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.