Petrocelli cross-examined airline passenger witness Foster about his observations of OJ Simpson on a flight to Chicago the night of the murders. The cross focused on undermining Foster's ability to see Simpson's hands clearly — establishing they were 7 feet apart, at a diagonal, with cabin lights off — and on inconsistencies between Foster's prior testimony about seat assignments and what airplane photos actually showed.
# 1 Q: (BY MR. PETROCELLI) Before the break, we were talking about your prior testimony on direct that the -- your seat and Mr. Simpson's seat were just opposite each other across the aisle, and I showed you an exhibit.
# 2 MR. FOSTER: Marked as the exhibit when we marked next in order.
# 3 MR. LEONARD: What number is that?
# 4 MR. PETROCELLI: Actually, Your Honor, it's been marked as 537. We'll withdraw the last number and refer to it as 537.
# 5 (The instrument herein referred to as Photograph of airplane cabin was marked for identification as Plaintiffs' Exhibit No. 537.) # 6 Q: (BY MR. PETROCELLI) Looking at 537, you would agree that the seats are in fact not directly opposite one another, but are indeed staggered, correct?
# 8 MR. PETROCELLI: Can you put this on the Elmo.
# 9 Q: (BY MR. PETROCELLI) While's he doing that, there are four seats down one aisle and three down the other, right, sir?
# 10 A: That's what I observe, yes.
# 11 Q: And you were sitting in seat 4A, which is this seat here?
# 12 (Pointing to the exhibit on the monitor.) # 14 Q: Okay.
And Mr. Simpson was sitting in the window seat, seat 4D, as you indicated, correct?
# 15 A: Again, between the diagrams and the seat numbers I'm not sure Mr. Simpson was sitting -- I'll point to it.
# 17 A: He was sitting in this seat here.
# 18 Q: Now, you indicated on the chart, when you were shown that chart, that he sat in the seat in the aisle 4, correct?
# 19 A: No, I indicated that he sat across from me. That's why I said it's not -- it's not --
# 20 Q: It's designated on the chart that Mr. Leonard showed you as aisle 4, correct?
# 21 A: Yes, it is designated there as aisle 4.
# 22 Q: Sir, you also testified in the criminal trial, page 36700, that Mr. Simpson in fact sat in seat 4D, correct, sir?
# 23 A: I stated 4D relative to this incorrect chart, when I also stated in the criminal trial --
# 24 Q: The -- well, let me read what you --
# 25 A: But I want to point out that I did not see -- have any photos, so --
# 26 Q: Let me read what you testified to.
# 27 MR. PETROCELLI: Starting at page 36999, Mr. Leonard, line 15. Actually, at line 10.
# 28 Q: What row did you occupy that night in first class?
# 29 A: I sat in what they number row 4. In fact, it was the second row on that side of the plane and the third row from Mr. Simpson's side.
# 30 Q: (BY MR. PETROCELLI) Is that correct?
# 31 A: That's absolutely correct.
# 32 Q: And then, when you were asked what seat number you said 4A, correct?
# 34 Q: Now, your answer 4A was incorrect?
# 36 Q: It's not seat 4A. You're now saying it's seat 5A based on the chart?
# 37 A: No. You're talking about my seat. I don't think that's --
# 38 Q: Excuse me. Mr. Simpson's your right. You then were asked what was Mr. Simpson's seat and you answered at line 1, seat 4D?
# 39 A: I did answer that, and I assumed it because he was sitting across from me.
# 40 Q: Now, you're saying that your trial testimony in which you identified Mr. Simpson's seat as seat 4D was incorrect?
# 41 A: It's absolutely incorrect based on this photo and my recollection now, I did point out that that diagram has always been wrong.
KEY QUOTE # 42 Q: So now you're saying that Mr. Simpson sat in seat 5D?
# 43 A: If that's what is 5D. He sat in that seat.
# 44 Q: And you said you sat in seat 4A?
# 46 Q: And you will agree that seat 4A is ahead of seat 5D, correct? They're not opposite one another, correct?
# 47 A: No. I mean they're offset a little bit by that -- by that photograph, yes.
# 48 Q: Well, let's take a look at this photograph, which is Exhibit 504, another photograph of the same --
# 49 MR. LEONARD: Can I see?
# 50 MR. PETROCELLI: For the record, Civil Exhibit 538.
# 51 THE CLERK: Thank you.
# 52 (The instrument herein described as a photograph of airplane cabin seats was marked for identification as Plaintiffs' Exhibit 538.) # 53 MR. PETROCELLI: Put this on, Steve.
# 54 Q: (BY MR. PETROCELLI) Using this photograph, could you point out where you sat?
# 56 Q: Why is that, sir?
# 57 A: Because I don't see the third or the fourth row of seats on -- I don't see the fourth row of seats on the right-hand side.
# 58 Q: We'll show where you were.
# 59 A: Again, let me -- let me stop.
# 60 Q: You want to just point to where you were sitting, sir?
# 61 A: No, I won't until I know first off -- we haven't even ascertained whether or not this is the actual equipment that was being used that evening, to start with.
# 62 Q: We'll represent to you that it was, sir, based on testimony --
# 64 Q: -- of other witnesses.
# 65 A: I want to be careful as we're pointing to charts. You're saying where did I sit. I don't know in fact that I sat there unless this is the actual equipment. I want this to -- I want to be very, very clear here because I want the truth to be told here.
# 67 A: Again, I don't know if this is --
# 68 Q: Let me show you another picture, picture 539. All three were identified as being the flight that Mr. Simpson took to Chicago.
# 69 A: That's much more representative. I can see the last row of seats there.
# 70 (The instrument herein described as a photograph of airplane cabin seats was marked for identification as Plaintiffs' Exhibit 539.) # 71 Q: Does that help you now?
# 72 A: Yes, this one does.
# 73 (Indicating to Exhibit 539.) # 74 MR. PETROCELLI: Let's put this one up.
# 75 Q: (BY MR. PETROCELLI) And then point out where you were sitting, and where Mr. Simpson was sitting, if you would.
# 76 (Indicating to Exhibit 539.) # 77 MR. PETROCELLI: Yes. 539's on the Elmo.
# 78 Q: (BY MR. PETROCELLI) And you can go up there and point to it?
# 79 A: Great.
This is the seat that Mr. Simpson sat in. And you cannot see my -- the seat I actually sat in.
# 80 Q: Mr. Simpson was three back, right?
# 82 Q: He had the window seat?
# 84 Q: You're two back and you're in the window seat?
# 86 Q: And you will agree then that you're not opposite one another, correct?
# 87 A: I would say that I am very close to opposite in that -- in that configuration.
# 88 Q: If we look at this photograph, which shows us a close-up of the seats being staggered, would you agree that you're not opposite one another, but are considerably staggered?
# 90 MR. LEONARD: Objection vague, considerably.
# 91 A: From this angle it has the appearance of being staggered, but appears much more exaggerated in that photo let's say.
# 92 MR. PETROCELLI: This is Exhibit 538 for the record.
# 93 Q: (BY MR. PETROCELLI) Now, sir, the lights went out very early on in that flight?
# 96 A: The main cabin lights.
# 97 Q: And the lights were out almost from the moment the flight took off, right?
# 99 Q: So for that first hour when you made your observations, the lights were out, correct?
# 100 MR. LEONARD: Objection, vague as to lights.
# 101 Q: (BY MR. PETROCELLI) The main cabin lights were out, sir; is that correct?
# 102 A: The main cabin lights were out, yes.
# 103 Q: And your light over -- that illuminates your seat was out also, right?
# 104 A: I had it on for a little bit at the beginning of the flight or -- well, while I was awake for that period.
# 105 Q: And Mr. Simpson's light was what?
# 106 A: His light was illuminated. In fact --
# 107 Q: Now, would you agree then that you really couldn't get a pretty -- you couldn't get a close look at him to form any opinions about what was, or what was not on his hands?
Would you agree with that, sir, given you're sitting in a staggered position, you didn't have your foot up on a foot rest 'cause there is no foot rest, and that the cabin lights are off?
# 108 MR. LEONARD: Compound, argumentative.
# 109 THE COURT: Overruled.
# 110 MR. LEONARD: And misstates as far as the lights being off and on.
# 111 THE COURT: Cabin lights were off.
# 112 Q: (BY MR. PETROCELLI) Would you agree, in light of those circumstances, you really didn't have a close look at his hands, right?
# 113 A: I looked at his hands and --
# 114 Q: No. My question is you didn't have a close look at his hands?
# 115 MR. LEONARD: Objection, vague as to close.
# 116 THE COURT: Overruled.
# 117 A: Again, I don't know what close means by your definition or my definition.
# 118 Q: (BY MR. PETROCELLI) Well, sir, you were no -- you were at least five or six feet away from him, if not more, at all times, while he was sitting in his seat and you were sitting in your seat, correct?
# 119 A: I would say about seven feet, yes.
# 120 Q: Seven feet. Right.
And you never saw his hands -- you testified previously that you didn't get a look at his hands going on the plane or off the plane, correct?
# 122 Q: So the only time that you made observations of his hands, is when you and he were seven feet apart at a somewhat diagonal position relative to each other, correct?
# 123 A: That is correct.
# 124 Q: Okay.
And the lights, sir, the main cabin lights are out, correct?
# 126 Q: And you really don't know whether he had any cuts on his hand or not, correct?
# 128 Q: Okay.
And at no time did he, for example, did you ever see between his fingers, right?
# 129 A: I did not have a detailed study of his fingers.
KEY QUOTE # 130 Q: I didn't ask you about a detailed study.
I just said, at no time did you ever see the area in between his fingers, correct?
# 131 A: Again, Mr. Petrocelli --
# 132 Q: Can you answer that yes or no, please?
# 133 A: I looked at his fingers. I saw his fingers. I didn't see any cuts.
# 135 A: And I saw it from seven feet away, if we can agree to that distance, and --
# 136 Q: In a diagonal line, right?
# 137 A: Somewhat diagonal line.
# 138 Q: No foot rest.
If Mr. Simpson had a cut inside his fourth finger, cut facing the middle finger, you were never in a position to see the inside of that fourth finger, correct?
# 139 A: That is correct.
# 140 Q: Okay.
And if Mr. Simpson had a fresh cut on the middle finger that had been washed and was cleaned and not bleeding, you wouldn't have really been able to see that either, correct.
# 141 MR. LEONARD: Objection, argumentative.
# 142 THE COURT: Overruled.
# 143 MR. LEONARD: Fact not in evidence.
# 146 Q: Okay. Thank you.
Now, finally, you have made some observations about clothing. You said Mr. Simpson was wearing cocky pants?
# 148 MR. PETROCELLI: I'm sorry. Khaki pants, for the record.
# 149 A: I said -- and I also described and I knew they were cotton type pants. I wasn't sure, definitely, if they were the actual color of khaki, but light colored, tan.
# 150 Q: (BY MR. PETROCELLI) As you testified in the criminal trial, they were not jeans, correct?
# 151 A: Correct, not jeans.
# 152 Q: They were not stone washed jeans?
# 154 Q: And his shirt was what color, did you say?
# 155 A: A darker color. I believe blue or black.
# 156 Q: Okay.
And finally, you said that he had on European loafers, correct?
# 157 A: On the stand I said European. And to the police investigators the week after, I used the term Italian loafers. Neither of them I know to be factual. They were just used to describe a style.
# 158 Q: Now, if Mr. Simpson testified that he had on stone washed denim jeans and a light shirt going onto that airplane that night, and --
# 159 MR. LEONARD: Your Honor, I object. That misstates the evidence.
# 160 Q: (BY MR. PETROCELLI) -- you would be mistaken?
# 161 MR. LEONARD: Your Honor, that misstates the evidence.
# 162 THE COURT: Sustained.
# 163 Q: (BY MR. PETROCELLI) Mr. Simpson said he had on some kind of blue jean outfit.
That's not what you saw; is that correct?
# 165 MR. PETROCELLI: I have nothing further.
# 166 MR. LEONARD: Finished?
# 167 MR. PETROCELLI: Yeah.
REDIRECT EXAMINATON BY MR. LEONARD: