May 5th, 2005 Trial Analysis: Wade Robson and Brett Barnes, Part 1 of 4
Before the jury was seated, Judge Melville addressed the prosecution and told them that he wanted proof of independent authentication of the signed documents that they were trying to get admitted as evidence. Robert Sanger argued for the defense that Rudy Provencio did not properly authenticate the documents and its signatures during his testimony because he was too vague, but Gordon Auchincloss argued that authentication can be established via circumstantial evidence:
1 Santa Maria, California
2 Thursday, May 5, 2005
3 8:30 a.m.
5 (The following proceedings were held in
6 open court outside the presence and hearing of the
9 THE COURT: Good morning.
10 COUNSEL AT COUNSEL TABLE: (In unison)
11 Good morning, Your Honor.
12 THE COURT: I want to talk about the 400
13 series exhibits before we start argument on the
14 dismissal. I was trying to review some testimony
16 Is someone from the District Attorney’s
17 Office prepared to address that?
18 MR. AUCHINCLOSS: Good morning, Your Honor.
19 THE COURT: Did you work on this at all last
20 night, or —
21 MR. AUCHINCLOSS: Well, I’m prepared to
22 address the Court’s concerns. But I’m not certain
23 exactly what areas you would like me to address.
24 THE COURT: What I was looking for is
25 independent authentication of some of the documents.
26 The documents were marked primarily by an officer
27 just reporting what he’d seized in a search, and the
28 fact they were seized in a search is not sufficient 8970
1 authentication to get the documents in. So I was
2 trying to keep notes of the various independent
3 authentication as you went through them. And I was
4 looking at the list that I had and this morning I
5 was trying to go through some testimony from
6 yesterday and the day before, and I found that you
7 had authenticated Exhibit 400, which I didn’t admit
8 yesterday. And I suspect you authenticated some
9 others that I missed, so —
10 MR. AUCHINCLOSS: Well, in terms of the
11 foundation for the admissibility of all the
12 documents, as we pointed out in our brief, Your
13 Honor, authentication —
14 THE COURT: I’m beyond your brief.
15 MR. AUCHINCLOSS: Okay.
16 THE COURT: Let me tell you, like on Exhibit
17 400, we have — maybe it would be best if I address
18 particular problems with you than —
19 MR. AUCHINCLOSS: Okay.
20 THE COURT: I think Exhibit 400 was properly
21 authenticated by Mr. Provencio.
22 Mr. Sanger, rather than have him speak to
23 that, and that’s my — my feeling at this point. Do
24 you have anything you want to address on that
26 MR. SANGER: I will only because I think
27 that this may — this may have a carry-over to some
28 of the others. So let me just say this in general. 8971
1 At the time we filed our brief, of course,
2 Mr. Provencio had not testified. His testimony, I
3 think, is not sufficient for authentication in
4 general. His testimony, besides being highly
5 suspect, was to the effect that he went through a
6 file cabinet that wasn’t really necessarily his to
7 go through, and that’s where he saw certain
8 documents. He doesn’t — he hasn’t laid the
9 foundation for what the document is.
10 If we look at 400 in particular, it appears
11 to be — let me move it up here so I can stand at
12 the microphone. It appears to be one page of
13 something that has some purported initials at the
14 bottom. And besides authenticating the document in
15 the sense that, “I saw it in this house” that was
16 used by a number of people, including Marc Schaffel,
17 there has to be some authentication as to whether or
18 not this document was actually a document that was
19 effective. In other words, is this something — is
20 this a draft? Is this a page of a draft? Is this
21 something that the rest of which was discarded? Or,
22 there was a new first page put on and that’s why you
23 have this page? I mean, none of that has been
24 explained. So simply having a page, and having a
25 witness say, “That looks like something I saw when I
26 was flipping through my boss’s file cabinet” —
27 THE COURT: In other words, he didn’t
28 identify the signatures or anything other than to 8972
1 say, “Yeah, that’s a document I saw in their
3 MR. SANGER: That’s correct. And it’s only
4 one page of a document. So, you know, we don’t have
5 authentication as to signatures. We don’t have
6 authentication as to the nature and extent of the
7 document and what it means.
8 THE COURT: Okay.
9 MR. SANGER: Yes.
10 THE COURT: That’s sort of — Mr. Sanger was
11 able to sort of pinpoint the problem I’m having with
12 these documents.
13 MR. AUCHINCLOSS: Well, our introduction of
14 these documents, the foundation for them, as we
15 pointed out with our citing of the Olguin case, is
16 authentication may be established by circumstantial
17 evidence. We don’t need a direct witness to come up
18 and say, “I saw Marc Schaffel sign that document,”
19 or, “I know Marc Schaffel’s signature and that’s his
20 signature on that document.”
21 You look at the totality of all the evidence
22 before the Court, and see if you can draw a
23 reasonable inference as to whether or not this
24 document is what it purports to be.
25 Now, we have an abundance of testimony that
26 Marc Schaffel and Michael Jackson were involved in a
27 business enterprise known as Neverland Valley
28 Entertainment, and we found — 8973
1 THE COURT: I’m not willing to go there with
3 The problem is that in your points and
4 authorities, I think you represented that Mr.
5 Provencio would testify that he was familiar with
6 Michael Jackson’s signature and initials, and that
7 he would identify them on Exhibit 400, but in trying
8 to review the testimony, I didn’t recall that.
9 But —
10 MR. AUCHINCLOSS: I don’t think that was
12 THE COURT: But going back there, I don’t see
13 that in the transcript. So….
14 MR. AUCHINCLOSS: If that is a predicate to
15 the admissibility of this document, then that would
16 be one of those foundational minor points that we
17 would re-call Mr. Provencio to lay. If that’s the
18 place where the Court has an issue. And that’s why
19 we requested yesterday that we be able to address
20 concerns of the Court regarding the admissibility of
21 these documents as we normally would be during
22 trial. We’re in an unusual circumstance here,
23 because these documents are being discussed at the
24 very end of our case.
25 THE COURT: Was there any document that I
26 did not admit out of that series that you think you
27 did authenticate that I just missed the
28 authentication? 8974
1 MR. AUCHINCLOSS: Well, in terms of direct
2 testimony, we did provide evidence from the Bank
3 of — from the U.S. Bank.
4 THE COURT: Give me an exhibit number when
5 you’re talking so I know what you’re talking about.
6 MR. AUCHINCLOSS: Yes. That would be
7 exhibit number — let me find it. 418, page three,
8 the million-dollar check. We did ask the U.S. Bank
9 representative about that exhibit, as well as —
10 THE COURT: 418 and 419 I think was
11 authenticated by the U.S. Bank person who testified.
12 MR. SANGER: Only as to the pages that are
13 checks. Not as to the other —
14 THE COURT: Documents.
15 MR. SANGER: — documents.
16 MR. AUCHINCLOSS: That’s correct. That’s
17 correct. 418-3 and 419-3, page three.
18 THE COURT: So I would be willing to admit
19 those pages that she authenticated as those
20 documents, 418 and 419.
21 MR. SANGER: And I would submit that, Your
23 THE COURT: Okay. I’ll admit the checks, and
24 I’ll have the clerk separate the other pages and
25 call — redesignate the other pages as 418-A and
26 419-A. The actual 418 and 419 will be the checks
28 MR. AUCHINCLOSS: And that would be the only 8975
1 other documents that we provided direct testimony
3 THE COURT: Well, one of the things,
4 Exhibit 403.
5 MR. AUCHINCLOSS: Certainly.
6 THE COURT: I do not think that you have had
7 Mr. Provencio identify that document and those
8 e-mails from between Rudy — Rudy Provencio and
9 Kathryn Milofsky. Although on cross, I remember Mr.
10 Mesereau raising some questions about those e-mails.
11 MR. AUCHINCLOSS: There certainly is
12 testimony that Kathryn Milofsky was providing
13 substantial information by way of e-mails to Marc
15 THE COURT: But I don’t think that’s
16 sufficient to just dump, then, a bunch of exhibits
17 in if they’re not — and I’m asking you — I’m
18 asking for argument.
19 MR. AUCHINCLOSS: Certainly, yes, as I
20 stated before, you can’t deny the circumstantial
21 evidence in this case that — we look at these
22 documents, Your Honor, somewhat like you might look
23 at some numbers scribbled on a piece of paper found
24 in a drug dealer’s home that are introduced as
25 pay/owe sheets. Now, there’s no authentication.
26 Nobody comes in and says, that’s — you know, that’s
27 his handwriting. You don’t need that. You don’t
28 need to have someone come in and say these are 8976
1 pay/owe sheets for a drug transaction. You might
2 have some expert testimony to that effect.
3 THE COURT: I was going to say, I can’t
4 imagine letting that kind of thing in without some
5 authentication, but —
6 MR. AUCHINCLOSS: I mean, in terms of the
7 admissibility of it, it’s not as if there’s any —
8 THE COURT: I think we’re going down a side
9 street here.
10 MR. AUCHINCLOSS: Our position is that these
11 documents speak for themselves. They are words that
12 are relevant to the conspiracy, and a conspiracy is
13 a crime of words, in addition to some overt acts.
14 And as we pointed out in our brief, each one of
15 these documents impute either knowledge about facts
16 that are relevant to this conspiracy, motive,
17 reasons why these co-conspirators as well as Mr.
18 Jackson would engage in this conspiracy, the
19 relationship between the parties. For instance,
20 phone sheets with every single — virtually every
21 single co-conspirator’s name on them. I mean, those
22 are coming in because Mr. Provencio testified to it.
23 THE COURT: I would really try to direct
24 your attention to one exhibit at a time. It’s not
25 helpful to me to be doing that. I lose track of
26 what you’re saying.
27 MR. AUCHINCLOSS: I understand, Your Honor,
28 there’s a number of exhibits. 8977
1 THE COURT: I think we’re talking about
2 Exhibit No. 403. That’s what I want to talk about.
3 So I’m saying what is the foundation that you’ve
4 laid for 403 to come in. That’s what I’m asking
6 MR. AUCHINCLOSS: All right. If I could
7 just have a moment, here.
8 THE COURT: You may.
Gordon Auchincloss gave a few examples of what he believed was circumstantial evidence that could authenticate those documents:
9 MR. AUCHINCLOSS: 403. The “Fires Brewing”
10 file. The Court has previously admitted evidence of
11 the panic that was going on among the
12 co-conspirators during this time. There’s been
13 extensive testimony by Ann Gabriel that — of a
14 laundry list of problems that confronted Mr.
15 Jackson, public relations problems. The press was
16 going crazy. Not only about the rebuttal — or
17 about the Martin Bashir film, but a number of other
18 issues that came up, including Mr. Schaffel’s prior
19 history, the Jordie Chandler release of that — of
20 the Complaint over the Internet, issues regarding
21 the other problems that Martin Bashir pointed out,
22 such as child abuse or possible child neglect
23 issues. You name it.
24 This is being offered as corroboration of
25 Miss Gabriel’s testimony, and as evidence of the
26 issue of the panic, the reasons for that panic that
27 were generated and known by the co-conspirators.
28 Now, it’s offered as circumstantial 8978
1 evidence, because these words, these documents, were
2 found in Martin — in Mr. Schaffel’s home, in his
3 files, in his locked closet, and they clearly show a
4 group of files under an unambiguous heading, “Fires
5 Brewing,” that Mr. Jackson had a number of problems
6 on his hands. And the problems were to be addressed
7 by the co-conspirators. That was the purpose of
8 this —
9 THE COURT: Let me ask you this: Did Mr.
10 Provencio testify about those documents yesterday or
11 the day before?
12 MR. AUCHINCLOSS: He testified that the
13 phones were ringing off the hooks. That there
14 was —
15 THE COURT: Did he testify about the “Fires
16 Brewing” documents?
17 MR. AUCHINCLOSS: No, he did not.
18 THE COURT: I think I remember him
19 identifying who Kathryn Milofsky is.
20 MR. AUCHINCLOSS: He did identify Kathryn
21 Milofsky as being a conduit through which much of
22 this information came, including, of course, the
23 original script for the Martin Bashir film way
24 before it was introduced — played.
25 THE COURT: Okay. On 404, it seems there was
26 the phone log and then there was a list of contacts;
27 is that right?
28 MR. AUCHINCLOSS: That’s correct. This came 8979
1 out of the Stuart Backerman file in Mr. Schaffel’s
2 filing cabinet. As Mr. Provencio testified, the
3 media was keeping them very busy. This is a list of
4 messages showing contacts from the media, from Larry
5 King, to Good Morning America, Barbara Walters. And
6 this is on February 6th. Again, introduced to show
7 the level of panic that was being inspired by this
8 public relations disaster. Everybody was calling.
9 “Who’s that boy that Mr. Jackson is sleeping with?”
10 And it’s corroborative of Mr. Provencio’s testimony,
11 and it shows —
12 THE COURT: Was there any specific
13 authentication on that exhibit than — besides the
14 simple seizure of the —
15 MR. AUCHINCLOSS: In Mr. Schaffel’s home?
16 No. Other than, as I mentioned, the reasonable
17 inferences that you can draw from finding it there,
18 in light of all the testimony. And that’s what
19 we’re asking for, is that the Court draw a
20 reasonable inference as to what this document is,
21 what it means.
22 THE COURT: Okay.
23 On 406 —
24 MR. AUCHINCLOSS: Would you like to address
25 the working group list that follows that, or —
26 THE COURT: I’m sorry.
27 MR. AUCHINCLOSS: There are a couple of
28 phone sheets in here. Again, this, as the 8980
1 authorities noted, provide that evidence of
2 relationship between the parties is admissible on
3 the issue of whether or not a conspiracy occurred.
4 We have a production working group list that shows
5 Ronald Konitzer, Dieter Weizner, Mr. Backerman, Mr.
6 LeGrand, Marc Geragos on the same working group list
7 in the possession of Mr. Schaffel. Now, Mr.
8 Schaffel cannot contact co-conspirators unless he
9 has contact information. Showing that he has their
10 e-mail addresses, their phone numbers, their mobile
11 phone numbers, their addresses is evidence that Mr.
12 Schaffel is working with these individuals. It’s
13 evidence of their relationship.
14 THE COURT: Okay. I understand that.
15 MR. AUCHINCLOSS: Okay. Moving on to 405?
16 THE COURT: Yes.
17 MR. SANGER: Or 406, I think the Court said.
18 THE COURT: 405 was admitted. 406.
19 MR. AUCHINCLOSS: 406 is the contract for
20 the FOX rebuttal. It’s a $3 million contract.
21 There’s been quite a bit of testimony about the
22 amount of money that was going to be made in this
23 particular endeavor. This is corroborative of that
24 testimony. It’s — appears to be on a Hale Lane fax
25 transmittal sheet. We had testimony from Mr. Hamid
26 Moslehi about receiving faxes from Hale Lane. This
27 is identical to all of the other fax transmittal
28 sheets that we seized during this warrant. There is 8981
1 no evidence or, I believe, reasonable inference you
2 can draw that this document is anything but what it
3 appears to be, a revised agreement of the FOX
4 Broadcasting Company and Fire Mountain Services.
5 And it’s offered to show that this was a
6 money-making enterprise, that Mr. Jackson was going
7 to personally profit from it, as well as the
9 THE COURT: You’re talking about the —
10 MR. AUCHINCLOSS: Pages 1 through 4.
11 THE COURT: 1 through 4.
12 MR. AUCHINCLOSS: Yes.
13 Now, we have introduced testimony that the
14 Arvizo family was to be included in this FOX
15 rebuttal and the reasons why they were never seen in
16 that rebuttal film.
17 THE COURT: On that document, that’s pages
18 five through nine, right?
19 MR. AUCHINCLOSS: Yes.
20 THE COURT: And that’s —
21 MR. AUCHINCLOSS: Five through nine are —
22 THE COURT: How do we know that Mr. Jackson
23 had anything to do with that document?
24 MR. AUCHINCLOSS: Well, Mr. Jackson does not
25 have to be linked to every aspect of the co — of
26 the conspiracy.
27 THE COURT: But you want to admit it to show
28 his involvement in the rebuttal video, right? 8982
1 MR. AUCHINCLOSS: We want to admit this
2 document to show that the special was a money-making
3 enterprise, and that — I mean, there has been quite
4 a bit of testimony, or there was quite a bit of
5 testimony with Ann Gabriel dealing with the issue of
6 the problems with that, how that would be perceived
7 by the media as negative. She felt it should be
8 done without a profit motive, and how her advice was
9 ignored by the team.
10 THE COURT: Okay. Exhibit 407?
11 MR. AUCHINCLOSS: Just — if I may just
12 remark about the remaining exhibits on 406, Your
14 THE COURT: Yes.
15 MR. AUCHINCLOSS: Because there were some
16 additional pages there.
17 THE COURT: Page ten.
18 MR. AUCHINCLOSS: And one of the pages is a
19 fax to Michael and Al from Marc, appears to be, with
20 a personal message from Marc Schaffel. It talks
21 about the specifics of the clips, the editing,
22 everything looks good, it’s all very positive, shows
23 Mr. Jackson’s direct involvement in the second FOX
24 rebuttal — or FOX film, I should say, as well as,
25 following that, there is the agreement in which the
26 second FOX film was to produce $4 million in income.
27 And we finally have a note from Mr. Jackson
28 signed by Mr. Jackson, care of Al Malnik, that he 8983
1 authorizes giving the keys to Dieter Weizner at the
2 warehouse for Optima Productions. Shows again Mr.
3 Jackson’s direct involvement in these films, as well
4 as his relationship to the parties, particularly
5 Dieter Weizner.
6 THE COURT: Okay.
7 MR. AUCHINCLOSS: 407 is offered as a
8 statement — as statements in furtherance of the
10 THE COURT: Well, I’m sorry, did you want
11 to — that’s all right. Okay. 407. Go ahead.
12 MR. AUCHINCLOSS: These are e-mails that
13 were found, I believe — let me just double-check my
14 notes here — in Marc Schaffel’s “Ronald” file. And
15 that’s how we — just so you know, you can look at
16 the index and see that we’ve divided these documents
17 up into the various — we’ve kept them in the
18 various files that they were found in, so that’s the
19 reason why some of the documents do not always have
20 a subject matter relationship, but they do have a
21 relationship of the location in where we found them.
22 This is the “Ronald” file. There are a
23 couple of e-mails in here from Ronald Weizner — or
24 Ronald Konitzer, excuse me, talking about — talking
25 to Marc and Stuart. The first one is really just
26 to — for purposes of showing the relationship of
27 the parties, and their involvement back on
28 February 6 of ‘03. 8984
1 The second one entitled “Money,” February
2 11th, ‘03, is highly relevant. It talks about the
3 money split. It talks about how much money they’re
4 going to get for the FOX rebuttal. It talks about
5 how they’re going to split it up, about how some of
6 it is needed just to pay for that rebuttal, the
7 Jackson — this goes to Mr. Jackson’s financial
8 crisis. He doesn’t have money to pay for this
9 rebuttal, so he has to generate money just to pay
10 for the expenses. Some of it goes to — is going to
11 Hamid. The final page is really where you see the
13 THE COURT: Do you think the e-mail addresses
14 need to be authenticated in this?
15 MR. AUCHINCLOSS: Well, the e-mail addresses
16 for Mr. Konitzer are mentioned in the other address
17 documents. I mean, assuming that the address
18 documents come in, there’s circumstantial evidence
19 that they are accurate, correct e-mails.
20 THE COURT: That being the list —
21 MR. AUCHINCLOSS: The previous list that
22 we’ve talked about. These are identical e-mails
23 that we have throughout and including the e-mails
24 that are identified in the telephone and contact
26 There is — and the last page, as I said, is
27 really particularly revealing. It talks about
28 $3,200,000 to be produced from the first rebuttal 8985
1 film. 200 goes to Hamid. A million-five to David’s
2 trust account to pay bills due now, and that’s
3 because of the vendors that are screaming for their
4 money. $600,000 for Marc —
5 MR. SANGER: Your Honor, by the way, I’m
6 going to — I’m going to object to just gratuitous
7 remarks for the press. There isn’t evidence of
8 vendors screaming for money in this case. Counsel
9 should restrict his remarks to the Court’s inquiry,
10 which is what is the authentication, and not
11 continue to make gratuitous remarks.
12 THE COURT: Sustained.
13 MR. AUCHINCLOSS: I’m making the —
15 THE COURT: Yeah. We’re really looking at a
16 narrow issue here.
17 MR. AUCHINCLOSS: Well, I think, you know —
18 I’ll draw your attention to the main thing, is that
19 the — the $600,000 for Marc, including all
20 production and, quote, “vacation,” end quote for
22 THE COURT: What about the e-mail address of
23 Milofsky? How do we know that’s her? Do we have
24 someone testifying to her e-mail address?
25 MR. AUCHINCLOSS: Well, what reasonable
26 inference do you draw from the fact that Rudy
27 Provencio testified that they received an abundance
28 of e-mails from this woman? 8986
1 THE COURT: I thought you just told me that
2 you didn’t have that testimony about e-mails. You
3 had the testimony about the phone calls.
4 MR. AUCHINCLOSS: No, he didn’t identify the
5 individual — the individual e-mail, but he did say
6 he received e-mails from Kathryn Milofsky, and that
7 Mr. Schaffel and him both received e-mails from her.
8 So I guess, I mean, I’m just drawing a reasonable
9 inference that he says they received e-mails. We
10 look in his file drawer and we find e-mails.
11 There’s — it’s not conclusive, but it’s pretty
12 close that these would be the e-mails that he
13 received from Kathryn Milofsky.
14 THE COURT: Okay. 408?
15 MR. AUCHINCLOSS: 408 is a printout from a
16 disk. It just is offered to show the financial gain
17 that Mr. Schaffel was obtaining through the
18 marketing of the rebuttal film. Rudy Provencio did
19 talk about foreign rights, so this would be
20 something akin to the previous e-mail, which
21 indicates that Mr. Jackson himself was going to
22 benefit from this — financially from this
23 enterprise, and that there was — there were
24 additional profits out there. Offered on the issue
25 of motive, to show the perception of the parties
26 that this was a valuable enterprise that they could
27 make money on.
28 THE COURT: How about 412? 8987
1 MR. AUCHINCLOSS: Again — I’m sorry, we’re
2 jumping ahead to —
3 THE COURT: Well, 409 has been admitted. 410
4 has been admitted. 411 —
5 MR. AUCHINCLOSS: Is of no great moment.
6 THE COURT: Right.
7 MR. AUCHINCLOSS: That’s not important.
8 THE COURT: So 412 was the one I was
9 concerned about.
10 MR. AUCHINCLOSS: 412. Ann Gabriel, I
11 believe, did lay foundation on 412. She testified
12 that David LeGrand sent her this virtually identical
13 release that was ultimately placed before the
14 Arvizos. He asked her to put “Gabriel Media, Inc.,”
15 on it and then send it back. It finds its way into
16 Marc Schaffel’s file in various permutations. One
17 with “Gabriel Media,” the second without, and then
18 there is a third with “MJJ Productions.”
19 THE COURT: Okay. What about 413?
20 MR. AUCHINCLOSS: There has been some
21 testimony on 413 that.
22 THE CLERK: It was received yesterday.
23 MR. SANGER: You received it, Your Honor.
24 THE COURT: All right. Thank you.
26 THE CLERK: 414.
27 THE COURT: Withdrawn. 414 was withdrawn.
28 415? 8988
Here’s more evidence; the prosecution alleged that the defense knew that there was something nefarious going on with Jackson’s co-conspirators, but Jackson himself wasn’t involved directly:
1 MR. AUCHINCLOSS: These are records that are
2 found regarding the expenses for the rebuttal film.
3 Circumstantial evidence that Mr. Schaffel was in
4 charge of that film. And these records, notably on
5 page four, have references to the Arvizos. And I
6 draw that conclusion from the cash withdrawals that
7 say, “JGSD Trip.” Janet — I interpret that to mean
8 Janet, Gavin, Star and Davellin trip.
9 On 225 and 226, there are petty cash
10 withdrawals corroborative of what Mr. Provencio
11 testified to, regarding cash paid out to Vinnie.
12 There are cash disbursements on page six that
13 include $5,000 to Frank Cascio.
14 THE COURT: Okay. 417?
15 MR. AUCHINCLOSS: And I would just say that
16 on page 17, there is a receipt which —
17 THE COURT: You know what I’m asking you,
18 though, not what’s there, I’m asking you what’s the
19 authentication. Your telling me what’s there
20 doesn’t answer that question, so —
21 MR. AUCHINCLOSS: Well, I’m just telling you
22 about areas of testimony that are relevant to —
23 that Rudy Provencio did testify about a cash receipt
24 that was signed by Vinnie Amen and that is in that
25 file under page 17.
26 THE COURT: But he didn’t identify that.
27 MR. AUCHINCLOSS: He didn’t identify it, no.
28 THE COURT: You’re saying that’s the one that 8989
1 he must have been talking about, right?
2 MR. AUCHINCLOSS: Yeah. I’m drawing a
3 reasonable inference from the location of that
4 document in the files.
5 THE COURT: Okay.
6 MR. AUCHINCLOSS: This is — 417 is the —
7 are the documents — the first document entitled
8 “Janet Strategies” located in Mr. Schaffel’s files
9 clearly provides some circumstantial evidence of an
10 intent to come up with various strategies to deal
11 with Janet Arvizo and her family. You can read the
12 document. The same thing with the, quote, “David
13 case.” The strategies are not always consistent,
14 and they’re admitted for purposes to show
15 consciousness of guilt and knowledge of the criminal
16 purpose of this conspiracy.
17 THE COURT: To show whose consciousness of
19 MR. AUCHINCLOSS: The co-conspirators.
20 THE COURT: Okay. 418?
21 THE CLERK: You admitted that this morning.
22 THE COURT: That’s already done.
23 419 is done.
25 MR. AUCHINCLOSS: 418, we’ve already —
26 THE COURT: No, we did 418 and 419, I’m
27 sorry. 420 is where we are.
28 MR. AUCHINCLOSS: 420 are the e-mails 8990
1 amongst the co-conspirators, including Mr. Schaffel.
2 Some of these specifically reference the Arvizo
3 family. They certainly reference the panic that
4 existed at the time.
5 THE COURT: Were the e-mail addresses
6 authenticated, identified, and how do we know who
7 they came from?
8 MR. AUCHINCLOSS: The e-mail addresses
9 are — well, I would submit that if we have an
10 e-mail that is from Melanie at bellyard.com, and we
11 have testimony that Bell Yard is the crisis
12 management team in London that was dealing with Mr.
13 Schaffel at this time and he’s one of the parties on
14 the team, that that is circumstantially sufficient
15 foundation that this e-mail is what it purports to
16 be. There’s no evidence that these are all
17 fabricated. To the contrary, that this was — these
18 are all seized in a search warrant.
19 So this is — these came out of files
20 that — the personal files of Mr. Schaffel. So I
21 guess, you know, I’m — I keep drawing the same
22 reasonable — I mean, these are my inferences. They
23 may not be yours, Your Honor, but that’s where we’re
24 going with these.
25 THE COURT: On 421, that’s a contract after
26 the alleged events. Is that —
27 MR. AUCHINCLOSS: It is.
28 THE COURT: What would the relevance of that 8991
2 MR. AUCHINCLOSS: The defense has
3 announced — and maybe — well, I shouldn’t say that
4 they’ve just announced it. They have attempted,
5 through the introduction of evidence through
6 cross-examination, to show that Mr. Jackson was an
7 unknowing party to this conspiracy. They, in some
8 respects, seem to concede there was something
9 nefarious going on, but not involving Mr. Jackson.
10 If that is the case, then the continued
11 association with the co-conspirators beyond the
12 conspiracy, even after all of the fallout, would
13 tend to rebut that claim. And we have — this is
14 just one link in the many links we have that Mr.
15 Jackson maintained his affiliation with Mr.
16 Schaffel, Mr. Weizner, Mr. Konitzer, for months and
17 months and months past the conspiracy. So this was
18 not a situation where some bad things happened and
19 Mr. Jackson then fired everybody.
20 It also shows the financial motive of the
21 various co-conspirators to continue in their
22 relationship with Mr. Jackson. This is all about
23 money. We don’t dispute that among the
24 co-conspirators. They’re interested in a financial
25 gain. But the financial gain they are seeking is
26 from the success of Mr. Jackson, not from his fall.
27 THE COURT: Okay. 422.
28 MR. AUCHINCLOSS: There was testimony about 8992
1 these documents. Mr. Provencio did look at them.
2 He did identify them as the operative documents that
3 established the loan with Royalty Advance Funding
4 that bankrolled Neverland Valley Entertainment.
5 THE COURT: All right. Thank you.
6 Mr. Sanger, do you wish to address any of
8 MR. SANGER: Yes. Thank you.
The defense responded by saying the prosecution cannot claim there was a conspiracy without naming the conspirators who were in possession of those documents:
9 I know we have other things to do, so let me
10 try to go through as quickly as I can.
11 I think I addressed 400.
12 THE COURT: You did.
13 MR. SANGER: Okay. That takes us to —
14 THE COURT: 403.
15 MR. SANGER: — 403.
16 One quick correction, and I think it really
17 helps to illustrate how little foundation there is
18 for this. Your Honor had indicated that you
19 believed that Mr. Mesereau had referred to perhaps
20 something in that exhibit or related to that
22 If I’m not mistaken, Mr. Mesereau is
23 referring to something totally different. He was
24 referring to an instant message communication,
25 which, although there’s advertisements for instant
26 messages at the bottom of some of those purported
27 e-mails, they are not instant messages. The instant
28 message is a realtime exchange where one person 8993
1 types something and the next person responds, and
2 they go on in, more or less, realtime. And it was
3 not, as far as I know — and I’ve looked through it
4 again quickly, it was not one of the documents in
5 the 400 series that had been marked by the
6 prosecution. So there’s been no authentication, and
7 this will apply to all these other e-mails, so I
8 don’t have to repeat it.
9 THE COURT: All right.
10 MR. SANGER: No authentication. We don’t
11 know if — who sent the e-mails, if they were
12 received by somebody in particular, if they were
13 reviewed by somebody in particular, if they were
14 possessed, if anybody had knowledge of it.
15 Most importantly, it has nothing to do with
16 Mr. Jackson’s knowledge of anything. There’s no
17 indication from Mr. Provencio’s testimony or anybody
18 else that Mr. Jackson had knowledge of any of this
19 stuff that’s in here. And I’ll say that generically
20 so I don’t have to repeat it.
21 There’s a way to lay a foundation in a court
22 of law, and it just wasn’t done. I don’t know if it
23 could be done. I take it, because they didn’t do
24 it, they didn’t have a witness who could do it. But
25 whether they could or they couldn’t, it was not
26 done, and therefore none of these things are
28 I’ll go to 404. Again, no specific 8994
1 authentication. The indication is 404 had something
2 to do with Stuart Backerman. And the question is
3 what did it have to do with Stuart Backerman, just
4 like all these other documents. Quite frankly, I’ve
5 forgotten exactly if it was in a Stuart Backerman
6 file or whatever it was. We now have testimony that
7 there were several people who were in that house,
8 using that house as an office, several people
9 maintaining desks and having phones, having files.
10 How do we know who had what?
11 The People cannot — the prosecution can’t
12 get up here and say to the Court, everything is some
13 kind of statement that is in furtherance of the
14 conspiracy or it shows the state of mind of a
15 co-conspirator, or some other thing like that, and
16 not identify which, if any, co-conspirator it
17 relates to. They haven’t alleged that Stuart
18 Backerman was a co-conspirator. They haven’t
19 alleged that Bell Yard was a co — Bell Yard is a
20 reputable public relations firm in England. And the
21 testimony was is that they were a public relations
22 firm. I mean, he can’t say everybody that helps a
23 celebrity with regard to productions of — or people
24 associated with a celebrity, with a production of an
25 event or a video or a television show, is involved
26 in some kind of a conspiracy, and therefore, even
27 though there’s been no proof as to who possessed it
28 or what it is, it must belong to some nebulous 8995
1 co-conspirator in some giant conspiracy. And that,
2 again, is an underlying problem with some of the
3 subsequent ones, so I’ll spend just a moment on that
4 at this point.
5 In other words, the proper way to prove
6 something is to prove that it — it was in the
7 possession of and belonged to a particular person;
8 that it was sent by somebody in particular; that it
9 had some significance. It isn’t just a piece of
10 paper there. You have to authenticate it. Just the
11 fact there’s a piece of paper there doesn’t cut it.
12 The analogy for a pay/owe sheet I think was
13 actually telling. Because if you have somebody who
14 is caught, you know, with the dope in their room and
15 under their bed, and under the bed with the dope is
16 a sheet that says so-and-so, somebody something, you
17 still have to authenticate it. Now, it may not be
18 an issue as to wrote it. If it’s an issue as to who
19 wrote it, and whether or not the person who’s
20 charged had knowledge and possession of that pay/owe
21 sheet, then it would be a big issue. That’s the
22 issue that we’re dealing with here. It’s an issue
23 as to what Mr. Jackson knew, if anything, about
25 This is a lot of junk that was taken out of
26 somebody’s house and thrown in with rhetoric that
27 it’s highly relevant. Highly relevant is what the
28 District Attorney wants to make out of it. But that 8996
1 isn’t the authentication. And that’s where they’re
2 stuck and they haven’t laid the foundation.
3 406, the first four pages are not
4 authenticated as to signatures or significance or
5 who it came from or what happened. It’s just a
6 document that’s there. The next pages, five to
7 nine, are pages that, once again, we don’t know what
8 it is. It’s not signed. There’s some notes by
9 somebody, the handwriting hasn’t been authenticated.
10 Who possessed it, who had knowledge of it hasn’t
11 been authenticated. It, again, doesn’t link Michael
12 Jackson to anything, because there’s absolutely no
13 evidence Michael Jackson had anything to do with it.
14 Now, I’d remind the Court respectfully that
15 the witness that did testify, the police officer
16 that testified to the seizures I believe is
17 Detective Bonner, said that he wasn’t sure which
18 pages were attached to which pages. He didn’t know
19 who wrote the numbers at the top until he took a
20 break and was informed they were D.A. numbers. And
21 in fact, he said that, at least as to a couple of
22 the exhibits, it was questionable as to whether the
23 items that were stapled together actually went
25 So we have a problem that the jury would be
26 given a bunch of documents that are stapled together
27 or put in a binder by the District Attorney that are
28 given significance the District Attorney wants to 8997
1 give them, but there’s no authentication that they
2 belong together or have anything to do with each
3 other or were actually known of or possessed by
5 Page ten of that exhibit, the words of Mr.
6 Auchincloss were, “It appears to be a fax.” That is
7 exactly the problem, is that it appears to be a fax.
8 We don’t know what it is.
9 And then page 11 – I don’t want to get ahead
10 of myself here – is another document that — if I’m
11 in the right place, is another document that’s
12 unsigned. And the very last page was offered as
13 a — as a letter purportedly signed by Michael
14 Jackson. And a lot of discussion was had by the
15 District Attorney about how significant this is,
16 that this shows Michael Jackson had a connection
17 with Dieter Weizner. It’s offered for the truth of
18 the matter. You can’t offer a document for the
19 truth of the matter. And you can’t say this is
20 signed by Michael Jackson just because it’s found in
21 somebody else’s house or office. You have to lay a
22 foundation. You have to establish authentication.
23 And that’s all — it wasn’t done. That’s all there
24 is to it.
25 Go to 407, again, those documents are
26 subject to all the same criticisms. I heard Mr.
27 Auchincloss say they were accurate and correct
28 e-mails. Well, that would be nice if there was 8998
1 evidence that they were accurate and correct
2 e-mails. The fact that he says accurate and correct
3 doesn’t make them accurate and correct. It doesn’t
4 make them e-mails, it doesn’t make them anything.
5 No foundation was laid.
6 Go to 409.
7 THE COURT: No, that was admitted. 410 was
9 MR. SANGER: Let me —
10 THE COURT: You need to go to 412.
11 MR. SANGER: Did I talk about 408?
12 I think 408 was — I wrote 409. I meant
13 408. I’m sorry.
14 408, was that withdrawn or —
15 THE COURT: 408 would be your next —
16 MR. SANGER: All right. I misspoke when I
17 said 409.
18 408, this was a document that we were told
19 came off of a disk, and then as I recall, the
20 officer said that he printed out or somebody printed
21 out what was on the disk.
22 We have no idea who inputted this
23 information into the disk, who had knowledge of
24 this. There were quite a number of people at that
25 house. The fact is it doesn’t mean anything. And
26 the prosecution wants to use it to imply that
27 somehow Michael Jackson had some interest in the
28 data on this disk. And there’s absolutely no 8999
1 connection whatsoever with regard to that.
2 If we go to 412, there was reference to Ann
3 Gabriel. Her name is actually Ann Kite. And once
4 again, these are documents that are found, they’re
5 subject to all the same objections that I’ve already
6 made. Same with 413. In fact, if you put 412 and
7 413 together, they’re for the most part blank
8 documents that are not signed. There’s some other
9 things in there, some handwriting. We don’t know
10 whose handwriting it is. This is not the way you
11 present documents to the Court.
12 THE COURT: I did admit 413 already.
13 MR. SANGER: I’m sorry. Okay. Well — and
14 evidently, I’m sorry, this a good example of how you
15 present documents to the Court.
17 MR. SANGER: Okay.
18 THE COURT: 415.
19 MR. SANGER: Go to 415. Interesting. 415,
20 this is a collection of documents that I suppose
21 there could have been some foundation laid for it.
22 All we have is that they were seized. The
23 prosecution is adamant about wanting to introduce
24 415, and they do not want to introduce 416, which is
25 a summary of petty cash expenditures for Janet and
26 the children, and is exactly the same except
27 evidently they feel that it doesn’t make their
28 point. 9000
1 We have the same objections to
2 authentication on 415 that we have on the other
3 matters. But if the People were going to
4 successfully offer 415, then upon that, the Court’s
5 ruling in that regard, we would then offer 416. If
6 that’s an adequate foundation, I think the same
7 foundation was laid for both, whatever it is.
8 And I did specifically ask the officer
9 about — some questions about 417. So whatever
10 authentication he was able to give, he gave at least
11 as much as was given by the People for the other
13 420? Actually, the correct discussion I
14 think would be with regard to 420-A, if I’m not
15 mistaken. 420 were the documents that were
16 originally presented in the notebook, and then I
17 believe the prosecution gave us a new set of
18 documents which were marked 420-A.
19 Is that consistent with the clerk or the
20 Court’s recollection?
21 THE COURT: I’ll look at my —
22 MR. SANGER: While the Court’s looking, I
23 think that the — I think that the idea was that
24 Detective Bonner, I believe, testified that 420-A
25 was a better set.
26 THE COURT: You’re correct.
27 MR. SANGER: So I assume that actually 420
28 was being withdrawn by the prosecution, and I would 9001
1 assume that their remarks pertain to 420-A, not 420.
2 May I assume that?
3 THE COURT: I think so.
4 MR. SANGER: Okay. Thank you. So I’ll
5 respond to 420-A. The offer was these are e-mails
6 amongst co-conspirators. Once again, that’s
7 relevance, but it doesn’t establish the
8 authentication as to the e-mail addresses, where
9 they came from, how they got in the file, who saw
10 them, and so on.
11 421, I believe this is the — this is the
12 particular document, Exhibit 421, that Detective
13 Bonner said that he couldn’t be sure that the first
14 page went with the other pages. In fact, as he
15 looked at it, it probably didn’t.
16 And I think if you look at the content, Your
17 Honor will see that the cover page doesn’t seem to
18 match the dates of the subsequent document, nor does
19 the cover page have a fax header. So it looks like
20 somebody stapled a different fax sheet to two other
21 documents, and that just plain highlights the
22 problem that we have with these documents. And
23 that’s what happens when you don’t have
24 authentication and the Court’s asked to just assume
25 that if it’s there, it’s all okay.
26 Once again, there’s a purported signature of
27 Michael Jackson at the end of that, the very last
28 page of that document. There are no other 9002
1 signatures. We don’t know if this was a draft or a
2 proposal. We don’t have any authentication of his
3 signature, that that is his signature. And I think,
4 as we pointed out in our moving papers, if you look
5 at the various signatures that the prosecution is
6 offering as Mr. Jackson’s signatures in this series
7 from 400 to 423, Your Honor will see that there are
8 remarkable differences between some of them. Some
9 of them are similar. But there are others that look
10 totally different. And not that we’re asking the
11 Court to do a handwriting analysis, but that’s just
12 an example of why authentication is necessary. You
13 can’t just assume, based on the fact it’s found in
14 somebody’s house, that Michael Jackson signed it.
15 Particularly if it’s found in the house of Marc
16 Schaffel, of whom the prosecution witnesses have
17 said some pretty harsh things about his integrity.
18 So we have documents that are going to be held
19 against my client in a criminal case that are in the
20 possession of somebody who’s been accused of being a
21 liar and not a reliable person. And the signatures
22 don’t look the same, and yet the jury is going to be
23 asked to assume that Mr. Jackson signed them all.
24 That’s exactly why you need authentication. And we
25 don’t have it here.
26 And that takes us to 422; am I right?
27 THE COURT: Yeah.
28 MR. SANGER: 422. And 422 is exactly – 9003
1 suffers from the same problem. The only difference
2 is that Rudy Provencio actually did look at these
3 documents when he was on the stand, and said that he
4 believed those were the documents pertaining to this
5 transaction. How did he know that? He was
6 apparently snooping in the file cabinet. He had no
7 direct involvement in preparing these, dealing with
8 these or anything else. And as the Court I think
9 gathered – and more about that in a minute –
10 Mr. Provencio was trying to be a very helpful
11 witness to the prosecution and lied about things
12 that we can conclusively show he lied about. So his
13 testimony should be disregarded.
14 But if it’s not disregarded entirely, at
15 least there’s something there. However, it does
16 suffer from all of the other — the other problems
17 the other exhibits have.
18 And I’ll submit it.
19 THE COURT: All right. Thank you.
20 Who’s going to argue the motion to dismiss?
21 MR. MESEREAU: Mr. Sanger is, Your Honor.
22 MR. AUCHINCLOSS: May I offer one more
23 thought on that, that last one?
24 THE COURT: Yes.
Here’s the prosecution’s response:
25 MR. AUCHINCLOSS: I mean, one thing we could
26 do is to offer defendant’s 977 waiver as evidence of
27 his handwriting, ask the Court to take judicial
28 notice of that. 9004
1 THE COURT: Okay.
2 MR. AUCHINCLOSS: All right.
3 THE COURT: What I’m going to do — I’m
4 going to listen to the motion to dismiss. I have a
5 pretty good idea now, having heard your arguments on
6 the other exhibits, what — I’ve made notes to
7 myself as to their admissibility or
8 nonadmissibility. I’m not going to announce those
9 now because we need to move along.
10 MR. SANGER: Yes, sir.
11 THE COURT: But I wanted to take care of that
12 before you argued the motion to dismiss so that I
13 would know in my own mind what documents I would be
14 considering, if any were alluded to in the motion.
15 MR. SANGER: Very well.
16 THE COURT: So you may go ahead.
17 Mr. Sanger?
18 MR. SANGER: All right. We did have that
19 other — that Doyle motion, which is just —
20 I thought Your Honor —
Judge Melville denied the defense’s request for a mistrial, titled MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR A MISTRIAL FOR DOYLE ERROR, in which they argued that either a mistrial should be granted, or a curative jury instruction should be given to the jury to remind them not to consider the inadmissible question that the prosecution asked Duross O’Bryan during the previous day’s testimony. (He was asked about his attempts to acquire additional financial information from Jackson in 2004, but stated that it was not provided, thus implying that Jackson was deliberately trying to hide evidence, when in fact he was exercising his right to remain silent.) However, he allowed Sanger to argue for a motion for acquittal based on insufficient evidence:
21 THE COURT: The Court will deny the motion
22 for a mistrial and deny the request for specific
23 instructions. Basically I think that Mr. Mesereau,
24 on his cross-examination, adequately covered the
25 area. And I’m going to leave it with that.
26 If you want to submit, as in other cases, a
27 special instruction in the final jury instructions,
28 I would consider it at that time. 9005
1 MR. SANGER: Okay. Thank you, Your Honor.
2 All right. With regard to the motion for
3 judgment of acquittal based on insufficient
4 evidence, excuse me, that was coupled with a motion
5 to strike statements allegedly made by the
6 co-conspirators. Let me argue the main motion
7 first, because I think that — that would be a
8 consequence of the Court’s ruling, although the
9 Court could independently rule to strike the
10 co-conspirators’ statements or it could do it first
11 or second, I suppose is what I’m saying.
12 So let me address the motion for judgment of
14 There are four areas of the prosecution’s
15 case that I want to address, and I want to address
16 them in the context of the law that we have already
17 briefed under 1118.1 of the Penal Code, and briefly
18 indicate that that law includes the Court’s
19 determination that the evidence is reasonable,
20 credible, and of solid value from which a reasonable
21 trier of fact could find the defendant guilty beyond
22 a reasonable doubt.
23 THE COURT: Let me ask you — I read your
24 motion, which you really seemed to be asking me to
25 make some credibility calls on the witnesses, and
26 isn’t it true that that’s not my job? I mean, that
27 is exactly what I shouldn’t be doing, is be the
28 person who makes credibility calls on the witnesses. 9006
1 MR. SANGER: No, I think that that is
2 part — that’s why we cited that.
3 THE COURT: You cited a general jury
4 instruction, so —
5 MR. SANGER: We cited the case specifically
6 of People vs. Allen, 2001 case, which cited —
7 that’s a Court of Appeal case, which cited
8 People vs. Stanley, 1995 California Supreme Court
9 case. It all goes back to Jackson vs. Virginia,
10 which has nothing to do with Mr. Jackson, my client.
11 Jackson versus Virginia was the United States
12 Supreme Court decision in which the U.S. Supreme
13 Court talked about the standard of review and
14 whether or not a rational trier of fact could find a
15 defendant guilty beyond a reasonable doubt.
16 That Jackson versus Virginia instruction has
17 been used for the purpose of sufficiency of
18 evidentiary view by appellate courts and it’s been
19 incorporated into the California standard for the
20 review of an 1118.1 motion for the review of the
21 evidence under that code section.
22 And as these cases say, the California
23 Supreme Court has said that the Court has to look to
24 see that the evidence is reasonable, credible and of
25 solid value. In other words, the mere fact that
26 somebody threw something up on the wall and it
27 wasn’t ruled inadmissible does not mean that the
28 Court has to defer to it. So it is — this is, in 9007
1 fact, different than the kinds of rulings the Court
2 was being asked to make, for instance, on 352
3 evidence, and some other places where the Court was
4 saying, “Well, I’m not supposed to weigh the
5 credibility, or 1108 I’m not supposed to weigh the
6 credibility.” We’ve had those discussions.
7 The Court, there, we argue — well, you
8 should anyway, but — the Court took that position.
9 However, with regard to 1118.1 motions, the
10 Court does consider credibility.
11 Now, it doesn’t mean that Your Honor sits
12 there and says, “I am going to pretend I’m a juror
13 and I’m going to decide this case based on how I
14 would vote if I would a juror.” But it does mean
15 that this is now the one place where the Court can
16 say the prosecution has put on all their evidence,
17 they’ve rested, they took their best shot, this is
18 it, and a rational trier of fact could not find the
19 defendant guilty beyond a reasonable doubt.
20 The emphasis on “rational” in the case law,
21 all the way back to the U.S. Supreme Court decision
22 in Jackson vs. Virginia, is extremely important.
23 It’s not just words. It’s based on the idea that
24 the Court, as a jurist, a lawyer who’s become a
25 judge and has sat and heard cases – in this Court’s
26 case for a long time – a jurist —
27 THE COURT: I resent that.
28 (Laughter.) 9008
1 MR. SANGER: Or you started early in life or
3 The point of the story is that a jurist, of
4 course, is supposed to be able to look at things
5 dispassionately, and we are supposed to be able to
6 avoid submitting matters to the jury, where a jury,
7 a rational trier of fact, cannot find the defendant
8 guilty beyond a reasonable doubt. So it is a much
9 higher standard. This is not the 995 standard
10 either, where the Court just determines whether or
11 not there’s probable cause or a strong suspicion
12 that a crime was committed, that being the standard
13 for 995. This, under 1118.1, is rational trier of
14 fact could not find the defendant guilty beyond a
15 reasonable doubt.
16 So the Court does have a considerable burden
17 to look at the evidence and determine whether or not
18 a rational trier of fact could look at what just
19 happened here over the last ten weeks, or whatever
20 it’s been, and find a defendant guilty beyond a
21 reasonable doubt.
22 So there are four areas I’d like to talk
23 about as far as the evidence is concerned. And I’ll
24 try to go through as quickly as I can, but this is
25 important, so I do want to cover it.
26 THE COURT: I don’t want you to feel
27 compelled, because of a deadline, to hurry. Because
28 I needed that extra time on those 400 exhibits. 9009
1 So —
2 MR. SANGER: Sure.
3 THE COURT: We’re going to take our regular
4 break and then I’m going to tell the jury that it’s
5 going to be a while, and give you time to argue
7 I didn’t mean to reduce either side’s time
8 for this important motion.
9 MR. SANGER: Very well. Thank you.
10 (Recess taken.)