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
Next, Judge Melville denied the prosecution’s motion to quash the subpoena of Manual Ramirez, who the defense claimed was a boyfriend of Davellin Arvizo. He had refused to speak to investigators for the defense prior to being subpoenaed, and Zonen insinuated that it he had nothing to say about the current case. Sanger replied that Zonen’s statement implied that he had a sworn statement from Ramirez, and if so he wanted to have it (the defense would be entitled to it by law)
Here is the motion that the prosecution filed on April 19th, 2005 titled “PLAINTIFF’S EMERGENCY MOTION TO QUASH DEFENDANT’S SUBPOENA FOR MANUAL RAMIREZ”, who was currently dating Davellin Arvizo at that time, and was also a new recruit in the US Marine Corps. Due to the defense’s subpoena, Ramirez was unable ship out and begin training, and claimed that he knew nothing about the current case against Jackson. Sneddon claimed that Ramirze and Davellin had not discussed the case at all, and unless the defense could give a reasonable offer of proof that Ramirez had valuable information for the defense, then his subpoena should be quashed.
The defense then filed their motion titled “MR. JACKSON’S OPPOSITION TO THE DISTRICT ATTORNEY’S EMERGENCY MOTION TO QUASH DEFENDANT’S SUBPOENA FOR MANUEL RAMIREZ; DECLARATION OF ROBERT SANGER”, and in it attorney Robert Sanger included a declaration that stated that he knew of the fact that Davellin lived with Ramirez at his mother’s home in the summer of 2003 due to her unwillingness to participate in Janet’s upcoming extortion against Jackson, and that Davellin made exculpatory statements to Ramirez during that time period.
26 Okay. The next item is the motion to quash
27 the subpoena for Manuel Ramirez.
28 My thought on this is that I’m going to deny 7294
1 the motion to quash, but I’m going to ask the
2 defense if they can accommodate this person. He’s
3 in the military. He needs to move on. Can you put
4 him somewhere at the beginning of your case?
5 MR. SANGER: I had offered to do a
6 conditional exam, and I say that’s an offer. The
7 prosecution opted to seek to quash first. I don’t
8 know that they would — given the Court’s ruling,
9 that they would refuse to do a conditional exam, but
10 that may be one way to take care of it. And we can
11 talk about that. If that doesn’t work, we will try
12 to accommodate him.
13 THE COURT: Counsel, you’re — you stood up
14 after I ruled.
15 MR. ZONEN: Actually, I was standing before,
16 but I’ll be happy to go sit down at this point, if
17 you would like.
18 I’m not agreeable to a conditional exam.
19 They want to do that because they have no idea what
20 this person’s going to testify to. That’s why they
21 want to do a conditional exam.
22 He doesn’t have any information on this
23 particular case, and he was subpoenaed because he’s
24 the boyfriend of the victim’s sister. That’s all.
25 Now, if they want to put him at the very beginning
26 and put him on the witness stand, they can do that.
27 They won’t. They’re not going to call him as a
28 witness in this case because they have no idea what 7295
1 he’s going to say.
2 MR. SANGER: We do have an idea, and if Mr.
3 Zonen tells us that this witness is not saying
4 something, he’s making a representation that he has
5 a statement of a witness he hasn’t turned over. I
6 think it’s rhetoric. But if it’s more than
7 rhetoric, I want that statement of this witness that
8 he has nothing to say, because I believe, from all
9 the evidence that we’ve presented, he does.
10 THE COURT: There appears to be evidence that
11 he has something to say, and that’s why I denied the
12 motion to quash.
13 And now back to my question. Can we
14 accommodate this young man somehow? He’s in the
15 military, we’re holding up his transfer, and I would
16 like to help him get on with his life in the Marine
17 Corps — is it the Marines?
18 MR. SANGER: Yes, sir.
19 THE COURT: They won’t let him go anywhere
20 until this subpoena is taken care of.
21 MR. SANGER: I understand. We will talk.
22 There’s a colonel who is representing him, and we
23 will communicate with the colonel and see what we
24 can do.
The next item was the defense’s motion to include testimony about the sexual activities of Gavin and Star Arvizo (for example, they masturbated themselves at Neverland, and asked Jackson’s’ younger cousin Rijo to join them). Zonen gave a list of cases in which that type of conduct was deemed irrelevant to the credibility of the accuser and inadmissible by the courts. Susan Yu argued that their conduct was indeed relevant because they were seen doing to themselves the same sexual act that they accused Jackson of doing, and Judge Melville agreed and deemed that evidence admissible:
25 THE COURT: All right. The next one is the
26 defendant’s motion to admit evidence of alleged
27 sexual conduct which, in accordance with the Penal
28 Code, had been filed — or Evidence Code had been 7296
1 filed under seal.
2 Who is going to speak first?
3 MS. YU: Thank you, Your Honor.
4 I didn’t realize we can have a hearing on
5 this, because I thought it was under seal.
6 THE COURT: It is under seal, and I’ve read
7 the points and authorities. And if you have
8 anything to say, you have to say it without —
9 MS. YU: The issue presented by this motion,
10 Your Honor, is critical to the defense, because it
11 really presents whether Gavin and Star are telling
12 the truth when they say Mr. Jackson inappropriately
13 touched Gavin or masturbated Gavin, because we’re
14 here to seek the truth. And the truth of the matter
15 is that they themselves engaged in the very act that
16 they are accusing Mr. Jackson of having committed.
17 They themselves —
18 THE COURT: What I was trying to ask you when
19 you interrupted me was not to mention the acts
20 that —
21 MS. YU: I’m sorry. About the date in
23 THE COURT: I just asked if you had any
24 further legal argument on it. I know what’s
26 MS. YU: No, Your Honor.
27 THE COURT: All right. Anything from the
28 People? 7297
1 MR. AUCHINCLOSS: Yes.
2 One thing that I think is very important for
3 the Court to focus on in the analysis of whether to
4 conduct a hearing, move forward under 782, is to
5 make certain that we do not obviate the intent and
6 purpose of 782 in the method in which we proceed.
7 One of the complications in this case at the
8 present time is the fact that the victim has been
9 cross-examined about this subject matter. The
10 reason that’s complicated is because if the victim
11 answers in the affirmative, then the evidence comes
12 in doing an end run around 782. In other words, 782
13 is obviated if the victim admits the conduct. If
14 the victim denies the conduct, then the defense
15 says, “Well, we want to get it in because we want to
16 impeach him with this conduct,” irrespective of 782.
17 Now, the intent of 782 is specifically to
18 allow this evidence in when the conduct itself is
19 credible or deals with — goes to the credibility of
20 the victim in the case. Not to impeach him about
21 some statement. But when that conduct impeaches the
22 victim for purposes — I shouldn’t use the word
23 “impeaches,” but when that conduct imputes the
24 credibility of the victim by virtue of its
25 relevancy, it has some similarity, some aspect that
26 helps the jury understand whether or not this
27 victim’s being truthful.
28 Now, the cases on this which we’ve cited, 7298
1 the first one — I don’t know if we cited this case,
2 but it’s of course before we get to the next stage
3 of 782, which is an open hearing, calling witnesses,
4 that the defense has a burden to show affirmatively
5 under oath the relevance of the complaining
6 witness’s ascribed sexual conduct and they must show
7 that this is not evidence that’s just designed to
8 deprecate the character of the victim.
9 Secondly — and that is People v. Rios at
10 161 Cal.App.3d 905.
11 Secondly, the case of People vs. Woodward,
12 at 116 Cal.App.4 281, says that the conduct itself
13 must be similar to the charged crime.
14 Now, I won’t go into the facts, but I
15 suggest to the Court that this is not similar
16 conduct in terms of the actual act itself. There
17 may be a similar description of events, but there is
18 one that involves two people and one that involves
20 Finally, one case that we did cite for the
21 Court is the Harlan case, which specifically states
22 that this type of conduct is not relevant. It’s
23 not — it doesn’t go to the blameworthiness of the
25 So going back to my original problem, if we
26 look at the conduct itself that we’re — that the
27 defense is trying to get in, under Harlan, the
28 courts hold that that conduct, in and of itself, is 7299
1 not really relevant to the credibility of a victim
2 in a child molest case. The reason it’s not
3 relevant is because it’s common and it’s something
4 that could be ascribed to any child victim.
5 So if this conduct is not relevant, I
6 suggest it would be unjust and unfair to let it in
7 to impeach the victim’s statement denying this
9 It’s a little convoluted, but if you follow
10 me, if we do that, if we say that the defense gets
11 to cross-examine the victim about it, and the victim
12 denies it, then the protections of 782 are
13 completely obviated and the purpose is ignored.
14 So our point is, is that really the only way
15 that they can get this evidence in is by showing
16 that this type of conduct is sufficiently directly
17 relevant to the facts of this case, even assuming
18 it’s true. And the case of Harlan specifically
19 states that this type of — this type of conduct
20 does not pass muster and should not be admissible.
21 Thank you.
22 MS. YU: This conduct is relevant, Your
23 Honor. It is relevant because Mr. Jackson is
24 charged with masturbation, and that is the very act
25 that deals with this particular motion. And it goes
26 directly to the credibility as to whether they’re
27 telling the truth. Did they, in fact, do it
28 themselves, or are they blaming now Mr. Jackson for 7300
1 the very act that he never did?
2 Star got on the stand and he — he testified
3 under oath that he looked at these adult materials
4 outside the presence of Mr. Jackson, when in fact
5 they looked at the adult materials, they looked at
6 other explicit materials, and engaged in the very
7 act that they’re blaming Mr. Jackson for. It is
8 credible to this case.
9 THE COURT: All right. Thanks.
10 Normally Evidence Code Section 782 does
11 require a hearing outside the presence of the jury
12 to determine what the complaining witness would say
13 about that. But in this case, the complaining
14 witness has already been questioned on the behavior,
15 so the necessity of a 782 hearing is dissipated. We
16 don’t need one now.
17 I find that the evidence is relevant based
18 on the — particularly in view of the amended
19 declaration as to the time frame, which I thought
20 was critical to the relevance. So the evidence will
21 be allowed.
The next issue was the defense’s request that they use Gavin’s email password of “sexy” to attack his credibility on the basis of his claims of being sexually naïve, and Judge Melville denied their request. He also allowed Rijo Jackson to testify about the sexual activities that he witnessed the Arvizos engaged in at the guest units:
22 Let’s see, the next item is Mr. Jackson’s
23 request for clarification of the Court’s order known
24 to prosecution and unknown to defense.
25 The Court did provide you with a copy of the
26 minute order of March 11th, 2005. And I don’t want
27 to hear argument on this.
28 MS. YU: Okay. 7301
1 THE COURT: This is for my clarification. I
2 don’t see any need for it. But I have ordered that
3 the defense may not attack Gavin’s credibility with
4 evidence that he maintained an e-mail account with
5 the password “Sexy” on it. That’s prohibited.
6 And the second one was — stated that I
7 would only permit the information that was submitted
8 with respect to Rio’s testimony, which was referred
9 to as the male witness in the minute order. So
10 that’s — that’s — I don’t think any further
11 clarification is necessary. It’s — is there?
12 MS. YU: I’m sorry? I apologize.
13 MR. MESEREAU: Is there any other
14 clarification that’s necessary?
15 MS. YU: No, Your Honor. I believe we’re
16 informed about the password. That was the only
18 THE COURT: They’re all waving at you.
19 So that takes care of the clarification.
20 MS. YU: We were seeking clarification as to
21 Mr. Mesereau’s cross-examination of Gavin on the
22 e-mail account, as well as the passwords, because he
23 did testify about the various passwords.
24 THE COURT: But I prohibited this area.
25 MS. YU: Yes.
The next item was the prosecution’s motion regarding the admissibility of evidence of pending criminal charges against their “star” witness Chris Carter, who was Jackson’s former bodyguard who claimed to have seen Gavin intoxicated at Neverland. The prosecution wanted Carter to plead the Fifth regarding the armed robbery charges that he was facing at that time, and Sanger argued that it was becoming a habit (Janet Arvizo had already pleaded the Fifth regarding her welfare fraud earlier in the trial), and it was unfair to deny the defense the opportunity to cross examine witnesses about key elements of their stories and backgrounds.
Let’s take a look at the motions filed by the prosecution and defense regarding the admission of Chris Carter’s testimony:
On April 20th, 2005 the prosecution filed “TRIAL BRIEF ON ADMISSIBILITY OF GAVIN ARVIZO STATEMENT TO CHRIS CARTER”, in which they claimed that Carter encountered a “very intoxicated” Gavin one night at Neverland in February 2003, and he allegedly told Gavin that “You shouldn’t be drinking”, to which Gavin replied “Well, I can handle it. Michael said if I can handle it, it’s okay. It’s part of being a man.” The prosecution went on to say that “Gavin’s statement to Chris Carter reflects upon his state of mind relative to what the defendant Jackson said that gave rise to Gavin Arvizo’s state of mind. Gavin’s belief that it was okay to drink is circumstantial evidence of Michael Jackson’s successful efforts at seduction.”
In addition to that pleading, the prosecution also filed a pleading titled “PLAINTIFF’S MEMORANDUM REGARDING THE ADMISSIBILTY OF EVIDENCE OF CRIMINAL CHARGES PENDING AGAINST WITNESS CHRIS CARTER”. Carter was arrested in Nevada on several felony counts, including federal bank robbery, armed robbery, and kidnapping. He allegedly robbed four chain stores over a 16 month period beginning in October 2003 (just a few months after quitting his job at Neverland). He was in police custody when the trial started. Sneddon stated that Carter had no deals in place with the prosecution in exchange for his testimony against Jackson, and that Carter intended to assert his Fifth Amendment right against self-incrimination with respect to the facts underlying the charges pending against him. Sneddon argued that Carter should be allowed to assert his Fifth Amendment right because the defense would try to impeach his credibility by questioning him about his alleged crimes.
The defense attempted to rebut Sneddon’s motion with their own motion titled “MR. JACKSON’S OPPOSITION TO THE DISTRICT ATTORNEY’S REQUEST THAT DEFENSE COUNSEL BE PROHIBITED FROM CROSS EXAMINATION OF CHRISTOPHER CARTER REGARDING HIS PENDING FELONY CHARGES”. Mesereau argued that Jackson had a Sixth Amendment Right to confront the Carter in open court, and that the Supreme Court had previously ruled that a defendant is entitled to cross examine based on pending charged, regardless of whether or not a deal with the government is in place. He wanted to diminish Carter’s credibility by questioning him about the charges he was facing.
26 THE COURT: All right. The next item was the
27 plaintiff’s memorandum regarding admissibility of
28 evidence of criminal charges pending against witness 7302
1 Chris Carter.
2 MR. SNEDDON: Judge, let me take this
3 opportunity to indicate to the Court that Mr.
4 Carter’s attorney, Mr. Segal, is here – he’s in the
5 front row. Jeff Segal – and might want to address
6 the Court with regard to his advice he’s given his
7 client with regard to this case. I will indicate to
8 the Court that —
9 THE COURT: Counsel, if you’d like to come
11 MR. SEGAL: Thank you, Your Honor.
12 THE COURT: Someone will give up a seat for
13 you, I’m sure.
14 MR. ZONEN: Why don’t you sit up here at the
16 MR. SNEDDON: I just want to indicate to the
17 Court that the representations that have been made
18 in the brief with regard to the fact, the key fact,
19 one of the key facts, I think, in the Court’s
20 determination about how much can be brought before
21 the jury in this particular case, Mr. Carter is
22 testifying and he’s testifying on his own, and he
23 has not been promised anything at all with regard to
24 his testimony.
25 MR. SANGER: Well, on that issue, the
26 reported decisions are replete with cases where the
27 representation was that there was no promise of
28 leniency. And we’ve had very little time to respond 7303
1 to this, so I’ll ask leave to do this off the cuff,
2 but if the Court wanted some citations to the cases,
3 I could certainly give them.
4 The cases are numerous where there has been
5 no promise of leniency, or that’s been the
6 representation, and then when it comes time for
7 sentencing, the witness later, in his own case,
8 receives a lenient sentence. There are a number of
9 habeas corpus cases where habeas corpus was granted
10 based on that exact scenario.
11 I am not disputing at the moment what Mr.
12 Sneddon has just said, but the fact of the matter
13 is, that anybody who’s facing both state and federal
14 charges and very serious charges, bank robbery and
15 robbery charges, may well have an inclination to
16 please whatever government official comes before
18 And here we have the District Attorney of
19 the entire County of Santa Barbara who is handling
20 this case. There’s no question this is a very
21 high-profile, big case. There is no question that a
22 person might believe that by cooperating with Mr.
23 Sneddon in the case of the century de jour, which
24 will be superseded, I’m sure, by some other case
25 next week or next month, but right now that’s the
26 way it was perceived and it would be perceived to a
27 witness like this, he may feel, by cooperating, that
28 somehow this is going to redound to his benefit with 7304
1 other prosecutors.
2 We went back to the Gilio case, because
3 that’s sort of the root of all of this. The United
4 States Supreme Court made it clear that the
5 potential for influence of a witness’s testimony is
6 not up to the District Attorney to decide. It’s up
7 to the jury. And therefore, the defense should be
8 allowed to explore that, to know about it. This is
9 Gilio and that’s the genesis of these cases. And
10 the jury should be allowed to know about it so that
11 they can evaluate whether or not there’s any
13 It’s just — even though this has already
14 happened with Janet Arvizo, I mean, this is
15 extremely unusual that the prosecution would come
16 forward and say, “We want to avoid” — “We want a
17 witness to testify for us, but we want to prohibit
18 the defense from fully confronting and
19 cross-examining that witness.”
20 And the Court has fashioned a remedy with
21 regard to Janet Arvizo, which obviously was over
22 objection, but this is beginning to add up, because
23 following this motion, they’ve got yet another
24 motion. They’ve got another witness they want to
25 call who wants to take the Fifth and the jury’s not
26 supposed to know about it.
27 This is getting to be pretty weird, to put
28 it in legal terms. All right? It’s very, very 7305
1 unusual. It’s gone beyond unusual to weird. I
2 mean, you just cannot put a defendant in a position
3 where the historic right to confront and
4 cross-examine is being cut off or circumvented not
5 only once, but twice and three times.
6 This particular situation is particularly
7 egregious. I mean, we’ve got somebody who’s charged
8 with bank robbery, and, you know, this is — this is
9 not something that the defense should —
10 THE COURT: So what are you asking?
11 MR. SANGER: Well, I think if the witness is
12 going to — as we said with regard to Mrs. Arvizo,
13 if the witness is going to be taking the Fifth, then
14 their entire testimony is subject to being stricken.
15 I know the Court has cited the Hecker case, and —
16 THE COURT: Well, I think that’s a little
17 different situation with Miss Arvizo.
18 MR. SANGER: Well, what I was going to say
19 with regard to — with regard to the cases — and I
20 don’t know what the Court meant. Maybe I should
21 find out what you just meant by that remark, if I
23 THE COURT: I think we’re dealing with a
24 little different situation here. But what did you
25 want to say about the case?
26 MR. SANGER: I’m trying to guess what the
27 Court is getting at.
28 What I was going to say was that this is a 7306
1 witness called by the prosecution. It’s not a
2 complaining witness. And maybe that’s the
3 distinction the Court was looking at.
4 THE COURT: (Nods head up and down.)
5 MR. SANGER: Okay. This is a witness they
6 want to call. None of the cases that are cited by
7 the prosecution really stand for the proposition
8 that they’re advancing. It is true that in the
9 leading case that they cite, the defense sought to
10 call a witness just to have the witness take the
11 Fifth in front of the jury to gain that kind of
12 impact. And that’s not what we’re talking about
13 here. We’re talking about the prosecution calling a
14 witness and being immunized from confrontation.
15 One of the things Hecker said, and I’m not
16 conceding this at all. I think if these witnesses,
17 these two witnesses — if we could address both at
18 the same time, but certainly we can start with this
19 one and equally it applies to Miss Montgomery. If
20 they’re going to take the Fifth, then they take the
21 Fifth out of the presence of the jury and they go
22 home, and that’s it.
23 I would point out that Hecker said, which is
24 the case the Court cited to us, that one of the
25 remedies there, in a different situation admittedly,
26 but one of the remedies there would be to allow
27 somebody to take the Fifth and to have adverse
28 comment made about that. Because again, it’s — as 7307
1 I argued in the Arvizo matter, these people are not
2 stakeholders. And certainly these two witnesses
3 we’re now talking about are not stakeholders. If
4 Miss Arvizo had any stake, it’s the mother of a
5 complaining witness, I mean maybe.
6 But these people have absolutely no stake,
7 and their asserting the Fifth Amendment should not
8 hurt them in their own affairs, if they were suing
9 somebody or if they were being prosecuted and
10 they’re defending their own case, but there’s no
11 reason why they should be immunized from
12 confrontation in this case, and there’s no interest
13 that they can assert —
14 THE COURT: Let’s hear from his attorney.
15 MR. SANGER: All right. Thank you.
Carter’s attorney, Jeff Segal, addressed the court and stated that he advised him to plead the Fifth regarding the crimes that he was charged with in Nevada, because he didn’t want to self-incriminate himself while testifying for either the defense or prosecution in the Jackson case.
16 THE COURT: Would you state your name,
18 MR. SEGAL: Yes. Good afternoon. My name
19 is Jeff Segal, and I represent Chris Carter.
20 Mr. Carter has no dog in this fight. If he
21 is called by the People or by Mr. Jackson, he is
22 prepared to testify truthfully, so long as he can do
23 that without risking self-incrimination. He is
24 charged with very serious crimes in Las Vegas. He
25 denies that he was involved in committing those
26 crimes. And the issue in all of those crimes is the
27 identity of the perpetrator.
28 So I have instructed Mr. Carter to exercise 7308
1 his Fifth Amendment privilege with respect to any
2 questioning about the alleged criminal actions in
3 the State of Nevada, or anything that might tend to
4 implicate him in any of those crimes.
5 With respect to whether he does that in
6 front of the jury, or outside the presence of the
7 jury, that’s for the parties in this litigation to
8 address. So long as Mr. Carter’s rights are fully
9 protected, you know, I have no other point to make
10 on that issue.
11 So he is prepared to testify with respect to
12 his knowledge and involvement with Mr. Jackson, but
13 he cannot do that if it means self-incrimination.
14 So he will be — he will be asserting his Fifth
15 Amendment privilege.
16 With respect to any agreement for leniency
17 or expectation for leniency, I certainly don’t have
18 that expectation. There is no agreement with either
19 Mr. Sneddon’s office or with any of the prosecutors
20 in Nevada. And I have no expectation that there
21 would be any leniency down the road.
22 THE COURT: If he — what if — if he was
23 asked the simple question whether or not charges are
24 pending against him, in other words, not whether he
25 committed them, but, “Is it true you’re charged
26 with” — I don’t know what it is, robbery, or
27 whatever it is, in Nevada.
28 MR. SEGAL: Your Honor, I believe in an 7309
1 abundance of caution that he should not be required
2 to answer even those questions. I think there may
3 be another way to introduce that evidence before the
4 jury, either by stipulation of the parties, or by
5 the introduction of some kind of court record, but I
6 would strongly prefer that Mr. Carter is not asked
7 those questions, even that question, in front of the
8 jury. I have no objection to that being admitted in
9 court. I have no standing to object to that. But I
10 would instruct him to exercise his Fifth Amendment
11 privilege even as it relates to what crimes he’s
12 charged with in Nevada.
13 THE COURT: All right. Anything further by
14 either side?
Sanger countered by arguing that if Carter is allowed to take the Fifth, then he should be precluded from testifying in the first place, but his pleas fell on deaf ears because Judge Melville ruled that Carter could testify, and the defense would be precluded from inquiring into the circumstances of his crimes. However, he would allow the defense to insinuate that he was currently incarcerated.
15 MR. SANGER: If I could just clarify one
16 thing, just to say we object in Santa Barbara to
17 analogies of dogs in fights, I think, but we might
18 say no horse in this race.
19 However, there is a horse that this witness
20 does have in this race, and he’s charged with
21 federal offenses. State offenses would be the same,
22 but federal offenses in particular, the 5K1 downward
23 departure is something that a person would argue if
24 they came to sentencing, and there’s no question
25 that to be competent, as I’m sure Mr. Segal is, he
26 would argue for a 5K1 downward departure under the
27 United States sentencing guidelines. And the
28 guidelines, as the Court is probably aware, have 7310
1 really been —
2 THE COURT: Held unconstitutional.
3 MR. SANGER: More or less. Under Booker and
4 Fanfan, the two cases Booker and Fanfan, the
5 guidelines have been opened up because they’re found
6 to be guidelines now, which was, actually, the
7 title, as to opposed to actual requirements, and so
8 therefore any kind of mitigation can be brought
9 before the Court and would be brought before the
10 Court. And I would actually expect Mr. Segal, as I
11 believe he’s the lawyer on the federal case —
12 Is that correct?
13 MR. SEGAL: In both cases.
14 MR. SANGER: In both cases, okay.
15 I would expect Mr. Segal, as a federal
16 practitioner, unless he’s confident he’s just going
17 to win the case, he’d be looking, as we all would in
18 a case like that, to the consequences at the time of
19 sentencing and would be looking to present evidence
20 of mitigation.
21 So there is a horse in the race or a dog in
22 the fight, if we take the analogy that was used by
23 Mr. Segal, and we need to have the opportunity to
24 confront this person in front of the jury if he’s
25 going to testify, and say, “Look, it’s a fact that
26 you know that you’re — that you’re facing serious
27 charges, and that’s going to color your testimony,
28 isn’t it?” and go into that kind of a 7311
1 cross-examination with him.
2 Simply sanitizing it and saying, well, you
3 can bring in evidence through a docket or something,
4 or from some other witness that, yes, he’s facing
5 these charges doesn’t do what cross-examination
6 does. And the cases we cited before on
7 cross-examination, it is a — it is a very effective
8 tool in getting to the heart of somebody’s testimony
9 and allowing the jury, the contemporaneous trier of
10 fact, to see how that person performs and how things
11 like that might affect their assessment of
13 So I’d submit as to this witness and also
14 the other one, to save some time, if it does, that
15 either they take the Fifth or they don’t, which is
16 certainly their right. But if they take the Fifth
17 as to anything, then they should be precluded from
18 testifying as to everything.
19 Thank you.
20 THE COURT: Anything further, Mr. Sneddon?
21 MR. SNEDDON: No. I guess my only comment
22 would be — I guess I shouldn’t have said “No.” I
23 should have said “Yes.”
24 I do have a brief comment, and my brief
25 comment to the Court is, first of all, I haven’t
26 heard any reason why the two cases we cited, the
27 Bento case, B-e-n-t-o, and the Dyer case, D-y-e-r,
28 don’t apply to this situation. And I just can’t sit 7312
1 there and let it go unsaid that Mr. Jackson’s not
2 the first person in the world that’s ever had a case
3 where somebody comes in and claims the Fifth.
4 That’s why we have cases like this, and there’s a
5 lot of them on the dockets. And it’s — it’s — two
6 of the three people were people associated with Mr.
7 Jackson and we just happened to call them as
8 witnesses. They’re in our case, but they’re
9 associates of Mr. Jackson.
10 So I find it unfortunate that they have to
11 do that, but I don’t think that this — this sin
12 should be laid at our doorstep. It’s just a fact
13 that we have to bring to the Court’s attention,
14 because counsel representing those people have
15 indicated in their representation of them they have
16 to do it. It’s that simple.
17 THE COURT: All right. What I’m going to do
18 is allow him to testify, and I’m going to preclude
19 the defense from inquiring into the circumstances of
20 the crimes in Nevada for which Mr. Carter is
22 I will allow, through some form, the fact
23 that he is — that he has those pending charges in
24 Nevada and that he is incarcerated. How we tell the
25 jury that I’m open to suggestion.
26 MR. SANGER: Could I address that issue?
27 THE COURT: Yes.
28 MR. SNEDDON: I’ll make it very simple, stop 7313
1 Mr. Sanger from addressing the Court. I’ll be
2 willing to work out a stipulation with Mr. Sanger
3 which would satisfy the Court. If we can’t, then
4 we’ll come back to the Court.
5 MR. SANGER: I think we should be allowed to
6 ask the question, not — and not in an excessive
7 fashion, but ask two or three direct questions to
8 the witness, and he should — if he wishes to take
9 the Fifth, he should take the Fifth in front of the
10 jury, and it should be subject to adverse comment
11 under the Hecker case.
12 THE COURT: Well, I’ve already ruled that
13 you’re not to ask him any questions to force him to
14 make a claim of the Fifth Amendment in front of the
15 jury. And that suggestion that you turn around and
16 do that flies in the face of the ruling I just made.
17 MR. SANGER: I apologize. I didn’t
18 understand that. So —
19 THE COURT: I’ll give you an opportunity to
20 work something out. If not, I’ll do something, tell
21 them myself personally.
22 I’ll give you time. You can tell me Monday
23 whether you’ve reached agreement on how he’s — how
24 the jury is to be advised.
The next item was the prosecution’s motion in limine to exclude evidence from the surrender flight (i.e. Jackson’s flight from Vegas to Santa Barbara to face charges of child abuse in November 2003), and flight attendant Cynthia Montgomery was recalled and questioned about the arrangements she made for Jackson to take that flight . The prosecution wanted to preclude the defense from asking her anything about her alleged illegal actions on that flight that Jackson took with Mark Geragos to surrender on November 20th, 2003. Montgomery allegedly played in instrument role in the secret videotape of Jackson and Gergaos on their flight back to California, and the defense wanted to question her about this, so Sneddon argued that Montgomery should be able to assert her Fifth Amendment rights to avoid self-incrimination regarding her role in the secret videotaping of Jackson.
Jackson and Geragos immediately took legal action against XtraJet to prevent them from selling their surreptitiously taped in-flight video of them on their way back to California. They also filed a lawsuit for invasion of privacy, public disclosure of private facts, common law misappropriation of name, unfair business practices, and other improprieties.
Initially, Geragos won a $20 million dollar judgment against XtraJet in January 2010; however; that judgment was overruled and called “excessive”, and pared down to “only” $750k. Geragos had the option to either accept it or retry the case, so he retried it and won another judgment of $2.5 million dollars in March 2012.
25 The next item is the — shall we take up the
26 other claim of privilege? That’s the plaintiff’s
27 motion in limine to exclude evidence under the
28 surrender flight. Is that – 7314
1 MR. NICOLA: Should I bring the witness in,
2 Your Honor, or would you like to hear argument first?
3 THE COURT: The witness isn’t here? Maybe we
4 should bring her. Is she close?
5 MR. NICOLA: She’s right outside.
6 THE COURT: Okay. Let’s have her come in.
7 MR. NICOLA: Should she take the stand, Your
9 THE COURT: No. Let’s see here.
10 You’re Miss Montgomery?
11 MS. MONTGOMERY: Right.
12 THE COURT: She’s right there?
13 MR. NICOLA: She’s right there.
14 THE COURT: Why don’t you step forward,
16 You don’t have counsel with you, do you?
17 MS. MONTGOMERY: No.
18 THE COURT: It’s my understanding that —
19 well, before I state what my understanding is, do
20 you wish — I’ll have counsel address me.
21 Do you want to address me on the issue?
22 MR. NICOLA: If I may, Your Honor.
23 THE COURT: You can sit down for a second.
24 I’m sorry.
25 MR. NICOLA: We filed this motion with two
26 alternatives. One is to preclude any mention of the
27 November 20th, 2003, flight, because it’s simply
28 irrelevant. What happened on that flight and the 7315
1 conduct of anybody involved with that flight or
2 thereafter is simply not relevant to any issue that
3 Miss Montgomery will testify to or any other issue
4 in this case.
5 And insofar as the defense has certainly
6 made it a habit to bring things up in their
7 cross-examination which are marginally relevant to
8 attack credibility of witnesses, this is a
9 particularly thorny issue, because Ms. Montgomery
10 has, in fact, been advised by her attorney not to
11 answer any questions with respect to conduct arising
12 out of the November 20th surrender flight, as we’ve
13 called it. And her attorney may have many reasons
14 for that. To presume it’s kind of guilty conscience
15 or knowledge of guilt or anything adverse is not
16 fair. And certainly the courts have said that’s not
17 a proper inference to draw.
18 With respect to perhaps drawing an analogy
19 as to the previous motion the Court heard, we —
20 THE COURT: Would you — would you come
21 forward, please?
22 You know what I’d like to do, I don’t know
23 what instructions your counsel’s given you, but what
24 I would like to do is have you sworn and have you
25 state under oath that you intend to invoke the Fifth
26 Amendment so there’s no question about what you’re
27 doing. That’s the only reason.
28 MR. NICOLA: I appreciate that, Your Honor. 7316
1 THE COURT: Would you swear the witness,
Montgomery was questioned by Judge Melville outside of the presence of the jury, and stated that she was advised by counsel to plead the Fifth on any questions regarding Jackson’s November 20th, 2003 flight from Vegas to California to surrender: The prosecution wanted to recall her to question her about her cross-complaint against Jackson, the fact that she offered to become an informant for the prosecution, and the flights that she booked for Jackson as his personal travel coordinator after his arrest. She was asked to be an informant against Jackson because, as someone who coordinated many trips for Jackson, she had knowledge of the alleged conspiracy, and the planned trip to Brazil for the Arvizo family.
15 BY THE COURT:
16 Q. Miss Montgomery, if any questions were asked
17 to you concerning the travel on charter jets and the
18 booking of flights by Michael Jackson or Michael
19 Jackson’s companies, what would your answer be?
20 Would you be claiming the Fifth Amendment?
21 MR. NICOLA: I don’t think she understood
22 the question, Your Honor.
23 Q. BY THE COURT: All right. I’m just asking
24 you a general question. If you were questioned at
25 all about arranging chartered flights for Michael
26 Jackson or his company during the time period from,
27 let’s say, 2002 through 2004, would you claim the
28 Fifth Amendment? 7317
1 A. Um, only on November 20th of 2003.
2 Q. Only on that —
3 A. Correct.
4 Q. — flight?
5 Is that the flight you were going to
6 question her about?
7 MR. NICOLA: No. That’s the flight that we
8 wish to exclude from evidence under 352 and
10 THE COURT: Okay. That’s the flight you’re
11 going to question her about?
12 MR. SANGER: Yes, Your Honor, and all the
13 circumstances surrounding it, including the lawsuit,
14 her cross-complaint against Mr. Jackson that she is
15 litigating for money, and the fact that she came
16 forward and offered to be an informant, a
17 confidential informant, and brought forth a friend
18 of hers who she offered as a confidential informant,
19 who in fact was enlisted by the police to
20 surreptitiously tape-record phone calls.
21 That kind of cooperation, that level of
22 cooperation was, we believe, directly dictated by
23 the fact that she’s under federal investigation and
24 engaged in a lawsuit surrounding the same facts both
25 as a defendant and as a cross-complainant.
26 THE COURT: What’s the — what are you
27 calling her for? What is the purpose of the
28 testimony that you wish – 7318
1 MR. NICOLA: Well, as a general proffer,
2 Your Honor, Ms. Montgomery was the defendant’s
3 travel coordinator for a period of some time, during
4 the relevant period of time. Say late 2002 through
5 approximately September, she arranged private
6 flights for Mr. Jackson. She’s aware of the people
7 that he flew with and continued to fly with after
8 the conduct alleged in the 288 counts, which is
9 circumstantial evidence of a continuing conspiracy.
10 She’s going to offer testimony about Count 1,
11 with respect to the Arvizos getting, through Mr.
12 Schaffel, short-set one-way tickets to Brazil, with
13 a date to leave of nearly immediately after the
14 rebuttal video was filmed, things of that nature.
15 With respect to the November 20th, 2003,
16 flight, we didn’t intend to introduce at all or ask
17 her any questions at all. And we understand that
18 the existence of a civil lawsuit is certainly
19 something that the defense can argue creates a bias
20 within the witness as she testifies. However, the
21 underlying facts of the lawsuit appear to be largely
23 It’s almost like a witness — mind you,
24 there are no charges. She has not been charged.
25 There’s no evidence that she’s being actively
26 investigated, only that an investigation is being
27 conducted. Under those circumstances, it’s akin to
28 asking a witness, “Isn’t it true that you’re being 7319
1 audited by the IRS?” And the implication there is
2 that you violated some kind of federal tax statute.
3 It’s just simply not relevant.
Sanger argued that Jackson was the victim of Montgomery and her employer ExtraJet’s illegal and surreptitious videotaping of him on his flight back to Santa Barbara to be arrested, and because she countersued Jackson and worked as an informant for several months, she was inherently biased against Jackson.
4 MR. SANGER: Interesting. Because this
5 actually is a progression along a continuum. Your
6 Honor said the Janet Arvizo was different than Chris
7 Carter, and Chris Carter is actually different than
8 this, so I suppose this tests the hypothesis here.
9 In this particular case, Mr. Sneddon said
10 two of the three witnesses — I forgot what his
11 words were. Two of the three witnesses are
12 associates of Michael Jackson, something like that.
13 This witness is not in any sense an
14 associate of Michael Jackson. She was in business
15 for herself. But more importantly, Michael Jackson
16 is the victim in her criminal activity. The FBI has
17 an active investigation. They’ve interviewed
18 people, and they’ve seized evidence indicating that
19 Xtra Jet and Miss Montgomery have engaged in —
20 MR. NICOLA: Your Honor, I’m going to object
21 at this point. I don’t think Mr. Sanger’s doing
22 this for anybody’s benefit except for the people
23 behind us. If he has —
24 MR. SANGER: That’s absolutely not true, and
25 if there’s a legal objection —
26 THE COURT: The objection is overruled.
27 MR. SANGER: All right. She — they
28 surreptitiously videotaped Michael Jackson and 7320
1 attempted to sell the tape, and that’s how they got
2 caught, and Michael Jackson is the victim of this
4 So we really have a continuum here of some
5 sort, or maybe it comes back to a circle, depending
6 on how you look at Janet Arvizo’s activities. But
7 certainly here he’s — he is a victim. And if
8 Michael Jackson, the victim of this conduct of
9 surreptitiously taping and attempting to sell that
10 tape, if Mr. Jackson were convicted in this case
11 with the help of Miss Montgomery, it would certainly
12 help her in her civil case where she has filed a
13 cross-complaint against Mr. Jackson.
14 Excuse me one second.
16 (Off-the-record discussion held at counsel
18 MR. SANGER: I mean, was that not clear?
19 I’m sorry. I’m sorry, it’s the end of the day.
20 Mr. Mesereau is saying the Court understands
21 that Mr. Jackson in the civil case is the plaintiff.
22 I think I said this. And I think the Court knows
23 it. He’s the plaintiff.
24 THE COURT: I understand.
25 MR. SANGER: He has sued Xtra Jet. And she,
26 Miss Montgomery, has cross-complained against Mr.
27 Michael Jackson.
28 The point is, she has a big stake in the 7321
1 outcome of this case because it would directly
2 impact her civil case and may or may not impact the
3 underlying criminal case.
4 But all of that behavior on the part of
5 Miss Montgomery and Xtra Jet also gives a tremendous
6 amount of content and context, both content and
7 context, to her activities in volunteering, going to
8 the police, the sheriff here in Santa Barbara and
9 volunteering that she had information. Her
10 information that she offered was primarily hearsay,
11 double or triple hearsay, and she offered to be
12 helpful and she was considered to be a confidential
13 informant for about eight or nine months.
14 The Court may remember that we complained
15 that we didn’t get discovery about Miss Montgomery
16 and about Mr. Provencio that they had compiled in
17 January, and we didn’t get it until October or
18 something. And the government got up and said,
19 “Well, we didn’t give that to you because they were
20 confidential informants. We didn’t want to tell you
21 what they were doing.”
22 They came forward, and she really didn’t
23 have much firsthand or anything firsthand, but she
24 then got the government in contact with Mr.
25 Provencio, who she continued to contact. And he
26 eventually was told to tape-record conversations
27 with other people, not with Mr. Jackson, so — I
28 don’t think he knew Mr. Jackson. But that was – 7322
1 that was being used, and in fact, they’re seeking to
2 call him as another witness in this case.
3 So I think we have to have the right to
4 confront and cross-examine this woman on her bias.
5 She’s involved in litigation. And the underlying
6 basis of the litigation is the illegal not only
7 taping of Mr. Jackson as a celebrity and making him
8 a victim of this, but attempting to sell that tape.
Judge Melville ruled that Montgomery wouldn’t be allowed to testify again for the prosecution, based on her claim of the Fifth Amendment.
9 THE COURT: Well, the case is — this is a
10 different situation than the other two, as you
11 pointed out. Each are distinctly different
12 approaches. And the — in this case, the Court’s
13 going to exclude the testimony entirely. I believe
14 that the District Attorney has the ability to
15 produce the evidence that she would testify to
16 through other means, and the claim of the privilege
17 here would be a total deprivation of the right to
19 So her testimony is ordered excluded based
20 on her claim of privilege under the Fifth Amendment.
21 Let’s see, we’re through with our day.
22 There’s one motion left. I guess we could take that
23 up Monday morning, unless everyone wants to meet
25 MR. SANGER: I think there are two.
26 THE COURT: Hold up your hand if you want to
27 meet tomorrow.
28 My bailiff is holding up…. 7323
1 THE COURT: Oh, I skipped 9 and 10, too.
2 I don’t want to go on now because the court
3 reporter has to do her daily transcript, and we’re
4 all — I guess 9 and 10 —
5 MR. SANGER: I think there’s 9, 10 and 12.
6 THE COURT: Yeah, on 9 we’re going to have a
7 longer hearing. I need more information on those
8 documents. So I’m not — I wouldn’t — that’s not a
9 short issue.
10 The admissibility of the state of Gavin’s
11 testimony by Chris Carter, if I could have resolved
12 that by saying no, we wouldn’t have had to deal with
13 the Fifth Amendment problem. So you know my ruling
14 on the admissibility of that statement is that he
15 can give that evidence. But I think we’ll take up
16 the other issues on Monday, then.
17 All right. Court’s in recess.
18 MR. SANGER: Thank you.
19 (The proceedings adjourned at 2:35 p.m.)