Massive Prosecutorial Misconduct during Grand Jury Process? MJEOL Bullet #162-Part 1 There are shocking new details today (July 8 2004) in the Michael Jackson case. Apparently there was massive prosecutorial misconduct during the grand jury process. Prosecutors were bullying witnesses, became involved in personal arguments between witnesses and vouched for their version of events to grand jurors while accusing other witnesses of lying. Witnesses were also told not to talk to the defense by prosecutors. In addition, sources say prosecutors didnt allow grand jurors to ask certain questions and denied their request to have certain witnesses called back to for further testimony. This is massive prosecutorial misconduct which can be corroborated by the grand jury transcripts. In a scathing 127 page motion (995 Motion) filed by Jacksons defense team asking for the indictment to be tossed out, his attorneys highlight situation after situation where prosecutors engaged in what can only be termed as misconduct. From the motion, we lean that the grand jury proceeding spanned from March 29 April 21 2004 but there were only 12 days of testimony. It also produced a 1900 page eight-volume transcript filled with informationmuch of which is inadmissible at trial, says Jacksons attorneys. This 995 Motion will not be argued on July 9 2004 because the prosecution filed their reply to the defenses motion too late. Judge Melville needs to give the defense time to essentially respond to the prosecutions late response. Thus, he has moved arguments to throw out the indictment to July 27 2004. The Associated Press reported some of the details from the heavily redacted version yesterday. Defense lawyers accused prosecutors of running it by innuendo and sarcasm:
The defense accused the prosecutors who ran the secret grand jury hearings of proceeding by innuendo and sarcasm, impugning Mr. Jackson by ridiculing those allegedly associated with him and even those who sought to legally represent him. (see article)
The defense lays out their arguments to have this indictment tossed. From the motion:
At least once, the prosecutor vouched for his own version of events while not under oath and accused witnesses of lying. Witnesses were told not to provide information to the defense. Prosecutors suggested without foundation that Mr. Jacksons defense investigation is improper. (see Defense 995 motion)
Unbelievable. These kinds of actions cannot be easily explained away. Another not so shocking allegationnot shocking, given this prosecutors pastis the prosecutions overwhelming and crushing control over the grand jurors:
The prosecutors ran the proceedings as if they employed the grand jurors. They proceeded by innuendo and sarcasm, impugning Mr. Jackson by ridiculing those allegedly associated with him and even these who sought to legally represent him.
One witness who testified in front of the grand jury was obviously Russell Halpern, the lawyer for the father of the accuser. In a very heated exchange noted in the defenses motion, Halpern was attacked on the stand by Senddon and said the DAs office, namely Sneddon, was very hostile towards him. This was chronicled in the AP report and during yesterdays (July 7 2004) show of The Abrams Report. From the AP report:
In the transcript section quoted, Halpern and District Attorney Tom Sneddon argued angrily about the attorneys initial efforts to get information from the prosecutors office.
Now read from the defenses motion about the exchange, in front of grand jurors mind you, between Sneddon and Halpern:
Taking only one example from dozens, no Court has ever condoned the kind of grand jury decorum exhibited by Mr. Sneddon during an exchange with witnesses:
Q. Did you at the time that you heard that these serious charges had been leveled against a worldwide known entertainer, ever come to the DAs office and say, Hey Mr. Sneddon, Ive got these_____, or I heard about these _____ or You might want to know this. Did you ever do that before you went on national TV? A.No. I found the DAs office to be hostile when I called. I found the head DA, that being yourself, to be very uncooperative. In fact, I called your office in the beginning to find out whether my clients son was the person who was charged with molestation. You initially refused to tell me. I asked you if my clients son was dying. You initially refused to tell me. I was only after I told you that I might have to tell the press of your reaction that you called back and then told me. I found your attitude, conduct to be very hostile, and not a office that would be wanting to hear from me, period. Now, I have other information. And if you want to ask me other information, Ill provide Q. That is totalthat is not the way that conversation went and you know it. A. You know it too. Q. I explained to you why at that time we couldnt tell who the victim was. Because nobody knew the family at that time, did I not? A. No, you didnt. Q. And then you said, Wouldnt you as the father want to know if the child was sick? And I said to you, Okay. Im going to tell you. And I did tell you the child was fine, did I not? A. Ill tell you, I remember the conversation specifically because I took notes. Q. So do I
The transcript reveals Mr. Sneddon was personally upset by the fact that [Halpern] had embarrassed him by making public statements to the media.
If you remember, Russ Halpern is the attorney who openly accused Sneddon months ago of trying to claim he would be a witness in an effort to shut him up. He also accused prosecutors of interfering with a family law proceeding that had nothing to do with them. He was dropping bombshell after bombshell, about the accusers mother. One of those bombshells is the mothers history of coaching her children to lie to authorities. Halpern revealed documents from an earlier LA Child Services investigation (not the one dealing with the Jackson case) where the childrenaway from the mothers presence–first claimed that their father never hit them or their mother. At the time, they told Child services workers that their father was never violent. When Child Services came back for a follow up interviewwith the motherthe childrens stories suddenly changed. They alleged all kinds of abuse towards them and their mother; the sister at one point claiming her father broke her tailbone, although its unclear if any medical records were provided as proof of this. Halpern revealed in Nov 2003 the following:
Halpern said the father once showed him a script his wife had allegedly written for their children to use when they were questioned in a civil deposition. She wrote all of their testimony. I actually saw the script, Halpern said. I remember my client showing me, bringing the paperwork to me. (see article)
The civil deposition was that JCPenney case, in which the family ultimately settled for $137,000.00 after initially suing for $3M. This kind of information could also explain the hostility experienced by Halpern from the current DA. So Halpern, who initially may have contracted Sneddon to warn him of the accusers mothers past, was written off and ignored by the prosecutor until he decided to go public with the information. And this could be why Sneddon is disingenuously stripping Halpern of his First Amendment Right to talk about the case. Halpern was also quoted by Fox Newss Roger Friedman in a May 19 2004 article in which he expresses concern over why the accusers father is being kepteven from supervised visitationparticularly from his sons:
But it turns out, according to the fathers lawyer, that the daughter has seen and spoken to her father. The mother doesnt care whether she sees him or not, says H. Russell Halpern. Shes only interested in keeping the boys away from him. Shes afraid theyll tell him that the whole Michael Jackson story is made up. (see article)
If this is the case, it further illustrates why Sneddon wants Halpern silenced from making the talk show rounds. Halpern may make his prosecution mouthpieces look bad. Getting back to the defenses motion, Jacksons attorneys rip into what they call the prosecutions outrageous display of power:
Mr. Sneddon through bullying tactics, inadmissible evidence and his own personal vouching for his version of events, wanted to destroy this witness and establish to the captive grand jurors that he, Tom Sneddon, was the victor. This was an outrageous display of power that would not be allowed before a judge in any open court.
The motion also states that the grand jury transcripts reveal the prosecutions total lack of presenting information in an accurate matter. From the report by the AFP, comes the following quote:
The transcripts reveal a complete disregard on the part of the prosecutor for his duties to present evidence fairly and accurately and to behave in a fashion that would have been approved by a judge, he wrote. (see article)
Prosecutors also downplayed all of the exculpatory evidence presented by the defense to be given to grand jurors. The defense says they presented the evidence in an indifferent manner, and that this undermined their importance to be considered by the jurors. The motion also cites one of the prosecutors, Ron Zonen, as totally minimizing the significant of the defenses exculpatory information:
Mr. Zonen compared the presentation of those materials to be a grade school assignment. (RT 835:12016). He went on to inform the jurors that the statements of Mr. Jacksons counsel were made by them in their role as partisan advocates for the accused, not as witnesses. (RT 837:7-9).
The defense also revealed that prosecutors at first said they wouldnt comment on the exculpatory/exonerating evidence, then they made sure to downplay its importance by convincing jurors that it shouldnt be taken too seriously because the statements werent given under oath:
After commenting on the materials, he stated, [t]he District Attorney submits the materials presented by the defense without commenting on its character, weight, importance, relevance, or materiality (RT 838:11-16). After claiming that the District Attorney would not comment on the defense evidence, Mr. Zonen stated, [i]t is for you to decide what weight or significance, if any, should be given to those unsworn statements in determining whether additional witnesses or evidence should be produced. (838:17-20). He stated [y]ou are advised that the materials in the exhibits portions of the binder [of exculpatory material] contain statements and information that were not made under oath. (RT 841:13-16)
As if the only kind of exculpatory evidence the grand jurors are allowed to consider are statements made under oath! Grand jurors who may not have understood this, could have disregarded valid defense evidence based on Zonens presentation. And defense attorneys pointed this out in their motion as well:
The District Attorneys improper commentary prevented the grand jurors from viewing the exculpatory evidence independently. Pointing out that statements are unsworn and hearsay to a grand jury made up of laypersons had the affect of asking the grand jury to discount exculpatory evidence as less valuable than the handpicked evidence presented by the prosecution.
Prosecutors also tampered with the defenses exculpatory evidence by completely taking out information while hiding portions of at least 10 of the 60 defense exhibits. If you remember, Jacksons former attorneys, Mark Geragos and Ben Brafman, handed over binders of information and 60 exhibits to be presented to the grand jury. Well, much of the information in those binders was redacted by prosecutors. This is from the defenses motion citing these actions:
Furthermore, the District Attorney removed 9 of the 60 exhibits and obscured portions of 10 other exhibits. (RT 838:2-5) So much of the evidence presented to the grand jurors was blacked out that it prompted one of the grand jurors to ask the prosecutor, [d]id you guys get any sleep this weekend. (RT 839:15-16).
Legal experts, when trying a case like this, say that if a prosecutor really wants to vet their case, they would present all of the defenses exculpatory evidence no matter how they feel about it. Former prosecutor Paul Pfingst even discussed the issue of exculpatory evidence on The Abrams Report April 5 2004. Pfingst said that generally prosecutors dont pick and choose what they present to the grand jury and what they leave out. He says prosecutors dump it all out there and leave it up to the grand jurors to decide whats important and whats not. When asked if prosecutors in general purposely under-present evidence to grand jurors, Pfingst says:
Only if you want to cut your own throat when youre in front of a [regular trial] jury. If its something thats going to affect this grand jury, you want to know it now, not later. (see transcript)
Well, it seems the prosecutors in the Jackson case may have done just that with their deliberate redaction of possibly key exculpatory information. Jacksons attorneys lay out what the grand jury process is suppose to be based on according to California law: 1) Prosecutors cant abuse his/her trust in the secret grand jury room; 2) Grand jurors must deliberate in a fair and impartial way that is not tainted with bias, prejudice, public opinion, or inflammatory evidence; 3) Grand jury must determine if there is a rational, strong suspicion for the assumption of guilt; 4) The matter is submitted to a trial court to determinewhether the defendant has been indicted without probably cause. They say the first 3 of these werent met based on what went on during the grand jury proceeding. The defense makes the argument that some of the unproven information was so prejudicial that had it been heard by a trial jury, it would have caused a mistrial. They also say theres a complete and total lack of anything supporting the conspiracy charge. The motion continues to blast away at the prosecutions total lack of evidence to substantiate the conspiracy charge. California law defines conspiracy as:
an agreement entered into between two or more persons with the specific intent to agree to commit a crime and with the further specific intent to commit that crime, followed by an overt act committed in this state by one [or more] of the parties Conspiracy is a crime.
To find someone guilty of conspiracy, there must be proof of the unlawful agreement and specific intent, along with proof that the overt act occurred in furtherance of that conspiracy. These overt acts must go beyond simple planning and agreement to commit a crime. For example, if prosecutors are going to say the rumored Brazil trip was a part of a conspiracy to commit a crime, they first have to prove that there was an agreement between Jackson and other people to commit a crime. There also has to be proof of an agreement to commit acts to further the alleged conspiracy. California law also says, An indictment based solely on hearsay or otherwise incompetent evidence is unauthorized and must be set aside on a motion under penal code section 995 (People v. Backus (1979) 23 Cal. 3d 360,387). The defense broke down how prosecutors went about getting a conspiracy charge without evidence. They say prosecutors basically used witnesses, with no personal knowledge of Jacksons relationship with the alleged co-conspirators, to talk grand jurors into believing in the sinister charge. Their testimony was based completely on speculation regarding Jacksons involvement. If this is the case, it would be much like allowing Diane Dimond, Maureen Orth, or Harvey Levine to get up in front of grand jurors and speculate endlessly about relationships between Jackson and his associates; things about which they have absolutely no first-hand knowledge. In other words, their main intent was to persuade grand jurors of Jacksons guilt in a conspiracy of which they have no evidence. From the defenses motion:
Despite their lack of personal knowledge, these witnesses were allowed to speculate regarding Mr. Jacksons involvement with the people named as co-conspirators in the indictment. Furthermore, none of this evidence established probable cause to believe that Mr. Jackson had the specific intent to agree or to conspire with the alleged co-conspirators.
Further, apparently nothing was presented to grand jurors to establish that Jackson had a specific intent to commit any overt acts of the prosecution-alleged conspiracy involving child abduction, false imprisonment, or extortion. The attorneys lay out what is required to meet the standard of law then show how prosecutors failed to meet those standards to sustain the charge. For example, to meet the burden of a false imprisonment charge, evidence must be shown that the defendant intentionally and unlawfully restrained, confined, or detained someone; keeping them from going anywhere where they havent consented to this restraint. The defense says Jackson remainsas of the filing of their motionthe only person indicted on conspiracy even though he is the least involved according to the prosecutions own version of events. You cannot have a conspiracy with 1 person. This may explain why prosecutors are stalling in handing in their response. They could be trying to buy time to either indict or charge the other alleged co-conspirators to take away one of the defenses arguments. But heres what the defense say in their motion:
even under the prosecutions version of facts, based on inadmissible evidence, he was the least involved in the conspiracy of any of the alleged co-conspirators. While the government may consider Mr. Jackson to be the most attractive target of their investigation, it is notable that the evidence linking him to an alleged conspiracy is inadmissible innuendo and speculation that he participated in a conspiracy based on his association with the alleged co-conspirators.
They cite case law in which a person cannot be guilty by association or suspicion in Dong Haw v. Superior Court (1947), People v Samarjian (1966) and People v. Villa (1957). You cant simply say oh this person worked for Jackson, therefore theyre a part of a conspiracy or these people did something to the family and they worked for Jackson. Therefore Jackson must be guilty too. Uh-uh. The law doesnt work that way. Again, unnamed witnesses, who knew nothing about Jacksons business relationship to the alleged co-conspirators, were asked to speculate about it. At one point, a witness being asked about one of Jacksons alleged co-conspirators (ha!) didnt even know what this persons position in Jacksons business was:
325:22-28 Q. Okay. And what is his position at Neverland? A. Honestly, Im not sure what his position was. I mean, I know that he would just come to the place, I mean, Neverland Valley. And he was also, I guess, trying to become part of Mr. Jacksons business, or trying to run his business or his traveling tours, that kind of stuff. Thats all I know
What the hell? Let me get this straight. These comments are coming from someone who is testifying in front of a grand jury deciding on whether to indict Jackson on a strong suspicion of guilt. This person doesnt even know what the alleged co-conspiratorthe subject of the questions abovedoes in Jacksons organization. Yet, he/she is testifying to it as if he/she has pertinent knowledge about it. I guess, Im not sure, and Thats all I know does not a conspiracy make. But wait! The ridiculousness doesnt end there. Stay tuned for Part 2!