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March 28th, 2005 Trial Analysis: Judge Melville’s Decision on Prior Bad Acts & Settlements Evidence, George Lopez, Ann Serrano Lopez, and Robert Spinner (Direct & Cross Examination), Part 1 of 4

September 4, 2012

Before the jury was seated, defense attorneys and prosecutors addressed Judge Melville about the admissibility of the §1108 “Prior Bad Acts” evidence. Before I get to the excerpts of their arguments, I would like to show you the pleadings that were filed before and during the trial regarding the admission of the Prior Bad Acts witnesses:

On December 10th, 2004, the prosecution filed their motion titled “PLAINTIFF’S MOTION FOR ADMISSION OF EVIDENCE OF DEFENDANT’S PRIOR SEXUAL OFFENSES”, in which they named seven “victims” of Jackson from the early 1990’s, as well as adults who claimed to have witnessed Jackson abuse them: Jason Francia, Jonathan Spence, Wade Robeson, Brett Barnes, Macaulay Culkin, Jimmy Safechuck, and Jordan Chadler.

The prosecution’s list of MJ’s “victims”!

Notice the footnote at the bottom of that page regarding Jordan Chandler; on December 6th, 2004 the prosecution listed Jordan as a potential witness against Jackson, despite the fact that on September 28th, 2004 Jordan met with Zonen and the FBI, and not only did he tell them that he wouldn’t testify against Jackson, but he would also take legal action to fight his subpoena!  Jordan told them that he had “done his part”! What kind of “victim” threatens legal action to avoid testifying against his abuser? Think about it! Here is an excerpt from his FBI file:

On January 4th, 2005 the defense filed a motion titled “OPPOSITION TO DISTRICT ATTORNEY’S MOTION FOR ADMISSION OF ALLEGED PRIOR OFFENSES”, in which they argued that the §1108 witnesses should not be allowed because their testimony would offer more prejudicial than probative value, they lacked any credibility whatsoever, they were only being offered as a way to shore up the prosecution’s current case, which in and of itself had major credibility problems.

On January 7th, 2005 the defense filed a motion titled “MOTION FOR AN ORDER THAT THE HEARING ON THE DISTRICT ATTORNEY’S MOTION FOR ADMISSION OF ALLEGED PRIOR OFFENSES AND ALL OTHER PRETRIAL HEARINGS ON THE ADMISSIBILITY OF EVIDENCE BE HEARD IN CHAMBERS” to ask that the pretrial hearings to decide if the 1108 witnesses would be admitted should be held behind closed doors because, with the upcoming jury selection, Jackson’s right to a fair trial would be diminished if the media reported about the salacious allegations of the prior bad acts witnesses. (The decision to have this meeting was delayed until March 18th.)

As expected, the media vehemently opposed the idea of ANY hearings on the 1108 witnesses to be held in chambers; in fact, they wanted the whole doggone trial televised! On January 10th, 2005 they filed “ACCESS PROPONENTS’ OPPOSITION TO DEFENDANT’S MOTION FOR AN ORDER THAT THE HEARING ON THE DISTRICT ATTORNEY’S MOTION FOR ADMISSION OF ALLEGED PRIOR OFFENSES BE HEARD IN CHAMBERS”, and in it they argued that they have a First Amendment right to inform the public of all of the happenings in the case, and that Jackson’s approach to secrecy had been rejected by the Supreme Court of California in a similar case.

On that date, Sneddon also filed a motion to oppose having the 1108 hearings held in chambers, titled “PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION THAT THE HEARING OF PLAINTIFF’S EVIDENCE CODE 1108 MOTION BE HELD IN CAMERA”. He argued that the defense was trying to have it both ways, and that they did not object to having their arguments held in open court, in full view of the media.

Here is Sneddon’s reply to Mesereau’s opposition to the admission of the 1108 witnesses, titled “PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S EVIDENCE CODE 1108 MOTION, which was also filed on January 10th, 2005. Sneddon’s main points were that the testimonies of the 1108 witnesses were credible because they were provided to law enforcement before being sold to tabloids (yeah, whatever), the two grand juries in 1994 were never “asked” to indict Jackson, and the testimony was more probative than prejudicial.

On March 18th, 2005 the prosecution filed a motion titled “PLAINTIFF’S NOTICE OF REQUEST FOR HEARING ON PENDING MOTION FOR ADMISSION OF EVIDENCE OF DEFENDANT’S PRIOR SEXUAL OFFENSES”, in which he requested that Judge Melville set a date for the hearing to decide whether the 1108 evidence would be admitted. (Today was that date.)

On March 25th, Mesereau filed a pleading titled “SUPPLEMENTAL BRIEF IN SUPPORT OF OPPOSITION TO DISTRICT ATTORNEY’S MOTION FOR ADMISION OF ALLEGED PRIOR OFFENSES”, in which he specifically laid out the facts which undermined the credibility of the 1108 witnesses, including Blanca & Jason Francia, the Quindoys, Kassim Abdool, Adrian McManus, and Ralph Chacon, among others.

Ok, so now that those motions are out of the way, here are excerpts from the arguments made by the defense and the prosecution; let’s start with Sneddon’s explanation of why Penal Code 1108 was passed in 1995:

9 THE COURT: Good morning.

 

10 COUNSEL AT COUNSEL TABLE: (In unison)

 

11 Good morning, Your Honor.

 

12 THE COURT: I’ll say that again. Good

 

13 morning.

 

14 MR. SANGER: Good morning.

 

15 THE COURT: Let’s see, the moving party here

 

16 is the People.

 

17 MR. SNEDDON: Good morning, Your Honor.

 

18 What I would like to do in my presentation

 

19 this morning is to proceed by setting a little bit

 

20 about the legal framework for which the discussion

 

21 on the 1108 motion in particular, and begin with the

 

22 1108 motion.

 

23 And I think the simplest way to begin with

 

24 this discussion is the fact that in 1995, the

 

25 legislature, in enacting Penal Code Section 1108,

 

26 significantly changed the law in California and the

 

27 practice of criminal law in California. It’s clear

 

28 from the legislative intent of Section 1108 that it 3728

 

1 was a recognition that crimes such as child

 

2 molestation are secretive, they’re serious,

 

3 children are particularly and uniquely vulnerable,

 

4 and that oftentimes, and in most cases in fact, it’s

 

5 the credibility of the victim that is at issue.

 

6 The Supreme Court in Falsetta that upheld

 

7 Section 1108 against the constitutional attacks made

 

8 it very clear that these types of crimes are

 

9 committed in seclusion, without third-party

 

10 witnesses, and without substantial corroborating

 

11 evidence. And it’s precisely for that reason that

 

12 the legislature enacted Penal Code Section 1108.

 

13 Secondly, there was a legislative finding

 

14 that has been repeated over and over and over again

 

15 by the courts of this state in recognizing the

 

16 validity of that particular — this particular

 

17 legislative finding; that is, that the willingness

 

18 to commit sexual offenses is not common to most

 

19 individuals, and therefore propensity evidence is

 

20 uniquely probative and necessary in determining the

 

21 credibility of witnesses.

 

22 There’s a further legislative intent

 

23 reflected in 1108 that has again been repeatedly

 

24 confirmed by the courts of this state, and that is

 

25 that Evidence Code Section 1108 evidence should be

 

26 liberally admitted. Indeed, cases now recognize

 

27 that it’s established principle that it is

 

28 presumptive to be admissible in criminal cases. 3729

 

1 We feel for this reason that the evidence,

 

2 and the pro-offer of proof that we’ve indicated to

 

3 the Court we intend to present would be in this

 

4 case, is consistent with the legislative intent and

 

5 consistent with the judicial interpretation of

 

6 Section 1108 and be uniquely admissible as to

 

7 corroborating the victims in this particular case.

Next, Sneddon argues that the very fact that Mesereau challenged the credibility of the Arvizo family is the reason why the 1108 witnesses should be admitted (essentially, what he’s trying to say is that just because the Arvizo family lied in the past, it doesn’t mean they’re lying now):

8 Now, in that connection, Your Honor, the

 

9 Court is in a much better position now than it would

 

10 have been to hear this motion before trial started

 

11 because the Court’s now had an opportunity to see

 

12 the testimony and the evidence of Gavin Arvizo, that

 

13 of the sister and of the brother.

 

14 But more importantly, the Court has had an

 

15 opportunity to hear Mr. Mesereau’s opening statement

 

16 and Mr. Mesereau’s cross-examination of the family

 

17 members in this particular case, and including Gavin

 

18 Arvizo. There’s no question that they have

 

19 presented squarely the fact that the issue — that

 

20 the family’s credibility, and Gavin Arvizo’s

 

21 credibility, and in fact indeed the mother’s

 

22 credibility, is central to the defense case, and

 

23 that is precisely — precisely the reason that 1108

 

24 was enacted.

 

25 Pursuant to their theory, I don’t think it’s

 

26 been any secret, it’s been a scorched-earth process,

 

27 there’s a take-no-prisoners approach to these

 

28 children and to this mother who is going to testify 3730

 

1 in the next couple of weeks. And while this

 

2 approach is hardly unique, it’s hardly unexpected

 

3 and it’s hardly novel, the point is that these are

 

4 precisely the kind of tactics that the legislature

 

5 recognized where propensity evidence should be

 

6 admitted in order to balance the scales in

 

7 situations where an accused has exhibited propensity

 

8 to commit similar types of crimes.

Next, Sneddon describes what one victim (Jason Francia) will testify about in the event that his testimony is admitted, as well as what some of the adult witnesses will testify:

9 Now, I don’t intend to go through the offers

 

10 of proof in detail, because the Court already has

 

11 the information before it. But I would like to

 

12 summarize what it is for the Court that we’re

 

13 seeking to admit.

 

14 First, we’re asking the Court’s permission

 

15 to allow us to have one prior child victim testify

 

16 to three separate incidents of molestation by the

 

17 defendant. The molestations are very similar in

 

18 nature. They involved the genitalia of the kid —

 

19 of the child, and they involve instances where —

 

20 two instances outside the clothing of the child on a

 

21 prolonged basis, and a third incident where the

 

22 child — where the hand was thrust up inside the

 

23 pants of the child, onto the skin of the child.

 

24 We’re seeking to admit no less than five

 

25 third-party witnesses of inappropriate molestations

 

26 and touchings by the defendant as to four separate

 

27 children. Again, the conduct is similar in nature.

 

28 Some of it is kissing, hugging. And other parts of 3731

 

1 it involve, again, insertion of the defendant’s hand

 

2 into the genitalia of the particular children

 

3 involved.

 

4 I think it’s noteworthy to bring to the

5 Court’s attention, as I will also cover in certain

 

6 parts of my other presentation to the Court, all of

 

7 these children are basically between the ages of 10

 

8 and 13 at the time that the offenses occurred or

 

9 were observed by third parties.

 

10 Thirdly, there is — there are some

 

11 witnesses who have direct observation by third-party

 

12 witnesses that involve multiple incidents involving

 

13 the same child. So we not only have witnesses that

 

14 are multiple, but we have multiple incidents

 

15 involving observations of the third party.

 

16 We have an additional incident — an

 

17 additional witness who will testify to incidents

 

18 involving the defendant with children, four other

 

19 children, observing the defendant in bed with four

 

20 other children, and on three of those occasions

 

21 observing the child and the defendant in bed, and

 

22 that the child and the defendant’s underpants were

 

23 lying next to the bed.

 

24 We have a sixth incident that involves the

 

25 same child that has already been observed by at

 

26 least two other witnesses that are on our list to be

 

27 called as being — that observed acts of molestation

 

28 by the defendant. And this witness observed the 3732

 

1 defendant licking the head of a child in the

 

2 identical manner to that described by Star Arvizo,

 

3 as will be described by Janet Arvizo. We think this

 

4 is particularly probative in light of the

 

5 defendant’s contention filed by papers in this court

 

6 that this is an example of Janet Arvizo’s delusional

 

7 state that she saw this, when, in fact, we have

 

8 another witness who saw this very conduct occur by

 

9 the defendant as to another child about the same age

 

10 as Gavin Arvizo.

 

11 Lastly, we have two witnesses that will

 

12 testify to the fact that the defendant encouraged

 

13 children to call him “daddy,” children other than

 

14 the children in this case, and that he talked about,

 

15 with the mother of one of the children, how it was

 

16 important that the mother think of him and the

 

17 children and them as being all one big family, and

 

18 they were like family together. Again, conduct and

 

19 statements which have been, to this point in the

 

20 trial, alleged to have been uniquely responsible to

 

21 the Arvizo family, when, in fact, there’s evidence

 

22 indicating that the defendant has used this approach

 

23 with children and families prior to the commencement

 

24 of the trial of this particular case and in other

 

25 instances involving families that are not — have

 

26 not have been a party so far.

In this excerpt, Sneddon attempted to clarify the difference between evidence that causes “undue prejudice” versus evidence that causes “substantial prejudice”:

27 With regard to the 1108, of course, the

 

28 central issue is the balancing of the probative 3733

 

1 value versus the substantial undue prejudice to the

 

2 defendant. I think that it is — it is important to

 

3 keep in mind what the courts have said about undue

 

4 prejudice and what the courts have said about a

 

5 substantial prejudice, because these are concepts

 

6 that are unique in the legal profession and they are

 

7 unique to cases such as this.

 

8 And I think the first starting point for us

 

9 in this regard, Your Honor, is the language that is

 

10 found in cases that recognize that the unique stigma

 

11 of a child sexual abuse case, the danger is one that

 

12 all propensity evidence — it is the same in all

 

13 propensity evidence in such trials. It is for this

 

14 reason that the evidence was previously excluded but

 

15 is precisely the reason now that it’s admitted into

 

16 evidence.

 

17 So simply the fact that it is a child molest

 

18 prior charge or uncharged offense in and of itself

 

19 doesn’t answer the question as to whether it’s

 

20 prejudicial. In fact, the language that we’ve

 

21 quoted to the Court in our moving papers of the

 

22 Branch court, the Branch case made it very clear

 

23 that where the conduct of the defendant in the case

 

24 before the Court and the conduct of the defendant in

 

25 the charged or uncharged acts is very similar in

 

26 nature, that that is found not to be what the courts

 

27 would consider inflammatory or prejudicial under the

 

28 concept of 1108. 3734

 

1 And that is precisely the situation that we

 

2 have here. The conduct is very similar, if not

 

3 identical, in many of the instances, and therefore

 

4 in the balancing of the 352 criteria, under the

 

5 doctrines of those cases that have analyzed the

 

6 balancing process, that has not been found one that

 

7 would cause the Court concern in allowing this

 

8 evidence to come before a court.

 

9 I think it’s also important, Your Honor, to

 

10 recall the language in the Soto case that we cited

 

11 to the Court with regard to prejudice. And if the

 

12 Court would allow me, I’d like to read just a little

 

13 bit from that decision at page 989:

 

14 “Prejudice, as contemplated by Section 352,

 

15 is not so sweeping as to include any evidence the

 

16 opponent finds inconvenient. Evidence is not

 

17 prejudicial, as that term is used in Section 352

 

18 context, merely because it undermines the opponent’s

 

19 position or shores up that of the proponent. The

 

20 ability to do so is what makes evidence relevant.

 

21 The code speaks in terms of undue prejudice. The

 

22 prejudice referred to in Evidence Code 352 applies

 

23 to evidence which uniquely tends to evoke an

 

24 emotional bias against a defendant as an individual

 

25 which has very little effect on the issues. In

 

26 applying 352, prejudice is not synonymous with

 

27 damaging.”

 

28 I think that’s important in this case, 3735

 

1 particularly in light of what I’ve just said about

 

2 how the Branch case and the Falsetta case and some

 

3 of the others have applied the principle that when

 

4 the case is similar in nature and the conduct is

 

5 similar in nature, that that doesn’t rise to be

 

6 inflammatory under the balancing process.

Next, Sneddon mentioned four factors that are consistent with all of the accusers (intent, motive, opportunity, and modus operandi), and which strengthen his argument for the inclusion of the 1108 evidence:

11 Let me just say one last thing in that

 

12 connection, Your Honor, and that is one of the

 

13 things that the Court has looked at in factors of

 

14 admissibility in this area in terms of the probative

 

15 value. And I’ve talked a lot about the prejudicial

 

16 effect. But the probative value, that there are

 

17 three principles I think that can be distilled from

 

18 the cases in this area.

 

19 From the Ewoldt case, E-w-o-l-d-t, which is

 

20 one of the leading cases on 1101 evidence, but

 

21 clearly the language is probative on this particular

 

22 issue, and that is the probative value of uncharged

 

23 offenses increases when the source is of independent

 

24 evidence. And by the way, that very language has

 

25 been cited in some of the 1108 cases, and so that’s

 

26 the reason I went back to the seminal case on it.

 

27 But the fact of the matter is, that’s exactly what

 

28 we have here is uncharged offenses which are of an 3741

 

1 independent source and independent witnesses.

 

2 In the Yavanov, Y-a-v-a-n-o-v, case, which

 

3 is cited in our brief, and the language is found at

 

4 page 405, another factor on the probative value is

5 the frequency of the uncharged acts bolsters the

 

6 relevance. And again, we have — as I’ve indicated

 

7 to the Court, the frequency and the number of

 

8 individuals involved who observed things as well as

 

9 the different number of victims that were observed.

 

10 And lastly, the Frazier case at 89

 

11 Cal.App.4th, page 30 at page 41, indicated insofar

 

12 as 1108 evidence goes that the pattern as to the

 

13 same type of children is significant in the

 

14 balancing process.

 

15 And we submit to the Court that in this

 

16 case, of course, the pattern in the similarities;

 

17 that the victims are similar in age, the manner in

 

18 which the victims were cultivated is similar, and

 

19 the crimes are similar. And under these doctrines,

 

20 I think, are all the more reason why this evidence

 

21 should be admissible.

 

22 At this point, Your Honor, I’d like to just

 

23 shift gears, if I might, to deal a little bit with

 

24 the 1101 issue before the Court. And again, I’ll

 

25 try not to go over things I’ve already covered and

 

26 that have been briefed, but I want to highlight some

 

27 of the things that are more relevant to the Court’s

 

28 decision here this morning. 3742

 

1 I think it’s important to start again with

 

2 the cases that are responsible for developing the

 

3 guidelines under Section 1101 of the Evidence Code.

 

4 And, you know, those two cases are — came down at

 

5 the same basic time, and that was Ewoldt and Balcom,

 

6 B-a-l-c-o-m. Balcom’s at 7 Cal.4th, and the

 

7 language I’m citing is around 424. But they make it

 

8 very clear — that decision made it very clear that

 

9 when Courts are faced with evidence admissibility

 

10 under 1101, that they are usually and traditionally

 

11 divided into three camps. There’s the identity, the

 

12 modus operandi and intent. And there are different

 

13 standards for the Court with regard to reviewing the

 

14 admissibility.

 

15 And we have indicated to the Court that we

 

16 are seeking to admit the evidence that we put in our

 

17 offer of proof under at least three, if not four,

 

18 separate exceptions that are noted in 1101(b) of the

 

19 Evidence Code. And the first, of course, is the

 

20 intent. And by intent, we’re talking about the lewd

 

21 and lascivious act and the sexual gratification for

 

22 which the acts were done in this case. And

 

23 particularly I think if you look at the language in

 

24 the Branch case at 91 Cal.App.4 at 274, you’ll see

 

25 in an analysis of that case how the intent or the

 

26 sexual gratification is a key issue in cases of

 

27 288(a), which is the kind of offense that we have

 

28 before the Court here. 3743

 

1 Again, we indicated to the Court a second

 

2 reason for the admissibility is the motive. And the

 

3 motive has been recognized by the Thompson case,

 

4 which we also cited to the Court, is the incentive

 

5 to criminal behavior. And here it’s a propensity,

 

6 proclivity for the defendant to be involved in

 

7 relationships with children between the ages of 10

 

8 and 13.

 

9 And lastly — well, in addition to

 

10 opportunity, we indicated the modus operandi, and I

 

11 want to point out just a couple of things on modus

 

12 operandi. Modus operandi on the scale of the issues

 

13 on both the Ewoldt and Balcom cases is in the

 

14 middle. And when it’s intent, there needs to be

 

15 less similarities. When it’s identity, there needs

 

16 to be almost like a hand print. And for modus

 

17 operandi, it’s sort of in the middle. But both

 

18 Balcom and Ewoldt make it very clear that when

 

19 you’re dealing with modus operandi, it does not have

 

20 to be distinctive necessarily, nor does it have to

 

21 be unusual.

 

22 Now, I would submit to the Court, on the

 

23 other hand, in this particular case we have both a

 

24 distinctive one and an usual one, and that is that

 

25 we have a series of acts involved on male children

 

26 between the ages of 10 and 13. And we have pointed

 

27 out to the Court in our points and authorities a

 

28 number of cases that have found, in evaluating the 3744

 

1 admissibility of 1101 evidence, critical

 

2 similarities that are far less unique than the ones

 

3 I’ve suggested to the Court here.

 

4 I won’t go through the whole litany, but

 

5 I’ll direct the Court to page 46 of our brief

 

6 between lines 20 and 28, and we indicated to the

 

7 Court there are no less than, looks like, eight

 

8 cases in which the courts of the state have admitted

 

9 evidence under 1101 where the similarity involved

 

10 things just like I have suggested to the Court.

 

11 Victims: Close relatives, white, young, females,

 

12 all white males between the ages of 18 and 25. I

 

13 mean, how close can you get? Two 12-year-old

 

14 children. So I think the Court is on very firm

 

15 ground in evaluating the admissibility of evidence

 

16 that we seek under 1101(b) to rely on those cases

 

17 and rely on the distinctive nature of the uncharged

 

18 offenses in this particular case.

 

19 Of course in the 1101 field, the balancing

 

20 test, the four factors that were outlined in 1108

 

21 also apply to 1101(b), and I — without reiterating

 

22 them — and I won’t reiterate the factors that I’ve

 

23 gone through, but I see nothing in the evidence that

 

24 we seek under 1101(b) that my remarks to the Court

 

25 would be any different than the remarks I made under

 

26 1108. And, in fact, probably, in many cases, would

 

27 follow even stronger in the area of admissibility

 

28 than they would have been in the 1108 area. 3745

Finally, Sneddon ended his opening statement by stating that Jackson had a habit of “paying off” parents with large shopping sprees in order to keep them busy as he spent time alone with their sons, and that this is why the Arvizos went on so many shopping sprees (although, according to Sneddon’s opening statement, all of the Arvizos went shopping TOGETHER with Frank Cascio and Vinnie Amen, so Jackson couldn’t have been alone with Gavin while his family was out shopping!):

15 I would like to reiterate that I think

 

16 there’s a couple of things that need to be said

 

17 here. The defense has made a big thing about the

 

18 fact that the defendant — in fact, Mr. Mesereau

 

19 stood up in his opening statement and read off a

 

20 list of things that the defendant, Michael Jackson,

 

21 has bought the mother of the victim in this case.

 

22 And I think it’s illustrative of the fact

 

23 that this is not unique to the mother in this

 

24 particular case, but that — to other mothers

 

25 involved with other children, that we intend to put

 

26 evidence on that this was a rather standard

 

27 procedure for the defendant to buy gifts and to do

 

28 things for the mothers in those cases to keep them 3746

 

1 preoccupied so the defendant would have free rein

 

2 with the child involved.

 

3 And again, the other part of the 1108 is to

 

4 establish that the nature of the relationship with

 

5 these children, that there was nothing unique about

 

6 the relationship that was developed between Gavin

 

7 Arvizo and the defendant in this case, that it was

 

8 precisely — precisely like the kind of relationship

 

9 that he developed and had with a number of special

 

10 friends over a period of a number of years that were

 

11 witnessed by the witnesses that we’ve indicated to

 

12 the Court, that have observed that kind of

 

13 relationship between the defendant and children

 

14 between the ages of 10 and 13. And by “that kind of

15 relationship,” I want to make it clear to the Court

 

16 what I’m talking about. It’s a relationship

 

17 different from that, from kids who are visiting that

 

18 ranch for purposes of riding the rides, going to the

 

19 movies, enjoying the facilities, and then leaving,

 

20 on a day basis.

 

21 These are relationships that were developed

 

22 on an ongoing basis where the children came, they

 

23 visited, oftentimes they visited without their

 

24 parents. They visited other locations where the

 

25 defendant was living at other times, and developed

 

26 the kind of relationship that we have heard

 

27 testimony about with Gavin Arvizo. And I think,

 

28 again, that this is the kind of evidence precisely 3747

 

1 that this jury ought to hear, that this is not the

 

2 first time that the defendant has approached a child

 

3 in this manner and in this respect and think that

 

4 it’s a unique experience for Gavin Arvizo. That, in

 

5 fact, this is the way that the defendant operates.

 

6 And that’s precisely why I believe that the modus

 

7 operandi exception is uniquely applicable to this

 

8 particular case.

 

9 I’m assuming, Your Honor, that just about,

 

10 I think, wraps up what I wanted to draw the Court’s

 

11 attention to. Of course, I don’t want to repeat the

 

12 things we put in our brief. And I’ll reserve, of

 

13 course, my remarks.

 

14 I think the Court would like to — I’m

 

15 assuming the Court would like to handle the

 

16 admissibility of the evidence of the civil

 

17 settlements after the Court finishes this evidence,

 

18 and I’m not addressing that now.

 

19 THE COURT: That’s fine.

 

20 MR. SNEDDON: I’m open to any questions that

 

21 the Court has at this point, if you have any.

 

22 THE COURT: No.

 

23 MR. SNEDDON: Thank you very much, Your

 

24 Honor, for listening to me.

Here is Mesereau’s response; I won’t even bother trying to summarize it, because he was so eloquent and articulate that I want everyone to see everything he said in its entirety! He gave a lot of excellent information that fans should use to rebut any and all arguments that Jackson molested children in the 1990s.

And let me just say that I wholeheartedly disagree with Mesereau’s assertion in Paragraph 3761 that Sneddon’s attempt to prosecute Jackson in 1993 was “noble”, but he probably said it just to sound professional and cordial in front of Judge Melville:

25 MR. MESEREAU: Good morning, Your Honor.

 

26 Your Honor, my approach is going to be quite

 

27 different from that of the prosecutor. And my

 

28 approach is based upon comments made by this Court 3748

 

1 at a prior hearing on this issue.

 

2 When the issue initially surfaced in open

 

3 court, this Court very courageously and honorably

 

4 described a prior incident where Your Honor was the

 

5 trial judge in a case brought by prosecutors against

 

6 a defendant alleging child molestation. The

 

7 defendant pled not guilty. The Court used all of

 

8 the cases, I’m sure, that Mr. Sneddon has cited to

 

9 justify the admission of 1108 evidence. The Court

 

10 heard that 1108 evidence, then the Court heard the

 

11 underlying case, and as I interpreted what the Court

 

12 said, Your Honor, you found the underlying case so

 

13 lacking in credibility and substance and so

 

14 problematic that you declared a mistrial, even

 

15 though you had, under the technical law cited by

 

16 Mr. Sneddon repeatedly this morning, allowed in 1108

 

17 evidence.

 

18 THE COURT: Counsel, that — actually, I

 

19 granted a new trial after conviction, but the same

 

20 point.

 

21 MR. MESEREAU: Okay.

 

22 THE COURT: Based on that point.

 

23 MR. MESEREAU: I have no doubt that every

 

24 case and authority cited by Mr. Sneddon could have

 

25 been used to justify the admission of that evidence.

 

26 But the Court did not just rely on those cases. The

 

27 Court did not just rely on those authorities. The

 

28 Court had a concern for justice, and fairness, for 3749

 

1 which we commend the Court. And the Court was not

 

2 going to allow the 1108 statute to supersede

 

3 fairness, justice, the presumption of innocence and

 

4 the burden of proof.

 

5 And I think the Court crystallized the issue

 

6 before it this morning when you related that event.

 

7 What I believe the Court was concerned with, and I’m

 

8 putting it in slightly different terms, is that this

 

9 Court, despite that statute, did not want to see

 

10 either the burden of proof or the presumption of

 

11 innocence reduced or eliminated by the introduction

 

12 of that evidence. And what I believe the Court

 

13 said, in different words, was the following: The

 

14 weaker the case, the more problematic the 1108

 

15 evidence. The stronger the underlying case, the

 

16 less a possibility of prejudice and injustice by

 

17 admitting it.

 

18 And indeed, no matter what the prosecutor

 

19 may cite in his arguments to the Court, the statute

 

20 does allow the Court to exercise discretion under

 

21 Evidence Code 352, and that discretion is

 

22 significant.

 

23 That gets us to the question, what has the

 

24 Court seen in this courtroom? Is the case strong on

 

25 credibility and substance or is it weak on

 

26 credibility and substance? If it’s really powerful,

 

27 the Court probably is less worried. If there are

 

28 credibility problems with their case and their 3750

 

1 witnesses, the Court has great concern to worry

 

2 because the potential for lessening the burden of

 

3 proof on the prosecution in this case would be

 

4 great.

 

5 Now, the Court is dealing with some unique

 

6 situations. First of all, you have a celebrity. A

 

7 celebrity who has been subjected to all kinds of

 

8 innuendo, scandalous reporting and rumor, and a

 

9 celebrity who has attracted all kinds of claims for

 

10 money, who has developed a lifestyle at Neverland

 

11 which he has advertised to the world, which he

 

12 believes and contends, and many believe, is a

 

13 benefit to society. The prosecution has come in to

 

14 try and turn all this on its head and suggest that

 

15 Neverland is some magnet for molestation and

 

16 criminal behavior. Well, that’s going to be an

 

17 issue for the jury. But certainly at this point the

 

18 Court knows, based on the evidence alone, that Mr.

 

19 Jackson has developed Neverland as a Disney-like

 

20 type of world that he uses to help children from the

 

21 inner city, children around the world, et cetera.

 

22 There’s a bigger problem than the uniqueness

 

23 of the case, and none of the cases cited by Mr.

 

24 Sneddon deal with celebrities or anyone remotely

 

25 close to Mr. Jackson in terms of notoriety and

 

26 attraction for greed and misuse of the legal

 

27 process.

 

28 The Court has seen three witnesses who the 3751

 

1 Court — who the prosecution suggests are victims.

 

2 And without going into a lot of the details, which I

 

3 don’t think the Court wants me to give a closing

 

4 argument at this point, but there is no question all

 

5 three of those witnesses have been riddled with

 

6 problems in their testimony. All have agreed they

 

7 lied repeatedly. All were caught lying on the

 

8 witness stand. All were caught in notorious and

 

9 repeated inconsistencies and all contradicted

10 themselves repeatedly. Every witness was a problem.

 

11 Now, if the Court agrees there are

 

12 significant credibility problems with Gavin Arvizo,

 

13 Star Arvizo, and Davellin Arvizo — and I believe

 

14 the Court does, because I don’t see how anyone

 

15 watching the cross-examination could disagree with

 

16 that. If the Court thinks there are issues to worry

 

17 about, I would ask the Court to add to that concern

 

18 the following: Gavin alleges two acts of alleged

 

19 molestation. There is no eyewitness to either one.

 

20 And there is no DNA to support it. In fact, there’s

 

21 no forensic evidence at all to support it. Star,

 

22 along with his credibility problems, alleges — it

 

23 changes, the number. But he appears to allege two

 

24 acts of molestation, separate from those of Gavin

 

25 that he watched. There is no eyewitness. There is

 

26 no DNA. There is no forensics to support it.

 

27 So as the Court looks at the evidence so

 

28 far, what do you really have? You have what, in 3752

 

1 effect, is a very problematic case, and I submit the

 

2 prosecutors know that. It’s extremely problematic.

 

3 It’s filled with credibility issues. And those

 

4 credibility issues I submit to the Court at this

 

5 point are compounded by the evidence they’ve tried

 

6 to introduce so far about conspiracy.

 

7 Now, I realize we’re talking this morning

 

8 about the molestation claims, but certainly the

 

9 Court, and any jury, when gauging credibility, if

 

10 the Court thought the conspiracy claims were

 

11 problematic, filled with credibility issues, that

 

12 would most certainly and rationally spill over into

 

13 other claims and vice versa.

 

14 Now, the Court at this point has heard the

 

15 prosecutors talk about the mother. You’ve seen the

 

16 rebuttal tape. You’ve seen the demeanor of the

 

17 witnesses. You’ve seen the three witnesses get up

 

18 and say, “We all were lying repeatedly.” The Court

 

19 at this point has its own conclusions about what

 

20 that rebuttal tape suggests and whether these

 

21 answers were spontaneous or whether they were

 

22 scripted and rehearsed. And I don’t think anyone

 

23 looking at that tape is even going to imagine that

 

24 these are all rehearsed answers. The Court knows

 

25 that the family were sending cards to Mr. Jackson

 

26 way before they made their glowing statements on the

 

27 rebuttal tape calling him “daddy” and how he had

 

28 helped Gavin with his cancer, et cetera. 3753

 

1 The Court has seen witnesses come in who

 

2 have tried to downplay what Mr. Jackson did for them

 

3 and get caught in notorious lies repeatedly. The

 

4 Court has seen notorious differences between what’s

 

5 said on the witness stand, what’s said in police

 

6 interviews, et cetera.

 

7 Now, the Court hasn’t seen the mother yet.

 

8 And we wish the Court would see the mother before it

 

9 makes its decision, because everything I’m arguing

 

10 to the Court is going to be magnified a million

 

11 times when she testifies.

 

12 What the Court has seen the prosecution do

 

13 is the following: They have desperately tried to

 

14 prove to this jury why their witnesses would tell

 

15 repeated lies, why they would contradict themselves,

 

16 why they were caught in numerous inconsistencies.

 

17 They are reduced, as prosecutors, not to just

 

18 proving a case beyond a reasonable doubt, but trying

 

19 to prove to a jury why their witnesses lied. And

 

20 they’ve gotten so desperate they’re now trying to

 

21 differentiate the mother from the ex-husband, which

 

22 is simply not going to work, because one of their

 

23 witnesses, Louise Palanker, when she wrote her first

 

24 check for $10,000, was asked by the husband to write

 

25 it to Janet Arvizo. It was received by Janet,

 

26 endorsed by Janet into her mother’s account. And of

 

27 course, as the Court knows, the next check which Ms.

 

28 Palanker wrote, because she didn’t want to pay a 3754

 

1 gift tax, wanted it to go to another individual, was

 

2 written to David. It was then also endorsed by him

 

3 and deposited into Janet mother’s account.

 

4 The prosecution is reduced now to trying to

 

5 prove that Janet Arvizo did not always directly ask

 

6 for money, and yet the overwhelming proof is going

 

7 to be that she didn’t directly ask for it, she

 

8 indirectly did, and received it. And that’s going

 

9 to be absolutely proven beyond any doubt when the

 

10 case is finally to the jury. Because we have

 

11 witnesses coming in our case that nobody has seen

 

12 yet.

 

13 I submit to this Court that the introduction

 

14 of 1108 evidence is very problematic, given the weak

 

15 nature and the contradictory nature of their case.

 

16 I submit that the introduction of 1108 evidence

 

17 could easily reduce the burden of proof the

 

18 prosecutors have, could easily jeopardize the

 

19 presumption of innocence in this case and could

 

20 render an unfair trial.

 

21 Again, I understand what the cases say and

 

22 what they cite, but this Court has very honorably

 

23 suggested its concern for fairness, as it was in

 

24 another case, and that’s why the Court waited to see

 

25 what some of their witnesses looked like. I wish we

 

26 would defer it, because every time they put a

 

27 witness on, it gets worse. But nevertheless, here’s

 

28 where we are. 3755

 

1 Now, what is 1108 evidence essentially?

 

2 Essentially it’s character evidence. And when the

 

3 debate was going on in legislature about whether or

 

4 not to create an exception, tremendous concerns were

 

5 raised about allowing the prosecution to simply

 

6 introduce evidence of — what appears to be evidence

 

7 of bad character.

 

8 Now, they can phrase it in any terminology

 

9 they want, they can say it’s evidence of modus

 

10 operandi, intent, blah blah. But the reality is,

 

11 they’re trying to bring in character evidence to

 

12 bolster a separate charge. And any time you do

 

13 that, the Court has to be concerned with the

 

14 possibility of prejudice.

 

15 Now, I don’t need to recite the cases to the

 

16 Court on prejudice. I know the Court’s familiar

 

17 with them. But every time they define prejudice,

 

18 they define it in terms of emotion. Will it have an

 

19 emotional effect on the jury that is improper? Will

 

20 it have an emotional effect on the jury that results

 

21 in unfair prejudice to the defendant? And if, in

 

22 fact, that emotional effect is there, will it also

 

23 spill over into the other factors like confusion of

 

24 issues, et cetera?

 

25 The evidence they’re trying to introduce is

 

26 evidence of a highly inflammatory and emotional

 

27 nature. There’s no question about that. But I

 

28 think the Court also has to look at the substantive 3756

 

1 part of the evidence that they want to introduce,

 

2 because from what we can see in the cases that we’ve

 

3 looked at, every time they’ve introduced 1108

 

4 evidence in a case like this, they have had a

 

5 separate alleged victim describe something similar.

 

6 Nowhere can we find they are just

 

7 willy-nilly bringing in third-party witnesses to say

8 they saw something without bringing the alleged

 

9 victim in. Yet that is exactly what 99 percent of

 

10 the evidence they plan to bring in is. And I submit

 

11 the potential for prejudice there is overwhelming.

 

12 They probably couldn’t win a civil case if they were

 

13 pursuing a civil case based on nothing but third

 

14 parties. Yet they want to do it in a criminal case

 

15 without any of these alleged victims coming in, with

 

16 the exception of one, who is problematic, and I will

 

17 explain that to the Court.

 

18 So I submit the very substance of what

 

19 they’re trying to do is wrong, and it’s potentially

 

20 very prejudicial to Mr. Jackson particularly given

 

21 the weak nature of the case.

 

22 Now, let’s look at what they’re trying to

 

23 do. They have an alleged prior victim named Brett

 

24 Barnes who tells us he never was touched improperly.

 

25 They want to bring in four witnesses to talk about

 

26 Brett Barnes. They don’t want to bring him in.

 

27 Because the moment they bring him in, they’re done.

 

28 So they want to bring in allegedly four honest 3757

 

1 witnesses – I guess they’re vouching for their

 

2 credibility – to testify that Mr. Barnes was

 

3 improperly touched.

 

4 Who are their main witnesses? Their main

 

5 witnesses sued Mr. Jackson in the mid ‘90s, and for

 

6 the first time Mr. Jackson decided, “I’m tired of

 

7 settling these stupid cases, I’m actually going to

 

8 defend this one.” It resulted in the longest civil

 

9 trial in the history of this courthouse. And the

 

10 Court, I’m sure, knows a lot more about that case

 

11 than I do. At numerous times during that six-month

 

12 trial, the trial Judge made findings that the

 

13 plaintiffs were lying, not being candid, changing

 

14 their stories, even leaving the bench on a couple of

 

15 occasions. And when the dust settled, the jury

 

16 returned a verdict for Mr. Jackson, awarded Mr.

 

17 Jackson damages, because the plaintiffs had stole

 

18 from him. The Judge then awarded not only costs,

 

19 but legal fees, and in the end Mr. Jackson obtained

 

20 a judgment for over a million dollars against these

 

21 lying plaintiffs.

 

22 They want the Court to allow these lying

 

23 plaintiffs to come in now again and try and testify

 

24 to improper acts, when there is no alleged victim

 

25 they intend to call. That’s just plain wrong. And

 

26 if they suggest it wouldn’t be time-consuming to

 

27 litigate that issue, all the Court has to do is look

 

28 at the six-month trial and its length to know that’s 3758

 

1 not true, because they sold stories to tabloids,

 

2 they were caught lying, and they had a big judgment

 

3 against them.

 

4 Then we have Jordie Chandler, who everyone

 

5 tells us, and apparently was announced on television

 

6 this morning, is not going to testify. So who do

 

7 they want to bring in to testify to that? First of

 

8 all, Your Honor, I would note that in their motion,

 

9 they mention someone named Bob Jones. And in very

 

10 graphic — in a very graphic manner they told the

 

11 Court that Mr. Jones had worked for Mr. Jackson for

 

12 years, had traveled internationally with him, and

 

13 would testify to all sorts of improprieties with

 

14 children. We just were produced a police report by

 

15 the prosecution where Mr. Jones flat out denies

 

16 virtually everything they said in their motion. He

 

17 has told the Santa Barbara Sheriffs, with counsel,

 

18 that he never saw anything inappropriate happen when

 

19 Mr. Jackson was in the company of any of these

 

20 children.

 

21 They haven’t told that to the Court in any

 

22 of their papers, to my knowledge, but they just gave

 

23 us that report.

 

24 Now, what happens if you allow third-party

 

25 testimony about Mr. Chandler without allowing Mr. —

 

26 forcing them, or ordering them, or requiring them to

 

27 have Mr. Chandler, the alleged victim, testify? You

 

28 then have people come in to say what they saw 3759

 

1 without any victim to confirm it.

 

2 And what happened back in those days? In

 

3 summary, this is what happened: Chandler’s parents

 

4 had been divorced in 1986. The father had given up

 

5 custody of the child. When these alleged events

 

6 happened, the father jumped on the bandwagon and

 

7 wanted to become a multimillionaire, and he fueled

 

8 litigation. And all of a sudden, you had the

 

9 parents suing Mr. Jackson, you had — the mother’s

 

10 new husband then decided to sue Mr. Jackson for

 

11 allegedly interfering with his business. He had an

 

12 auto company, and he claimed that the publicity had

 

13 interfered with his business. He wanted millions.

 

14 After the settlement, the father then filed a new

 

15 lawsuit against Mr. Jackson wanting 30 million more

 

16 dollars. That was litigated and he lost. You have

 

17 all sorts of collateral litigation, and eventually

 

18 Mr. Chandler filed papers in Superior Court seeking

 

19 legal emancipation from his parents.

 

20 Where is the justice in this case of

 

21 allowing parents to come in who collected lots of

 

22 money because Mr. Jackson wanted to get this case

 

23 behind him and pursue his music career? And indeed,

 

24 all kinds of advisors were telling him to do that.

 

25 You have parents playing each other off with the

 

26 child and pursuing collateral litigation, all of

 

27 that will obviously have to be explored, because the

 

28 potential for financial interest, financial bias in 3760

 

1 a situation like that, is enormous, the motives for

 

2 financial gain were enormous, and indeed, there was

 

3 never any criminal prosecution despite Mr. Sneddon’s

 

4 noble efforts to try and do one.

 

5 So there’s no alleged victim with Brett

 

6 Barnes. There’s no alleged victim with Jordie

 

7 Chandler. Then we come to Macaulay Culkin, who has

 

8 repeatedly made statements that he’s a friend of Mr.

 

9 Jackson and has never been molested. But they want

 

10 to bring in evidence that he was molested. And they

 

11 want to bring in witnesses who also were part of the

 

12 gang that sued Mr. Jackson, and lost, with findings

 

13 that they had lied and with enormous damages awarded

 

14 against them.

 

15 Now, the fourth alleged victim is Jason

 

16 Francia. Jason Francia and his mother were

 

17 interviewed by the sheriffs and a deposition of the

 

18 mother was taken. Money was paid to settle that

 

19 case, again because Mr. Jackson didn’t want the

 

20 press, didn’t want his family going through it, and

 

21 wanted to pursue his music career. There never was

 

22 a criminal prosecution, even though the alleged

 

23 victim was interviewed by the Los Angeles District

 

24 Attorney and the Santa Barbara District Attorney

 

25 together. And after their interview with Jason

 

26 Francia – which was so wishy-washy about what

 

27 happened, they never decided to pursue a criminal

 

28 case, because there wasn’t one. We have that taped 3761

 

1 interview – the mother, in a civil deposition in the

 

2 Chandler litigation, began by saying she saw

 

3 something and ended by saying she saw nothing. And

 

4 indeed, stories were sold to tabloids, and money was

 

5 paid to settle. He appears to be the only alleged

6 victim they want to bring in.

 

7 Five, Wade Robeson, who tells us nothing

 

8 ever happened to him. And they don’t propose to

 

9 bring him in as an alleged victim. They want to

 

10 bring in the gang that basically has tried to accuse

 

11 Mr. Jackson and get money from him for years,

 

12 generally unsuccessfully, with the exception of

 

13 Miss — Mr. Francia’s mother, and I’ve just talked

 

14 about the problems in her sworn statement in

 

15 discovery. The deposition is clear, she begins by

 

16 saying, “I think I saw something.” She ends by

 

17 saying, “I didn’t see anything.”

 

18 Six, Jimmy Safechuck, who we are informed

 

19 says nothing happened. They don’t propose to call

 

20 him as an alleged victim either, but they’ve got the

 

21 same old gang again coming in to try and capitalize

 

22 on the case, people who have been adjudged to be

 

23 liars, and they are. People who asked for money

 

24 from tabloids, who’ve asked for money from Mr.

 

25 Jackson, et cetera.

 

26 Seven, Jonathan Spence, who we are informed

 

27 says nothing happened and doesn’t intend to come in

 

28 to support them at all. What do they want to do? 3762

 

1 Bring in the same crew again. Third-party witnesses

 

2 with an axe to grind, all of whom have wanted money

 

3 in the past, none of whom can substantiate that

 

4 anything happened because the alleged victim says

 

5 nothing happened.

 

6 The bulk of their 1108 evidence, Your Honor,

 

7 are third parties with axes to grind, and who have

 

8 tried to get money, and gotten money, and had the

 

9 problems I just identified. Where is the fairness

 

10 in allowing that kind of testimony, that kind of

 

11 evidence, when their underlying case looks so weak

 

12 and so problematic?

 

13 I submit that the Court’s concern for

 

14 fairness has to be squarely addressed in this

 

15 situation.

 

16 If the Court saw witnesses who the Court

 

17 felt had complete integrity, had never lied, never

 

18 told inconsistencies, never contradicted themselves,

 

19 never contradicted each other, if there were

 

20 forensics to support any of them, or eyewitnesses to

 

21 support any of them, the Court might say to himself,

 

22 you know, “I’m really not giving Mr. Jackson an

 

23 unfair trial if I let some of this in.” But it’s

 

24 just the opposite.

 

25 And I submit the weakness and the problems

 

26 in their case have made the Court’s decision much

 

27 more difficult.

 

28 There is an issue, Your Honor, that Mr. 3763

 

1 Sneddon has raised by proposing to call third-party

 

2 witnesses without the alleged victims. And that has

 

3 to do with what is an offense. Because the statute,

 

4 1108, talks in terms of an offense. And every

 

5 definition we can find of an offense talks in terms

 

6 of a crime.

 

7 And I submit to the Court that if you look

 

8 at what the legal definition of an offense is, or

 

9 you look at what the legal definition of proving a

 

10 crime is, how can you just allow a parade of

 

11 third-party characters to come in without any

 

12 alleged victim? How can you do that? Because even

 

13 though they didn’t charge it as a crime, they still

 

14 have to prove an offense. And I submit this Court,

 

15 in the interests of fairness, given the problems

 

16 with their case, I think has a duty to say to

 

17 itself, “Can they really prove some type of offense,

 

18 or some type of uncharged crime, based on what

 

19 they’ve told us?” And the Court knows they can’t.

 

20 They can’t do it.

 

21 According to the statute, and I’m talking

 

22 about 1108, sexual offense means a crime under the

 

23 law of the state or of the United States. How do

 

24 you prove a crime in these cases without any alleged

 

25 victim? And maybe that explains why there never was

 

26 a criminal prosecution in those cases, because the

 

27 alleged victim say it didn’t happen.

 

28 I submit, Your Honor, that Evidence Code 352 3764

 

1 is extremely broad. Just because Mr. Sneddon

 

2 parades a lot of cases where the introduction of

 

3 1108 evidence has been upheld, doesn’t mean there

 

4 haven’t been many instances where trial judges

 

5 didn’t use their discretion and either eliminate or

 

6 whittle down what the prosecution would allow,

 

7 because 352 is very, very clear. The Court must be

 

8 concerned with all the issues raised in 352.

 

9 And I would like to just briefly talk about

 

10 the People v. Falsetta case, where the California

 

11 Supreme Court upheld Evidence Code 1108. Here are

 

12 the issues the Court said the trial judge must

 

13 consider: Possible remoteness. Now, if you listen

 

14 to Mr. Sneddon, the words “possible remoteness” mean

 

15 nothing. They don’t require any common sense

 

16 approach. They don’t require any common sense

 

17 consideration. If you listen to Mr. Sneddon, he

 

18 cites appellate cases which basically say possible

 

19 remoteness just doesn’t have any meaning, and that’s

 

20 not what the California Supreme Court said. The

 

21 fact is, the issue of possible remoteness is in the

 

22 discretion of you, Your Honor. And they can’t

 

23 eliminate it by citing what other Appellate Court

 

24 decisions have done.

 

25 Now, they’re trying to bring in evidence of

 

26 many, many years ago, ‘92, ‘93. This is the year

 

27 2005. The statute is clear and the Supreme Court’s

 

28 language is clear. If the Court thinks that these 3765

 

1 alleged acts are too remote in time to really create

 

2 real evidence of a pattern, and particularly if the

 

3 Court says, “I think their case has enough problems,

 

4 to bring in evidence of a remote nature is going to

 

5 tip the scales away from their burden of proof, away

 

6 from the presumption of innocence,” I think the

 

7 Court has every right and every duty to consider if

 

8 these acts appear to be remote. And acts from the

 

9 early ‘90s, uncharged, unproven, where everyone had

 

10 their hand out for a buck, and where alleged victims

 

11 aren’t even willing to come forward and say anything

 

12 happened, in fact, they’re saying the opposite, I

 

13 think all of that put together gives the Court a

 

14 good basis to use its discretion in deciding whether

 

15 or not these alleged acts are too remote in time.

 

16 In People v. Falsetta, our Supreme Court

 

17 then talked about the degree of certainty of its

 

18 commission. How can they possibly stand before this

 

19 Court and say, “We can establish a degree of

 

20 certainty of the commission of these alleged

 

21 offenses,” when no alleged victim is even willing to

 

22 come forward and say it happened? How do you

 

23 possibly convince this Court that their claims are

 

24 certain when there is no victim to say they’re

 

25 certain? I submit this Court must consider not only

 

26 the possible remoteness in time, but the degree of

 

27 certainty of its commission, particularly when they

 

28 have no alleged victims to come forward. 3766

 

1 Then there’s the issue of the likelihood of

 

2 confusing, misleading or distracting the jurors from

 

3 their main inquiry. Obviously the evidence they

4 want to bring in has nothing directly to do with the

 

5 Arvizo family, who, yes, Mr. Sneddon is correct, by

 

6 the time the trial ends, their reputations and their

 

7 fraudulent acts will be all over the courtroom. The

 

8 best is yet to come, because the mother hasn’t

 

9 testified to her perjury in depositions, and her

 

10 perjury on welfare applications, and her defrauding

 

11 disability, and her defrauding welfare and not

 

12 telling either one what they’re doing, where she put

 

13 the money, what she said to newspapers, what she

 

14 said to certain celebrities, et cetera. The best is

 

15 yet to come.

 

16 But nevertheless, why allow them to bring in

 

17 disgruntled employees who lost their lawsuit and

 

18 actually were found by a jury to have stolen from

 

19 Mr. Jackson and found by a Judge that they must pay

 

20 over a million in legal fees and costs? Why allow

 

21 them to come in when there is no alleged victim to

 

22 support anything they say? That would be highly

 

23 prejudicial and highly improper, Your Honor. And to

 

24 say it would prolong this trial is an

 

25 understatement. Because every time one of these

 

26 people comes in, we not only cross-examine them, we

 

27 have to bring in our own witnesses to contradict

 

28 what they say. And let’s look at the numbers. 3767

 

1 One, Brett Barnes, who they say is not

 

2 coming in. They want to bring in four witnesses.

 

3 Two, Jordie Chandler, they want to bring in five

 

4 witnesses. Three, Macaulay Culkin, they want to

 

5 bring in four witnesses. Four, Jason Francia, they

 

6 want to bring in himself and his mother. Five, Wade

 

7 Robeson, they want to bring in five witnesses. Six,

 

8 Jimmy Safechuck, they want to bring in one, two,

 

9 three, four, five, six, seven — eight witnesses.

 

10 Seven, Jonathan Spence, they want to bring in three

 

11 witnesses.

 

12 How can they possibly suggest this is not

 

13 going to prolong this trial interminably, because as

 

14 the Court knows, under the law, the defense has a

 

15 right to defend these allegations like it would any

 

16 other case. And there’s no reason to think these

 

17 alleged offenses would not be defended as vigorously

 

18 as the case before the Court is being defended,

 

19 because you can’t deny a criminally accused in a

 

20 situation like this the right for a full-blown

 

21 opposition and a full-blown defense to these types

 

22 of allegations. So how Mr. Sneddon can look at the

 

23 Court and say, “Oh, it will just take maybe 25

 

24 percent of our time,” is absurd. It’s going to

 

25 prolong this trial interminably because we have to

 

26 defend our client’s reputation and life in this very

 

27 serious situation.

 

28 I’ve talked about prejudice, and prejudice 3768

 

1 again is always defined in terms of emotion. And

 

2 with a problematic case like this, the problem with

 

3 the emotional effect of 1108 evidence is vastly

 

4 increased. So I think the Court, again, has to come

 

5 back to where we started. We start with the Court’s

 

6 concern for fairness and justice, particularly with

 

7 respect to what their case looks like, and I submit

 

8 it looks real bad and it’s going to get worse.

 

9 The Supreme Court, in People v. Falsetta,

 

10 Your Honor talked about the Court considering less

 

11 prejudicial alternatives to its outright admission.

 

12 Well, how to fashion a less prejudicial alternative

 

13 obviously sounds problematic, because again, you

 

14 can’t hamstring the defense and not let them put on

 

15 a full-blown defense to any allegation, no matter

 

16 how flimsy it may seem to be. And when I say, “put

 

17 on a defense,” I do mean exactly that. Anything

 

18 which impeaches the credibility is open season. If

 

19 their character or reputation for trustworthiness,

 

20 as it is in this courthouse, given the trial judge’s

 

21 rulings in that civil case is certainly fair game.

 

22 Their financial motive is certainly fair game. Who

 

23 they sold their stories to is fair game. You’re

 

24 talking about a full-blown trial where prior

 

25 statements, prior testimony, prior transcripts are

 

26 all open season for the defense to defend and

 

27 protect itself.

 

28 I think the Court should never allow them to 3769

 

1 bring in any of this evidence if they don’t have an

 

2 alleged victim to support it. And they just don’t.

 

3 They want to bring in people to say, “I saw

 

4 something. I heard something.” That simply is not

 

5 acceptable. The potential prejudicial impact of

 

6 that is far outweighed, far outweighs the benefits

 

7 to our justice system, or any benefits the Court

 

8 might think they’re entitled to under the law,

 

9 particularly in a weak case.

 

10 The Court talks about excluding irrelevant

 

11 though inflammatory details surrounding the offense.

 

12 Well, they’ve already — Mr. Sneddon’s argument has

 

13 already suggested an avalanche of time-consuming

 

14 litigation in this courtroom, because what he’s

 

15 saying is that if Mr. Jackson spends money on

 

16 someone like a mother – and indeed, Mr. Chandler’s

 

17 mother flew to Europe with him, stayed in luxury

 

18 hotels, Monte Carlo, France; big events; buying

 

19 jewelry at Cartier, clothes, gifts – yes, indeed,

 

20 Mr. Jackson has done that to certain families. He

 

21 also has spent millions on children with AIDS. He

 

22 has gone to hospitals all over the world and

 

23 contributed money to sick children. He even has a

 

24 habit of doing that before a concert. He will go to

 

25 hospitals and meet injured and sick children. Yes,

 

26 he spends lots of money on people.

 

27 But they want to suggest that because he

 

28 spends money on somebody, that he somehow is doing 3770

 

1 this with a malevolent criminal, molester’s type of

 

2 purpose. And we can drown them with examples of

 

3 where Mr. Jackson has been so benevolent, so

 

4 generous, so charitable, so giving for good causes,

 

5 that it will make their theory look silly.

 

6 The Court is already faced with a long

 

7 trial, Your Honor. You really are. We’re talking

 

8 about probably months more of testimony. They

 

9 haven’t essentially, I think, from what I’ve heard,

 

10 really gotten to the crux of their conspiracy

 

11 allegations. They’ve alluded to it by having the

 

12 Arvizo children testify that they were falsely

 

13 imprisoned three times at Neverland and went back

 

14 every time and then just went home. They’ve alluded

 

15 to it by having the Arvizo children testify to what

 

16 they knew about a proposed Brazil trip. And of

 

17 course when nobody wanted to go, they went home.

 

18 And they’ve already alluded to the Arvizo children

 

19 being falsely imprisoned while they went to shopping

 

20 centers, while they were at their home where

 

21 Miss Arvizo’s boyfriend was in the United States

 

22 Army, while they had access to phones, while they

 

23 went into federal agencies, while they went into a

 

24 Brazilian consulate, and nobody ever says, “We have

 

25 a problem,” or calls the police, or does anything.

 

26 Unless — and I don’t think —

 

27 MR. SNEDDON: Excuse me, Counsel.

 

28 I’m going to object, Your Honor. This is 3771

 

1 way off the issues that are before the Court in this

2 particular hearing. Counsel is just making his

 

3 final argument in front of the Court or the media.

 

4 THE COURT: All right. We’ll take our

 

5 morning break.

 

6 MR. MESEREAU: Okay.

 

7 (Recess taken.)

 

8 THE COURT: The objection was sustained. Go

 

9 ahead.

 

10 MR. MESEREAU: I didn’t hear you, Your

 

11 Honor.

 

12 THE COURT: The objection was sustained. Go

 

13 ahead.

 

14 MR. MESEREAU: Your Honor, I just have a few

 

15 more points to make, and I will sit down.

 

16 On the issue of undue consumption of time,

 

17 I’d like to give the Court an example of what I’m

 

18 talking about.

 

19 One of the plaintiffs in that civil case

 

20 against Mr. Jackson where the plaintiffs lost and

 

21 were awarded — Mr. Jackson was awarded over a

 

22 million dollars in legal fees and costs. But

 

23 someone named Adrienne McManus, her deposition, I am

 

24 informed, was taken eight times in that case.

 

25 That’s just one witness. And apparently in her

 

26 trial transcripts, which we have, she is changing

 

27 her testimony so often that she gets back and forth,

 

28 the testimony is prolonged, and the point I’m making 3772

 

1 is that’s just one witness. Eight depositions plus

 

2 six months of trial testimony.

 

3 In the Jordie Chandler civil case, you had

 

4 approximately five months of litigation before the

 

5 case settled. You had numerous depositions and

 

6 numerous pleadings in civil discovery that would be

 

7 relevant and usable.

 

8 Now, I want to emphasize something we said

 

9 in our papers. The testimony that the prosecutor

 

10 wants to introduce concerns seven alleged victims

 

11 with only one scheduled to testify. This testimony

 

12 has been presented to two criminal grand juries in

 

13 Los Angeles and Santa Barbara, neither of which ever

 

14 returned an Indictment, and it’s been rejected by

 

15 one civil jury in the longest civil trial in the

 

16 history of this courthouse.

 

17 Now, I know the prosecutor likes to say,

 

18 “Well, those grand juries were purely investigative

 

19 only.” But obviously the purpose, from Mr.

 

20 Sneddon’s point of view, to the degree he controlled

 

21 anything, was to see if they could bring criminal

 

22 charges. And neither grand jury brought a criminal

 

23 charge. And many of the witnesses who — not

 

24 “many,” some of the witnesses who sued Mr. Jackson

 

25 in the civil case also testified in these grand

 

26 juries where no criminal charges were ever brought.

 

27 Now, there is evidence — excuse me, there

 

28 is case law to the effect that if one is acquitted 3773

 

1 of a prior sexual offense, the evidence of the

 

2 acquittal is admissible. I haven’t seen anything

 

3 about whether or not you can bring in the fact that

 

4 a grand jury refused to indict, but certainly the

 

5 fact that they went to two grand juries, there was

 

6 no Indictment, they went to a civil jury, they lost,

 

7 and the fact that they don’t have alleged victims

 

8 with the exception of one, plus you’re talking about

 

9 lengthy civil litigation, numerous depositions,

 

10 numerous pleadings, numerous witnesses, plus the

 

11 fact that the defendant has a right to defense as if

 

12 it were a separately charged crime, and that means

 

13 every type of defense imaginable, including

 

14 rebutting the character nature of the evidence,

 

15 which would mean opinion evidence, reputation

 

16 evidence, and maybe specific instances of conduct,

 

17 will unduly prolong the trial.

 

18 Finally, Your Honor, I will get back to

 

19 where I started. Evidence Code Section 352 is

 

20 sacrosanct in this courtroom. It is a fundamental

 

21 component of the statute of 1108. It gives this

 

22 Court enormous discretion to eliminate potential for

 

23 prejudice, for bias, for a prolongation of the trial

 

24 that would be unproductive and not in the public

 

25 interest. It allows this Court enormous discretion

 

26 to make sure issues aren’t confused. It enables

 

27 this Court enormous discretion to make sure that the

 

28 burden of proof is not fundamentally changed, that 3774

 

1 the presumption of innocence remains intact, and

 

2 that Mr. Jackson has a fair trial.

 

3 For the reasons I’ve articulated, we’re

 

4 asking that the prosecution’s motion be denied in

 

5 its entirety.

 

6 Thank you.

 

7 THE COURT: Counsel? Rebuttal?

Whoa! I must say that I think that was one of the most cogent, powerful, fluid, and sound defenses of Jackson that I have ever read! Hopefully now you guys understand why I wanted you to read it in its entirety!

Sneddon’s rebuttal will be included in the next post in this series!

To be continued: https://michaeljacksonvindication2.wordpress.com/2012/09/08/march-28th-2005-trial-analysis-judge-melvilles-decision-on-prior-bad-acts-settlements-evidence-george-lopez-ann-serrano-lopez-and-robert-spinner-direct-cross-examination-p-2/

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7 Comments leave one →
  1. nannorris permalink
    October 20, 2012 2:00 am

    in the clip I put up, atty Rey isnt specifically speaking about MJ or Sneddon, I just see the parallels..just wanted to make that clear

    • Susan permalink
      October 20, 2012 12:58 pm

      Thank you, Nannorris, for the “Media Mahem” clip. Extremely interesting. Very surprising to hear him say that the publicity surrounding a trial can actually make for a harsher sentence for a defendent. The power of the media and their “spin ” can be very dangerous. I would have liked to have heard his opinion of Michael’s case.

    • nannorris permalink
      October 21, 2012 4:44 pm

      I would have liked to have heard his opinion also..I also would like to know why he thought Pellicano got such a harsh sentence too.
      I watched it and was kind of waiting for MJ name to come up due to the topic at hand , but I guess it is good in a way, that he wasnt brought up, because MJ name shouldnt be affiliated with that garbage,due to bogus accusations, but he certainly was the poster child for false accusations and malicious prosecution

  2. nannorris permalink
    October 20, 2012 1:57 am


    this is atty Rey , being interviewed about 1108 evidence in child abuse cases and how prejudicial it is , and how most people will get convicted because of it.How prosecutors overreach etc..thought it was an interesting interview .He also was Anthony Pellicano lawyer and touches on why he thinks he got 15 years for wire tapping of basically family/ divorce type stuff..About politics and prosecution, which is what happened to MJ ..total overkill…
    This man also says he usually wont take those type cases , because it bothers him so much..Another reason for me to admire Tom Mesereau for taking mj case

  3. aldebaranredstar permalink
    September 8, 2012 12:30 am

    I AM going to read the whole thing, but first I have to say some of the ‘evidence’ of the crime of pedophilia is really laughable–kissing and hugging? licking the head? inappropriate touching? In comparison the Sandusky case shows what real pedophilia is like–victimization that goes on for extended periods of time and involves actual sex acts over months or even years with at least 10 victims–and this case involves, with Francia, two (2) instances of inappropriate touching outside the clothing, and one (1) on the skin????? This is like a witchcraft hysteria. I just can’t believe any of this was presented without people laughing at the charges. Underwear outside the bed–wow–22 years in prison for THAT??? I mean this whole thing was such a foolish case and millions of dollars and the destruction of a man’s reputation took place on these flimsy charges such as kissing, hugging, licking the head–where is THAT a crime anyway? I guess kissing and hugging is a crime too. Ye, Gods, what a MESS.

  4. Rodrigo permalink
    September 4, 2012 10:56 pm

    Thanks for showing me that, David. I’m certainly going to present that to fans and haters alike. Make interesting dinner conversation 😀

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  1. How Many Boys Was Michael Jackson REALLY Accused Of Molesting? | Michael Jackson Vindication 2.0

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