April 21st, 2005 Trial Analysis: Brian Barron (Cross Examination), Stephen Cleaves, Timothy Sutcliffe, Timothy Rooney, Steven Moeller, Jeff Klapakis, Cynthia Montgomery, Part 3 of 4
Judge Melville was very skeptical about allowing this expert testimony, so Auchincloss suggested that there are two “tracks” by which it should be admissible: the conduct of Jackson, and Janet’s refusal to tell the truth under oath during her depositions. He also stated that the expert witness would testify that Battered Women’s Syndrome is not limited exclusively to the victim’s home, but that a victim can show symptoms of this disorder in other places as well (such as Neverland):
10 THE COURT: The thing I’m having trouble
11 with is that the case where this usually arises is
12 in a case where a — if it’s a husband — let’s use
13 that as an example. A husband is charged in court
14 with abusing his wife, and she testifies, and
15 there’s a lot of inconsistencies because she didn’t
16 report it, or at other times she said he was
17 abusive, he wasn’t abusive, that type of thing, and
18 you have —
19 MR. AUCHINCLOSS: Well —
20 THE COURT: — the testimony to explain
21 her — it’s not too different from the Child Abuse
22 Accommodation Syndrome, where the child doesn’t
23 accurately report and you bring in an expert to
24 suggest why that would be, you know, in the total
25 scheme of things.
26 MR. AUCHINCLOSS: And you’re exactly right.
27 THE COURT: In this case, that’s not the
28 situation at all. I mean, she’s – 7257
1 MR. AUCHINCLOSS: This is an unusual hybrid.
2 I couldn’t agree more.
3 But as you pointed out, there’s two tracks
4 here for admissibility. One deals with the conduct
5 of the defendant, and trying to understand Janet’s
6 conduct, which I think is just — just something
7 that this jury absolutely has to have to help them
8 understand Janet. She suffers from a posttraumatic
9 stress disorder. They should be apprised of that
10 and the classic symptomology, which is completely
11 counterintuitive. And we don’t want this jury to
12 make this decision based on misconceptions. And
13 there are an abundance of misconceptions of how
14 women should be behave and how they actually do
15 behave when they’ve been abused by domestic
17 But the other side, the other track, which
18 is completely independent of this and which this
19 evidence should come straight in on, is to explain
20 why she didn’t tell the truth under oath. It goes
21 straight to that issue, which the defense has chosen
22 to make a centerpiece on their attack on Janet.
23 So for the jury to understand why did she
24 perjure herself, why did she lie about her husband,
25 that’s a highway to bring this type of evidence in
26 so that the jury can understand, that’s normal.
27 Women who are — who are abused do that. It
28 shouldn’t be held against her, and it shouldn’t be 7258
1 used against her the way this defense intends to do,
2 and the way they tried to do when they examined her,
3 and the way they ultimately will do when they argue
4 this case.
5 So on one hand, the defense has asked for
6 it. They’ve asked — they should have all the
7 evidence on what the reasons why she perjured
8 herself. But on the other hand, it’s — there are
9 many enigmas about why Janet acted the way she did,
10 and those enigmas are largely explained when people
11 understand that she is a classic — she’s exhibiting
12 the classic symptoms of posttraumatic stress
14 And I might point out finally, just that
15 under the code, under the section here, this is not
16 exclusively used in the case of Battered Women’s
17 Syndrome where there’s a domestic violence, where
18 the husband is charged and the woman is the victim.
19 I mean, the code itself says “whenever it’s
20 relevant.” So it’s not a matter of whether it’s
21 normal or not. The question is, is it relevant?
22 Does it have a tendency in reason to prove —
23 THE COURT: Well, it’s just that it’s — the
24 relevancy is very clear under the typical scenario.
25 MR. AUCHINCLOSS: Yes.
26 THE COURT: It’s not so clear here.
27 MR. AUCHINCLOSS: But even in the cases, the
28 cases don’t always just go to that classic scenario. 7259
1 Sometimes it’s used on the other side of the coin.
2 Sometimes it’s used to show why the woman assaulted
3 the man.
4 THE COURT: Well —
5 MR. AUCHINCLOSS: And there’s case law on
6 that as well.
7 THE COURT: Yeah, and —
8 MR. AUCHINCLOSS: So —
9 THE COURT: I chose the example of the man
10 assaulting the woman because that’s the scenario we
11 have in front of me.
12 MR. AUCHINCLOSS: Sometimes it’s used to
13 show that the defendant — it’s not only used to
14 show the victim suffered from post-traumatic.
15 Sometimes it’s used to show the defendant
16 suffered —
17 THE COURT: Oh, I see what you’re saying.
18 MR. AUCHINCLOSS: When the woman is charged
19 with murder, for instance, and an expert is
20 introduced to show she suffered from Battered
21 Women’s Syndrome. So there are other cases.
22 But I agree with you, it’s not always
23 simple, but we are not always confronted with simple
24 facts for the application of the law. But I will
25 say that it is abundantly clear that, under the
26 defense’s own intent and their own tactic in this
27 case, they made it relevant, at a minimum, by
28 charging her with perjury and parading that out in 7260
1 front of this jury.
2 So I would submit there are two very strong
3 reasons that make this evidence highly relevant.
4 And I don’t think you can — you can dispute the
5 fact that many of her — much of her conduct is
6 counterintuitive, that — and that it does fit
7 within a pattern that is prevalent among women who
8 are victims of this.
9 THE COURT: But you’re saying that the
10 expert’s going to testify that not only does the
11 spousal abuse accommodation theory explain why a
12 person doesn’t report, prosecute, et cetera, a
13 person who is physically abusing them, and will say
14 that that’s equivalent to this case where —
15 MR. AUCHINCLOSS: Yes, she will say that.
16 She will say that this — this disorder, the
17 symptomology of this disorder, is not isolated to
18 the home. When they walk out of the home, they
19 carry this disorder with them. When they are
20 confronted in the world with the stimulus, the
21 similar stimulus that they have in the home, such as
22 death threats, such as false imprisonment, such as
23 threats of child abduction, such as trying to obtain
24 control, any act of power, isolation and control,
25 which we have here, when they’re confronting these
26 types of influences, they react the same way they do
27 in the home. The posttraumatic stress disorder goes
28 with them wherever they go. 7261
1 And that’s what this witness — this expert
2 witness will testify to. She will testify to that
3 these types of incidences are — are Janet suffering
4 from this syndrome. That this type of behavior
5 is — and not specifically, but generally, because
6 this will be general testimony, as it should be.
7 It’s to demystify the area. But she’ll testify that
8 women do not leave this disorder when they walk out
9 of the house or even when they leave their husband.
10 So —
11 THE COURT: Okay. Mr. Sanger, are you going
12 to discuss this?
Sanger argued that the expert witness testimony wasn’t relevant to the current case because Janet didn’t lie due to battered woman’s syndrome, but because she wanted to gain money from her victims (Jackson, JC Penney, etc.), and that is the real reason why she plead the Fifth regarding her welfare fraud. Ironically, but not surprisingly, the prosecution objected to the defense calling Dr. Hochman to testify that Janet was a paranoid schizophrenic who coached her children to lie. (Dr. Hochman wasn’t allowed to testify because Judge Melville didn’t want to have a mini-trial within a trial, and have the JC Penney case re-litigated; even though, he allowed Sneddon to bring in his own mini-trial with the 1108 evidence!)
13 MR. SANGER: Yes, sir. Yes, sir.
14 We briefed it, and I think the Court has hit
15 one of the major points on the head, is that this
16 isn’t relevant to this kind of a case.
17 But responding to what Mr. Auchincloss said
18 in an effort to answer the Court’s question, we
19 didn’t make her perjury relevant. She has committed
20 perjury, I think it’s pretty clear, in this court
21 from the stand. And she has said things that are
22 preposterous, that are absolutely counter to the
23 other evidence in the case. And that’s not because
24 she’s a battered woman. That’s because she lies for
26 I don’t want to be unnecessarily harsh, but
27 let’s face it, that’s what this is about. She took
28 the Fifth so that she has that protection to not be 7262
1 cross-examined. But the Court is going to allow us
2 to bring in evidence that she lied for gain on
3 repeated declarations for money and got that money
4 and continued to get that money, and lied and
5 cheated her way through life. That is what she
6 does. That has nothing to do with being a battered
8 Now, the People say, well, they should bring
9 this in and because Mr. Auchincloss says she’s
10 really suffering from posttraumatic stress disorder,
11 which is interesting, because they specifically
12 asked to exclude Dr. Hochman’s testimony, who
13 indicates that she is basically an antisocial
14 personality disordered patient, person, who coaches
15 her children to lie. Remember, Dr. Hochman was the
16 one that said that, and that she lies for gain, and
17 lied for gain in that case in the J.C. Penney’s case
18 itself. But he made a diagnosis after actually
19 seeing her and evaluating her and testing her. If
20 they’re —
21 MR. AUCHINCLOSS: I’m going to object that
22 that misstates the evidence, and this should be a
23 legal argument rather than a factual one.
24 MR. SANGER: Well —
25 THE COURT: Overruled.
26 MR. SANGER: If they bring in PTSD and say
27 that’s what this is all about, and she can get up
28 and say whatever she wants, obviously it proves too 7263
1 much. It’s not relevant to this case. It’s not
2 relevant to the facts of this case, despite the
3 heroic effort to stretch it. But it would prove too
4 much. Anybody who claims that they were assaulted
5 by their husband could come into court, lie in the
6 trial proceedings before the Court, lie in countless
7 other proceedings, and under oath, and then say, “I
8 get a pass.”
9 Now, there’s nothing funny or nothing to be
10 minimized about being the victim of any kind of
11 violence, whether it’s domestic violence or any
12 other kind of violence. But it proves too much to
13 say that therefore this witness, who Your Honor
14 heard for five days — and we’ll address this maybe
15 in an 1118.1 motion at some point here.
16 But without prejudging that, Your Honor
17 heard this witness for five days. That is not the
18 behavior of a shy, hopeless – what were the words? –
19 a hopeless person who can’t stand up for herself.
20 She was perfectly willing to take Mr. Mesereau on as
21 aggressively as possible. She has taken other
22 people on in her history in that very same way.
23 When she wants something, she will get it.
24 There is nothing — nothing shy about that
25 woman that was on the tape that was trying to keep
26 herself situated as close to Michael Jackson as
27 possible, while denying that Jay Jackson even
28 existed. There is nothing shy about this woman at 7264
1 any time. And she’ll get up here and blatantly lie.
2 If the Court says, “Well, you can” — if any
3 court said, “Well, you can bring in an expert to say
4 this person gets a pass and they can lie,” what’s
5 the point of cross-examination? What’s the point of
6 coming into court and having the jury hear these
8 Now, it simply proves too much. It’s not
9 relevant to the facts of this case. If they do
10 intend to bring in something like that and claim
11 that it shows PTSD, and therefore she’s not able to
12 tell the truth, what does that tell us? But if
13 they’re able to do that, then we should, of course,
14 be able to bring in Dr. Hochman to say he knows
15 exactly why she doesn’t tell the truth.
Judge Melville questioned Sanger’s approach by suggesting that perhaps the reason that Janet lied during her JC Penney deposition is because she was afraid to tell the truth about her abuse while she was still living with David. Sanger countered that the prosecution was just exploiting battered woman syndrome and using it to shore up Janet’s laughable and preposterous testimony. He also argued that the battered Woman’s Syndrome doesn’t explain Janet’s lies regarding the sexual abuse that she claimed to have suffered at the hands of the JC Penney security guards, nor does it explain the fact that Janet was actually the abuser in her marriage (Sanger referenced a photo of Janet holding a knife, and stated that he had witnesses who would testify about Janet’s abuse).
16 THE COURT: Don’t you think there’s
17 relevance, without conceding your position, though?
18 I’m having trouble with you, just like I am with the
19 District Attorney. There’s two areas we’re talking
20 about. One area, the claim is that she was the
21 victim of abuse by David Arvizo. And as the
22 District Attorney pointed out in his argument,
23 neither side seems to be — that’s not an area of
24 contest in this case. You know, when it occurred,
25 and all that, may be, but not that it actually
27 So then we have the actual impeachment by
28 the defense of her testimony that Mr. Arvizo was 7265
1 abusive by you, the defense, bringing in the
2 depositions of the J.C. Penney case where she denies
3 that he’s abusive. And I don’t want to go into the
4 evidence at length, but there was a considerable
5 amount of evidence relating to her responses in the
6 J.C. Penney case, and then the — you know, the
7 final, ultimate statement by her that if she, you
8 know, was at the point that he was finally arrested
9 and removed from her presence, that she was able to
10 go to her attorney and explain some of the untruths
11 that she told.
12 That’s one area.
13 Now, what’s your argument, without drifting,
14 please, as to the relevance of her — of expert
15 testimony explaining the Spousal Abuse Accommodation
16 Syndrome in regard to that issue?
17 MR. SANGER: Or Battered Women’s Syndrome.
18 THE COURT: Yes.
19 MR. SANGER: So, if I’m understanding the
20 Court, the — taking the argument — and I
21 understand the Court’s advancing for the purpose of
22 discussion, taking the argument —
23 THE COURT: You’re giving me a discussion,
25 MR. SANGER: Taking the argument that, while
26 the testimony might not be admissible with regard to
27 Mr. Jackson and any other conduct associated with
28 people at Neverland, the argument may be relevant to 7266
1 explain what happened with David Arvizo and why she
2 may have lied in the J.C. Penney’s lawsuit.
3 THE COURT: Yes.
4 MR. SANGER: Okay. First of all, under 352,
5 let’s start there, the Court has to make the cut at
6 some point on evidence that is going to come in to
7 explain what is an issue in the case, but it is not
8 the core issue in the case.
9 And the Court has made that determination
10 with regard to Dr. Hochman, for instance, that we
11 cannot bring in what we considered to be probative
12 evidence. The Court did not say it was not
13 probative. The Court said that you were going to
14 exclude it, I take it, in part, on the grounds that
15 it would be — I believe the Court said on the
16 grounds that we’re not going to have a complete
17 trial within a trial on all aspects of it.
18 So there does have to be a cut of some sort.
19 And it seems to me that’s a place where we can start
20 with the discussion. Can they — in a trial where
21 Mr. Jackson is on trial for his liberty over what
22 these people allegedly did, we’re going to have an
23 expert come in, whose testimony should really be
24 limited to this very small area.
25 Now, I understand if the Court were to do
26 that, Mr. Auchincloss would not be allowed, nor
27 would anybody on that side be allowed to argue that
28 this testimony explains away her perjury in this 7267
1 case or her perjury in other respects. But Your
2 Honor would propose that somehow the jury be limited
3 to that.
4 And so under 352, besides the undue
5 consumption of time, you have the potential for
6 prejudice to this defendant, to whom this witness
7 would not apply at all, but the jury would not be
8 capable of making that very surgical line, if you
9 make a line surgically, but make that line very
10 specifically. So it would cause prejudice, and it
11 would cause undue confusion to the jury, besides the
12 undue consumption of time.
13 Now, I want to address the relevance issue
14 even more specifically, but I started with 352,
15 because I think that really answers the question.
16 But going more specifically beneath that, to whether
17 or not it’s probative at all on this, Your Honor
18 said we don’t dispute that she was abused by her
20 There’s already been reference to the fact
21 that there was a photograph taken of her where she
22 was appearing to assault her husband with a knife.
23 And she said it was all a game, but I will represent
24 to the Court that we have a number of witnesses who
25 say that she was the violent one in the marriage,
26 and was, in fact, striking not only her husband but
27 other family members, and she’s —
28 MR. AUCHINCLOSS: I’m going to object that 7268
1 this is all irrelevant as to what she — what Janet
2 Arvizo is and what she may have done.
3 THE COURT: Overruled. Go ahead.
4 MR. SANGER: And we have a number of
5 witnesses who we could call for that. Whether we
6 will call them — I’m representing they’ve been
7 interviewed and that’s what they say. Whether we
8 will call them is a question of trial strategy and
9 tactics, depending on where this all goes, of
10 course. And there’s evidence that — well, suffice
11 it to say, without going into the detail, there’s
12 evidence from third-party witnesses and family
13 members to that effect.
14 Given that, if the Court allows her to now
15 shore up her credibility as to why — sort of a
16 strange phrase, shore up her credibility as to why
17 she perjured herself —
18 THE COURT: That’s a phrase you’ve been
19 choosing. I mean —
20 MR. SANGER: What the prosecution would be
21 saying — Your Honor argued this for them, I
22 suppose, because we’re talking about this narrow
24 What the prosecution would be saying on this
25 part of it, I suppose, is, “Look, of course she lied
26 in J.C. Penney’s because her husband’s abused her
27 and she’s afraid.” So then when she — when she
28 testified, she not only testified that her husband 7269
1 never beat her and she loved her husband, and they
2 had a hide-away love nest, and there was all these
3 other things that went along with that deposition,
4 but she also felt compelled to testify that she was
5 sexually molested and all the other things that came
6 out in that deposition that were just inherently
7 preposterous. And they would argue, “Well, she’s a
8 battered woman, so she tends to lie about everything
9 if she lies about anything.”
10 THE COURT: The expert on the Battered
11 Women’s Syndrome, doesn’t the expert in that
12 situation just explain why a person who’s been the
13 subject of abuse might not report it, might not
14 report it accurately, might at one time say one
15 thing about it and other times about another? That
16 explanation doesn’t extend to everything a person
17 says thereafter to anybody, does it?
18 MR. SANGER: Well, it shouldn’t, but I heard
19 Mr. Auchincloss just argue that it does. However,
20 focusing on the Court’s argument, the question is
21 what would the expert bring to this?
22 The expert is not going to be able to
23 substantiate the argument that Mr. Auchincloss made,
24 and that’s my point. The expert’s not going to be
25 able to say that she committed perjury just in
26 general because she’s hopeless. The expert can
27 simply say there are syndromes where a woman, or a
28 man, or anybody that’s subject to a Battered Person 7270
1 Syndrome, usually a woman, hence the name, but where
2 a person is subject to this syndrome, they are
3 beaten down, they’re dependent on the person, they
4 feel hopeless. And the theory goes, therefore they
5 don’t necessarily avail themselves of conventional
6 means to resolve the problem. They tend to go back
7 to the person, things that Mr. Auchincloss said are
8 common — I won’t adopt them all, but those that I’m
9 repeating are common denominators in the expert
10 testimony. And that will explain the traditional
11 case where, in fact, a woman doesn’t go report it,
12 and when asked, after being beaten, says, “No, I
13 wasn’t beaten.”
14 It just doesn’t explain the facts in this
15 case. When I say, “this case,” I mean the J.C.
16 Penney’s case. It certainly doesn’t explain
17 anything in this case. But in the J.C. Penney’s
18 case, it just doesn’t explain the facts that are in
19 that case, where she will go in for gain and make up
20 a big story about all sorts of things for gain.
21 And then remember, Your Honor, she
22 doesn’t — it’s not that she’s afraid to report her
23 husband. She reports her husband five days after
24 they get a settlement by mediation, while they are
25 still deciding how the money’s going to be split
26 between them. And during the months that ensue,
27 they can’t decide, the insurance company files an
28 interpleader — I don’t know if they actually filed, 7271
1 but stated in correspondence they’re going to file
2 an interpleader because they don’t want to have
3 anything to do with it. She reports him then for
4 sexual abuse. And he finally says, “I give up.
5 I’ll just take 5,000 for my divorce lawyer and you
6 can have the rest.” And that’s not a battered
8 THE COURT: You’re really not addressing the
9 issue. But —
10 MR. SANGER: I’m trying.
11 THE COURT: Let me ask you the other
13 MR. SANGER: I’m sorry.
14 THE COURT: The area I cut you off on —
15 I just wanted to hear the argument related to my
16 hypothetical, so I cut you off from arguing why it
17 shouldn’t apply, if the expert actually purported to
18 be able to apply it to the — a situation outside of
19 the marriage or the relationship such as the Michael
20 Jackson connection that she has. I’ll let you argue
21 that a little bit, because I wouldn’t let you argue
23 MR. SANGER: All right. And not wanting to
24 decline that invitation, could I make just one
25 closing remark on the other issue?
26 THE COURT: If it relates to my question,
28 MR. SANGER: And I want to tie it to the 7272
1 question. I think that is the question, is Your
2 Honor says if it was limited to that issue, I
3 suppose the question is how do you limit it to that
4 issue? And that’s why I come back to the 352, which
5 is if you let in a battered woman expert on that,
6 then we have all this other evidence as to whether
7 or not she was actually battered, and whether or not
8 she was behaving in accordance with a Battered
9 Women’s Syndrome, which would open that whole area
10 substantially more than the Court, I think, intends
11 to have it opened at this point.
12 Having said that — that was the point of
13 going on about the additional facts with regard to
14 that point.
15 Having said that, the — the greater
16 argument, as it pertains to Mr. Jackson, who, after
17 all, is the person we’re representing — we’re not
18 taking David Arvizo’s side or not. You know, that’s
19 something that either did or didn’t happen. The
20 question is whether or not Janet Arvizo is telling
21 the truth in this case when she’s accusing Michael
22 Jackson and other people at Neverland and elsewhere
23 of doing things to her.
24 And this syndrome, as it’s typically
25 described in the testimony, would have no
26 application to this picture, despite Mr.
27 Auchincloss’s argument that basically explains
28 perjury in general. 7273
1 Not only that, we still do not have an
2 offer, specific offer of proof or a report of
3 anything from a Battered Women’s Syndrome expert.
4 And as far as I know, they haven’t elected which one
5 of the number that they listed on their list they
6 were going to actually call.
7 So we don’t know what they’re going to say.
8 We have to assume they’re going to say no more and
9 probably no less than they generally will say in
10 domestic violence cases or cases in which the
11 parties, whichever one is the victim of the ultimate
12 offense, where the parties are husband and wife or
13 boyfriend and girlfriend, and they have that kind of
14 a relationship.
15 So if they give that kind of testimony, that
16 kind of testimony will not apply to this. That
17 means that they are expecting to call somebody who
18 is either going to say that, and therefore there’s
19 no relevance, or they’re going to call somebody
20 who’s going to expand on the theory beyond any
21 measure upon which it’s been approved to explain
22 that somehow this can give an account of what
23 happened here for five days.
24 THE COURT: Have you ever seen a case where
25 it’s been applied, this testimony, to anything other
26 than the people involved in the relationship?
27 MR. SANGER: I have never seen such a case.
28 I have never seen such a case reported. 7274
1 And let me just ask very quickly. Did you
2 see a report of this?
3 MR. DUNKLE: No.
4 MR. SANGER: And Mr. Dunkle, who is
5 religiously researching some of these things,
6 particularly the last-minute motions, has tried to
7 read every case there is on all of these things.
8 MR. AUCHINCLOSS: If the record could
9 reflect, Mr. Dunkle shrugged his shoulders.
10 THE COURT: Clearly he said, “No.”
11 Right? I heard him absolutely say, “No.”
12 MR. SANGER: I’m a battered defense
14 THE COURT: The way he was shrugging his
15 shoulders was in fright. It was, “Don’t ask me.”
17 MR. DUNKLE: That’s correct.
18 MR. SANGER: As a battered defense attorney,
19 I may not be able to hear him clearly. I guess
20 that’s —
21 THE COURT: Okay.
22 MR. SANGER: The point is, I just don’t see
23 how it can apply. If the Court has any other
24 questions, I’ll answer them. Otherwise, I’ll submit
25 it, Your Honor.
Auchincloss replied with two arguments: the expert testimony wouldn’t be prejudicial to Jackson, and that the Battered Woman’s Syndrome wouldn’t be exculpatory to all of Janet’s lies, but only the ones regarding her denial of abuse at the hands of David Arvizo:
26 MR. AUCHINCLOSS: Two comments.
27 THE COURT: I’ll let you make your two
28 comments, but let me ask you the same question. Do 7275
1 you have any case where this has been allowed or
2 used other than between the two parties and the
3 typical domestic violence situation?
4 MR. AUCHINCLOSS: I don’t have a reported
6 THE COURT: Do you have any unreported case?
7 MR. AUCHINCLOSS: Um —
8 THE COURT: Oh, you’re not supposed to cite
9 those, are you?
10 MR. SANGER: Rule of Court 977, but the
11 delay answered the question.
12 THE COURT: You should have let him make his
13 answer and then move to strike.
14 MR. AUCHINCLOSS: But the bottom line — one
15 of my two important points is, number one, this is
16 apples and oranges to Dr. Hochman, who would testify
17 specifically about Janet Arvizo. This is not going
18 to be testimony about Janet Arvizo.
19 THE COURT: No, I understand that.
20 MR. AUCHINCLOSS: This is just general
21 testimony. Mr. Hochman would testify about
22 specifically Janet Arvizo and it’s inadmissible for
23 that purpose.
24 THE COURT: You’re getting —
25 MR. AUCHINCLOSS: Putting that aside, I want
26 to make that point, because it’s not prejudicial to
27 the defendant. It’s not about the defendant. It’s
28 merely some information that the jury can use or not 7276
1 use. It’s up to them. If they think it applies to
2 this case, no problem. If they don’t think it
3 applies, they’re the arbiters. So in terms of
4 prejudice, really it’s — all it is is informing the
5 jury of the truth about a certain syndrome.
6 Secondly, as far as this thing about
7 perjury, I’ve never said that this gives her a pass
8 to commit perjury. And Battered Women’s Syndrome
9 does not provide any exculpation of an individual
10 who lies under oath except for the individual who
11 lies about their mate. That is the one area, when
12 they say, “He didn’t beat me.” When they say, “He
13 didn’t do anything.” When they say, “He’s a great
14 guy. Oh, he’s a good person. He’s an honest
15 person.” When they say those things, that’s where
16 they do get a pass, and that’s the only area. And
17 that’s what this witness would testify to. And
18 that’s why it’s so — it’s so important and so
19 probative in this case.
20 Thank you.
Judge Melville ruled that he would not allow the prosecution to use their expert witness because its prejudicial value outweighs its probative value, and would confuse the jury.
21 THE COURT: This is an area that has caused
22 me a great deal of concern. Probably why I didn’t
23 rule on it initially, I wanted to hear all of the
24 evidence before making the ruling.
25 And I think this type of evidence is
26 valuable in domestic violence cases for jurors to
27 help understand the dynamics of a particular
28 relationship involving violence, but I’m not going 7277
1 to allow it in this case. It may or may not explain
2 her — or a person’s conduct in a similar case, such
3 as the J.C. Penney case, which was not a domestic
4 violence case between her and her husband either, as
5 this one is. And I think it would be a mistake for
6 me to allow that type of evidence on what is a
7 peripheral issue in this case, i.e., whether or not
8 she told the truth in the Michael Jackson — in the
9 J.C. Penney depositions.
10 The Court will also find, under 352, that in
11 this case the prejudicial effect far outweighs the
12 probative value of the information, in that the jury
13 might well confuse the purpose of the testimony,
14 which would be — the only way I could see it at any
15 time would be to explain the relationship of the
16 abused and abusing couple.
17 And I also think that, under 352, to allow
18 the evidence would force the defense to approach the
19 abuse in a different area, a different way, which
20 would cause an undue use of time and prolong the
21 trial unduly.
22 So for all those reasons, the Court will
23 deny the use of the expert on the Spousal Abuse
25 The next issue we’ll take up is the
26 plaintiff’s supplemental motion for admission of
27 additional evidence pursuant to Evidence Code
28 Section 1108. 7278
The next issue was the Section 1108 evidence, specifically the admissibility of Kassim Abdool, one of the “Neverland Five” who frivolously sued Jackson for wrongful termination and lost, and was forced to declare bankruptcy after being ordered to pay Jackson’s legal fees, which were $1.4 million dollars. Sneddon felt that his testimony should be admitted because it corroborated Ralph Chacon’s earlier testimony,
1 MR. SNEDDON: Judge, I’ll be brief. I just
2 want to correct a couple of misconceptions in the
3 response by the defense to this motion.
4 Mr. Kassim was on the original witness list
5 and has been since the beginning of this trial.
6 Secondly, the discovery with regard to Mr.
7 Kassim’s statement was provided, along with all the
8 other materials, back in October of 2004 of the
9 statements that he made to police in 1994 — in
10 1994, in May, during the course of the first
11 investigation involving Mr. Jackson. These have
12 been known to the defense since that period of time.
13 With regard to the motion itself, I will
14 indicate to the Court that he was not on the list of
15 the 1108, because in my view, with regard to the
16 observations that he made, as I’ve indicated in the
17 brief, they were corroborative of the testimony of
18 Mr. Chacon and did not involve the actual seeing of
19 any misconduct on the part of any individual. And
20 frankly, it didn’t dawn on me that he couldn’t just
21 come in and testify to those events. However, when
22 the Court asked me to do it and put it in writing
23 and defer his testimony, I was more than glad to do
25 But this — so this is not something that
26 we’re trying to bootstrap into something we didn’t
27 plan to do a long time ago. He’s been on the
28 witness list, items have been discovered, and so we 7279
1 filed a supplemental motion. And I believe that the
2 evidence is probative and is admissible under the
3 code section and certainly is — sets a stage and
4 corroborates the testimony of Mr. Chacon in terms of
5 the fact of the defendant being with the children
6 that were mentioned by Mr. Chacon, and the events as
7 mentioned by Mr. Chacon, and then the corroboration
8 of the incidents by finding the swimming trunks in
9 the rest room when he went to turn the lights off
10 immediately after the defendant went from that
11 position to the house.
12 I’ll answer any other questions that the
13 Court has, but that was — I wanted to explain those
14 differences between our position and the defense’s
15 position on the factual issues in terms of what was
16 and was not provided.
17 THE COURT: Okay. Counsel?
Sanger argued that the prosecution excluded Abdool’s name from their list of 1108 witnesses that they presented to the court in December 2004, and was only being offered to shore up Chacon’s testimony:
18 MR. SANGER: Yes, I don’t know that
19 there’s — that there is a dispute, nor did we
20 intend to say there was a dispute about what Mr.
21 Sneddon said.
22 All of the people that they could find in
23 the Abdool, Chacon, McManus, Domz and Bagnall vs.
24 Jackson case, the civil case, all of those
25 plaintiffs were listed as potential witnesses in
26 this case on the December 6th witness list, as I
27 recall. If it wasn’t that one, it was the one
28 shortly thereafter. That was not our complaint. 7280
1 Our complaint was that Abdool was not listed in the
2 1108 — specific 1108 motion where the government
3 spelled out what they intended to prove.
4 It has been and continues to be our
5 contention that the government is required to turn
6 over witness statements of witnesses who talk to the
7 government, whether it’s police officers or district
8 attorneys. And our concern is that we had reports
9 from 1994. We’ve had testimony, of course, from
10 this Mr. Abdool in 1996 or .7, and that was
11 involving the case I was involved in in representing
12 Mr. Jackson, but we don’t have any current reports.
13 And it’s just hard to imagine that any of
14 these witnesses — and I’m taking just a moment,
15 because this applies to other witnesses that will
16 come up, that any of these witnesses from times gone
17 by would just be called to the stand cold, without
18 even so much as a reinterview. So that was our
19 concern, so that was what we were trying to express.
20 And without anything new, and without
21 anything by way of an offer in the original 1108,
22 all we have now is the new offer, which is not based
23 on declarations, as so many of these motions are.
24 They’re just things that are said in the motions,
25 and the government wants to call Mr. Abdool for
27 This goes far afield. The Court was
28 limiting the testimony under 1108, recognizing, I 7281
1 believe, that 1108 evidence can be very distracting
2 to the jury for the same 352 reasons that we’ve
3 discussed before, and the Court made an effort to
4 limit it, my belief was, to people who saw some
5 actual acts or purported to see some actual acts
6 that would amount to actual evidence as opposed to
7 circumstance and innuendo.
8 And not to go on about all the details of
9 Mr. Abdool’s testimony and whether or not it’s been
10 refuted by his own words, which I can indicate to
11 the Court it has been, but aside from that, you’re
12 talking about a tangential witness to shore up
13 another witness who has testified here, and we’re
14 turning the 1108 into more than it should be turned
16 This still remains a balancing act, and the
17 Court has discharged that duty to balance by
18 attempting to limit the 1108 testimony so the jury
19 could hear what might be important to hear for the
20 purposes set forth in 1108 and not to allow 1108
21 evidence to overtake the significance of the actual
22 evidence in this case of guilt or innocence.
23 And so I think that expanding it any further
24 would be a mistake, and I think it would be — it
25 would be harmful, be prejudicial, for all the
26 reasons under 352, consumption of time, confusion to
27 the jury, and prejudice to the defendant.
28 Thank you. 7282
Sneddon replied it wasn’t prejudicial or used to shore up Chacon’s testimony, but it was corroborative, and the fact that Abdool later sued Jackson doesn’t discredit what he claimed to witness:
1 MR. SNEDDON: Your Honor, I just want to
2 make one comment and I’ll — with regard to Mr.
3 Sanger’s position.
4 I think that the — there’s three incidents,
5 and I tried to be specific about the incidents
6 involved in the offer of proof. And clearly, my
7 take on it, and has been from the beginning, that
8 the first two incidents that really frankly involve
9 relevancy issues more than anything else, and that
10 they are like having multiple people see the same
11 events and you’re allowed to call people in to
12 testify to certain portions of what they saw during
13 the course of those events.
14 Clearly, I think the third incident is one
15 that is more akin to the 1108 and 1101 kind of
16 evidence that’s been before the Court. But clearly,
17 I think the first two incidents are ones that are
18 more, in the sense, relevant because they
19 corroborate Mr. Chacon as to significant events that
20 he’s testified to in this case.
21 And there’s been a — an attempt by the
22 defense to claim that this evidence was fabricated
23 based upon his involvement in later suing Mr.
24 Jackson. And I think in fairness to Mr. Chacon,
25 when there’s a witness out there who can testify
26 that he was also there that night and he also saw
27 the same things that Mr. Chacon saw, in terms of the
28 setting for the event and placing Mr. Jackson with 7283
1 the child at the time that Mr. Chacon says, that
2 that’s highly relevant evidence that this jury
3 should be presented with.
4 So I think there’s a difference in the basis
5 for which the first two incidents would be
6 admissible as opposed to the third.
7 And I’ll submit it.
8 THE COURT: You know, I want to take a couple
9 of minutes to read the briefs again on this. I’ll
10 take a five-minute recess.
Judge Melville denied Sneddon’s request to allow Abdool to testify about the third incident of alleged abuse that he claimed to have witnessed in Jacskon’s bedroom, but he did allow the first two alleged incidents of abuse that Abdool claimed to witness (in the bathroom, and the hug).
11 (Recess taken.)
12 THE COURT: What department is this? Where
13 are we?
15 THE BAILIFF: 8.
16 THE COURT: Okay. On this plaintiff’s
17 motion for admission of additional evidence pursuant
18 to 1108 and 1101(b), I am going to deny the request
19 to allow the — what I’ll refer to as the bedroom
20 incident, which is your third incident.
21 I think I will allow the evidence relating
22 to the — what you call the bathroom incident, the
23 swimming trunks. And the second one, the hug, that
24 will be allowed under 1101.
The next issue was the admissibility of defense witnesses who would deny ever seeing Jackson abuse children. Judge Melville was concerned about allowing irrelevant character witnesses to the case, so he asked Sanger to advise him on what his proposed witnesses would say. Sanger replied that the character witnesses would rebut the prosecution’s 1108 witnesses who claimed to have seen inappropriate behavior more than a decade ago, and to rebut their claims that children always ran amuck and unsupervised at Neverland.
25 Then the next item on the Court’s agenda is
26 the admissibility of certain testimony of several of
27 the defense proposed witnesses.
28 I have a way of sort of streamlining this 7284
1 one. I can’t tell how to rule without knowing why
2 you would offer a certain witness in what regard.
3 This is evidence that what you want to do is produce
4 employees who will declare that they never saw Mr.
5 Jackson touch a child inappropriately or something,
6 you know, some type of evidence. And it’s,
7 generally speaking, negative evidence, you know. We
8 can call a million people who never saw him do that.
9 But if there’s some way of advising me and the
10 prosecution in advance that a particular witness was
11 in a particular situation, it makes that not seeing
12 something germane, then we have a different
13 situation, right? Do you understand what I’m
15 MR. SANGER: Yes.
16 THE COURT: If you could give me the facts as
17 to a — I don’t know, maybe it would be a situation
18 where the District Attorney had a witness that said,
19 “I saw such and such happen,” and you had a witness
20 that was there in the vicinity that didn’t see such
21 and such happen, then that becomes relevant.
22 MR. SANGER: Yes.
23 THE COURT: Does my streamlining really
25 MR. SANGER: No, it didn’t work, Your Honor.
26 THE COURT: All right.
27 MR. SANGER: I’m here to prove that point.
28 THE COURT: Go ahead. 7285
1 MR. SANGER: No, I understand what the
2 Court’s saying.
3 Certainly that streamlined version — I
4 think there’s no question — if they say at eleven
5 o’clock in the morning on the 1st of whatever,
6 somebody was standing outside the theater and
7 something untoward happened, and we have an
8 employee, for instance, who was working in that
9 vicinity at eleven o’clock and was vigilant, and we
10 can say he was looking around and he never saw any
11 such thing happen on that particular day, clearly
12 that’s relevant. I mean, that wouldn’t be a
13 question. So to the extent it’s streamlined to that
14 extreme, I mean, obviously —
15 THE COURT: That’s an extreme situation.
16 MR. SANGER: But I think that the kind of
17 evidence that we are talking about is much more —
18 is much broader than that. There will be evidence
19 of that sort. But there’s also evidence of people
20 who, for instance, worked at the park, the amusement
21 park, saw children on a regular basis, saw Michael
22 Jackson with children on a regular basis, some of
23 whom saw the Arvizo children, some of them who did
24 not see the Arvizo children, per se. They may have
25 seen them, but they didn’t see anything particular
26 with regard to those children one way or another,
27 but were able to say that they have seen Mr. Jackson
28 on a regular basis with children and never seen him 7286
1 do anything inappropriate. There are also people
2 who would say that they did not see children who
3 were —
4 THE COURT: Do you think that’s character
5 testimony? Now you’re having people testify to a
6 trait of character. Do you want to put his
7 character in issue for the trait of, you know,
9 MR. SANGER: Well, in essence, his character
10 has been put in issue and that was part of what we
11 briefed. 1108 evidence is — the way 1108 is
12 written and the way it’s been interpreted, although
13 we have thought — I say “we.” You know, the
14 defense bar in general and a lot of legal scholars
15 have thought that it really went overboard. It’s
16 been interpreted as propensity evidence. That’s
17 character evidence. If they’re allowed to introduce
18 some evidence of some events from 12, 13, 15 years
19 ago for the purpose of showing propensity, which is
20 what 1108 allows, we should be able to counter that
21 by saying, no, there is no propensity.
22 And when they’ve been allowed to introduce
23 evidence of children running amuck, this is not
24 character as to Mr. Jackson, but you’ve heard the
25 testimony elicited by the prosecution that there are
26 children running amuck and totally unsupervised and
27 out of control. Some witnesses say that. And other
28 witnesses say, other than particular children, like 7287
1 the Arvizos, for instance, children were not running
2 amuck, there was supervision, a certain amount of
3 decorum. I think those are relevant. That’s not
4 character evidence as to Mr. Jackson. That is —
5 that is evidence that’s directly offered to refute
6 the evidence that was put in by the prosecution.
7 So if we take those two different categories
8 and talk about those — let’s take the last one
9 first. Let’s assume — let’s assume we put on a
10 witness who worked at the ranch in the public areas
11 and saw children on a regular basis and said, “I’ve
12 seen children on a regular basis there. I have not
13 seen any children under the influence of alcohol.
14 I had the opportunity to observe.” Of course there
15 could be a foundation objection. But assuming that
16 there is a foundation, survives that, they have an
17 opportunity to observe and they say, during the
18 relevant time periods, “I saw dozens, hundreds of
19 kids,” whatever it is, “and nobody was under the
20 influence,” that’s evidence we should be allowed to
21 present, because it directly refutes evidence that
22 was presented by the prosecution.
23 If we have evidence that — so that’s that
24 category, and I think that’s pretty simple.
25 If we have evidence with regard to Mr.
26 Jackson behaving appropriately with children and
27 providing — you know, not doing anything
28 inappropriate in his contact with them, that 7288
1 counters the 1108 evidence, the propensity evidence.
2 THE COURT: Well, I think what I’ll do is
3 I’ll let you — what I would do is let you, as to
4 each witness – and we’re not going to do it now, but
5 either in through some written paragraph or through
6 some offer of proof before they’re called – tell me
7 the basis, because I see some of those, but, you
8 know, the example you just gave me, an employee who
9 worked in the area of — observed all these
10 children, never saw any of them drinking, you know,
11 if you had the ability and it was an area where they
12 would be seen if they were drinking, you know, then
13 I think I could — I would go along with that
14 employee. But, you know, if he’s a ranch hand and
15 comes in and out of the ranch occasionally and says
16 he never saw anyone, we’re starting to talk about
17 people who wouldn’t have an opportunity.
18 MR. SANGER: And that would be a foundation
20 THE COURT: So I think I need a better — and
21 I would allow the D.A. to address each one, too.
22 It’s not just showing me, but — the general scheme
23 of things, there has to be something specific here
24 to make it relevant. Just plain negative testimony
25 isn’t going to get it.
26 MR. SANGER: I understand.
27 So what the Court is saying, we have to show
28 a foundation for the observation; that if the 7289
1 foundation is that there’s adequate opportunity to
2 observe and that it’s relevant to the area or the
3 time period.
4 THE COURT: Yeah. Something that makes the
5 fact they didn’t see it relevant.
6 MR. SANGER: Right.
7 THE COURT: Which is — and I think your
8 alcohol example is a good example of something that
9 I would allow.
10 MR. SANGER: All right. And — and I don’t
11 want to argue with the Court, and I’m not, but as
12 far as —
13 THE COURT: And just like you’re not supposed
14 to talk over there by the witness stand, so you
15 always remind yourself of that right before you
16 start talking.
18 THE COURT: That saves me from reminding you.
20 MR. SANGER: It provides a warning,
22 THE COURT: Yes. Could I go direct to
23 contempt from there? Or — go ahead.
25 MR. SANGER: Well, I’m just a little
26 concerned that we’re sort of in the position of
27 having to make an offer of proof on all these
28 defense witnesses. 7290
1 THE COURT: Just the ones relating to the
2 negative testimony.
3 MR. SANGER: Yeah. And there may be — I
4 mean, we’ll have witnesses who’ll have percipient
5 testimony on very particular things for which there
6 would be no question. And they might also say
7 something like that. It puts us in a position of
8 just about every witness that worked at the ranch
9 that we’re going to call, because we’re not going to
10 call people that spent their entire time up at the
11 administration building or over at the zoo —
12 THE COURT: I don’t think it’s burdensome to
13 ask you to give me less than a paragraph. Just
15 MR. SANGER: Not overburdensome to me, but
16 Mr. Dunkle, he’s young, so he can take it. I say
17 that facetiously. If the Court requires it,
18 obviously we’ll do it.
19 THE COURT: I think I do.
Sneddon countered by saying that the defense was trying to use what is called “lay opinion”, which is defined as “opinion given by a witness who is not qualified as expert but who testifies to opinions or inferences”.
Sanger replied that their character witnesses were not offering lay opinion or character evidence, but rather factual evidence. Judge Melville decided that he would rule on it at a later date:
20 MR. SNEDDON: Judge, can I have 30 seconds
21 on this issue?
22 THE COURT: Well, I thought you were winning,
23 but if you want to —
24 MR. SNEDDON: No, I’m winning, but I want to
25 make something very clear that I think needs to be
26 very clear on the record on this issue that may have
27 not been clear from Mr. Sanger’s remarks, but what’s
28 abundantly clear from the Court. 7291
1 I couldn’t agree more with the Court, and I
2 couldn’t agree more based upon the defense’s own
3 case, the Calpine case. That if they attempt to put
4 people on the witness stand to testify to Mr.
5 Jackson not — not seeing Mr. Jackson molest some
6 kid, that is opinion — lay opinion testimony of
7 character and opens the door for us to do the
9 And I want to make it clear now, so that —
10 so they don’t say I’m doing something different
11 later, that’s not — that has nothing to do with
12 1101 or 1108. That’s for everything that contests
13 the credibility of that witness’s lay opinion with
14 regard to Mr. Jackson’s character trait for deviancy
15 or nondeviancy. And so I just want to make it clear
16 today that if that’s where they go, that’s where
17 we’re going.
18 MR. SANGER: I want to make it clear that
19 that’s not clear, because what Mr. Sneddon said was
20 lay opinion. If you bring somebody up to talk about
21 an opinion, that’s one thing. But if you say, “Did
22 you see specific conduct during the relevant time
23 period,” that’s not opinion as to character. And
24 when we talked about 1108 being a type of character
25 evidence, it is propensity evidence. It’s not
27 THE COURT: It’s not character evidence
28 under the legislative approach. 7292
1 MR. SANGER: That’s correct.
2 THE COURT: It is propensity evidence, and
3 it’s an unusual statute, and California is one of
4 the few states that has it. But it’s been held
5 constitutional, and we go by it.
6 MR. SANGER: And there it is.
7 THE COURT: But it’s not character evidence.
8 MR. SANGER: I mean, I was speaking in
9 general terms. When you respond to propensity
10 evidence, which says there was conduct that
11 occurred, and you respond by showing that there is
12 conduct that is inconsistent with that, that is not
13 a lay opinion that’s offered as character evidence.
14 So Mr. Sneddon getting up making the remarks, it was
15 welcome, because if there is any question —
16 THE COURT: I think he was responding to
17 your — you argued more broadly than I think you
18 performed. In other words, you argued, “Well,
19 Judge, 1108’s character evidence, so we can put on
20 character evidence.”
21 MR. SANGER: Yes.
22 THE COURT: That’s what you argued.
23 MR. SANGER: That’s why I say, I welcome
24 that, because when I was saying it, I didn’t mean
25 it —
26 THE COURT: I was just tipping you off, you
28 MR. SANGER: Well, there you go. 7293
1 But in any event, just so we’re clear —
2 THE COURT: Okay.
3 MR. SANGER: — Your Honor, it is not
4 character evidence. This is our position. It’s not
5 character evidence to bring in specific acts.
6 THE COURT: You’re telling me that you’re not
7 going to offer character evidence.
8 MR. SANGER: That’s correct.
9 THE COURT: All right.
10 MR. SANGER: And if we do, we will and we’ll
11 let you know. But what we’re talking about here is
12 not character evidence.
13 THE COURT: Now you’re telling me you might
14 offer character evidence.
15 MR. SANGER: Speaking as the — as a member
16 of a group, we have to decide at some point, and
17 if — in other words, to be serious about it —
18 THE COURT: I won’t hold you to anything.
19 Don’t worry about that.
20 MR. SANGER: Okay. If we introduce
21 character evidence, it will be of a different
23 THE COURT: I think the discussion just got
24 way off track on the character evidence issue, and I
25 think I probably started it.
To be continued: https://michaeljacksonvindication2.wordpress.com/2013/09/30/april-21st-2005-trial-analysis-brian-barron-cross-examination-stephen-cleaves-timothy-sutcliffe-timothy-rooney-steven-moeller-jeff-klapakis-cynthia-montgomery-part-4-of-4/