Direct examination of Michael Wacks (morning)

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

Address:

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

TRIAL

▲ Day 157 of 167

Witness: Michael Wacks
Examiner: Johnnie Cochran
Called by: Defense • Date: Tuesday, September 19, 1995 • Utterances: 205

FBI Special Agent Michael Wacks testified that he overheard Detective Philip Vannatter tell FBI informant Larry Fiato, on the 18th floor landing of the courthouse in February 1995, that detectives 'didn't go up there with the intention of saving lives' and that Simpson 'was the suspect.' The defense called Wacks to corroborate the Fiato brothers' account of Vannatter's damaging admission, which directly undercuts the prosecution's justification for the warrantless entry at Rockingham. The session ended at the noon recess with cross-examination pending.

# 1 THE COURT:

Mr. Cochran.

DIRECT EXAMINATION BY MR. COCHRAN

# 2 MR. COCHRAN:

Mr. Wacks, you are here today pursuant to subpoena; is that correct?

# 3 MR. WACKS:

That's correct.

# 4 MR. COCHRAN:

And by whom are you employed, Mr. Wacks?

# 5 MR. WACKS:

I'm a Special Agent with the FBI.

# 6 MR. COCHRAN:

And for how long have you been so employed?

# 7 MR. WACKS:

It will be 24 years this October, or 25, excuse me.

# 8 MR. COCHRAN:

And you are presently assigned to the Los Angeles office?

# 9 MR. WACKS:

Yes, I am.

# 10 MR. COCHRAN:

Now, are you acquainted with two individuals by the name of Larry and Craig Fiato?

# 11 MR. WACKS:

Yes, sir.

# 12 MR. COCHRAN:

Approximately how long have you known these individuals?

# 13 MR. WACKS:

I have known the Fiatos since approximately 1982.

# 14 MR. COCHRAN:

And in what capacity have you known them since 1982?

# 15 MR. KELBERG:

Objection, your Honor.

# 16 THE COURT:

Sustained.

# 17 MR. COCHRAN:

Well, you have worked with them over the course of the last twelve or thirteen years; is that correct?

# 18 MR. WACKS:

Yes, I have.

# 19 MR. COCHRAN:

Have they been witnesses for the government during that period of time?

# 20 MR. WACKS:

Yes, they have.

# 21 MR. COCHRAN:

And they have testified for the Prosecution?

# 22 MR. WACKS:

Yes, they have.

# 23 MR. COCHRAN:

Now, in this matter, just a few moments ago, you refused to talk with me prior to your taking the stand; isn't that correct?

# 24 MR. WACKS:

Well, I was asked by the--the assistant United States Attorney if I wanted to speak to somebody from the Defense and I said no.

# 25 MR. COCHRAN:

Well, that happened to be me?

# 26 MR. WACKS:

Well, I didn't know that, sir.

# 27 MR. COCHRAN:

It wasn't personal I'm sure.

# 28 MR. WACKS:

No, sir.

# 29 THE COURT:

Wait, wait.

# 30 MR. COCHRAN:

Sorry. Go ahead.

# 31 THE COURT:

You know the drill; don't talk when the lawyer is asking you question.

# 32 MR. COCHRAN:

And I know the drill.

# 33 THE COURT:

You know the drill.

# 34 MR. COCHRAN:

I know the drill and I will remember the drill.

# 35 THE COURT:

Thank you.

# 36 MR. COCHRAN:

You refused to talk to the Defense; isn't that correct?

# 37 MR. WACKS:

That is correct.

# 38 MR. COCHRAN:

You previously talked to the Prosecution on at least two occasions; isn't that correct?

# 39 MR. WACKS:

Yes, sir.

# 40 MR. COCHRAN:

On September 14th and also on September 16th; is that correct?

# 41 MR. WACKS:

I believe it was Tuesday and Friday, yes.

# 42 MR. COCHRAN:

All right. Now, sir, when the Fiatos have come to California to testify on cases, have you been out here kind of looking out here for them when they come here and testify?

# 43 MR. WACKS:

Yes, sir.

# 44 MR. COCHRAN:

They have been to California to testify on a murder cases down the hall in this building how many times this year?

# 45 MR. WACKS:

Umm, they have been out at least three or four times I believe.

# 46 MR. COCHRAN:

All right. I want to direct your attention back to the month of February of 1995. Do you remember that particular month?

# 47 MR. WACKS:

Yes, sir.

# 48 MR. COCHRAN:

And on that month did you have occasion to walk out on a landing on the 18th floor of this building during the middle of a conversation between Larry Fiato and Detective Philip Vannatter?

# 49 MR. WACKS:

Yes, sir, I did.

# 50 MR. COCHRAN:

And Detective Philip Vannatter is the gentleman who just preceded you to the stand; is that correct?

# 51 MR. WACKS:

That's correct.

# 52 MR. COCHRAN:

And when you walked out on this landing, first of all, I want you to describe for the jury who was present on this landing?

# 53 MR. WACKS:

Umm, when I walked out it was Detective Vannatter and Larry Fiato.

# 54 MR. COCHRAN:

And were they the only two there?

# 55 MR. WACKS:

Yes, sir.

# 56 MR. COCHRAN:

And this landing, is this an area where people go to smoke outside of this building?

# 57 MR. WACKS:

Yes, on the 18th floor.

# 58 MR. COCHRAN:

Do you know how long these two individuals had been out there before you went out there?

# 59 MR. WACKS:

I believe it was only a matter of minutes.

# 60 MR. COCHRAN:

A short time?

# 61 MR. WACKS:

Yes, sir.

# 62 MR. COCHRAN:

And you were there in furtherance of your duties of kind of looking after the Fiato brothers; is that correct?

# 63 MR. WACKS:

Part. I was also going out to have a cigarette.

# 64 MR. COCHRAN:

All right. But you were up in the D.A.'s office because you were with the Fiatos?

# 65 MR. WACKS:

Yes, sir, I was.

# 66 MR. COCHRAN:

All right. Do you still smoke?

# 67 MR. WACKS:

Unfortunately, yes.

# 68 MR. COCHRAN:

Don't have to answer. Now, at any rate, you walked out there, and when you walked out there you heard some conversation that went on between Detective Vannatter and Larry Fiato; isn't that correct?

# 69 MR. WACKS:

That's correct.

# 70 MR. KELBERG:

Objection, leading and suggestive.

# 71 THE COURT:

Overruled.

# 72 MR. COCHRAN:

And what you heard was you heard Detective Vannatter state to Larry--

# 73 MR. KELBERG:

Objection, your Honor.

# 74 MR. COCHRAN:

Calling him as an adverse witness, your Honor.

# 75 THE COURT:

Sustained.

# 76 MR. COCHRAN:

Adverse witness.

# 77 THE COURT:

Proceed. Not until it is necessary, counsel.

# 78 MR. COCHRAN:

Well--

# 79 THE COURT:

Not until there is a showing that it is necessary. Proceed.

# 80 MR. COCHRAN:

All right.

# 81 THE COURT:

I understand, counsel. Ask him a question. We will see what the response is.

# 82 MR. KELBERG:

Your Honor, I can't hear counsel's remarks to the court when he sotto voces them.

# 83 THE COURT:

I know. Proceed.

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

# 85 MR. KELBERG:

Thank you.

# 86 THE COURT:

It should be clear.

# 87 MR. COCHRAN:

Yes.

# 88 THE COURT:

Proceed.

# 89 MR. COCHRAN:

Thank you.

# 90 MR. COCHRAN:

Now, when you walked out there you heard Detective Vannatter make a statement to Larry Fiato; isn't that correct?

# 91 (No audible response.)

# 92 MR. COCHRAN:

Answer that yes or no.

# 93 MR. WACKS:

Yes.

# 94 MR. COCHRAN:

And what statement did you hear Detective Vannatter say to Larry Fiato?

# 95 MR. WACKS:

Well, I can't give you an exact quote. It was more of a comment, something to the effect of not going up to the house to save victims and that he was a suspect.

# 96 MR. COCHRAN:

All right. Well, let me ask you specifically if this is what you indicated in your interview on September 16th, 1995, in the D.A.'s office. "We didn't go up there with the intention of saving lives. He was the suspect." Isn't that what you said he said?

# 97 MR. WACKS:

I said I heard something to that effect. I also said in the statement I do not recall the exact words.

# 98 MR. COCHRAN:

All right. That is as close as you can remember as you sit here now?

# 99 MR. WACKS:

Something to that effect, yes.

# 100 MR. COCHRAN:

All right. That--they went to the Simpson's Rockingham residence. They didn't go there with the intention of saving lives but because O.J. Simpson was a suspect, right?

# 101 MR. WACKS:

It was something to the effect that we went up to the house with no intention of saving lives, that he was a suspect. I never heard the word Mr. Simpson's name mentioned nor did I hear the Rockingham house mentioned, but I just heard--

# 102 MR. COCHRAN:

You knew that Detective Vannatter was talking about O.J. Simpson; isn't that correct?

# 103 MR. WACKS:

I assumed he was, yes.

# 104 MR. COCHRAN:

Because you knew from conversations with the Fiato brothers that there had been an earlier conversation in January of 1995; isn't that correct?

# 105 MR. KELBERG:

Objection, your Honor.

# 106 THE COURT:

Sustained, sustained.

# 107 MR. COCHRAN:

Well--

# 108 THE COURT:

Sustained.

# 109 MR. COCHRAN:

Let me phrase it another way, your Honor.

# 110 MR. COCHRAN:

Weren't you aware, through conversations with the Fiato brothers, that there had been an earlier conversation in a hotel room downtown here?

# 111 MR. KELBERG:

Objection, your Honor, calls for hearsay.

# 112 MR. COCHRAN:

Let me finish.

# 113 THE COURT:

Sustained, sustained.

# 114 MR. COCHRAN:

With regard--

# 115 THE COURT:

Hearsay, counsel, at this point.

# 116 MR. COCHRAN:

All right.

# 117 MR. COCHRAN:

At any rate, there was no doubt in your mind he was talking about the O.J. Simpson case, was there?

# 118 MR. WACKS:

No.

# 119 MR. COCHRAN:

In fact, you were quite surprised that Detective Vannatter would be discussing the Simpson case with Larry Fiato; isn't that correct?

# 120 MR. KELBERG:

Objection, leading, your Honor.

# 121 THE COURT:

Sustained.

# 122 MR. COCHRAN:

Were you surprised that Detective Vannatter would be discussing the Simpson case with Larry Fiato?

# 123 MR. WACKS:

I was somewhat surprised, yes.

KEY QUOTE

# 124 MR. COCHRAN:

That is not something you would do, is it?

# 125 MR. WACKS:

Discuss the Simpson case with--

# 126 MR. COCHRAN:

Well, no. You wouldn't even discuss the Simpson case with me, so I'm sure you wouldn't, but that is not something that you would do in discussing one of your cases with a witness somewhere, would you?

# 127 MR. WACKS:

Normally not, no.

# 128 MR. COCHRAN:

Now, after this conversation, after the part that you heard, you then were out on the landing with the two of them; is that correct?

# 129 MR. WACKS:

Yes. We were out there for a brief period after that, yes.

# 130 MR. COCHRAN:

How much longer were you out there before that conversation terminated?

# 131 MR. WACKS:

I would just say two or three more minutes, enough to finish the cigarette.

# 132 MR. COCHRAN:

All right. Was there any further discussion, during this particular period of time now, the time after you arrived, about the O.J. Simpson case and what Vannatter did?

# 133 MR. WACKS:

No, none at all.

# 134 MR. COCHRAN:

All right. Was Detective Lange on this landing at any time that particular day?

# 135 MR. WACKS:

No, sir.

# 136 MR. COCHRAN:

Did Craig Fiato, Larry Fiato's brother, come out at any time during that conversation?

# 137 MR. WACKS:

No, sir.

# 138 MR. COCHRAN:

Where was Craig Fiato, if you know, during the time of this conversation on the landing?

# 139 MR. WACKS:

I believe he was in the District Attorney's office reception area.

# 140 MR. COCHRAN:

All right. Now, I want to direct your attention back to that conversation that took place that we have just been talking about in February of 1995, right?

# 141 MR. WACKS:

I believe it was the first week or two of February, yes.

# 142 MR. COCHRAN:

First week or two?

# 143 MR. WACKS:

Yes.

# 144 MR. COCHRAN:

Do you have a specific date for us?

# 145 MR. WACKS:

No, I do not.

# 146 MR. COCHRAN:

All right. Now, are you aware whether or not there was another conversation involving Detective Vannatter and the Fiato brothers wherein the subject matter of going to O.J. Simpson's house took place in January of 1995?

# 147 MR. KELBERG:

Calls for hearsay.

# 148 MR. COCHRAN:

Are you aware of that? Yes or no?

# 149 THE COURT:

Overruled. You can answer that question yes or no. Are you aware of any other conversation?

# 150 MR. WACKS:

I am aware of the comment that the Fiato brothers overheard Detective Vannatter make, yes.

# 151 MR. COCHRAN:

All right. And when was that comment?

# 152 MR. KELBERG:

Objection, your Honor. That would call--

# 153 THE COURT:

Sustained. Foundation.

# 154 MR. COCHRAN:

Well--now, with regard to that particular comment, you say that you are aware of it, and as a result of your being aware of that conversation are you aware of when that conversation took place, the one between the Fiato brothers and Detective Vannatter that preceded the February of 1995 conversation?

# 155 MR. KELBERG:

Same objection, your Honor.

# 156 THE COURT:

Sustained.

# 157 MR. COCHRAN:

I am seeking to lay a foundation, your Honor.

# 158 THE COURT:

Proceed.

# 159 MR. COCHRAN:

All right. Now, were the Fiato brothers here in southern California in January of 1995?

# 160 MR. WACKS:

Yes, they were.

# 161 MR. COCHRAN:

And were they housed in a hotel downtown Los Angeles?

# 162 MR. KELBERG:

Your Honor, I will--

# 163 THE COURT:

Sustained, sustained.

# 164 MR. COCHRAN:

Were they in some hotel in this general area?

# 165 THE COURT:

Sustained.

# 166 MR. KELBERG:

And--

# 167 MR. COCHRAN:

Was there a time when Detective Vannatter and Detective Lange and the Fiato brothers met in January of 1995 that you are aware of, sir?

# 168 MR. KELBERG:

Calls for speculation or hearsay.

# 169 THE COURT:

Overruled. Are you aware of that meeting?

# 170 MR. WACKS:

Yes, I am.

# 171 THE COURT:

Next question.

# 172 MR. COCHRAN:

And can you tell us when that meeting took place generally?

# 173 MR. WACKS:

Sometime in January, early January, I believe.

# 174 MR. COCHRAN:

All right. The first week or first two weeks?

# 175 MR. WACKS:

Yes. It was sometime right after the Superbowl.

# 176 MR. COCHRAN:

Around the Superbowl?

# 177 MR. WACKS:

I believe sometime after the Superbowl.

# 178 MR. COCHRAN:

Well, let's see now. The Superbowl usually takes place the last Sunday in January?

# 179 MR. WACKS:

Well, then it--it was my impression it was sometime around the Superbowl. It may have been one or two weeks on the early side of January.

# 180 THE COURT:

Counsel, we have narrowed it down to January. Is there a really a precise date that is necessary?

# 181 MR. COCHRAN:

That is fine.

# 182 MR. COCHRAN:

January of 1995; is that correct?

# 183 MR. WACKS:

That's correct.

# 184 MR. COCHRAN:

At that time of this conversation that we are about to talk about were you present during this conversation at all?

# 185 MR. WACKS:

No, I was not.

# 186 MR. COCHRAN:

And with regard to your knowledge of this conversation, would I be correct in assuming that you got the information about what was said during this January conversation from the Fiato brothers?

# 187 MR. WACKS:

Yes.

# 188 MR. COCHRAN:

They told you what had been said; is that correct?

# 189 MR. WACKS:

Well, they told me about the meeting, and in the course of this meeting what had been said, yes.

# 190 MR. COCHRAN:

All right. And when were you told about what had been said--

# 191 MR. WACKS:

I believe--

# 192 MR. COCHRAN:

--by the Fiato brothers?

# 193 MR. WACKS:

Excuse me. I believe it was the next day or two, whenever I went back to the hotel to pick them up to transport them down to--to testify in the Christi murder trial.

# 194 MR. COCHRAN:

All right. This is during the time they were out here to testify; is that correct?

# 195 MR. WACKS:

Yes, sir.

# 196 MR. COCHRAN:

Did you ascertain whether or not there was a Deputy District Attorney by the name of dale Davidson also present during this time?

# 197 MR. WACKS:

I was told he was at this meeting, yes.

# 198 MR. KELBERG:

Move to strike, your Honor.

# 199 THE COURT:

Stricken. Hearsay. The jury is to disregard.

# 200 MR. COCHRAN:

All right.

# 201 MR. COCHRAN:

Now, were you--may we approach just for a moment, your Honor? We may want to take a break, but I want to ask one question.

# 202 MR. COCHRAN:

And I want to ask you--

# 203 THE COURT:

I don't think we are going to finish.

# 204 MR. COCHRAN:

No.

# 205 THE COURT:

All right. Ladies and gentlemen, we are going to take our noon recess at this time. Please remember all my admonitions to you. Don't discuss the case among yourselves, form any opinions about the case, conduct any deliberations until the matter has been submitted to you or allow anybody to communicate with you with regard to the case. We will stand in recess until 1:00 P.M. and Agent Wacks, you are ordered to come back at 1:00 P.M. thank you, sir.

Temperature

tense

Key Quotes (4)

Michael Wacks

It was more of a comment, something to the effect of not going up to the house to save victims and that he was a suspect.

Core of the testimony — FBI agent corroborates that Vannatter admitted the Rockingham visit was investigative, not a welfare check, undermining the prosecution's Fourth Amendment justification.

Johnnie Cochran

'We didn't go up there with the intention of saving lives. He was the suspect.' Isn't that what you said he said?

Cochran uses Wacks's own September 16 interview to sharpen the quote Wacks is hedging on, locking in the substance even if not exact wording.

Michael Wacks

I was somewhat surprised, yes.

An FBI agent expressing surprise that a detective would discuss an active case with a government informant implicitly signals Vannatter's remark was inappropriate.

Michael Wacks

Normally not, no.

In response to whether he would discuss a case with a witness in passing — professional judgment from an FBI agent that Vannatter's conduct was outside normal practice.

Evidence (2)

Informal

Wacks's September 16, 1995 recorded interview at the D.A.'s office, in which he described Vannatter's statement to Fiato

Cochran quotes from it to pin down Wacks's prior characterization of Vannatter's words

Informal

January 1995 hotel meeting between Vannatter, Lange, and the Fiato brothers

Referenced to establish a prior, separate conversation about the Rockingham visit; most testimony about it sustained as hearsay

Notable Exchanges (3)

Johnnie Cochran•Michael Wacks

Cochran presses Wacks on the exact wording of Vannatter's statement. Wacks repeatedly qualifies — 'something to that effect,' 'I never heard the word Mr. Simpson's name' — while Cochran anchors him to the substance from his prior interview.

strategic

Johnnie Cochran•Brian Kelberg•Lance A. Ito

Extended back-and-forth over whether Wacks could testify about a January 1995 conversation he didn't witness, with Kelberg sustaining repeated hearsay objections and Ito finally cutting off the line of questioning after several attempts.

procedural

Johnnie Cochran•Michael Wacks

Cochran notes that Wacks refused to speak with him before testifying, but had met with the prosecution twice. Wacks says he simply declined when asked by the AUSA and didn't know it was Cochran asking.

revealing

Light Moments (4)

Johnnie Cochran / Lance A. Ito

After Ito reminds counsel not to talk while the witness is answering, Cochran says 'I know the drill and I will remember the drill,' prompting Ito to say 'Thank you' in a tone of mild exasperation.

Michael Wacks

Cochran asks if Wacks still smokes; Wacks replies 'Unfortunately, yes.'

Lance A. Ito

After Wacks cannot pin down the January date and wanders toward the Super Bowl, Ito interjects: 'Counsel, we have narrowed it down to January. Is there really a precise date that is necessary?'

Johnnie Cochran

On Wacks refusing to speak with defense before testifying, Cochran quips 'It wasn't personal I'm sure,' and Wacks agrees.

Credibility Attacks (1)

⚔ Philip Vannatter

Prior inconsistent statement / admission against interest via third-party witness

Wacks's testimony is used to establish that Vannatter told a government informant the detectives went to Rockingham because Simpson was a suspect — contradicting the prosecution's welfare-check narrative used to justify the warrantless entry.

Witness Demeanor

(No audible response.) — Wacks goes silent when asked to confirm he heard Vannatter make a statement, requiring Cochran to demand a yes or no.

Objections

11 objections (7 sustained, 3 overruled)

Proceeding 7750 • 205 utterances • Defense witness

Criminal Trial

Department 103