Cross-examination of Jack McKay

📄 Cross-examination of Jack McKay — Tuesday, July 11, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JUL\11\CROSS-EXAMINATION-OF-JACK-MCKA.DOC

TRIAL

▲ Day 112 of 167

◀ Direct examination of Jack McKay Redirect examination of Jack McKay (part 1) ▶

Witness: Jack McKay
Examiner: Marcia Clark
Called by: Defense • Date: Tuesday, July 11, 1995 • Utterances: 169

Marcia Clark cross-examined Jack McKay, a golf tournament participant who spent roughly 90 minutes with OJ Simpson on June 8, 1994 at a Hertz corporate event. Clark attacked the limited basis for McKay's character observations — one brief encounter, a prior statement that omitted any mention of a limp, and an implicit financial bias through his company's Hertz account. The examination ended with Clark's murder-planning hypothetical being shut down four times in quick succession.

# 1 MS. CLARK:

Thank you, your Honor

CROSS-EXAMINATION BY MS. CLARK

# 2 MS. CLARK:

All right. You are aware, sir, that the Defendant is a spokesperson for Hertz corporation, correct?

# 3 MR. MCKAY:

I assume he is. He was there for that purpose.

# 4 MS. CLARK:

All right. And that he gets paid to enhance the company image, correct?

# 5 MR. MCKAY:

I don't know that.

# 6 MS. CLARK:

What would you think a spokesperson would do, sir?

# 7 MR. COCHRAN:

I will object, your Honor. That is argumentative, the form of the question.

# 8 THE COURT:

Sustained. Rephrase the question, please.

# 9 MS. CLARK:

Do you expect a spokesperson for a company to try and portray a good image on behalf of that company?

# 10 MR. MCKAY:

If they expect to keep the job I would think they would.

# 11 MS. CLARK:

Certainly. And Mr. Simpson is a spokesperson for Hertz, correct?

# 12 MR. MCKAY:

I believe so.

# 13 MS. CLARK:

You have met other celebrities; is that right?

# 14 MR. MCKAY:

That's right.

# 15 MS. CLARK:

And on the occasions that you have met other celebrities have they been spokespeople as well for other corporations?

# 16 MR. MCKAY:

Most of the time they were.

# 17 MS. CLARK:

On the occasion that you were with Mr. Simpson on June the 8th, was there press there?

# 18 MR. MCKAY:

No.

# 19 MS. CLARK:

Were there photographers there?

# 20 MR. MCKAY:

Yes.

# 21 MS. CLARK:

There were media people there?

# 22 MR. MCKAY:

Not to my knowledge there weren't.

# 23 MS. CLARK:

There were publicity agents there for Hertz?

# 24 MR. MCKAY:

I don't--I don't know.

# 25 MS. CLARK:

Who were the photographers there, Mr. McKay?

# 26 MR. MCKAY:

As far as I know the photographer was hired by Hertz to take pictures to give to the participants as souvenirs from the occasion.

# 27 MS. CLARK:

And the photographer followed everyone around, did they?

# 28 MR. MCKAY:

They were on the course at different times.

# 29 MS. CLARK:

And what does your company have to do with the Hertz corporation?

# 30 MR. MCKAY:

Our company is one of the companies that provides benefits to our members, special discounts through various car rental companies, hotels and whatnot, so we just sponsor that event through our membership and get special discounts from Hertz, Avis and other companies.

# 31 MS. CLARK:

And you patronize Hertz, correct?

# 32 MR. MCKAY:

Do I?

# 33 MS. CLARK:

Not you personally; your company?

# 34 MR. MCKAY:

It is a benefit of membership.

# 35 MS. CLARK:

Right. That means that you use the services of Hertz corporation; is that right?

# 36 MR. MCKAY:

Our members are supposed to. They have the opportunity to.

# 37 MS. CLARK:

Okay. And as a customer of Hertz, Hertz corporation naturally would want to be in your good favor, correct?

# 38 MR. MCKAY:

I would think they wouldn't want to lose the account.

# 39 MS. CLARK:

And Mr. Simpson is a spokesperson for Hertz; is that right?

# 40 MR. MCKAY:

He is--was.

# 41 MS. CLARK:

Now, you spoke to the Defense on June the 14th of 1995; is that right?

# 42 (No audible response.)

# 43 MS. CLARK:

You spoke to a Defense investigator on June 14th, 1995?

# 44 MR. MCKAY:

I believe that is the right date.

# 45 MS. CLARK:

Is that the only time you ever spoke to a Defense investigator?

# 46 MR. MCKAY:

Until I came out here. I believe that was the only time.

# 47 MS. CLARK:

Prior to that time did you speak to any of the lawyers for Mr. Simpson?

# 48 MR. MCKAY:

Umm, I don't think so. I think I was called sometime ago by an investigator and then I spoke to Mr. Bailey briefly.

# 49 MS. CLARK:

And when was that that you spoke to Mr. Bailey?

# 50 MR. MCKAY:

Umm, I really--I really don't know. Maybe a month or two ago, just seeing if I would testify if asked.

# 51 MS. CLARK:

Okay. That was before June the 14th, correct?

# 52 MR. MCKAY:

Yes.

# 53 MS. CLARK:

Did Mr. Bailey take any notes or tape your statement at the time he spoke to you?

# 54 MR. MCKAY:

No.

# 55 MS. CLARK:

And after you spoke to Mr. Bailey, who else did you talk to?

# 56 MR. MCKAY:

An attorney from Mr. Cochran's organization. I think--I can't remember his name.

# 57 MS. CLARK:

Mr. Douglas?

# 58 MR. MCKAY:

No.

# 59 MS. CLARK:

Someone else?

# 60 MR. MCKAY:

Yes.

# 61 MS. CLARK:

And did you speak to him on the phone or in person?

# 62 MR. MCKAY:

On the phone.

# 63 MS. CLARK:

How long did you speak to him for?

# 64 MR. MCKAY:

Probably thirty minutes, I suppose.

# 65 MS. CLARK:

And did you discuss with him the subject matter of your testimony here in court?

# 66 MR. MCKAY:

I answered questions.

# 67 MS. CLARK:

And after that point who else did you talk to?

# 68 MR. MCKAY:

No one until I got out here.

# 69 MS. CLARK:

At what point then--you spoke to Mr. Bailey, you spoke to a lawyer from Mr. Cochran's office, and was it after that that you spoke to a Defense investigator on June the 14th?

# 70 MR. COCHRAN:

Your Honor, assumes a fact not in evidence. If I can talk to counsel, I think she is confused.

# 71 THE COURT:

Sure. Why don't you confer with Mr. Cochran for a moment.

# 72 (Discussion held off the record between Deputy District Attorney and Defense counsel.)

# 73 THE COURT:

Miss Clark.

# 74 (Discussion held off the record between the Deputy District Attorneys.)

# 75 MS. CLARK:

May I have a moment, your Honor?

# 76 THE COURT:

Certainly.

# 77 (Discussion held off the record between the Deputy District Attorneys.)

# 78 MS. CLARK:

You indicated your contact with Mr. Bailey was back about a month or so ago; is that correct?

# 79 MR. MCKAY:

That is the best of my recollection. I have lost track of time. It has been a while, but--

# 80 MS. CLARK:

Was that the first contact you had with any member of the Defense team in this case?

# 81 MR. MCKAY:

Let me try to give you the scenario here.

# 82 MS. CLARK:

Could you answer my question? Was that the first contact you had with any member of the Defense team in this case?

# 83 MR. COCHRAN:

She cut the witness off.

# 84 THE COURT:

The answer was nonresponsive.

# 85 MS. CLARK:

Nonresponsive.

# 86 MR. MCKAY:

Would you ask the question again.

# 87 MS. CLARK:

Was that the first contact you had with any member of the Defense team in this case?

# 88 MR. MCKAY:

Umm, I don't know whether someone is a member of the Defense team.

# 89 MS. CLARK:

Any witness or lawyer for the Defense in this case, was that your first contact, Mr. Bailey, about a month ago, or was there an earlier contact by someone else who is involved with the Defense case?

# 90 MR. MCKAY:

I have spoken to someone else other than on this Defense team about this case.

# 91 MS. CLARK:

Isn't it true that you spoke to a psychologist by the name of Lenore Walker in February of this year?

# 92 MR. MCKAY:

That's correct.

# 93 MS. CLARK:

A witness scheduled to testify in this case?

# 94 MR. MCKAY:

I don't know whether she is scheduled to testify, but I talked with her.

# 95 MS. CLARK:

And you are CFO. What is CFO?

# 96 MR. MCKAY:

Chief financial officer.

# 97 MS. CLARK:

That is not a doctor, is it?

# 98 MR. MCKAY:

No, it is not.

# 99 MS. CLARK:

It is not a psychiatrist, is it?

# 100 MR. MCKAY:

No, it is not.

# 101 MS. CLARK:

As chief financial officer you have to deal with the finances of the company, correct?

# 102 MR. MCKAY:

Correct.

# 103 MS. CLARK:

Now, on the occasion of June the 8th, 1994, you shook hands with the Defendant; is that right?

# 104 MR. MCKAY:

That's right.

# 105 MS. CLARK:

You got his autograph; is that correct?

# 106 MR. MCKAY:

Right.

# 107 MS. CLARK:

Did you see any cut on his left finger?

# 108 MR. MCKAY:

No.

# 109 MS. CLARK:

Did you see any cuts on his hands at all?

# 110 MR. MCKAY:

No.

# 111 MS. CLARK:

You spoke to a lawyer on June the 14th of 1995 at some length; is that correct?

# 112 THE COURT:

I think the testimony was an investigator.

# 113 MS. CLARK:

Let me ask you that. Did you speak to somebody on June the 14th, 1995, for about half an hour to an hour?

# 114 MR. MCKAY:

Yes.

# 115 MS. CLARK:

Do you know if that was a lawyer or an investigator?

# 116 MR. COCHRAN:

Misstates, your Honor. He said a half hour.

# 117 THE COURT:

Overruled.

# 118 MR. MCKAY:

I believe he was a lawyer.

# 119 MS. CLARK:

Have you had occasion to review that statement since you have been out here?

# 120 MR. MCKAY:

Yes.

# 121 MS. CLARK:

I want to you ask you right now to look at that statement, sir, and tell me where in that statement you indicate that you saw Mr. Simpson walk with a limp on June the 8th, 1994?

# 122 MR. COCHRAN:

I object to the form. He didn't say in the statement he did. He said it was a conversation.

# 123 THE COURT:

Sustained. That is a speaking objection, Mr. Cochran. Be seated. Answer the question.

# 124 MR. MCKAY:

That is not in the statement.

KEY QUOTE

# 125 MS. CLARK:

Nowhere in the statement, is it?

# 126 MR. MCKAY:

No.

# 127 MS. CLARK:

June the 8th is the only time that you ever had any contact with Mr. Simpson; is that right?

# 128 MR. MCKAY:

That's right.

# 129 MS. CLARK:

And you indicate in this statement that based on that one contact for that one day in your life that you found him to be absolutely loose, friendly, down-to-earth, affable, correct?

# 130 MR. MCKAY:

That's correct.

# 131 (Discussion held off the record between the Deputy District Attorneys.)

# 132 MS. CLARK:

And how many hours of that day did you spent with him on June the 8th, 1994?

# 133 MR. MCKAY:

About a hour and a half to an hour and 45 minutes would be my estimate.

KEY QUOTE

# 134 MS. CLARK:

And before that hour and a half to two hours that you saw him you don't know what he was looking like or how he acted, correct?

# 135 MR. MCKAY:

That's correct.

# 136 MS. CLARK:

And after the two hours you spent with him you don't know what he looked like, do you?

# 137 THE COURT:

Kind of a vague question.

# 138 MS. CLARK:

I'm sorry.

# 139 MS. CLARK:

You don't know what his mood was, do you?

# 140 MR. MCKAY:

I know what his mood was until he left at six o'clock to catch a plane.

# 141 MS. CLARK:

After that point you do not know, do you?

# 142 MR. MCKAY:

Not after that point, no.

# 143 MS. CLARK:

You did not see him on June the 9th, 1994, correct?

# 144 MR. MCKAY:

Correct.

# 145 MS. CLARK:

The 10th?

# 146 MR. MCKAY:

No.

# 147 MS. CLARK:

The 11th?

# 148 MR. MCKAY:

No.

# 149 MS. CLARK:

The 12th?

# 150 MR. MCKAY:

No.

# 151 MS. CLARK:

He did not discuss his relationship with any of the women in his life with you on June the 8th, 1994, did he?

# 152 MR. COCHRAN:

Objection, beyond the scope.

# 153 THE COURT:

Sustained.

# 154 MS. CLARK:

Well, let me ask you this, sir: Do you--you did not see his left hand on June the 12th, did you?

# 155 MR. COCHRAN:

Your Honor, I object to the form of that question. Argumentative.

# 156 THE COURT:

Overruled.

# 157 THE COURT:

You can answer the question.

# 158 MR. MCKAY:

Yes, I did.

# 159 MS. CLARK:

On June the 12th?

# 160 MR. MCKAY:

Oh, pardon me. I only saw him on June the 8th.

# 161 MS. CLARK:

If someone was planning to commit murder, sir, would you expect him to come to you if he wanted to get away with it and grumble about the person he wanted to kill?

KEY QUOTE

# 162 MR. COCHRAN:

Object, your Honor.

# 163 THE COURT:

Sustained, sustained, sustained, sustained.

KEY QUOTE

# 164 MS. CLARK:

Do you know how someone would act?

# 165 THE COURT:

Excuse me. Hold on. The jury is to disregard the implication of that question.

# 166 MS. CLARK:

Do you know how someone--do you think you know how someone is going to act before they commit a crime?

# 167 MR. COCHRAN:

I object. May we approach the bench?

# 168 THE COURT:

Sustained. Sustained. Move on, counsel.

# 169 MS. CLARK:

I have nothing further.

Temperature

tense

Key Quotes (4)

Jack McKay

That is not in the statement.

Clark's central impeachment point — McKay's prior statement to a Defense investigator contained no mention of Simpson walking with a limp, undermining that portion of his direct testimony.

Lance A. Ito

Sustained, sustained, sustained, sustained.

The judge's rapid-fire quadruple sustained against Clark's murder-planning hypothetical captures the moment Clark pushed too far and was emphatically cut off.

Marcia Clark

If someone was planning to commit murder, sir, would you expect him to come to you if he wanted to get away with it and grumble about the person he wanted to kill?

Clark's overreach — an argumentative hypothetical that drew four consecutive sustaineds and a jury admonishment from the judge.

Jack McKay

About a hour and a half to an hour and 45 minutes would be my estimate.

Clark used this to establish the narrow window of McKay's observation — his entire basis for calling Simpson 'absolutely loose, friendly, down-to-earth, affable' was less than two hours.

Evidence (1)

Informal

McKay's June 14, 1995 statement to a Defense investigator/lawyer, reviewed by McKay before testifying

used to impeach — Clark pointed out the limp was absent from the statement

Notable Exchanges (4)

Marcia Clark•Jack McKay

Clark established that McKay's entire character assessment of Simpson rested on under two hours of contact at a Hertz corporate golf event, after which he had no further knowledge of Simpson's mood or behavior.

strategic

Marcia Clark•Jack McKay

Clark walked McKay through his prior statement and got him to confirm that the limp he mentioned in direct testimony did not appear anywhere in that statement.

revealing

Marcia Clark•Johnnie Cochran•Lance A. Ito

Clark's murder-planning hypothetical ('would you expect him to grumble about the person he wanted to kill?') drew an immediate objection, four consecutive sustaineds, and a jury admonishment — Clark then immediately attempted a rephrasing and was again sustained.

heated

Marcia Clark•Jack McKay

Clark established McKay had spoken to F. Lee Bailey, a lawyer from Cochran's office, a Defense investigator, and psychologist Lenore Walker — all Defense-connected contacts — before testifying, while McKay struggled to keep the chronology straight.

strategic

Light Moments (1)

Jack McKay

McKay answered 'Yes, I did' when Clark asked if he saw Simpson's left hand on June 12th — then immediately corrected himself: 'Oh, pardon me. I only saw him on June the 8th.'

Credibility Attacks (3)

⚔ Jack McKay

prior inconsistent statement

Clark had McKay confirm on the record that his June 14, 1995 statement to Defense counsel contained no mention of Simpson walking with a limp, directly contradicting the thrust of his direct examination testimony.

⚔ Jack McKay

bias / limited basis

Clark established McKay's company was a Hertz account holder, making Simpson (as Hertz spokesperson) someone McKay had a financial interest in portraying favorably, and that his entire character assessment was based on less than two hours of contact.

⚔ Jack McKay

coaching / extensive Defense contact

Clark documented that McKay had been contacted by F. Lee Bailey, a Cochran-office attorney, a Defense investigator, and Defense witness Lenore Walker before testifying — suggesting coordinated preparation.

Witness Demeanor

(No audible response) — hesitation when asked about June 14 contact

Attempts to give a narrative answer ('Let me try to give you the scenario here') and is cut off by Clark

Objections

10 objections (8 sustained, 2 overruled)

Proceeding 6721 • 169 utterances • Defense witness

Criminal Trial

Department 103