March 18th, 2005 Trial Summary: 1108 Prior Bad Acts Evidence Hearing (No Witnesses Testified), Part 1 of 2
Judge Melville excused the jury from having to appear in court today, as the day was set aside to allow the prosecution and defense to make their case for the admission and exclusion, respectively, of California Evidence Code §1108: Prior Bad Acts evidence. It is defined as follows:
(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.
(b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered in compliance with the provisions of Section 1054.7 of the Penal Code.
(c) This section shall not be construed to limit the admission or consideration of evidence under any other section of this code.
(d) As used in this section, the following definitions shall apply:
(1) “Sexual offense” means a crime under the law of a state or of the United States that involved any of the following:
(A) Any conduct proscribed by Section 243.4, 261, 261.5, 262, 264.1, 266c, 269, 286, 288, 288a, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of Section 311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6, of the Penal Code.
(B) Any conduct proscribed by Section 220 of the Penal Code, except assault with intent to commit mayhem.
(C) Contact, without consent, between any part of the defendant’s body or an object and the genitals or anus of another person.
(D) Contact, without consent, between the genitals or anus of the defendant and any part of another person’s body.
(E) Deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person.
(F) An attempt or conspiracy to engage in conduct described in this paragraph.
(2) “Consent” shall have the same meaning as provided in Section 261.6 of the Penal Code, except that it does not include consent which is legally ineffective because of the age, mental disorder, or developmental or physical disability of the victim.
Sneddon began his statement by explaining how he would incorporate the 1108 evidence into the current case:
1 I believe that we have at this point
2 established sufficient information before this Court
3 and before this jury to now go forward with the 1108
4 hearing. We would indicate to the Court that this
5 would be the appropriate time.
6 I’m not suggesting that the Court — we
7 recess the trial at this moment. I want to make
8 that clear. And I think I did in my moving papers.
9 That we intend to move forward with probably
10 evidence through — my guess is, if not through
11 Thursday, probably into Friday of next week, based
12 on the lineup that we have. We’ll finish those
13 parts of the case that are relevant to the
14 allegations set forth against Mr. Jackson in all
15 counts except for Count 1.
16 At that point, we will then be transitioning
17 into that part of the case that deals with the
18 conspiracy count. It seems to me that it is not
19 only right and proper, but logical for the jury that
20 this would be the appropriate time for us to be able
21 to put on the 1108 evidence insofar as it relates
22 and bears on the testimony of the credibility and
23 the actions of the defendant in this case. And so
24 we would request that at that point in time, that we
25 then take up the 1108 hearings.
26 So unless the Court has any further
27 questions, that’s why we filed the motion now.
28 I wanted to give the Court sufficient heads-up about 2712
1 it for scheduling for the jury, as well as the fact
2 that we’ll need to bring people in from out of
3 county, and out of state in some instances, so we
4 need some lead time for that. And clearly that
5 whatever decision the Court makes, we would have
6 enough lead time for that. If we started next
7 Friday, we could begin, and we’d be ready to begin.
8 And if it was the following Monday — but you get
9 the picture. It’s at the point where we finish most
10 of the testimony relevant to the charges against Mr.
11 Jackson on the molestation.
Jackson’s attorney Robert Sanger issued the following response:
20 MR. SANGER: The timing of the motion, we
21 want to have adequate time to have the motion heard
22 and be prepared for it. I don’t concede at this
23 point, by any means, that there’s been a showing
24 sufficient for the Court to go ahead and make a
25 ruling right now. And if the Court were to make a
26 ruling right now, I think it would be to deny the
28 But having said all of that, the People I 2713
1 think are saying that they feel that they’re going
2 to be in their strongest position to make their 1108
3 motion by the end of next week, and I don’t see any
4 reason why we can’t schedule a date to do that.
5 We have two issues: One is whether or not
6 they have presented sufficient credible evidence of
7 the sexual offense crimes. And then the second
8 issue, which would be taken up in the actual motion,
9 would be what kind of evidence would come in, and
10 whether or not the kind of evidence that’s proffered
11 is going to be — is going to have sufficient
12 probative value to outweigh the prejudicial effect
13 and consumption of time, and so on.
14 Having said that, if that’s the Court’s
15 understanding, I think we’re talking about just
16 picking a date now. And I don’t see any problem
17 with picking a date — you know, a week from Monday,
18 for instance, would seem to be a good time.
Judge Melville then stated that he thought about a previous request by Mesereau in which he wanted to attack the credibility of the 1108 witnesses in front of the jury, and Judge Melville didn’t know if he should allow that, or if he alone should hear arguments about the credibility of the evidence outside the presence of the jury. He referred to a court case titled “Vorse v. Sarasy”, a 1997 case where it was ruled that the court is not to make credibility issue determinations. After reviewing that case, Judge Melville decided that it may not be proper of him as a judge to make rulings on the credibility of the 1108 witnesses, but instead he should only decide on their admissibility:
22 THE COURT: All right. Here’s my question
23 to both sides. Mr. Mesereau got me thinking about
24 this from a request that he made earlier.
25 And the issue — I guess the question is,
26 should the Court hear the evidence outside the
27 presence of the jury, or should I just hear
28 arguments on the evidence, as represented to the 2714
1 Court that it will be, as to whether or not the 1108
2 evidence should come in.
3 And the thing that got me thinking about it
4 was that Mr. Mesereau had suggested that they be
5 allowed to put on testimony to attack, as I
6 understood what he was saying, the credibility of
7 the witnesses that would be called under the 1108,
8 so that the Court could make a determination, I
9 think, based on credibility, as to whether or not
10 the Court would allow the witnesses to be called.
11 And that was a unique suggestion to me,
12 because I’ve had a lot of hearings under Evidence
13 Code 401, 402, 403, preliminary fact, and I don’t
14 recall that — I laugh because there’s a lot of
15 things I don’t recall, but I don’t recall ever
16 having that evidence put in at a 402 hearing.
17 So, having that dilemma and working on it,
18 one of the cases that we found was Vorse v. Sarasy,
19 S-a-r-a-s-y, “Vorse” being V-o-r-s-e, 53 Cal.App.4th
20 998. It’s a 1997 case. And it suggests that the
21 Court is not to make credibility issue
22 determinations. That — you know, that my taking of
23 evidence may not be proper on either side on this
24 issue. It may be just that I am to decide whether
25 or not it’s admissible with an analysis of what
26 you’re offering, whether that would, in fact, be
27 1108, and then make the weighing under 352 for all
28 the reasons that 352 has the Court make those — 2715
1 weighing those issues.
2 It’s interesting that the Vorse case cites
3 another case, People v. Jackson. No relationship.
4 But you can pick that citation out of the Vorse
6 So I’m willing to let either of you respond
7 to that at this time.
Sneddon responded to Judge Melville by stating that the evidence code gives judges the discretion to decide the course of action that he feels is correct, regarding the admissibility of the 1108 witnesses.(Obviously, since he knew that his buddy Judge Melville would rule in his favor that the 1108 witnesses were admissible!) But regarding the credibility issues of those witnesses, Sneddon argued that the jury should decide their credibility (which they surely did with their 14 “Not Guilty” verdicts!)
17 Judge, I think the simple answer to this is
18 the Evidence Code provides your discretion to do it
19 either way you feel comfortable with it.
20 I think that the issue on the credibility —
21 let me make sure I’m talking about precisely what
22 the Court asked. In terms of whether you wanted to
23 have a 403 hearing outside the presence of the jury
24 that did not involve the issues of credibility –
25 okay. —
26 THE COURT: Right.
27 MR. SNEDDON: — or whether you wanted to do
28 it on the offers of proof, I believe that the 2716
1 Evidence Code clearly provides that you have the
2 discretion to do that whichever way you want to do
3 it. So, that’s your decision, and….
4 But with regard to the credibility issue, I
5 believe we cited the Jackson case to you in earlier
6 motions. We were aware of that. And not only in
7 connection with the 1108 hearing, but in connection
8 with some of the other pre-trial hearings that
9 involved witnesses’ statements, that we brought that
10 case to the Court’s attention. If not that one,
11 certainly there’s another one that we did.
12 So we were certainly aware of the fact that
13 we believe that the credibility issues are those for
14 the ultimate trier of fact, which is the jury.
15 So I would say to the Court that we are
16 prepared to accommodate the Court in either way in
17 which you would like to do it. Obviously the most
18 efficient would be for you simply — and with the
19 ability of the defense to file, as you suggested to
20 Mr. Mesereau I think a couple of days ago, their
21 pro-offered — although I don’t know, since you
22 can’t weigh the credibility, what effect that could
23 have on you. But in any case, we’re prepared to do
24 it either way that the Court wants.
25 And I frankly think that, given the way that
26 this case is going, that probably the best case is
27 simply to put these people on. And we’ll put them
28 on on direct and they put them on on cross and we 2717
1 keep the trial moving in front of the jury. But, of
2 course, as always, we’ll do what the Court suggests.
3 That would be my recommendation.
4 And I do not believe the credibility issues,
5 as you cited the case, are something that is really
6 an issue in the 403 hearing.
In his response to Sneddon’s argument, Robert Sanger gave an example of a hypothetical witness who made several prior inconsistent statements on television and eventually in a sworn deposition. In reality, this “hypothetical” witness was Blanca Francia, the mother of Jason Francia, and a former maid at Neverland who was fired in 1991 for theft and other disciplinary issues. (You can read a summary of Blanca’s testimony here, and a summary of Jason’s testimony here.) Sanger argued that the court has to meet a threshold level of credibility by using a three prong approach: the weighing of probative vs. prejudicial value of the witness, undue consumption of time, and confusion of the jury (Sanger argued that, using his “hypothetical” witness in a possible scenario, that testimony would be prejudicial.) Also, pay attention to Sanger’s statement that the defense is not only entitled to, but OBLIGATED to defend Jackson against the 1108 witnesses as if they were a separate case:
13 MR. SANGER: But just in general, it is true
14 that the Court’s ruling on a 402-, 403-type hearing
15 for any kind of a determination, and under 1108 as
16 well, is whether or not – there is a threshold – the
17 threshold has been met. And the threshold doesn’t
18 involve the determination of credibility in the
19 sense that the Court is saying, “Well, you know, I
20 just don’t really believe these witnesses, so I’m
21 not going to let the jury hear it,” and usurping the
22 jury’s function, the ultimate function. But there
23 still is a threshold level where credibility is one
24 of the issues that the Court is taking into account,
25 and the Court’s taking it into account under 352.
26 For instance, let’s take an example, just a
27 hypothetical example. Let’s assume that one of the
28 witnesses, a key witness that’s proffered by the 2718
1 prosecution under 1108, is a witness who is going to
2 say that she saw various things that were
3 circumstantial evidence of some kind of activity,
4 and that’s their main witness. Let’s just assume
5 this. I don’t want to argue about the facts of this
6 case, but let’s assume that that’s the case. And it
7 turns out that that witness made several prior
8 inconsistent statements on television and eventually
9 in a sworn deposition.
10 It’s not so much a weighing of credibility.
11 It’s not usurping the function of the jury to hear
12 that evidence. But I think the Court would want to
13 hear that evidence, because under the three prongs
14 of 352, number one, you’re looking to see whether or
15 not the evidence is so inflammatory that it’s going
16 to be prejudicial to the defendant such that the
17 probative value is outweighed by the prejudicial
19 Well, you have to figure out what the
20 probative value is going to be before you can
21 determine whether the prejudicial effect is going to
22 outweigh it.
23 And so therefore, you have to say, “Well,
24 look, we’ve got a witness,” for instance, “who made
25 a number of prior inconsistent statements on
26 television, for money, and eventually under an oath
27 in a deposition, and now this witness is being
28 offered up.” The prejudicial effect of just having 2719
1 this person come and say things may, in fact, be
2 quite substantial in the Court’s mind when it’s
3 heard the evidence.
4 And on the other hand, the probative value
5 the Court would have to find is probably fairly
6 minimal, given the scenario I just gave.
7 It would also go to the question the Court
8 has to address, the second problem, which is undue
9 consumption of time. Are we going to have a hearing
10 about this witness. And taking one of the
11 witnesses, again, hypothetically, are we going to
12 have a hearing that necessarily involves allowing
13 the defense to fully — to fully defend it.
14 As the Court knows, and we’ve cited cases in
15 our main pleadings on this, that we’re entitled, and
16 not only entitled, but we’re required, it’s
17 ineffective assistance of counsel to fail to do a
18 full of defense of 1108 evidence —
19 THE COURT: Right.
20 MR. SANGER: — as if it were an independent
22 THE COURT: Right.
23 MR. SANGER: So we’re not only entitled to,
24 but we’re obligated to. We’re going to have to
25 bring in all of those statements on television, for
26 money, and before a deposition.
27 And I’m saying that in a concise fashion,
28 but Your Honor knows that’s going to take time to 2720
1 bring all that out. So I think the Court has to
2 consider that.
3 And then the third prong of 352 is confusion
4 to the jury — or, I’m sorry, is undue consumption
5 of time. I may have gotten those two confused, but
6 thereby illustrating my point, I suppose.
7 And so to take more time to further
8 illustrate my point, you have confusion of the jury
9 and you have undue consumption of time. And both of
10 those — without restating the point, both of those
11 are determined only after the Court has a full
12 opportunity to figure out what the heck is going to
13 go on in front of the jury.
14 All right. So I think all three prongs —
15 it’s not a matter the Court usurps the function of
16 the jury by determining credibility. It’s a
17 threshold call, like many things are, and
18 particularly things under 352. The Court has to
19 determine how this is going to play out in front of
20 the jury.
21 So you’re not per se determining
22 credibility, but you are saying, look, the
23 credibility is going to be attacked substantially,
24 let us say, after the Court hears the evidence, and
25 therefore the prejudicial effect is going to be
26 great, but there’s a little probative value;
27 therefore, there’s an undue consumption of time; and
28 therefore, there’s the potential for confusing the 2721
2 So I do think that we should be able to
3 present to the Court concisely, but I think with
4 some live testimony, as needed from both sides, the
5 evidence that the jury is going to see. And I think
6 that just submitting it on paper would not
7 adequately address the issue, particularly in a
8 criminal case with the constitutional rights that
9 are involved.
10 Does that answer the Court’s question.
11 THE COURT: Yes. Thank you.
Here are some defense and prosecution pleadings on the admissibility of the 1108 witnesses:
On December 10th, 2004, Sneddon submitted a motion titled “PLAINTIFF’S MOTION FOR ADMISSION OF EVIDENCE OF DEFENDANT’S PRIOR SEXUAL OFFENSES”, in which he argued for the admission of evidence of abuse of the following seven “victims” of Jackson: Jason Francia, Jonathan Spence, Wade Robeson, Brett Barnes, Macaulay Culkin, Jimmy Safechuck, and Jordan Chandler.
On March 25, 2005, just prior to Judge Melville’s ruling allowing the admission of the 1108 witnesses, the defense submitted this motion titled “SUPPLEMENTAL BRIEF IN SUPPORT OF OPPOSITION TO DISTRCT ATTORNEY’S MOTION FOR ADMISSION OF ALLEGED PRIOR OFFENSES”, in which they stated their case for their exclusion, but those efforts would be in vain. I will discuss these motions in further detail later on in the trial.
Moving on to the next issue at hand, the defense became very concerned after they reviewed the Grand Jury transcripts because they noticed that, during the proceedings, Gavin Arvizo was able to handle the adult magazines that he alleged that Jackson showed him, without wearing any gloves! Sneddon wanted to subpoena that grand jury foreman to testify that gloves were worn by Gavin, but for whatever reason the request for Gavin to wear his gloves was not transcribed. Sanger gave an example of how Detective Zelis was instructed to wear gloves, and that instruction was clearly transcribed. Sanger then read from an excerpt of the grand jury transcript where Sneddon asked Gavin to break the seal of a stack of magazines and flip through them. Sanger argued that if someone had been wearing gloves during the handling of this evidence, it would have been noted, but it wasn’t, so therefore Gavin must not have been wearing gloves.
Also, here’s a helpful hint for everyone; whenever you go into a courtroom, MAKE SURE YOU TURN YOUR CELL PHONE OFF!! Sanger realized (embarrassingly!) that his phone was still on, but fortunately this was on his own initiative, and before anyone tried to call him!
25 MR. SANGER: — each one of the points.
26 But what I did want to do is briefly augment
27 it with reference to the grand jury transcript. And
28 we did cite the transcript in our papers in an 2723
1 effort to keep things short. You know, we didn’t
2 quote things at length and make a big deal out of
3 it. We tried to follow the concept that this was a
4 brief and, for a change, make it brief.
5 THE COURT: I appreciate that.
6 MR. SANGER: Okay. But looking at the
7 actual transcripts of the grand jury, our position,
8 as you know, is that if it’s not in the transcript,
9 that’s too bad. The People are there to make their
10 record and they know how to make a record. And
11 we’re not there. There’s nobody there to object.
12 If they wanted to have somebody put on gloves and
13 look at things, they could say, “We’re putting on
14 gloves,” and so on.
15 And, in fact, as the record shows, when you
16 look at the actual transcript of the grand jury, and
17 you look at the testimony of Timothy Sutcliffe, he
18 talks about having gloves on. There’s a question as
19 to whether or not he had gloves on, and he had
20 gloves on at one point when he was handling some
21 moldy — what appeared to be moldy schoolbooks.
22 When it comes to the end of the — of his
23 testimony, and you look at page 1245 — and I have a
24 clean copy. I’m sure the Court has the whole
25 transcript, but I have a clean copy, if it would
27 THE COURT: They’re here. 1245.
28 MR. SANGER: 1245. 2724
1 THE COURT: What volume would that be.
2 MR. SANGER: That’s a good question. I’m
3 sorry, Your Honor, I just have the excerpt here.
4 THE COURT: I can find it. That’s all
6 MR. SANGER: OKAY.
7 THE COURT: Volume 5, I think.
8 1245 did you say.
9 MR. SANGER: Yes, sir, 1245.
10 THE COURT: Yes. Okay.
11 MR. SANGER: Okay. I just realized I didn’t
12 turn my cell phone off, so I’m going to do that real
13 quick. It didn’t ring, but —
14 THE COURT: I’ve done that. It’s been
15 embarrassing. I’ve been sitting in court and my
16 cell phone has gone off, and I have to act like,
17 “Whose cell phone is that.”
18 MR. SANGER: “Get that cell phone.”
19 MR. MESEREAU: Must be Mr. Sneddon, Your
21 THE COURT: Yeah.
22 MR. SANGER: If you look at 1245, this is
23 sort of our smoking gun conversation here. And I
24 know that the prosecution has some other version of
25 it. But starting at line 14 — does the Court have
26 that in front of you.
27 THE COURT: Yes, I do.
28 MR. SANGER: Since you have it in front of 2725
1 you, I’ll just paraphrase and quote from the
2 relevant source. But it’s a grand juror who asked
3 about the black suitcase, which was Item 317. And
4 it was admitted in evidence here as some other
5 exhibit number, which I don’t remember right now,
6 but the black briefcase. And it had all the
7 materials inside. And the picture, you recall, had
8 the magazine on the top that had a date later than
9 the relevant time period.
10 And Mr. Auchincloss asked a question that
11 the grand juror had proposed and said, “Did some —
12 a forensic examination of some pornography in this
13 case” — I’m sorry, “You did some — a forensic
14 examination of some pornography in this case,
16 He says, “Correct.”
17 Now the question is, “Did you find any —
18 did you find any fingerprints on that
19 pornography, usable fingerprints.”
20 Now, that’s not a question asked by a
21 District Attorney who knows that there was no
22 fingerprint analysis done. That’s a question of a
23 District Attorney who is asking a witness, “Well,
24 did you find any fingerprints, usable fingerprints.
25 And the answer is, “Well, we’re doing all
26 this stuff” – I’m paraphrasing – “We used an ALS,”
27 alternate light source. They did a fluorescent
28 check to see if there was any stains, and then they 2726
1 could do DNA, and they found no stains and no DNA.
2 So the question is, “So they haven’t been
3 examined for fingerprints.”
4 “A. No, not at this time.”
5 And then they go on to explain the
6 alternative light source thing.
7 Now, at the end of the grand jury
8 proceeding, there is a — when the jurors are about
9 to deliberate, there’s a part of the transcript
10 where they show Detective, I believe it was Zelis,
11 has been instructed to wear gloves, and, “You’re not
12 to deliberate while he’s in there, but he’s going to
13 take these things out and show them to you.” Okay.
14 So by the end of the grand jury, clearly
15 someone’s wearing gloves and showing the grand
17 Now, that doesn’t — and I’ll represent to
18 the Court, we have a witness from the clerk’s office
19 who says that after the grand jury returned the
20 exhibits, they went through without gloves and they
21 were tabulating and making sure all the pages were
22 there, and they didn’t know there was a problem.
23 But, aside from that, the most important
24 thing here is that if you then go back to page
25 421 — and I’m guessing that would be in Volume 2.
27 THE COURT: Uh-huh.
28 MR. SANGER: I’m sorry, I’ll get the volume 2727
1 number next time I quote the transcript.
2 But if you go to 421, starting at line 23 —
3 I’m sorry, line 25, you have the questioner, one of
4 the district attorneys saying, “Now, I want you
5 to — I broke — we’re going to break the seal on
6 this exhibit.”
7 And they’re talking at this point about the
8 black briefcase.
9 “I’m going to ask you to look very briefly,
10 young man, at the stuff that’s in there. All
11 right. Take a look at the stuff.
12 “Now, there’s some magazines, correct.
14 “Then there’s some sheets that are
15 individual and not in magazines as if they’ve
16 been torn out, correct.
18 “Now, can you tell me whether or not that
19 was the kind of materials that was in the
20 suitcase that was shown to you.
21 “A. Yes, that was the kind of materials.
22 “Q. Does that look like some of the stuff
23 that was shown to you.
25 And it goes on beyond that.
26 The point is, if — realistically, if this
27 was a point in the proceedings where somebody was
28 wearing gloves and saying, “Don’t touch it, I’m 2728
1 going to show it to you,” that would be on the
3 What’s on the record is, “We’re breaking the
4 seal. We’re opening it. Now, young man, look at
6 And as you saw from the exhibit, the
7 photograph, the way it was seized and the way it was
8 sealed, all these things are stacked up. So the
9 only way to see if there’s other magazines and to
10 see if there’s separate pages is for somebody to
11 look through them, for a person to look through
12 them. There’s no evidence that the District
13 Attorney is looking through them. There’s no
14 evidence anybody put on gloves.
15 And so the clear record on this appears to
16 be that the District Attorney at that time,
17 remembering this occurred on 3-30, and the Sutcliffe
18 occurred on 4-8. In other words, it wasn’t until
19 4-8, it appears, that somebody said, “You mean you
20 didn’t even look for fingerprints. We knew you
21 didn’t get any usable prints, but you didn’t look
22 for them.” And then they go in and make a big deal
23 about gloves in the deliberations.
24 So on 3-30, when they’re showing it to Gavin
25 Arvizo, it looks, to me, from the record, pretty
26 clearly that nobody was wearing gloves, and there
27 was no effort to do anything to avoid contaminating
28 this evidence by the fingerprints of Gavin Arvizo. 2729
1 Okay. So, having said that, that’s our
3 Now, does that give the District Attorney
4 the right to call a grand juror. And we take the
5 position, no, because the code says you can only
6 call them with regard to testimony. And as we
7 pointed out, that’s pretty much obsolete these days
8 because the recent case law — I cited Cummiskey,
9 but I believe there’s other ones, like Moucharaub
10 also talked about it. The courts have said we’re
11 entitled to a full transcript of the testimony, so
12 it should pretty much negate the need to call in a
13 grand juror. There may be other ways to do it. A
14 District Attorney could take the stand and say what
15 he wants to say.
16 But we have the further problem that we were
17 given the name of the foreperson of the grand jury
18 for the first time two days ago. No address, no
19 phone number.
20 The prosecutor had a proceeding in which
21 they had full access to these people. They know all
22 their names. We’ve never been allowed to know their
23 names. There was an objection when we asked to get
24 their names. The Court ordered that numbers be used
25 instead of names. That was done in the transcripts.
26 They come up and say, “Well, here, we have a name.
27 No statement. Except we’re going to tell you this
28 witness is going to come and say we did everything 2730
2 Furthermore, there were 18 other grand
3 jurors there. We’ve never been given their names.
4 We have no ability to interview them. So we have
5 that major problem with calling grand jurors.
6 And do we really think it’s appropriate to
7 disclose all the names of all the grand jurors and
8 have them all interviewed with regard to whether
9 there were gloves or not, or whatever, about
10 something in the middle of the process.
11 And that leads me backwards to the first
12 point I made – or the first or second in writing –
13 and I’ll conclude with this – is that this whole
14 thing, even if the Court were to say, “Well, okay,
15 we’ll even the playing field. We’ll give you all
16 the names and addresses and phone numbers. You can
17 have your investigators go talk to all of them, and
18 then you all can call in competing grand jurors,”
20 Even if we did that, and even if that
21 survived a 352 analysis on consumption of time and
22 undue confusion to the jury, the prejudicial effect
23 of bringing in people from a body that made a
24 determination — a quasi-judicial determination
25 under California law and an administrative
26 determination under U.S. Supreme Court precedent, in
27 other words, part of the prosecution, if that — if
28 they’re allowed to do that, that is going be 2731
1 extremely prejudicial, because you’ve got jurors who
2 are trying to hear the case. They’re now listening
3 to a juror who has a vested interest in upholding
4 the process that they went through, the best they
5 could as laypeople, to return an Indictment. That
6 kind of evidence to this jury is going to be — is
7 going to be very prejudicial.
8 THE COURT: You know, the interesting thing
9 in your argument, though, is that, through excellent
10 cross-examining skills, you, the defense, have put
11 into issue whether or not the children touched the
12 magazines during the grand jury proceeding.
13 So at this point, the state of the evidence
14 is most favorable to you that the inference is
15 strong that they must have touched those magazines.
16 Now, having skillfully done that — and this
17 is not meant to be anything but a compliment.
Here is the complete excerpt that Sanger referred to from Gavin’s grand jury testimony from March 30th, 2004:
Q Okay. All right. Let’s — this is Grand Jury Exhibit No. 53. Now, I want you to turn around into the microphone. I’m going to ask you some questions. Do you recognize that exhibit?
Q All right. Where was that suitcase, People’s — Grand Jury Exhibit 53 the first time you saw it?
A It was in Michael Jackson’s room.
Q Which room?
A Well, when you walk in down the hallway, you walk into a second door, you go to the left and there’s like a door that goes to the bathtub. And then there’s a big mirror and sink. And there’s the — there’s a chair there. Like it was like a — like couch chair. And then like there’s a square thing where you put your feet up, and it was the same design as the chair. And like right — there’s a chair right here and that’s where it was. Well, sometimes here and sometimes here, but mainly here.
Q Did you ever see that suitcase opened by Mr. Jackson and shown to you, the contents?
Q How many times?
Q Okay. Where was it the first time?
A First time we walked in there he introduced the suitcase to me. He opened it and showed me a girl that was spreading her legs open.
Q Did you go through the rest of the stuff in the suitcase on the first occasion? Did you look at some of the other stuff in there?
A On the first occasion it was pretty much just like opening stuff. He would like look, and then we — then he’d close it up, put it aside again.
Q So you went through everything in there, but he just showed you and closed it up and put it aside?
Q How many things do you figure were in there?
A A lot of stuff.
Q Where were you the second time that he opened the suitcase and showed you stuff?
A We were up in his bed.
Q Who else was there?
A I don’t know. I don’t know if it was just me and him. I don’t know whether my brother was there or not.
Q Now, the second time when you were up in the bedroom and you opened the case, what did you do?
A He was just showing it to me again.
Q Was it the same material, or were there some different things in there?
A It looked kind of — it looked like there was different stuff.
Q Now, I want you to — I broke — we’re going to break the seal on this exhibit, and I’m going to ask you to look very briefly young man, at the stuff that’s in there, all right. Take a look at the stuff.
Q Now, there’s some magazines, correct?
Q Then there’s some sheets that are individual and not in magazines as if they’ve been torn out, correct?
Q Now, can you tell me whether or not that was the kind of materials that was in the suitcase that was shown you?
A Yes. That was the kind of material.
Q Does that look like some of the stuff that you were shown?
Q With regard to the number of books and items that are in there, does that look like about the amount of things that were in there?
Q And with regard to the things that are depicted, does that look like the kind of depictions that you were shown?
Q Some of the stuff that’s in this suitcase shows male and female individuals in various sexual acts. Were you shown that kind of material by Mr. Jackson?
After paying Sanger a very much deserved compliment on his lawyering skills, Judge Melville offered a scenario that Sanger was unwilling to accept:
26 There’s a couple of possibilities that I see
27 here. One is that you’re only asking — as well as
28 you did, you know, it’s just an inference that they 2733
1 touched. There is no evidence that they touched.
2 We don’t know if they touched or didn’t touch at
3 this point. But the inference is strong by your
4 examination, the defense examination, that they did.
5 There’s a couple of ways we could handle
6 that. One is you could stipulate that they didn’t
7 touch it. That would get rid of any prejudice of
8 calling a grand juror, foreperson of the grand jury
9 to — and any resulting prejudice.
10 You know, I can see from the look on your
11 face, that’s not going to happen.
12 MR. SANGER: Right.
13 THE COURT: But — is that right.
14 MR. SANGER: That’s correct.
15 THE COURT: You’re not willing to stipulate
16 to that.
17 MR. SANGER: We actually believe he touched
18 it. I honestly believe that, for what it’s worth.
After Sanger refused to accept the possibility that Gavin did not handle the evidence, Judge Melville suggested the possibility of calling another witness besides the jury foreperson (such as a sheriff’s deputy) to verify the handling of the magazines:
19 THE COURT: That being the case, the question
20 then becomes, you know, what is a fair way, if there
21 are witnesses in — that saw this.
22 And one of the things that we could do would
23 be to call that witness, but not identify them as a
24 grand juror or foreperson of the grand jury, but
25 simply say they were in the grand jury room and they
26 observed whatever they observed, so that you don’t
27 have the prejudice that you’re so much afraid of,
28 you know, this formidable person being called. 2734
1 What do you think of that.
2 MR. SANGER: Well, I think there’s yet
3 another possibility. So in answer to the Court’s
4 question what I think about that, I think this:
5 Another possibility is there are other people in the
6 grand jury room: The prosecution; I believe there
7 was a police officer there, or a sheriff there most
8 of the time.
9 Did I just hear somebody say no, there
10 wasn’t. I don’t want to waste time talking about it
11 if there wasn’t a police officer in the room at that
13 But that would be a possibility. Certainly
14 the District Attorney, whoever — whichever one or
15 two or three were there at the time, could testify.
16 I would assume if they’re taking the position that
17 something else happened, we’re going to hear that.
18 The third possibility is to allow us to have
19 the names and addresses of all the grand jurors. It
20 seems clear — and the reason I say this — well,
21 there’s the obvious reason, but there’s a more
22 subtle reason as well.
23 It seems clear from the transcript of the
24 grand jury that there was — there were several
25 grand jurors who asked a lot of questions. There
26 was one grand juror, for instance, who was
27 particularly interested in this fingerprint issue.
28 I don’t know who it is, because we only have a 2735
1 number. The prosecution knows who it is, so we’re
2 not on even ground here.
3 But one way to do this would be to allow us
4 to have the names of the grand jurors so that we can
5 adequately investigate this and see what they all
6 have to say.
7 In other words, in response to the Court’s
8 question, I certainly wouldn’t want to stipulate the
9 foreperson can just come up here and not be
10 identified and say, “I was in the room when I saw
11 this,” because that’s just the problem. The
12 foreperson has — and I don’t mean to fault him or
14 THE COURT: I think you made a very good
15 point; that other people may have seen something the
16 foreperson didn’t, or — you know, it’s a good
18 MR. SANGER: But my first position on this,
19 again, is that the government should be, in a way,
20 bound by the transcript, because they’re the ones
21 that are making it. That’s what the Supreme Court
22 has been saying over the last few years. Last, you
23 know, 25, 30 years, it’s been increasingly adamant
24 about the fact that there’s — there’s a record
25 before the grand jury. The prosecution is the only
26 side in there. They’re the only lawyers in there.
27 They have the obligation to make sure that that
28 transcript is complete so it can be reviewed. 2736
1 And if we’re going to have a grand jury
2 process where things can be done in secret, where
3 the defense can’t be there, the accused isn’t there,
4 there’s — there’s not a Judge, if we’re going to do
5 this, the only protection is to make sure that the
6 prosecution makes a complete record. So the — the
7 original position that we’re taking — I’m going
8 full circle on all this.
9 THE COURT: No, I understand.
10 MR. SANGER: — is that when you look at it,
11 the transcript is the transcript. And the inference
12 from the transcript, as I just read it to the Court,
13 is an inference, and the jury should be allowed to
14 hear this testimony or have this read to them.
15 They can consider that along with what other
16 evidence has been put on to determine whether or not
17 the chain of custody on this material was such that
18 when fingerprint analysis was later done after it
19 was released and they allegedly find a fingerprint
20 of Gavin Arvizo, that the jury can say, “Yeah, we’re
21 sure that fingerprint came from February or March of
23 THE COURT: I guess I have — you have an
24 advantage that I don’t have, too. And maybe you can
25 help me. I haven’t heard the evidence on the
26 fingerprint on the magazine or more than one
27 magazine. I don’t know. You know, I know from
28 points and authorities something, but I don’t know 2737
1 the picture. I don’t know if there’s a palm print
2 or a —
3 MR. SANGER: There’s a fingerprint.
4 THE COURT: Just one fingerprint.
5 MR. SANGER: Well, here’s the problem right
6 now. And before we discuss this and go into too
7 much detail, I’m always conscious that whatever
8 we’re going to say is just going to be in the press.
Sanger went on to describe reports that the defense received stating that there had been a series of meetings of the fingerprint forensics personnel who tested the magazines, and they had a lot of second thoughts about their initial findings. Sanger also expressed his feelings about the incredulousness of the fact that the adult magazines sat untouched for over six months, until they were shown to the grand jurors in April 2004, but were not tested for fingerprints until the summer of 2004!
26 MR. SANGER: What has happened very
27 recently, in the last couple, three weeks, is we’ve
28 gotten reports that there have been a meeting of 2738
1 various fingerprint people who have now decided that
2 some of these determinations should be changed.
3 And they go both ways. They go — they
4 go — in the sense that they had a fingerprint they
5 positively identified, they’re saying, “No, we don’t
6 think we can say that.” And then they said, “We’ve
7 found some others that we said were not conclusive
8 and now we think are conclusive.” So we’re in flux
9 on this.
10 But the essence of it is that, if this is
11 true, that Gavin Arvizo had a chance to go through
12 these papers so he could see the sheets and he could
13 see the magazines, and he picked them up to do that,
14 if that’s true, this would be a very significant
15 piece of evidence with regard — this inference that
16 we have is very significant with regard to
17 fingerprints that are done later.
18 And understand, and I’m sure that — and I
19 don’t mean to just offend the government here, but
20 it is —
21 THE COURT: Do you mean you intend to offend
22 more than just the government.
23 MR. SANGER: No. Whenever anybody says
24 that, that means we’re really going to offend the
26 But — I really don’t want to be rude, but,
27 I mean, the fact is, if you look at any case that
28 you have in the ordinary course of criminal law, 2739
1 when do you have a situation where something is
2 referred for forensic analysis very shortly — I
3 don’t have the exact dates here, but very shortly
4 after it is seized it’s sent over for forensic
5 analysis – it was seized November 18th, and I think
6 it was sent for forensic analysis in November – and
7 they do their analysis. They do an alternate light
9 And we will show from — we started to get
10 into it, and then the officer wasn’t clear on what
11 317 was. But the officer on the stand wrote a
12 report saying, “Please” — and these were the words:
13 “Please do a fingerprint analysis.” And he sent the
14 material back with the reports saying, “Please do a
15 fingerprint analysis.” And it sat there until March
16 and April of 2004.
17 In March of 2004, now, whatever that is, six
18 months after it was seized, it’s opened, it’s shown
19 to the grand jury, it’s booked into evidence, it’s
20 handled by the clerk.
21 And then sometime in the summer of 2004, it
22 is taken out of the grand jury, and then it’s sent
23 for fingerprint analysis.
24 Now, that isn’t the way it should have gone.
25 And I don’t know if anybody’s going to argue, “This
26 is the way we do things,” but I’ve never seen it. I
27 mean, if there’s going to be fingerprints, you take
28 them before you book it into evidence. 2740
1 THE COURT: Let’s let the District Attorney
3 MR. SANGER: Okay. Thank you.
Here is Zonen’s explanation of why it took so long for the magazines to be fingerprinted, for what it’s worth (which isn’t very much!):
4 MR. ZONEN: After we seized the magazines
5 from Neverland – and there were many, many, many
6 magazines that were seized at that time – there were
7 lengthy discussions about how to handle this, these
8 magazines, and how to process them.
9 It was exactly the opposite of what Mr.
10 Sanger said, that we were suddenly in the middle of
11 the grand jury hearing and we’re embarrassed because
12 somebody thought for the first time to do
14 The reality was quite the opposite of that.
15 The question was, do we proceed with fingerprinting
16 first, or do we proceed with a search for biological
18 The problem is, is that the process that you
19 use for either the search for fingerprinting or the
20 search for biological evidence could have the
21 consequence of negating our ability to find the
22 opposite. Whichever you go first with could have
23 the problem of destroying the evidence as to the
18 There were 19 prints that we were able to
19 identify as belonging to the victims and to — to
20 Star and to Gavin, and to the defendant. At the
21 moment, I can’t tell you over how many magazines.
22 I don’t have that information right in front of us.
23 Counsel was wrong, of course. There are no
24 police officers who are in the grand jury room
25 unless they’re giving testimony. The rules are
26 different from a regular court. We’re not entitled
27 to have an investigating officer present.
28 So when counsel asked Detective Zelis, 2742
1 “Isn’t it true you handed those magazines to Gavin
2 Arvizo.” the answer is, he wasn’t in the room when
3 Gavin Arvizo was on the witness stand. We’re not
4 allowed to do that.
5 The only time that we had an officer in the
6 room with the evidence was at the time that the
7 jurors were allowed to view the actual magazines.
8 And that was Detective Zelis. And he — he was the
9 one who handled the magazines and showed them to the
10 jurors. They didn’t touch them. And he, of course,
11 wore gloves, as was consistent with his testimony.
12 During the presentation of evidence of the
13 two boys, yes, we did not put on the record that
14 nobody was going to be touching the magazines,
15 although there’s plenty of references to the fact
16 that we were maintaining strict control,
17 specifically at the time that the jury viewed the
18 material. You’ll see that in the record, that they
19 weren’t allowed to touch the magazines at that time.
20 We have asked the foreperson of the jury to
21 come forward and testify to this, because she was
22 the person sitting closest to the witness. And she
23 was the person responsible for taking control of the
24 proceedings and making sure that the secretary had
25 each of the items and that they were marked
26 appropriately, that the witness is admonished, and
27 of course she was in the best position to be able to
28 see what was going on. 2743
After Zonen finished giving his explanation, Sanger stated to Judge Melville that if Sneddon’s request to subpoena the grand jury foreperson was approved, then the defense would like to have an opportunity to interview the grand juror who openly questioned if the adult magazines had been fingerprinted prior to being handled by Gavin:
6 MR. SANGER: Your Honor, the — let’s put it
7 this way: It may be a multi-stage process. It
8 seems to me that, for whatever reason, the state of
9 the record is the state of the record because it was
10 handled the way it was handled.
11 We didn’t have anything to do with that. We
12 made representations based on our analysis of the
13 grand jury transcript, which we made, I believe,
14 early on as part of the 995, and there’s certainly
15 no secret it was made as a part of Mr. Mesereau’s
16 opening statement. There’s no secret that we had a
17 concern about these items being handled in the grand
18 jury. And I think when Mr. Zonen says there’s no
19 good-faith basis, if you read the transcript, I
20 mean, how much more clear could it be.
21 Now, that’s that part. And I think we’re
22 entitled to go ahead with whatever inference we
24 We strongly disagree with the calling of the
25 foreperson of the grand jury. If the Court is
26 thinking about doing that, we would like to have the
27 opportunity to interview the other witnesses. I
28 think that’s only fair. 2747
1 Particularly, but — not limited to, but
2 particularly the person that asks these questions
3 about fingerprints, because obviously he or she was
4 very concerned.
Here is Mesereau’s motion to oppose the calling of grand jurors as witnesses, aptly titled “OBJECTION TO CALLING OF GRAND JURORS AS WITNESSES”, in which he stated that it would be prejudicial for a grand juror to testify for the prosecution and bolster their weak case, and that the Penal Code does not have a statute that allows for grand jurors to testify at criminal trial, except if it is about the grand jury testimony of a particular witness.
Zonen responded by saying that his preference would be for each grand juror to be interviewed in the presence of both the defense and prosecution, and that their interviews be limited to whether or not Gavin touched the magazines without fingerprints, and nothing else:
5 MR. ZONEN: Our response is that — our
6 preference is that each of the grand jurors be
7 interviewed in the presence of both sides at the
8 same time to avoid needless inconvenience to them
9 and needless intrusion into their time; that there
10 certainly be a protective order that keeps their
11 identity secret and not public; and that there be a
12 restriction on the extent of the examination of the
13 witnesses, and limited only to the issue of whether
14 or not these boys touched the magazines, and not any
15 other issue that may have come up in the 12 days of
16 grand jury testimony.
After a short recess, Zonen instead offered to allow Assistant District Attorney Gordon Auchincloss a chance to testify in lieu of a member of the grand jury, in order to protect the identities of the grand jurors, and Sanger insisted that the defense be allowed to look into Auchincloss’s criminal record to see if he has any prior crimes under his belt! It was a light hearted joke, but in light of the rampant prosecutorial misconduct that was exhibited in this case, that request was more appropriate than anyone would have known at that time!
5 MR. ZONEN: Might I be heard on one matter,
6 as well, before — let me offer one alternative
7 solution to another problem.
8 THE COURT: All right.
9 MR. ZONEN: With regard to the issues of the
10 grand jurors being individually interviewed by all
11 of us, both sides, I assume there’s 19 grand jurors,
12 but there was a court reporter who was present as
13 well, and presumably she’s a witness to that as
15 We would accept the defense’s suggestion to
16 the alternative resolution, based on your call
17 entirely. This would be your choice entirely. But
18 we would offer as an alternative, if the Court’s
19 willing to do so, and we’ll accept it, that one of
20 the three prosecutors present would be made
21 available as a witness in this case in lieu of the
22 grand jury.
23 This is done for purposes of protecting
24 their identity, as we had represented to them we
25 would during the course of those grand jury
26 presentations, and the concern that the Court has
27 about keeping this matter moving. We’re talking
28 about 20 potential witnesses. 2761
1 So we would offer that as an alternative, if
2 that’s acceptable to the defense, and if that’s
3 acceptable to the Court. And the Court would make
4 the determination as to whether you prefer to do it
5 that way or prefer to proceed by way of interview of
6 each of the 19 grand jurors, and the court reporter
7 as well.
8 MR. SANGER: May I have just a second.
9 (Off-the-record discussion held at counsel
11 MR. SANGER: Okay. I think that — I
12 understand that the District Attorney is saying they
13 would pick one of the people. I don’t know that all
14 three of them were in the room at all times, but
15 they would pick one of the three of them to testify.
16 We’ve already heard what they’re going to testify
18 I think that under the circumstances,
19 particularly in light of the fact that there’s that
20 one grand juror that’s asking questions about
21 fingerprints, I just have a feeling it would be
22 appropriate for us to interview the rest of the
23 grand jurors and find out what everybody says
24 happened. And we can still decide, when it’s all
25 done. We may end up with a stipulation with the
26 prosecution once we’ve had a chance to investigate.
27 But I think it’s gone — the ball’s rolled too far
28 in that regard. 2762
1 If the record is — and I’m not arguing with
2 the Court on that. The record is the record. But
3 if we can go behind it, then we should be allowed to
4 talk to the other people in the room.
5 THE COURT: Well, I would — you know, I
6 would consider — this is a difficult problem. It’s
7 not an easy problem. And the grand jury, when they
8 come to serve, you know, expect their identities to
9 be protected and not to be exposed to
10 cross-examination. That’s not something that’s
12 If the prosecution is withdrawing their
13 request to call the grand jury foreperson and
14 intends to try to prove their — the way that —
15 that the records were not touched by the child
16 during the proceedings, then the Court would accept
17 that withdrawal of the request to call the grand
18 jury foreperson. I don’t see any particular
20 Who would be the District Attorney
22 MR. ZONEN: Your Honor, it would probably be
23 Mr. Auchincloss. There were three of us present at
24 the time that the boys testified initially. They
25 were recalled at the end of the proceeding.
26 Mr. Sneddon at the time was involved in a
27 separate trial in Santa Barbara. He was trying the
28 Harms case at the time. He was not present during 2763
1 the second time.
2 But we would — it would be Mr. Auchincloss
3 who would be testifying. He certainly witnessed all
4 the events.
5 MR. SANGER: And so we’ll have Mr.
6 Auchincloss’s statement and his criminal history
7 records and all that so we can evaluate him as a
9 I’m saying that to be funny. I’m sure he
10 doesn’t have a criminal history. But we do want to
11 have a statement of the witness, if they call him as
12 a witness.