Direct examination of Michael Wacks (afternoon)

📄 Direct examination of Michael Wacks (afternoon) — Tuesday, September 19, 1995

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

TRIAL

▲ Day 157 of 167

◀ Lunch recess Cross-examination of Michael Wacks ▶

Witness: Michael Wacks
Examiner: Johnnie Cochran
Called by: Defense • Date: Tuesday, September 19, 1995 • Utterances: 204

Cochran concludes his direct examination of FBI Special Agent Michael Wacks, who was present when Detective Vannatter allegedly made damaging statements to protected witness Larry Fiato on a building balcony in February 1995. Critically, Wacks testified he did NOT hear Vannatter say 'the husband is always a suspect,' though he confirmed hearing other statements. Judge Ito repeatedly cut off Cochran's attempts to broaden the scope beyond the core statement, limiting examination to the relevant 'fifteen words.'

# 1 THE COURT:

Let the record reflect that we have been rejoined by all the members of our jury panel. Special Agent Michael Wacks is again on the witness stand undergoing direct examining by Mr. Cochran. And Mr. Cochran, you may conclude your direct examination.

# 2 MR. COCHRAN:

Thank you very kindly, your Honor. Good afternoon, FBI Agent Wacks.

# 3 MR. WACKS:

Good afternoon.

# 4 MR. COCHRAN:

Good afternoon, ladies and gentlemen.

DIRECT EXAMINATION (RESUMED) BY MR. COCHRAN

# 5 MR. COCHRAN:

Now, when we left this morning I was asking you some questions about your--this conversation that you overheard in February of 1995 in this building involving Detective Vannatter and Mr. Larry Fiato. Do you recall that?

# 6 MR. WACKS:

Yes, sir.

# 7 MR. COCHRAN:

By the way, are the Fiato brothers in this building today right now?

# 8 MR. WACKS:

To the best of my knowledge they are, yes. Where in this building I have no idea.

# 9 MR. COCHRAN:

They are still under your care and control?

# 10 MR. WACKS:

They are under the care and control of another agent at this particular time.

# 11 MR. COCHRAN:

All right. Because you are a witness now?

# 12 MR. WACKS:

That's right, sir.

# 13 MR. COCHRAN:

But they are still under the care and control of the FBI; is that right?

# 14 MR. WACKS:

Yes, sir.

# 15 MR. COCHRAN:

By in large their identities are secret; is that correct?

# 16 MR. WACKS:

Yes, they are.

# 17 MR. COCHRAN:

They have been part of this program for about twelve years?

# 18 MR. KELBERG:

Objection, your Honor.

# 19 MR. COCHRAN:

Just generally.

# 20 THE COURT:

Sustained, sustained.

# 21 MR. COCHRAN:

During this period of time you have vouched for them and their credibility, have you not?

# 22 MR. KELBERG:

Objection.

# 23 THE COURT:

Sustained.

# 24 MR. COCHRAN:

Now, this conversation that you walked out on on this balcony, you have described for us earlier what you heard and I want to ask you specifically did you, when you walked out on this conversation, hear Detective Vannatter say to Mr. Larry Fiato that, quote, "The husband is always a suspect"? Did you ever that?

# 25 MR. WACKS:

No, sir, I did not hear that.

KEY QUOTE

# 26 MR. COCHRAN:

Didn't hear that part of the conversation?

# 27 MR. KELBERG:

Objection, your Honor. That assumes a fact not in evidence.

# 28 THE COURT:

Sustained. Rephrase the question.

# 29 MR. COCHRAN:

All right. You don't recall hearing that portion of the conversation where the husband is always the suspect; is that correct?

# 30 MR. KELBERG:

Same objection.

# 31 THE COURT:

Sustained.

# 32 MR. COCHRAN:

All right. Did you hear, at any time when you were out there, Detective Vannatter say, in addition to the things you have told this jury about, "The husband is always the suspect"?

# 33 MR. WACKS:

No, sir, I did not.

# 34 MR. COCHRAN:

All right. Now, in the course of this conversation you described for us that you went out there to smoke yourself and that you--the conversation continued over a period of time. And it is correct, is it not, that during the time of this conversation you heard Detective Vannatter and Mr. Larry Fiato talking about things like Detective Vannatter's house?

# 35 MR. KELBERG:

Objection, leading and suggestive.

# 36 MR. COCHRAN:

Well--

# 37 THE COURT:

Counsel, the only thing that is relevant here are the twelve words.

KEY QUOTE

# 38 MR. COCHRAN:

No, no, no, your Honor.

# 39 THE COURT:

Yes.

# 40 MR. COCHRAN:

Respectfully, would the court allow me some leeway? It has to be with what happened--

# 41 THE COURT:

No. Proceed.

# 42 MR. COCHRAN:

Credibility.

# 43 THE COURT:

Proceed, counsel.

# 44 MR. COCHRAN:

Okay. At the appropriate time maybe you will let me approach.

# 45 THE COURT:

Proceed.

# 46 MR. COCHRAN:

All right.

# 47 MR. COCHRAN:

Do you know whether or not Larry Fiato and Detective Vannatter had spoken on occasions prior to this date in February of 1995?

# 48 MR. WACKS:

Yes, I believe they have.

# 49 MR. COCHRAN:

Do you know on how many occasions they had spoken before that time, the time on the landing?

# 50 MR. KELBERG:

That would call for hearsay.

# 51 MR. COCHRAN:

If you know. I'm asking.

# 52 THE COURT:

Overruled.

# 53 MR. WACKS:

No, sir, your Honor. There are many times where we were put into the company of Detective Vannatter only because where we are being required to stay in the D.A.'s office.

# 54 MR. COCHRAN:

I understand. So many times--well, how many times is "Many"?

# 55 MR. WACKS:

Oh, I would say maybe a dozen times.

# 56 MR. COCHRAN:

Have you ever seen them drink a beer together during any of these times?

# 57 MR. WACKS:

No. No, sir, I haven't.

# 58 MR. COCHRAN:

You weren't in that hotel room back in January, were you?

# 59 MR. WACKS:

No, sir, I was not.

# 60 MR. COCHRAN:

Now, after you heard this statement that Detective Vannatter made to Larry Fiato, did you and Larry Fiato have occasion to talk about that statement shortly after the statement was made by Vannatter?

# 61 MR. WACKS:

We talked on the way back to the hotel that night--that afternoon.

# 62 MR. COCHRAN:

In the course of that conversation did the subject matter of what Vannatter had said out on the landing come up?

# 63 MR. WACKS:

Yes, it did.

# 64 MR. KELBERG:

Move to strike.

# 65 MR. COCHRAN:

You have answered that. You have answered that.

# 66 MR. COCHRAN:

So the subject matter came up and you had a further conversation about that on the way back to the hotel?

# 67 MR. WACKS:

It wasn't really a conversation; it was more of a comment by Mr. Fiato.

# 68 MR. COCHRAN:

All right. Mr. Fiato made some comment on the way back to the hotel, right?

# 69 MR. WACKS:

Yes, sir.

# 70 THE COURT:

While we are talking to Larry Fiato, right?

# 71 MR. COCHRAN:

Larry Fiato, yes, your Honor.

# 72 MR. COCHRAN:

You can't tell us what the comment was, but did the comment relate to whether or not Larry Fiato had heard--

# 73 MR. KELBERG:

Objection, your Honor.

# 74 THE COURT:

Sustained, sustained.

# 75 MR. COCHRAN:

May I finish?

# 76 THE COURT:

Sustained. Hearsay, counsel, the way it was phrased.

# 77 MR. COCHRAN:

The way it is phrased?

# 78 THE COURT:

The way it is phrased. Proceed.

# 79 MR. COCHRAN:

This comment that you were about to talk about or we were about to ask you about, were just you and Larry Fiato in the car alone at that time?

# 80 MR. WACKS:

No. Craig Fiato was in the car with us.

# 81 MR. COCHRAN:

The comment was made by Larry Fiato right?

# 82 MR. WACKS:

Yes, it was.

# 83 MR. COCHRAN:

Did it relate to events of January of 1995?

# 84 MR. KELBERG:

Objection, your Honor, hearsay.

# 85 THE COURT:

Overruled.

# 86 MR. COCHRAN:

Did it relate to January of 1995?

# 87 MR. WACKS:

It related to the event at the hotel.

# 88 MR. COCHRAN:

All right. We talked about that briefly. Now, after that, after the conversation on the way back to the hotel, did you have occasion to talk again with Larry Fiato at any time after that about this conversation with Vannatter after that date?

# 89 MR. WACKS:

We may have, but I don't recall any conversation.

# 90 MR. COCHRAN:

All right. Now, Detective--FBI Agent Wacks, did you, after hearing this conversation, ever report this conversation to any of your superiors after the conversation in February of 1995 up until Monday, September 11th--prior to Monday, September 11th, did you--1995, did you report that conversation or the contents of that conversation to your superiors?

# 91 MR. WACKS:

No, sir, I did not.

# 92 MR. COCHRAN:

All right. Did you have occasion last week, on or about Monday, September 11th, 1995, to report that conversation to your superiors?

# 93 MR. WACKS:

Yes, I did.

# 94 MR. COCHRAN:

And on what date did you do that?

# 95 MR. WACKS:

It was--what date?

# 96 MR. COCHRAN:

Yes. What date was it?

# 97 MR. WACKS:

I believe it was Monday, the 11th.

# 98 MR. COCHRAN:

All right. So let me make sure I'm clear. Between February of 1995 and September 11th you didn't report it to anyone, right, any superior?

# 99 MR. WACKS:

No, sir, I did not.

# 100 MR. COCHRAN:

Okay. On Monday, September, 11th did you in fact report it?

# 101 MR. WACKS:

Yes, sir.

# 102 MR. COCHRAN:

And did you report it to Special Agent Marshall?

# 103 MR. WACKS:

Yes, I did.

# 104 MR. COCHRAN:

Did you prepare a written report of some kind?

# 105 MR. WACKS:

No, no.

# 106 MR. COCHRAN:

Report it to him orally?

# 107 MR. WACKS:

Yes, I did.

# 108 MR. COCHRAN:

And that was on the 11th of September; is that correct?

# 109 (No audible response.)

# 110 MR. COCHRAN:

And then after that it was on the 14th of September that you were interviewed by Mr. William Hodgman, the gentleman right here in the middle, from the L.A. County District Attorney's office; isn't that correct, the first time?

# 111 MR. WACKS:

No. I believe it was on the 12th.

# 112 MR. COCHRAN:

I think on the 12th, the very next day?

# 113 MR. WACKS:

I believe it was the 12th, the night of the 12th.

# 114 MR. COCHRAN:

I think you are right. September 12th, that was the day after you reported this matter to your superior, right?

# 115 MR. WACKS:

That's correct.

# 116 MR. COCHRAN:

Did you know if your superior contacted anyone in the District Attorney?

# 117 MR. WACKS:

I couldn't tell you that.

# 118 MR. COCHRAN:

Okay. But you talked to your superior on the 11th and at about 7:25 P.M. on the 12th you then talked to Mr. Hodgman; isn't that right?

# 119 MR. WACKS:

That's correct, yes.

# 120 MR. COCHRAN:

Where did that conversation take place?

# 121 MR. WACKS:

At the District Attorney's office.

# 122 MR. COCHRAN:

Was that conversation tape-recorded?

# 123 MR. WACKS:

No, it was not.

# 124 MR. COCHRAN:

Why wasn't it tape-recorded?

# 125 MR. WACKS:

I wasn't asked to be subject to a tape-recorded interview.

# 126 MR. COCHRAN:

That is not against FBI policy?

# 127 MR. WACKS:

It is against FBI policy, but when I came down to give the interview I was never asked if I would mind if the interview was taped.

KEY QUOTE

# 128 MR. COCHRAN:

All right. At any rate, the interview started at about 7:25 and it lasted until about 8:15 in the evening; is that correct?

# 129 MR. WACKS:

That's correct.

# 130 MR. COCHRAN:

Who was present during that interview?

# 131 THE COURT:

Counsel, hold on. This is not relevant.

# 132 MR. COCHRAN:

Well, I can link it up, but I will move on, your Honor.

# 133 THE COURT:

Move on.

# 134 MR. COCHRAN:

All right.

# 135 MR. COCHRAN:

And in that interview with Mr. Hodgman you tried to be as accurate as you could about what took place; isn't that correct?

# 136 MR. WACKS:

Yes, I did.

# 137 MR. COCHRAN:

And then after that interview there was a subsequent interview that took place three days later on September 15th, last Friday; isn't that correct?

# 138 MR. WACKS:

That's correct, Friday morning.

# 139 MR. COCHRAN:

Friday morning. And that interview took place where?

# 140 MR. WACKS:

In the District Attorney's office.

# 141 MR. COCHRAN:

Same location?

# 142 MR. WACKS:

Yes.

# 143 MR. COCHRAN:

And who was--was Mr. Kelberg present during that interview?

# 144 MR. WACKS:

Yes, he was.

# 145 MR. COCHRAN:

Along with Mr. Hodgman?

# 146 MR. WACKS:

Yes.

# 147 MR. COCHRAN:

And again you told what you knew about this particular incident; isn't that correct?

# 148 MR. WACKS:

That's correct.

# 149 MR. COCHRAN:

Now, in this conversation that you had that you overheard Detective Vannatter making these statements to Larry Fiato, you never saw Detective Vannatter laughing during this conversation, did you?

# 150 MR. WACKS:

No, I--no, I did not.

# 151 MR. COCHRAN:

All right. You didn't see him smiling during the time of this conversation either, did you, sir?

# 152 MR. WACKS:

I don't recall whether he was smiling or not.

# 153 MR. COCHRAN:

And you, during the time that you heard him make this statement regarding Mr. Simpson being the suspect and they weren't there to save lives, did you ever ask him any questions at that point?

# 154 MR. WACKS:

No, I did not.

# 155 MR. COCHRAN:

Did you say anything yourself to him at that point?

# 156 MR. WACKS:

No, I did not.

# 157 MR. COCHRAN:

So whatever concerns you registered or thought at that time, you kept them to yourself; is that right?

# 158 MR. WACKS:

I didn't really have a thought about it. It didn't mean very much to me. I didn't make any comment one way or the other.

KEY QUOTE

# 159 MR. COCHRAN:

Well, didn't you say that--didn't you tell the District Attorney's, when you were interviewed by them, as follows: "That I was just surprised because he has never discussed the case before." Do you remember saying that to the D.A.'s?

# 160 MR. WACKS:

I thought you asked me if I made a comment to Mr. Vannatter.

# 161 MR. COCHRAN:

Sure.

# 162 MR. WACKS:

I did say that to the District Attorney's office, yes.

# 163 MR. COCHRAN:

What I was asking you--I will put it in context for you so we are clear--you did not make a statement to Detective Vannatter when you heard him make those statements, did you?

# 164 MR. WACKS:

No, sir, I did not.

# 165 MR. COCHRAN:

You shared with this jury earlier that you would not discuss your cases with witnesses normally?

# 166 MR. WACKS:

That's correct.

# 167 MR. COCHRAN:

Right? And you told the District Attorney's office that you were surprised that Vannatter was discussing this case with this witness, right?

# 168 MR. WACKS:

Yes, I did.

# 169 MR. COCHRAN:

All right. And my question to you was did you say anything to Vannatter at that time, registering your surprise at all?

# 170 MR. WACKS:

No, I did not.

# 171 MR. COCHRAN:

All right.

# 172 MR. COCHRAN:

All right.

# 173 (Discussion held off the record between Defense counsel.)

# 174 MR. COCHRAN:

Now, during the course of this conversation between Larry Fiato and Vannatter, did they discuss personal things? Did you hear Vannatter discussing personal things?

# 175 MR. WACKS:

No, I did not.

# 176 MR. COCHRAN:

Do you remember--

# 177 MR. WACKS:

Not--

# 178 MR. COCHRAN:

Okay. Go right ahead, please.

# 179 MR. WACKS:

When I came into the conversation it was either in the middle or the very end. The conversation stopped. Then we talked about some personal matters, as we always do.

# 180 MR. COCHRAN:

All right. As you always do?

# 181 MR. WACKS:

Yes.

# 182 MR. COCHRAN:

So when you talked about personal things--and your Honor, I would like, if I might, just briefly approach?

# 183 THE COURT:

It is not relevant. You have got the statement in, the fifteen words that are relevant here. Let's move on. Very limited scope here, counsel.

# 184 MR. COCHRAN:

I appreciate that and I--

# 185 THE COURT:

Let's move on.

# 186 MR. COCHRAN:

All right, your Honor. May I have just a second, your Honor?

# 187 THE COURT:

Certainly.

# 188 (Brief pause.)

# 189 MR. COCHRAN:

Do you know who Vic Walters is?

# 190 MR. WACKS:

Yes, I do.

# 191 MR. COCHRAN:

And you met him in April of 1995?

# 192 MR. WACKS:

Yes, I did.

# 193 MR. COCHRAN:

And by whom is he employed?

# 194 MR. WACKS:

ABC.

# 195 THE COURT:

This is not relevant.

# 196 MR. COCHRAN:

I have one other question in that regard, your Honor.

# 197 MR. COCHRAN:

Well--

# 198 THE COURT:

It is not relevant. Anything else?

# 199 MR. COCHRAN:

If I may have just a second?

# 200 (Discussion held off the record between Defense counsel.)

# 201 MR. COCHRAN:

May I have just a second, your Honor?

# 202 THE COURT:

Certainly.

# 203 (Discussion held off the record between Defense counsel.)

# 204 MR. COCHRAN:

Nothing further at this point, your Honor.

Temperature

tense

Key Quotes (5)

Michael Wacks

No, sir, I did not hear that.

Wacks directly contradicts the defense's apparent expectation — he did not hear the 'husband is always a suspect' line, undermining one prong of the Vannatter attack.

Michael Wacks

I didn't really have a thought about it. It didn't mean very much to me. I didn't make any comment one way or the other.

Wacks minimizes the importance of Vannatter's statement, which cuts against the defense framing of it as a smoking-gun admission.

Michael Wacks

It is against FBI policy, but when I came down to give the interview I was never asked if I would mind if the interview was taped.

The September 12 interview with Hodgman was unrecorded, despite FBI policy — leaving no verbatim record of Wacks's initial account.

Lance A. Ito

Counsel, the only thing that is relevant here are the twelve words.

The judge repeatedly and sharply constrained the scope of this testimony, limiting Cochran's ability to build broader context around the Vannatter-Fiato relationship.

Michael Wacks

Between February of 1995 and September 11th you didn't report it to anyone, right, any superior? No, sir, I did not.

A seven-month gap between overhearing Vannatter's statement and reporting it — a credibility vulnerability Cochran is flagging for cross.

Evidence (3)

Informal

Wacks's oral report to Supervisory Agent Marshall on September 11, 1995 regarding the February 1995 Vannatter-Fiato conversation

discussed

Informal

Unrecorded interview between Wacks and William Hodgman (DA's office), September 12, 1995, 7:25–8:15 PM

discussed

Informal

Follow-up interview with Wacks by Hodgman and Kelberg, September 15, 1995

discussed

Notable Exchanges (3)

Johnnie Cochran•Lance A. Ito

Cochran repeatedly tried to open up context around the Vannatter-Fiato relationship — their prior meetings, personal conversations, even an ABC contact named Vic Walters — and Ito shut each line down as irrelevant, limiting the examination to the core statement's 'fifteen words.'

strategic friction

Johnnie Cochran•Michael Wacks

Cochran established the seven-month gap between Wacks overhearing Vannatter's statement in February 1995 and first reporting it to his superiors on September 11, 1995 — one day before the DA's office interviewed him.

revealing

Johnnie Cochran•Michael Wacks

Cochran probed whether Wacks was surprised Vannatter discussed the case with a witness, drawing out Wacks's statement to the DA that he 'was just surprised because he has never discussed the case before' — establishing Wacks recognized it as unusual but stayed silent.

strategic

Credibility Attacks (2)

⚔ Michael Wacks

prior inconsistent conduct / unexplained delay

Cochran established Wacks waited seven months (February to September 11, 1995) before reporting Vannatter's statement to his superiors, and never reduced his account to writing — leaving only unrecorded oral accounts and no contemporaneous documentation.

⚔ Philip Vannatter

prior inconsistent statement (via witness testimony)

The entire examination aimed to establish that Vannatter made out-of-court statements to protected witness Larry Fiato indicating OJ Simpson was targeted as a suspect, rather than investigated neutrally. Wacks's failure to corroborate the 'husband always a suspect' line, however, partially deflated this attack.

Witness Demeanor

(Discussion held off the record between Defense counsel.) — twice during examination as Cochran conferred with colleagues

(Brief pause.) — before Cochran asked about Vic Walters/ABC

Objections

10 objections (7 sustained, 2 overruled)

Proceeding 7752 • 204 utterances • Defense witness

Criminal Trial

Department 103