I asked Mr. Simpson about that incident, he denied it under oath. I seek to offer that sentence, that paragraph, to impeach him and to show what was really going on in that relationship. On the next page, I would offer the paragraph: (Mr. Petrocelli read from Exhibit 732.) And since Justin's birth is the mad New Year's Eve beat up --
Next sequence of passages, Your Honor, begin on the next page, and they are as follows. Top of the fifth page: (Mr. Petrocelli read from Exhibit 732.) And since Justin's birth is the mad New Year's Eve beat up.
Yes. And also for her state of mind as to what happened on that evening. And also on the -- skip a paragraph, following paragraph, she says: (Mr. Petrocelli read from Exhibit 732.) I just don't see how that compares to infidelity, wife-beating, verbal abuse.
To again -- once again show A, that she was beaten by him, and B, that he was unfaithful and C, what her state of mind was in regard to the relationship which --
Because Mr. Simpson offered his state of mind as to the relationship and portrayed it as a loving, great relationship that everyone else enjoyed, and therefore he could not have killed her. And then on the next page --
Actually, the bottom of that same page I would begin and prove the following: (Mr. Petrocelli read from Exhibit 732.) And if I wanted to hurt you or had it in me to be anything like the person you are, I would have done so after the New Year's incident. But I didn't even do it then. I called the cops to save my life whether you believe it or not. But I didn't pursue anything after that; I didn't prosecute, I didn't call the press, and didn't make a big charade out of it, I waited for it to die down and asked for it to, but I've never loved you since or been the same.
And I would offer those statements for the same reasons. And I will add, Your Honor, that they put into evidence Nicole's letter in March of 1993, in which Nicole went on and on about pursuing Mr. Simpson, how much she loved him and how much she wanted him to come back, and she wanted to come home. And all of that, of course, was put in to show both of their states of minds regarding the relationship and what it was really like. And he, of course, was trying to suggest that, you know, Nicole was always pursuing him and he never had any friction or conflicts with her. So therefore, he didn't have any motive to kill. I can't see how he can be permitted to get up on that stand and talk about Nicole's letters and Nicole's statements and characterize the relationship, and we are forbidden from doing so when we have right before us letters and writings of herself, in her own words, that relate to the very matters that he is eliciting on direct.
Your Honor, you can't prove state of mind by incompetent evidence. And as I suggested to the Court, her state of mind relative to this issue is irrelevant. They put in issue Mr. Simpson's state of mind, that he was in a black mood, he was a terrible, heinous person. They've done a character assassination on him, or attempted to, in this courtroom, and we had to respond to that. And we responded to it in a number of ways including the March '93 letter which is dated -- this letter is undated. We have no date on it. We don't know when it was written. We have a pretty good idea of why it was written, and that is because it was written, we believe, in terms of combatting the divorce in 1992, and the document where O.J. Simpson would be liable for 50 percent of all of his assets to Nicole if he had done anything to her. This document goes to those issues. And I would suggest that, for example, Mr. Simpson had never seen this document, it was never given to him. She never mailed it, she never sent it, she never did anything to it. It was -- the first time he ever saw it he was incarcerated during the time of the criminal trial. We have two things to get in the 7 -- the March 1993 letter. And that -- and I don't know why we're discussing that except he brought it up, that's Evidence Code Section 1227, and the ability to combat what they put in issue relative to his state of mind. State of mind of Nicole Brown Simpson, as I have said from the beginning of this case, is irrelevant to any issue in this case, for obvious reasons. What they're talking about is obviously sometime in '89, and maybe thereafter -- I mean the bike incident which Mr. Simpson denies ever having occurred, that is her beating him -- him beating the hell out of her and lying to some doctor relative to a bike incident, I don't know when that occurred. That is the bike incident when he took her to the hospital and had her looked at because she had fallen off a bike. To assert and to do a character assassination on Mr. Simpson from this letter that is undated, and we have no right to confront and cross-examine the author thereof, is, as I have suggested to this Court, improper. Mr. Simpson will deny he ever beat the hell out of her and will deny he ever lied or suggested that she lie to a doctor. And we have no right way to cross-examine her. That's the case that we had suggested to you, the California versus Green. We have no right of confrontation of the witness and we have a document that is undated. They can't prove to you why it was written, when it was written. We can prove to you that it was never mailed to Mr. Simpson, and it should not be subject of the scurrilous accusations that are in here. Further, you have a subsequent letter, I guess, a subsequent letter that was written that would indicate that this is nonsense.
Your Honor, for the record, very briefly, I want to point out that the letter itself states: (Mr. Petrocelli read from Exhibit 732.) I'd like you to keep this letter if we split.
And that's on the very first page. It was obviously written after the 1989 incident and obviously written prior to the split of the parties in January of 1992. It's obviously in her handwriting. And under the Evidence Code, documents like this, once the handwriting is authenticated, can also be self-authenticated by their content. She specifically talks about the fact that she would like this letter to be kept by him in the event that they split, meaning they hadn't split yet. And finally, in responding to Mr. Baker's point, if he was only interested in undercutting the motive in regard to the months and weeks and days leading up to June 12, 1994, then why did he spend a considerable amount of time talking about the 80's, in fact the 70's throughout the 80's, and characterizing the relationship during that period of time, and saying to us in argument earlier that he did so to elicit Mr. Simpson's state of mind in regard to the relationship at that period of time in the 80's.
Those incidences, as the Court is aware, were all raised by the plaintiffs in this case in opening, and continued to raise them throughout their case in chief, so we obviously had to combat and confront those incidences which we did by the evidence we put on.
All right. The Court had preliminarily addressed this issue in regards to defendants' motion in limine 10. At that time, the Court ruled that the admissibility of any piece of evidence, and in light of what is now being offered in this particular piece of evidence, depends upon the circumstances under which these were made and the purposes for which they are being offered. The Court, at that time, referred to, and at present time will refer to, People versus Thompson, a 1988 case, California Supreme Court 45 Cal.Ap.3d 86, and People versus Ortiz, 1995 case, 38 Cal.Ap. 4th, 377, as controlling on these issues. California versus Green, that was cited by the defense, 399 U.S. 149, this morning, really was a case that I don't think could fit within the factual circumstances of our present case. The Green case involved preliminary hearing testimony given by a witness who was attempting to recant his former statements at the trial. People versus Thompson, the 1988 case, involved a statement of a decedent who was no longer subject to cross-examination who made certain statements concerning her physical -- that the defendant might kill her and the prosecution sought to offer that evidence in under Evidence Code Section 1250 as to the declarant's state of mind on the evening that she was killed. There was evidence that the victim had sexual intercourse near the time of death and the prosecution's theory was that it was rape and not consensual intercourse. That state of -- the issue in that case therefore was the state of mind as to the decedent, what the circumstances were in regards to the intercourse in connection with her death. People versus Ortiz was a situation where, also, the declarant was not available for cross-examination; she had been murdered. In that case the prosecution offered into evidence the prior conduct of the defendant beating the decedent, where the decedent declared that the defendant had, six months prior to her death while she was in her bedroom changing clothes, the defendant tried to grab her. She also told another informant that the defendant tried to take advantage of her in the bedroom, lift up her skirt, and told a third informant that the defendant tried to rape her. In both of these cases, the Court of Appeals and the Supreme
admissible for the truth of the matter asserted and are not otherwise admissible except under an exception to the hearsay rule. And for that reason, insofar as the plaintiffs' contention in this case, it's admissible for the purpose of impeaching the defendant's testimony about what occurred on those occasions, they're not admissible for impeachment purposes. And I -- on that ground the Court would exclude it. And with regard to the admissibility, as a statement in support of the declarant's state of mind, both the Ortiz case and the Thompson case said, yes, they may be admissible for the purpose of establishing the decedent's state of mind, if the decedent's state of mind is in issue. I'm satisfied that the decedent's state of mind has been put into issue insofar as it is the defendant's contention that the relationship was a loving relationship and that the defendant had no basis in that relationship which would cause him to commit the acts resulting in the deaths of the decedents. So I think that's clearly an issue. However, both the Thompson case and the Ortiz case further state that simply because they go to the decedent's state of mind does not make them necessarily admissible. I think the Court in both cases said that the trial court has to address the issue of whether or not the Court makes a determination under 352 of the Evidence Code as to weighing the probative value as against its prejudicial effect. And I'm prepared to hear from plaintiff with regards to that issue.
Well, Your Honor, because evidence is probative and damaging to the defense doesn't mean it's prejudicial. The evidence is highly probative because it shows that Nicole's beliefs were in regard to this relationship and that it addresses the issues that Mr. Simpson testified to in his -- in his direct examination. And we're talking about one document; we're talking about several passages from this document. It's not an undue consumption of time and obviously the --
-- interrupt you just a second. I think the Supreme Court and Court of Appeals in Thompson and Ortiz, respectively, were referring to the fact that evidence of this kind, particularly in Thompson and Ortiz, is so highly prejudicial, highly inflammatory, and highly susceptible to a trier of fact treating those statements as proof of the truth of the matters asserted in those statements, that the Court has to be very careful in determining whether or not those pieces of evidence and those cases had a sufficient probative value in terms of the decedents's state of mind, that the Court should properly rule for their admissibility.
Your Honor, the defense has clearly tried to sell the jury the last four hours on the fact that this was a relationship that, beyond any relationship, was incapable of terminating in death, that they had the model relationship, people envied them. That was what their -- that whole Friday was about and a little bit this morning. And this describes the other side of that relationship and what -- how Nicole perceived it. And I think that the dynamic in this relationship is very important to understanding that it was a relationship in turmoil and conflict, that it ultimately ended in death. Now, Mr. Simpson has flatly denied in absolute unequivocal terms ever hitting her, ever touching her, ever striking her. That was damaging. That was prejudicial to us.
I think if that's your theory I would have to keep it out because you're going to the truth of the matters asserted in the letters. The only issue upon which those statements were admissible in Ortiz and Thompson was the decedent's state of mind. In Thompson it was to show a state of mind that the intercourse that preceded the death was really a rape and not consensual intercourse. And that evidence was admissible to show her state of mind vis a vis consent. In Ortiz, similarly, the issue was whether or not the decedent would have invited the defendant over to the house. And it was -- the statements were received to show that the decedent's state of mind was such that it would be reasonable to conclude that she would not have invited him over to the house. Now, you're arguing essentially the truth of the matter asserted, not the state of mind of the decedent.
I was trying to respond specifically to Mr. Simpson's testimony about the way they got along and how he claimed they both perceived the relationship. We were very much in love, we traveled all over the world, our house was loaded with people, et cetera, et cetera. I can't imagine anybody's home being so full of friends, it was a super relationship, totally enjoyed it. And then he goes on again and describes -- describes the relationship to the jury. It was a good relationship, obviously we were very much in love. And then he goes on. And I think that this shows that Nicole did not have the state of mind of that relationship that Mr. Simpson did. Whether or not she had a basis for that state of mind, it shows that she had a state of mind which was very different from Mr. Simpson's state of mind.
We don't know what her state of mind was when this -- at the best, this letter was written in 1991, somewhat three and a half years before the murder. Thompson was at the same time. Ortiz was six months before. And the state of mind in both of those cases is terribly relevant. Every time you ask him about state of mind, he talks about the truth of the matter stated. Every time. This is inadmissible hearsay evidence. It is -- He keeps talking about we put on evidence that it was a model relationship. We put on evidence --
Mr. Baker, I've already determined that it's admissible hearsay. The question is does it meet the threshold of 352 or not. I'm past admissibility.
If you look at the eight pages of this document, he has indeed picked out only the most provocative pages of the document.
And the admissibility of this evidence that is at least -- at least three to four years before any murders, is so outweighed by the probative value of it. In other words, if you take this letter and you compare it to the March 1993 letter, she'd obviously changed her mind completely. That's a letter that was actually delivered to Mr. Simpson. This letter could be characterized easily as venting because it was never delivered to Mr. Simpson, and they'll never have evidence it was because it was not. And so then you have put before this jury some highly inflammatory accusations and nobody knows why she made these accusations. I don't. They never will. No one ever will. And I think the probative value of her state of mind in 1991 versus putting this kind of inflammatory evidence before this jury, when we don't have it for the reasons why it was written. The only reason that Mr. Simpson can give is because of the divorce in 1992, because there's a bunch of information contained herein that's absolutely untrue.
You take, for example, that she talks about weight gain and is accusing Mr. Simpson of being upset with her about weight gain because he thought she should only gain 22 pounds. He'll testify that was absolutely untrue. He had three kids before with Marguerite; she gained a lot more than that. His sisters had children; they gained more than 22 pounds. The weight issue was an issue of the Brown family, not an issue of Mr. Simpson. He was never concerned about weight gain in his wife when she was pregnant. So to have to start combatting the document, the accusations in here that are made that are inaccurate, add that to the inflammatory areas that Mr. Petrocelli wants to introduce to inflame this jury, I would suggest that under 352 that it should be excluded under that basis, and I indicated that earlier this morning when we were at the side bar.
Your Honor, just get the last word in on this. This letter shows how Nicole felt about the relationship, her view, whether or not they think she was entitled to have that view, this was her state of mind about the relationship. The reason this is relevant is because we contend, and they dispute, that Nicole rejected Mr. Simpson at the very end when, after they tried to make a go of it, and when she finally -- when the two came very close to moving back in right before -- around May of 1994, Nicole said no, I don't want to do this, I don't want to be with you. And that's what caused the last two months to sort of spiral the way they did and end up in her murder. And this state of mind shows how hurt she was, shows how she felt about the relationship and shows how her conduct was, and explains her conduct several years later when, after the divorce, and they tried to make a go of it, and it didn't go, and she talked to the feelings she had in this letter and said I don't want to have anything to do with you and that's the end. They dispute all of that. He tried to not only argue that he's the one who rejected Nicole but that she was off doing all sorts of crazy and childish things and living an erratic lifestyle, and he felt compelled to leave her and distance from her, and put himself as far away as possible. As though she didn't have any basis to do what she was doing. She was doing what she was doing because she felt this way. She felt this way in 199 -- since 1989 through the end of the marriage. As she says here, she had those feelings in '94 when she rejected Mr. Simpson for the last time. And that helps to explain how this thing spiraled the way it did. Mr. Simpson retaliated against her. We went day by day showing what happened until the very end, and I think that her state of mind about what had happened in the past, her feelings, whether they think she was entitled to them or not, are relevant to understanding her behavior and his behavior in the last weeks and days.
That is the most preposterous thing I ever heard, that this letter from two and a half years earlier, reflects her feelings in 1994. And apparently, Mr. Petrocelli knows exactly what those feelings were in 1994 from the letter that was written and never sent two and a half years earlier. I mean he should be guessing on the stocks. He shouldn't be in the courtroom if he's got that kind of mind. This is ridiculous.
The point is this letter is so remote in time and is, as I suggested, is backed up by a letter that's totally different from this. And to put this is -- the probative value is so minimal, it has nothing to do with what Mr. Petrocelli told the Court, and the prejudicial effect certainly outweighs, at least in our view, the probative value.
The fact that it is uncertain as to when it was executed is a factor that notates against its admission. But on the other hand, the handwriting and the content of the document would tend to establish it to be within the period of between 1989 and the time of death. The probative value lies in the fact that it would explain the conduct of the decedent, during the course of the relationship, and the conduct leading up to her conduct, that is, leading up to -- and her attitude leading up to that point of and the date of her death. It's arguable, but that's what a trial is about, and under these circumstances, with the appropriate instruction to the jury that it is going to be received only to explain those aspects of this case and not the truth of the matter asserted. The Court would be inclined to overrule the objection and I'll instruct the plaintiff to prepare a jury instruction to that fact.
Bring the jury in. Oh, there's a memorandum limiting the testimony of Richards and Bodziak.
MR. P. BAKER: Judge, this a little different issue than the issue raised yesterday. The issue raised yesterday was whether or not they're calling these witnesses in their rebuttal case was timely because the issues were raised in opening statements. This motion deals with the fact that neither Gerald Richards nor William Bodziak testified as to these new photos at their deposition which occurred in early summer of 1994, we believe --
1996.
MR. P. BAKER: 1996. As this Court is well aware this is a civil case not a criminal case. There's expert cut-off, there's discovery cut-off. We asked whether those were all the opinions that Mr. Richards and Mr. Bodziak were going to discuss when they took the stand and they informed us that they were. We believe that 2034 is applicable. We believe that Kennemer versus State of California is directly on point. Neither Mr. Bodziak nor Mr. Richards can go outside what they testified to at their deposition, and starting tomorrow and testify as to these new photos. The reason being, that in any civil case one side could just hold their experts until after the case had already started and then have them testify as to further issues on new discovery. It violates the discovery laws, it violates the expert cut-off discovery laws, and we believe the Court should make a ruling similar to when it did not allow Dr. Henry Lee to testify to a swatch experiment he did after the cut-off date. This is the same issue, we believe. Mr. Richards and Mr. Bodziak should be limited to the opinions expressed at their deposition pursuant to 2034 and pursuant to Kennemer.
The only thing complete -- absent his being offered for testimony outside a copy of deposition that deposition would be limited to criminal trial testimony. We discussed this yesterday, and our position and the Court so ordered, that if they're going to take the position that they're challenging those photos and Simpson is not wearing Bruno Magli's, then we get to put on these people. If they're not going to take that position, then we don't need them. At this point we still don't know, we don't know what their position is. I intend to ask Mr. Simpson about that, whether he's wearing those shoes, whether he agrees that those shoes are his shows at the time, whether he agrees they're Bruno Magli shoes. That's relevant to, among other things, to impeach his testimony that the Scull photo is a fraud, that those are not his shoes, and that under 2034 -- in any event, you can offer an expert for purposes of impeachment who has not been disclosed when you're dealing with the attack on the underlying facts and not merely a different opinion, and that's what this classically is. Among other things it responds to the underlying premise under which Groden relied on making his opinions. So we are going to have Bodziak testify that these are Bruno Magli shoes that Mr. Simpson is wearing, and we're going to have Mr. Richards testify that the pictures are authentic.
They say that these pictures have been around for three years. They say that. And the point is if this were -- if what he said were the law, we ought to throw out all the discovery statutes. All you have to do is sandbag somebody, wait and put on the evidence, your main evidence, and your impeachment in the rebuttal case, and in fact the law is exactly the opposite of what Mr. Petrocelli just informed the Court. 2034 (m) says you can't use an undisclosed expert. That's exactly what it says; you can't use an undisclosed expert for opinions in a rebuttal case. You can't do it. He just told you that you can do it. To have these people that you've -- we've spent a lot of time and effort obtaining their opinions, and now to say you can have any new opinions you want is putting a mockery to the designation of experts and to the discovery process of experts. And they ought to be precluded from -- they can argue whatever they want to argue relative to these photos, but you can't sandbag us, wait till the last minute, after we spent thousands of dollars having experts look at photos. We still don't have the negatives to these photos. And I guess because they're copyrighted and being sold to the National Enquirer we never will have a right to examine these photographs, the originals thereof, that is the negatives, like we did in the Scull photograph. And they just come in and you let them put it on, and now they say now we can call experts, and Mr. Petrocelli says he can do it because, I guess, he doesn't agree with the -- with the statutes relative to the designation and opinions of experts.
He just told you 2034 (m), as I recall, says -- he just told you you can use an undesignated expert in rebuttal opinions. And my recollection of that statute is it says exactly the opposite, that you cannot use undesignated experts in rebuttal on opinion.
They're impeaching Mr. Groden's opinion and Mr. Simpson's testimony.
MR. P. BAKER: No. Mr. Groden didn't say anything about the Flammer photos, the authenticity.
He said at the end of his testimony that if the Flammer photos were real that would affect his opinion on the Scull photograph and obviously since --
If these photos have been around for three and a half years as Mr. Baker just said, I assume he's stipulating that they are authentic.
I'm stipulating by your version of the facts, which I have not agreed with at all, they've been around three and a half years, and you can't now waltz into court and say they're newly discovered so we can throw them up in front of the jury and then get experts to come in and say they're valid.
All right. The Court will -- under 2034 (m) the plaintiff may offer a witness to authenticate the photo.
MR. P. BAKER: Are the experts allowed to offer opinions as to this?
No. May not offer any opinion with regards to somebody else's opinion.
MR. P. BAKER: For example, in terms of the Court's ruling, is Mr. Bodziak allowed to testify that these photos or Bruno Magli photos -- he was retained as an expert by them, we are held to strict compliance with the statutes, cross-examine doesn't mean examine. When we file the motion 2034 goes out the window. When they file a motion --
Your Honor, what are they -- could you just put on the record for me what they're rebutting if they come in here and testify as to the shoes and as -- as to the authenticity of the photos? Would you please elucidate and tell me what in God's name they're rebutting?
We are impeaching Mr. Simpson's sworn testimony that he was not wearing Bruno Magli shoes, that that picture is a fake.
Then all they have to do is authenticate it through Flammer or whatever the heck his name is. They don't need an expert for that.
It is a big game. And I'm tired of the rules of evidence being swayed in their behalf. We can't put on any evidence that we haven't had in the deposition of your case and they can come in here and throw up 30 photographs or whatever they want because of this Court's ruling.
MR. BAKER: You're welcome. (Jurors resumed their respective seats.) (The following proceedings were held in open court in the presence of the jury.) (Counsel displays Exhibit 116 for jurors.)
Mr. Simpson, you have described this physical altercation with Nicole in 1989 as something that -- in which you were simply trying to restrain Nicole from hitting you and getting her out of your room, true?
Well, she jumped on me and I was trying to get her out of my room. That's the main portion of it, yes.
That was the sole reason why there was any physical altercation, particularly on your part, because you were simply trying to get her out of your bedroom, true?
Asked and answered, Your Honor, page 39, 11 to 22, of November 20.
MR. P. BAKER: Asked and answered, page 39, lines 6 through 13, of November 22.
Your Honor, he went into the reasons for his conduct in the -- in the direct examination and I'm following up on that. I'm not going into the --
I believe you excessively examined on that subject matter on your 776 examination, so you certainly have the record. We have it all -- you have it all printed up. You can use it in your closing argument. Let's not waste our time.
I'm not going to waste any time, Your Honor. I'm making some specific reference to testimony he made on page 139 on Friday. Let me get to it if I --
(BY MR. PETROCELLI) You testified, sir, on Friday, that your offering Nicole an agreement to tear up the prenuptial agreement may have been more of a governor for yourself. Do you recall that testimony, sir?
And by governor for yourself, sir, you meant that it would operate to restrain or govern yourself from being involved in any kind of physical altercation with her again, true?
And as you indicated, that governor or restraint was worth a lot of money to you, about $5 million at the time?
Now, is it your testimony, sir, that you agreed to give Nicole -- or excuse me -- that you agreed to impose this governor, as you put it, simply because you were trying to get Nicole out of your bedroom?
In other words, sir, the reason why you were prepared to give Nicole this agreement to tear up the prenuptial is you wanted to assure her that there would be no further incidents of violence in your relationship, correct?
You didn't give her a $5 million agreement just because you were trying to get her out of your bedroom on one evening, correct?
The way you're wording it, I don't think that when I wrote that up, that getting her out of my bedroom was on my mind. What was on my mind was I saw her -- she was bruised when I saw her a few days later, she was very depressed by it, I was very depressed by it, and that's why I did it.
And in terms of what you did wrong that evening, so to speak, is that you got -- you wrestled her in terms of getting her out of the bedroom and nothing more than that?
I'll allow a reasonable examination but I'm not going to go through the entire testimony
In other words, sir, Nicole and you had discussed that you -- she would not get back with you unless there was some absolute assurance following this incident that such violence would never occur again, true?
And -- and in fact, that evening you were doing more than just trying to get her out of your bedroom, true?
Page 28 on November 22, 1996, you went into this whole area, Your Honor, and this is asked and answered.
I don't have the transcript. Am I going to have to sit up here and read the transcript.
Here you go. (Mr. Baker hands transcript to the clerk.) (The clerk hands transcript to the Court.)
I object to him telling anybody why I put testimony on. You can't read my mind any more than you can read the stock --
I'll refer the Court to page 139 on Friday. (Pause for the Court to read transcript.) (The Court reviews real time computer screen.)
And -- and in fact, that evening you were doing more than just trying to get her out of your bedroom, true?"
(BY MR. PETROCELLI) When you referred to your bedroom, it was also her bedroom, you both --
And after you got her out of your bedroom, you ended up some point later on, having another altercation with her in a room outside the property, all the way to the end where the maid lived, correct?
Page 31, asked and answered, November 22, 1996. (court reviews realtime computer screen.)
Once you got her out of your room -- out of your bedroom, the only reason you ended up in that other room on the other side of the property, clear across the end of the property, was because you went there, right, you went there after Nicole had left your bedroom, true?
So isn't the real reason for this governor, again, Mr. Simpson, that you needed something to convince Nicole to stay in the relationship, to assure her there would be no more violence?
KEY QUOTENo, she -- it was for me, and I wanted to do something I thought would be meaningful for her. It was always -- prenuptial was always a thing for her.
(BY MR. PETROCELLI) After this incident -- this was a very traumatic and devastating incident to Nicole, was it not?
And after that incident, she expressed her attitude to you, did she not, sir, that she didn't think this relationship could last much longer?
And didn't things sort of continue to deteriorate for the next year to two until they terminated in her leaving you sometime early 1992?
As a matter of fact, I think in '91 things were possibly better than they had ever been, at least I was under the impression they were.
You are aware of writings of Nicole in which she has described your beating her prior to this incident, correct?
I'm -- when I was incarcerated, I read some things that she prepared for her lawyers in our divorce proceedings, yes.
You are aware of her expressing her feelings and attitude and her state of mind of the relationship prior to leaving you in January of 1992, true?
(BY MR. PETROCELLI) (Reading:). "O.J., I think I have to put this all in a letter. Lot of years ago I used to do much better in a letter. I'm going to try it again now. I'd like you to keep this letter if we split so that you'll always know why we split. I'd also like you to keep it if we stay together as a reminder." Now, doesn't that, sir, refresh your memory about your and Nicole's troubles following this incident for the remainder of the three years that you lived and were married together?
First of all, I never saw this until I was incarcerated. And secondly, right up until May of '92, even after she moved out, we didn't know if we were going to for sure split. As I told you, I pushed for a divorce and said we had plenty of time to decide one way or the other before the divorce was final.
I'm saying around 1991, Nicole and you were having difficulties and straining over the issue of your infidelity?
This -- the argument began on New Year's Day of 1989 concerning what she thought Kathryn Alan had said to her about earrings, so I guess that would be about infidelity.
You were involved in a relationship with another woman for several years leading up to this 1989 incident, true?
Our friendship has lasted to today, but the relationship between the two of us lasted to '86. I believe she got married in '87.
Sir, you and Nicole had many arguments and discussions about your relationship with Tawny Catank while you were married to Nicole, true?
Absolutely false. Absolutely false. We had one conversation about Tawny. That was after we were split.
KEY QUOTEAnd the only thing you were aware of that Nicole and you ever discussed about infidelity was her misinterpreting Kathryn Allen's comments?
Not in that discussion. There were times she'd find a phone number and say, whose phone number is this. And Nicole is not a person who would sit down and say --
Nicole wrote in this letter, she called the cops on New Year's Eve to save her life. Whether you believe that or not, she was in a complete state of fear, as you understood it that evening, true?
(BY MR. PETROCELLI) You could tell by her conduct, by her demeanor, by what she was saying, by the fact she was hysterical, that she was in a total state of fear that evening?
I would have in my mind, if she was afraid of me, she wouldn't be trying to stay in a room that I was trying to get out. I -- she would have been trying to get away and left the room.
Can you please reask the question. I didn't see her in a state of fear, no. I didn't. She was fighting and trying to stay in the room.
And Nicole, wrote in this Exhibit 732, that: "I've never loved you since or been the same." She ever say that to you?
No. As a matter of fact, she told me just the opposite, and wrote just the opposite after that, that she always loved me.
And you have any reason or understanding why, prior to you and Nicole splitting up January 1992, she would write such things in her writings?
I object, Your Honor. There's no date on this letter. He didn't know when it was written. Mr. Petrocelli is trying to date the letter, and he doesn't have any ability to do that.
(BY MR. PETROCELLI) You have any understanding why she would write some of the things I read to you in Exhibit 732?
Well, she told me that her lawyers had her write various things following our divorce, 'cause they wanted her to get me to tear up the prenuptial agreement. But she would never testify to it. And, of course, in her deposition and when we were in court, would not testify to it.
KEY QUOTEWell, my question was focused, Mr. Simpson, on prior to the time she left you, do you have any idea why she would write such things?
I object. Again, that assumes she wrote this prior to the time she left. There's nothing to substantiate that question.
I'm saying after we split and we talked, she had admitted some things that had happened that I have definitely -- I can't say she lied to me because I would never have thought she would have done some of the things she said she did.
Now, isn't it true, sir, that you and Nicole had been considering the possibility of divorce for at least three years prior to the time of the divorce?
And if Nicole testified to that in the very same deposition that you've just mentioned, at page 14, you wouldn't dispute that, would you, sir?
Your Honor, I object. They are not under -- they don't have Evidence Code Section 1227, and that's an improper question. It calls for --
He elicited the testimony from the very deposition, and the witness offered it in his answer.
Your Honor, this -- there is a different standard under Evidence Code 1227, and he knows it.
I'll see you at the bench. (The following proceedings were held at the bench, with the reporter.)
I don't understand which question you're objecting to. What is the objection, Mr. Baker? This is the question I have here. (Referring to realtime screen.)
And Nicole testified you were considering -- you and Nicole considered a divorce for three years. That isn't what this says. It says Nicole considered divorce; it doesn't say anything about --
Excuse me. They said they discussed it, right here. They discussed a divorce for three years.
He can't, from 1291, unless I get Fuhrman in, use this deposition. I can use it under 1227. He can't use it under 1291. I guess, to -- to get Fuhrman, if he wants to do that, that's fine with me.
This is her deposition in the divorce case in 1992, to which Mr. Baker was permitted, over my objection, to ask Mr. Simpson about. And Mr. Simpson testified on Friday as to the fact that Nicole is saying here that since 1989, she had never been hit.
I'm offering this testimony to show that, in fact, their marriage is -- is not as portrayed, and they have been discussing divorce for three years and having problems. And I submit to you that he is not permitted, under this section, to get in hearsay, and then I'm barred. I would refer to Court to Section 356 --
Okay. Section 1227, quote: Evidence of a statement by the deceased is not made inadmissible by hearsay rule if offered against the plaintiff in an action for wrongful death brought under section 377 of the Code of Civil Procedure. What are you saying?
I'm saying, once he's able to get into events, acts, and declarations, I can get in the rest of it under Section 356 of the California Evidence Code. And secondly --
Well, I just don't -- I just didn't understand that's the law. He can do half of the conversation and I can't impeach him?
Just because he uses part of the deposition doesn't mean you're entitled to use the entire deposition. I never heard of that.
Secondly, Section 1291 of the Evidence Code, Ms. Simpson was a party to this proceeding, and she is unavailable. And this, too, is former testimony and is being offered against him. It's totally different from the Fuhrman situation. My clients were not parties to that case. I think it applies as an exception under the former-testimony exception to the hearsay rule.
THE COURT: I'm going to sustain the objection. You can ask him what the conversation was, as he recalls it, but I'm not going to get into that transcript. (The following proceedings were held in open court, in the presence of the jury.)
(BY MR. PETROCELLI) Let me ask you this question: After the 1989 incident, had you and Nicole discussed between the two of you, for three years, getting a divorce? Yes or no?
That would -- I don't know if that would be the right word. If we had a fight, she may have said something, or I may have said something. We never -- I don't think we took it any more seriously than that.
Until 1989, until the end of the marriage in January of 1992, or when she left you, did you continue to have problems in your relationship with her? Yes or no?
I'm saying '92, no. And '91, I can't recall in '91. In '92 -- I'm sorry, '91 -- I would say no. In the beginning of '90, we were doing a lot of construction on our house, and possibly, but not trouble where we ever went to a lawyer or anybody to talk about divorce.
Now, you are aware that Mr. Cowlings has testified that Nicole said you hit her and pulled her hair?
I'm going to object. That's irrelevant and immaterial. It's argumentative in that form, Your Honor.
Well, yeah. She was mad. She was like I was. She had been drinking. She was mad. We just had an altercation. I assumed through the heat of her anger, that's what she said.
I believe Mr. Cowlings was there, as my memory serves. I think he came that night. I thought he came that night.
(BY MR. PETROCELLI) Are you saying that Nicole didn't tell Mr. Cowlings the truth about what happened?
(BY MR. PETROCELLI) And are you aware that Nicole told officer Ed Ward that you slapped, punched, kicked, and pulled her hair?
(BY MR. PETROCELLI) Now, you talked a little bit about this 1993 episode, as well. Let me ask you some questions about that, sir.
Well, I could have -- I could have hit the door as she was closing it, but I just kind of -- I just kind of kicked it. I was walking, and I just kind of kicked it with my foot. I didn't raise my foot high and kick it; it was just --
So we can be clear on this, Nicole closed the door and went in the house, and you kicked it open. True? Yes or no?
Yes. We were both -- I was walking behind her in the house. As she walked into the house, she did this. And then I -- I was walking, I just went, boom, kicked it with my foot.
And when you said you were venting, that was a word to describe that you were screaming and yelling obscenities, right?
I'm sure there was some profanity and talking about, you know -- I was talking about Heidi Fleiss and hookers and drug people. And I think you heard that on that video, on that tape, if you listen to it.
By the way, this conversation with Nicole about Heidi Fleiss and hookers and drug people and all that, that wasn't something that was going on at that time, in October of 1993, in Nicole's house, correct?
The answer is, I don't know. But some people that were in drugs, still are in drugs, and was hooking, that was around her house at this time, yes.
And her relationship with Mr. Slomowitz, Mr. Simpson, that was the subject of this argument?
Excuse me, sir. Her relationship with Mr. Slomowitz, which came up in this conversation that you had, that was a relationship that she had had over a year and a half earlier, in about April of 1992, correct?
I think they were friends then, and they were -- as far as I knew, they spoke and they were still friends at this time.
-- you described a time when you just came back from Cabo San Lucas and had a great weekend with Nicole, correct? Remember that?
the following weekend, and we had another great weekend. And we had had some good months leading up to except for problems with her and various people coming over to my house.
This was the first time in your reconciliation attempt that you believed that things might work out, she might move in, and you would have a happy relationship again; true?
At this point in time, after this great weekend in LA sometime in April of 1994, you were thinking that you might give it a go, right?
The next day, I was going to the airport and calling her parents, and told her that -- that it might work out; it might work out.
Then, when you went into -- when you went down to Puerto Rico, what happened, sir, is that you began getting no response from Nicole; correct?
Your Honor, I'm going to object. With all of this page -- this is page 95 -- on November 22, this was all gone into by Mr. Petrocelli.
(BY MR. PETROCELLI) Well, what was happening is contrary to the way you left things in Los Angeles; things were now dramatically different with her, correct?
Can you just answer my question? We'll move a along more quickly. Just answer yes or no, sir, unless I ask for --
In other words, you experienced a response from Nicole and an attitude in your conversations with her that was very different from the very positive feelings you were -- experienced with her in Los Angeles before you went to Puerto Rico; correct.
(BY MR. PETROCELLI) And what was happening there is that Nicole was telling you in these telephone conversations, sir, that, contrary to what she had just told you in Los Angeles, she was no longer prepared to make a commitment to you and to go forward with moving in and having a relationship with you; correct?
And you were confused by her and her responses and her reactions on the telephone; correct?
And the way she was acting, period. A lot of it had nothing to do with me; it had to do with her girlfriends.
Your Honor, it's right out of his deposition. He's just trying to -- he is just trying to interrupt the entire examination.
Approach the bench. (The following proceedings were held at the bench, with the reporter.)
No. You told Cora Fischman this, right out of deposition. It's right here, right there, body and substance. Those were my attitudes. It's right there.
MR. BAKER: Okay. I apologize. (The following proceedings were held in open court, in the presence of the jury.)
(BY MR. PETROCELLI) You told Ms. Fischman the following. What's going on here? I left Nicole in April. In Cabo, we were like lovers; we were planning to be together. She was going to move in. You know, we had the best sex. You know, she was going to follow me to Florida, and then she was going to go to Florida, because there was a wedding there; she was going to go to Florida. And she was going to go to Puerto Rico with me. And all of a sudden, what happened? What happened? You said that to Cora Fischman in trying to find out what was going on with Nicole, true?
Mr. Simpson, I'm asking you to answer the question. Did you make those statements to Cora Fischman in April or May?
Now, in terms of when you split up with Nicole and after you split up with Nicole, you -- when you came back to -- came back from Puerto Rico, you and Nicole met to discuss what was going on with her, her attitude, correct?
This was now different from the attitude and the situation that existed when you left Los Angeles three weeks earlier, when you thought things might work out and she might move in, right?
And you had sort of regressed as of the early part of May of 1994 from the place you were with Nicole in April of '94, correct?
Okay. You dated Wednesday, you said, of that first week in May. You had a good time, correct?
Thereafter, after that Mother's Day date, which is Saturday, May 7, you didn't date Nicole the next week, correct?
You went out with Paula on May 10 to talk about whether or not she -- you and she would resume a relationship?
(BY MR. PETROCELLI) Okay. And when Nicole got -- And by the way, when Nicole was shaking, as you described it, on Saturday night, Mother's Day, that was about a week and a half later that she came down with double pneumonia, true?
Well, I don't know. I -- when I came back from New York, after the next weekend, she was -- she had double pneumonia.
Okay. And when you came back and you saw that she was sick, you went to her house and helped her out. And you've testified about that, right?
Yeah. We talked on the phone, and I did what I would have normally done. I went and got her some soup.
And then you had this event that you've testified to at your house, the picnic for your son's school, on May 22, right?
Okay. And Nicole came over for a bit, and then you testified on Friday, would lay on your lap a little bit, went upstairs, and laid in your bed?
And one of the reasons it bothered you is because you didn't know where you stood with Nicole, and you didn't want her just sort of coming into your house and pretending like you were back together, when you didn't know where things stood, right?
And after she left your house, you then took the kids and you met with her that evening, right?
And just to make this clear, that's the night when the earrings was returned, the bracelet was returned, and you talked about the money and the TV set, right?
Basically, the main focus of the conversation was about the kids and how we would react with one another with the kids. That was the major focus of the conversation. And we both agreed that -- and I was doing it more out of just wanting to get out of there -- that, well, maybe we got together too soon. Maybe in the future, we can do it again.
No. If I felt we split for good, then I wouldn't have gone to Paula, after having hurt her before, to tell her that it was over with Nicole. And I -- I felt we had been -- we had split for good about that time.
(BY MR. PETROCELLI) -- the following in talking about the earrings and bracelet: Did she keep them or did she return them, was the question put to you. "When we split, she gave me both the earrings and the bracelet back."
And that was referring, of course, to the evening of the 22nd, when she gave them back to you?
I told her -- I gave her the earrings for Mother's Day or Valentine's Day. I actually given her the earrings three years previous to that, sir. So it was not correct.
(BY MR. PETROCELLI) You were referring to the night of the 22nd, three weeks earlier, when you told the police that you split and she gave the earrings and the bracelet back; true?
She gave me the earrings and bracelet back then. But I started seeing Paula at least ten days before then. Nicole knew it; her friends knew it. Everyone knew it, that I wasn't seeing Nicole after the 10th or so of March. And I don't think you can bring anyone in here to dispute that, sir.
It's not an argument. I'm just trying to ask you questions, and you can give me the answers, and your lawyer --
I can give you an honest answer. And they all knew it. They had seen me with Paula during that week, including my kids.
(BY MR. PETROCELLI) Now, sir, after this May, withdrawn -- Earlier today, you testified that there was no animosity between Nicole and you as of June 12, 1994. Remember that testimony in response to your lawyer's question?
Is it true, it's your testimony now, right now, asking you again: Was there any animosity between Nicole and you as of June 12, 1994?
I can't say things were hunky-dory. We spoke on the phone. There was no animosity. Our concern was about the kids. Our concern was about getting seats together. She saved me a seat two seats from her. We weren't arguing with one another. Yes, my attitude then was, maybe, still some concern of hers, and I was certainly avoiding her.
I showed you her diary entry of June 3, 1994, in which she described a very ugly conversation, and you denied that that occurred, true?
(BY MR. PETROCELLI) You denied that you said any of the things that Nicole wrote about that you -- Nicole said you said in her diary of June '93?
I have no explanation for that, no. Except that was -- would have been indicative of how she had been acting the last few weeks.
Let me ask you this, sir: Since Nicole wasn't acting so rationally, did you do anything during the months of May and June to take the children away from her? Yes or no?
To remove the children from her custody and put them in the hands of someone who could look out safely for their welfare. Yes or?
-- to do -- to take the kids away from her, or look out in any way for their welfare, because their mother was not rational?
And following this June 3, 1994, which was a Friday, you had virtually no contact with Nicole through June 12, correct?
On June 4, you went over to the house to fix Justin's Nintendo. You went upstairs to the bedroom where the Nintendo game was?
It wasn't really to fix it; it was really to check out how it was hooked up, because we were trying to hook up a similar thing at my house.
Your Honor, I'm demonstrating the last three or four days leading up to the murders.
(BY MR. PETROCELLI) There was -- she was in the very next room, and you did not speak to her on that occasion, correct?
Okay. And when you came the next day to pick up the dog, which had gotten out of the gate -- and you described that earlier -- that's June 5 -- that's a Sunday, right?
Other than the dog is out, or get the dog, or whatever, you know, whatever those things were.
I don't believe so. Other than something about the dog, it was no real conversation. I don't recall that conversation.
When she came out, said what happened to the dog, Faye went around looking for the dog, I'll go out here, I'll take the other dog home. If that's a conversation, I don't really consider that a conversation. It was, you know --
And on June 8, you called to speak to Justin again. You did not talk to Nicole on that occasion, either, correct?
(BY MR. PETROCELLI) On June 12, you have a brief conversation with her in the afternoon, in which you offered to take Justin and she said no, correct?
She said the kids, either -- I can't recall if kids were there or her cousins were coming there. And the conversation was about that, and it was about holding seats, and whoever got there first would hold seats for the other person. And could I get there and hold seats for everyone. And she told me who was coming. And I told her I would have a tough time holding those seats. I'll let -- I'll find out if Jason will go. I don't know if they're going. I haven't heard from them. Maybe he will.
And at the 9 o'clock phone call, you had no conversation with her, other than to ask for Sydney, right?
And, for example, you didn't say anything like, how you doing; did you enjoy the recital; wasn't Sydney terrific; none of that kind of conversation occurred when you called Nicole at the 9 o'clock on the evening of June 12; correct?
Objection. In view of the last answer, that question is irrelevant; no probative value to it.
Now, one of the reasons you called at 9 o clock is because you were upset with Nicole, that she had taken the kids away from you at the recital so quickly, correct? Yes or no?
Your Honor, I'm going to object. This is the same thing we got in November. This is all asked and answered. It's outside the scope.
I don't believe I was upset when I called. I didn't have an opportunity, really, to speak to Sydney because they took off, so long (sic). I wanted to tell her two things: One, she did a great job; and two, when I got back the next week, I would take her to Knott's Berry Farm, because she wanted to go to Knott's Berry Farm, and I had been promising I would take her, but I couldn't take her that week because of the affairs, and I couldn't take her the previous week because I took her to a pediatric AIDS event. And I would take her. I'd be back the next weekend, and I would take her the next weekend.
So the answer is, you did call to talk to Sydney because Nicole took the kids out of there so quickly, you didn't have a chance to do so at the recital?
Okay. Now, the kids had become sort of an issue of contention between Nicole and you in the last week and the last week of her life, true?
(BY MR. PETROCELLI) Okay. Nicole was extremely upset when she got the IRS letter, and she viewed that as a threat to her and the kids.
I didn't know that. I didn't talk to her, as I told you. I don't know how she felt. I don't know how it could be a threat. She had money to pay the taxes. She wasn't going to lose her house, despite what you're trying to indicate.
You've heard testimony of others who have testified in this court, Nicole was definitely frightened when she received the letter that you wrote?
(BY MR. PETROCELLI) And when you called Nicole on the evening of June 12 at 9 o clock p.m., you and she fought?
Did you and she fight because you were extremely upset that she had taken the kids away so quick?
Can't he save it for argument, Your Honor? He knows he's asked this question of this witness three times. He knows the answer. This is just to argue before the jury his theory of the case.
(BY MR. PETROCELLI) It's true, sir, that you had come back specifically for Sydney's recital, right?
Now, you gave some testimony earlier today about the sweatsuit subject. Do you remember that?
THE COURT: Okay. Ten minutes, ladies and gentlemen. (Recess.) (The following proceedings were held in open court outside the presence of the jury.)
Your Honor, I've been informed by -- we'll rest tomorrow, I assume. I've been informed by Mr. Petrocelli they have 12 witnesses they're going to call in rebuttal. I request that neither Bodziak nor Richards be called until we get a ruling on the Court of Appeal relative to the ruling you made this afternoon because we intend to take that up on a writ and we'll file it tomorrow.
Your Honor, they're already here from out of town and they're going on tomorrow and or Wednesday -- I should say tomorrow and or Wednesday, and these witnesses are very short and we could be finished in a matter of two days.
Richards is going to testify to the authenticity of the Scull photo and rebut Groden's testimony, and B, he's going to testify that the Flammer photos, if challenged by the defense, are authentic. I don't know that they're going to take that position.
All Mr. Bodziak is going to say is that the shoes in the Flammer photos are Bruno Magli shoes as they are in the Scull photo.
No. And also if challenged, authenticate the -- you know, say that the Flammer photos are authentic too, if they're challenged by the defense.
That they're not doctored or altered or anything like that. I don't know if they're taking that position, if they're saying these 30 photographs are fraudulent, as they are saying in regard to the Scull photo. If they take that position, he would say they're not.
Well, under 2034 (m), the Court is of the opinion -- the Court rules that you may offer testimony of Bodziak to establish that the photograph of Flammer shows that those shoes are Bruno Magli shoes, but he cannot testify with regards to any opinions that Mr. Groden, the defense expert --
Can not testify to any opinion, but he may testify insofar as establishing the photograph -- that the photograph itself is the rebuttal evidence. And in establishing the photographs as the rebuttal evidence he may testify that the shoes are what he says the shoes are. And he already testified as an expert as to those shoes.
I'm not quite sure what you're proposing with regards to Richards as to the Flammer photographs. I'm a little concerned about that.
If they challenge these photographs as being a fraud, he will say that he has looked at them and they're not a fraud. I don't know what their position is on that.
Your Honor, we, of course, can't have a position because nobody will give us the negatives. We have been placed in a position to try -- Mr. Petrocelli -- and I assume if Richards is ready to testify that the Flammer photos have not been doctored, altered or changed in any way, shape or form, that he has looked at original negatives. That's the only way you can tell, if you can tell at all. And we are put at an extreme disadvantage. We've asked for them, we haven't got them. They obviously have them. They obviously gave them to their experts. They obviously pass them wherever they want. And we can't get them. We don't get any return phone calls from any of these people and we are at a distinct disadvantage. When you -- when you talk about Bodziak saying that he can -- allowing Bodziak to testify that those are shoes in the Flammer photos because he's already testified, that is an opinion, and that is an opinion, we believe, so that the record is clear, is precluded under 2034 (m).
Your Honor, on the subject of negatives, they never once asked me for any negatives. I don't have the negatives. The negatives are in Buffalo with the photographer. Now the photographer's here in town and they have been free to go look at them. They've never called, they never asked to see them, to my knowledge, and our expert had to fly to Buffalo to go look at them. We don't control this. They haven't made any attempt to look at them and they've been on notice now for three weeks, and I gave them prints of everything that we have so they have nothing more than what we have.
Bring the jury in and let's finish.
MR. P. BAKER: Just one more point, Judge. We did ask to see the photograph. I sent a letter to Mark Kramer; I got no response. Mark Kramer is an attorney for E.J. Flammer. I haven't got a phone call. I haven't seen the negatives. I tried to see them.
Another fellow back in -- with Mr. Kelly back in Buffalo. We're being stonewalled. I think it's totally unfair and violative of the code.
Are you going to allow them to put those people on before I can get to the Court of Appeals because then I'm going to call my people off, there's no sense in wasting money.
Until we know what their position is we'll have them testify tomorrow as to --
THE COURT: Put them in the box. (Recess) (Jurors resume their respective seats.) CROSS-EXAMINATION (continued) BY
Before the break we were going to the area of the sweat suit. You said -- you testified that you did not own as of June 12, 1994, a dark sweat suit with a white zipper?
I didn't see her in a state of fear, no. I didn't. She was fighting and trying to stay in the room.
Absolutely false. Absolutely false. We had one conversation about Tawny. That was after we were split.
She told me that her lawyers had her write various things following our divorce, 'cause they wanted her to get me to tear up the prenuptial agreement.
So isn't the real reason for this governor, again, Mr. Simpson, that you needed something to convince Nicole to stay in the relationship, to assure her there would be no more violence?
I called the cops to save my life whether you believe it or not. But I didn't pursue anything after that... I've never loved you since or been the same.