April 29th, 2005 Trial Analysis: Rosibel Ferrufino Smith, Craig Bonner, Harry Koons, and Ian Drew, Part 3 of 3
Under cross examination, Mesereau questioned Drew about an interview he gave to Lt. Klapakis on August 4th, 2004 outside of his office. Sager attempted to object to her client being asked about what exactly he disclosed to police during this interview under the Journalist Shield Law, but Mesereau objected because Drew knew that whatever he told police would be disseminated through the media, and thus not protected from the Journalist Shield Law. This led to a contentious debate between the two attorneys, and the central issue at hand was Mesereau’s assertion that Sager was trying to preclude any type of cross-examination of Drew’s relationships with Schaffel, Konitzer, and Weisner, which he freely articulated to police during his interview. Drew had a falling out with Schaffel after he was unable to secure a piece of the multi-million dollar contract that Schaffel had entered into with Fox for the rights to air the Take Two documentary:
26 BY MR. MESEREAU:
27 Q. Good morning, Mr. Drew.
28 A. Good morning. How are you? 8262
1 Q. Fine, thank you.
2 You gave an interview to Lieutenant Klapakis
3 and another Santa Barbara sheriff named Robel on
4 August 4th, 2004, correct?
5 A. Yes.
6 Q. Do you know how long that interview was?
7 A. No. I didn’t think it was that long, but it
8 was probably a lot longer than it was.
9 Q. You waived privileges when you gave that
10 interview, correct?
11 MS. SAGER: This is a question that’s a
12 legal question, not a question for this witness as
13 to whether he waived privileges. He did not have
14 counsel. He had not been advised of rights.
15 THE COURT: Sustained.
16 Q. BY MR. MESEREAU: You gave that interview
17 freely and voluntarily, correct?
18 MS. SAGER: Same objections, Your Honor. He
19 was being served with a subpoena, had no counsel.
20 THE COURT: Just a moment here.
21 All right. As to the objection that he had
22 no counsel present, that’s overruled.
23 The question pending, which you may answer,
24 is, did you give that interview freely and
26 THE WITNESS: I guess. I didn’t know it was
27 an interview, and I didn’t know that it was being
28 documented in any way. 8263
1 Q. BY MR. MESEREAU: You were not served with a
2 subpoena for purposes of that interview, were you?
3 A. I don’t know why I was served with a
4 subpoena. I just got it in the mail.
5 Q. You did not attend that interview because
6 you were subpoenaed to do so, right?
7 MR. ZONEN: Objection.
8 THE COURT: Maybe he doesn’t know which
9 interview you’re talking about.
10 THE WITNESS: I didn’t think I was attending
11 any interview.
12 Q. BY MR. MESEREAU: Did you interview on
13 August 4th, 2004, with Lieutenant Klapakis and
14 Sergeant Robel of the Santa Barbara Sheriff’s
16 A. I had a conversation with them.
17 Q. Where did the conversation take place?
18 A. Outside of my office.
19 Q. And did those two officers meet you outside
20 of your office?
21 A. They did.
22 Q. Did you speak to them?
23 A. I did.
24 Q. You were not subpoenaed to speak to them,
25 were you?
26 A. No.
27 Q. You spoke to them about facts concerning
28 this investigation, true? 8264
1 A. Yes.
2 Q. You told them you were a freelance
3 journalist who was currently working for US Weekly
4 Magazine, right?
5 A. That’s not true. I’ve only worked as a
6 staffer at US Weekly.
7 Q. Did you tell them you were a journalist in
8 that interview?
9 A. Yes.
10 Q. Did you tell them you were doing some work
11 for US Weekly Magazine?
12 A. Yes.
13 Q. After you told them you were a journalist,
14 you continued to interview with them, right?
15 A. Yes.
16 Q. You gave them statements about Marc
17 Schaffel, true?
18 MS. SAGER: Your Honor, to the extent that
19 this is unpublished information that Mr. Drew has
20 gathered in the course of his job as a journalist,
21 I would still assert the shield law, which applies
22 unless he has published information. And the
23 statute and the Constitution specifically say,
24 “disseminated information to the public.” And I’m
26 So any discussion he may have had with law
27 enforcement officials would not fall within the
28 scope of published information as it’s defined in 8265
1 Article I, Section 2(b).
2 MR. MESEREAU: If I may respond, Your Honor.
3 THE COURT: Yes.
4 MR. MESEREAU: He gave a free, voluntary
5 interview with two sheriffs. He knew they were
6 taking notes. He knew they were going to make a
7 report. He knew it was part of this investigation.
8 He knew that the reports were likely to be
10 They have been circulated. They are not
11 under any particular special form of privilege.
12 They have been produced to the defense. They are
13 available to use at trial. He knew the information
14 he gave could be used in the investigation.
15 THE WITNESS: That’s not true. I didn’t
16 know any of that. I knew some of that.
17 MS. SAGER: Ian.
18 Actually, I was going to object, Your Honor,
19 but I was going to let Mr. Mesereau finish first.
20 THE WITNESS: Okay.
21 MR. MESEREAU: He gave extensive information
22 about Schaffel, Konitzer, his discussions with them,
23 his perceptions of them. And it’s very clear from
24 the interview he knew exactly what he was doing.
25 MS. SAGER: And, Your Honor, I would point
26 out two things. One is Mr. Mesereau, with due
27 respect, has not established any of the things that
28 he just said as to what Mr. Drew knew or didn’t 8266
1 know. He’s merely asserted them.
2 Second, we’re talking about a waiver of a
3 constitutional right, First Amendment right and
4 state constitutional right. And I don’t think Mr.
5 Mesereau has established either that Mr. Drew
6 understood or had any reason to know when he was in
7 that conversation that there was later going to be a
8 position taken that, by talking to the police
9 officers at all, that he was waiving his
10 constitutional rights.
11 THE COURT: Are there any cases on this
12 scenario where a person talks freely to the law
13 enforcement and then claims the shield law in court?
14 MS. SAGER: I don’t know of a case in
15 California, Your Honor, that deals with this
16 particular issue.
17 The Playboy case, which we cited in our
18 papers, does deal with the difference between
19 revealing information publicly and any other
20 information that may be related that’s not revealed
21 publicly, and they draw a very strict line. The
22 language of Article I, 2(b), talks about information
23 that is disseminated to the public. Everything else
24 is defined as unpublished information.
25 THE COURT: What about — I didn’t read the
26 Playboy case. What was the disclosure in the
27 Playboy case?
28 MS. SAGER: In the Playboy case, there was 8267
1 an interview published with Cheech and Chong that
2 had some information that they had given during the
3 course of an interview with a Playboy —
4 THE COURT: But nobody understood what they
7 MS. SAGER: Everybody bought it for the
8 article, too.
10 MS. SAGER: The argument was made, in
11 subpoenaing all of the information from Playboy,
12 that they had already revealed, in fact, what was
13 said in the interview because they wrote an article
14 about it.
15 And the Court of Appeal in the Second
16 Appellate District said only what is actually
17 revealed in the article disseminated to the public
18 has been revealed, even though there were
19 discussions with Mr. Cheech and Mr. Chong, even
20 though there was some information published.
21 THE COURT: Are you familiar with that case,
23 MR. MESEREAU: I am not, Your Honor. But I
24 would — I haven’t completed my examination of him
25 yet, so I don’t think — I think it’s rather
26 premature to conclude we can’t establish that he
27 didn’t know what he was doing or didn’t know he
28 was – 8268
1 THE COURT: The question, though, is what
2 questions he has to answer right now while you’re
3 trying to complete your examination. That’s the
4 problem. And —
5 MR. MESEREAU: Well, Your Honor, if I can’t
6 cross-examine him on the issues he wants to testify
7 on direct about, then I don’t think he should be
8 allowed to testify as a witness.
9 MS. SAGER: And, Your Honor, I’d only point
10 out that we did not brief the issue of waiver,
11 because it did not come up, but there’s certainly a
12 long line of cases about the waiver of
13 constitutional rights needs to be knowing, not
14 simply a voluntary conversation, but a knowing
15 waiver of your rights.
16 And if Mr. Drew is asked, I expect he could
17 answer the question as to whether he knew and
18 understood that, by any conversation he had with
19 these officers, he was waiving all rights he might
20 have under the California shield law and the
22 THE WITNESS: Can I actually say, I was told
23 by the officers and I actually had the understanding
24 that —
25 THE COURT: Just a moment.
26 THE WITNESS: All right.
27 THE COURT: The way we have to do this is we
28 rely on your attorney to help – 8269
1 THE WITNESS: Okay.
2 THE COURT: — what she wants to bring out.
3 You — that’s the — you have a very competent
4 attorney, so I think you should —
5 MS. SAGER: Thank you, Your Honor.
6 THE WITNESS: Thank you.
7 MS. SAGER: And I just would add, Your
8 Honor, that I don’t disagree with Mr. Mesereau about
9 whether Mr. Drew should have to testify at all. I
10 do think getting into cross-examination will lead
11 into areas that are covered by the privilege, which
12 is the reason we put that in our brief. It is a
13 problem when you have reporters called as witnesses,
14 because even if one side tries to limit what they’re
15 asking to published information, it is inevitable
16 the cross-examiner will attempt to get into other
17 areas that are not published and that do delve into
18 reporters’ constitutionally protected information.
19 MR. MESEREAU: If I may, Your Honor.
20 THE COURT: Yes.
21 MR. MESEREAU: There is information in the
22 police reports that suggests that it was the
23 conclusion of the investigating sheriffs that Mr.
24 Drew has been a business associate of Mr. Schaffel.
25 The Court already knows, because it’s in
26 evidence, that he did conduct an interview of Debbie
27 Rowe at Mr. Schaffel’s residence, presumably at the
28 behest of Mr. Schaffel. And there is considerable 8270
1 evidence in the police reports that he has
2 relationships with Konitzer and others.
3 Now, if he’s going to be called to testify
4 to what Mr. Konitzer says to him, it would terribly
5 prejudice our ability to defend if we couldn’t
6 extensively cross-examine on veracity, on bias, on a
7 motive to make a statement for a particular reason,
8 and also his relationship with these people. If we
9 can’t do that, he should be precluded from
11 MS. SAGER: And the problem again, Your
12 Honor, is journalists have relationships with a
13 number of people. They may be getting information
14 from a lot of different sources. And the fact that
15 they get information from people that they may later
16 want to publish, that’s something that is
17 tremendously protected under the First Amendment.
18 And to allow counsel to cross-examine into
19 what information he may or may not have gotten from
20 people who may have been confidential sources, may
21 have been on-the-record sources but were not ever
22 published, really opens up the privilege widely, and
23 for something that in this case, frankly, is a
24 tangential issue.
25 And there’s some question about whether this
26 particular statement has any relevance here, given
27 that I don’t believe it’s disputed that the family
28 left when they left, why they left. And the 8271
1 circumstances of that, are not within this witness’s
2 personal knowledge.
3 So what his impressions were, what he
4 interpreted the remark to mean is not something that
5 would be admissible. So the remark itself that they
6 left is really not all that important compared to
7 the constitutional issues.
8 THE COURT: Actually, the substance of what
9 he said is important. That’s not a good argument.
10 But —
11 MR. MESEREAU: If the Court will permit,
12 Your Honor, could we have a few minutes to try to
13 research that case? Because I’m not —
14 THE COURT: The Playboy case?
15 MR. MESEREAU: Yes.
16 THE COURT: Yeah, it wouldn’t hurt for me to
17 look at it.
18 MR. ZONEN: Do we need the actual evidence
19 from that case?
20 THE COURT: Let’s —
21 MS. SAGER: As I said, Your Honor, we did
22 not brief the issue of waiver extensively, so we’re
23 happy to do that for the Court if that’s going to be
24 an issue that’s —
25 THE COURT: That might not be necessary if
26 each of us have a chance to look at the case.
27 Let’s see. The next recess is scheduled
28 for — I don’t want to make the same mistake I made 8272
1 earlier, so why don’t we just take our 11:30 recess,
2 and then everybody who doesn’t have to read cases
3 can eat. Okay? And we’ll come back at the end of
4 our 11:30 recess.
5 (Recess taken.)
6 THE COURT: All right. You wanted time to
7 look at that case?
8 MR. MESEREAU: I did look at it, Your Honor.
9 It deals primarily with civil matters, obviously.
10 And I think —
11 THE BAILIFF: Can you turn your microphone
12 on, please?
13 MR. MESEREAU: Pardon me.
14 I did look at the case, Your Honor, and I
15 believe it clearly deals with civil matters. I
16 think what the Court in our discussion has
17 identified are really three issues to be analyzed.
18 The Court did analyze the first issue, and
19 that had to do with the question of whether this was
20 admissible or not. We did do a little bit of
21 research. I don’t know if the Court will allow me
22 to even address that again, or if you would, I would
23 refer the Court to a local case called Saling, which
24 holds that, “Although it has been held that
25 statements which merely narrate past events are not
26 to be deemed to be made in furtherance of a
27 conspiracy…,” and then it does say that the Court
28 has to do a balancing analysis. The cite is 8273
1 7 Cal.3d at 852.
2 So we would certainly renew our objection to
3 the admission of the statement the witness
4 purportedly wants to testify to.
5 Number two, the question is, does the shield
6 law apply? And if the shield law is deemed by the
7 Court to apply, I believe you still have to then do
8 another balancing test to determine, in a criminal
9 trial, if the defendant, to get a fair trial, has a
10 right to crack what is being shielded.
11 And I would refer the Court to the case of
12 Delaney vs. Superior Court, 50 Cal.3d 785. It’s a
13 1990 case. And you have a holding that, “To
14 overcome a prima facie showing by a newsperson that
15 he is entitled to withhold information under the
16 shield law, a criminal defendant must show a
17 reasonable possibility the information will
18 materially assist his defense. A criminal defendant
19 is not required to show that the information goes to
20 the heart of his case.”
21 Now, I think the prosecutor has basically
22 admitted that he thinks the purported testimony goes
23 to the heart of his conspiracy allegation. He
24 believes it goes to the heart of his conspiracy
25 allegation as it appears in the Indictment and as it
26 appears in the alleged overt acts in the Indictment,
27 according to the prosecutor.
28 The question we have, or the question for 8274
1 the Court is, if he’s allowed to bring in this
2 hearsay statement, or I think the Court considered
3 it an admission as well, what are we allowed to do
4 if we want to cross-examine him?
5 And I think it’s pretty clear that the
6 witness and his attorney are attempting to preclude
7 any type of examination into his relationships with
8 the people he wants to testify about, relationships
9 which he identified and articulated to two police
10 officers. And I renew my claim that we would be
11 severely hamstrung and prejudiced in our ability to
12 examine him for the truth of what he is saying and
13 his motives for saying what he’s saying if we
14 couldn’t go into that.
15 So where we are right now, Your Honor, is, I
16 think there’s an argument that it’s shielded based
17 on the case the Court read, but there is a far
18 stronger argument that the defense must go into that
19 information if the witness is allowed to testify.
20 So perhaps the better solution, weighing all
21 of these issues, is disqualify him from testifying,
22 and then there is no argument that the defendant is
23 being unfairly hamstrung in his ability to confront
24 and cross-examine.
25 And I don’t think — one thing I will say to
26 the Court, in his interview to the police, it
27 appears as if he’s giving all of the information.
28 As I understand, a lot of these cases dealing with 8275
1 the shield law, they have to deal with information
2 gathered by the reporter that the reporter doesn’t
3 want to disclose.
4 Here, you’ve got police interviews where
5 basically the police appear to be saying nothing,
6 giving him no information at all, and he is
7 voluntarily allowing himself to be interviewed, near
8 his place of business, about Schaffel, about
9 Konitzer, et cetera, about the Arvizos.
10 THE COURT: But, see, that’s the material
11 he’s gathered. It’s not — he wasn’t gathering from
12 the police, or if he tried, he apparently failed.
13 He was — he had already gathered his information,
14 and he was telling the police what he’d gathered.
15 MR. MESEREAU: Uh-huh.
16 THE COURT: And —
17 MR. MESEREAU: But it does involve more than
18 that, Your Honor. He admitted to the police working
19 out of Schaffel’s home for weeks, for example.
20 Things like that are part of that interview and are
21 part of the information his lawyer wants to shield.
22 And it would just — it would just eviscerate our
23 ability to probe and test for credibility on
24 cross-examination if we couldn’t go into those
25 relationships and that information.
26 THE COURT: Well, under Delaney, you have to
27 show — the defense has the burden of showing that
28 the information, the unpublished information that he 8276
1 has, would materially assist the defense. And —
2 MR. MESEREAU: As I just said, Your Honor, I
3 believe the holding is just if we show a reasonable
4 possibility it will help us to assist the trier of
5 fact in determining whether this witness should be
6 believed or whether this witness has a motive to lie
7 or a motive to gain financially by appearing in this
8 trial, by saying what he’s saying, given his past
9 associations, his past admissions and statements to
10 various people. If we can’t go into that, we are
11 severely prejudiced.
12 THE COURT: Well, what is the information
13 that you claim that he has that would materially
14 assist the defense? And it says you must make a
15 specific showing that the nondisclosure would create
16 a substantial probability of injury to the
17 defendant’s right to a fair trial. What is that
18 information that you think is that valuable?
19 MR. MESEREAU: His relationships with
20 Konitzer; when he met him; how many times he spoke
21 to him. Did he have any financial connection with
22 Konitzer? To his knowledge, was Konitzer involved
23 with Schaffel when he was involved with Schaffel?
24 What business relationship or financial
25 relationships did he have with these two people?
26 Why was he trying to get information from them?
27 What did he intend to do with the information? When
28 did he last talk to them? Did he, in fact, talk to 8277
1 the police voluntarily and give information to try
2 and be part of this case, because he is a journalist
3 and he can profit that way?
4 I mean, there are lots of questions that I
5 would want to go into about his relationship —
6 THE COURT: There’s lots of questions, but
7 the — what is the information you would get that
8 would — it’s not the questions that prove the
9 point. It’s the answers.
10 MR. MESEREAU: Yes. Yes. Well —
11 THE COURT: So what are you offering — what
12 are you proffering to me in the way of information
13 he has? Not questions you have.
14 MR. MESEREAU: He’s had a falling-out with
15 Schaffel, who he had a business relationship with.
16 He worked out of his house for three weeks. He saw
17 a contract at Schaffel’s saying Schaffel was going
18 make millions of dollars. He was not allowed to
19 participate in that. He had a falling-out with
20 Konitzer. Is he now trying to basically assist the
21 prosecution in incriminating Konitzer?
22 He has a lot of relationships with these two
23 characters that I would think we have to be able to
24 go into to show his motive to lie.
25 THE COURT: You’re making an offer of proof
26 that those facts are — if he were forced to
27 testify, he would say that he had not been able to
28 enter into multi-million dollar deals with them, et 8278
1 cetera, et cetera?
2 MR. MESEREAU: Well, he may deny it. But if
3 he does, I would explore it further and show he’s
4 not telling the truth.
5 THE COURT: Okay. Well, what I want to know
6 is what you know he has to say, not what you suspect
7 from your questions.
8 MR. MESEREAU: Well, Your Honor, I’ve never
9 interviewed him.
10 THE COURT: You have the police interview.
11 MR. MESEREAU: Yes, I do.
12 THE COURT: That would be of some
13 assistance, I would think.
14 MR. MESEREAU: Yes, Your Honor. He worked
15 out of Schaffel’s residence for approximately three
16 weeks. He learned that Schaffel was trying to enter
17 into a contract with FOX for $7.5 million regarding
18 the Rowe interview. He conducted the Rowe
19 interview. He told the police the Rowe interview
20 was not scripted. He apparently didn’t make any
21 money off of the Rowe interview and apparently
22 wanted to. He had — he met Konitzer, who was also
23 involved in the Rowe interview. He had a
24 relationship with Konitzer. They apparently talked
25 on a number of occasions. He was in Florida with
26 these individuals.
27 THE COURT: I think what we should do is —
28 you know, some of those things may not be subject to 8279
1 the shield law. Some may. The District Attorney
2 has finished his examination. I’ve made the ruling,
3 which I’m not changing, on the state of mind that —
4 so now the question arises under Delaney.
5 So, in order to find out where we really are
6 under Delaney, I think you have to ask the witness
7 some questions, and we have to see which ones he
8 answered and which ones he claims are unpublished
9 and he has a privilege, and I’ll have to look at the
10 case from that standpoint.
11 MR. MESEREAU: Okay.
12 MS. SAGER: And the only thing I would like
13 to add, Your Honor, is under the Delaney test, the
14 test that —
15 THE COURT: You need to —
16 MS. SAGER: I’m sorry, Your Honor. I’m not
17 used to using these microphones.
18 Under the Delaney test, it’s not only the
19 threshold test, which is what Mr. Mesereau
20 presented, of whether the information sought is
21 reasonably likely to materially assist the defense.
22 That’s simply the threshold.
23 Assume he gets past that. Then the Court
24 engages in a balancing of all the other factors in
25 Delaney. It’s not simply enough that he meet that
26 one test.
27 THE COURT: That’s right. Then we look to
28 see the balance, I agree. 8280
1 So you may question.
2 MR. MESEREAU: Thank you, Your Honor.
Once Mesereau was able to resume his cross-examination of Drew, he attempted to ask Drew about when he first met Schaffel, but once again his attorney Sager objected, and it was sustained by Judge Melville, and this led to yet another combative debate between he and Sager. Afterwards, Mesereau attempted to ask Drew a series of questions about where and how he met with Kontizer and Schaffel, but they were all objected by Sager:
3 Q. Mr. Drew, do you know someone named Marc
5 A. I did.
6 Q. You did?
7 A. Uh-huh.
8 Q. When did you first meet Marc Schaffel?
9 MS. SAGER: Your Honor, I’d object to the
10 extent that reveals unpublished information. And
11 also point out, Your Honor, that really has very
12 little relevance to the one statement that Mr. Drew
13 has been asked about by the prosecution that was
14 published. You’re now talking about an entirely
15 different individual, not even the individual that
16 he has spoken to that he talked about in his
18 MR. MESEREAU: With all due respect to
19 counsel, that’s not true, Your Honor. I will link
20 the relationship he has with Schaffel and Konitzer
21 to the impeachment I’m trying to demonstrate. But I
22 could ask the questions on Konitzer, and I’ll see if
23 he’s going to assert the privilege to those. Maybe
24 that would narrow it. Shall I do that, Your Honor?
25 THE COURT: Let me think. He’s already
26 testified that the — that he was working for
27 Konitzer when he did the interview, right?
28 MS. SAGER: Actually, I don’t believe that’s 8281
1 correct. I believe he testified he was working for
2 a magazine and the interview was set up through Mr.
3 Konitzer and Mr. Schaffel, not that he was working
4 for them.
5 And in fact, I think he testified — and
6 counsel will correct me if I’m wrong. I believe he
7 was asked was he paid anything by them, and he said
8 no. Nor was he working for Mr. Jackson at any
10 THE COURT: All right. For purposes of where
11 we are in the hearing, I’ll sustain the shield
12 objection on that question.
13 Q. BY MR. MESEREAU: Do you know someone named
14 Ronald Konitzer?
15 A. Yes.
16 Q. And how long have you known Ronald Konitzer?
17 MS. SAGER: Same objection, Your Honor, to
18 the extent that that’s not been published, the
19 extent of the length of their relationship or
20 knowledge. Simply the fact that he knows him has
21 been published.
22 THE COURT: Well, I think I need you to be
23 more clear in your objection. You’re saying “to the
24 extent that that has not been published.” I mean,
25 you have to make a claim that that’s not been
26 published; that, “Your Honor, that has not been
27 published,” so I know that. I don’t really know
28 that, the way you’re stating it. 8282
1 MS. SAGER: I apologize, Your Honor, and the
2 only reason I’m couching it the way I am is because
3 Mr. Mesereau seems to believe that some things are
4 publications which I don’t agree with and the Court
5 hasn’t ruled on. There is an interview that does
6 not contain the information that Mr. Mesereau is
7 asking about and that’s the publication that we’re
8 looking at. That information is not published, as
9 far as I’m aware.
10 THE COURT: Well, I don’t think you can limit
11 it to that interview. I mean, if he’s published it
12 anywhere, in any magazine, or any news, or T.V.,
13 or — you know, the definition really doesn’t even
14 involve media. If it’s — I guess if it’s
15 dissemination to the public, he could do it
16 personally walking around the mall over there.
17 So we have to — when you claim he’s being
18 asked to reveal something that he hasn’t published,
19 it has to be he hasn’t published it. Not that he
20 didn’t talk about it in the interview with the —
21 which interview are we talking about?
22 MS. SAGER: The Court TV interview, Your
24 THE COURT: The Court TV interview that he
25 was interviewed on. That is not the only place that
26 he could have published. He may have published it
27 nowhere else, but we need to be clear. We aren’t
28 limiting this to that. 8283
1 MS. SAGER: I understand, Your Honor. And
2 so my objection is that Mr. Mesereau is calling for
3 information which is unpublished within the meaning
4 of the shield law.
5 THE COURT: All right. For purposes of this
6 hearing right now at this point, just to see where
7 we’re going, I will sustain the claim under the
8 shield law.
9 Q. BY MR. MESEREAU: When did you first meet
10 Ronald Konitzer?
11 MS. SAGER: Same objection, Your Honor.
12 That’s unpublished information.
13 THE COURT: All right. For purposes of this
14 hearing right now, I’ll sustain that claim under the
15 shield law.
16 Q. BY MR. MESEREAU: Where did you first meet
17 Ronald Konitzer?
18 MS. SAGER: Same objection, Your Honor.
19 THE COURT: All right. And I’ll make the
20 same ruling for purposes of this hearing.
21 Q. BY MR. MESEREAU: When you first met Ronald
22 Konitzer, who else was present?
23 MS. SAGER: Same objection, Your Honor.
24 THE COURT: I’ll sustain the objection under
25 the shield law.
26 Q. BY MR. MESEREAU: When you first met Ronald
27 Konitzer, in your mind, what was the purpose of the
28 meeting? 8284
1 MS. SAGER: Same objection, Your Honor.
2 Also that Mr. Drew’s state of mind is not at issue
4 MR. MESEREAU: I think it is on cross, Your
6 THE COURT: I’ll sustain it under the shield
8 Q. BY MR. MESEREAU: How many times have you
9 met with Ronald Konitzer?
10 MS. SAGER: Same objection, Your Honor, as
11 to unpublished information.
12 THE COURT: I’ll sustain the objection under
13 the shield law.
14 Q. BY MR. MESEREAU: Have you ever discussed
15 Michael Jackson with Ronald Konitzer?
16 MS. SAGER: And I would object to the extent
17 that it seeks information that has not been
19 THE COURT: That’s an insufficient objection.
20 I’ll overrule it.
21 MS. SAGER: I understand, and the only
22 reason I’m couching it that way is the question, as
23 phrased, is ambiguous. But I’ll object to the
24 question as calling for information that is not
26 THE COURT: All right. I’ll sustain that
27 under the shield law for this hearing.
Next, Mesereau questioned Drew about his recollection of whether Konitzer said the Arvizos had either “escaped” or “disappeared” from Neverland in February 2003; Drew stated that Konizter really did say that the Arvizos “escaped”, but he couldn’t explain why he told police that Konitzer said they “disappeared”:
28 Q. BY MR. MESEREAU: Have you ever had a 8285
1 discussion with Ronald Konitzer about the
2 possibility of interviewing the Arvizo family?
3 A. Yes.
4 Q. When did that discussion take place?
5 A. It took place the week after the Debbie Rowe
7 Q. When was the Debbie Rowe interview?
8 A. I believe, from my recollection, it was
9 March of 2003.
10 Q. Were you at the Debbie Rowe interview?
11 A. Yes, I did the Debbie Rowe interview.
12 Q. Are you the person who asked Debbie Rowe
13 questions in that interview?
14 A. Yes.
15 Q. You’ve told the police that interview was
16 not scripted, correct?
17 MS. SAGER: Your Honor, and I’d again object
18 that this is not published information.
19 MR. ZONEN: And I would also interject an
20 objection that it exceeds the scope of the direct
22 THE BAILIFF: You guys have to use the
24 MR. ZONEN: I would object that it exceeds
25 the scope of the direct examination.
26 THE COURT: Sustained.
27 Q. BY MR. MESEREAU: Was the Debbie Rowe
28 interview scripted? 8286
1 MS. SAGER: Same —
2 MR. ZONEN: Objection; exceeds the scope of
3 the direct examination.
4 MS. SAGER: Also unpublished, Your Honor.
5 THE COURT: Sustained on both grounds.
6 Q. BY MR. MESEREAU: Was Ronald Konitzer at the
7 Debbie Rowe interview?
8 MS. SAGER: Objection, Your Honor. Calls
9 for unpublished information.
10 THE COURT: Sustained under the shield law.
11 Q. BY MR. MESEREAU: Now, you said, in response
12 to the prosecutor’s questions, that Mr. Konitzer
13 referred to the Arvizo family leaving Neverland
14 Ranch, right?
15 A. Yes.
16 Q. And your first response to the prosecutor’s
17 question was that Konitzer told you that they had
18 disappeared from Neverland Ranch, correct?
19 A. Yes.
20 Q. After being further asked questions by the
21 prosecutor, you said that Konitzer had used the word
22 “escape,” right?
23 A. I said I believed he had used the word
24 “escape.” I remembered it.
25 Q. You didn’t use the word “escape” when you
26 first responded to the prosecutor’s question about
27 what Mr. Konitzer had said, right?
28 A. I think I did. I think it was all within 8287
1 the same sentence, from my recollection.
2 Q. You said “disappear,” did you not?
3 A. That was part of it, too.
Mesereau attempted to ask Drew some more detailed questions about his relationship with Konitzer and Schaffel, but gave up once he realized that Sager would object to all of them, and asked Judge Melville to disqualify Drew from being able to testify in front of the jury (remember, thus far all of his testimony was outside the presence of the jury). Sager agreed with Mesereau, which shouldn’t come as a surprise, considering she didn’t want Drew to testify in the first place!
Judge Melville asked Mesereau to present him with any information that would materially assist the defense, and help him decide if Drew should or should not be allowed to testify in front of the jury, and Mesereau stated that he had proof that there was a business relationship between Drew, Schaffel, and Konitzer, and that Drew was materially involved in their efforts to make money off of Jackson’s troubles.
4 Q. Now, how long did your discussion with
5 Konitzer take place on that particular occasion?
6 MS. SAGER: Objection, Your Honor. Calls
7 for unpublished information.
8 THE COURT: All right. Sustained under the
9 shield law.
10 Q. BY MR. MESEREAU: Were other things said by
11 Mr. Konitzer to you on the occasion when you claim
12 he made that statement?
13 MS. SAGER: Same objection, Your Honor.
14 Calls for unpublished information.
15 THE COURT: Sustained.
16 Q. BY MR. MESEREAU: How long did that
17 discussion last?
18 MS. SAGER: Same objection, Your Honor.
19 THE COURT: Sustained.
20 Q. BY MR. MESEREAU: Did you say something to
21 Mr. Konitzer in that discussion?
22 MS. SAGER: And I’ll object, Your Honor, to
23 the extent that it calls for information that has
24 not been published. It was one word, I believe, Mr.
25 Drew has published, which I’ll let him answer.
26 THE COURT: All right. Answer the one, the
27 word, following your attorney’s instructions.
28 MS. SAGER: If you recall. 8288
1 THE WITNESS: I don’t. I don’t remember.
2 Q. BY MR. MESEREAU: Where did the discussion
3 take place?
4 MS. SAGER: Same objection, Your Honor.
5 Calls for unpublished information.
6 THE COURT: Sustained.
7 Q. BY MR. MESEREAU: Who else was there with
8 you and Konitzer?
9 MS. SAGER: Same objection, Your Honor.
10 Also assumes facts not in evidence.
11 THE COURT: Under the shield law objection,
12 I’ll sustain the objection.
13 Q. BY MR. MESEREAU: Was anyone else there with
14 you and Mr. Konitzer?
15 MS. SAGER: Calls for unpublished
16 information, Your Honor.
17 THE COURT: Sustained.
18 Q. BY MR. MESEREAU: Did you arrange for the
19 discussion where you claim Mr. Konitzer made that
21 MS. SAGER: I believe it’s vague, Your
22 Honor, but it’s information that is published, so
23 I’ll let the witness answer, if he recalls.
24 THE WITNESS: Yes, I was trying to get an
25 interview, so I think I — I think I made the phone
26 call, because I’m pretty dogged about that usually.
27 Q. BY MR. MESEREAU: Where were you when you
28 made the phone call? 8289
1 MS. SAGER: Calls for unpublished
2 information, Your Honor.
3 THE COURT: Sustained.
4 Q. BY MR. MESEREAU: Did you call Konitzer’s
6 MS. SAGER: Same objection, Your Honor.
7 THE COURT: Sustained.
8 MR. MESEREAU: Your Honor, I believe at this
9 point it’s pretty clear I wouldn’t be able to
10 cross-examine the witness on any of this; we would
11 be prejudiced. And I believe, under the Delaney
12 case, the witness should be disqualified from
13 testifying. I’m not being allowed to cross-examine
14 on anything regarding the bona fides of what he said
15 and in what context it was said, who was there,
16 where it took place.
17 And again, I would refer the Court to the
18 holding in the Delaney case. All we have to show is
19 a reasonable possibility the information will
20 materially assist the defense. And the material
21 assistance would be in examining the veracity, the
22 motives, the bias of this witness.
23 MS. SAGER: And, Your Honor, I believe under
24 the Foss case, that disqualification of the witness
25 is the appropriate measure to take rather than
26 allowing any counsel to get into information that
27 clearly is protected by the shield law, so that even
28 published information should not be presented if 8290
1 then, to allow cross-examination, would delve into
2 constitutionally protected information.
3 THE COURT: Mr. Drew?
4 THE WITNESS: Uh-huh.
5 THE COURT: I’m looking at the testimony
6 you’ve already given. What I want to do is read to
7 you what you said about the — just that one
8 sentence is all we’re talking about. I want to read
9 to you that sentence, and I want to ask you a couple
10 of questions about why you said that sentence.
11 THE WITNESS: Okay.
12 THE COURT: But to do that, I want to read it
13 to you, so I’m going to ask you to listen to this:
14 The question by Mr. Zonen was, “What
15 specifically did he say with regard to the
16 disappearance of this family? “Would it be helpful
17 if the witness was given a transcript of the
18 television program? We can do that.”
19 I say something, and then Mr. Zonen says
21 And then Mr. Zonen says, “Well,” as a
22 question mark, and you say, “It’s a simple enough
23 question, I think. I was told that they had
24 disappeared, that they couldn’t keep them there
26 There’s some objections.
27 And you say, “And I believe the word
28 ‘escaped’ was used. But again, I don’t — I can’t 8291
1 say word for word. But from the best of my
2 recollection, yes, I heard the word ‘escape.’”
3 First of all, what you’ve already answered,
4 does that accurately reflect your recollection of
5 that conversation?
6 THE WITNESS: Uh-huh. Yes.
7 THE COURT: What is your — if you can answer
8 this, what is the failure of your recollection about
9 the word “escaped”?
10 THE WITNESS: No, it’s to the best of my
11 recollection. When I was talking to Mr. Konitzer, I
12 was simply trying to get — I was on a deadline
13 trying to get an article done, so I wasn’t paying
14 attention word for word, knowing that in a trial two
15 years later I would have to remember each part of
16 it. I remember the tone of his conversation more
17 than I remember even the exact words.
18 THE COURT: Okay. Thanks.
19 Mr. Mesereau, is there anything in the
20 police reports that you have that you would like to
21 represent to me —
22 MR. MESEREAU: First of all, Your Honor, as
23 the Court knows, in many of my prior
24 cross-examinations of witnesses, I have asked them
25 when they — excuse me, if they ever met with any
26 representative of the Santa Barbara Sheriff’s
27 Department; who initiated the meeting; what was
28 said; who said what; did the sheriffs say anything 8292
1 to you about the case?
2 And the reasons are obvious. We want to
3 establish if, in fact, the prosecution or its agents
4 have tried to infect any witness with information of
5 a specific nature or give them a perspective on the
6 case or try and indoctrinate them in some way. We
7 also want to establish if the witnesses have said
8 anything to the sheriffs which suggests a desire to
9 be involved in this case or a desire to —
10 THE COURT: I think you didn’t let me finish
11 my question.
12 MR. MESEREAU: Oh. I’m sorry. Pardon me.
13 THE COURT: The question I wanted to ask, is
14 there anything in the police reports that he said in
15 the interview with the sheriff’s department or any
16 law enforcement people that you want to show me or
17 advise me of? You know, as opposed to the questions
18 that you would ask, any information contained
19 therein that you believe is, you know, material that
20 would —
21 MR. MESEREAU: Yes, Your Honor. I mean,
22 first of all —
23 THE COURT: — materially assist your defense
24 if he were to testify to it?
25 MR. MESEREAU: Yes, Your Honor. There is
26 the business relationship between this witness and
27 Schaffel and Konitzer, as I would like to establish,
28 is that he had a relationship with them. He was 8293
1 involved in their efforts to make money off of
2 Michael Jackson. The —
3 THE COURT: That’s — just to be clear now,
4 that’s in the police report?
5 MR. MESEREAU: Yes, Your Honor. He
6 conducted the Debbie Rowe interview. He was working
7 out of Schaffel’s residence. He was promised he
8 could interview the Arvizo family. He had a
9 financial interest in working with Schaffel and
10 Konitzer. He then was apparently told, “You’re not
11 going to be interviewing the Arvizo family because
12 they left Neverland.”
13 And then the question is, what kind of
14 relationship did he continue to have with them?
15 What money did he expect to make? Who was supposed
16 to pay him for doing all of this? Did he think he
17 was going to be involved in the FOX contract? He
18 did tell the sheriffs that he saw, in fact, a FOX
19 contract at Schaffel’s residence during the
20 approximately three-week period of time that he
21 worked out of Mr. Schaffel’s residence.
22 And the question would be, why did he look
23 at the contract? How did he know it said $7.5
24 million from FOX? What interest did he think he
25 had? Has he had a falling-out with Konitzer? When
26 did he last talk to any of these people?
27 He did not obtain this so-called quote in
28 isolation, and he didn’t obtain it in a casual, 8294
1 unexpected occurrence or meeting. He obtained it,
2 if he did, within the context of an ongoing business
3 relationship with Konitzer and Schaffel, who the
4 prosecution allege are unindicted co-conspirators.
5 And the motives for coming forward and making this
6 allegation on T.V. and in court are fertile ground
7 for cross-examination where the scope of
8 cross-examination is very broad to show any type of
9 financial motive, financial bias, or a bias to say
10 anything that hurts his former co-business partners,
11 which in fact they were. So we would be severely
12 hamstrung if we could not go into these
13 relationships and these motivations.
14 Now, he told the police that when he
15 interviewed Debbie Rowe, he was working out of
16 Schaffel’s residence for approximately three weeks.
17 He said that during that period of time, he saw the
18 FOX contract. He just told the Court that when he
19 got this information from Konitzer, he had a
20 deadline. How did that deadline relate to why he
21 was talking to Konitzer to begin with? What project
22 were they still involved in, if any?
23 And clearly his police interview, which was
24 conducted by him, as I said before, on a voluntary
25 basis, talks about how he met these characters, how
26 he stayed in contact with them, where he called them
27 from, how the interview with the Arvizos he thought
28 he was going to do related to the interview with 8295
1 Debbie Rowe. It’s all part of the same package.
2 And, Your Honor, there are tapes where he
3 and Debbie Rowe complain about Schaffel and
4 Konitzer. There is the issue of his falling-out
5 with them. It’s all interconnected.
6 THE COURT: Okay. Do you want to be heard,
7 Mr. Zonen?
Zonen replied that the police transcript should be used by Judge Melville to determine if Drew should be allowed to testify because he (obviously) felt that the transcript could be used to the prosecution’s advantage because it didn’t materially address any of the issues that Mesereau raised in his earlier statement. Mesereau rebutted he had other information that proved his earlier statements, including several pretext phone calls that Drew unknowingly took part in:
8 MR. ZONEN: Your Honor, the police report in
9 this matter is four pages of text, and I think it
10 would be appropriate for the Court to review it, and
11 I would invite the Court to review it to make the
12 determination as to whether — would you like me at
13 the podium?
14 THE COURT: Yes.
15 MR. ZONEN: The Court specifically made the
16 inquiry as to whether or not there’s information
17 contained in the police report as might justify
18 extensive cross-examination of this witness with
19 regards to information given by the witness to
20 detectives in the course of that interview.
21 Rather than debate what is and what isn’t,
22 it’s a very brief report. It’s only four pages of
23 large script. And I would ask that the Court read
24 it to make a determination as to whether or not that
25 would assist the Court in its judgment.
26 Once again, the prosecution is offering one
27 sentence in this case. It’s a conversation that
28 took place between this witness and another person, 8296
1 one of the unindicted co-conspirators, to the extent
2 this that person said to this witness, “They’ve
3 left,” and the words of how they left. It’s
4 effectively one or two sentences.
5 I do not believe that that warrants and
6 justifies extensive cross-examination on the
7 relationships and interrelationships between each of
8 the five unindicted co-conspirators and this witness
9 and any of the co-conspirators among themselves at
10 any point in history. I also don’t believe it
11 justifies an examination into his involvement in the
12 interview with Debbie Rowe, which was an entirely
13 separate interview and separate people involved.
14 As to the question of what he can be
15 cross-examined on in the course of the interview
16 with the — the “interview” — the two-sentence
17 conversation with Mr. Konitzer, I think that he can
18 be cross-examined on information that would shed
19 light on what was going on at that time and the
20 accuracy of that statement, and it is a statement
21 that is relatively noncontroversial. It is not the
22 type of thing that a thorough examination of the
23 relationships of these parties would necessarily
24 disprove or as to motivation.
25 And so I believe that until the defense
26 satisfies the burden, which they have, for the
27 purposes of showing that there is information out
28 there, and they’re not simply on a fishing 8297
1 expedition, but that there is concrete information
2 that would somehow show that this statement was
3 never made, or, if it was made, had a different
4 meaning, or in fact was a statement that’s entirely
5 different from what it was as it’s represented by
6 this witness, and I believe that they can do that
7 within the limitations of the Court and within the
8 limitations imposed by the shield law.
9 I have the report to turn over to the Court,
10 if that’s permissible.
11 MR. MESEREAU: If I may, Your Honor, there
12 are other reports as well. There’s a number of
13 pretext phone calls where he discusses the same
14 issues identified in that police interview.
15 I suspect Miss Sager is going to say they’re
16 privileged, but they do relate to the same facts.
17 They give us a good-faith basis, in addition to what
18 I just told the Court, to inquire into his
19 relationship with Konitzer and Schaffel, and what
20 his expectations were, what happened to the money he
21 thought he was going to get, et cetera.
22 I think the Court would have to look at
23 those as well. There aren’t that many of them and
24 I have them with me. I also have transcripts of
25 those pretext phone calls.
26 THE COURT: And do both of you agree and
27 stipulate that I can review those reports in
28 conjunction with reaching a decision on this? 8298
1 MR. ZONEN: Yes.
2 MR. MESEREAU: Yes, Your Honor.
3 THE COURT: All right. Would you provide
4 those to me?
5 MR. MESEREAU: Yes.
6 MS. SAGER: Your Honor, we have not been
7 provided with those reports, and for purposes of
8 arguing this motion, it would greatly assist me, if
9 the Court is going to consider them, if we also were
10 allowed to review them.
11 THE COURT: Certainly.
12 MR. ZONEN: I will do so.
13 THE COURT: You can step down. There’s no
14 sense in sitting there while we’re trying to figure
15 this out.
16 MR. ZONEN: How clean are your copies?
17 MR. MESEREAU: They’re pretty clean.
18 MR. ZONEN: Do you just have yellow
20 MR. MESEREAU: Yeah, but also — there are
21 transcripts as well.
22 MR. ZONEN: You don’t have material written
23 into them?
24 MR. MESEREAU: Not really, no.
25 MR. ZONEN: Okay.
26 MR. MESEREAU: It may take a moment. I’m
27 just trying to staple these reports together, Your
28 Honor. 8299
After taking a recess, Judge Melville ruled that the probative value of Drew’s statement was questionable, it didn’t prove Jackson’s state of mind or his involvement, and thus he would not allow the prosecution to use it to further their conspiracy theory, and he also would not allow the defense to cross examine that statement.
1 THE COURT: All right.
2 I think what I’d like to do, Lieutenant,
3 would it work all right, when I take these back to
4 read, if I declare a recess? And then you can — so
5 these folks don’t have to sit in here? Is that all
6 right? And then we can bring them back in. It
7 looks like I’m going to be a few minutes reading.
8 LIEUTENANT McKINNY: That’s fine, Your Honor.
9 THE COURT: That would give them five
10 minutes’ notice to bring them back into the
11 courtroom, or let them, excuse me, back in the
13 MR. MESEREAU: Your Honor, I might add that
14 this witness’s name comes up in other reports
15 dealing with interviews with other individuals and
16 investigations into other individuals. Information
17 regarding this witness was seized at Schaffel’s
18 house, for example.
19 So I don’t want to suggest that the scope of
20 examination or the good-faith basis for questions
21 about his relationship with these people are purely
22 based on what I’m giving you. There’s other stuff,
24 THE COURT: Okay.
25 MR. MESEREAU: May I approach?
26 THE COURT: Yes.
27 All right. Then we’ll take this recess.
28 (Recess taken.) 8300
1 THE COURT: Counsel, would you like to
2 retrieve the police reports?
3 THE BAILIFF: I can get them.
4 MR. MESEREAU: Thank you, Your Honor.
5 THE COURT: All right. The Court is going to
6 make the following order: That the Court finds that
7 the probative value of the statement offered by Mr.
8 Drew is questionable; that if the statement was
9 introduced into evidence, the statement might lend
10 itself to proving somewhat the conspiracy, but the
11 only value I see of the statement — the only
12 evidentiary value of the statement would be to prove
13 Konitzer’s state of mind, which is not Mr. Jackson’s
14 state of mind, and may very well not be appropriate
15 to admit under any circumstances. Because even
16 though it’s a co-conspirator’s state of mind, it
17 would be unlikely helpful in proving Mr. Jackson’s
18 involvement. It wouldn’t prove his involvement.
19 In addition to that, there is some real
20 vagueness in the statement as recalled by the
21 witness, since he does not recall exactly what was
22 said, but more the sense of what was said, and isn’t
23 sure where the word “escaped” fit in.
24 Considering these items, in balancing under
25 Delaney, the Court does not believe that the shield
26 law is overcome in this case. The shield law then
27 remains in effect.
28 That effectively bars the defense from 8301
1 cross-examination on the statement which I’ve
2 already determined to have some questionable value.
3 Therefore, the Court finds the only appropriate
4 remedy is to deny the People’s request to admit the
6 MR. ZONEN: Your Honor, we have no further
7 witnesses for the day.
8 THE COURT: What I would like to do is excuse
9 the jury. There’s two ways to do that. Probably
10 the cruelest way would be to —
11 MR. ZONEN: Send the bailiff in there?
12 THE COURT: — file them in here and then
13 tell them. In fact, I don’t think I could face
16 THE COURT: No, I better face them, though.
17 Let’s bring them in.
18 MS. SAGER: Your Honor, is Mr. Drew excused?
19 THE COURT: I’ll be a man about this.
20 Yes. You’re excused.
21 MS. SAGER: Thank you.
22 THE COURT: It’s my custom to not be on the
23 bench when the jury comes in, so I think I’ll leave.
When the jury returned, Judge Melville apologized to them for keeping them at the courthouse all day (he didn’t know how long the hearing would last), and stated that the next two days would be full of witnesses:
25 (The following proceedings were held in
26 open court in the presence and hearing of the
1 THE COURT: Good afternoon.
2 THE JURY: (In unison) Good afternoon.
3 THE COURT: (To counsel) You tell them.
5 THE COURT: Because of rulings that I’ve made
6 today, we have no further witnesses.
7 I am advised by the District Attorney that
8 they have two days left in their case, Monday and
9 Tuesday, and they will be full days, without delays.
10 So I apologize for keeping you here all day
11 today like this. I didn’t anticipate, of course,
12 the length of time that was going to be involved,
13 and I tried very hard not to do that to you.
14 I know how crummy it is to sit back there
15 and not have anything to do and not know what’s
16 going on, and it’s just one of my things I just
17 don’t do. And we have gone through a lot of days
18 without doing that to you, so I’ll try to get
19 through a lot more before it happens again.
20 So I’ll see you next week.
21 Court’s in recess.
22 (The proceedings adjourned at 1:25 p.m.)