Defense: DA Attempting to Shield Witnesses from Cross-Examination – MB#226 Prosecutors complained to the judge that Jackson’s attorneys wanted too much information about the accusing family. Now the defense has responded to the prosecution’s claims. They say the DA is attempting to “shield” the accusing family from scrutiny, and also want the defense to reveal their strategy in newly released documents dated Nov 23 2004. In the defense’s Opposition to District Attorney’s Request that Court Modify It’s Teal Order, they say that in accordance with the law they are not required to reveal defense strategy to prosecutors. They also make the argument that DA Tom Sneddon had an opportunity to question the Teal motion’s scope. Now these prosecutors want to change the game to handicap the defense. The defense also says the very notion of a Teal motion—which allows defense attorneys to “develop and investigate their cases” without notifying prosecutors of their intentions—would be meaningless if they had to clear their subpoenas with prosecutors. From the motion:

Defense counsel is not required to disclose potential defense strategies or work product to the prosecutor as a condition of receiving documents produced pursuant to a subpoena duces tecum. (See Teal v Superior Court (Barrett) (2000) 80 Cal. App. 4th 1305, 1320.) (see Defense’s Reply to DA’s Request to Modify Teal Motion 11-24-04 pg 2)

What these prosecutors want the defense to do is to clear/explain the reasons why they want the documents they seek via a subpoena. But doing so would reveal what the defense wants to accomplish by getting said documents and testimony. This info is defense strategy, which prosecutors are not entitled to get under the law. Defense attorneys write:

The holding of Teal would be meaningless if the District Attorney is provided with information regarding each subpoena and is allowed to be heard on each subpoena. There are two parties to this lawsuit. The other party has used more than 80 search warrants to promote their interpretation of the facts of the case. Mr. Jackson is entitled to investigate the case and prepare a defense. (see Defense’s Reply to DA’s Request to Modify Teal Motion 11-24-04 pg 2)

They say they should be allowed to continue to issue subpoenas in order to protect Jackson’s “rights under the Fifth, Sixth and Fourteenth Amendments” to the Constitution and “Article I, Sections 1,7,15 and 24 of the California Constitution when compelling the production of witnesses.” (pg 2) In their motion, prosecutors cited Department of Corrections v Superior Court (1988) 199 Cal. App. 3rd 1087 in their motion. That case involved the California Dept. of Corrections and Ronaldo Ayala. The defense says that Teal was decided 16 years AFTER the Dept of Corrections case by the same court and “incorporates more recent jurisprudence stated in Barrett.” (pg 3) And the Dept of Corrections case is no longer an accurate or up-to-date reflection of the current law. Further the defense basically implies that prosecutors cited an out of date and irrelevant case law to back up their initial motion to reverse Teal. In the Dept. of Corrections v Superior Court case, the DA was not given an opportunity to be heard regarding the court’s order. In this “case” Sneddon was given that opportunity when the defense originally sought their Teal motion…before the June 25 2004 hearing. It’s November almost December 2004, and now prosecutors want to be bailed out again by the judge. From the defense motion:

The District Attorney has already been heard on the issue of the Court’s Teal procedure. The District Attorney was served with Mr. Jackson’s Teal Motion prior to the June 25 2004 hearing on the motion. The District attorney opted to not file an opposition in writing. Instead, the District Attorney made oral argument regarding Mr. Jackson’s Teal motion at the hearing, in chambers. (see Defense’s Reply to DA’s Request to Modify Teal Motion 11-24-04 pg 3)

And, like some observers have pointed out, now these prosecutors claim they have hindsight revealing what a bad decision they claim to have made. What? Do they want Melville to create a time machine? Prosecutors shouldn’t be allowed a ‘do over’. And the defense says prosecutors have provided the Court with an adequate reason to change it’s order. Prosecutors Acting Like Private Attorneys? Prosecutors don’t have “clients”. They represent “the people”. But some say these prosecutors are acting like they are personal attorneys for the accusing family. This observation is not lost on the defense either. The defense points out that the accusing family has counsel of their own, and any opportunity to be heard lies with counsel for the accusing family, not the DA. From the defense’s motion:

The complaining witnesses are represented by more than competent counsel. The Court’s Teal procedure allows counsel for the complaining witnesses, and other witnesses, the opportunity to be heard on the subpoenas. The existing Teal order adequately protects the interests of the complaining witnesses and other third parties to this litigation. The Court’s procedure allows parties subject to the subpoenas to move to quash the subpoenas…The District Attorney is not entitled to assert those interests on behalf of the complaining witnesses or anyone else. (see Defense’s Reply to DA’s Request to Modify Teal Motion 11-24-04 pg 3-4)

Defense attorneys say prosecutors are trying to protect the accusing family from cross-examination. Some observers agree with the defense attorneys by saying prosecutors agreed to the terms of this Teal motion months ago. Therefore, they have “no right to complain” when the defense may be finding damaging information from the accusing family’s past. Other “case” observers have no sympathy at all for prosecutors and bluntly accuse them of trying to hide any harmful info from defense attorneys. From the motion:

Under the guise of “protecting” the interests of the complaining witnesses the District Attorney is attempting to shield the witnesses the District Attorney is attempting to shield the witnesses from cross-examination by counsel for Mr. Jackson and appropriate scrutiny by the Court and the trier of fact. The District Attorney has no legitimate interest in hiding deception, bias and a motive to mislead the Court or the jury on the part of critical witnesses. (see Defense’s Reply to DA’s Request to Modify Teal Motion 11-24-04 pg 4)

Or maybe the DA really does have an interest in hiding damaging info from defense attorneys? Apparently some other attorney connected with certain witnesses, most likely the accusing family, participated in an “in camera” hearing November 10 2004 on a motion to quash (set aside/annul) certain subpoenas. This attorney(s) was present via telephone. No prosecutor was present, as no prosecutor would need to be present. Only the counsel for Jackson, the judge, and the attorney that’s trying to get the subpoena annulled are present. The motion to quash was ultimately denied by the judge. Some say faced with the failure to get the subpoenas set aside in a procedure provided for by law, prosecutors stepped in to try to get the defense’s entire Teal motion overturned or modified. And that may have been the catalyst for them filing their cry-baby motion, as reported about a few days ago in MJEOL Bullet #225: Prosecutors Whining After Obtaining Numerous Search Warrants. Other newly recently documents deal with the defense seeking independent mental examinations for the family; with them changing their story; with the prosecution changing its entire case; and with recent testimony from another psychologist(s) concerning the accusing mother’s mental capacity. Stay tuned. -MJEOL

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