Judge Rejects Solid Defense Arguments, 995 Motion – MJEOL Bullet #211 995 Motion denied even given the admissions of “regrettable” behavior by prosecutors Why is the judge in the Michael Jackson “case” making excuses for prosecutors’ actions? While some may not go that far, other observers found the rulings on the defense’s motions concerning the illegal Miller raid and the 995 Motion to be more than a little “strange.” More about the Miller raid in an upcoming MJEOL Bullet. Judge Rodney Melville, determined to start this trial in January 2005, was probably not going to throw out the prosecution’s indictment even if Tom Sneddon himself dropped his pants and did cartwheels in the middle of the room in front of grand jurors. In his decision, the judge writes, “Some instances remain where it appears that evidentiary objects might well have been sustained in a courtroom.” In other words, there were things done by prosecutors that a judge wouldn’t have allowed to continue if the defense was there and made an objection to it. But hey, that’s ok…according to Melville. However, he then claims that these instances—taken by themselves—weren’t “sufficient to have prejudiced the entire proceeding.” The only problem with that logic is that instance after instance after instance equals a larger situation that taints the proceeding. Maybe the judge didn’t get that point. He refers to these instances as “tangential”. Wow. I had no idea that allowing the civil lawyer from the 1993 investigation to wax egotistically about how much money he “could” have gotten from Jackson was a “tangential” point—even in the face of zero evidence that anything was offered to him or this family. It was such a “tangential” point that Sneddon let them testify in front of the grand jury on the first day. It was also such a “tangential” point that Feldman, and his sidekick Stan Katz, were further allowed to talk grand jurors into handing down a indictment; A sort of ‘hey, believe me and these people because we know Jackson did it’ type of deal–without one shred of proof speaking to the validity of the allegation, according to court papers. A prosecutor, probably Sneddon, also vouched for his own version of events and accussed a witness of lying on the stand. That’s a “tangential” point too, huh? Prosecutors downplayed the significance of the defense’s exculpatory evidence, some say insinuating that since the statements made by people with differing views weren’t made under oath, their views shouldn’t count as much. From the defense’s 995 Motion:

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. (see Defense’s 995 Motion)

And:

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. Jackson’s counsel “were made by them in their role as partisan advocates for the accused, not as witnesses.” (RT 837:7-9).

Another “tangential” point, according to Melville’s decision, had to be the prosecutors keeping exculpatory evidence from the grand jurors. As discussed at length in MJEOL Bullet #162, prosecutors tampered with the defense’s exculpatory evidence by completely taking out information while hiding portions of at least 10 of the 60 defense exhibits. If you remember, Jackson’s 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 defense’s 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).

Keeping exculpatory evidence from the grand jurors; oh that’s such a “tangential” point! “Tangential points”, my $@!#. And again, Melville is breaking each point down into smaller points and claiming that they—in and of themselves—aren’t enough to toss the indictment. Taken in their totality, however, they pose a grave and serious situation which Melville doesn’t seem to want to deal with. From Melville’s 995 Motion decision:

The tone set by the prosecutors in the exchange with the referenced attorney and with his client does seem regrettable. The necessity of inquiring in the areas of their testimony was an apparent result of the obligation under Penal Code 939.7 to present potentially exculpatory evidence to the grand jury… At least on the printed page, the verbal exchanges would actually seem to favor the attorney, who appears to have strongly held his own. There is nothing about the exchanges, unpleasant as they may be, which would appear likely to intimidate the grand jury members themselves… None of the cited instances would, on their own, justify the setting aside of an otherwise valid indictment. (see Decision on Motion Pursuant to Penal Code 995 pg 4-5)

Melville even admitted in his ruling that the way prosecutors acted sometimes seemed “regrettable.” Regrettable? Apparently not regrettable enough. This attorney, by way of deduction, may have been Russ Halpern, the attorney for the accuser’s biological father. If a prosecutor was arguing and bullying another attorney on the stand in front of you, would you be intimidated? I certainly would. Many observers of this “case” agree as well. It’s not logical, some say, to claim that very heated exchanges—where the DA of a county is basically calling a witness(es) a liar and offering up his own unsworn testimony in their place—have no affect on the grand jurors. Melville also concedes that the instructions about the “conspiracy” charge given to the grand jurors by Deputy DA Zonen were in error. He failed to tell the grand jury that there must be specific intent to commit a crime for there to be a conspiracy charge. From the motion:

As read by Deputy District Attorney Zonen, this instruction left out the words “and with the further specific intent to commit those crimes.” The partial instruction left for the moment the possibility that a mere agreement to commit a crime, without any actual intent to commit that crime, coupled with an overt act, might complete the crime of conspiracy. This misapprehension would be of great importance to a case where no crime was actually committed. This was a potentially significant error, as the prosecution did not seek indictment on the actual crimes of extortion, child abduction or false imprisonment directly, but the effect was diluted by several later corrections. (see Decision on Motion Pursuant to Penal Code 995 pg 6)

Yeah. But Melville found this ok as well. It’s ok to misinstruct the grand jury just as long as someone else comes along and corrects your mistake. Should have known there would be an excuse for this as well. Further, Melville used everything the accusing family said, whether it was true or not as a basis for the ruling; or whether it made sense in the grand scheme of the prosecution’s “case” or not. For example, the accusing family claimed Jackson himself called them and asked them to be in a press conference in Miami, FL. It’s completely asinine logic to disregard the question of how in hell could Jackson have called them at their residence to ask them to be in a press conference if they all were allegedly being kidnapped and held hostage at Neverland. From the court documents provided to the public, there is zero evidence that this call ever took place. And even Melville pointed out that the mother couldn’t accurately identify the person on the phone as Michael Jackson. I guess facts like this don’t count when you’re hell-bent on making this “case” go to trial, whether there’s sufficient evidence or not. Here, we seem to have a similar situation where the sheer allegation—and the judge who’s made highly questionable decisions–is the driving force behind pushing this “case” forward. Another misnomer cited in his decision to deny the 995 motion on the basis of this “conspiracy” was the judge claiming a lawsuit would be filed against the BBC for the “Living with Michael Jackson” so-called documentary. First, this was not a BBC documentary. It was produced and backed by Granada TV and ITV, not the BBC. Second, there was no lawsuit filed against Granada TV by this family at the behest of Jackson. As a matter of fact, Jackson complained to the broadcasting commission in Britain, while the accuser’s mother reportedly released a statement saying that she never signed a form allowing her son to even be used in the documentary. This was reported back in February 2003. It seems as if this family can claim anything—even if it doesn’t happen—and prosecutors will simply wrap a “conspiracy to commit…” allegation around it. This is where a fair and impartial judge is imperative. Some would say that this “case” doesn’t seem to have that one incredibly important factor. If you read the decision, you’ll read how Melville seems to be basing his ruling on the word of the people making the claim; and talking about their testimony as if it’s proven fact. “Mr. Jackson personally explained to the mother than her children were in danger and that to deal with the threats she should cooperate with the filmmakers…,”he writes. Says who? The accuser’s mother. There was no taped telephone conversation where Jackson is saying this, as far as the public has been told. And if there were, it’s almost a certainty, some observers say, that it would have been leaked to the media by prosecutors or police already (like the AG investigation, the sheriff’s notes, the 1993 settlement agreement, etc). The judge even admits that there was “some question” that “has been raised as to the ability of the family’s mother to identify Mr. Jackson on occasion.” WTH? So this person on the phone may or may not have actually been Michael Jackson; that is, if the conversation ever took place at all. Melville claims “the boys were invited to sleep in the Jackson bedroom,” despite the fact that Jackson has repeatedly said he never “invites” children into his room. He specifically said in a previous interview that if a child asks to come in his personal living quarters, they cannot unless Jackson gets permission from their parent/guardian. Melville says, “They were not permitted to see the original documentary when it aired and they understood their phone calls were monitored.” Who says they weren’t permitted to watch the documentary? The family. However it came out in court through the stepfather’s testimony, that by the time the first “documentary” aired, he was already seeking payment from at least two British journalists for interviews stemming from that “documentary”. In a report dated August 20 2004, an NBC reporter actually tracked down one of the two British journalists, Alec Byrne, who spoke about it. From the report:

He also testified that before the documentary aired in America, two British journalists offered to pay for the family’s story. Alec Byrne told NBC news exclusively he was one of these journalists. And that it was the stepfather who broached the subject of money:

BYRNE: The starting figure was $500 from myself. And that’s supposedly when he consulted with the mother. TAIBBI: And it ended up at what? BYRNE: It ended up at $15,000.

(:camera see MSNBC Live: Mike Taibbi – Stepfather Asks for Money August 20 2004 )

There were only a few days between the British airing of the “documentary” and the American airing. If the family was already seeking payment for possible interviews from the likes of Alec Byrne, it doesn’t make sense that they would have been intentionally kept from seeing the very “documentary” for which they were trying to get thousands of dollars as a result. I guess this didn’t factor into the judge’s decision. *rolling eyes* Now, remember these are facts that were brought out in court. The fact that Melville can still stick by these “conspiracy” charges is beyond a number of people, especially given the testimony from the stepfather and the accuser’s mother. Keep in mind the conspiracy allegation and the location of these people at various times during the period when prosecutors claim a conspiracy was taking place. These people where all over the place: at the stepfather’s residence, at their own residence, in Florida, etc. So how can the “conspiracy”/abduction charge stand given the fact that–by these people’s own testimony–they were not at Neverland the entire time? Came and went at various times? Brokered deals with reporters from their own home? Was at home when Brad Miller (remember him?) came to interview them? Was at Neverland at times which make the prosecution’s allegations seem implausible? Melville writes, “It is reported that [sic] a written directive that one of the children should not leave Neverland Ranch, was distributed to the security personnel.” Says who? The media? And we all know how accurate they are, don’t we? Excuse my condescending sarcasm. As far as we can tell from reading the court papers, there is zero evidence of this. How would they know that a “directive” was issued by security to keep any of them at Neverland for whatever reason? This further makes no sense because the family, by the mother’s own admission during her testimony, was not at Neverland the entire time they were around anyone working for Jackson. Thus, I guess the “directive” was to keep them at Neverland unless the mother wanted to go shopping…go on vacation…eat out…visit her boyfriend…go to court to have her husband’s child support payments increased? Get real. (see [Jackson] Case: Shakedown Admitted by Accuser’s Side). And it goes on and on with his reciting a litany of unproven allegations made in front of the grand jury. He does concede, however, that none of that testimony proved that Jackson was guilty of anything. Melville states in his decision:

None of this testimony suffices to establish conclusively at this stage that crimes actually occurred or that a conspiracy actually existed or that Mr. Jackson had any direct involvement or did anything wrong. Innocent explanations are entirely possible, and controverting evidence may exist.

No kidding! But there is a difference in wanting a trial to determine what’s what, and simply allowing a case to go forward with no evidence to support a charge; especially since there may have been real exculpatory evidence which prosecutors purposely excluded from showing grand jurors. Something stinks here. We may find out sooner or later, but inevitably that stench will come to the forefront. Stay tuned for further information about the judge’s asinine and far-reaching decision concerning the Brad Miller raid. -MJEOL

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