Groden Goes to Court
Day Five At the O.J. Simpson Trial

28:30 AM
10 (Jurors resume their respective
11 seats.)
13    THE COURT:  Good morning.
14    JURORS:  Morning.
15    MR. PETROCELLI:  Morning, Your Honor.
16    MR. BAKER:  Morning, Judge.
17    MR. LAMBERT:  Morning, Judge.
18    MR. MEDVENE:  Morning, Your Honor.

[Intervening Testimony Deleted]

 5     previously called as a witness on behalf of the
 6     Plaintiffs, was duly sworn and testified as follows:
 8    THE CLERK:  You've been sworn previously.
 9     You're still under oath.
10  Would you please state your name again
11     for the record.
12    THE WITNESS:  Yes, ma'am.  It's Gerald B.
13     Richards, R-i-c-h-a-r-d-s.
16     BY MR. GELBLUM:
17    Q.    Afternoon, Mr. Richards.
18    A.    Afternoon.
19    Q.    Sir, did you recently have the
20     opportunity to examine certain photographs taken by a
21     gentleman named EJ Flammer on September 26, 1993, in
22     Buffalo, NewYork?
23    A.    Yes, I did.
24    Q.    I've placed before you on the witness
25     stand certain prints.
26  Are those prints of the photographs you
27     examined?
28    MR. GELBLUM:  For the record, those are
 1     Exhibits 2324 through 2353.
 2    A.    It's mixed up here.
 4 (Witness reviews photographs.)
 6    A.    Yes, sir.  Appears to be -- a number of
 7     them appear to be repeated.
 8    Q.    Okay.
 9  What exactly did you examine, sir?
10    A.    I examined the original negatives, proof
11     sheets, or contact sheets, 11 by 14 and 20 by 24
12     enlargements.
13    Q.    Where did you conduct this examination?
14    A.    For most of that material, I conducted
15     the examination in Buffalo, New York.
16    Q.    Did you examine all the negatives of the
17     30 photographs?
18    A.    Yes, I did.
19    Q.    Does that include a negative 7A, the one
20     that was published in November 1993 in the Buffalo
21     Bills weekly?
22    A.    Yes, it did.
23    MR. GELBLUM:  Would you put that one up,
24     please, just to remind the jury what we're talking
25     about.
26    Q.    Did you examine the negative of that
27     print, sir?
28    A.    Yes, sir.  Yes, I did.
 1    Q.    And were you examining the various
 2     materials you just identified, including the
 3     negatives, to determine whether there were any signs
 4     of alteration?
 5    A.    Yes, sir.
 6    Q.    Did you pay particular attention to any
 7     particular part of the negatives?
 8    A.    The image of Mr. Simpson, and in
 9     particular, the lower portion of his body including
10     his pants and shoes.
11    Q.    And what equipment did you use to conduct
12     this examination?
13    A.    I used again a Bausch and Lomb
14     stereomicroscope with a zoom lens system in it, a
15     number of eye loupes varying from 3 to approximately
16     12 power.  I also used a variety of scales, measuring
17     devices.  Again, I also used a variety of lighting
18     sources.
19    Q.    Okay.
20  Was there any equipment that you used
21     when you examined the Scull photograph which you
22     testified to about two days ago here in court, that
23     you did not use this time?
24    A.    The only thing I did not do on these was
25     use a micrometer to determine the thickness of the
26     film.  And it was simply because I forgot to bring the
27     micrometer with me.
28    Q.    Did that affect your examination in any
 1     way, sir?
 2    A.    No, sir, it did not.
 3    Q.    When you testified a few days ago, you
 4     told the jury what you were looking for, the kind of
 5     things you were looking for, you examined the Scull
 6     photograph -- prints and contact sheets, and the kind
 7     of examination you conducted.
 8  Did you do the same thing when you
 9     examined the Flammer negatives and contact sheets and
10     prints?
11    A.    Yes, sir, basically the same procedure.
12    Q.    Okay.
13  At the conclusion of your examination,
14     did you find any signs, whatsoever, of any alteration
15     in any of the Flammer negatives, contact sheets, or
16     prints?
17    A.    No, I could not.
18    Q.    Is it your conclusion there were no signs
19     of alteration in those materials?
20    A.    Yes, sir.
21  Based on my analysis of the negatives,
22     the contact sheets, andthe enlargements that I had
23     made -- actually, I did not say before I had 8 by 10,
24     11 by 14, and 20 by 24 enlargements made for
25     examination purposes, and I could find no discernible
26     evidence of alteration or substitution in any of the
27     photographs involving Mr. Simpson.
28    Q.    And does that conclusion regarding the
 1     Flammer photographs have any bearing, any affect at
 2     all, on your conclusion regarding the Scull photograph
 3     that you testified to a few days ago?
 4    MR. LEONARD:  Your Honor, I'm going to object
 5     to that, beyond the scope based on your earlier ruling
 6     with regard to my cross-examination.
 7    THE COURT:  Well, the scope's been enlarged, I
 8     think.
 9  Overruled.
10    A.    Yes, sir, of course.  That supports it
11     substantially, that we have images and different
12     poses, different situations of an individual having
13     the same identical clothing, including jacket, tie,
14     shirts, pants and shoes.
15  With the absence of any type of
16     suggestion or indication of alteration, it has just
17     substantiated the conclusion I had regarding the Scull
18     photograph.
19    Q.    Thank you, sir.
20    MR. LAMBERT:  I have nothing further.
23     BY MR. LEONARD:
24    Q.    Nice to see you again, Mr. Richards.
25    A.    My pleasure, sir.
26    Q.    Now, did you say that you examined the
27     negative that was purported to be the source for that
28     photograph that was published in the Buffalo Bills
 1     News?
 2    A.    Yes, sir, I did.
 3    Q.    Okay.
 4  You were never provided with the actual
 5     black-and-white print that was utilized for that
 6     photograph, were you?
 7    A.    No, sir, I never was.
 8    Q.    Now, you said that you examined all of
 9     the negatives; is that right?
10    A.    Yes, sir.
11    Q.    Okay.
12  Now, in your career as an FBI agent, you
13     testified earlier that you had been involved in two or
14     three cases a year involving questioned photographs,
15     right?
16    A.    Approximately, yes.
17    Q.    Okay.
18  Would you agree with me, sir, that it
19     would be a very rare occasion that you would have
20     access to what was purported to be the original
21     negatives of questioned photographs when you undertook
22     those examinations at the FBI?
23    A.    Yes, sir, that's true.
24    Q.    Very rare.  Maybe once every two or three
25     years, correct?
26    A.    I'd say it was probably correct, yes.
27    Q.    Now, you aren't testifying to this jury
28     that you are 100 percent certain that these
 1     photographs are fake, are you?
 2    A.    I'm testifying to this jury --
 3    Q.    Can you answer my question yes or no?
 4    A.    I don't know if I can answer that yes or
 5     no correctly.
 6    Q.    Do you remember me asking you that
 7     question in the deposition recently and you answering
 8     that no, you can't say that?
 9  Do you remember that, sir?
10    A.    Yes, I did.
11    Q.    Is that your position now, before this
12     jury, or do you want to change your position?
13    A.    No, I don't want to change my position.
14     But I would like the question restated, if I could,
15     'cause I'm not sure what you mean by it.
16    Q.    You can ask -- Mr. Gelblum can restate it
17     if he needs to.
18  Now, you would agree with me, would you
19     not, that if someone is motivated enough, and has
20     access to the most advanced techniques and technology,
21     they can create a fake photograph that is virtually
22     impossible to detect?
23  Would you agree with that?
24    MR. GELBLUM:  Objection, this was asked and
25     answered the other day, Your Honor.
26    MR. LEONARD:  We're dealing with different
27     photographs.
28    MR. GELBLUM:  Exact question.
 1    THE COURT:  We'll give Mr. Leonard wide
 2     latitude.
 3    A.    I would --
 4    MR. LEONARD:  Thank you.
 5    A.    I would say given enough time, equipment,
 6     money, talent, it would take all four together, and
 7     the concerted effort, yes, sir.
 8    Q.    (BY MR. LEONARD)  They would probably
 9     need to be pretty considerably motivated, wouldn't
10     they, sir?
11    A.    Yes, sir.
12    Q.    Now, you went up to Buffalo, what, on
13     January 7?
14    A.    Yes, sir.
15    Q.    Spent about a total of little less than
16     two hours actually looking at photographs?
17    A.    Little more than that.  About two and a
18     half hours physically looking at the photographs.
19    Q.    And one of the things you were looking
20     for, of course, was this -- as you described before,
21     any evidence of -- of digital manipulation, correct?
22    A.    That's correct.
23    Q.    And in order to do that, you had to look
24     around carefully, microscopically, around the edge of
25     each photograph, each negative, correct?
26    A.    Well, the edge itself is one spot that
27     you look, but the presence of digital manipulation
28     would not necessarily only show up on the edges.
 1    Q.    So my question was, you had to carefully
 2     look around, microscopically, the edge of each
 3     negative, right?
 4    A.    Yes, sir.
 5    Q.    In order to do the evaluation properly?
 6    A.    Yes, sir.
 7    Q.    And you had to look around the edge of
 8     anywhere in the photograph, any particular element in
 9     the photograph that you were particularly interested
10     in, correct?
11    A.    Correct.
12    Q.    And you had to do that carefully, and had
13     to do that microscopically, millimeter by millimeter,
14     correct?
15    A.    Yes, sir.
16    Q.    And it's your testimony that you did that
17     with each and every negative, each and every print, is
18     that right, sir?
19    A.    Each and every negative containing images
20     of Mr. Simpson particularly.
21    Q.    And there were 30 of them?
22    A.    Yes, sir.
23    Q.    And you testified at your deposition that
24     you spent, what, about two minutes on each negative;
25     is that right?
26    A.    Somewhere between two and three minutes,
27     I believe I said.
28    Q.    Now, you've also testified earlier that
 1     this isn't an exact science, what you do?
 2    A.    That's true.
 3    Q.    It involves some subjective judgments,
 4     right?
 5    A.    Yes, sir.
 6    Q.    Some calls about whether or not
 7     phenomenon that you see are indicia of fakery or
 8     otherwise innocent, correct?
 9    A.    That's correct.
10    Q.    Now, you did find some scratches along
11     the photographs or along the negatives that you saw up
12     in Buffalo, correct?
13    A.    Scratches on the negatives themselves.
14    Q.    And also you found what you thought might
15     be continuous scratches along the side of the
16     negatives, correct?
17    A.    No, I found continuous scratches on
18     both -- the bulk of the negatives on the sides and in
19     the center.
20    Q.    Okay.
21  And in the case of the Flammer
22     photographs, sir, unlike the Scull photograph, you
23     were unable to discern or reach a conclusion whether
24     these scratches could have been caused by the camera
25     or by some other mechanism; is that right?
26    A.    Yes, sir.  I did not -- I did not attempt
27     to determine if they were caused by either the camera
28     mechanism or the processing mechanism.  I just
 1     recognize that they were scratches.
 2    Q.    And you also weren't able to match each
 3     scratch with -- in other words, as the scratch
 4     continued along the side, you weren't -- there were
 5     numerous of them, you told me there were many, many,
 6     many, and you were unable to match each of them up.
 7  Remember you testifying to that at the
 8     deposition?
 9    A.    Yes, sir.
10    Q.    Now, this is an area where you had to
11     make a subjective judgment; isn't that true?
12    A.    Yes, sir.
13    Q.    You told me that there are no standards
14     to determine whether or not you can call a scratch
15     continuous, that you just have to match up what you
16     thought was a majority of the scratches.
17  Do you remember that?
18    A.    Yes, sir.
19    Q.    That's something that's subjective,
20     there's nothing -- there's no guidelines we look to,
21     there's no books, there's no nothing that can tell us
22     about that, right?
23    A.    That's correct.
24    Q.    That's just something that you have to
25     decide yourself?
26    A.    Yes, sir.
27    Q.    And that goes for your analysis of many
28     of the phenomenon that we've been talking about, both
 1     with regard to the Flammer photographs and the Scull
 2     photograph, correct?
 3    A.    Yes, sir.
 4    Q.    Now, you had to obtain some of the
 5     materials from a fellow named Rob MacElroy, correct?
 6    A.    That's correct.
 7    Q.    And you had contacted MacElroy on, what,
 8     the 7th of January, or was it the 8th?
 9    A.    I believe -- well, I believe late evening
10     of the 7th he contacted me, also on the 8th, and then
11     I believe also on the 10th and 11th I want to say.
12    Q.    Now, MacElroy told you that he was in New
13     York at the time that he contacted you; is that
14     correct?
15    A.    That's correct.
16    Q.    And he told you that he was there in an
17     attempt to sell the Flammer photographs?
18    MR. GELBLUM:  Objection, hearsay.
19    THE COURT:  Sustained.
20    Q.    (BY MR. LEONARD)  Was it important to
21     you, sir, to try to determine whether or not there
22     was, as you described earlier in your testimony, to
23     have enough motivation -- you described four elements,
24     and one of them was motivation to fake the photograph,
25     right?
26    A.    Yes.
27    Q.    Would you agree with me that making a lot
28     of money from a photograph would be -- could certainly
 1     provide motivation to fake photographs?
 2    MR. GELBLUM:  Objection, argumentative, Your
 3     Honor.
 4    Q.    (BY MR. LEONARD)  Would you agree with
 5     me?
 6    MR. GELBLUM:  Objection.
 7    THE COURT:  Well, you may answer.
 8    A.    That would seem like a logical motive,
 9     yes, sir.
10    Q.    (BY MR. LEONARD)  And MacElroy told you
11     that he was attempting to sell the photographs,
12     correct?
13    A.    Yes.
14    MR. GELBLUM:  Objection, hearsay.
15    THE COURT:  I'll sustain that.
16    MR. GELBLUM:  Move that it be stricken.
17    Q.    (BY MR. LEONARD)  I want you to assume,
18     sir, for purposes of your analysis, the Flammer
19     photographs are being rented, sir, for $12,000 a week,
20     they're being rented to various media outlets.
21  Does that affect your opinion in any way,
22     sir?
23    A.    No, sir.
24    Q.    Does it affect your opinion that they're
25     being -- they're trying to rent that evidence to
26     various news outlets for $18,000?
27    MR. GELBLUM:  Objection.
28    Q.    (BY MR. LEONARD)  For -- till the end of
 1     jury --
 2    MR. GELBLUM:  He's trying to get something in
 3     front of the jury that he can't get in front of
 4     through admissible means.
 5    MR. LEONARD:  I can prove it up.
 6    MR. GELBLUM:  Objection.
 7    MR. PETROCELLI:  Objection.
 8    THE COURT:  How many of you are going to
 9     object?
10    MR. GELBLUM:  I am.
11    THE COURT:  Objection sustained.
12  Mr. Leonard, you want to prove something
13     up, prove it up with evidence.
14    MR. LEONARD:  May we approach?
15    THE COURT:  No.  You are not permitted to prove
16     up matters in this fashion.
17    MR. LEONARD:  I'd like to approach, Your Honor.
18    THE COURT:  No.
19    MR. LEONARD:  I have a document I'd like to
20     show --
21    THE COURT:  Excuse me.  I will not permit you
22     to prove up that fact in that fashion.
23    MR. LEONARD:  Your Honor, you don't know what
24     the document is.
25    THE COURT:  You're not going to prove it up
26     with this witness during this examination.
27    MR. LEONARD:  May we approach, Your Honor?
28    THE COURT:  No.  Now continue your examination.
 1    MR. LEONARD:  I'd like to ask him if this
 2     document would affect his opinion.
 3    MR. PETROCELLI:  He said it wouldn't.
 4    THE COURT:  Continue your examination.
 5    MR. LEONARD:  Your Honor, I have nothing
 6     further based on your ruling.
 7    THE COURT:  All right.  Sit down.
10     BY MR. GELBLUM:
11    Q.    Did you see any sign of alteration in
12     negative 7-A, the one reprinted in the Buffalo Bills
13     Weekly?
14    A.    No, sir, I did not.
15    Q.    Does the fact the negative from that
16     photograph was printed in November, 1993, some eight
17     months before the murders in this case, have any
18     affect in your opinion in terms of motivation?
19    A.    As far as motivation goes, I would think
20     if you were going to alter a photograph, you would
21     definitely want -- not want to have it published ahead
22     of the -- the subjective time that's in question.
23    Q.    Mr. Leonard asked you whether you had
24     access to original negatives frequently before?
25    A.    The answer was no.
26    Q.    Okay.
27  Does having access to the original
28     negatives make your determination more certain or less
 1     certain?
 2    A.    More certain.
 3    Q.    And what do continuous scratches tell you
 4     about the sheet of negatives?
 5    A.    Well, continuous scratches -- the reason
 6     I look for scratches, let's put it this way, the
 7     reason I look for scratches particularly is usually
 8     only in -- for the most part, in cut negatives where
 9     we have negatives that are cut, so I can determine
10     that, in fact, at one time they were contiguous --
11     continuously one negative.
12  But there may be many, many types of
13     scratches.  Some due to camera, some due to the
14     processor, some due to mishandling, sometimes just
15     placing in and out of the enlarger will cause
16     scratches.
17  Some of those won't match up because
18     they've been produced on the negative after the actual
19     cutting has been done.
20  Just as long as the majority of them have
21     been matched up, I can be fairly confident in my own
22     mind this was one negative, all at one time, no one
23     has substituted, let's say a proportion of five images
24     into that group.
25  That's the basic reason we look at the
26     scratches.
27    Q.    Any of those scratches in any way
28     indicative of any alteration in these negatives?
 1    A.    No, sir.
 2    MR. GELBLUM:  Thank you.  I have nothing
 3     further.
 6     BY MR. LEONARD:
 7    Q.    You were asked a question by Mr. Gelblum
 8     about a photograph that was purported to have been
 9     published.
10  You have no idea what the chain of
11     custody of that negative was, do you, sir?
12    A.    No, sir, I don't.
13    Q.    You have no idea who had it and what they
14     did with it, do you?
15    A.    No, sir, I do not.
16    MR. LEONARD:  Thank you.
17    MR. GELBLUM:  Nothing further.
18    THE COURT:  You may step down.
19    THE WITNESS:  Thank you, sir.
MR. LEONARD:  Your Honor, I'd like to approach.
21    THE COURT:  Jurors, you're excused for about
22     ten minutes.  Don't talk about the case; don't form or
23     express any opinions.
25(Jurors exit courtroom.)
27    THE BAILIFF:  Please be quiet in the courtroom.
28     We still are in session.
 1    MR. GELBLUM:  Your Honor, you just want to do
 2     it here?
 3    THE COURT:  Right (indicating to counsel
 4     table.)
 5(The following proceedings were
 6 held in open court outside the
 7 presence of the jury.)
 9    MR. PETROCELLI:  On this issue is the McElroy
10     photographs, I'm just warning you --
11    MR. LEONARD:  Really, Judge Petrocelli.
12    THE COURT:  Will you stop that.
13    MR. LEONARD:  No.  He started it.
14    THE COURT:  Counsel, you want to get in the
15     fact that somebody's renting these pictures out?
16    MR. LEONARD:  Yeah.
17    THE COURT:  Get it in.  But do it by laying
18     proper foundation.  I'm not going to let you put that
19     before the jury based upon cross-examination of an
20     expert who has nothing to do with renting the
21     photographs.  You have somebody to lay foundation for
22     that, put him on.
23    MR. LEONARD:  We just got this document from
24     MacElroy.  We'll bring him in.  We'll have to bring
25     him on Tuesday.
26    THE COURT:  No.  He's not going to come in on
27     Tuesday.
28    MR. LEONARD:  We just got this document.  We
 1     just get these photographs.  It's -- as you know, we
 2     have been complaining all along, and now you're going
 3     to not let me do this.
 4  They were allowed to put the photographs
 5     before they were authenticated in front of my expert
 6     without any notice.
 7  I can't do that with this from MacElroy
 8     about the photographs that he's sending out all over
 9     the country.
10  I don't think that's fair.
11    MR. PETROCELLI:  Are you finished?
12  Couple things, Your Honor.
13  They've known about Rob MacElroy since
14     July 1 when they took the Scull deposition.  At no
15     time did they ever attempt to take any discovery from
16     him and they knew that he was marketing photographs.
17  Secondly --
18    MR. LEONARD:  This --
19    MR. PETROCELLI:  Excuse me.
20  This witness said it makes no difference
21     in his analysis of the authenticity --
22    THE COURT:  Mr. Petrocelli, it doesn't make any
23     difference with regard to this particular witness.
24  It is a relevant piece of evidence, and
25     defense ought to have an opportunity to put it before
26     the jury to show motivation.
27  What it goes to and how much weight it
28     carries, that's for the jury to decide.
 1    MR. PETROCELLI:  I would suggest --
 2    THE COURT:  Now, there's more than one way to
 3     skin a cat, and that doesn't mean you have to bring
 4     in, necessarily, the person who circulated that item.
 5    MR. LEONARD:  Someone who received it, right.
 6    THE COURT:  Why don't you use your lawyerly
 7     skills and find the way to skin that cat.
 8    MR. PETROCELLI:  Your Honor, I just want to
 9     make an objection for the record.  I think this is
10     collateral at this point.  He's already established
11     from Mr. Flammer that the photographs are being sold
12     and --
13    THE COURT:  Counsel --
14    MR. PETROCELLI:  Other photographs not
15     involving Mr. MacElroy, and if we have to go down that
16     route, we're going to have to call somebody in to meet
17     that evidence, Your Honor, and I don't want to have
18     to --
19    THE COURT:  Mr. Petrocelli --
20    MR. PETROCELLI:  -- keep doing this.
21  It has to stop someplace.
22    THE COURT:  Yeah.  I'm going to be the one
23     that's going to stop it.
24    MR. PETROCELLI:  I would hope that it would
25     stop soon.
26    THE COURT:  I'm going to permit him to offer
27     evidence if he can legitimately, under the Evidence
28     Code of --
 1    MR. LEONARD:  Thank you.
 2    THE COURT:  -- this document.
 3    MR. PETROCELLI:  This afternoon?
 4    THE COURT:  Yeah.
 5    MR. LEONARD:  You're going to give me, what,
 6     three hours?
 7    THE COURT:  Mr. Leonard, you use your skills.
11 (The following proceedings were
12 held in open court outside the
13 presence of the jury.)
15    MR. LEONARD:  Can we display our thing?
16    THE COURT:  Yes.
17    MR. PETROCELLI:  No.
18    THE COURT:  You got to display yours.
19  All right.
20  We're back in session.
21 (The following proceedings were
22 held in open court outside the
23 presence of the jury.)
25    THE COURT:  Okay.
26  For the benefit of the audience,
27     Mr. Leonard has been successful in finding a way of
28     skinning the cat, and Mr. Petrocelli and Mr. Kelly and
 1     Mr. Brewer have stipulated that the document may be
 2     received into evidence.
 3    MR. LEONARD:  Thank you.
 4    THE CLERK:  It will be Exhibit 2406.
 5    MR. PETROCELLI:  And I want dinner tonight.
 6    THE COURT:  Okay.  So when the jury comes in.
 7  Jury on its way up.
10 (Jurors resume their respective
11 seats.)
13    MR. LEONARD:  Your Honor, we'd like to publish
14     the document in question to the jury.
15    THE COURT:  You may.
16    MR. LEONARD:  That will be the McCelroy price
17     sheet.
18    THE COURT:  You may.
19    MR. LEONARD:  I'd like to read --
20    THE COURT:  Would you like to mark it?
21    MR. LEONARD:  Oh, I'm sorry.  2406.
22 (The instrument herein referred to
23 as The McElroy price sheet was
24 marked for identification as
25 Defendant's Exhibit No. 2406.)
27    MR. PETROCELLI:  We have no objection to that.
28    THE COURT:  Thank you.
 1    THE CLERK:  It's received?
 2    THE COURT:  Received.
 4 (The instrument previously marked
 5 as Defendants' Exhibit 2406 was
 6 received in evidence.)
 7    MR. LEONARD:  The rates for North American use
 8     of the package of seven Flammer photographs and
 9     information are as follows:
11 (Exhibit 2406 displayed on the
12 Elmo screen.)
13    MR. LEONARD:  Thank you, Your Honor.
15 (Exhibit 2406 removed from the
16 Elmo screen.)
18    MR. MEDVENE:  Agent Bodziak.
19    THE CLERK:  I don't believe it was on record
20     that Exhibit 732 has now been received in evidence.
21    THE COURT:  It's received as redacted.
22    MR. PETROCELLI:  As redacted, Your Honor.
23     Thank you.
24 (The instrument herein referred to
25 as a redacted version of letter
26 from Nicole Brown Simpson to OJ
27 Simpson was received into evidence
28 as Plaintiffs' Exhibit No. 732.)
 1    THE CLERK:  Just have a seat, sir.
 2  You have been sworn.  Briefly, you are
 3     still under her oath.
 4  Would you please state your name for the
 5     record.
 7    THE WITNESS:  William J. Bodziak,
 8     B-o-d-z-i-a-k.
11     called as a witness on behalf of the Plaintiffs in
12     rebuttal, having been previously duly sworn, was
13     examined and testified further as follows:
16     BY MR. MEDVENE:
17    Q.    Agent Bodziak, you were last here a
18     little over a month and a half ago --
19    A.    That's correct.
20    Q.    -- to reintroduce you to the jury, among
21     other things, you're an expert shoe comparison analyst
22     with the FBI?
23    A.    Yes.
24    Q.    You've been doing that work for 20-odd
25     years?
26    A.    Since 1973.
27    Q.    Now, just to get your testimony in
28     context, you previously testified, in your opinion,
 1     that the shoes being worn by Mr. Simpson in the
 2     photograph taken by Mr. Scull, September 26, 1993 --
 3     we're putting up on the easel Exhibit 2061 -- were
 4     Bruno Magli shoes, Lorenzo style; is that correct?
 5    A.    That's correct.
 6 (The instrument herein referred to
 7 as comparison board was marked for
 8 identification as Plaintiffs'
 9 Exhibit No. 2061.)
11    Q.    And previously you explained to the jury
12     why you reached that conclusion?
13    A.    Yes.
14    Q.    I want to place before you now, sir,
15     certain exhibits -- Exhibit 395.
16  And I ask you what that is, sir.
17    A.    This is a size 12 Bruno Magli Lorenzo
18     shoe.
19    Q.    I'm going to place before you eight
20     photographs and ask you to look at the back of each
21     and read the exhibit number, if you would.
22  And while you're looking at those and
23     identifying them, Mr. Foster is going to display those
24     photos on the TV monitor for the jury.
25  These are photos, we'll represent to you,
26     were photos taken by E. J. Flammer on
27     September 26, 1993, at the same game, or prior to the
28     same game where Mr. Scull's photos were taken.
 1  First, you have in front of you what's
 2     been marked 2297; is that correct, sir?
 3    A.    Yes, it is.
 4    Q.    Could you tell the jury what that is?
 5    A.    This is a photograph of Mr. Simpson and
 6     another individual.  It's an 11-by-17-inch copy.  It's
 7     what I examined in the laboratory.  On the back of it,
 8     it says Exhibit 2297, reel 2, number 4.
 9    Q.    The next exhibit, sir, is that 2298?
10    A.    2298.  Yes. sir.
11    Q.    What is that?
12    A.    This is another 11-by-17-inch print
13     depicting a close-up shot, or a crop shot of Exhibit
14     2297, focusing into the shoe and leg area.  And it is
15     from roll 28, number 4.
16    Q.    Same shot as the 2297, only a crop shot
17     of 2297?
18    A.    That's correct.
19    Q.    Would you take a look at the next photo.
20  Is that 2299, sir?
21    A.    Yes, it is.  Exhibit 2299 is a picture of
22     Mr. Simpson on a football field with another
23     individual, from roll number 1, frame 22 -- 24-A.
24    Q.    Is that another photo that you examined
25     at the FBI lab?
26    A.    Yes, it is.
27    Q.    Next, sir, 2300.
28    A.    2300 is a crop shot, an enlarged shot of
 1     the feet from the same picture, 2299, and it is from
 2     roll 1, 24-A.
 3    Q.    The next photo in front of you, sir, is
 4     that 2301?
 5    A.    Yes.  Exhibit 2301 is a picture of
 6     Mr. Simpson with another individual on a football
 7     field, roll 1, number 27-A.
 8  And I also examined this.
 9  An enlarged area from 2301 is represented
10     in the next picture, which is Exhibit 2302.  That's
11     also from roll 1, frame 27-A.
12    Q.    Now, the next photo, sir, doesn't have a
13     number in front of it.  We're going to number it next
14     in order, which I believe is 2407.
15    THE CLERK:  Correct.
16    Q.    (BY MR. MEDVENE)  Would you be good
17     enough to put 2407 on the back of it, sir.
18    A.    (Witness complies.)
19 (The instrument herein referred to
20 as 11-by-17-inch print of five
21 individuals, in addition to
22 Mr. Simpson, on a football field,
23 Marked roll 1, number 78-A, was
24 marked for identification as
25 Plaintiffs' Exhibit No. 2407.)
27    MR. MEDVENE:  Zoom in.
28    Q.    (BY MR. MEDVENE)  Yes, sir?
 1    A.    Exhibit 2407 is an 11-by-17-inch print of
 2     five individuals, in addition to Mr. Simpson, on a
 3     football field.  And on the back it says roll 1,
 4     number 78-A.
 5    Q.    And 2408, sir?
 6    A.    Do you me to mark it?
 7    Q.    Excuse me.  The next photo in order would
 8     be -- next in order would be 2408.
 9  Would you be good enough to mark that.
10    A.    (The witness complies.)
11 (The instrument herein referred to
12 as 11-by-17-inch print of the same
13 frame from roll 1, number 7-A, as
14 Exhibit 2407, but zooming in on
15 the legs and feet of the
16 individuals in the center of that
17 photograph, including Mr. Simpson,
18 was marked for identification as
19 Plaintiffs' Exhibit No. 2408.)
21    Q.    (BY MR. MEDVENE)  Can you tell us what
22     that is?
23    A.    Exhibit 2408 is an 11-by-17-inch print of
24     the same frame from roll 1, number 7-A, as Exhibit
25     2407, but zooming in on the legs and feet of the
26     individuals in the center of that photograph,
27     including Mr. Simpson.
28    Q.    And did you use that, also, in the
 1     analysis that you made?
 2    A.    Yes, I did.
 3    Q.    Were you asked by me, sir, to perform an
 4     examination and an analysis?
 5    A.    Yes, I was.
 6    Q.    What was your understanding of the task
 7     you were to perform?
 8    A.    I was requested to examine the shoes that
 9     Mr. Simpson is wearing as depicted in the eight
10     photographs which I have just described and read the
11     exhibit numbers of, and determine if they were Bruno
12     Magli Lorenzo shoes.
13    Q.    Did you make that examination, sir?
14    A.    Yes, I did.
15    Q.    Did you form an opinion?
16    A.    Yes, I did.
17    Q.    What is that opinion?
18    A.    My opinion is that the shoes depicted in
19     those eight exhibits are Bruno Magli Lorenzo shoes.
20    Q.    What is the basis for your opinion, sir?
21    A.    Do you want me to --
22    Q.    I'd like you to --
23    A.    Can I use this shoe to demonstrate that?
24    Q.    I'd like you, with the Court's
25     permission, to walk down so the jury can more easily
26     see, and use your judgment with regards to any of the
27     photos you want to use, or the shoe itself, in
28     explaining the bases for your opinion.
 1    THE COURT:  Didn't we go through this before?
 2    MR. MEDVENE:  We went through it, Your Honor
 3     with respect to the Scull photograph, and that the
 4     Scull photograph was the Bruno Magli shoe.
 5  Now we're using a different photograph,
 6     the Flammer photograph, and going through the same
 7     analysis, Your Honor.
 8    THE COURT:  Is there some difference between
 9     the two shoes that are in the photographs?
10    MR. PETROCELLI:  No.
11    THE COURT:  Then why are we going through the
12     same motion twice?
13    MR. MEDVENE:  We believe there is not, sir.
14     And if Mr. Simpson's side is willing to agree that
15     Bruno Magli shoes are depicted in the Flammer photos,
16     there will be no need to go through this.
17    MR. LEONARD:  Stipulate.
18    MS. BLUESTEIN:  Stipulate.
19    MR. PETROCELLI:  They stipulate.
20    THE COURT:  Okay.
21    MR. MEDVENE:  So the defense stipulates that
22     the shoes in the Flammer photos are Bruno Magli
23     Lorenzo style shoes, the same shoes that are shown in
24     the Scull photo as being worn by Mr. Simpson?
25    MR. LEONARD:  Same style shoes, Your Honor.
26    THE COURT:  Well, that's kind of an unsafe
27     stipulation.
28  Go ahead.
 1    MR. MEDVENE:  No choice.  We'll go ahead.
 2    Q.    (BY MR. MEDVENE)  Would you be good
 3     enough to come down, and let's go through why, in your
 4     opinion, the shoes depicted in the Flammer photos, in
 5     your opinion, are Bruno Magli Lorenzo-style shoes?
 6    A.    This photo here.
 7    Q.    Any photo you want, you can also --
 8    A.    This is fine.  I can use this.
 9    Q.    Yes, sir.
10    A.    And you're using Exhibit 395?
11    Q.    Yes, sir.
12    THE COURT REPORTER:  The exhibit on the Elmo
13     is?
14    MR. PETROCELLI:  The exhibit on the Elmo is
15     2408.
17 (Plaintiffs' Exhibit 2408
18 displayed on the Elmo screen.)
20    Q.    (BY MR. MEDVENE)  Go ahead, sir.
21    THE WITNESS:  No, bigger (indicating to Elmo).
22  Just a little higher (indicating to
23     Elmo).
25 (Mr. Foster adjusts exhibit
26 displayed on the Elmo screen.)
28    THE WITNESS:  Okay.  That's fine.
 1    A.    Okay.  I examined the shoes depicted in
 2     the eight photographs which I have just described,
 3     which depict shoes on a football field, on
 4     Mr. Simpson.
 5  And using this one to demonstrate, some
 6     of the observations I made to form my conclusion, I
 7     first observed the characteristics of the edge profile
 8     of the sole.
 9  As I had previously testified to, the
10     sole has a lot of contouring, a lot of high and low
11     spots, and it begins with a high ridge, and then a
12     groove, which is a stitching groove.
13  And then after that, there's another high
14     ridge.  This occupies a very small area right up in
15     this area here (indicating).  There's a high spot,
16     then a groove where the stitching is, then another
17     groove.
18  Then there's a much wider area of the
19     shoe which rolls out, contours out; then it goes into
20     another groove.
21  And then below that is another wide area.
22     And that's the area which continues uninterrupted
23     around the bottom of the shoe.
24  In looking at the features of this
25     Exhibit 395 shoe, and the sole in these photographs,
26     these are consistent and are the same in those five
27     regards.
28    Looking also at the curvature of the
 1     sole at this particular point (indicating), and the
 2     angle of the heel, which is trimmed over, so you have
 3     a -- somewhat of an angle, because there's a point cut
 4     off that heel, as opposed to the other side, which is
 5     more than what you see.
 6  I observed these characteristics in these
 7     photographs.
 8  There's also the contouring that you can
 9     see here again, the heel which I had pointed out
10     before in the Scull photographs.  (Indicating.)
11  Looking at the upper of the shoe, you can
12     see various features, such as the seam which runs
13     around the toe area.  And you can see that on Exhibit
14     395.
15  I observed that, as well as the seam here
16     in the front portion of the area, which the lace holes
17     go through.  (Indicating.)  You can see the lace holes
18     here (indicating).  One of those with a light spot
19     reflecting the liner, that's layered under.  You can
20     see the bottom reference point of that area and the
21     back reference point.  So you can see these features
22     of this area of the shoe.
23  Based on these characteristics and the
24     fact that Bruno Magli made these soles -- these soles
25     are uniquely made for them by them exclusively for
26     this shoe, as well as the dyes, which cut out the
27     various shapes and components, which were then
28     stitched together.
 1  The independent construction in one
 2     factory for Bruno Magli of this upper, combined with
 3     the independent design of this contoured sole with
 4     these features, in another factory combined, makes
 5     this unique.
 6    Q.    (BY MR. MEDVENE)  You say in another
 7     factory.  You're saying the soles were made in one
 8     factory and the tops were made in another?
 9    A.    For Bruno Magli, and then assembled
10     together.
11    Q.    Based on your -- you were at the factory,
12     weren't you?
13    A.    Yes.
14  The upper was made at the 4C factory; the
15     sole was made at the Silga factory.  And they were
16     made by Bruno Magli through those factories and
17     assembled in the 4C factory.
18    Q.    As part of your opinion in your
19     investigation, did you make a determination whether
20     the dye used to make the upper was used in any other
21     shoe?
22    A.    I was told these were not.  These were
23     specifically made -- the soles for the bottom of the
24     shoe and the uppers were specifically made for that
25     design and are no longer used.
26    Q.    By each separate factory?
27    A.    Yes, sir.  Yes.
28    MR. MEDVENE:  Thank you.  I have nothing
 1     further.
 2    THE COURT:  Cross-examine.
 5     BY MR. P. BAKER:
 6    Q.    Good afternoon, Mr. Bodziak.
 7    A.    Good afternoon.
 8    Q.    Pleasure to see you again.
 9    A.    Pleasure to see you.
10    Q.    Did you check my taxes when you went back
11     there?
12    A.    I forgot to do that.  I'm sorry.
13    Q.    Hope you forget again.
14  You haven't been paid anything by the
15     plaintiffs' attorneys; is that right?
16    A.    No, I haven't.
17    Q.    Never submitted a bill, correct?
18    A.    No, I haven't.
19    Q.    Is there any standing order in the Bureau
20     that agents are not supposed to testify in this case?
21    A.    I'm not aware of any.
22    Q.    You don't know any reason why
23     Rodger Martz wouldn't be testifying in this case, do
24     you?
25    MR. MEDVENE:  Objection.  Relevance;
26     materiality; outside the scope.
27    THE COURT:  Excuse me.  The Clerk was
28     whispering in my ear.
 2 (The Court reviews realtime
 3 screen.)
 5    THE COURT:  Sustained.
 6    Q.    (BY MR. P. BAKER)  You are friends with
 7     Gerald Richards, aren't you?
 8    A.    I've known him since about 1971, I
 9     believe.
10    Q.    You actually recommended that he work on
11     this case, right?
12    A.    Yes.
13    Q.    You guys had lunch together today?
14    A.    Yes, we did.
15    Q.    Over at the Double Tree, right?
16    A.    Yes, we did.
17    Q.    Okay.
18    A.    Probably like half the courtroom.
19    MR. PETROCELLI:  Including Mr. Baker.
20    Q.    (BY MR. P. BAKER)  Now, after you came to
21     your preliminary conclusions during your work on the
22     criminal case, you are aware an investigation was
23     conducted by the LAPD and FBI to determine whether or
24     not any receipts or sales slips could be found
25     identifying OJ Simpson as a purchaser of Bruno Magli
26     shoes; correct?
27    MR. MEDVENE:  Objection.  Outside the scope;
28     asked and answered, when the agent was previously
 1     here.
 2    THE COURT:  Sustained.
 3    Q.    (BY MR. P. BAKER)  You know there was no
 4     receipt found, right?
 5    MR. MEDVENE:  Same objection.  Counsel knows
 6     it's inappropriate.
 7    THE COURT:  Sustained.
 8    Q.    (BY MR. P. BAKER)  Now, Mr. Bodziak,
 9     you're aware there was an expert designated to testify
10     as the person most knowledgeable of Bruno Magli shoes
11     by the plaintiff?
12    MR. MEDVENE:  Objection.  Outside the scope.
13    THE COURT:  Sustained.
14    MR. MEDVENE:  Lack of relevance.
15    Q.    (BY MR. P. BAKER)  You would agree, would
16     you not, sir, that, as a result of your testimony in
17     the criminal case, that there's a motive -- Strike
18     that.
19  You would agree, would you not, sir,
20     that, if you would doctor a photograph at $18,000 a
21     pop for OJ Simpson, that you'd probably put a Bruno
22     Magli shoe on it, wouldn't you?
23    MR. MEDVENE:  Objection.  Outside the scope.
24    THE COURT:  Sustained.
25  Jury will disregard that question.
26    Q.    (BY MR. P. BAKER)  Were you ever asked do
27     compare the shoes in the Scull photograph to the shoes
28     in the Flammer photograph?
 1    A.    I was never asked to do that.
 2    Q.    Were you ever asked to look at the
 3     newspaper article that appeared in the November 30
 4     issue of Buffalo Bills -- something.
 5    MR. GELBLUM:  Reports.
 6    Q.    (BY MR. P. BAKER)  -- Buffalo Bill
 7     Reports, to determine whether or not those were Bruno
 8     Magli shoes?
 9    A.    No, I was not.
10    Q.    Were you ever provided with a
11     black-and-white still of the photograph that appears
12     in that newspaper report?
13    A.    No, I was not.
14    Q.    You were never asked to determine whether
15     or not the shoes that appeared in either the Scull
16     photos or the Flammer photos were size 12, correct?
17    A.    No.
18    Q.    That's not correct, or that's correct?
19    A.    I was not asked specifically to do that,
20     no.
21    Q.    The photographs you received from the
22     plaintiffs regarding the Flammer photograph were given
23     a Q designation; is that right?
24    A.    That's correct.
25    Q.    What's the Q stand for?
26    A.    Question.
27    MR. P. BAKER:  Nothing further.
 2     BY MR. MEDVENE:
 3    Q.    Counsel asked you about the Scull and the
 4     Flammer photos, and whether you were asked to compare
 5     them.
 6  You've seen, of course, the Scull photos
 7     and the Flammer photos?
 8    A.    Yes, I have.
 9    Q.    Do you have an opinion whether or not
10     those photos have the same characteristics?
11    A.    They do.
12    MR. P. BAKER:  Beyond the scope, in light of
13     his testimony.
14    MR. MEDVENE:  He opened it.
15    THE COURT:  I don't think so.
16  Overruled.
17    THE WITNESS:  May I answer?
18    THE COURT:  Yes, you may.
19    A.    Yes; the characteristics would be what I
20     have described.
21  The characteristics of the sole and
22     upper, and inasmuch as both of them are Lorenzo --
23     Bruno Magli Lorenzo shoes, of course, the
24     characteristics would be the same.
25    Q.    (BY MR. MEDVENE)  Let's step back for a
26     moment and take a section.
27  When you say "characteristics," when you
28     use that language in your report, what that does that
 1     mean?
 2    A.    It means the characteristics that all
 3     shoes of a particular brand and style would share.
 4    Q.    In terms of characteristics, you say they
 5     have the same characteristics, which means what?
 6    A.    The shoes in the Scull photographs and
 7     the Flammer photographs are Bruno Magli Lorenzo shoes,
 8     which are black.
 9    Q.    All right, sir.
10  Next, are there specific characteristics
11     that the shoes share?
12    A.    Yes, there are.
13    Q.    Okay.
14  Could you explain to me what you observed
15     in that regard?
16  Or, let me ask it this way, just to move
17     it along:
18  Did you observe any differences in the
19     specific characteristics that you identified in the
20     Scull photo, from those characteristics you were able
21     to identify in the Flammer photos?
22    A.    No, I didn't observe any differences, or
23     I wouldn't have reached the conclusion I reached.
24    MR. MEDVENE:  All right, sir.  I have nothing
25     further.  Thank you.
26    MR. P. BAKER:  Nothing.
27    MR. LEONARD:  Nothing further.
28    THE COURT:  You may step down.
 1    MR. LEONARD:  Can I approach?
 2    THE COURT:  Wait a minute.
 3  Are you done?
 4    MR. MEDVENE:  Yes, sir.
 5    THE COURT:  Okay.
 6  Ladies and gentlemen, we're going to take
 7     a brief recess.
 8  Don't talk about the case.  Don't form or
 9     express any opinion.
10  You may step down.
15 (Jurors resume their respective
16 seats.)
18    MR. MEDVENE:  If the Court please, we move in
19     Exhibits 2407, 2408.
20    THE COURT:  Received.
22 (The instrument previously marked
23 as Plaintiffs' Exhibit 2407 was
24 received in evidence.)
26 (The instrument previously marked
27 as Plaintiffs' Exhibit 2408 was
28 received in evidence.)
 2    MR. PETROCELLI:  Your Honor, we have a
 3     stipulation with the defense that Exhibit 821 may be
 4     received.  It is a video dated June 28, 1994, about
 5     which there was some prior testimony.  So there's a
 6     stipulation to that effect.
 7    THE COURT:  All right.
11 (The instrument previously marked
12 as Plaintiffs' Exhibit 821 for
13 identification was received in
14 evidence.)
16    MR. PETROCELLI:  All right.
17  And at this point, the plaintiffs' rest
18     their rebuttal case.

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