we will ask the court to review in the event that the court determines that agent Whitehurst can be called as a witness. If the court determines that agent Whitehurst will not be called, I don't believe it's necessary for the court to conduct an in camera examination of those documents.

THE COURT: All right.

MR. BLASIER: I would suggest that the court should review any documents that might be relevant to this case before you make a decision.

THE COURT: All right. Counsel, I need to read both transcripts.

MR. KELBERG: Your Honor, could I give the court additional--I think I--perhaps just the one additional memorandum?

THE COURT: Is that the routing sheet?

MR. KELBERG: No. No. This is the one I read from the DNA. It's a memo from Dr. Whitehurst to a person by the name of Strohl, S-T-R-O-H-L.

THE COURT: All right.

MR. KELBERG: And the court may think that this is the same document as one that is attached to the back of the second transcript. There are two such memos. They are different. And the one that I'm giving your clerk at the moment, your Honor, is the one that refers to the DNA. The one that you have at the end of the transcript does not.

MR. BLASIER: Your Honor, we also request that Agent Martz be directed to come to California so that if we are permitted to call him, we can do that tomorrow.

THE COURT: What are the plane schedules for this evening?

MR. KELBERG: Your Honor, I am not aware. I had asked Mr. Martz I believe yesterday when I talked with him to check on evening flight schedules, and the morning flight schedule I believe gets him here at about 11:00 o'clock, assuming there are no delays on either end. So that I know for sure.

THE COURT: Okay. I will direct that he appear here in Los Angeles tomorrow. Will you communicate that with your witness coordinator?

MR. KELBERG: I certainly will.

THE COURT: All right. All right. Counsel, I'm going to take the matter under submission, take the transcripts home today, read it, read all the other materials that were submitted to me with the exception of the additional reports that have now been submitted, I'm going to reread those, read the transcripts and I'll rule tomorrow morning. All right. Thank you, counsel. We're in recess until 9:00 o'clock.

(At 5:40 P.M., an adjournment was taken until, Wednesday, September 20, 1995, 9:00 A.M.)

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

Department no. 103 Hon. Lance A. Ito, Judge

The People of the State of California,)

Plaintiff,)

Vs.) No. BA097211)

Orenthal James Simpson,)

Defendant.)

Reporter's transcript of proceedings Tuesday, September 19, 1995 volume 226

Pages 46437 through 46717, inclusive

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APPEARANCES:

Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012

FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire

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I N D E X

Index for volume 226 pages 46437 - 46717

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Day date session page vol.

Tuesday September 19, 1995 A.M. 46437 226 P.M. 46535 226

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PROCEEDINGS

Motion re SSA Whitehurst's testimony 46652 226

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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n

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CHRONOLOGICAL INDEX OF WITNESSES

DEFENSE witnesses direct cross redirect recross vol.

Vannatter, Philip 226 (770) 46472S 46494Bk 46504S (Reopened) 46507Bk (Further) 46510S

Wacks, Michael 46520C 226 F. (Resumed) 46538C 46553Bk 46559C

Fiato, Lawrence 46589S 46604Bk 46608S 46610Bk 226 (Further) 46611S

Fiato, Craig 46624C 46646Bk 46649C 226

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ALPHABETICAL INDEX OF WITNESSES

WITNESSES direct cross redirect recross vol.

Fiato, Craig 46624C 46646Bk 46649C 226

Fiato, Lawrence 46589S 46604Bk 46608S 46610Bk 226 (Further) 46611S

Vannatter, Philip 226 (770) 46472S 46494Bk 46504S (Reopened) 46507Bk (Further) 46510S

Wacks, Michael 46520C 226 F. (Resumed) 46538C 46553Bk 46559C

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EXHIBITS

DEFENSE for in exhibit identification evidence page vol. Page vol.

(None this volume)