Court documents about the 1993 CASE and MALICIOUS PROSECUTION of Michael Jackson
We continue studying the 2005 court documents in search for MJ’s phantom victims and their millions, as well as the “wealth of evidence” from the 90s which allegedly could not be admitted at trial due to some technicalities.
This is already part 3 of the search and up till now not a single trace of the above has been found. On the contrary, we learned that all discovery from the 1993 case was requested by the defense and it was the prosecution who blocked it with excuses that it is extremely “complex” and “demanding of time” and they have “limited resources”, and to crown it all, the discovery from prior investigation is “irrelevant”.
A short reminder from the defense’s motion on September 3, 2004:
“The prosecution has not responded in writing to this request. The prosecution has stated in court, however, that discovery from the prior investigation is irrelevant”
And the same from the prosecution’s response on September 17, 2004:
“The People and the Santa Barbara Sheriff’s office are diligently investigating every possible lead that could result in the discovery of relevant evidence in this case. The scope of this investigation combined with limited resources make this task extremely complex and demanding of time”
Now that we know that in the opinion of the prosecutors themselves everything they collected against Jackson in 1993 was “irrelevant”, the chances that they really had anything else against Michael are close to a zero, but we will still keep looking as it is even interesting what else this prosecution circus may disclose to us.
To go a little further into that “irrelevant” issue, let us look, for example, at two documents which were accompanying the September 3, 2004 Motion (the one where the defense requested the prosecution for all evidence from the 1993 case).
One of them is a fax from Thomas Mesereau sent to Sneddon on August 11, 2004 and the other is a list of discovery asked from the prosecution as early as January 30, 2004 by the previous team of defense lawyers who worked for MJ before Mesereau.
Both documents show what exactly the defense was asking for and consequently what kind of evidence Sneddon was calling “irrelevant”.
Thomas Mesereau asked for five boxes of documents and items collected in 1993 from Michael’s homes in Neverland and Encino.
The information about those boxes was taken from Tom Sneddon’s own bragging to the media of how much they “gathered in the first criminal investigation”, which was as usual accompanied by a complaint that “none of it was presented in court” as the case fell apart due to a “multimillion-dollar settlement” with “the first victim”.
And now Thomas Mesereau was asking for those five boxes and all other documents related to the Jordan Chandler case. He said:
August 11, 2004
Dear Mr. Sneddon,
You have previously told the press that you are very familiar with the five boxes of documents gathered in the 1993 case. For instance, on December 3, 2003, the Santa Barbara News Press reported the following:
“Mr. Sneddon, who has been elected country district attorney six times, added that his decision to try the case himself came in part because he is so familiar with the five boxes of transcripts and evidence gathered in that first criminal investigation. The evidence includes photographs, statements from employees and items recovered by detectives in searches of Mr. Jackson’s Neverland Valley Ranch and a home in Encino”
“None of that evidence was presented in court. The case fell apart – after months of investigation and testimony heard by criminal grand juries in Santa Barbara and Los Angeles – when the family of the 13-year-old alleged victim made a reported multimillion-dollar out-of-court settlement with the entertainer and declined to cooperate.”
The 1993 case was also referenced and presented to the grand jury in this case at length. Request is hereby made that your office produce all documents relating to the 1993 case, including, but not limited to, all documents and items of evidence contained in the referenced five boxes, the entire grand jury transcripts, and any and all documents referencing, directly or indirectly, Jordie Chandler.
Thank you in advance for your professional cooperation in this regards.
Very truly yours,
Thomas A.Mesereau, Jr.
Funny, but Thomas Mesereau used Sneddon’s own words as a foundation for his request. Sneddon spoke of that “evidence” so often that the public was sure of a mountain of proof from 1993 – however no one expected that it would have to be dragged from the prosecution, and no MJ hater in his scariest dream could see the prosecution calling it “irrelevant” all the more so.
At that moment the parties didn’t know whether Jordan Chander would testify, and if Sneddon was to provide the five boxes irrespective of this factor, there was no reason to withhold Jordan’s description and MJ’s photos as part of those boxes either.
So when the defense said “Give all of it to us”, all of it should have been turned over. However it was not and those photos and description were mentioned by Sneddon only at the very end of the trial when there was actually no chance for them to be admitted at all.
The second letter accompanying the defendant’s Motion was sent by Michael’s previous defense team on January 2004 when they were asking for all discovery for the Arvizo case.
In addition to that they also mentioned discovery under Evidence Code # 1108 which was a code number for evidence of the so-called prior “bad acts”. It was under this code that the prosecution later brought in characters like Blanca Francia, Adrian McManus, Ralph Chacon and others back from the 90s.
January 2004 was only the beginning of the discovery process, and the defense asked only for a notice which evidence from the earlier investigation would be offered by the prosecution, as well as for the results of any forensic analysis and the content of police communications with Dr. Mathis Abrams who reported Jordan Chandler’s case to the authorities.
Again, this was the moment for the prosecution to lay out their best cards, only they preferred to ignore the issue, and the long months of waiting from January to September finally resulted in the defense approaching the judge to compel that discovery to them.
As you know Sneddon’s September response was that they “further considered” the matter and decided “not to oppose” provision of police reports from the 1993 case, which somewhat implied that the rest of the evidence they did oppose.
Why provide some and withhold others?
Because the police reports were the least damaging to Sneddon as they presented their point of view and what witnesses like Jordan and Evan Chandler said, while the proof of the story was in forensic reports – the examination of Michael’s computers, the comparison of Jordan’s description with photos and, by the way, the collection of DNA from his bed.
Speaking of DNA tests in 2004 Zonen said that such tests were a “routine procedure in child molestation cases”:
In pretrial hearings, attorneys on both sides have alluded to a number of forensic tests that have already been performed in the case, including an analysis of Jackson’s mattress and bedding. Such tests are routine in child-molestation cases, prosecutor Ron Zonen said at a recent pretrial hearing in Santa Maria.
Well, if these tests are indeed routine in child-molestation cases, why haven’t we heard of any in Jordan Chandler’s case? Where are the forensic tests of the DNA from the mattress and beddings from Neverland? And Evan and June Chandler’s homes in the latter of which Michael supposedly stayed for “30 days”?
It’s only now that I understand what the police were looking for when they made a check of the room at the Mirage hotel attended by Michael and the Chandlers, which left them empty-handed again.
For those who think that the DNA issue was neglected in the 1993 investigation we have proof that those forensic reports were made, only they produced zero result. The media reported it at the time calling it “medical evidence” and said that it was absent:
Videotapes seized from homes belonging to Michael Jackson do not incriminate the entertainer, and the lack of physical evidence of alleged sexual molestation has left investigators “scrambling” to get statements from other potential victims, a high-ranking police source said Thursday. “There’s no medical evidence, no taped evidence,” the source said. “The search warrant didn’t result in anything that would support a criminal filing.”
Police have said their investigation has not produced physical or medical evidence that would support a criminal filing, but they are still interviewing people and reviewing photographs confiscated from Jackson.
So the real reason why in September 2004 the prosecution was fooling the defense with their hollow promises about the 1993 discovery was their lack of forensic evidence and no amount of “canvassing the involved agencies” could change that inconvenient fact.
By lack of forensic evidence we also mean no match between Jordan’s description and Michael Jackson’s photos, of course.
The prosecution promised to provide a report on the status of their “forensic reports findings” on October 8, 2004. Okay, let us wait for this date and see what happens then.
JIM THOMAS AS AN UNOFFICIAL PROSECUTION SPOKESMAN
On September 23, 2004 the judge unsealed the defense’s motion where they asked the judge to impose sanctions on the retired Santa Barbara sheriff Jim Thomas for breaking the Court’s protective order.
The motion was called “OSC” (a motion seeking an Order to Show Cause regarding Contempt), and now the judge was unsealing it together with all Jim Thomas’s interviews accompanying the motion.
The problem with the former sheriff was his constant leaking to the press the prosecution story and acting as their unofficial spokesman. This was taking place at least since February 2004 when he shared the salacious news about the police taking Michael’s DNA from his mattress and beddings.
Jim Thomas’s regular appearance in the press was a big contrast to the opportunities of Michael Jackson’s supporters who were barred from the media due to that Sneddon’s little trick with letters. You remember it from the previous post – Sneddon’s sent out letters to MJ supporters saying they would be subpoenaed as witnesses and thus bounded them by a gag order, though he didn’t have any intention to see any MJ supporters at the trial, of course.
The defense motion to restrain Jim Thomas was denied – the judge decided that the retired sheriff “did not act as an agent for the District Attorney office”.
However we still need to look into what Jim Thomas was saying, as his revelations to the media were the exact opposite of what Sneddon was saying in court and at the very same time too.
One of Jim Thomas’s public acts was his participation in Josh Mankievicz’s program on NBC which aired on September 3, 2004 – coincidentally on the same day the defense asked the prosecution for the 1993 discovery.
Presented as an “NBC News consultant” Jim Thomas revealed that the 1993 investigation produced two “victims” – one primary, whose testimony gave the investigators “a lot of promise” and the other one who had allegedly experienced “improper touching through his clothes”.
The program also broke big news that this second boy also had a settlement with Michael Jackson and for “more than $2 mln” (in the court documents Sneddon said that “he believed it to be about 2 mln”).
As regards other victims Jim Thomas had disappointing news for those who are now talking about their endless numbers – the investigators found none, though Jim Thomas himself “believed” that there could be other boys:
Thomas: “We always believed there were eight to 10 other children out there. […] I’ve always felt we were correct. “
Feeling and believing are of course very valuable qualities, only it wouldn’t be bad to also have some evidence to support the belief. But over here the former Sheriff had a problem and had to admit that their search warrants didn’t produce any evidence.
The transcript of the program makes it clear that even Jim Thomas regarded the absence of any evidence against Michael Jackson as an established fact, only he tried hard to downplay the importance of it:
Former Santa Barbara sheriff Jim Thomas confirms that when they served that search warrant back in 1993, investigators didn’t find everything they were looking for.
Thomas: “Well, there were some things that were missing.”
Mankiewicz: “Was it your sense or the sense of other investigators that Neverland had been gone over, sanitized before the search warrant was actually served?”
Thomas: “That was an opinion that I received from some investigators that were there.”
Mankiewicz: “Somebody had tipped off Jackson and his people.”
Thomas: “Apparently so.”
But what is apparent to them is not apparent to others. Michael had just gone on a tour by the time of the search, and even Pellicano was away, and Adrian McManus also testified that the raid to Neverland was an unexpected one – so the Sheriff’s story about Michael being “tipped off” is a lie meant to devalue the fact that no evidence was found and the raids brought zero result.
The program on NBC ended with a traditional statement that “all details from the 1993 investigation would be finally heard in court” and a lie that Jordan Chandler was willing to testify:
Details from the 1993 investigation finally may be heard in court. Dateline has learned that Jackson’s original accuser is willing to testify in the upcoming criminal trial against Jackson. Prosecutors have contacted the young man, and might call him as a witness. The trial is set to begin January 31.
Well, if Dateline “has learned of it” someone must have told it to them and this could be only Jim Thomas or someone from the District Attorney office. Let me remind you that later the same month Jordan Chandler was approached by the FBI and the D.A. people and flatly refused them.
As to the promise that “details from the 1993 investigation finally may be heard in court” it was meant for public consumption only as in court Sneddon was saying the opposite, was clearly avoiding the subject and even claiming that all those details were irrelevant.
So it is important to realize that the public heard one thing and the court heard another.
Did the defense have a chance to inform the public of the prosecutors’ real position on that 1993 discovery? Unfortunately not. They were barred from speaking by a protective order, and all court motions with responses to them were sealed almost immediately – to be unsealed only after the trial, when no one cared about them any more.
The exchange of documents over seeking the 1993 discovery, for example, was unsealed only on June 16, 2005, and at that time no one really bothered to look what the prosecution had said about that past investigation as they lost to MJ anyway.
During the trial the media constantly suspected that some “damning” information was kept away from the public eye and every two weeks or so approached the judge with requests to unseal the court documents – only they looked the wrong way and thought that the sealing process played into the hands of the defense, while the situation was exactly the opposite one.
“There are still massive amounts of judicial records in the Jackson case that remain sealed,” said Theodore J. Boutrous Jr., who represented television networks, Associated Press and several newspapers, including The Times.
“I am concerned that the approach of the Court of Appeal will reinforce the notion that celebrities are entitled to secrecy when ordinary citizens would not be,” he said.
It is due to these media and public suspicions about “massive amounts of judicial records remaining unsealed” that all that gibberish about phantom “boys not admitted at trial” still happens to arise.
People hear the word “sealing” and imagine that it was the defense sealing something bad about Michael while in reality it was the prosecution who was blocking lots of information, and to be more precise, the release of the 1993 details which were actually exculpatory evidence for Michael Jackson.
The second document in the collection of papers unsealed by the judge regarding Jim Thomas was his statement to the press on February 14, 2004. It said:
“Outside the courtroom, former Santa Barbara Sheriff Jim Thomas told the News-Press that law enforcement officers also gathered semen from Mr. Jackson’s mattress for DNA analysis and the results were expected within the next two to three weeks. While the DNA alone would not necessarily be a proving factor on its own, it would certainly corroborate the story,” said Mr. Thomas, who said he learned of the DNA samples from reliable sources before the gag order was imposed.
“In these types of investigations, you’d look for semen from both individuals,” he said”.
The news sounded formidable and the media emphasized that the sheriff told it before the gag order was imposed, but we are more interested in the date of that statement – and the date shows that in February 2004 the police already had samples of MJ’s DNA and they were already waiting for the “results”.
Let us remember this point as later it will come in handy to us.
The third paper concerning Jim Thomas was his interview on April 21, 2004 where he broke the news of MJ’s indictment to the press, adding the following about Sneddon:
“Let me give you an example. A lot of people thought that he would have used the boys from the 1993 case. He did not. One of the reasons, I believe, is because they have not yet been approved to testify in trial, which would require a judge to approve their testimony.”
Sneddon indeed didn’t use the 1993 case for the grand jury hearings (except the fun he and Larry Feldman had over that “multi-multi-millions settlement” with Chandler), but the rest of Jim Thomas’s statement is a monstrous lie.
So in the opinion of Jim Thomas as of April 2004 “the boys have not yet been approved to testify”?
But for their testimony to be approved someone should have at least approached the judge with a respective request and Sneddon did not even try to do it! In fact, half a year later Sneddon was still fleeing from the subject and mumbling something about it being irrelevant – and now Jim Thomas is telling us that the boys didn’t testify because their testimonies had not been approved yet?
No one asked Jim Thomas to give that “example”, so the only reason why he raised it himself was to keep that lie alive and give at least some explanation why the prosecution was not using their long-publicized story about “finally hearing all details from the 1993 investigation in court.”
This new reminder of the old lie cemented the audience’s belief that the prosecution was fighting for all that “damning” evidence to be introduced in court and the only problem was the judge who didn’t release it yet.
If only they knew.
SEIZING THOMAS MESEREAU’S FOLDERS
On September 15, 2004 the prosecution made a raid similar to their earlier one of the office of MJ’s private investigator, Brad Miller. The results of the new raid are reflected in the defense motion of September 16 (filed on 22), 2004 called “Emergency application”.
This time the prosecution raided the office of MJ’s personal assistant Evvy Tavasci from whom they seized some items including 3 folders labelled “Mesereau”. This was a violation of the attorney-client privilege again.
The defense said about the items seized:
“At this point we believe that at least one of the items, specifically, was a fax sent on behalf of the client to his lawyer regarding possible trial witnesses. Other items seized include 3 folders labelled “Mesereau”.
“Law enforcement and the District Attorney continue to attempt to use search warrants, after a case has been filed, and after a client has retained counsel, despite being aware that they run the risk of invading the defense camp. It is particularly peculiar that officers would seek a search warrant such as this, and that the District Attorney would approve of such a warrant, having been put on notice that their prior actions invaded the defense camp.
We seek immediate relief by way of an order that all of the materials be sealed until counsel for Mr. Jackson have the opportunity to review what was seized and further brief the issue of invading the defense camp. We request that this Court issue an order sealing these items and [..] and a determination [..] be made if the material seized are covered by the privilege and to fashion appropriate remedies”
Of course the prosecutors said that as soon as they realized that the papers labelled “Thomas Mesereau” were covered by attorney-client privilege they immediately sealed them, but if they were so careful not to break the law why seize them at all and not just leave them there, in Evvy Tavasci’s office?
During the hearing of this defense motion the judge admitted some documents and sealed the others, but the damage was already done – the prosecution had already got familiar with the defense work product and reached the goals they were pursuing by that raid.
THE 1993 DISCOVERY SAGA CONTINUES
October 8, 2004 was the long-awaited date when the defense was expecting the prosecution to provide them with a “status report on forensic reports findings” from 1993 which was supposed to be made as a result of that “canvassing the involved agencies”.
So when we see the prosecution’s paper filed on October 8, 2004 and called “People’s Response to Defendant’s Motion to Compel Discovery” we rush to see what is inside ….. and find that the paper doesn’t say a single word about the 1993 or any discovery at all.
Instead of news on forensic reports the prosecutors’ response is full of dates:
On July 27, 2004, the Honorable Rodney S. Melville made an order setting for the discovery process in this case.
“The court further orders that a status conference shall be held on November 5, 2004, at 8:30 a.m.; that counsel shall file and serve notice of any outstanding discovery problems with a minimum of 15 days prior to November 5, 2004; that counsel shall meet and confer in person at least 5 days prior to November 5, 2004, to try and resolve any discovery problems.
Given the court’s designated process, both parties have until October 22, 2004, to file and serve notice of any outstanding discovery problems. A meet-and-confer conference is then mandated within five days of the November 5th status conference. The People are assuming that this discovery motion is a precursor to that conference”
Apparently they assume that the above is an answer to the defense motion which was asking for the 1993 discovery from them.
On October 12, 2004 the defense reacted to it with a paper called “Reply in Support of Motion to Compel Discovery and Response to Status Report Re: Production of Forensic Data”.
From this defense paper we learn that some data have been provided to them after all. We also get an interesting detail about the way the prosecution was handling the discovery process.
For example, the FBI reports on MJ’s computers were completed in April 2004 but were provided by the prosecution to the defense only in October. The prosecutors kept telling the defense that the reports were not ready, and now it turns out that all this time they had those FBI reports on their hands. The defense called it an “incredible misrepresentation”.
Let me remind you that the FBI indeed checked up all MJ’s computers and didn’t find anything there to support the charges. At the time the media did not say a single word about it and we ourselves learned about it only after Michael’s death.
This is what the defense said about the FBI tests and a new 6-weeks delay awaiting them with the rest of forensic reports:
“In mid-September 2004, as a result of a defense motion made weeks earlier, this Court ordered the prosecution to provide all results of forensic examinations by October 8, 2004. That was a date proposed by the prosecution, which also promised a status report if forensic data was not available for delivery.
Characteristically, everything was not produced by the prosecution on the so-called due date. Some forensic data was produced but the prosecution indicates that discovery of forensic information will not be complete for approximately six (6) weeks.
An additional six (6) week delay of receiving the results of forensic examinations was not contemplated by this Court and is unacceptable to the defense. [..]
This Court and Mr. Jackson have been told by the prosecution that these reports would not be completed until now because the work was not done. The fact is that the reports show that the FBI work was done at the Sheriff’s department in the presence of Sheriff’s detectives in February and March 2004.
It is incredible to learn that the tests were not only completed in February and March, but that the reports were in the hands of the Sheriff’s detectives on April 5, 2004. The Court should do more than nothing about the delay and the misrepresentations which accompanied this delay. [..] another deadline should be set by which forensic discovery must be due.”
The next stage of the 1993 discovery saga was a hearing on October 14, 2004 where the judge ordered that:
“Attorney Sneddon shall contact companies that have outstanding warrants to determine when they will comply with the warrant. Attorney Sneddon shall provide the Court with a report on said compliance on and before November 4, 2004”.
The above makes it clear that the prosecution explained the delay in the 1993 discovery by having to struggle with the involved companies – the prosecution issued warrants to them but not all companies complied and now the prosecution was to contact them to determine when they would do it and on November 4, 2004 Sneddon would produce a report “on said compliance”.
The impression you get of this drag is that obtaining the 1993 discovery was nothing less than getting the Moon from the sky and not something they said they possessed for ten years already and were dying to disclose at this trial.
On October 19, 2004 the Prosecution still didn’t answer the defense but filed their Motion to compel discovery. They wanted a list of the defense witnesses as well as their psychiatric tests, real evidence, etc.
To be fair to the prosecution since a certain correction was made to the “Crime Victims Justice Reform Act” in 1990 the discovery process has become a two-way street and the defense was indeed required to provide the names and addresses of all people whom they planned to call as witnesses as well as their statements, experts’ reports and any real evidence they had.
However in a situation when the prosecution was not saying anything definite about the 1993 case it was impossible for the defense to know whether that issue would be raised at all, not to mention their impossibility to give names of the witnesses to be called in that case.
Remember that we are talking here not of Jim Thomas’s public promises that “everything from the prior investigation will be finally disclosed in court” but of the prosecutors’ official position who only recently called those 1993 details “irrelevant”.
On October 29, 2004 the Defense filed their Opposition to the District Attorney’s Motion (the one where they asked for discovery from the defense).
Their paper said that according to law the Defense was to turn over their discovery 30 days before trial. And since the prosecution provided part of their discovery only recently, the defense hadn’t evaluated it yet and couldn’t yet decide what witnesses to call.
How much discovery the defense had from the prosecution by then was stated in another document made by Thomas Mesereau as a result of the two parties “meeting and conferring.” This document was also made on October 29, 2004 and was called “Status Report regarding Discovery”.
The status report said that by that moment the defense had received from the prosecution 18,168 documents, out of which 13, 383 were produced in the previous three weeks. Additionally the prosecution provided over 30 audio tapes and 40 CDs/DVDs.
Approximately 9,000 of the recent portion of documents related to the 1993 case. The defense noted that the prosecution had them in its possession for over 10 years – and this was meant to convey to the judge that the prosecution had no other reason for withholding the documents other than a deliberate complication of things for the defense.
The above document also had an interesting note about the Arvizo case.
Thomas Mesereau asked the prosecution to provide them with all materials generated prior to MJ’s arrest, but the prosecution refused them saying that all police notes were destroyed and they were not obliged to provide them with reports from social agencies like the Department for Children and Family services.
The defense explained their need for those notes and papers by their expectation to see there the initial dates named by the Arvizos which were different from their later version used at the grand jury hearings.
The point the defense made about the change of those dates is so good that I couldn’t resist retyping it almost in full – nothing can show the absurdity of Arvizo’s case more than the change in those dates, which were not only arbitrarily changed but placed “molestation” after Bashir’s film, when the police, DCFS and the whole world began looking at Neverland:
“The defense pointed out that chronologies prepared by those other than the district attorneys were important because the dates regarding the alleged molestation in the original complaint were different from those in the Indictment.
The dates are different because the Doe family apparently provided different dates in their interviews before the criminal complaint was filed and then changed the dates for the grand jury proceedings.
The chronologies are crucial to the defense because they will reveal not only the inconsistent dates of the alleged molestation, but also of the inconsistent facts and dates regarding other alleged acts in the Indictment. The defense requests that the prosecution produce all such chronologies (handwritten and typed).
[…] These documents constitute exculpatory and impeachment material. They are exculpatory because they contain inconsistent statements by the Doe family (and possibly other witnesses as well) which will demonstrate that Mr. Jackson is completely innocent.
They are impeachment material because they will show that the charging allegations by the Doe family and their cohorts against Mr. Jackson in the Indictment are entirely false, fabricated or both.”
Great words but we need to go further.
On November 1, 2004 the subject of the 1993 discovery was still dragging on as the Prosecution made a supplemental reply to the Defense.
This reply came as a result of an especially heated dispute between Thomas Mesereau and Auchincloss/Sneddon during their meet-and-confer session, which was reflected in the exchange of court documents – Thomas Mesereau’s observed that Auchincloss “attempted to cross-examine him on the law” and “persisted in a rude tone of voice” and Sneddon made a reciprocal statement that “the Defendant’s request for discovery is remarkable for its audacity”.
Not going into the details of that contention, let me just say that the prosecution agreed to provide the names and addresses of expert witnesses, as well as their statements and reports.
To us it means that if Sneddon had really wanted to introduce Jordan’s description and Michael Jackson’s photos at that trial he should have provided to the defense the name of the respective expert, his statement and the forensic report. It could have been Dr. Strick from the 1993 investigation or some independent agency, but their report was to be provided by all means.
And this was to be done in addition to an expert authenticating those photos as genuine and the need for his name to be stated in Sneddon’s declaration as without it his declaration was simply null and void (for details see this post please).
And again, none of it was done by the prosecution though they agreed that the Defendant was entitled to the names of expert witnesses as well as “the results of physical and mental examinations, scientific tests, experiments, or comparisons that the prosecutor intends to introduce at trial”
Oh yes, the comparisons the prosecutor really intended to introduce at trial and not those he only said he wanted to introduce.
At the November 4, 2004 hearing the judge denied the defense OSC motion about Jim Thomas and decided that he was not an agent of the District Attorney.
The judge evidently considered the OSC defense motion inappropriate as he advised them that
- “there would be controls at trial on inappropriate questions or evidence. The Court further finds that the conduct by the District Attorney has not been excessively zealous and has not threatened the integrity of the trial proceedings”.
Well, if the judge says so…
On November 8, 2004 the discovery issue was still not resolved and there was a hearing on the Status of Discovery from both sides.
The judge ordered that the sides should provide their list of witnesses by December 6, 2004 which was to be considered the “30 days before trial” deadline specified by law for the defense. In reality it was much earlier (the trial was to begin on January 31, 2005) but the judge was evidently stepping up the pace for the defense this way.
The judge also ruled that the chronology in the Arvizo case presented by prosecution before the grand jury was discoverable (and therefore admitted), while the chronological logs of the police prior to MJ’s arrest “were not discoverable” (so were not to be admitted), and if the trial attorneys had their own notes concerning a different chronology they were not discoverable either.
All of it means that the Arvizos’ mess with their “molestation” dates was simply disregarded though it could have been a major exculpatory evidence for Michael Jackson if it had been admitted by the judge.
And they are telling us about the judge not admitting something in favor of the defense?
The rest of November was devoted to the prosecution fighting the defense subpoena for the J.C.Penny case file.
This was a case when the Arvizos were shoplifting but it was the store from which they stole that ended up paying them a settlement of $152,000 – a good example of how victims can be forced to pay extortionists simply because they are driven to a stage when all they want is some peace and the extortion nightmare to go away.
Each time someone asks why Michael Jackson paid Jordan Chandler I recall the J.C.Penny case and wonder why they are asking. If it was the Arvizos who stole and the shop still had to pay them, what more questions can be asked here?
On December 9, 2004 the judge issued a big DISCOVERY ORDER to finalize the matter of discovery once and for all.
The Court directed that the Prosecution should turn over to the defense all discovery that remained to be disclosed. All in all it was 41 groups of items listed on 6 pages, including the list of witnesses together with their statements, real evidence, photos, results of tests including polygraph examinations, etc.
The latter reminded me of Leroy Thomas who in late 90s was telling stories about Michael Jackson and a photo of a “naked boy” he was allegedly asked to destroy, but “couldn’t as it was a Polaroid picture and he couldn’t tear it up”.
At the time Leroy Thomas offered to undergo a polygraph test but failed it, so if Sneddon had really wanted to admit that photo from the 1993 investigation, Leroy Thomas was to be subpoenaed as a witness, together with his polygraph test – but none of it happened of course and at no point during the discovery process the name of Leroy Thomas ever arose.
As a result of the judge’s order the discovery matter was getting close to its conclusion, however the very next day the prosecution added a new chapter to this saga and it started all over again.
THE #1108 MOTION
On December 10, 2004 the prosecution made their #1108 motion about the so-called defendant’s prior sexual offenses.
This was a new turn to the whole affair.
For almost a year prior to that the prosecution had been claiming that the 1993 case was irrelevant, and just a month and a half before the trial they suddenly made a U-turn and crashed this issue on the heads of the defense – which naturally involved a new discovery, bringing in new witnesses and all the rest of it.
The most probable reason for this incredible behaviour was that the prosecution didn’t have any “victims” – neither twenty of them as Stacy Brown is claiming now, nor even two, because Jordan refused them and the only one they had was Jason Francia.
But by December 10th they prosecution thought of a way how to overcome that obstacle.
Though the “victims” were still missing, their “victimhood” was to be proven by the testimony of third-party witnesses. These witnesses were an odd assortment of people most of whom previously sued Michael Jackson for things like wrongful termination (the Neverland 5 group), non-payment of overtime (like the Quindoys) and the like.
The young men nominated by the prosecution for the role of “victims” were seven – Jonathan Spence, James Safechuck, Wade Robson, Brett Barnes, Macaulay Culkin, Jason Francia and Jordan Chandler, of course.
Some of them never heard those witnesses’ stories about themselves – for example, Macaulay Culkin learned about Phillipe Lemarque describing his “molestation” from the TV news, and Wade Robson also found that he had “taken showers” with MJ only from Blanca Francia and only at the trial (now he has asked Zonen for all Blanca’s revelations to fit his story with hers).
Another big abnormality of the #1108 motion was that it withheld what was supposed to be the key evidence from the 1993 investigation – Jordan Chandler’s description and MJ’s photos made as a result of Michael’s strip search.
These were suppressed by the prosecutors themselves at the pretext that the “victim” was still hesitant about his future testimony. This hesitation story was a blatant lie as by then Jordan had flatly refused them and even said he would sue them if they insisted.
However to general public the pretext seemed valid as it explained why the prosecution was introducing everything they had against Jackson except their most “damning” evidence from the Chandler case.
And NO ONE in the public and media noticed that the pretext was wrong as the other “victims” were not testifying either, but it still didn’t prevent the prosecution from bringing whatever they had about them.
All these peculiarities of the #1108 prosecution motion were thoroughly held back from the public who genuinely believed that now “all details from the 1993 investigation” would be finally disclosed.
More about that motion later – at the moment let us just look at the complications it created for the defense right on the eve of the trial.
The first thing the defense reacted with was a motion to the judge to continue trial.
The request to continue trial was made the same day as the prosecutors’ #1108 motion, on December 10, 2004 (usually the notice about making a future motion is made in advance, so the other side knows what to expect on the designated day).
The defense’s request to continue trial said:
“The District Attorney has dumped more than 14,000 pages of discovery on the defense in the last two moths and it is impossible for defense counsel to evaluate this material in time for the trial date.
The District Attorney’s witness list includes the names of witnesses from the Abdool v. Jackson civil case. Defense counsel must evaluate more than 25 bankers boxes of material related to that case in order to prepare to cross-examine these witnesses. This can not be done before January 31, 2005.
There is still a significant amount of discovery that has not been provided to defense counsel.”
The Abdool v. Jackson case was when “Neverland 5” – Kassim Abdool, Ralph Chacon, Adrian McManus, Melanie Bagnall and Sandi Domz sued Michael Jackson in 1994/95 for wrongful termination, lost to him and were sanctioned to pay $66,000 for lying during depositions and cover $1,4 mln in legal costs. By the time of the 2005 trial none of them paid those damages.
As to the #1108 motion proper the defense said:
“The defense will vigorously oppose this in a Section 402 motion. However, the defense is not in a position to oppose such evidence since we have not been provided with statements. In at least one instance, such a witness was interviewed in September or October of 2004, and we still do not have a report of such an interview, let alone the statement of the witness or any basis to know whether the witness would properly qualify under Section #1108”
So as a very minimum the defense were staggered by the mountain of new documents awaiting them and at the same time realized that they didn’t even have full statements from the new witnesses named by the prosecution. The only thing the defense had was a police summary of these statements included in the #1108 motion.
A little more than a month remained before the trial was due to begin.
A NEW RAID
On December 13, 2004 the Defense approached the judge with a Motion to compel more discovery from the prosecution and reported to him what they already had.
But the first news we get from their motion is that the prosecution raided Michael’s Neverland again:
“On Friday, December 3, 2004, Mr. Jackson’s Neverland Ranch was raided, pursuant to a search warrant. On Saturday, December 4, 2004, the Prosecution and the Santa Barbara County Sheriffs took a DNA sample from Mr. Jackson.
Note 1: The raid caused tremendous disruption in the Defense team, compelling several members of the Defense team, including Mr. Mesereau and Mr. Sanger, to attend to the Raid, rather than focus on the December 6, 2004 discovery compliance.”
Indeed, Thomas Mesereau had to take a helicopter to fly from Los Angeles to Neverland and Michael Jackson had to leave his home as this was the fifth sudden police raid he had experienced since 1993 and this was evidently too much for him.
The idea of the raid was to get his saliva for the DNA (it was taken when MJ returned to the ranch) and to take measurements of Michael’s bedroom to make an animated version of it. The defense motion addressed the prosecutors:
“…two days ago you had potential experts in animation and re-creation visit Neverland Ranch. You did it under the “ruse” that these experts were simply examining security systems and telephone systems at the Ranch. When these experts proceeded to inform the defense of their expertise and methods, Sheriff Klapakis told the to stop communicating with the defense. These “experts” proceed to take all of the building blueprints from the Ranch pursuant to a search warrant”.
But even more than this animation thing, we are interested in the news about Michael’s DNA. Remember February 2004 when Jim Thomas spoke to the press about the DNA tests of MJ’s mattress and beddings and that “they expected the results in two to three weeks”?
My understanding of it is that in February that year the prosecution already had samples of Michael’s DNA and that the raid of Michael’s home almost a year later, right on the eve of the trial, was made under a false pretext and was more like an intimidation tool than the real need to obtain a DNA sample from him.
In one of his later answers Sneddon replied that the first time they took DNA in February 2004 they labelled the sample Male #1 and determined it to be Michael Jackson’s only due to that saliva sample taken in December 2004.
But his explanation doesn’t sound too believable to me – almost a year passed since that mattress experiment and I can’t believe that the prosecution waited that long for making their final determination for what was supposed to be their key evidence in that case. By the way the results were negative because they found MJ’s DNA but didn’t find any of the Arvizos.
So a much more probable variant is that the prosecution had MJ’s DNA from their earlier 1993 investigation and arranged that December 2004 raid under a decorative pretext only.
But let’s get back to our discovery subject and see what the defense and prosecution had exchanged by then. The defense motion said:
“Despite the disruption, on Monday, December 6, 2004, the Defense provided the Prosecution with nearly 30,000 pages of documents, a video tape, a CD containing photos and a witness list containing 423 names and addresses.
On the same date, the Prosecution provided the Defense with approximately 2000 pages of documents, 16 CDs and/or DVDs and a witness list. The witness list, however, is defective in many respects, as discussed below.
The prosecution’s list was indeed defective as it didn’t provide the addresses of their witnesses, so the defense had to trace those people themselves, some names were misspelt and kept the defense guessing, and some names were not provided at all as only the companies where they were working were mentioned.
The witnesses for both sides were listed in the two attachments dated December 7, 2004.
The names that caught my eye in the prosecution list were all five Chandlers (Evan, June, Raymond, Natalie and even Jordan though he was absolutely not available to them), and four Quidoys – Mark, his wife Faye (Ofelia), Roy and Nick Quindoy.
And the four Quindoys are important as even if Mark Quindoy did indeed die prior to the trial (allegedly on November 4, 2004) there was absolutely no need for Sneddon to include a dead man and his statement in his witness list as he could replace it with a statement from his wife Faye (Ofelia) or whatever other Quindoys the prosecutors were planning to call.
As you know, several months later Sneddon removed Mark Quindoy from his witnesses, same as Orietta Murdock, but the damage was already done as their horror stories about Michael are still kept in the #1108 motion, and this was probably the whole idea of Sneddon’s innovative project.
The names that caught my attention in the defense list were Omar Bhatti, John Branca, Aaron, Nick and Jane Carter, Ray Chandler subpoenaed by the defense as a custodian for those “damning documents” he allegedly had (Ray Chandler successfully fought that subpoena), Karen Faye, Geraldine Hughes, Stan Katz, Larry King (who was ready to testify that Larry Feldman told him that Janet Arvizo wanted only money, but whose testimony was not admitted by the judge), Arnold Klein, Frank Cascio and others.
This post has already become too long, but I still need to complete it by mentioning several more motions made by both sides before the end of 2004 – especially since the most interesting news is yet to come.
On December 13, 2004 the Defense made a request called “Motion to dismiss for Vindictive Prosecution and Outrageous Government Conduct.”
In their motion the defense called the way Sneddon and his people were handling the MJ case vindictive prosecution. Their motion cited absolutely true facts:
“There has been more investigation on this case than in capital murder cases or complex white collar prosecutions. The use of more than 100 search warrants, by itself, demonstrates that Mr. Jackson is being treated differently than any other person accused in this type of case”
“The conduct of the prosecution and other agents of law enforcement in the investigation of this case amounts to outrageous government conduct. The District Attorney has demonstrated a blatant disregard for Defendant’s rights to effective assistance of counsel, due process, a fair trial and right against self-incrimination.
The prosecution has invaded the attorney-client relationship, undermined the work product doctrine and has so contaminated the prosecution of this case that it is not possible to fashion any remedies other than dismissal.”
This motion from the defense was accompanied by their other motion also made on December 13, 2004 which suggested an alternative – it asked either for the dismissal of vindictive prosecution or CONTINUANCE OF THE TRIAL.
The defense statements made in this motion are even more impressive:
“The sheer number of search warrants is outrageous for a case of this sort. To date, more than 100 search warrants have been executed. The obvious explanation is that the prosecutor is going after a celebrity. The number of search warrants has exceeded those found in death penalty cases and big white collar prosecutions. While there may not be a per se limit on the number of search warrants that can be served in a particular case, or an absolute cutoff based on the proximity to trial in which a search warrant may be served, in this particular case they have exceeded any reasonable limitations.
This is not espionage, terrorism, not a complicated white collar case. It is not a homicide or death penalty case. Yet, the government here has expended incredible resources and, most importantly to this motion, has repeatedly invaded Mr. Jackson’s right to be secure in his home. There was a search warrant in 1993 executed by the LA Police Department, there was a video taped inspection of his home later that year by Mr. Sneddon himself along with the Los Angeles District Attorney, Santa Barbara Sheriff’s Department and the LA Police Department.
There was another warrant issued in 1994 to come onto the premises and conduct an intimate inspection and photographing of Mr. Jackson’s body.
On November 18, 2003, Mr. Sneddon himself, other members of his office and the Santa Barbara Sheriff’s Department conducted a raid on Mr. Jackson’s home that started in the early morning and lasted almost to midnight. At the same time, Mr. Jackson’s lawyer’s investigator’s office was raided. Since that time, the home and office of Mr. Jackson’s personal assistant was raided.
Now, on December 3, 2004, two months before trial, Mr. Sneddon and the Santa Barbara Sheriff conduct another early morning raid with no purpose other than to shock and intimidate Mr. Jackson and to disorient his legal team. The materials sought were not critical to the prosecution of the case and could just as well be obtained in an orderly fashion by noticed motion. Furthermore, the warrant for the search of Mr. Jackson’s home was issued on November 24, 2004, yet the prosecution chose to wait until December 3, 2004, to execute it. This date was not coincidentally the last business day before the discovery deadline.
Defense counsel was required to provide its discovery and witness list. The prosecution well knew it would be an extremely busy time for the defense. They also knew this would be an optimal time to shock and demoralize Mr. Jackson and his family.”
The motion also said:
“Saliva is typically obtained by noticed motion to defense counsel. There is absolutely no requirement for a search warrant to obtain saliva samples. Mr. Jackson surrendered more than one year ago and there was ample time for the District Attorney to make arrangements to obtain a saliva sample prior to the eve of the discovery cutoff and without conducting a shocking raid on his home on a Friday morning. […]
To seek and execute a search warrant under these circumstances, in the final moments before the discovery deadline, is truly outrageous conduct. We can only take this as an effort to shock and intimidate Mr. Jackson and his household and to force the defense to waste valuable days on the even of the discovery cutoff. […]
The Court made it clear that at some point the investigation had to end and trial preparation had to begin. Now, on the eve of trial, the prosecution has executed another search warrant at Mr. Jackson’s home that is not based on any new evidence of criminal activity and that seeks evidence that could have been obtained more than one year ago, during the November 18, 2003 search of Mr. Jackson’s home.[…]
At the September 16, 2004 hearing, Mr. Sneddon demonstrated an openly defiant attitude towards the Court’s warning that investigation through the search warrant process must end at some point.
Defense counsel is hesitant to request a continuance. First, the undersigned listened when the Court said that it did not want to hear discussion of a continuance. The Court has made it clear that it is extremely set on starting trial on January 31, 2005.”
“The District Attorney has presented the defense with more than 15,000 pages of discovery in the last two months. These materials include a large volume of forensic reports and documents related to the 1993-1994 investigation of Mr. Jackson. Much of this material is not new and could have been provided to defense counsel months ago.
The receipt of this large amount of discovery at such a late date made complying with the Court’s reciprocal discovery deadline almost impossible to begin with, and the execution of the search warrant exacerbated the problem.
The Court, at the hearing held on September 16, 2004, expressed its concern that the ongoing issuance of search warrants would result in the “dumping of huge quantities of material” on the defense at the last minute as we approach trial. This is precisely what has occurred.”
In the conclusion the defense asked either to dismiss the case (which was unrealistic) or continue the trial (perfectly realistic had the judge listened to them):
For the reasons stated above, Mr. Jackson requests that the Court dismiss the case, suppress the materials seized, or, in the alternative, that the Court continue the date of trial.
December 10, 2004
Wow, I don’t even know what to add to the above. Michael Jackson must have taken that fifth raid so hard that you can even feel how enraged Robert Sanger of the defense is with all these unjustified and malicious Sneddon’s tricks.
The next few days saw the exchange of fire between the two parties.
On December 15 the prosecution made two motions in opposition to the defense.
On December 16 the defense replied to the prosecution’s opposition.
On December 17, 2004 the defense made a “Supplemental Brief in Support of Motion to Continue Trial” where they asked for the continuance of the trial by 3 months. It is from this paper that we learn even new details which have a direct connection to the prosecution’s #1108 motion and the discovery from 1993.
Robert Sanger summed up the previous prosecution’s discovery games as well as their very latest tricks. The latest of it was that despite the discovery from 1993 being 10 years old, Tom Sneddon told him that much of that material was still “raw” and the reports provided were actually “drafts of reports” and not the reports proper.
Below is Sanger’s declaration about it.
I, Robert M. Sanger, declare as follows:
- The District Attorney did not disclose the specific Section 1108 allegations until December 10, 2004, when Mr. Jackson was served with the prosecution’s 1108 motion. The prosecution’s defective witness list, served on defense counsel on December 6, 2004, included witnesses who were part of the 1993-1994 investigation, however defense counsel had not been provided with reports for all of those witnesses as of the day the witness list was served.
- The prosecution maintained the position that they had not determined whether or not they intended to introduce any evidence from the 1993-1994 investigation of Mr. Jackson until October of 2004. In October, Mr. Jackson was provided with raw files from the 1993-1994 investigation, without indicating what evidence, if any, the prosecution intended to introduce at trial. The materials provided amounted to at least 9,000 pages.
- During a telephonic conversation with Tom Sneddon yesterday, he stated that many of the 1993-1994 “reports” are actually drafts of reports.
- Defense counsel has an obligation to defend against each allegation as if it was a separate case. Mr. Jackson is entitled to put on a defense case for each allegation. Given the late production of the 1993-1994 materials, the fact that many of the reports from that time period are in draft form, the late identification of Section 1108 witnesses, and the fact that Section 1108 witness reports have been provided as recently as December 13, 2004, a 3 month continuance is necessary so that Mr. Jackson can defend against the alleged evidence.
Look, if for ten years since 1993 the prosecution still couldn’t make proper reports and their evidence against Jackson was still “raw” what are we talking about here at all?
Another of the defense papers dated the same December 17, 2004 showed the difficulties the prosecution were artificially creating for the defense:
The prosecution does not dispute that their witness list was defective. [..] This is inexcusable and did, in fact, waste considerable time of several lawyers and paralegals on the defense team over a period of days.[..]
It was part of a generally sloppy list that left the defense guessing as to almost one-third of the list which was diminished to a couple of entries after a few days of hard work.
Instead of apologizing and taking responsibility, the prosecutors use sarcasm and misdirection to try to convince the Court that the list was not a mess. For instance, they smugly say that “DuRoss O’Brien” is a forensic accountant, as if it is our fault that we didn’t know that. They neglect to tell the Court that they misspelled his name. [..]
It is too late for that sort of game on the part of the prosecution.
And this is what the paper said on the most intriguing part of the 1993-1994 discovery story:
The prosecution also casts the production of the voluminous documents relating to the 1993-1994 investigation in a false light.
They say that the defense requested these materials as if that excuses their failure to provide them at all for months during the pendency of the case.
They say they did not intend to call witnesses in these reports but they now disclose them on the witness list.
This is incredible. How could they not have thought about this issue until October of 2004? However, even if this is true, the fact remains that Mr. Sneddon has had over 11 years with this material and the defense is now given 3 months before trial, and less, before having to respond to a comprehensive motion under Section 1108 filed by the prosecution.
Now wait a minute please.
Do we understand it right that the prosecution shifted all the blame to the defense for the volume of all that 1993 discovery, and said that since the defense asked for it themselves they shouldn’t complain now and that they (the prosecutors) did not even intend to call those witnesses? And that until October 2004 they had not even thought about the 1993 issue? Despite their spokesman Jim Thomas constantly rubbing in the idea that they were looking forward to disclosing details from the previous case?
This sounded too incredible, so I checked up the prosecutors’ answer to the defense made on December 15, 2004 and this is what I found in Sneddon’s reply regarding the 1993-1994 investigation material:
“On September 17, 2004, after the defense requested discovery of the 1993-1994 investigation during a proceeding in open court, the Court asked the People whether such documents were available to them.
The People responded the next day that they had not yet determined whether any of the witnesses involved in that earlier investigation, or materials gathered in the course of that investigation would be used in the instant case.
Nevertheless, we agreed without reservation to obtain and provide the information.”
Wow, so Sneddon directly admits here that initially the prosecution did not intend to raise the previous investigation at all!
But how about his lamentations about those five boxes not reaching the court in 1993, I wonder?
So it was absolutely not the judge who was an obstacle to the prosecution, but the prosecutors themselves who didn’t want to introduce that evidence at the Arvizo trial!
Okay, I understand that until October Sneddon didn’t know whether Jordan Chandler would testify or not. But he had those photos and description, and claimed that they were a “match” and if that had been true, he could have at least put that evidence on their discovery list – together with all those reports from third party witnesses about their other so-called “victims”.
And it didn’t matter whether Jordan testified or not – his case was no different from others as they were not testifying either. However the third party evidence about them was introduced by Sneddon, while what was supposed to be direct evidence about Jordan Chandler was not.
Doesn’t it tell you all you wanted to know about that alleged “match”? And about the total lack of anything to support those crazy stories in the 1993 case? And about the fact that all discovery from the 90s was actually exculpatory evidence for Michael and this is why Sneddon was so terribly unwilling to introduce it?
What else can be added to it?
Only the fact that on December 20, 2004 the judge denied the motion to continue the trial. Now about a month was left for the defense to struggle with the testimonies of those bodyguards and maids under the 1108 motion which were dumped on the defense attorneys’ heads at the last minute indeed.
Introduction to this series: Did Sneddon REALLY want to introduce Michael Jackson’s photos at the 2005 trial?