April 25th, 2005 Trial Analysis: Kassim Abdool, Jeff Klapakis, Craig Bonner, & Victor Alvarez, Part 1 of 4
The prosecution pulled a fast one on the defense, and over the break they decided to call Cynthia Montgomery back to the witness stand without first notifying the defense, so Mesereau objected to this stunt. The prosecution also intended to call Hamid Moslehi to the stand today, and they interviewed him during the break. A recording of the interview was made by the prosecution, but they could not give it to the defense in time for them to analyze it.
Auchincloss stated that he and Det. Steve Robel attempted to meet up with Susan Yu to give her the CD, but she couldn’t make it. Assistant District Attorney Mag Nicola stated that the prosecution offered Montgomery use immunity after they learned that she would plead the Fifth for any questions regarding the November 20th, 2003 flight to Santa Barbara (which Montgomery and XTra Jet surreptitiously recorded without Jackson’s permission), and he faxed the defense his motion to grant use immunity, but wasn’t sure if the defense received it or not. Nicola also stated that the prosecution would not be able to call Mosehli to the stand because the defense did not have time to analyze his interview.
An interesting motion was mentioned by Nicola, and it was called “Plaintiff’s Motion To Present The Testimony Of Alexander Montagu Manchester Pursuant To Evidence Code 1101”. He was a cousin of Princess Diana, and lived in Newport Beach, CA. He ran a business arranging the sale and leases of executive jet aircraft, and met Jackson after Jackson purchased one of his jets. After Princess Diana died, Jackson was invited by Montagu to attend her memorial service in LA, and prior to attending the service Jackson hung out with the family in a hotel room for 12 hours.
Montagu claimed that after the initial visit, Jackson would call to speak with his then 5 year old son Alex “10 to 20 times per day”, and that sometimes Jackson was “crying” when he called. Jackson offered to have his chauffeur to pick up Alex and bring him to Neverland, but Montagu refused.
Around New Year’s Day 1998, Montagu claimed that he and his family visited Neverland and Jackson showed them his wine cellar (during which he referred to his wine as “Jesus Juice”). Also, after watching a movie together, Jackson and Alex played a game of hide and seek, and when Montagu went looking for Alex but was unable to find him, he asked one of Jackson’s bodyguards to help him find Alex. For 90 minutes they looked throughout Neverland, and finally they found Alex in the upstairs level of Jackson’s bedroom suite, dressed like Jackson.
The next day, Montagu and his family left Neverland, and Jackson’s assistant called and asked him to return Alex to Neverland, but Montagu refused because he was upset that Jackson disappeared with Alex the previous day. Montagu didn’t return to Neverland until March 1998, during which he claimed that two of Jackson’s security guards confronted him, physically held him up against a wall for five minutes, and “warned him” that he better not try to accuse Jackson of molesting Alex. Later that night he told Jackson about the threats by his security guards, and Jackson didn’t believe him, and subsequently offered a gift of one thousand dollars’ worth of toys for Alex, but Montagu declined.
Sneddon felt that Montagu’s testimony would be helpful to his case because Jackson’s contact with Alex was “consistent” with his contacts with other young boys, and could corroborate the testimony of the Arvizo family (for example, using his security guards to threaten Montagu in a similar way that they were used to hold the Arvizo family “hostage” at Neverland.)
During the trial, Montagu claimed to have been “threatened” by rabid Jackson fans who didn’t want him to testify against Jackson:
Jackson witness says he’s been threatened
By Mike Taibbi NBC News
3/25/2005 12:22:58 PM +00:00 NBCNews.com
A member of the British aristocracy who has been subpoenaed to testify for the prosecution in the Michael Jackson child molestation case told NBC News’ Mike Taibbi that he has received threats telling him to stay away from the trial.
Lord Alex Montagu, who is listed in Burkes Peerage as Viscount Mandeville Baron Montagu Alexander Charles David Drogo Montagu and as the Duke of Manchester on his passport, spoke exclusively with NBC News, in violation of Judge Rodney Melville’s gag order, because he says he has received telephone threats.
According to Montagu, the caller told him “to leave the country and don’t come back until after the hearing. “I’ve had the front of my house vandalized, I’ve had my car tires slashed,” Montagu said. He doesn’t know who’s responsible for the threats and vandalism.
Montagu has been subpoenaed to testify because of his and his son Alexander’s experiences with Michael Jackson at the singer’s Neverland Ranch in the late ’90s.
Melville is expected to rule on Monday whether testimony about prior accusations of molestation against the singer can be used in evidence in this trial. If Melville does allow such testimony, Montagu could be a very important witness for District Attorney Thomas Sneddon. According to NBC News, his testimony would complement other available stories about Jackson referring to wine as “Jesus juice” and about the singer and his friendships with young boys.
Montagu says Jackson met his son at a memorial service for Princess Diana, and then started calling the boy, frequently. He said the singer and his son became fast friends.
“[My son] was sworn to secrecy to Michael,” Montagu said. “I don’t really to any total degree know what happened. I asked my son, he didn’t tell me. And my son’s very fond of Michael but he’s got his secrets.”
Montagu knows of nothing improper that Jackson did with his son during two visits to Neverland, but because of the gag order he wouldn’t give details about those visits.
Montagu said he decided to speak with NBC News because of his family’s fear, and the ordeal of just waiting.
“If I have to testify, [I ask] that it be done as soon as possible, because I just want to get this over and done with and get on with my life,” Montagu said.
And what does the Duke of Manchester think now of the King of Pop?
“If Mr. Jackson’s guilty of something he should be prosecuted,” Montagu said. “If he’s not guilty of something then he should be let go with an apology.”
Before I get to Mesereau’s rebuttal, let me summarize a post written by blogger and professor Raven Woods, who wrote a post on this individual last year called “Stalking Michael Jackson-Psychopath In Action: How Melinda Pillsbury-Foster’s Important Article Can Help Us To Better Understand The Craziness Of Michael Jackson’s Life-Literally!” While researching for a post that she wanted to write on the mentally ill people who falsely accused Jackson of child abuse (Evan Chandler and Janet Arvizo, just to name a few), she came across an article titled “Michael Jackson – Stalked by a Psychopath”, which was written in April 2012 by a journalist named Melinda Pillsbury-Foster, who interviewed Montagu’s second wife Wendy (who is also Alex’s mother) for her story. Wendy disclosed to Pillsbury-Foster that Alexander Montagu lied to her by not disclosing that he was STILL married to his first wife while also married to her (making her marriage to Montagu bigamous), and that Montagu’s aforementioned declaration to Sneddon is nothing but a bunch of lies!
Here’s an excerpt from Pillsbury-Foster’s article in which Wendy dismantles her husband’s lies:
Wendy stated, for publication, to her knowledge her husband had never met Jackson before the morning of the Princess Diana Memorial on September 13, 1997. She recalls the introduction took place through a quasi-business acquaintance of Montagu’s who owned a car refurbishing business in Beverly Hills. Montagu, an obsessive name-dropper, according to Wendy, occasionally mentioned having met Janet Jackson, never Michael.
The agreement with Jackson was for him to attend the service as their guest and then accompany them to their hotel to meet their son. Room service was ordered for a simple snack. Jackson played hide-and-Seek with then four year old Alex. Wendy said she was sure Jackson was there less than two hours, not the twelve hours mentioned in the Declaration.
Afterward, Michael called young Alex a few times and spoke briefly to him. There were less than five phone calls, as Wendy recalls. Jackson allowed young Alex and his father to spend the night at Neverland, in his absence on December 31, 1997. Father and son occupied a guest house with twin beds, never seeing Jackson.
Wendy, a friend, and their two children, along with Alex, the Duke, spent the day at Neverland on Martin Luther King Day in February, 1998. Jackson joined them later in the day, allowing filming of the inside of his home and himself as he, young Alex, and the rest of the party, enjoyed the rides at Neverland. Wendy said she sensed Jackson felt uncomfortable with this unexpected invasion of his private space.
Although they never saw Michael again Alex attempted to arrange the sale of a plane to the star, for which he hoped to get a commission.
Wendy Montagu found out about Alex’s involvement and the Declaration when she began receiving calls from her friends on March 25th, telling her about Alex’s interview on MSNBC. She was stunned to hear her husband’s claims their home and car had been vandalized. Nothing of the kind had taken place.
Not only did Alex fail to mention it at the time, he and Wendy had carried on occasional chats about the pleasant time they had enjoyed with Jackson. The only sour note Wendy remembered was the non-purchase by Jackson of the plane, on which Alex hoped to make a commission.
Alex may have finally understood he would not be one of a larger number of complaining parties. His testimony would not stand up under scrutiny because Wendy, and the family friend who had also visited Neverland, would contradict his statements in every instance. It is impossible to know what was going through his mind at having made such an outrageous charge.
What could have motived Alexander Montagu to concoct such lies against Jackson? Perhaps the fact that he was diagnosed with “psychopathic tendencies” by a psychiatrist in 1984!
It is time all of us take steps to reduce the risk presented by psychopaths. We have the tools. We just need to use them.
On one level, Alexander Montagu is a hereditary peer of the realm holding multiple titles, the highest being Duke of Manchester. On another, he is a man whose life has focused him on victimizing others.
The Duke of Manchester, has been identified as, “having psychopathic tendencies,” since 1984, when Dr. Williamson of Pine Lodge Clinic, conveyed this opinion to Montagu’s solicitor, Mr. Voltan Varszenghy, who repeated this assessment to Judge Lisink, during a hearing held September 6, 1984, this appearing in the transcript from the hearing.
It should come as no surprise that Montagu’s psychopathic tendencies were the root of his lies against Jackson, considering that the two other parents who falsely accused Jackson of molesting their sons also had mental health issues; you can read about Evan Chandler’s bipolar disorder in this post , and you can read about Janet Arvizo’s paranoid schizophrenia in this post and this post. Also, one of Jackson’s “phantom victims” (i.e. someone who claimed abuse by Jackson but NEVER EVER MET HIM), Daniel Kapon, also had mental health issues, and you can read this post and this post for more information.
On April 22nd, 2005 the defense filed “MR. JACKSON’S OPPOSITIOIN TO THE DTRICT ATTORNEY’S MOTION TO PRESENT THE TESTIMONY OF ALEXANDER MONTAGU MANCHESTER”. Mesereau asserted that Montagu should not be allowed to testify because he never claimed to have seen Jackson molesting his son Alex, and Alex himself never claimed that he was molested by Jackson. Also, Mesereau stated that the court had already ruled that only eyewitnesses who personally observed sexual misconduct by Jackson could testify; “grooming” testimony alone was insufficient to be allowed in court.
Judge Melville will rule later on in this transcript whether or not he will allow Montagu to testify.
In this excerpt, Judge Melville asked that Cynthia Montgomery’s attorney be present in the courtroom as he hears arguments about the admissibility of her testimony:
5 (The following proceedings were held in
6 open court outside the presence and hearing of the
9 THE COURT: Good morning.
10 COUNSEL AT COUNSEL TABLE: (In unison)
11 Good morning, Your Honor.
12 THE COURT: Let’s see. There was an issue
13 you wanted to address, Counsel?
14 MR. MESEREAU: Yes. Yes, please, Your
15 Honor. Thank you.
16 Your Honor, I was informed by the
17 prosecution this morning that they want to call
18 Cindy Montgomery as a witness. As the Court may
19 recall, the Court essentially disqualified Miss
20 Montgomery last week because she’s going to assert a
21 Fifth Amendment privilege on certain issues related
22 to a secret taping of Mr. Jackson on a plane.
23 The prosecution informed me this morning
24 after I got to court that they have decided to grant
25 her immunity. This is a surprise to the defense,
26 and I was not prepared to examine her today. I have
27 materials on Miss Montgomery that are not with me
28 today, and it would be prejudicial to the defense 7328
1 for them to suddenly decide to immunize her and call
2 her without us being aware of that.
3 The second issue, Your Honor, has to do
4 with a witness named Hamid, who the prosecution
5 intends to call today. We were given proper notice
6 that he was to testify, but we were notified last
7 night by Prosecutor Auchincloss that there is a tape
8 of an interview that we have not heard and certainly
9 have not had a chance to transcribe. So because we
10 have not been able to do that, we’d request that
11 Hamid not testify today.
12 I am told by Ms. Yu, who spoke to Mr.
13 Auchincloss, that the tape is apparently not that
14 lengthy, but we could not transcribe it in time,
15 obviously, and I would need that for
16 cross-examination. Based upon the information given
17 to Ms. Yu by Mr. Auchincloss, there could be some
18 significant information of value to us in that tape.
19 They’re the two requests, Your Honor.
20 MR. AUCHINCLOSS: Your Honor, I’ll go ahead
21 and address the Hamid issue first. Mr. Nicola will
22 talk about Miss Montgomery.
23 Mr. Moslehi was interviewed on Saturday by
24 myself and Detective Robel, and he gave us
25 information on four points, basically that were
26 summarized in four sentences, that I provided to the
27 defense yesterday.
28 Detective Robel recorded that conversation 7329
1 on a digital recorder. He came back to Santa Maria
2 yesterday and downloaded it and made a CD copy of
3 that. And yesterday afternoon when he had finished
4 that, we contacted the defense and tried to set up a
5 meeting place where we could provide them with that
6 tape. That didn’t work out. It was — the evening
7 kind of became — it became somewhat late and Miss
8 Yu said she couldn’t make it to deliver that
9 document, or that tape. I also provided Mr. Sanger
10 an e-mail with a copy of the four bullet points and
11 I told Miss Yu yesterday the substance of those four
12 points. So that’s where we stand.
13 Mr. Moslehi is a witness that — probably
14 our lengthiest witness today. So he was anticipated
15 to take up most of the day. And I’ll just say that
16 the discovery was certainly timely in the fact that
17 we turned it over as soon as we — as soon as we
18 obtained it.
19 THE COURT: All right.
20 MR. NICOLA: Good morning, Your Honor.
21 I filed a declaration, a motion for
22 reconsideration, and had those documents served on
23 the defense by fax on Friday morning, and we filed
24 it with the Court Friday morning, as well, with
25 respect to Ms. Montgomery.
26 And essentially in the declaration I believe
27 I laid out that we received late notice on Wednesday
28 that Ms. Montgomery would assert the Fifth on 7330
1 Friday — or on Thursday, excuse me. We didn’t have
2 time to contact the U.S. Attorney and see their
3 stance. On Thursday, after the Court’s ruling, I
4 was in touch with both Miss Montgomery’s attorney
5 and the U.S. Attorney. A decision was made at that
6 time to offer use immunity for Miss Montgomery since
7 she was claiming the Fifth. And upon hearing
8 Thursday afternoon that everybody was okay with
9 that, including the U.S. Attorney, I filed my
10 motions as quickly as I could Friday morning. I
11 know we faxed them to Mr. Sanger’s office. I have
12 no knowledge whether he received them or Mr.
13 Mesereau did, but we did file it, and there is a
14 proof of service on file.
15 MR. SANGER: I see that we have six pending
16 matters and then I was handed some more material
17 just this morning. So we just may need time to sort
18 this out, Your Honor. I think we’re all trying to
19 do this as efficiently as possible.
20 On the Montgomery issue, we received
21 sometime on Friday — and I don’t think it was in
22 the morning. I didn’t see it until the end of the
23 day. Of course we were not in session, so it was
24 sent to me. But there was a motion to grant her use
25 immunity, which, as I understand it, is something
26 that the People are going to have to apply to the
27 Court for, and then the Court has to determine
28 whether or not to grant it, and the witness has to 7331
1 decide whether or not to testify based on use
2 immunity, because there’s a question as to whether
3 or not this Court can bind the U.S. Attorney.
4 I heard the prosecution just say something
5 about being in contact with the U.S. Attorney, and
6 my recollection is – and it may be faulty – that
7 that was not concluded as of the time they filed
8 their papers. The papers indicated that they were
9 intending to make the motion, but there was no
10 indication from the U.S. Attorney that they were
11 going to abide by any grant of immunity that this
12 Court made. So that is an issue that obviously
13 needs to be heard, and there’s several parts to it.
14 Our part, whether or not the Court grants
15 immunity — I mean, we’re not here to argue one way
16 or the other on a grant of immunity. The Court can
17 do that based on other criteria.
18 The — as far as the Hamid material is
19 concerned, I did not get the four points. I believe
20 Miss Yu got the four points just as of the end of
21 the day last night. We got the tape or the
22 interview just this morning, so obviously I don’t
23 know how long it is. If it’s an hour long, we need
24 an hour to listen to it. We have not heard his most
25 recent interview.
26 So I — I don’t think that we can proceed
27 with Mr. Moslehi without having an opportunity to
28 hear the latest interview or, you know, take some 7332
1 other — I think that’s all we can do is hear it
2 before he testifies.
3 I would indicate that, just so we’re all on
4 the same page, if I may, Your Honor, quickly, the
5 other matters that are pending would be the Marc
6 Schaffel matter, which I think the Court has. I was
7 given some new material for Exhibit 420 by the
8 prosecutor just this morning, at 8:30, which is one
9 of the exhibits that we have objected to, and so
10 there will need to be a hearing on all of that at
11 some point. And I don’t know if they intend to call
12 him later today or tomorrow or when, but before he’s
13 called. That was a matter from last week that has
14 been carried over, and we’ll need to have a ruling
15 on that.
16 And then we have the motion — the People’s
17 motion to present the testimony of Alexander
18 Manchester, to which we object, and we filed an
19 objection on Friday.
20 And by the way, we filed our objection – I
21 think the Court has it – on Thursday, on the first
22 motion I addressed, which is the Schaffel exhibits.
23 We addressed just now the Cindy Montgomery
24 issue of immunity.
25 The fourth one would be a motion by the
26 prosecution to present testimony of Debbie Rowe.
27 We filed an opposition — that was received
28 Thursday. We filed an opposition Friday. I take it 7333
1 the Court has that.
2 And then five, there was a motion for
3 reconsideration of admitting some material the Court
4 had excluded. That motion was filed on Thursday,
5 and we filed our opposition on Friday.
6 And then the last thing is there was a
7 proposed jury instruction on Chris Carter’s taking
8 the Fifth that we had discussed on Thursday. The
9 Court had discussed that and said we should present
10 something. We sent that to the District Attorney’s
11 Office on Friday for review and comment. We
12 received no response. So we filed our proposed jury
13 instruction this morning for the Court’s
14 consideration and I gave another copy to Mr.
16 So I show those six matters as still
17 pending, in addition to anything else that might
18 come up here.
19 THE COURT: I didn’t see the proposed jury
21 Did we get that?
22 I haven’t seen it.
23 MR. SANGER: We wanted the prosecution to
24 have an opportunity to respond, so we gave it to
25 them on Friday. We just filed it this morning, and
26 gave it to your secretary, Ms. Wagner, this morning,
27 I think 15 minutes ago.
28 MR. SNEDDON: Judge, I wouldn’t worry about 7334
1 it. Mr. Carter is not going to be testifying.
2 THE COURT: Okay. I won’t worry about it.
4 MR. SANGER: Five matters, then.
5 THE COURT: On the issue of the Attorney
6 General, who spoke to the Attorney General on the
7 use immunity?
8 MR. NICOLA: The U.S. Attorney’s Office,
9 Your Honor, and Cindy Montgomery?
10 THE COURT: Yes.
11 MR. NICOLA: I spoke to them. They are not
12 offering her use immunity. They didn’t oppose us
13 offering use immunity. Our contact with them is
14 merely a formality between offices.
15 THE COURT: What rights does that give her
16 with them?
17 MR. NICOLA: Well, I believe that a state
18 court’s grant of use immunity under the legal
19 standard that we set forth in our brief covers her
20 in federal court. They’re not allowed to use her
21 statements, her derivative evidence from that
22 against them.
23 Her attorney is here today, and he would, of
24 course, oppose her being compelled to testify on
25 that very basis. But we served him as well with
26 that motion. He won’t contest that. I spoke to him
27 this morning. And whatever the Court’s ruling is
28 with respect to that, then that’s the Court’s 7335
2 THE COURT: Is he here right now?
3 MR. NICOLA: He is not.
4 MR. SNEDDON: He’s upstairs.
5 MR. NICOLA: Shall I bring him down?
6 THE COURT: I think he should be here if
7 we’re discussing his client.
8 MR. NICOLA: Certainly.
9 It will be just a moment, Your Honor.
10 Your Honor, do you wish the witness to be in
11 here as well?
12 THE COURT: Yes.
Montgomery’s attorney Moore stated that he didn’t want her to testify because she may say something that could be incriminating to her defense in Jackson’s lawsuit against her and Xtrajet, and that there were several jurisdictions that she could be prosecuted in and immunity may not apply to. But Nicola countered that the Supreme Court had ruled that immunity applies to all jurisdictions, and requested that Judge Melville sign the immunity order.
13 MR. NICOLA: Your Honor, they are present.
14 THE COURT: All right. Just a second.
15 All right. On the testimony on Cindy
16 Montgomery, is counsel for Miss Montgomery present?
17 MR. MOORE: Yes, I am, Your Honor. Bob
18 Moore. Good morning.
19 THE COURT: Mr. Moore, the issue that I had
20 talked to the District Attorney about before I
21 realized you weren’t in the courtroom was what the
22 U.S. Attorney’s position was on your client’s use
23 immunity through the state court.
24 MR. MOORE: I don’t believe he’s taken a
26 THE COURT: What’s your position, then?
27 MR. MOORE: My position is if she testifies
28 here, she’s exposing herself to prosecution. I’m 7336
1 not saying a crime was committed or that she was
2 involved in it, but she might say something that’s
4 THE COURT: Is there any protection under the
5 federal court system once a use immunity is granted
7 MR. MOORE: The People have cited a couple
8 of cases, which perhaps support that. However, I’m
9 concerned about the language in the code, 1324. It
10 says, and I quote, “The Court shall order the
11 question answered or the evidence produced unless it
12 finds that to do so would clearly — would be
13 clearly contrary to public interest or could subject
14 the witness to a criminal prosecution in another
15 jurisdiction.” And I think that language is
17 We have the federal jurisdiction. If a
18 crime occurred, it may have occurred in Los Angeles
19 County. It may have also occurred in Riverside
20 County and in Las Vegas. And those are additional
21 jurisdictions which have not been addressed.
22 THE COURT: Isn’t the use immunity provision
23 clear in terms of prosecution under California law?
24 I mean, we’re really one jurisdiction under
25 California law. It’s the federal jurisdiction that
26 I would — that I’m concerned about.
27 MR. MOORE: And so am I.
28 THE COURT: There’s no federal statute 7337
1 similar to the California statute that covers this?
2 MR. MOORE: 1324, do you mean?
3 I’m not sure, Your Honor.
4 THE COURT: Have you yourself discussed it
5 with the U.S. Attorney’s Office?
6 MR. MOORE: Yes, I spoke with him on Friday.
7 And he took no position, which leads me to believe
8 that there could be a prosecution down the road.
9 THE COURT: All right. Thank you.
10 MR. MOORE: Thank you, Your Honor.
11 MR. NICOLA: May I address the Court on that
12 legal issue, Your Honor?
13 THE COURT: Yes.
14 MR. NICOLA: May I borrow your brief?
15 MR. MOORE: Sure.
16 MR. NICOLA: Your Honor, I also left my —
17 the papers I filed on Friday upstairs. And Mr.
18 Moore has allowed to let me use the one I faxed to
19 him Friday.
20 Your Honor, we believe our authorities are
21 directly on point with respect to this issue. The
22 Supreme Court ruled quite some time ago that the
23 Fifth Amendment privilege is of Constitutional
24 significance, obviously. And immunity from
25 prosecution for a witness who’s compelled to testify
26 under a grant of use immunity or derivative immunity
27 or even transactional immunity transcends between
28 the state courts and the federal courts. The case 7338
1 is absolutely clear about that issue. And when —
2 when the Supreme Court looked at the federal
3 statutes, they analyzed them within the context of
4 one jurisdiction granting use immunity to a witness
5 who may further be subject to prosecution or an
6 investigation in federal court. It was very
7 specific to that. And congress has passed other
8 statutes which are not inconsistent with California
10 With respect to the California courts,
11 they’ve been following the Supreme Court line of
12 cases now for quite some time. The case in
13 particular was Nelson, and the fact pattern in
14 Nelson is fairly identical to the one that we’ve —
15 we have confronting us in here; a witness believes
16 that part of their activity with respect to what
17 they may testify to could subject them to some kind
18 of prosecution federally. And the Nelson court
19 ruled that because of the Waterfront case,
20 Murphy v. Waterfront, the issue has been well
21 settled. The same kind of fact pattern, a witness
22 in state court testifying to something they’re
23 worried about in federal court. And the Nelson
24 court upheld the contempt order for those witnesses
25 refusing to testify.
26 So we believe that we’re on pretty firm
27 ground here. And we’d request that the Court sign
28 that use immunity order. 7339
1 MR. MOORE: May I respond briefly, Your
3 THE COURT: Yes.
4 MR. MOORE: As I mentioned earlier, to the
5 extent that if the crime occurred, it may have also
6 occurred in the State of Nevada, which is a separate
7 jurisdiction. And the code — the language in the
8 code says if you believe that the prospective
9 witness could be exposed to prosecution in a
10 different jurisdiction, that’s a different
11 jurisdiction. Federal court is a different
12 jurisdiction. The People have cited cases that seem
13 to indicate — and they’re somewhat old, but
14 indicate that that immunity would be respected by
15 the federal court. They cited nothing to say that
16 the State of Nevada, if a crime occurred there, is
17 bound by the immunity you might give her today.
18 Thank you, Your Honor.
19 THE COURT: Do you want to address the Nevada
20 issue, Counsel?
21 MR. NICOLA: May I, Judge?
22 The United States Supreme Court authority is
23 binding on every court in the country, whether it’s
24 in Nevada, Alaska or California. The Waterfront
25 holding is good law and has been for, I believe,
26 nearly 40 years. And part of the reasoning, the
27 broad reasoning that the Supreme Court gave it back
28 three or four decades ago – I forget the exact date 7340
1 of the publication of that opinion – was that to
2 require every jurisdiction within the umbrella of
3 the United States jurisprudence to grant use
4 immunity before any prosecutorial agency could use
5 the testimony of that witness in their case is
6 unduly burdensome on government in its most
7 legitimate function, which is the prevention of
8 crime and justice.
9 So given that being the state of Supreme
10 Court law in this country, we believe that Mr.
11 Moore, if charges were filed against his client,
12 based on anything she may say from this witness
13 stand under compelled testimony by the Court, he
14 should have no problem whatsoever avoiding that
15 evidence from being used against her, if, in fact,
16 it does incriminate her for something. That’s all
17 speculation, but we understand the statute invites a
18 small amount of speculation with the Court.
19 We believe that your grant of use immunity
20 compelling her to testify will preclude any
21 jurisdiction, including Nevada, although I can’t
22 cite a case aside from the Supreme Court case that
23 we cited previously, from using that testimony or
24 any derivative evidence from that against her.
25 THE COURT: There’s one area of the law that
26 concerns me if I compel her to testify, and she
27 testifies, and the law is that that testimony cannot
28 be used against her, which I think that is what the 7341
1 law is.
2 What is the law in regards to impeachment in
3 the federal court? If she testifies and testifies
4 contradictory in a federal proceeding, is the
5 testimony that was compelled here admissible for
6 impeachment in substantive purposes against her?
7 MR. NICOLA: Your Honor, my understanding of
8 federal law is unless it’s a voluntary statement,
9 she can’t be impeached in a federal court. It
10 cannot be used against her in the federal court.
11 THE COURT: They can’t hear you in the back.
12 MR. NICOLA: I’m sorry, Your Honor. I
13 thought I was speaking up.
14 The use immunity — the use immunity law
15 essentially and intellectually merges all the
16 courts. The Supreme Court fails to see the
17 distinction between any jurisdiction. So
18 essentially a grant of use immunity makes that —
19 that statement or any use of it, even impeachment
20 purposes or getting a search warrant based on the
21 statement that was given in court, completely
22 untouchable. It cannot be used, period. It’s not a
23 voluntary statement. It’s a compelled statement.
24 And it’s protected under the U.S. Constitution
25 according to Waterford (sic). It cannot used
26 against Miss Montgomery in any fashion, by anyone.
27 THE COURT: All right. Anything you want to
28 add, Counsel? 7342
1 MR. MOORE: I’m not sure that’s an accurate
2 statement. If she were to say something
3 inconsistent, it could be used. It’s my opinion.
4 Perhaps I’m wrong, Your Honor.
5 THE COURT: What do you base your opinion on?
6 MR. MOORE: Well, I’m kind of shooting from
7 the hip right now. It’s a question I didn’t expect.
8 So I apologize.
9 THE COURT: That’s called lack of authority.
10 MR. MOORE: Perhaps. No authority I can
11 think of at the moment, though.
12 And with respect to counsel’s statement
13 earlier about the federal case law he cited
14 governing all the states, what the case says, in
15 Daly I think it was, it says that the testimony
16 given in state — compelled testimony given in state
17 court cannot be used in a federal prosecution.
18 That’s what it says. Doesn’t say it can’t be used
19 in a federal prosecution or in any other
21 THE COURT: All right. Thank you.
22 MR. MOORE: Thank you.
23 THE COURT: Let’s take up the motion to
24 present testimony of Alexander Montague.
25 MR. MOORE: Just before I leave, Mr. Sanger
26 has been kind enough to give me a case,
27 Harris v. New York, that says that impeachment can
28 be used. 7343
1 THE COURT: Do you have a citation on that?
2 MR. MOORE: No. U.S. Supreme Court. I’m
4 THE COURT: That’s the old Harris case.
6 MR. MOORE: Yes, Your Honor, the old Harris
8 THE COURT: Yes.
9 MR. MOORE: We all know it well.
10 THE COURT: Maybe you’d like to run out –
11 we have a law library here – find it, and come back.
12 I’ll withhold any ruling until you find that.
13 MR. MOORE: I will do my best.
Zonen presented his argument for the admission of Alexander Manchester’s testimony as further evidence of Jackson’s sexual proclivities. This was clearly another attempt to grasp at straws and cling to anything to make Jackson look guilty. Zonen stated that Manchester would testify about dozens of phone calls that were made by Jackson to his son in 1999, finding Jackson with his son in the upper suite of his bedroom, and the threats that he allegedly received from Jackson’s bodyguards. The prosecution felt that those three points were corroborative of the evidence in the Arvizo and Chandler cases.
However, Sanger countered by stating that the child denied any and all wrongdoing by Jackson, and that the prosecution was using Manchester and other witnesses in an act of desperation to dirty up Jackson and make him look bad.
14 MR. ZONEN: Your Honor, the motion is a
15 motion by the People to present the testimony of
16 Alexander Manchester. We’ve outlined in the brief
17 what it is we expect that Mr. Manchester will be
18 testifying to. The relevance deals with three
19 specific aspects of his testimony.
20 First, he’ll be testifying as to dozens and
21 dozens of telephone calls that were made by the
22 defendant to his child, this was back in, I believe,
23 1998 or 1999, I don’t recall which, at the earliest
24 stages of his becoming acquainted with this child.
25 Telephone calls that were made all hours of the day,
26 all hours of the night.
27 And that testimony is entirely consistent
28 with the testimony of both Gavin Arvizo, his mother, 7344
1 about the telephone calls received by Gavin, as well
2 as the testimony of June Chandler in terms of the
3 level of obsessiveness with which the defendant
4 pursued a relationship with her child, Jordan
5 Chandler, back in 1993. In that regard, the
6 testimony of Mr. Manchester is entirely
7 corroborative of those three witnesses.
8 Secondly, he was prepared to testify to a
9 visit that he had with Mr. Jackson at Neverland
10 Ranch where he was in the theater and lost track of
11 his child and Mr. Jackson, for an hour and a half he
12 spent looking for his child, and eventually found
13 the child up in Mr. Jackson’s bedroom under
14 circumstances outlined in the brief.
15 That, plus his statements to Mr. Jackson
16 thereafter complaining about that particular event
17 resulting in Mr. Manchester being threatened,
18 physically threatened, physically confronted by a
19 couple of Mr. Jackson’s security people. And the
20 notifying Mr. Jackson of that particular event
21 certainly places Mr. Jackson on notice of the fact
22 that staff at Neverland have been and continue to be
23 vigilant in their protection of Mr. Jackson to the
24 extent of using violence and threatening violence.
25 Specifically, Mr. Manchester was threatened that
26 harm could come to him and his family from fans in a
27 manner that is entirely consistent with the threats
28 that were given to Janet Arvizo. 7345
1 We believe that those three specific areas
2 of testimony are relevant for purposes of
3 corroboration and are not so uniquely remote in time
4 from the events that took place in this case, and
5 are right on point in terms of the types of
6 testimony given by a number of witnesses in this
8 Submit it.
9 MR. SANGER: We filed a brief response to
10 this, but — and I think we really covered it. I
11 mean, the fact of the matter is that this is offered
12 as 1101(b) evidence, not as 1108. It obviously
13 could not come in under the Court’s prior rulings on
14 1108. It is a big stretch on all of those points to
15 say that this is conduct that would qualify under
16 1101(b). It is extremely remote in time. This is a
17 witness who has been, in essence, clamoring to be a
18 part of this case. And there are people like that,
19 and they should be viewed with some distrust.
20 This man’s child was interviewed and
21 consistently denied that anything inappropriate had
22 happened. There’s no evidence that anything
23 inappropriate had happened. And yet we have this
24 man, who is a self-proclaimed, perhaps actually is
25 some sort of royalty down the line, who just insists
26 he wants to be a part of this case. And I don’t
27 think this qualifies under any stretch of the
28 imagination. It’s way too remote in time. Despite 7346
1 Mr. Zonen’s rhetorical efforts to make it similar,
2 it isn’t similar. The fact that some security guard
3 did something in 19 — in the 1990s, and Mr. Jackson
4 may or may not have been aware of it, doesn’t mean
5 that it can be used against Mr. Jackson in this
7 And it really comes down, in essence, to one
8 thing. And I was almost just going to submit it
9 without saying anything, but I want to —
10 THE COURT: But you just couldn’t do that.
11 MR. SANGER: I couldn’t do that. Now I’m
12 trying to justify it.
13 THE COURT: I knew you couldn’t do that.
14 MR. SANGER: Some of these last-minute
15 motions share something in common, and that is sort
16 of a desperation to come in and dirty up the case
17 and make Mr. Jackson look bad as opposed to really
18 bear on something that is actually relevant to this
20 The Court has now heard the testimony of
21 Janet Arvizo and some of the other testimony that
22 makes the story of the complaining witnesses in this
23 case highly improbable, to say the least. And it
24 just isn’t right to allow the government to come in
25 at the last minute and try to pull in strings on
26 things that are not relevant and are not proper
27 1101(b) or 1108 evidence.
28 So I’ll submit it on that, Your Honor. 7347
1 MR. ZONEN: Mr. Manchester — it’s our
2 desire that Mr. Manchester be a witness in this
3 case. It’s hardly Mr. Manchester’s desire. He’d be
4 happy to be left well enough alone. He has been on
5 our witness list from day one. He was subject to an
6 interview at the earliest stages of this
7 investigation. And we’re talking about within weeks
8 after the execution of the search warrant at
9 Neverland. This information has been turned over to
10 the defense. It’s been well over a year, probably
11 closer to a year and a half, that they’ve had this
12 information, or longer. We certainly indicated that
13 we intended on calling him from the very earliest
14 stages, if not just the investigation, but certainly
15 the trial as well, and he was on our witness list
16 from day one.
17 Now, this motion is being filed at this
18 stage because it is corroborative of the testimony
19 of other witnesses, and it was appropriate to wait
20 and see how they testified before doing this, but
21 nothing comes as a surprise. These materials and
22 reports were turned over to the defense early on.
23 And it is corroborative of all of them. It
24 is — does come in as well under 1101, but also it
25 is, under California’s constitution, that all
26 relevant evidence is admissible, and this is clearly
27 relevant evidence. It’s corroborative of each of
28 the three different witnesses. 7348
1 Submit it.
Judge Melville ruled that he would not allow the prosecution to call Manchester to the witness stand and testify against Jackson because his testimony didn’t comply with his previous ruling that there had to be a connection of evidence of grooming activities with actual molestation.
He also requested to see the two books from that were seized in 1993 that contained nude children at play, so that he could determine if they would also be admissible as 1108 evidence (and as we all know, he eventually allowed them to be used).
2 THE COURT: All right. The Court’s going to
3 deny the motion to introduce Alexander Manchester’s
4 testimony. It doesn’t comply with my previous
5 ruling that there had to be some connection of
6 evidence of grooming activities with actual
7 molestation, and there’s no consistency in the other
8 parts of it that would lead the Court to admit it
9 under 1101. So that motion is denied.
10 The motion that — on the admissibility of
11 Gavin’s statement to Chris Carter, that’s no longer
12 an issue, is it?
13 MR. SNEDDON: You ruled on that already,
14 Your Honor. You ruled that it was admissible, but
15 it’s no longer an issue.
16 THE COURT: I think I said I intended to
17 admit it at the end of the court day, didn’t I?
18 MR. SNEDDON: Yes, Your Honor.
19 THE COURT: But I didn’t want to rule out a
20 statement from someone, or an argument if someone
21 wanted to make it.
22 MR. SANGER: Chris Carter —
23 MR. SNEDDON: It’s not necessary, Your
25 THE COURT: It’s not necessary.
26 MR. SNEDDON: It’s not at this point.
27 THE COURT: I just wanted to be sure.
28 Okay. And the issue on the admissibility of 7349
1 the defendant’s adult books from 1993 seizure, have
2 you responded to that?
3 MR. SANGER: Yes, sir, we filed something on
4 Friday on that.
5 THE COURT: Do you wish to add anything more
6 to that? Either side?
7 MR. ZONEN: I’m sorry, was the Court
8 addressing the prosecution?
9 THE COURT: Yes.
10 MR. ZONEN: Only to the extent of saying
11 that it is our recollection that the Court had
12 indicated that the Court would reconsider the issue
13 with regards to the .93 seizure subject to
14 resolution of the 1108 motion. That, of course, has
15 been resolved. These books were seized — we are
16 only asking to introduce two books of all the items
17 that were seized during that period of time.
18 THE COURT: Where are those books?
19 MR. ZONEN: We have them here in Santa
20 Maria. We could have them before the Court within
21 an hour, if the Court would like to see them.
22 THE COURT: I’d like to see them.
23 MR. ZONEN: All right. We’ll make
24 arrangements to get them over here to you.
25 MR. SANGER: And, Your Honor, your comments
26 suggest that you don’t have the opposition in front
27 of you. Could I give you —
28 THE COURT: I don’t have it in front of me. 7350
2 MR. SANGER: Let me just give you a copy.
3 THE COURT: I’m going to reserve ruling on
4 that until I see the books.
5 The testimony of Debbie Rowe. Do you wish
6 to be heard on that?
Next, the admissibility of Debbie Rowe was argued by the prosecution, who wanted to use her to corroborate Janet Arvizo’s claims of being forced to shoot an effusive interview in praise of Jackson. Her interview for the Maury Povich hosted “The Footage You Were Never Meant To See” was about 3 hours long, and Sneddon wanted her to testify that she was also forced to say good things about Jackson.
7 MR. ZONEN: Your Honor, very briefly.
8 The facts are outlined in the People’s brief
9 on that matter, but Miss Rowe had — virtually at
10 the same time that Miss Arvizo was submitting to a
11 tape-recorded interview or videotaped interview for
12 purposes of rehabilitating the damages to the
13 defendant caused by the Bashir documentary, Miss
14 Rowe was doing exactly the same thing. It was also
15 a highly scripted interview that was being
16 conducted. And there was the virtual identical
17 incentive for her to do so, participate in the
18 interview. And not just participate in the
19 interview, but participate in the interview with
20 enthusiasm was the suggestion in statement that she
21 would be allowed to have visitation with her
22 children. Something she did not have at that time.
23 That was, in part, of course, an incentive for her
24 to participate in that interview.
25 We believe that the fact that they used the
26 same types of scripted questioning for purposes of
27 conducting this interview, that her performance was
28 the same level of over-the-top type of performance 7351
1 that we saw from Miss Arvizo, and the fact that the
2 children were used as pawns to create that level of
3 incentive is relevant in this case.
4 Submit it.
5 THE COURT: What about the fact that the
6 defense raises that the Maury Povich footage has not
7 been seen by the jury?
8 MR. ZONEN: Well, nor — the Maury Povich
9 tape is not relevant in this proceeding as having
10 anything to do with her interview, except to the
11 extent that segments of her interview are in it.
12 We’re not planning on playing the Maury Povich
13 interview. If we wish —
14 THE COURT: How does the jury understand the
15 context of what you’re presenting?
16 MR. ZONEN: Well, they have the — we have
17 the interview of Debbie Rowe separate. The entire
18 interview was about three hours long. We haven’t
19 decided if we intend on playing all of it, any of it
20 or none of it.
21 THE COURT: The interview by —
22 MR. ZONEN: The Ian Drew interview of Debbie
23 Rowe, which was done at the same time. Marc
24 Schaffel was present, Rudy Provencio was present. A
25 number of the people who were involved in the
26 interview with the Arvizo family were involved in
27 this interview as well. And a number of them were
28 present at that time, and there was discussions 7352
1 about what to do and how to do it. Many of them are
2 witnesses to those events as well, including Debbie
3 Rowe’s attorney, Iris Finsilven.
4 But it’s not necessary to play the Maury
5 Povich film in that most of it has nothing to do
6 with the Debbie Rowe interview. It’s simply other
7 information about Michael Jackson, his history, his
8 life, his performances, his music, other people in
9 his life, his father and allegations of abuse,
10 things like that.
11 But there is a separate video of the
12 entirety of the Debbie Rowe interview. Only
13 segments of it were actually shown on the Maury
14 Povich film. But we have the entire thing on video
15 and are able to play the entire thing if it’s
16 appropriate to do so, if it’s requested by either
17 side, if the Court feels its appropriate. Or we
18 could do it in segments, or we could do none of it
19 and just have testimony about it. The interview is
20 about three hours and two minutes, I believe, in its
22 THE COURT: Counsel?
Sanger rebutted by stating that the notion that Debbie Rowe’s interview was scripted was preposterous because all she did was answer pre-written questions, which is standard in nearly all television interviews.
23 MR. SANGER: This, once again, is reaching.
24 First of all, Debbie Rowe gave up her parental
25 rights, which is a totally different situation than
26 we have here. There’s an ongoing family law matter
27 that persists, even as we speak today, in Los
28 Angeles over this, over the relationship and her 7353
1 attempt to get some — possibly some visitation or
2 some other benefit from that.
3 However, we keep hearing “scripted
4 performances,” and there are no scripts. The only
5 thing that has ever come up in this case, and will
6 be clearly shown, if it isn’t already, by the time
7 we get through, is that there were questions that
8 were written out in advance. And anybody that does
9 any kind of an interview for television is going to
10 script out questions in advance, just as lawyers
11 script out questions or question areas before they
12 get up and ask witnesses on the stand, so
13 interviewers script out their questions. There’s
14 nothing untoward about that.
15 There was no scripted response to anything,
16 despite Janet Arvizo’s preposterous testimony on
17 that. Everybody else will testify consistently with
18 common sense that there was no script of answers.
19 So it doesn’t show a darned thing in that regard.
20 And as we pointed out, and the Court’s
21 already commented, the Maury Povich show is not in
22 evidence. I don’t think there’s any way we can get
23 it into evidence. We don’t intend to offer it. And
24 as a result, unless Debbie Rowe testifies, of
25 course, so how is her performance on that tape
26 relevant, as much as the prosecution would like to
27 make it relevant. And I’m hearing they’d like to
28 play parts of her tape, which just creates, under 7354
1 352, if we even get to that point, if there is any
2 probative value to this, it’s far exceeded by the
3 consumption of time, the confusion of the jury and
4 the prejudicial effect. Because if they bring that
5 in and they play even part of the Debbie Rowe tape,
6 we’ll play the three hours. There’s no question
7 that Debbie Rowe was spontaneous in her remarks, and
8 it goes on and on. I think the Court saw the Maury
9 Povich part of it, where she even answers at one
10 point, “Look,” and she uses some term that would not
11 ordinarily be appropriate on television, kind of
12 laughs about it, and says, “I just want to get to
13 the point. Here’s what it’s all about.” That is
14 her demeanor on the rest of that tape. She is
15 giving an interview based on how she felt at the
17 However, if the Court allows the prosecution
18 to get into this, besides playing the three-hour
19 tape or a large portion of it – not as a threat, but
20 because it will show the context of her answering
21 questions in a very spontaneous fashion – we will
22 have to get into this whole business with Ian Drew,
23 and his fight with Marc Schaffel, and Marc
24 Schaffel’s fight with Ian Drew, and all these —
25 the — all that surrounded this.
26 Debbie Rowe’s on tape. In fact — and she
27 surreptitiously tape-recorded conversations that she
28 had with Ian Drew that go on for hours where she is 7355
1 not upset at Michael Jackson, doesn’t say anything
2 bad about Michael Jackson as far as this — the case
3 is concerned. She says a few callous things, I
4 might point out. But other than that, her focus is
5 she doesn’t like Marc Schaffel. And so she’s
6 fighting with — or working with Ian Drew to fight
7 about Marc Schaffel. All of this will come out to
8 show — it will have to come out because it shows
9 the context in which she would be testifying here.
10 She has been extremely upset with Marc Schaffel for
11 some other reason and has had an agenda that’s clear
12 on all of her taped remarks, including the ones she
13 taped of herself talking. It’s very clear that she
14 has some agenda with regard to Marc Schaffel that
15 has nothing whatsoever to do with Michael Jackson.
16 She regards him as just being pretty much a victim
17 in Marc Schaffel’s machinations.
18 So if she’s going to testify, we’re going to
19 have to bring that out. Again, it’s not a threat.
20 But I want the Court to understand the context.
21 There really is a tremendous amount of material,
22 tape-recorded material, by Debbie Rowe and by others
23 in the group that the prosecution is trying to
24 present here which indicate that there are — there
25 are many other agendas on this case.
26 I don’t know if you get to 352 because I
27 just plain don’t see the relevance, forgetting about
28 the giant can of worms that it would open. I just 7356
1 don’t see the relevance to these proceedings.
2 So I’d submit it, Your Honor.
Zonen replied that Rowe’s interview was indeed scripted, and she only agreed to do the interview in exchange for visitation privileges with her children Prince and Paris Jackson.
3 MR. ZONEN: Your Honor, all of these people
4 are interconnected in a number of different levels
5 throughout this case. And the Court has been very
6 good over the last number of months as we’ve
7 proceeded through this trial in being able to
8 separate what’s relevant and what’s not relevant and
9 keep everybody on point, and on focus, and I think
10 that we can do that in this case as well.
11 I mean, the fact is, is that she had a
12 scripted interview that she gave. And part of the
13 incentive for that interview was the suggestion that
14 she would be able to have visitation with her
15 children. Yes, it is true that some years ago, she
16 gave up her parental rights. She had misgivings
17 about doing that, particularly after this Indictment
18 came down. She went back to court and was
19 successful at reversing that decision. So her
20 parental rights have been reinstated since then and
21 now the litigation that they’re involved in is
22 compelling visitation with these children. To that
23 extent, the children have been appointed counsel and
24 that counsel has not yet had an opportunity to visit
25 with them, to my understanding.
26 I don’t see that that’s an issue that would
27 or necessarily should come into evidence in this
28 particular case, except to the extent that she was 7357
1 promised visitation with her children if she did
2 this video. That hasn’t been given to her and is
3 something she wanted to have. She did want to see
4 those kids.
5 To that extent, it’s one more example of how
6 this group of people used children as a pawn to
7 compel not just participation in these videos for
8 Mr. Jackson’s benefit, but an enthusiastic response
9 as well.
10 Now, there will be obviously some level of
11 questioning as to what’s enthusiastic within reason,
12 what’s enthusiastic outside of reason. We expect
13 that. But that’s part of the give and take of the
14 litigation process. We think that we can control,
15 with fair measure, how far afield we go in terms of
16 relationships between Schaffel and Ian Drew or any
17 of the other people who are involved in this case.
18 And at some point in time, some of these things
19 become too collateral. And the Court has been very
20 good at recognizing that and putting the kibosh on
21 it, and I expect that will happen in this case as
23 I think that I’ve mentioned in the pleading,
24 and it’s worth mentioning again, her participation
25 in this video was at the behest of Mr. Jackson
26 personally. Initially she was contacted by Mr.
27 Konitzer, one of the co-conspirators, but ultimately
28 it was Mr. Jackson who made the initial phone call 7358
1 and brought her into this.
Next, the admissibility of documents seized from Marc Schaffel’s office. The prosecution wanted to lay the foundation for that evidence by having the officers who seized that evidence testify about their search, and having Rudy Provencio testify about the specificity of those documents.
2 THE COURT: All right. I think we’ve argued
3 every issue except the problem with the foundation
4 of documents of Marc Schaffel, the ones seized from
5 his office. On those, it seems to me that we have
6 to sort of do admissibility on a case-by-case basis
7 as the documents come up as opposed to — some of
8 the offers are made without evidentiary — I mean,
9 they’re just that, they’re offers without true
10 evidentiary basis. I find it kind of hard just to
11 go through and make rulings on all of them in
13 MR. AUCHINCLOSS: Well, our primary
14 foundation will be laid with the officers who seized
15 those documents in Mr. Schaffel’s home. And as I
16 mentioned in our brief, I think that authentication
17 will be sufficient when the Court looks at each
18 document and considers where it was found.
19 As to putting on separate foundations for
20 each document, those foundations are going to be
21 primarily laid in terms of hearsay – certainly
22 secondary evidence is really not an issue here –
23 hearsay and relevance in light of the totality of
24 the circumstances of the case, which the Court has
25 before it. And most of those arguments will be —
26 will be handled in consideration of the evidence
27 that is presently before the Court as to how they
28 specifically are relevant. 7359
1 THE COURT: Well, my example would be
2 Exhibit 401, you say Rudy Provencio will verify the
4 MR. AUCHINCLOSS: Yes.
5 THE COURT: Those are the kind of items that
6 you say are going to happen.
7 MR. AUCHINCLOSS: And that’s fair.
8 THE COURT: We don’t know if they’re going to
10 MR. AUCHINCLOSS: But there really are only
11 a couple of witnesses left that will testify with
12 any specificity about these documents. Mr.
13 Provencio is one of them. So he’s certainly one
14 person who’s going to figure in on these
16 So if you’d like —
17 THE COURT: I understand the basic seizure
18 issue that you’re raising, but that’s not the — you
19 know, that just says they’re seized legally. Now
20 you have to prove the connection to the case.
21 MR. AUCHINCLOSS: Except for —
22 THE COURT: It seems to me that you’re going
23 to be able to do that, but I’m not going to rule in
24 advance based on your representation that that’s
25 going to happen, that they’re all admissible. It’s
26 like any other evidentiary issue. It’s not till I
27 hear the actual foundation and I hear the witness
28 that I make that ruling. 7360
1 MR. AUCHINCLOSS: Yes. Well, I guess I’m
2 just preparing the Court for the fact that we have
3 basically only — I mean, the first foundation —
4 first foundational step is the one which we —
5 THE COURT: The seizure.
6 MR. AUCHINCLOSS: — is the seizure. And
7 we’ll go from there and deal with it piecemeal, if
8 that’s the Court’s desires.
9 THE COURT: And that allows you to — unless
10 you want to address something separate from that.
Sanger argued that the evidence from Schaffel’s home was prejudicial and a waste of time because there was no guarantee that the court would approve their foundation, and that many of the files were shared by a number of people during the relevant time period. Interestingly, Rudy Provencio, the person that the prosecution was relying on to authenticate the seized documents, was a government informant who recoded dozens of conversations that meant absolutely nothing.
11 MR. SANGER: Let me just address a little
12 more of a generic concern that I have, because the
13 way we saw this, and given the fact that the Court’s
14 of course very familiar with this case by now, but
15 Your Honor has not had a chance to see everything
16 that we’ve seen. Okay?
17 So I just want to share with the Court, my
18 belief is that if the prosecution is allowed to
19 start going down this road in front of the jury,
20 that we’re going to have a lot of wasted time and
21 we’re going to have some potentially prejudicial
22 material get in front of the jury just to have the
23 Court say there’s no foundation. We understand that
24 this stuff was by and large seized — maybe all of
25 it in this segment 400 to 420, was seized by law
26 enforcement, in one form or another.
27 We’re now told that there was a disk of hard
28 copies as opposed to a disk of direct e-mails, but 7361
1 that was this morning. We’ll take a look at that.
2 But assuming for the moment that it was all seized
3 from Mr. Schaffel’s possessions somewhere, do we go
4 to the point where we start marking things? We have
5 somebody like Rudy Provencio giving a lot of
6 testimony about his alleged connections with Mr.
7 Schaffel, which would otherwise be irrelevant, only
8 to find out that — and I think it’s — it would be
9 a fairly — let’s take a fairly easy ruling.
10 There’s a Pendaflex file label that — as I
11 understand, it’s a Pendaflex file label that says
12 something like, “Fires Burning.” How in the world
13 could that be admissible unless — it’s not
14 admissible. I mean, it just doesn’t make any sense
15 that that would come in at all. That’s hearsay. We
16 don’t know who made the file label. The fact it’s
17 in Mr. Schaffel’s possession in an office that he
18 shared with a number of people, so what? It just
19 doesn’t come in. But are we going to have testimony
20 about that and spend a lot of time?
21 For the most part, and I think entirely
22 really, these exhibits are based on that kind of
23 speculation. It’s stuff found in Mr. Schaffel’s
24 files in an office which the government knows was
25 shared by a number of people during the relevant
26 time period. So there’s no way to authenticate it.
27 And Rudy Provencio is apparently the person they’re
28 going to rely on. He’s the person that volunteered 7362
1 to be an informant for the government, and
2 tape-recorded conversations ad nauseam with all
3 sorts of people that meant nothing, turned the tapes
4 over to government. And one little thing they want
5 to call him in here for is really speculation that
6 somehow these documents, which he’s not going to say
7 he saw before, are probably legitimate because they
8 came from Mr. Schaffel’s stuff.
9 And I think if the Court has a chance to see
10 that in the big picture, we save a lot of time by
11 resolving it now. If the government had one or two
12 or three things that they thought did not come
13 within that category, then maybe we should hear that
14 and we should focus on those. But I see this is
15 taking quite a bit of time for no apparent reason.
16 That’s why we tried to address it up front.
17 Thank you.
Auchincloss rebutted that Provencio’s recorded phone calls were relevant because they were necessary to prove the conspiracy, which is predicated on the communications between all of the co-conspirators:
18 MR. AUCHINCLOSS: Just one final remark.
19 This case, the conspiracy case, the evidence
20 of the conspiracy deals with words, just as in a
21 drug case, the evidence in a drug case is the drugs.
22 You find the drugs in the home of the individual,
23 those drugs come in as evidence of the crime.
24 In a conspiracy, we’re dealing with
25 communications between the parties, with the
26 knowledge that the individual parties have, the
27 relationships between the parties, the various
28 motives that may be pushing them forward through 7363
1 this conspiracy, and evidence of the criminal act
2 itself. So that’s where these documents come in.
3 And I don’t think it’s very genuine to say that we
4 don’t know whose documents these are. They’re Mr.
5 Schaffel’s documents, found in his personal files,
6 found with all his other files in his home, in his
7 filing cabinet, in his office, and in his locked
8 closet. So there’s no issue as to whose records
9 these are.
10 And we’ve gone through the records and taken
11 out the ones that are relevant to this case showing
12 the relationship between the parties, showing the
13 evidence of the conspiracy and the communications,
14 and the criminal acts themselves, the Arvizos,
15 specific involvement with the Arvizos. So that’s
16 the nature of the relevance and where we’re headed
17 with all this evidence.
Next, Judge Melville approved the prosecution’s motion to grant use immunity to Cynthia Montgomery, and her testimony was delayed so that the defense could have time to prepare for their cross examination (same thing with Hamid Mosehli).
18 THE COURT: The attorney is not back yet
19 on — that was looking for the Harris case? Does
20 anyone — I’d like someone to communicate with him
21 and have him come back in.
22 MR. SANGER: We could ask —
23 MR. SNEDDON: I’ll take that responsibility,
24 Your Honor.
25 MR. SANGER: We won’t fight over that. I
26 was going to offer. But that’s all right.
27 MR. SNEDDON: Mr. Nicola has gone to get
28 him, Your Honor. 7364
1 MR. MESEREAU: Excuse me, Your Honor.
2 THE COURT: Yes.
3 MR. MESEREAU: We have found the citation,
4 Your Honor, if the Court wants it.
5 THE COURT: Counsel?
6 MR. MOORE: Yes.
7 THE COURT: Did you find your case?
8 MR. MOORE: I did. If the Court would like
9 the citation, it is 401 U.S. 222. Would you like
10 the lawyer’s edition?
11 THE COURT: No, that’s fine.
12 MR. MOORE: Thank you.
13 THE COURT: What’s the —
14 MR. MOORE: What the case says — and I
15 apologize, a rather quick read, Your Honor — but
16 Ms. or Mr. Harris was not properly mirandized, and
17 ultimately the decision is that the nonmirandized
18 statements can’t be used to convict, but they can be
19 used to impeach. And I think that’s the holding in
20 the case.
21 THE COURT: Well, that’s the underlying case
22 that caused me to —
23 MR. MOORE: Yes, Your Honor.
24 THE COURT: — raise the issue.
25 But does the case go to the issue of
26 immunity or is that just the —
27 MR. MOORE: It talks about Miranda.
28 THE COURT: Okay. That’s — all right. 7365
1 Thank you.
2 MR. MOORE: Anything further, Your Honor?
3 THE COURT: No.
4 MR. MOORE: Thank you.
5 Does Your Honor want me to remain at counsel
6 table, or —
7 THE COURT: Just for a moment.
8 MR. MOORE: Thank you, Your Honor.
9 THE COURT: All right. The Court is going
10 to grant the People’s motion and grant the request
11 for use immunity as to Cynthia Montgomery.
12 I do not know if I have the original
13 document for signing of the use immunity that you
14 provided but….
15 Do you have that, Lorna?
16 THE CLERK: No, I don’t. Carrie has it.
17 MR. NICOLA: I believe Carrie has two
18 copies, Your Honor. We’d request two original
19 copies so that I may serve the United States
20 Attorney in Los Angeles with that, so they’re clear
21 on that issue.
22 THE COURT: Okay.
23 MR. NICOLA: I believe defense counsel also
24 wanted to delay her testimony. I didn’t hear the
25 Court address that issue.
26 THE COURT: I don’t think they did. They
27 wanted to delay —
28 MR. SANGER: Mr. Moslehi. 7366
1 THE COURT: — Mr. Moslehi’s testimony.
2 MR. MESEREAU: Also Miss Montgomery’s, Your
3 Honor. I didn’t know she was even an issue. I
4 didn’t come here today prepared to examine her. If
5 I could have a day —
6 THE COURT: They can’t hear you.
7 MR. MESEREAU: If I could have just a day,
8 Your Honor, I’d be prepared to do her tomorrow. I
9 just didn’t know it was even an issue.
10 THE COURT: They say they served you last
11 week. They served me. Why didn’t you —
12 MR. MESEREAU: I —
13 Did you get it?
14 MR. SANGER: We got it Friday at the end of
15 the day.
16 MR. MESEREAU: I was not notified of it.
17 MR. SANGER: I got it Friday at the end of
18 the day. That’s all I can say. And —
19 THE COURT: So what witnesses are you
20 prepared to go forward on?
21 MR. SNEDDON: We have Mr. Abdool here and
22 ready to testify. He will be the first witness,
23 Your Honor.
24 THE COURT: How long will that be?
25 MR. SNEDDON: I’m expecting direct
26 examination to be in the neighborhood of a half
27 hour, 40 minutes at the most.
28 After that, we intended to call Mr. Moslehi, 7367
1 and then we intended to call Cynthia Montgomery, and
2 then we intended to put on the officers with regard
3 to the search of the Schaffel residence and the
4 items that they took. And we felt that would take
5 the entire day and probably — if probably not more
6 than that, frankly, given we knew that the Court was
7 going to have to spend some time on rulings today.
8 But at this point, clearly we have one witness here
9 ready to go, and that’s Mr. Abdool. And then the
10 rest is contingent upon what — the position that
11 the Court takes on the defense request.
12 I should say we’re also ready to go forward
13 to get the officers here on the Schaffel search.
14 And we could do that during the time that Mr.
15 Abdool’s on the stand. We were going to put them
16 after the civilian witnesses, but we can get those
17 people here, Your Honor. So — and we would,
18 obviously, if you told us. So that would — those
19 are the options available to the Court.
20 THE COURT: All right. Well, I think I will
21 give the defense time that they have requested on
22 both the witnesses so that they can hear the tape
23 and prepare their examinations.
24 So I’ll have Cynthia Montgomery testify
25 tomorrow — I mean, I’ll put off her testimony one
26 day, and the same with the other witness that you
27 have the tape on.
28 MR. SNEDDON: Mr. Moslehi, Your Honor? 7368
1 THE COURT: Mr. Moslehi. I’ll put that off
2 until tomorrow to give the defense time to review
4 So we’ll go forward with Abdool and then the
5 officers today.
6 MR. SNEDDON: All right. We’ll get those
7 officers in here, and —
8 MR. MESEREAU: Thank you, Your Honor.
9 THE COURT: This is our — Counsel?
10 MR. MOORE: I was just going to inquire,
11 Your Honor. Ms. Montgomery is up from Los Angeles
12 and flew me up this morning. Can we get some sort
13 of a time indication as to tomorrow? Would it be
14 first off?
15 THE COURT: What would be most convenient for
16 you – since I’m putting it over till tomorrow – to
17 be first or later?
18 MS. MONTGOMERY: First thing tomorrow.
19 MR. MOORE: Most convenient would be to do
20 it today, Your Honor. But not having that as a
21 choice, first up tomorrow would be —
22 THE COURT: Can you accommodate him there?
23 MR. SNEDDON: I would say that’s okay. We
24 haven’t checked with the other civilian witness, but
25 we can do that.
26 THE COURT: Well, if you can’t, let him know.
27 MR. SNEDDON: I will. I will check at the
28 break. But as of right now, let’s just assume that 7369
1 that is correct. We’ll put her on first and
2 Mr. Moslehi second. Okay?
3 THE COURT: All right. This is the normal
4 time for our break. We’ll take our break, and then
5 we’ll expect to have the jury in at….
6 (Recess taken.)
After the early morning hearing concluded, Judge Melville approved the prosecution’s request to question Debbie Rowe (which would later prove to be a blunder on their part!)
1 (The following proceedings were held in
2 open court in the presence and hearing of the
5 THE COURT: Good morning.
6 THE JURY: (In unison) Good morning.
7 THE COURT: (To the jury) Sorry to keep you
8 all waiting back there, but we just had a lot of
9 legal issues to take up this morning, and because of
10 that, I’m not sure, but the day may be somewhat
12 Do you expect us to go the entire day today,
13 or —
14 MR. SNEDDON: I would think — I would think
15 that would be probably not the case. But you never
17 THE COURT: Okay. That’s what I thought.
18 You never know.
19 MR. SNEDDON: I’d hate to raise somebody’s
20 expectations and then have them looking at me at
21 2:15 saying, “Why are we still here?”
22 THE COURT: I understand.
23 (To the jury) Some of the witnesses that
24 were going to testify today I put off until
25 tomorrow, is basically what we’re dealing with. And
26 so they’re calling some witnesses that were going to
27 appear later in the day, and we’re not exactly sure
28 how much time it will take. 7377
1 MR. SNEDDON: I will say this, Your Honor.
2 I think we’re going to have a full week, though,
3 from here on out.
4 THE COURT: Full week?
5 MR. SNEDDON: Yes, sir.
6 THE COURT: All right. Let me just — so
7 that — before you start, let me just give you a
8 ruling on the motion on — I’ll call it the motion
9 regarding Rowe. That motion is granted. I will
10 admit testimony in that case. I will look for ways
11 to restrict the length of that testimony. We’ll
12 talk about that later.
13 MR. SNEDDON: All right. That would be
14 fine, Your Honor. Thank you.
15 THE COURT: All right. You may call your
16 next witness.
17 MR. SNEDDON: Kassim Abdool.
18 Mr. Abdool, would you come forward, please.
19 THE COURT: When you get to the witness
20 stand, please remain standing.
21 Face the clerk here and raise your right