AEG in Karen Faye’s text messages: HE LOSES EVERYTHING, PROBABLY EVEN HIS KIDS

IT’S TIME TO WIPE AWAY TEARS AND DO SOMETHING AT LAST

This is not the right time to stay in limbo. The time for complaining about the injustice of the verdict and feeling sorry – mostly for ourselves – has passed. It is time to do something at last and stop waiting for someone to come and save us.

No one will save us unless we save ourselves, Michael and the truth.

How much longer are we going to let them lie in our faces and obediently swallow what they are feeding us and think that we can’t do anything about it?

Can’t do anything? Really?

And what about opening the September 9 transcript of AEG court proceedings, reading Karen Faye’s iphone messages about the way AEG and Ortega bullied Michael and just posting them everywhere we can?

There is no need to even comment on them that much. Just place them as they are on the internet to balance the lies told by AEG about their “huge love for Jackson then, now and at all times”, and let the people decide for themselves.

Just give the people a chance to see the other side of the story and that’s it.

Speaking of the need to read out Karen Faye’s text messages to the jury Ms. Chang of the Plaintiffs emphasized that the jurors were entitled to hear evidence from both sides: 

Ms. Chang: … there’s two different conflicting pictures of how Michael Jackson was treated by defendants shortly before he died.  The defendants have all stated on this day of love, affection, total support, no pressure inflicted on Michael Jackson whatsoever. Plaintiffs, however, know that there’s an entirely different scenario where they kept bringing up they were funding his entire life, including his house, his food, his kids, and they threatened to pull the plug, put everything he had at risk, including his kids, if he did not, and I’m quoting, “get his shit together,” end quote. And we state, based on the case law, that in search for the truth in the case, the jury’s entitled to hear evidence from both sides.

Yes, the jury was entitled to hear evidence from both sides. But though this sounds as an indisputable maxim the AEG lawyers did not agree with it.  They resorted to every means at their disposal not to allow Karen Faye’s text messages to be even read out in court.

Did the jurors hear all the evidence as a result? No, they did not. Did the general public have a chance to read those messages in every newspaper, hear them on every TV channel or at least learn of their existence from anyone at all? No, far from it.

The truth about those messages was stifled, supressed and hushed up making us suspect  that it is the most shameful of AEG’s sins which no one was ever supposed to ever know.

Is this freedom of information?

Well, it is freedom but only for some type of information.

Do you remember how many times we heard of the $40 bln figure allegedly demanded by Katherine Jackson of AEG though it was mentioned by the Plaintiffs’ lawyers in some preliminary document which Katherine Jackson never signed and never even saw?

Oh, but this “news” was screamed about by every media outlet, it was stuffed into every internet corner and AEG collaborators diligently worked on every fan forum to make sure that everyone knows about this figure though no one has ever seen it – except the Plaintiffs attorneys preparing the draft and the AEG side of course.

But what the AEG side has seen today so will the puppet media trumpet all over the world tomorrow, and so the subject of the never-ending discussion among Michael’s fans  will be, thanks to AEG collaborators who are always there to explain, interpret and rub it in.

And how often have you heard the same media reporting the news about the text messages sent by Karen Faye to her boyfriend about the way AEG bullied Michael?

NEVER?

And after that you still doubt that AEG uses the media as their own vast backyard lawn regularly mown by their lawn-mowers?

But what makes the whole thing even worse is that for the past two months the evidence about Karen Faye’s messages was readily available in the transcripts of the AEG trial proceedings purchased by the heroic TeamMichaelJackson and all we needed to do was just look and make it available to everyone else – fans, the general public and the media after all.

Did we do it? No, we didn’t. Why not? Because we think that someone else should come and do it for us, or that the truth will triumph all by itself, or that we are not bright enough to sort it out in the face of all those formidable lawyers – all of which are just pretexts lulling us into inactivity and reducing ourselves into the state of limbo we are in.

No one will come and save us, and we will have to do all of it by ourselves. And the truth will not triumph on its own – it needs to be worked for. And we are no less brainy than these “formidable” lawyers – these matters are well within the bounds of usual common sense all of us possess and this is what the jury principle is actually based on.

All the truth needs of us is working for it.

However it is only the AEG agents and their puppet media who tirelessly work brainwashing the public and fans, while Michael Jackson’s supporters are waiting for something while all the way having by their side the original documents procured for them by others (at much sacrifice for themselves too) and sometimes don’t even bother to look what’s inside.

What a shame and what a disappointment. And we have the cheek to call ourselves Michael’s soldiers of love?

MESSAGES FROM AN OLD IPHONE

The messages from Karen Faye’s iphone, published almost two months ago and so shamefully missed by all of us, are telling in real time what AEG did and said to Michael at some ‘intervention’ meeting arranged for him by Randy Phillips, Kenny Ortega and Conrad Murray sometime prior to June 18th 2009.

Kenny Ortega was mad about Michael coming late to a rehearsal that day and in his anger retold Karen the gist of their demands made to Michael during the “intervention”.

After listening to what Ortega had to say that evening Karen arrived home at 2:30 at night and first thing in the morning June 19th repeated Ortega’s words to her boyfriend, apparently still being in a state of a shock.

Did those messages say much? Not very much –  they are actually as short as any iphone messages should be, but the news they contain is still ground-breaking.

They say that Kenny Ortega and AEG threatened Michael that unless “he got his shit together” (loosely translated by me as “unless he attended every rehearsal”) they would “pull the plug” on the show and this would put at risk everything Michael had (yes, the catalog too) including his kids.

So they warned him that he might lose his kids if he didn’t attend those damned rehearsals!

Need I tell you that threatening Michael with these words was the worst thing they could ever say to him?

The kids were the most precious Michael had, the reason for his whole existence and a threat like that was the most devastating and deadly blow he could ever receive.

It was much worse than a “freak”, a slap and all the rest of the bullying and harassment they subjected him to during the several months of their wonderful collaboration. It was a lethal blow which surely sent Michael into a couple of sleepless and tormenting nights all of which led to the disastrous June 19^th rehearsal which was a clear signal of the future catastrophe.

That day his body temperature was ice-cold to the touch, he was rambling and obsessing and saying that God was talking to him, he begged Ortega as a “lost boy” not to leave him and produced the overall impression of a man who needed a psychiatrist or at least urgent medical help.

Not only couldn’t he get on the stage but he could barely function as a human being that night, and this is when Kenny Ortega got really frightened for what they had done to him several days earlier.

Up till now all information about one more meeting prior to June 20th was supressed and this is why Ortega’s message to Randy Phillips sent at 2 in the morning after the June 19^th rehearsal was somewhat of a mystery to us. It mentioned the details which up till now have never surfaced anywhere before and it is only now that its every little detail is beginning to fit into the general picture:

 Randy Sat, June 20, 2009 at 2.04 am

I will do whatever I can to help with this situation. If you need me to come to the house just give me a call in the morning. My concern is, now that we’ve brought the Doctor into the fold and have played the tough love, now or never card is that the Artist may be unable to rise to the occasion due to real, emotional stuff. He appeared quite weak and fatigued this evening. He had a visible case of the chills, was trembling, rambling and obsessing. Everything in me says that he should be psychologically evaluated. If we have any chance at all to get him back in the light, it’s going to take a strong Therapist to help him through this as well as immediate physical nurturing. I was told by our Choreographer that during the Artist’s costume fitting with his Designer tonight they noticed he’s lost more weight. As far as I can tell there is no one taking responsibility (caring for) him on a daily basis. Where was his assistant tonight? Tonight I was feeding him, wrapping him in blankets to warm his chills, massaging his feet to calm him and calling his doctor. There were four security guards outside his door, but no one offering him a cup of hot tea. Finally, it is important for everyone to know, I believe he really wants this. It would shatter him, break his heart if we pulled the plug. He’s terribly frightened it’s all going to go away. He asked me repeatedly tonight if I was going to leave him. He was practically begging for my confidence. It broke my heart. He was like a lost boy. There still may be a chance he can rise to the occasion if we get him the help he needs.

Sincerely,

Kenny

I hope I needn’t remind you that Ortega’s worries had no effect on the steely Randy Phillips who called this and other Ortega’s emails “hysteria” and basically told everyone to shut up (“It is critical now not to be amateur physicians and psychiatrists”).

What I ask you to do is put Kenny Ortega’s email side by side with Karen Faye’s text messages referring to the ‘intervention” meeting prior to those events, and you will see how the two pieces perfectly fit and complement each other. One is the cause and the other is the consequence arising from it.

Here is the full of Karen Faye’s messages. Ms. Chang read them to the judge on September 9, 2013:

Ms. Chang. It’s actually — it goes four pages. And I can read it for the record. It basically says: “MJ has not shown up yet. His call was 4:00.” this is at almost — its 7:55 p.m. “his fear is big. He needs a 24/7 therapist.” and then the next one, it goes: “Kenny was mad.”

Ms. Bina. The fact that there’s an in-between text is relevant.

Ms. Chang. Okay. Well, I’ll read the whole thing. I’m sorry.

Mr. Panish. I just gave —

Ms. Chang. “Can you bring that suitcase with clothes to London for Michael’s clothes?” “She will pay excess baggage charges?” “Of course.” “He needs a few extra days to complete some items. This gives him the time he needs.” “Okay. Thanks, my love. I will tell him.”

“Didn’t get home until 2:30. KENNY WAS MAD,” all in caps.

“He and Randy Phillips and the doctor held a sort of intervention. MJ didn’t show till 9:30 p.m. Kenny told me AEG, (Randy Phillips) is funding his entire life right now. His house, food, kids, school, everything.  They told him they will,” all capitals, “PULL THE PLUG IF HE DOESN’T GET HIS SHIT TOGETHER. IF HE DOESN’T DO THIS, HE LOSES EVERYTHING, PROBABLY EVEN HIS KIDS.”

Her boyfriend texts, “I hope he doesn’t.”

She writes back, “He came in ‘very serious’ last night. Any ‘hand holding’ has been removed. He has to be forced to face his fears.”

That’s the texts.

So they did tell him that he would probably lose his kids if he didn’t follow their orders… I doubt they ever could and the threat was actually absurd, but it did strike at Michael’s vulnerable most and must have instilled in him the fear nothing else was comparable with.

Hearing the voices of doubt from the throng of people brainwashed by AEG into thinking that the messages are ‘”fake”, let me note that according to the transcript of the September 9 court proceedings the same conversation and same details are also basically contained in Alif Sankey’s declaration.

This declaration was part of the evidence AEG had to attach to their so-called “motion for summary judgment” made with a view to throw out Katherine’s case against AEG as “nonsuit” at the very final stage of the trial prior to the jury deliberations.

None of us have ever heard of Alif Sankey’s declaration either as those who took it upon themselves to explain every little detail of that AEG’s motion and the declarations accompanying it never bothered to mention this document and the crucial information it contained. I specially checked it up – Randy Phillips’, Gongaware’s, Tim Lieweke’s and Kathie Jorrie’s declarations are all there, but Alif Sankey’s is not.

However Ms.Chang did refer to that document and said that it described the same type of conversation Karen Faye’s messages were all about:

• Ms. Chang: “.. the jury has only heard one side, and that’s AEG’s pure love, pure support, no pressure whatsoever, Kumbaya, holding hands, and “he hugged me the last day he saw me.” okay.  That’s the story the jury has. And we all know from a whole variety of sources — and Ms. Jessica Stebbins Bina knows, because there’s other people, not only Ms. Faye, but other people who have — Alif Sankey, other people who have alleged to the pressure that’s being inflicted.

• ms. Chang:  We all know from what was already submitted — and we talked about it in the sidebar ad Nauseum — that a pivotal conversation occurred between Kenny Ortega and Karen Faye in which the intervention meeting was held and discussed in considerable detail. And interestingly, Alif Sankey, in her declaration to — that was submitted as part of the motion for summary judgment evidence, also states the same type of conversation and the same type of detail. And the discussion was upsetting and remarkable enough to Karen Faye, because of the specific pressure being inflicted on Michael Jackson, what she saw, that within hours of the conversation, she was writing texts to her boyfriend on her iPhone about the issue. Now, before we even knew about the iPhone texts, we had all discussed the fact that we wanted to elicit from her just the testimony. And your honor stated correctly, the easiest way to do this is get Kenny Ortega here, see what he says about it —

There will be another time and another opportunity to see what Kenny Ortega says or doesn’t say about it (he actually denies most of it).

What is important now is to lose no time on secondary matters and tell the truth to everyone on this planet that AEG and Kenny Ortega threatened Michael with a risk of losing his kids if he didn’t attend those damned rehearsals.

As a side note let me say that Michael wasn’t even obligated by his contract to attend the rehearsals and it was only AEG’s opinion that he should. Their John Meglen shared with us exclusive information that Celin Dion also barely attended rehearsals and her director was mad too, only no one dared make any threats to Celin Dion and all was fine in the end.

And AEG’s General Counsel Shawn Trell also testified that it is never an Artist’s duty to attend rehearsals and that the Artist can do as he pleases and it is even an insult to an Artist to demand attendance of rehearsals from him.

However all these rules are non-existent for Randy Phillips who thought that Michael “was not working as hard as he should” quoting his exact words from an interview given back in 2009 soon after Michael’s death. And not only did Randy Phillips force Michael to come, but now we know that he also threatened him that he would lose everything including his kids if he didn’t abide.

By the way doesn’t all of it make it clear why Michael Jackson hired a lawyer on June 18th which must have taken place almost immediately after that intervention meeting? The immediate reason for it must have been shielding himself from the danger of everything being taken away from him – his kids, his catalog,his dreams…

See how one missing link – lost and found now – can put all the events in the right perspective?

THEY MADE MICHAEL PAY FOR THEIR MISTAKES

The AEG people will tell you a lot of different lies to explain what they can explain and hide from public view what they can’t explain even by means of lies.

One of their big lies is that it was due to Michael’s perfectionism that the show became technically very complex and they were short of time due to the enormity of the project – and this is how all that pressure arose.

The MJ “contract” with AEG said that the tour was to start on JULY 26. So when AEG set the first concert on July 8 they shortened the period of rehearsals THEMSELVES

However while saying one thing they forget to mention another thing.

They forget to tell you that their own contract with Michael initially said that the shows were to begin only on July 26.

It was AEG who dramatically shortened the period of rehearsals by setting the first concert on July 8 which was almost three weeks earlier than the date stated in the contract.

And this was most probably due to their unlimited greed and desire to grab more money in March 2009 when they expanded 10 shows into 30 and then to 50 – the period provided for by the contract did not allow to fit that much and the date of starting the tour had to be moved to an earlier date.

The almost three weeks they added to the actual shows at the expense of rehearsal time were exactly the three weeks they were short of in June 2009, and it’s no use making Michael a fall guy now for their own incorrect timing and poor production skills.

You can even see it with a naked eye that the two and a half months for producing a show of this scale was too little time for it, so the problem of a mad race with rehearsals they created for the whole company was the problem of AEG’s own doing.

They wanted to correct their mistakes at the expense of the artist, namely Michael Jackson, and demanded that he should attend every day of their crazy rehearsal schedule 6 days a week. And this despite the fact that he was not obligated to attend any of them.  And when he wanted some time off for himself they threatened to take his kids away from him…

SMEARING KAREN FAYE 

AEG doesn’t like the fact that Karen Faye’s text messages are the irrefutable proof that AEG bullied Michael. Therefore they fill the media and fans forums now with nasty innuendoes that Karen Faye allegedly faked them.

The alleged forgery is what the AEG lawyers  tried very hard to impress on the judge during those September 9, 2013 hearings. The innuendoes were made in a sophisticated manner typical of these lawyers the essence of which is “we are not really saying it, but you can easily guess it yourselves”.

What is interesting though is that when it came to discussing a forensic analysis of the messages suggested by Karen Faye herself, the AEG lawyers were the first to reject it:

Ms. Bina: …Then turning to the last issue, your honor, which is the forensic examination of the text. Since I don’t think there’s any basis to admit the texts, I don’t think there’s any need to go through forensically examining them. But there is a concern here. Ms. Faye was subpoenaed in two different cases. She came — she brought documents to her depositions, including documents that, you know, showed that she was concerned about Mr. Jackson that she sent to Mr. Dileo saying he was thin, and he was sabotaging himself, and so on and so forth. She didn’t bring the texts. She didn’t bring the texts in at all. She didn’t bring them when she first testified at trial. She instead brought them on her second or third appearance and said, “oh, I’ve suddenly found the texts.” well, again, your honor, we’d ask the opportunity to examine, if your honor was inclined to admit the texts, because it’s suspicious when they were discovered. It’s also very, very easy to fake. You only have the printout of the texts. And as your honor will recall, we went away at lunch and figured out exactly how easy it is to change the dates on an iPhone conversation, and it’s super, super easy. Takes two minutes. So we’d like the opportunity to prove that hadn’t been done. And, again, there is some reason to doubt Ms. Faye’s —

Mr. Putnam: Veracity.

The same dirt about Karen Faye was picked up by AEG collaborators immediately after the trial and some unsuspecting fans swallowed it hook, line and sinker.

When asked whose testimony struck him as the least honest ones, a certain juror #27 residing on MJJC now took it upon himself to to speak on behalf of the majority of the jurors and said that Karen Faye’s testimony looked to them as the most “off-putting”:

• Karen Faye’s testimony and demeanor was off-putting to a lot of the jury. I think I’ll leave it at that.

Simultaneously the heart of juror #27 heart went out to Kenny Ortega as the one whose love for Michael was most true, genuine and in every way unsurpassable. This contradicts Karen Faye’s messages reflecting Ortega’s real attitude to Michael at that time, but the agenda of juror #27 demands that he turns everything exactly upside down:

• I thought Kenny Ortega was the most forthright out of everyone, and his testimony was a refreshing change because there was no dodging of questions or anything like that. His emails expressed sincere care and concern for MJ and his testimony in person just solidified and strengthened that feeling. He very obviously cared for and loved MJ.

And if you haven’t yet realized whose interests juror #27 is actively promoting among MJ’s fans here is his impression of the innocent AEG CEOs and the justification of their terrible lapses in memory:

• When they were direct examined by plaintiffs, they were painted into all kinds of corners with loaded questions and asked about 4 year old emails and conversations. So there was definitely a lot of squirming by those guys but I believe also that it is reasonable to not remember specific emails from 4 years ago. Especially considering the volume of emails these guys were exchanging daily. Hundreds of emails a day.

And all this is said in full seriousness and in defiance of everything we know about (for example) Gongaware’s lies, who didn’t remember even his email about reminding Murray that it was AEG who was paying him salary and not Michael Jackson! As if he sends this type of emails about doctors attending to stars of Michael’s calibre every day!

The “freak” email was sent on January 28 which was the only time when Shawn Trell was in Michael’s house. How could he attend the signing the contract on January 26 then?

Shawn Trell also blatantly lied when he made two mutually exclusive statements as to when Michael Jackson signed his contract – on January 26 when Tohme/AEG and MJ/AEG agreements were allegedly signed and when Trell was in Michael’s home just once, or on January 28 as their email about meeting the “freak” actually said.

And as to Randy Phillips he is not even familiar with the expression “pull the plug” though this is what he himself threatened to do to Michael at that intervention meeting.

So all those AEG CEOs of different ranks with their never-ending “I don’t remember a thing”  looked more trustworthy to juror #27 and his supporters than Karen Faye’s messages found on her old iphone, readily offered by her for forensic analysis and confirmed by Alif Sankey’s declaration at that?

Doesn’t it tell you more than you ever wanted to know about this mysterious juror #27 and those who are embracing him with their open arms?

Sad as it is but AEG people are everywhere you look and they work real hard – much harder than Michael Jackson’s supporters do, who seem to be still waiting for the manna from heaven to fall upon their heads.

Or do they wait for the time when AEG lies fully overwhelm the public? But if it is hard to fight their lies now, how much harder will it be when these lies take root and leave much bigger debries to sort out?

Don’t wait. Go and fight for each grain of truth NOW and simply do the most of what you can.

HOW KAREN FAYE RETRIEVED HER MESSAGES

Ms. Chang asked Karen Faye to show her the way she retrieved those messages and said that it was a tedious process of rolling the messages back into the past to the year 2009. The process could take the whole day, so no wonder Karen Faye found those messages at so late a time.

Below is an excerpt from the transcript where Ms. Chang is explaining the process of retrieving the messages to the judge. Incidentally we also learn that when it came to questioning Karen Faye about those texts in the presence of the jury the Plaintiffs were interrupted and were not allowed to discuss them until they first “laid the foundation” for it.

On September 9, 2013 they did lay the foundation for it and did not  even ask for admitting the messages into evidence but only for a chance to have the messages read out in court, however the judge found the situation “marginal” and as a result the messages never made it to the jury.

Ms. Chang. I’m so sorry, your honor. The thing about Karen Faye on the texts, we don’t know until we lay the foundation. We were interrupted, we didn’t do it, so we just don’t know.

The second thing, I just want to state this for Karen Faye because I think a lot of bad things have been said on the record. As an officer of the court, I went to get the phone from her. I asked her, “can you show me how you went and retrieved all this?” it was the most tedious thing. She had to go back all the way to 2009 and scroll down. There was no fabrication of any evidence there. I saw — it must have taken her days to go back that far. And so with respect to that, I feel — especially since she so gladly went over and said, “do any forensic analysis that you want to do.” but it is degrading, it’s humiliating.

But with that said, why don’t we all powwow, take a break, see where we are. I think we all agree that she’s entitled to do something. We can lay foundation for other things, and then we can all discuss how marginal or helpful it would be over lunch.….

Ms. Bina. And there’s another e-mail in that same time period, your honor, where she says, “I’m very protective of Michael Jackson’s image, and I’ll do anything to protect it.” so she’s a witness who has a motive not — she has, frankly, a motive to fabricate something. I’m not saying she did it, but I’m saying, before we put it to a jury, I’d like an opportunity to examine that, particularly when she didn’t produce it in response to discovery, and she’s been selective in what she’s produced. But I don’t think we need to deal with any of that, because the only two statements at issue aren’t directly contradicted by the texts, so I don’t think there are any grounds for ever getting to the texts. The only issue is whether Ms. Faye can come in and testify against Mr. Ortega as to the two statements he actually said “no” to. And that may be, but I think at that point, your honor, it’s pretty irrelevant as to whether kenny ortega ever told her —

Judge. It’s pretty marginal.

Mr. Putnam. So marginal, your honor.

Judge. Benefit is pretty marginal.

Ms. Bina. Very marginal.

Ms. Chang. But it’s our —

Judge. I know it’s your case. I think even if you get that, it’s so marginal —

Ms. Chang. Do we want to leave the impression it’s all hugs and kisses from AEG?

Judge. We have enough of that impression.

Mr. Putnam. And, your honor, that’s why —

Mr. Panish. Are we coming back at 1:30?

Judge. One thing, and then I have to let the staff go.

Ms. Chang did her absolute best and fought for Karen Faye’s messages like a lioness would – to the very end of the debate, ending it with a desperate question: “Do we want to leave the impression it’s all hugs and kisses from AEG?”

And I want to address the same question to all Michael’s supporters:

DO YOU WANT TO LEAVE THE IMPRESSION THAT IT WAS ALL HUGS AND KISSES FROM AEG?

And if you don’t then wipe away your tears and do what is expected of you to do – tell the truth about the real way Michael Jackson was treated by AEG and that fine gentleman Kenny Ortega who was even applauded to at the AEG trial.

All you need to do to spread the truth is quote Ortega’s words to Karen Faye and tell everyone that they threatened to make Michael lose his kids in case he didn’t attend the rehearsals which he was not even supposed to attend:

• Kenny told me AEG, (Randy Phillips) is funding his entire life right now. His house, food, kids, school, everything.  They told him they will PULL THE PLUG IF HE DOESN’T GET HIS SHIT TOGETHER. IF HE DOESN’T DO THIS, HE LOSES EVERYTHING, PROBABLY EVEN HIS KIDS…

SUPPLEMENT:

Below is the part of the transcript of the September 9, 2013 court proceedings devoted to the discussion and rejection of Karen Faye’s evidence.  The transcript was provided by TeamMichaelJackson: http://teammichaeljackson.com/archives/9751

The arguments of the AEG lawyers were purely technical and struck me as the worst demagogy I ever heard. However they worked.

The judge opened the discussiong which was discouraging from the very start of it – she said that they were going to talk about “why don’t we do Faye”:

Judge. No. Okay. The next thing we were going to talk about, why don’t we do Faye.

Ms. Bina. Okay.

Judge. Okay. This was, I think, plaintiffs’ motion.

Ms. Chang. Yes, your honor.

Judge. Plaintiffs’ motion to admit text messages in Faye’s phone that were from Kenny Ortega.

Ms. Chang. Actually, our reply, your honor —

Ms. Bina. Not from Kenny Ortega. They were from Karen Faye to her boyfriend. She quoted —

Mr. Boyle. I can — I’m sorry. It’s my motion. I can state what it is, because that’s not exactly correct. Page 16, our reply, lines 20 through 24, specifically lays out exactly what we are asking for: “and the following evidence should be admitted: Kenny Ortega’s testimony specifically on prior inconsistent statements.” and then the texts as past recollection recorded.

And the texts as prior consistent statements. So there’s three different theories, and three different things that we are doing. And basically, your honor, in this motion, what we are alleging is, there’s two different conflicting pictures of how Michael Jackson was treated by defendants shortly before he died.

The defendants have all stated on this day of love, affection, total support, no pressure inflicted on Michael Jackson whatsoever. Plaintiffs, however, know that there’s an entirely different scenario where they kept bringing up they were funding his entire life, including his house, his food, his kids, and they threatened to pull the plug, put everything he had at risk, including his kids, if he did not, and I’m quoting, “get his shit together,” end quote. And we state, based on the case law, that in search for the truth in the case, the jury’s entitled to hear evidence from both sides.

We all know from what was already submitted — and we talked about it in the sidebar ad Nauseum — that a pivotal conversation occurred between Kenny Ortega and Karen Faye in which the intervention meeting was held and discussed in considerable detail. And interestingly, Alif Sankey, in her declaration to — that was submitted as part of the motion for summary judgment evidence, also states the same type of conversation and the same type of detail. And the discussion was upsetting and remarkable enough to Karen Faye, because of the specific pressure being inflicted on Michael Jackson, what she saw, that within hours of the conversation, she was writing texts to her boyfriend on her iPhone about the issue. Now, before we even knew about the iPhone texts, we had all discussed the fact that we wanted to elicit from her just the testimony. And your honor stated correctly, the easiest way to do this is get Kenny Ortega here, see what he says about it —

Judge. Right. And see if he denies.

Ms. Chang. Exactly. And in fact, that’s what we did. And in fact, he did deny some; he admitted some; and he said, “I don’t remember” to some. And I listed and attached the transcripts, so there would be no confusion, as to what he did say of answers to some issues. So with respect to the ones that he flat-out denied saying, that’s a prior consistent statement. And that’s on page 3. For example: “do you recall if you told Karen Faye that AEG was funding?” “no.” “have you ever” — “did you ever tell them that?” “no.” “that AEG told Michael if he doesn’t do this, he loses everything?” “no.” so that’s prior inconsistent statements. Now, the issue becomes after that —

Judge. And — okay. So you need to call Karen Faye to —

Ms. Chang. Correct. To talk about that as we discussed before, and that renders it non-hearsay on the Kenny Ortega level because of the prior inconsistent statement. Then we came to the issue where, unbeknownst to both sides, she has these texts that records everything dutifully on her iPhone. The issue then is, did the iPhone texts help her when she didn’t remember certain aspects of that conversation? And if they did, then they can be read out loud to the jury. Now, defendants claim, and they cite from her testimony, where she says, “I specifically remember” — I’m going to get the exact quote here. Hold on.

Judge. Well, remind me. Did she — did you ask her about the prior inconsistent statements yet, or you have to call her back?

Ms. Chang. We have to call her back. We were right in the middle of asking her questions —

Judge. Okay.

Ms. Chang. — And defendants kept objecting, and the court stated, “how much more do you have on this examination?” in other words, can you come back to this, and can you finish what you have? And Mr. Panish responded, “I can go to some other things, sure.” in other words, we all knew this fight was coming, this day was coming, so why waste — they kept objecting every five seconds. So, basically, what we — what they allege, too, is they claim that Ms. Faye testified that she remembers, quote, “specifically everything that happened about what occurred on June 18th.” but this testimony refers to the events that happened, such as when he came late to rehearsals, everything. And we were trying to elicit from her — because she did state she was trying to remember what happened in the conversation. So we have to get that out of her, and we were stopped right in the course of the conversations. And if we can’t get it out of her, if Ms. Bina is correct, and she says, “oh, no, I remember everything absolutely,” then I would agree then she can’t read the text out loud, because if she remembers it completely, she can just say what is inconsistent with Kenny Ortega. However, if it does — if she —

Judge. Right, that would be the next step.

Ms. Chang. The next step is, then, she can read them. They are not admitted into evidence.

Judge. No. The next step — refreshing recollection, would be the first step. If she doesn’t remember what Kenny Ortega told her, okay, would looking at a copy of these texts —

Ms. Chang. Actually, 1237 allows her to read the prior — the past recorded —

Mr. Panish. Past recollection recorded.

Ms. Chang. The past recollection recorded statements into the record. They’re not admitted, but what she wrote is — can be read.

Judge. I think you’re jumping ahead a little bit.

Ms. Chang. Okay.

Judge. First try the refreshing recollection, because it’s very short; right?

Ms. Chang. Well, they’re very detailed. I have them right here. Well, I guess. I mean, compared to, like, the “emancipation proclamation,” yes. I guess everything is relative. Yeah, I’ll agree with you, your honor, they’re fairly short.

Judge. Okay. The first thing you do is you try to refresh recollection with her text messages.

Ms. Chang. Okay.

Judge. And if she remembers, after reading them, then she can testify as to what Kenny Ortega’s statements were.

Ms. Chang. Okay.

Judge. Now, the past recollection recorded —

Ms. Chang. States: “evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule” —

Judge. Right.

Ms. Chang. — “if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which: “was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness’s memory; “was made by the witness herself; “is offered after the witness testifies that the statement she made was a true statement of such fact; “and is offered after the writing is authenticated as an accurate record of the statement. “The writing may be read into evidence, but the writing itself may not be received into evidence unless offered by an adverse party.”

Ms. Bina. Right.

Ms. Chang. So therefore we have to —

Judge. Usually, the way —

Ms. Bina. You refresh first, your honor. You’re absolutely right. And when it’s my turn, I’ll go.

Ms. Chang. Would you please not?

Judge. Usually, the way that past recollections are admitted is, there are usually long lists of things that people just can’t remember. I don’t know. For example, I don’t know, a long list of addresses. 20 addresses. And I might ask somebody, “What addresses did you refer this person to?” “I don’t remember, but I wrote a memo.” “Okay. Would looking at it refresh your recollection?” “Well, sure.” you look at it. “Can you tell us what addresses?” “Well, no, because there’s 20 of them. I can’t recite them by memory.” “Okay. Did you prepare a memo?” “Yes, I did.” then you lay the foundation for the memo, and then she can read from the memo and the 20 locations. That’s usually how it comes up. But if there’s a text, it doesn’t seem to me that’s in the typical nature of past recollection recorded.

Ms. Chang. Well, a lot of people — I think it will come up more, because texts has really changed a lot of people. But many people don’t sit down and say, “oh, my god. Let me write down this thing.” some people do. We had that in Cuthbertson, Stephanie — the first witness, Stephanie Chan, wrote — she went home and was so upset by what she saw, she went to her computer and typed out the entire statement, which was in fact read to the entire jury.

Judge. It was a long statement.

Ms. Chang. Yes. It was a long statement.

Judge. It wasn’t something —

Ms. Chang. Correct.

Judge. — She could just recite by looking at it and refreshing —

Ms. Chang. My heart. Exactly. And I think that a lot of people do not take the time to write out, like when Mr. Panish tells me things, I don’t sit down and write and record it all. But if it was something shocking, I might in an e-mail. And I think that’s the point. Because if something — if you take the time, like Ms. Chan did, or whatever, to record something, then there is some level of inherent truthfulness associated with it —

Judge. Yes.

Ms. Chang. — Because you’re doing it when it’s fresh, you’re doing it for the purpose of remembering it. And I think what she did is it struck Ms. Faye, because she cared very deeply about Mr. Jackson, that she was extra vocal, like, “you would not believe what happened. Here’s all the things” —

Judge. How long was it?

Ms. Chang. Here’s the texts right here, your honor. I can show it to you. It’s very — it’s attached here. Here’s exhibit 1. You can see the iPhone bubbles.

Judge. I can’t. My eyes —

Mr. Putnam. I can’t from here.

Ms. Chang. It’s actually — it goes four pages. And I can read it for the record. It basically says: “MJ has not shown up yet. His call was 4:00.” this is at almost — its 7:55 p.m. “his fear is big. He needs a 24/7 therapist.” and then the next one, it goes: “Kenny was mad.”

Ms. Bina. The fact that there’s an in-between text is relevant.

Ms. Chang. Okay. Well, I’ll read the whole thing. I’m sorry.

Mr. Panish. I just gave —

Ms. Chang. “Can you bring that suitcase with clothes to London for Michael’s clothes?” “She will pay excess baggage charges?” “Of course.” “He needs a few extra days to complete some items. This gives him the time he needs.” “Okay. Thanks, my love. I will tell him.” “Didn’t get home until 2:30. Kenny was mad,” all in caps. “He and Randy Phillips and the doctor held a sort of intervention. MJ didn’t show till 9:30 p.m. Kenny told me AEG, (Randy Phillips) is funding his entire life right now. His house, food, kids, school, everything. They told him they will,” all capitals, “pull the plug if he doesn’t get his shit together. If he doesn’t do this, he loses everything, probably even his kids.” her boyfriend texts, “I hope he doesn’t.” she writes back, “He came in ‘very serious’ last night. Any ‘hand holding’ has been removed. He has to be forced to face his fears.” that’s the texts.

Judge. Okay. And so not all of this was denied by Kenny Ortega; right?

Ms. Bina. Well, when we get to that, your honor, I don’t think any of that was, but we’ll get to that when it’s my turn.

Ms. Chang. Well, your honor —

Judge. What part are you, plaintiffs, are claiming were not remembered? I think by your —

Ms. Chang. Let me turn to it here. I’m sorry, your honor. I’ll have it here. The fact — the part that he denied was that they were funding Jackson’s entire life and that they threatened to pull the plug so that he would lose everything.

Judge. Okay. “Kenny told me AEG”? Okay.

Ms. Chang. And we could just turn to Mr. Ortega’s testimony here that we attached here.

Judge. And the question to Kenny Ortega that he denied was what?

Ms. Bina. Your honor, there’s several. (JUDGE SHOULD HAVE TOLD BINA TO BE QUIET LONG AGO)

Ms. Chang. Well okay. I think she’s asking me. I’m looking it up right here, your honor. I’m sorry.

Ms. Bina. They’re in our opposition brief.

Ms. Chang. We have listed his testimony. And, basically, he denies that he said that if he doesn’t do this, he loses everything; he admits that maybe he told her about something like, any hand holding of Michael had been removed. He denies that he told Karen Faye that he had to face his fears.

Judge. I don’t know why he would deny that. I think he said something like that in an e-mail, but —

Ms. Chang. He said: “do you recall whether you ever told Karen Faye that AEG had told Michael that they’ll pull the plug if he doesn’t get it together?” “Maybe in some capacity to that.” that’s what he says. And then specifically: “did you tell Karen Faye that he was funding Michael’s entire life right now? His food, his kids, everything?” “no.” “Did you ever tell Karen Faye that AEG told Michael that if he doesn’t do this, he loses everything?” “no.” other things, he specifically stated, “I don’t remember.” let me —

Judge. So right now, it looks like the only thing he really denied was that — the statement “Kenny told me AEG (Randy Phillips) is funding his entire life right now. His house, food, kids, school, everything.”

Ms. Chang. “and that he could lose everything.”

Ms. Bina. And actually, your honor, on that first one, he didn’t deny making that statement. He was only asked if he recalled making the statement, and he said, “no.” the second one he denied making the statement, but the text doesn’t attribute it to him. Anyway, I’ll let Ms. Chang – (HERE SHE GOES AGAIN, AND SHE ACKNOWLEDGES SHES DOING WRONG)

Ms. Chang. Well, the good thing is Kenny Ortega is coming back on Monday, according to the defense.

Judge. Oh, no.

Ms. Bina. Depending on your honor’s ruling in terms of the “This Is It” movie and this issue and any number of issues. We’re trying to avoid bringing him back.

Ms. Chang. Is the only issue if the whole movie is in?

Mr. Putnam. Your honor, it’s more than what Kenny Ortega has. And in fact, Faye was called —

Judge. It is just not unique to you.

Mr. Putnam. I will tell you, I heard precisely what you said, which is why we’ve narrowed it to something very precise, which is — we may not have to do it if they agree that the movie is actually entered into evidence entirely at this point.

Mr. Panish. So Marvin — can I ask Mr. Putnam a question? I know it’s not —

Judge. Sure. Go ahead.

Mr. Panish. Are you saying that the reason that you may need to call Mr. Ortega back is because there’s a potential issue regarding whether “This Is It” is in or not? Is that what you’re saying?

Mr. Putnam. That’s what I’m saying.

Ms. Chang. They think the whole movie should be in.

Mr. Putnam. I think the whole movie is in.

Mr. Panish. I just want to understand your position, is all. Did I say that?

Mr. Putnam. No. I understand you called him and told him, “you can argue before the court that he’s not necessary as cumulative.”

Mr. Panish. I haven’t talked to Mr. Ortega.

Mr. Putnam. I know. Mr. Boyle did. They called and let me know that argument was made.

Mr. Panish. We didn’t talk to Mr. Ortega.

Mr. Putnam. I’m glad you could know that. I believe there are reasons we can put that in.

Mr. Panish. Your honor, we’ve never spoken to Mr. Ortega.

Ms. Bina. Mr. Ortega’s counsel.

Mr. Putnam. His counsel.

Mr. Panish. No. So all I wanted to do, I was just trying to understand, and was I correct in understanding —

Ms. Chang. Yes, you’re correct.

Mr. Panish. That’s all I’m asking. I’m not here to argue.

Ms. Bina. The biggest issue is the film. And the texts —

Mr. Panish. Well, he already testified about the texts.

Ms. Bina. Well, I’m not going to call Kenny Ortega about your videos. But, yes, the issue is the “This Is It” movie.

Ms. Chang. What we’re saying is what’s good for the goose is good for the gander.

Mr. Putnam. Karen Faye, I agree.

Mr. Panish. Do I get an answer?

Ms. Chang. Yes, he answered you.

Mr. Panish. They said, “Among other things.”

Mr. Putnam. I did answer.

Mr. Panish. She just said among — okay. You said, “Yes.” thank you. But she said, “yes, among other things,” so —

Ms. Bina. Your honor, I’d like a chance to respond about Karen Faye before lunch.

Ms. Chang. I wasn’t finished. Can I suggest this, your honor?

Judge. All right.

Ms. Chang. I have in the — between the motion and reply and the opposition, the entirety of Mr. Ortega’s testimony relevant to these texts are in. I propose that we make — specifically know which ones he said, “no” to, which ones he said, “I don’t know” to, and to finish up my argument, we submit case law that says in the context of saying, “I don’t know,” an “I don’t know” is sufficient to be a denial to allow her to come back and address them as prior inconsistent statements. So it is — and then that raises the issue of whether or not they should be allowed to do a forensic examination of the phone. And what they allege as grounds for that is because, during her deposition, or before the deposition, they subpoenaed her and asked her to bring all her e-mails, and she didn’t. And she didn’t provide these texts. She explained how she found these texts and the number of hours it took. You’re only required to submit what you have at the time of the deposition. She’s not a party, didn’t pursue it with her. Secondly, they alleged that the Frank Dileo e-mails, she didn’t submit an e-mail that she wrote to Frank Dileo that said, “yippee” on the last day. She’s thrilled at how much better he did. It’s not inconsistent. But I will also point out that this is the time period where they represented Frank Dileo and did not produce those documents to us.

Ms. Bina. We didn’t have them.

Mr. Putnam. We didn’t have them.

Ms. Chang. So in any event — nor do we know if she had them, either. We didn’t know if she had all her e-mails or didn’t have her e-mails or checked her e-mails or she has e-mails that are discarded or whatever. So, basically, I don’t think that — under California case law, and what’s required to lay these foundations, had they submitted enough proof to show, “oh, we can call her a liar and say that she made up and fabricated evidence, and now we get a forensic examination”? I, as an officer of the court, pursuant to our discussion, took the phone, put it in a little bag. It’s all been locked and secluded and everything. I mean, we could have done the same thing to Mr. Trell, I guess, and Mr. Gongaware and Mr. Phillips on their iPhones and their phones and did analysis if they erased everything, too. But I believe that it does nothing but raise the costs of an already expensive case. It is not required. Well, we would have to do a counter one. And it also delays, and we’re all trying to finish this case and get it to the jury. We have always, always tried, from the very beginning, to get our story across. We’ve been lambasted by — I think at one count there was like 68 objections during her examination. And I think that we tried very hard to get everything in, and we followed the court’s suggestion with Mr. Ortega. I think it’s very clear that there are certain things that she’s entitled to come back for to say what Mr. Ortega said, the things that he says “no” to, specifically. And then we lay the foundation to see if we meet the burden of evidence code —

Judge. Well, I could see if maybe this —

Ms. Chang. — 1235. I’m sorry. I was just finishing the evidence code.

Judge. — Statement said, “Kenny told me AEG told him that they are funding his entire life right now,” I can see why you would want that. But this is just Kenny saying, “AEG is funding his life right now.” in other words, that’s Kenny’s opinion, really. I mean, I don’t know how much that really adds to your case.

Mr. Putnam. Can we respond?

Judge. “Kenny said he thinks AEG Is funding his life.” it isn’t a recitation of Kenny saying that “AEG told him that they’re funding.” I can see why that would be valuable.

Ms. Chang. Well, she can go into detail about what the conversation was. That’s the whole point.

Ms. Bina. If she had the memory, your honor, there’s no basis to admit the texts. So, I think, briefly — and I’m going to try not to take too much time, but there’s two — three issues here: one, did Kenny Ortega testify inconsistently? Because if not, no hearsay statements come in at all; two, if Kenny Ortega testified inconsistently, he can be impeached by Ms. Faye’s testimony, not by intrinsic evidence that is hearsay; and then three, is there any exception that gets the text in; and four, should there be a forensic examination of the text?

So starting with — as a normal lawyer, I mean, you don’t get to bolster your testimony through hearsay. For instance, Mr. Phillips has witnesses he spoke to back in the spring of 2009 who can come in and testify that he told them, “Michael is wanting us to have this doctor. I don’t want him. He’s really expensive.” and it could bolster his own credibility that way, but you don’t get to bolter your credibility through hearsay, you get to testify, which is what Ms. Faye has done.

She’s discussed the events of June 18th in detail repeatedly, when asked by her counsel — if you recall, they put the texts in front of her, and, you know, he said, “do you remember what happened on June 18th?” and your honor said, “without looking at the texts.” and she says, “yes. I remember specifically everything that happened.

The only thing I used the text for was to refresh my memory as to dates. So there’s no evidence at this point that she needs the text or is unable to remember them independently. In fact, many times in deposition she described in detail the conversations she contends took place that night. So setting that aside, the first thing your honor must decide is, is there any inconsistent testimony of Mr. Ortega? Because otherwise, none of this is dealt with. So Mr. Ortega was asked a couple of different questions. He was asked: “do you recall whether you told Karen Faye that Dr. Murray and Randy Phillips had had some sort of intervention?” and he says, “I don’t recall that.” so he was only asked, “do you recall,” not did he ever say it. So, “do you recall?” “I don’t recall that.” “do you recall whether you told Karen Faye that AEG was funding Michael’s entire life right now? His food, kids and everything?” he said, “no.” again, the question was, “do you recall.” they never asked the follow-up question of, “well, do you deny you said it? Is it possible you might have said it?” none of those things.

Judge. “Did you ever tell Karen Faye?”

Ms. Bina. Right. “do you recall whether you ever told Karen Faye that AEG has told Michael that they’re going to pull the plug if he doesn’t get it together?” answer: “maybe in some capacity to that.” and then, “did you ever tell Karen Faye that any hand holding is removed?” and he said, again, “we may have had a conversation about something like that.” those four, he said, “I don’t recall” to two of them, and he specifically admitted the other two. What remains is, “did you tell Karen Faye that Michael — if Michael doesn’t do this, he’ll lose everything, including his kids?” he did say “no” to that, but the text doesn’t attribute that statement to him. Now, Ms. Faye —

Judge. Doesn’t attribute it to?

Ms. Bina. To Kenny Ortega. Doesn’t attribute it to anyone. The last thing she says, “if he doesn’t do this, he loses everything, probably even his kids,” it’s not clear that that’s a statement in the text attributed to Mr. Ortega. Now, Ms. Faye might testify that Mr. Ortega told her that. She might testify, but it’s not in the text. And if she testifies, I would argue, it’s a pretty collateral matter, whether Kenny Ortega ever told Karen Faye, Michael might lose his kids if he doesn’t do this, has no bearing on any position of the case. So that’s the only time, your honor —

Judge. So are you telling me that you’re trying to impeach Kenny Ortega?

Ms. Bina. Yes, your honor.

Judge. Is that what you’re trying to do? To show a prior inconsistent statement? Because that’s —

Ms. Chang. Well, your honor, here’s how it all started. I’ll remind your honor how it all started. We’re trying to give the two pictures of what happened before Mr. Jackson died. We allege correctly I believe the record will show and will later be determined, if necessary, is that we were correct in our initial arguments to your honor that all of this is non-hearsay because it goes to Mr. Jackson’s state of mind, because it shows why he was pressured to do things; that they were pressuring him so badly, he was up against the wall, he had no capacity to make decisions for his own.

And we reminded your honor, there was a long argument on sidebar that they are alleging negligence on the part of Michael Jackson and that all of this goes to all of these issues, and they even alleged punitive aspects against Mr. Jackson. We argued all of this, and your honor said — was not persuaded by any of those, because we believe we have the right to tell both sides of the story. So the jury has only heard one side, and that’s AEG’s pure love, pure support, no pressure whatsoever, Kumbaya, holding hands, and “he hugged me the last day he saw me.” okay.

That’s the story the jury has. And we all know from a whole variety of sources — and Ms. Jessica Stebbins Bina knows, because there’s other people, not only Ms. Faye, but other people who have — Alif Sankey, other people who have alleged to the pressure that’s being inflicted.

However, after that argument failed, then we vehemently argued about, in sidebar, how — other hearsay exceptions, and your honor finally said, “the easiest way to do this is get Kenny Ortega here. It’s clean and dry, it’s a prior inconsistent statement.” and we agreed with that. So we all waited for Kenny Ortega.

So then the questions here now, it’s unclear, like a lot of things in this trial, he never came out, flat out, either the question was unclear at some point, or the answers weren’t clear. But there are some crystal-clear questions, and I’ll read one from page 13,567 of the transcript: “did you ever tell Karen Faye that AEG had told Michael that if he doesn’t do this, he loses everything?” “no.” and this is right after, “do you ever recall” — you know, whether they’d pull the plug if he doesn’t get it together. “did you ever tell Karen Faye that Michael had to face his fears?” “no.” so all of that — that is clear —

Judge. It’s kind of interesting that —

Ms. Bina. Your honor —

Judge. — If he didn’t remember, then why didn’t you refresh him? Well, you know, showed him something, and even if it was these texts, you could have shown it to him.

Ms. Chang. Actually, we did show those texts.

Judge. To Kenny Ortega?

Mr. Putnam. No. The answer is “no,” your honor. The reason is because it’s not inconsistent.

Mr. Panish. We actually did give it to his lawyer who showed it to him, and he denied it.

Ms. Chang. And he said, “I would never have this conversation with Karen Faye.”

Ms. Bina. Your honor, again, it was not done on the witness stand, which is where it should be done. The only way you get a prior inconsistent statement is you ask the witness, and he denies making the statement. Now, there are times when the witness is being evasive, and only when the witness is being evasive, and they say, “I don’t know,” it can be construed as a denial.

Judge. That’s true.

Ms. Bina. That’s not the situation here. He admitted some of the statements. He didn’t recall others. He denied two, but those two are not actually attributed to him in the texts. “any hand holding has been removed” and the statement about — sorry — the statement about “he has to be forced to face his fears,” and “if he doesn’t do this, he loses everything, even his kids” in the texts, are not attributed to Mr. Ortega or AEG now, it’s possible the witness has a memory that impeaches Mr. Ortega on those two statements, but that’s not grounds for getting the texts in. And the other four statements were never denied, so there’s no inconsistency there. Again, they had the opportunity to ask Mr. Ortega, “did you make those statements” —

Judge. To Ms. Faye.

Ms. Bina. — “To Ms. Faye?” to have him get squirrely and say, “I don’t recall,” have him deny it —

Ms. Chang. There’s a firm denial.

Ms. Bina. The standard follow-up answer, your honor, is — to “do you recall making the statement?” is, “well, are you saying you didn’t make the statement?” and they never asked that.

Judge. Or “if I showed you a text, would it help you refresh” —

Ms. Bina. “Would it refresh your recollection?” they could have, and all of that —

Ms. Chang. That’s not what —

Ms. Bina. Can I please finish?

Ms. Chang. Your honor stated, “Get him to say whether he said it or not.” there’s no rule —

Judge. But you didn’t do that.

Ms. Chang. Yeah. How — “did you ever tell Karen Faye that AEG had told Michael that if he doesn’t do this, he loses everything?” “no.” “Did you ever tell Karen Faye that Michael had to face his fears?” “no.” we don’t have to refresh his recollection.

Ms. Bina. Those were clear denials, your honor. We’re not disputing that.

Ms. Chang. Okay.

Ms. Bina. But they’re also not attributed to Mr. Ortega in the texts. So, again, it’s possible that they can bring in Ms. Faye, and she has an independent recollection that would impeach Mr. Ortega as to those two statements.

Judge. And she’ll say that, yes that information came from Mr. Ortega.

Ms. Bina. Right. At that point —

Judge. She hasn’t said that yet.

Ms. Bina. Right. So it’s possible — she said that at deposition, your honor, so there’s reason to believe that she will say that. Again, that’s not grounds for getting the texts in. It might be grounds for getting her testimony in.

Ms. Chang. I think we’re fighting —

Ms. Bina. Can I finish please, Ms. Chang?

Judge. Ms. Chang, let her finish. (HERE WE GO, JUDGE DID SPEAK UP BUT FOR BINA)

Ms. Chang. This helps her. We’re not trying to get the texts into evidence. I think she thinks we are.

Judge. I thought you were, too.

Ms. Chang. No, no, no, no, no. The code doesn’t allow us to get the texts in, it allows us to read from it.

Judge. If it’s past recollection recorded, you haven’t gotten that analysis yet.

Ms. Bina. Which is what I’m getting to. They’re not allowed to get in the texts or read from the texts. Ms. Faye, conceivably, could impeach Mr. Ortega as to the two statements he specifically denied. I would argue, your honor, that at that point, the testimony is cumulative and collateral because Ms. Faye repeatedly said on the stand, said Mr. Ortega was pressuring Mr. Jackson —

Ms. Chang. No, she was not.

Ms. Bina. She actually did say that. She was allowed to testify considerably to this. She wasn’t allowed to give any hearsay testimony.

Ms. Chang. No.

Ms. Bina. But as to those two statements, your honor, if Ms. Faye has a recollection that impeaches Mr. Ortega, they would not be hearsay. The remaining four statements are hearsay with no exception, because Mr. Ortega never denied them, and plaintiffs never asked the questions that would lay the foundation for prior inconsistent statements. So we’re only dealing with the two statements, not the six. So then we talked about the two statements —

Judge. The two statements where there was negative responses?

Mr. Putnam. Yes, your honor.

Ms. Bina. With a negative response.

Judge. It wasn’t a “do you recall,” it was a direct “yes.”

Ms. Bina. It was a direct “yes” or “no,” which is “he has to be forced to face his fears” and if —

Judge. Loses.

Ms. Chang. “Loses everything.”

Ms. Bina. “He loses everything, including his kids.” and, again, actually, that one is not actually an inconsistent statement, if you go by what the text says. The text says — doesn’t attribute an author to that. Mr. Ortega was asked, “did you ever tell Karen Faye that AEG said that?” it’s possible that Mr. Ortega said it to Karen Faye without it being from AEG. They didn’t ask that question. So in any event, Ms. Faye might have an independent recollection that impeaches on those two statements alone. The other four, there’s no basis for admission whatsoever. Then we get to the second question of, well, can she read from the texts as to those two statements? And the law is very clear that that is not permissible; that past recollection recorded, two things have to happen first: first, the witness can have no independent recollection. Ms. Faye has testified under oath that she remembers specifically everything that happened.

Judge. Did she say that in trial or in the depo?

Ms. Bina. She said that in the trial.

Mr. Putnam. In trial.

Ms. Bina. She had the text in front of her, and she said, “I remember. I don’t need the texts. I remember specifically what happened on June 18th.” now, it’s possible they’ll bring her back in, and she’ll magically forget all that. But she testified to all that repeatedly under oath at her deposition and elsewhere.

[AFTER SHE SAW HER MESSAGES SHE RECALLED IT]

Mr. Putnam. At trial.

Ms. Bina. So I don’t have any reason to believe she will suddenly have a lapse of memory, requiring her to read these two texts. So first the witness has to have no recollection at all. Then —

Judge. And if she doesn’t, you refresh.

Ms. Bina. Then you refresh. Exactly, your honor. And the law is very, very clear, and we cited the authorities in our opposition papers, that if the witness is refreshed and then can testify, then you don’t get it in as a past recollection recorded.

Judge. Right.

Ms. Bina. Only if, after attempting to refresh, the witness still has no memory of what happened, then you can read from the document.

Judge. And that’s usually only in the case where it’s such a lengthy document, such a lengthy list of something, that nobody can possibly retain it just by reading it on the stand. That’s usually how it happens.

Mr. Putnam. And how we’ve done it in this trial.

Ms. Bina. Right. The problem here, your honor, is that reading from the document as to those two statements wouldn’t actually impeach Mr. Ortega, because the document doesn’t attribute them to Mr. Ortega. So we have this sort of convoluted situation here where there’s text messages that they’re basically trying to get in to bolster Ms. Faye’s credibility, which they can’t do unless it’s challenged. And there’s no grounds for admitting at least four of the six statements in question. Again, Ms. Faye might have a recollection that might contradict Mr. Ortega’s denial on two specific statements, and they could potentially bring her in, ask her those two questions. She can testify as to her recollection. If we then challenged it, then she might get it in, in part, as an inconsistent statement. But that’s the only way the text would ever come in.

Mr. Panish. Clearly comes in —

Ms. Bina. Not past recollection recorded unless she can’t remember it. And even, after being refreshed on it, can’t remember it actually happening, at which point then I suppose you could read it in, but it would have to be actually inconsistent, and it’s not. So that’s —

Judge. I would be surprised, because it’s one sentence, how you would not remember. How could you not be refreshed?

Ms. Bina. Particularly since she said it multiple times, including under oath, and testified a month ago that she could remember specifically everything, and the text only clarified the dates for her. Then turning to the last issue, your honor, which is the forensic examination of the text. Since I don’t think there’s any basis to admit the texts, I don’t think there’s any need to go through forensically examining them. But there is a concern here. Ms. Faye was subpoenaed in two different cases. She came — she brought documents to her depositions, including documents that, you know, showed that she was concerned about Mr. Jackson that she sent to Mr. Dileo saying he was thin, and he was sabotaging himself, and so on and so forth. She didn’t bring the texts. She didn’t bring the texts in at all. She didn’t bring them when she first testified at trial. She instead brought them on her second or third appearance and said, “oh, I’ve suddenly found the texts.” well, again, your honor, we’d ask the opportunity to examine, if your honor was inclined to admit the texts, because it’s suspicious when they were discovered. It’s also very, very easy to fake. You only have the printout of the texts. And as your honor will recall, we went away at lunch and figured out exactly how easy it is to change the dates on an iPhone conversation, and it’s super, super easy. Takes two minutes. So we’d like the opportunity to prove that hadn’t been done. And, again, there is some reason to doubt Ms. Faye’s —

Mr. Putnam. Veracity.

Ms. Bina. Ms. Faye’s here, because we know at least one instance she was selective in what she produced. She produced an e-mail for the plaintiffs’ version of the case but not defendants, which is when —

Judge. The “yippee”?

Ms. Bina. Yes. “yippee,” “everything’s great.”

Mr. Putnam. Same conversation.

Ms. Bina. And there’s another e-mail in that same time period, your honor, where she says, “I’m very protective of Michael Jackson’s image, and I’ll do anything to protect it.” so she’s a witness who has a motive not — she has, frankly, a motive to fabricate something. I’m not saying she did it, but I’m saying, before we put it to a jury, I’d like an opportunity to examine that, particularly when she didn’t produce it in response to discovery, and she’s been selective in what she’s produced. But I don’t think we need to deal with any of that, because the only two statements at issue aren’t directly contradicted by the texts, so I don’t think there are any grounds for ever getting to the texts. The only issue is whether Ms. Faye can come in and testify against Mr. Ortega as to the two statements he actually said “no” to. And that may be, but I think at that point, your honor, it’s pretty irrelevant as to whether kenny ortega ever told her —

[WHY NOT LET THE JURY DECIDE?]

Judge. It’s pretty marginal.

Mr. Putnam. So marginal, your honor.

Judge. Benefit is pretty marginal.

Ms. Bina. Very marginal.

Ms. Chang. But it’s our —

Judge. I know it’s your case. I think even if you get that, it’s so marginal —

Ms. Chang. Do we want to leave the impression it’s all hugs and kisses from AEG?

Judge. We have enough of that impression.

Mr. Putnam. And, your honor, that’s why —

Mr. Panish. Are we coming back at 1:30?

Judge. One thing, and then I have to let the staff go.

Ms. Chang. I’m so sorry, your honor. The thing about Karen Faye on the texts, we don’t know until we lay the foundation. We were interrupted, we didn’t do it, so we just don’t know. The second thing, I just want to state this for Karen Faye because I think a lot of bad things have been said on the record. As an officer of the court, I went to get the phone from her. I asked her, “can you show me how you went and retrieved all this?” it was the most tedious thing. She had to go back all the way to 2009 and scroll down. There was no fabrication of any evidence there. I saw — it must have taken her days to go back that far. And so with respect to that, I feel — especially since she so gladly went over and said, “do any forensic analysis that you want to do.” but it is degrading, it’s humiliating. But with that said, why don’t we all powwow, take a break, see where we are. I think we all agree that she’s entitled to do something. We can lay foundation for other things, and then we can all discuss how marginal or helpful it would be over lunch.

Judge. That’s what I suggest you do.

Mr. Putnam. Yes, because we don’t agree —

Ms. Bina. But, your honor, I don’t think there’s really any room for debate. There’s only two statements, and Ms. Faye can come in —

Judge. I’m done with the argument. I wanted to focus on the marginality of the benefit.

Ms. Chang. Let me —

Judge. Say this to Mr. Putnam.

Mr. Panish. When — what are we going to work on this afternoon?

Ms. Chang. Statement of damages brief.

Judge. Statement of damages. And I guess to the extent we can finish this —

Ms. Bina. Should be able to.

Ms. Chang. Okay.

Mr. Panish. Okay.

Mr. Putnam. 1:45, your honor?

Judge. Yes. 1:45.

Mr. Panish. Okay. Thank you, your honor.

Ms. Bina. Thank you, your honor.

The same transcript has a long discussion of AEG’s motion asking the judge to dismiss the case personally against Phillips and Gongaware, so please read the whole document provided to us by TeamMichaelJackson. The discussion was even a worse case of demagogy than the one about Karen Faye’s messages:

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