THE COURAGE OF TRUTH vs. THE FEAR OF TOM SNEDDON
It is good that Michael Jackson’s supporters agree over the need to have Tom Sneddon answer for his crimes against Jackson and are more or less in favor of William Wagener’s affidavit pursuing this goal. But I see some fans nevertheless shaking with fear that if Sneddon is found guilty of “fraud on the court” something might happen to Michael’s not-guilty verdict.
Well, two lawyers have already told us that nothing will happen to Michael’s not-guilty verdict. The verdict can never been overturned as a person cannot be tried twice on the same charges – guilty or not guilty – and nothing happens to the verdict once the jury reaches it in a criminal trial.
However despite all these assurances some disquieting rumors are circulating that in case Sneddon’s fraud on the court is brought out into the open the verdict may become void. All this talk as so serious a matter that I decided to single it out into a separate post, shifting there some of my earlier arguments and comments.
I am no legal expert and do not aspire to know the whole truth, so what you’ll see here is a reference to legal sources and plain common sense which, though being only common sense, is sometimes helpful in beating the fear someone might still have.
1. COMMON SENSE vs. ABSURDITY
It all started with a text explaining what action is taken in case court officers commit fraud upon the court: http://www.ballew.com/bob/htm/fotc.htm One of MJ fans quoted the text and commented on it as follows (I presume that some others may be of the same opinion, so the comment is provided here as an example only) :
“Please read more carefully. If fraud upon a court is committed, then any resulting judgements/verdicts become void. Such a motion is not the same as a verdict being overturned. So again, YES, going after Tom Sneddon for fraud upon a court would come at the price of Michael’s vindication. The not guilty verdicts would be voided. Voided verdicts do not lead to Michael being retried”.
The link to this site was initially given by Mary Brookins of the Cadeflaw team who is an ardent supporter of William Wagener’s affidavit against Sneddon. She consulted two lawyers about the possible ramifications for Michael Jackson of finding Sneddon guilty of fraud upon the court, and both lawyers replied that in no way Michael’s not guilty verdict could be overturned – it will stand even if the prosecutor is found guilty of fraud upon the court.
However the source Mary herself is providing does not speak of overturning the verdict but says that the verdict will become void:
- “It is axiomatic that fraud vitiates everything”.
- “Fraud upon the court” makes void the orders and judgments of that court”.
- “Under Illinois and Federal law, when any officer of the court has committed “fraud upon the court”, the orders and judgment of that court are void, of no legal force or effect.
Though the lawyers give a definitive answer that Michael’s not-guilty verdict will never change I still decided to look for details of this void business to see what’s what.
The idea behind it is of course the need to immediately void the guilty verdict which was returned by the jury on the basis of a fraud committed by the Prosecutor. If the prosecutor led the jury to believe his fraudulent evidence and they reached a guilty verdict on the basis of it, but then the fraud was found out, the verdict immediately becomes void because it was based on false facts and not true evidence.
The source mentioned above explains that the verdict arising from a fraud is not a decision at all as it is not final. The ‘finality’ point is very important because this is what makes the verdict a verdict – without finality there is no verdict. The non-final verdict can be overturned while the final one cannot, at least in a criminal court (in the civil one it can, see the previous post for details)
The document says:
” The 7th Circuit Court of Appeals stated “a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final.”
Let me repeat – the decision never becomes final if it was produced by fraud upon the court. However if the decision was not produced by fraud upon the court, it means that the verdict was not affected by it and therefore stands.
The common sense says – if the fraud worked, the resulting decision will be voided, but if the fraud did not work the decision will stand because it was taken despite the fraud and was not tainted by it.
The latter was exactly Michael Jackson’s case. Even though the Prosecutors were telling fairy tales about him the jury managed to look through them and reached their verdict disregarding these lies.
Tom Sneddon and others in the prosecution team alleged that the boy’s fingerprints on the adult magazine were found because Michael had shown him this magazine, but the defense found out that firstly, the Prosecutor obtained those fingerprints by fraud (by letting the accuser handle the magazine without gloves in full view of the Grand jury) and secondly, the Prosecutor spoke of the magazine which would be published several months after the last time the boy saw Michael Jackson at all.
No wonder the jury did not believe the lie and took their decision on the basis of the defense arguments. And if the truth won even despite the prosecutor’s fraudulent methods, disclosing them afterwards cannot overturn the verdict but will only add to it more value and weight. Michael was acquitted irrespective of the prosecutor’s dirty tricks – and this makes Michael Jackson’s Not guilty verdict not only stand, but stand stronger than ever before, because he was found innocent even in the circumstances of malicious prosecution.
If he had not been acquitted, the situation would have been different – the fraud upon the court could have given the defense a reason to declare the case a mistrial and the verdict not final:
Mistrial” should be granted . . . as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it the defendant cannot have a fair trial and the whole proceedings are vitiated. The defendant must prove to the trial court that the remarks made . . . were so prejudicial that the defendant was deprived of the opportunity for a fair trial and the entire proceedings were tainted.http://www.scribd.com/doc/29601708/State-Fraud-Upon-the-Court
So if the prosecutor’s fraud produces a wrong jury decision it is then that their decision becomes void. Voiding is the first step before reversing the verdict:
Under Federal law which is applicable to all states, the U.S. Supreme Court stated that if a court is “without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void … even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers. http://prosechicago.wordpress.com/2010/01/19/massive-federal-memorandum-of-law-proving-il-attorney-general-lisa-madigan-judges-lack-immunity-liable-for-malicious-suit/
In case the jury decision is not made on the basis of the prosecutor’s fraud, there is no need to seek reversal in opposition to such a decision. The law stands on the guard of only those to whom injustice was done due to a fraud. And if the verdict was just and does not need to be reversed it will not, while the court officer responsible for the fraud will still answer for what he did.
Such a conclusion is based on simple common sense which lays the basis for all laws.
The law does not allow for absurdities. If the not-guilty verdict automatically became void due to any fraud committed in court the trial would lose the point of it – the prosecution and the defense would go for frauds intentionally in the hope that all unwelcome verdicts become void.
2. MICHAEL’S CASE MAY BE UNIQUE
All the precedents mentioned by the site which started all this controversy deal with cases when as a result of fraud upon the court the defendant was found guilty of something he did not do.
It is only natural that the innocent person convicted due to the prosecution’s fraud upon the court, will be vehement in seeking voidance and reversal of the verdict – no one wants to go to jail for nothing. In these cases the innocent defendant seeks justice for himself and hopes that the wrong verdict will become void.
There might also be cases when even though the prosecution committed fraud upon the court the defendant may indeed be at fault. Then it would be in the interests of the justice system (even the prosecution) to retry this person – to start the legal process afresh and get to the bottom of it at the second try. In this case the justice system itself will seek to nullify the verdict and retry the defendant, because they still want to convict him for the crime committed, only with “cleaner hands” this time.
However both of these cases have nothing to do with Michael Jackson. He was found not guilty on all counts, so in theory had nothing to complain about. Despite the Prosecution’s fraudulent tricks (which were many) he won a crashing victory over Sneddon and his team, and was acquitted on everything they charged him with.
It was a clean and overwhelming victory won despite the dirty prosecution methods Michael Jackson had to face during that trial. I’ve read that Thomas Mesereau wanted to continue with a case against Sneddon and hold him accountable for malicious prosecution (will try to find the article where I read about it), but evidently due to Michael’s frail condition after the trial the case was not pursued further.
The situation when the defendant is acquitted despite the fraud on the court by the Prosecutors, but is still not satisfied with the outcome is evidently such a rarity in legal practice that after looking through hundreds of pages on the net I still could not find a single similar case.
It seems that once a not guilty verdict is reached people are so happy with it that no one wants to ask for more justice for themselves. The acquitted person is satisfied that the fraud did not work and the jury did not believe it, and being sick and tired of the trial torture simply stays away from further litigation.
So it is quite possible that there are simply no precedents for an action initiated now by William Wagener and we might indeed be facing a unique situation here – I mean the case when the acquitted person went as far as hold the prosecutor accountable for the fraud which did not work. And this is probably why the justice system is unable to give us a ready answer on this “void” issue – there might simply be no similar case to refer us to.
Another possibility is that someone could have made a try but was given an answer: “Why don’t you shut up? Be happy that you were not convicted. If you persist in your demands we will find something else to charge you with”. I don’t know whether this line of reasoning is possible in the US, but in the place I live in it seems to be a rather common occurrence.
So in the absence of real-life precedents all we can do is theorize on the matter of what will happen if we go after Sneddon.
3. PERSONAL OPINION
To me it is obvious that it would be totally ridiculous to think that an acquitted person will be punished for the desire to seek further justice for himself by having his own not guilty verdict voided.
All this void business concerns guilty verdicts only where the prosecutors’ fraud brought about the need to retry the case of those who were unjustly convicted. But why should it be applied to a case where a not guilty verdict was reached despite the fraud? The fraud aggravated the defendant’s case during the trial, but nevertheless did not help the prosecution to reach the effect they so desired and therefore had no effect on the verdict whatsoever!
The prosecution committed fraud upon the court, it didn’t work (thank God), the jury still acquitted the defendant of all charges, so why should the innocent defendant pay for the prosecution’s misconduct?
And why this talk of voiding the verdict at all? Because we have only guilty verdicts to discuss? But all guilty verdicts arising from the fraud on the court seek voidance as their primary goal! What makes us think that the decision to void should necessarily be taken in respect of non-guilty verdicts too? There might be simply no precedent of a case like Michael’s, however isn’t it possible to set a new precedent in the absence of the earlier ones?
Voiding the not-guilty verdict when the acquitted defendant asks for further justice for himself looks like a plain mockery which no justice system can afford if it wants to be called a justice system at all. And we were also guaranteed by two legal experts that a not guilty verdict stands in all cases due to the Fifth Amendment to the US Constitution and that Double jeopardy business under which no one can be tried twice on the same grounds.
However since we have no precedent on how the legal system will react to a move to hold the prosecutor accountable for his fraud, the question is – can we have guarantees against any unpleasant surprises here?
Though in the circumstances voiding a not guilty verdict would be a sheer, total and infinite absurdity my honest laywoman’s reply to that would be No, it seems that we have no guarantees against it.
However if another question were asked: “Is the actionagainst Sneddon worth taking despite some risk?” I would say an emphatic YES, it is still worth going after Sneddon even despite the unknown future we are facing.
4. WHY WE NEED TO DO IT
Sneddon’s prosecution of Michael Jackson was so malicious and lasted for so long that the proper name for it would be Obsessive Lifelong Persecution of Michael Jackson. Sneddon tampered with the evidence, fabricated fingerprints, broke the client-attorney privilege and then lied that he “didn’t know”, leaked numerous confidential documents to prejudice the jury and public against Michael, and probably even induced Janet Arvizo to slander Jackson as Sneddon left his card under her door at a time when she was not even making any allegations.
He smeared Michael’s name non-stop in the press and tortured him to a degree when the humble and amiable Michael was forced to write a furious song about his harasser to get the rage consuming him off his chest. With the help of his special friends like Diane Dimond and Maureen Orth Sneddon formed the previously unheard-of harassment publicity style by leaking confidential, unproven and unchallenged information to the media, which in its turn took this opportunity to further crucify Michael.
And I am not even saying that Sneddon slandered Michael all over by saying to the left and to the right that the photos of Michael’s genitalia matched the first accuser’s description – which has been proven here to be a complete and outrageous LIE refuted even by Reuters and USA today who reported the next day after the settlement with Chandlers that there was no match.
So it was largely due to Sneddon’s effort that Michael lost the ability to work, sleep, function as a normal human being and in the long run even live….
Sneddon’s obsession with Michael was so crazy and the vendetta so long, that it would be a complete crime to close our eyes at what he did to him – even if we face the risk that the legal system which produces personalities like Sneddon will not be adequate in its reply to our action.
Even despite our fears we still need to do it.
The risk is minimal but the stakes are high. The highest of it is making the public finally aware of the injustice Michael was subjected to and realizing that this was so innocent a man that even the fraudulent methods of prosecuting him were not able to put a single stain on his behavior.
And this was the real reason why he was acquitted on all counts despite the whole closet of the so-called ‘evidence’ collected by Tom Sneddon.
5. LEGAL OPINION: IT IS WORTH TAKING A STAB AT IT
Among many instances of putting himself above the law Tom Sneddon shamed his profession by breaking the client-attorney privilege by raiding the office of the private investigator working for Jackson’s then attorney. This crime is equivalent to breaking into the office of a paralegal working for the defense attorney, grabbing everything there is to grab there and getting away with all of it at that.
The Findlaw analyst Jonna Spilbor discussed it in detail in her 2004 article with a tale-telling headline “Why the DA’s search of Michael Jackson’s Private Investigator’s office was unlawful”.
At the time of writing the article she didn’t know that as a result of that raid Sneddon obtained the evidence which allowed him to change the dates in his charges against Jackson. But even without knowing it she still assesses Sneddon’s actions as so grave an offense that a mere suppression of this wrongly obtained evidence will not be enough sanction against him (so we can imagine how much graver an offense the fabricated fingerprints can be!).
However even Jonna Spilbor admits that the justice system is somewhat lacking tools to hold the prosecution accountable even for a grave misconduct like that. I don’t know what sactions we can count on now, at the post-trial stage, but during the trial there were three possible ways of seeking sanctions against Sneddon:
1) imposing fines, though Spilbor says it is not an option for a serious offense like the one committed by Sneddon
2) recusing the individual Prosecutor or the entire District Attorney office (!). The dictionary explains recusing as “disqualifying or seeking to disqualify from participation in a decision on grounds such as prejudice or personal involvement”. Jonna Spilbora admits that this remedy is rarely used.
3) dismissal of the charges. This is the most serious sanction the law allows for in cases of grave prosecutorial misconduct. This sanction must be rarely used too as there is always a danger that someone really guilty will avoid justice this way.
But Michael was completely innocent and the eventual not guilty verdict proved it. So looking back at the past, if the judge had applied this sanction and Michael had been released then and there it would have been the only correct thing to do.
In fact Michael’s defense tried to disqualify the individual Tom Sneddon and the whole D.A. office then but it didn’t help:
October 6, 2004
Lawyers File Motion To Remove Sneddon From Case
On Monday, Michael Jackson’s lawyers filed a motion to remove the Santa BarbaraCounty district attorney’s office from the child molestation case.
The motion was one of several filed under seal by attorney Robert Sanger. He said sealing the motion was necessary because “the content of the motion includes reference to details in under-seal material including discovery materials, grand jury transcripts, investigative reports, exhibits and identities of witnesses.”
The reasons for the motion were kept secret. However, Michael’s lawyers have said in the past that DA Tom Sneddon had a personal vendetta against the entertainer after failing to get charges filed against him in a 1993 allegation.
Motions to remove a DA from a case often are based on claims of personal involvement and conflict of interest. According to criminal defense attorney Steve Cron lawyers often claim in such motions that the chief prosecutor is so personally embroiled in the case that he can’t make fair and dispassionate decisions:
“The odds of being successful are very slim. It would be highly unusual for a judge to take the whole district attorney’s office off a case.”
Loyola University Law Professor Laurie Levenson said that if the motion was granted and upheld on appeal, the state attorney general’s office would have to take over the prosecution:
“This was a natural motion to file. Even if the chances of success are not great, it’s worth taking a stab at it.”
Let us remember these words of wisdom – even if the chances of success are not great, it’s worth taking a stab at it!
These are exactly the words we very much need now to take joint action against Sneddon.
Read Jonna Spilbor’s arguments in order to gain some more courage and see that we are right in trying to finally hold Sneddon accountable for his grave misconduct:
Why the DA’s search of Michael Jackson’s PI’s office was unlawful
Jonna M. Spilbor, FindLaw Columnist
Special to CNN.com
Monday, July 26, 2004 Posted: 11:43 AM EDT (1543 GMT)
(Findlaw) — Tom Sneddon, Santa Barbara’s top prosecutor, has ended up a witness in a case which he himself is litigating. In what’s being touted as “an unusual move,” the judge in the Michael Jackson case has ordered Sneddon to testify at an upcoming hearing slated for next month.
In November 2003 — just hours before Michael Jackson was arrested on charges of committing lewd acts upon a child — sheriff’s deputies raided the Beverly Hills offices of private investigator Bradley Miller. Miller was working closely with Jackson’s then-attorney Mark Geragos on the Jackson case.
The subject of the hearing centers around whether Sneddon — who authorized the search warrant application, as well as the subsequent search, and reportedly conducted his own personal surveillance on Miller’s office building a couple of weeks prior — knew that Miller had been hired to assist in Jackson’s defense. Superior Court Judge Rodney Melville has explained that the court is “very concerned about the factual issue, whether or not the district attorney…knew that Mr. Miller had been retained by Geragos.”
If Sneddon did know, then why were obvious attorney-client privilege issues ignored? After all, Sneddon was authorizing a search of an employee of the defendant’s attorney. Imagine if he’d tried, instead, to ransack the office of one of Geragos’ paralegals! The illegality would be even plainer.
In this column, I will discuss why, exactly, the search of the private investigator’s premises was unlawful, and what the court should do about it.
California law on attorney-client privilege
The attorney-client privilege preserves the confidentiality of communications between an attorney and his client. Its purpose is to encourage the honest, unfettered exchange of information between attorney and client during the course of legal representation.
In California, Evidence Code sections 950-954 define the attorney-client privilege broadly. Under California law, the privilege encompasses virtually any information — whether oral, written, photographic or otherwise — conveyed by a client to his attorney during the course of their professional relationship.
In addition, Evidence Code section 954 makes clear that the privilege applies not only to lawyers but to those third parties “who are present to further the interest of the client in the consultation, or to accomplish the purpose for which the lawyer is consulted.” These third parties are best thought of as “necessary agents” — the persons the attorney needs to consult with to do his job.
Typically, such agents include experts, paralegals, secretaries, and, as in this case, private investigators retained by a party’s counsel. Thus, once it has been established that the investigator was retained by legal counsel to represent a suspect, the investigator cannot be forced to reveal the product of his investigation.
The law in this regard is quite clear. So what was Sneddon thinking when he authorized the warrant application relating to Bradley Miller’s offices?
The prosecution’s claim of ignorance
Thus far, the prosecution is claiming simple ignorance: Sneddon says he did not know of Miller’s relationship to Jackson’s defense camp.
But that seems highly improbable at best. After all, consider what the prosecution did know at the time — both specifically about Geragos, Jackson and Miller, and more generally about the case.
First, let’s look at the specific knowledge the prosecution had: The prosecution knew Geragos represented Jackson. (Indeed, they were dialoguing with Geragos in an effort to negotiate Jackson’s voluntary surrender before literally busting down the door to Miller’s office.) It plainly knew Jackson or his attorney had hired Miller, or why search his office in the first place? It knew enough about Miller’s relationship with Jackson to include an affidavit of probable cause sufficient to convince a judge to issue a search warrant.
Second, let’s look at the general knowledge the prosecution had. Remember, this search happened just hours before Jackson’s arrest — and the arrest warrant was issued before the searches. This was not a prosecutor’s office acting in the initial investigation of a case — it was an office on the verge of arresting the defendant. Its investigation, it seems, was mostly or entirely finished. Yet the Miller/Geragos link had never been revealed?
Also, this search apparently was one of three separate, simultaneous searches between Santa Barbara and Beverly Hills, all at precisely the same moment in time. The Neverland Ranch search alone involved seventy police and prosecutors. With such a knowledgeable battalion working on the case, is it possible it occurred to not a single officer or prosecutor that Jackson’s lawyer and his private investigator were working together?
For all these reasons, Sneddon’s claim that the Geragos/Miller relationship was news to him and his office is highly incredible.
How a search could have been legal
Ironically, prosecutors in the case could have conducted a legal search of Miller’s office. California Penal Code section 1524 is not a wholesale prohibition on the DA’s ability to search a premises where the privilege is likely to be asserted. Instead, it allows such a search, but sets out a specific procedure to be followed:
When the warrant is issued, the court must appoint a “special master” — that is, an independent person not associated with police or prosecutors — to oversee service of the warrant on the person in possession of the premises (here, Miller). Then, if that person (here, Miller) states that documents are privileged, they must be sealed by the special master and taken to court for a hearing.
Why didn’t Sneddon play by these rules? It’s hard to say for sure, but it’s possible that the special master procedure was intentionally ignored because it would have undermined Sneddon’s “sneak attack” strategy.
Sneddon plainly saw an advantage in ensuring that the three searches were done simultaneously at different locations, without advance notice to Jackson’s defense team. And of course, the defense couldn’t be present at three locations at the same time, to observe.
Assessing possible sanctions
First and foremost — and assuming the search of Miller’s office revealed evidence useful to the prosecution – the judge has the power to deem the illegally seized evidence from Miller’s office inadmissible as “fruit of the poisonous tree.” But here, the judge should do more.
There is a fine line between zealous prosecution and prosecutorial misconduct — and it’s a line this district attorney may be dangerously close to crossing. Sneddon’s apparent vendetta against Jackson has caused him to act improperly in the past, as well.
Suppressing evidence is not enough of a sanction when serious prosecutorial misconduct is at issue — as seems to be the case here. Only additional sanctions will properly punish and deter.
Unfortunately, however our system of justice is not exactly set up to mete out punishment to those who are supposed to be trusted officers of the court. Imposing fines against the attorneys themselves is always an option. Another possible (though rarely used) remedy for prosecutorial misconduct would be to recuse the individual offending attorney — or the entire District Attorney’s office.
This remedy can be proper if the court is convinced that the district attorney’s office has employed its discretionary powers to deprive the defendant of a fair trial.
Did that happen here? Certainly, there is a strong argument that it did — based on the blatant violation of warrant procedures and the resulting seizure of potentially privileged material.
Finally, in the most serious of cases, there is but one remedy that both ensures a just resolution for an accused, and punishes prosecutors who fail to play by the rules: Dismissal of the charges. But it does so at a potentially great cost to the victim when the defendant is indeed guilty of the crime charged. Here, however, the evidence of the defendant’s guilt is tenuous at best — and what evidence exists, may be less than credible.
In this case, then, dismissal might not be too extreme a sanction. The critical import, however, is that suppression of evidence is not enough when misconduct is as grave as occurred here.
A legal expert tells us that “dismissal of charges might not be too extreme a sanction when misconduct is as grave as occurred here”.
Shouldn’t we make the public aware of it?
Or should Tom Sneddon, the renowned pensioner of Santa Barbara, live in the comfort and quiet of his happy old age receiving the highest pension in the county for the invaluable services he rendered to the nation?