Redirect examination of E.J. Flammer

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

Address:

C:\DEPT103\CIVIL\1997\JAN\14\REDIRECT-EXAMINATION-OF-E-J-FL.DOC

TRIAL

▲ Day 41 of 57

◀ Direct examination of E.J. Flammer Cross-examination of E.J. Flammer ▶

Witness: E.J. Flammer
Examiner: John Kelly
Called by: Plaintiff • Date: Tuesday, January 14, 1997 • Utterances: 211

Baker cross-examines E.J. Flammer, a Buffalo freelance photographer who claims to have discovered 30 photos of O.J. Simpson wearing Bruno Magli shoes in late December 1996. Baker systematically attacks Flammer's credibility by highlighting his financial motives (a potential $40-50K payday vs. the $41.70 he originally received), his deliberate ignorance of money offers so he could testify cleanly, and an inconsistency between his trial testimony (December 27 discovery) and his signed declaration (December 28-29). Baker also emphasizes that the only missing sign-in log at Rich Field covers the exact game in question, that Flammer and co-photographer Harry Scull share the same agent, and that the defense was never given access to the original negatives needed to verify the photos' authenticity.

# 1 A:

Yes.

# 2 MR. KELLY:

I have no further questions, Your Honor.

# 3 THE COURT:

Okay. Cross-examine. CROSS-EXAMINATION BY

# 4 Q:

Mr. Flammer, you testified that no one from Mr. Simpson's attorneys tried to contact you. We just tried to contact you in the hall, and you won't talk to us, would you?

# 5 A:

That is correct.

# 6 Q:

In other words, you've been informed by Mr. Kelly not to discuss anything with any of the defense lawyers for Mr. Simpson; isn't that true?

# 7 A:

That is not true.

# 8 Q:

Didn't you just tell my son, Phillip, that you couldn't talk even -- you couldn't discuss even whether or not Mr. Scull was your friend, because Mr. Kelly told you not to?

# 9 A:

That is not true.

# 10 Q:

You didn't just say that you had to discuss --

# 11 A:

I did say Mr. Kelly is aware of that situation. I didn't know -- and he introduced himself as your son. He could have been anyone, anybody from the media, or anyone along those lines.

# 12 Q:

You follow the criminal trial, the Simpson criminal trial?

# 13 A:

Not very closely.

# 14 Q:

Now, your lawyer is Mike Kramer, is he not? Mark Kramer?

# 15 A:

Mark Kramer.

# 16 Q:

And Mark Kramer, on Monday, January 6, 1997, was on -- on television, talking about these photos, right?

# 17 A:

I can't say for sure, but. . .

# 18 Q:

Now, did you tell your attorney that you, in fact, followed the O.J. Simpson criminal trial closely?

# 19 MR. KELLY:

Objection. Calls for hearsay.

# 20 MR. PETROCELLI:

We have a privilege.

# 21 MR. KELLY:

Possess a privilege.

# 22 THE COURT:

Sustained.

# 23 MR. BAKER:

I'll show the Court the transcript where the attorney waived the privilege, Your Honor.

# 24 THE COURT:

The attorney can't waive the client's privilege.

# 25 Q:

(BY MR. BAKER) Is it your testimony that you didn't follow the O.J. Simpson criminal trial at all, sir?

# 26 A:

Not at all, but, I -- I mean, I did follow --

# 27 Q:

And is it your testimony that these photos never came to mind, from September of 1993, after the criminal trial started in June of -- strike that -- in September of 1994, throughout the whole time period, until December 28, 1996, right?

# 28 A:

That is correct.

# 29 Q:

And Mr. Scull, Harry Scull, Jr., he's a friend of yours, right?

# 30 A:

Not really, not a friend.

# 31 Q:

Well how many freelance photographers are there in Buffalo?

# 32 A:

There are quite a few. I can't tell you an exact amount.

# 33 Q:

How many of you get on the -- he's about your age?

# 34 A:

He's a little bit older.

# 35 Q:

He's about your age, though, isn't he?

# 36 A:

Probably pretty close.

# 37 Q:

And he was on the football field that day, was he?

# 38 A:

Yes, he was.

# 39 Q:

Did you see him only on the football field that day?

# 40 A:

I don't recall.

# 41 Q:

Did you ever check to see whether or not -- the log to determine whether or not you and Mr. Scull had ever signed in for the September 26, 1993 game was missing at Buffalo?

# 42 A:

Yes, it is missing.

# 43 Q:

And it's the only log that is missing in four years for the sign-in of anybody that went on the field; isn't that right, sir?

# 44 MR. KELLY:

Objection. Calls for hearsay, Your Honor.

# 45 THE COURT:

Sustained.

# 46 Q:

(BY MR. BAKER) You are aware that that's the only log that is missing in four years of games for people who went on Rich Field, 'cause you tried to get that log, didn't you?

# 47 MR. KELLY:

Same objection. Calls for hearsay; argumentative; speculative; no foundation.

# 48 MR. BAKER:

And any other known objection known to God or man.

# 49 MR. KELLY:

Et cetera.

# 50 THE COURT:

I'll sustain it only as to form. Sounds like two questions.

# 51 Q:

(BY MR. BAKER) Okay. We'll have one at a time.

# 52 MR. KELLY:

Split objection in half.

# 53 Q:

(BY MR. BAKER) You attempted to get the log to see if you could prove that you were even there, right?

# 54 A:

I did call, yes.

# 55 Q:

And it is the -- is the only log missing in four years, and you learned that in your request to try to find the log?

# 56 MR. KELLY:

Objection. No foundation.

# 57 THE COURT:

Overruled. You may answer.

# 58 A:

Yes.

# 59 Q:

(BY MR. BAKER) And, by the way, sir, you got $41.70 for the first six pictures, right?

# 60 A:

That is correct.

# 61 Q:

And can you tell the ladies and gentlemen of the jury your minimum asking price for these pictures?

KEY QUOTE

# 62 A:

I am not privy to that information.

# 63 Q:

You told there's -- well, let me put it this way: Did your attorney -- you testified we didn't contact you relative to these photos; that is, anybody from Mr. Simpson's team. You don't know how many times we contacted Mark Kramer to find -- to get the negatives, correct?

# 64 A:

He never mentioned it to me.

# 65 Q:

You are well aware that, to determine whether or not a photograph has been altered, if it can be determined at -- at all, you need the original negatives. True?

KEY QUOTE

# 66 A:

True.

# 67 Q:

And you have never allowed the defense to see any original negatives. Correct?

# 68 MR. KELLY:

Objection. Argumentative, and as to form, Your Honor.

# 69 THE COURT:

Overruled.

# 70 E.J. FLAMMER:

Can you repeat the question please.

# 71 Q:

(BY MR. BAKER) Neither you nor your attorney has ever allowed anybody from the defense side to view those negatives that you have brought with you today; isn't that true, sir?

# 72 A:

To my knowledge, we have not been contacted about that.

# 73 Q:

You never allowed it, have you?

# 74 A:

Never been contacted, sir.

# 75 Q:

And you don't know if we contacted your lawyer and asked your lawyer. He wouldn't return any calls, right?

# 76 MR. KELLY:

Objection. Argumentative; no foundation.

# 77 THE COURT:

Sustained.

# 78 Q:

(BY MR. BAKER) Now, you copyrighted this photograph, right?

# 79 A:

In other words --

# 80 Q:

Well, I think it's all on the back of every one of those.

# 81 A:

Which photo is that?

# 82 Q:

I don't know. It's just one of them.

# 83 A:

Yeah.

# 84 Q:

This is what I'm getting at.

# 85 A:

Sure.

# 86 Q:

And Rob McElroy, he's a freelance photographer around Buffalo, isn't he?

# 87 A:

That is correct.

# 88 Q:

And his main job is not an agent; his main job is freelance photographer?

# 89 A:

Right.

# 90 MR. KELLY:

Objection.

# 91 Q:

(BY MR. BAKER) And this is what you have on the back of every picture: A copyrighted photograph, not to be videotaped, photographed, photocopied, or otherwise reproduced in any way, analog, digital, and cannot be used by any person, organization, or media without the permission of the photographer or his agent. Right?

# 92 A:

Yes.

# 93 Q:

More at 11:00, huh? In any event, the agent is Rob McCelroy, correct?

# 94 A:

Correct.

# 95 Q:

He just happens to be, at a happenstance, the same -- very same agent of Harry Scull, Jr., right?

# 96 A:

Correct.

# 97 Q:

Just happenstance. And his main job isn't an agent at all, is it?

# 98 A:

No.

# 99 Q:

And he's the fellow that sold the Scull photograph to the National Enquirer for $17,000 and gave Scull $5,000, right?

# 100 MR. KELLY:

Objection. Calls for hearsay; argumentative.

# 101 THE COURT:

Sustained.

# 102 Q:

(BY MR. BAKER) Well, do you know whether Mr. Rob McCelroy sold that Scull photo to the National Enquirer for $17,000?

# 103 MR. KELLY:

Objection. Calls for hearsay again, Your Honor.

# 104 THE COURT:

Sustained.

# 105 Q:

(BY MR. BAKER) You signed a contract with Mr. Rob McCelroy, correct?

# 106 A:

Yes.

# 107 Q:

And you are well aware that you're probably going to get 40, 50 thousand bucks for those, rather than $41.70; isn't that right?

# 108 MR. KELLY:

Objection. Argumentative. He indicated he has no knowledge.

# 109 THE COURT:

Overruled.

# 110 A:

I have no idea.

# 111 Q:

(BY MR. BAKER) Are you sitting here, sir, telling this jury, you have no idea as to the amount of money that you have put down as a minimum amount, you'll sell these photos?

# 112 A:

That has not -- I have not been privy to any of this information.

# 113 Q:

Have you tried to insulate that from you because Mr. Kelly flew up to Buffalo and told you, don't have any knowledge of how much money, because Mr. Baker sure as heck will ask you how much money you're getting for those photos.

# 114 MR. KELLY:

Objection. Interesting, but argumentative, Your Honor.

# 115 THE COURT:

Overruled.

# 116 Q:

(BY MR. BAKER) Did he tell you words to that effect, sir?

# 117 A:

Can you repeat the question again?

# 118 Q:

Yeah, sure. Did Mr. Kelly fly up to Buffalo from his hometown in New York and tell you, look, isolate yourself from any dollar amounts from these photos; isolate yourself. Don't know what you're going to get from those photos, so that when Baker asks you a question about the photos, you won't have the answer?

# 119 A:

It was not direct from Mr. Kelly.

# 120 Q:

Who's it directed from?

# 121 A:

My attorney.

# 122 MR. KELLY:

Objection. Calls for hearsay; privilege.

# 123 THE COURT:

I didn't get the last question, when you interrupted. What's the last question? (The reporter read the record as follows:

# 124 Q:

Who's it directed from?

# 125 THE COURT:

Overruled.

# 126 MR. BAKER:

Did we get the answer in, because I didn't -- did we get an answer in?

THE COURT REPORTER: The answer was, "my attorney."

# 127 Q:

(BY MR. BAKER) So it was your attorney who told you not to know how much money you're going to get from this?

# 128 A:

I don't know if those were the exact words.

# 129 Q:

But pretty close?

# 130 MR. BAKER:

I can see, Your Honor. We're going to lunch.

# 131 THE COURT:

1:30, ladies and gentlemen. Don't talk about the case. Don't form or express any opinions. (At 12:05 P.M., a luncheon recess was taken until 1:30 P.M. of the same day.) SANTA MONICA, CALIFORNIA; TUESDAY, JANUARY 14, 1997 1:45 PM DEPARTMENT NO. WEQ HON. HIROSHI FUJISAKI, JUDGE APPEARANCES:

(REGINA D. CHAVEZ, OFFICIAL REPORTER) (Jurors resume their respective seats.) CROSS-EXAMINATION BY

# 132 Q:

Now, Mr. Flammer, did somebody buying your photos -- did they pay for your airfare?

# 133 A:

Can you repeat the question.

# 134 Q:

Did one of the media groups, did they pay for your airfare out here?

# 135 A:

Not to my knowledge.

# 136 Q:

How many appearances do you have scheduled as soon as you get off the stand to go on television?

# 137 A:

Zero.

# 138 Q:

Not a one?

# 139 A:

Not a one.

# 140 Q:

Do you have a PR guy in addition to the agent and lawyer you have?

# 141 A:

No, sir.

# 142 Q:

Now, have you been informed of any dollar amount of offers made on your photos?

# 143 A:

No, sir.

# 144 Q:

Not one?

# 145 A:

Not one.

# 146 Q:

And you've made sure that you don't get informed of that until after you get off this witness stand, right?

# 147 A:

Can you repeat that question.

# 148 Q:

You have made sure that you're not informed of any of the offers that you have to sell those photos so that you and Rob McElroy don't make money until after you get off the witness stand, correct?

KEY QUOTE

# 149 A:

That is correct.

# 150 Q:

All right. And have you tried -- have you tried to sell those photos to the National Enquirer?

# 151 A:

Personally?

# 152 Q:

Or do you know if your lawyer or your agent has?

# 153 A:

I do not have that knowledge.

# 154 Q:

And have you insulated -- attempted to insulate yourself from that knowledge as well, sir?

# 155 A:

Yes.

# 156 Q:

That was particularly so you could testify in this case, right?

# 157 A:

Not particularly.

# 158 Q:

Were you told if you testified in this case the price of the photos was increased?

# 159 A:

No.

# 160 Q:

Not at all?

# 161 A:

No.

# 162 Q:

Now, you told this jury that you discovered those photos on the 27, right?

# 163 A:

That is correct.

# 164 Q:

Friday, December 27, you told them that under penalty of perjury?

# 165 A:

Right.

# 166 Q:

You told this Court, by way of declaration, that you discovered the photos under penalty of perjury on the weekend of the 28, 29, right? Let me show it to you.

# 167 A:

Okay.

# 168 Q:

I don't want to -- this is from the official court file filed on this case. That is your signature?

# 169 A:

That is correct.

# 170 Q:

That was prepared, of course, by Mr. Kelly for you to sign?

# 171 A:

I believe so.

# 172 Q:

And he was working with your attorney, right?

# 173 A:

Correct.

# 174 Q:

And now, so you said there, the 28, 29, under penalty of perjury, you told this jury the 27?

# 175 A:

Friday being part of that weekend, I would consider it . . .

# 176 Q:

Tell the ladies and gentlemen of the jury if you have December 27 anywhere on that declaration, sir?

KEY QUOTE

# 177 A:

No, it is not.

# 178 Q:

Okay. Now, relative to -- is it your testimony, sir, that you were O.J.'ed out; that's why you didn't discover these things for two and a half years after the murders?

# 179 A:

Can you repeat that question.

# 180 Q:

Well, your attorney indicated that you were O.J.'ed out after the criminal trial, that's why you didn't discover the photos, when he was interviewed by Katie Couric; is that true?

# 181 MR. KELLY:

Objection, calls for hearsay, Your Honor, what his attorney said.

# 182 THE COURT:

Overruled.

# 183 A:

I don't remember personally telling him that, no.

# 184 Q:

(BY MR. BAKER) I don't mean to be flip, and after the criminal trial, I was just O.J.'ed out. Do you know where that phrase came from?

# 185 MR. KELLY:

Objection.

# 186 THE COURT:

That's hearsay, sustained.

# 187 Q:

(BY MR. BAKER) Do you know if that's the exact phrase Scull used for his failure to have purportedly found his photographs for a year and a half?

# 188 MR. KELLY:

Objection.

# 189 THE COURT:

Sustained, calls for hearsay, Your Honor.

# 190 THE COURT:

Sustained.

# 191 Q:

(BY MR. BAKER) Now, Scull's depo was taken in Buffalo on July 1, 1996. You were aware of that?

# 192 A:

If you say.

# 193 Q:

Well, it was on all -- it was on every station in Buffalo, wasn't it?

# 194 A:

Could have been.

# 195 Q:

Well, it was in the newspaper?

# 196 A:

Could have been.

# 197 Q:

Well, did you see it, hear about it?

# 198 MR. KELLY:

Objection, relevance, Your Honor, also argumentative.

# 199 THE COURT:

Overruled. I presume it's foundational to something.

# 200 A:

July 1, I was personally and probably on the golf course, that's why I didn't see it.

# 201 Q:

Well, it was -- for days, it was in the paper that we were back there, we took Mr. Scull's photo -- Is it your testimony, sir, that you never heard when Mr. Scull, from Buffalo, New York, was getting paid for a photograph of O.J. Simpson showing the shoes; is that your testimony?

# 202 A:

No, that's not my testimony.

# 203 Q:

So even when you heard about Scull getting paid for it, you have nothing -- you don't -- nothing triggers your mind about this momentous event where your father was in the photograph and they were celebrating 20 years, after O.J. Simpson had rushed for 2,000 yards, right?

# 204 A:

Not particularly.

# 205 Q:

Nothing. And it just so happened that on December 27, 8 or 9, that miraculously, you go oh, my God, there's 30 photographs of O.J. Simpson with shoes, right?

# 206 A:

Yes.

# 207 Q:

You -- you have -- you keep the invoice, you keep the check, and you don't find the photographs or the negatives for two and a half years; is that right?

# 208 A:

That's correct. I believe I testified earlier, sir, that I'm not actively in the freelance business. Now I'm more along the lines working for the printing and engraving company.

# 209 Q:

I see. So you kept all of that, and 30 months later you found this, and it's kind of like finding a Rembrandt in your attic?

# 210 A:

You can liken it to that.

# 211 Q:

You're just out here going to make a whole bunch of money and be on television and just do great with this, right?

Temperature

tense

Key Quotes (5)

Baker

You are well aware that, to determine whether or not a photograph has been altered, if it can be determined at all, you need the original negatives. True?

Establishes that without the negatives — which Flammer withheld from the defense — photo authenticity cannot be verified.

Baker

You have made sure that you're not informed of any of the offers that you have to sell those photos so that you and Rob McElroy don't make money until after you get off the witness stand, correct?

Flammer answers 'That is correct,' confirming he deliberately structured his ignorance to appear unbiased on the stand.

Baker

Tell the ladies and gentlemen of the jury if you have December 27 anywhere on that declaration, sir?

Catches Flammer in a direct inconsistency between his sworn testimony and his signed court declaration.

Baker

So it's kind of like finding a Rembrandt in your attic?

Memorable line that frames the implausibility of Flammer's story to the jury.

Flammer

Not particularly.

Flammer's flat response when asked if hearing about Scull being paid for an OJ Simpson shoe photo triggered any memory of his own 30 such photos — undermining his credibility.

Evidence (5)

Informal

Flammer's signed court declaration stating photos were discovered on the 'weekend of the 28, 29'

Used by Baker to impeach Flammer's testimony that he discovered the photos on December 27

Informal

Original negatives from the September 26, 1993 Bills game

Discussed — defense was never allowed access to verify authenticity

Informal

Sign-in log for Rich Field for the September 26, 1993 game

Discussed — Flammer confirms it is the only log missing in four years

Informal

Read into record by Baker

Informal

Contract between Flammer and Rob McElroy (agent)

Confirmed by Flammer

Notable Exchanges (4)

Baker•Flammer

Baker reveals that Flammer's attorney advised him to remain ignorant of the dollar amounts being offered for the photos, so he could testify he had 'no idea' — Flammer essentially confirms this, admitting it was directed by his attorney.

revealing

Baker•Flammer

Baker presents Flammer's signed declaration showing the photo discovery date as 'the weekend of the 28, 29' versus Flammer's trial testimony of 'the 27.' Flammer tries to claim Friday the 27th is part of the weekend, but concedes December 27 does not appear anywhere in the declaration.

devastating

Baker•Kelly•Court

Baker attempts to introduce what Flammer's attorney told him about the 'OJ'd out' phrase (used also by Scull), but Kelly objects repeatedly on hearsay grounds and the Court largely sustains, limiting Baker's ability to link the two photographers' parallel explanations.

strategic

Baker•Flammer

Baker points out that Flammer and Scull share the same agent, Rob McElroy — the same agent who allegedly sold Scull's shoe photo to the National Enquirer for $17,000 — suggesting coordination.

strategic

Light Moments (3)

Baker

Baker quips 'More at 11:00, huh?' after reading the verbose copyright notice on the back of Flammer's photos.

Baker / Kelly

Baker says 'And any other known objection known to God or man' after Kelly stacks multiple objections on a single question. Kelly responds 'Et cetera.'

Kelly

Kelly objects to Baker's accusation that he coached Flammer, calling it 'Interesting, but argumentative, Your Honor.' Court overrules.

Credibility Attacks (5)

⚔ Flammer

Prior inconsistent statement

Flammer testified at trial that he discovered the photos on December 27; his signed declaration filed with the court states 'the weekend of the 28, 29.' He cannot reconcile the discrepancy.

⚔ Flammer

Bias / financial motive

Baker establishes that Flammer received only $41.70 for the photos originally but stands to make $40,000-$50,000 or more, and that he deliberately insulated himself from knowing the amounts so he could deny knowledge on the stand.

⚔ Flammer

Withholding evidence

Flammer and his attorney never provided the original negatives to the defense, making photo-alteration analysis impossible — despite Flammer conceding that negatives are required for such analysis.

⚔ Flammer

Implausibility of narrative

Baker highlights that Flammer heard about Scull's shoe photo payout, kept the invoice and check from the 1993 game, yet claims nothing triggered his memory of 30 OJ Simpson photos for two and a half years.

⚔ Flammer

Missing corroboration

The sign-in log for the September 26, 1993 game at Rich Field — the only log missing in four years — would have confirmed Flammer was present that day.

Witness Demeanor

Witness repeatedly asks Baker to repeat questions, suggesting either evasiveness or genuine difficulty following the rapid-fire cross.

Witness gives flat, minimal answers ('Not particularly,' 'Could have been') when pressed on why he never connected Scull's paid photo to his own.

Witness volunteers an explanation unprompted — noting he is 'not actively in the freelance business' — suggesting defensiveness.

Objections

16 objections (9 sustained, 7 overruled)

Proceeding 8797 • 211 utterances • Plaintiff witness

Civil Trial

Department 103