Cross-examination of Howard L. Bingham

📄 Cross-examination of Howard L. Bingham — Thursday, July 13, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JUL\13\CROSS-EXAMINATION-OF-HOWARD-L-.DOC

TRIAL

▲ Day 114 of 167

◀ Direct examination of Howard L. Bingham Redirect examination of Howard L. Bingham ▶

Witness: Howard Bingham
Examiner: Marcia Clark
Called by: Defense • Date: Thursday, July 13, 1995 • Utterances: 229

Marcia Clark cross-examined Howard Bingham, a witness who had testified about seeing OJ Simpson on a redeye flight from Los Angeles to Chicago. Clark worked to establish that Bingham and Simpson were mere acquaintances (not close friends), that Bingham slept through most of the flight and did not observe Simpson throughout, and that he was not paying attention to Simpson's hands or any possible injuries. The examination was brief, light in tone, and largely succeeded in limiting the value of Bingham's observations.

# 1 THE COURT:

All right. Miss Clark.

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

# 3 MS. CLARK:

Mr. Cochran just said he would give Mr. Darden your book if I said "No questions."

# 4 MR. BINGHAM:

Thank you. I will leave now.

# 5 MS. CLARK:

It will be very, very, very brief, sir. All right. Now, you have been seeing the Defendant off and on in your travels for many years, correct?

# 6 MR. BINGHAM:

Yes, I have.

# 7 MS. CLARK:

Have you ever socialized with him, sir?

# 8 MR. BINGHAM:

No, not really.

# 9 MS. CLARK:

Okay. Did you ever visit him in his home?

# 10 MR. BINGHAM:

No, I have not.

# 11 MS. CLARK:

Has he ever visited you in your home?

# 12 MR. BINGHAM:

He has not.

# 13 MS. CLARK:

Have you ever gone out to dinner with him?

# 14 MR. BINGHAM:

I have not.

# 15 MS. CLARK:

Or lunch?

# 16 MR. BINGHAM:

I have not. I have--I have--I have--I was at events where he was at lunch, you know, with Ali, and so he was in the audience.

# 17 MS. CLARK:

You are talking about a big--

# 18 MR. BINGHAM:

In a big--hundreds of people.

# 19 MS. CLARK:

--auditorium. Okay?

# 20 MR. BINGHAM:

Not alone, no.

# 21 MS. CLARK:

Not alone?

# 22 MR. BINGHAM:

No.

# 23 MS. CLARK:

On those occasions, sir, were you seated at the same table with him or just in the same room?

# 24 MR. BINGHAM:

Same room and up front because I was always with Ali and so--

# 25 MS. CLARK:

So all the big people sit up front?

# 26 MR. BINGHAM:

Not all the time.

# 27 MS. CLARK:

But sometimes?

# 28 MR. BINGHAM:

Yeah, sometimes.

# 29 MS. CLARK:

Okay. He would be there, too?

# 30 MR. BINGHAM:

Yes.

# 31 MS. CLARK:

But you were not alone together on those occasions, correct?

# 32 MR. BINGHAM:

Yes.

# 33 MS. CLARK:

They were public events?

# 34 MR. BINGHAM:

Yes, right.

# 35 MS. CLARK:

On all occasions when you saw the Defendant, would it be fair to say, sir, that you saw him only in public?

# 36 MR. BINGHAM:

Most of the time, yes.

# 37 MS. CLARK:

Was there any occasion when you saw him in private? What I mean by that is alone in a room where there was no one else around?

# 38 MR. BINGHAM:

There have been times, say, like I remember we was in Florida and I saw him in the--in the--in the bar area, hotel bar area.

# 39 MS. CLARK:

Okay. Again that is a public area, yeah, too?

# 40 MR. BINGHAM:

Yeah, yeah, right.

# 41 MS. CLARK:

There was a bartender?

# 42 MR. BINGHAM:

Over to the side, yes.

# 43 MS. CLARK:

Okay. What I mean is alone in a room where there was no one else?

# 44 MR. BINGHAM:

No.

# 45 MS. CLARK:

Never happened?

# 46 MR. BINGHAM:

No, never.

# 47 THE COURT:

Excuse me.

# 48 MS. CLARK:

I'm sorry.

# 49 THE COURT:

Mr. Bingham, if you would you, would you allow Miss Clark to finish asking you the question before you start to answer, because the court reporter is having a hard time because you are both trying to talk at the same time.

# 50 MR. BINGHAM:

I shall.

# 51 THE COURT:

Okay. You will get out of here a lot quicker if we do it that way.

# 52 MR. BINGHAM:

Thank you.

# 53 THE COURT:

Miss Clark.

# 54 MS. CLARK:

Now, your book, does it attempt to depict the different side of Mohammed Ali?

# 55 MR. BINGHAM:

Yes, it is.

# 56 MS. CLARK:

And so there is one aspect of Mohammed Ali that you see in public; is that correct?

# 57 MR. COCHRAN:

Object to the form of that question. Assumes a fact not in evidence.

# 58 THE COURT:

Overruled.

# 59 THE COURT:

You can answer the question.

# 60 MS. CLARK:

You can answer.

# 61 MR. BINGHAM:

Now?

# 62 MS. CLARK:

It is okay, yes, you can answer the question. Do you remember it?

# 63 MR. BINGHAM:

No.

# 64 MS. CLARK:

Okay. I will do it again. Your book attempts to depict the different aspects of Mohammed Ali, correct?

# 65 MR. BINGHAM:

Yes.

# 66 MS. CLARK:

As he behaves privately and as he behaves publicly; is that a fair statement?

# 67 MR. BINGHAM:

Yes.

# 68 MS. CLARK:

Now--

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

# 70 MS. CLARK:

I'm sorry. Thank you. Sorry, sir.

# 71 MS. CLARK:

Now, when you got on the plane in Los Angeles was the Defendant the last person to board?

# 72 MR. BINGHAM:

I don't know if he was the last, but he was one of the last.

# 73 MS. CLARK:

Okay. And when you went up to see him he was seated in first class; is that correct, sir?

# 74 MR. BINGHAM:

Yes, he was.

# 75 MS. CLARK:

I want to show you a couple of pictures and see if you recognize what I'm showing you. Okay?

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

# 77 MS. CLARK:

Your Honor, I have photographs that I have shown to Mr. Cochran. I would like to show them to the witness. Mark the first one People's next in order, 503.

# 78 THE COURT:

503.

# 79 (Peo's 503 for id = photograph)

# 80 MS. CLARK:

I think that is right.

# 81 MS. CLARK:

All right, sir. Showing you People's 503, can you tell us if you recognize in general that as the appearance of the inside of the plane?

# 82 MR. BINGHAM:

Yes, it is.

# 83 MS. CLARK:

Does that look like first class, sir?

# 84 MR. BINGHAM:

It does.

# 85 MS. CLARK:

Let me see if I can get this on the elmo so the jury can see it, too, your Honor.

# 86 (Brief pause.)

# 87 MS. CLARK:

All right. And that is where you--you walked up to that area to speak with the Defendant; is that right, sir?

# 88 MR. BINGHAM:

Yes.

# 89 THE COURT:

Mr. Bingham, there is a monitor right to your right there.

# 90 MR. BINGHAM:

Thank you.

# 91 THE COURT:

Mr. Wooden, I think we need the Styrofoam overhead. Yes. Thank you. Miss Clark.

# 92 MS. CLARK:

Now, do you see the blue seats farther to your rear? Can you see on your monitor, sir?

# 93 MR. BINGHAM:

Yes, yes.

# 94 MS. CLARK:

You don't have to twist around there. Do you see the blue seats to the rear of the first class seating, sir?

# 95 MR. BINGHAM:

Yes, I see them.

# 96 MS. CLARK:

Is that where you were seated?

# 97 MR. BINGHAM:

Unfortunately it was that night. Can I say something?

# 98 MS. CLARK:

Did you have the whole row to yourself, sir?

# 99 MR. BINGHAM:

I did.

# 100 MS. CLARK:

Now, you had--okay. You told us, sir, that you spent about one minute with the Defendant at that point?

# 101 MR. BINGHAM:

Yes, it was around there, a minute, a minute and a half, half minute. I don't know. I wasn't timing, but it was fast.

# 102 MS. CLARK:

And was there a stewardess that works in first class who was there at the time?

# 103 MR. BINGHAM:

Yes, there was.

# 104 MS. CLARK:

Was she the one that told you to have a seat because they were going to take off?

# 105 MR. BINGHAM:

Yes.

# 106 MS. CLARK:

First class has its own bathroom, doesn't it, sir?

# 107 MR. BINGHAM:

Yes, it does.

# 108 MS. CLARK:

And I'm going to show you another photograph--well, another couple photographs. People's 504, your Honor.

# 109 (Peo's 504 for id = photograph)

# 110 MS. CLARK:

Let me show you first close up, sir, and ask you--you have sat in first class before, haven't you?

# 111 MR. BINGHAM:

Normally I do.

# 112 MS. CLARK:

This was an exception this night?

# 113 MR. BINGHAM:

I have a lot of phone calls that said, "Bingham, you in coach?"

# 114 MS. CLARK:

How did that happen?

# 115 MR. BINGHAM:

What?

# 116 MS. CLARK:

That they put you in coach?

# 117 MR. BINGHAM:

No. What happened was it was at night and so I had a whole row and so I just went to sleep.

# 118 MS. CLARK:

So that it was okay?

# 119 MR. BINGHAM:

It was for me because I rest.

# 120 MS. CLARK:

Okay.

# 121 MR. BINGHAM:

But I had a lot of phone calls that next afternoon--that next morning that I was on the opening statements said, "Bingham, you are cheap."

KEY QUOTE

# 122 MS. CLARK:

World class photographer sitting in coach; is that right?

# 123 THE COURT:

World's greatest.

# 124 MR. BINGHAM:

Right, I'm sorry. You are a smart man, Judge.

# 125 MS. CLARK:

All right. I'm showing you what appears to be a door on the left-hand side of the seating and I'm going to direct your attention--your attention to that area for my following questions. This appears to be first class, does it not?

# 126 MR. BINGHAM:

Yes, it is.

# 127 MS. CLARK:

You are familiar with what that looks like?

# 128 MR. BINGHAM:

Yes.

# 129 MS. CLARK:

And the door that I'm pointing to on the left, sir, is that a bathroom door?

# 130 MR. BINGHAM:

Yes, I think so. I think it is from here. I cannot see the side.

# 131 MS. CLARK:

Let me show you another picture that might be a little bit better.

# 132 MR. BINGHAM:

Uh-huh.

# 133 MS. CLARK:

People's 505, your Honor.

# 134 THE COURT:

505.

# 135 (Peo's 505 for id = photograph)

# 136 MS. CLARK:

Mr. Bingham, if I can show you People's 505, a little bit closer view of that door in conjunction with the other photograph taken from a different perspective.

# 137 MR. BINGHAM:

Yes.

# 138 MS. CLARK:

Does it appear to be a lavatory door, sir?

# 139 MR. BINGHAM:

It is.

# 140 MS. CLARK:

Thank you. If I may show it to the jury, your Honor, I mean on the elmo.

# 141 THE COURT:

Yes.

# 142 (Brief pause.)

# 143 MS. CLARK:

Mr. Bingham, for the benefit of the jury, sir, can you tell us, we were just discussing the door to the left--this is in first class, correct?

# 144 MR. BINGHAM:

Right.

# 145 MS. CLARK:

Okay. You are facing--there is that white arrow there?

# 146 MR. BINGHAM:

Yes.

# 147 MS. CLARK:

Is that white arrow pointing to the door?

# 148 MR. BINGHAM:

It is.

# 149 MS. CLARK:

That is a lavatory door, correct?

# 150 MR. BINGHAM:

It is.

# 151 MS. CLARK:

And in People's 505--People's 505, sir, on the right-hand side of this photograph we are facing from the other direction, is that the first class lavatory door on the right-hand side?

# 152 MR. BINGHAM:

It is.

# 153 MS. CLARK:

All right. Thank you, sir. Now, that was a redeye flight, was it not, sir?

# 154 MR. BINGHAM:

Yes.

# 155 MS. CLARK:

So you slept through it, right?

# 156 MR. BINGHAM:

Most of the flight.

# 157 MS. CLARK:

And how long a flight was it?

# 158 MR. BINGHAM:

It was under four hours I think.

# 159 MS. CLARK:

Okay. And did you--had you planned to sleep through that flight, sir?

# 160 MR. BINGHAM:

I always would like to. Sometimes I cannot.

# 161 MS. CLARK:

Okay. And that night you did?

# 162 MR. BINGHAM:

Most of it I did, yes.

# 163 MS. CLARK:

Were the lights dimmed on that redeye?

# 164 MR. BINGHAM:

Yes, sure.

# 165 MS. CLARK:

Isn't that pretty usual, when you are on a redeye flight they dim all the lights?

# 166 MR. BINGHAM:

Yes.

# 167 MS. CLARK:

Because people like to sleep?

# 168 MR. BINGHAM:

Yes.

# 169 MR. COCHRAN:

Object to the last part, your Honor; speculation.

# 170 THE COURT:

Overruled.

# 171 MS. CLARK:

All right. So you did not see the Defendant throughout the entire flight, correct?

# 172 MR. BINGHAM:

I did not.

# 173 MS. CLARK:

Now, do you recall what the Defendant was wearing when you went up to see him in first class for that one-minute conversation?

# 174 MR. BINGHAM:

I do not, no, no.

# 175 MS. CLARK:

Did you ever happen to notice whether he was writing anything or signing any autographs at that time?

# 176 MR. BINGHAM:

I did not see him signing any autographs. He was alone and he was doing something--putting some money in his hand or something like that. I don't know exactly what.

# 177 MS. CLARK:

Okay. And was he standing or was he seated at the time you spoke to him?

# 178 MR. BINGHAM:

He was actually sitting in the--sitting on the middle seats in the middle at that time.

# 179 MS. CLARK:

So he was already sitting down when you saw him?

# 180 MR. BINGHAM:

Not all--not all the way down, but on the middle.

# 181 MS. CLARK:

On the armrest?

# 182 MR. BINGHAM:

On the armrest in the middle, yes.

# 183 MS. CLARK:

Okay.

# 184 MR. BINGHAM:

Thank you.

# 185 MS. CLARK:

And which hand was it that he put into his pocket, if you know?

# 186 MR. BINGHAM:

I didn't see him put his hands into his pocket. I just saw him do something with his hands.

# 187 MS. CLARK:

Do something with?

# 188 MR. BINGHAM:

Yeah, right. He had some money in it. I don't know.

# 189 MS. CLARK:

Was he taking his hand out of his pocket?

# 190 MR. BINGHAM:

I did not see that.

# 191 MS. CLARK:

Would it be fair to say, sir, you weren't paying particularly close attention to his hands?

KEY QUOTE

# 192 MR. BINGHAM:

I was--no, I was not. No, I was not.

# 193 MS. CLARK:

You weren't expecting to see any injury any cuts on him, were you, sir?

# 194 MR. BINGHAM:

I was not looking for anything.

# 195 MS. CLARK:

Right. You weren't looking for any and then you saw him again in Chicago, correct?

# 196 MR. BINGHAM:

I did.

# 197 MS. CLARK:

And at that time, sir, did you spend a long time talking to him?

# 198 MR. BINGHAM:

A while, while he was waiting on his bags and I was waiting on my luggage.

# 199 MS. CLARK:

How long is a while, sir?

# 200 MR. BINGHAM:

A few minutes. A couple minutes, so what happened was--okay, yes.

# 201 MS. CLARK:

Okay. And at that time were you paying close attention to his hand or trying to observe--

# 202 MR. BINGHAM:

No, I was not.

# 203 MS. CLARK:

Trying to make any observation--that is all right. I will just stop. He knows. So you weren't looking to see if he was injured particularly; is that true?

# 204 MR. BINGHAM:

I did not.

# 205 MS. CLARK:

All right. So you and the Defendant are not close personal friends; would that be a fair statement?

# 206 MR. BINGHAM:

Right.

# 207 MS. CLARK:

You are acquaintances, correct?

# 208 MR. BINGHAM:

Yes.

# 209 MS. CLARK:

And if there was some subtle difference in the way he was acting on that particular night, you would not detect it; would that be a fair statement?

# 210 MR. BINGHAM:

I don't know. I just know how he was with me. Hi, Bingham, how you doing, you know, like that.

# 211 MS. CLARK:

If he was putting on act to try and cover up what was going on inside, if he was feeling differently than he appeared, you wouldn't know that, would you?

KEY QUOTE

# 212 MR. COCHRAN:

Object to the form of the question. Calls for--

# 213 THE COURT:

Sustained.

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

# 215 MS. CLARK:

You could only tell us what you were able to observe, correct?

# 216 MR. BINGHAM:

Yes.

# 217 MS. CLARK:

You saw how he behaved outwardly; is that a fair statement?

# 218 MR. BINGHAM:

Yes.

# 219 MS. CLARK:

Don't know what he was feeling inside?

# 220 MR. COCHRAN:

Object to the form of that question.

# 221 THE COURT:

Overruled.

# 222 MS. CLARK:

You can answer that.

# 223 MR. BINGHAM:

What is that now?

# 224 MS. CLARK:

You can answer that.

# 225 MR. BINGHAM:

What was that?

# 226 MS. CLARK:

You don't know what he was feeling inside, do you, sir?

# 227 MR. BINGHAM:

I'm not a psychiatrist or a psychologist.

KEY QUOTE

# 228 MS. CLARK:

Thank you very much, Mr. Bingham.

# 229 MR. BINGHAM:

Thank you.

Temperature

light

Key Quotes (4)

Marcia Clark

If he was putting on act to try and cover up what was going on inside, if he was feeling differently than he appeared, you wouldn't know that, would you?

Clark's central point — that Bingham could only observe Simpson's outward demeanor, not his inner state, limiting the alibi value of his testimony.

Howard Bingham

I'm not a psychiatrist or a psychologist.

Bingham's closing answer, inadvertently conceding Clark's point while trying to deflect — effectively the prosecution's last word of the examination.

Howard Bingham

I had a lot of phone calls that next afternoon--that next morning that I was on the opening statements said, 'Bingham, you are cheap.'

Comic relief that humanized the witness and lightened the courtroom mood.

Marcia Clark

Would it be fair to say, sir, you weren't paying particularly close attention to his hands?

Key concession — Bingham was not looking for injuries or cuts, undermining any inference that Simpson appeared uninjured.

Evidence (3)

People's 503

Photograph of the interior of the plane showing first class seating

introduced and shown to witness and jury via ELMO

People's 504

Photograph showing the first class lavatory door area

introduced and shown to witness

People's 505

Closer view of the first class lavatory door from a different perspective

introduced and shown to witness and jury via ELMO

Notable Exchanges (4)

Marcia Clark•Johnnie Cochran•Howard Bingham

Clark opened by noting Cochran had jokingly offered to give Bingham his own book if Clark said 'No questions.' Bingham played along, saying 'I will leave now.'

playful

Howard Bingham•Lance A. Ito

Judge Ito interrupted to ask Bingham to wait for Clark to finish questions before answering, noting the court reporter was struggling. Bingham complied graciously.

procedural

Lance A. Ito•Marcia Clark•Howard Bingham

Clark called Bingham a 'world class photographer sitting in coach.' Judge Ito corrected her: 'World's greatest.' Bingham responded, 'You are a smart man, Judge.'

light

Marcia Clark•Howard Bingham

Clark systematically established that Bingham never socialized privately with Simpson, was seated in coach (not first class), slept through most of the flight, and was not looking at Simpson's hands or checking for injuries.

strategic

Light Moments (3)

Johnnie Cochran / Howard Bingham

Cochran offered to give Bingham his own book (Howard Bingham's Muhammad Ali photography book) if Clark said 'No questions.' Bingham immediately tried to leave.

Howard Bingham

Bingham recounted getting calls the morning after he appeared in opening statements from people saying 'Bingham, you are cheap' for sitting in coach instead of first class.

Lance A. Ito

Judge Ito corrected Clark's description of Bingham as 'world class photographer' to 'World's greatest,' earning Bingham's approval: 'You are a smart man, Judge.'

Credibility Attacks (1)

⚔ Howard Bingham

scope limitation / bias challenge

Clark established that Bingham and Simpson were acquaintances, not close friends — they never dined together, visited each other's homes, or spent time alone. Clark then showed Bingham was asleep for most of the flight, did not observe Simpson's hands, was not looking for injuries, and could only report Simpson's outward behavior — not his internal state.

Witness Demeanor

Jovial and good-humored throughout

Occasionally answered before Clark finished her question (prompting Ito's intervention)

Cooperative and not defensive under cross-examination

Objections

4 objections (1 sustained, 3 overruled)

Proceeding 6809 • 229 utterances • Defense witness

Criminal Trial

Department 103