Larry Birkhead said the prosecutor's remarks outside court before his testimony resumed made him upset, but the judge permitted him to take the stand anyway. Smith's former boyfriend, Howard K. Stern, and two doctors are charged with conspiracy to illegally give controlled substances to the former Playboy Playmate, who died of an accidental overdose in 2007.
Birkhead said Los Angeles County Deputy District Attorney Sarah Slice called him after he testified Friday and suggested he was taking Stern's side in the case.
"I felt the district attorney was frustrated," Birkhead said under questioning by Ellyn Garofalo, the defense lawyer for Dr. Sandeep Kapoor. "She said I should bite my tongue. She then went into a long speech about my daughter, and how there was going to be something wrong with her," Birkhead said.
"She said my daughter is going to be frustrated in learning and I should find something she excels in. She said she had studied the way the brain was made up."
Birkhead said that after he left court, Slice text-messaged him, suggesting he should read to his daughter to help her in her development. Birkhead said he had not noticed any signs of physical or mental disability in the child, 3-year-old Dannielynn Hope.
Garofalo asked Birkhead how he felt about the prosecutor's remarks.
"I didn't banter about it because I felt she had crossed the line about my daughter's health," Birkhead said. "It upset me."
Superior Court Judge Robert Perry asked if Birkhead took this as a negative comment on his testimony. Birkhead replied that he did.
On Monday, as the same prosecutor was escorting him up in the elevator before the hearing resumed, "it was suggested to me it appeared I was taking up for Mr. Stern and Anna couldn't speak for herself," Birkhead said.
He added that Slice said "she probably shouldn't have this conversation" but then remarked that "Anna could not speak for herself and the doctors had exploited her."
Birkhead said he disputed her statement regarding Stern and tried to correct her but then he had to come into court. Birkhead said he tried to talk to the chief prosecutor on the case, Renee Rose, but "she said she would discuss it with me later."
"I said, 'I don't know if these stories were told to get me upset,"' he said.
Birkhead said he felt that he was being encouraged to "ramp it up" when he returned to the stand. The judge asked whether Birkhead was going to be slanting his testimony because of what had been said to him. Birkhead said he would not.
In subsequent examination by Rose, Birkhead acknowledged that shortly after Smith gave birth to their daughter, he filed a paternity suit and included a declaration asking that the child be tested for drugs because of Smith's prescription drug usage.
Birkhead also said that he felt Smith was grief-stricken at the time because of the death of her son, Daniel, and might not be capable of caring for the baby. Birkhead earlier said that Smith took more drugs than he had ever seen anyone take. But he also said she suffered from a wide array of ailments.
By Linda Deutsch