Direct examination of E.J. Flammer

📄 Direct examination of E.J. Flammer — Tuesday, January 14, 1997

Address:

C:\DEPT103\CIVIL\1997\JAN\14\DIRECT-EXAMINATION-OF-E-J-FLAM.DOC

TRIAL

▲ Day 41 of 57

◀ Cross-examination of Arnelle Simpson (part 2) Redirect examination of E.J. Flammer ▶

Witness: E.J. Flammer
Examiner: John Kelly
Called by: Plaintiff • Date: Tuesday, January 14, 1997 • Utterances: 445

E.J. Flammer, a 24-year-old freelance photographer from Hamburg, New York, testified about photographs he took of O.J. Simpson at Rich Stadium on September 26, 1993, at a Monday Morning Quarterback Club promotional event commemorating the anniversary of Simpson's 2,003-yard rushing season. He established a detailed chain of custody for the 30 negatives — stored in a binder in his basement darkroom from 1993 until December 27, 1996 — and authenticated supporting documents including an invoice, check stub, and field credential. The photographs are significant because they place Simpson at the Bills-Dolphins game wearing footwear that plaintiffs contend are Bruno Magli shoes — the same type linked to bloody footprints at the Bundy crime scene.

# 1 A:

No, I can't say for sure what time it was.

MR. P. BAKER: Nothing further.

# 2 MR. KELLY:

Nothing, Your Honor.

# 3 THE COURT:

You're excused.

# 4 MR. KELLY:

E.J. Flammer, Your Honor. E.J. FLAMMER, called as a witness on behalf of Plaintiffs, was duly sworn and testified as follows:

# 5 THE CLERK:

You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth and nothing but the truth, so help you God~?

# 6 E.J. FLAMMER:

I do.

# 7 THE CLERK:

Please be seated. Sir, if you would please state and spell your name for the record.

# 8 E.J. FLAMMER:

E.J. Flammer. E., J., F, as in Frank, l-a-m-m-e-r. DIRECT EXAMINATION BY

# 9 Q:

Morning, Mr. Flammer.

# 10 A:

Morning.

# 11 Q:

How old are you?

# 12 A:

24.

# 13 Q:

And what city do you currently live in?

# 14 A:

Hamburg, New York.

# 15 Q:

And is that a suburb of Buffalo?

# 16 A:

Yes, it is.

# 17 Q:

How long have you lived there for?

# 18 A:

My whole life.

# 19 Q:

And are you currently employed?

# 20 A:

Yes, I am.

# 21 Q:

And where are you employed?

# 22 A:

I'm employed at Bates Jackson Engraving Company.

# 23 Q:

How long you worked there?

# 24 A:

Since the summer of '92.

# 25 Q:

In addition to your -- you work there full time?

# 26 A:

Yes.

# 27 Q:

And in addition to your full-time employment there, do you have any other profession that you engage in also?

# 28 A:

I -- yes, I do, I take pictures professionally as a freelancer on the side.

# 29 Q:

As a photographer?

# 30 A:

Yes.

# 31 Q:

And how many years have you been engaged in the photography profession?

# 32 A:

I have been taking pictures since my sophomore -- junior year in high school.

# 33 Q:

Up to and including the present?

# 34 A:

Correct.

# 35 Q:

Now, what I'd like to do -- by the way, did you attend college?

# 36 A:

Yes, I did.

# 37 Q:

Where?

# 38 A:

At Canisius College, Buffalo, New York.

# 39 Q:

Did you graduate?

# 40 A:

Yes, I did.

# 41 Q:

Are you taking any postgraduate studies?

# 42 A:

Yes, I'm working on my Master's in Business Administration there as well.

# 43 Q:

Let me finish my question before you give your answers, okay, Mr. Flammer.

# 44 A:

Sure.

# 45 Q:

Now, I want to draw your attention to September 26, 1993. Do you recall where you were on that particular date?

# 46 A:

Yes, I do.

# 47 Q:

Where was that?

# 48 A:

I was at Rich Stadium.

# 49 Q:

And for the ladies and gentlemen of the jury, what does Rich Stadium serve as?

# 50 A:

Rich Stadium is the home field for the Buffalo Bills.

# 51 Q:

Professional football?

# 52 A:

Professional football team.

# 53 Q:

For what purpose did you happen to be at Rich Stadium on September 26, 1993?

# 54 A:

There were two reasons. The first reason was to take pictures for the Monday Morning Quarterback Club as a promotional event that they were having celebrating O.J. Simpson's 2,003 yards, the anniversary of that date. There was a promotional picture to be done before the game. I was also there to shoot the actual game itself for the Buffalo Bills Report.

# 55 Q:

Okay. You indicated you're 24 now?

# 56 A:

Correct.

# 57 Q:

So you'd have been 20, 21, at the time?

# 58 A:

Correct.

# 59 Q:

Now, why you, of any other photographers, why were you hired to take these pictures for the Monday Morning Quarterback Club on this day?

# 60 A:

My father was the president of the Monday Morning Quarterback Club.

# 61 Q:

Okay. And what time did you arrive at the stadium that day?

# 62 A:

I arrived around 10 o'clock in the morning.

# 63 Q:

And what was your understanding of what those photos were to be used for that day?

# 64 A:

The photos were to be used for publication and just as a general promotion for the event itself, to help sell tickets and things like that.

# 65 Q:

Okay. And what time did you arrive at the stadium?

# 66 A:

10 o'clock.

# 67 Q:

And after your arrival there at Rich Stadium, did you have occasion to see Mr. Simpson?

# 68 A:

Yes, I did.

# 69 Q:

And did you know Mr. Simpson by sight, prior to that day?

# 70 A:

Yes, I did.

# 71 Q:

And how did you know him by sight?

# 72 A:

I grew up in Buffalo. O.J. Simpson's a landmark around there.

KEY QUOTE

# 73 Q:

You have nothing against Mr. Simpson?

# 74 A:

No, I do not.

# 75 Q:

Now, in what context did you see Mr. Simpson that morning after you arrived there at 10 a.m.?

# 76 A:

I'm sorry?

# 77 Q:

Under what circumstances did you see Mr. Simpson -- what happened next after you got there and you saw Mr. Simpson?

# 78 A:

We were -- I was taken to the field with the other members that are -- that I was to take the pictures with, and Mr. Simpson happened to be walking up towards the press box, and one of the people in the picture --

# 79 THE REPORTER:

Can you repeat that, please.

# 80 E.J. FLAMMER:

One of the people in the picture called Mr. Simpson back to the field as he was walking up to the press box.

# 81 Q:

Who was that individual that called out to Mr. Simpson?

# 82 A:

Bill Munson.

# 83 Q:

Okay. And when Mr. Simpson came back down to the field, did you then take some photographs?

# 84 A:

Yes, I did. There was a time when I set up the shot where -- lined the people up, the people in the picture, you know, did meet Mr. Simpson, talk to him a little bit, shook his hand. They did give him a Monday Morning Quarterback Club pin, which is --

# 85 Q:

Try to speak up a little.

# 86 A:

I'm sorry about that. They gave him a Monday Morning Quarterback Club pin for the picture, which some of the other members of the club were wearing at the time.

# 87 MR. KELLY:

Can I have the next in order, please.

# 88 THE CLERK:

2320.

# 89 MR. KELLY:

Okay. I'm sorry, did we get --

# 90 THE CLERK:

2320. (The instrument herein described as a Monday Morning Quarterback Club pin was marked for identification as Plaintiffs' Exhibit No. 2320.)

# 91 Q:

(BY MR. KELLY) Mr. Flammer, I'm going to show you a button. Do you recognize that?

# 92 A:

Yes, I do.

# 93 Q:

And what do you recognize it as?

# 94 A:

This is my Monday Morning Quarterback Club pin. I'm a member of the club as well.

# 95 Q:

Is that the same type of button you saw Mr. Simpson put on for the photograph that day?

# 96 A:

Yes, sir.

# 97 Q:

If you can just leave it there.

# 98 A:

Sure.

# 99 Q:

Okay. If I could have it back.

# 100 A:

Sure.

# 101 MR. KELLY:

Your Honor, if I could just pass this around while I continue with my questioning also if that's all right.

# 102 THE COURT:

You may. (Pin is passed around to jurors.)

# 103 Q:

(BY MR. KELLY) Now, you indicated that you took a number of photographs then with a group of people posing with Mr. Simpson; is that right?

# 104 A:

That is correct.

# 105 Q:

And you recall who those other individuals were who were posing

# 106 A:

Yes, I do.

# 107 Q:

What were their names?

# 108 A:

Bill Munson and Dennis Lynch from the Buffalo Bills were in the picture. My father, Ed Flammer, who was the president of the Quarterback Club, Jerry Flashner, and I believe Mike Lacata was the other person in the picture with Mr. Simpson.

# 109 Q:

Why were those other persons posing with Mr. Simpson?

# 110 A:

They were members of the committee that were chosen to help promote and to organize the dinner -- the dinner celebration that I was taking the picture to promote.

# 111 Q:

This dinner celebration was a commemorative for Mr. Simpson in particular, was it not?

# 112 A:

That is correct.

# 113 Q:

Now, how many pictures did you take of those individuals at that time, did you shoot?

# 114 A:

There were 30 pictures that were taken.

# 115 Q:

And were those all group photos or what was the breakup?

# 116 A:

They were not all group photos. The majority of them were group photos, though, but there were three individual shots done as well with Mr. Simpson and one other person.

# 117 Q:

And what type of camera equipment did you use on that particular day in taking those pictures?

# 118 A:

It was a 35 millimeter camera, Canon T90, with a Vivitar 283 flash used to fill in the shadows, I used a 285 F4 zoom lens to shoot this as well on 400 speed film color negative.

# 119 Q:

Do you still have all that equipment in your possession that you used that day to take those photographs?

# 120 A:

Yes, I do.

# 121 Q:

Do you have it with you?

# 122 A:

Yes, I do.

# 123 Q:

Can you just pull it up briefly so the ladies and gentlemen of the jury can see that equipment. (Witness complies, removes camera from bag and displays camera and flash.)

# 124 Q:

(BY MR. KELLY) Now -- if you could speak into the mike.

# 125 A:

Okay.

# 126 Q:

You're fading on us.

# 127 A:

Sorry about that.

# 128 Q:

Now, the way you have that equipment set up right now, is that the way you utilized the equipment that day of September 26 of '93 in taking those 30 photos?

# 129 A:

For the most part. If there was any change in it at all, it would be the flash may have been tipped up a little bit just to bounce the light to even out a little bit, but other than that...

# 130 Q:

And how much time did you spend taking those 30 photographs?

# 131 A:

If it was ten minutes it was a long time. It was not that long a period of time.

# 132 Q:

And what, if anything -- first of all, did you have film in the camera when you started the shooting initially?

# 133 A:

Yes, I did.

# 134 Q:

Did you have a new roll?

# 135 A:

Yes, brand new roll.

# 136 Q:

What did you do in terms of putting the film in the camera, first of all?

# 137 A:

The film was loaded in the camera as the shot was being set up, as they say. And after I -- it popped off the first 27 pictures, there was another roll that was loaded in because I had rewound the first roll before the third person had spoken up and said they wanted an individual shot of Mr. Simpson.

# 138 Q:

Now, when you were done with the first 27 photos, what, if anything, did you do with that roll of film that was in the camera?

# 139 A:

The beginning part of the film, which is very common practice for photographers, was torn off, just to indicate that that roll had been -- so it doesn't get reshot during the course of the game. I had a whole Bills game to shoot, which I would probably shoot close to 10 rolls of film.

# 140 Q:

What do you do after you do the tear?

# 141 A:

The film was taken out, torn, and put into the front pocket of my fanny pack.

# 142 Q:

The fanny pack is something you were carrying with you that entire day?

# 143 A:

Correct.

# 144 Q:

Put another roll in the camera?

# 145 A:

Correct.

# 146 Q:

Then what did you do?

# 147 A:

Shot the other three pictures with Mr. Flashner and Mr. Simpson.

# 148 Q:

And after you took those last three photos with Flashner and Mr. Simpson, what, if anything, did you do then?

# 149 A:

What I did was kind of turned the camera off and walked into the photographer's locker room and just waited for the game to start.

# 150 Q:

And did you utilize the rest of that film that had the initial 38 shots on it?

# 151 A:

The rest of that roll was shot during warmups of the game.

# 152 Q:

Do you recall who they were playing that day, by the way?

# 153 A:

Miami Dolphins.

# 154 Q:

Now, what did you do with that second roll of film when you were done with it?

# 155 A:

The same procedure. When the roll was complete, I used up -- the leader was torn off, put into the front part of the fanny pack, and a new roll loaded in.

# 156 Q:

And what was the -- by the way, up to when that second roll was completed, did you take other rolls of the game that day also?

# 157 A:

That is correct.

# 158 Q:

Now, after the game, did there come a time that you took some further steps with the film, those first two rolls that you utilized that day?

# 159 A:

Yes. The rolls were taken to Nova, N-o-v-a, Photo, which is a professional lab that I would normally take my Bills film to on Monday morning for processing.

# 160 Q:

And that's what you did that Monday after the game?

# 161 A:

Correct.

# 162 Q:

And did you have any prints made of the negatives at that time?

# 163 A:

Yes. I would have taken as requested -- Dennis Lynch from the Bills was to take some 5-by-7's for people in the picture just kind of that -- that you -- just a -- just a memento from that day. There was six 5 by 7's that were made, distributed to Dennis Lynch, that were all color, plus there was a black-and-white print made for publication for the paper, the Buffalo Bills Report, which I was working for.

# 164 Q:

Now, you indicated you only made six prints that day at Nova; is that correct?

# 165 A:

That's correct.

# 166 Q:

And the others were just left as negatives?

# 167 A:

Correct.

# 168 Q:

All right. I should say everything was left as a negative but you only made six prints from all the negatives from the day before?

# 169 A:

There was a seventh print made, this was a black-and-white. There were seven; six color, one black-and-white.

# 170 Q:

Now, with regard to the six prints that were made, what did you do with them subsequently after they were made?

# 171 A:

They were distributed to Dennis Lynch and he distributed them from there.

# 172 Q:

And you also indicated that through the -- a certain connection of yours -- and in making these prints, you were to be paid for this project, were you not?

# 173 A:

That is correct.

# 174 Q:

And did you happen to submit -- submit a bill to the Buffalo Bills for the six --

# 175 A:

Yes, the six 5-by-7's were billed to the Buffalo Bills directly.

# 176 Q:

And did they pay that bill?

# 177 A:

Yes, they did.

# 178 Q:

To you?

# 179 A:

Yes, they did.

# 180 Q:

I'm going to ask you to identify this, first of all.

# 181 MR. BAKER:

May I see it.

# 182 MR. KELLY:

Before he sees it?

# 183 MR. BAKER:

I mean that's customary, isn't it?

# 184 MR. GELBLUM:

Well, I guess he'll go along with it. (Mr. Kelly shows document to Mr. Baker.)

# 185 Q:

(BY MR. KELLY) I'm going to ask you to look at both of those items, Mr. Flammer.

# 186 A:

Sure.

# 187 Q:

Maybe you can identify it?

# 188 A:

The first is the invoice, invoice number 2012, which has on it two different items; the first would be the O.J. Simpson six 5-by-7 color prints, the second is another photo that I had taken at a different date.

# 189 Q:

And when did you make up that invoice for submission to the Bills?

# 190 A:

That was billed October 17 of '93.

# 191 Q:

If I could see that again, please.

# 192 A:

Sure.

# 193 Q:

Is that what you were just referring to, Mr. Flammer?

# 194 A:

Yes.

# 195 Q:

The invoice you submitted to the Bills?

# 196 A:

Yes, sir.

# 197 Q:

Now --

# 198 MR. KELLY:

If you could back it up.

# 199 Q:

(BY MR. KELLY) And could you point to the part that describes -- well, first of all, the date up there, does that indicate the date that you generated that invoice?

# 200 A:

That is correct.

# 201 Q:

Okay. And down below, where it says "Description" and it says "5-by-7 Custom Color Prints" --

# 202 A:

Um-hum.

# 203 Q:

-- "O.J. Simpson" it says "Quantity."

# 204 MR. KELLY:

If you could back off a little bit, Steve. Okay. Take it across, left to right, Steve.

# 205 Q:

(BY MR. KELLY) And it's got the rates at 6.95 per print; is that correct?

# 206 A:

That's correct.

# 207 Q:

The total for those six prints was 41.70; is that correct?

# 208 A:

Correct.

# 209 Q:

And there's some other photos --

# 210 MR. KELLY:

If you can go back and do the same thing, Steve.

# 211 Q:

(BY MR. KELLY) Where we have quantity five, and 5-by-7 custom color prints flag wavers, the rate, were those photos taken this day?

# 212 A:

I don't believe they were taken on the same day.

# 213 Q:

Okay. They're not related to this --

# 214 A:

No.

# 215 Q:

-- promotional photography?

# 216 A:

They're separate.

# 217 Q:

Okay. And --

# 218 MR. KELLY:

You can take that down, Steve.

# 219 Q:

(BY MR. KELLY) And you also indicated there in front of you, that you had been paid by the Bills for this job?

# 220 A:

That is correct.

# 221 Q:

And what is that you have in front of you there?

# 222 A:

This is the check stub from the Buffalo Bills paying that invoice.

# 223 Q:

Okay. And what's the date on that?

# 224 A:

The invoice date is on here of 10/17 and the date of payment is 11/23.

# 225 Q:

Of what year?

# 226 A:

'93.

# 227 Q:

'93.

# 228 MR. KELLY:

Can you back off a little first, Steve.

# 229 Q:

(BY MR. KELLY) Is that the stub that had a check attached to it, that was sent to you from the Bills as a result of the invoice submitted?

# 230 A:

Yes.

# 231 Q:

Okay.

# 232 MR. KELLY:

And if you could bring it a little closer, Steve.

# 233 Q:

(BY MR. KELLY) It shows the date. That's the date that that check was issued; is that correct?

# 234 A:

Correct.

# 235 MR. KELLY:

And if you could back it off into the left a little bit, Steve.

# 236 Q:

(BY MR. KELLY) Invoice date 11/17/93, is that the date of your invoice?

# 237 A:

Yes.

# 238 MR. GELBLUM:

10/17.

# 239 Q:

(BY MR. KELLY) 10/17, I'm sorry. And 76.45 is the amount you invoiced for that complete set of prints; is that right?

# 240 A:

Yes.

# 241 THE CLERK:

The invoice we marked 2321, and the check stub 2322. (The instrument herein described as an invoice was marked for identification as Plaintiffs' Exhibit No. 2321.) (The instrument herein described as a check stub was marked for identification as Plaintiffs' Exhibit No. 2322.)

# 242 Q:

(BY MR. KELLY) Now, Mr. Flammer, you indicated that on the 26th of September, '93, you went into Rich Stadium to take these shots; is that correct?

# 243 A:

That is correct.

# 244 Q:

And not just anybody is allowed to walk into Rich Stadium for this purpose, are they?

# 245 A:

No, they're not.

# 246 Q:

What is it that enables you to get into Rich Stadium for practicing your profession?

# 247 A:

A field credential.

# 248 Q:

Did you have a field credential for that day?

# 249 A:

Yes, I did.

# 250 Q:

Ask you to take a look at this and see if you could identify that for me?

# 251 A:

Yes. That is my field credential for that game on the 26th.

# 252 Q:

Does that reflect the date that it would be used on?

# 253 A:

Yes.

# 254 Q:

What is the date on there?

# 255 A:

Sunday, September 26, 1993.

# 256 Q:

Okay. Thanks.

# 257 THE CLERK:

2323. (The instrument herein described as a field credential was marked for identification as Plaintiffs' Exhibit No. 2323.)

# 258 Q:

(BY MR. KELLY) Now, Mr. Flammer, is that the pass you wore that day that enabled you to get into Rich Stadium to take the photos that we've been speaking of?

# 259 A:

Yes.

# 260 Q:

Is that the Bills-Dolphins game?

# 261 A:

That is correct.

# 262 Q:

Now, in addition to those six prints you indicated you billed the Buffalo Bills for, did you develop or have prints made from any other negatives after that time that you took the photos?

# 263 A:

There was one other negative that was developed in black-and-white for the publication for the Buffalo Bills Report.

# 264 Q:

And who developed that particular black-and-white print from the negative?

# 265 A:

I did, in my own darkroom.

# 266 Q:

Where is that darkroom located?

# 267 A:

In the basement of my house.

# 268 Q:

And do you recall what particular frame of negative that print was made from?

# 269 A:

# 270 Q:

Okay. And did there come a time that you ever saw -- first of all, what did you do with that black-and-white print after you made it yourself?

# 271 A:

The print was made in my darkroom and delivered to the editor of the paper with the other prints from that game and for publication going for the next month.

# 272 Q:

And by the way, what did you do with the six prints that you made?

# 273 A:

Those were distributed to Dennis Lynch of the Bills.

# 274 Q:

Did there come a time that you ever saw the reproduction of that black-and-white print that you had made in your darkroom that day?

# 275 A:

Yes. It appeared in the Buffalo Bills Report.

# 276 MR. KELLY:

2317. (Counsel hands Exhibit 2317 to witness.)

# 277 Q:

(BY MR. KELLY) Do you recognize, first of all, that publication?

# 278 A:

Yes, I do.

# 279 Q:

What do you recognize it to be?

# 280 A:

This is the Buffalo Bills Report.

# 281 Q:

Okay. And how was that received, first of all, by people who get the Report?

# 282 A:

It was a monthly publication that was mailed to subscription holders.

# 283 Q:

Are you a subscription holder?

# 284 A:

Because I was photo editor, they put me on the subscription list.

# 285 Q:

Did there come a time that you received that particular publication?

# 286 A:

Yes.

# 287 Q:

What is the date of that particular publication?

# 288 A:

November of 1993.

# 289 Q:

And did that black-and-white print that you had made yourself, in the basement of your own house, appear in that publication?

# 290 A:

Yes.

# 291 Q:

On what page does it appear on?

# 292 A:

Of the first section, it appears on page 19.

# 293 Q:

If you could hold that up for the ladies and gentlemen of the jury. (Witness complies.)

# 294 Q:

And that's the photograph that was generated by you personally, from negative 7-A in the basement of your house?

# 295 A:

Right, correct.

# 296 Q:

And did you actually ever have occasion to make a color print from that same frame that appeared in that Bills Report?

# 297 A:

I'm almost positive that there was the same frame that was the six 5-by-7's or the five 5-by-7's that were distributed to Denny Lynch.

# 298 Q:

Going to ask you to look at an exhibit that was marked previously as 2303 and see if you, first of all, recognize what that is?

# 299 A:

Yes. This is a color contact sheet from the negatives shot that day.

# 300 Q:

Does that reflect the negative 75 that was used to make the photograph that appeared in the Bills Report publication?

# 301 A:

Yes.

# 302 Q:

If I can have that for a moment?

# 303 A:

Sure.

# 304 MR. KELLY:

Steve, hold onto that, please.

# 305 Q:

(BY MR. KELLY) Is that part of the contact sheet of your original negatives 75, that was used to generate the publication, Bills Report?

# 306 A:

Yes.

# 307 Q:

Okay. Take it down, Steve. (Mr. Foster removes contact sheet photographs from Elmo.)

# 308 Q:

(BY MR. KELLY) I'm going to ask you to look at these photographs. Now, in looking through those 30 photographs, do you recognize them?

# 309 A:

Yes.

# 310 Q:

What do you recognize them to be?

# 311 A:

Those were the photos that I took that day.

# 312 Q:

And were generated from the 30 negatives you had taken for the Quarterback Club?

# 313 A:

Yes.

# 314 MR. KELLY:

Your Honor, if we could have those marked next in order sequentially.

# 315 THE CLERK:

How many are there?

# 316 MR. KELLY:

There are 30, but --

# 317 MR. PETROCELLI:

They're different sizes. Just mark them sequentially all 30.

# 318 THE CLERK:

Starting with 2324. (The instruments herein referred to as photos were marked for identification as Plaintiffs' Exhibit No. 2324, 2325, 2326, 2327, 2328, 2329, 2330, 2331, 2332, 2333, 2334, 2335, 2336, 2337, 2338, 2339, 2340, 2341, 2342, 2343, 2344, 2345, 2346, 2347, 2348, 2349, 2350, 2351, 2352, 2353.)

# 319 THE CLERK:

I'll have to mark them one by one, as you go. When you refer to them, just mark the back of them.

# 320 Q:

Now, Mr. Flammer, you had indicated that on the Monday after the September 26, 1993 game, you had those six prints made, correct?

# 321 A:

Yes.

# 322 Q:

And did you have any other -- actually, what did you do with all the negatives after you had those six prints made on that Monday after the game?

# 323 A:

The negatives were put into a three-ring binder in the darkroom at my house.

# 324 Q:

And were they there for a number of years?

# 325 A:

Yes.

# 326 MR. BAKER:

That's leading, Your Honor.

# 327 THE COURT:

Sustained.

# 328 Q:

(BY MR. KELLY) And tell me, when was the next time you had occasion to look at those negatives after that? Was it that Monday you had put them in the three-ring binder in the basement?

# 329 A:

Yes.

# 330 Q:

Can you tell me when the next time you had occasion to look at those negatives?

# 331 A:

The negatives were then looked at December 27, 1996.

KEY QUOTE

# 332 Q:

And after you looked at those negatives, did you have occasion to have prints made from them?

# 333 A:

The prints that were made were for my agent, yes.

# 334 Q:

And when were those prints made?

# 335 A:

Those were made Monday, the 30th -- I believe it would have been the 30th of December.

# 336 Q:

Of December of what year?

# 337 A:

'96.

# 338 Q:

And when I asked you before when the next time you saw those after 1993, you said December 27. What year was that?

# 339 A:

1996.

# 340 Q:

Okay. And, by the way, did you make an affirmative effort to go look for those negatives at this time.

# 341 MR. BAKER:

This is leading and suggestive.

# 342 THE COURT:

Sustained.

# 343 MR. KELLY:

I'll withdraw the question.

# 344 Q:

(BY MR. KELLY) Now, was December 30 of 1996 the first time you generated prints from all 30 of those negatives?

# 345 A:

Yes.

# 346 Q:

And do you recall meeting with me on the afternoon of December 30, 1996?

# 347 MR. BAKER:

I want to object. I want to approach.

# 348 THE COURT:

You may. (The following proceedings were held at the bench, with the reporter.)

# 349 MR. BAKER:

First of all, Your Honor, I don't want -- I would object to Mr. Kelly bringing up anything about any expert going into Buffalo or Hamburg and looking at these photos, under 2034 (l) and 2034 (k), because now nothing in either of those sections' requirements, when you want to designate an expert to -- additional expert testimony, not one requirement in either of those code sections has been adhered to, in addition to what I put on the record yesterday. Second of all, I don't think that -- that Mr. Kelly can get out of this witness his self-serving -- whatever he did with this witness. And let me just say, this witness wouldn't talk to us. He wouldn't say one word to us. He says, no, I won't even tell you whether or not Scull's a friend, 'cause you got to talk to Mr. Kelly. So that Mr. Kelly's apparently his lawyer. And I would object to him discussing any conversations and hearsay conversations that took place.

# 350 MR. KELLY:

I was -- all I was going to ask him was if he provided me with prints from those negatives on that date, an that was it.

# 351

THE COURT: Okay. You may ask that. (The following proceedings were held in open court, in the presence of the jury.)

# 352 Q:

(BY MR. KELLY) Mr. Flammer, on December 30, did you provide me with some prints that had been generated from those 30 negatives?

# 353 A:

Yes.

# 354 Q:

Do you recall how many you gave to me at this time?

# 355 A:

I believe it was four.

# 356 Q:

Now, in addition to the prints you've provided me on December 30, did you take any steps to market or sell these 30 prints?

# 357 A:

Yes. I had hired an agent and spoken to a lawyer, who happens to be a family friend, and is my cousin's husband.

# 358 Q:

The lawyer is?

# 359 A:

Yes.

# 360 Q:

Okay. And the agent, when did you hire him to market these photos?

# 361 A:

That was the -- I actually didn't sign a formal agreement with him until the evening of the 30th.

# 362 Q:

When you had spoken?

# 363 A:

I had spoken to him before that.

# 364 Q:

And do you know whether or not these prints, or copies of these prints, had been sold?

# 365 A:

I had been advised by my attorney that the three major networks have purchased -- purchased rights to them.

KEY QUOTE

# 366 Q:

Okay. And do you know for how much?

# 367 A:

No, I do not.

# 368 Q:

By the way, have you ever been contacted by any representatives of Mr. Simpson's defense team?

# 369 A:

Not to my knowledge.

# 370 Q:

Okay. Mr. Flammer, if you could, just look through here. And would you be able to identify the print generated from negative 7A?

# 371 A:

Yes.

# 372 Q:

If you could, look on the back, sir.

# 373 (The witness complies.) (Mr. Kelly hands photo to counsel.)

# 374 MR. KELLY:

It says 2329. (Exhibit 2329 displayed on Elmo screen.)

# 375 Q:

(BY MR. KELLY) Is that a print generated from that same negative, 7A, that, again, that you made the black-and-white photo that was used in the Buffalo Bills Report in November of 1993?

# 376 A:

Yes.

# 377 THE COURT:

What was that -- was this? You mark these as exhibits now?

# 378 MR. KELLY:

Excuse me. They have been marked.

# 379 THE COURT:

What is this one?

# 380 MR. FOSTER:

2329.

# 381 MR. GELBLUM:

It's one of the 30, Your Honor.

# 382 MR. KELLY:

You can take that off, Steve. (Exhibit 2329 removed from Elmo screen.)

# 383 Q:

(BY MR. KELLY) Mr. Flammer, you indicated that the first thing you did after that shoot that day, on September 26, 1993, was generate negatives; is that correct?

# 384 A:

Yes.

# 385 Q:

And so, from September 26, 1993, have you maintained custody and control of those negatives?

# 386 A:

Yes.

# 387 Q:

And, by the way, do you have those negatives here with you today?

# 388 A:

Yes, I do.

# 389 Q:

If you could, pull them out, please. (Witness removes negatives from briefcase. )

# 390 Q:

(BY MR. KELLY) And what are you holding in your hands? If you could, describe each one and hold them up for --

# 391 A:

I'm holding two clear file storage -- plastic sleeving, holding the group shots and two of the individual shots with Mr. Simpson on this roll. And this roll over here would be the other three photos, along with some warm-up shots of the Buffalo Bills.

# 392 Q:

If I could see those for a minute, please. (Witness hands negatives to Mr. Kelly.)

# 393 MR. KELLY:

Will these show up on the Elmo? (Negatives displayed on Elmo screen.)

# 394 MR. FOSTER:

They might need to be taken out of the plastic.

# 395 MR. KELLY:

Can you focus to make up the --

# 396 MR. BAKER:

You going to mark these? If we're going to show them, I want them marked.

# 397 THE COURT:

Marked for identification only.

# 398 THE CLERK:

2354.

# 399 MR. KELLY:

23 --

# 400 THE CLERK:

54.

# 401 MR. KELLY:

2354. (The instrument herein referred to as Negatives contained in plastic sleeving of photographs taken by Mr. Flammer on September 26, 1993, was marked for identification as Plaintiffs' Exhibit No. 2354.)

# 402 Q:

(BY MR. KELLY) Looking at that 75, it appears sort of x-ray image on the screen. Is that the negative we've been referring to that generated the black and white that then appeared in the Bills Report?

# 403 A:

Yes.

# 404 MR. KELLY:

If you could back off a little bit, show the entire strip.

# 405 Q:

(BY MR. KELLY) And that wasn't the first picture in the roll taken, was it?

# 406 A:

No, it was not.

# 407 Q:

You have never taken any steps to separate that frame or any frame from your other strips of negatives, have you?

# 408 A:

No.

# 409 MR. KELLY:

And if you could, just throw the other one up, too, Steve. We'll mark that for identification, also.

# 410 MR. GELBLUM:

2355. (The instrument herein referred to as Negatives contained in plastic sleeving of photographs taken by Mr. Flammer on September 26, 1993, was marked for identification as Plaintiffs' Exhibit No. 2355.)

# 411 Q:

(BY MR. KELLY) By the way, did you date those plastic pages on the day you took the pictures?

# 412 A:

Most of the time. I would, if I wasn't just marking the top of the sleeve or the contents, it was probably a date put on it, as well. That one does happen to be marked.

# 413 Q:

Okay. And that was done at the time you put the sleeve --

# 414 A:

Correct.

# 415 Q:

And the other one had a date?

# 416 A:

Yes.

# 417 Q:

And you indicated you've had control over these the during the time you've had them?

# 418 A:

Yes.

# 419 Q:

Pages of negatives; is that correct?

# 420 A:

Yes.

# 421 MR. BAKER:

Objection. Leading.

# 422 THE COURT:

Overruled.

# 423 Q:

Could I see the group photo one more time.

# 424 MR. FOSTER:

# 425 MR. KELLY:

Yeah. If you could, back off a little bit.

# 426 Q:

(BY MR. KELLY) Mr. Flammer, could just identify the people in here one more time. Who's that individual right there (indicating)?

# 427 MR. BAKER:

Objection. Irrelevant.

# 428 THE COURT:

Overruled?

# 429 A:

That is Bill Munson.

# 430 MR. KELLY:

Back off a little bit, Steve.

# 431 Q:

(BY MR. KELLY) And that individual right there (indicating)?

# 432 A:

That is Danny Lynch.

# 433 Q:

Who is Danny Lynch?

# 434 A:

Danny Lynch is the -- I believe he's the PR director for the team.

# 435 Q:

Okay. This individual right here?

# 436 A:

That is Mike Lacata.

# 437 Q:

Mr. Simpson?

# 438 A:

Mr. Simpson.

# 439 Q:

This individual right there?

# 440 A:

Jerry Flashner.

# 441 Q:

That gentleman right here? (Indicating.)

# 442 A:

Ed Flammer.

# 443 Q:

Your father?

# 444 A:

Yes.

# 445 Q:

He's the one responsible for getting you this shoot?

Temperature

procedural

Key Quotes (4)

E.J. Flammer

I grew up in Buffalo. O.J. Simpson's a landmark around there.

Establishes Flammer's familiarity with Simpson by sight, undercutting any suggestion he misidentified the subject of his photos.

E.J. Flammer

The negatives were then looked at December 27, 1996.

Key chain-of-custody moment — negatives sat untouched in his basement for over three years, supporting authenticity.

E.J. Flammer

I had been advised by my attorney that the three major networks have purchased -- purchased rights to them.

Reveals Flammer has a financial interest in the photos, providing potential motive the defense could exploit on cross.

Mr. Baker

This witness wouldn't talk to us. He wouldn't say one word to us. He says, no, I won't even tell you whether or not Scull's a friend, 'cause you got to talk to Mr. Kelly. So that Mr. Kelly's apparently his lawyer.

Defense alleges at bench that Flammer refused all contact with defense team and was effectively represented by plaintiffs' counsel — raises witness impartiality concerns.

Evidence (10)

Plaintiffs' 2320

Monday Morning Quarterback Club pin — same type given to Simpson for the promotional photograph

Introduced, passed to jurors

Plaintiffs' 2321

Invoice No. 2012 submitted by Flammer to the Buffalo Bills, dated October 17, 1993, billing $41.70 for six O.J. Simpson 5x7 color prints

Introduced and displayed on Elmo

Plaintiffs' 2322

Check stub from Buffalo Bills paying the invoice, dated November 23, 1993

Introduced and displayed on Elmo

Plaintiffs' 2323

Flammer's field credential for Rich Stadium, dated Sunday September 26, 1993 (Bills-Dolphins game)

Introduced

Plaintiffs' 2303

Color contact sheet from Flammer's negatives shot on September 26, 1993, including negative 7A used for the Bills Report publication

Discussed and displayed on Elmo

Plaintiffs' 2317

November 1993 issue of the Buffalo Bills Report, containing the black-and-white print Flammer made from negative 7A

Identified and shown to jury

+ 4 more

Notable Exchanges (2)

Mr. Baker•Mr. Kelly•Judge Fujisaki

Bench conference where Baker objected that (1) plaintiffs failed to comply with expert designation requirements under Code sections 2034(l) and 2034(k), (2) Flammer refused to speak with the defense and appeared to be represented by Kelly, and (3) Kelly should not be permitted to elicit self-serving hearsay about his own conversations with the witness. Court allowed Kelly only to ask whether Flammer provided him prints on December 30.

heated

Mr. Kelly•E.J. Flammer

Methodical chain-of-custody walkthrough: film loaded day-of, shot at stadium, rolls stored in fanny pack, processed at Nova Photo the following Monday, negatives placed in three-ring binder in basement darkroom, untouched until December 27, 1996.

strategic

Light Moments (2)

E.J. Flammer

Kelly asks Flammer to pull out his camera equipment and display it for the jury; witness removes the Canon T90 and Vivitar flash from a bag and holds them up.

Mr. Gelblum

Mr. Gelblum quietly corrects Kelly mid-question when Kelly misreads the invoice date as '11/17' instead of '10/17'.

Credibility Attacks (2)

⚔ E.J. Flammer

Bias / financial interest

Baker established at bench — and the jury heard — that Flammer hired an agent, retained a lawyer, and sold rights to the photographs to three major networks, suggesting a financial motive to cooperate with plaintiffs.

⚔ E.J. Flammer

Witness alignment with plaintiffs' counsel

Baker argued at bench that Flammer refused all contact with the defense team and directed them to speak with Mr. Kelly, suggesting Kelly was effectively acting as Flammer's lawyer and the witness was not a neutral party.

Witness Demeanor

(Witness complies, removes camera from bag and displays camera and flash.)

(Witness removes negatives from briefcase.)

(Witness hands negatives to Mr. Kelly.)

(Witness complies.)

Objections

5 objections (2 sustained, 2 overruled)

Proceeding 8796 • 445 utterances • Plaintiff witness

Civil Trial

Department 103