Redirect examination of Robert Lerner

📄 Redirect examination of Robert Lerner — Tuesday, November 19, 1996

Address:

C:\DEPT103\CIVIL\1996\NOV\19\REDIRECT-EXAMINATION-OF-ROBERT.DOC

TRIAL

▲ Day 18 of 57

◀ Direct examination of Robert Lerner Witness excused and recess ▶

Witness: Sgt. Robert Lerner
Examiner: John Kelly
Called by: Plaintiff • Date: Tuesday, November 19, 1996 • Utterances: 141

Baker cross-examines LAPD officer Robert Lerner about the October 25, 1993 domestic disturbance at Nicole Brown Simpson's home at 325 South Gretna Green. Baker established that the Lally surreptitious tape was never properly booked as evidence and that Lerner didn't even know it existed until days before his criminal trial testimony in February 1995. Baker used the 1993 incident to argue Simpson made no physical threats, expressed concern about Nicole's associates rather than violent intent, and disputed that he broke any door.

# 1 THE COURT:

Cross.

# 2

CROSS-EXAMINATION

# 3 MR. BAKER:

Do you want me to have your notes, Mr. Kelly?

# 4 MR. KELLY:

No.

# 5 Q:

(BY MR. BAKER) Good morning.

# 6 A:

Good morning.

# 7 Q:

When you met with Mr. Kelly on Friday, were you on LAPD time?

# 8 A:

Yes.

# 9 Q:

And LAPD paid for you to go over the tapes and meet with Mr. Kelly to get ready for your testimony in this case, right?

# 10 A:

I was on call for court; I was under subpoena.

# 11 Q:

Maybe you didn't understand the question.

The question was: LAPD paid for you to review the tape, meet with Mr. Kelly, and prepare yourself to testify in this civil litigation, true?

# 12 A:

Yes.

# 13 Q:

All right. Now, the tape that we just heard, that tape was done surreptitiously, was it not?

# 14 A:

Correct.

# 15 Q:

And by "surreptitiously," you didn't know that tape was being taped when it was being taped, correct?

# 16 A:

Correct.

# 17 Q:

You have no reason to believe that Mr. Simpson nor Nicole Brown Simpson knew that that was being taped, true?

# 18 A:

No reason to believe that at all.

# 19 Q:

And you have -- in terms of the LA Police Department procedure, that tape was evidence, was it not?

# 20 MR. KELLY:

Objection. Argumentative, speculative by this witness, Your Honor. He indicated it was surreptitious. He didn't even know the tape was being made.

# 21 THE COURT:

Sustained.

# 22 Q:

(BY MR. BAKER) Let me ask it this way.

Sergeant Lally was your supervisor, correct?

# 23 A:

Correct.

# 24 Q:

He's the one that taped that surreptitiously, without anyone knowing it but him, as far as you are aware, true?

# 25 A:

Yes.

# 26 Q:

And he had an obligation under LAPD procedures to book that tape, but never did until after June 12, 1994; isn't that correct?

# 27 MR. KELLY:

Objection. Lack of foundation.

# 28 THE COURT:

Sustained.

# 29 Q:

(BY MR. BAKER) Well, let me ask you this then, sir:

Until you were to testify in the criminal trial -- and you testified on February 3, 1995 -- you didn't even know that tape existed; isn't that correct?

# 30 A:

I found out just a couple days before I went on to testify.

KEY QUOTE

# 31 Q:

So you found out about that tape on February 1, 1995, thereabouts?

# 32 A:

Yeah.

# 33 Q:

And I take it that you were somewhat surprised that there was a tape that had been made and no one had ever informed you about it, since you were the principal person talking on that tape, correct?

# 34 A:

One of the principals.

Yes, I was surprised.

KEY QUOTE

# 35 Q:

And did you ever have a conversation with Sergeant Lally about his failure to book that tape as evidence after the incident of 10-25-93?

# 36 MR. KELLY:

Objection. Assumes facts not in evidence; calls for speculation; argumentative.

# 37 THE COURT:

It's hearsay. Sustained.

# 38 MR. KELLY:

Hearsay.

# 39 Q:

(BY MR. BAKER) Well, did you do anything as a result of your knowledge that the tape -- strike that.

Did -- did you check to find out if that tape was ever booked as evidence before you heard it on February 1, 1995?

# 40 A:

No.

# 41 Q:

Had you taped that conversation, you would agree it would be required that that particular tape be booked as evidence?

# 42 MR. KELLY:

Objection.

# 43 THE COURT:

Sustained.

# 44 Q:

(BY MR. BAKER) Now, there was no contact and no threat of contact on October 25, 1993 that the -- about the incident on 3-25; is that correct?

# 45 MR. KELLY:

Objection. Calls for speculation.

I believe this witness testified he wasn't aware; therefore --

# 46 THE COURT:

I'll sustain it as far as to form.

You may inquire whether the witness heard any.

# 47 Q:

(BY MR. BAKER) Let me read from your trial transcript, sir.

# 48 MR. KELLY:

Objection. There's no foundation for reading from the transcript; it's not a part of the --

# 49 THE COURT:

Sustained.

# 50 Q:

(BY MR. BAKER) Did you testify on February 3, 1995, that there had been no physical contact and the incident never escalated to physical contact.

# 51 MR. KELLY:

Same objection.

# 52 THE COURT:

Overruled.

# 53 SGT. ROBERT LERNER:

Yes.

# 54 Q:

(BY MR. BAKER) And that was your state of mind then, and that's your state of mind now, correct, that that incident was, as Mr. Simpson's -- well, strike that.

We heard on the tape, Mr. Simpson say there was never even close to contact. You heard that, did you not?

# 55 A:

I heard that.

# 56 Q:

That's what he told you, is it not, sir?

# 57 A:

Yes.

# 58 Q:

You also were told by Nicole Brown Simpson that he had not physically touched her since January 1, 1989; you heard that as well, did you not?

# 59 MR. KELLY:

Objection. Misstates the evidence, Your Honor. That's not what the statement was.

# 60 THE COURT:

You may rephrase it.

# 61 Q:

(BY MR. BAKER) You were aware from your being at the 325 South Gretna Green on October 25, 1993, that Nicole Brown Simpson indicated that she hadn't been struck by Mr. Simpson since January 1, 1989, true?

# 62 A:

I don't recall her saying that.

# 63 Q:

Now, when you arrived, was Nicole Brown Simpson upstairs or downstairs in the home at 325 South Gretna Green?

# 64 A:

I'm not sure. We were out front.

# 65 Q:

When you first made contact with her, where was she?

# 66 A:

She met us out front.

# 67 Q:

All right.

And so at that point in time, then, you -- Strike that.

She had been upstairs, locked in her bedroom when she made the 911 call that you've also heard in preparation for your testimony, correct?

# 68 A:

I believe that she said that she went upstairs and locked herself in the bedroom and called the police.

# 69 THE COURT:

The record should be clear that I kept him outside the courtroom while the tape was played so he could not have heard it during this trial.

# 70 Q:

(BY MR. BAKER) But you heard the 911 tape in preparation -- before your coming here to court, right?

# 71 A:

I heard it on TV once.

# 72 Q:

Okay.

And Nicole Brown, at the time that you heard her voice on the 911 tape, not the Lally surreptitious tape but the 911 tape, was upstairs, locked in her room, right?

# 73 A:

If you say so.

# 74 Q:

And when you --

# 75 MR. KELLY:

Objection. That's argumentative. This witness has no knowledge.

# 76 THE COURT:

Excuse me?

# 77 MR. KELLY:

I'm sorry.

# 78 THE COURT:

What's the objection?

# 79 MR. KELLY:

Lack of foundation.

He just answered, "if you say so." He's indicated he has no knowledge as to the content of that tape, Your Honor.

# 80 THE COURT:

So what's the objection?

# 81 MR. KELLY:

That the last question -- answer -- there's no -- lack of foundation. It's also argumentative. He asked him a question the response is --

# 82 THE COURT:

How could the answer be argumentative?

# 83 MR. KELLY:

"If you say so," Your Honor; that's his answer.

# 84 THE COURT:

Why don't you confer with your co-counsel, Mr. Petrocelli.

That is not a proper objection.

KEY QUOTE

# 85 Q:

(BY MR. BAKER) Now, when you arrived, she had, obviously, if she was upstairs locked in her bedroom, had obviously come downstairs and come out front, correct?

# 86 A:

Correct.

# 87 Q:

And when you arrived, Mr. Simpson wasn't out front, was he?

# 88 A:

No.

# 89 Q:

He wasn't in the house, either, was he?

# 90 A:

Wasn't in the main house, no.

# 91 Q:

He was out in the back house with Mr. Kaelin, correct?

# 92 A:

Yes.

# 93 Q:

And after you went through the house, you went back into the back house and talked to O.J. Simpson in the back house, correct?

# 94 A:

Yes.

# 95 Q:

All right.

You also did this shutter diplomacy and went to the front house and talked to Nicole, and went to the back house and talked to O.J., and felt the incident had resolved, and left, correct?

# 96 A:

Yes.

# 97 Q:

And -- by the way, did Sergeant -- well, strike that.

Did you ever think there was need for backup at that particular location?

You can answer yes or no.

# 98 A:

Yes.

# 99 Q:

Mr. Simpson had never made any threats to anyone during the entire time that you were there, correct?

# 100 A:

Verbal threat? You mean threats?

# 101 Q:

To do physical harm to anybody.

# 102 A:

No.

# 103 Q:

And in fact, you had five officers, half the watch there that night, and you had half the watch there because it was O.J. Simpson and a celebrity was involved; isn't that true?

KEY QUOTE

# 104 A:

Partially.

# 105 Q:

And by the way, were you one of the 25 or so officers on June 13 that felt compelled to go to 875 South Bundy to the crime scene because a celebrity was involved?

# 106 A:

No. I wasn't even working West LA.

# 107 Q:

Now --

# 108 MR. PETROCELLI:

Your Honor, I'm going to object to that. There's no foundation for that statement; it's not a proper question; it's argument to the jury; and it's improper.

# 109 THE COURT:

The jury is to disregard it. It's not relevant to this inquiry.

# 110 Q:

(BY MR. BAKER) Now, when you arrived at the front of 325 South Gretna Green, could you look in through the living-room window?

# 111 A:

No.

# 112 Q:

Were the drapes closed?

# 113 A:

I don't recall.

# 114 Q:

You don't have any recollection of whether you could see if anybody was doing something in the living room from the front of the house?

# 115 A:

No.

# 116 Q:

Now, what would you define as, please --

You used the word "suspect" when you were being questioned by Mr. Kelly.

Would you define that term for me?

# 117 A:

"Suspect," a person who is suspected of committing a crime.

# 118 Q:

And at the time -- that is, when you entered that house, you thought that Mr. Simpson was a suspect; is that correct?

# 119 A:

Yes.

# 120 Q:

Now, in terms of your conversations with O.J. Simpson, Mr. Simpson was upset about the people -- and he informed you of this -- that his wife was running around with, correct?

# 121 A:

Correct.

# 122 Q:

And he was upset about the fact that she was, in fact, in his view and from his information, running -- having people in the house who were hookers, correct?

# 123 MR. KELLY:

Objection. Misstates the evidence and misstates the content of the tape, also.

# 124 THE COURT:

Overruled.

# 125 SGT. ROBERT LERNER:

He was concerned.

# 126 Q:

(BY MR. BAKER) And he was concerned that there was one person that he thought was bad for his kids and that his wife shouldn't associate with, and he didn't want him around the house; isn't that true?

# 127 A:

Yes.

# 128 Q:

And that was a gentleman with the first name of Keith, correct?

# 129 A:

Yes.

# 130 Q:

And he expressed that to you, that in fact, these people that were around the house had some sort of dealings with Heidi Fleiss, correct?

# 131 A:

That's --

# 132 MR. KELLY:

Objection.

# 133 THE COURT:

Overruled.

# 134 SGT. ROBERT LERNER:

That's what he indicated.

# 135 Q:

(BY MR. BAKER) And he was upset about that, those people being around his house where his kids were; he informed you of that, didn't he?

# 136 A:

Yes.

# 137 Q:

And he also indicated to you, sir, that he never had intended, nor was he ever considering any physical violence to Nicole Brown Simpson that evening, correct?

# 138 A:

Correct.

# 139 Q:

And he also indicated to you that the door that she said was broken, before that, she told you he broke -- it was broken before he ever went to the house; isn't that correct?

# 140 A:

That's what he claimed.

# 141 MR. BAKER:

I don't have anything further.

Temperature

tense

Key Quotes (5)

Robert Lerner

I found out just a couple days before I went on to testify.

Lerner didn't know the surreptitious tape existed until just before his February 1995 criminal trial testimony, supporting Baker's argument that the tape was improperly withheld and never booked as evidence.

Robert Lerner

Yes, I was surprised.

The responding officer was surprised to learn a tape existed of a conversation he was a principal in — underscoring the breakdown in LAPD evidence-handling procedure.

Robert Lerner

Correct.

Lerner confirmed Baker's summary that Simpson 'never had intended, nor was he ever considering any physical violence to Nicole Brown Simpson that evening' — a key defense framing of the 1993 incident.

Hiroshi Fujisaki

Why don't you confer with your co-counsel, Mr. Petrocelli. That is not a proper objection.

Fujisaki publicly rebuked Kelly for objecting to a witness answer as 'argumentative,' an unusual rebuke that momentarily broke the courtroom rhythm.

Robert Baker

you had five officers, half the watch there that night, and you had half the watch there because it was O.J. Simpson and a celebrity was involved; isn't that true?

Baker planted the theme that LAPD gave Simpson celebrity treatment throughout — setting up the follow-on question about officers swarming to Bundy, which drew a sustained objection.

Evidence (3)

Informal

Sergeant Lally's surreptitious audio recording of the October 25, 1993 incident at 325 South Gretna Green

discussed — Baker challenged whether it was ever properly booked as evidence before June 12, 1994

Informal

Nicole Brown Simpson's 911 call from October 25, 1993

discussed informally — Baker used it to establish Nicole had locked herself upstairs before police arrived

Informal

Lerner's criminal trial testimony from February 3, 1995

Baker attempted to read from it to impeach; objection sustained for lack of foundation, but Baker elicited the substance through direct questioning

Notable Exchanges (3)

Hiroshi Fujisaki•John Kelly

Kelly objected to the witness's own answer ('if you say so') as 'argumentative,' prompting Fujisaki to ask 'How could the answer be argumentative?' and ultimately tell Kelly to confer with Petrocelli because it was not a proper objection.

testy — Fujisaki visibly impatient with Kelly's objection

Robert Baker•Daniel Petrocelli

Baker asked whether Lerner was one of the ~25 officers who went to Bundy on June 13 because a celebrity was involved. Petrocelli (not Kelly) jumped in to object; Fujisaki told the jury to disregard and called it irrelevant.

strategic — Baker planting celebrity-treatment narrative before getting cut off

Robert Baker•Robert Lerner

Baker walked through Simpson's statements during the 1993 incident — that he expressed no violent intent, that his concern was about Nicole's associates (specifically 'Keith' and people connected to Heidi Fleiss), and that the broken door was pre-existing. Lerner confirmed each point.

methodical — Baker systematically defusing the 1993 incident as evidence of violence

Light Moments (1)

Hiroshi Fujisaki

Fujisaki telling Kelly 'Why don't you confer with your co-counsel, Mr. Petrocelli' after a nonsensical objection to a witness's answer drew visible courtroom awkwardness.

Credibility Attacks (3)

⚔ Sergeant Lally (not testifying)

evidence-handling failure

Baker repeatedly pressed that Lally made a surreptitious tape, never booked it as evidence, and that even the principal subject of the tape (Lerner) didn't know it existed until February 1995 — implying deliberate suppression or gross negligence.

⚔ LAPD

bias / celebrity treatment

Baker elicited that five officers (half the watch) responded to the 1993 call partly because of Simpson's celebrity, and attempted — before being cut off — to connect this to the crowd of officers at Bundy on June 13.

⚔ Robert Lerner

prior inconsistent statement / scope of preparation

Baker established that LAPD paid for Lerner to review tapes and prepare with plaintiff's counsel Kelly before testifying, implying the witness's preparation was shaped by the opposing side.

Objections

11 objections (6 sustained, 3 overruled)

Proceeding 8326 • 141 utterances • Plaintiff witness

Civil Trial

Department 103