Cross-examination of Michael Wacks

📄 Cross-examination of Michael Wacks — Tuesday, September 19, 1995

Address:

C:\DEPT103\CRIMINAL\1995\SEP\19\CROSS-EXAMINATION-OF-MICHAEL-W.DOC

TRIAL

▲ Day 157 of 167

◀ Direct examination of Michael Wacks (afternoon) Redirect examination of Michael Wacks ▶

Witness: Michael Wacks
Examiner: Brian Kelberg
Called by: Defense • Date: Tuesday, September 19, 1995 • Utterances: 70

Prosecutor Kelberg cross-examines FBI agent Michael Wacks to rehabilitate testimony about an overheard comment by LAPD detective Vannatter on a 'smoking deck.' Kelberg establishes that the comment was sarcastic in tone, that Wacks attached no significance to it, and that Wacks only reported it in September 1995 because he feared the media would sensationalize it after learning Craig Fiato had spoken to ABC News. The prosecution frames Wacks's report as responsible disclosure, not concealment of exculpatory evidence.

# 1 THE COURT:

Very well. Mr. Kelberg.

# 2 MR. KELBERG:

Thank you, your Honor. Very briefly. Good afternoon, ladies and gentlemen, and good afternoon, Agent Wacks.

CROSS-EXAMINATION BY MR. KELBERG

# 3 MR. KELBERG:

Agent Wacks, I was not present for the first conversation you had with Mr. Hodgman, correct?

# 4 MR. WACKS:

That is correct.

# 5 MR. KELBERG:

Basically, would it be accurate to say that in the second conversation in our offices where I was present that we asked you to tell us what you knew, much the same--

# 6 MR. COCHRAN:

Objection, your Honor. This is hearsay, self-serving.

# 7 THE COURT:

Overruled.

# 8 MR. KELBERG:

Much the same ground that had been gone over with Mr. Hodgman in my absence in the earlier interview; is that correct?

# 9 MR. WACKS:

That is correct.

# 10 MR. KELBERG:

At that time we did ask to tape-record the interview?

# 11 MR. WACKS:

That is correct.

# 12 MR. KELBERG:

You had an attorney representing the Federal Bureau of Investigation who told us it was against policy to do so, as a result of which it was not tape-recorded; is that correct?

# 13 MR. WACKS:

Yes, sir.

# 14 MR. KELBERG:

Now, going back to the smoking deck incident, it would not be accurate to say that you interrupted a conversation? What you interrupted was a comment being made by Mr. Vannatter. That would be accurate, would it not?

# 15 MR. COCHRAN:

Objection, leading and suggestive.

# 16 THE COURT:

Overruled.

# 17 MR. WACKS:

That's correct, yes.

# 18 MR. KELBERG:

You have no idea what was said, if anything, before you heard the comment?

# 19 MR. COCHRAN:

Leading and suggestive, your Honor.

# 20 THE COURT:

Overruled.

# 21 MR. WACKS:

I have no idea what he said before.

# 22 MR. KELBERG:

And sir, in fact the tone you heard in Mr. Vannatter's voice, as he was saying the comment you heard him say, was one of sarcasm, wasn't it?

# 23 MR. COCHRAN:

Object again, your Honor, leading and suggestive.

# 24 THE COURT:

Overruled. Counsel, that objection is not well taken. This is cross-examination. Proceed.

# 25 MR. WACKS:

In my opinion it was totally sarcastic, yes.

KEY QUOTE

# 26 MR. KELBERG:

And from what you heard it would be consistent with a man who is venting his frustrations over accusations that had been made against him by other Los Angeles--

# 27 MR. COCHRAN:

Objection, your Honor, calls for speculation.

# 28 MR. KELBERG:

Isn't that correct?

# 29 THE COURT:

Sustained, sustained.

# 30 MR. KELBERG:

Now, sir, there was nothing about what you heard that you thought was significant, is that a fair statement?

# 31 MR. COCHRAN:

Object to the form of that question. Calls for speculation, your Honor.

# 32 THE COURT:

Overruled.

# 33 MR. WACKS:

I put no import to the statement whatsoever.

KEY QUOTE

# 34 MR. KELBERG:

Were you trying to hide something that you thought was exculpatory evidence from Mr. Simpson by not reporting it?

# 35 MR. WACKS:

Absolutely not.

# 36 MR. KELBERG:

Now, sir, why did you report, on September 11th, 1995, the comment that you had heard Mr. Vannatter make on some date in February of 1995?

# 37 MR. WACKS:

I thought by what Mr. Fiato had told me that this information was now in the hands of the media and I thought the media was going to make a big deal over nothing, and I thought that it was my duty to tell my supervisor that at least this situation existed and was going on.

KEY QUOTE

# 38 MR. KELBERG:

And to set it in context, sometime around September 11th Craig Fiato told you that he had talked to Vic Walters at ABC and had mentioned the comment that you had overheard Mr. Vannatter make on the smoking deck, right?

# 39 MR. COCHRAN:

Object to the form of that. That misstates the two comments.

# 40 THE COURT:

Overruled.

# 41 MR. KELBERG:

You may answer the question.

# 42 MR. WACKS:

Yes, that's correct.

# 43 MR. KELBERG:

May I have a moment, your Honor?

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

# 45 MR. KELBERG:

And would it be accurate to say, sir, that you have followed some of the proceedings in the Simpson case over the last year's time?

# 46 MR. WACKS:

Somewhat. Like any other citizen, I suppose.

# 47 MR. KELBERG:

And given what you have seen, were you concerned that the media might try and make something out of that comment that would be out of proportion to its significance as you understood it when you heard it?

# 48 MR. COCHRAN:

Calls for speculation. I object.

# 49 THE COURT:

Sustained. Rephrase the question.

# 50 MR. KELBERG:

All right. Mr. Wacks, were you concerned that the media might twist what was said into something that was never of substance?

# 51 MR. COCHRAN:

I object to the form of that question, your Honor.

# 52 THE COURT:

Overruled.

# 53 MR. WACKS:

That is exactly what I thought, yes, sir.

KEY QUOTE

# 54 MR. KELBERG:

And that is why you told your supervisor?

# 55 MR. WACKS:

That's correct.

# 56 MR. KELBERG:

And as a result of telling your supervisor, out of an abundance of caution, the matter was reported to our office, correct?

# 57 MR. WACKS:

That is correct.

# 58 MR. KELBERG:

And you were interviewed as part of that investigation?

# 59 MR. WACKS:

On two occasions, yes.

# 60 MR. KELBERG:

And it was your understanding that reports were prepared of your two interviews with our lawyers, correct?

# 61 MR. WACKS:

Yes, yes, they were.

# 62 MR. KELBERG:

And it was your understanding that we turned over, along with whatever else we had in the way of the investigation, those reports to Mr. Cochran and to the other lawyers on the Defense team so they would know what you had told us; is that correct?

# 63 MR. WACKS:

I assume that is what happened, yes.

# 64 MR. KELBERG:

That is basically your understanding of how the process works?

# 65 MR. WACKS:

That is why I'm sitting here today, I believe, yes.

# 66 MR. KELBERG:

May I have one more moment, your Honor?

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

# 68 MR. KELBERG:

I have nothing further.

# 69 THE COURT:

Mr. Cochran, you may redirect. You may redirect into the ABC issue.

# 70 MR. COCHRAN:

Thank you, your Honor.

Temperature

procedural

Key Quotes (5)

Michael Wacks

In my opinion it was totally sarcastic, yes.

Kelberg successfully elicits that Vannatter's comment — the centerpiece of the defense's smoking deck allegation — was delivered sarcastically, undercutting its evidentiary weight.

Michael Wacks

I put no import to the statement whatsoever.

Directly neutralizes the defense's suggestion that the comment was a significant admission Wacks had tried to bury.

Michael Wacks

I thought by what Mr. Fiato had told me that this information was now in the hands of the media and I thought the media was going to make a big deal over nothing, and I thought that it was my duty to tell my supervisor.

Explains Wacks's motive for coming forward — preemptive media management, not a guilty conscience — framing his disclosure as routine and responsible.

Michael Wacks

Absolutely not.

Unequivocal denial that he was hiding exculpatory evidence from Simpson.

Michael Wacks

That is exactly what I thought, yes, sir.

Confirms he feared media distortion, completing Kelberg's narrative that the whole episode was a media non-event blown out of proportion.

Evidence (2)

Informal

FBI policy against tape-recording interviews, cited by FBI attorney to explain why Wacks's second prosecution interview was not recorded

discussed

Informal

Reports prepared by prosecution lawyers from two interviews with Wacks, allegedly turned over to defense

discussed

Notable Exchanges (2)

Brian Kelberg•Lance A. Ito•Johnnie Cochran

Cochran repeatedly objects to leading questions during cross-examination; Ito overrules nearly all of them and explicitly notes that leading questions are proper on cross.

procedural

Brian Kelberg•Michael Wacks

Kelberg walks Wacks through the chain of events — Fiato telling Wacks that ABC had the story, Wacks reporting to his supervisor, supervisor escalating to the DA — to frame the disclosure as orderly and innocent.

strategic

Credibility Attacks (1)

⚔ Philip Vannatter

prior statement / context reframing

Defense had used the 'smoking deck' comment on direct to imply Vannatter made a damaging admission; Kelberg on cross establishes through Wacks that the tone was sarcastic and the comment was meaningless in context.

Objections

10 objections (2 sustained, 8 overruled)

Proceeding 7753 • 70 utterances • Defense witness

Criminal Trial

Department 103