DA’s Office has History of Illegal Searches, Breaking Atty-Client Privilege? – MJEOL Bullet #164 As previously reported, the search warrant served upon a defense attorney’s private investigator, Brad Miller, is a major point of contention in the Michael Jackson “case”. Aside from it being illegal for prosecutors to raid the office of anyone working with the defense team, there appears to be a history of this kind of brazen behavior with the Santa Barbara County District Attorney’s Office (SB DA’s Office).

Apparently, Miller and Jackson aren’t the only persons whose rights may have been trampled on by this DA’s office. There have been other cases in regards to the DA’s office getting into trouble for screwing-over a defendant’s constitutional rights, as outlined in a June 22 2004 defense motion and July 9 response to the prosecution’s reply. Redacted copies were released by Judge Rodney Melville on July 8 2004. That prior and repeated misconduct also involved the DA knowing or possibly knowing that certain people were a part of the defense team, but serving warrants upon them anyway. And, as always, Jackson defense attorneys cite specific case law of the SB DA’s office getting in trouble after invading the defense camp:

The courts have repeatedly warned prosecutors in California, and specifically the Santa Barbara County District Attorney’s office, about intruding into the constitutional rights of the accused, (Barber v Municipal Court (1979) 24 Cal.3d 742; Boulas v Superior Court (1986) 188 Cal.App. 3d 422; People v. Zapien (1993) 4 Cal. 4th 929; Morrow v. Superior Court (1994) 30 Cal. App. 4th 1252). Both Boulas and Zapien involved misconduct of the Santa Barbara County District Attorney’s office. The District Attorney knew, or should have known, that it was misconduct to invade the defense camp. (see defense motions)

In that Boulas case, the Court of Appeals actually addressed that misconduct. From the defense’s motion:

The court of appeal addressed this same issue in another case involving the Santa Barbara District Attorney’s office. “When the conduct on the part of the authorities is so outrageous as to interfere with an accused’s right to due process of law, proceedings against the accused are thereby rendered improper” (Boulas v Superior Court (1986) 188 Cal.App. 3d 422, 429). The fruits of this government misconduct must be suppressed and returned.

Defense attorneys say that the return of information from an invasion of the defense camp has been an adequate remedy for such outrageous behavior. They say at the very least a suppression of anything taken from the defenses is what should happen. What exactly happened before Miller’s office was raided? What went down when his office was ransacked on Nov 18 2003? The defense motion lays out what apparently happened. According to a memo by Tom Sneddon drafted on Nov 8 2003, Sneddon drove to Miller’s office, went inside the building, examined the roster of occupants, took a picture of that roster, climbed the stairs to the 2nd floor in an unsuccessful attempt to find a door with Miller’s name on it, then went across the street from the building and took a series of pictures of it. He then found a nearby phone booth and looked up Miller in the Yellow Pages. But it doesn’t stop there. Sneddon drove to a pre-arranged meeting where he conducted a “photographic lineup” with an unnamed witness or witnesses. He got the photographs from the Department of Motor vehicles. One of those pictures was of Brad Miller. Sneddon is doing all of this pre-raid investigation–even going so far as to pull DMV records and secure a photograph of Miller–and we are to believe it just completely snuck past him that Miller was working for Geragos and not Jackson?? Unbelievable. Jackson’s attorneys say there was no showing of a “crime or fraud or other justification” to cause for this raid to take place. They want to address this search as a matter of legality (or lackthereof), rather than argue if certain specific information taken from the office falls under work product. The larger picture here is that none of this is legal to begin with and was a violation of attorney-client privilege. Regardless of what was found, even if it helps the defense, it is still an invasion of the defense camp. Coupled with the fact that this DA’s office has a history of doing this, and it is a powerful argument. This isn’t the defense just crying wolf here or a routine challenge of an indictment, like all defense attorneys do. The arguments in their motions have weight to it and cannot be easily brushed aside as if they were frivolous. This type of blatant behavior by prosecutors and law enforcement may have caused Jackson to lose trust in his defense counsel’s ability to protect him and his exculpatory evidence from the misconduct of prosecutors. Some observers say it seems prosecutors took defense information from Miller’s office, used it in the grand jury, and changed the entire case to fit around the defense’s evidence. In other words, prosecutors can bust down the doors, get defense information, and change their entire story to explain-away or nullify Jackson’s evidence. In fact, prosecutors did change the number of counts, the charges, and the timeline of the alleged abuse during the grand jury process! This is major news that most of the media has been completely ignoring. The number of counts when Jackson was first charged in December has changed. First it was 2 counts of administering alcohol and 7 lewd acts. After the indictment, there were no longer 2 counts of administering alcohol. That number suddenly increased to 4. Huh? Did the accuser suddenly remember he was drunk 2 additional times? Please. Normally, memories don’t improve over time and anything that is ‘suddenly remembered’ by the accuser (or his family) is suspicious on its face. The number of lewd acts suddenly decreased as well, going from 7 to 4. And 1 attempted lewd act was added. I guess those other 3 times were just a figment of the accuser’s imagination?? Huh? What is the family gong to say on the stand? ‘I was lying about those 3 times, but it really happened those other 4 times. Oh yeah and 1 time he tried but I wasn’t drunk enough’. What the hell? Somehow I don’t think that’s going to fly. And the ‘conspiracy charge’ was suddenly added as well, after all of this new information came out about the family denying any wrongdoing on Jackson’s part. Remember the Los Angeles Department of Children & Family Services investigation in Feb 2003? The videotape of them denying any abuse, which was shot by Jackson’s videographer? Media interviews of them denying any wrongdoing by Jackson? Who knows what else? Well, it looks as if this conspiracy charge was specifically added to explain-away all of these denials of abuse. And don’t even get me started on the ridiculous timeline! So were all these changes made as a result of prosecutors’ illegally obtaining defense work product? Possibly. The changes simply seem too convenient for there to be any other reason. The only way prosecutors can sidestep the attorney-client privilege is if the lawyer was hired in order to commit a crime/fraud, or if they’re hired to prevent a criminal act by a client. If this is the case, the California Penal Code Section 1524(c) requires that there be a “reasonable suspicion” that the lawyer has documented evidence and is “engaged in criminal activity related to the documentary evidence.” And even then, you are required to have this information on the search warrant. This probable cause showing was certainly not made on the search warrant affidavit used to get into Miller’s office. Further, the defense says prosecutors knew full well that they were going to encounter attorney-client privileged information during their raid. Even on the actual statement of probably cause, it specifically says that computers or computer related items may contain privileged info. Some say that admission alone should have been enough to force a ‘special master’ to be present during the raid:

The Affiant [Paul Zelis] in the statement of probably cause, states that “computer and computer-related items subject to seizure pursuant to the requested warrants may contain privileged information.” While the Affiant limits his explicit discussion of privileged material to computer systems and computer related items, the government knew or should have known that any other documents and items to be seized from Mr. Miller’s office were held for Mr. Jackson’s counsel.

But wait a minute. If they admit, on the Miller warrant, that there would be “privileged” information on the computers, how in hell can they now claim that they thought Miller was working directly for Jackson? If Miller was working directly for Jackson, there would be no need to note that there could have been “privileged” information on the computers, since privilege applies directly to an attorney-client relationship. Remember? Prosecutors are saying they didn’t know that an attorney-client relationship existed here. Well, again, why would it be noted, even on that broad search warrant, that they could encounter privileged information?? And prosecutors really can’t get out of this one by claiming they didn’t know, because their suspicions of a crime or fraud must be clearly spelled out on the search warrant affidavit. And it wasn’t. The failure to do so renders the search invalid, says Jackson’s attorneys. Not only that, but prosecutors used an overly broad search warrant as a sort of “key” to get into the offices to look for relevant information. Search warrants are supposed to be very particular in what they seek. This is used to prevent a “general search” where the police would be able to just come in and take whatever they want, from wherever they want to take it. Defense attorneys lay this out in their motion by showing how the language on the search warrant affidavit was too general and some of it wasn’t specifically related to Miller. For example, the search warrant says “”many people use computers to conduct their business.” So? And? This is in no way specific to how Miller conducts or is alleged to conduct his business, nor does it mean that anything related to Jackson is on the computers taken. There are other examples the defense pulls from the search warrant too. Jackson’s attorneys state directly that there was no probable cause or “factual support” shown that would have even suggested Miller would have anything specifically about this case on his computer system. As a matter of fact, defense attorneys say that police didn’t even know what NOT to take because the warrant was too broad. The inventory of info seized shows that the sheriffs just took everything: all computers, videos, audiotapes, etc. But wait! As mentioned before, they also overstepped the bounds as to what they could and couldn’t search. The 4th Amendment preventing “exploratory rummaging” prohibits police from using an illegal, general warrant or any other warrant as a “key” to gain access to any and everything. Sheriff’s deputies exceeded the scope of even that broad warrant, and engaged in a “warrantless search”, defense attorneys say. The attorneys say it was permissible for them to search for documents related to an alleged storage unit, Miller’s alleged employment directly by Jackson or his alleged presence during some kind of meeting that is unspecific and redacted from the motion. But they took videos and audio from Miller’s office as well. There was nothing about videotapes or audiotapes, even in that broad search warrant:

Despite no mention of video or audiotapes in the search warrant, the Sheriff’s Department seized at least 8 videotapes and 2 audiotapes from Mr. Miller’s office, according [to] the Sheriff’s Department Property Form.

What remedy does the defense want for this infringement? At the very least, they say, the information should be suppressed and returned to Jackson’s present defense team. They want the illegal search warrants reversed and all info returned to their rightful owners. The lawyers also say that they do plan to move to dismiss the charges against Jackson in the future and even turns the prosecution’s argument around to prove their point. In a response to the prosecution’s reply, dated July 9, Jackson’s attorneys say:

The District Attorney claims that dismissal is the only appropriate remedy for invasion of the sanctity of the defense function. …Ultimately, dismissal may well be the only relief that is adequate to address the unconstitutional intrusion into the defense function. At the appropriate time, Mr. Jackson intends to move the Court to dismiss the case based on this and other conduct. However, in the interim, the government must not be allowed to benefit from the fruits of this illegal intrusion.

In the prosecution’s reply to the defense’s motion, they claimed that Miller’s role with the defense is comparable to a hired expert in a civil case. Jackson’s lawyers say this isn’t true. They say one can easily distinguish between a hired expert in a civil case, and a member of the defense team hired by a lawyer representing a client in a criminal case. Specifically, they state:

For the purposes of analysis and operation of the attorney-client relationship, a defense investigator stands in the same position as an attorney (People v. Meredith (1981) 29 Cal.3d 683, 690, n.3). This has not been said of a consultant in a civil lawsuit.

Prosecutors also tried to claim that the seizure of these video and audiotapes had labels on them “indicating their relevance.” One audiotape was labeled “MJ Tel. _______ 2-13-03”. Another one had the label “Michael Jackson ________” Defense attorneys say prosecutors are missing the point. They state:

The right to seize evidence outside of the particularized description of property listed in the warrant requires that it either plainly be contraband or evidence of a crime. To be evidence of a crime, there must exist probable cause to make the warrantless seizure and not merely an after the fact belief in “relevance”.

They say if there was a reasonable suspicion of video and audiotapes were somehow involved in a commission of a crime, there has to be a probable cause made to a “magistrate” BEFORE the search takes place. And it certainly has to be on the search warrant. You can’t skirt the 4th Amendment by making a determination of probable cause DURING a search. In a case involving probable cause, Lo-Ji Sales, Inc. v New York (1979) 442 U.S. 319, 326, the US Supreme Court held that a determination of probable cause to take things not specified on the search warrant, must be made by a magistrate IN ADVANCE of a search. This is why the 4th Amendment doesn’t allow a magistrate to go with police during the search to make split-decisions about what’s relevant and what isn’t. Jackson’s attorneys say the police didn’t make a determination of what’s relevant until after they were already there. If they did this to Miller’s office, you can just imagine what went on during the search at Jackson’s Neverland Ranch! As for the “plain view” argument being used as an excuse for taking information not listed on the warrant, defense lawyers say:

Furthermore, the “plain view” requires that officers can actually view what they are seizing, prior to the seizure. Here, the video and audio tapes were not viewable without actually picking up the tapes and putting them into a VCR or cassette player.

Videos and tapes aren’t covered by the “plain view” argument nor were any video or audio tapes specifically listed on the search warrant that police got before raiding the offices. Couple this with the fact that prosecutors incorrectly stated that Miller worked for Jackson and not for Geragos—when they rightly should have known this because of Sneddon’s prior investigation of Miller—and we have serious reasons as to why this search warrant, at least, is illegal. All of this misconduct, and illogical reasoning that prosecutors are using to explain-away that misconduct, isn’t going to fly with a number of people regardless of what the judge’s decision is. Some observers have already publicly taken the prosecutor to task about the way they have conducted themselves so far. Time will tell if the judge will have the guts to call a spade a spade in this case, and toss out the indictment or traverse any of the 54 search warrants. Remember, prosecutors can still have a preliminary hearing if the indictment is thrown out. So despite their seemingly illegal searches, their case isn’t stopped by forcing them to follow the law. Now all that’s left is to see if the judge will hold prosecutors to that standard. Stay tuned. -MJEOL :nav [url=http://forum.mjeol.com/index.php?showtopic=18227]Your Comments?[/url]

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