Part 3:Massive Prosecutorial Misconduct during Grand Jury Process?– Bullet #162

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Continuing the series of reporting on the misconduct during the grand jury process, we learn even more about the way in which grand jurors may have been intimidated by prosecutors and received incorrect statements of the law. We also learn that the lead detective investigating this Jackson “case” was the same person responsible for escorting grand jurors to and from their meeting place. On top of these facts is more information cited from the grand jury transcripts regarding Sneddon allowing jurors to hear total hearsay and speculation on which to base their decision. We pick up with a quote pulled from the grand jury transcripts in which Sneddon was actually testifying to the jurors about events which the witness says was an absolute lie. The following snippet from the grand jury transcripts is yet another of the many examples of the district attorney testifying—while not under oath—to events that a witness says never happened:

737:13-16 Relevance, DA Testifying Q. You said that you were going on TV because you were a sole practitioner and you need all the publicity you could get A. That’s an absolute lie sir.

An absolute lie. We know the caliber of Sneddon’s testimony now. He was openly trying to discredit this witness in front of grand jurors by lying to them in regards to what the person–under oath—says is a total lie. Remember, Sneddon isn’t under oath here, so he can say whatever he wants to—even if it’s a bald-faced lie—and he can’t be prosecuted for lying to grand jurors. As reported earlier, Sneddon also allowed at least one witness to refer to Jackson as “the devil” and state that she didn’t want any of “the devil’s money.” As a point made earlier, she didn’t seem to have a hard time accepting Jackson’s “devil money” as long as she had an open tab at wherever she shopped, ate and lodged. This outrageously ridiculous behavior wasn’t so much as mildly admonished by the prosecutor. There was also at least one witness who testified to “wild tales” of killers and secret conversations allegedly done in code, when none of this was so much as remotely proved or any evidence presented to bolster it. Here’s the specific quote from the defense’s motion:

Furthermore, the District Attorney allowed ________ to prejudice the grand jury with wild tales of “killers” (ie RT 1139; 1148) and secret conversations in “code” (RT 1133) despite a total lack of support for this version of events by other witnesses.

But what was more outrageous than that circus of a grand jury (you can thank Friedman for that phrase) was the way in which they may have been intimidated by Sneddon. Jury members were told when to take breaks, when to leave, when to stay, when to give admonitions, what questions were and weren’t important, and were refused access to recall certain witnesses without going through a paperwork process in which prosecutors had to approve their right to call the person. He even trivialized the grand jury foreperson’s role by downplaying the importance of when she would admonish a witness. The defense motion states:

Throughout the proceedings the District Attorneys made it clear that they were running the grand jury. They did not show respect or deference to the foreperson. They did not ask or suggest, but instead, told the grand jurors when breaks would occur, when to give admonitions and what to do. They depreciated the serious functions of the foreperson with remarks trivializing her admonitions.

To further illustrate the point, the defense cites a specific incident from the grand jury transcripts where Auchincloss, another prosecutor, dismissed a grand jury question about whether one female witness had seen other children drinking alcohol. If recent reports are true, prosecutors also may have either wanted to hide the fact that this witness allowed her children to drink (if said witness is the accuser’s mother), or they wanted to hide the fact that it would be strange that no other child at Jackson’s house was seen consuming alcohol and how convenient it is that only the accuser is alleged to have been given alcohol. Let’s not get into the many levels on which the alcohol story is flawed, and stick to what’s in the defense’s motion for now:

The grand jury was discouraged from exercising their power to conduct an independent investigation. The grand jury wanted to ask _________ if she had observed other children drinking alcohol ____________ (RT 466). Mr. Auchincloss informed the grand jurors that “the issue of Mr. Jackson and other children is not before you” (RT 490)

What is before the grand jurors is information regarding this case. They have the authority to question witnesses and request that a witness or witnesses be called back for additional questioning. When they wanted to recall a witness, Auchincloss told grand jurors they had to submit a form and get the prosecution’s approval to recall a witness:

The grand jurors requested that the prosecutors call back certain witnesses and Mr. Auchincloss stated that in order to call witnesses they must first submit a written request for the approval of the prosecution (RT 1250: 25-1251:41)

It will be interesting to see whether they did request a certain witness to come back to give further testimony, and prosecutors may have told them no. Grand jurors don’t have to get prosecutors written permission to recall witnesses. It is well within their authority to re-question witnesses from whom they need further testimony. Also remember that Jackson’s previous attorneys, Mark Geragos and Ben Brafman, turned over binders of information and exhibits to the grand jury a while into the process. So the grand jury may have wanted to re-question some of the witness with the new information from the defense. To illustrate just how controlled the process was, the defense lays out specific incidences where the iron fist of the prosecution was definitely in play. From the defense’s motion:

Mr. Sneddon directed the jurors to take a lunch break, arranged for sandwiches to be brought to the grand jurors, and told them what time they should come back from lunch (RT80). Mr. Zonen told the grand jurors to “stay in place” while the district attorney stepped outside for a moment (RT94). The prosecutors decided when the grand jury would take breaks and when it would adjourn without asking the foreperson (RT 157-158; 220; 298; 398; 833; 846; 891; 986). The grand jurors believed that they had to ask the prosecutors for permission to use the restroom (RT 844:8-10).

Sneddon even gave grand jurors two choices in how to proceed, then told which choice he preferred they pick. What the hell? We know the grand jury is an arm for prosecutors, but as stated previously, they do have certain rights and a duty to at least try to remain independent. However, the defense says grand jurors were totally dependant on the prosecution in just about every way. From the defense’s motion:

The grand jury never had a chance of being independent because prosecutors trained the grand jurors to follow their lead by demonstrating their control over the grand jury from the start of the proceedings.

To further add to the weirdness factor, it’s been revealed that the person in charge of the grand jurors’ safety is the same lead detective investigating the molestation case against Jackson. WTF? There couldn’t have possibly been any other deputy available to “protect” them? From the defense’s motion:

It was not possible for the grand jury to remain independent because the lead detective investigating the case against Mr. Jackson was also responsible for the safety of the grand jurors during the grand jury proceeding.

Okay. So who was doing the investigation if the lead detective, for some strange reason, was doing the grunt-work of escorting them to and from the meeting place? The fact that it was the lead detective may have caused grand jurors to be more concerned than they should have been about threats to their safety. And when you are sitting on a grand jury where the defendant is also accused of kidnapping and abduction, there’s no way in the world you could convince some people that this fact didn’t somehow factor into the grand juror’s decision to indict Jackson on, at least, the conspiracy charge. There is a “cumulative effect” involved here. Now all of this is coupled with the fact that there was misconduct BEFORE Jackson’s home was ransacked by police. Jackson’s attorneys want to “quash the search warrants and suppress the illegally obtained evidence.” What’s that? Illegally obtained evidence? Yes. As of now, there is a question before the court as to whether some of the information presented to the grand jury was illegally obtained and possibly twisted, to get the indictment against Jackson. Because of that, Sneddon—the current DA of Santa Barbara who is prosecuting this case—will have to testify as to what he did to obtain some of the information presented to the grand jurors. To recap: the issue at hand is whether Sneddon knew that a private investigator—whose offices he raided by obtaining a search warrant with a lie on it—was working directly for Jackson or for Jackson’s attorney, Mark Geragos. The private investigator, Brad Miller, was hired by Geragos and anything he was working on falls under attorney-client privilege. There should be no question about this. From court papers filed on June 22 2004 (which will be discussed in a future MJEOL Bullet), Jackson’s attorney, Robert Sanger, explains that on Nov 18 2003, police broke into Miller’s office–with that flawed search warrant incorrectly listing Miller’s employer–in which they used a sledgehammer to force open Miller’s personal office and conference room. They took privileged information from his office. One of the items seized was a fax listed as “Item Number 821, one faxed Memo from Bradley Miller to Mark Geragos”. Some of his information was presented to grand jurors. This is just cause to have the indictment tossed out in and of itself. Add on top of it all of the misconduct by prosecutors, the introduction of inadmissible testimony, the DA testifying while not under oath and arguing with witnesses in front of grand jurors. If Jackson’s attorneys can prove the search on Miller’s office was illegal, out should go the indictment. But what other reasons are there to get the indictment tossed? Well besides prosecutors failing to present all of the exculpatory evidence as reported in Part 1 of this series, there appears to be an error in the way prosecutors stated the law when instructing grand jurors about the conspiracy charge. From the defense’s motion:

Mr. Auchincloss failed to instruct the grand jury that a conviction of conspiracy requires not only the specific intent to commit an offense, but also the specific intent to agree or conspire. “A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense together with proof of the commission of an overt act “by one or more of the parties to such agreement” in furtherance of the conspiracy” (People v Morante (1999) Cal. 4th 403, 416).

The defense says Auchincloss instructed the jury that there are only 3 elements required to show a conspiracy, but failed to tell them that a conviction for conspiracy requires proof that the defendant, plus at least one other person, had a specific intent to agree/conspire to commit that offense. They say:

The grand jury returned the indictment on less than reasonable or probably cause because they were never instructed to consider this essential element.

Further, the grand jury would be in no position to correct this misstatement because they aren’t lawyers and wouldn’t know that they weren’t getting the full facts from the prosecution. They say that a trial judge is in no position to correct an instruction by attempting to make its own determination about whether the evidence is sufficient or not; and especially not after the fact. So if Judge Melville ever thought he could save this indictment by stepping in and trying to determine for himself if there’s sufficient evidence, he should read case law on the issue:

The view that it is up to the trial judge who hears the Penal Code section 995 motion to determine whether the evidence was sufficient to support the indictment has been rejected by the California Supreme Court in Cummiskey (People v Gnass (2002) 101 Cal. App. 4th 1271, 1314)… Cummiskey demonstrates that the trial court cannot correct instructional error by attempting to make its own determination of sufficiency of the evidence. Such an attempt would render the grand jury meaningless and perfunctory.

For all of the reasons stated in this three part series, the defense is asking the judge to toss out the indictment. The defense’s motion is filled with examples from the grand jury transcript and their points are shored-up by caselaw they cite all the way through their motion—or at least the 47 pages of the 127 page motion. The ridiculous way in which this “grand jury circus” was run should be reason enough for being tossed. There seems to be nothing Melville can do—and legally he can’t—to step in and correct the huge number of wrongs done during the process. So what are the real chances of the indictment getting thrown out? With this judge, I’d say unless there was an act of God (that being the Appeals Court), the indictment could stand if it were solely up to him. If Melville is the type of judge who hates getting his decisions overturned, he should seriously consider the defense’s motion. He already has the Appeals Court breathing down his neck about the $3M bail issue. Can you imagine what kind of reputation he would have if he accepts the indictment only later to have his decision overturned AND the indictment kicked by the Court of Appeals? Will he be willing to take that chance? Stay tuned. -MJEOL :nav [url=]Your Comments?[/url]

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