THE 1993 CASE: Jordan Chandler’s declaration, Michael Jackson’s photos and Tom Sneddon’s tricks
1. Did Jordan Chandler ever want to testify?
2. Why wasn’t Jordan Chandler deposed?
3. The criminal investigation is over. Tom Sneddon goes on talking
4. Prosecutors urge changes to the law to “nail” Jackson
5. Can a child’s declaration be admitted without the child’s testimony?
6. The Sixth Amendment and exceptions for children allowing them not to testify
7. Jordan’s case – a declaration with no evidence
8. A bluff with the 1993 photos at the 2005 trial
This post is a review of some facts known to us about Jordan Chandler’s civil case against Michael Jackson which will be now supplemented with new information from recently discovered legal sources.
I myself am absolutely sure of the conclusions made here, however if anyone wants to dispute my points the post is fully open to discussion.
The question that interested me most was whether it was possible to bring criminal charges against MJ in the absence of the accuser Jordan Chandler who in 1994 refused to testify against Jackson.
The question arose because Michael’s haters usually call it the main reason why the criminal case didn’t go any further.
Though the prosecutors didn’t have a witness they claimed they had other evidence – 1) the boy’s declaration made within a civil suit (in addition to police interviews), 2) a certain description of MJ’s genitalia given to the police and 3) the respective photos taken during Michael’s strip search conducted by the police too.
From various sources and our own findings we know that the photos did not match the description, but Tom Sneddon repeatedly claimed that they did, and if we are to believe his words this alleged match looked to me like sufficient reason to bring charges against MJ irrespective of the boy’s wishes.
This belief was based on the universal concept that prosecutors can file charges even when victims refuse to proceed with their accusations.
The main rules guiding the criminal procedure are as follows:
- The criminal trial always begins with the filing of charges. Until formal charges have been filed against you–even if you have been arrested–you have not been charged with a crime. Contrary to what you see in movies and television shows, the decision to file charges rests not with the victim, but with the prosecutor.
- Criminal Charges A criminal charge is the formal declaration from the state that a person is suspected of committing a crime. Charges are filed only when a prosecutor believes he has a reasonable likelihood of conviction.
- Prosecutorial Discretion. Only the prosecutor has final say on filing charges. The prosecutor has unfettered discretion when determining whether to file changes and what kind should be filed.
- Victim’s Rights. Contrary to popular belief, victims do not have right to file charges. By pressing charges, a victim is letting the prosecutor know that she/he wants the charges filed and is willing to proceed with the case, but the decision still rests with the prosecutor. Prosecutors can file in cases where the victim wants charges dropped, and can refuse to file in cases where the victim wants to proceed.
- Who is the Victim. Under the American criminal justice system, the “victim” is actually the state. The prosecutor is representing the entire citizenry, and ultimately must make the decision as to what is best for everyone, not just the individual victim.
- Law Enforcement Input. In addition to the victim, law enforcement officers are also allowed to state whether they think charges should be filed. Again, while the prosecutor takes that opinion under advisement, only he has final say.
If you read the above and compare it with the actions of prosecutors Tom Sneddon and Gil Garcetti handling the Jordan Chandler case you will realize that something does not add up here.
If the decision to file charges depends wholly on the prosecutors, why didn’t Sneddon file charges in 1994 against MJ if he really had the physical evidence he claimed he had? Did the prosecution really need Jordan that much if in addition to the statement from the boy they also had the photos and the description that allegedly matched?
Jordan’s declaration to Larry Feldman we all heard of can be brushed off as unimportant – it is only a piece of paper where anyone can say anything and a boy under 14 is not even liable for perjury made under oath (Jordan was 13 and turning 14 two weeks after making the statement).
But the alleged “match” was supposed to be really hard evidence. In fact this was all the prosecutors needed to at least bring charges against Michael Jackson, however they never did. Why? Is there a possibility that they really couldn’t due to Jordan’s refusal to testify?
This last question is crucial for the case, but in order to answer it, first we need to find answers to other questions concerning the 1993 case.
1. Did Jordan Chandler ever want to testify?
Why didn’t Jordan testify against Jackson in a criminal trial? Of course it never came to even as close as bringing the charges against MJ, but still – why didn’t he?
He had a perfect right to do so after the settlement. The Chandlers’ agreement with Michael Jackson said that they could not speak to the media and not to the authorities, and even if it had said otherwise it would have been illegal and therefore invalid. The boy could have given his testimony in a deposition, within the civil case or in a criminal trial, within both civil and criminal cases – but he never did, same as his parents.
The answer to it is that Jordan never wanted to testify. A testimony means a scrutiny by the other side, and he admitted he didn’t want it when he said that he was afraid of a cross-examination.
He spoke of his fear of being cross-examined in an interview with psychiatrist Dr. Richard Gardner to whom he was sent by Larry Feldman for the evaluation of his story.
The interview is now freely found in the Internet and is part of Ray Chandler’s so-called documents laying the basis for his book “All that glitters”. The book was self-published in September 2004, evidently after many years of the Chandlers carefully considering how to present to the public the sensitive issue that they took the money but disregarded the chance to testify against Jackson.
Jordan spoke to the doctor in October 1993, only a couple of months after the alleged molestation events allegedly took place. The doctor was asking Jordan about something totally different – the fears and pangs that usually haunt real child abuse victims for as long as they live.
As to that kind of fears Jordan had none. Moreover he even added that he had “nothing to hide” which is totally uncharacteristic of child abuse victims – they usually feel so ashamed and separated from the rest of the world as a result of their dirty experience that prefer to keep silent about it.
However our boy couldn’t care less whether he would have to tell the sordid details of his alleged “molestation” to a big audience or not – he had “nothing to hide” from these people and his only fear was about a cross-examination his story would be subjected to:
Dr. Gardner: “What about fears? Any fears of any kind?”
Dr. Gardner: “Sometimes people, after experiences of this kind, develop different kinds of fears. You have no fears?”
Jordan: “Maybe of cross-examination but that’s all. I mean I have nothing to hide, it’s just the thought of it.”
And this was said only a couple of months after the alleged events took place? Betraying the boy’s easy frame of mind (even before any ‘therapy” he reportedly received later) and good knowledge of legal proceedings so uncharacteristic of a child?
The same fear of having to answer in a criminal case was expressed by Evan Chandler in a conversation with Larry Feldman. The conversation was described by Ray Chandler in his book.
“…I’m going forward. We’re going to push on. So far there ain’t a button I’ve missed. The only thing we gotta do is keep the criminal behind us. I don’t want them going first”.
Larry had said it before, but it hadn’t registered in Evan’s brain until now.
“You mean if they indict, the criminal case automatically goes before us?”
“Right! So we don’t want that.”
It was somewhat reckless of Ray Chandler to record in writing his brother’s fear of criminal proceedings and seeking only money in a civil suit. However in his numerous interviews over the release of the book Ray Chandler tried to correct the mistake and explained the situation differently. He implied that the family was waiting to testify (but no one asked them to) and since they were “tired of waiting” they finally decided to settle.
Here is an example of a typical reply from Ray Chandler, in this case in an interview with Larry King. Judging by the repetitions he makes it takes him some time to find a reply to Larry King’s question:
KING: Why did they settle?
CHANDLER: Why did they settle?
KING: Why did they settle?
CHANDLER: Oh. Well, you know, the allegations became public in August of ’93. The district attorney never filed a charge or never intended to file a charge. The family was not asked to testify all through the year of ’93. A lawsuit was filed — they got civil lawyers. The civil lawyers said you cannot wait. We don’t know if the DA is going to file, if the DA isn’t going to file.
Ray Chandler intentionally leaves out of the conversation Tom Sneddon as the second District Attorney involved in the investigation. Tom Sneddon is so aggressive and tenacious a prosecutor that anyone claiming that Tom Sneddon “never intended to charge” will be simply laughed off. Therefore Ray Chandler limits himself to the criticism of Gil Garcetti only, who was District Attorney of the Los Angeles County, implying that Garcetti was intimidated by Michael Jackson’s stature:
KING: So you think he didn’t bring the charges because…?
CHANDLER: No, I think he didn’t bring the charges because he did not feel that he could get a conviction against a man of that stature on the same evidence he could get against me or any normal person.
In all his interviews Ray Chandler adheres to the concept that the family was “tired of waiting” for the criminal charges to be brought against Jackson and therefore had to take money. However this idea fully contradicts his own account of how terrified his brother Evan was of criminal proceedings (“Jesus Christ”!) and how hopeful of the success of the civil suit he was.
And a civil suit is all about money and not justice, as you remember.
Ray Chandler says that “the family was not asked to testify all through the year of ’93”. He repeats the same in his March 2005 interview where he stresses that Jordan was asked to cooperate with the authorities only after the settlement.
To us it is very important as it means that Jordan did cooperate with the police after the settlement.
10th March, 2005
Andrew Williams: The case was famously settled out of court. How come?
Raymond Chandler: One of the biggest myths around this case is that my family took money rather than press criminal charges. There weren’t any criminal charges pending at the time; the family were waiting and waiting for charges to be filed. The real question people should ask is why Jackson settled out of court. He was telling journalists about how innocent he was but there was so much evidence gathered against him, his lawyers advised him to settle. It wasn’t until five months later that the District Attorney asked my family to help with a criminal prosecution.
The police was of course looking into the case before the settlement (as the strip search proves it), but it is true that due to the judge’s decision the civil case was drawing most of the attention.
The settlement that followed gave both parties every chance to testify during the on-going criminal proceedings (or in a criminal trial should it come to it) and June Chandler’s testimony at the 2005 trial is the best proof that none of the Chandlers had obstacles for cooperating with the authorities.
Ray Chandler feels he owes people an explanation why they never used the chance to testify and in 2005 offered another explanation – he said the family was afraid for their safety:
Andrew Williams: So what happened with the criminal charges?
Ray Chandler: My family asked for police protection – at the time, there were even Jackson fans coming over from England trying to break into the office and we’d find headless animals left outside the house – but we didn’t get it. The DA’s office turned us down because they didn’t think the risk was serious. At the same time though, they assigned police protection to the family’s lawyer because he’d received similar threats. The criminal case wasn’t pursued because my family didn’t feel safe to do so.
Now the “fear factor” is the main and only pretext given by the Chandlers for not testifying in 1993/94 . Ray Chandler claims that the family was intimidated by MJ’s fans and wanted to be placed under a witness protection program, but their request was refused.
He says that for Gil Garcetti it was a matter of “politics and saving face” and though for Tom Sneddon Ray Chandler has much more respect he still cannot explain why Sneddon failed to provide any protection for them too.
However there was nothing to protect them from. There was no danger, same as there was no danger for the Arvizos when they testified in 2005. Michael Jackson was no gangster and considering all media attention to his personality was the first interested party to have his accusers safe and sound.
What’s interesting is that Tom Sneddon himself never presented the “fear-factor” as a reason for Jordan Chandler’s refusal to testify.
Tom Sneddon is a person who would have done anything to obtain Jordan’s testimony in court and would have placed the Chandlers under any kind of program if only he had only agreed to testify, and this is why Ray Chandler’s version is so terribly unconvincing:
“It was about this time, April 1994, that the DA began putting pressure on Evan to have Jordie testify at a criminal trial… Evan and his family mulled over the decision carefully, and in the end told the DA that they would consider testifying if they were placed in a witness protection program immediately after the trial. For reasons that were never disclosed, their request was turned down.
Nevertheless the DA was insistent that the Chandler’s testify, and at times Evan came close to giving in. “The overriding factor was always the safety issue,” Evan commented. “But I also had this gnawing feeling that the DA was more concerned with saving face..with the politics and notoriety of it all, than with seeing justice done. It would have been their OJ before OJ ever happened. Maybe I’m wrong, but that’s the feeling I got -from L.A., that is, not Santa Barbara. I mean, Tom Sneddon wanted us to testify, too. But he seemed genuine, like his entire motivation was to put this criminal behind bars. He understood my fears and my need to protect my family, and he didn’t try to push me around. I have a lot of respect for Sneddon”.
As regards their fears there was indeed one case of a MJ girl fan from Britain who got into Evan Chandler’s yard (she was deported back after doing no harm to anyone). The episode was ridiculous but even if we regard it as a serious danger in the year 1994, it does not explain why Jordan didn’t take the chance to testify against Michael Jackson in the year 2005.
By that time Anthony Pellicano (a frightening character for them) had been put into jail, Michael Jackson was under another criminal investigation in connection with the Arvizos’ allegations and it was just the right time for Jordan to make his appearance in court. Or at least take a deposition which could be read out or shown there – of course if he and his family really wanted the “predator” to be in jail.
From the recent events around real criminals like Sandusky we know that when law enforcement bodies finally look into the actions of a real molester, his victims from the past join the first witness who was bold enough to break the silence. This is very much understandable. After so many years of suffering in silent despair, once they feel that there is a real opportunity to bring their abuser to justice they start coming in packs, though for all of them this is no easy experience. They have been waiting for this chance for so long that the matters of shame, fear and publicity are no longer important for these people – all they want is justice, vindication and a catharsis for themselves which will finally set them free from the horror of their past recollections.
But Jordan is the exact opposite of real child abuse victims.
Only a couple of months after the alleged “molestation” took place, in October 1993 he was calmly narrating his story to a psychiatrist without any visible emotion. He sounded reserved, bored and disinterested. He had no hard feelings, regrets, doubts or haunting recollections whatsoever and his only fear at the moment was that of a cross-examination.
It sounded like a well coached speech devoid of any emotion, and this is what we are supposed to believe?
In 2004 the Behavior Analysis Unit of the FBI wanted to conduct another of their innumerable investigations of Michael Jackson after being approached by the Santa Barbara District Attorney’s office in June that year.
The investigation was made on September 14 -December 9, 2004 and concerned Jordan Chandler again.
The idea was to urge Jordan to testify in support of the Arvizos’ claims. But when the FBI agent and the Santa Barbara D.A. representative met Jordan Chandler in a New York City hotel in September 2004 he vehemently refused to come to the trial and even said that he would sue them if they insisted, dropping a mysterious phrase at that.
“He believed that he had done his part”.
He had done his part? Was it a theatrical play or a scheme he took part in?
Do real victims of molestation behave that way or is it the answer of a person who knows that he slandered an innocent man and he doesn’t want to have anything to do with any more? Or is a sign of the person’s fear that his story may fall apart and the truth may be finally uncovered during cross-examination?
In his totally pornographic book of lies about Jackson, Victor Gutierrez described an interesting episode. Though generally not an authority for us, over here he had no reason to tell a lie as this particular story refutes the whole concept of Jordan’s “molestation” and this is why I tend to believe it.
In this episode Jordan Chandler is described as being relieved and happy at hearing the news that the authorities stopped the criminal proceedings against Jackson.
The way the author describes the scene you start realizing that Jordan was ashamed of his accusations of Michael and felt an enormous sense of relief when the case against him was finally closed. If even a liar like Gutierrez could not help reporting this fact, it means that there is truth behind it.
This makes me more or less come to terms with what Jordan did to Jackson. After all he was only a thirteen year-old boy who found himself in the midst of all this horror and had to face a terrible choice between profitable lies and profitless truth – a dilemma to which even few adults are able to find the right answer…
Herer is this episode from Gutierrez’s book:
“A representative from the OA’s office telephoned him, and told him “Michael Jackson will not be prosecuted, but if some day you change your mind and you want to testify against him, the case will be open for another six years.” Upon hanging up the phone, Jordie felt “relief and peace,” according to what he told to his best friend. “No one would speak about it anymore.” Jordie went to the swimming pool at his house where his stepbrother and Nathalie were, and jumped in with his clothes on. When his brother asked him if he was crazy he answered, smiling and hugging him, “You don’t understand, but this is a good day.”
To more or less accept Jordan and see him as a sort of a victim in this tale of lies, greed and shamelessness let us add to the picture the fact that Jordan made a drawing describing his feelings over the events he was involved in.
He made that drawing not at the time when he associated with Michael Jackson, but after his father made it clear that he would sue Michael. It is a suicide note which shows that the need to tell lies about an innocent man in court was so unbearable to Jordan that it brought him almost to the point of a suicide. According to Victor Gutierrez the drawing was found by Evan Chandler at the time when he was going to file a lawsuit against Jackson.
I don’t know what Gutierrez was thinking about when he was writing it, but the fact that Evan Chandler was contemplating a lawsuit for a monetary settlement immediately after he first confronted Michael Jackson with his allegations proves to us more than anything else that the matter was about money from the very start of it and was never meant to be taken to a criminal trial at all:
“Evan and Rothman thought that they would have to file a lawsuit against Jackson. Jordie was fearful and depressed about what had occurred at the meeting with Jackson, and about his father’s consideration of filing documents with the court. The idea that he would have to testify in court against his “first love” depressed him so much that, before going to bed that night, he drew a picture of a boy jumping off of a building and another person yelling at him to stop from behind. The drawing also showed a figure on the pavement covered with blood. This was a message. It was a suicide note. Evan found the paper the next morning. When he saw the drawing, he wrote on it the sentence “Don’t let this happen!”
He thought that the reason for the suicide note was that Jordie had been sexually abused by Jackson. The drawing appears exclusively in this book. Jordie’s reason for suicide was not because he felt shame for his sexual acts with Jackson. He was depressed because his father had promised him that nobody would know. Now his own father was negotiating and planning to go to court to tell all. His father had betrayed him.”
Gutierrez belongs to the kind of people who believe in a tender sexual love between men and boys, but since Michael’s advocates categorically oppose this idea the only explanation I see for the above is that Jordan was so pressed by his father to tell lies about Jackson and so ashamed of what he was doing (or so afraid of cross-examination?) that initially he was on the verge of a suicide.
It was only much later that he learned how to come to terms with those lies – once the harm is done and he will now be considered “a boy of MJ” forever – no matter what he does or says, so let him at least be rewarded for this inconvenience by the money he would have as a compensation for the label. Someone could have taught him this wise thought or the bright boy could have come to the idea himself, but this does explain why Jordan could put his signature under that false declaration of his, doesn’t it? (if the signature is his of course).
Whatever it is the main thing for us to remember is that Jordan Chandler was so afraid of the trial that he never contemplated the idea of testifying against Jackson – either in 1994 or 2005.
2. Why wasn’t Jordan Chandler deposed?
But even if Jordan Chandler did not want to testify at a criminal trial could he be at least deposed during all those proceedings? Deposition is one of the routine discovery tools – it takes place in the presence of lawyers from the other side and allows to cross-examine the witness.
Generally people are deposed mostly in civil cases where lawyers for the defense have an almost unlimited right to depose witnesses from the side of the plaintiff.
Lawyers for the plaintiff also have this chance but it is somewhat limited as the defendant can take the 5th Amendment if he is not willing to testify. In a criminal case it is quite a routine occurrence, however if the defendant uses this right in a civil case it will be frowned upon and may be even regarded as a sign of guilt (the idea of it is – why not testify if you are not going to jail anyway and the most you risk is money only?).
However in the Jordan Chandler vs. Michael Jackson case the advantage was firmly on MJ’s side as he was the defendant in a civil case and therefore had an unlimited right to depose his accuser, though of course Larry Feldman would have done his best not to allow Jordan Chandler to be cross-examined by Michael’s lawyers.
Could the prosecutors depose Jordan Chandler within a criminal case? Yes, they could as the Federal Rules of Criminal Procedure do not preclude depositions as part of the discovery process. Moreover it is a very convenient discovery tool as in criminal cases the lawyers of the other side (MJ) are not allowed to be present.
It is less common to take a deposition in a criminal case than in a civil one, but it is still possible. Usually it is done when there is a danger that the witness will be unavailable at the time of the trial or may refuse to testify – and the latter was exactly Jordan Chandler’s case!
Here is more about the possibility of depositions during civil and criminal proceedings and their routine use for discovering truth behind the allegations:
Pretrial Discovery Won’t Harm Justice System
Daily Journal – Mar 8, 2006
Any experienced civil litigator can tell you that depositions (and subsequent investigations to check the truth of deposition testimony) routinely allow civil defendants to prove witness testimony is false.
In light of the fact that a civil defendant has an almost unfettered right to depose a civil plaintiff’s witnesses before trial, it seems illogical to argue that the same discovery in a criminal case would cause “harm that is not correctable on appeal.”
…the Federal Rules of Criminal Procedure do not preclude discovery depositions, or that the rules violate a criminal defendant’s Due Process Clause and Confrontation Clause rights.
By Dana Cephas http://www.cephaslaw.com/articles/Pretrial_Discovery/
The Chandlers’ resistance to testifying against Jackson was evidently so strong that even Tom Sneddon did not manage to depose any of them.
And let us once again note the top important detail that in civil cases the defendant – I repeat – the defendant has an almost unfettered right to depose a civil plaintiff’s witness before trial.
This means that Michael Jackson as a defendant in the civil case had an almost unfettered right to depose Jordan Chandler by his lawyers!
Michael Jackson had this right, not Jordan. Michael Jackson was not obliged to answer any questions as it wasn’t his deposition, however he had the right to be present at the deposition, and listen and look while his lawyers grilled the witness.
In fact Jordan’s deposition was the easiest thing to do for Michael’s lawyers as the boy’s story had already been trumpeted by the media all over the world in minute detail and there was nothing to lose anyway, but despite this easy chance Michael still preferred not to do it.
This looks very meaningful to me – Michael spared the boy and did not take his right to cross-examine Jordan because he didn’t want to subject him to even more torture than the one he had already gone through owing to his parents’ efforts.
However Michael’s defense attorney Bert Fields was still planning to depose Jordan. Mary Fischer wrote about it in her article “Was Michael Jackson Framed?”:
“It was reported in November 1993 that Jordan Chandler had given a description of the singer’s genitals, and Feldman at that point declined to comment.
Howard Weitzman said he was not aware of any search warrant regarding the issue and added “You got to be kidding me. Mr.Fields is going to depose this young man at the appropriate time. And we are not concerned about those issues in this case. We don’t believe it. Period”.
It would later emerge that the description was false, and as a result Michael Jackson was not arrested after the search, as he would have been if it matched.
Mr. Fields would later say “They had a very weak case, we wanted to fight. Michael wanted to fight and go through a trial. We felt we could win.”
Bert Fields was unfortunately fired by Howard Wiezman (and was followed by his investigator Pellicano who left on his own) after making a technical blunder.
As we know Fields was so keen on speeding up the criminal investigation and having it completed prior to the civil case that he made a statement to court that the Grand Jury had already convened and they could expect an indictment of Michael Jackson very, very soon.
(An indictment is no proof of guilt but is a sort of consent of the grand jury that the evidence collected is valid enough to be examined in a court of law).
This information was wrong and the announcement looked like the lawyer hoping to have his own client indicted, while in reality Bert Fields was making a desperate attempt to prevent the judge from letting Larry Feldman’s civil case go before the criminal one investigated by the police.
Lisa Campbell says about it:
- During the November 23 hearing, Bert Fields told the court “a grand jury convened already in Santa Barbara County and are about to take evidence, if they haven’t already started, and that means we should expect a charging decision very, very soon.”
- This information given to Fields turned out to be false and Fields’ statement was immediately recanted by co-counsel Howard Weitzman. The grand jury session had not actually been called”.
Everything was upside down in this totally absurd situation – the defense attorney hoped for a grand jury to convene and take the matter further in the criminal proceedings against Michael Jackson, while the accuser Jordan Chandler didn’t want to testify in court and seek justice for the person who allegedly “molested” him. When you come to learn the details of the 1993 case nothing adds up in that crazy situation with the Chandlers!
The indictment was certainly wishful thinking on the part of Bert Fields – the Grand Jury never indicted Michael, either before or after the settlement, or ever in that case. And despite Bert Fields’ desperate attempt to prevent the fateful decision the judge nevertheless decided in favour of the civil lawsuit going forward.
However the boldness of Bert Fields’ move to put off the civil case and push the criminal proceedings forward, as well as the extent of his confidence in the defendant’s innocence will never stop to amaze me – the defense lawyer and his defendant wanted the criminal proceedings to go first while the accuser and his lawyer did not!
Add to it Ray Chandler’s almost deadly fight against a subpoena from Michael’s defense team in the year 2005 and his lack of desire to submit the “documents” he allegedly had against Jackson and you will see a family portrait of con artists who decided to make big and quick money at the expense of Jackson but were afraid of testifying like the plague.
The real reason why they were so terribly afraid of the need to prove their case in court was that they themselves were absolutely not sure that any molestation of Jordan had ever taken place. When promoting his book in September 2004 Ray Chandler gave in interview on Dateline and over there played a record which shows that his brother believed that the relations between MJ and his son were purely platonic.
Ray Chandler said that the tape was made around the time of making the allegations, and this means that even at the time Evan was making his accusations he didn’t believe them himself!
Tape Shown of Former Jackson Accuser’s Kin
Mon Sep 13, 2004 8:19 AM ET
LOS ANGELES – Tapes of the father of a boy who accused Michael Jackson of molestation in 1993 were played on the TV news magazine “Dateline,” a decade after the singer reached a settlement with the boy that included an agreement not to discuss the case.
The boy’s uncle played the recordings for NBC television’s “Dateline,” saying he made them around the time of the allegations.
The alleged victim declined to cooperate with prosecutors, and no criminal charges were brought against Jackson at the time. The boy’s uncle told “Dateline” that the family initially tried to help prosecutors bring charges, but stopped cooperating when authorities refused to place them in the witness protection program.
Uncle of Ex-Jackson Accuser Tells All
Mon Sep 13, 5:20 PM ET
By Josh Grossberg
… The uncle, who had no part of the estimated $20 million settlement, played audiotapes he made with the boy’s father that paint a disturbing portrait of Jackson at the time of the scandal. In the recordings, made by Chandler with his older brother’s knowledge and made available to Dateline’s producers, the father is heard expressing sympathy for the then 35-year-old King of Pop, believing the relationship he struck up with his 13-year-old son in the fall of 1992 was strictly platonic.
“He’s childlike. He’s a child. Nothing to fear,” the father said on one tape. “You put that together with the way he looks…and you feel sorry for him, okay. And you know that he–this tells you that he grew up an intensely lonely person.”
So Evan Chandler was not sure and was even sorry that he was doing it to Michael, but the desire for money was still bigger. This explains the civil suit and this explains their unwillingness to cooperate with the authorities too.
3. The criminal investigation is over. Tom Sneddon goes on talking
We are coming a little closer to the initial question (“Could the prosecutors continue with the 1993 case even when Jordan refused to cooperate with them?”) but are still not quite there. We still need to sum up a couple of other things.
The criminal investigation lasted for thirteen months – from August 17, 1993 to September 21, 1994. More than 400 witnesses were interviewed, two Grand Juries looked into all the evidence collected, but did not return an indictment, and on September 22, 1994 the District Attorneys of Los Angeles (Gil Garcetti) and Santa Barbara (Tom Sneddon) finally had to announce that no charges would be filed.
However the emphasis was made on the fact that it was due to the settlement that the accuser refused to testify and that in California victims of child abuse cannot be forced to testify. Therefore the case would remain open should the accuser change his mind.
This opportunity was open until the statute of limitations expired in about 6 years which would take us to the year 2000 as a deadline. Within that period the prosecutors were “ready to proceed with charges against Jackson”.
This is how the news was reported by the New York Times on September 22, 1994:
No Charges for Now Against Michael Jackson
By SETH MYDANS
Published: September 22, 1994
After more than a year of investigation, accompanied by lurid speculation in the press, prosecutors said today that they would not file child molestation charges against the pop superstar Michael Jackson.
At a joint news conference, the District Attorneys for Los Angeles and Santa BarbaraCounties said they had decided not to proceed with allegations that Mr. Jackson had sexually molested three boys because the “primary alleged victim” had decided not to testify.
The prosecutors said that the case would remain open and that charges could be filed if the boy changed his mind at any time before the statute of limitations expired in about five years.
The boy, who is now 14, reached an out-of-court settlement with Mr. Jackson in a civil suit filed last September. Although details of the settlement were not made public, a friend of Mr. Jackson said it involved a payment by the singer of more than $10 million. The suit accused Mr. Jackson of sexual battery, seduction, willful misconduct, intentional infliction of emotional distress, fraud and negligence. Mr. Jackson has repeatedly denied any wrongdoing since the allegations became public in August 1993.
In announcing that no charges would be filed now, Gil Garcetti, the Los Angeles District Attorney, said: “After about 13 or 14 months of investigation this is our conclusion. We have a very important witness who has told us, ‘I am sorry, I do not want to and will not testify.’ And I’m telling you that if he stepped forward a month from now, two months from now, and says, ‘I’m willing to testify,’ we would re-evaluate our case at that time.”
Tom Sneddon, the District Attorney in Santa Barbara, where Mr. Jackson owns an estate, said more than 400 witnesses had been interviewed in the case and that two other possible victims had been identified. But he said one of these, who is now in therapy, had asked not to be involved in the case and the other was out of the country and had made a “general denial” of wrongdoing by Mr. Jackson.
In California, a victim of sexual abuse cannot be required to testify in court.
The two District Attorneys made it clear that they had been prepared to proceed with charges against Mr. Jackson. In a joint statement they said: “We emphasize that our decision is not based on any issue of credibility of the victims. Should circumstances change or new evidence develop within the statute of limitations, this decision will be re-evaluated in light of the evidence available at such time.”
This District Attorney Tom Sneddon should be reminded that he does not have the right to call anyone a “victim” until the alleged abuser’s guilt is proven in court. However he did speak of MJ’s “other possible victims” even without bringing charges against the man!
For ten years following that press-conference he claimed that he put the case involving Michael Jackson out of his mind. However this source http://www.talkleft.com/story/2003/11/19/867/02974#004397 shows that Tom Sneddon actually never intended to leave Michael Jackson alone and never did.
When the Chandler investigation was over this is what Tom Sneddon said:
- “When that case went to bed … it went out of my mind. I haven’t given it a passing thought”.
And this is what he did – and here comes a collection of Tom Sneddon’s quotes saying that it is “just a sampling of what their Lexis research turned up out of 100 entries for “Tom Sneddon” and “Michael Jackson” between 1994 and 2001”.
When you read these quotes please pay attention to how Tom Sneddon escalates the matter when speaking about it – “the charges were brought”, ‘the charges were dropped”, then “a third boy” appeared together with a “lawyer who worked on a new settlement” and even “two more victims were identified”.
All of it is a completely crazy stuff as no charges were ever brought against Jackson, there was neither third boy nor his lawyer, and there were no other “victims” identified. Who told to the media all this crap? Tom Sneddon?
The Daily Telegraph (Sydney, Australia) March 7, 2001
“Heal The Kids” was described as an image-building deception by Santa Barbara district attorney Tom Sneddon, who prosecuted the singer for alleged child molestation in 1993. Jackson avoided trial by paying the family of his 13-year-old accuser around $20 million. Sneddon recently warned the case could be reopened at any time.
Herald Sun (Melbourne, Australia) February 16, 2001
In a twist on the eve of his launching appeal [for a children’s charity program], the district attorney who brought the case said it was not closed. “The case against Michael Jackson was never closed, and he was never exonerated,” said DA Tom Sneddon. “It’s in suspended animation and can be reopened at any time.”
Broadcast News (BN) February 15, 2001
Remember the child molestation charges levelled against Michael Jackson a few years ago? So does the district attorney in Santa Barbara, California, Tom Sneddon. He’s the one who investigated Jackson in 1993 when a then-13-year-old boy claimed Jackson molested him. Jackson later settled with the family and was never charged by authorities.
Sneddon tells the New York Daily News the case against Jackson was never closed and it can be re-opened at any time. He says the statute of limitations hasn’t run out because Jackson was living out of the country for so much time.
Daily News (New York) February 14, 2001
Michael Jackson is not out of the woods.
So says Santa Barbara District Attorney Tom Sneddon, the man who brought child molestation charges against the singer in 1993.[wrong, there were no charges] Jackson is scheduled to deliver a speech tonight at Carnegie Hall on behalf of his Heal the Kids initiative. Although Sneddon can’t be there in person, he’s definitely arching an eyebrow from 3,000 miles away.
“The case against Michael Jackson was never closed, and he was never exonerated,” Sneddon says. “It’s in suspended animation and can be reopened at any time.”
The Advertiser January 27, 1996
“But the reality is, no matter what he does, he can’t escape the fact that he paid out millions of dollars to prevent a 13-year-old boy from testifying against him in court,” says Santa Barbara District-Attorney Tom Sneddon, who originally investigated claims Jackson had molested the boy at his Neverland ranch.
Charges against Jackson were dropped when the boy refused to testify. But Mr Sneddon says, contrary to popular belief, it would be “inaccurate” to say Jackson was cleared of all charges. “The state of the investigation is in suspension until somebody comes forward and testifies,” he says.
The New York Beacon August 23, 1995
Magazine: Michael Jackson Lied To Interviewer Diane Sawyer.
Michael Jackson lied to Diane Sawyer about his relationship with young boys and withheld information about a pending civil action, Vanity Fair reported.
Santa Barbara District Attorney Tom Sneddon told the magazine that Jackson has not been “cleared” of sexual involvement with two boys, as Sawyer said during his interview of Jackson on ABC’s “Prime Time Live.”
“The state of the investigation is in suspension until somebody comes forward,” Sneddon said. The magazine also reported, quoting unidentified sources, that there is a third boy [crazy rumor] whose lawyer is working on a settlement with Jackson. In the June 14 interview, Jackson told Sawyer there was “not one iota of information that was found that could connect me to these charges” of child
But Sneddon told the magazine in its September issue that he has seen photos of Jackson’s genitalia, and “his statement on TV is untrue and incorrect and not consistent with the evidence in the case.” Others familiar with the evidence told Vanity Fair that the photos match descriptions given by a young boy to investigators.
The Chattanooga Times, August 19, 1995
Meanwhile, Saturday’s Today newspaper said Santa Barbara, Calif., District Attorney Tom Sneddon had twice contacted Presley’s mother, Priscilla, for information about Jackson’s relationships with young boys.
Showbiz Today, September 22, 1994
GIL GARCETTI, Los Angeles County District Attorney: We have concluded that because the young boy who was the catalyst for this investigation has recently informed us that he does not wish to participate in any criminal proceeding where he is named as a victim, that we must decline prosecution involving Mr. Jackson.
VERCAMMEN: Prosecutors said their investigation also turned up two other children allegedly molested by Michael Jackson. But the district attorneys added one boy is out of the country and denies wrongdoing by Jackson, and the third alleged victim is reluctant to testify. Prosecutors said they will reopen the case should any witnesses have a change of heart.
TOM SNEDDON, Santa Barbara County District Attorney: Should circumstances change, should other evidence become available within this period of the statute of limitations, like Los AngelesCounty, we would re-evaluate the situation based upon what information is available to us at that particular point in time.
The New York Times, September 22, 1994
Tom Sneddon, the District Attorney in Santa Barbara, where Mr. Jackson owns an estate, said more than 400 witnesses had been interviewed in the case and that two other possible victims had been identified But he said one of these, who is now in therapy, had asked not to be involved in the case and the other was out of the country and had made a “general denial” of wrongdoing by Mr. Jackson.
The Independent (London), August 20, 1994
A ruddy-faced veteran prosecutor with a reputation for bloody-mindedness, Thomas Sneddon is not burdened by a litany of heavily publicised previous blunders. Nor is he willing to accept that his case is hopeless without the testimony of its central figure – Jordan Chandler.
”The Santa Barbara office is still quite involved in investigation of the Jackson allegations,” says Michael Cooney, an attorney who knows Sneddon well. ”Tom Sneddon is a very determined individual who will go further than almost anyone to prove something which he feels needs proving. Once he decides action is worth taking, he will pursue it to the very end.”
4. Prosecutors urge changes to the law to “nail” Jackson
From the above articles we find that after the criminal investigaton was suspended Tom Sneddon first extended the case against Michael Jackson by an indefinite period as Jackson was “out of the country for much of the time”, and then, together with Gil Garcetti, urged the state legislators to amend the California law – evidently to make further prosecution of Jackson easier.
One of the amendments made in 1996 allowed the victims of prior child molestation cases to come forward at any time with allegations of prior misconduct. This was why the officers from Tom Sneddon’s D.A. department were able to urge the first accuser, Jordan Chandler to testify against Jackson in the year 2005, or twelve years after the 1993 events, however the boy (now a grown-up) declined the invitation and threatened to sue the visitors instead.
As a result of the 1993 case several other amendments were made. Tom Sneddon admitted it himself that the law was amended only due to his flop with Michael Jackson:
- “It is an irony. The history of the law is that the L.A. district attorney’s office carried the legislation as a direct result of the civil settlement in the first investigation,” Sneddon told The Associated Press in an interview.
The major reason for the mistake was of course Tom Sneddon’s free interpretation of the law, however the public was also ready to understand it that way. When the 1993 investigation was over prosecutors Tom Sneddon and Gil Garcetti explained to everyone that they failed to bring charges against Michael Jackson because the boy refused to testify (and not because they had no evidence against MJ) and spoke of the need to compel the witness:
Officials desperate to nail Michael JacksonUSA TODAY – McLean, Va.
Author: Wickham, DeWayne
Date: Feb 7, 1994
DeWayne Wickham discusses attempts to change the California law that prohibits forcing sexual assault victims to testify in criminal proceedings, which would allow Los Angeles DA Gil Garcetti to compel the 14-year-old boy whom Michael Jackson reached an out-of-court settlement with to possibly testify in any criminal trials growing out of his widely reported charge that the superstar sexually abused him. He says the line between justice and injustice is getting harder and harder to find.
Forcing the witness to testify was what the prosecutors wanted to do, however the legislators had a different view on the problem and did not do as they were asked.
They did change the law but how?
Actually finding information about it was almost impossible. Everyone talked about everything else but not about the main change.
One Los Angeles Times article explained that Sneddon had spoken of the amendment which said that money under a civil agreement could not be allowed to be paid out for more than a year and forbade the so-called “hush money” to be spread over an extended period of time.
Since you have naturally thought about Jackson in this connection let me say that the money paid to Jordan Chandler was not hush money as everyone knew of the story anyway (it simply could not be any louder) and the agreement never precluded Jordan from testifying during the whole period when the money was paid.
In Jordan Chandler’s case the money was spread over years as a guarantee that the Chandlers would not talk to the media, and this is probably why Ray Chandler ventured to publish his book only in 2004 when the payments were already over.
So this amendment does not apply to Jackson’s case at all, though Tom Sneddon surely wanted everyone to think that way.
Tim Rutten clarified at least a couple of points:
The error that keeps on erring
December 03, 2003|TIM RUTTEN
Error, according to the classical reckoning, enjoys no rights. But in the 24-hour news cycle, it sometimes achieves a kind of immortality.
That’s never truer than in the coverage of criminal cases. One particular thread of the Michael Jackson case is strikingly instructive on how this can occur — even in the face of the news media’s prompt and repeated attempts to root out the mistake.
In this instance, the error involves not some peripheral narrative detail, but an issue fundamental to the prosecution: Does a California law adopted after an abortive 1993 investigation into allegations that the singer had molested a young boy allow prosecutors to compel an alleged child victim to testify?
The answer is no. There is no such law.
If you thought there was, you’re in extensive company — including a large number of the callers discussing the case on AM talk radio and a clutch of reporters and commentators. In part, that’s because the error originated with one of the story’s principals, Santa Barbara County Dist. Atty. Tom Sneddon.
In a nationally televised news conference Nov. 19, he recalled the 1993 situation in which the alleged victim declined to cooperate with prosecutors after Jackson paid him a settlement that amounted to tens of millions of dollars.
“The law in California at that time provided that a child victim could not be forced to testify in a child molest proceeding without their permission and consent and cooperation,” Sneddon said. “As result of [that] Michael Jackson case, the Legislature changed that law, and that is no longer the law in California.”
Within hours, cable news producers from coast to coast were beating the telephonic bushes for “legal experts” to explain this new law, which — oh, delicious causality — had been passed because of Jackson’s earlier conduct in a similar case.
Here, somebody might have paused to apply what could be called the old how-would-that-really-work test. Imagine for one second the fate of an elected district attorney who compelled a child victim to recount the details of his sexual abuse by threatening to have the tyke jailed for contempt of court…. The operative words here are “elected” and “child victim.” Any prosecutor who did such a thing would be out of office quicker than you can say Gray Davis. In fact, they’d probably be lucky to fend off involuntary commitment to a home for the criminally thick-witted.
But common sense notwithstanding, it is a now wearisomely unremarkable fact that there was no shortage of talking heads with law schools in their pasts willing to appear on camera that night to dance evasively around the nonexistent law.
What was remarkable is that they did so in the face of an Associated Press story filed later that very day, setting the record straight. In that piece, AP special correspondent Linda Deutsch and her colleague Tim Molloy noted that Sneddon’s description of the law had “baffled legal experts.”
In an follow-up interview shortly after his press conference, Sneddon told Deutsch and Molloy he was referring to another law. That statute regulates only civil settlements, forbidding payments to an alleged victim more than one year after the settlement is reached. In other words, no long-term hush money.
“Sneddon said he was aware that children cannot be forced to testify,” according to the AP story, “and that reporters and other attorneys had misinterpreted his remarks at the news conference.”
The next morning, however, there was NBC’s “Today” show host, Katie Couric, interviewing attorney Johnnie L. Cochran Jr., who represented Jackson in the negotiations that lead to the 1993 settlement:
Couric: “Well, now a new law states that a minor can be called as a witness by the D.A. without consent. So, it’s slightly ironic that this change in law that resulted from this previous case may be the thing that actually gets, possibly, gets Michael Jackson in the end.”
Cochran: “I think the law was changed after that…. And now they can call witnesses and compel their testimony.”
Oh no they can’t, a slightly exasperated Jeffery Toobin, CNN’s legal affairs analyst, told colleague Miles O’Brien later that same day, as they covered Jackson’s surrender to authorities.
O’Brien: “As a parent, I can’t imagine anybody trying to compel an 11-year-old … to testify in court. I’m sure a lot of people would have problems with that.”
Toobin: “No, it can’t be done under California law. In fact, the law is broader than that. You can’t even compel an adult victim of a sexual assault to testify. That statement by the district attorney is simply wrong. There can be no compulsion.”
I don’t know whether it was a chance mistake of Tom Sneddon or his deliberate tactics to misguide the public, but the trick about compelling a child to testify did work. Even Johnnie Cochran was deceived by Sneddon’s words!
Toobin clarifed the point by saying that no child complainant could be forced to testify. In fact the law does not allow to force even adult alleged victims of molestation, not to mention children – given the nature of these crimes the testimony of these people should be purely voluntary.
The next article says that a lot of other changes were made in the California statutes, evidently as a result of the 1993 case, which makes me think that Tom Sneddon was sort of equipping himself in advance for a new case against Jackson:
Santa ClaraUniversity law professor Gerald F. Uelmen is the bar’s go-to scholar on issues of California law.
“This law I keep hearing about in the media doesn’t exist,” he said. “The Santa Barbara D.A. misspoke and completely blew it. Whatever he claims now, he said there was such a law and he was dead wrong. He was right that, since 1993, there have been a lot of changes in the California statutes that make it easier to prosecute child abuse cases. But there is no statute that allows anybody to compel any victim of abuse to testify.
“What’s a lot more interesting is how the media picks up these things and then feeds off each other’s misinformation so that it becomes impossible to put one of these pseudo-facts to rest.”
Okay, by now it is crystal clear that no minor or even adult can be compelled to testify in a child molestation case, but how does it help us in answering the question this post started with?
The question was: Could the prosecutor do without the witness at all and still bring criminal charges against the defendant? For example, on the basis of the declaration the child made and other evidence the prosecution had?
5. Can a child’s declaration be admitted without the child’s testimony?
As if to answer our question the Los Angeles Times made a comment about one more amendment made by Sneddon to the California Statutes. This one is much more interesting to us as it has a direct connection to Jordan Chandler’s declaration.
This amendment to the California law says that if a child under 12 has given a prior statement under circumstances that the court thinks are reliable, and then the child withdraws his/her cooperation, that previous statement can be admitted in court.
Whether a written or videotaped statement, the statement can still be admitted in court and though this article was printed at the time of Arvizo allegations it still refers to the amendments made in the year 1996:
Toobin: California law allows admission of child’s prior statement
November 20, 2003
(CNN) – Singer Michael Jackson surrendered to authorities in Santa Barbara, California, on Wednesday to face child molestation accusations. (Full story) CNN anchor Kyra Phillips spoke with CNN legal analyst about changes in California law that apply to alleged juvenile abuse victims.
KYRA PHILLIPS: Explain to us how the law has changed in California. There was a lot of back and forth on this yesterday and even today. The DA (district attorney) coming forward and saying, “the law is different from 1993, when allegations first came forward about Michael Jackson and child molestation.” He said now the law has changed, that’s why we’re filing charges and going forward in this manner. How has the law changed? Is it with regard to the victim being forced to speak or not to speak? Explain that to us.
JEFFREY TOOBIN: This really was the subject of, I think it’s fair to say, some incorrect information that was provided by the district attorney yesterday. He, let me give you a little background of why it’s significant.
In the 1993 case, Michael Jackson was accused not in a criminal court, but there was a civil accusation that he molested a child. A criminal investigation followed. There then was a civil settlement between Michael Jackson and the child. He paid the child a great deal of money, several million dollars. That child and his family then said we will not participate with the criminal justice system, we will not testify, we’re checking out.
Yesterday, the district attorney said, well, things are different now, because children can be forced to testify in these investigations. That’s simply not true. That is not the law. But the law did change in an important way.
What happens, the law now is that if a child under 12 — and that’s a significant fact, if the child is under 12 — has given a prior statement under circumstances that the court thinks are reliable, and then the child withdraws his cooperation, that previous statement can be admitted in court. If it’s a written statement, if it’s a videotaped statement, that statement can be admitted in court even though it’s hearsay. So that’s a big change. But it is not a change that says kids can be forced to testify, because they can’t.
PHILLIPS: Sounds like there’s a big challenge here with regard to proving intent.
The wording of the amendment makes me think that the previous version of the law also allowed declarations of children to be admitted in court as evidence in a criminal trial, only then it applied to children older than 12 – which was exactly Jordan Chandler’s case.
So could the prosecutors admit Jordan’s declaration as evidence even though he didn’t want to testify? At least in the year 1995? Especially since the case was not closed but only suspended? I think that in accordance with the 1995 Amendment to the Penal Code they could.
Let us remember that admitting the declaration as evidence does not at all mean that the jury will return a verdict in favor of the child – it is simply giving the child’s statement a chance to be heard in the court of law.
And this means that Sneddon could admit Jordan’s declaration as evidence even in Jordan’s absence.
After digging through a pile of legal materials I’ve found that in the litigation process (in civil cases) it is quite common to admit statements or declarations from children even smaller than the age of 12 without the child witness actually taking a stand.
This practice will surely be challenged by the lawyers of the defendants who refer to the rule prohibiting the admission of hearsay evidence in the absence of the actual witness and his testimony, but in child abuse cases such efforts are often unsuccessful. Here is an example from the state of Kentucky:
Unavailability and Admissibility: Are a Child’s Out-of-Court Statements About Sexual Abuse Admissible if the Child Does Not Testify at Trial?
JoEllen S. McComb
The critical evidence against those accused of sexually abusing children is supplied most often by the victims. 1Yet, very young victims may not testify against the defendant at trial for a variety of reasons. A child may be found incompetent as a witness because of lack of memory 2 or lack of testimonial capacity due to age. 3 Children may also be unavailable as witnesses because they refuse to testify, 4 have retracted 5 an original report, 6 suffer “from a mental illness or infirmity,” 7 or because there is a “substantial likelihood of Severe mental harm to the child if . . . [he is] required to testify in open trial proceedings.” 8
When the child is found either incompetent or unavailable as a Witness, his or her out-of-court statements made to a Parent, 9 custodian, 10 police officer, 11 social worker, 12 doctor, 13 or others, 14 are offered by the prosecution to prove both that the crime occurred, 15 and that the defendant was the perpetrator. 16 These statements may be challenged under the rule prohibiting the admission of hearsay evidence. 17 Such challenges are often unsuccessful, resulting in the statements’ admission into evidence. The statements are admitted in one of three ways: 1) under one of the traditional exceptions to the rule; 18 2) under the residual rule; 19 or 3) under a special statutory exception for statements made by child victims of sexual abuse. 20
If similar practice was effective in California in 1994 it means that in a civil case Jordan Chandler would not even have to attend the trial – his declaration (not even a deposition involving a cross-examination!) could be just read out at the civil trial and that would be it. The defense lawyers would certainly object saying that it is hearsay evidence, but in civil cases such matters are regarded as not too important as the article says that the “challenges are often unsuccessful”.
Criminal cases are different though. Admitting hearsay evidence into a criminal trial is an exceptionally serious matter. Its admission comes into confrontation with one of the fundamental rights of the defendant – the right to confront his accuser. This right is given to the defendant by the so-called Sixth Amendment to the US Constitution.
6. The Sixth Amendment and exceptions for children allowing them not to testify
Let us read the following article carefully – it was posted in the Criminal Law section and concerns cases when a witness is unavailable in a criminal case and situations when prosecution wants to submit statements of unavailable witnesses. It explains the essence of the 6th Amendment and the defendant’s constitutional right to confront his accuser in accordance with it:
What if a Witness Is Unavailable to Testify?
POSTED IN CRIMINAL LAW PROCESS BY LAWYERS.COMSM 0
A witness’s trial testimony helps a jury decide a defendant’s guilt or innocence. However, sometimes a witness is unavailable to testify at trial. The general rule is that testimony can’t be used unless the witness testifies in court because it’s hearsay, which is evidence based on someone else’s report rather than the witness’s personal knowledge. Hearsay can be thought of as rumor. If an unavailable witness’s statement can be used at trial depends on if it fits into one of the hearsay exceptions. A judge decides the unavailability of a witness and the admissibility of hearsay.
When Is a Witness Unavailable?
An unavailable witness is someone who can’t or won’t testify at trial. Unavailable can mean that a witness:
- Claims that he doesn’t have to testify because of a protected privilege like marriage, doctor-patient or attorney-client relationships
- Refuses to testify
- Testifies that he can’t remember
- Died or has physical or mental illness
- Is absent from the state
A tricky question arises when the prosecution wants to admit an unavailable witness’s statement because this conflicts with a defendant’s right to question witnesses.
This is known as a defendant’s right of confrontation. Essentially, a defendant has a constitutional right to see, face-to-face, and hear the witnesses testifying against him in court.
So, the prosecution must show that the witness really was unavailable. For instance, if a witness is not in the state, the prosecution has to show that the witness was beyond process, meaning that he couldn’t be served with court papers ordering him to come to court and testify. Also, the prosecution must show that it made a good faith effort to get the witness to attend court.
There are some rules regulating the cases when hearsay evidence can be admitted at trial. Out of these rules some are more or less applicable to the Jordan Chandler case:
· Statements in a Prior Proceeding
Statements made at an earlier hearing or deposition by a witness, who becomes unavailable, are admissible if the defendant was present at the earlier proceeding and had a chance to cross-examine or question the witness.
[This means that a defendant can be present during a prior hearing of the witness, and even has a chance to cross-examine him. However this is not Jordan’s case as he was never deposed and cross-examined]
· Statements by a Witness Whose Unavailability Resulted from Misconduct
If the prosecution or defendant deliberately acted in a way to “make” a witness unavailable, the statements by the witness are admissible. For instance, if a defendant intimidated a witness into not testifying, the witness’s statements will be admissible.
[To me this point means that if the defense ever really threatened Jordan as Ray Chandler insinuated it, the rule of hearsay could be ignored and Jordan’s statement could be admitted to a criminal trial.
This is a very effective tool against any intimidation from the defense and the fact that the declaration never reached its destination at a trial shows that all talk from Ray Chandler about “fears” and “witness protection program” was sheer nonsense. No one intimidated them, it was just a pretext not to testify.]
Helpful as these sources are, they still remain indirect indications that Jordan’s declaration could have been used by the Prosecutor even in the absence of Jordan’s personal testimony.
And now attention please, here comes one more amendment made to the California law after 1993.
This amendment allowed to make exceptions for “out-of-court” comments from children and exactly in child abuse cases.
This is what I found in the Los Angeles Times dated December 1997:
Hearsay Comments in Sex Abuse Cases Upheld
California and the West
December 30, 1997|MAURA DOLAN | TIMES LEGAL AFFAIRS WRITER
SAN FRANCISCO — A juvenile court, deciding whether to restrict a parent’s access to a child, can consider out-of-court comments the child made to others about being sexually molested even if the child cannot distinguish truth from fantasy in a courtroom, the California Supreme Court ruled Monday.
The 6-1 ruling comes at a time of growing concern over the credibility of young children who make allegations of sexual abuse. “There is an increase in the number of child abuse cases involving very young children, so this will affect quite a few cases,” said Stephanie M. Davis, one of the lawyers in the case.
The state high court reaffirmed a precedent that allows juvenile courts to admit out-of-court statements during hearings to determine if a possible sex abuse victim should be made a dependent of the court.
Even if a child is incapable of testifying, the “hearsay” statements about sexual abuse can be admitted if other evidence exists to corroborate the statements, the court said in establishing new requirements for admitting such out-of-court statements.
The decision came in a Los Angeles case in which a 3-year-old girl told a preschool aide that.. http://articles.latimes.com/1997/dec/30/news/mn-3502 (the rest of the story is sheer horror, so I will omit it).
The main idea of this article is that a child’s statement can be admitted without the child’s presence in court but only in case it is supported by other evidence which can corroborate the statement.
This means that Jordan could stay away from the criminal trial but his statement could have been admitted in court only if it had been supported by the photos. This fact looked smashing to me but required verification.
Another day of digging through another pile of legal materials confirmed that the idea was right – a child’s statement can be admitted in a trial, but only if it is confirmed by some other evidence.
This amendment was introduced into the California law in 1995:
The California Legislature in 1995 enacted a statute based on the Washington model directed at certain types of offenses of child abuse and neglect.(Evid. Code, § 1360.) The Washington statute, the California statute, and the American Bar Association Recommendations all have the following requirements in common for admission of out-of-court statements:
(1) the court must find that the time, content and circumstances of the statement provides sufficient indicia of reliability;
2) a child must either be available for cross-examination or there must be evidence of child sexual abuse that corroborates the statement made by the child; and
(3) other interested parties must have adequate notice of the public agency’s intention to introduce the hearsay statement so as to contest it.
7. Jordan’s case – a declaration with no evidence
So this was how the California Legislature was amended in 1995? The legislators did indeed allow the prosecutors to admit a child’s statement even in case the child refused to testify, but only on condition that the statement was corroborated by the respective evidence.
But this means that Jordan Chandler’s participation was not that necessary and all the prosecution had to do was to submit the child’s declaration and provide the evidence to support it.
The change was made in 1995, only a year after the case against Jackson was suspended, and if Sneddon really had the evidence corroborating Jordan’s words he could have easily re-opened the case on the basis of Jordan’s statement alone and the physical evidence he claimed he had.
By physical evidence I mean the photos of MJ’s genitalia which Tom Sneddon said allegedly “matched” the boy’s description.
However despite all his assurances of the above Tom Sneddon did not reopen the case, either in 1995 or at any time at all. Even after the California law was amended. Even though it was amended exactly because of Jordan Chandler’s case and was aimed to reopen the case against MJ.
Why didn’t he?
Because there was no evidence to support that fake declaration of Jordan Chandler.
The declaration was just a piece of paper with a “story” written on it, and the photos did not confirm anything Jordan was saying.
And all Sneddon’s lamentations about the unavailability of the “victim” were just a smokescreen meant to cover up for this unpleasant fact.
8. A bluff with the 1993 photos at the 2005 trial
Michael Jackson’s haters will be tempted to apply the same amendment allowing to admit the evidence in the absence of a child witness to the 2005 case.
You remember that at the very end of the trial Sneddon tried to admit the old photos from 1993 as evidence against Michael Jackson accompanying it with his usual mantra that the photos were proof of something horrible.
On the face of it it seems that Sneddon tried to do in 2005 what he failed to do in the 90s – admit the “evidence” (photos) without the “victim” (Jordan Chandler). However these two cases are worlds apart as in the 90s Sneddon could do it, while in 2005 he could not.
Why not? Because in 1995 Jordan was a child, while in the year 2005 Jordan was an adult.
And the child hearsay exception to the law does not apply to adult witnesses.
To adult witnesses applies the 6th Amendment rule which obliges the witness to be present in court.
Here is the proof of it. The 1995 amendment to the California law calls this exception a ‘child dependancy hearsay exception” where the word exception is the key one:
“This court believes the time . . . is [now] ripe for a recognition of what we will call a ‘child dependency hearsay exception.’ It appeared generally to follow the American Bar Association Recommendations and the Washington statute on child hearsay, and similar statutes, at least inasmuch as it concluded that child hearsay statements recounting sexual abuse may be admitted when “ ‘. . . the time, content, and circumstances of the statement provide sufficient indicia of reliability’ ” and the child either testifies at trial or is unavailable as a witness.”
However in 2005 Jordan Chandler was 25 years old and was not a child to whom this exception could apply.
And if the photos had been admitted in court Michael Jackson would have had the “defendant’s right of confrontation” which is the essence of the Sixth Amendment to the US Constitution.
In other words if the photos had been admitted Michael Jackson would have had the right to demand Jordan Chandler’s presence and confront him in court.
But at this point we suddenly recall that Tom Sneddon knew perfectly well that Jordan Chandler was not going to testify.
How do we know it? We know if from the FBI file.
The FBI file says that Jordan refused to testify in September 2004 and did not intend to testify in 2004 or in 2005 or at any other date.
And when Sneddon wanted to introduce those photos in May 2005 he had already known for about a year that Jordan would not be available as a witness in court.
But even though he could not have his witness, he said he wanted to introduce the photos.
The main point here is that Sneddon tried to introduce the evidence despite the fact that he knew that it would be never allowed in court.
Introducing it without a witness was a grave violation of Michael Jackson’s constitutional rights, and Sneddon knew that the judge would never allow it. Then why did he arrange this show?
For the sheer effect of it.
The word “knew” here is the key to the whole riddle. Knowing that they are absolutely safe in introducing wrong evidence because it will never be allowed in court, makes swindlers absolutely sure that they will get away with the lies. No one will simply check it up.
What will be the right word for this behavior of Sneddon? A fraud? A bluff? An attempt to bias the jury and make them think that the photos were a match though they were not? Waving false evidence in the air and never giving anyone a chance to check? A theatrical act meant for effect only and a signal to the media to rush and report his lies?
I think it was all of it. The whole stuff was just a theatrical gesture, aimed to deliver the final blow to Michael Jackson. It was the last drop meant to bring the jury over to the accuser’s side and force them into returning a wrong verdict. It was a try to humiliate and torture Jackson beyond any possible measure as a mere thought of your naked genitalia scrutinized by the jury is a nightmare. It was a blow below the belt and an utterly mean thing to do. It was a crime against the truth and justice and an attempt to make the injustice win.
Fortunately it didn’t win, thanks to the honesty of the jurors and the titanic efforts of Thomas Mesereau and his team.
Many people will be bored to look into the 6th US Amendment and will be appalled at the mere idea of having to do with all those tedious legal details. However I have developed complete admiration and utmost respect for the 6th Amendment.
It helped us to find out that Tom Sneddon arranged a huge theatrical show at the 2005 trial involving Michael Jackson’s genitalia photos from the earlier case.
It helped us understand that Jordan Chandler’s story about Jackson was a complete bluff too. Those photos never matched the boy’s description and this is why Sneddon never used them – he didn’t use them in 1995 when he could, and pretended to use them in 2005 when he no longer could.
All Sneddon’s talk about the “match” between the photos and Jordan Chandler’s description was a a lie and a huge publicity stunt. Actually we knew it all along from the two mistakes Jordan made in his description and the fact that his own lawyer Feldman demanded that the photos should be “barred” from a trial. And the USA Today article of 1993 said the photos didn’t match. And today’s story is just another confirmation that all of it was just a dirty game.
This means that Sneddon shamelessly slandered Michael Jackson and spread vicious lies about him for more than 10 years.
As to Jordan Chandler he at least had the decency not to take part in this cheap show.
For those of you who have skipped this long and tedious legal exercise let me sum up.
1. When a witness is an adult and makes a complaint wanting his alleged offender to be prosecuted, the defendant has the constitutional right to confront this witness in court (according to the 6th Amendment). But if the witness hits and runs (makes a complaint but doesn’t want to testify), this complaint is not admitted as evidence. It is “hearsay” not corroborated by the person’s testimony.
This situation arose at the 2005 trial. Sneddon wanted (or said he wanted) to introduce the photos of MJ’s genitalia but at the same time knew that Jordan Chandler would not testify. This way he was using the photos only as a means to influence the jury, the media and the general public.
His mere intention to introduce those photos was breaking MJ’s constitutional rights. You choose the reason why he did it – either because Sneddon was legally illiterate or because he was breaking MJ’s rights deliberately.
2. But for children there is an exception to the “hearsay” rule. To protect the child from further damage the child is not obliged to testify in child-abuse cases. Instead of the child’s testimony the prosecution can admit a child’s declaration but only if it is supported by evidence corroborating it.
The case will be admitted in court if the judge decides that the evidence is indeed valid and the declaration is reliable. Often “spontaneous” declarations are considered to be the most genuine (Example: one 3-year old unfortunate girl said to the request of the caretaker “Please don’t touch yourself there”. “But my daddy always does it”. Unfortunately the evidence also corroborated it. Criminal charges were brought against that beast).
3. The “child hearsay exception” has existed in the laws of various US states since late 80s and was probably even part of the California Penal Code too. This I don’t know. But we know that after MJ’s case the California law was amended (in 1995-1996) and one of the amendments (1995) said that now the statements of children under 12 can be admitted, but again – only if they are corroborated by respective evidence.
4. So at least since that time – the year 1995 – Tom Sneddon (or Gil Garcetti) could reopen the case against Jackson, but only in case they had the corroborating evidence (the photos matching the description). Given that the amendment referred to children under 12, it is quite possible that before that the law also allowed the same procedure, for children older than 12 (like Jordan), and the prosecutors simply did not use the chance.
5. Gil Garcetti did not reopen the case, but he never said that the photos matched. Tom Sneddon didn’t reopen the case either, however he kept saying to the media that the photos were a match. But the very fact that he never reopened the case (though he could have) shows that the description was wrong and that he was telling a terrible lie. Actually the USA today also said in a tiny article of theirs in 1993.
6. So Sneddon didn’t use the photos in the 90s when he could do it, and wanted to use the photos in 2005 when he no longer could! He had no chance in 2005 as the witness was an adult and admitting those photos in the absence of the witness was a grave breach of Michael’s constitutional rights.
So how would you call it? A travesty of justice? A theatrical show for laymen? A deliberate attempt to mislead the jurors and force them to return a guilty verdict by presenting the 1993 case as a genuine crime though he never had any proof of it? Using the photos as an intimidation tool and as a means to slander and humiliate Michael further? All of it, I think.
If this is no proof of malicious prosecution on the part of Sneddon, then I don’t know what is.
10. Lawyers confirm it at the 2005 trial
Now we know that introducing the photos at the 2005 trial was pure bluff (= deception, deceit, fraud, hype, hoax).
Knowing that the photos could not be introduced the prosecution nevertheless tried to do it to produce a certain impression on the jury. They knew very well that the judge would never allow them because that “evidence” could come only in a combination with the witness whom they didn’t have.
Look at what Michael’s defense lawyer Sanger said at the 2005 trial and you will see that it was for this reason that judge Melville refused those photos:
MR. SANGER, MJ’s DEFENSE ATTORNEY (he refers to Carter and Crawford precedents):
14 It was not even in the original 1108 motion from
15 which the Court made a cut and reduced what they had
16 presented originally. So it wasn’t even in there.
17 I mean, we had no notice to deal with these
18 issues — with this issue at all. So there is
19 certainly unfair surprise, as stated directly in the
20 Carter case.
21 And Carter also says that the Court is
22 supposed to avoid dramatic evidence introduced late
23 in the trial that’s going to have an undue effect.
17 But when you get right down to it, the main
18 reason that it has to stay out is it violates
19 Crawford and the confrontation clause. It’s not
20 admissible hearsay. It is testimonial directly
21 under Crawford. This is the kind of stuff that
22 Crawford is talking about, when police officers do
23 interviews, and they get information and they write
24 it down in reports, and then they preserve that and
25 the prosecution wants to bring it in, that violates
26 the confrontation clause. You cannot do that.
MR. ZONEN, PROSECUTOR:
14 THE COURT: Mr. Zonen?
15 MR. ZONEN: Just briefly with regards to
16 Crawford. This is not hearsay at all. It’s not an
17 exception to hearsay. It’s not hearsay.
18 The issue is whether or not this child had
19 knowledge of the existence of that particular spot.
20 And the evidence of his knowledge, certainly his
21 ability to draw that picture, would be
22 circumstantial evidence that he knew about it. It
23 would be the equivalent of a child being able to say
24 that a room was green. And he would only know that
25 if he had been in the room. It’s not for the truth
of the matter that the room is green.
……………………………… I still
9 think Crawford would apply to the ability to
10 cross-examine the boy — or the — you know, Mr.
11 Chandler. He’s not a boy anymore — on that issue,
12 and that’s definitely not available, so that would
13 be my reasoning for excluding that evidence.”
The sentence is so short that no one has time to understand the meaning of it – Jordan is an adult, so if the prosecutors introduce the photos now Michael Jackson has the right to confront Jordan and have him cross-examined. But Jordan is “definitely” not available, so the photos definitely cannot be admitted.
And all this is just a cheap and dirty theatrical show unfortunately totally lost on the general public.
11. Sneddon confirms the accuracy of our conclusions
The accuracy of the above conclusions has been confirmed by Tom Sneddon himself.
In the Press-release his office issued the same day Bashir’s documentary shattered the world on February 6, 2003 Tom Sneddon said that they were planning to review the documentary in connection with Michael Jackson’s earlier case which was “open but inactive” and explained the fact that the criminal case was not completed in 1993 because they didn’t have a witness and … the evidence to prove the veracity of the witness’s words.
This is the essence of point 5 of his Press-release:
5. California Law and a Child/Victim’s Right to Refuse to Testify and Cooperate in Investigations.
Under California law a child/victim must voluntarily cooperate with law enforcement. Neither testimony nor an appearance in court can be mandated. Therefore, an investigation without a cooperative victim or a percipient witness to establish the corpus for a crime is not prosecutable.
While it may seem strange that even if a person made an admission or a confession, under California law without a witness or other evidence to establish the corpus there is no case. See CALJIC Instruction 2.72.
So “there is no case without a witness OR other evidence.”
This way Tom Sneddon himself refuted his own story that he had the evidence to support Jordan Chandler’s words but the case was closed only because the witness refused to testify. The California law needs only one of these conditions to proceed with a criminal case – Testimony OR Evidence, but from what Sneddon said in this own press-release the prosecution had NEITHER of them.
This conclusion crosses all t’s and dots all i’s in the Jordan Chandler case.
The case was sham and was based on lies, and though Tom Sneddon knew that it was a lie he still chose to slander Michael Jackson in the press for more than ten years after that. And everyone allowed him to do it.
And he continued to call “victims” everyone who was frivolous enough to accuse Michael of abuse though all these people are just “complainants” until the opposite is established in court. In Jordan’s case Sneddon did not even bring any charges against MJ which made his tendency to call Jordan a “victim” an even grosser professional misdeed.
Other prosecutors would have been disbarred for such a misconduct, but not Tom Sneddon. Tom Sneddon has retired with honors and is receiving the highest pension in his county.
Jordan Chandler intimidated by the infinite power of lies left the county for the New York City and the possibility of us hearing the truth from him one day now wholly depends on whether Tom Sneddon is brought to justice or not. Though being a pensioner now the former Santa Barbara District Attorney Tom Sneddon is still too powerful a figure to set Jordan Chandler free and let him tell the truth.
Jackson Attorney: FBI Files Are ‘Almost Vindication’
A lawyer for the Michael Jackson family said that the FBI file on the late pop superstar shows that “there’s not one scrap of evidence” that Michael Jackson ever harmed a child.
According to one of the FBI agents involved in the Jackson investigation, the bureau was brought in at the request of local police. “We have the international and interstate capabilities that local law enforcement and local DAs don’t have,” agent James Clemente told “Good Morning America.”
One major revelation in the more than 300 pages of government documents was that the FBI had assisted Santa Barbara, Calif., officials in their attempt to get cooperation from a person who could have been a key witness in the 2005 child molestation case against Michael Jackson: the boy who accused the pop star of molesting him in 1993.
No criminal charges were ever filed in the 1993 case. Instead, the then 13 year-old boy refused to cooperate with officials and accepted a multi-million dollar settlement from Jackson.
The documents released Tuesday under the Freedom of Information Act show that the FBI and Santa Barbara officials met in 2004 with Jackson’s 1993 accuser but were unsuccessful in getting his cooperation.
Jackson was acquitted of all charges in the 2005 case, which went to trial.
The heavily redacted FBI documents do not reveal the name of the boy that officials met with.
“Victim indicates that he has no interest in testifying against Jackson,” according to the documents, “and would legally fight any attempt to do so.”
Prior to the FBI’s interview with the accuser, the documents show that the FBI helped Santa Barbara prosecutors with “interview strategies for a victim who alleged that Michael Jackson had abused him in 1993.”
The documents also quote the boy as saying that he “believed that he had done his part,” presumably referring to his initial involvement with law enforcement before agreeing to a civil settlement with Jackson that is believed to be $20 million.
Former FBI Behavioral Unit agent Ken Lanning, who consulted on the 2003 molestation case, told ABCNews.com Tuesday that this kind of coordination is common.
“Child molestation cases are the type of cases that involve multi agencies,” he said. “There were potential federal violations and the FBI has jurisdiction in a couple of areas. What the FBI behavioral analysis unit does is try to work on the approach, help them understand the issues.”
During the 2005 trial it was known that the FBI’s behavioral and forensics units had consulted on the case, but the file released Tuesday reveals that various arms of the FBI assisted the Santa Barbara district attorney’s office.
They included the crimes against children unit (CACU), innocent images national initiative against children unit, computer analysis response team(CART), the FBI lab, Los Angeles NCAVC coordinator and the Department of Justice’s child exploitation and obscenity section (CEO’s).