Massive Prosecutorial Misconduct during Grand Jury Process? – MJEOL Bullet #162 REPOST 3 Part Series about the Defense’s 995 Motion and what they allege prosecutors did during the process JULY 8 2004 — There are shocking new details today (July 8 2004) in the Michael Jackson “case”.  Apparently there was massive prosecutorial misconduct during the grand jury process.  Prosecutors were bullying witnesses, became involved in personal arguments between witnesses and vouched for their version of events to grand jurors while accusing other witnesses of lying.  Witnesses were also told not to talk to the defense by prosecutors.  In addition, sources say prosecutors didn’t allow grand jurors to ask certain questions and denied their request to have certain witnesses called back for further testimony.  This is massive prosecutorial misconduct which can be corroborated by the grand jury transcripts.

In a scathing 127 page motion (995 Motion) filed by Jackson’s defense team asking for the indictment to be tossed out, his attorneys highlight situation after situation where prosecutors engaged in what can only be termed as misconduct.  From the motion, we lean that the grand jury proceeding spanned from March 29 – April 21 2004 but there were only 12 days of testimony.  It also produced a 1900 page eight-volume transcript filled with information—much of which is inadmissible at trial, says Jackson’s attorneys. This 995 Motion will not be argued on July 9 2004 because the prosecution filed their reply to the defense’s motion too late. Judge Melville needs to give the defense time to essentially respond to the prosecution’s late response. Thus, he has moved arguments to throw out the indictment to July 27 2004. The Associated Press reported some of the details from the heavily redacted version yesterday. Defense lawyers accused prosecutors of running it by innuendo and sarcasm:

The defense accused the prosecutors who ran the secret grand jury hearings of proceeding “by innuendo and sarcasm, impugning Mr. Jackson by ridiculing those allegedly associated with him and even those who sought to legally represent him.” (see article)

The defense lays out their arguments to have this indictment tossed. From the motion:

At least once, the prosecutor vouched for his own version of events while not under oath and accused witnesses of lying. Witnesses were told not to provide information to the defense. Prosecutors suggested without foundation that Mr. Jackson’s defense investigation is improper. (see Defense 995 motion)

Unbelievable. These kinds of actions cannot be easily explained away. Another not so shocking allegation—not shocking, given this prosecutor’s past—is the prosecution’s overwhelming and crushing control over the grand jurors:

The prosecutors ran the proceedings as if they employed the grand jurors. They proceeded by innuendo and sarcasm, impugning Mr. Jackson by ridiculing those allegedly associated with him and even these who sought to legally represent him.

One witness who testified in front of the grand jury was obviously Russell Halpern, the lawyer for the father of the accuser. In a very heated exchange noted in the defense’s motion, Halpern was attacked on the stand by Senddon and said the DA’s office, namely Sneddon, was very hostile towards him. This was chronicled in the AP report and during yesterday’s (July 7 2004) show of The Abrams Report. From the AP report:

In the transcript section quoted, Halpern and District Attorney Tom Sneddon argued angrily about the attorney’s initial efforts to get information from the prosecutor’s office.

Now read from the defense’s motion about the exchange, in front of grand jurors mind you, between Sneddon and Halpern:

Taking only one example from dozens, no Court has ever condoned the kind of grand jury decorum exhibited by Mr. Sneddon during an exchange with witnesses:

Q. Did you at the time that you heard that these serious charges had been leveled against a worldwide known entertainer, ever come to the DA’s office and say, “Hey Mr. Sneddon, I’ve got these_____”, or “I heard about these _____” or “You might want to know this.” Did you ever do that before you went on national TV? A.No. I found the DA’s office to be hostile when I called. I found the head DA, that being yourself, to be very uncooperative. In fact, I called your office in the beginning to find out whether my client’s son was the person who was charged with molestation. You initially refused to tell me. I asked you if my client’s son was dying. You initially refused to tell me. I was only after I told you that I might have to tell the press of your reaction that you called back and then told me. I found your attitude, conduct to be very hostile, and not a office that would be wanting to hear from me, period. Now, I have other information. And if you want to ask me other information, I’ll provide – Q. That is total—that is not the way that conversation went and you know it. A. You know it too. Q. I explained to you why at that time we couldn’t tell who the victim was. Because nobody knew the family at that time, did I not? A. No, you didn’t. Q. And then you said, “Wouldn’t you as the father want to know if the child was sick?” And I said to you, “Okay. I’m going to tell you.” And I did tell you the child was fine, did I not? A. I’ll tell you, I remember the conversation specifically because I took notes. Q. So do I

The transcript reveals Mr. Sneddon was personally upset by the fact that [Halpern] had embarrassed him by making public statements to the media.

If you remember, Russ Halpern is the attorney who openly accused Sneddon months ago of trying to claim he would be a witness in an effort to shut him up. He also accused prosecutors of interfering with a family law proceeding that had nothing to do with them. He was dropping bombshell after bombshell, about the accuser’s mother. One of those bombshells is the mother’s history of coaching her children to lie to authorities. Halpern revealed documents from an earlier LA Child Services investigation (not the one dealing with the Jackson “case”) where the children—away from the mother’s presence–first claimed that their father never hit them or their mother. At the time, they told Child services workers that their father was never violent. When Child Services came back for a follow up interview—with the mother—the children’s stories suddenly changed. They alleged all kinds of abuse towards them and their mother; the sister at one point claiming her father broke her tailbone, although it’s unclear if any medical records were provided as proof of this. Halpern revealed in Nov 2003 the following:

Halpern said the father once showed him a script his wife had allegedly written for their children to use when they were questioned in a civil deposition. “She wrote all of their testimony. I actually saw the script,” Halpern said. “I remember my client showing me, bringing the paperwork to me.” (see article)

The civil deposition was that JCPenney case, in which the family ultimately settled for $137,000.00 after initially suing for $3M. This kind of information could also explain the hostility experienced by Halpern from the current DA. So Halpern, who initially may have contracted Sneddon to warn him of the accuser’s mother’s past, was written off and ignored by the prosecutor until he decided to go public with the information. And this could be why Sneddon is disingenuously stripping Halpern of his First Amendment Right to talk about the case. Halpern was also quoted by Fox News’s Roger Friedman in a May 19 2004 article in which he expresses concern over why the accuser’s father is being kept—even from supervised visitation—particularly from his sons:

But it turns out, according to the father’s lawyer, that the daughter has seen and spoken to her father. “The mother doesn’t care whether she sees him or not,” says H. Russell Halpern. “She’s only interested in keeping the boys away from him. She’s afraid they’ll tell him that the whole Michael Jackson story is made up.” (see article)

If this is the case, it further illustrates why Sneddon wants Halpern silenced from making the talk show rounds. Halpern may make his prosecution mouthpieces look bad. Getting back to the defense’s motion, Jackson’s attorneys rip into what they call the prosecution’s outrageous display of power:

Mr. Sneddon through bullying tactics, inadmissible evidence and his own personal vouching for his version of events, wanted to destroy this witness and establish to the captive grand jurors that he, Tom Sneddon, was the victor. This was an outrageous display of power that would not be allowed before a judge in any open court.”

The motion also states that the grand jury transcripts reveal the prosecution’s total lack of presenting information in an accurate matter. From the report by the AFP, comes the following quote:

The transcripts reveal a complete disregard on the part of the prosecutor for his duties to present evidence fairly and accurately and to behave in a fashion that would have been approved by a judge,” he wrote. (see article)

Prosecutors also downplayed all of the exculpatory evidence presented by the defense to be given to grand jurors. The defense says they presented the evidence in an indifferent manner, and that this undermined their importance to be considered by the jurors. The motion also cites one of the prosecutors, Ron Zonen, as totally minimizing the significant of the defense’s exculpatory information:

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).

The defense also revealed that prosecutors at first said they wouldn’t comment on the exculpatory/exonerating evidence, then they made sure to downplay its importance by convincing jurors that it shouldn’t be taken too seriously because the statements weren’t given under oath:

After commenting on the materials, he stated, “[t]he District Attorney submits the materials presented by the defense without commenting on its character, weight, importance, relevance, or materiality (RT 838:11-16). After claiming that the District Attorney would not comment on the defense evidence, Mr. Zonen stated, “[i]t is for you to decide what weight or significance, if any, should be given to those unsworn statements in determining whether additional witnesses or evidence should be produced.” (838:17-20). He stated “[y]ou are advised that the materials in the exhibits portions of the binder [of exculpatory material] contain statements and information that were not made under oath.” (RT 841:13-16)

As if the only kind of exculpatory evidence the grand jurors are allowed to consider are statements made under oath! Grand jurors who may not have understood this, could have disregarded valid defense evidence based on Zonen’s presentation. And defense attorneys pointed this out in their motion as well:

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.

Prosecutors also 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).

Legal experts, when trying a case like this, say that if a prosecutor really wants to vet their case, they would present all of the defense’s exculpatory evidence no matter how they feel about it. Former prosecutor Paul Pfingst even discussed the issue of exculpatory evidence on The Abrams Report April 5 2004. Pfingst said that generally prosecutors don’t pick and choose what they present to the grand jury and what they leave out. He says prosecutors “dump it all out there” and leave it up to the grand jurors to decide what’s important and what’s not. When asked if prosecutors in general purposely under-present evidence to grand jurors, Pfingst says:

Only if you want to cut your own throat when you’re in front of a [regular trial] jury. If it’s something that’s going to affect this grand jury, you want to know it now, not later. (see transcript)

Well, it seems the prosecutors in the Jackson “case” may have done just that with their deliberate redaction of possibly key exculpatory information. Jackson’s attorneys lay out what the grand jury process is suppose to be based on according to California law: 1) Prosecutors can’t abuse his/her trust in the secret grand jury room; 2) Grand jurors must deliberate in a fair and impartial way that is not tainted with bias, prejudice, public opinion, or inflammatory evidence; 3) Grand jury must determine if there is a rational, strong suspicion for the assumption of guilt; 4) The matter is submitted to a trial court to determine—whether the defendant has been indicted without probably cause. They say the first 3 of these weren’t met based on what went on during the grand jury proceeding. The defense makes the argument that some of the unproven information was so prejudicial that had it been heard by a trial jury, it would have caused a mistrial. They also say there’s a complete and total lack of anything supporting the conspiracy charge. The motion continues to blast away at the prosecution’s total lack of evidence to substantiate the conspiracy charge. California law defines conspiracy as:

… an agreement entered into between two or more persons with the specific intent to agree to commit a crime and with the further specific intent to commit that crime, followed by an overt act committed in this state by one [or more] of the parties…Conspiracy is a crime.

To find someone guilty of conspiracy, there must be proof of the unlawful agreement and specific intent, along with proof that the overt act occurred in furtherance of that conspiracy. These “overt acts” must go beyond simple planning and agreement to commit a crime. For example, if prosecutors are going to say the rumored Brazil trip was a part of a conspiracy to commit a crime, they first have to prove that there was an agreement between Jackson and other people to commit a crime. There also has to be proof of an agreement to commit acts to further the alleged conspiracy. California law also says, “An indictment based solely on hearsay or otherwise incompetent evidence is unauthorized and must be set aside on a motion under penal code section 995” (People v. Backus (1979) 23 Cal. 3d 360,387). The defense broke down how prosecutors went about getting a conspiracy charge without evidence. They say prosecutors basically used witnesses, with no personal knowledge of Jackson’s relationship with the alleged co-conspirators, to talk grand jurors into believing in the sinister charge. Their testimony was based completely on speculation regarding Jackson’s involvement. If this is the case, it would be much like allowing Diane Dimond, Maureen Orth, or Harvey Levine to get up in front of grand jurors and speculate endlessly about relationships between Jackson and his associates; things about which they have absolutely no first-hand knowledge. In other words, their main intent was to persuade grand jurors of Jackson’s guilt in a conspiracy of which they have no evidence. From the defense’s motion:

Despite their lack of personal knowledge, these witnesses were allowed to speculate regarding Mr. Jackson’s involvement with the people named as co-conspirators in the indictment. Furthermore, none of this evidence established probable cause to believe that Mr. Jackson had the specific intent to agree or to conspire with the alleged co-conspirators.

Further, apparently nothing was presented to grand jurors to establish that Jackson had a “specific intent” to commit any overt acts of the prosecution-alleged conspiracy involving child abduction, false imprisonment, or extortion. The attorneys lay out what is required to meet the standard of law then show how prosecutors failed to meet those standards to sustain the charge. For example, to meet the burden of a false imprisonment charge, evidence must be shown that the defendant “intentionally and unlawfully restrained, confined, or detained” someone; keeping them from going anywhere where they haven’t consented to this restraint. The defense says Jackson remains—as of the filing of their motion—the only person indicted on conspiracy even though he is the least involved according to the prosecution’s own version of events. You cannot have a conspiracy with 1 person. This may explain why prosecutors are stalling in handing in their response. They could be trying to buy time to either indict or charge the other alleged co-conspirators to take away one of the defense’s arguments. But here’s what the defense say in their motion:

…even under the prosecution’s version of facts, based on inadmissible evidence, he was the least involved in the conspiracy of any of the alleged co-conspirators. While the government may consider Mr. Jackson to be the most attractive target of their investigation, it is notable that the evidence linking him to an alleged conspiracy is inadmissible innuendo and speculation that he participated in a conspiracy based on his association with the alleged co-conspirators.

They cite case law in which a person cannot be guilty by association or suspicion in Dong Haw v. Superior Court (1947), People v Samarjian (1966) and People v. Villa (1957). You can’t simply say ‘oh this person worked for Jackson, therefore they’re a part of a conspiracy’ or ‘these people did something to the family and they worked for Jackson. Therefore Jackson must be guilty too’. Uh-uh. The law doesn’t work that way. Again, unnamed witnesses, who knew nothing about Jackson’s business relationship to the alleged co-conspirators, were asked to speculate about it. At one point, a witness being asked about one of Jackson’s alleged co-conspirators (ha!) didn’t even know what this person’s position in Jackson’s business was:

325:22-28 Q. Okay. And what is his position at Neverland? A. Honestly, I’m not sure what his position was. I mean, I know that he would just come to the place, I mean, Neverland Valley. And he was also, I guess, trying to become part of Mr. Jackson’s business, or trying to run his business or his traveling tours, that kind of stuff. That’s all I know…

What the hell? Let me get this straight. These comments are coming from someone who is testifying in front of a grand jury deciding on whether to indict Jackson on a strong suspicion of guilt. This person doesn’t even know what the alleged co-conspirator—the subject of the questions above—does in Jackson’s organization. Yet, he/she is testifying to it as if he/she has pertinent knowledge about it. “I guess”, “I’m not sure”, and “That’s all I know” does not a “conspiracy” make. But wait! The ridiculousness doesn’t end there. __Part 2___ In continuation of the series on reporting about the prosecutorial misconduct during the grand jury and before, more information found in the grand jury transcripts reveals just how argumentative and one-sided the process was. If you remember, prosecutors were alleged to have bullied witnesses, became involved in personal arguments between witnesses and vouched for their version of events to grand jurors while accusing other witnesses of lying. They are also accused of a host of other actions where they defense cite examples of their misconduct during the grand jury process. Jackson’s attorneys cite an exchange between Sneddon and a witness, where inadmissible information was used to further muddy the waters against Jackson:

502:3-12 Q. What is ________? A. A business that _________ set up to produce Michael Jackson projects, I assume. Q. Okay. Who are the principals in that business? A. If there’s any principal other than ______, then I’m not aware of it. Q. Do you know if Michael Jackson is involved in that company? A. I would assume he would have been. Absolutely. But— ______________ 533:12-22 A. I think __________ worked with Michael, from what I understand. I don’t think he was paid — Q. They were partners in something? A. Yeah exactly. Q. Partners in what? A. I don’t know exactly. Let me think about that. __________ and Michael — ________ has a merchandising contract with Michael that I don’t think he’s done much with. But I think that’s one thing they were developing. And I think he was sort of an advisor to Michael.

Let’s recap, shall we? “I assume”, “I’m not aware of it,” “I think”, “from what I understand”, “I don’t think”, “I don’t know exactly”, “Let me think about that”. Are prosecutors really going to make their case with testimony like this? There seems to be no way this person should have been called to discuss anything about Jackson and the alleged co-conspirator because they clearly didn’t know much of anything. This reads like some crap from a ridiculous US Weekly article or comments from a media reporter asked to speculate about relationships between Jackson and his associates. One know-nothing female witness claimed that Jackson may have used one person’s cellphone to speak with some of these alleged co-conspirators. This could explain why prosecutors have been searching cellphone records. There was no foundation as to whether this person could be believed. Based partly on this person’s sheer speculation about what Jackson may have done, prosecutors are getting search warrant after search warrant. The total is now up to 54 according to the latest tally from ABC News’s Cynthia McFadden. 54 search warrants. If prosecutors haven’t gotten their “proof” by now, there probably wasn’t “proof” to begin with; meaning there was not a conspiracy. The fishing expedition continues, I guess. Maybe Judge Anderson, the judge that is signing off on these search warrants, will cut prosecutors off at 100. Jeez. Continuing to blast away at the lack of evidence supporting a conspiracy charge, Jackson’s attorneys highlight how the above testimony would be inadmissible in trial anyway:

None of the witnesses presented the grand jury with admissible testimony that Mr. Jackson had any involvement in a criminal conspiracy. The prosecution argued that Mr. Jackson must have participated in the alleged conspiracy because he was the reason the other alleged co-conspirators knew each other (RT 1836). This is precisely the kind of unreasonable influence that is insufficient to support a finding of probably cause.

The first “overt act” alleged by prosecutors apparently involves an alleged phone call of which there is no proof it actually took place. Defense lawyers say the only evidence of this “overt act” was the testimony of that female witness who said Jackson could have used someone else’s cellphone, but provided no proof or first-hand knowledge that this ever happened. I could speculate that the world will end in 2 seconds. Should that be cause for inciting a panic? Of course not. Another witness alleged there was a phone call between her and Jackson. Jackson’s attorneys completely dismiss this:

The only evidence of this was the disjointed testimony of _______. Her testimony about the telephone call, however, was not admissible over objection at trial because there was no foundation to establish that she was speaking with Mr. Jackson on the telephone. Without that foundation, the evidence has to be excised and there is no basis for this particular Overt Act.

There was no evidence presented to the grand jury to support that Jackson was even on the phone; no evidence that he called her (the unnamed witness); and confusing testimony in which she says it may have actually been someone else other than Jackson with whom she talked on the phone. This testimony would have to be taken out of the equation. Once it is “excised”, there would be nothing to sustain the conspiracy charge against Jackson. And without Jackson, there is no conspiracy built around him with other alleged co-conspirators—as prosecutors claim. Further, some of the “overt acts” listed by the prosecution seem to be totally irrelevant to the charges brought against Jackson, says his attorneys. Continuing their well thought-out arguments over why the indictment may not be worth the paper on which it’s written, defense attorneys hammer away at the evidently extreme amounts of irrelevant information presented to the grand jury:

The sheer quantity of inadmissible evidence is overwhelming. The prosecutors used little or no discipline in regulating what was to come before the grand jury. It was impossible to excise this material after the fact and conclude that the grand jurors would have come to the same conclusion.

The 1993 lawsuit also comes into play during this current process. In 1993, an accuser and his family filed a lawsuit against Jackson for molestation. The suit was ultimately settled reportedly through Jackson’s insurance company(ies) in which Jackson agreed not to settle the actual molestation allegations, but rather a “negligence” allegation:

g. The Parties recognize that the Settlement Payment set forth in this paragraph j are in settlement of claims by Jordan Chandler [1993 accuser], Evan Chandler, and June Chandler for alleged compensatory damages for alleged personal injuries arising out of the claims of negligence and not for claims of intentional or wrongful acts of sexual molestation. (page 7) (see 1993 settlement agreement)

All of the molestation allegations were dropped by the accuser and the settlement didn’t stop the accuser from testifying against Jackson in any way; then or now. Jackson’s attorneys say the district attorney focused one witness’s testimony–about 1993 “case”–on “inflammatory” information; much of it “irrelevant”:

The District Attorney focused ________’s testimony on inflammatory and irrelevant areas from the very beginning…and prompted ______ to inform the grand jury that the lawsuit resulted in a settlement… These types of questions and answers violated Mr. Jackson’s right to due process from the moment the grand jury began to hear testimony and guaranteed that the grand jury would not be able to function as an independent body with the obligation to protect citizens from unfounded allegations.

If you remember, there were reports that Larry Feldman and Stan Katz were called to testify in front of the grand jury. Feldman is the attorney who represented the first accuser after the 93 accuser’s father fired two previous attorneys: Gloria Allred and Barry Rothman. Feldman is also one of the beneficiaries of the 93 settlement. Stan Katz is one of the two psychologists involved in the 93 case. The first, and reporting, psychologist from 93 was Mathis Abrams. Katz is also the psychologist Feldman made this current accuser see. But what’s interesting about this is that, according to Santa Barbara police notes, Katz told the authorities this current accuser was referred to him in preparation for a lawsuit Feldman was going to file. The following is from a March 2004 NBC report:

Mr. Feldman actually referred these kids to me because they had come to him in this lawsuit…Feldman’s going to file.

Thus by Katz’s own admission—and documented in Sheriff’s notes—Feldman was preparing to file another lawsuit against Jackson in this current case BEFORE this current accuser ever talked to a psychologist and “confessed” to molestation. Why? What happened to that lawsuit? ‘Tom Sneddon’ is what happened to that lawsuit. Reportedly, Seddon stepped in and made the accuser’s attorney “solemnly swear” not to file a lawsuit against Jackson until the criminal process was resolved. In a Jan 29 2004 article from Santa Barbara News-Press, Dawn Hobbs writes:

As he launched his investigation against Michael Jackson, District Attorney Tom Sneddon reportedly sought assurance that the family of the boy accusing the entertainer of child molestation would not make a multimillion-dollar deal like another young accuser’s family did a decade ago. A source close to the boy’s family in the current case told the News-Press on Wednesday that Mr. Sneddon asked the attorney representing the family to “solemnly swear” not to file a lawsuit against Mr. Jackson during the criminal investigation and prosecution of the singer. (see article)

There’s the answer to the question as to why they haven’t filed a lawsuit yet. And of course if they went against his wishes, he is under no obligation to support their seeking of financial “compensation”. How does this tie-in with the 93 settlement being brought into the grand jury discussion? Well there is a very pertinent back-story about the settlement that grand jurors probably never got to hear; like for example the accuser’s father threatening Jackson and asking for $20M before the allegation was ever made. The settlement has also wrongly been blamed as the reason why Sneddon couldn’t pursue a criminal case against Jackson in 1993. A non-matching description, no corroborating evidence and no other accusers are the reasons why the case couldn’t proceed. You can bet none of the above information was revealed to grand jurors or else they may have come to a different decision. Possibly, just as in 1993, the 93 accuser may not be cooperating with prosecutors today either. That 93 “case” was a source of questions in this current grand jury. And Jackson’s lawyers assert that it had the affect of poisoning the proceedings. They even cite quotes from the grand jury transcripts where grand jurors were asking questions about the 93 case even after “limiting instructions” were given to them. Speaking to certain witnesses, Sneddon engages in leading the witness, hearsay, assuming facts not in evidence and speculation about the role of said witness when reporting the accuser’s changing story to Child Services. Defense attorneys again pull direct quotes from the grand jury transcripts. An example of ‘leading’ where a prosecutor is asking the question:

75:3-7 Leading Q. Eventually you had another contact with the Department __________ Services in Los Angeles as a result of their failure to incorporate some information to a report that was leaking to the media, correct? A. Yes

The prosecutor shouldn’t be testifying as to what the witness did and for what reason the witness did it. The witness himself should be putting this information on the record. The report brought up in that exchange was the summary memo of a 2 week investigation by the Department of Children & Family Services in which the accuser, his siblings and mother all deny that any abuse occurred. They also admit that Jackson is never alone with the accuser and that the sister accompanies her brothers to Jackson’s house. An example of ‘assuming facts not in evidence’ involved comments from Jackson’s former attorney, Mark Geragos:

76:14-19 Assumes Facts not in Evidence Q. And you’ve heard media reports, and especially from Mr. Geragos who represents Michael Jackson, making statements to the public that the mother, _______, is greedy and is after Mr. Jackson’s money. I want to ask you a question. A. All right.

Sneddon also attacked witnesses on the stand in front of grand jurors as well, in such a way that wouldn’t be allowed at a regular trial. From the defense’s motion:

During the formative period in the relationship of the prosecutor to the grand jurors, Mr. Sneddon made it clear that he was to be personally believed and that the witnesses were not. His behavior was outrageous. These witnesses include [redacted list of people]. Mr. Sneddon made it very clear that these witnesses would be treated as hostile from the moment [unreadable] and outrageous tactics in an attempt to discredit their testimony.

The motion continues:

The grand jury transcripts demonstrate that he subjected Mr. ______ to bullying tactics and to improper cross-examination style questioning, while favored prosecution witnesses such as [redacted list of people] were treated with a “kid gloves” approach designed to bolster their credibility in front of the jurors.

Remember, what we see are redacted versions of a much longer and much more detailed defense motion. The original defense motion is 127 pages long. There is so much more to discuss about the contents of the grand jury transcript and what defense attorneys are claiming prosecutors did to get their indictment against Jackson. __Part 3__ 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

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