1 function of frequency and then with time running
2 along the horizontal or X axis, and it shows in the
3 background the same break as a lightening of the
4 signal. So this is two different ways of looking at
5 a break at exactly the same time period on the tape.
6 Q. How did you generate those two exhibits?
7 A. We use a software tool called Adobe
8 Audition, and that is actually listed up on the --
9 on the menu line on the screen. And this is a
10 screen capture where we take the image from the
11 screen and we capture it and we save it as a file on
12 the disk. So this is what we were looking at at the
13 time.
14 Q. So this is actually the equivalent of a
15 photograph, or a copy of --
16 A. A photograph of the screen. An image of the
17 screen.
18 Q. Yes. Of exactly the image that you look
19 at --
20 A. That’s correct.
21 Q. -- when you make your determinations --
22 A. That’s correct.
23 Q. -- and analysis?
24 A. Yes.
25 Q. And this is for a relatively small period of
26 time, is it?
27 A. 1.8 seconds it says on here.
28 Q. And in 1.8 seconds, does it generate 8216
1 sufficient information that you can actually see and
2 identify a break at that time point?
3 A. Yes, the -- yes.
4 Q. You talked to us about the signature. You
5 used that term early on in your testimony. What
6 does that refer to?
7 A. The signature is shown on both of these.
8 It’s shown best on 858, and that’s the -- there is
9 a -- a wave in the line at 238, just before 238.1
10 seconds, which is what happens when you turn this
11 particular tape-recorder on.
12 Q. All right. Are these breaks relatively
13 short in duration?
14 A. They’re very short. This one is only about
15 a second long.
16 Q. The other 33 breaks in this telephone
17 conversation, are they comparable to that one as
18 well?
19 A. Yes.
20 Q. What does that suggest to you, that all of
21 the breaks are roughly comparable and fairly short
22 in duration?
23 A. That they were -- I think in this case, in
24 addition to the signature, they were all made in the
25 same way.
26 Q. All right. Would it be difficult to have
27 relatively short breaks if you are stopping and
28 starting a tape-recording during the course of a 8217
1 conversation?
2 A. Well, the breaks would still be short. It’s
3 the context that’s different.
4 Q. Oh, I see. The content of the conversation
5 itself. Okay.
6 The two exhibits that we’ve been referring
7 to, 857 and 858, do they accurately depict the
8 content contained in those exhibits? In other
9 words, are they an accurate depiction of what you
10 looked at during the course of your examination?
11 A. Yes, they are.
12 MR. ZONEN: Your Honor, I would move to
13 introduce 857 and 858 into evidence.
14 MR. SANGER: No objection.
15 THE COURT: They’re admitted.
16 MR. ZONEN: And may we publish those two at
17 this time?
18 THE COURT: Yes.
19 Q. BY MR. ZONEN: In front of you should be a
20 laser that I left -- you have it. Good.
21 Go ahead, please, and tell us what it is
22 that you’re looking at.
23 A. Yes, we’re looking at an image of -- do I
24 have to talk close to this?
25 MR. SANGER: We haven’t identified which
26 exhibit is up there, for the record.
27 MR. ZONEN: 858. That’s Exhibit 858 that’s
28 currently being shown. 8218
1 Q. And yes, I’m sorry, I know that’s an
2 awkward position, but you do have to continue to
3 speak through the microphone.
4 A. They won’t be able to see through me.
5 This is an image of the screen when we were
6 analyzing the tape, and the time runs along the
7 bottom axis here. It’s virtually impossible for you
8 to read it, but it starts at two minutes 36.994
9 seconds. That means two minutes and essentially
10 37 seconds into the tape. It’s very difficult to
11 read this little number down here, but that says
12 that the view is 1.8 seconds long. So the time from
13 here to there is 1.8 seconds.
14 The signature is the amplitude of the
15 signal, and it’s centered at the center, about zero.
16 And the best analogy that I can make with
17 this is, if there are people here that are old
18 enough to remember what a vinyl record is, this is
19 very much like the groove in that vinyl record; that
20 the needle would be moving along here, and so it
21 would move faster here, and hardly move at all here,
22 and then it goes through a big bump, and then more
23 here. And by -- on a vinyl record, it reproduces the
24 audio in the same way that the voltage that we’re
25 displaying here, when it’s passed through a speaker
26 on a computer, reproduces the speech.
27 Q. Do you see the signature that you refer to?
28 A. Yes. The signature extends from here to 8219
1 here, right in -- right in the center, and this is
2 the primary signature which I’ve been calling the
3 turn-on signature.
4 Q. And the break that you refer to?
5 A. Yes, the break is really this entire time
6 period, that during this time period the audio
7 turned off, right here. It’s very low here. And
8 then this is the turn-on signature when the reel
9 started to come back up to speed. And then there’s
10 normal speech after about this time here. So this
11 is all a transient that occurred during what I call
12 the break in the tape.
13 Q. All right. Let’s go ahead to 858, if we
14 can.
15 A. Okay. This is exactly the same --
16 MR. SANGER: Excuse me, Your Honor.
17 MR. ZONEN: We need a question.
18 MR. SANGER: I think this is 857. Am I
19 wrong?
20 THE WITNESS: Yes, this is --
21 MR. ZONEN: Forgive me. My dyslexia is
22 acting in.
23 This is 857. The last one, then, was 858,
24 if we could correct the record accordingly.
25 Q. Please go ahead and tell us about 857.
26 A. Yes, this is the same time period, starting
27 at 236.994 and extending for 1.8 seconds across the
28 axis here. And what’s displayed on the vertical 8220
1 axis now is frequency.
2 And the best way to explain this is if you
3 look at this signature over here, this is a word
4 that a person has spoken, and what you can see is
5 the fundamental of their voice box and then the
6 harmonics of their -- of their voice. And you can
7 also see that over here and over here.
8 And this is the time period which was very
9 quiet where I said that the tape had turned off.
10 And you can see that the noise at the bottom, which
11 is indicated by the yellow, has gone away. The blue
12 indicates the lowest volume at that frequency; the
13 green, an intermediate volume; the yellow, a louder
14 volume; and the red, the loudest volume.
15 And the frequency scale is on the left over
16 here. It’s impossible to read it there. This is
17 500 hertz -- oop, no, I think you want to....
18 Okay. Yes, okay. So this is a thousand
19 hertz, and it goes well above what most people’s
20 hearing is at, at ten kilohertz up here. Take it
21 back to the full....
22 So if you can remember what I showed on the
23 preceding exhibit, this is the period when it went
24 very quiet. This is a period where there was just a
25 little bit of low frequency noise here. This is the
26 transient, and this is the beginning where it begins
27 to have speech again over here. So this is the
28 characteristic signature, on this particular media, 8221
1 of a break.
2 Q. Doctor, you had mentioned something about a
3 voice-activated tape-recorder. What is a
4 voice-activated tape-recorder?
5 A. A voice-activated tape-recorder is a
6 tape-recorder which, if the room goes silent, turns
7 off. And if somebody speaks in the room or there’s
8 a noise in the room, the tape-recorder turns back on
9 again.
10 Q. Does there generally have to be a period of
11 silence before the tape-recorder is activated or
12 deactivated?
13 A. Yes, it usually takes quite a bit of time
14 before it deactivates, because it doesn’t want to
15 miss speech. And so they have a circuit that waits
16 a long time, in terms of seconds, for the silence to
17 decide to turn off, but then they usually turn on
18 very rapidly because they want to get the first
19 words.
20 Q. Okay. Doctor, do you have an opinion as to
21 whether this tape is the product of a
22 voice-activated tape-recorder and then those breaks
23 would have been caused by silence in the
24 conversation?
25 A. My opinion is it’s not voice-activated.
26 Q. And why is that?
27 A. Because the turn-off occurred too rapidly
28 after the speech right here. This is only a few 8222
1 tenths of a second.
2 MR. ZONEN: All right. We can turn the
3 lights on and turn off the projector at this time.
4 Q. Doctor, just a couple of final questions.
5 Do you have an opinion as to the nature of
6 the equipment that was used in this particular case?
7 MR. SANGER: I’m going to object as either
8 asked and answered or it’s vague.
9 THE COURT: Overruled.
10 Q. BY MR. ZONEN: Go ahead, please.
11 And I guess by “equipment,” I mean both
12 telephones and tape recorders.
13 MR. SANGER: Then it’s compound.
14 THE COURT: Just a minute.
15 THE WITNESS: I really have --
16 THE COURT: I’ll sustain the objection.
17 Q. BY MR. ZONEN: Let’s talk about telephones.
18 Does it make a difference to you in terms of
19 your analysis of what type of phones are used?
20 A. Only in the sense of whether it was
21 voice-activated or not.
22 Q. Okay.
23 A. But otherwise, no.
24 Q. Or the recording equipment?
25 A. No.
26 Q. Okay. Do you have a sense of where the
27 recordings took place?
28 A. No. 8223
1 Q. All right. Is there any information that
2 would be -- let me rephrase that just for one
3 second.
4 In terms of resolving the question of
5 whether or not this is multiple conversations as
6 opposed to a single long conversation, are you able
7 to hear any unique dynamics in the sounds that would
8 send to suggest that there were recordings at
9 different locations?
10 A. No.
11 Q. Are you able to tell one way or the other?
12 A. No.
13 MR. ZONEN: Okay. I have no further
14 questions.
15 THE COURT: Cross-examine?
16
17 CROSS-EXAMINATION
18 BY MR. SANGER:
19 Q. All right. Dr. Koons, the bottom line to
20 this is that you had a tape which you analyzed, and
21 you believe that the tape -- the recording process
22 was stopped several times during the course of the
23 recording; is that right?
24 A. Yes, sir.
25 Q. All right. You don’t know if it was stopped
26 for five minutes, or ten minutes, or for a second;
27 is that correct?
28 A. That’s correct. 8224
1 Q. And you didn’t really listen to the tape to
2 hear the context when you did your initial analysis
3 of this tape; is that correct?
4 A. Yes.
5 Q. Recently you decided to listen to the tape
6 to see if you could kind of hear what the people
7 were saying, right?
8 A. Right.
9 Q. And when you listened to the context, as far
10 as you could tell, it seems to be pretty much a
11 continuous conversation, correct?
12 A. Most, but not all of it.
13 Q. The first 13 seconds you had a question
14 about; is that right?
15 A. Yes.
16 Q. All right. And, now, when you looked at the
17 sonographic, if I’m using the right term, analysis,
18 that was pretty much consistent with what you heard
19 when you listened to it like the rest of it; is that
20 right?
21 A. Yes.
22 Q. In other words, you pretty much have the
23 same background noise. You’ve got the same level of
24 speech that goes throughout the entire tape; is that
25 correct? With the exception of the first 13
26 seconds.
27 A. That’s correct.
28 Q. And you had speculated in your bench 8225
1 notes -- in fact, you said, “Speculate on causes,”
2 right?
3 A. Right.
4 Q. And you said, “Pause on tape-recorder;
5 voice-activated line; push-to-talk phone; mute
6 button,” right?
7 A. Right.
8 Q. Now, what is an AGC?
9 A. An AGC is an automatic gain control circuit,
10 and the point of an AGC is to try to make the audio
11 level uniform on a tape.
12 If you have, for instance, a conference with
13 people sitting around a large table, and you have a
14 tape-recorder in the middle, that the person closest
15 to it will be naturally louder than the person at
16 the end of the table, and the automatic gain
17 control, when it hears a period when the audio is
18 weak, tries to push it up and amplify it, and if
19 it’s strong, it brings it down a little bit so it’s
20 uniform on the tape.
21 Q. And you determined that you did not think
22 this was an automatic gain control function that was
23 causing these apparent breaks; is that correct?
24 A. That’s correct. There is no automatic gain
25 control on this recorder.
26 Q. So as it stands, you really don’t know what
27 happened, but there was some kind of break?
28 A. Yes, there are breaks. 8226
1 Q. All right. You also indicated that there’s
2 a signature to these breaks, simply meaning that
3 they appear to have been caused by the same
4 mechanism; is that right?
5 A. That’s right.
6 Q. And from what you could tell by looking at
7 it, it appeared to be some kind of a mechanical
8 function that caused this break; is that right?
9 A. That’s right.
10 Q. All right. In other words, somebody pushed
11 a button, either hit a “stop” button on the
12 recorder, or a “mute” button, or a “pause” button,
13 something like that?
14 A. Can I elaborate on that?
15 Q. Yes.
16 A. More specifically, by “mechanical,” I meant
17 that it had something to do with probably the
18 rotation of the wheels on the -- the drive on the
19 tape-recorder rather than the button itself. That
20 the wheel will take a little longer or a little
21 shorter to take up slack, for example, at the
22 beginning and end of the tape and the middle of the
23 tape. And so there are many different mechanical
24 things like that, rather than the button itself.
25 Q. Okay. Well -- all right. That’s fair
26 enough. In other words, the way these cassette
27 tapes work is that there’s a magnetic head --
28 A. Uh-huh. 8227
1 Q. -- that will alter the tape itself
2 magnetically --
3 A. Yes.
4 Q. -- when input occurs; is that correct?
5 A. Yes.
6 Q. So somebody talks; it’s translated into
7 energy that affects the magnetic head, that in turn
8 affects the tape; is that right?
9 A. That’s correct.
10 Q. So as the tape turns by the head, that’s how
11 you record it, right?
12 A. Right.
13 Q. And if you stop the tape from turning, it
14 stops recording?
15 A. Yes.
16 Q. All right. And so your determination is
17 that at some point it looks like this tape was
18 stopped from time to time?
19 A. Right.
20 Q. Now, you said you couldn’t tell if it was
21 first generation or second generation; is that
22 correct?
23 A. That’s true.
24 Q. And you did not do an analysis of the actual
25 tape?
26 A. Physically.
27 Q. Physical analysis of the tape. All right.
28 And there are labs that can do that? 8228
1 A. I believe so, yes.
2 Q. All right. So you just looked -- once you
3 digitized it, you just looked at the actual
4 electronic remnants of whatever it was that was done
5 to this tape? In other words --
6 A. I don’t want to use the word “remnants,”
7 but, yes.
8 Q. I was trying to think of a better word.
9 A. I know what you mean.
10 Q. The electronic imprints or whatever it was.
11 A. It’s the signature of the electronic signal
12 on the tape.
13 Q. If you actually look at a tape, sometimes
14 you can determine that there are erasure marks or
15 there’s other actual physical --
16 A. Right.
17 Q. -- marks on the tape; is that right?
18 A. We did not do that.
19 Q. Did not do that.
20 And I take it, from your analysis, you have
21 no way of determining who it was that stopped this
22 tape from turning from time to time?
23 A. No.
24 Q. And you have no idea how long the tape
25 stopped; is that correct?
26 A. That’s correct.
27 Q. It’s even possible that there could be a
28 malfunction in the tape machine, is it not? 8229
1 A. Possibly. But they were not random.
2 Q. All right. So you don’t know how long the
3 tape stopped; in other words, if somebody stopped
4 the tape, got up, went out of the room, came back,
5 or something?
6 A. That’s true. Yes.
7 Q. It could have been just a second that was
8 not recording, couldn’t it?
9 A. Yes.
10 MR. SANGER: All right. Okay. Thank you.
11 I have no further questions.
12
13 REDIRECT EXAMINATION
14 BY MR. ZONEN:
15 Q. Doctor, explain to us what you mean by “not
16 random.”
17 A. If you have -- if you have a random process,
18 the -- the distribution of the stops will obey a
19 statistical function called a Poisson function, and
20 these do not fit that function. They’re almost
21 uniformly spaced throughout the tape, except at the
22 end, where they become more rapidly in the last
23 minute.
24 Q. All right. Do you have an opinion as to
25 whether the breaks in this particular tape are
26 caused by a malfunction of the recording device?
27 A. My opinion is they are not.
28 MR. ZONEN: Thank you. No further 8230
1 questions.
2
3 RECROSS-EXAMINATION
4 BY MR. SANGER:
5 Q. Actually, I didn’t notice that. So let me
6 ask you about that.
7 You actually -- in your bench notes there,
8 you broke down the times. Are you saying there’s
9 essentially a uniform time gap between the tape --
10 between the --
11 A. Between the gaps.
12 Q. Between the gaps?
13 A. Not uniform. It’s not periodic. But
14 they -- there is a group at the end which is out of
15 character with the other ones, which suggest that
16 it’s not random. There were a bunch that occurred
17 in the 21st minute and most of the other minutes had
18 only one or two.
19 Q. I see what you’re saying.
20 A. There was also one period around six to ten
21 minutes where there was no gap at all. So it’s not
22 random.
23 Q. Okay. When you say it’s not random, do you
24 mean it’s --
25 A. “Random” means a throw of the dice did it.
26 Q. Okay. So because there are groupings, you
27 feel that there’s some causation?
28 A. That’s right. 8231
1 Q. So if there was a mechanical problem of some
2 sort, it would have to be a mechanical problem that
3 was more prevalent at one point?
4 A. Than the others, right.
5 MR. SANGER: All right. Okay. Thank you.
6 No further questions.
7 MR. ZONEN: No further questions.
8 THE COURT: Thank you. You may step down.
9 MR. ZONEN: Your Honor, the next two
10 witnesses require a Court ruling.
11 THE COURT: The Court will admit Exhibits 841
12 and 842 and make a finding that the probative value
13 exceeds the prejudicial effect under 352.
14 MR. ZONEN: I’m sorry, I didn’t hear the
15 last part of your ruling.
16 THE COURT: It was just a finding under 352.
17 MR. ZONEN: And the finding was it’s
18 admissible?
19 THE COURT: They are admissible. They are
20 admitted.
21 MR. ZONEN: Thank you.
22 We’ll call Detective Rose White to the
23 stand, please.
24 MR. SANGER: Is there a limiting instruction
25 that goes along with that, Your Honor?
26 MR. ZONEN: Smith. I’m sorry, Smith.
27 THE COURT: We could do one.
28 MR. SANGER: Your Honor, would it be 8232
1 possible to approach briefly to discuss that?
2 THE COURT: Yes.
3 (Discussion held off the record at sidebar.)
4 THE COURT: I think the next two witnesses
5 are going to involve these exhibits, are they, or
6 the next one?
7 MR. ZONEN: The next one witness.
8 THE COURT: (To the jury) The next witness
9 is going to involve testimony about two books,
10 Exhibits 841 and 842. And I want to advise you that
11 these exhibits fall within the same instruction I
12 gave you regarding the 1108 evidence, Code Section
13 1108 evidence relating to the alleged prior sexual
14 acts.
15 Remember those instructions I gave you
16 sometime ago? This material is connected to that
17 and has the same limitation. At the end of the
18 trial, we’ll reiterate that instruction for you so
19 that it’s -- this won’t be the last time you hear
20 the instruction.
21 MR. ZONEN: We’ll call Rose Smith to the
22 stand, Detective Smith, please.
23 THE COURT: You’ve already been sworn. You
24 may be seated.
25 DETECTIVE SMITH: Thank you, Your Honor.
26
27 ROSIBEL SMITH
28 Having been previously sworn, resumed the 8233
1 stand and testified further as follows:
2
3 THE COURT: You’re still under oath.
4 THE WITNESS: Yes, Your Honor.
5
6 DIRECT EXAMINATION
7 BY MR. ZONEN:
8 Q. The jury hasn’t heard who you are yet.
9 You’ve already been sworn in, but tell us who you
10 are, please.
11 A. Yes. I’m Detective Rosibel Smith.
12 R-o-s-i-b-e-l. S-m-i-t-h.
13 I’m a police detective with the City of Los
14 Angeles, Los Angeles Police Department, currently
15 assigned to the Threat Management Unit of the
16 Detective Support Division.
17 Q. How long have you been an officer with the
18 Los Angeles Police Department?
19 A. For a little over 20 years.
20 Q. And your current assignment is what again,
21 please?
22 A. The Threat Management Unit of the Detective
23 Support Division, and we are responsible for
24 investigating stalking cases, criminal threats and
25 workplace violence.
26 Q. How long have you been in that unit?
27 A. For six years.
28 Q. And prior to that, what work did you do? 8234
1 A. Prior to that, I worked a station called
2 Rampart Detectives, and then prior to that Juvenile
3 Division.
4 Q. Have you worked as a sex crimes
5 investigator?
6 A. Yes, I have.
7 Q. For what period of time?
8 A. For nine years.
9 Q. And which nine-year period?
10 A. From 1988 to 1997.
11 Q. As part of your responsibilities as a sex
12 crimes investigator, did you conduct and execute
13 search warrants?
14 A. Yes, I did.
15 Q. In August of 1993, did you execute a search
16 warrant at Neverland Ranch in Santa Barbara County?
17 A. Yes, I did.
18 Q. Did you do that with others?
19 A. Yes.
20 Q. A few others, I would assume?
21 A. There were several others, detectives and
22 officers at the location, yes.
23 Q. And do you remember which -- where on the
24 property at Neverland Ranch that you personally
25 conducted a search?
26 A. In the master bedroom of Mr. Michael
27 Jackson’s residence.
28 Q. All right. Now, the -- I’d like you to look 8235
1 at three exhibits that are in front of you at this
2 time, Exhibit No. 841 and 842 already in evidence.
3 A. Okay.
4 Q. Tell us what those two exhibits are. Let’s
5 start with the first one, 841.
6 A. 841 is a hard-cover book entitled, “Boys
7 Will Be Boys.”
8 Q. And what is that a book of?
9 A. It’s a book depicting images of young boys.
10 Some are clothed. Some are nude. And various
11 stages of dress. Depicts them in various positions,
12 at play, swimming, jumping. So....
13 Q. Is there an inscription in the front of that
14 book?
15 A. Yes, there is.
16 Q. Is that an inscription in a person’s
17 handwriting or printing?
18 A. Yes.
19 Q. Did you seize that book?
20 A. Yes, I did.
21 Q. From where did you seize that book?
22 A. From a file cabinet in the master bedroom of
23 Mr. Jackson’s residence.
24 Q. Now, Mr. Jackson’s residence is a -- the
25 bedroom portion of his residence is actually a
26 suite; is that correct?
27 A. Yes.
28 Q. Is there an upstairs and a downstairs? 8236
1 A. Yes, there is.
2 Q. And the portion from where you seized these
3 items, was that from the upstairs or the downstairs?
4 A. It was from the downstairs portion of the
5 bedroom.
6 Q. And can you -- can you tell us where
7 specifically it was seized from?
8 A. It was seized from a file cabinet within a
9 closet in the master bedroom.
10 Q. Let’s go ahead to the next exhibit, 842, and
11 tell us what that is, please.
12 A. This is another book, hard-cover book,
13 entitled, “The Boy; A Photographic Essay.”
14 Q. Can you tell us what this is, please?
15 A. And again, this is a book depicting images
16 of young boys, again in various stages of clothing
17 and undress. Some appear to be be nude. And again,
18 various poses; playing, swimming, jumping.
19 Q. Is there an inscription in the front of that
20 book as well?
21 A. Yes.
22 Q. Now, Detective, those two items, were they
23 seized from the same location?
24 A. Yes, they were.
25 Q. And I think you’ve already described that
26 location; is that correct?
27 A. Yes.
28 Q. I’d like you to look at another exhibit 8237
1 that’s before you, which is 856 in evidence.
2 A. Okay.
3 Q. What is 856?
4 A. 856 is a photograph of the search warrant.
5 We, as law enforcement, are required to photograph
6 the location that we serve the warrant on. And this
7 is the photograph of the file cabinet where the
8 books were seized from.
9 Q. All right. And in that file cabinet, are
10 there multiple drawers?
11 A. Yes, there are.
12 Q. Do you actually know from which drawer those
13 books were seized?
14 A. Yes, I do.
15 Q. Which drawer was that?
16 A. They were seized from the third drawer.
17 MR. ZONEN: Your Honor, may I publish that
18 exhibit? It’s already in evidence.
19 THE COURT: Yes.
20 Q. BY MR. ZONEN: Describe for us, please, the
21 photograph that we’re looking at.
22 A. To the rear of the photograph is the file
23 cabinet containing the four drawers. The third
24 drawer is where I seized the books from. So it’s
25 partly covered by, looks like maybe a briefcase of
26 some sort, or something there.
27 Q. All right. Detective, how were you able to
28 get into the closet? How were you able to get into 8238
1 the file cabinet?
2 A. The closet was -- actually, the room was
3 locked. And we had to get keys for the room, as
4 well as for the file cabinet, to get access into the
5 room and the file cabinet itself.
6 Q. Were you able to do that?
7 A. Yes, we were.
8 MR. ZONEN: Thank you. I have no further
9 questions.
10 You can turn the lights on.
11 MR. SANGER: Leave it. Leave it.
12 MR. ZONEN: Do you need this?
13 MR. SANGER: Yeah.
14
15 CROSS-EXAMINATION
16 BY MR. SANGER:
17 Q. Detective Smith, how are you?
18 A. Fine, thank you, sir. How are you?
19 Q. You mentioned, Detective, that you were --
20 that you’re currently assigned to a unit with the
21 Los Angeles Police Department that investigates a
22 number of things, and I think you said threats?
23 A. Yes.
24 Q. Okay. And one of the things you mentioned
25 is stalking; is that correct?
26 A. That’s correct.
27 Q. And do you, in the course of your duties,
28 investigate celebrity stalkings? 8239
1 A. Yes.
2 Q. All right. And many times celebrities, in
3 your experience, you find are stalked by fans; is
4 that right?
5 A. Yes.
6 Q. And is this -- does this pose a danger to
7 the celebrities?
8 A. It could, yes.
9 Q. So you take those seriously?
10 A. Absolutely.
11 Q. In fact, somebody may claim to be a fan, and
12 they come out --
13 MR. ZONEN: I’m going to object as exceeding
14 the scope of the direct examination.
15 THE COURT: Sustained.
16 MR. SANGER: All right. Very well.
17 Q. Your assignment back in 1993 was working
18 with the detectives division in sex crimes; is that
19 correct?
20 A. Yes.
21 Q. That’s Los Angeles Police Department?
22 A. Yes.
23 Q. So you got a warrant -- I say “you.” Your
24 department got a warrant to search Mr. Jackson’s
25 home in Santa Ynez, in Los Olivos, California; is
26 that correct?
27 A. That’s correct.
28 Q. That’s not within the City of Los Angeles, I 8240
1 take it?
2 A. No, it is not.
3 Q. And you got a warrant issued by a Los
4 Angeles judge?
5 A. Yes.
6 Q. All right. And the people that came with
7 you at that time, among others, were fellow Los
8 Angeles police officers; is that correct?
9 A. Yes.
10 Q. And you ended up seizing these books that
11 you talked about in the course of that search in
12 1993; is that right?
13 A. That is correct.
14 Q. Now, these two books -- I think -- are they
15 still up there in front of you?
16 A. Yes, they are.
17 Q. Those two books are not unlawful to possess
18 by adults in California; is that correct?
19 A. That is correct.
20 Q. And do you have any idea how Mr. Jackson
21 came into possession of those books or how they
22 ended up in this locked file cabinet?
23 A. From the inscription in Exhibit No. 842, it
24 appears that possibly a fan, somebody named Rhonda,
25 possibly gave the book to him. And the other one,
26 I do not know.
27 MR. SANGER: All right. Your Honor, may I
28 approach and retrieve the books? 8241
1 THE COURT: Yes.
2 MR. SANGER: Thank you.
3 Your Honor, I’d like to put the book up on
4 the screen, if I may.
5 THE COURT: Yes.
6 Q. BY MR. SANGER: I’ll put the cover up there,
7 first of all. And it says, “The Boy; A Photographic
8 Essay,” and this is -- this is Exhibit 842, correct?
9 A. Yes.
10 Q. All right. You referred to the inscription,
11 and I’m going to put the inscription up on the
12 board. I’m not going to put the whole one up
13 because it doesn’t fit yet.
14 But in any event, this is on the -- I know
15 there’s a word for it, but it’s on the first actual
16 page of the book, whatever you call it, right inside
17 the cover; is that right?
18 A. That’s right.
19 Q. Okay. And you were -- based on this
20 inscription, it appeared to be a book that was
21 presented to Mr. Jackson, or to his people, by a
22 fan; is that correct?
23 A. It appears to be, yes.
24 Q. And then down at the bottom, it looks like
25 it says, “1983,” and that could be “Chicago,” but I
26 don’t know. Or is it something else? What do you
27 think?
28 A. I -- it’s really hard to read. It could 8242
1 possibly be “Chicago,” but I’m not certain.
2 Q. But in any event, 1983 is the date?
3 A. Yes.
4 Q. At the time that you did this -- that you
5 did this search in 1993, did you determine that Mr.
6 Jackson not only received, but kept a tremendous
7 amount of material from fans that was sent to him?
8 I’m not just talking about books, but just things in
9 general that Mr. Jackson received.
10 Did he seem to have a lot of things that had
11 been sent to him by fans, if you can remember?
12 A. I do recall him -- or locating letters,
13 notes, from fans.
14 Q. All right. So even back then, in ‘93, you
15 were -- or I shouldn’t say “even.” He had a lot of
16 fans sending him things. That was your
17 understanding as you were doing this search; is that
18 correct?
19 A. Yes.
20 MR. SANGER: All right. Now, with the
21 Court’s permission, I’d like to put up 841. That’s
22 the other book.
23 THE COURT: Yes.
24 MR. SANGER: If I may.
25 Q. And this is the cover. We can’t get the
26 whole thing on at once, but it’s 841 up in the
27 corner, for the record, and it says, “Boys Will Be
28 Boys,” and it has a picture there; right? 8243
1 A. Yes.
2 Q. That’s the cover. And by the way, this is a
3 commercially -- both of these are commercially
4 available books; is that correct?
5 A. Yes.
6 Q. Okay. And when you open this book up, it
7 actually says -- let’s look right over here. I’m
8 going to try to talk loudly while I’m holding this.
9 It says on the flyleaf, “Book Adventures,
10 Inc.,” and the copyright 1966. Do you see that?
11 A. Yes. Down at the bottom.
12 Q. All right. And then if we look up here, at
13 the top, again the first page -- I’m sure somebody
14 who knows books knows the correct word for that.
15 But the very first page, up at the top it says,
16 “OP” -- “OP ‘88.” That means “Out of print, ‘88,”
17 does it not? Or do you know?
18 A. I’m not certain what that means.
19 Q. And somebody has written up there, “Very
20 scarce.”
21 A. Yes.
22 Q. Do you see that? That was there on the book
23 when you seized it; is that right?
24 A. Yes, it was.
25 Q. And there’s some initials that look like
26 “MJ” up in the upper right-hand corner?
27 A. Yes.
28 Q. Now, could you read the inscription for the 8244
1 record, please? And I’ll move it up as you go
2 along.
3 A. “Look at the true spirit of happiness and
4 joy in the boys’ faces. This is the spirit of
5 boyhood, a life I’ve never had and will always dream
6 of. This is the life I want for my children. MJ.”
7 MR. SANGER: Thank you. I have no further
8 questions.
9 MR. ZONEN: I have no further questions.
10 THE COURT: Thank you. You may step down.
11 THE WITNESS: Thank you.
12 MR. ZONEN: Your Honor, the next witness
13 requires a pre-trial hearing.
14 THE COURT: (To the jury) All right. I’m
15 going to excuse you again. We have to have another
16 hearing before this witness may be presented.
17 Is the witness here now?
18 THE BAILIFF: The Judge is addressing you.
19 MR. ZONEN: I’m sorry, Your Honor. I’m not
20 hearing well today.
21 THE COURT: Is the witness here now?
22 MR. ZONEN: Yes, the witness is here.
23
24 (The following proceedings were held in
25 open court outside the presence and hearing of the
26 jury:)
27
28 MR. ZONEN: May his counsel sit at the 8245
1 counsel table?
2 THE COURT: Yes, for this hearing.
3 Please remain standing and raise your right
4 hand. Face the clerk over here.
5
6 IAN DREW
7 Having been sworn, testified as follows:
8
9 THE WITNESS: I do.
10 THE CLERK: Please be seated. State and
11 spell your name for the record.
12 THE WITNESS: Ian, I-a-n. Last name is Drew,
13 D-r-e-w.
14 THE CLERK: Thank you.
15 THE COURT: Counsel?
16 MR. ZONEN: May I proceed?
17 THE COURT: No, just a moment. I’m sorry, I
18 want to interrupt you.
19 I’m not sure that I made that finding on the
20 record or at sidebar on Exhibits 841 or 842, both of
21 them, but I previously had reviewed the books and
22 made a finding, preliminary finding, that there were
23 photographs within each book that could be
24 determined to be sexually explicit photographs by a
25 trier of fact, and then I made a finding on -- under
26 352, which I know is on the record.
27 Now you may proceed with this witness.
28 MR. ZONEN: Thank you, Your Honor. 8246
1 DIRECT EXAMINATION
2 BY MR. ZONEN:
3 Q. Mr. Drew, good morning.
4 A. Good morning.
5 Q. Sir, what is your current occupation?
6 A. Editor at US Weekly Magazine.
7 Q. What does that mean? What do you do?
8 A. Everything from reporting on stories, to
9 coordinating stories, to a wide array of covering
10 the celebrity news.
11 Q. How long have you worked in that capacity?
12 A. Um, about two and a half years.
13 Q. And how long with US Magazine specifically?
14 A. Oh, no. At US Magazine, two and a half
15 years, excuse me. And in the capacity about three
16 and a half years.
17 Q. What is your -- are you a journalist?
18 A. Yes.
19 Q. What is your training and experience as a
20 journalist?
21 A. I have about three and a half years
22 experience. And I started working at a small
23 newspaper and then moved up to different
24 publications, and have been at US Weekly the
25 longest.
26 Q. If I can direct your attention back to
27 February of the year 2003. Were you working with or
28 for Michael Jackson at that time? 8247
1 A. No.
2 Q. Were you working for anybody who was working
3 with or for Michael Jackson?
4 A. No.
5 Q. All right. Did you have any association
6 with either Marc Schaffel or Ronald Konitzer or
7 Dieter Weizner?
8 MS. SAGER: I’m going to object, Your Honor,
9 to the extent that’s calling for unpublished
10 information. I think the question is vague.
11 THE COURT: They can’t hear you. Is your
12 microphone on?
13 MS. SAGER: Sorry, Your Honor.
14 I’m objecting to the question as calling for
15 unpublished information and as vague.
16 THE COURT: Sustained on both grounds.
17 Q. BY MR. ZONEN: Were you called upon to
18 conduct an interview of a family, including a mother
19 of children by the name of Janet Arvizo?
20 A. No.
21 Q. Were you expecting to do an interview with
22 Janet Arvizo?
23 A. Yes.
24 Q. Did that interview ever take place?
25 A. No.
26 Q. Who was it that was coordinating that
27 interview with you?
28 A. Ronald Konitzer and Marc Schaffel. 8248
1 Q. Did you know either Ronald Konitzer or Marc
2 Schaffel prior to that day?
3 A. Yes.
4 Q. What is it that you were supposed to be
5 doing with regards to this interview?
6 A. Interviewing them for a print magazine.
7 Q. Do you know what the subject matter was
8 going to be of that interview?
9 A. How Mr. Jackson did not do anything
10 inappropriate with the family.
11 Q. Who is it who retained you to do that?
12 A. Marc Schaffel and Ronald Konitzer.
13 Q. Were you expecting to get paid for that
14 interview?
15 A. I did not get paid through them. I got paid
16 through a magazine.
17 Q. All right.
18 A. I was on staff at a magazine at the time.
19 Q. All right. Was this an article that would
20 appear in a magazine?
21 A. Uh-huh.
22 Q. Would it include photographs?
23 A. That was hoped for.
24 MS. SAGER: Object to the extent it’s
25 unpublished information, Your Honor, since there was
26 not an interview published.
27 THE COURT: Sustained.
28 Q. BY MR. ZONEN: Did you ever meet with Janet 8249
1 Arvizo or her family?
2 MS. SAGER: Same objection, Your Honor.
3 THE COURT: Sustained.
4 Q. BY MR. ZONEN: Did you know who they were?
5 MS. SAGER: Same objection, Your Honor, to
6 the extent that nothing has been published on that
7 subject.
8 THE COURT: Sustained.
9 This is -- all objections are under the
10 shield law at this time?
11 MS. SAGER: Yes, Your Honor.
12 Q. BY MR. ZONEN: Did you have a conversation
13 with Ronald Konitzer as to whether or not that
14 interview would take place?
15 A. Yes.
16 Q. What did Mr. Konitzer tell you?
17 MS. SAGER: And, Your Honor, I’ll only
18 object to the extent that if it includes information
19 that has not been published, that the witness should
20 not be required to reveal anything unpublished. To
21 the extent that there has been published information
22 on that, we are not objecting.
23 MR. ZONEN: And let me preface the question
24 with one other....
25 Q. Mr. Drew, did you appear on national
26 television and discuss this very topic?
27 A. I believe so.
28 Q. Was the national presentation through Court 8250
1 TV?
2 A. I believe so.
3 Q. Were you interviewed by someone by the name
4 of Diane Dimond?
5 A. I was.
6 Q. Have you ever seen that presentation?
7 A. Yes.
8 Q. And you did recognize yourself as well as
9 Miss Dimond?
10 A. Yes, I did.
11 Q. And did you discuss the subject matter of
12 this very interview on national television?
13 A. I believe so. I believe so. Again, I do so
14 many television interviews as part of my job, so
15 remembering what I said in each one is a little
16 difficult, but I believe so.
17 Q. All right. Did you, in fact, discuss the
18 reason why this interview was not going to take
19 place?
20 A. Yes.
21 Q. And what was the reason that the interview
22 would not take place?
23 MS. SAGER: And again, Your Honor, I will
24 only object to the extent that there’s any
25 information that has not been published. But to the
26 extent Mr. Drew has revealed any portion of that on
27 national television, we’re not objecting.
28 THE COURT: So can I take this as an 8251
1 instruction by yourself to your witness to only
2 divulge material that he’s previously divulged on
3 television?
4 MS. SAGER: Yes, Your Honor. Thank you.
5 THE COURT: I’ll accept that.
6 Q. BY MR. ZONEN: Can you answer the question?
7 A. I was told that the family was unavailable.
8 Q. And what does “unavailable” mean?
9 A. I was told that they had disappeared from
10 the ranch in the middle of the night.
11 Q. And who had told you that?
12 A. Ronald Konitzer.
13 Q. In fact, he used the word “escaped,” didn’t
14 he?
15 MS. SAGER: Same objection, Your Honor.
16 MR. MESEREAU: Objection; leading.
17 THE COURT: Overruled.
18 MS. SAGER: Your Honor, we would object to
19 the extent that the word -- whatever words were used
20 in the interview are the words that were used, and
21 any other words should be unpublished information.
22 MR. ZONEN: The objection was overruled?
23 THE COURT: Well, I’m to take that as an
24 instruction to the witness, because the objection
25 is -- it’s not really an objection. She’s saying,
26 “If something happened, I object. If not, I don’t.”
27 So I can’t --
28 MS. SAGER: I understand, Your Honor. 8252
1 THE COURT: I could rule if it happened,
2 okay? And if not, no.
3 I think the better way is for you to
4 instruct your witness. And he knows, to the best of
5 his recollection, what he’s said and what he hasn’t
6 said. And then if there’s an issue there, we’ll
7 deal with it.
8 MS. SAGER: Thank you, Your Honor.
9 And I would instruct Mr. Drew not to answer
10 with respect to any words that were not used in his
11 discussion of what Mr. Konitzer said.
12 THE COURT: Do you have any idea what the
13 question was you’re supposed to answer?
14 THE WITNESS: Could you rephrase, please?
15 Thank you.
16 Q. BY MR. ZONEN: What exactly did Ronald
17 Konitzer tell you about the disappearance of the
18 Arvizo family?
19 MS. SAGER: Again, Your Honor, with the same
20 instruction to the witness, only to answer as to
21 what he said on national television on that subject.
22 THE COURT: Can we just -- can you give him
23 that standing instruction that he would tell you or
24 indicate to you, or us, if we’re getting into an
25 area he hasn’t discussed, so you don’t have to keep
26 interjecting yourself?
27 MS. SAGER: That’s fine, Your Honor.
28 I don’t know that Mr. Drew has a copy of the 8253
1 transcript of the interview in front of him. And
2 that’s the only reason I’m issuing this same
3 objection.
4 THE COURT: Go ahead.
5 MR. ZONEN: All right.
6 MR. MESEREAU: Excuse me.
7 Your Honor, am I allowed to participate in
8 this area of objections? I’m not sure.
9 THE COURT: You’re not sure?
10 MR. MESEREAU: Well, I think I can. But I
11 know you’re trying to determine what’s the scope of
12 the privilege.
13 I’m objecting to what he’s saying for other
14 reasons. And I’m going to object on hearsay as far
15 as what he said on an interview.
16 MR. ZONEN: To the extent that they are
17 statements from the unindicted co-conspirator, Mr.
18 Konitzer.
19 THE COURT: Well, I think -- he’s asking me a
20 question.
21 Yes, you can object, because what we’re
22 testing here is what the jury will hear, of course,
23 and then what you can cross-examine on. So if you
24 object to something and it doesn’t come in, there’s
25 not an issue about cross-examination.
26 MR. MESEREAU: Okay. Thank you.
27 I’m objecting on hearsay.
28 MR. ZONEN: The answer is it’s a statement 8254
1 in furtherance of a conspiracy from one of the
2 unindicted co-conspirators, Mr. Konitzer.
3 THE COURT: I don’t know what the question
4 was now.
5 Q. BY MR. ZONEN: What specifically did he say
6 with regard to the disappearance of this family?
7 Would it be helpful if the witness was given
8 a transcript of the television program? We can
9 do that.
10 THE COURT: Well, you have to ask the witness
11 that question. That’s the question that, would it
12 refresh your recollection if --
13 MR. ZONEN: I don’t believe he’s -- well --
14 THE WITNESS: It’s a simple enough question,
15 I think.
16 I was told that they had disappeared; that
17 they couldn’t keep them there anymore.
18 MR. MESEREAU: Objection. Objection.
19 THE WITNESS: And --
20 THE COURT: Just a moment.
21 Let him complete it.
22 THE WITNESS: And I believe the word
23 “escaped” was used, but again, I don’t -- I can’t
24 say word for word. But from -- the best of my
25 recollection, yes, I heard the word “escaped.”
26 THE COURT: Okay. Now, I made you wait, but
27 you have an objection of hearsay.
28 MR. MESEREAU: I’m objecting to double 8255
1 hearsay. What the prosecutor is asking is, “What
2 did you say in an interview about what somebody else
3 said?”
4 MR. ZONEN: No, I did not.
5 THE COURT: He’s asking what Mr. --
6 MR. ZONEN: Konitzer.
7 THE COURT: -- Konitzer said. That is
8 hearsay. Now, the question is, was it in the
9 furtherance of the conspiracy?
10 I don’t see that it is, so I’ll sustain the
11 objection.
12 MR. ZONEN: I ask to make an offer of proof.
13 THE COURT: Yes, you may.
14 MR. ZONEN: This was -- he was prepared to
15 do the interview of the family, the interview that
16 ultimately was done on the evening of the 19th into
17 the morning hours of the 20th by a different
18 interviewer, and this was going to be done in
19 furtherance of the promotion of the rebuttal film,
20 the portion that was to be contained in the Maury
21 Povich film. The family took off. That was in
22 conjunction with the movement off of Neverland Ranch
23 about that time.
24 It was Mr. Konitzer who was attempting to
25 arrange this, this filming, who then called him and
26 notified him that this filming would not take place
27 because the family had escaped. It’s a reflection
28 of the state of mind of the co-conspirator; that the 8256
1 family acted in conformity with the testimony as we
2 presented it.
3 So the objection -- or the exception to
4 hearsay would be both a statement in furtherance of
5 conspiracy, and a statement consistent with the
6 state of mind of the co-conspirator.
7 THE COURT: I don’t get that.
8 If the information is -- I mean, all of the
9 things you said could be in furtherance of the
10 conspiracy, except we get to this one statement,
11 which is, basically, “Where’s the family?” “Well,
12 they escaped.”
13 That is -- that’s not in furtherance of the
14 conspiracy. If anything, it might reveal the
15 conspiracy.
16 MR. ZONEN: The fact that he says they
17 escaped, they disappeared in the middle of the
18 night, reflects, as to Mr. Konitzer, a state of mind
19 consistent with the fact that this family was being
20 kept there against their will, or at least as to the
21 mother. So that would be an admission on his part
22 that the family, in fact, was being kept against
23 their will.
24 And to the extent that that statement was
25 made during the course of the conspiracy, which it
26 was, it was mid-February, then that statement would
27 be an adoptive admission as to each of the
28 unindicted co-conspirators, including the defendant. 8257
1 THE COURT: All right. You just changed
2 horses in mid-stream.
3 MR. ZONEN: I sure did.
4 THE COURT: Do you want to address the --
5 MR. MESEREAU: Yes, Your Honor.
6 I mean, first of all, I think the Court has
7 an obligation to take into account the whole context
8 of the statement, when it was made, and the purpose
9 that apparently it was made for, in deciding whether
10 it might even be reasonably construed to be in
11 furtherance of a conspiracy.
12 THE COURT: I think he conceded suddenly that
13 it’s not in furtherance. Now he’s asking that it
14 come in as an admission, some sort of admission.
15 MR. MESEREAU: No, it’s a hearsay statement
16 by someone who’s never been charged with a crime,
17 who isn’t in the courtroom. It’s not an admission.
18 They didn’t even charge any of these people, except
19 Mr. Jackson.
20 THE COURT: Don’t -- wait, wait. Talk to me.
21 MR. MESEREAU: It’s not an admission.
22 That’s just grabbing for something that doesn’t
23 exist. The only way it could possibly get in would
24 be an exception to the hearsay rule, which the Court
25 has, I think, found does not exist.
26 MR. ZONEN: If I could respond very briefly,
27 Your Honor.
28 Konitzer’s state of mind certainly is an 8258
1 issue in this case as one of the unindicted
2 co-conspirators named specifically in the Indictment
3 returned by the grand jury. To that extent it would
4 be relevant.
5 But it is also admissible as either an
6 admission, given the fact that he is an unindicted
7 but named co-conspirator, or a declaration against
8 interest, specifically penal interest, if we were to
9 consider him as an unnamed party to this action.
10 MR. MESEREAU: Your Honor, again, he’s not
11 here. He’s not charged. He’s not present. He’s
12 not testifying. We can’t cross-examine him. It’s
13 not an admission. And it’s clear hearsay. If it
14 can’t come in under alleged co-conspirator hearsay
15 by someone who’s never even been charged with a
16 conspiracy, it just can’t come in.
17 THE COURT: Well -- just a minute. You know
18 that’s not the law. The law is that statements by
19 co-conspirators, whether they’re here or with us
20 today or not, can come in. That’s not the issue.
21 That’s -- he’s -- you’re not addressing the issue.
22 But just give me a moment to think here.
23 MR. MESEREAU: Your Honor, if there was a
24 co --
25 THE COURT: Just a moment, please.
26 Okay. I think what you were going to say
27 is, if it were a co-defendant and one co-defendant’s
28 admission was attempted to be introduced in a trial 8259
1 of both of them, that it couldn’t be introduced in
2 front of the jury. And I agree with you, if it were
3 any other crime but conspiracy.
4 MR. MESEREAU: But, Your Honor, I don’t
5 believe it would come in as an admission. I believe
6 it would come in under co-conspirator hearsay or it
7 couldn’t come in.
8 THE COURT: They either are trying to help
9 you or they can’t hear.
10 (Laughter.)
11 MR. MESEREAU: Oh.
12 MR. ZONEN: I would object to the first of
13 those choices.
14 MR. MESEREAU: What I said to Your Honor is
15 in that event, it would not still come in as an
16 admission. It would have to come in as an exception
17 to the hearsay rule and be deemed by the Court
18 co-conspirator hearsay.
19 THE COURT: Well --
20 MR. ZONEN: Can I ask --
21 THE COURT: I’m going to --
22 MR. ZONEN: Can I ask this one question?
23 If, in fact, among the overt acts -- if, in
24 fact, among the overt acts would be acts of this
25 family leaving Neverland Ranch, and to the extent
26 that this person is one of the unindicted
27 co-conspirators, and the overt acts include their
28 efforts to return the family to the ranch and to 8260
1 return the family to this video presentation, then
2 his statement that they had fled the ranch and
3 escaped would certainly be statements in furtherance
4 of the conspiracy in terms of their efforts to renew
5 their activities to bring them back onto the ranch.
6 It would also be an admission on the part of
7 a co-conspirator to the extent of what they were
8 trying to do, and it would be a reflection of that
9 party’s state of mind that that’s what they wanted
10 to do, was keep them on the ranch until the point
11 that they were able to do this particular interview,
12 and thereafter to Brazil.
13 MR. MESEREAU: I think I said what I can
14 say, Your Honor. I don’t think it can come in in
15 either event.
16 MR. ZONEN: And I’ll submit as well.
17 MS. SAGER: And, Your Honor, we really don’t
18 have a dog in this fight. I want to make sure the
19 record is clear that --
20 THE COURT: They can’t hear you, so you have
21 to speak into the microphone.
22 MS. SAGER: We don’t have a dog in this
23 fight, but I just want to make sure the record is
24 clear as to what this witness testified about was
25 not the video interview of the family. He was a
26 magazine reporter who was asking for an interview of
27 the family.
28 And I don’t want it to be confused with some 8261
1 conspiracy theory about what was or wasn’t done with
2 the video and what they were doing with that. That
3 is not what Mr. --
4 THE COURT: I’m not -- you have to have been
5 here for 49 days or so.
6 (Laughter.)
7 MS. SAGER: I understand, Your Honor.
8 THE COURT: That’s not a problem.
9 MR. ZONEN: Where does that metaphor come
10 from? This is the second Los Angeles lawyer talking
11 about dogs and fights.
12 THE COURT: I don’t know. I’ve used it
13 before. But after hearing someone chastised, I’ve
14 decided I’ll never use it again.
15 I think it’s admissible as to the state of
16 mind of the co-conspirator, so I’m going to allow
17 it.
18 MR. ZONEN: Thank you. I have no further
19 questions.
20 MR. MESEREAU: May I cross-examine, Your
21 Honor?
22 THE COURT: Yes.
23 MR. MESEREAU: Okay. Thank you.
24
25 CROSS-EXAMINATION
26 BY MR. MESEREAU:
27 Q. Good morning, Mr. Drew.
28 A. Good morning. How are you? 8262
1 Q. Fine, thank you.
2 You gave an interview to Lieutenant Klapakis
3 and another Santa Barbara sheriff named Robel on
4 August 4th, 2004, correct?
5 A. Yes.
6 Q. Do you know how long that interview was?
7 A. No. I didn’t think it was that long, but it
8 was probably a lot longer than it was.
9 Q. You waived privileges when you gave that
10 interview, correct?
11 MS. SAGER: This is a question that’s a
12 legal question, not a question for this witness as
13 to whether he waived privileges. He did not have
14 counsel. He had not been advised of rights.
15 THE COURT: Sustained.
16 Q. BY MR. MESEREAU: You gave that interview
17 freely and voluntarily, correct?
18 MS. SAGER: Same objections, Your Honor. He
19 was being served with a subpoena, had no counsel.
20 THE COURT: Just a moment here.
21 All right. As to the objection that he had
22 no counsel present, that’s overruled.
23 The question pending, which you may answer,
24 is, did you give that interview freely and
25 voluntarily?
26 THE WITNESS: I guess. I didn’t know it was
27 an interview, and I didn’t know that it was being
28 documented in any way. 8263
1 Q. BY MR. MESEREAU: You were not served with a
2 subpoena for purposes of that interview, were you?
3 A. I don’t know why I was served with a
4 subpoena. I just got it in the mail.
5 Q. You did not attend that interview because
6 you were subpoenaed to do so, right?
7 MR. ZONEN: Objection.
8 THE COURT: Maybe he doesn’t know which
9 interview you’re talking about.
10 THE WITNESS: I didn’t think I was attending
11 any interview.
12 Q. BY MR. MESEREAU: Did you interview on
13 August 4th, 2004, with Lieutenant Klapakis and
14 Sergeant Robel of the Santa Barbara Sheriff’s
15 Department?
16 A. I had a conversation with them.
17 Q. Where did the conversation take place?
18 A. Outside of my office.
19 Q. And did those two officers meet you outside
20 of your office?
21 A. They did.
22 Q. Did you speak to them?
23 A. I did.
24 Q. You were not subpoenaed to speak to them,
25 were you?
26 A. No.
27 Q. You spoke to them about facts concerning
28 this investigation, true? 8264
1 A. Yes.
2 Q. You told them you were a freelance
3 journalist who was currently working for US Weekly
4 Magazine, right?
5 A. That’s not true. I’ve only worked as a
6 staffer at US Weekly.
7 Q. Did you tell them you were a journalist in
8 that interview?
9 A. Yes.
10 Q. Did you tell them you were doing some work
11 for US Weekly Magazine?
12 A. Yes.
13 Q. After you told them you were a journalist,
14 you continued to interview with them, right?
15 A. Yes.
16 Q. You gave them statements about Marc
17 Schaffel, true?
18 MS. SAGER: Your Honor, to the extent that
19 this is unpublished information that Mr. Drew has
20 gathered in the course of his job as a journalist,
21 I would still assert the shield law, which applies
22 unless he has published information. And the
23 statute and the Constitution specifically say,
24 “disseminated information to the public.” And I’m
25 quoting.
26 So any discussion he may have had with law
27 enforcement officials would not fall within the
28 scope of published information as it’s defined in 8265
1 Article I, Section 2(b).
2 MR. MESEREAU: If I may respond, Your Honor.
3 THE COURT: Yes.
4 MR. MESEREAU: He gave a free, voluntary
5 interview with two sheriffs. He knew they were
6 taking notes. He knew they were going to make a
7 report. He knew it was part of this investigation.
8 He knew that the reports were likely to be
9 circulated.
10 They have been circulated. They are not
11 under any particular special form of privilege.
12 They have been produced to the defense. They are
13 available to use at trial. He knew the information
14 he gave could be used in the investigation.
15 THE WITNESS: That’s not true. I didn’t
16 know any of that. I knew some of that.
17 MS. SAGER: Ian.
18 Actually, I was going to object, Your Honor,
19 but I was going to let Mr. Mesereau finish first.
20 THE WITNESS: Okay.
21 MR. MESEREAU: He gave extensive information
22 about Schaffel, Konitzer, his discussions with them,
23 his perceptions of them. And it’s very clear from
24 the interview he knew exactly what he was doing.
25 MS. SAGER: And, Your Honor, I would point
26 out two things. One is Mr. Mesereau, with due
27 respect, has not established any of the things that
28 he just said as to what Mr. Drew knew or didn’t 8266
1 know. He’s merely asserted them.
2 Second, we’re talking about a waiver of a
3 constitutional right, First Amendment right and
4 state constitutional right. And I don’t think Mr.
5 Mesereau has established either that Mr. Drew
6 understood or had any reason to know when he was in
7 that conversation that there was later going to be a
8 position taken that, by talking to the police
9 officers at all, that he was waiving his
10 constitutional rights.
11 THE COURT: Are there any cases on this
12 scenario where a person talks freely to the law
13 enforcement and then claims the shield law in court?
14 MS. SAGER: I don’t know of a case in
15 California, Your Honor, that deals with this
16 particular issue.
17 The Playboy case, which we cited in our
18 papers, does deal with the difference between
19 revealing information publicly and any other
20 information that may be related that’s not revealed
21 publicly, and they draw a very strict line. The
22 language of Article I, 2(b), talks about information
23 that is disseminated to the public. Everything else
24 is defined as unpublished information.
25 THE COURT: What about -- I didn’t read the
26 Playboy case. What was the disclosure in the
27 Playboy case?
28 MS. SAGER: In the Playboy case, there was 8267
1 an interview published with Cheech and Chong that
2 had some information that they had given during the
3 course of an interview with a Playboy --
4 THE COURT: But nobody understood what they
5 said.
6 (Laughter.)
7 MS. SAGER: Everybody bought it for the
8 article, too.
9 (Laughter.)
10 MS. SAGER: The argument was made, in
11 subpoenaing all of the information from Playboy,
12 that they had already revealed, in fact, what was
13 said in the interview because they wrote an article
14 about it.
15 And the Court of Appeal in the Second
16 Appellate District said only what is actually
17 revealed in the article disseminated to the public
18 has been revealed, even though there were
19 discussions with Mr. Cheech and Mr. Chong, even
20 though there was some information published.
21 THE COURT: Are you familiar with that case,
22 Counsel.
23 MR. MESEREAU: I am not, Your Honor. But I
24 would -- I haven’t completed my examination of him
25 yet, so I don’t think -- I think it’s rather
26 premature to conclude we can’t establish that he
27 didn’t know what he was doing or didn’t know he
28 was -- 8268
1 THE COURT: The question, though, is what
2 questions he has to answer right now while you’re
3 trying to complete your examination. That’s the
4 problem. And --
5 MR. MESEREAU: Well, Your Honor, if I can’t
6 cross-examine him on the issues he wants to testify
7 on direct about, then I don’t think he should be
8 allowed to testify as a witness.
9 MS. SAGER: And, Your Honor, I’d only point
10 out that we did not brief the issue of waiver,
11 because it did not come up, but there’s certainly a
12 long line of cases about the waiver of
13 constitutional rights needs to be knowing, not
14 simply a voluntary conversation, but a knowing
15 waiver of your rights.
16 And if Mr. Drew is asked, I expect he could
17 answer the question as to whether he knew and
18 understood that, by any conversation he had with
19 these officers, he was waiving all rights he might
20 have under the California shield law and the
21 Constitution.
22 THE WITNESS: Can I actually say, I was told
23 by the officers and I actually had the understanding
24 that --
25 THE COURT: Just a moment.
26 THE WITNESS: All right.
27 THE COURT: The way we have to do this is we
28 rely on your attorney to help -- 8269
1 THE WITNESS: Okay.
2 THE COURT: -- what she wants to bring out.
3 You -- that’s the -- you have a very competent
4 attorney, so I think you should --
5 MS. SAGER: Thank you, Your Honor.
6 THE WITNESS: Thank you.
7 MS. SAGER: And I just would add, Your
8 Honor, that I don’t disagree with Mr. Mesereau about
9 whether Mr. Drew should have to testify at all. I
10 do think getting into cross-examination will lead
11 into areas that are covered by the privilege, which
12 is the reason we put that in our brief. It is a
13 problem when you have reporters called as witnesses,
14 because even if one side tries to limit what they’re
15 asking to published information, it is inevitable
16 the cross-examiner will attempt to get into other
17 areas that are not published and that do delve into
18 reporters’ constitutionally protected information.
19 MR. MESEREAU: If I may, Your Honor.
20 THE COURT: Yes.
21 MR. MESEREAU: There is information in the
22 police reports that suggests that it was the
23 conclusion of the investigating sheriffs that Mr.
24 Drew has been a business associate of Mr. Schaffel.
25 The Court already knows, because it’s in
26 evidence, that he did conduct an interview of Debbie
27 Rowe at Mr. Schaffel’s residence, presumably at the
28 behest of Mr. Schaffel. And there is considerable 8270
1 evidence in the police reports that he has
2 relationships with Konitzer and others.
3 Now, if he’s going to be called to testify
4 to what Mr. Konitzer says to him, it would terribly
5 prejudice our ability to defend if we couldn’t
6 extensively cross-examine on veracity, on bias, on a
7 motive to make a statement for a particular reason,
8 and also his relationship with these people. If we
9 can’t do that, he should be precluded from
10 testifying.
11 MS. SAGER: And the problem again, Your
12 Honor, is journalists have relationships with a
13 number of people. They may be getting information
14 from a lot of different sources. And the fact that
15 they get information from people that they may later
16 want to publish, that’s something that is
17 tremendously protected under the First Amendment.
18 And to allow counsel to cross-examine into
19 what information he may or may not have gotten from
20 people who may have been confidential sources, may
21 have been on-the-record sources but were not ever
22 published, really opens up the privilege widely, and
23 for something that in this case, frankly, is a
24 tangential issue.
25 And there’s some question about whether this
26 particular statement has any relevance here, given
27 that I don’t believe it’s disputed that the family
28 left when they left, why they left. And the 8271
Subject: April 29, 2005 
Tue Mar 13, 2012 1:06 pm
