All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Neufeld, Mr. Scheck. The People are represented by Miss Clark, Mr. Hodgman and Mr. Kelberg. The jury is not present. The record should reflect that earlier this morning the court had a brief chambers conference with counsel off the record as the court wanted to determine the course of our proceedings today. I understand Mr. Shapiro is going to be offering the testimony of Detective Vannatter and I understand that the Prosecution is going to resist calling Detective Vannatter; is that correct?
Good morning, your Honor, and thank you very much. Your Honor, we asked the court to allow us to recall Deputy Philip Vannatter based on newly discovered--
Detective Philip Vannatter, based on newly discovered evidence that was provided to us last Friday by Mr. Hodgman of the District Attorney's office in chambers with your Honor. And that basic information concerns statements that are attributed to Deputy Vannatter made in the presence of at least three people who say they heard the statements and two other people who were present who may or may not have heard those statements. And those statements were made in January and February of this year. The first statement concerns a conversation that took place with Detective Vannatter, Detective Lange, Deputy District Attorney Davidson, Larry Fiato and Craig Fiato. They were meeting in a hotel room going over testimony for presentation on behalf of the witnesses for the District Attorney in a homicide case known as the Christi case.
The last I heard the case is nearing completion. In fact, I believe they resumed on Friday in Judge--it is in Judge Flynn's court.
Let me put it all in context, your Honor. There were two defendants who were convicted last February, not last February, February of this year, I believe, and then one Defendant set for retrial who has just completed the retrial in Judge Flynn's court, almost completed the retrial. I think it is still in litigation.
A conversation allegedly took place in a hotel room where Detective Vannatter was allegedly quoted as saying, by Mr. Larry Fiato, that regarding the O.J. Simpson case "We went over to Rockingham because he was a suspect. The husband is always a suspect." He was interviewed, upon getting that information, in the last week or two, by Mr. Hodgman and Mr. Kelberg, and he made those statements to these members of the District Attorney's office in a tape-recorded interview. He then--
You are saying that Mr. Larry Fiato confirmed the report of that statement having been made back in January or February?
He also said that at a later time, perhaps in February of that year, he was having a cigarette on the 18th floor in an area known as the smoking area, with Detective Vannatter, and at that time Detective Vannatter repeated the same phrase, that O.J. was a suspect and the husband is always a suspect. A--two other people came out during that conversation. One was Craig Fiato who confirms that he heard Detective Vannatter say those words, and the second is Special Agent Wacks from the Federal Bureau of Investigation. They were also interviewed by Mr. Hodgman and by Mr. Kelberg. And in their interviews Mr. Fiato, Mr. Craig Fiato, indicated that he had overheard that conversation and those words come from Detective Vannatter and Agent Wacks. Also says he heard those things come from Detective Vannatter. Finally, the investigator on the homicide case, on the second homicide case, is investigator McLean and he was interviewed and he says that he had a conversation with Special Agent Wacks regarding this same issue. And apparently how this came to the attention of the District Attorney was that Mr. Craig Fiato was working on a special case involving organized crime with a network investigative journalist for ABC and just the next day after he had the conversation a story came out that the Defense was going to call a mystery witness. At that time he thought he was going to be that mystery witness, so he called up the FBI agent who is his handler, who works with him, Agent Wacks, and told him about it. Agent Wacks then reported that to his supervisor and eventually it was reported to the District Attorneys who met in chambers with your Honor outside of our presence, went ahead and did their investigation and have turned over all of that material to us. So the essence of this testimony is that your Honor has already made a finding regarding the credibility of Detective Vannatter on a search warrant that he signed under penalty of perjury, and in that case your Honor has found that Detective Vannatter demonstrated a reckless disregard for the truth in offering testimony under oath for the purpose of securing a search warrant. The jury, however, has not heard nor will they hear that testimony, but the jury is going to have to Judge the credibility and bias of Detective Vannatter, and in--
And in that endeavor the jury now is entitled to know whether or not Detective Vannatter was untruthful to this jury when he said the purpose for going over to the Rockingham estate was to make a notification to Mr. O.J. Simpson and because of the welfare and well-being of the children, that he was a concerned grandfather and he was concerned for the children of O.J. Simpson. We have always questioned that motive, we have questioned it throughout in all of our motions, and he testified before the jury on three direct occasions to questions by the Deputy District Attorney who was questioning him at that time that O.J. Simpson was not a suspect. We have specific quotes that I have given to your Honor. Three specific questions in a row. Are you saying he was not a suspect? Are you sure he was not a suspect? Did you not go there because he was a suspect? Is that correct? I followed up on that line of questioning on cross-examination and asked him that question four times and finally I asked him, "It sounds like you've memorized this answer." So there was no equivocation whatsoever. Further, as an offer of proof, we have Detective Vannatter's testimony before the grand jury under oath in this case, and that testimony was that the reason they went over was because they wanted to make a notification--let's see if I can get--on page 326 of the grand jury testimony. Detective Vannatter testified under oath: "The purpose was to make a death notification and to arrange for the children." And then at the preliminary hearing Detective Vannatter was again asked those questions by Miss Clark and myself. He responded: "We went to O.J.'s to check on his welfare, the next of kin to the children." He goes on to say: "If he was a suspect it could have been a tactical situation, we would have placed officers around the residence to secure this, to secure it, and they obviously didn't, the purpose was to make a death notification and arrange for the children."
All right. Mr. Shapiro, the problem being you are making--you are quoting from various transcripts. I think just for the record purposes you need to identify--
From the grand jury page 326 was the first statement, "The purpose was to make a death notification and arrange for the children." From the preliminary hearing, volume 8, page 35 and 36, they went to O.J.'s residence to check on his welfare. Page 104, about the next of kin to the children. And in volume 9, page 14 and 15, Detective Vannatter talks about that if the suspect--if he was a suspect it would have been a tactical situation and therefore he would have placed officers around the residence to secure it. He didn't do that. Now, to put it in terms of its legal significance, the conversation with Mr. Larry Fiato, the two conversations with Mr. Larry Fiato took place prior to the time that Detective Vannatter testified before this jury and testified in direct contradiction to those statements. So it is a prior inconsistent--prior inconsistent statement that Detective Vannatter is making. The second area that we would like to examine Detective Vannatter on is the code of silence, and this becomes particularly important for several reasons.
First, that in presenting the evidence that I've just talked about to your Honor, both Larry and Craig Fiato talk about the fact that this is going to be discoverable and there is no reason to make a big deal of this and let's just keep it quiet and why is the FBI so worried about it? And if they don't say anything, nothing will happen. But if they do, it is going to become very, very significant. I want to--then Detective Vannatter, on at least three occasions, has talked to witnesses that we have retained that are witnesses who are employed by government agencies and who generally testify for the Prosecution. And we would offer, as an offer of proof, that Mr. Larry Ragle would testify that Detective Vannatter came up to him and criticized him for testifying for the Defense, saying, "You are a cop and cops stick with cops." He gave that same type of view to Dr. Baden and Dr. Wolf, that they were employees of government agencies and how could they come testify against the police in a criminal homicide case. That is the second area we would like to get into. The third area is an area of clarification regarding the finding of the brown glove in the Rockingham residence and that is just a clarification of earlier testimony.
Thank you, your Honor. Mr. Shapiro has the facts somewhat wrong and certainly has the interpretation quite extremely erroneous. No. 1, the circumstances from the Fiatos perspective is as follows: And I'm going to quote Craig Fiato who I think would be accurately characterized as somewhat of a salty figure, so pardon the language. "This is all a bunch of bullshit. What he would talk to this court about is Vannatter was there at the hotel, but Vannatter was not a part of the Christi investigation because Lange had a different partner for the Christi investigation. Vannatter just came along." At some point these guys are just, again to use Craig Fiato's term, just bullshitting, just shooting the breeze, and some statement is made by Vannatter to the effect of Simpson being a suspect, the husband is always a suspect. And it was a nothing statement, it was said in the course of a bunch of guys, quote, "Bullshitting," unquote, like Phil Vannatter is going to lay out the Prosecution's case on O.J. Simpson to Craig and Larry Fiato who are, quote, "Mafioso" type people who have turned government witnesses. Okay. That is the context in which this statement initially is supposedly said. The statement is allegedly said to Larry Fiato and overheard by Craig Fiato. It was of such great significance Mr. Davidson has no recollection of it and Mr. Vannatter says I wouldn't say something like that to the Fiatos, but if I talked in any sense, it could be talking in general terms about homicide investigations or could be talking about, as the court is well aware, allegations have been made against the police throughout this case by the Defense, that the Los Angeles Police Department has done a conspiratorial act to convict an innocent man, and so in response to some kind of comment for Vannatter to say sarcastically, you know, something like, yeah, sure, we went up there, Simpson was a suspect, the husband is always a suspect. The context is not that Vannatter made a statement saying we went up there, Simpson was a suspect. That is not the way it will come out if the court hears from the Fiatos. No. 2 statement on the smoking deck, and it is because as the court is well aware, the rule in the criminal courts building, people who wish to smoke have to do so outside the interior walls of the building and there are areas exposed to the outside where they can go I believe on the 18th floor. The Fiatos are here in February as witnesses in the retrial that Miss Clark correctly identified as the retrial of I think the remaining Defendant from the first trial. And in the course of a smoke break with Larry Fiato out on the smoking area--Craig Fiato is not present for this conversation. He is not a percipient witness to this--Agent Wacks comes into the middle of something and all he hears is a statement from Vannatter to the effect of "We didn't go up there trying to save lives. We went up there because Simpson was a suspect." Now, in our interview, I participated in one interview with Mr. Hodgman of Agent Wacks and there was an earlier interview, I was not a party to it, and I wanted to have a personal opportunity to speak with Agent Wacks and that is why there was a reinterview. Agent Wacks said Vannatter was sarcastic in his tone and perfectly consistent with someone who is saying, yeah, you know, they are accusing us of all these things, sure we went up there not to save lives, sure we went up there because Simpson was a suspect, and these accusations have been made against Vannatter. Now, when you put all of this in context and you remember the immortal words of Craig Fiato to Mr. Hodgman and me at the conclusion of our interview, that everybody was making, again the language of Craig Fiato, a fuckin' big deal out of stuff that was bullshit, what he was pissed off about, his term, was that he made a call--
Thank you. My mother might be watching this so I would like to make at least a decent impression. He called--this is nine months later--he called this man Vic Walters at ABC who apparently is working with him on some possible deal, book, movie, I'm not clear, unrelated to Simpson. It has nothing to do with it. And Mr. Fiato is a little ticked off with Detectives Lange and Vannatter because of what he believes to be comments they made to another person about whether that person should be associating with Craig Fiato. So Mr. Craig Fiato tells Mr. Walters allegedly what Vannatter said and then what he does is he tells Agent Wacks, who is picking these guys up to take them wherever they are going, that he talked to this guy Walters, and Agent Wacks goes--not berserk--that is not an accurate characterization, but he had a definite reaction. And the reason Wacks has told us for this reaction is because after watching this trial and seeing the media coverage and seeing the spins that are put on things and the way that things are taken out of context that are nothing, he was worried that that is exactly what would happen here, exactly what Craig Fiato was concerned about when he told us that this was all a bunch of B.S. that was being taken way out of context from what it was. But Agent Wacks, no code of silence. He reported it to his supervisor, and out of an abundance of caution it was reported to our office. They are not sitting on information.
People want to characterize this as Brady material. Hey, that is for the D.A., the Defense and the court to worry about in Simpson; not our problem. We are turning it over. Let them deal with it. And that is when Mr. Hodgman alerted the court. That is when I was asked with Mr. Hodgman to participate in investigating these materials. We have turned over what we have acquired and what you get down to as a bottom line is the context in which any of these statements was made is certainly not one of seriousness. It is not conveyed as seriousness by the Fiatos. It is not remembered by the participants because it was not a significant statement. If the Fiatos wanted to make something of the O.J. Simpson case, as Craig Fiato said, they could have done a lot better job than just to make this statement, and they are the ones who are saying this is a bunch of b S. We are going to have a trial as to what in fact was said, and more importantly, even if a statement or statements were said, what was the context and meaning? Now with that, if I may have just a moment of silence--a moment to--not a moment of silence. I may need that, too.
Just so it is clear, Mr. Hodgman suggests I point out the original trial with multiple defendants in the Christi case was in February. There was one Defendant on which the jury could not reach a conclusion. That is the retrial in Judge Flynn's court going on right about now. And that is why the Fiatos were out here being picked up by Agent Wacks, where this statement is ultimately heard, because everybody on the 18th floor from all these cases have to wander in some common areas and that is how it was heard. Incidentally, I have to also point out, Craig Fiato would say that he deliberately embellished on what had actually occurred as he is telling this to Wacks to, quote, "Pimp him," unquote, and that at the end of all this Agent Wacks says, "You prick." That is the context of all this, your Honor. Now, how about a little bit of the law before I talk about the code of silence? This is nothing about the code of silence. Let me turn it around. This is nothing about the code of silence. The FBI came forward with information because what Agent Wacks heard initially, with no context provided, but in the sarcasm in which it was said, was obviously nothing of significance to him. That is what he has told us and that is what the evidence would support. And what he then did, when he heard, oh, the media may get this, the media may put a spin on this, is he did report it, so that at least in a bureaucracy of which the court is aware I'm sure the Federal Bureau of Investigation is, our office is and so forth, the supervisors want to know these things, because the last thing they want to do is turn on their TV set at the six o'clock news and hear some story about what one of their employees allegedly heard or said and has become a witness in the, quote, "Case of the century," or it was reported and turned over. There is no code of silence. This is completely irrelevant to establish any aspect of the so-called code of silence. Now, with respect to the law, the simplest case to read, I think the court is well aware of it, is People versus Lavergne, Lavergne, 4 Cal.3D 735, starting at page 742. Just factually, you have a bunch of Defendants who are charged with robberies. One of the Defendants gets a deal and is going to testify at the trial of the others. The first question on cross-examination of the--
So the court knows the fact. The law from page 742, the Defense sought to impeach Oliver, the accomplice, on what the trial Judge correctly noted was a collateral matter. "The fact that the car was stolen had nothing to do with the facts at issue in the trial," et cetera, et cetera. "While collateral matters are admissible for impeachment purposes, the collateral character"--
742, your Honor. "While the"--"While collateral matters are admissible for impeachment purposes, the collateral character of the evidence reduces its probative value and increases the possibility that it may prejudice or confuse the jury." Flipping to page 743: "California courts have in cases similar to this one held the court's exclusion of collateral facts offered for impeachment purposes are a proper exercise of the trial Judge's discretion." And in fact they going to say on page 743 how it appeared that the Defense in the Lavergne case on cross-examination purposely elicited the testimony for the very purposes of impeaching the witness with this collateral information and that that was not appropriate to do in order to allow the impeachment to come in as collateral matter.
No, that is not the circumstance. I just wanted to point out how the court, the Supreme Court has gone to even point out that one cannot deliberately try and create the situation and then argue that now that the situation is there, the party should be allowed to impeach.
But let me ask you this, Mr. Kelberg: The justification for the probable cause to conduct a warrantless search is a pretty significant determination that has to be made, although albeit not in front of the jury.
That is the interesting point. I wasn't down here to conduct the examination of Detective Vannatter. I must also say, from my perspective, I would have objected as irrelevant. As the court is well aware, that you have just stated that issues going to search and seizure are irrelevant for the jury's consideration.
But the initial examination elicited on direct examination giving an explanation for going up to Rockingham was elicited by the Prosecution.
And I understand that and that is why I cite the Lavergne case. I don't think that Miss Clark or Mr. Darden, whoever did the examination, elicited that with the expectation that nine months later we would be down here with the Fiato brothers and everybody talking about it.
But the point is, your Honor, in deciding whether it is a collateral matter or not, the fact that was brought out, but--is not what I think is controlling. What is controlling is its relevancy to the issues before the jury. It is not relevant. The issues are relevant if at all on search and seizure issues. This does not go to code of silence. This does not go to impeach Detective Vannatter on any relevant point. And the important thing is the circumstances of this statement, the clarity of what was actually said is going to be in dispute. It is not clear, from everybody's account, what actually was said. The only thing that is clear from everybody's account is that this was not a serious conversation, this was a bunch of guys at the hotel B.S.'ing and the statement on the smoking deck was nothing more than B.S. and Wacks' interpretation, a statement said in sarcasm, and he only heard the segment. He didn't hear what came before; he didn't hear what came after. May I have just a moment with counsel?
Yes, your Honor. Thank you. As the court has correctly pointed out, these questions were brought out by the District Attorney in their direct examination of Detective Vannatter, and the reason they were brought up is because the District Attorney decided early on that they were going to be very defensive in their presentation of the case, and since we had let them know in opening statements that we were going to be talking about a rush to judgment, this was their way of diffusing a rush to judgment, so they brought that up. The second thing regarding Mr. Craig and Larry Fiato, these two men have been embraced by the United States government, by the Federal Bureau of Investigation, by the United States Department of Justice and by the Los Angeles District Attorney's office. They have been acting as informants. They have been vouched for as informants by all of those people as being credible. They have been acting in that capacity since 1983. They are personally responsible for at least fifty to sixty people being convicted based primarily on their testimony.
When Craig Fiato talks on the tape of this being B.S., he is not talking that Phil Vannatter is not telling the truth. He is saying why is everybody making such a big deal out of this? This is making a mountain out of something less than a molehill. This really is not that important and this is really going to embarrass us. This really puts us in a bad position because now the police, who we depend on for a living, are not going to like us. It is very, very interesting, Detective Vannatter was not a stranger to Mr. Craig Fiato. They had met before and Detective Lange had worked with him before. They had testified previously six months before. They had testified previously, I believe, for them, but at least had worked with them before. And this issue really came up because of Denise Brown. And Craig Fiato told Mr. Kelberg and Mr. Hodgman that he was having an affair with Denise Brown and the District Attorney's office was embarrassed by it and that Mr.--that members of the District Attorney's office called this to Denise Brown's attention, that members of the Los Angeles Police Department called this to Denise Brown's attention, that they were being embarrassed. And this irritated Mr. Craig Fiato because he didn't think that was fair, since he now, and for the last twelve years, has considered himself an integral part of law enforcement, so that is the reason that this issue came up. And what happened was Craig Fiato never told anybody about this because he knew it had great potential damage to the District Attorney's case. And it was only when fortuitously ABC was interviewing him on an organized crime show that at the same time there was speculation of a mystery witness and he thought, oh, my God, ABC must have called up Defense attorney Robert Shapiro and told them about this and therefore they are going to know and embarrass us, so I better turn it over to Special Agent Wacks who took the appropriate position, so that is how it came about. There is no question, based on the interview of Craig Fiato, based on the interview of Larry Fiato, and based on the interview of Special Agent Wacks, that Detective Vannatter on two occasions said he went to O.J. Simpson's house because he was a suspect, the husband is always a suspect. They repeat that consistently. It will be up to the jury to determine what weight to give that testimony, not whether or not it is admissible. Contra to Lavergne, which has been taken and not properly cited to your Honor as authority, Lavergne involved extrinsic impeachment. This is direct impeachment. This is directly contradicting from his own words exactly what was said. And so there is no doubt about it, here are the questions that were initially put to Detective Vannatter before this jury.
I did not read the direct testimony at the trial. I read the testimony--I just said at the trial it was said three times.
Why don't you just give me the page cite. We are talking about specifically volume 109, 19266, correct?
Correct, your Honor, and I have given your Honor twelve pages, if we could mark this as an exhibit and attach it as part of the record.
We are referring to the record that is in existence. We don't need additional paper.
Clearly, clearly this is perhaps the best evidence in this entire case of credibility of a witness, and the theme of the Defense in large part has to do with credibility throughout this case, and if we can demonstrate, as we clearly will be able to, specific and direct impeachment of a lead detective who has testified under oath on three different occasions, that that testimony was not correct, that testimony was untrue, and that the true facts are as probably most people would believe, that four lead detectives did not leave Bundy because they didn't want to investigate a murder scene and they felt it incumbent as good will ambassadors to go notify Mr. O.J. Simpson of the tragedy regarding Nicole Simpson and nobody was left all day to investigate anything and that is why this case is in the posture it is right now, I don't think any clear thinking person could ever believe that. But furthering that, that all four people now went over there and did not consider Mr. Simpson to be a suspect is something that I don't think any trier of fact would find credible. It is essential evidence for the Defense.
No. I've heard the legal argument. Thank you. All right. What we have here is a proffer of a statement by Detective Vannatter alleged to have been made to a Larry Fiato, a Craig Fiato and FBI Special Agent Wacks that appears to be a statement that is inconsistent with his testimony here in court before the jury. As such, it would appear to be a prior inconsistent statement as defined in I believe it is 1235 of the evidence code. I think it is a material issue, the explanation for the trip up to Rockingham, and I don't find it to be collateral, and I'm going to allow the Defense to present the inconsistent statements by Detective Vannatter. Having said that, I am going to deny the request to go into Mr. Ragle, Mr.--Dr. Baden and Dr. Wolf, because I find the proffer is not of sufficient weight to go forward into that avenue of inquiry. And on the explanation that there is a clarification question on the brown glove and its location, I will allow that; however, that strikes me as a three-question area. Mr. Shapiro, how do you--in light of the court's ruling, Mr. Shapiro, how do you propose to proceed? Under--
And your Honor, I think the court is aware there was a request, we have representatives--or a representative, I think we lost the second representative from the United States Attorney's office, concerning a protective order dealing with the Fiatos as witnesses. And in the event either one of them is called, I think that order has to be dealt with.
All right. Mr. Shapiro, after Detective Vannatter is recalled, who do you anticipate calling?
Your Honor, depending on his answers, we would anticipate calling Larry Fiato, Craig Fiato, Special Agent Wacks, Deputy District Attorney--again depending on answers--Davidson, Mr. McLean and that would be our testimony.
Please, when you evaluate who you are going to call in what order, my concern is that it will become cumulative quickly.
Yes. I understand that. Your Honor, I have also talked to Mr. Eglash of the United States Attorney's office and we are not going to oppose the protective order.
One last thing, your Honor, for clarification. This is still part of the Defendant's case in chief because there will be rebuttal evidence offered to this aspect of the evidence.
All right. Just--I did not make a ruling on that aspect, but clearly the record supports this as newly discovered evidence, since it was disclosed to the Defense just last week, and since it was not available to the Defense during what would normally be their case in chief, I will deem it as such, meaning the People have the right of rebuttal.
All right. We don't have the jury down, so we will take a ten-minute recess, bring the jury down, and then we will start with Detective Vannatter. All right.
We went over to Rockingham because he was a suspect. The husband is always a suspect.
This is all a bunch of bullshit. What he would talk to this court about is Vannatter was there at the hotel, but Vannatter was not a part of the Christi investigation because Lange had a different partner for the Christi investigation. Vannatter just came along.
I don't think any clear thinking person could ever believe that. But furthering that, that all four people now went over there and did not consider Mr. Simpson to be a suspect is something that I don't think any trier of fact would find credible. It is essential evidence for the Defense.
I think it is a material issue, the explanation for the trip up to Rockingham, and I don't find it to be collateral, and I'm going to allow the Defense to present the inconsistent statements by Detective Vannatter.