3726
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 IN AND FOR THE COUNTY OF SANTA BARBARA
3 SANTA MARIA BRANCH; COOK STREET DIVISION
4 DEPARTMENT SM-2 HON. RODNEY S. MELVILLE, JUDGE
5
6
7 THE PEOPLE OF THE STATE OF )
8 CALIFORNIA, )
9 Plaintiff, )
10 -vs- ) No. 1133603
11 MICHAEL JOE JACKSON, )
12 Defendant. )
13
14
15
16
17 REPORTER’S TRANSCRIPT OF PROCEEDINGS
18
19 MONDAY, MARCH 28, 2005
20
21 8:30 A.M.
22
23 (PAGES 3726 THROUGH 3787)
24
25
26
27 REPORTED MICHELE MATTSON McNEIL, RPR, CRR, CSR #3304
28 BY: Official Court Reporter 3726
1 APPEARANCES OF COUNSEL:
2
3 For Plaintiff: THOMAS W. SNEDDON, JR.,
4 District Attorney -and-
5 RONALD J. ZONEN, Sr. Deputy District Attorney
6 -and- GORDON AUCHINCLOSS,
7 Sr. Deputy District Attorney -and-
8 MAG NICOLA, Sr. Deputy District Attorney
9 1112 Santa Barbara Street Santa Barbara, California 93101
10
11
12 For Defendant: COLLINS, MESEREAU, REDDOCK & YU
13 BY: THOMAS A. MESEREAU, JR., ESQ. -and-
14 SUSAN C. YU, ESQ. 1875 Century Park East, Suite 700
15 Los Angeles, California 90067
16 -and-
17 SANGER & SWYSEN BY: ROBERT M. SANGER, ESQ.
18 233 East Carrillo Street, Suite C Santa Barbara, California 93101
19 -and-
20 OXMAN and JAROSCAK
21 BY: R. BRIAN OXMAN, ESQ. 14126 East Rosecrans Boulevard
22 Santa Fe Springs, California 90670
23
24
25
26
27
28 3727
1 Santa Maria, California
2 Monday, March 28, 2005
3 8:30 a.m.
4
5 (The following proceedings were held in
6 open court outside the presence and hearing of the
7 jury:)
8
9 THE COURT: Good morning.
10 COUNSEL AT COUNSEL TABLE: (In unison)
11 Good morning, Your Honor.
12 THE COURT: I’ll say that again. Good
13 morning.
14 MR. SANGER: Good morning.
15 THE COURT: Let’s see, the moving party here
16 is the People.
17 MR. SNEDDON: Good morning, Your Honor.
18 What I would like to do in my presentation
19 this morning is to proceed by setting a little bit
20 about the legal framework for which the discussion
21 on the 1108 motion in particular, and begin with the
22 1108 motion.
23 And I think the simplest way to begin with
24 this discussion is the fact that in 1995, the
25 legislature, in enacting Penal Code Section 1108,
26 significantly changed the law in California and the
27 practice of criminal law in California. It’s clear
28 from the legislative intent of Section 1108 that it 3728
1 was a recognition that crimes such as child
2 molestation are secretive, they’re serious,
3 children are particularly and uniquely vulnerable,
4 and that oftentimes, and in most cases in fact, it’s
5 the credibility of the victim that is at issue.
6 The Supreme Court in Falsetta that upheld
7 Section 1108 against the constitutional attacks made
8 it very clear that these types of crimes are
9 committed in seclusion, without third-party
10 witnesses, and without substantial corroborating
11 evidence. And it’s precisely for that reason that
12 the legislature enacted Penal Code Section 1108.
13 Secondly, there was a legislative finding
14 that has been repeated over and over and over again
15 by the courts of this state in recognizing the
16 validity of that particular -- this particular
17 legislative finding; that is, that the willingness
18 to commit sexual offenses is not common to most
19 individuals, and therefore propensity evidence is
20 uniquely probative and necessary in determining the
21 credibility of witnesses.
22 There’s a further legislative intent
23 reflected in 1108 that has again been repeatedly
24 confirmed by the courts of this state, and that is
25 that Evidence Code Section 1108 evidence should be
26 liberally admitted. Indeed, cases now recognize
27 that it’s established principle that it is
28 presumptive to be admissible in criminal cases. 3729
1 We feel for this reason that the evidence,
2 and the pro-offer of proof that we’ve indicated to
3 the Court we intend to present would be in this
4 case, is consistent with the legislative intent and
5 consistent with the judicial interpretation of
6 Section 1108 and be uniquely admissible as to
7 corroborating the victims in this particular case.
8 Now, in that connection, Your Honor, the
9 Court is in a much better position now than it would
10 have been to hear this motion before trial started
11 because the Court’s now had an opportunity to see
12 the testimony and the evidence of Gavin Arvizo, that
13 of the sister and of the brother.
14 But more importantly, the Court has had an
15 opportunity to hear Mr. Mesereau’s opening statement
16 and Mr. Mesereau’s cross-examination of the family
17 members in this particular case, and including Gavin
18 Arvizo. There’s no question that they have
19 presented squarely the fact that the issue -- that
20 the family’s credibility, and Gavin Arvizo’s
21 credibility, and in fact indeed the mother’s
22 credibility, is central to the defense case, and
23 that is precisely -- precisely the reason that 1108
24 was enacted.
25 Pursuant to their theory, I don’t think it’s
26 been any secret, it’s been a scorched-earth process,
27 there’s a take-no-prisoners approach to these
28 children and to this mother who is going to testify 3730
1 in the next couple of weeks. And while this
2 approach is hardly unique, it’s hardly unexpected
3 and it’s hardly novel, the point is that these are
4 precisely the kind of tactics that the legislature
5 recognized where propensity evidence should be
6 admitted in order to balance the scales in
7 situations where an accused has exhibited propensity
8 to commit similar types of crimes.
9 Now, I don’t intend to go through the offers
10 of proof in detail, because the Court already has
11 the information before it. But I would like to
12 summarize what it is for the Court that we’re
13 seeking to admit.
14 First, we’re asking the Court’s permission
15 to allow us to have one prior child victim testify
16 to three separate incidents of molestation by the
17 defendant. The molestations are very similar in
18 nature. They involved the genitalia of the kid --
19 of the child, and they involve instances where --
20 two instances outside the clothing of the child on a
21 prolonged basis, and a third incident where the
22 child -- where the hand was thrust up inside the
23 pants of the child, onto the skin of the child.
24 We’re seeking to admit no less than five
25 third-party witnesses of inappropriate molestations
26 and touchings by the defendant as to four separate
27 children. Again, the conduct is similar in nature.
28 Some of it is kissing, hugging. And other parts of 3731
1 it involve, again, insertion of the defendant’s hand
2 into the genitalia of the particular children
3 involved.
4 I think it’s noteworthy to bring to the
5 Court’s attention, as I will also cover in certain
6 parts of my other presentation to the Court, all of
7 these children are basically between the ages of 10
8 and 13 at the time that the offenses occurred or
9 were observed by third parties.
10 Thirdly, there is -- there are some
11 witnesses who have direct observation by third-party
12 witnesses that involve multiple incidents involving
13 the same child. So we not only have witnesses that
14 are multiple, but we have multiple incidents
15 involving observations of the third party.
16 We have an additional incident -- an
17 additional witness who will testify to incidents
18 involving the defendant with children, four other
19 children, observing the defendant in bed with four
20 other children, and on three of those occasions
21 observing the child and the defendant in bed, and
22 that the child and the defendant’s underpants were
23 lying next to the bed.
24 We have a sixth incident that involves the
25 same child that has already been observed by at
26 least two other witnesses that are on our list to be
27 called as being -- that observed acts of molestation
28 by the defendant. And this witness observed the 3732
1 defendant licking the head of a child in the
2 identical manner to that described by Star Arvizo,
3 as will be described by Janet Arvizo. We think this
4 is particularly probative in light of the
5 defendant’s contention filed by papers in this court
6 that this is an example of Janet Arvizo’s delusional
7 state that she saw this, when, in fact, we have
8 another witness who saw this very conduct occur by
9 the defendant as to another child about the same age
10 as Gavin Arvizo.
11 Lastly, we have two witnesses that will
12 testify to the fact that the defendant encouraged
13 children to call him “daddy,” children other than
14 the children in this case, and that he talked about,
15 with the mother of one of the children, how it was
16 important that the mother think of him and the
17 children and them as being all one big family, and
18 they were like family together. Again, conduct and
19 statements which have been, to this point in the
20 trial, alleged to have been uniquely responsible to
21 the Arvizo family, when, in fact, there’s evidence
22 indicating that the defendant has used this approach
23 with children and families prior to the commencement
24 of the trial of this particular case and in other
25 instances involving families that are not -- have
26 not have been a party so far.
27 With regard to the 1108, of course, the
28 central issue is the balancing of the probative 3733
1 value versus the substantial undue prejudice to the
2 defendant. I think that it is -- it is important to
3 keep in mind what the courts have said about undue
4 prejudice and what the courts have said about a
5 substantial prejudice, because these are concepts
6 that are unique in the legal profession and they are
7 unique to cases such as this.
8 And I think the first starting point for us
9 in this regard, Your Honor, is the language that is
10 found in cases that recognize that the unique stigma
11 of a child sexual abuse case, the danger is one that
12 all propensity evidence -- it is the same in all
13 propensity evidence in such trials. It is for this
14 reason that the evidence was previously excluded but
15 is precisely the reason now that it’s admitted into
16 evidence.
17 So simply the fact that it is a child molest
18 prior charge or uncharged offense in and of itself
19 doesn’t answer the question as to whether it’s
20 prejudicial. In fact, the language that we’ve
21 quoted to the Court in our moving papers of the
22 Branch court, the Branch case made it very clear
23 that where the conduct of the defendant in the case
24 before the Court and the conduct of the defendant in
25 the charged or uncharged acts is very similar in
26 nature, that that is found not to be what the courts
27 would consider inflammatory or prejudicial under the
28 concept of 1108. 3734
1 And that is precisely the situation that we
2 have here. The conduct is very similar, if not
3 identical, in many of the instances, and therefore
4 in the balancing of the 352 criteria, under the
5 doctrines of those cases that have analyzed the
6 balancing process, that has not been found one that
7 would cause the Court concern in allowing this
8 evidence to come before a court.
9 I think it’s also important, Your Honor, to
10 recall the language in the Soto case that we cited
11 to the Court with regard to prejudice. And if the
12 Court would allow me, I’d like to read just a little
13 bit from that decision at page 989:
14 “Prejudice, as contemplated by Section 352,
15 is not so sweeping as to include any evidence the
16 opponent finds inconvenient. Evidence is not
17 prejudicial, as that term is used in Section 352
18 context, merely because it undermines the opponent’s
19 position or shores up that of the proponent. The
20 ability to do so is what makes evidence relevant.
21 The code speaks in terms of undue prejudice. The
22 prejudice referred to in Evidence Code 352 applies
23 to evidence which uniquely tends to evoke an
24 emotional bias against a defendant as an individual
25 which has very little effect on the issues. In
26 applying 352, prejudice is not synonymous with
27 damaging.”
28 I think that’s important in this case, 3735
1 particularly in light of what I’ve just said about
2 how the Branch case and the Falsetta case and some
3 of the others have applied the principle that when
4 the case is similar in nature and the conduct is
5 similar in nature, that that doesn’t rise to be
6 inflammatory under the balancing process.
7 The second balancing issue for the Court as
8 outlined in the cases is remoteness. This
9 particular case -- in this particular case, at the
10 time that the charges were actually filed two years
11 ago, the incidents involved would have been
12 somewhere between 10 to 12 years prior to this case.
13 We have cited to the Court in our moving
14 papers a number of cases involving remoteness. And
15 of those cases, there are 11 of them that I
16 believe -- at least 11 that have been indicated,
17 been cited to the Court. Some, like Branch, are 30
18 years old. Seven of the cases involve uncharged
19 prior offenses. Four of the cases involve charged
20 prior offenses where there was either a trial or an
21 admission -- a trial finding of guilt or an
22 admission of guilt. In those cases, we have cases
23 like Frazier, which is 15 and 16 years old. Soto
24 case, uncharged, 20 years old. Davis case, 13
25 years, uncharged. Branch, 30 years, uncharged.
26 Fitch, the case was seven years, uncharged. Waples,
27 W-a-p-l-e-s, 20 years, uncharged.
28 And some of the charged ones, again, like 3736
1 Pierce, they were 23 years old. And Falsetta, they
2 were 14 and 12 years old. And in Britt, the priors
3 were 13 and 22 years old. And in a murder case,
4 where they admitted evidence under 1101 where
5 remoteness was at issue in a murder case, the
6 uncharged crime was 17 years old.
7 So I think the Court can see that with
8 regard to the remoteness issue, the balance on the
9 scale is far in favor of admissibility of the
10 charges of the uncharged cases and priors that we
11 seek to admit. The cases make it very clear that
12 this is not something that would cause a Court
13 concern in allowing the admissibility of prior
14 uncharged acts.
15 Now, I think where the problem arises in
16 this area, Your Honor, is with the Harris case. And
17 I think the Court is familiar with the Harris case.
18 It’s been cited by both sides. And it is the only
19 published case that we have found that actually
20 deals with a situation where a lower court was
21 reversed on an abuse of discretion where they
22 allowed 1108 evidence in. There are several other
23 cases that reversed, but most of those were for
24 instructional error before the Court came down with
25 guidance as to what instructions to be given to the
26 jury with regard to these particular issues.
27 But Harris is the only case that I’ve been
28 able to find and it’s the only case that’s been 3737
1 cited by either side where a Judge was reversed on
2 appeal. And I think Harris illustrates the
3 difference here between remoteness and the
4 connection between remoteness and the confusion,
5 which is the third factor that the Court has
6 considered with the jury.
7 The problem with the Harris case was, it
8 involved a tremendous amount of violence. As you
9 may recall from that case, Your Honor, the victim
10 was attacked. She was mutilated in the genitalia
11 area. She was stabbed multiple times. The knife
12 was left in her body at the time. There was
13 evidence at the time that the defendant, Harris, was
14 found, that he had blood on his private parts and in
15 a size that, in essence, the woman had been raped as
16 well as mutilated. And the charging offense was a
17 288 without any violence in it at all.
18 And the Court found on appeal that that case
19 simply was one of those cases where the Court should
20 have exercised its discretion and not allowed it in
21 because of the fact that the conduct was so
22 dissimilar and the conduct was inflammatory because
23 of the nature of the violence involved.
24 And the other factor that the Court pointed
25 out was how, in attempting to try to balance the
26 inflammatory nature, the Court basically redacted
27 the way the crime was committed in such a fashion
28 that it was absolutely impossible for the jury to 3738
1 understand what really happened.
2 And of course that’s not -- that’s not a
3 problem that this Court is faced with. We’re not
4 faced with a Harris, because the crimes are not
5 different. We’re not faced with a Harris, because
6 we’re not dealing with violence. We’re not faced
7 with Harris, because there’s no reason for this
8 Court to redact anything, because of the very, very,
9 very similar nature of the conduct involved with the
10 defendant and Gavin Arvizo and the ones that we’re
11 attempting to put in as uncharged prior acts.
12 So I say to the Court that the confusion to
13 the jury in this case is simply not present. And
14 for whatever -- whatever hay that the defense wants
15 to make of it in their argument to the Court, the
16 fact of the matter is, it is clearly distinguishable
17 from the instant case.
18 Now, the last factor we want to talk about
19 is undue consumption of time. And we’ve indicated
20 to the Court in our moving papers what our estimate
21 of the direct examination of the witnesses would be;
22 that basically almost all of the cases, the direct
23 examination would be less than an hour, and in some
24 cases significantly less than that. That’s not
25 accounting for the defense’s right for
26 cross-examination.
27 But I will indicate to the Court to the
28 Court, as pointed out in the Frazier case, and this 3739
1 is a 2001 case, 89 Cal.App.4th, at page 42, in that
2 particular case, 182 pages of the transcript, in
3 other words, 27 percent of the trial, in other
4 words, the Court said in the decision, one quarter
5 of the trial was devoted to the priors, that that
6 was not, in their opinion, undue consumption of
7 time.
8 Now, given the length of time of this trial,
9 and given what we’re seeking to admit, and the
10 tightness of the issues that we’re talking about,
11 clearly our case is not even going to come close to
12 consuming 25 percent of the trial time in this case.
13 And the second one that the Court -- if the
14 Court wants to review another case that also
15 examined the same issue of undue consumption of time
16 is the Mullens case, M-u-l-l-e-n-s. And that’s a
17 2004 case. It’s a very recent case, 119
18 Cal.App.4th, 648 at 661, where the defense in that
19 particular case made the same or similar remarks as
20 the defense in this case; that we’ll end up with a
21 series of mini-trials over the uncharged acts.
22 Well, that of course, is exactly what happened in
23 the 11 cases that we cited to you where multiple
24 uncharged or charged offenses were admitted into
25 evidence. And the Court, in those cases, as well as
26 this recent case, indicated that’s really not an
27 appropriate reason in and of itself to reject 1108
28 evidence in light of the very, very strong 3740
1 legislative intent that this kind of evidence be
2 admitted in trials of this very nature.
3 So I indicate to the Court that all of the
4 balancing factors that have been traditionally
5 looked to by courts for the issue of 1108
6 admissibility not only tend to favor the prosecution
7 in this case, but I think on balance favor, in a
8 very strong way, that this Court should admit the
9 evidence that we seek to bring before the jury in
10 this particular case.
11 Let me just say one last thing in that
12 connection, Your Honor, and that is one of the
13 things that the Court has looked at in factors of
14 admissibility in this area in terms of the probative
15 value. And I’ve talked a lot about the prejudicial
16 effect. But the probative value, that there are
17 three principles I think that can be distilled from
18 the cases in this area.
19 From the Ewoldt case, E-w-o-l-d-t, which is
20 one of the leading cases on 1101 evidence, but
21 clearly the language is probative on this particular
22 issue, and that is the probative value of uncharged
23 offenses increases when the source is of independent
24 evidence. And by the way, that very language has
25 been cited in some of the 1108 cases, and so that’s
26 the reason I went back to the seminal case on it.
27 But the fact of the matter is, that’s exactly what
28 we have here is uncharged offenses which are of an 3741
1 independent source and independent witnesses.
2 In the Yavanov, Y-a-v-a-n-o-v, case, which
3 is cited in our brief, and the language is found at
4 page 405, another factor on the probative value is
5 the frequency of the uncharged acts bolsters the
6 relevance. And again, we have -- as I’ve indicated
7 to the Court, the frequency and the number of
8 individuals involved who observed things as well as
9 the different number of victims that were observed.
10 And lastly, the Frazier case at 89
11 Cal.App.4th, page 30 at page 41, indicated insofar
12 as 1108 evidence goes that the pattern as to the
13 same type of children is significant in the
14 balancing process.
15 And we submit to the Court that in this
16 case, of course, the pattern in the similarities;
17 that the victims are similar in age, the manner in
18 which the victims were cultivated is similar, and
19 the crimes are similar. And under these doctrines,
20 I think, are all the more reason why this evidence
21 should be admissible.
22 At this point, Your Honor, I’d like to just
23 shift gears, if I might, to deal a little bit with
24 the 1101 issue before the Court. And again, I’ll
25 try not to go over things I’ve already covered and
26 that have been briefed, but I want to highlight some
27 of the things that are more relevant to the Court’s
28 decision here this morning. 3742
1 I think it’s important to start again with
2 the cases that are responsible for developing the
3 guidelines under Section 1101 of the Evidence Code.
4 And, you know, those two cases are -- came down at
5 the same basic time, and that was Ewoldt and Balcom,
6 B-a-l-c-o-m. Balcom’s at 7 Cal.4th, and the
7 language I’m citing is around 424. But they make it
8 very clear -- that decision made it very clear that
9 when Courts are faced with evidence admissibility
10 under 1101, that they are usually and traditionally
11 divided into three camps. There’s the identity, the
12 modus operandi and intent. And there are different
13 standards for the Court with regard to reviewing the
14 admissibility.
15 And we have indicated to the Court that we
16 are seeking to admit the evidence that we put in our
17 offer of proof under at least three, if not four,
18 separate exceptions that are noted in 1101(b) of the
19 Evidence Code. And the first, of course, is the
20 intent. And by intent, we’re talking about the lewd
21 and lascivious act and the sexual gratification for
22 which the acts were done in this case. And
23 particularly I think if you look at the language in
24 the Branch case at 91 Cal.App.4 at 274, you’ll see
25 in an analysis of that case how the intent or the
26 sexual gratification is a key issue in cases of
27 288(a), which is the kind of offense that we have
28 before the Court here. 3743
1 Again, we indicated to the Court a second
2 reason for the admissibility is the motive. And the
3 motive has been recognized by the Thompson case,
4 which we also cited to the Court, is the incentive
5 to criminal behavior. And here it’s a propensity,
6 proclivity for the defendant to be involved in
7 relationships with children between the ages of 10
8 and 13.
9 And lastly -- well, in addition to
10 opportunity, we indicated the modus operandi, and I
11 want to point out just a couple of things on modus
12 operandi. Modus operandi on the scale of the issues
13 on both the Ewoldt and Balcom cases is in the
14 middle. And when it’s intent, there needs to be
15 less similarities. When it’s identity, there needs
16 to be almost like a hand print. And for modus
17 operandi, it’s sort of in the middle. But both
18 Balcom and Ewoldt make it very clear that when
19 you’re dealing with modus operandi, it does not have
20 to be distinctive necessarily, nor does it have to
21 be unusual.
22 Now, I would submit to the Court, on the
23 other hand, in this particular case we have both a
24 distinctive one and an usual one, and that is that
25 we have a series of acts involved on male children
26 between the ages of 10 and 13. And we have pointed
27 out to the Court in our points and authorities a
28 number of cases that have found, in evaluating the 3744
1 admissibility of 1101 evidence, critical
2 similarities that are far less unique than the ones
3 I’ve suggested to the Court here.
4 I won’t go through the whole litany, but
5 I’ll direct the Court to page 46 of our brief
6 between lines 20 and 28, and we indicated to the
7 Court there are no less than, looks like, eight
8 cases in which the courts of the state have admitted
9 evidence under 1101 where the similarity involved
10 things just like I have suggested to the Court.
11 Victims: Close relatives, white, young, females,
12 all white males between the ages of 18 and 25. I
13 mean, how close can you get? Two 12-year-old
14 children. So I think the Court is on very firm
15 ground in evaluating the admissibility of evidence
16 that we seek under 1101(b) to rely on those cases
17 and rely on the distinctive nature of the uncharged
18 offenses in this particular case.
19 Of course in the 1101 field, the balancing
20 test, the four factors that were outlined in 1108
21 also apply to 1101(b), and I -- without reiterating
22 them -- and I won’t reiterate the factors that I’ve
23 gone through, but I see nothing in the evidence that
24 we seek under 1101(b) that my remarks to the Court
25 would be any different than the remarks I made under
26 1108. And, in fact, probably, in many cases, would
27 follow even stronger in the area of admissibility
28 than they would have been in the 1108 area. 3745
1 I would like to point out to the Court,
2 however, the case of Dancer, D-a-n-c-e-r, which is a
3 case that we cited in our brief, and in particular
4 we cited -- that’s at 45 Cal.App.4th 1677. And on
5 page 486 -- 485 of our brief, we indicated in the
6 Dancer case they found something like 12 or 13 items
7 of similarity in that case. And we contrasted that
8 and compared that to our particular case where we
9 identified for the Court at least 17 similarities,
10 much of the same -- paralleled the same kind of
11 information that was available in Dancer. And it’s
12 for those reasons, Your Honor, we believe that that
13 case is very pertinent to the admissibility of the
14 evidence presented here.
15 I would like to reiterate that I think
16 there’s a couple of things that need to be said
17 here. The defense has made a big thing about the
18 fact that the defendant -- in fact, Mr. Mesereau
19 stood up in his opening statement and read off a
20 list of things that the defendant, Michael Jackson,
21 has bought the mother of the victim in this case.
22 And I think it’s illustrative of the fact
23 that this is not unique to the mother in this
24 particular case, but that -- to other mothers
25 involved with other children, that we intend to put
26 evidence on that this was a rather standard
27 procedure for the defendant to buy gifts and to do
28 things for the mothers in those cases to keep them 3746
1 preoccupied so the defendant would have free rein
2 with the child involved.
3 And again, the other part of the 1108 is to
4 establish that the nature of the relationship with
5 these children, that there was nothing unique about
6 the relationship that was developed between Gavin
7 Arvizo and the defendant in this case, that it was
8 precisely -- precisely like the kind of relationship
9 that he developed and had with a number of special
10 friends over a period of a number of years that were
11 witnessed by the witnesses that we’ve indicated to
12 the Court, that have observed that kind of
13 relationship between the defendant and children
14 between the ages of 10 and 13. And by “that kind of
15 relationship,” I want to make it clear to the Court
16 what I’m talking about. It’s a relationship
17 different from that, from kids who are visiting that
18 ranch for purposes of riding the rides, going to the
19 movies, enjoying the facilities, and then leaving,
20 on a day basis.
21 These are relationships that were developed
22 on an ongoing basis where the children came, they
23 visited, oftentimes they visited without their
24 parents. They visited other locations where the
25 defendant was living at other times, and developed
26 the kind of relationship that we have heard
27 testimony about with Gavin Arvizo. And I think,
28 again, that this is the kind of evidence precisely 3747
1 that this jury ought to hear, that this is not the
2 first time that the defendant has approached a child
3 in this manner and in this respect and think that
4 it’s a unique experience for Gavin Arvizo. That, in
5 fact, this is the way that the defendant operates.
6 And that’s precisely why I believe that the modus
7 operandi exception is uniquely applicable to this
8 particular case.
9 I’m assuming, Your Honor, that just about,
10 I think, wraps up what I wanted to draw the Court’s
11 attention to. Of course, I don’t want to repeat the
12 things we put in our brief. And I’ll reserve, of
13 course, my remarks.
14 I think the Court would like to -- I’m
15 assuming the Court would like to handle the
16 admissibility of the evidence of the civil
17 settlements after the Court finishes this evidence,
18 and I’m not addressing that now.
19 THE COURT: That’s fine.
20 MR. SNEDDON: I’m open to any questions that
21 the Court has at this point, if you have any.
22 THE COURT: No.
23 MR. SNEDDON: Thank you very much, Your
24 Honor, for listening to me.
25 MR. MESEREAU: Good morning, Your Honor.
26 Your Honor, my approach is going to be quite
27 different from that of the prosecutor. And my
28 approach is based upon comments made by this Court 3748
1 at a prior hearing on this issue.
2 When the issue initially surfaced in open
3 court, this Court very courageously and honorably
4 described a prior incident where Your Honor was the
5 trial judge in a case brought by prosecutors against
6 a defendant alleging child molestation. The
7 defendant pled not guilty. The Court used all of
8 the cases, I’m sure, that Mr. Sneddon has cited to
9 justify the admission of 1108 evidence. The Court
10 heard that 1108 evidence, then the Court heard the
11 underlying case, and as I interpreted what the Court
12 said, Your Honor, you found the underlying case so
13 lacking in credibility and substance and so
14 problematic that you declared a mistrial, even
15 though you had, under the technical law cited by
16 Mr. Sneddon repeatedly this morning, allowed in 1108
17 evidence.
18 THE COURT: Counsel, that -- actually, I
19 granted a new trial after conviction, but the same
20 point.
21 MR. MESEREAU: Okay.
22 THE COURT: Based on that point.
23 MR. MESEREAU: I have no doubt that every
24 case and authority cited by Mr. Sneddon could have
25 been used to justify the admission of that evidence.
26 But the Court did not just rely on those cases. The
27 Court did not just rely on those authorities. The
28 Court had a concern for justice, and fairness, for 3749
1 which we commend the Court. And the Court was not
2 going to allow the 1108 statute to supersede
3 fairness, justice, the presumption of innocence and
4 the burden of proof.
5 And I think the Court crystallized the issue
6 before it this morning when you related that event.
7 What I believe the Court was concerned with, and I’m
8 putting it in slightly different terms, is that this
9 Court, despite that statute, did not want to see
10 either the burden of proof or the presumption of
11 innocence reduced or eliminated by the introduction
12 of that evidence. And what I believe the Court
13 said, in different words, was the following: The
14 weaker the case, the more problematic the 1108
15 evidence. The stronger the underlying case, the
16 less a possibility of prejudice and injustice by
17 admitting it.
18 And indeed, no matter what the prosecutor
19 may cite in his arguments to the Court, the statute
20 does allow the Court to exercise discretion under
21 Evidence Code 352, and that discretion is
22 significant.
23 That gets us to the question, what has the
24 Court seen in this courtroom? Is the case strong on
25 credibility and substance or is it weak on
26 credibility and substance? If it’s really powerful,
27 the Court probably is less worried. If there are
28 credibility problems with their case and their 3750
1 witnesses, the Court has great concern to worry
2 because the potential for lessening the burden of
3 proof on the prosecution in this case would be
4 great.
5 Now, the Court is dealing with some unique
6 situations. First of all, you have a celebrity. A
7 celebrity who has been subjected to all kinds of
8 innuendo, scandalous reporting and rumor, and a
9 celebrity who has attracted all kinds of claims for
10 money, who has developed a lifestyle at Neverland
11 which he has advertised to the world, which he
12 believes and contends, and many believe, is a
13 benefit to society. The prosecution has come in to
14 try and turn all this on its head and suggest that
15 Neverland is some magnet for molestation and
16 criminal behavior. Well, that’s going to be an
17 issue for the jury. But certainly at this point the
18 Court knows, based on the evidence alone, that Mr.
19 Jackson has developed Neverland as a Disney-like
20 type of world that he uses to help children from the
21 inner city, children around the world, et cetera.
22 There’s a bigger problem than the uniqueness
23 of the case, and none of the cases cited by Mr.
24 Sneddon deal with celebrities or anyone remotely
25 close to Mr. Jackson in terms of notoriety and
26 attraction for greed and misuse of the legal
27 process.
28 The Court has seen three witnesses who the 3751
1 Court -- who the prosecution suggests are victims.
2 And without going into a lot of the details, which I
3 don’t think the Court wants me to give a closing
4 argument at this point, but there is no question all
5 three of those witnesses have been riddled with
6 problems in their testimony. All have agreed they
7 lied repeatedly. All were caught lying on the
8 witness stand. All were caught in notorious and
9 repeated inconsistencies and all contradicted
10 themselves repeatedly. Every witness was a problem.
11 Now, if the Court agrees there are
12 significant credibility problems with Gavin Arvizo,
13 Star Arvizo, and Davellin Arvizo -- and I believe
14 the Court does, because I don’t see how anyone
15 watching the cross-examination could disagree with
16 that. If the Court thinks there are issues to worry
17 about, I would ask the Court to add to that concern
18 the following: Gavin alleges two acts of alleged
19 molestation. There is no eyewitness to either one.
20 And there is no DNA to support it. In fact, there’s
21 no forensic evidence at all to support it. Star,
22 along with his credibility problems, alleges -- it
23 changes, the number. But he appears to allege two
24 acts of molestation, separate from those of Gavin
25 that he watched. There is no eyewitness. There is
26 no DNA. There is no forensics to support it.
27 So as the Court looks at the evidence so
28 far, what do you really have? You have what, in 3752
1 effect, is a very problematic case, and I submit the
2 prosecutors know that. It’s extremely problematic.
3 It’s filled with credibility issues. And those
4 credibility issues I submit to the Court at this
5 point are compounded by the evidence they’ve tried
6 to introduce so far about conspiracy.
7 Now, I realize we’re talking this morning
8 about the molestation claims, but certainly the
9 Court, and any jury, when gauging credibility, if
10 the Court thought the conspiracy claims were
11 problematic, filled with credibility issues, that
12 would most certainly and rationally spill over into
13 other claims and vice versa.
14 Now, the Court at this point has heard the
15 prosecutors talk about the mother. You’ve seen the
16 rebuttal tape. You’ve seen the demeanor of the
17 witnesses. You’ve seen the three witnesses get up
18 and say, “We all were lying repeatedly.” The Court
19 at this point has its own conclusions about what
20 that rebuttal tape suggests and whether these
21 answers were spontaneous or whether they were
22 scripted and rehearsed. And I don’t think anyone
23 looking at that tape is even going to imagine that
24 these are all rehearsed answers. The Court knows
25 that the family were sending cards to Mr. Jackson
26 way before they made their glowing statements on the
27 rebuttal tape calling him “daddy” and how he had
28 helped Gavin with his cancer, et cetera. 3753
1 The Court has seen witnesses come in who
2 have tried to downplay what Mr. Jackson did for them
3 and get caught in notorious lies repeatedly. The
4 Court has seen notorious differences between what’s
5 said on the witness stand, what’s said in police
6 interviews, et cetera.
7 Now, the Court hasn’t seen the mother yet.
8 And we wish the Court would see the mother before it
9 makes its decision, because everything I’m arguing
10 to the Court is going to be magnified a million
11 times when she testifies.
12 What the Court has seen the prosecution do
13 is the following: They have desperately tried to
14 prove to this jury why their witnesses would tell
15 repeated lies, why they would contradict themselves,
16 why they were caught in numerous inconsistencies.
17 They are reduced, as prosecutors, not to just
18 proving a case beyond a reasonable doubt, but trying
19 to prove to a jury why their witnesses lied. And
20 they’ve gotten so desperate they’re now trying to
21 differentiate the mother from the ex-husband, which
22 is simply not going to work, because one of their
23 witnesses, Louise Palanker, when she wrote her first
24 check for $10,000, was asked by the husband to write
25 it to Janet Arvizo. It was received by Janet,
26 endorsed by Janet into her mother’s account. And of
27 course, as the Court knows, the next check which Ms.
28 Palanker wrote, because she didn’t want to pay a 3754
1 gift tax, wanted it to go to another individual, was
2 written to David. It was then also endorsed by him
3 and deposited into Janet mother’s account.
4 The prosecution is reduced now to trying to
5 prove that Janet Arvizo did not always directly ask
6 for money, and yet the overwhelming proof is going
7 to be that she didn’t directly ask for it, she
8 indirectly did, and received it. And that’s going
9 to be absolutely proven beyond any doubt when the
10 case is finally to the jury. Because we have
11 witnesses coming in our case that nobody has seen
12 yet.
13 I submit to this Court that the introduction
14 of 1108 evidence is very problematic, given the weak
15 nature and the contradictory nature of their case.
16 I submit that the introduction of 1108 evidence
17 could easily reduce the burden of proof the
18 prosecutors have, could easily jeopardize the
19 presumption of innocence in this case and could
20 render an unfair trial.
21 Again, I understand what the cases say and
22 what they cite, but this Court has very honorably
23 suggested its concern for fairness, as it was in
24 another case, and that’s why the Court waited to see
25 what some of their witnesses looked like. I wish we
26 would defer it, because every time they put a
27 witness on, it gets worse. But nevertheless, here’s
28 where we are. 3755
1 Now, what is 1108 evidence essentially?
2 Essentially it’s character evidence. And when the
3 debate was going on in legislature about whether or
4 not to create an exception, tremendous concerns were
5 raised about allowing the prosecution to simply
6 introduce evidence of -- what appears to be evidence
7 of bad character.
8 Now, they can phrase it in any terminology
9 they want, they can say it’s evidence of modus
10 operandi, intent, blah blah. But the reality is,
11 they’re trying to bring in character evidence to
12 bolster a separate charge. And any time you do
13 that, the Court has to be concerned with the
14 possibility of prejudice.
15 Now, I don’t need to recite the cases to the
16 Court on prejudice. I know the Court’s familiar
17 with them. But every time they define prejudice,
18 they define it in terms of emotion. Will it have an
19 emotional effect on the jury that is improper? Will
20 it have an emotional effect on the jury that results
21 in unfair prejudice to the defendant? And if, in
22 fact, that emotional effect is there, will it also
23 spill over into the other factors like confusion of
24 issues, et cetera?
25 The evidence they’re trying to introduce is
26 evidence of a highly inflammatory and emotional
27 nature. There’s no question about that. But I
28 think the Court also has to look at the substantive 3756
1 part of the evidence that they want to introduce,
2 because from what we can see in the cases that we’ve
3 looked at, every time they’ve introduced 1108
4 evidence in a case like this, they have had a
5 separate alleged victim describe something similar.
6 Nowhere can we find they are just
7 willy-nilly bringing in third-party witnesses to say
8 they saw something without bringing the alleged
9 victim in. Yet that is exactly what 99 percent of
10 the evidence they plan to bring in is. And I submit
11 the potential for prejudice there is overwhelming.
12 They probably couldn’t win a civil case if they were
13 pursuing a civil case based on nothing but third
14 parties. Yet they want to do it in a criminal case
15 without any of these alleged victims coming in, with
16 the exception of one, who is problematic, and I will
17 explain that to the Court.
18 So I submit the very substance of what
19 they’re trying to do is wrong, and it’s potentially
20 very prejudicial to Mr. Jackson particularly given
21 the weak nature of the case.
22 Now, let’s look at what they’re trying to
23 do. They have an alleged prior victim named Brett
24 Barnes who tells us he never was touched improperly.
25 They want to bring in four witnesses to talk about
26 Brett Barnes. They don’t want to bring him in.
27 Because the moment they bring him in, they’re done.
28 So they want to bring in allegedly four honest 3757
1 witnesses - I guess they’re vouching for their
2 credibility - to testify that Mr. Barnes was
3 improperly touched.
4 Who are their main witnesses? Their main
5 witnesses sued Mr. Jackson in the mid ‘90s, and for
6 the first time Mr. Jackson decided, “I’m tired of
7 settling these stupid cases, I’m actually going to
8 defend this one.” It resulted in the longest civil
9 trial in the history of this courthouse. And the
10 Court, I’m sure, knows a lot more about that case
11 than I do. At numerous times during that six-month
12 trial, the trial Judge made findings that the
13 plaintiffs were lying, not being candid, changing
14 their stories, even leaving the bench on a couple of
15 occasions. And when the dust settled, the jury
16 returned a verdict for Mr. Jackson, awarded Mr.
17 Jackson damages, because the plaintiffs had stole
18 from him. The Judge then awarded not only costs,
19 but legal fees, and in the end Mr. Jackson obtained
20 a judgment for over a million dollars against these
21 lying plaintiffs.
22 They want the Court to allow these lying
23 plaintiffs to come in now again and try and testify
24 to improper acts, when there is no alleged victim
25 they intend to call. That’s just plain wrong. And
26 if they suggest it wouldn’t be time-consuming to
27 litigate that issue, all the Court has to do is look
28 at the six-month trial and its length to know that’s 3758
1 not true, because they sold stories to tabloids,
2 they were caught lying, and they had a big judgment
3 against them.
4 Then we have Jordie Chandler, who everyone
5 tells us, and apparently was announced on television
6 this morning, is not going to testify. So who do
7 they want to bring in to testify to that? First of
8 all, Your Honor, I would note that in their motion,
9 they mention someone named Bob Jones. And in very
10 graphic -- in a very graphic manner they told the
11 Court that Mr. Jones had worked for Mr. Jackson for
12 years, had traveled internationally with him, and
13 would testify to all sorts of improprieties with
14 children. We just were produced a police report by
15 the prosecution where Mr. Jones flat out denies
16 virtually everything they said in their motion. He
17 has told the Santa Barbara Sheriffs, with counsel,
18 that he never saw anything inappropriate happen when
19 Mr. Jackson was in the company of any of these
20 children.
21 They haven’t told that to the Court in any
22 of their papers, to my knowledge, but they just gave
23 us that report.
24 Now, what happens if you allow third-party
25 testimony about Mr. Chandler without allowing Mr. --
26 forcing them, or ordering them, or requiring them to
27 have Mr. Chandler, the alleged victim, testify? You
28 then have people come in to say what they saw 3759
1 without any victim to confirm it.
2 And what happened back in those days? In
3 summary, this is what happened: Chandler’s parents
4 had been divorced in 1986. The father had given up
5 custody of the child. When these alleged events
6 happened, the father jumped on the bandwagon and
7 wanted to become a multimillionaire, and he fueled
8 litigation. And all of a sudden, you had the
9 parents suing Mr. Jackson, you had -- the mother’s
10 new husband then decided to sue Mr. Jackson for
11 allegedly interfering with his business. He had an
12 auto company, and he claimed that the publicity had
13 interfered with his business. He wanted millions.
14 After the settlement, the father then filed a new
15 lawsuit against Mr. Jackson wanting 30 million more
16 dollars. That was litigated and he lost. You have
17 all sorts of collateral litigation, and eventually
18 Mr. Chandler filed papers in Superior Court seeking
19 legal emancipation from his parents.
20 Where is the justice in this case of
21 allowing parents to come in who collected lots of
22 money because Mr. Jackson wanted to get this case
23 behind him and pursue his music career? And indeed,
24 all kinds of advisors were telling him to do that.
25 You have parents playing each other off with the
26 child and pursuing collateral litigation, all of
27 that will obviously have to be explored, because the
28 potential for financial interest, financial bias in 3760
1 a situation like that, is enormous, the motives for
2 financial gain were enormous, and indeed, there was
3 never any criminal prosecution despite Mr. Sneddon’s
4 noble efforts to try and do one.
5 So there’s no alleged victim with Brett
6 Barnes. There’s no alleged victim with Jordie
7 Chandler. Then we come to Macaulay Culkin, who has
8 repeatedly made statements that he’s a friend of Mr.
9 Jackson and has never been molested. But they want
10 to bring in evidence that he was molested. And they
11 want to bring in witnesses who also were part of the
12 gang that sued Mr. Jackson, and lost, with findings
13 that they had lied and with enormous damages awarded
14 against them.
15 Now, the fourth alleged victim is Jason
16 Francia. Jason Francia and his mother were
17 interviewed by the sheriffs and a deposition of the
18 mother was taken. Money was paid to settle that
19 case, again because Mr. Jackson didn’t want the
20 press, didn’t want his family going through it, and
21 wanted to pursue his music career. There never was
22 a criminal prosecution, even though the alleged
23 victim was interviewed by the Los Angeles District
24 Attorney and the Santa Barbara District Attorney
25 together. And after their interview with Jason
26 Francia - which was so wishy-washy about what
27 happened, they never decided to pursue a criminal
28 case, because there wasn’t one. We have that taped 3761
1 interview - the mother, in a civil deposition in the
2 Chandler litigation, began by saying she saw
3 something and ended by saying she saw nothing. And
4 indeed, stories were sold to tabloids, and money was
5 paid to settle. He appears to be the only alleged
6 victim they want to bring in.
7 Five, Wade Robeson, who tells us nothing
8 ever happened to him. And they don’t propose to
9 bring him in as an alleged victim. They want to
10 bring in the gang that basically has tried to accuse
11 Mr. Jackson and get money from him for years,
12 generally unsuccessfully, with the exception of
13 Miss -- Mr. Francia’s mother, and I’ve just talked
14 about the problems in her sworn statement in
15 discovery. The deposition is clear, she begins by
16 saying, “I think I saw something.” She ends by
17 saying, “I didn’t see anything.”
18 Six, Jimmy Safechuck, who we are informed
19 says nothing happened. They don’t propose to call
20 him as an alleged victim either, but they’ve got the
21 same old gang again coming in to try and capitalize
22 on the case, people who have been adjudged to be
23 liars, and they are. People who asked for money
24 from tabloids, who’ve asked for money from Mr.
25 Jackson, et cetera.
26 Seven, Jonathan Spence, who we are informed
27 says nothing happened and doesn’t intend to come in
28 to support them at all. What do they want to do? 3762
1 Bring in the same crew again. Third-party witnesses
2 with an axe to grind, all of whom have wanted money
3 in the past, none of whom can substantiate that
4 anything happened because the alleged victim says
5 nothing happened.
6 The bulk of their 1108 evidence, Your Honor,
7 are third parties with axes to grind, and who have
8 tried to get money, and gotten money, and had the
9 problems I just identified. Where is the fairness
10 in allowing that kind of testimony, that kind of
11 evidence, when their underlying case looks so weak
12 and so problematic?
13 I submit that the Court’s concern for
14 fairness has to be squarely addressed in this
15 situation.
16 If the Court saw witnesses who the Court
17 felt had complete integrity, had never lied, never
18 told inconsistencies, never contradicted themselves,
19 never contradicted each other, if there were
20 forensics to support any of them, or eyewitnesses to
21 support any of them, the Court might say to himself,
22 you know, “I’m really not giving Mr. Jackson an
23 unfair trial if I let some of this in.” But it’s
24 just the opposite.
25 And I submit the weakness and the problems
26 in their case have made the Court’s decision much
27 more difficult.
28 There is an issue, Your Honor, that Mr. 3763
1 Sneddon has raised by proposing to call third-party
2 witnesses without the alleged victims. And that has
3 to do with what is an offense. Because the statute,
4 1108, talks in terms of an offense. And every
5 definition we can find of an offense talks in terms
6 of a crime.
7 And I submit to the Court that if you look
8 at what the legal definition of an offense is, or
9 you look at what the legal definition of proving a
10 crime is, how can you just allow a parade of
11 third-party characters to come in without any
12 alleged victim? How can you do that? Because even
13 though they didn’t charge it as a crime, they still
14 have to prove an offense. And I submit this Court,
15 in the interests of fairness, given the problems
16 with their case, I think has a duty to say to
17 itself, “Can they really prove some type of offense,
18 or some type of uncharged crime, based on what
19 they’ve told us?” And the Court knows they can’t.
20 They can’t do it.
21 According to the statute, and I’m talking
22 about 1108, sexual offense means a crime under the
23 law of the state or of the United States. How do
24 you prove a crime in these cases without any alleged
25 victim? And maybe that explains why there never was
26 a criminal prosecution in those cases, because the
27 alleged victim say it didn’t happen.
28 I submit, Your Honor, that Evidence Code 352 3764
1 is extremely broad. Just because Mr. Sneddon
2 parades a lot of cases where the introduction of
3 1108 evidence has been upheld, doesn’t mean there
4 haven’t been many instances where trial judges
5 didn’t use their discretion and either eliminate or
6 whittle down what the prosecution would allow,
7 because 352 is very, very clear. The Court must be
8 concerned with all the issues raised in 352.
9 And I would like to just briefly talk about
10 the People v. Falsetta case, where the California
11 Supreme Court upheld Evidence Code 1108. Here are
12 the issues the Court said the trial judge must
13 consider: Possible remoteness. Now, if you listen
14 to Mr. Sneddon, the words “possible remoteness” mean
15 nothing. They don’t require any common sense
16 approach. They don’t require any common sense
17 consideration. If you listen to Mr. Sneddon, he
18 cites appellate cases which basically say possible
19 remoteness just doesn’t have any meaning, and that’s
20 not what the California Supreme Court said. The
21 fact is, the issue of possible remoteness is in the
22 discretion of you, Your Honor. And they can’t
23 eliminate it by citing what other Appellate Court
24 decisions have done.
25 Now, they’re trying to bring in evidence of
26 many, many years ago, ‘92, ‘93. This is the year
27 2005. The statute is clear and the Supreme Court’s
28 language is clear. If the Court thinks that these 3765
1 alleged acts are too remote in time to really create
2 real evidence of a pattern, and particularly if the
3 Court says, “I think their case has enough problems,
4 to bring in evidence of a remote nature is going to
5 tip the scales away from their burden of proof, away
6 from the presumption of innocence,” I think the
7 Court has every right and every duty to consider if
8 these acts appear to be remote. And acts from the
9 early ‘90s, uncharged, unproven, where everyone had
10 their hand out for a buck, and where alleged victims
11 aren’t even willing to come forward and say anything
12 happened, in fact, they’re saying the opposite, I
13 think all of that put together gives the Court a
14 good basis to use its discretion in deciding whether
15 or not these alleged acts are too remote in time.
16 In People v. Falsetta, our Supreme Court
17 then talked about the degree of certainty of its
18 commission. How can they possibly stand before this
19 Court and say, “We can establish a degree of
20 certainty of the commission of these alleged
21 offenses,” when no alleged victim is even willing to
22 come forward and say it happened? How do you
23 possibly convince this Court that their claims are
24 certain when there is no victim to say they’re
25 certain? I submit this Court must consider not only
26 the possible remoteness in time, but the degree of
27 certainty of its commission, particularly when they
28 have no alleged victims to come forward. 3766
1 Then there’s the issue of the likelihood of
2 confusing, misleading or distracting the jurors from
3 their main inquiry. Obviously the evidence they
4 want to bring in has nothing directly to do with the
5 Arvizo family, who, yes, Mr. Sneddon is correct, by
6 the time the trial ends, their reputations and their
7 fraudulent acts will be all over the courtroom. The
8 best is yet to come, because the mother hasn’t
9 testified to her perjury in depositions, and her
10 perjury on welfare applications, and her defrauding
11 disability, and her defrauding welfare and not
12 telling either one what they’re doing, where she put
13 the money, what she said to newspapers, what she
14 said to certain celebrities, et cetera. The best is
15 yet to come.
16 But nevertheless, why allow them to bring in
17 disgruntled employees who lost their lawsuit and
18 actually were found by a jury to have stolen from
19 Mr. Jackson and found by a Judge that they must pay
20 over a million in legal fees and costs? Why allow
21 them to come in when there is no alleged victim to
22 support anything they say? That would be highly
23 prejudicial and highly improper, Your Honor. And to
24 say it would prolong this trial is an
25 understatement. Because every time one of these
26 people comes in, we not only cross-examine them, we
27 have to bring in our own witnesses to contradict
28 what they say. And let’s look at the numbers. 3767
1 One, Brett Barnes, who they say is not
2 coming in. They want to bring in four witnesses.
3 Two, Jordie Chandler, they want to bring in five
4 witnesses. Three, Macaulay Culkin, they want to
5 bring in four witnesses. Four, Jason Francia, they
6 want to bring in himself and his mother. Five, Wade
7 Robeson, they want to bring in five witnesses. Six,
8 Jimmy Safechuck, they want to bring in one, two,
9 three, four, five, six, seven -- eight witnesses.
10 Seven, Jonathan Spence, they want to bring in three
11 witnesses.
12 How can they possibly suggest this is not
13 going to prolong this trial interminably, because as
14 the Court knows, under the law, the defense has a
15 right to defend these allegations like it would any
16 other case. And there’s no reason to think these
17 alleged offenses would not be defended as vigorously
18 as the case before the Court is being defended,
19 because you can’t deny a criminally accused in a
20 situation like this the right for a full-blown
21 opposition and a full-blown defense to these types
22 of allegations. So how Mr. Sneddon can look at the
23 Court and say, “Oh, it will just take maybe 25
24 percent of our time,” is absurd. It’s going to
25 prolong this trial interminably because we have to
26 defend our client’s reputation and life in this very
27 serious situation.
28 I’ve talked about prejudice, and prejudice 3768
1 again is always defined in terms of emotion. And
2 with a problematic case like this, the problem with
3 the emotional effect of 1108 evidence is vastly
4 increased. So I think the Court, again, has to come
5 back to where we started. We start with the Court’s
6 concern for fairness and justice, particularly with
7 respect to what their case looks like, and I submit
8 it looks real bad and it’s going to get worse.
9 The Supreme Court, in People v. Falsetta,
10 Your Honor talked about the Court considering less
11 prejudicial alternatives to its outright admission.
12 Well, how to fashion a less prejudicial alternative
13 obviously sounds problematic, because again, you
14 can’t hamstring the defense and not let them put on
15 a full-blown defense to any allegation, no matter
16 how flimsy it may seem to be. And when I say, “put
17 on a defense,” I do mean exactly that. Anything
18 which impeaches the credibility is open season. If
19 their character or reputation for trustworthiness,
20 as it is in this courthouse, given the trial judge’s
21 rulings in that civil case is certainly fair game.
22 Their financial motive is certainly fair game. Who
23 they sold their stories to is fair game. You’re
24 talking about a full-blown trial where prior
25 statements, prior testimony, prior transcripts are
26 all open season for the defense to defend and
27 protect itself.
28 I think the Court should never allow them to 3769
1 bring in any of this evidence if they don’t have an
2 alleged victim to support it. And they just don’t.
3 They want to bring in people to say, “I saw
4 something. I heard something.” That simply is not
5 acceptable. The potential prejudicial impact of
6 that is far outweighed, far outweighs the benefits
7 to our justice system, or any benefits the Court
8 might think they’re entitled to under the law,
9 particularly in a weak case.
10 The Court talks about excluding irrelevant
11 though inflammatory details surrounding the offense.
12 Well, they’ve already -- Mr. Sneddon’s argument has
13 already suggested an avalanche of time-consuming
14 litigation in this courtroom, because what he’s
15 saying is that if Mr. Jackson spends money on
16 someone like a mother - and indeed, Mr. Chandler’s
17 mother flew to Europe with him, stayed in luxury
18 hotels, Monte Carlo, France; big events; buying
19 jewelry at Cartier, clothes, gifts - yes, indeed,
20 Mr. Jackson has done that to certain families. He
21 also has spent millions on children with AIDS. He
22 has gone to hospitals all over the world and
23 contributed money to sick children. He even has a
24 habit of doing that before a concert. He will go to
25 hospitals and meet injured and sick children. Yes,
26 he spends lots of money on people.
27 But they want to suggest that because he
28 spends money on somebody, that he somehow is doing 3770
1 this with a malevolent criminal, molester’s type of
2 purpose. And we can drown them with examples of
3 where Mr. Jackson has been so benevolent, so
4 generous, so charitable, so giving for good causes,
5 that it will make their theory look silly.
6 The Court is already faced with a long
7 trial, Your Honor. You really are. We’re talking
8 about probably months more of testimony. They
9 haven’t essentially, I think, from what I’ve heard,
10 really gotten to the crux of their conspiracy
11 allegations. They’ve alluded to it by having the
12 Arvizo children testify that they were falsely
13 imprisoned three times at Neverland and went back
14 every time and then just went home. They’ve alluded
15 to it by having the Arvizo children testify to what
16 they knew about a proposed Brazil trip. And of
17 course when nobody wanted to go, they went home.
18 And they’ve already alluded to the Arvizo children
19 being falsely imprisoned while they went to shopping
20 centers, while they were at their home where
21 Miss Arvizo’s boyfriend was in the United States
22 Army, while they had access to phones, while they
23 went into federal agencies, while they went into a
24 Brazilian consulate, and nobody ever says, “We have
25 a problem,” or calls the police, or does anything.
26 Unless -- and I don’t think --
27 MR. SNEDDON: Excuse me, Counsel.
28 I’m going to object, Your Honor. This is 3771
Subject: March 28, 2005 
Fri Mar 16, 2012 10:45 am
