Defense Rebukes Unlawful Raid on Personal Asst – MJEOL Bullet #206

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Defense Rebukes Unlawful Raid on Personal Asst – MJEOL Bullet #206 In newly released court documents stamped September 29 2004, Michael Jackson’s attorneys state that the search of Jackson’s personal assistant was overbroad, an invasion of the defense camp and blatant trampling on Jackson’s rights.  They say that the information seized—including three folders labeled “Mesereau” and a fax to Tom Mesereau—is protected by attorney-client privilege.  Not to mention many items that were taken which fall outside the scope of the search warrant.

This motion came just days before Jackson’s attorneys filed a motion yesterday (Oct 4 2004) to have the Santa Barbara District Attorney’s Office thrown off this “case”.  That motion was filed under seal by attorney Robert Sanger.  More on that in upcoming news.

The defense’s Motion to Suppress Materials Seized Pursuant to Search Warrant Number 5135 show that prosecutors and police just can’t seem to keep their grubby little hands (and eyes) off of the defense’s work product.

The raid on Jackson’s personal assistant, whose name is redacted from the motion, occurred at her home where she “administers the business and personal affairs for Mr.  Jackson out of the office at her residence”.

She has been Jackson’s personal assistant for nearly 14 years.  The office is a part of her home but everything related to MJJ Productions is maintained in the office area. Besides Jackson having the right to expect a reasonable level of privacy with regards to documents, the defense says the items seized in this raid are outside the scope of the search warrant. According to law, it is illegal for police to engage in “exploratory rummaging” through anyone’s personal belongings. They cite caselaw:

A “governmental official [may not] use a seemingly precise and legal warrant only as a ticket to get into a man’s house, and, once inside, to launch forth upon unconfined searches and indiscriminate seizures as if armed with all the unbridled and illegal power of a general warrant.” (Stanley v Georgia, 394 U.S. 557, 572, 22 L Ed. 2d 542, 89 S.Ct 1243, 1251-52 (1969) Stewart, J., concurring).) (see Defense Motion to Suppress – Personal Assistant Raid Breaks A/C Priv. | pg 4)

When police go outside the scope of a search warrant, they are conducting a “warrantless search”. It is also the prosecution’s burden to show the existence of probable cause to seize that kind of material. The warrant authorized the seizure of certain information that fell under specific criteria. The defense says that most of the items seized are beyond the scope of the warrant and lists some 36 items that fall under this rule. All 36 items have been redacted from the motion. Those 36 items are not the only things taken possibly illegally by the police at the behest of prosecutors. The defense writes:

All evidence seized – not only those items beyond the scope of the warrant – should be suppressed because the officers executed the warrant in flagrant disregard for its limitations. (See United States v. Rettig, 589 F.2d 418, 423 (9th Cir. 1978); United States v. Heldt, 668 F.2d 1238, 1259 (D.C. Cir. 1981).) (see Defense Motion to Suppress – Personal Assistant Raid Breaks A/C Priv. | pg 6)

The defense says the raid on the personal assistant is “outrageous government conduct.” The DA already knew that this person was Jackson’s personal assistant. They surely can’t play dumb in the same way they did when trying to talk themselves out of culpability for the Brad Miller raid. The attorneys also say that police took information regarding other cases his attorneys were representing him in:

Some of the items seized relate to Mr. Jackson’s attorneys’ representation of him in this matter and other items seized related to Mr. Jackson’s attorneys’ representation of him in unrelated civil litigation. (see Defense Motion to Suppress – Personal Assistant Raid Breaks A/C Priv. | pg 6)

Interesting. Now we will just have to wait and see if this information magically finds it way into the hands of those who Jackson may be suing. Leaks spring eternal in Santa Barbara County. Jackson is currently suing Universal for non-payment of royalties, by the way. Jackson’s also suing the hell out of a private jet company (XtraJet) along with then-attorney Mark Geragos for invasion of attorney-client privilege. Some idiot had the “bright idea” to bug the jet with audio and video equipment, tape attorney-client privileged discussions between Jackson and his lawyer, and then tried to sell it to the highest bidder in the media. Police, at the behest of prosecutors, should not have raided the personal assistant’s residence in the first place. And certainly not this late in the “case”. Judge Melville has chided prosecutors about dragging their feet in turning over documents to the defense. He has also emphatically stated he wanted the trial to begin Jan 2005. This is strange because he has recently authorized search warrants—some dated as recently as September 23 2004 – for prosecutors. With yet another instance of prosecutors breaking attorney-client privilege, this could set in motion another round of pretrial hearings. These possible hearings could be more telling than the first round because, as mentioned before, prosecutors and police can’t play dumb. They can’t claim they didn’t know who she worked for, or what she does for a living. They can’t claim they made a mistake or that they were “exhausted” and just didn’t know what they were doing—as Sneddon did when testifying about the Miller raid. So what if Sneddon tries to pull himself out of this large hole by claiming the personal assistant is a part of some imagined crime? It would be an act of desperation. It could also hand to the personal assistant’s lawyers, on a silver platter, a malicious prosecution and witness intimidation lawsuit court win. More so, it would be beyond ludicrous because they haven’t even arrested, charged, or indicted the prosecution-alleged “co-conspirators”; ridiculously referred to in open court as “henchmen” by prosecutors. The defense hammers home the “blatant disregard” of Jackson’s rights:

When the District Attorney’s office and the law enforcement officers began conducting the search of Mr. Jackson’s personal assistant’s office, they blatantly disregarded the attorney-client and work product privileges and, more critically, the right of a person to the absolute confidentiality of the attorney-client relationship. Items were seized that were clearly identifiable as being subject to the attorney-client privilege. These actions denied Mr. Jackson’s fundamental due process rights and impaired his right to the effective assistance of counsel under the Fifth and Sixth Amendments to the United States Constitution. (see Defense Motion to Suppress – Personal Assistant Raid Breaks A/C Priv. | pg 8)

Jackson’s attorneys say that any information the prosecution wants, at this late date, should have been obtained by subpoena anyway; not a search warrant. Since search warrants are used to identify crimes, the lawyers state, using a search warrant doesn’t allow Jackson his right to counsel nor does it recognize Jackson as a litigant. They say that unlike a search warrant, a subpoena allows the person to be heard in court before the info is spread all over the place, with everyone’s eyeballs—including the police–reading the information. At it would have avoided this current hole the prosecution finds itself in, with AGAIN having to answer as to why they illegally invaded the defense camp. The motion says:

A search warrant authorizes the seizure of documentation of Mr. Jackson’s, and his associates, whereabouts and activities during [redacted information]. There was no reason for the prosecution to search the office of Mr. Jackson’s personal assistant for these materials. A subpoena, on the other hand, gives a party the opportunity to be heard by the court, prior to the documentation of materials. (see Defense Motion to Suppress – Personal Assistant Raid Breaks A/C Priv. | pg 8)

They say when prosecutors use a search warrant—one of the 100 that have been issued in this “case”– it doesn’t allow a person to litigate the situation in a court. “If anything, a subpoena should have been used so that the request for information could have been litigated,” they write. Some of the information taken and/or sought by prosecutors could only have been turned over to prosecutors using the California reciprocal discovery process; not by a search warrant. What’s worse than that? Some 15 items taken were clearly attorney-client privilege. Those 15 items, of course, were redacted from the motion. We have heard much about attorney-client privilege, but what exactly is it? Only one of the most sacred rules of law…ever. The Stanford University website says:

The Attorney/Client Privilege is a law that protects communications between attorneys and their clients and keep them confidential. …This privilege becomes especially important in the litigation context because privileged communications, whether written or oral, are not disclosed to the opposing party. (see What is the attorney-client privilege?)

Sanger says that he got a chance to look at some materials seized by the police at the sheriff’s department on September 24 2004. Also attached to the defense’s motion is the declaration of Jackson’s personal assistant. In her declaration, she says that she deals with confidential documents between Jackson and his lawyers:

I am a necessary participant in confidential communication between Mr. Jackson and his attorneys, including his counsel in the case of People v. Michael Jackson. I receive written communications for the purpose of transmitting them to and from Mr. Jackson and counsel, and also maintain attorney-client materials for Mr. Jackson in confidential files. (see Defense Motion to Suppress – Personal Assistant Raid Breaks A/C Priv. | pg 14)

She says that not only did police take things, but the “officers also rummaged through files and materials that they appeared to have read, but did not take with them.” Why are police rummaging through Jackson’s private files and seizing attorney-client privileged information at all? Why the hell are they even serving a search warrant upon this private assistant just a few months before the trial is scheduled to begin? After initial charges? After a grand jury indictment with a new set of charges, counts and a new timeline? Almost a year after the raid at Jackson’s Neverland ranch? This appears to be incredibly corrupt behavior. I wouldn’t be surprised if we suddenly get a bunch of prosecution leaks regarding personal information that could have only come from the personal assistant’s office. As you may be more than aware by now, this is most definitely not the first time this DA’s office has been accused of misconduct. They are currently being sued in federal court by at least one person that they previously tried to railroad: Gary Dunlap. Dunlap’s run-ins with both the Santa Barbara District Attorney’s office and the Santa Barbara Sheriff’s Department have been discussed in a number of MJEOL Bullets; most recently in #190: Sneddon has History of Prosecutorial Misconduct? In an article with the Lompoc Record dated December 5 2003, Dunlap is quoted as saying:

“In fact, it is difficult, if not impossible to discern any ethical standards on the part of the defendants [Sneddon]; they appear to have been intellectually destitute and morally bereft during the entire sequence of events giving rise to this complaint.” Dunlap sues over arrest

“intellectually destitute and morally bereft”. Time will tell if Jackson’s defense team has seen this conduct up close and personal. We will see what the outcome of this situation will be. Certain things have appeared very obviously suspicious to most legal observers, like the judge’s decision to allow that unconstitutional $3M bail and his reliance on information not even in evidence to make his ruling. The defense, by the way, won their second motion for a hearing surrounding the unconstitutional bail, after the judge’s initial denial where he cited erroneous information. It is scheduled to be argued in court on October 14 2004 as well. Another issue brewing is the motion to throw the Santa Barbara DA’s office off the “case” and having another agency prosecute it. Information about this new motion, filed by Jackson attorney Robert Sanger on Oct 4, according to the AP, will be reported as soon as it becomes available. Stay tuned. -MJEOL

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