1 A. That’s correct.
2 Q. She did not tell Frank that she was going to
3 take her story to the press, right?
4 A. That’s correct.
5 Q. And that wouldn’t have been a crime either,
6 would it have?
7 A. It would not have been.
8 Q. The only crime that you anticipated would be
9 her telling Frank, “I would like some money or I’m
10 going to make a false claim against your client,
11 Michael Jackson”?
12 A. When you say I “anticipated,” I told you I
13 didn’t listen to it until after it was seized out of
14 Mr. Miller’s office.
15 Q. Did Mr. Miller make the decision on his own
16 to tape-record that conversation?
17 A. That’s what he told me.
18 Q. So he didn’t consult with you in advance?
19 A. He did not.
20 Q. Did he tell you that that was a compilation
21 of a number of different phone calls?
22 A. He did not.
23 Q. Did you hear breaks in that recording?
24 A. I didn’t notice any breaks in that
25 recording. The only breaks that I noticed were in
26 the ones that we talked about last week, the one
27 that I think was on February 16th.
28 Q. Did you ask Brad Miller if he made multiple 11434
1 tape-recordings of conversations?
2 A. I asked if there were any others.
3 Q. What did he tell you?
4 A. That there were not.
5 Q. Did you ask him if he altered that tape in
6 any way?
7 A. I didn’t ask him that. I asked him
8 specifically as to the February 16th tape.
9 Q. Did he tell you that that tape was an
10 accurate recording of a single conversation?
11 A. He said that they had sat down in the
12 location of the apartment and had recorded it all at
13 one sitting.
14 Q. Did he tell you who was present at the time
15 of that recording?
16 A. I believe that he did. I believe he told me
17 that it was the family, and I think at one point the
18 boyfriend was there as well.
19 Q. Did he tell you that there was nothing said
20 in the course of that conversation that would cause
21 you concern about Janet Arvizo?
22 A. I’m sorry, what?
23 Q. Did he tell you that there was nothing said
24 in the course of that conversation that would cause
25 you concern about Janet Arvizo?
26 A. No, on the contrary. He told me that he
27 thought that they were telling the truth and that
28 Michael Jackson hadn’t done anything -- 11435
1 Q. I’m sorry?
2 A. -- to the kids.
3 Q. Did Brad Miller tell you that, in the course
4 of the telephone conversation he monitored, that
5 there was nothing Janet Arvizo said that would cause
6 him concern about her taking any kind of legal
7 action against Michael Jackson?
8 A. We’re talking about the Frank and Janet, not
9 the other --
10 Q. The telephone conversation.
11 A. Okay. There’s two tapes. One tape is
12 February 16th with the family. The other tape that
13 you found in the office was a tape-recording of
14 Frank’s call to Janet.
15 Q. Mr. Geragos, I’m asking about the telephone
16 conversations that were surreptitiously taped.
17 A. Frank’s call to Janet.
18 Q. Yeah. Because Brad Miller thought she was
19 going to shake him down for money, right?
20 A. That’s correct.
21 Q. That phone call was placed to Janet Arvizo,
22 correct?
23 A. That’s correct.
24 Q. Now, why exactly was Brad Miller placing a
25 telephone call to Janet Arvizo wherein he
26 anticipated she would then hit him up for money?
27 A. I don’t know why he was -- why -- I don’t
28 think Brad placed the phone call. I think that 11436
1 Frank placed the phone call. It sounds like it’s
2 his voice.
3 Q. Well, but they’re in the same room, right?
4 A. I don’t believe that they were. I think
5 that was a three-way call.
6 Q. Well, all right. But somebody set that up,
7 right?
8 A. I don’t know. You’d have to ask him. I
9 believe that the -- that Frank said he was going to
10 call her. Brad told me that he was going to tape
11 it. I don’t think that they did it in the same
12 room.
13 Q. And Brad and Frank, Brad Miller and Frank
14 Cascio, then coordinated with each other to be able
15 to have this conference call tape-recorded without
16 Janet Arvizo’s knowledge; is that right?
17 A. I would just be assuming that. I don’t
18 know. I didn’t ask that question.
19 Q. All right. Now, did you ask Brad Miller if
20 he had a conversation with Frank Cascio in advance
21 of that, of that call, as to what Frank Cascio
22 should say to Janet?
23 A. No.
24 Q. Did he offer to you the fact that there was
25 a conversation between he and Mr. Cascio about what
26 would be said to Janet Arvizo?
27 A. Not that I remember, no.
28 Q. Did he tell you? 11437
1 A. I just assumed it, because it was recorded.
2 Q. Did he tell you in advance that they were
3 going to set up that telephone call, “he” being Mr.
4 Miller? Did Mr. Miller tell you in advance?
5 A. Mr. Miller didn’t tell me about it until you
6 seized -- or “you” being the progression -- seized
7 it from the office, and that’s when I asked. That
8 would have been sometime after November of 2003.
9 Q. Did Brad Miller write any reports to you
10 about his surveillance or investigation of the
11 Arvizo family?
12 MR. MESEREAU: Objection. Vague as to time;
13 relevance; beyond the scope.
14 MR. ZONEN: I didn’t hear the ruling, I’m
15 sorry.
16 THE COURT: It hasn’t come yet.
17 MR. ZONEN: Ahh. Maybe that’s why.
18 THE COURT: The objection is overruled.
19 THE WITNESS: Yes.
20 Q. BY MR. ZONEN: Did he write those reports to
21 you during the months of February and March of 2003?
22 A. No.
23 Q. Did he write them after March of 2003?
24 A. Yes.
25 MR. MESEREAU: Objection. Relevance; beyond
26 the scope.
27 THE COURT: I’ll leave the answer in. Next
28 question. 11438
1 Q. BY MR. ZONEN: When did you receive a report
2 from Brad Miller that specifically dealt with that
3 telephone conversation between Janet and Frank?
4 A. I don’t think that I did.
5 Q. Did he never -- did he never write a report
6 about that conversation?
7 A. I don’t believe that he did.
8 Q. Did you ask him to write a report about that
9 conversation?
10 A. No.
11 Q. Why not?
12 A. Why?
13 Q. Did you think it was illegal?
14 A. At the time I felt, when I talked to him,
15 that he articulated to me at least a reasonable
16 expectation that a crime was going to be committed,
17 so, no, I did not think this was illegal.
18 Q. How many reports did Brad Miller write to
19 you about his investigation of the Arvizo family
20 prior to the end of April 2003?
21 A. I couldn’t tell you.
22 Q. Where are those reports today?
23 A. If they exist, I would have turned them
24 over.
25 Q. You don’t have them in your possession
26 anymore?
27 A. I don’t believe so.
28 Q. What do you mean by “if they exist”? Is it 11439
1 possible you destroyed those reports?
2 A. No, I’m saying if he made them.
3 Q. You don’t --
4 A. I wouldn’t have destroyed them. But if he
5 had made a report, I would have turned them over.
6 Q. You believe that during a three-month
7 investigation, he might not have written any reports
8 at all?
9 A. No, the -- the period of time for the
10 investigation would have been sometime after
11 February 7th through March, which would have, as I
12 indicated before, been about 35 to 40 days. I
13 believe that what he was doing would orally update
14 me on what was happening.
15 Q. At any time -- at any time, Mr. Geragos, at
16 any time up through the end of June of 2003, did
17 Bradley Miller write any reports of his activities
18 involving the Arvizo family?
19 MR. MESEREAU: Objection; relevance.
20 Q. BY MR. ZONEN: And submit those reports to
21 you?
22 MR. MESEREAU: Objection. Relevance;
23 foundation; beyond the scope.
24 THE COURT: Overruled.
25 THE WITNESS: I couldn’t tell you as I sit
26 here. I know that I talked to him about it, and I
27 don’t know if he wrote up a formal report.
28 Q. BY MR. ZONEN: You don’t have a clear 11440
1 recollection at this time of receiving any reports
2 from Brad Miller prior to the conclusion of 2003?
3 A. Not as I sit here. If you’ve got one, you
4 can show it to me.
5 Q. Did you ever take possession of any of the
6 surveillance tapes from Frank -- excuse me, from
7 Brad Miller? Did he ever give you any of the
8 surveillance tapes?
9 A. No. Are we talking the same tapes you were
10 asking me about?
11 Q. The surveillance tapes from the Arvizo
12 family.
13 A. I was told those were seized through the
14 search warrant, and I got those through discovery.
15 Q. Did Brad Miller ever give you copies of
16 those surveillance tapes?
17 A. No.
18 Q. Did Brad Miller ever furnish you written
19 reports of the surveillance activities that he was
20 conducting?
21 MR. MESEREAU: Objection. Relevance;
22 foundation; beyond the scope.
23 THE COURT: I think it’s been asked and
24 answered. I think he said he doesn’t know.
25 Q. BY MR. ZONEN: Did Brad Miller ever send you
26 e-mails that detailed his activities, specifically
27 with regards to the surveillances?
28 A. He might have. 11441
1 Q. All right. Now, where are those e-mails?
2 A. If they -- as I indicated last week, if I
3 saved them, I probably would have saved them into
4 the -- at the risk of being mocked, into my Word
5 Perfect file.
6 Q. I promise I won’t do that today.
7 A. Thank you.
8 Q. Do you still have that in your office?
9 A. My Word Perfect file?
10 Q. Yes.
11 A. Yes.
12 Q. Did you check that file over the last week
13 since you were here last Friday?
14 A. I checked on the date of the retainer after
15 you had asked me.
16 Q. Did you check to see if you still have notes
17 in any capacity, either by way of e-mail or
18 handwritten notes or typed notes, from Brad Miller
19 still in your file?
20 A. I didn’t check on notes. I checked on --
21 because you were asking me about whether it was late
22 January or early February. I checked on when the
23 retainer agreement was, and it looked to me to be
24 February 4th. And that’s the thing that I was
25 focused on checking on.
26 Q. Did you check in your Word Perfect, Series
27 11 --
28 A. 11. 11442
1 Q. -- file --
2 A. Yes.
3 Q. -- on Mr. Jackson, the Jackson file, on
4 whether or not there were e-mails from Brad Miller?
5 A. I did not.
6 Q. Did you check -- over this last week, did
7 you check to see if there were e-mails from any of
8 the people we’ve previously discussed, Mr. Schaffel,
9 Mr. Weizner, Mr. Konitzer, Amen or Cascio?
10 A. No. Like you, I’ve been in trial for the
11 last week.
12 THE COURT: All right. Let’s take a break.
13 (Recess taken.)
14 THE COURT: Counsel?
15 MR. ZONEN: Your Honor, I have concluded my
16 cross-examination.
17 BAILIFF CORTEZ: Microphone’s off, sir.
18 MR. ZONEN: You’d think after three months I
19 would have learned this.
20 I’ve concluded my cross-examination. I had
21 indicated before that we needed a conference prior
22 to that, and I think we may have resolved that
23 issue.
24 THE COURT: Okay.
25 MR. ZONEN: Don’t need to do that.
26 I will require an additional conference, but
27 it does not have to be until the conclusion of
28 redirect examination. 11443
1 And before the witness is excused, I would
2 like to have a conference. It doesn’t need to be in
3 the presence of the jury.
4 THE COURT: All right.
5 MR. MESEREAU: Thank you, Your Honor.
6
7 REDIRECT EXAMINATION
8 BY MR. MESEREAU:
9 Q. Mr. Geragos, during February and March of
10 2003, did you know whether or not Janet Arvizo ever
11 told anyone she wanted to go to Brazil with Michael
12 Jackson?
13 MR. ZONEN: Objection. Lack of foundation;
14 lack of personal knowledge.
15 THE COURT: Sustained.
16 Q. BY MR. MESEREAU: Mr. Geragos, during
17 February or March of 2003, did you have any personal
18 knowledge of whether or not Janet Arvizo ever told
19 anyone she wanted to go to Brazil with Michael
20 Jackson?
21 MR. ZONEN: Personal knowledge being limited
22 to conversations with Janet Arvizo?
23 THE COURT: Just a moment.
24 Sustained.
25 Q. BY MR. MESEREAU: During February or March
26 of 2003, did you have any personal knowledge of
27 whether or not Janet Arvizo wanted Michael Jackson
28 to get her a new home? 11444
1 MR. ZONEN: I’m going to object to “personal
2 knowledge,” and vague.
3 BAILIFF CORTEZ: Your microphone’s off.
4 THE COURT: Sustained.
5 Q. BY MR. MESEREAU: Mr. Geragos, during
6 February and March of 2003, was it your
7 understanding that Janet Arvizo wanted possessions
8 moved out of her apartment in East L.A., wanted
9 those possessions stored, and wanted someone else to
10 pay for it?
11 MR. ZONEN: I’ll object as to lack of
12 foundation and speculation.
13 THE COURT: And compound.
14 MR. ZONEN: And compound.
15 THE COURT: Sustained.
16 Q. BY MR. MESEREAU: Mr. Geragos, during
17 February and March of 2003, did you have any
18 personal knowledge of whether Janet Arvizo wanted to
19 move out of her apartment on Soto Street in East Los
20 Angeles?
21 MR. ZONEN: “Yes” or “no.” I’ll object
22 beyond “yes” or “no.”
23 THE COURT: You may answer that “yes” or
24 “no.”
25 THE WITNESS: Yes.
26 Q. BY MR. MESEREAU: And what was your
27 knowledge based upon?
28 A. Based on my conversation with Brad Miller. 11445
1 Q. During February and March of 2003, did you
2 have any personal knowledge of whether or not Janet
3 Arvizo wanted someone to retrieve her possessions
4 from the apartment on Soto Street?
5 A. From Brad Miller, I --
6 MR. ZONEN: I’ll object, Your Honor, as a
7 lack of foundation.
8 THE COURT: I’ll strike the answer. But you
9 are to answer that question “yes” or “no.” It’s a
10 question about -- do you want it read back?
11 THE WITNESS: “Yes” was the answer to the
12 question.
13 Q. BY MR. MESEREAU: And what was your personal
14 knowledge based upon?
15 A. Conversations with Brad Miller.
16 Q. And what was your personal knowledge?
17 MR. ZONEN: I’ll object as hearsay.
18 THE COURT: Overruled.
19 THE WITNESS: That she wanted the -- she
20 wanted to move in with her boyfriend, she wanted
21 those items stored, and that she arranged with Brad
22 to do that.
23 MR. ZONEN: I’m going to move to strike as
24 hearsay.
25 MR. MESEREAU: It was his personal
26 knowledge, Your Honor.
27 THE COURT: Well --
28 MR. ZONEN: If it’s for the truth of the 11446
1 matter --
2 THE COURT: Just a moment. Just a moment.
3 This is another one of those situations
4 where that is what he testified to under your
5 cross-examination. The objection is overruled.
6 Next question.
7 Q. BY MR. MESEREAU: Mr. Geragos, during
8 February and March of 2003, did you have any
9 personal knowledge of whether Janet Arvizo wanted
10 the storage costs for storing her possessions paid
11 for by someone else?
12 A. Yes.
13 Q. And what was your personal knowledge based
14 upon?
15 A. Conversations with Brad Miller.
16 Q. And what was your personal knowledge about
17 that subject?
18 MR. ZONEN: Objection; hearsay.
19 THE COURT: Overruled.
20 You may answer.
21 THE WITNESS: Precisely that. That she
22 wanted the items stored there and she wanted
23 somebody else to pay for them.
24 Q. BY MR MESEREAU: During February and March
25 of 2003, did you have any personal knowledge about
26 whether or not Janet Arvizo was planning to go to
27 Brazil with Michael Jackson?
28 A. If I did, it would be the same answer I gave 11447
1 to Mr. Zonen, that the conversations would have been
2 either through Brad or through Dickerman’s
3 conversations, which would have stretched into April
4 and May.
5 Q. During February and March of 2003, did you
6 have any personal knowledge of whether or not Janet
7 Arvizo changed her mind about Brazil when she
8 decided Michael Jackson was not going with her?
9 A. I don’t think that that was in February or
10 March of 2003 that I heard that.
11 Q. During February and March of 2003, did you
12 know whether or not Janet Arvizo was using the Soto
13 Street address in East Los Angeles to defraud
14 welfare authorities?
15 MR. ZONEN: Objection. Exceeds the scope of
16 the cross-examination. Lack of foundation. Also
17 legally speculative.
18 THE COURT: The objection is sustained. It’s
19 argumentative.
20 Q. BY MR. MESEREAU: During February and March
21 of 2003, Mr. Geragos, did you have any personal
22 knowledge of what purpose Janet Arvizo had in
23 keeping that Soto Street address?
24 MR. ZONEN: Objection. Speculative; lack of
25 foundation; and irrelevant.
26 THE COURT: All right. You may answer that
27 “yes” or “no.” I’ll overrule the objection.
28 THE WITNESS: Can I answer it “I don’t know”? 11448
1 THE COURT: Yes. That’s an option.
2 THE WITNESS: Okay. I don’t know.
3 Q. BY MR. MESEREAU: During February and March
4 of 2003, Mr. Geragos, did you have any personal
5 knowledge of whether or not Janet Arvizo arranged to
6 have someone else pay the rent at Soto Street?
7 A. Yes.
8 Q. And what was your personal knowledge based
9 upon?
10 A. Conversations with Brad.
11 Q. And what was your knowledge about that?
12 A. Brad said that she wanted the rent paid and
13 I believe at some point produced some document from
14 the landlord, or something like that, that I saw
15 later on after February or March.
16 Q. And was it your personal knowledge in
17 February and March of 2003 that someone else
18 actually paid Janet Arvizo’s rent for the Soto
19 Street address?
20 A. I was told that.
21 Q. By who?
22 A. Brad.
23 Q. And what were you told?
24 A. That he had paid it.
25 Q. Did you learn how many months he had paid
26 Janet Arvizo’s rent at Soto Street?
27 A. I think he told me two.
28 Q. Did you ever learn for how many months Brad 11449
1 Miller paid Janet Arvizo’s storage costs?
2 A. Only through Mr. Zonen’s questioning.
3 Q. Okay. You didn’t know --
4 A. I didn’t know at the time. I think I had
5 assumed it was from the time that the storage -- or
6 the items had gone into storage to the time that I
7 was dealing with Dickerman, which would have been, I
8 don’t know, 45 or 60 days, something like that.
9 Q. Now, during February and March of 2003, was
10 it your understanding that Janet was spending most
11 of her time living at Jay Jackson’s apartment?
12 MR. ZONEN: I’ll object. Lack of
13 foundation.
14 THE COURT: Overruled.
15 You may answer.
16 THE WITNESS: I knew she was -- I believe
17 she was there on February 16th, because that was
18 when that tape-recording was made with her and the
19 family and I believe with her then boyfriend. And I
20 know that Brad told me that they were spending time
21 there; that they had moved in there.
22 So I don’t know that I can tell you back in
23 February or March exactly which days they were there
24 off the top of my head, but I know that I was aware
25 of the fact that they were there.
26 Q. BY MR. MESEREAU: Now, in cross-examination,
27 you stated words to the effect that you wanted a
28 videotape of the movement of Janet Arvizo’s 11450
1 possessions from the Soto Street address, right?
2 A. I specifically have a memory of telling
3 Brad, “If you’re going to do that, you better
4 videotape it, so that nobody’s later going to accuse
5 you of taking some of the possessions.”
6 Q. And was it your understanding in February
7 and March of 2003 that, in fact, the move was
8 videotaped by Mr. Miller?
9 A. He told me that was -- something to the
10 effect that that was a good idea. And I assumed he
11 did it.
12 Q. Okay. Now, in February and March of 2003,
13 were you aware of any effort by Mr. Miller to hide
14 from anybody where those possessions were stored?
15 A. On the contrary. I think he wanted to turn
16 it over and get off the hook for paying for them.
17 Q. And to your knowledge, in February, March of
18 2003, was the storage locker in the name of “Brad
19 Miller, Licensed Private Investigator”?
20 A. I believe that it was.
21 Q. Did you know, in February and March of 2003,
22 whether anyone else’s possessions, separate and
23 apart from Janet Arvizo, were in that locker?
24 A. No, not back in February, March of 2003.
25 Q. Okay. Now, the prosecutor asked you
26 questions about whether or not a private citizen has
27 a right to record a telephone conversation if they
28 think a crime is going to be committed, right? 11451
1 A. That’s correct.
2 Q. And in February and March of 2003, what was
3 your knowledge about the right of a private citizen
4 to record a conversation if they think a crime is
5 going to be committed?
6 A. My knowledge of the Penal Code has always
7 been that there is a code section in the Penal Code
8 that allows a private citizen to do that if there
9 are certain enumerated crimes that you expect to
10 occur, and that you’re gathering evidence.
11 Q. And one of those crimes is extortion,
12 correct?
13 A. That’s correct.
14 Q. If a private citizen reasonably believes
15 someone might be attempting to commit extortion,
16 they can, in fact, lawfully record a phone
17 conversation without the other party’s consent,
18 right?
19 A. That’s my understanding of the law. And I
20 believe that there’s an addition to the code section
21 that there is a specific case, although I don’t have
22 access to Lexis right now - I do use Lexis, not West
23 Law - and I would assume that I could find that case
24 that also has interpreted that code section the same
25 way.
26 Q. Now, you indicated that when you first were
27 retained by Mr. Jackson, you did a quick search and
28 learned about the J.C. Penney case filed by Janet 11452
1 Arvizo and her children, correct?
2 A. Correct.
3 Q. Did you know at that point in time that
4 Janet Arvizo was arrested that day?
5 MR. ZONEN: Objection; beyond the scope.
6 THE COURT: Overruled.
7 You may answer.
8 THE WITNESS: I believe if it wasn’t that
9 day, it was very shortly thereafter.
10 Q. BY MR. MESEREAU: During February and March
11 of 2003, Mr. Geragos, did you think or reasonably
12 suspect that the Arvizos might attempt to extort
13 Michael Jackson?
14 A. That was exactly what my concern was.
15 Q. Did your knowledge of the J.C. Penney case
16 cause you concern in that regard?
17 A. Combined with the fact that there had been
18 an arrest, I thought that the fact that the civil
19 lawsuit was being used to blunt the criminal case is
20 what gave me great pause.
21 Q. What do you mean by that?
22 A. The civil case appeared, at least, to be an
23 outgrowth of a criminal incident, and I just had
24 grave concerns about that.
25 Q. Are you suggesting that Miss Arvizo used a
26 civil case to nullify her arrest?
27 A. That thought had crossed my mind.
28 Q. Have you seen that happen before? 11453
1 A. Yes.
2 Q. Did you ever, in February and March of 2003,
3 represent Marc Schaffel?
4 A. Not that I’m aware of. I don’t think I ever
5 represented Marc Schaffel.
6 Q. In February and March of 2003, did you
7 represent Dieter Weizner?
8 A. No.
9 Q. In February and March --
10 A. No.
11 Q. In February and March of 2003, did you
12 represent Ron Konitzer?
13 A. No.
14 Q. In February and March of 2003, did you
15 represent Frank Tyson?
16 A. No.
17 Q. In February and March of 2003, did you
18 represent Vinnie Amen?
19 A. No.
20 Q. Now, in February and March of 2003, Mr.
21 Geragos, did you ever give legal advice to Marc
22 Schaffel?
23 A. No.
24 Q. In February and March of 2003, did you ever
25 give legal advice to Dieter Weizner?
26 A. No.
27 Q. In February and March of 2003, did you ever
28 give legal advice to Ron Konitzer? 11454
1 A. To the extent that they would ask questions
2 and I would -- Ronald would ask questions about
3 specific things and whether they should do things,
4 and I would say I want it run by me if it was -- for
5 instance, they’re going to make a statement, or
6 they’re going to issue some kind of a press release
7 or something, I would say, “Please let me have some
8 input into that.”
9 Q. Now, in February and March of 2003, did you
10 ever give legal advice to Frank Tyson?
11 A. No.
12 Q. In February and March of 2003, did you ever
13 give legal advice to Vinnie Amen?
14 A. No.
15 Q. Now, is the statute you’re referring to that
16 allows a private citizen in California to secretly
17 record a conversation if they think there’s a
18 reasonable belief that extortion might happen, is
19 that Penal Code 633.5?
20 A. I believe that it is, because I think the
21 section that prohibits it is 632. So it would be
22 my guess, at least, that it’s the 630 section or
23 633.
24 Q. And prior to February and March 2003, were
25 you aware of instances where, in fact, private
26 citizens have secretly recorded others who they
27 thought were going to try to commit a crime?
28 A. Yes. In numerous instances. 11455
1 Q. And in fact, private investigators sometimes
2 do that if they think they’re going to get evidence
3 of a crime, correct?
4 A. That’s as a private citizen. A private
5 investigator has no more and no less rights than a
6 private citizen. So I am aware of various private
7 investigators doing that, only with the caveat that
8 they have that expectation that a crime is going to
9 be committed.
10 Q. Now, was there anything else about Janet
11 Arvizo that made you suspicious that she might try
12 to shake down Mr. Jackson other than what you’ve
13 described?
14 A. Not other than what I’ve described to you
15 and to Mr. Zonen.
16 Q. In February and March of 2003, did you have
17 any personal knowledge that Janet Arvizo had told
18 anyone that her husband came from a family of drug
19 dealers?
20 A. No, not -- not that I remember.
21 Q. In February and March of 2003, did you have
22 any knowledge of Janet Arvizo claiming that her
23 husband was using all of their money on a drug
24 habit?
25 A. No, I don’t believe so.
26 Q. In February and March of 2003, were you
27 aware of any bank accounts Janet Arvizo had set up
28 allegedly for the benefit of her son? 11456
1 MR. ZONEN: I’m going to object unless
2 counsel has a good-faith offer of proof that the
3 answer is “yes.” Because otherwise it’s simply
4 inadmissible questions.
5 THE COURT: Overruled.
6 You may answer.
7 THE WITNESS: I may answer?
8 THE COURT: Yeah.
9 THE WITNESS: I -- I believe that I had
10 received information, but I don’t think that I was
11 able to verify it in February or March. I had just,
12 what I would call, suggestions that was the case.
13 But I did not have anything to substantiate it.
14 Q. BY MR. MESEREAU: Now, in February and March
15 of 2003, Mr. Geragos, did you have any personal
16 knowledge of Janet Arvizo trying to get money from
17 various celebrities?
18 A. I -- not from celebrities. I had knowledge
19 of her trying to get money from other people, but
20 not from various celebrities.
21 Q. When you retained Brad Miller in February of
22 2003, was that your first effort to have an
23 investigator investigate the Arvizos?
24 A. Do you mean had I used any other
25 investigator prior to Brad?
26 Q. Yes.
27 A. No, I had not. I don’t believe I have used
28 any other investigator in February. 11457
1 Q. Okay. So Brad Miller was the first licensed
2 investigator you ever retained to investigate the
3 activities of the Arvizos?
4 A. Yes.
5 Q. Now, you said that the period of
6 surveillance and investigation by Mr. Miller was
7 approximately 35 days; is that right?
8 A. Give or take. It was -- it started in
9 February and it ended sometime in March.
10 Q. And to your knowledge, was Mr. Miller doing
11 an investigation into public records involving Ms.
12 Arvizo other than the J.C. Penney case?
13 A. Yes.
14 Q. What other public records do you believe he
15 was examining as part of his investigation into the
16 Arvizos in February and March of 2003?
17 MR. ZONEN: Objection. Irrelevant; exceeds
18 the scope of the cross.
19 MR. MESEREAU: I don’t think it does, Your
20 Honor.
21 THE COURT: The objection is overruled.
22 You may answer.
23 THE WITNESS: I believe that he had
24 checked -- I mentioned before that he had checked
25 what are called the civil indexes, which are a list
26 of cases that people file in civil court. I believe
27 he also checked the criminal indexes, and I believe
28 he came up with various cases that she was listed as 11458
1 either a complaining witness or involved in one way
2 or another or as a witness.
3 Q. BY MR. MESEREAU: And did the information
4 you were aware of in February and March of 2003
5 about the Arvizos and their record of civil
6 litigation and noncivil litigation concern you?
7 A. Yes.
8 Q. Did you believe that what you knew about the
9 Arvizos in February of 2003 almost required you to
10 put them under surveillance?
11 MR. ZONEN: I’ll object as speculative and
12 argumentative.
13 THE COURT: Sustained.
14 Q. BY MR. MESEREAU: In your experience, prior
15 to February of 2003, when a lawyer like yourself is
16 concerned about a client being extorted or shaken
17 down, typically what does the lawyer do?
18 A. I know what I do in that situation, is I
19 want to find out everything I can about the person
20 who I’ve got concerns about. And if I think that I
21 can -- that I’m going to get somewhere with having
22 somebody check them out, I’ll have an investigator
23 check them out. And I believe that any lawyer who
24 gets hired by a client has an ethical obligation to
25 do that.
26 Q. And in February and March of 2003, was it
27 your understanding that putting someone under
28 surveillance by a licensed private investigator was 11459
1 lawful?
2 A. To my understanding.
3 MR. ZONEN: Objection; asked and answered.
4 THE COURT: The answer is in. The objection
5 is overruled.
6 Q. BY MR. MESEREAU: In February and March of
7 2003, when you put the Arvizo family under
8 surveillance through a licensed private
9 investigator, was this the first time you had done
10 such a thing?
11 A. That I had had somebody investigated and --
12 MR. ZONEN: Objection; asked and answered.
13 THE COURT: Sustained.
14 Q. BY MR. MESEREAU: Now, Mr. Geragos, the
15 prosecutor asked you questions about what you did
16 with these passports when you located them, okay?
17 A. Yes.
18 Q. And what you did was, you had them lodged
19 with this particular court, correct?
20 A. I told one of the lawyers in my office to
21 take them to Judge Melville’s court. I believe we
22 prepared some kind of notice of lodging, and we
23 notified the court of what we were doing, and it was
24 lodged, I believe, with the clerk of the court.
25 Q. And that would be Judge Melville’s court?
26 A. Yes.
27 Q. Is there any reason why you preferred giving
28 those passports to Judge Melville rather than Janet 11460
1 Arvizo?
2 A. I believed that they were something that
3 both -- either Mr. Sneddon or yourself would want
4 for various reasons. I believed that based upon
5 that, that they had evidentiary value. I believed
6 that I had no business holding on to them myself,
7 and I didn’t want to put you in a position where you
8 would have to be a witness and be conflicted out of
9 the case.
10 So I made the decision, after consulting
11 with numerous lawyers, that the best thing to do was
12 to file them directly with the court, which I
13 thought was my ethical -- also my ethical
14 obligation.
15 Q. And when you did that, were the passports
16 addressed to Judge Melville?
17 A. I believe -- I assume that the document is
18 here. I believe a document was prepared by my
19 office in connection with the lodging when it was
20 filed. Either a notice of lodging or a notice of
21 filing. I believe I saw something to that effect.
22 Q. Now, you knew when you lodged those
23 passports with Judge Melville’s court that Janet
24 Arvizo wanted them, right?
25 A. Well, I would assume that those were things
26 that would go to Janet Arvizo, Gavin, Star, and the
27 daughter, yes.
28 Q. And my question is, were you concerned about 11461
1 what Ms. Arvizo or her attorney, Mr. Dickerman,
2 might do with those passports?
3 A. Well, I knew that it was -- that it was not
4 going to be a great situation when I filed it with
5 the court. I wasn’t happy that I was in that
6 situation. I gave consideration, or at least
7 thought about the idea of turning them over to Mr.
8 Dickerman, but thought that it made more sense to do
9 it with the Court so that there was at least a
10 record that -- in the chain of custody, so to speak,
11 so you could document where they were and what had
12 happened.
13 I wasn’t comfortable with the fact of giving
14 them back to Mr. Dickerman. I thought that the
15 thing to do, and several other lawyers that I talked
16 to, that the thing to do was to lodge them with the
17 court.
18 Q. Now, you indicated on cross-examination that
19 you did not trust Mr. Dickerman, correct?
20 A. That’s correct.
21 Q. Why?
22 A. Because I would get --
23 MR. ZONEN: I’ll object as irrelevant.
24 THE COURT: Sustained.
25 Q. BY MR. MESEREAU: At the time you lodged
26 those passports with this court, did you know
27 whether or not Janet Arvizo was represented by
28 Attorney Larry Feldman? 11462
1 A. Yes, I did know that.
2 Q. Did you ever consider giving those passports
3 to Attorney Larry Feldman?
4 MR. ZONEN: Objection; irrelevant.
5 THE COURT: Sustained.
6 MR. MESEREAU: I have no further questions.
7
8 RECROSS-EXAMINATION
9 BY MR. ZONEN:
10 Q. Did Mr. Miller tell you in advance that he
11 was going to go ahead and pay a couple months’ rent
12 of Ms. Arvizo’s?
13 A. I don’t know. I can’t tell you. I know
14 that he paid the rent. I don’t know if he told me
15 after he did it or before.
16 Q. Would Mr. Miller be willing to pay my next
17 month’s mortgage?
18 A. I don’t know. How big is your house?
19 Q. I live in Santa Barbara. It’s small.
20 A. But I’m sure expensive.
21 Q. Mr. Geragos, did he talk with you at all in
22 advance about the propriety of Michael Jackson’s
23 employees paying Miss Arvizo’s rent?
24 A. Did who?
25 Q. Did Brad Miller speak with you in advance of
26 paying that month’s rent or two months’ rent?
27 A. Mr. Zonen, my experience with Mr. Jackson is
28 that this is a man with great -- 11463
1 Q. The question is, did Mr. Brad Miller speak
2 with you in advance?
3 A. You asked me about the propriety of Mr.
4 Jackson’s employees.
5 Q. No, the question --
6 A. I was trying to answer that.
7 Q. -- is, did Mr. Brad Miller speak with you in
8 advance of doing that?
9 A. The answer is the same one I gave you when
10 you asked me the first time, which was I don’t
11 remember as I sit here if he told me before or
12 after, but I know at some point I knew.
13 Q. When did you first learn about it?
14 A. I don’t know. Sometime in February or
15 March.
16 Q. What was Mr. Miller’s explanation to you as
17 to why he felt it was a good thing to do?
18 A. I don’t know that I quizzed him on it.
19 Q. Now, you said that you wanted that videotape
20 to be done in advance of the move-out of the
21 apartment; is that right?
22 A. I wanted -- if he was going to move, I
23 wanted him to videotape the move. I didn’t feel
24 comfortable having him handle her possessions
25 because I thought she would come back later and make
26 some accusation that something was taken out of
27 there, or that she had some -- who knows? That
28 there was going to be five refrigerators and a 11464
1 $10,000 stove.
2 Q. So you knew about this in advance of them
3 moving her out of the apartment?
4 A. I knew that he was going to move her,
5 because as I said before, I told him, “If you’re
6 going to do that, you better videotape it.”
7 Q. And that means, yes, you knew in advance of
8 them moving her out of the apartment, that she was
9 going to do -- that they were going to do so in
10 advance; is that right?
11 A. I knew that he was going to help her move,
12 and I told him to videotape it.
13 Q. All right. And you knew that they had not
14 yet commenced the move?
15 A. Well, I would assume that. Yes, I would
16 assume that.
17 Q. So you still had the opportunity to tell
18 Brad Miller, “What? Are you nuts? Don’t do
19 anything for Janet Arvizo”?
20 MR. MESEREAU: Objection; argumentative.
21 THE COURT: Sustained.
22 MR. ZONEN: I’ll leave out the “Are you
23 nuts?”
24 THE COURT: The objection is sustained.
25 Q. BY MR. ZONEN: Did you tell Brad Miller,
26 “Don’t do it. Don’t move her stuff. Don’t have
27 anything to do with her”?
28 A. No. 11465
1 Q. Did you tell him that you believed that she
2 was ready to engage in a shakedown of Michael
3 Jackson and you ought not be conducting any business
4 with her or association with her?
5 A. No. On the contrary. I wanted to know what
6 she was up to.
7 Q. Did Brad Miller tell you, up to that point,
8 that she had ever said that she wanted money from
9 Michael Jackson?
10 A. Yes.
11 Q. For what?
12 A. She felt that she deserved money. She
13 wanted -- you know, he was wealthy and she wanted
14 money.
15 Q. How much?
16 A. I didn’t how much she wanted. I wasn’t
17 going to -- I wasn’t going to recommend that my
18 client pay the money.
19 Q. When did that conversation take place?
20 A. It would have been sometime shortly after we
21 discovered that she had filed suit against J.C.
22 Penney.
23 Q. Then why did you tell him to go ahead and
24 proceed and move her stuff out of the apartment?
25 A. I did not want him to lose track of her. I
26 didn’t want her to go into the ether, because I was
27 afraid that she would do exactly what she ended up
28 doing in this case, which is get into the hands of a 11466
1 lawyer who would refer her to a psychiatrist, and
2 all of a sudden we’d get a false accusation.
3 Q. Now, you’ve looked at that videotape,
4 haven’t you, the videotape of the move?
5 A. I know it exists. I don’t know that I --
6 no, I don’t think I’ve sat down and documented the
7 videotape.
8 Q. Mr. Geragos, would you be surprised to learn
9 that that videotape does not show the items being
10 removed from the house?
11 MR. MESEREAU: Objection; misstates the
12 evidence.
13 THE COURT: Overruled.
14 THE WITNESS: I would be surprised that he
15 took a videotape of not moving after I told him to
16 take a videotape of moving the items or documenting
17 what the items were.
18 Q. BY MR. ZONEN: Did he ever tell you what the
19 videotape was of?
20 A. Yes, the items that were placed into
21 storage.
22 Q. All right. Did he tell you that, in fact,
23 that videotape was of them cleaning an empty
24 apartment; that that’s what it was of?
25 A. I think that he -- I don’t know that it was
26 cleaning. I think he wanted to show what the
27 condition of the apartment was after the move.
28 Q. Did you ask -- so there’s another videotape? 11467
1 A. I think it’s all one -- one videotape. The
2 videotape is of documenting of the items is what I
3 was told, and what the place looked like after the
4 items were out.
5 Q. Do you believe that there exists today a
6 videotape of them documenting the items from Janet
7 Arvizo’s apartment?
8 A. I believe that the video -- that there is a
9 videotape and that the videotape is of the items.
10 Q. Did they do a written inventory of the items
11 that they moved from her apartment?
12 A. I don’t know if they did or if the moving
13 place did. I couldn’t tell you.
14 Q. Did you ask them to get on videotape Janet
15 Arvizo specifically making that request to have her
16 things moved from that apartment?
17 A. No, I don’t think I told him that.
18 Q. You now believe that Brad Miller is a liar,
19 don’t you?
20 MR. MESEREAU: Objection. Argumentative; no
21 foundation.
22 THE COURT: Sustained.
23 Q. BY MR. ZONEN: Did you ever ask Brad Miller
24 why he arranged to have the DCFS interview
25 tape-recorded?
26 MR. MESEREAU: Objection. Misstates the
27 evidence; foundation; personal knowledge; and beyond
28 the scope; vague as to time. 11468
1 THE COURT: I’m thinking. There’s a lot of
2 material.
3 The objection’s overruled.
4 THE WITNESS: I don’t believe he was the one
5 who did it. I think that Asaf did it, if I’m not
6 mistaken. I don’t think Mr. Miller was there at the
7 DCFS.
8 Q. BY MR. ZONEN: Did you ever ask Brad Miller
9 if he was aware of the fact that Asaf was going to
10 do it?
11 MR. MESEREAU: Objection; vague as to time.
12 MR. ZONEN: At the time it was done.
13 MR. MESEREAU: Beyond the scope; relevance.
14 THE COURT: Sustained. It really is beyond
15 the scope.
16 Q. BY MR. ZONEN: Did you ever direct Brad
17 Miller to have Janet Arvizo sign a letter that said
18 she wanted her things moved out of that apartment?
19 MR. MESEREAU: Objection. Beyond the scope;
20 relevance; foundation.
21 MR. ZONEN: I’m sorry?
22 THE COURT: The objection is overruled.
23 Do you want the question read back?
24 THE WITNESS: No, I remember it.
25 I don’t know. I don’t know if I did or not.
26 Q. BY MR. ZONEN: You knew during February and
27 March of 2003 that Janet Arvizo had a prior lawsuit,
28 true? 11469
1 A. I knew that she had filed a lawsuit, yes.
2 Q. You knew during February and March of 2003
3 that she had been arrested?
4 A. I knew that there was a criminal index with
5 some hits involving her.
6 Q. You were very concerned about her
7 involvement with Michael Jackson, true?
8 A. I had concerns, yes.
9 Q. You contacted Michael Jackson’s employees,
10 the ones that were closest to him, and told them of
11 your concerns about Janet Arvizo; is that true?
12 MR. MESEREAU: Objection. Beyond the scope;
13 foundation; vague as to time.
14 THE COURT: Overruled.
15 You may answer.
16 Q. BY MR. ZONEN: Is that true?
17 A. No, that isn’t true the way you phrased it.
18 Q. Did you contact Marc Schaffel and express to
19 him your concern about Janet Arvizo?
20 A. Actually, I was concerned about Schaffel.
21 Q. Did you contact Ronald Konitzer and tell him
22 your concerns about Janet Arvizo?
23 A. I probably would have told Ronald about my
24 concerns on one of the -- on one of our phone calls,
25 yes.
26 Q. During any of those phone calls, did he then
27 tell you that they’re sending Janet Arvizo to
28 Brazil? 11470
1 MR. MESEREAU: Objection. Beyond the scope;
2 foundation.
3 THE COURT: Overruled.
4 You may answer.
5 THE WITNESS: I don’t believe he told me
6 that, no.
7 Q. BY MR. ZONEN: Did you ask Ronald Konitzer
8 to tell you if Gavin Arvizo moved back into Michael
9 Jackson’s bedroom?
10 A. No, I did not tell him to tell me that.
11 Q. Did you have a conversation with Michael
12 Jackson about the Brazil trip?
13 A. No.
14 MR. ZONEN: I have no further questions.
15 MR. MESEREAU: No further questions.
16 THE COURT: You may step down.
17 Oh. I think there was an issue you wanted
18 me to take up.
19 MR. ZONEN: I’m sorry?
20 THE COURT: Mr. Zonen, you want the witness
21 to remain?
22 MR. ZONEN: If he could, yes.
23 THE COURT: (To the jury) I’ll excuse you
24 for today. And we’ll see you Monday at 8:30.
25
26 (The following proceedings were held in
27 open court outside the presence and hearing of the
28 jury:) 11471
1
2 THE WITNESS: Do you want me to remain here?
3 THE COURT: Yes.
4 MR. ZONEN: Your Honor, I know the Court’s
5 preference is to have these matters done in writing
6 in advance, but we’re approaching the end of this
7 trial rapidly. I believe the defense has indicated
8 they might be resting as early as next Tuesday.
9 Given the waiver of both work product and
10 attorney-client privilege, as to Mr. Geragos’s file
11 and the comments as to representation of the
12 defendant and the testimony today, we would make a
13 demand at this time orally, if the Court will
14 entertain that, for the production of all e-mails
15 between Brad Miller and Mr. Geragos, as well as any
16 notes in his file for that period of time dealing
17 with communications between this witness, Mr.
18 Geragos, and Mr. Jackson, Mr. Konitzer, Mr. Weizner,
19 Mr. Amen and Mr. Schaffel and Mr. Cascio, as well as
20 the computer files that have been previously the
21 subject of litigation from Brad Miller’s office that
22 were previously determined to be inaccessible
23 because of the existence of that privilege.
24 We believe now that those files should be
25 turned over to us, at least for that period of time,
26 subject to this waiver.
27 THE COURT: And I think the -- now that you
28 have the waiver, all that work we did on those 11472
1 computer hard drives, based on the privilege which
2 he subsequently waived, should be turned over.
3 MR. SANGER: The -- let me use the mike for
4 just a second.
5 I just want the Court’s ruling to -- I want
6 to clarify the Court’s ruling. On Mr. Miller’s hard
7 drive, there were communications with Mr. Geragos --
8 THE COURT: On another case, other cases.
9 No, I’m not ordering you to turn that over. Just on
10 this case.
11 MR. SANGER: Okay. And you are asking that
12 we turn it over?
13 THE COURT: Yes.
14 MR. SANGER: Okay.
15 THE COURT: Turn it over, say, by 5 p.m.
16 tomorrow, Saturday.
17 MR. SANGER: Yeah, for the -- for the period
18 of time of the waiver. I don’t think there are any
19 outside of the period.
20 THE COURT: For the period of the waiver,
21 right.
22 MR. ZONEN: If we could have that by 5 p.m.
23 tomorrow.
24 THE COURT: Yes, that’s the order.
25 I don’t think -- I think that takes care of
26 it. I don’t think I order --
27 MR. ZONEN: Does that include the e-mail
28 communications as well? 11473
1 THE COURT: The e-mails, that’s primarily
2 what was on that material.
3 I’m not going to limit it to the e-mails,
4 but obviously on a hard drive between -- that was
5 primarily what was there was e-mails. And I don’t
6 know what other material was there. But any other
7 material that you held back because of the privilege
8 between Mr. Geragos, Brad Miller and Mr. Jackson,
9 you should release.
10 MR. SANGER: Yes, sir. I think there was a
11 Word Perfect document, not to get back into that.
12 THE COURT: Yeah.
13 MR. ZONEN: I wonder how we’ll ever access
14 it. No, we’ll figure it out.
15 THE COURT: I’m not going to order Mr.
16 Geragos to do that.
17 THE WITNESS: Could I interject that my only
18 concern is that there’s -- if there is any e-mail
19 that contains any information related to this case
20 and if it’s related to any other case --
21 THE COURT: Well, we know that.
22 THE WITNESS: Okay.
23 THE COURT: We are very familiar. You know,
24 you don’t know this, but we’ve had -- well, maybe
25 you do, but we had a couple -- we had an expert go
26 through the computer hard drives with some software
27 that doesn’t disturb anything in the drive. It’s
28 really unique. And then we had a special master 11474
1 review all of the files and segregate out privileged
2 documents. And then we had Mr. Jackson’s team
3 review that before what remained was turned over.
4 So there’s -- every effort to protect your clients
5 has been followed.
6 MR. SANGER: Your Honor, I think what he’s
7 referring to -- I’ll just remain seated here and
8 talk into this if that’s all right.
9 I think what he’s referring to are there are
10 some e-mails that refer to more than one case, so we
11 would redact the part that refers to other cases.
12 THE COURT: Exactly.
13 MR. SANGER: Yes.
14 THE COURT: Okay. Then to the extent that
15 that’s what you’re asking, I grant that. And we
16 have that straight. To the extent that you’re
17 asking me to order Mr. Geragos to turn over
18 something, I’m not going to do that.
19 MR. ZONEN: As long the representation is
20 that they’re in possession of what Mr. Geragos has,
21 then I’m happy with it coming from the defense.
22 THE COURT: Well, I’m not -- what we know
23 that they have is what you seized under search
24 warrants of --
25 MR. ZONEN: That’s fine. That’s fine.
26 THE COURT: All right. Then you may step
27 down.
28 THE WITNESS: Thank you. May I be excused? 11475
1 MR. ZONEN: Then, like the other witnesses,
2 this witness is not excused?
3 THE COURT: You’re not excused. You’ll
4 remain on call until the case is complete.
5 THE WITNESS: Thank you, Your Honor.
6 THE COURT: All right. The next issue you
7 wanted to take up was the -- which witness was it?
8 MR. SANGER: Mr. Amen. I didn’t know if you
9 were looking at us, but the Vinnie Amen --
10 THE COURT: Yes.
11 MR. SANGER: -- issue.
12 THE COURT: Here’s my thoughts on this one:
13 It appears that the -- Mr. Amen did get a use
14 immunity to talk to the District Attorney as it
15 relates to just what happens in their office. They
16 couldn’t use that to prosecute him, or any of the
17 fruit of that interview could not be used to
18 prosecute him if they later decided to prosecute
19 him.
20 It’s not an immunity that extends to
21 anything that he says in the courtroom, and it’s not
22 an immunity that protects him except for what he
23 said to them in their office.
24 Absent an application by the District
25 Attorney to the Court to grant him immunity, I am
26 without power to grant him immunity on my own.
27 Under the code, it’s a procedure that the District
28 Attorney has the sole right to institute. If he 11476
1 institutes it, then I have some discretion. But
2 absent that, I can’t institute it, so he is not
3 protected.
4 I’ll reiterate, he is not protected if
5 called for anything he says here. So if -- if you
6 call him and he claims the privilege, then he would
7 not be compelled to answer questions under the Fifth
8 Amendment. If you called him and asked him
9 questions, and he didn’t claim the privilege, but
10 then the District Attorney called him -- or
11 cross-examined him, excuse me, and he claimed the
12 privilege, then we’d be somewhat back in the
13 position we were with some of the other witnesses.
14 And so somewhere I would have to -- that
15 leaves us with the remedies we had before. You
16 know, either strike his testimony or make him claim
17 the privilege in front of the jury, or, you know,
18 there’s -- all the same things. Now we’ve had three
19 or four witnesses that present this issue from, it
20 seems like, a different angle every time.
21 MR. SANGER: I think there’s a little
22 different angle here and I’d like to discuss that.
23 THE COURT: I’m sure there is a little
24 different angle, and I’ll let you speak to that.
25 Just let me make sure I’ve finished saying what I
26 was going to say.
27 Anyway, so the bottom line, I guess, is, we
28 would have to have some indication from him before I 11477
1 let him testify in front of the jury as to what his
2 position on his testimony was going to be.
3 Now, what do you want to say about that
4 special angle?
5 MR. SANGER: Well, I think this is a little
6 bit of a different angle, and therefore I’d -- I
7 don’t know if that was the Court’s ruling or a
8 tentative.
9 THE COURT: No, no, I said that’s where I’m
10 going, you know.
11 MR. SANGER: All right. Fine.
12 THE COURT: You’re not prevented from trying
13 to show -- persuade me otherwise.
14 MR. SANGER: I think the different angle is
15 this, Your Honor: That basically the California
16 Supreme Court has left the door open, because we
17 like that reference, to the possibility that there
18 might be a case in which immunity could be granted
19 by the Court where the prosecution has not stepped
20 forward and requested it.
21 And I know that the weight of the authority,
22 or the number of cases that are floating around in
23 various jurisdictions and a couple of DCA cases,
24 tend to indicate that there is no such thing as
25 defense immunity. But -- or defense-requested
26 immunity for a witness. But the reason I think this
27 might be the case that the Supreme Court had in mind
28 or would have left the door open for is that here we 11478
1 have an actual grant of immunity.
2 Now, you recall that Mr. Auchincloss
3 represented to this Court that absolutely nothing
4 ever happened, and that whatever happened happened
5 before the tape was turned on, and the officer got
6 it wrong, and the officer didn’t understand things.
7 And lo and behold, we got the tape, and he very
8 clearly says, “That’s the agreement.” And his words
9 include, “In California, we call it use immunity.
10 So nothing you say in this interview can be used
11 against you, and we can’t use the fruits,” et
12 cetera, et cetera.
13 Now, I understand the Court’s distinction,
14 that that doesn’t say that, “When you testify or if
15 you testify, we will ask the Court for immunity at
16 that time.” That is generally what happens. A
17 witness gives a statement to the prosecution under
18 immunity. They like it; they come in and they ask
19 for immunity, put the person on the stand and get
20 the benefit of it.
21 What happened in this case invokes this
22 small exception that I think the Supreme Court would
23 acknowledge is appropriate. What happened in this
24 case is you have a witness who’s debriefed for -- I
25 believe it’s like four hours, maybe over four hours,
26 on tape. He is asked every imaginable question
27 about this case. He is the witness who was with
28 Janet Arvizo more than anybody else, according to 11479
1 the testimony we have here.
2 And he answers the questions about what
3 happened. “What happened when you went to get the
4 passports? What happened? Did she want to go
5 Brazil?” All those questions are answered and they
6 are answered in a way that is consistent with the
7 defense position and inconsistent with Janet
8 Arvizo’s position.
9 MR. AUCHINCLOSS: Your Honor, I’m going to
10 object to the description of the facts. That’s a
11 matter that is of some contention between the
12 parties.
13 THE COURT: I understand. But I don’t know
14 what -- I haven’t heard the tape, so I can’t rule on
15 your objection.
16 Go ahead.
17 MR. SANGER: And the point is, and the Court
18 has -- I don’t know if the Court wants to spend four
19 hours listening to it. The Court has the tape.
20 THE COURT: Oh, thank you.
21 MR. SANGER: I evidently have something to
22 do before Saturday at five o’clock myself, so I
23 thought the Court should as well.
24 The point of the story is that you have a
25 key witness in a case, who not only -- let us
26 assume -- so I don’t get in an argument with Mr.
27 Auchincloss, let us assume that his version of
28 events is consistent -- it’s Brady material, in 11480
1 essence. It’s consistent with the weight of the
2 witnesses who have testified, with the exception of
3 Janet Arvizo and her children. And primarily Janet
4 Arvizo, who testifies to all sorts of things that
5 are not consistent with anybody else.
6 They take that witness and they say, “Well,
7 it was Brady material. We got to turn it over to
8 you, but ha-ha, we are now going to revoke our
9 agreement to grant immunity. We’re not going to
10 give this person immunity.”
11 MR. AUCHINCLOSS: Object to this
12 characterization. May I make an objection?
13 THE COURT: What?
14 MR. AUCHINCLOSS: Just that that
15 characterization is completely inaccurate. We are
16 not revoking the informal immunity for this witness
17 for that day’s interview.
18 THE COURT: I understand that. That’s
19 correct.
20 MR. SANGER: So they say, “Okay. We are not
21 going to take the next step and call you as a
22 witness in court and give you immunity. We now know
23 that your testimony is exculpatory, so we are going
24 to make it impossible for the defense to present
25 exculpatory evidence to the jury.”
26 Now, this is different than the cases that
27 are cited. Because most of the cases that are cited
28 are cases in which, for instance, the defense is 11481
1 trying to call a witness who has not been
2 interviewed by the prosecution, or it’s a witness
3 who is a witness on a collateral matter. It’s not a
4 witness who has been given immunity to talk to the
5 prosecution first.
6 That’s why this is different. He was talked
7 to. He was debriefed for four hours. And he gives
8 exculpatory evidence. And now they say, “You can’t
9 use it.”
10 It was the prosecution who decided to call
11 Mr. Amen an unindicted co-conspirator. It’s the
12 prosecution that decided to present him as a
13 criminal wrongdoer, unindicted though he may be, in
14 the eyes of the jury. It’s the prosecution that
15 interviewed him. It’s the prosecution that chose to
16 give him immunity. And then it’s the prosecution
17 that says, “King’s X, we’re not going to let the
18 jury find out what he really has to say.”
19 THE COURT: Let me ask you a question. I
20 don’t know what the tape says, and I understand just
21 from listening to the two of you that there’s,
22 surprisingly, a disagreement over the content.
23 But let me assume for a moment that you’re
24 correct, that he tells the series of events exactly
25 what happened from his standpoint, and it in fact
26 supports your position that no crime’s been
27 committed in the conspiracy, which is the crime
28 we’re talking about on all of the elements, all of 11482
1 the various variations. And that the reason the
2 District Attorney doesn’t want to call him is
3 because, in fact, he doesn’t verify the criminal
4 activities of your client or anyone else.
5 So why would that person just not take the
6 witness stand, testify, and not claim the Fifth
7 Amendment since he’s not admitting to any crime?
8 He’s only telling the truth and, in fact, verifying,
9 as you point out, what everybody else except Janet
10 Arvizo says.
11 MR. SANGER: We would very much like him to
12 do that. I think that in the real world -- as the
13 Court knows, in the real world, a lawyer is going to
14 advise him, and the lawyer has advised him.
15 Everybody’s dealing with his lawyer here. The
16 lawyer’s advised him that he cannot testify. He is
17 being accused of being an unindicted co-conspirator
18 in a very serious case.
19 THE COURT: But they can’t prosecute him for
20 anything they learned. And if he says the same
21 thing here, they can’t prosecute him, can they?
22 Because they have given him use immunity.
23 MR. SANGER: Well, if the Court takes that
24 position, I think he would come and testify.
25 THE COURT: If --
26 MR. SANGER: But I think --
27 THE COURT: If he says -- your position
28 would be if he says the same thing that he told 11483
1 them, that they gave him use immunity for, only he
2 says it in a different room, the use immunity fails.
3 Is that what your position is?
4 MR. SANGER: No. Quite to the contrary. My
5 position is they’ve given him immunity, and he
6 should be allowed to testify.
7 THE COURT: No, no, no.
8 MR. SANGER: I understand what Your Honor
9 said. They just got through saying -- Mr.
10 Auchincloss just got through saying it was only for
11 the conversation in the room.
12 THE COURT: Okay. Let me talk to him, then.
13 If he testifies and says the same thing that
14 he told you, let’s say he doesn’t deviate from what
15 he told you under the use immunity --
16 MR. AUCHINCLOSS: In this courtroom?
17 THE COURT: If he says it in this courtroom,
18 you could prosecute him?
19 MR. AUCHINCLOSS: Yes. And here’s the
20 reason: The use immunity statute provides the
21 prosecution with discretion as to when and where and
22 how it’s going to ask for immunity. In virtually
23 every criminal case, the process -- and, you know,
24 virtually every, most criminal cases, the process
25 involves a proffer, involves coming into the office,
26 talking to that witness, assessing the credibility,
27 checking the facts against what they say, having the
28 District Attorney determine whether this witness is 11484
1 going to be accurate, is going to be telling the
2 truth, is going to be a fit witness in the case to
3 present the facts to the jury.
4 And when the District Attorney makes that
5 determination, then it’s appropriate for the
6 District Attorney to come into court and petition
7 the Court for immunity, testimonial immunity, which
8 is a completely different creature. Both sides
9 going at it, objections. It’s just a different
10 thing than an informal interview. And a proffer is
11 made to the District Attorney as far as what he’s
12 going to be saying or what he might have to say
13 about the facts of that case.
14 And we provided authority that immunity
15 agreements can be fashioned in a variety of ways,
16 and limitations can be presented, provided for, in
17 those immunity agreements. And it’s clear, even
18 from the tape, and while I did tell you there was
19 another discussion that occurred prior to us going
20 onto the tape, but even that little brief colloquy
21 that refers to the discussion that we obviously had
22 just had talks about “today,” “what’s said here
23 today,” specifically.
24 So, no, the immunity does not extend to
25 trial immunity, immunity in the court, testimonial
26 immunity and a formal grant of immunity.
27 THE COURT: What about the --
28 MR. AUCHINCLOSS: Just a moment. I’m sorry. 11485
1 (Off-the-record discussion held at counsel
2 table.)
3 MR. AUCHINCLOSS: Well, Mr. Sneddon wanted
4 me to just make sure that I told -- that I
5 communicated to you that we believe that if Mr. Amen
6 takes the stand and incriminates himself, he will
7 not be protected. That the immunity -- he does not
8 have immunity from what he says on the stand in this
9 case.
10 THE COURT: I understood that.
11 MR. AUCHINCLOSS: I thought you did. Thank
12 you.
13 Is there another question you had?
14 THE COURT: Yes. Counsel suggested that the
15 Supreme Court has hinted that there’s a unique case
16 where the Court could grant immunity without you
17 asking me for it. What do you think of that?
18 MR. AUCHINCLOSS: I think that this Court in
19 this case should not go where any court has gone
20 before.
21 THE COURT: Where any court has not gone
22 before.
23 MR. AUCHINCLOSS: Yeah.
24 THE COURT: I’ve been doing that for --
25 MR. AUCHINCLOSS: Don’t go where any court
26 has gone before.
27 THE COURT: I thought that’s what I’ve been
28 doing here for the last few months. 11486
Subject: May 20, 2005 
Mon Mar 12, 2012 12:35 am
