March 18th, 2005 Trial Summary: 1108 Prior Bad Acts Evidence Hearing (No Witnesses Testified), Part 2 of 2
Judge Melville decided to vacate his earlier order about deciding on whether or not to allow the grand jurors to testify in the current trial:
23 THE COURT: That’s fine. That’s what he’s
24 asking for.
25 But I just want to make clear that I’m not
26 bargaining with you. If he wants to call the other
27 two district attorneys that were present, that
28 wasn’t — I’m not bargaining with you. You know, 2764
1 you are offering one for one. That wasn’t what I
2 was suggesting. I was saying if you want to
3 withdraw the calling of the grand jury foreperson
4 and submit yourself, or that you may, and if he
5 wanted to, you know, talk to the other District
6 Attorney that was present, you know, it’s the same
7 problem, isn’t it.
8 But I do think that the correct — you know,
9 I do appreciate and think the right choice is to not
10 call the foreperson and involve the grand jury in
11 this hearing. So I appreciate that.
12 So that being the case, I’ll vacate the
13 order that I was either going to make or did make
14 about interviewing all the grand jurors, and that
15 won’t come into effect unless you — unless we get
16 back to calling a grand juror.
The next issue on hand was the admissibility of Jackson’s financial issues. The prosecution wanted to admit Jackson’s financial records to the court to show that the motivation for him to conspire to hold the Arvizo family hostage and fly them to Brazil was because his finances were in such dire straits in early 2003 that he couldn’t afford to have any more negative publicity by having the family possibly accuse him of improprieties.
Judge Melville ruled against the defense’s motion to quash the prosecution’s request to submit the financial evidence, but he agreed to only limit the period of time that Jackson’s finances could be analyzed by the prosecution. Here is Sneddon’s motion from January 18th, 2005 titled “PLAINTIFF’S MOTION IN LIMINE FOR ADMISSION OF EXPERT TESTIMONY ON DEFENDANT’S FINANCES”.
And here is Mesereau’s reply titled “OPPOSITION TO DISTRICT ATTORNEY’S MOTION IN LIMINE FOR ADMISSION OF EXPERT TESTIMONY ON DEFENDANT’S FINANCES”
22 THE COURT: Then the next item — is it
23 break time yet.
24 The next item —
25 MR. SANGER: No, Your Honor, you have three
27 THE COURT: I’ll use it, too.
28 Motions to quash subpoena duces tecum on the 2755
1 financial issues.
2 This is — this is what I’m going to do
3 here, is I’m going to deny the motion to quash.
4 Did you have something you wanted to say.
5 MR. SANGER: I suppose, but Your Honor’s
6 already indicated you’re going to deny it. I don’t
7 want to argue it if that’s the ruling.
8 THE COURT: We’ve been through this and
9 through this, you know. So what I thought I would
10 do is to deny the motion to quash, limit the period
11 of time. The subpoenas are too broad. We need to
12 address some limitations on the subpoenas. And
13 indicate that I’m not making any ruling on the
14 admissibility of the records at trial, and I’m not
15 releasing them for their experts to examine.
16 This is not a part of the discovery process.
17 This is a subpoena duces tecum for trial. And —
18 but I think they should have the records here to the
19 extent that they might be used in trial.
20 It’s like a lot of other records that have
21 been subpoenaed. They are not necessarily
22 admissible records. That would depend on how they
23 come, what the issue is at the time they’re asked to
24 be introduced, and what the records are.
25 But anyway, that’s my proposed order on
3 THE COURT: The point is, that the — you
4 have subpoenaed the records for trial. That’s
5 legitimate to subpoena the financial records,
6 because I’ve already ruled that the — that under
7 your theory, his general financial statement —
8 “his,” Mr. Jackson’s, general financial statement,
9 can be raised as a motive, as you requested. I
10 agree with you, that that’s appropriate. And I’ve
11 ruled that.
12 I have ruled – if it’s not clear, I’ll make
13 it clear now – that under 352, I am — I do not —
14 I find that the amount of time that would be
15 involved in proving and disproving his true
16 financial worth outweighs the probative value of
17 doing that. And under 352, I’m not going to allow a
18 detail-by-detail examination of Mr. Jackson’s
The next issue on hand was the admissibility of evidence relating to comedian George Lopez, who tried to have his subpoena quashed because he had no personal knowledge of Jackson’s relationship with the Arvizos, he could offer no relevant testimony to either the defense or prosecution regarding their allegations, and he felt that if he testified in the trial, his name would be dragged through the mud and it would hurt the ratings of his sitcom on ABC. His first motion, titled “APPLICATION FOR COURT ORDER THAT GEORGE LOPEZ AND ANN SERRANO LOPEZ’ MOTION TO QUASH SUBPOENAS” was filed on January 19th, 2005.
Lopez filed a second motion on February 18th, 2005 titled “RESPONDENTS GEORGE LOPEZ AND ANN SERRANO LOPEZ REQUEST THAT THIS COURT TAKE JUDICIAL NOTICE OF GEORGE LOPEZ’S AND ANN LOPEZ’S MOTION TO QUASH SUBPOENAS”, which was much more detailed that the first. It included declarations from George and Ann Lopez, and additional background information on the Lopez’s relationship with the Arvizos.
Here is the defense’s reply, titled “NOTICE OF MOTION AND MOTION RE ADMISSIBILITY OF EVIDENCE RELATED TO GEORGE LOPEZ”, in which they argued that Lopez was a witness to the modus operandi of the Arvizos (primarily due to their accusation that he stole money from them, which was an attempt to get him to repay them), and that his testimony is admissible because the Arvizos spoke openly about their relationship with Lopez under direct examination.
Here is Sanger’s statement on the evidence:
12 THE COURT: Let the other side know.
13 Then we have — the next item is the
14 defendant’s motion re admissibility of evidence
15 related to George Lopez.
16 MR. SANGER: Again, we briefed it.
17 I guess the main point that I want to make
18 orally here before the Court is that in a criminal
19 case, the defendant has the constitutional right to
20 confront and cross-examine. And generally, if you
21 have a good-faith belief that something is true,
22 you’re entitled to ask questions on
23 cross-examination to test the recollection and test
24 the credibility of a witness.
25 And I think that the Court’s pre-trial
26 rulings on this were based on information the Court
27 had at the time.
28 But I think it’s very clear at this point 2767
1 that we have a good-faith belief that Gavin Arvizo
2 was involved in this wallet incident with Lopez,
3 with George Lopez. And the prosecution has already
4 raised — in their own testimony on direct, they
5 raised the issue that there was a falling out with
6 George Lopez.
7 I think that just stepping back from the
8 fact that this is the Michael Jackson case and that
9 it’s George Lopez, who is an actor, ordinarily,
10 fine, we’d be able to say, “We’ll just find out what
11 it was about and get to the bottom of it.”
12 And we understand the Court’s ruling. We’ve
13 all tried to abide by it. But it seems to me that
14 at this point there’s more than enough evidence to
15 suggest that we should be allowed to vigorously
16 cross-examine and find out.
17 As you know, from what we have from the
18 various interviews, there is — there is clearly
19 some incident that involved David Arvizo and George
20 Lopez that apparently involve the wallet and the
21 accusation that the $300 was taken out of Gavin’s
22 wallet. So it’s Gavin’s wallet that Gavin claimed
23 he left there and claimed he had $300 in it, which
24 is — David claimed he had $300 in it, which is
25 inherently strange to start with.
26 Secondly, we have information from Louise
27 Palanker that it was Gavin who was brought into it
28 reluctantly by his father to say how much money was 2768
1 in the wallet, and he didn’t say, “No, there was no
2 money in the wallet,” he said, “Oh, I can’t
3 remember, I can’t remember,” based on her version of
5 That is enough of a good-faith belief that
6 there’s something going on here with Gavin
7 specifically that is part of the same pattern that
8 occurs throughout, and we’ve shown that there’s
9 parallel patterns. Once there’s a falling-out,
10 there’s an accusation, and the accusations often
12 What we have at the moment — you know, as
13 defense lawyers, we have to defend. What we have at
14 the moment is we have the prosecution putting the
15 witness on the stand and saying, “Well, was there a
16 falling out with George Lopez.” “Yes, there was,”
17 and we can’t go into it.
18 So I think we have a good-faith basis, and
19 they’ve brought the subject up. Even if they
20 didn’t, I think we could go into it, but they
21 certainly brought the subject up. We should be
22 allowed to freely cross-examine and really test the
23 recollection and the credibility of the witnesses in
24 what is a particularly critical area and an area
25 that even the prosecution felt was warranted to
26 bring up to this jury.
Here is Sneddon’s reply:
27 MR. SNEDDON: Judge, let me — if I could go
28 back and put this in perspective as to the way I 2769
1 recall this issue coming up.
2 I recall being part of a discussion with the
3 Court and counsel and the attorney for Mr. Lopez,
4 and I recall that the motion was to quash the
5 subpoena. And as I recall it, the decision that was
6 made ultimately, at the completion of the day, was
7 that the Court indicated that you would not release
8 Mr. Lopez from the subpoena, but that you asked the
9 lawyers specifically to file information to you with
10 regard to the incident involving the wallet, so you
11 would be in a better position to evaluate whether
12 Mr. Lopez would be a witness or whether it would
13 qualify for some motion under 403.
14 To my — to my knowledge only – I can only
15 speak for myself – I’ve never seen anything filed by
16 the lawyer in response to the Court’s request as to
17 what I understood was going to be the next step.
18 And let me tell you, from our perspective, how we
19 feel about it.
20 Our recollection, and from a review of the
21 transcript of the defense’s opening statement, Mr.
22 Mesereau said that it was Janet Arvizo, not David
23 Arvizo, who was involved in this wallet incident.
24 And the purpose for us asking questions of
25 people who knew about the incident was to show that
26 it was, in fact, David Arvizo and not Janet Arvizo,
27 because the defense had made a representation to
28 this jury that it was Janet Arvizo who was involved 2770
1 in that incident, and she was not, to the best of
2 our knowledge.
3 So with regard to the good-faith belief, now
4 the defense says it was David, but that wasn’t what
5 they said, I believe the transcript will bear out,
6 in the opening statement. And it was for that
7 reason that we asked the questions of the witness
8 that was on the stand.
9 Putting aside the change in position by the
10 defense, we believe further that the information is
11 that the father, David, tried to induce the child to
12 claim that there was $300 in a wallet, and the child
13 refused to do so and was reluctant to do so.
14 So, I guess our position is, we would like
15 the Court’s order that Mr. Lopez be a witness in
16 this case to stay in effect pending the fact that
17 the lawyer file some kind of declaration or
18 pro-offer proof to the Court, and then at that point
19 either side could make whatever motions that they
20 feel is appropriate in light of the information
21 provided to the Court.
22 We would not want him released. And it
23 could be very well that we want him to testify,
24 because it was, in fact, David, and not Janet
25 Arvizo, who was involved in this incident, and the
26 son, the victim in this case, was not — was not
27 buying what the father was trying to get him to do.
28 So that, in essence, is our position on 2771
1 this, Your Honor.
Judge Melville declined Lopez’s motion to quash the subpoena and Lopez testified on March 28th, 2005.
Next, Judge Melville announced that he would decide on March 28th whether or not he would allow the §1108 witnesses to testify. (And as we all know, he did!)
10 THE COURT: Let me just — let me rule on the
11 first motion first, because it’s connected, in a
13 MR. SANGER: Okay.
14 THE COURT: And you connected it.
15 What I’m going to rule on the motion for
16 admission of evidence on the alleged prior sexual
17 offenses under Evidence Code Section 1108 is that we
18 will hear argument on the — on Monday, the — what
19 date would that be. Would that be the 28th.
20 THE CLERK: Yes.
21 THE COURT: On Monday the 28th.
22 The way I think I would like to do this is
23 to have — not to call witnesses unless I get to the
24 point where I want to have a witness.
25 So I’ll have the prosecution make their
26 arguments as to why they believe particular
27 witnesses should be called as to particular items,
28 what they’re going to say. And I’ll allow the 2776
1 defense to say — they can do this in advance. I
2 would encourage some written material if you have
3 time to do it, but not requiring it, as to why — in
4 a particular case, what you would be doing and why
5 you think it would — should be excluded under 352,
6 and let you argue those things, and then I may or
7 may not ask for a witness in any particular
8 situation. It will depend on how I hear what you
9 have to say, what my opinion is then.
10 MR. SANGER: And if you were going to
11 request a witness, would it be on a different day,
12 or should we have people lined up outside the
14 THE COURT: Well, let’s make it a different
15 day so that we don’t have to inconvenience all sorts
16 of people.
17 MR. SANGER: Okay.
18 THE COURT: But I’m pretty much of the
19 opinion now, having read the cases on this, that the
20 likelihood of having any witnesses is not great.
21 MR. ZONEN: It’s not what.
22 MR. SNEDDON: Not great.
Finally, the defense submitted a request for a retrial based on the grounds that Gordon Auchincloss violated the court’s order that he not make any reference to the 1993 allegations unless and until the court ruled on the §1108 motion. During his direct testimony of former Neverland employee Kiki Fournier, Auchincloss asked her leading questions about her observations of Jackson’s interactions with Macaulay Culkin, Wade Robson, Brett Barnes, Jimmy Safechuck, and Jordan Chandler, and he specifically named them in his questions. Here is the defense’s “MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTON FOR A MISTRIAL”, in which they stated their case for a mistrial:
Here are Sanger’s initial comments about the motion:
23 THE COURT: Now, on your motion for a
25 MR. SANGER: Yes, sir.
26 First of all, a motion for mistrial is
27 generally made orally. And it was made orally in
28 this case, just so the record’s clear, by Mr. 2777
1 Mesereau when he said, “I have a motion.”
2 THE COURT: He did. I understood what he was
3 saying. And I asked him to wait, and he did. And
4 the record was made timely, if that was an issue at
6 MR. SANGER: I just wanted to — we have to
7 connect the dots on the record, you know, so I just
8 wanted to make sure we did that.
9 THE COURT: Yeah. That is your right.
10 MR. SANGER: Thank you.
11 And I understand that we’re not supposed to
12 say the word “mistrial” in front of the jury, and
13 therefore we don’t.
14 THE COURT: That’s correct.
15 MR. SANGER: We filed a memorandum of points
16 and authorities in support of the motion for
17 mistrial this morning, hand-delivered it to the
18 District Attorney.
19 A mistrial, though, is generally — a
20 motion for mistrial is generally made orally, and I
21 intend to make this orally. The points and
22 authorities just support what we said. And I’d
23 incorporate the points and authorities in my oral
24 presentation so that I don’t have to repeat
26 Having said that, the basis for the motion
27 for mistrial is that the Court made a ruling,
28 whether the Court intends — or, I shouldn’t say 2778
1 “intends,” whether history bears out later that the
2 Court either grants or denies the 1108 motion, the
3 prosecution was under a clear duty not to go into
4 ‘93, ‘94 matters.
5 And what they did, what Mr. Auchincloss did
6 specifically, was not only ask a question that — to
7 which a witness responded out of the blue, “Oh,” and
8 named names. And I’ll just avoid saying the names
9 right now, but it’s already in the record, and
10 everybody will see it, I’m sure. But, you know,
11 that can happen. You tell your witness there are
12 certain rules, and the witness gets up on the stand
13 and they’re nervous, and all of a sudden you ask a
14 question, and they blurt out things that they’re not
15 supposed to say.
16 That’s not what happened here. What
17 happened here was that the witness came up with one
18 name, which was Macaulay Culkin, and Mr.
19 Auchincloss, not being satisfied with that, went
20 back directly to the very list of names that he has
21 in his 1108 motion, that he’s been asking the Court
22 to be allowed to go into, and the Court said, “No,
23 not until we rule on it.” And he asked leading
24 questions. “What about so and so.” And then they
25 said, “Yes.” “What about the next person.” She
26 said, “Yes.”
27 It’s in the record and I’ve cited it. I
28 just don’t want to repeat it unless the Court wants 2779
1 me to.
2 THE COURT: No, based on your written
3 material, I read that record this morning.
4 MR. SANGER: And when you compare that to
5 the 1108 motion, there’s nothing accidental about
7 Now, the issue or the problem that I see
8 here is that, number one, the Court’s order has been
9 blatantly disregarded. I’m not saying that from the
10 standpoint of being punitive. I’m just saying, as a
11 practical matter, that’s exactly what happened. It
12 couldn’t have been any more blatant and it couldn’t
13 have been any more intentional. It was clearly done
14 with leading questions. So as I said, there’s
15 nothing accidental about this. And it goes right
16 down the list of the people that the prosecution
17 wants to talk about.
18 If you look — if you compare the 1108
19 motion to the transcript, it’s exactly what he’s
20 doing. He’s getting in the information that the
21 Court had said don’t get into until we have a chance
22 to do it.
23 So I think that the only remedy at this
24 point is a mistrial.
25 Now, the prosecution could argue, “Well, you
26 should grant our 1108 motion anyway, so there will
27 be no harm, no foul,” which means they can then put
28 the Court in this difficult position, deliberately 2780
1 violate the Court’s order, and then get the benefit
2 of all worlds on this.
3 That can’t be right.. There’s got to be a
4 sanction. And the only appropriate sanction,
5 reluctantly – I say this reluctantly – is a motion
6 for a mistrial. And I say it reluctantly because I
7 think that when you look at the cases such as
8 Oregon vs. Kennedy, the United States Supreme Court
9 case that we cited, and the People vs. Batts, which
10 is a California case, the case law says that if a
11 mistrial is granted based on prosecutorial
12 misconduct, and it’s granted not at the request of
13 the defense, then jeopardy may have attached and the
14 case is over.
15 On the other hand, we’re in that position
16 where we have that choice. Do we stand here and
17 just say, “Well, we’re going to take it, because if
18 we request a mistrial and the Court grants it, they
19 can just start all over again and prosecute again.”
20 After considering this, we’ve decided that
21 our — the only thing we can do, as a practical
22 matter, is ask for a mistrial as the first remedy.
23 If that’s denied, there may be other remedies. But
24 I think we have to — in good conscience, given what
25 happened, and the blatant nature of the violation, I
26 think we have to request a mistrial.
27 Now, the prosecution can come back and say,
28 “Oh, well,” you know, “what’s a little violation of 2781
1 the court order here. I mean, we’ve spent a lot of
2 time and money, the Court’s spent a lot of time and
3 money, look at all these sheriffs are here helping
4 us get to our cars and do things, and the press.”
5 That can’t — that can’t be a reason to
6 overlook something that in any other case would be
7 just an absolutely intolerable violation of a court
9 He went down with leading questions, went
10 down the list of people that the Court has already
11 indicated you can’t get into until we — until we
12 have a hearing on it.
13 So what do we do. As my former colleague in
14 this case used to say, “We have to do something more
15 than nothing.” And I think that that’s — that’s
16 precisely what we have to do in this case. And I
17 think the only proper remedy is to grant a mistrial.
18 None of us, believe me, wants to sit here
19 and start this case over again. But what — you
20 can’t unring the bell. They’ve gotten into specific
21 names and specific allegations that they were told
22 not to get into, and here we are.
23 Now, if the Court decides for some reason
24 that a mistrial should not be granted, then we’ve
25 suggested another possible sanction. But only if
26 the Court denies that motion for a mistrial.
27 We’ve also indicated that we believe, and
28 I’m saying it up front and I’ve said it in the 2782
1 papers, that this — even though we have requested a
2 mistrial, this still may come within the exception
3 under the Kennedy vs. Oregon or the People vs. Batts
4 cases, in that this appears to be such deliberate
5 misconduct, where the very names are read in leading
6 questions that are in the motion, that it — it
7 would be viewed as a case in which jeopardy is
8 attached and mistrial is deliberately caused, and
9 there may not be a retrial.
10 But whether that’s the case or not, those
11 consequences are not for the Court to weigh at this
12 point. The Court has to weigh whether or not there
13 was just a blatant disregard of the Court’s order,
14 and if, based on that violation, a mistrial should
15 be granted.
16 And we respectfully submit that that is the
17 proper remedy. And then, as I say, if the Court
18 disagrees and doesn’t grant a mistrial, then we’ve
19 suggested, among other things, as a sanction, the
20 1108 motion should just be summarily denied, the
21 People’s motion on that, because that would — that
22 would at least be a sanction to deal with this.
23 The Court could then issue an admonition
24 that these — that, “The reference to people prior
25 to the 2003 time period will be stricken. You’re
26 not to regard them,” and we could go from there.
27 Thank you, Your Honor.
Some of you may be wondering why the defense would ask for a mistrial, and give the prosecution the chance to completely start over? Basically, the defense felt – and for good reason – that the prosecution intentionally violated the court orders and asked Kiki Fournier those leading questions about the 1108 witnesses in order to goad the defense into requesting a mistrial, with the hope that Judge Melville would grant it, thus giving them a chance to start over and remedy their mistakes (for example, changing the dates and charges AGAIN, giving the Arvizos and other important witnesses a chance to change their stories, etc.).
Seems like a good idea from the prosecution, right? Provoke the defense into requesting a mistrial by asking improper questions, and then start over with a clean slate. Or, request that the court admit the 1108 witnesses as evidence, and argue that their violation of the court’s order is now irrelevant as those witnesses are now admissible. Sounds like a win-win situation, huh? Well, there’s one little, itty bitty problem: the Double Jeopardy Clause of the U.S. Constitution protects defendants from being subject to multiple prosecutions from prosecutors who provoke mistrials in order to correct their mistakes!
In their motion, the defense cited an important legal case that dealt with this issue, Oregon v. Kennedy (1982), in which the courts stated the following:
Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s 676*676 motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. A defendant’s motion for a mistrial constitutes “a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.” United States v. Scott, 437 U. S. 82, 93 (1978). Where prosecutorial error even of a degree sufficient to warrant a mistrial has occurred, “[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.” United States v. Dinitz, supra, at 609. Only where the governmental conduct in question is intended to “goad” the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.
Let’s look at the case that is referenced in that excerpt, United States v. Dinitz:
The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where “bad-faith conduct by judge or prosecutor,” United States v. Jorn, supra, at 485, threatens the “[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict” the defendant. Downum v. United States, 372 U. S., at 736. See Gori v. United States, 367 U. S., at 369; United States v. Jorn, supra, at 489 (STEWART, J., dissenting); cf. Wade v. Hunter, 336 U. S., at 692.
The defense argued that Jackson’s Double Jeopardy rights could and would attach once the mistrial is granted due to the prosecution’s blatant and intentional misconduct, and as a result Jackson could not be retried again by the prosecution.
And here is Sneddon’s response, in which he argued that Auchincloss’s violation of the court’s order wasn’t intentional (yeah, right!), there was no attempt to infer that there was improper conduct between Jackson and the young boys (yeah, right!), that the court sustained some of the defense’s objections to his questions (as if that has any relevance to the fact that those questions were asked in the first place!):
1 MR. SNEDDON: My first comment is that
2 Mr. Sanger points out one of the anomalies of the
3 law that we face when we try criminal cases, and
4 that is when there’s an allegation that someone on
5 the prosecution side steps over the boundary, all of
6 a sudden the defense can get up and make mistrials
7 and characterize it in a certain fashion.
8 But on the other hand, when we sit here and
9 watch defense counsel continuously step over the
10 boundaries and get admonished as violating the
11 Court’s 403 rules, the prosecution’s basically at
12 the mercy of the Court, because the law does not
13 allow us to make any kind of motion to rein in or
14 bring under control somebody who just consistently
15 violates the Court’s orders.
16 Having said that, two wrongs never make a
17 right, so I’d like to address the correctness of why
18 we believe that this motion should be denied, there
19 should be no sanctions, and why the Court should
20 ignore this, in the sense that it was not deliberate
21 and not intentional.
22 First of all, the Court’s 1108 motion dealt
23 with specific allegations of misconduct on the part
24 of the defendant involving other young boys. There
25 was no attempt to elicit that information from these
26 witnesses. There was no intent to infer that there
27 was any improper conduct on the part of Mr. Jackson
28 with the individuals. The questions were directed 2784
1 totally at the witness with regard to who were
2 people who came to the ranch and visited Mr. Jackson
3 on certain occasions.
4 And frankly, given the Court’s ruling on
5 staying away from the 1108 areas of misconduct, I
6 can’t see how, frankly, it comes within the purview
7 of just simply asking whether these were individuals
8 who came to the ranch during a particular point in
9 time involving the period of time in which this
10 person was an employee at the ranch.
11 In fact, the Court sustained some
12 objections, but most of the objections you sustained
13 were on the basis of foundation. And it was at that
14 point when Mr. Auchincloss went back and went
15 through them serially, individually, you did not
16 overrule — in fact, you overruled objections on the
17 part of the defense as to some of those questions.
18 Now, I think it’s pretty hard to stretch
19 that kind of questions and those kind of answers in
20 the kind of context that they were presented as
21 being prosecutorial, deliberate misconduct on the
22 part of somebody, when it was clear that there was
23 nothing inferred with regard to the conduct of these
24 people at the time, and the conduct of the defendant
25 in relationship to these people.
26 And so I just submit to the Court that,
27 given the whole series of questions and answers and
28 the sustaining of objections, that there was nothing 2785
1 really improper that happened in the first place;
2 that this is part of the give and take at trial.
3 And some of the boundaries, I think the Court would
4 probably — you won’t take judicial notice of it,
5 but the Court has tried to guide us generally
6 through some of these landmines in this case, and
7 it’s not altogether sometimes clear just how far one
8 can go and one can’t go. And I think that’s been a
9 problem on both sides of this case.
10 But to say that something is deliberate and
11 something rises to the magnitude of some kind of a
12 mistrial declaration in this particular case, I
13 think is a very, very big stretch in light of what
14 happened in the total context of this trial and in
15 the total context of the examination of this
16 witness, Your Honor.
17 THE COURT: Any rebuttal.
Here’s Sanger’s rebuttal, in which he argued that, based on Auchincloss’s prejudicial phrases (such as “special relationships” and “special friends”), based on the fact that he only asked about boys and not girls, he explicitly mentioned their ages, and there was an intent to infer that Jackson’s relationship with those boys was improper:
18 MR. SANGER: Yes. First of all, I’d feel a
19 lot more comfortable, rather than bringing up other
20 things and then saying two rights don’t make a
21 wrong, if we just address the issue. And also, I’d
22 feel a lot more comfortable if the prosecution
23 indicated that they were wrong.
24 However, what’s happened here is we’re
25 saying there was no intent to infer. And as we
26 cited in our papers on page two, and including the
27 footnote on page two, that it was Mr. Auchincloss,
28 not Miss Fournier, who said things like “special 2786
1 relationship” and “special friends.” It was Mr.
2 Auchincloss who was trying to make this relevant to
3 his 1108 motion. It was Mr. Auchincloss who brought
4 out the ages of the children. It was Mr.
5 Auchincloss who asked questions only about boys and
6 not about girls.
7 He chose to do that, why. Not because it
8 was a random discussion of Miss Fournier and what
9 she’d been doing on the ranch for 10 or 12 years.
10 This is directed specifically to the inference. And
11 Mr. Sneddon just got up and said there was no
12 intention of bringing out. You know, I’m just taken
13 aback by that. Of course there was an intention to
14 infer something by this testimony. I can’t believe
15 we’re in the same courtroom.
16 And if you look at that, when Mr.
17 Auchincloss goes on about special relationships,
18 special friend, ages, boys, he’s clearly tying it in
19 to his 1108 argument. And if he wasn’t doing that,
20 the relevance objections would have been sustained,
21 I’m sure.
22 It was — it was offered as relevant
23 evidence. It wasn’t offered for some background of
24 Miss Fournier. And the Court ruled earlier that
25 that evidence would not be admissible until the
26 Court had a hearing on it.
27 So, you know, it clearly was improper, and
28 it clearly was for a purpose. I just can’t believe 2787
1 I heard to the contrary.
2 The question is, you know, what does the
3 Court do about it. And in saying that somebody on
4 the defense team overstepped boundaries from time to
5 time makes this right, it just doesn’t. And the
6 defendant does have a constitutional right to a fair
7 trial and to have the Court — the Court’s orders
8 followed by the prosecution.
9 This is a bell that cannot be unrung. And I
10 just think under the circumstances, there’s no
11 choice but to grant a mistrial. As, you know,
12 remarkable as that might seem to the public or
13 somebody else, the fact is, as lawyers and as a
14 Judge, we all know that there are legal rules.
15 These legal rules, in this case that the
16 prosecution follow the court orders, were not
17 followed, and the consequence of those breaches of
18 legal rules is that the Court has to declare a
19 mistrial, and I believe that that’s the appropriate
21 Thank you, Your Honor.
And here’s Sneddon’s rebuttal, in which he argued that Auchincloss’s use of the phrase “special friends” was valid because those boys had a close relationship with Jackson, as opposed to the busloads of children who took field trips to Neverland and never even met Jackson:
22 MR. SNEDDON: Judge, I promise it will be
23 less than a minute, but I wrote something down that
24 I didn’t tell you that I think is relevant to this
26 THE COURT: No, we have —
27 MR. SNEDDON: All right.
28 THE COURT: We have opening, response and 2788
2 Well, let me tell you how I was looking at
3 it when I was making the rulings, which is there was
4 some evidence by the District Attorney where — from
5 which he would like to prove or have the jury infer
6 that when children go to Michael Jackson’s ranch,
7 that they are unsupervised, they become wild and
8 crazy kids, you know. There was a lot of — the
9 inference they wanted to be drawn, I think, was that
10 that is a situation that Mr. Jackson wanted; that he
11 didn’t supervise them; he wanted them to become
12 uncontrolled children.
13 Then Mr. Mesereau, in cross-examination,
14 spent a good deal of time trying to establish —
15 that’s not a good word, “trying.” I should say
16 working to establishing that, in fact, many
17 truckloads, busloads — not “truckloads,” busloads
18 of children, carloads of children, appeared at the
19 ranch when he was there, and — when Michael Jackson
20 was there, and when Michael Jackson wasn’t there.
21 And there was an ongoing entertainment of children,
22 and that — excuse me, that the children acted as
23 children do when they’re taken to any amusement
24 park. And that, in fact, Mr. Jackson wasn’t there a
25 lot, and wasn’t out watching them a lot and really
26 didn’t have much contact at all with all of these
27 children who took advantage of the rides and zoo and
28 everything. 2789
1 And then the District Attorney came back
2 and, in my acceptance of that evidence at that time,
3 was to try to reestablish or to establish the
4 contact that Mr. Jackson did have with the children.
5 And that, in fact, there were certain children that
6 he had a great deal of contact with, and that this
7 was the balancing of the evidence that I was
8 watching from this position.
9 And so when the District Attorney asked if
10 there weren’t certain children that he had
11 established good, strong relationships with – and
12 she confirmed, the witness confirmed that that was a
13 fact, and started naming them – I didn’t feel that
14 that violated the 1108 order. I didn’t see — from
15 my standpoint, I didn’t see that it was either
16 harmful or helpful to either the defense or the
18 I mean, some of the children that were named
19 were relatives of Mr. Jackson. And I did
20 specifically limit that testimony to that area
21 purposefully. And I thought the District Attorney
22 recognized it when he said he intended to go no
23 further than that, and I said I would hold him to
25 And then when the — when he did mention
26 Jordie Chandler, he said — he was the one that
27 raised it, not the witness.
28 “How about Jordie Chandler.” 2790
1 And she said, “Yes.”
2 And Mr. Mesereau said, “Your Honor, I’m
3 going to object based on the Court’s ruling on
5 “The Court: Sustained.
6 And Mr. Mesereau said, “Move to strike.”
7 And the Court struck the testimony.
8 And it was after that, of course, that Mr.
9 Mesereau moved for a mistrial. But I felt that that
10 cured the situation.
11 And one has to keep in mind that this isn’t
12 the first that the jury’s heard that name. And even
13 one of the questionnaires for service of jury was to
14 ask the jurors what they knew about the alleged
15 1993 — or the 1993 alleged incident. And it’s come
16 up — 1993 has been mentioned by other witnesses.
17 So it’s not like this is the first, nor will it
18 probably be the last time, it’s mentioned.
19 So I’ll deny the motion for a mistrial and
20 any request for sanctions.
Next, Sneddon made two requests to Judge Melville: the first request was to obtain additional information about the upcoming 1108 witness hearing, and the second was about the concern that he had of running into a juror during his time off to attend the dedication of a new building that was being named in honor of a colleague of his. It’s ironic that after all of the misconduct that he engaged in to bring this case to trial, all of a sudden he gets worried about being accused of more misconduct by possibly being seen in public with a juror?
21 Let’s see. Is there anything else before
23 MR. SNEDDON: Judge, may I ask a question
24 about the procedure on the 28th, in terms of what
25 the expectations are, us moving forward with our
26 case. And then I have one minor thing that I’d like
27 to discuss.
28 THE COURT: Yes. 2791
1 MR. SANGER: Before you change the subject,
2 though, could I just ask one clarification question
3 on that ruling.
4 THE COURT: Yes.
5 MR. SANGER: Just so we don’t have a
6 problem — I mean, the Court is going to rule
7 however it’s going to rule.
8 THE COURT: The Court ruled however it did
10 MR. SANGER: That’s true. I’m speaking
11 about prospectively on other — if this comes up
12 again. It would be our position that mentioning the
13 names of children who are in the 1108 motion,
14 whether they’re there because — well, for whatever
15 reason, mentioning those names from ‘93, ‘94, or
16 prior to that should not occur, it would be our
17 position, unless counsel approaches and asks for
18 permission. Because I still believe that that comes
19 within the 1108.
20 I understand what Your Honor said. I’m not
21 arguing with the ruling. But prospectively, until
22 the Court rules on the 1108, that would be my belief
23 and understanding. And I’d ask if we could follow
24 that procedure; that if there is an intention to do
25 something like that, that we have an opportunity to
26 be heard on it.
27 THE COURT: I think that’s only fair. There
28 could be other situations where that testimony is 2792
1 admissible before we get to 1108. It’s not
2 admissible under 1108 or — so it would have to be
3 some limited purpose. But to prevent the need for
4 further hearings like this, I think you should
5 advise them if you’re going to go through that
6 list —
7 MR. SNEDDON: Okay.
8 THE COURT: — before then.
9 MR. SANGER: Thank you, Your Honor.
10 MR. SNEDDON: Judge, on the 28th, when you
11 said we were going to have argument, should we
12 anticipate that that will take the day, and we
13 shouldn’t be required to have witnesses standing by.
14 I don’t even mean in connection with the 1108. I
15 mean just —
16 THE COURT: Yeah.
17 MR. SNEDDON: — to carry on that day.
18 Do you envision that would take the whole
19 day or part of the morning. I just want to get
20 direction so —
21 THE COURT: Well, how long do you think your
22 argument will take.
23 MR. SNEDDON: Depends on whether it’s —
24 who’s arguing it. But — and depends on how much
25 leeway the Court gives.
26 THE COURT: How much —
27 MR. SNEDDON: Based on our experience, I
28 would expect it would probably take a couple of 2793
1 hours, I guess.
2 THE COURT: I think at least.
3 What do you think. Who’s arguing that here.
4 MR. SANGER: I believe I am, Your Honor.
5 I would say it’s liable to take a couple
6 hours. We could intend to take an hour, but we’ll
7 probably take a couple by the time we’re through
8 THE COURT: So are we talking two hours.
9 Are you each saying two hours total, or are you
10 saying two hours —
11 MR. SNEDDON: I would —
12 THE COURT: — each.
13 MR. SNEDDON: No, I would anticipate that I
14 would be able to address the Court’s concerns in my
15 opening remarks. And since it’s our motion, we
16 carry the pail on this one, that probably I could do
17 that in a half hour easily, because you already have
18 our declarations.
19 THE COURT: I already have your written
21 MR. SNEDDON: So I’ll just highlight things
22 and we’ll go from there. So I would expect that
23 mine — my opening would take less than a half hour.
24 MR. SANGER: And by the time I get through
25 going back and forth, I think total, the whole thing
26 will probably take a couple hours. And we’ll
27 probably have a break, so —
28 THE COURT: So if we had the jury come in on 2794
1 Monday at 11:30 and did the 11:30 to 2:30, that
2 would work.
3 MR. SANGER: I think that would be fine. If
4 the Court needed more time, we could do the jury and
5 take more time on another day.
6 MR. SNEDDON: So 11:30.
7 THE COURT: So we’ll — we’re going to
8 argue — the arguments will start at 8:30.
9 MR. SNEDDON: Yes, sir.
10 THE COURT: But you’ll need to have witnesses
11 commencing at 11:30.
12 MR. SNEDDON: Is it the Court’s intention to
13 rule that day.
14 THE COURT: Unless — yes, unless I need to
15 call a witness.
16 MR. SNEDDON: Okay. So if the Court rules
17 in our favor on one or more witnesses, we could go
18 ahead and put them on right away, then.
19 THE COURT: Yes.
20 MR. SNEDDON: All right.
21 The second thing is kind of a personal
22 thing, and it involves the Court also. You
23 indicated we would not be in session Tuesday
24 afternoon, and the reason is the dedication at the
25 Juvenile Hall. And I know they’re dedicating it to
26 Sue Gionfriddo, who is a close personal friend of
27 mine, and we’ve been colleagues for over 30 years
28 together, and I was very close to her and her 2795
1 deceased husband.
2 I had intended to attend that service, but
3 then you invited all the jury, and I’m a little
4 squeally about going over there, because I don’t
5 want to run into a juror, and I don’t want to get
6 accused of any improper conduct. So I guess what
7 I’m asking the Court is —
8 THE COURT: I would expect you to attend, and
9 I don’t expect any of the jurors to attend. Did
10 you notice the laughter when I —
11 MR. SNEDDON: I know, Judge. But I just
12 want to make sure that I’ve addressed — I’ve
13 consulted with you about that.
14 THE COURT: I’ll address that with them
15 Monday and tell them I really don’t expect them to
16 attend. I think they’re in tune with my humor.
17 MR. SNEDDON: I don’t want to get accused of
18 showing up if you said they were going to be there,
19 or something like that.
20 THE COURT: No, I understand. I think
21 everybody — Mr. Sanger might even want to be there.
22 MR. SANGER: I was going to say, Sue
23 Gionfriddo has been a good friend of mine for a long
24 time, too, and I intend to attend. And I assume if
25 we saw a juror, we would go in a different
27 THE COURT: Yes. I’d require them to wear
28 their badges if they went. I don’t think they’re 2796
1 going to go. They’re really looking forward to the
3 MR. SNEDDON: Last thing: Do we have an
4 update on the computer. We’re in the middle of
5 trial here. We’d like to get some of that
7 Are we done with at least one of the
8 computers with regard to the —
9 THE COURT: I’ll have to defer to Jed.
10 MR. BEEBE: The last word I heard was that
11 the — that there was — that the disk, based on the
12 new list, was in the mail yesterday. And so as soon
13 as the special master makes a ruling, that material
14 will be available.
15 MR. SNEDDON: It’s — can I ask a clarifying
17 My understanding was that the Brad Miller
18 computer was completed and that the scoping down of
19 the inquiries was on the Evvy Tavasci computers. Am
20 I mistaken about that.
21 MR. BEEBE: It’s the other way around.
22 MR. SNEDDON: The other way around.
23 MR. BEEBE: Yes.
24 MR. SNEDDON: Oh, but — the Evvy Tavasci is
25 completed, but Brad Miller’s is the one that we’re
27 MR. BEEBE: Yes.
28 MR. SNEDDON: I’m sorry, Your Honor, I was 2797
1 trying to get to the point.
2 THE COURT: Go ahead and address him. He
3 knows. Go ahead.
4 MR. SNEDDON: Is it — have the Evvy Tavasci
5 materials been given to the special master.
6 MR. BEEBE: Yes.
7 MR. SNEDDON: And then the next process is
8 it goes to the Judge. Judge Melville will make a
9 ruling from there.
10 MR. BEEBE: Yes.
11 MR. SNEDDON: I’m just trying to get an
12 update, Judge.
13 THE COURT: I agree.
14 MR. SNEDDON: We’re in the middle of trial
15 and —
16 THE COURT: It’s just something that I’m
17 as — didn’t know any more than you did. So we both
18 now know where it is.
19 MR. SNEDDON: Perfect. Thank you very much.
20 Thank you for your indulgence.
21 THE COURT: All right. Is there anything
23 MR. SANGER: I don’t think so, Your Honor.
24 Thank you.
25 THE COURT: All right. Court’s in recess.
26 Have a good weekend.
27 MR. AUCHINCLOSS: Thank you, Your Honor.
28 MR. ZONEN: You too. 2798
1 MR. MESEREAU: Have a good weekend, Your
3 (The proceedings adjourned at 11:05 a.m.)
To be continued: https://michaeljacksonvindication2.wordpress.com/2012/07/27/march-21st-2005-trial-analysis-detective-conn-abel-cross-examination-dr-anthony-urquizo-lauren-wallace-and-louise-palanker-direct-examination-part-1-of-3/