April 29th, 2005 Trial Analysis: Rosibel Ferrufino Smith, Craig Bonner, Harry Koons, and Ian Drew, Part 1 of 3
Before the jury was seated, Judge Melville addressed the defense and prosecution about his ruling on the foundation of two art books (“The Boy: A Photographic Essay” and “Boys Will Be Boys”) that were seized at Neverland in August 1993. He stated that the prosecution must provide him with more information to establish a foundation that connects the location of where the books were seized in 1993 to the prosecution’s assertion that Jackson used the books to groom Star and Gavin Arvizo. Detective Rosibel Ferrufino Smith was called to testify about the location of the books.
On April 21st, 2005 Sneddon submitted the PLAINTIFF’S MOTION FOR RECONSIDERATION OF THE COURT’S RULINGREGARDING THE ADMISSIBLITY OF EVIDENCE OF TWO OF DEFENDANT’S ADULT BOOKS in which he argued that those two books should be admitted as incriminating evidence against Jackson due to the fact that, in his opinion, they “demonstrated a prurient interest in adolescent boys” who were the same age of Gavin, Jordan, Brett, Wade, and other young boys who Jackson befriended.
The defense replied on April 22nd, 2005 with MR. JACKSON’S OPPOSITION TO THE DISTRICT ATTORNEY’S MOTION FOR RECONSIDERATION OF THE COURT’S RULING REGARDING THE ADMISSIBLITY OF EVIDENCE OF “ADULT BOOKS”, stating that the two books have nothing to do with the current case, they were not shown to any children, and their introduction would be more prejudicial than probative.
Det. Smith participated in the August 1993 Neverland raid, and he seized the two art books from a file cabinet in Jackson’s bedroom closet. Zonen asked Det. Smith a few basic questions about the raid, and Sanger declined to cross examine him for the purpose of the hearing on the admissibility of the books, but did wax poetic about the irrelevancy of the books to the current case:
1 Santa Maria, California
2 Friday, April 29, 2005
3 8:30 a.m.
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. I understand that the
13 District Attorney has requested the out-of-presence
14 hearing on the foundation on the books.
15 MR. ZONEN: Yes, Your Honor.
16 THE COURT: What exhibit number is that?
17 MR. ZONEN: No. 841 and 842.
18 THE COURT: All right. I did review those
19 materials, as I had requested. I did get the
20 materials, and I looked at those books and indicated
21 that there must be further foundation.
22 Are you prepared to go forward with that?
23 MR. ZONEN: I am, Your Honor. Foundation
24 with regards to where seized, do you mean?
25 THE COURT: Yes. Connecting —
26 MR. ZONEN: Yes, we’re prepared to do that
27 at this time.
28 We’ll call Detective Rosibel Smith to the 8161
2 THE COURT: When you get to the witness
3 stand, remain standing and face the clerk.
5 ROSIBEL FERRUFINO SMITH
6 Having been sworn, testified as follows:
8 THE WITNESS: I do.
9 THE CLERK: Please be seated. State and
10 spell your name for the record.
11 THE WITNESS: Rosibel, R-o-s-i-b-e-l;
12 Ferrufino, F-e-r-r-u-f-i-n-o; Smith, S-m-i-t-h.
13 THE CLERK: Thank you.
15 DIRECT EXAMINATION
16 BY MR. ZONEN:
17 Q. Tell us your current occupation.
18 A. I’m a police detective for the Los Angeles
19 Police Department currently assigned to the Threat
20 Management Unit of the Detective Support Division.
21 Q. How long have you been a police officer for
22 the City of Los Angeles?
23 A. For a little over 20 years.
24 Q. And your current assignment involves what?
25 A. Aggravated stalking cases, criminal threats
26 of elected officials, and workplace violence
27 incidents within the City of Los Angeles.
28 Q. Did you work also as a sex crimes 8162
1 prosecutor — sex crimes detective?
2 A. Yes, I did.
3 Q. For what period of time?
4 A. For nine years.
5 Q. All right. Which period of nine years was
7 A. From 1988 to 1997.
8 Q. Did you have occasion to conduct and execute
9 search warrants during that time?
10 A. Yes, I did.
11 Q. In August of 1993, did you participate in
12 the execution of a search warrant at Neverland Ranch
13 in Los Olivos, the County of Santa Barbara?
14 A. Yes, I did.
15 Q. And did you seize objects from that
16 residence during that search?
17 A. Yes.
18 MR. ZONEN: May I approach the witness?
19 THE COURT: Yes.
20 Q. BY MR. ZONEN: I’m going to show you three
21 objects at this time. Exhibits No. 841 and 842;
22 would you take a look at those two objects, please?
23 A. Okay.
24 Q. Do you recognize those two books?
25 A. Yes, I do.
26 Q. Did you seize those two books?
27 A. Yes, I did.
28 Q. From where? 8163
1 A. These books were seized from a cabinet
2 within Michael Jackson’s closet in the master
4 Q. All right. Describe his bedroom for us,
6 A. The bedroom is a very large —
7 MR. SANGER: Your Honor, I think it would be
8 cumulative at this time, wouldn’t it?
9 THE COURT: Sustained.
10 Q. BY MR. ZONEN: All right. Tell us where in
11 his bedroom this particular closet is.
12 A. It was off to the side of the main bedroom.
13 There were — actually, there were two closets on
14 either side of the room, and this would have been
15 the side where the Jacuzzi was located.
16 Q. Now, this is the first floor of his bedroom
17 suite; is that right?
18 A. That’s correct.
19 Q. Was there a bed in that bedroom suite?
20 A. Yes.
21 Q. I’m going to show you Exhibit No. 856.
22 A. Okay.
23 Q. Do you recognize that photograph?
24 A. Yes, I do.
25 Q. And that photograph is what?
26 A. This is a photograph that was taken during
27 the search warrant of Neverland Ranch, and it
28 depicts the file cabinet that the books were seized 8164
2 Q. All right. And is that file cabinet
3 depicted in that photograph?
4 A. Yes, it is.
5 Q. How many drawers in that file cabinet?
6 A. Four.
7 Q. In which drawer were those two books seized,
8 from which drawer?
9 A. From the third drawer.
10 Q. Was that file cabinet locked?
11 A. Yes, it was.
12 Q. How were you able to unlock it?
13 A. We were able to get the key from — the maid
14 brought the key over to the home and we were able to
15 unlock it at that time.
16 Q. Do you remember which maid that was?
17 A. I believe it was Blanca Francia.
18 Q. Thank you. Is that photograph — does that
19 photograph accurately depict the subject matter
20 contained within it?
21 A. Yes, it does.
22 MR. ZONEN: Move to introduce 856 into
24 MR. SANGER: For the purposes of?
25 MR. ZONEN: For the purposes of this
27 MR. SANGER: For this hearing, I have no
28 objection. 8165
1 THE COURT: Then it’s admitted for the
2 purposes of the hearing.
3 MR. ZONEN: And I have no further questions
4 as to foundation for this witness.
5 THE COURT: Cross-examine?
6 MR. SANGER: May I approach the witness to
7 take a look at the exhibits, please?
8 THE COURT: Yes.
9 MR. SANGER: And I have no questions for the
10 purpose of this hearing.
11 THE COURT: All right.
12 MR. ZONEN: I would move to introduce into
13 evidence 841, 842 as well.
14 MR. SANGER: Well, and I suppose that’s the
15 purpose of the hearing, Your Honor. We had
16 previously objected, and — excuse me one second.
17 We still object on the grounds that this is
18 remote in time. We have books from — seized in
19 1993 with regard to events that allegedly occurred
20 in 2003, so the probative value of these books is
21 minimal at best, and it’s outweighed by the
22 confusion to the jury, prejudicial effect, and
23 everything else. There’s got to be some connection
24 in time. It’s just plain stale to bring in
25 something from that far back and try to use it by
26 way of not much more than innuendo at this time.
27 These books were not shown to anybody. There’s no
28 evidence they were shown to anybody. No evidence 8166
1 they were shown to minors. They were locked in a
Judge Melville referenced a murder case titled “People vs. Memro”, which the prosecution cited in their pleading. They stated that in that case, evidence was introduced which supported other 1108 evidence, and there were parallels between that case and the current Jackson case. The prosecution also stated that the two books were indicative of Jackson’s proclivity to view that type of material of his own sexual arousal. Once again, Sanger railed against the inclusion of the two books based on their total irrelevancy to the current case:
3 THE COURT: What about the Memro case,
4 People vs. Memro, cited by the prosecution? The
5 only relevance I see would be to the 1108 evidence
6 that was introduced as these books could be viewed
7 as supportive of the other 1108 evidence. That’s
8 what I think their purpose of introducing the books
10 MR. SANGER: Well, I think that is. I mean,
11 I can’t imagine what else it would be. That’s what
12 I’m saying. In other words, there’s no evidence
13 that these books, or any of the other books, the
14 actual books that were seized, many of which, or all
15 of which the Court has allowed from the 2003 time
16 period, there’s no evidence that they were shown to
17 any of the people in this case. Not shown to
18 minors. They weren’t used for any purpose. They’re
19 just shown — they’re — I’m sorry. They were
20 offered to show that Mr. Jackson had these materials
21 in his house. I think the Court’s now heard all the
22 testimony. I think it’s very minimal weight even
23 for the 2003 materials.
24 And so my concern is that while Memro might
25 talk about allowing this kind of evidence to show
26 that the — that the individual had this evidence in
27 his possession at the time of the offense, this
28 isn’t the time of the offense. This is ten years 8167
1 before. And it’s locked in a file cabinet. So not
2 only do you not have it being used for any untoward
3 purpose, but it’s simply possessed and it’s
4 possessed in a secure fashion, and it’s possessed
5 ten years before any events in this case.
6 It just seems to me that at some point the
7 Court has to draw the line. And the Court has, of
8 course, been drawing lines throughout this trial as
9 to what has the kind of probative value that should
10 come before the jury and what doesn’t.
11 And I think that, given the fact that the
12 only materials that there’s any evidence were shown
13 or seen by minors in this case are adult
14 heterosexual magazines that are lawful to possess by
15 adults, the fact that they have attempted to
16 introduce from a giant library of books any book
17 that might have a page or two or five or ten of
18 individuals who are not fully clothed is — I think
19 it’s just an effort to prejudice the jury. So —
20 THE COURT: But the Memro case isn’t about
21 showing the material to anybody. It’s about having
22 the material and allowing it to be introduced as
23 evidence that the defendant may have some proclivity
24 to the type of sexually explicit material that we’re
25 dealing with.
26 So it’s not a question — you know, one of
27 the issues in this case presently is about whether
28 he showed children that material. But another 8168
1 reason the material’s admissible is that it relates
2 to his state of mind. And that’s why they’re
3 offering it, according to their proffer.
4 MR. SANGER: Right. I understand that. And
5 maybe I’m not being clear. But what I’m saying is,
6 yes, there is no showing that it applies to the
7 other purpose. So therefore, it’s evidence to show
8 that it’s being offered to show that the person who
9 possessed it has an interest in these materials.
10 And if that’s all it is, then my position is that
11 because it’s ten years old, the probative value is
12 very, very weak.
13 THE COURT: If it’s offered to show that he
14 had that interest at the time of the 1108
15 allegations, that’s the probative value.
16 MR. SANGER: And —
17 THE COURT: And you say that’s —
18 MR. SANGER: And I’m saying that’s very,
19 very weak.
20 THE COURT: I just want to be sure we’re
21 seeing it the same way, and I think we are. Okay.
22 MR. SANGER: Yes. And I apologize for not
23 being more direct in answering the Court’s
25 But I guess what I’m saying, at some point
26 you have to draw the line there. In other words,
27 this case really isn’t about 1993. 1108 only allows
28 that to come in for really a limited purpose. 8169
1 THE COURT: True.
2 MR. SANGER: And now we are embellishing the
3 limited purpose that’s already pretty remote. And
4 as the Court acknowledged from the beginning, the
5 real question is whether or not this kind of
6 material is going to be so prejudicial when the jury
7 is considering the strength of the case that was
8 presented as to the charged events. And the
9 strength of the case presented as to the charged
10 events is, I submit, much weaker than it was led
11 to — the Court was led to believe at the time of
12 the 1108 ruling.
13 In other words, Your Honor had heard some of
14 the evidence, but you hadn’t heard all of the
15 evidence. You’ve heard more evidence and it’s
16 gotten worse for the prosecution. Their current
17 case is very weak. This is just an attempt to
18 further bolster that with what is remote. And I
19 understand the Court’s theory, and — the
20 prosecution’s theory, let’s put it that way, and the
21 Court’s acknowledgement of that theory. And that’s
22 my point; it is remote. It’s to bolster 1108. And
23 1108 is to bolster this case. It’s too far afield.
24 THE COURT: Okay. I understand your argument
26 MR. SANGER: Yes. Thank you, Your Honor.
27 THE COURT: Do you wish to respond, Mr.
28 Zonen? 8170
Zonen replied that the two books are relevant because they were seized during the same time that Jackson was allegedly molesting the 1108 “victims” (Macaulay Culkin, Jason Francia, Brett Barnes, Jordan Chandler, and Wade Robeson), and since they consisted of nude photos of young boys that made up 10% and 90% of the total photos included, respectively, was evidence of Jackson’s prurient interest in young boys.
Sanger quickly countered by asking Judge Melville to look at Jackson’s inscription on the inside cover of one of the books to get a sense of what his real motivations were for reading the book, and he noted that the other book was a gift sent to him by a fan, thus dispelling the myth that Jackson purchased it on his own volition (which could be construed as an “pattern” of buying such books for his own sexual gratification):
1 MR. ZONEN: If the Court would like, yes.
2 Just briefly, Your Honor, the books that
3 were seized in 1993 were seized at a time that was
4 contemporaneous with the evidence presented pursuant
5 to 1108. There were four young boys who were
6 involved in Michael Jackson’s life. It’s
7 interesting and unique that the maid who was called
8 to open up this file cabinet was, in fact, the
9 mother of one of those victims at that time.
10 Those books — one of the books — both of
11 the books are pictorial essays of adolescent boys.
12 One of them, about 10 percent of the photographs are
13 completely nude boys. And the other one, 90 percent
14 of the photographs are completely nude boys. The
15 possession of those books by Mr. Jackson, we
16 believe, is evidence of a prurient interest in
17 adolescent boys and it’s exactly contemporaneous
18 with the state of the evidence as to all of the 1108
19 witnesses. Therefore, we believe it adequately
20 corroborates within the meaning of People vs. Memro.
21 We’d ask that it be admitted.
22 THE COURT: All right. I want to think about
23 this issue a little further. I’m not ready to make
24 a decision on that.
25 MR. SANGER: Your Honor, could I — I know
26 we go back and forth, and I can’t really tell who
27 started and if I get a brief rebuttal. But could I
28 be permitted to make one remark? 8171
1 THE COURT: Yes.
2 MR. SANGER: Thank you.
3 When the Court looks at the evidence, I’d
4 ask the Court to look at the inscription in the
5 inside of the first book, which is “Boys Will Be
6 Boys.” And I don’t know —
7 THE COURT: Do you want to get the book for
8 me and I’ll look at it?
9 MR. SANGER: Yes. I take it I may approach.
10 THE COURT: You may, yes. You may retrieve
11 the exhibits. Bring both of them. You might as
12 well bring both of them.
13 Officer, I think I let you sit there a
14 little longer because I wasn’t sure that someone
15 might want to ask you another question. But I don’t
16 think that’s necessary, so you may step down.
17 THE WITNESS: Thank you, sir.
18 MR. ZONEN: Your Honor, if we’re going to —
19 if the debate is going to go beyond the location of
20 where the books are seized —
21 THE COURT: Cross-examination is over. The
22 argument’s not there in that area.
23 Am I missing something?
24 MR. ZONEN: No. My understanding was the
25 debate was over the location of the books.
26 THE COURT: No, no. The debate — I said I
27 wanted further foundation. I wanted to look at the
28 books, and I wanted foundation. There was no 8172
1 debate. That was my request.
2 MR. ZONEN: That’s fine.
3 THE COURT: Now I have what I want. I still
4 have to make a decision.
5 MR. ZONEN: That’s fine. That’s fine.
6 THE COURT: Now, what was your reference?
7 MR. SANGER: I don’t know which number is
8 which, but the one that’s entitled “Boys Will Be
10 THE COURT: Yes.
11 MR. SANGER: Which I think is 841, but I’m
12 not positive.
13 THE COURT: It’s 841.
14 MR. SANGER: Okay. On 841, if you look at
15 that, it appears to be Mr. Jackson’s own
16 inscription, and he says, “Look at the true spirit
17 of happiness and joy in these boys’ faces. This is
18 the spirit of boyhood, a life I never had and will
19 always dream of. This is the life I want for my
20 children. M.J.”
21 The other book, which would be 842, appears
22 to be inscribed by a female fan, and it appears to
23 have been sent to Mr. Jackson by a fan of some sort.
24 That’s the interpretation I take from that
26 THE COURT: Well, there is an inscription,
27 “To Michael. From your fan.”
28 MR. SANGER: Yes. 8173
1 THE COURT: “Love” — “XXXOOO” – I was going
2 to interpret that, but I won’t – “Rhonda.”
3 I know what I mean when I put “XXXOOO.”
4 MR. SANGER: And I have noted Your Honor has
5 never put that on any of your rulings in this case.
7 THE COURT: I can’t top that.
8 All right. Then that hearing — at this
9 point, I’m going to take that under submission, and
10 we’ll rule on that before the People rest.
11 And if you’re about to rest and I haven’t
12 ruled it, tell me. Remind me.
13 MR. ZONEN: Did you mean rest the case or
14 rest today?
15 THE COURT: Rest the case.
16 MR. ZONEN: All right. The witnesses are
17 here today. Are they not going to be testifying
18 today? If they are not, I will go ahead and excuse
20 THE COURT: They can’t hear you.
21 MR. ZONEN: I’m sorry.
22 THE COURT: What witnesses?
23 MR. ZONEN: The witness who seized the book
24 presumably would be testifying as to where and what
25 she seized in the course of the trial before the
27 THE COURT: Oh, I see. You need it for that
28 purpose? 8174
1 MR. ZONEN: Yeah. If we’re not going to do
2 that today, I’ll go ahead and excuse her and have
3 her come back.
4 THE COURT: No, we can do that today.
5 MR. ZONEN: We could put her to the end of
6 the witness list.
7 THE COURT: We could put her to the end of
8 the morning.
Next, the attorney of prosecution witness and journalist Ian Drew (who interviewed Debbie Rowe during the “Take Two: The Footage You Were Never Meant To See” rebuttal documentary) addressed Judge Melville and asked that whichever areas of testimony the defense is barred from cross-examining, that the prosecution also be barred from direct examining. Also, Drew intended to assert his rights under the Journalist Shield Law, which would allow him to not disclose his sources.
Drew was secretly recorded by Debbie Rowe at the request of the prosecution, and spoke about Marc Schaffel during his interview with sheriffs. Mesereau argued that the defense should be able to cross examine Drew about his financial motivations for participating in the documentary and working with Schaffel, and allowing Drew to assert his rights under the Journalist Shield Law would be inappropriate and prejudicial to the defense.
9 MR. ZONEN: Your Honor, there was one other
10 matter, a motion that was filed by an attorney who
11 represents one of the witnesses to be called today.
12 Did the Court want to address that at this time?
13 THE COURT: Yes. That’s the Drew witness?
14 MR. ZONEN: Yes, Your Honor.
15 THE COURT: Is that witness present?
16 MR. ZONEN: The witness is present, out of
17 the courtroom, and counsel is present before you.
18 MS. SAGER: Good morning, Your Honor. Kelli
19 Sager on behalf of Ian Drew, a nonparty reporter.
20 THE COURT: Good morning.
21 MS. SAGER: We had filed a short memorandum
22 with the Court concerning Mr. Drew’s testimony
23 largely to give the Court some guidance and
24 background, which I understand has already come up
25 once in this case, as to the scope of the reporter’s
26 privilege under the California Constitution and the
27 First Amendment and the common law.
28 Mr. Drew is being called by the prosecution, 8175
1 as I understand it from Mr. Zonen, to repeat
2 information that has been published by him in a
3 television broadcast. And I assume that Mr. Zonen
4 still intends to limit his questioning to the
5 published material. It nonetheless raises an issue
6 as to cross-examination. And in the Foss case,
7 which we cited in our papers, if it appears that the
8 defendant’s cross-examination would intrude into
9 privileged areas, then it’s advised that the Court
10 address that at the outset, because it may be that
11 if the defendant is not going to be permitted to
12 cross-examine into those areas, that the original
13 testimony should not be permitted either.
14 In either case, I just wanted to make sure
15 the Court was apprised that the witness does intend
16 to assert his rights as to unpublished information
17 or confidential source information and to ask the
18 Court’s permission to be making objections on his
20 THE COURT: Well, you have my permission to
21 do that.
22 MS. SAGER: Thank you.
23 THE COURT: You know, I thought your points
24 and authorities were well done and complete.
25 One of the things that you mentioned in your
26 points and authorities was that there’s a preference
27 to have a hearing outside the presence of the jury
28 before the testimony is proffered to the jury so the 8176
1 Court can determine whether or not the evidence
2 should be allowed.
3 MS. SAGER: That’s correct, Your Honor.
4 THE COURT: Based on the right of the defense
5 to cross-examine.
6 Mr. Mesereau, you wish to say —
7 MR. MESEREAU: Yes, please, Your Honor.
8 Your Honor, as the Court knows, the
9 witness’s name came up during the testimony of —
10 THE COURT: Just a moment.
11 Would someone create a seat there so she
12 doesn’t have to stand.
13 MS. SAGER: Thank you. Thank you, Your
15 MR. MESEREAU: This witness’s name came up
16 during the testimony yesterday of Debbie Rowe.
17 THE COURT: Right.
18 MR. MESEREAU: And she did testify, among
19 other things, that he had actually interviewed her
20 at Schaffel’s house during the subject interview
21 that was talked about yesterday.
22 This witness was secretly recorded on a
23 number of occasions by Debbie Rowe at the behest of
24 the sheriffs and he also gave a police interview
25 where he talked extensively about various aspects of
26 the case, including Mr. Schaffel and others.
27 Clearly, he had a career motive in doing this.
28 Clearly, there were financial considerations 8177
1 involved, considerations involving advancing his
2 career, and clearly he wanted to be involved in this
3 case. If you look at the secretly recorded
4 conversations, you can gather a lot of his motives
5 to do what he’s doing.
6 And to permit him to testify as a
7 prosecution witness and not allow the defense to go
8 into those types of incentives to do various things,
9 say various things, appear in various places, would
10 be highly prejudicial to the defense. So allowing
11 him to just hide behind a journalistic privilege
12 every time his motives and veracity are impeached or
13 contradicted or questioned would be prejudicial to
15 He put himself right in the middle of this
16 investigation intentionally, willingly, and
17 knowingly. Met with Mr. Klapakis for an interview,
18 talked about his knowledge of various individuals
19 and various occurrences in the case as he understood
20 them. Was recorded on a number of occasions by the
21 sheriffs because they thought he had information of
22 significance, conducted the interview. How can they
23 possibly, if he gets caught in a problem, say
24 journalistic privilege? I think that would be
25 highly inappropriate and very prejudicial to the
27 Thank you, Your Honor.
Sager countered that she didn’t think that any of Rowe’s recorded phone calls of Drew should be admissible because he didn’t give his consent, and Zonen clarified that only he only wanted to question Drew about his knowledge of statements that Schaffel said regarding the unavailability of the Arvizos to participate in the Take Two documentary because they had “escaped” from Neverland. Afterwards, Det. Craig Bonner was recalled to the stand:
28 MS. SAGER: Your Honor, if I could just 8178
1 briefly respond to Mr. Mesereau’s comments.
2 Under Penal Code Section 632, I believe any
3 recordings of Mr. Drew that were done without his
4 knowledge would not be admissible for any purpose.
5 As a reporter, he’s engaged in conversations with a
6 great number of people, including Miss Rowe, as she
7 testified to, in the course and scope of his duties
8 as a reporter. The fact that those conversations
9 may have been secretly recorded without his
10 permission, without his knowledge, cannot waive any
11 privilege that he has as a journalist as to
12 information he’s attempting to gather.
13 He’s reported on Mr. Jackson. He did an
14 interview with Miss Rowe, which everyone has a tape
15 of. And as I understand it, the issue about that
16 interview has already been discussed, there have
17 been other witnesses who have testified, and the
18 tape of the entire interview is available. So
19 there’s nothing Mr. Drew can add to that equation.
20 As to his — what Mr. Mesereau described as
21 an interview with detectives, when detectives showed
22 up, as I understand it, at Mr. Drew’s office to
23 subpoena him, he was asked about statements that he
24 had made on television, and again referred to those
25 statements that he had already made on television,
26 the published statements.
27 He didn’t have an attorney. He didn’t have
28 anyone advising him of his rights at that point, and 8179
1 again, I don’t think that could be viewed as a
2 knowing waiver of his rights. Nor is that a
3 publication within the meaning of Article I,
4 Section 2(b) of the California Constitution. He was
5 not disseminating information to the public in any
6 conversation he had with the detective who was
7 serving him with a subpoena.
8 As I understand it, there’s one statement
9 that the prosecution intends to ask Mr. Drew about,
10 and that was in this particular television broadcast
11 concerning a conversation that he had with one of
12 Mr. Jackson’s — I don’t know how you would describe
13 him, someone that Mr. Jackson knew. That person is
14 certainly a witness who could testify as to that.
15 As I understand, it’s about whether the
16 family at issue left the ranch at some point in the
17 middle of the night. I don’t believe that’s
18 disputed. So it’s difficult for me to see what Mr.
19 Drew can add to these proceedings in any case, and
20 certainly nothing that would justify invading his
21 privilege by opening him up to questions about
22 conversations he had during the course and scope of
23 his news-gathering activities.
24 THE COURT: Mr. Zonen?
25 MR. ZONEN: Your Honor, we intend to limit
26 our inquiry to information that was disclosed by Mr.
27 Drew on national television. It’s published
28 information, therefore it’s not protected by the 8180
1 shield law.
2 THE COURT: Well, but that’s not the issue,
3 is it? I mean, that —
4 MR. ZONEN: That’s one issue. The next
5 issue is the question of whether or not
6 cross-examination —
7 THE COURT: Right.
8 MR. ZONEN: — is important for impeachment.
9 We believe that the information that we are
10 going to be asking him is about a statement made by
11 another person, one of the unindicted
12 co-conspirators, to the effect that the Arvizo
13 family had fled from Neverland, and therefore Mr.
14 Drew would not be able to conduct an interview that
15 he expected to do.
16 I don’t know that the content of that
17 information requires an extensive cross-examination
18 into collateral areas. I think it can be adequately
19 cross-examined as to that statement alone without
20 going too far beyond the published information.
21 THE COURT: Well, I think what we’ll do is
22 you can call your witness, you can ask him the
23 questions, and then I’ll understand what you’re
24 going to ask him in front of the jury and what his
25 answers are going to be —
26 MR. ZONEN: Okay.
27 THE COURT: — and then we’ll see what —
28 MR. ZONEN: Shall we do that at this time? 8181
1 THE COURT: — what Mr. Mesereau wants to do.
2 Yesterday he filed a motion to prevent
3 someone from testifying and later withdrew it,
5 MR. ZONEN: He might wish to do that today.
6 THE COURT: I don’t know.
7 Call your witness.
8 MR. ZONEN: Did you wish to do that outside
9 the presence of the jury at this time?
10 THE COURT: Absolutely. That’s the point.
11 MR. ZONEN: Yes. We’re prepared to do that.
12 Would you call Mr. Drew down, please.
13 MS. SAGER: As I believe the District
14 Attorney knows, Mr. Drew is not in the courthouse.
15 He was told to be here at ten o’clock.
16 THE COURT: Oh, okay.
17 MS. SAGER: I was asked by Mr. Zonen’s
18 office last night to show up early in case the Court
19 wanted to hear argument on that.
20 THE COURT: That’s not a problem. We can do
21 the hearing later.
22 MS. SAGER: Okay. I will go outside,
23 though, and call him, Your Honor, and tell him to
24 come directly to the courthouse, and he’ll be
25 available whenever the Court can then hear him.
26 THE COURT: If he’s going to be here at
27 10:00, that’s fine.
28 MR. ZONEN: I don’t know that our other 8182
1 witness will necessarily go to ten o’clock. If
2 we’re not going to be dealing with —
3 THE COURT: I thought you were going to try
4 to get other witnesses for me.
5 MR. ZONEN: We are not able to do that. The
6 witnesses we had I think were the ones that we
7 identified yesterday.
8 THE COURT: But I was told you would attempt
9 to get other witnesses to fill the day. Because I
10 didn’t give you permission for a short day today, or
11 no day.
12 MR. ZONEN: I apologize to the Court. We
13 are not able to do that.
14 THE COURT: Go ahead and call your client,
16 MS. SAGER: I’ll do that. Thank you, Your
18 MR. ZONEN: We have a witness who’s ready to
19 proceed at this time.
20 THE COURT: All right. You can bring in the
Det. Bonner was recalled in order to confirm a tape recording of a conversation between Frank Cascio and Janet Argizo that was seized from Brad Miller’s office. Under cross examination, Bonner was questioned about the type of cassette that was used to record the conversation ( a magnetic tape), and the company that analyzed the tape for the sheriff’s department.
13 DIRECT EXAMINATION
14 BY MR. ZONEN:
15 Q. Detective, good morning.
16 A. Good morning.
17 Q. You’ve already testified previously, I
18 believe, on a couple of occasions already.
19 Detective, you’ve already testified
20 previously on a couple occasions. There’s an
21 exhibit that’s in front of you. Could you take that
22 exhibit, please? And is that Exhibit 827?
23 A. Yes, it is.
24 Q. And does that correspond to the Sheriff’s
25 No. 817?
26 A. Yes, it does.
27 Q. Do you recognize that exhibit?
28 A. Yes, I do. 8184
1 Q. What is that exhibit?
2 A. It is an audio cassette tape which contains
3 a recording of Janet Arvizo and Frank Tyson, or
5 Q. This is a telephone conversation; is that
7 A. It appears to be, yes.
8 Q. Was that tape-recording delivered to a lab
9 in Los Angeles County?
10 A. Yes, it was.
11 Q. And what lab was that?
12 A. The Aerospace Corporation and/or the
13 National Law Enforcement and Corrections Technology
15 Q. The purpose for delivering that tape to that
16 lab was what?
17 A. To have them analyze it, and to determine if
18 there were any breaks or stops that occurred within
19 that recording.
20 Q. Who was it who delivered that tape to the
22 A. I did.
23 MR. ZONEN: Thank you. No further
27 BY MR. SANGER:
28 Q. Good morning. 8185
1 A. Good morning.
2 Q. The National Law Enforcement Technology
3 and — whatever it was —
4 A. Corrections and Technology.
5 Q. Corrections and Technology. This is
6 actually a private company, is that right?
7 A. It is.
8 Q. And they market their services to law
9 enforcement; is that correct?
10 A. I believe they have a grant through the
11 government that they get paid to assist law
13 Q. Okay. It’s a private company, but they
14 market their services to law enforcement?
15 MR. ZONEN: Objection; asked and answered.
16 MR. SANGER: Asked, but not answered.
17 THE COURT: Overruled.
18 MR. SANGER: Thank you.
19 THE WITNESS: I don’t believe they market
20 their services, no.
21 Q. BY MR. SANGER: They let you know that they
22 exist and they’re available to do work; is that
24 A. That’s correct, yes.
25 Q. They get paid by doing the work?
26 A. Not by us, no.
27 Q. They get paid by this grant?
28 A. I believe so, correct. 8186
1 Q. That’s your understanding? All right.
2 Now, did you seize this particular item that
3 you took down?
4 A. No, I did not.
5 Q. So you took it out of the evidence locker?
6 A. Correct.
7 Q. At the sheriff’s department?
8 A. Correct.
9 Q. And you delivered it down to the — to the
10 lab; is that right?
11 A. Yes.
12 Q. And then you stayed for a while while some
13 work was done; is that correct?
14 A. That is correct.
15 Q. Not all the work was done while you were
17 A. No.
18 Q. You left it?
19 A. Left the item?
20 Q. Yes.
21 A. No.
22 Q. What did you do?
23 A. I remained with this item until they had
24 brought it into their system, and then I retained
25 this item and brought it back to the sheriff’s
27 Q. All right. So they made a copy to do the
28 rest of their work? 8187
1 A. They brought it in digitally. I’m not real
2 savvy on it, but basically they played it into their
3 system, which brought it into a computer, and then
4 they utilized that material that was saved onto the
6 Q. Okay. In other words, that is an audiotape.
7 That’s a regular cassette, little reel-to-reel
9 A. Correct.
10 Q. Magnetic tape, correct?
11 A. Correct.
12 Q. And while you were there, they did some
13 analysis of the actual tape?
14 A. Correct.
15 Q. And then while you were there, they copied
16 it into digital format of some sort?
17 A. Correct.
18 Q. And then you took the actual tape and you
19 brought it back?
20 A. Yes.
21 Q. All right. Now, what is your understanding
22 as to the source of the original tape?
23 A. This tape came from the office of Brad
25 Q. Okay. In other words, as one of the
26 detectives working on the case, you are familiar
27 with the source of various items of evidence; is
28 that right? 8188
1 A. Yes.
2 Q. And that was something that was seized
3 during the search warrant execution at Brad Miller’s
4 office, correct?
5 A. That is correct.
6 Q. In other words, it was not offered to law
7 enforcement as a piece of evidence that was helpful
8 to Mr. Miller or helpful to Mr. Jackson, or helpful
9 to anybody; is that correct?
10 MR. ZONEN: I’m going to object as beyond
11 the scope of the direct examination and beyond the
12 scope of his personal knowledge. And relevance.
13 THE COURT: Sustained.
14 Q. BY MR. SANGER: Okay. It was something that
15 was — that was simply seized during a surprise
16 search, right?
17 MR. ZONEN: Objection. Irrelevant; beyond
18 the scope of his knowledge.
19 MR. SANGER: Well, that’s the question.
20 THE COURT: Sustained. Argumentative.
21 MR. SANGER: All right. It’s still my last
22 question. No further questions.
23 MR. ZONEN: No further questions.
24 I will call Dr. Harry Koons to the stand.
25 THE COURT: You may step down.
26 Remain standing, raise your right hand, and
27 face the clerk here.
28 // 8189
The next prosecution witness was Dr. Harry Koons, a scientist at the Aerospace Corporation and the National Law Enforcement and Corrections Technology Center, the latter of which is used by local law enforcement agencies to assist them in their criminal investigations. This company assisted the Santa Barbara Sheriff’s Department by performing forensic analysis of the audiotapes that were confiscated during the raid of Brad Miller’s office. Here is Dr. Koons’ description of his job duties:
13 DIRECT EXAMINATION
14 BY MR. ZONEN:
15 Q. Dr. Koons, good morning.
16 A. Good morning.
17 Q. What is your current occupation?
18 A. I’m a scientist.
19 Q. You’re a scientist in what capacity?
20 A. I’m a scientist at The Aerospace Corporation
21 in El Segundo, California. It’s the Space Science
22 Applications Laboratory. And our company is a —
23 well, it hosts an FFRDC, which is a federally funded
24 research and development center, which primarily
25 assists the Air Force and national security agencies
26 in their space programs.
27 Q. All right. Do you also have a second
28 company titled “The National Law Enforcement and 8190
1 Corrections Technology Center”?
2 A. Yes. That’s also hosted by The Aerospace
3 Corporation and it’s funded by the National
4 Institute of Justice.
5 Q. Let’s start with the first one, The
6 Aerospace Corporation. What is your position there
7 with The Aerospace Corporation?
8 A. I’m a distinguished scientist.
9 Q. What kind of work do you do with the
10 Aerospace Corporation?
11 A. On the Air Force side, I have flown
12 instruments on spacecraft to make measurements in
13 the magnetosphere of what we call plasma waves, and
14 I’m also an expert on the space hazards to
16 Q. All right. I think the other microphone is
17 on as well.
18 A. Shall I just talk in the middle?
19 Q. You need to be close to one or the other,
20 but whichever is more comfortable.
21 A. Either one is okay.
22 Q. All right. What is your education, your
23 qualifications, please?
24 A. I have a bachelor’s of science in physics
25 from the Massachusetts Institute of Technology, and
26 a Ph.D. in geophysics also from the Massachusetts
27 Institute of Technology.
28 Q. How long have you worked with The Aerospace 8191
2 A. I joined them right out of graduate school
3 in 1968.
4 Q. Give us a sense of what type of work you do
5 for Aerospace Corporation. How do you spend your
7 A. I have a million hats. I spend most of my
8 time either — working on scientific papers. I
9 spend 20 percent of my time on the forensics audio.
10 I spend about 40 percent of my time working with the
11 program offices on trying to help them with their
12 problems on their space programs. There’s almost no
13 way I spend a given day.
14 Q. Now let’s turn to the National Law
15 Enforcement and Corrections Technology Center. Tell
16 us what that is and how that happens to be
17 associated with The Aerospace Corporation.
18 A. It began in 1995. There was a — an
19 initiative by the National Institute of Justice to
20 find a way of helping local law enforcement agencies
21 in their work. They recognized that a lot of
22 agencies didn’t have a lot of funding for detailed
23 forensics work, and so they issued a proposal for
24 organizations with more capabilities to help them.
25 And so Aerospace responded with a proposal, and out
26 of that was formed the National Law Enforcement and
27 Corrections Technology Center at Aerospace.
28 Q. And what kind of work do you do with the 8192
1 National Law Enforcement and Corrections Technology
3 A. I personally am responsible for the audio
4 forensics work.
5 Q. Is there other forms — are there other
6 forms of forensic work that are done by that center
7 as well?
8 A. Yes. Video forensics and also crime scene
9 analysis. We have a large capability in our support
10 for the Air Force, electron microscopes and very
11 sensitive equipment that can be used to analyze
12 materials. And so it’s essentially a matrix
13 organization that if the Law Enforcement Center
14 needs something in the laboratories, they go to the
15 person in the laboratories. The video and the audio
16 efforts have been more or less continuous since its
18 Q. All right. What is it that you do with
19 regard to audiotapes?
20 A. Primarily what we do is we enhance the audio
21 to allow for a transcription. Most people would
22 call this clarifying the audio.
23 We also, from time to time, are asked to
24 look at the tapes for special reasons. Some of
25 them, for example, are to identify the number of
26 gunshot wounds — or not “wounds.” Gunshots that
27 were fired at a scene that was recorded. At other
28 times to try to identify the number of people that 8193
1 were present during the recording. We’ve been asked
2 to try to determine where a recording was made based
3 upon background sounds that were heard on the tape.
4 Q. All right. Are you able to make
5 determinations as to whether a tape is a
6 first-generation or second-generation tape? Is that
7 something that can be done?
8 A. We can — we can do that, in some cases, by
9 looking at the content of the — of the tape, yes.
10 Q. Are you able to determine whether there are
11 breaks in a tape?
12 A. Yes. Normally we can determine if there are
13 breaks in the audio in the tape.
14 Q. Are you able to determine, on occasion,
15 whether a tape is a compilation of prior other
16 multiple tapes?
17 A. Normally we can do that, yes.
18 Q. How do you do those things?
19 A. Each one is done in a different way. Let’s
20 start at the back and work forward.
21 If you have a compilation of a multiple of
22 tapes, you’ll have different background audio on the
23 different segments. And, for instance, if one
24 segment, at the extreme, if it was made in a
25 restaurant, and another section was made out on a
26 street with passing cars, and another section was
27 made in a home with a television on, that you can
28 look at the backgrounds of each of these tapes and 8194
1 identify the background in the ways that you see,
2 and you can see where these different sections are
3 on the tape.
4 You ask — what was the second one?
5 Q. The second one was breaks in a tape.
6 A. Breaks. Okay. For breaks in a tape, you
7 again look at the background, and when you have a —
8 a discontinuity, or a break in the tape, you’ll
9 normally have — the tape will start and stop, start
10 up again, stop, start up again, and you can see
11 signatures of this on the waveforms on the tape.
12 You will also find lines in the background.
13 By “line,” I mean a constant frequency. For
14 instance, one line which appears on many tapes is a
15 power line at 60 hertz, and if that power line is
16 discontinuous you could say that the tape was
17 started and stopped when the power line disappears
18 and reappears.
19 Q. I think the first question that was asked to
20 you was multiple generations of tapes.
21 A. Yeah, multiple generation is more difficult.
22 Normally, with the capabilities we have, when a tape
23 is started and played, and stopped and started
24 again, that — there’s an erase head on the
25 tape-recorder, and the erase head erases the
26 material that was on the tape prior to that.
27 Now, some laboratories have the capability
28 of going in and examining the material of the tape 8195
1 itself, and they may be able to identify if the tape
2 was started and stopped. We can only look at the
3 content of the tape. And normally what we would do
4 when we’re asked a question like that is we would
5 look at the beginning of the tape and we would look
6 at the end of the tape and see if there’s material
7 which is not contiguous with the material in the
8 middle of the tape, and also look at the end of the
9 tape to see whether, if the present material that
10 was recorded, let’s say, is recorded on only one
11 half of the tape. And then if the tape was
12 previously used there would still be material on the
13 second half of the tape, unless somebody recorded —
14 erased it all the way to the end.
15 Q. Doctor, when did you begin doing forensic
16 analysis of audiotapes?
17 A. 1995.
18 Q. How many do you think you have done since
19 that time?
20 A. About 200 cases, give or take 10 or 20.
21 Q. Have you ever had occasion to testify in
22 court as to your analysis of those tapes?
23 A. No, I haven’t. I’ve been subpoenaed twice
24 before and I have not testified in court.
25 Q. This is your first occasion?
26 A. Yes.
27 Q. I hope you’re comfortable this morning.
28 A. I’m fine. 8196
Next, Dr. Koons described in detail the work he did for the sheriff’s department in this case; beginning on June 1st, 2004 his company began digitizing the audio capes in an effort to ascertain if there were any breaks in the audio of the original tapes. The quality of the original tapes was not compromised by the digitization process. 34 audio gaps were found in the 22 minutes of audio that were recorded on the 30 minute tape.
1 Q. Doctor, did you have an occasion to analyze
2 a tape that was presented to you by Detective Craig
3 Bonner from the Santa Barbara County Sheriff’s
5 A. Yes, sir.
6 Q. Could you tell us approximately when that
8 A. They brought the tape to us on June 1st of
9 last year. And according to our logbook, which I
10 may want to refer to later — but according to our
11 logbook, they stayed with us while we digitized the
12 tape. Digitizing means taking a copy of the audio
13 from the tape and putting it onto a computer. That
14 was done by a technician and I was standing there
15 while he did that. And then we gave the tape back
16 to Craig Bonner. We went up to my office and we
17 looked at it for a period of time. I don’t remember
18 how long it was. There was another gentleman with
19 him, I believe, and then they left. And about a
20 month later, I went through and did a detailed
21 analysis of the tape and wrote a letter, which I
22 sent to him at the time.
23 Q. All right. The work that you do is off the
24 digital copy of that tape, then; is that correct?
25 A. That’s correct.
26 Q. And the process of making a digital copy of
27 a tape, does that in any way transform the original
28 tape? 8197
1 A. No.
2 Q. It wouldn’t affect the integrity of the
3 content of that tape?
4 A. No. There would be no effect on the tape at
6 Q. What was your assignment in this case as to
7 the digital copy of that tape? What was your
9 A. Our assignment was to determine if there
10 were any breaks in the audio.
11 Q. Just for purposes of clarity to make sure
12 that we’re on the same topic, did you have an
13 opportunity to actually listen to the tape as well?
14 A. Yes, partly. We were listening to the tape,
15 but partly we were looking at pictures of the image
16 of the audio on the screen. I have listened to
17 about 90 percent of the tape.
18 Q. Is this a tape of what appears to be a
19 telephone conversation between two people,
20 predominantly two people?
21 A. Okay. Two people.
22 Q. An adult woman and an adult man and a child?
23 A. And a child, yes. Three people.
24 Q. Predominantly the adult woman and the adult
25 child — the adult man?
26 A. That’s right.
27 Q. All right. Doctor, what did you do with
28 this tape? The copy, that is. What were you 8198
1 seeking to do and what did you do?
2 A. Well, the primary thing we were asked to do
3 was to determine if there were any breaks in the
4 audio. And the first thing that I did was I — I
5 put an image of the audio on the screen and just
6 looked at the entire tape at one time. And my
7 impression was that it was relatively continuous.
8 And — because the background appeared to be about
9 the same level from the beginning of the tape to the
10 end. There’s 22 minutes of audio on the tape. It’s
11 a 30-minute tape.
12 And then I went in and I started at the
13 beginning and I looked at the segments which were
14 one minute long. And the first thing I noticed was
15 that, I think it was 13 seconds or so into the tape,
16 there appeared to be a discontinuity. And so I blew
17 that up and I took a look at it, and there was, in
18 fact, a gap at that time period.
19 And so having seen one, then I sort of had
20 some idea what I should look for if there were
21 others like that one. And so I moved along through
22 the tape, and I identified a number of these —
23 these gaps. The gaps are very short on the tape.
24 They’re about two seconds each.
25 Q. All right. Tell us what you were able to
26 determine with regards to gaps in the tape.
27 A. We found 34 gaps. And they had a
28 characteristic signature. And the signature was 8199
1 very close to the same as when the tape was first
2 started. And by this I mean that if you start an
3 audiotape, there are wheels that take up reel on the
4 feed reel that have to turn, and it takes a little
5 while to get those to turn, “a little while” being a
6 second or so. And during that time period when the
7 amplifier is trying to put a voltage onto that tape,
8 it makes a little signature that looks a little bit
9 like this, and it’s a couple tenths of a second
11 And if you look at the beginning of the
12 tape, you get that signature very clearly the first
13 time it’s turned on. There was no audio in front of
14 it and you see that signature.
15 And what I found, then, was a very similar
16 circumstance, not identical each time. But each
17 time there was a gap, there was a signature that
18 looked just like that one at the beginning.
19 Q. What would cause a gap in a tape?
20 A. Can I refer to my notes on this?
21 Q. Yes. Please, go ahead.
22 A. At the time I was analyzing it, I made a
23 note of what I thought might be causing these. And
24 instead of trying to remember it, I’d like to see if
25 I can find it in here and —
26 Q. Go ahead and take a look and read it, but
27 don’t read it out loud.
28 A. Yeah. Okay. It was July 2nd, and I made a 8200
1 note —
2 MR. SANGER: I’m going to object. There’s
3 no question pending.
4 THE COURT: Sustained.
5 Q. BY MR. ZONEN: What I’d like you to do is go
6 ahead and read the notes that you have made quietly
7 to yourself.
8 A. To myself.
9 MR. SANGER: And then after he does that,
10 I would like to see what notes he’s referring to.
11 MR. ZONEN: I have no objection.
12 THE WITNESS: Okay.
13 MR. SANGER: May I approach, Your Honor?
14 Hang on, one second.
15 Your Honor, could we approach for a moment,
17 THE COURT: Yes.
18 (Discussion held off the record at sidebar.)
19 THE COURT: I’m going to take a brief recess
20 to give counsel an opportunity to look at the notes
21 before further examination, so I’ll see you in a few
23 (Recess taken.)
Upon returning from recess, Zonen continued with his direct examination by asking Dr. Koons to describe the four causes of audio gaps in a tape recording:
1 THE COURT: All right, Counsel.
2 MR. ZONEN: Thank you, Your Honor.
3 Q. Dr. Koons, we left off, I was asking some
4 questions about breaks in this —
5 BAILIFF CORTEZ: Your microphone.
6 Q. BY MR. ZONEN: Dr. Koons, when we left off,
7 I was asking you some questions about the breaks in
8 this tape, and I think you proffered the opinion
9 that there were 34 breaks; is that correct?
10 A. That’s correct.
11 Q. All right. And then I had asked you what
12 types of things or occurrences could cause breaks of
13 such a nature, and you had referred to some notes
14 and you’ve read some notes.
15 A. Yes.
16 Q. All right. Are you prepared at this time to
17 answer that question?
18 A. Yes, I am.
19 I hope I can remember all four of them.
20 I identified four things that could cause breaks
21 such as this. So one is the “pause” button on the
22 tape-recorder. If you press the “pause” button and
23 you press it again to restart it, you would get a
24 break in the tape.
25 Another would be a press-to-talk telephone
26 that, I don’t know if — you may not be familiar
27 with these in the home context very often, but in a
28 classified context, you have a telephone with a 8207
1 button on the handle, and the only time you can hear
2 a person speak is when the button is pressed.
3 Another is the “mute” button on the
4 telephone would cause the audio to go out, and then,
5 when you unmute it, to come back in again.
6 And I don’t remember the fourth one.
7 Q. All right. Would it help to look at your
8 notes again to see what it was?
9 A. Yeah, probably.
10 Oh, a voice-activated line; that if you have
11 a voice activation on your recorder, the recorder
12 will stop and start. It will start whenever it
13 hears a loud — a signal such as a person beginning
14 to talk, and it will stop when a person stops
16 Q. Would that tend to explain breaks in a
17 first-generation tape?
18 A. Yes, it would.
19 Q. Would it explain breaks in a
20 second-generation tape?
21 A. No. It really can’t do that, because a
22 second-generation tape is not made with a
23 microphone. It’s made by copying or using wires
24 from one tape-recorder to — the source to the
25 destination tape-recorder.
26 Q. Let’s talk about the first generation, then,
27 if we could. Is it your understanding or does it
28 appear that this is a tape-recording of a telephone 8208
2 A. Yes, I believe it is.
Next, Zonen asked Dr. Koons to describe how phone calls are recorded; this was to give the jury an idea of how Frank Cascio and Brad Miller were able to make their surreptitious recordings:
3 Q. How do people generally tape-record
4 telephone conversations?
5 MR. SANGER: Objection. Calls for
6 speculation; no foundation.
7 MR. ZONEN: I’m not asking this specific
8 time, but simply how is it done that telephone
9 conversations are taped.
10 THE COURT: The foundation is sustained.
11 Q. BY MR. ZONEN: Do you know how people
12 tape-record telephone conversations?
13 A. Yes, there are two basic ways to do it.
14 MR. SANGER: I’m going to move to strike as
15 nonresponsive beyond “Yes.”
16 THE COURT: Stricken.
17 Q. BY MR. ZONEN: You said, “Yes.”
18 A. Yes.
19 Q. During the course of the work that you have
20 done over the last ten years, have you, in fact,
21 tape-recorded telephone conversations?
22 A. Yes.
23 Q. And have you examined conversations that
24 have been tape-recorded?
25 A. Yes.
26 Q. And does your study require that you look
27 into the manner in which the conversations are
28 tape-recorded as well? 8209
1 A. Yes.
2 Q. And would that be important to your
4 A. Yes.
5 Q. Okay. What are the ways in which telephone
6 conversations are tape-recorded?
7 A. There are two ways. One, you place a small
8 microphone on the handset. And that’s usually not a
9 very good way, because it’s not strongly coupled
10 into the conversation on the phone.
11 The second is to put a sensor in-line with
12 the handset. You have these modular plugs that plug
13 into a modern handset, and you have a device that
14 you plug in-line there, and so it picks up the
15 conversation going in both directions very well.
16 Q. Now, can you tell by listening to a
17 tape-recorded conversation what method was used to
18 tape-record that conversation?
19 A. Yes.
20 Q. Do you have a sense of what method was used
21 in this case?
22 A. I believe it was the in-line sensor.
23 Q. Why is that?
24 A. Because of the quality. It had a good
25 pickup at both ends of the conversation.
26 Q. Now, when we talk about first-generation or
27 second-generation tape, what are we talking about?
28 A. A first-generation tape is called a virgin 8210
1 tape, where the first audio is recorded onto the
2 tape. A second-generation tape is one of two
3 things. It’s either an overrecording of that one,
4 or it’s taking the material on the first tape and
5 recording it onto a second tape.
6 Q. All right. Now, can you tell whether this
7 recording is a first- or second-generation tape or
8 subsequent to that?
9 A. There’s — there’s some evidence that it’s a
10 second-generation tape.
11 Q. And what is the evidence that you saw?
12 A. The evidence is the first piece of
13 recording, the first 13 seconds or so of recording,
14 is very different than all of the other, which
15 suggested that the — that the tape had been used
16 for something else and the second recording started
17 later in the tape.
18 Q. Can you tell whether or not this is a tape
19 that is a compilation of multiple conversations?
20 A. I personally cannot determine that.
21 Q. It could be or could not be?
22 A. It could be or could not be.
23 Q. All right. Now, is it possible that this
24 could be a tape-recording of a single conversation
25 but where pieces have been taken out, portions of
26 the conversation deleted?
27 A. If it’s a second-generation tape, yes. If
28 it’s a first-generation tape, probably not. 8211
1 Q. Okay. Let’s — go ahead and explain that to
2 us. Let’s see, what’s the first probability, or the
3 first possibility? The first-generation tape.
4 A. Okay. If it’s —
5 Q. Tell us what you mean when you say “probably
6 not” in terms of first generation.
7 A. Okay. If it’s a —
8 MR. SANGER: I’m going to object to this
9 line of questioning as no foundation.
10 THE COURT: Overruled.
11 You may answer.
12 Q. BY MR. ZONEN: Go ahead.
13 A. If it’s a first-generation tape, you can
14 usually identify it by the length of the — of the
15 pauses. For example, if you press the “pause” and
16 then you go some distance, it usually takes longer
17 than on a second-generation tape. And also, you can
18 tell by the context of the material that’s recorded
19 on the tape where the breaks occur in it.
20 Q. All right. In this particular case, you
21 suggested a greater likelihood of second generation?
22 A. Yes.
23 Q. All right. And then we were asking some
24 questions — I was asking some questions about
25 pauses on a second-generation tape and whether or
26 not this could be simply copied from another tape.
27 Explain how you would have those types of breaks
28 then, please. 8212
1 A. The — the way that you — you make a
2 high-quality second-generation tape with material
3 from other tapes, if that’s what you mean —
4 Q. Yes.
5 A. — is you would pick the section that you
6 want to record, you would turn on the two tapes and
7 record a section, and then you would pause the one
8 you’re recording onto.
9 And then you would go to either another tape
10 or another place on the first tape, and you would
11 set it up so that you’re about to record it again,
12 and you begin it a little ahead of time, and you hit
13 the “pause” button to start it recording again, and
14 you can record a second recording onto the tape.
15 You can take any number of tapes, then, and
16 put them onto one tape that way.
17 Q. What you effectively can do, then, is take
18 portions of an original tape and put it on a second
19 tape, and leave out whatever portions you wish to
20 leave out?
21 A. That’s correct.
22 Q. Do you have any way of knowing whether the
23 tape you analyzed was, in fact, the product of that
24 kind of conduct?
25 A. Not really.
26 Q. I —
27 A. No.
28 Q. All right. You have no way — let me reask 8213
1 that question.
2 A. From the analysis that we do, you cannot
3 determine that.
4 Q. Okay.
5 A. You would have to use the context to
6 determine that.
7 Q. All right. In other words, reading the
8 content of it?
9 A. Yes. Now, can I elaborate?
10 Q. Yes, please.
11 MR. SANGER: I’m going to object. There’s
12 no question pending and there’s no foundation based
13 on what was just said.
14 THE COURT: Foundation is — no question
15 pending is sustained.
16 Q. BY MR. ZONEN: All right. Explain to me
17 exactly what the limitations are in terms of what
18 you’re able to do.
19 A. We are able to — to look at the audio in
20 several formats on the computer screen. And
21 normally what we look for for breaks are
22 discontinuities in the background or discontinuities
23 in the amplitude.
24 In this case, we found — we found both, but
25 the — the type is such that it could be generated
26 by either a “pause” button on a — going to a
27 second-generation tape or possibly a “pause” button
28 on a first-generation tape. 8214
1 Q. All right.
2 A. It’s only the context of the conversation
3 would tell you which it is.
4 Q. You can’t tell whether, again, this is first
5 generation or second generation, other than the
6 clues that you have already testified to?
7 A. That’s correct.
8 Q. All right. Doctor, I’d like you to look at
9 Exhibits No. 857 and 858 that are before you. Tell
10 us what those two documents are.
11 A. May I start with the second one?
12 Q. 858?
13 A. Yeah.
14 Q. Yes. Please go ahead.
15 A. 858 is a record of the amplitude of the
16 signal from the tape for 1.8 seconds beginning at
17 two minutes and about 37 seconds into the tape. And
18 in the center of the picture, it shows a section
19 where, first of all, the level goes almost to zero,
20 and then it’s at a very low level. Then there’s a
21 transient at the turn-on and then it’s followed by
22 speech. So there’s speech at the beginning, speech
23 at the end, and the transient in the middle is what
24 I have been calling a break.
25 Q. And the other exhibit, 857, what is that?
26 A. 857 is the same time period with a different
27 depiction. This shows what we call an audiogram, or
28 a spectrogram, and it shows the intensity as a 8215
1 function of frequency and then with time running
2 along the horizontal or X axis, and it shows in the
3 background the same break as a lightening of the
4 signal. So this is two different ways of looking at
5 a break at exactly the same time period on the tape.
6 Q. How did you generate those two exhibits?
7 A. We use a software tool called Adobe
8 Audition, and that is actually listed up on the —
9 on the menu line on the screen. And this is a
10 screen capture where we take the image from the
11 screen and we capture it and we save it as a file on
12 the disk. So this is what we were looking at at the
14 Q. So this is actually the equivalent of a
15 photograph, or a copy of —
16 A. A photograph of the screen. An image of the
18 Q. Yes. Of exactly the image that you look
19 at —
20 A. That’s correct.
21 Q. — when you make your determinations —
22 A. That’s correct.
23 Q. — and analysis?
24 A. Yes.
25 Q. And this is for a relatively small period of
26 time, is it?
27 A. 1.8 seconds it says on here.
28 Q. And in 1.8 seconds, does it generate 8216
1 sufficient information that you can actually see and
2 identify a break at that time point?
3 A. Yes, the — yes.
4 Q. You talked to us about the signature. You
5 used that term early on in your testimony. What
6 does that refer to?
7 A. The signature is shown on both of these.
8 It’s shown best on 858, and that’s the — there is
9 a — a wave in the line at 238, just before 238.1
10 seconds, which is what happens when you turn this
11 particular tape-recorder on.
12 Q. All right. Are these breaks relatively
13 short in duration?
14 A. They’re very short. This one is only about
15 a second long.
16 Q. The other 33 breaks in this telephone
17 conversation, are they comparable to that one as
19 A. Yes.
20 Q. What does that suggest to you, that all of
21 the breaks are roughly comparable and fairly short
22 in duration?
23 A. That they were — I think in this case, in
24 addition to the signature, they were all made in the
25 same way.
26 Q. All right. Would it be difficult to have
27 relatively short breaks if you are stopping and
28 starting a tape-recording during the course of a 8217
2 A. Well, the breaks would still be short. It’s
3 the context that’s different.
4 Q. Oh, I see. The content of the conversation
5 itself. Okay.
6 The two exhibits that we’ve been referring
7 to, 857 and 858, do they accurately depict the
8 content contained in those exhibits? In other
9 words, are they an accurate depiction of what you
10 looked at during the course of your examination?
11 A. Yes, they are.
12 MR. ZONEN: Your Honor, I would move to
13 introduce 857 and 858 into evidence.
14 MR. SANGER: No objection.
15 THE COURT: They’re admitted.
16 MR. ZONEN: And may we publish those two at
17 this time?
18 THE COURT: Yes.