Cross-examination of Harry Scull (part 1) (1 of 2)

📄 Cross-examination of Harry Scull (part 1) (1 of 2) — Wednesday, November 6, 1996

Address:

C:\DEPT103\CIVIL\1996\NOV\6\CROSS-EXAMINATION-OF-HARRY-SCU.DOC

TRIAL

▲ Day 10 of 57

◀ Recess and exhibit discussion Sidebar ▶

Witness: Harry Scull
Examiner: Dan Leonard
Called by: Plaintiff • Date: Wednesday, November 6, 1996 • Utterances: 139

Defense counsel Dan Leonard reads into the record the deposition of Harry Scull, a photographer at Phototech Studios who took a photograph of OJ Simpson at a Buffalo Bills game on September 26, 1993 — an image that became Exhibit 1 in the civil trial. The questioning covers how Scull came to sell the photo through his friend Rob McCelroy, the negative's chain of custody (including a trip to London and to the Rochester Institute of Technology for expert authentication), and the weather and technical conditions when the photo was taken, establishing it as the only known head-to-toe photo of Simpson including his feet from that day.

# 1 MR. KELLY:

Thank you.

# 2 MR. LEONARD:

May we, Your Honor?

Mr. Baker -- Mr. Baker Junior will play the part of Mr. Scull, Senior.

You set, Mr. Scull?

MR. P. BAKER: Yep.

# 3 MR. LEONARD:

Starting at page 36, at line 20:

"Q. Mr. Scull, where do you work?

"A. Phototech Studios.

"Q. What do you do at Phototech Studios?

"A. I'm a black and white printer and photographer, photo assistant, a little bit of everything.

"Q. And what is Phototech Studios?

"A. Phototech Studios is a studio that -- an in-house studio where we photograph almost everything and then process and print the film -- or process and print the film in-house.

# 4 MR. LEONARD:

Okay. Line over to page 39, line 3. (Reading:)

"Q. Okay. Now, by the way, on 9/26/93, did the Associated Press pick out any of our photos to use?

"A. I don't recall.

"Q. Did you take any photos after the game started?

"A. Yes.

"Q. Now, was it sunny and dry all day, September 26, 1993?

"A. No.

"Q. Was it dry before the game?

"A. Yes.

"Q. Had it been raining at all on Sunday, September 26, 1993?"

# 5 (Continue reading as follows:)

# 6 HARRY SCULL:

I don't recall.

"Q. Was the field dry" --

"A. I don't recall"

# 7 MR. LEONARD:

Let me finish this. We're on line 19.

# 8 (Continued reading as follows:)

# 9 MR. PETROCELLI:

Excuse me, Your Honor; I think Mr. Leonard inadvertently skipped some lines.

Could you go back to line 8, Mr. Leonard.

# 10 MR. LEONARD:

Line 8?

# 11 MR. PETROCELLI:

Yeah.

(Continued reading as follows:).

"Q. Was it sunny and dry all day September 26, 1993?

"A. No.

"Q. Was it dry before the game?

"A. Yes.

"Q. Had it be raining at all on Sunday, September 26, 1993?"

# 12 MR. LEONARD:

Then Mr. O'Connor, who is Mr. Scull's attorney, comments:

"At what point in time? "MR. BAKER: Before the game. "THE WITNESS: I don't recall.

"Q. Was the field dry before the game?

"A. I don't recall.

"Q. Do you remember if there was any wind before the game?

"A. I don't recall.

"Q. Do you remember if there was any wind during the game?

"A. I don't recall that either.

"Q. Do you remember whether or not the temperature was in excess of 50 degrees?

"A. Yes, it was.

"Q. And would that be throughout the period of the game it was in excess of 50 degrees, you believe?

"A. I don't recall that.

"Q. Now, do you have all of the photos that you took on September 26, 1993 here today?

"A. No.

"MR. BAKER: Mr. O'Connor, why not?

"MR. O'CONNOR: Ask the witness. I have certain photographs that he took on that particular day.

"THE WITNESS: I have all the negatives from that day."

# 13 MR. LEONARD:

Skipping over to page 44 line 14. 44, 14.

# 14 (Reading:)

# 15 MR. BAKER:

I don't think have you to read that, in view of the stipulation.

# 16 MR. LEONARD:

Okay.

# 17 (Continued reading as follows:)

# 18 HARRY SCULL:

Rob McCelroy.

"Q. Who's that?

"A. Rob McCelroy is a friend.

"Q. Why did Rob McCelroy receive $2500?

"A. Rob McCelroy acted as the agent with this image.

"Q. Has Rob McCelroy ever acted as your agent previously?

"A. No.

"Q. How come on this particular occasion Rob McCelroy acted as your agent?

"A. He -- I'm trying to think how to word it. He asked if he could.

"Q. When did he ask you if he could act as your agent?

"A. I received a phone call from him on March 28 of 1996.

"Q. Now, did -- between September 26 and March 20 -- strike that. "Between September 26, 1993 and March 28, 1996, did you tell anybody you had this photograph that was Exhibit 1?

"A. Would you rephrase that question again, please,

"MR. BAKER: Would you read the question back."

"THE WITNESS: Yes."

# 19 (Continued reading as follows:)

# 20 (Continued reading as follows:)

# 21 HARRY SCULL:

"Would you rephrase it or repeat it, please."

# 22 MR. BAKER:

"The question was, why not?"

# 23 HARRY SCULL:

"I didn't think it was of any value."

# 24 MR. BAKER:

"Now, did you tell anyone else before March of 1996, or any other entity. That you had the image that has become Exhibit 1?"

# 25 MR. LEONARD:

Line 7.

# 26 (Reading:)

# 27 (Continued reading as follows:)

# 28 A:

"Yes. Rob McCelroy. I thought that was already stated."

# 29 Q:

"Okay. Now, in June of 1995, you thought the picture had some value when you went to the National Enquirer, correct?"

# 30 A:

"Yeah."

# 31 MR. BAKER:

"You can answer the question, Mr. Scull"

# 32 A:

"No."

# 33 Q:

"When you contacted the National Enquirer in June of 1995, you thought the image had some value, true?"

# 34 A:

"Yes."

"Q. And you had contacted Mr. McCelroy by June of 1995, or did you directly communicate with the National Enquirer?

"A. I directly communicated with the National Enquirer.

"Q. And at that time did you provide them with the negative of the image that has been come Exhibit No. 1?

"A. Nope.

"Q. Why not?

"A. In my conversations" --

# 35 MR. KELLY:

Objection. Hearsay.

I'll withdraw the objection, Your Honor.

# 36 THE COURT:

Okay.

# 37 (Continued reading as follows:)

# 38 A:

"In my conversations with them, they were 'O.J.'d out' and didn't want to see anything."

KEY QUOTE

# 39 Q:

"It's your testimony, in June of 1995, the National Enquirer told you they were 'O.J.'d out;' is that correct?"

# 40 A:

"Yeah."

# 41 Q:

"Who was that?"

# 42 A:

"Ray."

# 43 Q:

"Who said -- who said that to you from the National Enquirer?"

"A. Ray Ferrall."

"Q. Did you then attempt to communicate with any other of the tabloids to sell the image that has become Exhibit number 1?

"A. No.

"Q. Now, why in June of 1995 did you feel the image had value?

"A. I just had a head-to-toe picture of O.J. Simpson, and I hadn't seen any to that point.

"I hadn't seen any photographs at that point.

"Q. Now, it's your testimony that the image that has become Exhibit number 1 in this deposition was taken by you on September 26, 1993, correct?

"A. Correct.

"Q. And it's your testimony that that was taken with your Canon camera, correct?

"A. Yes, sir.

"Q. At what lens did you have on your Canon camera?

"A. A 500 millimeter lens.

"Q. That's the 4.5 500-millimeter lens?

"A. Yes, sir.

"Q. Who was the manufacturer of the optics?

"A. Canon.

"Q. Now at that point in time when you took the photograph, you were standing where?

"A. In the end zone.

"Q. Where in the end zone?

"A. Along the goal line.

"Q. And on which -- you said you were on the Miami side of the field; is that correct?

"A. It appears to be, yes.

"Q. And the Miami side of the field is -- we have got a picture of Rich Stadium up there behind Mr. Petrocelli. Orient me, if you can, sir to north, south, east and west.

"A. Well, I'm not --"

# 44 MR. LEONARD:

I'm going to skip over now to page 54, line 3:

# 45 (Continued reading as follows:)

# 46 MR. LEONARD:

Skipping over to page 57, line 5:

# 47 (Continued reading as follows:)

# 48 (Continued reading as follows:)

# 49 Q:

"You can answer the question Mr. Scull."

# 50 (Continued reading as follows:)

# 51 (Continued reading as follows:)

# 52 (Continued reading as follows:)

# 53 Q:

"Now, when did you first meet with Mr. Kelly?"

# 54 (Continued reading as follows:)

# 55 MR. PETROCELLI:

Mr. Leonard, since you're deleting the objections, I think you should delete the "you can answer the question," as well.

# 56 MR. LEONARD:

Okay.

# 57 MR. PETROCELLI:

Thank you.

# 58 MR. LEONARD:

If you go over -- a little complicated -- over to line 6.

MR. P. BAKER: Yeah.

# 59 (Continued reading as follows:)

# 60 (Continued reading as follows:)

# 61 MR. KELLY:

Objection. Hearsay.

I'll withdraw the objection, Your Honor. Let it out.

Okay.

# 62 (Continued reading as follows:)

# 63 MR. LEONARD:

Skip over to page 63, line 22.

MR. P. BAKER: Okay.

# 64 (Continued reading as follows:)

# 65 (Continued reading as follows:)

# 66 A:

"It can, yes.

"Q. So you took one image of Mr. Simpson, you say, on September 26, 1993, while he was in the end zone, correct?

"A. Yes.

# 67 MR. LEONARD:

Skip over to page 68, line 12.

MR. P. BAKER: Okay.

# 68 (Continued reading as follows:)

# 69 (Continued reading as follows:)

# 70 (Continued reading as follows:)

# 71 A:

"I believe Newsweek, Time magazine, and some of the TV tabloid shows."

# 72 Q:

"Now, did Rob McCelroy tell you why Newsweek or Time did not purchase your photo?"

# 73 (Continued reading as follows:)

# 74 A:

"It wasn't newsworthy at the time.

# 75 Q:

"What were you asking or what were you requesting Rob McCelroy to ask for your photo when you were attempting to sell it to Newsweek or Time magazine?"

# 76 (Continued reading as follows:)

# 77 A:

"I made no negotiations, and I asked for no asking price."

# 78 Q:

"You had no input into the asking price for this photo that you were attempting to sell in March of 1996?"

# 79 A:

"Correct."

# 80 (Continued reading as follows:)

# 81 (Continued reading as follows:)

# 82 A:

"Not all of them. I do know he uses Nova Photo, N-O-V-A."

# 83 Q:

"Other than Phototech, what lab do you generally use?"

# 84 (Continued reading as follows:)

# 85 A:

"General labs in general?"

"Q. Yes.

"A. Royal Photo, Nova Photo, and Insta Photolab.

"Q. Now, have you ever digitally altered a photograph in your life, sir?

"A. Absolutely not.

"Q. Have you ever altered a photograph in any manner, whether it be digital or otherwise, in your life?

"A. No."

# 86 (Continued reading as follows:)

# 87 (Continued reading as follows:)

# 88 A:

"I have no idea."

# 89 Q:

"When did you learn that he had made either blow-ups or photographs of the exhibit -- the negative of Exhibit 1?"

# 90 A:

"In April."

# 91 Q:

"What did he tell you?"

# 92 A:

"He -- he informed me that the National Enquirer had used the photograph."

# 93 Q:

"Now, when you gave the negative to Mr. McCelroy, did you just say, see if you can sell it?"

# 94 A:

"No."

# 95 Q:

"Tell me what the conversation was between you and Mr. McCelroy when you gave him the negative of the photograph that's become Exhibit 1."

# 96 A:

"He said he might have a story in the working with the negative. He wasn't explicit. And he said maybe we can -- maybe we can make ourselves each a couple hundred dollars."

"Q. Now, Did you ever see any paperwork relative to the sale of the negative that's become Exhibit 1 here?

"A. No.

"Q. How were you paid the $2500?

"A. By a check from Mr. McElroy.

"Q. Was it Mr. McCelroy's check?

"A. Yes.

"Q. Did he indicate to you that he had been paid $5,000?

"A. Yes.

"Q. Did you ever see any remuneration -- form of remuneration, that is, a money order or anything, that went to him to from National Enquirer?

"A. No.

"Q. Did he ever indicate to you that he got $17,000 for that photograph?

"A. No.

"Q. Now, how long did Mr. McCelroy have -- Well, strike that. "Did you give Mr. McCelroy the entire strips of negatives of all the photographs that you had taken on September 26th, 1993?

"A. No.

"Q. What did you give to Mr. McCelroy?

"A. I gave to Mr. McCelroy the -- may I see those?

"Q. Sure.

"A. I gave Mr. McCelroy the strip of negatives that appear in Exhibit 5.

"Q. Which one?

"A. The whole strip of negatives.

"Q. Okay. The one that's on the left side of the contact sheet, as you have it?

"A. No, the entire --"

KEY QUOTE

# 97 (Continued reading as follows:)

# 98 (Continued reading as follows:)

# 99 A:

"Approximately two weeks ago.

"Q. So it remained in your custody until two weeks previous, correct?

"A. Yes.

"Q. Now, did you relate to anyone other than Mr. McCelroy that you had these photographs?

"A. No.

"Q. Did you talk to your mother, for example? Did you tell her about the photographs?"

# 100 (Continued reading as follows:)

# 101 A:

"Can you rephrase the question."

"Q. Did you tell your mother about the photographs?

"A. When?

"Q. At any time before it appeared in the National Enquirer.

"A. No.

"Q. Did you tell any of your photographic friends, other than Mr. McCelroy, about the photograph at any time before it appeared in the National Enquirer?

"A. No."

# 102 MR. LEONARD:

Over to 79, line 7.

MR. P. BAKER: Okay.

# 103 (Continued reading as follows:)

# 104 (Continued reading as follows:)

# 105 A:

"I believe a little further."

# 106 Q:

"Okay. 25 yards?"

# 107 A:

"I don't know."

"MR. O'CONNOR: If you can -- If you can approximate, approximate" --

# 108 MR. LEONARD:

Excuse me.

# 109 (Continued reading as follows:)

# 110 (Continued reading as follows:)

# 111 Q:

"And I want you to look at Exhibit 1 and tell me if you see any debris on Mr. Simpson's shoes that's consistent with the debris that comes from the Astroturf that you're familiar with."

# 112 (Continued reading as follows:)

# 113 A:

"No."

# 114 Q:

"Do you know if Mr. McCelroy is familiar with darkroom techniques including, for example, masking?"

# 115 A:

"I don't know."

# 116 MR. LEONARD:

Good news is, we've got a lot to skip. So ...

Okay. Page 93, line 14.

MR. P. BAKER: Okay.

# 117 (Continued reading as follows:)

# 118 Q:

"Okay. And when at 1:05 then it became overcast -- excuse me. "Okay. And then at 1:05 then it became overcast and commenced raining?

"A. Yeah. A front moved in.

"Q. Now, how do you remember precisely 1:05, sir?

"A. Well, because I remember that the national anthem had ended, they got ready for the kickoff, and the light changed drastically at that point and part of my images were a little underexposed because the 4.5 millimeter lens didn't stop down enough or didn't open up enough.

"Q. And at that time, did you change cameras, or did you change the lens on your camera body?

"A. I had to change film.

"Q. Okay. So you changed films and continued to use the 500, 4.5 lens?

"A. Yes.

"Q. And that's manufactured by Canon, correct?

"A. Correct.

"Q. All right. Now, in terms of from the time you got there at 9:30, it was sunny up until 1:05, right?

"A. To the best of my recollection, yes.

"Q. Okay. Did you ever ask Mr. McCelroy if he had done anything to the negative while it was in his possession?

"A. Yes.

"Q. And he told you what?"

# 119 (Continued reading as follows:)

# 120 A:

"No."

# 121 Q:

"And he had it in his possession approximately six weeks?"

# 122 A:

"I don't recall."

"Q. All right. Now, in terms of Mr. McCelroy having it in his possession, did you ask for it back?

"A. Yes.

"Q. Okay. And did he return then all of the negatives, as far as you know, that you gave him in the acetate sleeve?

"A. Yes.

"Q. All right. And did he tell you what he had done with them, if anything, during the time period that he had those negatives?"

# 123 (Continued reading as follows:)

# 124 A:

"Yes."

# 125 Q:

"Why don't you answer that and we'll --"

# 126 A:

Yes. I gave the negatives to Mr. McCelroy. He -- Mr. McCelroy -- in turn, made some prints. The prints were sent along with the negatives to the National Enquirer. From the National Enquirer, the negatives went to Gamma-Liaison in London. Mr. McCelroy flew to New York City to pick the negatives up from the Concord on a return trip. Mr. McCelroy -- Mr. McCelroy delivered -- or hand carried, delivered the negatives to the Rochester Institute of Technology where the photo experts examined the negative there. And from there, I picked up the negatives."

# 127 MR. LEONARD:

Down to line 19.

# 128 (Continued reading as follows:)

# 129 Q:

"So it was your understanding that the negatives left the country and went to London?"

# 130 A:

"Correct."

# 131 Q:

"And how long were they in London?"

# 132 A:

"I believe two days."

# 133 MR. LEONARD:

Down to line 14 on page 97.

# 134 (Continued reading as follows:)

# 135 (Continued reading as follows:)

# 136 Q:

"So that would be the only photo that you're aware of that shows Mr. Simpson from head to toe, including his feet, that you have ever taken in the years that you have been photographing at Rich Stadium?"

# 137 A:

"Yes."

# 138 THE COURT:

Mr. Leonard.

# 139 MR. LEONARD:

Yes?

Temperature

procedural

Key Quotes (4)

Witness (Scull)

I just had a head-to-toe picture of O.J. Simpson, and I hadn't seen any to that point.

Explains why Scull believed the photo had commercial value — and establishes it as uniquely showing Simpson's full body including feet, directly relevant to the Bruno Magli shoe evidence.

Witness (Scull)

In my conversations with them, they were 'O.J.'d out' and didn't want to see anything.

Explains why Scull failed to sell the photo to the National Enquirer in June 1995, showing the photo sat unused for years before surfacing as trial evidence.

Witness (Scull)

He said he might have a story in the working with the negative. He wasn't explicit. And he said maybe we can -- maybe we can make ourselves each a couple hundred dollars.

Describes the informal, low-key nature of the arrangement with McCelroy, contrasting with the $5,000 ultimately paid — suggesting Scull had little control or visibility into the actual transaction.

Witness (Scull)

Mr. McCelroy flew to New York City to pick the negatives up from the Concord on a return trip. Mr. McCelroy delivered -- or hand carried, delivered the negatives to the Rochester Institute of Technology where the photo experts examined the negative there.

Establishes the full chain of custody for the negative, which is critical for authenticating the exhibit and defending against allegations of tampering.

Evidence (2)

Exhibit 1

Photograph taken by Harry Scull on September 26, 1993 at Rich Stadium showing OJ Simpson head-to-toe including his feet, taken with a 500mm f/4.5 Canon lens from the end zone

discussed extensively — provenance, chain of custody, conditions when taken

Exhibit 5

Contact sheet and strip of negatives from September 26, 1993 that Scull gave to McCelroy

discussed — Scull identifies which negatives he gave to McCelroy

Notable Exchanges (3)

Dan Leonard•Daniel Petrocelli

Petrocelli corrects Leonard mid-reading for inadvertently skipping lines in the deposition, requiring them to back up and re-read the weather questions from line 8.

procedural

Dan Leonard•Daniel Petrocelli

Petrocelli objects that Leonard should also delete 'you can answer the question' stage directions when he is already deleting objections from the deposition read.

procedural

Examiner (Baker)•Witness (Scull)

Scull is asked whether he ever digitally or otherwise altered a photograph — he flatly denies it ('Absolutely not'), anticipating a defense challenge to the photo's authenticity.

strategic

Light Moments (1)

Dan Leonard

Dan Leonard notes 'Good news is, we've got a lot to skip' while navigating the deposition, drawing attention to the tedium of the read-back process.

Credibility Attacks (2)

⚔ Harry Scull

bias / financial interest

Examination probes Scull's financial arrangement with McCelroy ($2,500 of an undisclosed sale), his failed attempt to sell to the National Enquirer, and his lack of any asking price, suggesting he had limited control and knowledge of the transaction — implicitly raising questions about whether the photo's provenance story is complete.

⚔ Harry Scull / Rob McCelroy

chain of custody challenge

Detailed questioning about the negative's journey — from Scull to McCelroy to the National Enquirer to Gamma-Liaison in London and back to RIT — raises implicit questions about opportunities for the negative to have been tampered with.

Objections

2 objections (0 sustained, 0 overruled)

Proceeding 8164 • 139 utterances • Plaintiff witness

Civil Trial

Department 103