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March 23rd, 2005 Trial Analysis: Robert Charles Cooley, Freddy Padilla, Craig Bonner, and Antonio Cantu (Direct Examination), Part 1 of 2

August 15, 2012

Before the jury entered the chambers, Judge Melville allowed prosecutors and defense attorneys to argue on behalf of their respective motions involving the admissibility of pornography that was found on four of Jackson’s computers that were confiscated during the Neverland raid in November 2003.

In January, the defense filed a motion titled in which they argued that the pornography should be ruled inadmissible: http://www.sbscpublicaccess.org/docs/ctdocs/011805mjmlexbmpci.pdf

Defense attorney Robert Sanger argued that they should not be admitted as evidence because of the following three reasons:

1. Four hard drives from three computers had pornography that was downloaded and cached well outside of the timeline during which the prosecution alleged that Jackson abused Gavin Arvizo: two of the computers had porn from 1998, and the other two computers had porn from September 2003 through November 2003. To add insult to injury (and to underscore just how incompetent the police were in their handling of the evidence), the dates of some of the porn were changed to coincide with the date that the porn was found by police! It was an egregious error on their part, and it was soon fixed, but nevertheless it should not have happened in the first place.

2. Since the pornographic material found was cached (meaning that it was caught by the computer because someone could have opened an email attachment, or could have just accidentally stumbled upon a pornographic website), there is no way to determine what the intent was in looking at the porn, which was entirely heterosexual.

3. Due to the dates that the porn was accessed, there is no way to determine exactly who was looking at the porn, and since the prejudicial value exceeds the probative value, it should not be admitted.

Here is an excerpt of Sanger’s opening statement regarding this issue:

9 THE COURT: Good morning.

10 COUNSEL AT COUNSEL TABLE: (In unison)

11 Good morning, Your Honor.

12 THE COURT: I understand there’s an issue

13 you wanted to address before the jury comes in.

14 MR. SANGER: Yes, Your Honor. May I have

15 just one more second.

16 Yes, Your Honor, on the issue of the

17 computer testimony, we’re going to move to exclude

18 the testimony on the grounds of relevance, lack of

19 foundation with regard to this particular case. And

20 let me outline it quickly.

21 As the Court is probably aware from

22 pre-trial matters, there were quite a number of

23 computers that were seized. I think there were

24 14 computers that were somehow allegedly associated

25 with Neverland. The District Attorney has focused

26 on four, and provided us last night with the

27 particular exhibits that they wish to introduce,

28 somewhere around 6:30, 7 o’clock last night. 3134

1 Those particular items are culled from the

2 voluminous CDs and other materials that were

3 provided in the course of the case, in the course of

4 discovery, but now, for the first time, we can see

5 exactly what they want to introduce and try to

6 divine what the theory is.

7 I received some other material by e-mail

8 last night after that, which is not of much

9 consequence. The big thing is what was delivered to

10 us by hand.

11 Basically, the four computers — none of the

12 four computers that the District Attorney seeks to

13 introduce testimony about have any material on it,

14 on them, that was subject to the time period

15 involved here.

16 One of the computers has — or two of the

17 computers have material from 1998, and two of the

18 computers have material from September, October, and

19 November of 2003. Actually, one of the computers,

20 it appears, when it was downloaded by the sheriff’s

21 department, that they somehow made a mistake and

22 changed the date to the date that they were

23 examining the material, which is something that’s

24 supposed to be avoided. But looking at the

25 material, it appears that there is nothing

26 whatsoever from the time period involved, number

27 one.

28 Number two, the type of material is such 3135

1 that it is not probative in this case. It is cached

2 material. That is, material that was caught by the

3 computer because somebody had opened a photograph.

4 And it could have been by an e-mail, it could have

5 been by virtue of somebody surfing the web at a

6 particular time. And it’s heterosexual material,

7 and it is not directly related to this case.

8 Thirdly, the issue of who accessed the

9 material is totally unresolved. There is no way to

10 determine who was using the computer to access this

11 material in November — September, October, November

12 of 2003, or back in 1998. So there is no probative

13 value if you cannot link that directly to

14 Mr. Jackson or somebody else in this particular

15 case.

16 I’m prepared to go into more detail to show

17 the Court or explain to the Court what kinds of

18 material we’re talking about. But I should also

19 indicate that the material that has been gleaned

20 from these computers is minuscule in comparison with

21 the total amount of material that’s on the

22 computers.

23 So the best that can be said, perhaps, is

24 somebody surfed the web on some of these occasions

25 that have nothing to do with the time period. Very

26 discrete occasions on very specific dates in

27 September and November of 2003. And again, it looks

28 like a very brief four-minute look by somebody in 3136

1 1998. That is compared to gigabytes of material on

2 the disk of all sorts of other things.

3 THE COURT: Let me interrupt you and let me

4 hear from the District Attorney.

5 MR. SANGER: Very well.

6 THE COURT: Sorry.

In his reply, Assistant District Attorney Gordon Auchincloss stated that the three computers were located in the private sanctuary of Jackson’s bedroom, and some of the pornography found included 16 pages of “teen pornography” (which in reality is porn that stars young adults who look like teens; any porn involving minors under the age of 18 is could be considered child porn, depending on the statutes of the state that the defendant resides in).

7 MR. AUCHINCLOSS: Good morning, Your Honor.

8 The evidence that we are seeking to

9 introduce here comprises the contents — the partial

10 contents of four hard drives from three computers.

11 Each of these computers was located in Michael

12 Jackson’s bedroom. Not only in his bedroom, but in

13 his private sanctuary, which is upstairs from the

14 primary bedroom area. As you know from the

15 photographs, this is a small room with a great deal

16 of contents. These three computers each contained

17 erotic — adult erotic materials.

18 The first one is an Apple laptop. This

19 computer has identifying information on it

20 indicating — we found a text message that says,

21 “Michael Jackson’s Computer” with the date

22 October 12th, ‘98. We also found text messaging in

23 the form of Internet text messaging, which is a

24 hybrid of e-mail, which provides the name “Apple

25 Head’s Computer,” a name we also associate with the

26 defendant.

27 We found teen pornography, or excuse me,

28 teen adult materials on this computer, which we’ve 3137

1 downloaded approximately 16 pages.

2 As far as the time frame of this

3 particular — the downloading of these materials, we

4 have an associated date of 1998. So clearly —

5 well, not “clearly,” I should say that the computer

6 experts cannot tell us exactly when this material

7 was downloaded. There are ways to manipulate the

8 date. The clock in the computer is not always

9 accurate. If the computer battery runs down, then

10 the clock can go off, and that’s some of the

11 testimony that we would adduce in expert testimony

12 in presenting this evidence.

13 So — but we do believe that,

14 circumstantially at least, this evidence was

15 downloaded sometime prior to the period of time that

16 the victims in this case were at Neverland.

17 The next computer, which is identified —

18 and I should mention that that computer is — would

19 be Exhibit 626. And it’s Item No. 346 as far as the

20 sheriff’s records go.

21 THE COURT: The Apple.

22 MR. AUCHINCLOSS: Yes.

23 The next computer is a Vaio desktop

24 computer, Exhibit No. 627, S.B.S.O. Item No. 344.

25 This computer had connection or identification

26 information on it, linking this computer to a Marcel

27 Jackson, which we believe to be a code name,

28 computer code name, for the defendant. We know of 3138

1 no relative of the defendant named Marcel Jackson.

2 In any event, this computer held downloaded

3 photographs, 1700 downloaded photographs of adult

4 erotic material. We wouldn’t seek to introduce

5 1700. It would have taken us several days to print

6 it, and we’ve certainly seen enough erotic material.

7 But we would introduce — we would introduce several

8 pages showing associated porn sites that these

9 images were downloaded from.

10 The final computer is an Apple desktop,

11 Exhibit No. 628, S.B.S.O. Item No. 347-A. Now, as I

12 mentioned before, this computer has two hard drives

13 in it, apparently not an uncommon feature for some

14 desktop computers. These hard drives are analyzed

15 separately, so we have a second item number with

16 this computer, Exhibit No. 629, and S.B.S.O. Item

17 No. 347-B. This is an Apple PowerMac G-4 also

18 located in the defendant’s bedroom. It appears to

19 be quite old. It also arguably or circumstantially

20 could be the computer that was referred to by Star

21 Arvizo when he said there was a desktop computer at

22 the time they visited Neverland.

23 On the first hard drive for this computer,

24 we located identification information, including

25 text messages from king77tut — I should say 777tut,

26 privacy969, and a bigmike. Also information dealing

27 with construction of a web page called “Michael’s

28 Web Page.” This first hard drive had associated 3139

1 materials on it involving teen pornography — or

2 teen adult materials, excuse me, varsityteens.com.

3 And numerous downloads of adoption agencies,

4 adoptablekids.com, with associated pictures of

5 children.

6 As the Court may recall, Mr. Jackson, I

7 believe, in the Bashir video mentioned his interest

8 in adopting children.

9 Finally, the last hard drive from the same

10 computer has what is known as WAF Reports. We have

11 approximately 100 pages in which these reports

12 indicate Internet sites which were visited by the

13 user of this computer. It’s probably not complete,

14 but it does indicate that this computer was used to

15 access sites, adult erotic sites, involving teen

16 subjects, adoptable kids sites, Disney, toy sites.

17 Those are the relevant ones.

18 Now, the purpose of this evidence is to

19 provide a link between the information that was

20 adduced from Gavin and Star Arvizo concerning their

21 viewing of adult materials on defendant’s computer

22 in the defendant’s bedroom. We intend to use this

23 evidence circumstantially to show Michael Jackson

24 knows how to use a computer. He has four of them in

25 his bedroom. He has another Apple computer in his

26 desk in his office. That he knows how to access

27 Internet sites; that he knows how to access adult

28 erotic materials on Internet sites. 3140

1 It’s a circumstantial link that provides

2 powerful corroboration for our victim in this case.

3 And the fact that all of these computers have at

4 least some tie in the computer itself to the

5 defendant, in addition to the fact that these

6 computers were located in his very bedroom,

7 certainly provides the necessary link between the

8 defendant and the person who is accessing

9 pornography, or adult material on these computers.

10 So that is what we’re introducing. That’s

11 the purpose. It’s not a very large volume, as you

12 can see. I submitted a copy to the Court. And we’d

13 ask the Court to admit this important evidence.

14 Thank you.

Afterwards, Sanger argued that the photos were not “downloaded”, per se, but were merely cached, and there is a material difference between the two terms:

20 MR. SANGER: That may make it a little

21 easier to follow.

22 First of all, there’s nothing in — on these

23 computers that in and of itself is illegal. So the

24 question is, what is the probative value of this

25 otherwise lawful material.

26 Mr. Auchincloss continually used the word

27 “download” as if somebody intentionally downloaded

28 certain items. For the most part, and particularly 3141

1 as it pertains to any adult images, it was not

2 downloaded. It’s a very important distinction.

3 It’s in the cache. That means that whenever you’re

4 on a computer and you open — or a picture pops up

5 on your screen, even if somebody had sent an e-mail,

6 or it’s one of those automatic nasty things that

7 gets sent to you, that photograph, that image, is

8 automatically cached in your computer.

9 And without going into a lot of detail – the

10 Court may be aware of this – but many years ago,

11 I don’t know if it was 15 years ago or so, maybe 20

12 years ago, has determined that when we were going to

13 have images downloaded off the Internet, it was too

14 slow for computers to each time look at the image

15 anew and create all the pixels to show it to you on

16 the screen. So therefore, when people look at a

17 picture, or when it just comes up, whether you look

18 at it or not, it comes up on the screen, you go on

19 to something else, that image is automatically

20 cached. And that is the part of the computer where

21 most of this stuff was found.

22 And I can go through in particular and

23 explain which ones. But the adult material in

24 particular was cached. That means nobody —

25 nobody — whether it was Mr. Jackson or anybody

26 else, nobody went and said, “I want to save this

27 picture and I’m going to save it to a particular

28 area.” It was simply cached. It came up on the 3142

1 screen. It could be from surfing the web. It could

2 be from getting nasty e-mails with pictures that

3 automatically pop up in the screen when you look at

4 your e-mails. That’s a very important distinction.

5 The next distinction is that the amount of

6 material here is extremely minimal compared to the

7 overall content of this computer, and all the other

8 material that was cached. Going to Time Magazine

9 sites, going to all sorts of legitimate places that

10 people would go when they’re using the Internet and

11 they’re looking at things, or when they’re getting

12 e-mails with legitimate things that pop up.

13 Legitimate — I shouldn’t say “legitimate” as

14 opposed to “illegitimate,” but not sexual in nature.

15 All this stuff is lawful, but, you know, not sexual

16 in nature stuff. You know, Time Magazine, sports

17 things, pictures related to all sorts of different

18 things.

19 So this is not very probative.

In this excerpt, Sanger offers an explanation for the 16 pages of explicit photos that were cached on one of Jackson’s computers:

2 What’s even more significant about these

3 pages 3 to 20 is that they were all — they all

4 showed up on the computer on October 28, 1998, at

5 one time in between 3:57 a.m. and 4:01 a.m. So

6 somebody — somebody on this particular computer

7 probably got either a series of e-mails that had —

8 or an e-mail that had these images on it, or they

9 went to a website and these images popped up. There

10 is nothing indicating in these images that whoever

11 was doing this on the computer — whether it was

12 somebody related to Mr. Jackson, or somebody

13 visiting, or somebody who had the computer before he

14 had it, or whatever, there’s nothing to indicate

15 that the person actually entered this website.

16 These are pictures from the cover, as it were, of

17 the website, before the web site’s actually entered.

18 If the website had been entered, there would be a

19 whole lot of other pictures.

20 So in approximately a four-minute period in

21 the early morning hours of October 28th, 1998, these

22 pictures apparently flashed on the screen for some

23 length of time. Couldn’t have been too long, given

24 the time that they were recorded.

25 Now, we will show at some point — and I

26 don’t want to get too far ahead, because I don’t

27 think we need to make an offer of proof right now,

28 but there are relatives of Mr. Jackson who have used 3145

1 his computer. I think we’ve already had some

2 testimony that there are all sorts of people using

3 computers. Mr. Jackson himself is not particularly

4 inclined to use computers. But there’s nothing from

5 1998 that’s going to tie Mr. Jackson to this case.

6 And when I hear the District Attorney saying this is

7 powerful evidence to link Mr. Jackson, that’s

8 exactly the problem. It’s offered as powerful

9 evidence, and it has virtually no probative value.

Later on, Auchincloss made another attempt to argue for the admission of those hard drives as evidence, but even Judge Melville had to stop and question his logic!

2 MR. AUCHINCLOSS: Just a few remarks, Your

3 Honor.

4 First of all, as with all circumstantial

5 evidence, you have to look at the evidence in the

6 context of all the evidence in the case.

7 In this case, they are saying that it is

8 just a coincidence that in these four — or these

9 three computers, these four hard drives, it’s just a

10 coincidence that they have erotic materials on them.

11 It’s just a coincidence that they have teen erotic

12 materials on them. It’s just a coincidence that all

13 three of these computers are found in his private

14 sanctuary, his bedroom. It’s just a coincidence

15 that Gavin Arvizo and Star Arvizo were shown erotic

16 materials in his private bedroom. And it’s just a

17 coincidence they were shown the same type of erotic

18 materials, teen erotic materials.

19 THE COURT: How could they have been shown

20 these materials, though.

21 MR. AUCHINCLOSS: Well, we’re not saying

22 they were shown these materials. It’s conceivable,

23 and it’s possible that the computer from ‘98 has

24 information on it that was shown to these children.

25 But as you may recall, Gavin Arvizo took

26 that computer that he believes — he wasn’t sure,

27 but he believes that was the computer, the computer

28 he viewed the images on in Mr. Jackson’s bedroom, 3156

1 that computer was the computer he was given. And as

2 you also know, that computer ultimately made its way

3 back to Mr. Jackson after it was broken. So we can

4 assume, circumstantially perhaps, that that computer

5 is discarded and gone. But, if it wasn’t the

6 computer, it’s possible — I don’t think it’s

7 probable, but it’s possible that one of these

8 computers was the very same computer that Gavin

9 Arvizo observed this pornography on.

10 And I might mention that the computer that

11 has these older images on it is the same computer

12 that Gavin Arvizo picked out of a lineup of

13 computers as being the one most like the computer

14 that was given to him. But again, it doesn’t tie it

15 up perfectly.

16 The bottom line here is, is that this is

17 circumstantial evidence that this defendant views

18 teen pornographic, or erotic materials, on computers

19 in his bedroom, which is one of the most important

20 aspects of our — was one of the important aspects

21 of our case. And, as you know in these cases, it’s

22 always a matter of the credibility of the young

23 victim. So corroboration is always highly probative

24 to show that — these young victims, when they’re

25 telling the truth. And I don’t think you can just

26 say it’s a coincidence that these materials are on

27 these, all three of them, and all in his bedroom,

28 and all seeking the same sites. 3157

After the attorneys finished making their arguments, Judge Melville announced that he was leaning towards excluding the pornographic material from the hard drives (and eventually he did exclude them):

6 THE COURT: I need to — I’m not prepared to

7 rule at this moment on it, although I am leaning

8 towards excluding it.

9 MR. AUCHINCLOSS: I guess the next step

10 would be to file some points and authorities on it

11 for you. But if you would like to call — I think

12 maybe the best thing to do would be to allow us to

13 have — to call our expert, and have you question

14 him, and we can question him, and maybe focus your

15 concern —

16 THE COURT: The problem with that is the

17 jury is sitting waiting. And I’ve asked that we —

18 you know, when we have these type of issues that we

19 set them at times when the jury’s not here, and we

20 use the jury for evidence that they can hear.

21 MR. AUCHINCLOSS: Can you tell me what —

22 can you tell me what your concern is so that I may

23 attempt to address it.

24 THE COURT: No. Do you have another witness.

25 MR. AUCHINCLOSS: We can — we’ll check,

26 Your Honor. We’ll see who’s available.

27 THE COURT: All right.

28 (Recess taken.) 3160

 The next prosecution witness was Detective Robert Cooley, who was assigned the responsibility of performing scribe duties at the arcade building at Neverland during the rai in November 2003.The responsibilities of a scribe include taking and seizing all evidence that’s located by other searchers, and then packaging and sealing that evidence and documenting that evidence on a report.  His direct examination by Tom Sneddon consisted exclusively of questions regarding his confirmation of articles of evidence (mostly adult magazines and artwork) that he seized at Neverland.

Under cross examination, Det. Cooley was questioned by Mesereau about the protocols for handling seized evidence that was taken from Neverland. In this excerpt, Mesereau questioned Det. Cooley about his knowledge of evidence contamination, which seemed to be lacking, considering his extensive experience in crime scene investigations:

12 CROSS-EXAMINATION

13 BY MR. MESEREAU:

14 Q. Good morning.

15 A. Good morning.

16 Q. You said your function was to be a scribe.

17 A. That’s correct.

18 Q. And as a scribe, do you do any search

19 yourself.

20 A. Occasionally we will do searching also,

21 depending upon how large the area is.

22 Q. Did you search anything on that particular

23 day, November 18th.

24 A. I believe so, I did, yes.

25 Q. What did you search.

26 A. I assisted in the search of the downstairs

27 arcade building, and actually the whole building,

28 the arcade, the cellar and the upstairs library 3175

1 area.

2 Q. Now, you indicated that as a scribe, you —

3 I think you said words to the effect, you were at a

4 location where people would bring items to be seized

5 to you.

6 A. Correct.

7 Q. And where was this location that you were

8 talking about.

9 A. In particular, downstairs, the first

10 location was at the front of the arcade on a table

11 there. And then when we moved upstairs to the

12 library area, was right outside the door of the

13 library.

14 Q. And were you sort of searching and then

15 being a scribe, and then searching and being a

16 scribe, or just being a scribe the whole time.

17 A. No, I was doing some searching, and if

18 somebody found an item of evidence that needed to be

19 seized and packaged, then I would do my job as the

20 scribe, seize the item, package and then seal it.

21 Q. Do you package and seal to prevent

22 contamination.

23 A. I package and seal to preserve the evidence

24 that’s given to me.

25 Q. Do you package and seal to prevent

26 contamination.

27 A. If I’m following you, to — I’m not exactly

28 sure what you’re looking for contamination-wise. 3176

1 Q. Do you know what contamination of evidence

2 means.

3 A. Fingerprints, et cetera. Is that what

4 you’re looking for.

5 Q. I’m asking if you know what contamination of

6 evidence means.

7 A. I guess I’m not following the course. When

8 it’s given to me, I package it as it’s given to me.

9 Q. Let me — maybe I’m not being clear. Have

10 you ever heard of the word “contamination” when it

11 comes to evidence.

12 A. Yes.

13 Q. What does that mean to you.

14 A. It depends a lot on the evidence. If it’s

15 evidence that we think might need to be

16 fingerprinted, then it’s placed in a paper bag and

17 sealed. If it’s evidence that we think might need,

18 say, DNA, for instance, it’s packaged and sealed

19 accordingly to keep others from touching it.

20 Q. Were any of the three items in front of you

21 packaged and sealed to prevent contamination.

22 A. Well, I was the last one to handle it, so it

23 was packaged in there, and then it wasn’t my call

24 whether it needed to be fingerprinted later on. So

25 I just packaged it, I was the last one to handle it,

26 packaged it like I would normally package evidence,

27 and then it was turned over to forensics.

28 Q. Did you package it to preserve the items so 3177

1 it could be fingerprinted.

2 A. I would have to say I did. I was the last

3 one to handle it, and it was sealed and turned over

4 to forensics.

5 Q. Were the three items that you packaged and

6 sealed packaged and sealed to preserve the ability

7 to do any DNA testing.

8 A. That, again, would not have been my call. I

9 was wearing gloves, when I was packaging evidence,

10 so if anything later on needed to be completed,

11 fingerprinting, DNA evidence, it was packaged in

12 paper to preserve that, and then turned over to

13 forensics, and then forensics would have made the

14 call as to how they handled it after that.

15 Q. So am I correct in assuming that you

16 packaged and sealed those three items to preserve

17 the possibility of both fingerprinting and DNA

18 testing on those items.

19 A. That’s one of the reasons why they’re

20 packaged and sealed immediately, yes.

21 Q. And what are the other reasons why they’re

22 packaged and sealed immediately.

23 A. To prevent a confusion as to evidence being

24 seized and who seized it.

Next, Mesereau questioned Det. Cooley about the fact that the three items that he identified earlier under direct examination were not specifically mentioned as being candidates for fingerprint and DNA testing, and the fact that Det. Cooley couldn’t remember who handed those items to him during the raid, and he would have to use his memory to remember who gave it to him! Cooley also testified that, prior to the raid, there were no procedures issued for the handling of evidence:

25 Q. Now, when you turn them over to forensics,

26 you’re saying it’s their responsibility to decide

27 whether they’re going to test for fingerprints or

28 not. 3178

1 A. Not exactly. It would probably be the lead

2 investigator or the investigators on the case that

3 would decide what they were going to have

4 fingerprinted and what they were going to have

5 tested for DNA.

6 Q. Now, in your function as a scribe, does it

7 ever happen that someone says to you, “See this

8 evidence. We’re going to do fingerprinting

9 testing”.

10 A. Has it ever happened to me.

11 Q. Yes.

12 A. Yes.

13 Q. It didn’t happen in this case, correct.

14 A. In —

15 Q. With respect to these three items.

16 A. In this particular case, with respect to

17 these three items, I was not told specifically that

18 these were to be fingerprinted. I just packaged

19 them like I would normally package them.

20 Q. And you were not told specifically that

21 anyone wanted to do DNA testing on those three

22 items, correct.

23 A. That’s correct.

24 Q. And who handed those items to you.

25 A. They would have been the searching

26 detectives that were assigned to that building. And

27 I do not recall who specifically handed these items

28 to me. 3179

1 Q. Don’t you normally note that on the item.

2 A. Not normally in the course of search

3 warrants that I’ve conducted. It’s my

4 responsibility to take the item and then package it

5 and seal it as the seizing deputy.

6 Q. In terms of determining what is called

7 “chain of custody,” meaning who had possession of

8 the item at a particular time, don’t you normally

9 note that on the package.

10 A. No, because I become — in my particular

11 job, I become the seizing detective. Each of these

12 items was photographed where it was located, and

13 then brought to me, and I packaged it, became the

14 seizing detective, and became responsible for the

15 evidence.

16 Q. And is any record made, to your knowledge,

17 of — excuse me, let me rephrase that.

18 Was any record made, to your knowledge, of

19 who in particular gave you either of those three

20 items.

21 A. Not to my knowledge. I have the detectives

22 listed in my report that was on scene at the time.

23 Q. If you wanted to determine who gave you one

24 of those three items, what would you do.

25 A. Probably have to go back to the detectives

26 that were on scene and ask them if they remembered

27 actually locating that item.

28 Q. You would have to rely on their memory. 3180

1 A. Correct.

2 Q. To your knowledge, no written record is made

3 when someone hands you an item of evidence that may

4 later be used in a case.

5 A. It wasn’t done in this case, no.

6 Q. It wasn’t done in this case.

7 A. No.

8 Q. Well, you’re aware that approximately 69

9 people related to the sheriff’s department descended

10 on Neverland on that particular day, right.

11 A. Correct.

12 Q. And do you know how many of those 69 people

13 or approximately 69 people were involved in the

14 search.

15 A. Of the arcade building.

16 Q. Of any part of Neverland.

17 A. Not exactly, no.

18 Q. You had a meeting of those who were going to

19 be involved in the search before you arrived,

20 correct.

21 A. Correct.

22 Q. And guidelines were given to everyone before

23 you entered Mr. Jackson’s premises, right.

24 A. Assignments were made, yes.

25 Q. And are you telling the jury that there was

26 no procedure to ensure if someone took a piece of

27 evidence or whatever they wanted to use it for and

28 handed it to another officer, there was no procedure 3181

1 to identify who did that.

2 A. Not that I recall that was brought up at the

3 briefing.

4 Q. What was brought up at the briefing, now.

5 A. Again, assignments, as to who was going to

6 be searching what part of the ranch.

7 Q. But what I’m saying is this: Aren’t reports

8 typically made — if someone decides, for whatever

9 reason, good, bad, or indifferent, to focus on a

10 particular item, pick up that item, take it to a

11 scribe, like yourself, are you saying there is no

12 record made of who actually initially retrieved the

13 item and for what reason.

14 A. I did not make a record of that, no. I

15 became the seizing detective.

16 Q. Okay. So in other words, what you’re saying

17 is, the, quote, seizing detective is responsible for

18 packaging items, but not responsible for determining

19 how those items even got to he or her, correct.

20 A. I can tell you which part of the arcade

21 building these items came from.

22 Q. But you can’t tell me who handled them

23 before you did, right.

24 A. No.

As another sign of the ineptitude of the police department, Det. Cooley stated that no record was made of who handled certain magazines and photographed them. Mesereau was clearly trying to signal to the jury that by not following basic standard operating procedures for the handling of evidence, it would make it very easy for that evidence to be tampered with or planted, or the location of where the evidence was found could be lied about and used to insinuate that Jackson was hiding it for nefarious reasons:

25 Q. And you can’t tell me where they were found

26 before you got them, right.

27 A. Only if I go back and look at the

28 photographs prior to them being brought to me. 3182

1 Q. And were they photographed before you got

2 them.

3 A. Yes.

4 Q. Okay. Would the photographs identify who

5 did the photographing.

6 A. The photographs would have on them who

7 actually took the photo.

8 Q. Would the photographs identify who actually

9 retrieved the item initially.

10 A. That I don’t know. I would have to look at

11 the photograph to see if the detective who actually

12 located the item is in the photo.

13 Q. Well, you’re aware in this case I think —

14 and tell me if you’re not. But I think you’re aware

15 that there have been photographs taken of magazines,

16 for example, that were allegedly in particular

17 locations at Neverland, right.

18 A. I was not aware of items seized or

19 photographs taken in other portions of the ranch

20 except for the arcade building.

21 Q. Well, if it became an issue in a case like

22 this how a particular magazine was in a particular

23 location, or how a book or a magazine got out of a

24 box, for example, that it initially was in, are you

25 saying no record is made of who would have put their

26 hands in the box and picked the book or magazine

27 out.

28 A. In my case, with these three items, that was 3183

1 not done.

2 Q. Do you know why that wasn’t done.

3 A. Actually, no, I don’t.

4 Q. But wouldn’t you agree that in many other

5 situations you’ve been in, it has been done.

6 A. I have never done it acting as a scribe.

7 I’ve always just seized the item, made sure it was

8 photographed prior to it being moved and brought to

9 me, or if I actually went and retrieved the item,

10 I made sure it was photographed before I moved it

11 and seized it.

12 Q. I’m sorry, I didn’t —

13 A. That’s okay.

14 Q. Did you finish.

15 A. Yes, I had.

16 Q. Let me ask you this: Let’s take one of

17 those books, okay. Doesn’t matter which one. Let’s

18 assume the book is found in a bookcase, all right.

19 A. Okay.

20 Q. Now, you know there were lots of bookshelves

21 in the library area, correct.

22 A. Correct.

23 Q. There were lots and lots of books all over

24 the library, right.

25 A. Correct.

26 Q. And you probably didn’t count them, but you

27 certainly saw shelf after shelf after shelf, right.

28 A. Yes. 3184

1 Q. And along with the shelves, you saw boxes

2 everywhere, right.

3 A. Right.

4 Q. And there were books found in those boxes,

5 right.

6 A. Correct.

7 Q. Now, if someone opens a box, takes a book

8 out, places it on the ground, looks at other books,

9 takes them out, puts them on the ground, and

10 somewhere in that search finds something they want

11 to give to you, there’s really no record of knowing

12 where that particular item was when it was first

13 seen, correct.

14 A. Correct.

15 Q. In other words, if someone took a bunch of

16 books out of a box, laid them around, and decided to

17 focus on one of them, there would be no way of

18 knowing if that person even placed that book in a

19 particular location when it was photographed, right.

20 A. Correct.

21 Q. The only real record would be that that

22 particular book was given to you and as the scribe,

23 you’re responsible for saying, “We found this in

24 this area,” right.

25 A. Correct.

26 Q. And you’re aware that sometimes it becomes

27 an issue in an investigation as to where something

28 actually was located initially, right. 3185

1 A. Correct.

2 Q. In other words, if something’s in a box, it

3 might suggest something different than if something

4 is up on a shelf in plain view, right.

5 A. Correct.

6 Q. You’re saying that in this particular

7 investigation at Neverland, with approximately 69

8 sheriffs searching, no provision was made to

9 identify exactly who found an item first and where

10 they found it, right.

11 MR. SNEDDON: I’m going to object as beyond

12 the scope. I’m going to object lack of foundation

13 as to other officers. He can only speak for himself

14 THE COURT: All right. You’re — sustained.

15 MR. MESEREAU: Okay.

Next, Mesereau asked Det. Cooley about what he thinks the intention was behind the lack of appropriate documentation of who handled all of the evidence, and Det. Cooley gave a completely cockamamie answer that elicited a sarcastic response from Mesereau:

16 Q. Was the intention, as far as you’re

17 concerned — I’m only talking about your work as a

18 scribe. Was the intention to make sure you were the

19 only person that could identify something that was

20 found in the area where you were searching. In

21 other words, was the intention the following: “If

22 an item is used in the courtroom, the records will

23 indicate that I’m the only one responsible for

24 identifying where that item was found”.

25 A. I think the intent was just to try to

26 minimize the number of people that may have to step

27 up and say, you know, “Yes, this item was seized and

28 it was seized from the arcade building during the 3186

1 course of this search.”

2 Q. Uh-huh. Now, the word “scribe” suggests

3 someone who writes something, obviously, but you

4 were doing more than that, right.

5 A. Correct.

6 Q. And if someone made the decision that a

7 particular item found was going to possibly be used

8 in the case, did you then stop your searching and go

9 down and do the sort of scribe-type function.

10 A. Yes.

11 Q. And how much time did you spend in the

12 library that day, if you remember.

13 A. I don’t recall.

14 Q. And was it a lot of time.

15 A. We were there for all day. And I don’t

16 recall exactly how much time we spent in the

17 library, no.

18 Q. Were you looking at books in the library

19 yourself.

20 A. Yes, I was looking.

21 Q. Were you going through the shelves to see

22 what books were on the shelves.

23 A. I don’t recall exactly what part of the

24 library I searched, but I’m sure I looked at some of

25 the books on the shelves.

26 Q. Well, was your desire to sort of go book by

27 book and see sort of what each book was.

28 A. I don’t recall if I actually pulled every 3187

1 book out. I think I was just more looking to see

2 what was in the general area. The library was quite

3 crowded, so I mainly stayed back at the door to do

4 the seizing.

5 Q. And to your knowledge, was any effort made

6 to forensically determine who had been in the

7 library and looking at those books.

8 A. Forensically.

9 Q. Yes.

10 A. Like fingerprints afterwards, or —

11 Q. Sure.

12 A. To the best of my knowledge, that I recall,

13 everybody was wearing gloves when they were doing

14 their searching, so if you’re — I’m not sure

15 exactly what you’re asking, here again.

16 Q. Well, everybody was told — excuse me,

17 that’s not the right word.

18 People were directed into the library,

19 walked wherever they wanted to walk, right. Looked

20 around as they chose. And if they saw a book

21 somewhere that interested them, bring it to you,

22 right.

23 A. That’s correct. We have a list of people

24 that were in the library.

25 Q. And three books were brought to you.

26 A. These three items here.

27 Q. Yes. Those three items that were brought to

28 you. 3188

1 A. Okay.

2 Q. After those three items were brought to you,

3 did you continue looking at books.

4 A. I think, if I recall correctly at this

5 point, there was evidence coming out of the library,

6 and I mainly stayed at the door and did the seizing

7 and the scribing.

8 MR. MESEREAU: Okay. No further questions.

9 THE COURT: Redirect.

10 MR. SNEDDON: One question, Your Honor.

Both Sneddon and Mesereau each had one additional question for Det. Cooley under redirect and recross-examination, respectively:

12 REDIRECT EXAMINATION

13 BY MR. SNEDDON:

14 Q. I think you told the jury before that one of

15 the ways that you ensure the integrity of where the

16 evidence came from is that you photograph in place

17 before it’s picked up and taken.

18 A. That’s correct.

19 Q. Is that a procedure that you use.

20 A. Yes, it is.

21 Q. To your knowledge, is that a procedure that

22 was used this day.

23 A. Yes, it is.

24 MR. SNEDDON: No further questions.

25 MR. MESEREAU: Very briefly, Your Honor.

26 //

27 //

28 // 3189

1 RECROSS-EXAMINATION

2 BY MR. MESEREAU:

3 Q. Mr. Sneddon used the word “in place.”

4 Please tell the jury what the word “in place” means,

5 to you.

6 A. To me, “in place” means that the item was

7 photographed where the searching detective located

8 that item.

9 Q. Now, if an item is found at the bottom of a

10 box, pulled out of the bottom of the box and then

11 photographed, there is no guarantee it’s going to be

12 photographed at the bottom of the box where it was

13 found, correct.

14 MR. SNEDDON: Your Honor, I’m going to

15 object as assumes facts NOT in evidence, that it

16 wasn’t photographed in place.

17 THE COURT: The objection is sustained, but

18 I’ve warned you not to use speaking objections.

19 MR. SNEDDON: All right.

20 THE COURT: Objection sustained.

21 MR. SNEDDON: Lack of foundation.

22 MR. MESEREAU: No further questions, Your

23 Honor.

24 MR. SNEDDON: I have no further questions.

25 THE COURT: Thank you. You may step down.

To be continued: https://michaeljacksonvindication2.wordpress.com/2012/08/17/march-23rd-2005-trial-analysis-robert-charles-cooley-freddy-padilla-craig-bonner-and-antonio-cantu-direct-examination-part-2-of-2/

3 Comments leave one →
  1. nannorris permalink
    August 15, 2012 11:51 pm

    Congratulations David ..I for one am so thankful that you have done so much research and are sharing it with all of us.Well done..!
    =============
    just a comment regarding this part..
    The District Attorney has focused

    26 on four, and provided us last night with the

    27 particular exhibits that they wish to introduce,

    28 somewhere around 6:30, 7 o’clock last night. 3134

    1 Those particular items are culled from the

    2 voluminous CDs and other materials that were

    3 provided in the course of the case, in the course of

    4 discovery, but now, for the first time, we can see

    5 exactly what they want to introduce and try to

    6 divine what the theory is.

    7 I received some other material by e-mail

    8 last night after that, which is not of much

    9 consequence. The big thing is what was delivered to

    10 us by hand.
    —————-
    the arrogance of these prosecutors to have someone walk this stuff over to the defense team at nearly 7 oclock at night,the night before bringing it to court…… which is just about the time Mesereau usually went to bed during this trial…….. is just such as dirty move..talk about running this trial with a street fight mentality …pft

  2. sanemjfan permalink
    August 15, 2012 10:33 pm

    Guys, I hit a major milestone earlier today! This was my 100th post! Who would have thought that what started out as a simple hobby would turn into a passion? LOL! I tweeted links to some of my greatest posts, so check out my twitter here: https://twitter.com/sanemjfan

Trackbacks

  1. March 22nd, 2005 Trial Analysis: Louise Palanker (Direct & Cross Examination), Part 2 of 2 « Michael Jackson Vindication 2.0

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