Did Sneddon REALLY want to introduce Michael Jackson’s photos at the 2005 trial?

When making this post I was surprised to find that Michael’s detractors are still disputing the fact that Jordan’s description didn’t match the photos of MJ’s private parts. They claim that at the 2005 trial the Prosecution were “determined” to bring this evidence out into the open and supposedly “it speaks volumes about their confidence in Jordan’s description and the photographs matching”.

The presumption that the prosecutors really planned to bring in that evidence is totally wrong as they knew they could never introduce it in the absence of Jordan Chandler as their direct witness, and ignoring this issue is like ignoring the elephant in the room. 

THE ELEPHANT IN THE ROOM

Entering a drawing as evidence without the right to cross-examine the one who actually made it would have amounted to gross hearsay and would have violated the defendant’s confrontation right ensured by the Sixth Amendment to the US Constitution.

In their response to Sneddon’s motion the defense thundered about it and said that they couldn’t believe that the prosecutor was actually doing it:

IT WOULD BE REVERSIBLE CONSTITUTIONAL ERROR TO ALLOW THE INTRODUCTION OF THIS EVIDENCE

Jordan Chandler has never been cross-examined. The alleged statements in Mr. Sneddon’s declaration are the result of an ex parte examination of Mr. Chandler by law enforcement. The drawing by Mr. Chandler and the statements are rank hearsay and have never been tested by cross-examination. The United States Supreme Court, in Crawford v. Washington (2004) 541 U.S.36. squarely held that the Sixth Amendment’s Confrontation Clause prohibits the introduction of testimonial hearsay statements that have not been subject to cross-examination.

The drawing and statements of Mr. Chandler are testimonial. Mr. Chandler was interviewed for the purpose of gathering evidence against Mr. Jackson. […] The purpose of the Confrontation Clause is to protect against the danger of this type of unreliable hearsay testimony.

Note 1: It is hard to believe that the prosecutor could file this motion in good faith, given the lack of a factual basis and the legal prohibition against this type of hearsay. One would hope that this was not merely an attempt on the part of the prosecutor to publicly disseminate this inadmissible material.”

Sneddon’s motion to admit the description and photos as evidence was made on May 25, 2005 – just a couple of weeks before the trial ended on June 13. The response from the defense had to come quick and was indeed prepared overnight as the hearing of the matter was to take place the very next day, on May 26th.

The hearing was brief. The judge listened to the arguments of both sides and quickly ruled against Sneddon’s motion pointing out that since the witness was “definitely not available” the confrontation clause did not allow this type of evidence:

9 …. 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.

14 Was there anything else we needed to discuss

15 before we brought the jury in?

Thus the matter was dismissed almost immediately leaving us wondering about the purpose of that motion and thinking that it was some kind of a misunderstanding and some trifle – only the kind of a “trifle” that leaves a long trail of negative publicity behind it and keeps all of us busy even today, ten years after the trial.

Producing this feeling of uncertainty and doubt was actually one of the goals of Sneddon’s motion – the idea was to hit and run and leave the public dazzled forever after.

However the matter is clear as a teardrop – what was supposed to prove the “match” could never be admitted as the witness was unavailable, and Sneddon knew it perfectly well, so from the point of view of entering that evidence the motion was meaningless.

The only goal Sneddon’s lie was pursuing was negative publicity combined with his certainty that the defense would never be able to verify his story.

It doesn’t escape our attention either that the discussion in court took place the very next day after Sneddon’s motion and was resolved uncharacteristically quickly, so the defense never had a chance to get familiar with Sneddon’s so-called “evidence” and make a comparison of the description and the photos themselves.

If the sides had not already rested their cases and the trial had not been close to jury deliberations, there would have been time for the defense to request disclosure of the description\photos after Sneddon’s motion, however there was no time left, especially since the judge dismissed the motion almost momentarily – and this makes us suspect that this was the way it was planned by the D.A. from the very start of it.

It’s noteworthy that MJ’s haters totally ignore this elephant of a problem preferring to go into numerous side issues whose sole goal is to distract the public from the fact that Sneddon’s declaration was sheer bluff. They shrug their shoulders in feigned surprise telling you that the prosecutor would have never taken the risk of perjuring himself and telling so flat a lie.

However Sneddon safeguarded himself against any risk.

Firstly, when making his declaration he concluded it with a statement that it was “based on information and belief” which legal dictionary interprets as “I am only stating what I have been told, and I believe it.” This makes clear about which statements he/she does not have sure-fire personal knowledge, and protects the maker of the statement from claims of outright falsehood or perjury.”

So essentially Sneddon said that this is what he believed but was not sure of.

And secondly, the prosecution took every step not to allow things to even come to a stage when their so-called evidence could be verified. To make sure that the verification never happened the prosecution took every precaution to block access to it for the defense throughout the whole trial. This explains why the matter was raised so late and in so quick a manner too.

ASK YOURSELF A QUESTION

Their official explanation for bringing the matter at the very end of the trial – at the rebuttal stage when the defense already rested their case – was that they wanted to rebut someone’s testimony that “Michael Jackson was shy and modest”.

But there was nothing to rebut. During that overnight analysis of Sneddon’s motion the defense made a word search of all the testimonies at the trial and found that no witness had used those words. Michael was indeed shy and modest, only by sheer accident no one ever mentioned it.

So the motive provided was a clear pretext prepared in advance in the hope that one way or the other the matter would be raised during the trial. It was District Attorney’s “pocket brief” as the defense put it.

During that hearing on May 26th, 2005 Mr. Sanger said:

           7  … it seemed to me that, when I was looking

           8   at this, this was a pocket brief the District

           9   Attorney had originally prepared in case somebody

          10   did this.  It didn’t happen.  Now they’re trying to

          11   bring it in by way of rebuttal, and it would just be

          12   absolutely inappropriate as 1101, because it doesn’t

          13   rebut anything, okay?

“1101” is a chapter in the California evidence code referring to “character evidence”, and though the evidence was filed as 1101 the prosecution still wanted to pass it off as 1108 (“prior bad acts”).

But as to “prior bad acts” the prosecution had already made two motions and several months prior to that too.  However on both occasions Sneddon chose not to mention that description\photos as evidence and didn’t’ seek their introduction.

Mr. Sanger noted these strange prosecution movements with some surprise – first they didn’t introduce it as 1108 “prior bad acts” and now they did, however under a different 1101 evidence code, at the same time arguing that it is 1108.

Even the text of Mr. Sanger’s answer conveys how perplexed he is with this moving target – what the hell is really going on here?

14 What really they’re trying to do, and I

15 think that’s what I heard Mr. Zonen just argue, is

16 they’re trying to argue this is 1108.

… 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.

…28 And they’re not asking to bring it in as 1108                      

1 evidence. They’re asking to bring it in as 1101(b)

2 evidence.

3 And the idea is, I think they’ve said in

4 their pleadings, that this goes to the issue of

5 whether or not Mr. Jackson was shy or modest. Now,

6 that’s not what Mr. Zonen just said when he got up

7 here and argued.

… 10 we can’t just

11 keep having a moving target here. They didn’t offer

12 it in their moving papers. They didn’t offer it for

13 that purpose. They offered it on the shy and modest

14 purpose. So it would be 1101(b) evidence on kind of

15 a collateral matter, if it ever happened. But it

16 didn’t happen.

By “it didn’t happen” Mr. Sanger meant that no one had mentioned the words “shy and modest” so there was nothing to rebut under that 1101(b) section. As regards section 1108 he also said:

17 it doesn’t meet the criteria for 1108. It doesn’t meet

18 the criteria the Court set down that it would be

19 somebody directly observing something.

Please don’t be confused by this last statement. Had that evidence been true it would have perfectly met that criteria for the “prior bad acts”, and the only problem here was the missing witness who couldn’t testify about that description and claim that this was what he observed with his own eyes.

Discussing it in his absence would have been gross hearsay and from this point of view that “evidence” would have never qualified of course and was to be rejected by the judge in any case.

However the missing witness factor existed all throughout the trial, but it didn’t stop Sneddon from finally raising the matter, so the only riddle we need to solve here is why he did it so late.

Ask yourself a question – even if you know that the evidence may be rejected why not try and introduce it together with other “prior bad acts” instead of mentioning it as if in passing at the very end of the trial and under a fake pretext too?

In both cases it was inevitable for this evidence to be barred (due to confrontation right), but wasn’t it still better to strike while the iron was hot? 

However in the opinion of Sneddon it wasn’t any better. In fact it was much-much worse and the answer to that question is in one word only.

This word is DISCOVERY.

WHAT IS DISCOVERY?

“Discovery” is the process of exchanging information between the opposing parties at a pre-trial stage.

It enables the parties to learn what evidence will be presented and is designed to prevent “trial by ambush” where one side doesn’t learn of the other side’s evidence or witnesses until the trial, when there’s no time to obtain answering evidence. “http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/discovery.html

The rules of discovery require the prosecution to hand over their evidence to the defense, and this is the key to the whole matter here. 

If the prosecution had mentioned the description\photos in their earlier “prior bad acts” motion, they would have been obliged to show that evidence to the defense, same as they did it with all the rest of it – the witnesses’ statements, books seized at all times from Michael’s home, the Chandler agreement, etc.

However the prosecution did not introduce the description\photos under their 1108 motion and the obvious reason for it is their total disinclination to disclose that evidence to the other side and reveal to them that it was a fraud.

The prosecution mentioned that evidence only several months later and at a moment when the defense no longer had a chance to obtain it. It was at the very end of the trial and there was no time for the defense to make a request for evidence submission. The matter was dismissed almost momentarily due to its absurdity and sheer lack of time, so the prosecutors felt absolutely safe in bragging about it without actually having to disclose it to the other side.

This is the short of it, and if we want to know what other interesting discoveries this “discovery” issue has for us we need to go a little further into the subject.

And the findings we will make here will be really invaluable.

A MUST KNOW 

Discovery: What and When the Prosecution Must Disclose

Can prosecutors spring evidence on defendants like they do on TV?

No. In the past, prosecutors could guard evidence from defendants with the same fervor toddlers show in protecting toy trucks and dolls from their siblings. Defendants couldn’t force prosecutors to hand over witness statements or even reveal the names of their witnesses. Now the view that advance disclosure will promote fairer trials has taken hold—if defense attorneys know ahead of time what to expect, they can better defend their clients.

Surprise evidence may produce fine drama, but it leads to poor justice. Unlike prosecutors, defendants can’t call on police agencies to help them investigate and respond to evidence they find out about for the first time at trial. Thus, every jurisdiction (each state and the federal government) has discovery rules requiring prosecutors to disclose evidence to defendants prior to trial.

Discovery rules generally distinguish between raw information like names of witnesses, police reports, and drug or alcohol test results, and attorney theories and strategies. The latter is called “work product.” Prosecutors don’t have to turn over their work product to defendants—otherwise, it just wouldn’t be fair.

” http://www.nolo.com/legal-encyclopedia/what-when-the-prosecution-must-disclose.html

To differentiate between the “discovery” and “work product” the following example is provided:

A video tape of a certain incident on which the police charges are based is the discovery and is to be turned over to the defense, however the memorandum containing the conclusions drawn from its analysis is the work product and this is what prosecutors keep to themselves.

• If we apply this example to Jordan’s description and MJ’s photos, both would be considered “discovery”, while the accompanying analysis and experts’ reports on their comparison would be the “work product”. The discovery was to be made available to the defense while the prosecution analysis of those materials was not.

Every state has its own discovery rules and in California the matter is regulated by chapter 1054 of the California evidence code.

The California difference is that the prosecution there is not obligated to release the discovery until the defense makes an informal request for it, so the conclusion we make here is that as a very minimum the defense needs to know what evidence the prosecution intends to introduce, because if they are not informed they simply don’t know what to ask for.

• This explains why the defense made so big a point of the fact that they never knew that the prosecution would raise the issue of the description\photos and why it was an “unfair surprise” for them. If the defense had known about the prosecutors’ intentions to introduce it, they would have made a request for it in due time, but in that situation it was impossible.

Chapter 1054 of the California Evidence code says that the disclosure of all evidence is to be made at a pre-trial stage and well in advance too – at least 30 days prior to the trial.

The defense is to make an informal request for the disclosure, and if within 15 days after that the prosecution fails to comply with the request, the defense can seek a court order and the judge can make an order for the “immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence,” etc.

• It goes without saying that in a situation when the trial in 2005 was already reaching the stage of jury deliberations, waiting for 15 days for the prosecutor to disclose the description\photos was not an option, especially since the judge rejected that motion the very next day – and this makes it clear that the created time pressure was not a mere accident but the inherent part of the prosecutors’ plan.

The type of evidence to be disclosed to the other side is different in every state, so it is a must to know whether the Californian chapter 1054 allowed the disclosure of that description\photo evidence at all. Let me provide the point concerning it in full here:

The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:

(a) The names and addresses of persons the prosecutor intends to call as witnesses at trial.

(b) Statements of all defendants.

(c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.

(d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.

(e) Any exculpatory evidence.

(f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.

Several points in this section call for our full attention:

Point (c) says that all real evidence is to be disclosed to the defense, and Chandler’s drawing and MJ’s photos clearly met that requirement. The only possible complication here is that “the offenses charged” could have probably limited the disclosure possibilities to the Arvizo case only.

On the other hand the judge did admit as evidence the Chandler settlement agreement though it had nothing to do with the Arvizo case. And also allowed the admission of two books and every scrap of paper seized in Michael’s home back in 1993 though it clearly was not part of the investigation of  “offenses charged” in connection with the Arvizos.

• So our conclusion here is that if Sneddon had introduced the description\photos together with other “prior bad acts” evidence, its disclosure to the defense was to be left to the judge’s discretion and considering the above examples had a high chance to be admitted.
• In this case the matter would have not reached the courtroom anyway (due to the defendant’s constitutional rights) however the defense could have at least seen the description and the photos. This was a major complication Sneddon tried to avoid by all means and for this reason alone this evidence was never introduced as “prior bad acts”.

Point (e) is also interesting. It required the prosecution to provide all exculpatory evidence to the defense. Given that the drawing and photos were in mismatch it clearly indicates that Sneddon violated the law here. This point is a perfect explanation why Sneddon avoided like hell the introduction of that evidence all throughout the trial, only to mention it as if in passing at the very end of it.

And point (f) is much more interesting than you think it to be. This point required the prosecution to disclose to the defense the statements of all witnesses whom he intended to call at the trial and it admirably explains why Sneddon called as witnesses scumbags like Phillipe LeMarque (whose story about Macaulay Culkin depended on the sum paid), but did not call a witness like, for example, Dr. Strick.

In October 2009 Dr. Strick revealed that he was TOLD that it was a “match”

Dr. Strick was the doctor working for the government in 1993. He was present during Michael Jackson’s strip search and his job was to compare the description and the photos. However for some reasons he was kept away from this task and later said that he was only “told” that it was a match.

Imagine the cross-examination of Dr. Strick at the 2005 trial and the thunderous facts Thomas Mesereau would have extracted from him and you will understand why Sneddon didn’t want to call Dr. Strick as his witness (or at least we never heard of it).

Another witness that could have been called by Sneddon (but was not) was Sergeant Spiegel, the government photographer who took pictures of Michael’s genitalia.

The glaring absence of these witnesses speaks volumes about Sneddon’s lies about that evidence and his determination to never allow his experts to testify about those photos and reveal the innocent truth about Jackson.

ANOTHER SURPRISE WITH TIMING

When I looked up the list of those who were to give their testimony under Sneddon’s original #1108 motion I saw a list of people who only heard things about some alleged “prior bad acts” (and not necessarily saw them), but despite that were ready to share their hearsay with the jury.

But in addition to that I also made a stunning discovery of a fact that previously escaped me – though the alleged “prior bad acts” were supposed to be a side issue for the Arvizo case, the prosecution made their motion about it well before the trial started – on December 10, 2004. 

I need to apologize to those who knew it all along but for me this was big news. Previously I thought that the trial was focusing on the Arvizo case only, and the “prior bad acts” was a side issue and arose only in the middle of the trial. And now it turns out that from the very start of it Sneddon planned it as a massive case against Michael Jackson covering a span of at least ten years (since 1993) if not more.

This is why Sneddon made his “prior bad acts” motion at a pre-trial stage and right within the time limits allowed by the law – the trial started on January 31, 2005 with jury selection and the motion for the admittance of evidence under the 1108 “prior bad acts” code was made almost two months prior to that.

Imagine how much time for a check-up the defense could have had if Sneddon had included the Chandler description\MJ photos into that original motion?

THE SECRET OF THE #11O8 MOTION

Even a perfunctory analysis of the 1108 motion shows that it was never Sneddon’s intention to really introduce the Chandler description\MJ photos at that trial – the prosecution collected every third party hearsay they could ever get hold of, but at the same time carefully avoided the introduction of what was supposed to be their direct evidence.

The peculiarity of that motion was that it sought admission of hearsay testimony of a dozen people who were ready to testify about seven alleged victims, however these alleged victims (except Jason Francia) did not intend to testify for the prosecution and vehemently denied any abuse.

The motion carefully avoided the subject that there were no victims and that it was relying only on hearsay testimonies of third parties whose credibility was questionable to say the very least.

The main page of the motion says that the alleged offense against Jason Francia, Jonathan Spence, Wade Robson, Brett Barnes, Macaulay Culkin, Jimmy Safechuck and Jordan Chandler is supposed to be proven by the anticipated testimony of third parties – Jolie Levine, Orieta Murdock, Jason Francia, Mariano “Mark” Quindoy, Blanca Francia, Ralph Chacon, June Chandler, Mary Coller, Charlie Michaels, Phillipe LeMarque and a couple of other people whose summarized testimony is provided in the follow-up pages of the motion.

The motion leaves you with a wrong impression that the alleged victims will testify, however a closer look reveals that it is only Jason Francia whose summarized testimony is supporting this motion:

Excerpt from the prosecution #1108 motion dated December 10, 2004

Jordan Chandler was mentioned as someone put on the witness list, only the prosecution made it look like he was still in doubt whether he would testify. A special note hinted that the prosecution had some “additional evidence of offenses against Jordan Chandler in 1993” but said that “The People have deferred incorporating Mr. Chandler’s proposed testimony into this motion because of the uncertainty surrounding a waiver”.

This note was a clear announcement on the part of the prosecution that they were withholding what seemed to be the key evidence related to the alleged “prior bad act” in 1993.

The official explanation was that they were uncertain whether Jordan Chandler would testify against his alleged abuser.

However the same statement also implied that the testimonies of other alleged “victims” would be incorporated into the motion. The prosecution made it look like they were ready to testify for the prosecution (though this was absolutely not the case), and that it was only Jordan Chandler who was in doubt and therefore only his evidence needed to be withdrawn.

See where it is taking us?

It makes us realize that all alleged victims (except Jason Francia) were in an equal position as none of them were available for the prosecution, however the evidence concerning all others was asked to be admitted in court, while the evidence concerning Jordan Chandler’s was withdrawn, and this was done on the pretext that he was the only one of whose testimony the prosecution were unsure. But he wasn’t the only one! 

What a big bluff again.

First of all, by then the prosecution had already known for several months, since September 2004, that Jordan flatly refused to be involved. He said that he “had done his part” and even threatened to sue them if they insisted – so the story about his “doubts” was an outrageous lie. This became known to us only after Michael’s death due to the release of those FBI files.

But what is even more important in this context is that Jordan Chandler was no exception – none of the alleged victims, except Jason Francia, were planning to testify for the prosecution. And the prosecutors knew that they could not force them. The testimony of alleged victims could take place only of their free will and this is what the three of them (Robson, Barnes and Culkin) actually did when they volunteered to testify – for the other side, though.

But if all them refused to testify for the prosecution what was the point of singling out Jordan Chandler out of the rest of the group?

Well, it was the prosecutors’ way to explain why they were withdrawing what was supposed to be their key evidence against Jackson.

Everyone had been waiting for it for more than a decade and Sneddon had talked about the alleged “match” for so long that if he didn’t introduce that evidence as proof now no one would understand.

Hence this story about Jordan being officially “in doubt” and this looked to the audience like a plausible explanation. If there was no witness the poor prosecution could not introduce the evidence, and the best part of that argument is that it was actually true.

However the other alleged victims were not testifying either, but this was never an obstacle for the prosecution to bring in whatever evidence they thought they had in relation to them.

So though all alleged victims were in an equal position in terms of their common refusal to testify against MJ, for Jordan Chandler the prosecution withdrew what was supposed to be their “direct” evidence, while for the rest of them the evidence was built up through some third parties and asked to be admitted.

Isn’t it an interesting little secret of Mr. Sneddon and Mr. Zonen?

FURTHER ‘PRIOR BAD ACTS’ ADVENTURES

On January 4, 2005 (still prior to the trial beginning) the defense gave their response to the prosecution “prior bad acts” motion.

The defense drew the judge’s attention to the fact that the prosecutors’ motion was based solely on the testimony of third parties (hearsay) and that out of the seven “victims” mentioned in the motion the schedule of testimonies showed only one – Jason Francia. The defense also noted that they were still waiting for the prosecution discovery regarding this witness.

This last point is important as it makes it clear that after the motion was made the evidence concerning the alleged victims was to be presented to the other side even though it didn’t concern the main Arvizo case and was sort of a side issue.

The defense said in their opposition paper:

“Strikingly, the District Attorney is alleging at least seven prior sexual offenses, yet only one of the seven alleged victims is scheduled to testify. Note 1: The defense has yet to receive current discovery regarding this witness.

In place of the alleged victims, the prosecution seeks to introduce the testimony of a collection of disgruntled former employees, paid tabloid informants, and other disreputable characters”.

http://www.sbscpublicaccess.org/docs/ctdocs/011005pltrepdftopp110806.pdf

Obviously, at that stage the defense didn’t yet know that in respect of the alleged victims’ testimonies the prosecution were lying too. They simply wondered why none of them were put on the witness list and were scheduled to testify.

The judge ruled on the “prior bad acts” matter only in the middle of the trial – on March 28, 2005 and this is when he dismissed part of the proposed hearsay and admitted as evidence only those statements where the witnesses allegedly saw something with their own eyes.

Interesting, but by the line drawn by the judge we can now make a conclusion which of the witnesses were basing their stories on pure hearsay and who at least claimed that they had seen something.

This is how we learn that the story of Michael Jackson’s former employee, Mark Quindoy was obviously so gross hearsay that his testimony was not admitted by the judge, and that the recently dismissed Bob Jones had nothing but an “opinion” about his former employer and never saw anything with his own eyes either and this is why the judge reduced his testimony only to the episodes where he could describe what he really saw.

The judge explained the rule by which he made the selection as follows:

22 … the grooming testimony is limited

22 I divided that up, the grooming testimony is limited

23 to those cases where there’s actual physical sexual

24 conduct that’s been observed by somebody. That

25 really is where I’ve drawn the line.

26 And just to give you an example, Mr. Jones’

27 observations over a long period of time were

28 conclusionary and opinions that I wouldn’t allow

1 based on what he didn’t see.

2 All right. Now, the next item I want to

3 take up is the settlement issues of whether or not

4 the settlements are admissible. In the one case,

5 the Chandler case, I’m going to rule that the

6 evidence that there was a settlement may come in,

7 the amount may not.

Isn’t it funny that the Chandler civil agreement was allowed to be brought in as the “prior bad acts” evidence, though the description and photos which were supposed to be the most “damning” evidence were not even asked by the prosecution for admittance?

On April 15, 2005 the “prior bad acts” saga entered a new stage – the prosecution made a supplemental  motion in order to admit additional evidence “pursuant to evidence code section 1108 and 1101 (b)”.

This additional motion sought for the admission of Kassim Abdool’s testimony urgently required by the prosecution to support the falling apart Ralph Chacon’s story.

Strictly speaking the discovery is generally to take place at the pre-trial stage and any “after-discovery evidence” could be entered only in case “it could not have been discovered with reasonable diligence prior to a court ruling upon the motion or the trial’s completion,” as legal sources say. https://www.law.cornell.edu/wex/after-discovered_evidence

But in this case the prosecution had known about Kassim Abdool’s story for nearly a decade however for some reason it wasn’t included into the original 1108 motion.

The defense noted it in their opposition paper filed on April 18, 2005:

“The District Attorney has been aware of the statements of Kassim Abdul for almost a decade. For whatever reason, the prosecution opted not to include this “evidence” in their 1108 motion. Penal code Section 1054.7 requires disclosure of statements of witnesses at least 30 days prior to trail, or immediately if the information becomes known within 30 days of trial, unless good cause is shown. Now, in the middle of trial, the prosecution seeks to introduce this testimony without offering good cause as to why they did not disclose the statements of Mr. Abdool 30 days prior to trial. The Court should reject this request based on the failure to show good cause.”

http://www.sbscpublicaccess.org/docs/ctdocs/041805respdasuppmot.pdf

Now we all know that this additional discovery was not rejected, Kassim Abdool did testify and we even have a court transcript of his testimony.  But this is not the point.

The point is that even in the middle of the trial the prosecution could still introduce any old evidence of which they had known for a decade, and this means that they could have easily included into that motion the request to admit Jordan’s description and MJ’s photos too – of course only in case they really wanted to introduce that evidence and were brave enough to face the defense after its disclosure.

If someone tells you that the prosecution couldn’t introduce that evidence because Jordan Chandler was not testifying, our answer to these good people will be that this factor ran throughout the whole of the trial and didn’t present any obstacle for the prosecution when they finally decided they needed it at the very last moment.

From this point of view the moment of introducing that evidence made absolutely no difference. Whether the beginning, middle or end of the trial, the prosecution could have asked for the evidence to be admitted at any time.

The only difference was that at an early stage of the trial (for example, in the period of December 10, 2004 – March 28, 2005) the defense would have had plenty of time for its analysis, while on the only one day they had at the end of the trial they had a zero chance to do it.

We can only imagine what Thomas Mesereau would have said if he had had an opportunity to see that description and photos in due time. During the hypothetic hearing on this evidence at an earlier stage, the judge would have rejected it anyway (due to that confrontation right), but a big scandal about the prosecution fraud over the alleged match would have been simply inevitable.

Did Sneddon want it? Certainly not. And this is why he never as much as mentioned those photos until the trial was almost over.

And if this were not enough for us to settle this matter once and for all, it was at this point that I found another proof that Sneddon never, ever intended to use Michael Jackson’s photos.

AUTHENTICATION!

The rules of evidence break all evidence into four types – real, demonstrative, documentary, and testimonial. For example, the description is testimonial, and the drawing and photos are real evidence (sometimes called demonstrative).

All types of evidence need to be “relevant, material and competent” and proving that they are needs authentication.

Real evidence also needs authentication and probably even more than any other evidence does. It is far more serious than, for example, answering a simple authentication question “Do you know that gentleman in the gray suit sitting in the second row?” “Yes, that’s Dr. Murray”.

The authentication of photos, for example, is supposed to be made only by those experts who were present during the photo session and could prove that these pictures really depicted MJ’s private parts.  Otherwise the genitalia of another suitable male could be presented in court and said to be his.

Legal sources say that there are three ways for the real (or demonstrative) evidence to be authenticated. The piece is long but is worth it:

REAL EVIDENCE
Real evidence may be authenticated in three ways–by identification of a unique object, by identification of an object that has been made unique, and by establishing a chain of custody.  The easiest and usually the least troublesome way to authenticate real evidence is by the testimony of a witness who can identify a unique object in court.

The second method–identification in court of an object that has been made unique, is extremely useful [..] If a witness marks it with his signature, initials, or another mark that will allow him to testify that he can tell it from all other objects of its kind, that witness will be allowed to identify the object in court and thus to authenticate it.

The third and least desirable way to authenticate real evidence is by establishing a chain of custody. Establishing a chain of custody requires that the whereabouts of the evidence at all times since the evidence was involved in the events at issue be established by competent testimony.

The proponent of the evidence must also establish that the object, in relevant respects, has not changed or been altered between the events and the trial. This can sometimes be a tall order, or can require the testimony of several witnesses. If there is any time from the events in question to the day of trial during which the location of the item cannot be accounted for, the chain is broken. In that case, the evidence will be excluded unless another method of authentication can be used.

DEMONSTRATIVE EVIDENCE
Demonstrative evidence is just what the name implies–it demonstrates or illustrates the testimony of a witness.
For some time in California, and in some other states, there was a controversy over whether photographs were only demonstrative in nature or whether they had evidentiary value independent of the testimony of the witness who authenticated them. This problem was particularly pressing when there was no witness who could confirm what the camera saw as, for example, where crucial identifying photographs were taken by automatic cameras.

Fortunately, the courts in California and most other states seem to have reached the only sensible solution, which is that photographs can be either real or demonstrative evidence depending on how they are authenticated. When a photograph is authenticated by a witness who observed what is depicted in it and can testify that it accurately reflects what he saw, the photograph is demonstrative evidence. When it is authenticated by a technician or other witness who testifies about the operation of the equipment used to take it, it is real evidence and is, in the language of the courts, a “silent witness.”

http://corporate.findlaw.com/litigation-disputes/summary-of-the-rules-of-evidence.html#sthash.9dKF1j8m.dpuf

So whether real or demonstrative evidence those photos had to be authenticated. And the easiest way to authenticate them was to submit the photos to those who were actually present during that notorious strip search.

And this is when we recall a very convenient book by Diane Dimond where this esteemed author provided an account of that scene and said that the only two people representing the government were Dr. Strick and photographer Sergeant Spiegel.

According to Dimond’s account Michael was so unruly and hysterical that Dr. Klein managed to make Michael get undressed on one condition only – that the number of those present was reduced to an absolute minimum, a doctor and a photographer from each side. The government side was represented by Dr. Strick and Sergeant Spiegel, and the other two people were Michael Jackson’s own photographer and Dr. Forecast.

Here are some short extracts from the book:

“I don’t want you here. Get out!” Jackson shouted at Detective Birchim, directing the officer toward the door.  The now-enraged Jackson pointed to Detective Sicard next. “Is he going to be here, too? Who is he?

“I’m Detective Sicard from LAPD,” Sicard spoke up.

“Get out of here. You get out of here, too,” Jackson ranted. The star struggled to rise from the couch as Dr. Forecast worked to restrain him.

Sergeant Spiegel [the police photographer] continues:

“… Dr. Klein made the statement that others in the room should turn their heads so as not to view Jackson’s genital area.  At the time, I found this peculiar because the only persons in the room at the time were Mr. Jackson, the two doctors, me and the other photographer. Dr. Klein also made the statement that he was not going to look. He said he had never seen Mr. Jackson’s genital area and he was not going to do so at this time. As Mr. Jackson lowered his trunks, he said something to the effect of, “I don’t know why they are making me do this” or “Why are they making me do this?” Dr. Strick asked Mr. Jackson to lift his penis. Mr. Jackson questioned why he had to do that, but he did comply with the request…”

So even Diane Dimond may be an occasional help. Now we know that there were only two experts who could authenticate the photos from the prosecution side and these experts were Dr. Strick and Sergeant Spiegel. Without their authentication the introduction of those photos was worthless as the pictures presented could belong virtually to anyone.

And at this point it suddenly dawns on us that Sneddon never displayed as much as an intention to have those photos authenticated!

Please note that Sneddon could not authenticate the photos himself as he was not present when they were taken, and out of all people taking part in the 1993 investigation Dr. Strick and Sergeant Spiegel were the only two who worked for the government and could do the job.

However at no point during the trial did Sneddon call them as witnesses and at no point did he even mention their names – even in his motion for the supposed introduction of that evidence to court.

The Motion had a loud name and told the whole Sneddon’s story even in the title of it.  It was called “Plaitiff’s Motion to admit evidence that Jordan Chandler had knowledge and accurately described defendant’s distinctively-blemished lower torso and penis in 1994”.

However despite its loud name the inside of that paper lacked the most essential part of it, which made the motion actually invalid – the names of the people who could confirm that the photos were real and were identical to what they had seen.

Now that we know what to look for we can finally see this glaring gap in the text of that motion:

“…as soon as the matter may be heard, Plaintiff will move the court for its order allowing Plaintiff to put before the jury, as rebuttal evidence, 1) the testimony of LAPD Detective Rosibel Ferrufino or LA Deputy District Attorney Lauren Weis that on September 1, 1993, in Ms. Weis’s office and at the direction of Detective Ferrufino, Jordan Chandler described the discoloration of and markings on defendant’s body below his waistline and above his knees, including his penis, and drew a picture of his erect penis, and 2) that drawing, and (3) photographs taken at a later date of defendant’s body and his distinctively-marked penis.

This motion is made on the ground that the proposed evidence is relevant to rebut evidence introduced by Defendant the purport of which is that Michael Jackson, by reason of his “shy” and “modest” nature, would not have exposed his unclothed self to young boys.

The motion will be based on this notice, the accompanying Declaration of Thomas W. Sneddon, Jr., and the attached Memorandum of Points and Authorities.

Dated: May 25, 2005

Respectfully submitted, THOMAS W. SNEDDON, JR. District Attorney”.

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Okay, but where is point 4?

There is none. The drawing is mentioned (2),  the names of those who can authenticate it are stated too (1), the photos are also there (3), but instead of point 4 which should provide the names of experts to authenticate the photos there is simply a blank space.

Point 4 is missing here not only because Sneddon wanted to conceal the names of his experts and the fact that the photos were not authenticated. His idea was to conceal the fact that the authentication was required at all. And until a certain moment of time he did reach his goal as many of us were totally misinformed.

And now we’ve had enough of it. This is really the final touch that closes the subject and answers all questions:

• The description and the photos did not match.

• Sneddon never really planned to introduce that fake evidence at the 2005 trial. It was a bluff.

• He also took every precaution for the fraud to be never uncovered.

• The experts who could authenticate the photos were never called. The need for authentication proper was never disclosed. Sneddon’s motion did not state that authentication was one of the basic points required for presenting that evidence at all. The careful wording of the declaration accompanying the motion protected Sneddon from the possibility of being accused of perjury as he could claim that he based his statements on “information and belief” only.

• The fake evidence was thoroughly avoided from being presented. The defense was continuously blocked from having access to it – the prosecution did not want to admit it until the very last moment when there was already no physical possibility to disclose it to the other side.

• By declaring an intention to introduce his fake evidence Sneddon did not take any risks. He knew that it could never be admitted as it would have been a violation of the defendant’s constitutional rights. And since he knew that his motion would go nowhere, its only other goal could be negative publicity about Jackson.

• In addition to that the motion provided Sneddon with a sort of an alibi. It created the impression that he had never lied about the “match”.

• So the first two goals were to use the motion as an ugly publicity stunt for smearing Jackson and simultaneously whitewash Sneddon and release him of the suspicion that he had always been lying about the “match”

• And the third major Sneddon’s goal was to do irreparable harm to Michael Jackson, prejudice the jurors via the scandalous media reports and make them bring in a verdict in favor of the prosecution.

And if you are still in doubt about those photos see how easy it is to see through Sneddon’s lies.

It is enough to remember that all alleged victims excluding Jason Francia were in an equal position as none of them were available for the prosecution, and Jordan Chandler was absolutely no exception here. However his case looked the strongest as the prosecution had his direct statement and from all others they had none – only some claims from disputable third parties. And what did Sneddon do? Instead of focusing on his “strongest” case he withdrew it and kept its evidence to himself, choosing to introduce all others with only a third-rate evidence to support them.

Ask yourself (and Michael’s haters) why and you will get an answer. Sneddon had nothing to prove his story about Jordan with and all of it was just a bluff.

Dictionary defines bluff as deceiving someone by making them ​think either that “you are going to do something when you really have no ​intention of doing it”, or that “you have ​knowledge that you do not really have” – and both definitions perfectly apply to Sneddon here.

Michael was absolutely right.

“Lies run sprints, but the truth runs marathons”. – Michael Jackson

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