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April 29th, 2005 Trial Analysis: Rosibel Ferrufino Smith, Craig Bonner, Harry Koons, and Ian Drew, Part 2 of 3

March 22, 2014

Next, Zonen displayed an image of the screenshot of what a tape analysis looks like, and Dr. Koons described the digitization process and analysis:

19 Q. BY MR. ZONEN: In front of you should be a

 

20 laser that I left — you have it. Good.

 

21 Go ahead, please, and tell us what it is

 

22 that you’re looking at.

 

23 A. Yes, we’re looking at an image of — do I

 

24 have to talk close to this?

 

25 MR. SANGER: We haven’t identified which

 

26 exhibit is up there, for the record.

 

27 MR. ZONEN: 858. That’s Exhibit 858 that’s

 

28 currently being shown. 8218

 

1 Q. And yes, I’m sorry, I know that’s an

 

2 awkward position, but you do have to continue to

 

3 speak through the microphone.

 

4 A. They won’t be able to see through me.

 

5 This is an image of the screen when we were

 

6 analyzing the tape, and the time runs along the

 

7 bottom axis here. It’s virtually impossible for you

 

8 to read it, but it starts at two minutes 36.994

 

9 seconds. That means two minutes and essentially

 

10 37 seconds into the tape. It’s very difficult to

 

11 read this little number down here, but that says

 

12 that the view is 1.8 seconds long. So the time from

 

13 here to there is 1.8 seconds.

 

14 The signature is the amplitude of the

 

15 signal, and it’s centered at the center, about zero.

 

16 And the best analogy that I can make with

 

17 this is, if there are people here that are old

 

18 enough to remember what a vinyl record is, this is

 

19 very much like the groove in that vinyl record; that

 

20 the needle would be moving along here, and so it

 

21 would move faster here, and hardly move at all here,

 

22 and then it goes through a big bump, and then more

 

23 here. And by — on a vinyl record, it reproduces the

 

24 audio in the same way that the voltage that we’re

 

25 displaying here, when it’s passed through a speaker

 

26 on a computer, reproduces the speech.

 

27 Q. Do you see the signature that you refer to?

 

28 A. Yes. The signature extends from here to 8219

 

1 here, right in — right in the center, and this is

 

2 the primary signature which I’ve been calling the

 

3 turn-on signature.

 

4 Q. And the break that you refer to?

 

5 A. Yes, the break is really this entire time

 

6 period, that during this time period the audio

 

7 turned off, right here. It’s very low here. And

 

8 then this is the turn-on signature when the reel

 

9 started to come back up to speed. And then there’s

 

10 normal speech after about this time here. So this

 

11 is all a transient that occurred during what I call

 

12 the break in the tape.

 

13 Q. All right. Let’s go ahead to 858, if we

 

14 can.

 

15 A. Okay. This is exactly the same —

 

16 MR. SANGER: Excuse me, Your Honor.

 

17 MR. ZONEN: We need a question.

 

18 MR. SANGER: I think this is 857. Am I

 

19 wrong?

 

20 THE WITNESS: Yes, this is —

 

21 MR. ZONEN: Forgive me. My dyslexia is

 

22 acting in.

 

23 This is 857. The last one, then, was 858,

 

24 if we could correct the record accordingly.

 

25 Q. Please go ahead and tell us about 857.

 

26 A. Yes, this is the same time period, starting

 

27 at 236.994 and extending for 1.8 seconds across the

 

28 axis here. And what’s displayed on the vertical 8220

 

1 axis now is frequency.

 

2 And the best way to explain this is if you

 

3 look at this signature over here, this is a word

 

4 that a person has spoken, and what you can see is

 

5 the fundamental of their voice box and then the

 

6 harmonics of their — of their voice. And you can

 

7 also see that over here and over here.

 

8 And this is the time period which was very

 

9 quiet where I said that the tape had turned off.

 

10 And you can see that the noise at the bottom, which

 

11 is indicated by the yellow, has gone away. The blue

 

12 indicates the lowest volume at that frequency; the

 

13 green, an intermediate volume; the yellow, a louder

 

14 volume; and the red, the loudest volume.

 

15 And the frequency scale is on the left over

 

16 here. It’s impossible to read it there. This is

 

17 500 hertz — oop, no, I think you want to….

 

18 Okay. Yes, okay. So this is a thousand

 

19 hertz, and it goes well above what most people’s

 

20 hearing is at, at ten kilohertz up here. Take it

 

21 back to the full….

 

22 So if you can remember what I showed on the

 

23 preceding exhibit, this is the period when it went

 

24 very quiet. This is a period where there was just a

 

25 little bit of low frequency noise here. This is the

 

26 transient, and this is the beginning where it begins

 

27 to have speech again over here. So this is the

 

28 characteristic signature, on this particular media, 8221

 

1 of a break.

 

2 Q. Doctor, you had mentioned something about a

 

3 voice-activated tape-recorder. What is a

 

4 voice-activated tape-recorder?

 

5 A. A voice-activated tape-recorder is a

 

6 tape-recorder which, if the room goes silent, turns

 

7 off. And if somebody speaks in the room or there’s

 

8 a noise in the room, the tape-recorder turns back on

 

9 again.

 

10 Q. Does there generally have to be a period of

 

11 silence before the tape-recorder is activated or

 

12 deactivated?

 

13 A. Yes, it usually takes quite a bit of time

 

14 before it deactivates, because it doesn’t want to

 

15 miss speech. And so they have a circuit that waits

 

16 a long time, in terms of seconds, for the silence to

 

17 decide to turn off, but then they usually turn on

 

18 very rapidly because they want to get the first

 

19 words.

 

20 Q. Okay. Doctor, do you have an opinion as to

 

21 whether this tape is the product of a

 

22 voice-activated tape-recorder and then those breaks

 

23 would have been caused by silence in the

 

24 conversation?

 

25 A. My opinion is it’s not voice-activated.

 

26 Q. And why is that?

 

27 A. Because the turn-off occurred too rapidly

 

28 after the speech right here. This is only a few 8222

 

1 tenths of a second.

 

2 MR. ZONEN: All right. We can turn the

 

3 lights on and turn off the projector at this time.

Zonen ended his direct examination by asking Dr. Koons for his opinion on the quality of the equipement that was used to record Janet Arvizo:

4 Q. Doctor, just a couple of final questions.

 

5 Do you have an opinion as to the nature of

 

6 the equipment that was used in this particular case?

 

7 MR. SANGER: I’m going to object as either

 

8 asked and answered or it’s vague.

 

9 THE COURT: Overruled.

 

10 Q. BY MR. ZONEN: Go ahead, please.

 

11 And I guess by “equipment,” I mean both

 

12 telephones and tape recorders.

 

13 MR. SANGER: Then it’s compound.

 

14 THE COURT: Just a minute.

 

15 THE WITNESS: I really have —

 

16 THE COURT: I’ll sustain the objection.

 

17 Q. BY MR. ZONEN: Let’s talk about telephones.

 

18 Does it make a difference to you in terms of

 

19 your analysis of what type of phones are used?

 

20 A. Only in the sense of whether it was

 

21 voice-activated or not.

 

22 Q. Okay.

 

23 A. But otherwise, no.

 

24 Q. Or the recording equipment?

 

25 A. No.

 

26 Q. Okay. Do you have a sense of where the

 

27 recordings took place?

 

28 A. No. 8223

 

1 Q. All right. Is there any information that

 

2 would be — let me rephrase that just for one

 

3 second.

 

4 In terms of resolving the question of

 

5 whether or not this is multiple conversations as

 

6 opposed to a single long conversation, are you able

 

7 to hear any unique dynamics in the sounds that would

 

8 send to suggest that there were recordings at

 

9 different locations?

 

10 A. No.

 

11 Q. Are you able to tell one way or the other?

 

12 A. No.

 

13 MR. ZONEN: Okay. I have no further

 

14 questions.

 

15 THE COURT: Cross-examine?          

Under cross-examination, Sanger questioned Dr. Koons about whether or not he listened to the context of the conversation between Frank Cascio and Janet Arvizo, and he had not. Dr. Koons was also questioned about the audio gaps in the recording:

17 CROSS-EXAMINATION

 

18 BY MR. SANGER:

 

19 Q. All right. Dr. Koons, the bottom line to

20 this is that you had a tape which you analyzed, and

 

21 you believe that the tape — the recording process

 

22 was stopped several times during the course of the

 

23 recording; is that right?

 

24 A. Yes, sir.

 

25 Q. All right. You don’t know if it was stopped

 

26 for five minutes, or ten minutes, or for a second;

 

27 is that correct?

 

28 A. That’s correct. 8224

 

1 Q. And you didn’t really listen to the tape to

 

2 hear the context when you did your initial analysis

 

3 of this tape; is that correct?

 

4 A. Yes.

 

5 Q. Recently you decided to listen to the tape

 

6 to see if you could kind of hear what the people

 

7 were saying, right?

 

8 A. Right.

 

9 Q. And when you listened to the context, as far

 

10 as you could tell, it seems to be pretty much a

 

11 continuous conversation, correct?

 

12 A. Most, but not all of it.

 

13 Q. The first 13 seconds you had a question

 

14 about; is that right?

 

15 A. Yes.

 

16 Q. All right. And, now, when you looked at the

 

17 sonographic, if I’m using the right term, analysis,

 

18 that was pretty much consistent with what you heard

 

19 when you listened to it like the rest of it; is that

 

20 right?

 

21 A. Yes.

 

22 Q. In other words, you pretty much have the

 

23 same background noise. You’ve got the same level of

 

24 speech that goes throughout the entire tape; is that

 

25 correct? With the exception of the first 13

 

26 seconds.

 

27 A. That’s correct.

 

28 Q. And you had speculated in your bench 8225

 

1 notes — in fact, you said, “Speculate on causes,”

 

2 right?

 

3 A. Right.

 

4 Q. And you said, “Pause on tape-recorder;

 

5 voice-activated line; push-to-talk phone; mute

 

6 button,” right?

 

7 A. Right.

 

8 Q. Now, what is an AGC?

 

9 A. An AGC is an automatic gain control circuit,

 

10 and the point of an AGC is to try to make the audio

 

11 level uniform on a tape.

 

12 If you have, for instance, a conference with

 

13 people sitting around a large table, and you have a

 

14 tape-recorder in the middle, that the person closest

 

15 to it will be naturally louder than the person at

 

16 the end of the table, and the automatic gain

 

17 control, when it hears a period when the audio is

 

18 weak, tries to push it up and amplify it, and if

 

19 it’s strong, it brings it down a little bit so it’s

 

20 uniform on the tape.

 

21 Q. And you determined that you did not think

 

22 this was an automatic gain control function that was

 

23 causing these apparent breaks; is that correct?

 

24 A. That’s correct. There is no automatic gain

 

25 control on this recorder.

 

26 Q. So as it stands, you really don’t know what

 

27 happened, but there was some kind of break?

 

28 A. Yes, there are breaks. 8226

1 Q. All right. You also indicated that there’s

 

2 a signature to these breaks, simply meaning that

 

3 they appear to have been caused by the same

 

4 mechanism; is that right?

 

5 A. That’s right.

 

6 Q. And from what you could tell by looking at

 

7 it, it appeared to be some kind of a mechanical

 

8 function that caused this break; is that right?

 

9 A. That’s right.

 

10 Q. All right. In other words, somebody pushed

 

11 a button, either hit a “stop” button on the

 

12 recorder, or a “mute” button, or a “pause” button,

 

13 something like that?

 

14 A. Can I elaborate on that?

 

15 Q. Yes.

 

16 A. More specifically, by “mechanical,” I meant

 

17 that it had something to do with probably the

 

18 rotation of the wheels on the — the drive on the

 

19 tape-recorder rather than the button itself. That

 

20 the wheel will take a little longer or a little

 

21 shorter to take up slack, for example, at the

 

22 beginning and end of the tape and the middle of the

 

23 tape. And so there are many different mechanical

 

24 things like that, rather than the button itself.

 

25 Q. Okay. Well — all right. That’s fair

 

26 enough. In other words, the way these cassette

 

27 tapes work is that there’s a magnetic head —

 

28 A. Uh-huh. 8227

 

1 Q. — that will alter the tape itself

 

2 magnetically —

 

3 A. Yes.

 

4 Q. — when input occurs; is that correct?

 

5 A. Yes.

 

6 Q. So somebody talks; it’s translated into

 

7 energy that affects the magnetic head, that in turn

 

8 affects the tape; is that right?

 

9 A. That’s correct.

 

10 Q. So as the tape turns by the head, that’s how

 

11 you record it, right?

 

12 A. Right.

 

13 Q. And if you stop the tape from turning, it

 

14 stops recording?

 

15 A. Yes.

Next, Sanger grilled Dr. Koons about steps that were taken to analyze the authenticity of the tape recording, and then quickly ended his cross-examination:

16 Q. All right. And so your determination is

 

17 that at some point it looks like this tape was

 

18 stopped from time to time?

 

19 A. Right.

 

20 Q. Now, you said you couldn’t tell if it was

 

21 first generation or second generation; is that

 

22 correct?

 

23 A. That’s true.

 

24 Q. And you did not do an analysis of the actual

 

25 tape?

 

26 A. Physically.

 

27 Q. Physical analysis of the tape. All right.

 

28 And there are labs that can do that? 8228

 

 

 

1 A. I believe so, yes.

 

2 Q. All right. So you just looked — once you

 

3 digitized it, you just looked at the actual

 

4 electronic remnants of whatever it was that was done

 

5 to this tape? In other words —

 

6 A. I don’t want to use the word “remnants,”

 

7 but, yes.

 

8 Q. I was trying to think of a better word.

 

9 A. I know what you mean.

 

10 Q. The electronic imprints or whatever it was.

 

11 A. It’s the signature of the electronic signal

 

12 on the tape.

 

13 Q. If you actually look at a tape, sometimes

 

14 you can determine that there are erasure marks or

 

15 there’s other actual physical —

 

16 A. Right.

 

17 Q. — marks on the tape; is that right?

 

18 A. We did not do that.

 

19 Q. Did not do that.

 

20 And I take it, from your analysis, you have

 

21 no way of determining who it was that stopped this

 

22 tape from turning from time to time?

 

23 A. No.

 

24 Q. And you have no idea how long the tape

 

25 stopped; is that correct?

 

26 A. That’s correct.

 

27 Q. It’s even possible that there could be a

 

28 malfunction in the tape machine, is it not? 8229

 

1 A. Possibly. But they were not random.

 

2 Q. All right. So you don’t know how long the

 

3 tape stopped; in other words, if somebody stopped

 

4 the tape, got up, went out of the room, came back,

 

5 or something?

 

6 A. That’s true. Yes.

 

7 Q. It could have been just a second that was

 

8 not recording, couldn’t it?

 

9 A. Yes.

 

10 MR. SANGER: All right. Okay. Thank you.

 

11 I have no further questions.

Under redirect examination, and then under recross examination, Dr. Koons was asked to clarify his earlier statement about the audio gaps being “not random”:

13 REDIRECT EXAMINATION

 

14 BY MR. ZONEN:

 

15 Q. Doctor, explain to us what you mean by “not

 

16 random.”

 

17 A. If you have — if you have a random process,

 

18 the — the distribution of the stops will obey a

19 statistical function called a Poisson function, and

 

20 these do not fit that function. They’re almost

 

21 uniformly spaced throughout the tape, except at the

 

22 end, where they become more rapidly in the last

 

23 minute.

 

24 Q. All right. Do you have an opinion as to

 

25 whether the breaks in this particular tape are

 

26 caused by a malfunction of the recording device?

 

27 A. My opinion is they are not.

 

28 MR. ZONEN: Thank you. No further 8230

 

1 questions.

 

2

 

3 RECROSS-EXAMINATION

 

4 BY MR. SANGER:

 

5 Q. Actually, I didn’t notice that. So let me

 

6 ask you about that.

 

7 You actually — in your bench notes there,

 

8 you broke down the times. Are you saying there’s

 

9 essentially a uniform time gap between the tape —

 

10 between the —

 

11 A. Between the gaps.

 

12 Q. Between the gaps?

 

13 A. Not uniform. It’s not periodic. But

 

14 they — there is a group at the end which is out of

 

15 character with the other ones, which suggest that

 

16 it’s not random. There were a bunch that occurred

 

17 in the 21st minute and most of the other minutes had

 

18 only one or two.

 

19 Q. I see what you’re saying.

 

20 A. There was also one period around six to ten

 

21 minutes where there was no gap at all. So it’s not

 

22 random.

 

23 Q. Okay. When you say it’s not random, do you

 

24 mean it’s —

 

25 A. “Random” means a throw of the dice did it.

 

26 Q. Okay. So because there are groupings, you

 

27 feel that there’s some causation?

 

28 A. That’s right. 8231

 

1 Q. So if there was a mechanical problem of some

 

2 sort, it would have to be a mechanical problem that

 

3 was more prevalent at one point?

 

4 A. Than the others, right.

 

5 MR. SANGER: All right. Okay. Thank you.

 

6 No further questions.

 

7 MR. ZONEN: No further questions.

 

8 THE COURT: Thank you. You may step down.

Prior to calling the next two witnesses, Judge Melville ruled that the two art books seized in 1993 were admissible because their probative value exceeded their prejudicial value.

9 MR. ZONEN: Your Honor, the next two

 

10 witnesses require a Court ruling.

 

11 THE COURT: The Court will admit Exhibits 841

 

12 and 842 and make a finding that the probative value

 

13 exceeds the prejudicial effect under 352.

 

14 MR. ZONEN: I’m sorry, I didn’t hear the

 

15 last part of your ruling.

 

16 THE COURT: It was just a finding under 352.

 

17 MR. ZONEN: And the finding was it’s

 

18 admissible?

 

19 THE COURT: They are admissible. They are

 

20 admitted.

 

21 MR. ZONEN: Thank you.

 

22 We’ll call Detective Rose White to the

 

23 stand, please.

 

24 MR. SANGER: Is there a limiting instruction

 

25 that goes along with that, Your Honor?

 

26 MR. ZONEN: Smith. I’m sorry, Smith.

 

27 THE COURT: We could do one.

 

28 MR. SANGER: Your Honor, would it be 8232

 

1 possible to approach briefly to discuss that?

 

2 THE COURT: Yes.

 

3 (Discussion held off the record at sidebar.)

 

4 THE COURT: I think the next two witnesses

 

5 are going to involve these exhibits, are they, or

 

6 the next one?

 

7 MR. ZONEN: The next one witness.

 

8 THE COURT: (To the jury) The next witness

 

9 is going to involve testimony about two books,

 

10 Exhibits 841 and 842. And I want to advise you that

 

11 these exhibits fall within the same instruction I

 

12 gave you regarding the 1108 evidence, Code Section

 

13 1108 evidence relating to the alleged prior sexual

 

14 acts.

 

15 Remember those instructions I gave you

 

16 sometime ago? This material is connected to that

 

17 and has the same limitation. At the end of the

 

18 trial, we’ll reiterate that instruction for you so

 

19 that it’s — this won’t be the last time you hear

 

20 the instruction.

 

21 MR. ZONEN: We’ll call Rose Smith to the

 

22 stand, Detective Smith, please.

 

23 THE COURT: You’ve already been sworn. You

 

24 may be seated.

 

25 DETECTIVE SMITH: Thank you, Your Honor.

 

26

 

27 ROSIBEL SMITH

 

28 Having been previously sworn, resumed the 8233

 

1 stand and testified further as follows:

 

2

 

3 THE COURT: You’re still under oath.

 

4 THE WITNESS: Yes, Your Honor.

Zonen began his direct examination by asking Det. Smith about his experience as a sex crimes investigator, and his recollections of the August 1993 raid on Neverland:

6 DIRECT EXAMINATION

 

7 BY MR. ZONEN:

 

8 Q. The jury hasn’t heard who you are yet.

 

9 You’ve already been sworn in, but tell us who you

 

10 are, please.

 

11 A. Yes. I’m Detective Rosibel Smith.

 

12 R-o-s-i-b-e-l. S-m-i-t-h.

 

13 I’m a police detective with the City of Los

 

14 Angeles, Los Angeles Police Department, currently

 

15 assigned to the Threat Management Unit of the

 

16 Detective Support Division.

 

17 Q. How long have you been an officer with the

 

18 Los Angeles Police Department?

 

19 A. For a little over 20 years.

 

20 Q. And your current assignment is what again,

 

21 please?

 

22 A. The Threat Management Unit of the Detective

 

23 Support Division, and we are responsible for

 

24 investigating stalking cases, criminal threats and

 

25 workplace violence.

 

26 Q. How long have you been in that unit?

 

27 A. For six years.

 

28 Q. And prior to that, what work did you do? 8234

 

1 A. Prior to that, I worked a station called

 

2 Rampart Detectives, and then prior to that Juvenile

 

3 Division.

 

4 Q. Have you worked as a sex crimes

 

5 investigator?

 

6 A. Yes, I have.

 

7 Q. For what period of time?

 

8 A. For nine years.

 

9 Q. And which nine-year period?

 

10 A. From 1988 to 1997.

 

11 Q. As part of your responsibilities as a sex

 

12 crimes investigator, did you conduct and execute

 

13 search warrants?

 

14 A. Yes, I did.

 

15 Q. In August of 1993, did you execute a search

 

16 warrant at Neverland Ranch in Santa Barbara County?

 

17 A. Yes, I did.

 

18 Q. Did you do that with others?

 

19 A. Yes.

 

20 Q. A few others, I would assume?

 

21 A. There were several others, detectives and

 

22 officers at the location, yes.

 

23 Q. And do you remember which — where on the

 

24 property at Neverland Ranch that you personally

 

25 conducted a search?

 

26 A. In the master bedroom of Mr. Michael

 

27 Jackson’s residence.

 

28 Q. All right. Now, the — I’d like you to look 8235

 

1 at three exhibits that are in front of you at this

 

2 time, Exhibit No. 841 and 842 already in evidence.

 

3 A. Okay.

 

4 Q. Tell us what those two exhibits are. Let’s

 

5 start with the first one, 841.

 

6 A. 841 is a hard-cover book entitled, “Boys

 

7 Will Be Boys.”

 

8 Q. And what is that a book of?

 

9 A. It’s a book depicting images of young boys.

 

10 Some are clothed. Some are nude. And various

 

11 stages of dress. Depicts them in various positions,

 

12 at play, swimming, jumping. So….

 

13 Q. Is there an inscription in the front of that

 

14 book?

 

15 A. Yes, there is.

 

16 Q. Is that an inscription in a person’s

 

17 handwriting or printing?

 

18 A. Yes.

 

19 Q. Did you seize that book?

 

20 A. Yes, I did.

 

21 Q. From where did you seize that book?

22 A. From a file cabinet in the master bedroom of

 

23 Mr. Jackson’s residence.

 

24 Q. Now, Mr. Jackson’s residence is a — the

 

25 bedroom portion of his residence is actually a

 

26 suite; is that correct?

 

27 A. Yes.

 

28 Q. Is there an upstairs and a downstairs? 8236

 

1 A. Yes, there is.

 

2 Q. And the portion from where you seized these

 

3 items, was that from the upstairs or the downstairs?

 

4 A. It was from the downstairs portion of the

 

5 bedroom.

 

6 Q. And can you — can you tell us where

 

7 specifically it was seized from?

 

8 A. It was seized from a file cabinet within a

 

9 closet in the master bedroom.

 

10 Q. Let’s go ahead to the next exhibit, 842, and

 

11 tell us what that is, please.

 

12 A. This is another book, hard-cover book,

 

13 entitled, “The Boy; A Photographic Essay.”

 

14 Q. Can you tell us what this is, please?

 

15 A. And again, this is a book depicting images

 

16 of young boys, again in various stages of clothing

 

17 and undress. Some appear to be be nude. And again,

 

18 various poses; playing, swimming, jumping.

 

19 Q. Is there an inscription in the front of that

 

20 book as well?

 

21 A. Yes.

 

22 Q. Now, Detective, those two items, were they

 

23 seized from the same location?

 

24 A. Yes, they were.

 

25 Q. And I think you’ve already described that

 

26 location; is that correct?

 

27 A. Yes.

Next, Det. Smith spoke about the search warrant that was used to plan the search, and the location of the books that were seized. Zonen quickly ended his direct examination after this line of questioning:

28 Q. I’d like you to look at another exhibit 8237

 

1 that’s before you, which is 856 in evidence.

 

2 A. Okay.

 

3 Q. What is 856?

 

4 A. 856 is a photograph of the search warrant.

 

5 We, as law enforcement, are required to photograph

 

6 the location that we serve the warrant on. And this

 

7 is the photograph of the file cabinet where the

 

8 books were seized from.

 

9 Q. All right. And in that file cabinet, are

 

10 there multiple drawers?

 

11 A. Yes, there are.

 

12 Q. Do you actually know from which drawer those

 

13 books were seized?

 

14 A. Yes, I do.

 

15 Q. Which drawer was that?

 

16 A. They were seized from the third drawer.

 

17 MR. ZONEN: Your Honor, may I publish that

 

18 exhibit? It’s already in evidence.

 

19 THE COURT: Yes.

 

20 Q. BY MR. ZONEN: Describe for us, please, the

 

21 photograph that we’re looking at.

 

22 A. To the rear of the photograph is the file

 

23 cabinet containing the four drawers. The third

 

24 drawer is where I seized the books from. So it’s

 

25 partly covered by, looks like maybe a briefcase of

 

26 some sort, or something there.

 

27 Q. All right. Detective, how were you able to

 

28 get into the closet? How were you able to get into 8238

 

1 the file cabinet?

 

2 A. The closet was — actually, the room was

 

3 locked. And we had to get keys for the room, as

 

4 well as for the file cabinet, to get access into the

 

5 room and the file cabinet itself.

 

6 Q. Were you able to do that?

 

7 A. Yes, we were.

 

8 MR. ZONEN: Thank you. I have no further

 

9 questions.

 

10 You can turn the lights on.

 

11 MR. SANGER: Leave it. Leave it.

 

12 MR. ZONEN: Do you need this?

 

13 MR. SANGER: Yeah.

Under cross-examination, Sanger immediately set out to clarify exactly why Jackson was sent the book “Boys Will Be Boys” by a fan; he stated that a mentally disturbed stalker sent the book to Jackson under her own volition, and asked Det. Smith about his experience dealing with celebrity stalkers before Judge Melville sustained Zonen’s objection to this line of questioning:

15 CROSS-EXAMINATION

 

16 BY MR. SANGER:

 

17 Q. Detective Smith, how are you?

 

18 A. Fine, thank you, sir. How are you?

 

19 Q. You mentioned, Detective, that you were —

 

20 that you’re currently assigned to a unit with the

 

21 Los Angeles Police Department that investigates a

 

22 number of things, and I think you said threats?

 

23 A. Yes.

 

24 Q. Okay. And one of the things you mentioned

 

25 is stalking; is that correct?

 

26 A. That’s correct.

 

27 Q. And do you, in the course of your duties,

 

28 investigate celebrity stalkings? 8239

 

1 A. Yes.

 

2 Q. All right. And many times celebrities, in

 

3 your experience, you find are stalked by fans; is

 

4 that right?

 

5 A. Yes.

 

6 Q. And is this — does this pose a danger to

 

7 the celebrities?

 

8 A. It could, yes.

 

9 Q. So you take those seriously?

 

10 A. Absolutely.

 

11 Q. In fact, somebody may claim to be a fan, and

 

12 they come out —

 

13 MR. ZONEN: I’m going to object as exceeding

 

14 the scope of the direct examination.

 

15 THE COURT: Sustained.

Next, Sanger got Det. Smith to admit that the two commercially available books are NOT illegal to possess, and one of them was sent to Jackson by a fan ten years earlier in 1983! Jackson had a habit of keeping most of the gifts that were sent to him by fans throughout the years:

16 MR. SANGER: All right. Very well.

 

17 Q. Your assignment back in 1993 was working

 

18 with the detectives division in sex crimes; is that

 

19 correct?

 

20 A. Yes.

 

21 Q. That’s Los Angeles Police Department?

 

22 A. Yes.

 

23 Q. So you got a warrant — I say “you.” Your

 

24 department got a warrant to search Mr. Jackson’s

 

25 home in Santa Ynez, in Los Olivos, California; is

 

26 that correct?

 

27 A. That’s correct.

 

28 Q. That’s not within the City of Los Angeles, I 8240

 

1 take it?

 

2 A. No, it is not.

 

3 Q. And you got a warrant issued by a Los

 

4 Angeles judge?

 

5 A. Yes.

 

6 Q. All right. And the people that came with

 

7 you at that time, among others, were fellow Los

 

8 Angeles police officers; is that correct?

 

9 A. Yes.

 

10 Q. And you ended up seizing these books that

 

11 you talked about in the course of that search in

 

12 1993; is that right?

 

13 A. That is correct.

 

14 Q. Now, these two books — I think — are they

 

15 still up there in front of you?

 

16 A. Yes, they are.

 

17 Q. Those two books are not unlawful to possess

 

18 by adults in California; is that correct?

 

19 A. That is correct.

 

20 Q. And do you have any idea how Mr. Jackson

 

21 came into possession of those books or how they

 

22 ended up in this locked file cabinet?

 

23 A. From the inscription in Exhibit No. 842, it

 

24 appears that possibly a fan, somebody named Rhonda,

 

25 possibly gave the book to him. And the other one,

 

26 I do not know.

 

27 MR. SANGER: All right. Your Honor, may I

 

28 approach and retrieve the books? 8241

 

1 THE COURT: Yes.

 

2 MR. SANGER: Thank you.

 

3 Your Honor, I’d like to put the book up on

 

4 the screen, if I may.

 

5 THE COURT: Yes.

 

6 Q. BY MR. SANGER: I’ll put the cover up there,

 

7 first of all. And it says, “The Boy; A Photographic

 

8 Essay,” and this is — this is Exhibit 842, correct?

 

9 A. Yes.

 

10 Q. All right. You referred to the inscription,

 

11 and I’m going to put the inscription up on the

 

12 board. I’m not going to put the whole one up

 

13 because it doesn’t fit yet.

 

14 But in any event, this is on the — I know

 

15 there’s a word for it, but it’s on the first actual

 

16 page of the book, whatever you call it, right inside

 

17 the cover; is that right?

 

18 A. That’s right.

 

19 Q. Okay. And you were — based on this

 

20 inscription, it appeared to be a book that was

 

21 presented to Mr. Jackson, or to his people, by a

 

22 fan; is that correct?

23 A. It appears to be, yes.

 

 

 

24 Q. And then down at the bottom, it looks like

 

 

 

25 it says, “1983,” and that could be “Chicago,” but I

 

 

 

26 don’t know. Or is it something else? What do you

 

 

 

27 think?

 

 

 

28 A. I — it’s really hard to read. It could 8242

 

 

 

1 possibly be “Chicago,” but I’m not certain.

 

 

 

2 Q. But in any event, 1983 is the date?

 

 

 

3 A. Yes.

 

 

 

4 Q. At the time that you did this — that you

 

 

 

5 did this search in 1993, did you determine that Mr.

 

 

 

6 Jackson not only received, but kept a tremendous

 

 

 

7 amount of material from fans that was sent to him?

 

 

 

8 I’m not just talking about books, but just things in

 

 

 

9 general that Mr. Jackson received.

 

 

 

10 Did he seem to have a lot of things that had

 

 

 

11 been sent to him by fans, if you can remember?

 

 

 

12 A. I do recall him — or locating letters,

 

 

 

13 notes, from fans.

 

 

 

14 Q. All right. So even back then, in ‘93, you

 

 

 

15 were — or I shouldn’t say “even.” He had a lot of

 

 

 

16 fans sending him things. That was your

 

 

 

17 understanding as you were doing this search; is that

 

 

 

18 correct?

 

 

 

19 A. Yes.

 

 

 

20 MR. SANGER: All right. Now, with the

 

 

 

21 Court’s permission, I’d like to put up 841. That’s

 

 

 

22 the other book.

 

 

 

23 THE COURT: Yes.

 

 

 

24 MR. SANGER: If I may.

 

 

 

25 Q. And this is the cover. We can’t get the

 

 

 

26 whole thing on at once, but it’s 841 up in the

 

 

 

27 corner, for the record, and it says, “Boys Will Be

 

 

 

28 Boys,” and it has a picture there; right? 8243

 

 

 

1 A. Yes.

 

 

 

2 Q. That’s the cover. And by the way, this is a

 

 

 

3 commercially — both of these are commercially

 

 

 

4 available books; is that correct?

 

 

 

5 A. Yes.

 

 

 

6 Q. Okay. And when you open this book up, it

 

 

 

7 actually says — let’s look right over here. I’m

 

 

 

8 going to try to talk loudly while I’m holding this.

 

 

 

9 It says on the flyleaf, “Book Adventures,

 

 

 

10 Inc.,” and the copyright 1966. Do you see that?

 

 

 

11 A. Yes. Down at the bottom.

 

 

 

12 Q. All right. And then if we look up here, at

 

 

 

13 the top, again the first page — I’m sure somebody

 

 

 

14 who knows books knows the correct word for that.

 

 

 

15 But the very first page, up at the top it says,

 

 

 

16 “OP” — “OP ‘88.” That means “Out of print, ‘88,”

 

 

 

17 does it not? Or do you know?

 

 

 

18 A. I’m not certain what that means.

 

 

 

19 Q. And somebody has written up there, “Very

 

 

 

20 scarce.”

 

 

 

21 A. Yes.

 

 

 

22 Q. Do you see that? That was there on the book

 

 

 

23 when you seized it; is that right?

 

 

 

24 A. Yes, it was.

 

 

 

25 Q. And there’s some initials that look like

 

 

 

26 “MJ” up in the upper right-hand corner?

 

 

 

27 A. Yes.

 

Before ending his cross-examination, Sanger asked Det. Smith to recite to the jury Jackson’s handwritten inscription in the book:

 

28 Q. Now, could you read the inscription for the 8244

 

 

 

1 record, please? And I’ll move it up as you go

 

 

 

2 along.

 

 

 

3 A. “Look at the true spirit of happiness and

 

 

 

4 joy in the boys’ faces. This is the spirit of

 

 

 

5 boyhood, a life I’ve never had and will always dream

 

 

 

6 of. This is the life I want for my children. MJ.”

 

 

 

7 MR. SANGER: Thank you. I have no further

 

 

 

8 questions.

 

 

 

9 MR. ZONEN: I have no further questions.

 

 

 

10 THE COURT: Thank you. You may step down.

 

 

 

11 THE WITNESS: Thank you.

 

The next witness, journalist Ian Drew, required a pre-trial hearing outside the presence of the jury.

 

12 MR. ZONEN: Your Honor, the next witness

 

 

 

13 requires a pre-trial hearing.

 

 

 

14 THE COURT: (To the jury) All right. I’m

 

 

 

15 going to excuse you again. We have to have another

 

 

 

16 hearing before this witness may be presented.

 

 

 

17 Is the witness here now?

 

 

 

18 THE BAILIFF: The Judge is addressing you.

 

 

 

19 MR. ZONEN: I’m sorry, Your Honor. I’m not

 

 

 

20 hearing well today.

 

 

 

21 THE COURT: Is the witness here now?

 

 

 

22 MR. ZONEN: Yes, the witness is here.

 

 

 

23

 

 

 

24 (The following proceedings were held in

 

 

 

25 open court outside the presence and hearing of the

 

 

 

26 jury:)

 

Under direct examination, Zonen attempted to question Drew about his relationship with Schaffel, Konitzer, and Weisner, but Drew’s attorney objected to this line of questioning under the Journalist Shield Law, and Judge Melville sustained her objection. Zonen moved on to question Drew about an interview that he was supposed to conduct with the Arvizo family, in which they were to discuss how Jackson did NOT do any inappropriate with the family!

 

28 MR. ZONEN: May his counsel sit at the 8245

 

1 counsel table?

 

 

 

2 THE COURT: Yes, for this hearing.

 

 

 

3 Please remain standing and raise your right

 

 

 

4 hand. Face the clerk over here.

 

 

 

5

 

 

 

6 IAN DREW

 

 

 

7 Having been sworn, testified as follows:

 

 

 

8

 

 

 

9 THE WITNESS: I do.

 

 

 

10 THE CLERK: Please be seated. State and

 

 

 

11 spell your name for the record.

 

 

 

12 THE WITNESS: Ian, I-a-n. Last name is Drew,

 

 

 

13 D-r-e-w.

 

 

 

14 THE CLERK: Thank you.

 

 

 

15 THE COURT: Counsel?

 

 

 

16 MR. ZONEN: May I proceed?

 

 

 

17 THE COURT: No, just a moment. I’m sorry, I

 

 

 

18 want to interrupt you.

 

 

 

19 I’m not sure that I made that finding on the

 

 

 

20 record or at sidebar on Exhibits 841 or 842, both of

 

 

 

21 them, but I previously had reviewed the books and

 

 

 

22 made a finding, preliminary finding, that there were

 

 

 

23 photographs within each book that could be

 

 

 

24 determined to be sexually explicit photographs by a

 

 

 

25 trier of fact, and then I made a finding on — under

 

 

 

26 352, which I know is on the record.

 

 

 

27 Now you may proceed with this witness.

 

 

 

28 MR. ZONEN: Thank you, Your Honor. 8246

 

 

 

1 DIRECT EXAMINATION

 

 

 

2 BY MR. ZONEN:

 

 

 

3 Q. Mr. Drew, good morning.

 

 

 

4 A. Good morning.

 

 

 

5 Q. Sir, what is your current occupation?

 

 

 

6 A. Editor at US Weekly Magazine.

 

 

 

7 Q. What does that mean? What do you do?

 

 

 

8 A. Everything from reporting on stories, to

 

 

 

9 coordinating stories, to a wide array of covering

 

 

 

10 the celebrity news.

 

 

 

11 Q. How long have you worked in that capacity?

 

 

 

12 A. Um, about two and a half years.

 

 

 

13 Q. And how long with US Magazine specifically?

 

 

 

14 A. Oh, no. At US Magazine, two and a half

 

 

 

15 years, excuse me. And in the capacity about three

 

 

 

16 and a half years.

 

 

 

17 Q. What is your — are you a journalist?

 

 

 

18 A. Yes.

 

 

 

19 Q. What is your training and experience as a

 

 

 

20 journalist?

 

 

 

21 A. I have about three and a half years

 

 

 

22 experience. And I started working at a small

 

 

 

23 newspaper and then moved up to different

 

 

 

24 publications, and have been at US Weekly the

 

 

 

25 longest.

 

 

 

26 Q. If I can direct your attention back to

 

 

 

27 February of the year 2003. Were you working with or

 

 

 

28 for Michael Jackson at that time? 8247

 

 

 

1 A. No.

 

 

 

2 Q. Were you working for anybody who was working

 

 

 

3 with or for Michael Jackson?

 

 

 

4 A. No.

 

 

 

5 Q. All right. Did you have any association

 

 

 

6 with either Marc Schaffel or Ronald Konitzer or

 

 

 

7 Dieter Weizner?

 

 

 

8 MS. SAGER: I’m going to object, Your Honor,

 

 

 

9 to the extent that’s calling for unpublished

 

 

 

10 information. I think the question is vague.

 

 

 

11 THE COURT: They can’t hear you. Is your

 

 

 

12 microphone on?

 

 

 

13 MS. SAGER: Sorry, Your Honor.

 

 

 

14 I’m objecting to the question as calling for

 

 

 

15 unpublished information and as vague.

 

 

 

16 THE COURT: Sustained on both grounds.

 

 

 

17 Q. BY MR. ZONEN: Were you called upon to

 

 

 

18 conduct an interview of a family, including a mother

 

 

 

19 of children by the name of Janet Arvizo?

 

 

 

20 A. No.

 

 

 

21 Q. Were you expecting to do an interview with

 

 

 

22 Janet Arvizo?

 

 

 

23 A. Yes.

 

 

 

24 Q. Did that interview ever take place?

 

 

 

25 A. No.

26 Q. Who was it that was coordinating that

 

27 interview with you?

 

28 A. Ronald Konitzer and Marc Schaffel. 8248

 

1 Q. Did you know either Ronald Konitzer or Marc

 

2 Schaffel prior to that day?

 

3 A. Yes.

 

4 Q. What is it that you were supposed to be

 

5 doing with regards to this interview?

 

6 A. Interviewing them for a print magazine.

 

7 Q. Do you know what the subject matter was

 

8 going to be of that interview?

 

9 A. How Mr. Jackson did not do anything

 

10 inappropriate with the family.

 

11 Q. Who is it who retained you to do that?

 

12 A. Marc Schaffel and Ronald Konitzer.

 

13 Q. Were you expecting to get paid for that

 

14 interview?

 

15 A. I did not get paid through them. I got paid

 

16 through a magazine.

 

17 Q. All right.

 

18 A. I was on staff at a magazine at the time.

 

19 Q. All right. Was this an article that would

 

20 appear in a magazine?

 

21 A. Uh-huh.

 

22 Q. Would it include photographs?

 

23 A. That was hoped for.

 

24 MS. SAGER: Object to the extent it’s

 

25 unpublished information, Your Honor, since there was

 

26 not an interview published.

 

27 THE COURT: Sustained.

 

28 Q. BY MR. ZONEN: Did you ever meet with Janet 8249

 

1 Arvizo or her family?

 

2 MS. SAGER: Same objection, Your Honor.

 

3 THE COURT: Sustained.

 

4 Q. BY MR. ZONEN: Did you know who they were?

 

5 MS. SAGER: Same objection, Your Honor, to

 

6 the extent that nothing has been published on that

 

7 subject.

 

8 THE COURT: Sustained.

 

9 This is — all objections are under the

 

10 shield law at this time?

 

11 MS. SAGER: Yes, Your Honor.

 

12 Q. BY MR. ZONEN: Did you have a conversation

 

13 with Ronald Konitzer as to whether or not that

 

14 interview would take place?

 

15 A. Yes.

 

16 Q. What did Mr. Konitzer tell you?

 

17 MS. SAGER: And, Your Honor, I’ll only

 

18 object to the extent that if it includes information

 

19 that has not been published, that the witness should

 

20 not be required to reveal anything unpublished. To

 

21 the extent that there has been published information

 

22 on that, we are not objecting.

 

23 MR. ZONEN: And let me preface the question

 

24 with one other….

Drew discussed his cancelled Arvizo interview with Diane Dimond, who was with Court TV at that time. He was only able to divulge to the jury what he already told Dimond in 2003, and that was that the Arvizo interview was cancelled because they were “unavailable” because Konitzer told him that they had “disappeared” from Neverland in the middle of the night.

There was a long discussion of the exact words that Drew used in his interview, because Zonen wanted to know if Konitzer’s exact words were “disappeared” or “escaped” from Neverland; Drew wasn’t sure, and he didn’t have a transcript of his interview with Dimond available.

Judge Melville gave Zonen an opportunity to clearly explain why he thought the distinction between “disappeared” and “escaped” from Neverland was so significant, and Zonen explained that “escaping” from Neverland was consistent with the family’s claims of being held at Neverland against their will.

Sager made sure to specify that Drew’s cancelled interview had nothing whatsoever to do with the rebuttal interview:

25 Q. Mr. Drew, did you appear on national

 

26 television and discuss this very topic?

 

27 A. I believe so.

 

28 Q. Was the national presentation through Court 8250

 

1 TV?

 

2 A. I believe so.

 

3 Q. Were you interviewed by someone by the name

 

4 of Diane Dimond?

 

5 A. I was.

 

6 Q. Have you ever seen that presentation?

 

7 A. Yes.

 

8 Q. And you did recognize yourself as well as

 

9 Miss Dimond?

 

10 A. Yes, I did.

 

11 Q. And did you discuss the subject matter of

 

12 this very interview on national television?

 

13 A. I believe so. I believe so. Again, I do so

 

14 many television interviews as part of my job, so

 

15 remembering what I said in each one is a little

 

16 difficult, but I believe so.

 

17 Q. All right. Did you, in fact, discuss the

 

18 reason why this interview was not going to take

 

19 place?

 

20 A. Yes.

 

21 Q. And what was the reason that the interview

 

22 would not take place?

 

23 MS. SAGER: And again, Your Honor, I will

 

24 only object to the extent that there’s any

 

25 information that has not been published. But to the

 

26 extent Mr. Drew has revealed any portion of that on

 

27 national television, we’re not objecting.

 

28 THE COURT: So can I take this as an 8251

 

1 instruction by yourself to your witness to only

 

2 divulge material that he’s previously divulged on

 

3 television?

 

4 MS. SAGER: Yes, Your Honor. Thank you.

 

5 THE COURT: I’ll accept that.

 

6 Q. BY MR. ZONEN: Can you answer the question?

 

7 A. I was told that the family was unavailable.

 

8 Q. And what does “unavailable” mean?

 

9 A. I was told that they had disappeared from

 

10 the ranch in the middle of the night.

 

11 Q. And who had told you that?

 

12 A. Ronald Konitzer.

 

13 Q. In fact, he used the word “escaped,” didn’t

 

14 he?

 

15 MS. SAGER: Same objection, Your Honor.

 

16 MR. MESEREAU: Objection; leading.

 

17 THE COURT: Overruled.

 

18 MS. SAGER: Your Honor, we would object to

 

19 the extent that the word — whatever words were used

 

20 in the interview are the words that were used, and

 

21 any other words should be unpublished information.

 

22 MR. ZONEN: The objection was overruled?

 

23 THE COURT: Well, I’m to take that as an

 

24 instruction to the witness, because the objection

 

25 is — it’s not really an objection. She’s saying,

 

26 “If something happened, I object. If not, I don’t.”

 

27 So I can’t —

 

28 MS. SAGER: I understand, Your Honor. 8252

 

1 THE COURT: I could rule if it happened,

 

2 okay? And if not, no.

 

3 I think the better way is for you to

 

4 instruct your witness. And he knows, to the best of

 

5 his recollection, what he’s said and what he hasn’t

 

6 said. And then if there’s an issue there, we’ll

 

7 deal with it.

 

8 MS. SAGER: Thank you, Your Honor.

 

9 And I would instruct Mr. Drew not to answer

 

10 with respect to any words that were not used in his

 

11 discussion of what Mr. Konitzer said.

 

12 THE COURT: Do you have any idea what the

 

13 question was you’re supposed to answer?

 

14 THE WITNESS: Could you rephrase, please?

 

15 Thank you.

 

16 Q. BY MR. ZONEN: What exactly did Ronald

 

17 Konitzer tell you about the disappearance of the

 

18 Arvizo family?

 

19 MS. SAGER: Again, Your Honor, with the same

 

20 instruction to the witness, only to answer as to

 

21 what he said on national television on that subject.

 

22 THE COURT: Can we just — can you give him

 

23 that standing instruction that he would tell you or

 

24 indicate to you, or us, if we’re getting into an

 

25 area he hasn’t discussed, so you don’t have to keep

 

26 interjecting yourself?

 

27 MS. SAGER: That’s fine, Your Honor.

 

28 I don’t know that Mr. Drew has a copy of the 8253

 

1 transcript of the interview in front of him. And

 

2 that’s the only reason I’m issuing this same

 

3 objection.

 

4 THE COURT: Go ahead.

 

5 MR. ZONEN: All right.

 

6 MR. MESEREAU: Excuse me.

 

7 Your Honor, am I allowed to participate in

 

8 this area of objections? I’m not sure.

 

9 THE COURT: You’re not sure?

 

10 MR. MESEREAU: Well, I think I can. But I

 

11 know you’re trying to determine what’s the scope of

 

12 the privilege.

 

13 I’m objecting to what he’s saying for other

 

14 reasons. And I’m going to object on hearsay as far

 

15 as what he said on an interview.

 

16 MR. ZONEN: To the extent that they are

 

17 statements from the unindicted co-conspirator, Mr.

 

18 Konitzer.

 

19 THE COURT: Well, I think — he’s asking me a

 

20 question.

 

21 Yes, you can object, because what we’re

 

22 testing here is what the jury will hear, of course,

 

23 and then what you can cross-examine on. So if you

24 object to something and it doesn’t come in, there’s

 

25 not an issue about cross-examination.

 

26 MR. MESEREAU: Okay. Thank you.

 

27 I’m objecting on hearsay.

 

28 MR. ZONEN: The answer is it’s a statement 8254

 

1 in furtherance of a conspiracy from one of the

 

2 unindicted co-conspirators, Mr. Konitzer.

 

3 THE COURT: I don’t know what the question

 

4 was now.

 

5 Q. BY MR. ZONEN: What specifically did he say

 

6 with regard to the disappearance of this family?

 

7 Would it be helpful if the witness was given

 

8 a transcript of the television program? We can

 

9 do that.

 

10 THE COURT: Well, you have to ask the witness

 

11 that question. That’s the question that, would it

 

12 refresh your recollection if —

 

13 MR. ZONEN: I don’t believe he’s — well —

 

14 THE WITNESS: It’s a simple enough question,

 

15 I think.

 

16 I was told that they had disappeared; that

 

17 they couldn’t keep them there anymore.

 

18 MR. MESEREAU: Objection. Objection.

 

19 THE WITNESS: And —

 

20 THE COURT: Just a moment.

 

21 Let him complete it.

 

22 THE WITNESS: And I believe the word

 

23 “escaped” was used, but again, I don’t — I can’t

 

24 say word for word. But from — the best of my

 

25 recollection, yes, I heard the word “escaped.”

 

26 THE COURT: Okay. Now, I made you wait, but

 

27 you have an objection of hearsay.

 

28 MR. MESEREAU: I’m objecting to double 8255

 

1 hearsay. What the prosecutor is asking is, “What

 

2 did you say in an interview about what somebody else

 

3 said?”

 

4 MR. ZONEN: No, I did not.

 

5 THE COURT: He’s asking what Mr. —

 

6 MR. ZONEN: Konitzer.

 

7 THE COURT: — Konitzer said. That is

 

8 hearsay. Now, the question is, was it in the

 

9 furtherance of the conspiracy?

 

10 I don’t see that it is, so I’ll sustain the

 

11 objection.

 

12 MR. ZONEN: I ask to make an offer of proof.

 

13 THE COURT: Yes, you may.

 

14 MR. ZONEN: This was — he was prepared to

 

15 do the interview of the family, the interview that

 

16 ultimately was done on the evening of the 19th into

 

17 the morning hours of the 20th by a different

 

18 interviewer, and this was going to be done in

 

19 furtherance of the promotion of the rebuttal film,

 

20 the portion that was to be contained in the Maury

 

21 Povich film. The family took off. That was in

 

22 conjunction with the movement off of Neverland Ranch

 

23 about that time.

 

24 It was Mr. Konitzer who was attempting to

 

25 arrange this, this filming, who then called him and

 

26 notified him that this filming would not take place

 

27 because the family had escaped. It’s a reflection

 

28 of the state of mind of the co-conspirator; that the 8256

 

1 family acted in conformity with the testimony as we

 

2 presented it.

 

3 So the objection — or the exception to

 

4 hearsay would be both a statement in furtherance of

 

5 conspiracy, and a statement consistent with the

 

6 state of mind of the co-conspirator.

 

7 THE COURT: I don’t get that.

 

8 If the information is — I mean, all of the

 

9 things you said could be in furtherance of the

 

10 conspiracy, except we get to this one statement,

 

11 which is, basically, “Where’s the family?” “Well,

 

12 they escaped.”

 

13 That is — that’s not in furtherance of the

 

14 conspiracy. If anything, it might reveal the

 

15 conspiracy.

 

16 MR. ZONEN: The fact that he says they

 

17 escaped, they disappeared in the middle of the

 

18 night, reflects, as to Mr. Konitzer, a state of mind

 

19 consistent with the fact that this family was being

 

20 kept there against their will, or at least as to the

 

21 mother. So that would be an admission on his part

 

22 that the family, in fact, was being kept against

 

23 their will.

 

24 And to the extent that that statement was

 

25 made during the course of the conspiracy, which it

 

26 was, it was mid-February, then that statement would

 

27 be an adoptive admission as to each of the

 

28 unindicted co-conspirators, including the defendant. 8257

 

1 THE COURT: All right. You just changed

 

2 horses in mid-stream.

 

3 MR. ZONEN: I sure did.

 

4 THE COURT: Do you want to address the —

 

5 MR. MESEREAU: Yes, Your Honor.

 

6 I mean, first of all, I think the Court has

 

7 an obligation to take into account the whole context

 

8 of the statement, when it was made, and the purpose

 

9 that apparently it was made for, in deciding whether

 

10 it might even be reasonably construed to be in

 

11 furtherance of a conspiracy.

 

12 THE COURT: I think he conceded suddenly that

 

13 it’s not in furtherance. Now he’s asking that it

 

14 come in as an admission, some sort of admission.

 

15 MR. MESEREAU: No, it’s a hearsay statement

 

16 by someone who’s never been charged with a crime,

 

17 who isn’t in the courtroom. It’s not an admission.

 

18 They didn’t even charge any of these people, except

 

19 Mr. Jackson.

 

20 THE COURT: Don’t — wait, wait. Talk to me.

 

21 MR. MESEREAU: It’s not an admission.

 

22 That’s just grabbing for something that doesn’t

 

23 exist. The only way it could possibly get in would

 

24 be an exception to the hearsay rule, which the Court

 

25 has, I think, found does not exist.

 

26 MR. ZONEN: If I could respond very briefly,

 

27 Your Honor.

 

28 Konitzer’s state of mind certainly is an 8258

 

1 issue in this case as one of the unindicted

 

2 co-conspirators named specifically in the Indictment

 

3 returned by the grand jury. To that extent it would

 

4 be relevant.

 

5 But it is also admissible as either an

 

6 admission, given the fact that he is an unindicted

 

7 but named co-conspirator, or a declaration against

 

8 interest, specifically penal interest, if we were to

 

9 consider him as an unnamed party to this action.

 

10 MR. MESEREAU: Your Honor, again, he’s not

 

11 here. He’s not charged. He’s not present. He’s

 

12 not testifying. We can’t cross-examine him. It’s

 

13 not an admission. And it’s clear hearsay. If it

 

14 can’t come in under alleged co-conspirator hearsay

 

15 by someone who’s never even been charged with a

 

16 conspiracy, it just can’t come in.

 

17 THE COURT: Well — just a minute. You know

 

18 that’s not the law. The law is that statements by

 

19 co-conspirators, whether they’re here or with us

 

20 today or not, can come in. That’s not the issue.

 

21 That’s — he’s — you’re not addressing the issue.

 

22 But just give me a moment to think here.

 

23 MR. MESEREAU: Your Honor, if there was a

 

24 co —

 

25 THE COURT: Just a moment, please.

 

26 Okay. I think what you were going to say

 

27 is, if it were a co-defendant and one co-defendant’s

 

28 admission was attempted to be introduced in a trial 8259

 

1 of both of them, that it couldn’t be introduced in

 

2 front of the jury. And I agree with you, if it were

 

3 any other crime but conspiracy.

 

4 MR. MESEREAU: But, Your Honor, I don’t

 

5 believe it would come in as an admission. I believe

 

6 it would come in under co-conspirator hearsay or it

 

7 couldn’t come in.

 

8 THE COURT: They either are trying to help

 

9 you or they can’t hear.

 

10 (Laughter.)

 

11 MR. MESEREAU: Oh.

 

12 MR. ZONEN: I would object to the first of

 

13 those choices.

 

14 MR. MESEREAU: What I said to Your Honor is

 

15 in that event, it would not still come in as an

 

16 admission. It would have to come in as an exception

 

17 to the hearsay rule and be deemed by the Court

 

18 co-conspirator hearsay.

 

19 THE COURT: Well —

 

20 MR. ZONEN: Can I ask —

 

21 THE COURT: I’m going to —

 

22 MR. ZONEN: Can I ask this one question?

 

23 If, in fact, among the overt acts — if, in

 

24 fact, among the overt acts would be acts of this

 

25 family leaving Neverland Ranch, and to the extent

 

26 that this person is one of the unindicted

 

27 co-conspirators, and the overt acts include their

28 efforts to return the family to the ranch and to 8260

 

1 return the family to this video presentation, then

 

2 his statement that they had fled the ranch and

 

3 escaped would certainly be statements in furtherance

 

4 of the conspiracy in terms of their efforts to renew

 

5 their activities to bring them back onto the ranch.

 

6 It would also be an admission on the part of

 

7 a co-conspirator to the extent of what they were

 

8 trying to do, and it would be a reflection of that

 

9 party’s state of mind that that’s what they wanted

 

10 to do, was keep them on the ranch until the point

 

11 that they were able to do this particular interview,

 

12 and thereafter to Brazil.

 

13 MR. MESEREAU: I think I said what I can

 

14 say, Your Honor. I don’t think it can come in in

 

15 either event.

 

16 MR. ZONEN: And I’ll submit as well.

 

17 MS. SAGER: And, Your Honor, we really don’t

 

18 have a dog in this fight. I want to make sure the

 

19 record is clear that —

 

20 THE COURT: They can’t hear you, so you have

 

21 to speak into the microphone.

 

22 MS. SAGER: We don’t have a dog in this

 

23 fight, but I just want to make sure the record is

 

24 clear as to what this witness testified about was

 

25 not the video interview of the family. He was a

 

26 magazine reporter who was asking for an interview of

 

27 the family.

 

28 And I don’t want it to be confused with some 8261

 

1 conspiracy theory about what was or wasn’t done with

 

2 the video and what they were doing with that. That

 

3 is not what Mr. —

 

4 THE COURT: I’m not — you have to have been

 

5 here for 49 days or so.

 

6 (Laughter.)

 

7 MS. SAGER: I understand, Your Honor.

 

8 THE COURT: That’s not a problem.

 

9 MR. ZONEN: Where does that metaphor come

 

10 from? This is the second Los Angeles lawyer talking

 

11 about dogs and fights.

 

12 THE COURT: I don’t know. I’ve used it

 

13 before. But after hearing someone chastised, I’ve

 

14 decided I’ll never use it again.

 

15 I think it’s admissible as to the state of

 

16 mind of the co-conspirator, so I’m going to allow

 

17 it.

 

18 MR. ZONEN: Thank you. I have no further

 

19 questions.

 

20 MR. MESEREAU: May I cross-examine, Your

 

21 Honor?

 

22 THE COURT: Yes.

 

23 MR. MESEREAU: Okay. Thank you.

 

To be continued: https://michaeljacksonvindication2.wordpress.com/2014/06/15/april-29th-2005-trial-analysis-rosibel-ferrufino-smith-craig-bonner-harry-koons-and-ian-drew-part-3-of-3/#more-11310   

 

 

 

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2 Comments leave one →
  1. March 26, 2017 4:50 pm

    Salvo las gratuidades aceptadas por cada clínica, serán de cuenta del asegurado, el pago de los honorarios profesionales correspondientes a la clínica
    dental por los servicios y tratamientos dentales que
    esta le haya prestado. https://oceanicstoreroo9.wordpress.com/2017/02/22/article-blanqueamiento-dental-14/

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  1. April 29th, 2005 Trial Analysis: Rosibel Ferrufino Smith, Craig Bonner, Harry Koons, and Ian Drew, Part 1 of 3 | Michael Jackson Vindication 2.0

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