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HKS 20 Feb 2007 Part 2
Susan Brown: I mean I understand what you are ruling on the document, but an affidavit should not be coming into evidence
Seidlin: So noted.
Stephen Tunstell: A zerox copy.
Krista Barth: The court is in possession of the original.
ST: Affidavit?
KB: Yes.
ST: Affidavits are admissible now, your Honor?
SB: It clearly hearsay, your Honor.
ST: It’s not Vickie Marshall’s affidavit your Honor. It’s somebody…we don’t even know who they are.
John O’Quinn: I’m going to object. This is an affidavit by someone, whose name hasn’t even been identified, whose signatures have not been identified. It’s total hearsay and it’s worse. It’s not even authenticated.
KB: Your Honor, again….
Seidlin: See you’re just fortunate to have the judge as the trier of fact. You may proceed
KB: Thank you, your Honor.
Seidlin: I’m going to have to make head or tail out of all of this.
KB: I would respectfully request that the… both the documents related to the purchase of the plot, the letter of Anna Nicole Smith and the uh, accompanying affidavit be moved into evidence, your Honor. And your Honor can then determine what weight it gets.
Seidlin: Yes, yes, and you all can attack it. You will on cross.
JO: I know we can attack on cross, but there is a matter of admissibility, we object to it. It’s hearsay. It doesn’t bear Anna Nicole’s signature anywhere, it doesn’t even seemingly bear her name. This document is called a plot and a memorial.
SB: We join them, your Honor, in that objection..
Seidlin: And if you’d had more time, you would have brought these people…
KB: Absolutely, your Honor, we would have brought the banker over from the Bahamas.
Seidlin: She’s hamstrung. How can I visit the sins of time upon her not being able to have her witnesses here.
SB: How do we cross-examine an affidavit? We don’t object to the banker appearing I believe telephonically. How do we cross examine an affidavit?
KB: Your Honor could look to Mr. Stern’s testimony, as he, as her lawyer, is intimately…has his own personal knowledge of how her banking was done.
Seidlin: I’m going to look higher than that.
KB: Certainly your Honor.
Seidlin: You may proceed.
KB: Anna was aware that her son, Daniel, was buried in that plot, is that right?
SB: Your honor I object to counsel testifying.
KB: It’s a question.
SB: Oh, I apologize, I thought it was a statement.
DO: Leading on direction.
SB: Leading.
KB: OK, one attorney at a time, your Honor, please.
JO: It also asks for one person to read another person’s mind. Sheer speculation.
KB: Is that proper evidentiary…..?
Seidlin: I’m going to have you rephrase the question.
KB: Was Anna aware where Daniel was buried.?
HKS: [to O’Quinn] Are you going to object? [to Barth] Yes. yes, Anna Nicole
JO: Objection, hearsay.
Seidlin: I’m going to have to move on.
JO: what he knows as a fact.
Seidlin: Texas, I need to move on. I know a lot of this has problems in terms of….
JO: We are laboring too your Honor, because we haven’t had any discovery, we haven’t had any opportunity to test these statements.
Seidlin: And we knew this going in. We knew the handicaps we had going in. We are all on the same playing field. We all suffer the same handicaps. The record is there forever. I’m going to allow it in.
KB: Thank you, your Honor.
Seidlin: You’re going to have the same problems when you present your case. And you’re going to have the same leeway.
JO: Honestly, when we started this hearing last week, I thought we were here on whether he had standing, to even file the suit. I didn’t know we were going to be in this part of case …..discovery.
Seidlin: Well, I didn’t know where I was until I got in it, myself. But we are here.
JO: Well, since the object of everything is to get to the real truth, we are handicapped by not having any discovery. [unintelligible]
Seidlin: I’ve protected all the attorneys at the beginning. Tell their clients this is what’s happening. I’ve told all the clients, all your parties what handicaps you have. And there is no sense belaboring that.
JO: The fact that you tell us we have handicaps, does not erase them, your Honor. They still exist.
KB: Your Honor, I am unaware of any precedent where the trial court has been overruled in a bench trial for allowing in such evidence. And he did just say that the important thing was to get to the truth.
Seidlin: We are here on a search for the truth. And we will proceed. You may proceed.
KB: What, if anything, did Anna say to you specifically on the subject of Daniel’s burial?
HKS: Well, like I said, it started with an inquiry, where she was telling me to look at places in Los Angeles, to look at Marilynn’s, and to look at places near Marilynn Monroe, and then also to look at places in the Bahamas. So we had numerous discussions and by the time she decided, that when she told me, she said, ‘I’m here, and I want my son to be here, and this is where we are going to be, this is home.’ At that point, um she initially told me that she wanted me to look into mausoleums. So I went down to Lakeview and I looked at mausoleums, and they only had a mausoleum for 2 people, and it would have taken 6 months for 4. So then, she wanted me to look into whether, how secure the ground plots were, and whether bugs could get to the body, because both she and Daniel were afraid of bugs. And once that concern, once I spoke with them and that concern was alleviated then she decided that she wanted, and again this was with pictures. I had pictures that I showed her, so she picked out the two double plots, side by side, uh that Daniel is currently resting in and where she wants to be as well
KB: You said that she worried about Daniel being protected from the bugs, was she still concerned about Daniel’s welfare after he passed away?
HKS: Absolutely. Absolutely.
KB: What did she say to you that made you know that she was worrying about Daniel?
HKS: Just every aspect of how the funeral was planned. She wanted um all of his friends to write notes, anybody who knew him close to write notes to Daniel, she included a picture of herself and Daniel in the casket. Just there were so many things that she did or that she said that showed me how concerned she was for Daniel’s welfare. She wanted Daniel to be comfortable, so he wore an outfit that he had, that was not a suit, because Daniel didn’t really wear suits. Um she put a rosary that was blessed by the Pope in his casket. She she didn’t want to believe that Daniel was dead. Even at the funeral……
KB: Tell me what happened at the funeral.
HKS: She she had real problems accepting that Daniel was gone. She wanted to see him in the casket. So at the beginning, before the ceremony started, she had the people open the casket. And she was just inconsolable and hugging Daniel, and grabbing onto him. And she wanted to go down with Daniel, right then. She said if Daniel has to be buried, I want to be buried with him. And it was um it was a very emotional…..
JO: Objection hearsay that’s part of my running objection.
Seidlin: Yes,
JO: And also it’s not irrelevant.
Seidlin: Yes.
KB: Is your Honor sustaining his objection?
Seidlin: No, I’m just letting him speak.
KB: Oh, OK, thank you. Again goes to state of mind, not the truth of the matter asserted, your Honor. Could you tell me. I’m sorry that you were interrupted. Could you tell me….you said Anna wanted to go with him. What do you th……
HKS: She….both before and after the ceremony, Anna required that the casket be opened. Against um what I thought would have been best. Against what her bodyguard thought would have been best.
Seidlin: How does this help me with relevancy for what I have to do?
KB: Your Honor, to show the intent. That she wanted to be with Daniel when she was alive.
Seidlin: I see.
KB: She wanted to crawl into that that space where he was.
Seidlin: Alright, let’s start to wrap this up. I mean, let’s start to wrap it up, this area.
KB: Um, your Honor, I would just request we have another portion of testimony I’m concerned would go for some period of time.
Seidlin: With who?
KB: With Mr. Stern.
Seidlin: What issues?
KB: Um I would like him to both authenticate and I would like to inquire of him as to some tapes that were done of Anna Nicole discussing um both her relationship with her mother and how the death of Daniel affected her. Out of her own words. And I don’t think there is much better evidence than that.
Seidlin: Tapes that who took?
KB: These tapes were done by various news agencies in interviews with Miss Marshall and Mr. Stern was present during the filming of these. Again I would argue, against any hearsay objection, which I’m sure is coming from behind my left shoulder, that, you know, your Honor certainly, as this is a bench trial, is able to determine the weight and sufficiency of the relevance.
Seidlin: And the foundation? Right?
JO: No foundation and authentification…..
Seidlin: What mental condition was she in when she did them.
JO: What mental condition was she in? And even if it’s authentic if it’s been spliced, diced, you know the news media doesn’t run everything they take a tape of! They edit it like a movie in Hollywood.
Susan Brown: Also if their tapes come in, we have tapes. Does that mean our tapes come in?
Nancy Haas: It’s got to be all or nothing your Honor.
SB: Because if not, we are going to object, and we have tapes too.
Seidlin: It’s going to be all.
Deb Opri: Thank you, your Honor.
JO: If a portion of the tape comes in, I want the entire tape to come in, so nothing is taken out of context, your Honor. Nothing.
Seidlin: Unfortunately, I’m going to make that decision, because time if of the essence. I’m moving ahead.
KB: I do have both Mr. Stern to authenticate but I also have the Independent News Agencies…..
Seidlin: What are you going to …..where are you going to take him now?
KB: Well that’s why I would like to take him through the tapes. Unfortunately, for some reason, this morning in all the chaos the gentleman that I had here, to play this DVD for the court……Ah, who is here.
Unknown voice: DVD?
KB: Yes, who I thought was not here but now he is so….
Deb Opri: Your Honor, it’s very important that the court be aware, that any entertainment show tapes being submitted, we would request that you would subpoena for example, Entertainment Tonight…
KB: They’ve been subpoened..
KB: Your Honor, again as they don’t have standing to this issue, I’m proving intent, they need to disprove intent for the narrow issues at hand, I believe that the very the pieces that you will see will be compelling and if your Honor feels the need to take any additional testimony or see any additional films, he could then make that determination.
JO: Whatever standing they do or don’t have, I certainly have a standing, representing the blood kin of this person we are talking about and we object to a portion of the tape coming in. We want the whole tape.
DO: So joined.
[HKS whispering in KB’s ear]
Seidlin: Besides that, what else do you are you intending to prove out.
SB: Your Honor, can I make a suggestion? Perhaps if you view the out-takes, but view the entire thing in your own office, so that we are not here for the next six months.
Seidlin: I always told you all, I always told everyone here, whatever I see, you see. There is nothing I’m going to see that you don’t see. There’s no mystery. There’s nothing hidden here. You see what I see. I’m going to decide how much of the tape I’m going to watch. But whatever I watch, you’re going to watch. I appreciate your thoughts though.
KB: I would offer to….
Seidlin: Now where do we go beyond the tapes, where are you going to go next?
KB: Beyond the tapes, I would like to just….
Seidlin: You want to bring in the purported will, don’t you?
KB: Yes, your Honor, I do want to bring in the purported will.
Seidlin: Cause I know you’re getting a little tired. You want to bring in the purported will.
KB: You have no idea.
Seidlin: If I let you eat a little lunch, you’re going to remember the purported will. And he’s going to be bringing it in? Through him, you’re going to bring it in?
KB: Yes, your Honor, well I’m going to bring the will in, I’m going to attempt to bring the will in, both through Mr. Stern, through an affidavit of Mr. Lund, who was the attorney that drafted it…
JO: Uh—uh, no.
Seidlin: Relax, Texas.
KB: I did not have the time, your Honor, to have Mr. Lund be here, but if your Honor requires me…...
Seidlin: I don’t want him here. We don’t have time. I don’t have time. I want who’s here now.
JO: Lack of time is no excuse to violate the rules of evidence.
Seidlin: Well, I appreciate you’re reminding me of that, Texas.
JO: She says she went through her case by hearsay or by an affidavit, that is totally foreign to the way things are supposed to be decided, your Honor.
Seidlin: But I’m protecting you, Texas.
JO: I can’t cross an affidavit.
Seidlin: When you get back to Texas, they’re going to remember you, Tex. Let me ask you a question. What do you intend….who do you intend to present, today?
JO: Also, if we could look at this purported will during the lunch hour, it might go faster when we get back.
Seidlin: Alright.
KB: Well, they’ve seen it. It’s the same one?
JO: Do you have a copy of it? The exact one that you’re going to present?
KB: Absolutely. Absolutely. The same copy. There’s only one.
JO: Now, your question, your Honor?
ST: As far as we know there’ only one.
Seidlin: Well, who do you intend to call for your side? Now normally for the parties that are here today, we would know what witnesses. They’d have a witness list
KB: Your Honor, I’m sorry if I mis-spoke. That is all I have with this witness, but I do have several other witnesses.
Seidlin: Who?
KB: I have Maurice Brighthaupt.
Seidlin: Who’s he?
KB: He was her good friend and bodyguard. I have um Troy Hollier.
Seidlin: Who’s he?
KB: Troy Hollier is a completely uninterested party in any of this, and that has known Anna for a very long time. He’s a police officer, I think, above reproach, very important for the court to hear.
Seidlin: Who else?
JO: [under his breath] Above reproach
ST: Police are above reproach?
DO: That’s news to me.
[Barth looks around room, incredulous that they are all making fun of her.]
Seidlin: They’re just, they’re just getting tired.
KB: OK, I um I do have…..[goes over to Ron Rale]
RR: Theresa Larrimore, she’s a friend of Anna’s who lives in the Bahamas, and she has been a part of……
Seidlin: And she’s going to come in here?
RR: That’s correct, and we have Patrik Simpson.
KB: Patrik Simpson, another very close friend of Anna’s. And what’s important about all these witnesses, your Honor, although I believe that all the evidence will be cumulative, I don’t want you to just hear from my client.
Seidlin: No, no I understand.
KB: I want you to hear from lots of people especially people uninterested in knowing where Anna wanted to go.
Seidlin: We will run through them fast. And Texas who do you think you are going to…how many you going to call? Who are you going to call?
JO: Well, we are going to call our client as a witness.
Seidlin: Good. I’d like to hear from her. Who else?
JO: What else happened? Well, it will depend largely on what has happened before we get up there. We haven’t had a deposition of any of these people. We haven’t even seen their written statements.
Seidlin: Milstein? What do you intend to do?
Milstein: Ahhhhh
Seidlin: Just sit back on these two?
Milstein: Basically, yes, your Honor, I might have some cross examination, but
Seidlin: Fine, fine.
Milstein: At this point, [unintelligible] hearing objections because we want to keep moving forward, counsel have been doing that,
Seidlin: And you?
Deb Opri: Larry Birkhead
Seidlin: Yes
DO: Ford Shelly
Seidlin: Yes
DO:Gina Shelly
Seidlin: Yes
DO: And possibly Ben Thompson.
KB: I’m sorry, your Honor, they are actually calling witnesses in our case?
Seidlin: Do you intend to have your client help the court decide where…
Stephen Tunstell: No, your Honor.
KB: No, absolutely he has no standing.
ST: If counsel objects, we will call those folks.
DO: That’s a standing decision, you haven’t made yet, your Honor.
KB: He’s a witness, not a party.
DO: Pending a request for DNA.
ST: The question, excuse me, the question to us was how many witnesses. Now, I don’t represent Mr. Birkhead, but of course, he is a witness to this issue of intent…
Seidlin: I’ll do this. I’ll do this as a compromise. I’ll let Birkhead, if he wants to testify, he can. But that’s it. That’s the……
SB: Can you take him out of turn, your Honor? He’s here from California..
Seidlin: Stay with me, stay with me, you keep…
Larry Birkhead: I have to use the restroom.
Seidlin: Oh, that you can do….go. I want you to stay here, through the proceeding, I want you to stay.
SB: Can you take him after Mr. Stern, however, your Honor?
Seidlin: No, he’s going to stay with us. He’s starting to get real comfortable. [To Stern] And when you do want to get back to the Bahamas? You’re going to stay a little longer, are you?
HKS: Sir, I would like to go back tonight, to be with my baby.
Seidlin: And how about if you spent a little time with me tomorrow? I’ll get you, I’ll get you tomorrow….
HKS: Again, the issue is that we had a break-in at this house. I have security there….
Seidlin: Somebody’s taking care of the baby now?
HKS: Of course, but I’d feel much more comfortable if I were there.
Seidlin: Alright, we’ll think about that. He’s not our captor. But we’ll think about that. All right we’re going to take a break. It’s one o’clock. We’ll see you back at 2:30. Let’s give you a break.