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 March 18, 2005

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March 18, 2005 Empty
PostSubject: March 18, 2005   March 18, 2005 Icon_minitimeSat Mar 17, 2012 3:22 pm









9 Plaintiff, )

10 -vs- ) No. 1133603


12 Defendant. )






18 FRIDAY, MARCH 18, 2005


20 8:30 A.M.


22 (PAGES 2709 THROUGH 2800)






28 BY: Official Court Reporter 2709



3 For Plaintiff: THOMAS W. SNEDDON, JR.,

4 District Attorney -and-

5 RONALD J. ZONEN, Sr. Deputy District Attorney


7 Sr. Deputy District Attorney -and-

8 MAG NICOLA, Deputy District Attorney

9 1112 Santa Barbara Street Santa Barbara, California 93101







1875 Century Park East, Suite 700

16 Los Angeles, California 90067

17 -and-


19 233 East Carrillo Street, Suite C Santa Barbara, California 93101

20 -and-


22 BY: R. BRIAN OXMAN, ESQ. 14126 East Rosecrans Boulevard

23 Santa Fe Springs, California 90670 (Not present)





28 2710

1 Santa Maria, California

2 Friday, March 18, 2005

3 8:30 a.m.


5 (The following proceedings were held in

6 open court outside the presence and hearing of the

7 jury:)


9 THE COURT: Good morning.

10 MR. SNEDDON: Good morning.

11 MR. MESEREAU: Good morning.

12 THE COURT: All right. The first item on the

13 calendar is the scheduling of a motion for admission

14 of evidence of defendant’s alleged prior sexual

15 offenses. This was put on the calendar because the

16 District Attorney has asked that the hearing be

17 sooner than later, I guess.

18 MR. SNEDDON: That’s correct, Your Honor.

19 We placed the motion on, in light of the Court’s

20 earlier decision, which we wholeheartedly agreed in,

21 that we should have testimony before the jury

22 establishing the offenses that were committed by the

23 victims themselves -- on the victims themselves

24 prior to the time of the hearing. And we believe

25 that we have complied with what the Court wished.

26 And I think the Court gave a perfect example of your

27 experience of what happened to you before where

28 promises were made and promises weren’t kept. 2711

1 I believe that we have at this point

2 established sufficient information before this Court

3 and before this jury to now go forward with the 1108

4 hearing. We would indicate to the Court that this

5 would be the appropriate time.

6 I’m not suggesting that the Court -- we

7 recess the trial at this moment. I want to make

8 that clear. And I think I did in my moving papers.

9 That we intend to move forward with probably

10 evidence through -- my guess is, if not through

11 Thursday, probably into Friday of next week, based

12 on the lineup that we have. We’ll finish those

13 parts of the case that are relevant to the

14 allegations set forth against Mr. Jackson in all

15 counts except for Count 1.

16 At that point, we will then be transitioning

17 into that part of the case that deals with the

18 conspiracy count. It seems to me that it is not

19 only right and proper, but logical for the jury that

20 this would be the appropriate time for us to be able

21 to put on the 1108 evidence insofar as it relates

22 and bears on the testimony of the credibility and

23 the actions of the defendant in this case. And so

24 we would request that at that point in time, that we

25 then take up the 1108 hearings.

26 So unless the Court has any further

27 questions, that’s why we filed the motion now.

28 I wanted to give the Court sufficient heads-up about 2712

1 it for scheduling for the jury, as well as the fact

2 that we’ll need to bring people in from out of

3 county, and out of state in some instances, so we

4 need some lead time for that. And clearly that

5 whatever decision the Court makes, we would have

6 enough lead time for that. If we started next

7 Friday, we could begin, and we’d be ready to begin.

8 And if it was the following Monday -- but you get

9 the picture. It’s at the point where we finish most

10 of the testimony relevant to the charges against Mr.

11 Jackson on the molestation.

12 THE COURT: All right.

13 MR. SNEDDON: Do you have any other

14 questions, Your Honor.

15 THE COURT: I do, but I want to hear from the

16 other side first, and then I’ll ask my questions.

17 MR. SNEDDON: All right. Thank you.

18 MR. SANGER: Good morning.

19 THE COURT: Good morning.

20 MR. SANGER: The timing of the motion, we

21 want to have adequate time to have the motion heard

22 and be prepared for it. I don’t concede at this

23 point, by any means, that there’s been a showing

24 sufficient for the Court to go ahead and make a

25 ruling right now. And if the Court were to make a

26 ruling right now, I think it would be to deny the

27 1108.

28 But having said all of that, the People I 2713

1 think are saying that they feel that they’re going

2 to be in their strongest position to make their 1108

3 motion by the end of next week, and I don’t see any

4 reason why we can’t schedule a date to do that.

5 We have two issues: One is whether or not

6 they have presented sufficient credible evidence of

7 the sexual offense crimes. And then the second

8 issue, which would be taken up in the actual motion,

9 would be what kind of evidence would come in, and

10 whether or not the kind of evidence that’s proffered

11 is going to be -- is going to have sufficient

12 probative value to outweigh the prejudicial effect

13 and consumption of time, and so on.

14 Having said that, if that’s the Court’s

15 understanding, I think we’re talking about just

16 picking a date now. And I don’t see any problem

17 with picking a date -- you know, a week from Monday,

18 for instance, would seem to be a good time.

19 Do you think so.

20 MR. MESEREAU: (Nods head up and down.)

21 MR. SANGER: Thank you.

22 THE COURT: All right. Here’s my question

23 to both sides. Mr. Mesereau got me thinking about

24 this from a request that he made earlier.

25 And the issue -- I guess the question is,

26 should the Court hear the evidence outside the

27 presence of the jury, or should I just hear

28 arguments on the evidence, as represented to the 2714

1 Court that it will be, as to whether or not the 1108

2 evidence should come in.

3 And the thing that got me thinking about it

4 was that Mr. Mesereau had suggested that they be

5 allowed to put on testimony to attack, as I

6 understood what he was saying, the credibility of

7 the witnesses that would be called under the 1108,

8 so that the Court could make a determination, I

9 think, based on credibility, as to whether or not

10 the Court would allow the witnesses to be called.

11 And that was a unique suggestion to me,

12 because I’ve had a lot of hearings under Evidence

13 Code 401, 402, 403, preliminary fact, and I don’t

14 recall that -- I laugh because there’s a lot of

15 things I don’t recall, but I don’t recall ever

16 having that evidence put in at a 402 hearing.

17 So, having that dilemma and working on it,

18 one of the cases that we found was Vorse v. Sarasy,

19 S-a-r-a-s-y, “Vorse” being V-o-r-s-e, 53 Cal.App.4th

20 998. It’s a 1997 case. And it suggests that the

21 Court is not to make credibility issue

22 determinations. That -- you know, that my taking of

23 evidence may not be proper on either side on this

24 issue. It may be just that I am to decide whether

25 or not it’s admissible with an analysis of what

26 you’re offering, whether that would, in fact, be

27 1108, and then make the weighing under 352 for all

28 the reasons that 352 has the Court make those -- 2715

1 weighing those issues.

2 It’s interesting that the Vorse case cites

3 another case, People v. Jackson. No relationship.

4 But you can pick that citation out of the Vorse

5 case.

6 So I’m willing to let either of you respond

7 to that at this time.

8 MR. SANGER: I would like to, although Mr.

9 Sneddon’s standing at the podium.

10 MR. SNEDDON: It’s our motion, that’s why.

11 I figured you’d want to. No, after me.

12 MR. SANGER: Oh, after you. Okay. Well, as

13 they say, “After you.”

14 THE COURT: After you. After you.

15 MR. SNEDDON: Abbott and Costello. I hope

16 we’re not that bad.

17 Judge, I think the simple answer to this is

18 the Evidence Code provides your discretion to do it

19 either way you feel comfortable with it.

20 I think that the issue on the credibility --

21 let me make sure I’m talking about precisely what

22 the Court asked. In terms of whether you wanted to

23 have a 403 hearing outside the presence of the jury

24 that did not involve the issues of credibility -

25 okay. --

26 THE COURT: Right.

27 MR. SNEDDON: -- or whether you wanted to do

28 it on the offers of proof, I believe that the 2716

1 Evidence Code clearly provides that you have the

2 discretion to do that whichever way you want to do

3 it. So, that’s your decision, and....

4 But with regard to the credibility issue, I

5 believe we cited the Jackson case to you in earlier

6 motions. We were aware of that. And not only in

7 connection with the 1108 hearing, but in connection

8 with some of the other pre-trial hearings that

9 involved witnesses’ statements, that we brought that

10 case to the Court’s attention. If not that one,

11 certainly there’s another one that we did.

12 So we were certainly aware of the fact that

13 we believe that the credibility issues are those for

14 the ultimate trier of fact, which is the jury.

15 So I would say to the Court that we are

16 prepared to accommodate the Court in either way in

17 which you would like to do it. Obviously the most

18 efficient would be for you simply -- and with the

19 ability of the defense to file, as you suggested to

20 Mr. Mesereau I think a couple of days ago, their

21 pro-offered -- although I don’t know, since you

22 can’t weigh the credibility, what effect that could

23 have on you. But in any case, we’re prepared to do

24 it either way that the Court wants.

25 And I frankly think that, given the way that

26 this case is going, that probably the best case is

27 simply to put these people on. And we’ll put them

28 on on direct and they put them on on cross and we 2717

1 keep the trial moving in front of the jury. But, of

2 course, as always, we’ll do what the Court suggests.

3 That would be my recommendation.

4 And I do not believe the credibility issues,

5 as you cited the case, are something that is really

6 an issue in the 403 hearing.

7 THE COURT: All right. Counsel. Mr. Sanger.

8 MR. SANGER: Yes, sir.

9 The case law that I’m familiar with -- and I

10 won’t claim to be specifically familiar with the

11 Vorse case without looking it up.

12 THE COURT: Yes.

13 MR. SANGER: But just in general, it is true

14 that the Court’s ruling on a 402-, 403-type hearing

15 for any kind of a determination, and under 1108 as

16 well, is whether or not - there is a threshold - the

17 threshold has been met. And the threshold doesn’t

18 involve the determination of credibility in the

19 sense that the Court is saying, “Well, you know, I

20 just don’t really believe these witnesses, so I’m

21 not going to let the jury hear it,” and usurping the

22 jury’s function, the ultimate function. But there

23 still is a threshold level where credibility is one

24 of the issues that the Court is taking into account,

25 and the Court’s taking it into account under 352.

26 For instance, let’s take an example, just a

27 hypothetical example. Let’s assume that one of the

28 witnesses, a key witness that’s proffered by the 2718

1 prosecution under 1108, is a witness who is going to

2 say that she saw various things that were

3 circumstantial evidence of some kind of activity,

4 and that’s their main witness. Let’s just assume

5 this. I don’t want to argue about the facts of this

6 case, but let’s assume that that’s the case. And it

7 turns out that that witness made several prior

8 inconsistent statements on television and eventually

9 in a sworn deposition.

10 It’s not so much a weighing of credibility.

11 It’s not usurping the function of the jury to hear

12 that evidence. But I think the Court would want to

13 hear that evidence, because under the three prongs

14 of 352, number one, you’re looking to see whether or

15 not the evidence is so inflammatory that it’s going

16 to be prejudicial to the defendant such that the

17 probative value is outweighed by the prejudicial

18 effect.

19 Well, you have to figure out what the

20 probative value is going to be before you can

21 determine whether the prejudicial effect is going to

22 outweigh it.

23 And so therefore, you have to say, “Well,

24 look, we’ve got a witness,” for instance, “who made

25 a number of prior inconsistent statements on

26 television, for money, and eventually under an oath

27 in a deposition, and now this witness is being

28 offered up.” The prejudicial effect of just having 2719

1 this person come and say things may, in fact, be

2 quite substantial in the Court’s mind when it’s

3 heard the evidence.

4 And on the other hand, the probative value

5 the Court would have to find is probably fairly

6 minimal, given the scenario I just gave.

7 It would also go to the question the Court

8 has to address, the second problem, which is undue

9 consumption of time. Are we going to have a hearing

10 about this witness. And taking one of the

11 witnesses, again, hypothetically, are we going to

12 have a hearing that necessarily involves allowing

13 the defense to fully -- to fully defend it.

14 As the Court knows, and we’ve cited cases in

15 our main pleadings on this, that we’re entitled, and

16 not only entitled, but we’re required, it’s

17 ineffective assistance of counsel to fail to do a

18 full of defense of 1108 evidence --

19 THE COURT: Right.

20 MR. SANGER: -- as if it were an independent

21 case.

22 THE COURT: Right.

23 MR. SANGER: So we’re not only entitled to,

24 but we’re obligated to. We’re going to have to

25 bring in all of those statements on television, for

26 money, and before a deposition.

27 And I’m saying that in a concise fashion,

28 but Your Honor knows that’s going to take time to 2720

1 bring all that out. So I think the Court has to

2 consider that.

3 And then the third prong of 352 is confusion

4 to the jury -- or, I’m sorry, is undue consumption

5 of time. I may have gotten those two confused, but

6 thereby illustrating my point, I suppose.

7 And so to take more time to further

8 illustrate my point, you have confusion of the jury

9 and you have undue consumption of time. And both of

10 those -- without restating the point, both of those

11 are determined only after the Court has a full

12 opportunity to figure out what the heck is going to

13 go on in front of the jury.

14 All right. So I think all three prongs --

15 it’s not a matter the Court usurps the function of

16 the jury by determining credibility. It’s a

17 threshold call, like many things are, and

18 particularly things under 352. The Court has to

19 determine how this is going to play out in front of

20 the jury.

21 So you’re not per se determining

22 credibility, but you are saying, look, the

23 credibility is going to be attacked substantially,

24 let us say, after the Court hears the evidence, and

25 therefore the prejudicial effect is going to be

26 great, but there’s a little probative value;

27 therefore, there’s an undue consumption of time; and

28 therefore, there’s the potential for confusing the 2721

1 jury.

2 So I do think that we should be able to

3 present to the Court concisely, but I think with

4 some live testimony, as needed from both sides, the

5 evidence that the jury is going to see. And I think

6 that just submitting it on paper would not

7 adequately address the issue, particularly in a

8 criminal case with the constitutional rights that

9 are involved.

10 Does that answer the Court’s question.

11 THE COURT: Yes. Thank you.

12 MR. SNEDDON: Judge, could I address one

13 other aspect of this motion that we haven’t

14 discussed.

15 THE COURT: Yes.

16 MR. SNEDDON: I will do it just briefly.

17 But I wanted to remind the Court that as

18 part of this 1101 -- or 1108/1101 motion, that we

19 had filed an earlier motion with regard to the

20 admissibility of the civil settlements, so we had

21 deferred that until this hearing process also. So I

22 wanted to just make sure that the Court did that.

23 THE COURT: Thank you.

24 MR. SNEDDON: And I think that’s part of

25 this process. And also, you know, the guidelines

26 with regard to what can and won’t be asked I think

27 is important. And there will be two separate -- I

28 believe with two witnesses, probably two separate 2722

1 civil suits involved, and so I wanted to alert you

2 to that also.

3 THE COURT: Thank you. Those will be set at

4 the same time.

5 MR. SNEDDON: Yes, sir.

6 THE COURT: If I don’t say it, I intended to

7 have those heard at the same time as this motion.

8 MR. SNEDDON: I don’t know if you wanted me

9 to address anything Mr. Sanger said. If you do,

10 I’ll answer the question. Otherwise, I’ll just

11 submit it to the Court.

12 THE COURT: No, you don’t need to.

13 MR. SNEDDON: Thank you.

14 THE COURT: Without ruling on that, because

15 I’m not quite ready -- I haven’t quite made up my

16 mind. But rather than spend the time now thinking

17 about it, let’s hear some argument on the other

18 issues.

19 Let’s see, the objection to calling the

20 grand jury witness.

21 MR. SANGER: Your Honor, we’ve briefed the

22 matter and so I don’t want to go over --

23 THE COURT: Yes, I read that again this

24 morning.

25 MR. SANGER: -- each one of the points.

26 But what I did want to do is briefly augment

27 it with reference to the grand jury transcript. And

28 we did cite the transcript in our papers in an 2723

1 effort to keep things short. You know, we didn’t

2 quote things at length and make a big deal out of

3 it. We tried to follow the concept that this was a

4 brief and, for a change, make it brief.

5 THE COURT: I appreciate that.

6 MR. SANGER: Okay. But looking at the

7 actual transcripts of the grand jury, our position,

8 as you know, is that if it’s not in the transcript,

9 that’s too bad. The People are there to make their

10 record and they know how to make a record. And

11 we’re not there. There’s nobody there to object.

12 If they wanted to have somebody put on gloves and

13 look at things, they could say, “We’re putting on

14 gloves,” and so on.

15 And, in fact, as the record shows, when you

16 look at the actual transcript of the grand jury, and

17 you look at the testimony of Timothy Sutcliffe, he

18 talks about having gloves on. There’s a question as

19 to whether or not he had gloves on, and he had

20 gloves on at one point when he was handling some

21 moldy -- what appeared to be moldy schoolbooks.

22 When it comes to the end of the -- of his

23 testimony, and you look at page 1245 -- and I have a

24 clean copy. I’m sure the Court has the whole

25 transcript, but I have a clean copy, if it would

26 help.

27 THE COURT: They’re here. 1245.

28 MR. SANGER: 1245. 2724

1 THE COURT: What volume would that be.

2 MR. SANGER: That’s a good question. I’m

3 sorry, Your Honor, I just have the excerpt here.

4 THE COURT: I can find it. That’s all

5 right.


7 THE COURT: Volume 5, I think.

8 1245 did you say.

9 MR. SANGER: Yes, sir, 1245.

10 THE COURT: Yes. Okay.

11 MR. SANGER: Okay. I just realized I didn’t

12 turn my cell phone off, so I’m going to do that real

13 quick. It didn’t ring, but --

14 THE COURT: I’ve done that. It’s been

15 embarrassing. I’ve been sitting in court and my

16 cell phone has gone off, and I have to act like,

17 “Whose cell phone is that.”

18 MR. SANGER: “Get that cell phone.”

19 MR. MESEREAU: Must be Mr. Sneddon, Your

20 Honor.

21 THE COURT: Yeah.

22 MR. SANGER: If you look at 1245, this is

23 sort of our smoking gun conversation here. And I

24 know that the prosecution has some other version of

25 it. But starting at line 14 -- does the Court have

26 that in front of you.

27 THE COURT: Yes, I do.

28 MR. SANGER: Since you have it in front of 2725

1 you, I’ll just paraphrase and quote from the

2 relevant source. But it’s a grand juror who asked

3 about the black suitcase, which was Item 317. And

4 it was admitted in evidence here as some other

5 exhibit number, which I don’t remember right now,

6 but the black briefcase. And it had all the

7 materials inside. And the picture, you recall, had

8 the magazine on the top that had a date later than

9 the relevant time period.

10 And Mr. Auchincloss asked a question that

11 the grand juror had proposed and said, “Did some --

12 a forensic examination of some pornography in this

13 case” -- I’m sorry, “You did some -- a forensic

14 examination of some pornography in this case,

15 correct.”

16 He says, “Correct.”

17 Now the question is, “Did you find any --

18 did you find any fingerprints on that

19 pornography, usable fingerprints.”

20 Now, that’s not a question asked by a

21 District Attorney who knows that there was no

22 fingerprint analysis done. That’s a question of a

23 District Attorney who is asking a witness, “Well,

24 did you find any fingerprints, usable fingerprints.

25 And the answer is, “Well, we’re doing all

26 this stuff” - I’m paraphrasing - “We used an ALS,”

27 alternate light source. They did a fluorescent

28 check to see if there was any stains, and then they 2726

1 could do DNA, and they found no stains and no DNA.

2 So the question is, “So they haven’t been

3 examined for fingerprints.”

4 “A. No, not at this time.”

5 And then they go on to explain the

6 alternative light source thing.

7 Now, at the end of the grand jury

8 proceeding, there is a -- when the jurors are about

9 to deliberate, there’s a part of the transcript

10 where they show Detective, I believe it was Zelis,

11 has been instructed to wear gloves, and, “You’re not

12 to deliberate while he’s in there, but he’s going to

13 take these things out and show them to you.” Okay.

14 So by the end of the grand jury, clearly

15 someone’s wearing gloves and showing the grand

16 jurors.

17 Now, that doesn’t -- and I’ll represent to

18 the Court, we have a witness from the clerk’s office

19 who says that after the grand jury returned the

20 exhibits, they went through without gloves and they

21 were tabulating and making sure all the pages were

22 there, and they didn’t know there was a problem.

23 But, aside from that, the most important

24 thing here is that if you then go back to page

25 421 -- and I’m guessing that would be in Volume 2.

26 Okay.

27 THE COURT: Uh-huh.

28 MR. SANGER: I’m sorry, I’ll get the volume 2727

1 number next time I quote the transcript.

2 But if you go to 421, starting at line 23 --

3 I’m sorry, line 25, you have the questioner, one of

4 the district attorneys saying, “Now, I want you

5 to -- I broke -- we’re going to break the seal on

6 this exhibit.”

7 And they’re talking at this point about the

8 black briefcase.

9 “I’m going to ask you to look very briefly,

10 young man, at the stuff that’s in there. All

11 right. Take a look at the stuff.

12 “Now, there’s some magazines, correct.

13 “Yes.

14 “Then there’s some sheets that are

15 individual and not in magazines as if they’ve

16 been torn out, correct.

17 “Yes.

18 “Now, can you tell me whether or not that

19 was the kind of materials that was in the

20 suitcase that was shown to you.

21 “A. Yes, that was the kind of materials.

22 “Q. Does that look like some of the stuff

23 that was shown to you.

24 “Yes.”

25 And it goes on beyond that.

26 The point is, if -- realistically, if this

27 was a point in the proceedings where somebody was

28 wearing gloves and saying, “Don’t touch it, I’m 2728

1 going to show it to you,” that would be on the

2 record.

3 What’s on the record is, “We’re breaking the

4 seal. We’re opening it. Now, young man, look at

5 this.”

6 And as you saw from the exhibit, the

7 photograph, the way it was seized and the way it was

8 sealed, all these things are stacked up. So the

9 only way to see if there’s other magazines and to

10 see if there’s separate pages is for somebody to

11 look through them, for a person to look through

12 them. There’s no evidence that the District

13 Attorney is looking through them. There’s no

14 evidence anybody put on gloves.

15 And so the clear record on this appears to

16 be that the District Attorney at that time,

17 remembering this occurred on 3-30, and the Sutcliffe

18 occurred on 4-8. In other words, it wasn’t until

19 4-8, it appears, that somebody said, “You mean you

20 didn’t even look for fingerprints. We knew you

21 didn’t get any usable prints, but you didn’t look

22 for them.” And then they go in and make a big deal

23 about gloves in the deliberations.

24 So on 3-30, when they’re showing it to Gavin

25 Arvizo, it looks, to me, from the record, pretty

26 clearly that nobody was wearing gloves, and there

27 was no effort to do anything to avoid contaminating

28 this evidence by the fingerprints of Gavin Arvizo. 2729

1 Okay. So, having said that, that’s our

2 position.

3 Now, does that give the District Attorney

4 the right to call a grand juror. And we take the

5 position, no, because the code says you can only

6 call them with regard to testimony. And as we

7 pointed out, that’s pretty much obsolete these days

8 because the recent case law -- I cited Cummiskey,

9 but I believe there’s other ones, like Moucharaub

10 also talked about it. The courts have said we’re

11 entitled to a full transcript of the testimony, so

12 it should pretty much negate the need to call in a

13 grand juror. There may be other ways to do it. A

14 District Attorney could take the stand and say what

15 he wants to say.

16 But we have the further problem that we were

17 given the name of the foreperson of the grand jury

18 for the first time two days ago. No address, no

19 phone number.

20 The prosecutor had a proceeding in which

21 they had full access to these people. They know all

22 their names. We’ve never been allowed to know their

23 names. There was an objection when we asked to get

24 their names. The Court ordered that numbers be used

25 instead of names. That was done in the transcripts.

26 They come up and say, “Well, here, we have a name.

27 No statement. Except we’re going to tell you this

28 witness is going to come and say we did everything 2730

1 right.”

2 Furthermore, there were 18 other grand

3 jurors there. We’ve never been given their names.

4 We have no ability to interview them. So we have

5 that major problem with calling grand jurors.

6 And do we really think it’s appropriate to

7 disclose all the names of all the grand jurors and

8 have them all interviewed with regard to whether

9 there were gloves or not, or whatever, about

10 something in the middle of the process.

11 And that leads me backwards to the first

12 point I made - or the first or second in writing -

13 and I’ll conclude with this - is that this whole

14 thing, even if the Court were to say, “Well, okay,

15 we’ll even the playing field. We’ll give you all

16 the names and addresses and phone numbers. You can

17 have your investigators go talk to all of them, and

18 then you all can call in competing grand jurors,”

19 okay.

20 Even if we did that, and even if that

21 survived a 352 analysis on consumption of time and

22 undue confusion to the jury, the prejudicial effect

23 of bringing in people from a body that made a

24 determination -- a quasi-judicial determination

25 under California law and an administrative

26 determination under U.S. Supreme Court precedent, in

27 other words, part of the prosecution, if that -- if

28 they’re allowed to do that, that is going be 2731

1 extremely prejudicial, because you’ve got jurors who

2 are trying to hear the case. They’re now listening

3 to a juror who has a vested interest in upholding

4 the process that they went through, the best they

5 could as laypeople, to return an Indictment. That

6 kind of evidence to this jury is going to be -- is

7 going to be very prejudicial.

8 THE COURT: You know, the interesting thing

9 in your argument, though, is that, through excellent

10 cross-examining skills, you, the defense, have put

11 into issue whether or not the children touched the

12 magazines during the grand jury proceeding.

13 So at this point, the state of the evidence

14 is most favorable to you that the inference is

15 strong that they must have touched those magazines.

16 Now, having skillfully done that -- and this

17 is not meant to be anything but a compliment.

18 MR. SANGER: I’m always worried when I get

19 complimented by the Court.

20 THE COURT: Yeah, I can see you starting to

21 worry. No, I really mean that. Credit where

22 credit’s due.

23 But then you say, having skillfully raised

24 this inference, “The District Attorney should be

25 barred from rebutting that, and that’s it.” And

26 that’s -- that’s what I find interesting about your

27 argument, is that.

28 Now, let me ask you a question. 2732

1 MR. SANGER: Yes.

2 THE COURT: You don’t have to defend your

3 excellent skills at getting to this position.

4 MR. SANGER: I do have an answer to that,

5 but --

6 THE COURT: You have an answer to that.

7 And I would say, if you had been doing the

8 grand jury, I think that that would have been

9 covered, but the transcript would have been 4600

10 pages instead of 1800, which I found overwhelming.

11 MR. SANGER: The trial would be shorter.

12 (Laughter.)

13 THE COURT: I doubt that.

14 What was I saying. How can I lose it like

15 that.

16 MR. SANGER: Could I respond a little bit.

17 And I’m sure that will cause the Court to remember.

18 THE COURT: Yes.

19 MR. SANGER: I appreciate what the Court

20 said and -- but I think the --

21 THE COURT: Oh, I know. I know what I was

22 going to say.

23 MR. SANGER: I knew if I started talking,

24 that would help.

25 THE COURT: You did it. You helped me.

26 There’s a couple of possibilities that I see

27 here. One is that you’re only asking -- as well as

28 you did, you know, it’s just an inference that they 2733

1 touched. There is no evidence that they touched.

2 We don’t know if they touched or didn’t touch at

3 this point. But the inference is strong by your

4 examination, the defense examination, that they did.

5 There’s a couple of ways we could handle

6 that. One is you could stipulate that they didn’t

7 touch it. That would get rid of any prejudice of

8 calling a grand juror, foreperson of the grand jury

9 to -- and any resulting prejudice.

10 You know, I can see from the look on your

11 face, that’s not going to happen.

12 MR. SANGER: Right.

13 THE COURT: But -- is that right.

14 MR. SANGER: That’s correct.

15 THE COURT: You’re not willing to stipulate

16 to that.

17 MR. SANGER: We actually believe he touched

18 it. I honestly believe that, for what it’s worth.

19 THE COURT: That being the case, the question

20 then becomes, you know, what is a fair way, if there

21 are witnesses in -- that saw this.

22 And one of the things that we could do would

23 be to call that witness, but not identify them as a

24 grand juror or foreperson of the grand jury, but

25 simply say they were in the grand jury room and they

26 observed whatever they observed, so that you don’t

27 have the prejudice that you’re so much afraid of,

28 you know, this formidable person being called. 2734

1 What do you think of that.

2 MR. SANGER: Well, I think there’s yet

3 another possibility. So in answer to the Court’s

4 question what I think about that, I think this:

5 Another possibility is there are other people in the

6 grand jury room: The prosecution; I believe there

7 was a police officer there, or a sheriff there most

8 of the time.

9 Did I just hear somebody say no, there

10 wasn’t. I don’t want to waste time talking about it

11 if there wasn’t a police officer in the room at that

12 time.

13 But that would be a possibility. Certainly

14 the District Attorney, whoever -- whichever one or

15 two or three were there at the time, could testify.

16 I would assume if they’re taking the position that

17 something else happened, we’re going to hear that.

18 The third possibility is to allow us to have

19 the names and addresses of all the grand jurors. It

20 seems clear -- and the reason I say this -- well,

21 there’s the obvious reason, but there’s a more

22 subtle reason as well.

23 It seems clear from the transcript of the

24 grand jury that there was -- there were several

25 grand jurors who asked a lot of questions. There

26 was one grand juror, for instance, who was

27 particularly interested in this fingerprint issue.

28 I don’t know who it is, because we only have a 2735

1 number. The prosecution knows who it is, so we’re

2 not on even ground here.

3 But one way to do this would be to allow us

4 to have the names of the grand jurors so that we can

5 adequately investigate this and see what they all

6 have to say.

7 In other words, in response to the Court’s

8 question, I certainly wouldn’t want to stipulate the

9 foreperson can just come up here and not be

10 identified and say, “I was in the room when I saw

11 this,” because that’s just the problem. The

12 foreperson has -- and I don’t mean to fault him or

13 her.

14 THE COURT: I think you made a very good

15 point; that other people may have seen something the

16 foreperson didn’t, or -- you know, it’s a good

17 point.

18 MR. SANGER: But my first position on this,

19 again, is that the government should be, in a way,

20 bound by the transcript, because they’re the ones

21 that are making it. That’s what the Supreme Court

22 has been saying over the last few years. Last, you

23 know, 25, 30 years, it’s been increasingly adamant

24 about the fact that there’s -- there’s a record

25 before the grand jury. The prosecution is the only

26 side in there. They’re the only lawyers in there.

27 They have the obligation to make sure that that

28 transcript is complete so it can be reviewed. 2736

1 And if we’re going to have a grand jury

2 process where things can be done in secret, where

3 the defense can’t be there, the accused isn’t there,

4 there’s -- there’s not a Judge, if we’re going to do

5 this, the only protection is to make sure that the

6 prosecution makes a complete record. So the -- the

7 original position that we’re taking -- I’m going

8 full circle on all this.

9 THE COURT: No, I understand.

10 MR. SANGER: -- is that when you look at it,

11 the transcript is the transcript. And the inference

12 from the transcript, as I just read it to the Court,

13 is an inference, and the jury should be allowed to

14 hear this testimony or have this read to them.

15 They can consider that along with what other

16 evidence has been put on to determine whether or not

17 the chain of custody on this material was such that

18 when fingerprint analysis was later done after it

19 was released and they allegedly find a fingerprint

20 of Gavin Arvizo, that the jury can say, “Yeah, we’re

21 sure that fingerprint came from February or March of

22 2003.”

23 THE COURT: I guess I have -- you have an

24 advantage that I don’t have, too. And maybe you can

25 help me. I haven’t heard the evidence on the

26 fingerprint on the magazine or more than one

27 magazine. I don’t know. You know, I know from

28 points and authorities something, but I don’t know 2737

1 the picture. I don’t know if there’s a palm print

2 or a --

3 MR. SANGER: There’s a fingerprint.

4 THE COURT: Just one fingerprint.

5 MR. SANGER: Well, here’s the problem right

6 now. And before we discuss this and go into too

7 much detail, I’m always conscious that whatever

8 we’re going to say is just going to be in the press.

9 THE COURT: You can be circumspect. You

10 don’t even have to answer that. I was just going to

11 say that I don’t know that information.

12 MR. SANGER: Let me tell the Court this in

13 general terms, is that we don’t know that

14 information either, because there have been reports

15 that were given to us showing that there was a

16 fingerprint. Well, showing that there was, in this

17 context, a fingerprint, one fingerprint that we’re

18 concerned about.

19 THE COURT: Okay.

20 MR. SANGER: There were others that were

21 determined not to have sufficient data to make --

22 make a positive identification. There are others

23 where they’re absolutely negative. They were

24 excluded. Okay.

25 THE COURT: All right.

26 MR. SANGER: What has happened very

27 recently, in the last couple, three weeks, is we’ve

28 gotten reports that there have been a meeting of 2738

1 various fingerprint people who have now decided that

2 some of these determinations should be changed.

3 And they go both ways. They go -- they

4 go -- in the sense that they had a fingerprint they

5 positively identified, they’re saying, “No, we don’t

6 think we can say that.” And then they said, “We’ve

7 found some others that we said were not conclusive

8 and now we think are conclusive.” So we’re in flux

9 on this.

10 But the essence of it is that, if this is

11 true, that Gavin Arvizo had a chance to go through

12 these papers so he could see the sheets and he could

13 see the magazines, and he picked them up to do that,

14 if that’s true, this would be a very significant

15 piece of evidence with regard -- this inference that

16 we have is very significant with regard to

17 fingerprints that are done later.

18 And understand, and I’m sure that -- and I

19 don’t mean to just offend the government here, but

20 it is --

21 THE COURT: Do you mean you intend to offend

22 more than just the government.

23 MR. SANGER: No. Whenever anybody says

24 that, that means we’re really going to offend the

25 government.

26 But -- I really don’t want to be rude, but,

27 I mean, the fact is, if you look at any case that

28 you have in the ordinary course of criminal law, 2739

1 when do you have a situation where something is

2 referred for forensic analysis very shortly -- I

3 don’t have the exact dates here, but very shortly

4 after it is seized it’s sent over for forensic

5 analysis - it was seized November 18th, and I think

6 it was sent for forensic analysis in November - and

7 they do their analysis. They do an alternate light

8 source.

9 And we will show from -- we started to get

10 into it, and then the officer wasn’t clear on what

11 317 was. But the officer on the stand wrote a

12 report saying, “Please” -- and these were the words:

13 “Please do a fingerprint analysis.” And he sent the

14 material back with the reports saying, “Please do a

15 fingerprint analysis.” And it sat there until March

16 and April of 2004.

17 In March of 2004, now, whatever that is, six

18 months after it was seized, it’s opened, it’s shown

19 to the grand jury, it’s booked into evidence, it’s

20 handled by the clerk.

21 And then sometime in the summer of 2004, it

22 is taken out of the grand jury, and then it’s sent

23 for fingerprint analysis.

24 Now, that isn’t the way it should have gone.

25 And I don’t know if anybody’s going to argue, “This

26 is the way we do things,” but I’ve never seen it. I

27 mean, if there’s going to be fingerprints, you take

28 them before you book it into evidence. 2740

1 THE COURT: Let’s let the District Attorney

2 respond.

3 MR. SANGER: Okay. Thank you.

4 MR. ZONEN: After we seized the magazines

5 from Neverland - and there were many, many, many

6 magazines that were seized at that time - there were

7 lengthy discussions about how to handle this, these

8 magazines, and how to process them.

9 It was exactly the opposite of what Mr.

10 Sanger said, that we were suddenly in the middle of

11 the grand jury hearing and we’re embarrassed because

12 somebody thought for the first time to do

13 fingerprinting.

14 The reality was quite the opposite of that.

15 The question was, do we proceed with fingerprinting

16 first, or do we proceed with a search for biological

17 evidence.

18 The problem is, is that the process that you

19 use for either the search for fingerprinting or the

20 search for biological evidence could have the

21 consequence of negating our ability to find the

22 opposite. Whichever you go first with could have

23 the problem of destroying the evidence as to the

24 opposite.

25 We had a lot of deliberations, a lot of

26 discussions over many weeks, with a number of

27 people, from the Department of Justice as to how to

28 proceed on these issues, and very cautiously 2741

1 proceeded with each individual magazine and each

2 individual page by initially using alternative light

3 sources that would suggest the presence of

4 biological material, either semen or perspiration or

5 some form of human contact with it that would leave

6 biological evidence behind.

7 There were some cuttings that were then

8 taken, in an effort to minimize the destruction to

9 the magazines, and as a consequence be able to

10 preserve the possibility of finding fingerprints.

11 The actual fingerprint process didn’t begin

12 until after the grand jury hearings, partly because

13 the evidence was before the grand jury, at least

14 that portion of it. The evidence that was

15 introduced were the magazines only in that one

16 suitcase. It was not as to the balance of the

17 magazines that came through.

18 There were 19 prints that we were able to

19 identify as belonging to the victims and to -- to

20 Star and to Gavin, and to the defendant. At the

21 moment, I can’t tell you over how many magazines.

22 I don’t have that information right in front of us.

23 Counsel was wrong, of course. There are no

24 police officers who are in the grand jury room

25 unless they’re giving testimony. The rules are

26 different from a regular court. We’re not entitled

27 to have an investigating officer present.

28 So when counsel asked Detective Zelis, 2742

1 “Isn’t it true you handed those magazines to Gavin

2 Arvizo.” the answer is, he wasn’t in the room when

3 Gavin Arvizo was on the witness stand. We’re not

4 allowed to do that.

5 The only time that we had an officer in the

6 room with the evidence was at the time that the

7 jurors were allowed to view the actual magazines.

8 And that was Detective Zelis. And he -- he was the

9 one who handled the magazines and showed them to the

10 jurors. They didn’t touch them. And he, of course,

11 wore gloves, as was consistent with his testimony.

12 During the presentation of evidence of the

13 two boys, yes, we did not put on the record that

14 nobody was going to be touching the magazines,

15 although there’s plenty of references to the fact

16 that we were maintaining strict control,

17 specifically at the time that the jury viewed the

18 material. You’ll see that in the record, that they

19 weren’t allowed to touch the magazines at that time.

20 We have asked the foreperson of the jury to

21 come forward and testify to this, because she was

22 the person sitting closest to the witness. And she

23 was the person responsible for taking control of the

24 proceedings and making sure that the secretary had

25 each of the items and that they were marked

26 appropriately, that the witness is admonished, and

27 of course she was in the best position to be able to

28 see what was going on. 2743

1 And she is prepared to come in and testify

2 that the children never touched any of those

3 magazines; that they stayed in the suitcase. And of

4 course if you look to other references to other

5 material being handed witnesses throughout the

6 course of the 12 days that we were in session and

7 the 45-plus witnesses who testified, when they were

8 handed an item, we said so. “I’m now handing you

9 exhibit number so and so.”

10 So it’s pretty clear that the descriptives

11 that are being used in the presentation of this

12 suitcase is very different from how we presented

13 other evidence where we really did hand it to them

14 and they were able to take it.

15 But the question is, are we bound by a

16 transcript as to this particular issue. We’re not

17 talking about legal matters presented before the

18 grand jury. We’re talking about an accusation by

19 the defense that we handed material to a witness,

20 and that that witness then put their fingerprints on

21 it, and that we then presented the fingerprints that

22 we found as having come from Neverland as opposed to

23 from a grand jury.

24 Now, that’s an accusation that was raised

25 first by the defense, and in his opening statement,

26 Mr. Mesereau, and then by Mr. Sanger specifically in

27 his questioning of Detective Zelis.

28 “You did hand this magazine to Gavin, didn’t 2744

1 you.”

2 And he said, “No.”

3 In fact, he wasn’t even in the room when it

4 was handed. It was not he who presented that

5 information. It was, in fact, Mr. Sneddon who

6 showed the material, and it was in the presence of

7 19 grand jurors, myself, and Mr. Auchincloss.

8 We believe that it’s appropriate for that

9 witness to testify. And we believe it’s appropriate

10 for that witness to identify herself as the

11 foreperson, because that is, in fact, the piece of

12 information that makes her the most observant.

13 It is her responsibility, above and beyond

14 the other 18 members of that grand jury, to be

15 attentive to what’s going on and attentive to

16 protocol and making sure that these exhibits get to

17 the secretary and get marked properly, and get

18 stored appropriately as well.

19 And I think that extra responsibility on her

20 part, which she took very seriously, which you’ll

21 see if and when she testifies, is the indicia of

22 credibility that is necessary to be able to resolve

23 this issue. It’s an important issue. And we

24 need --

25 THE COURT: What about the request that you

26 reveal the names of the other grand jurors so that

27 they can see if any of the other grand jurors saw

28 something different. 2745

1 MR. ZONEN: Well, they are percipient

2 witnesses to this event. And if the Court feels

3 that’s appropriate, do it. But our position is it’s

4 overkill. That’s why she is the foreperson of the

5 grand jury. But again, that’s for the Court to

6 resolve.

7 THE COURT: So you think in this courtroom

8 that the Judge is a better witness of what’s

9 happening at the witness stand than the jurors.

10 MR. ZONEN: I think that -- I would always

11 think that the Judge is a better witness than

12 anybody else in the courtroom as to what’s happening

13 in the courtroom.

14 THE COURT: The reason I raise that is that,

15 you know, I’m looking at -- I’m doing all sorts of

16 things. And I see a lot. I hope I see a lot. But

17 I know at times I don’t. I mean, I’m distracted by

18 this or that.

19 MR. ZONEN: Well, it may be appropriate to

20 do an in-camera examination of other jurors, if the

21 Court feels that’s appropriate, rather than reveal

22 all of their identities publicly. That certainly is

23 an option as well.

24 Ultimately, I think it’s the Court’s call on

25 this matter. But I don’t believe that we should be

26 barred from being able to present evidence to

27 contradict an event that they say took place that

28 didn’t take place for which we do have witnesses. 2746

1 And we are witnesses, for that matter. It’s a

2 suggestion for which they have no basis of belief

3 and have no basis of belief now.

4 THE COURT: Anything else.

5 MR. ZONEN: No. Thank you.

6 MR. SANGER: Your Honor, the -- let’s put it

7 this way: It may be a multi-stage process. It

8 seems to me that, for whatever reason, the state of

9 the record is the state of the record because it was

10 handled the way it was handled.

11 We didn’t have anything to do with that. We

12 made representations based on our analysis of the

13 grand jury transcript, which we made, I believe,

14 early on as part of the 995, and there’s certainly

15 no secret it was made as a part of Mr. Mesereau’s

16 opening statement. There’s no secret that we had a

17 concern about these items being handled in the grand

18 jury. And I think when Mr. Zonen says there’s no

19 good-faith basis, if you read the transcript, I

20 mean, how much more clear could it be.

21 Now, that’s that part. And I think we’re

22 entitled to go ahead with whatever inference we23 have.

24 We strongly disagree with the calling of the

25 foreperson of the grand jury. If the Court is

26 thinking about doing that, we would like to have the

27 opportunity to interview the other witnesses. I

28 think that’s only fair. 2747

1 Particularly, but -- not limited to, but

2 particularly the person that asks these questions

3 about fingerprints, because obviously he or she was

4 very concerned.

5 So I think it’s a process that if the

6 Court -- and the Court could say -- or it’s a

7 multi-step process. The Court could say, “I agree,

8 they’re stuck with the record. Let’s move on,” and

9 that would take care of it.

10 The Court could say, “Well, I may let you

11 call Mr. Sneddon to the stand, and we can

12 cross-examine him about it, and we’ll move on.”

13 The Court could say, “Well, I’ll let you --

14 we’ll consider whether or not you can call a grand

15 juror,” which we strongly object to for other

16 reasons, but if the Court were going to go there,

17 then we’d want to have a chance to interview

18 everybody. And then, after we interview everybody,

19 have a chance to come back to the Court before they

20 call a grand juror, because we can see that it’s a

21 very prejudicial, very difficult matter.

22 I mean, you have people -- I’m sure the

23 Court’s been aware that when trial jurors, for

24 instance, are interviewed after a verdict, there’s a

25 strong inclination on the part of jurors to argue

26 that what they did was fair. And of course they

27 want to be fair. Most people want to believe that

28 they’re fair. 2748

1 THE COURT: I understand that feeling.

2 MR. SANGER: Yes. Judges as well, I’m sure.

3 But with jurors who are laypeople, quite

4 often when they’re interviewed, you know, will say,

5 “Well, yes” -- the first thing they’ll say, “We were

6 very fair. We evaluated the evidence. We followed

7 the Judge’s instruction.” Of course, like anybody

8 else, they have a vested interest in what they did.

9 And I think there’s a real danger of putting

10 somebody up here who’s a layperson who will have a

11 vested interest.

12 So, what I’m saying is, if you get past

13 stage one, stage one, we eliminate -- that’s it.

14 The record is the record. The inference is an

15 inference. And we can argue it.

16 Stage two, a witness such as Mr. Sneddon, if

17 he wants to testify he was there, we’ll

18 cross-examine him.

19 Stage three, if you’re considering jurors,

20 let us interview first and determine where we are,

21 because we may say, after that, that it is so

22 prejudicial to put anybody on, that we just -- we

23 want to forego that, forego the calling of a grand

24 juror at all.

25 But we’d like to at least have an

26 opportunity to talk to the others, if the Court’s

27 going to get to that level.

28 Does that make sense. 2749

1 THE COURT: Yeah, I understand your argument,

2 your approach.

3 MR. SANGER: Okay. Thank you, Your Honor.

4 THE COURT: I don’t think that the law is at

5 the state that the record is the only evidence of

6 what happened at the grand jury proceeding. I mean,

7 I could picture a situation where the -- somebody

8 challenged the reporter’s transcript of what was

9 said and the Court had to have a hearing as to the

10 accuracy of the transcript. And the Court would

11 have to take testimony from people in the grand jury

12 room of what was said.

13 That doesn’t happen very often, but it’s --

14 in my career it happened at least once, that -- you

15 know, and it turned out that the Court ruled that

16 the transcript was not accurate on that point.

17 So you can’t say that the transcript is the

18 only way that anyone can ever determine what happens

19 in a courtroom or a grand jury room.

20 The next thing that the Court considers is

21 the -- it’s certainly not fair to allow the District

22 Attorney to choose one grand juror, albeit, the

23 foreperson, and have that person be the only one

24 that testifies.

25 I don’t think that the Court should be

26 involved in investigating the case. In some

27 countries, that’s what happens. The Judge

28 investigates the case, brings the Indictment, and -- 2750

1 not here. That’s not what we do here. I don’t

2 investigate. So the only time we have in-camera

3 hearings is when there’s issues of privacy or

4 privilege at stake that have to be predetermined

5 before, to determine whether or not they outweigh

6 the other interests.

7 So I’m not interested in myself conducting

8 an in-camera hearing trying to examine witnesses.

9 Not only that, you know, I think that that would be

10 your job.

11 The only thing that I can really see as a

12 fair situation here would be to order that the names

13 of the grand jurors be given to the defense, and

14 with a protective order that they cannot reveal the

15 grand jurors’ names to anyone other than their

16 investigator, who would be bound by the same

17 protective order, and that they be allowed to

18 question those -- or to approach them.

19 I mean, it’s up to the jurors whether they

20 talk to them or not. It’s -- it’s not ordering

21 people to talk to them, but they need to have that

22 opportunity.

23 It seems also that I would -- well, I don’t

24 think I should make -- I have some other orders that

25 I might make, but I think -- I probably shouldn’t

26 make those until we find out where we are after that

27 point.

28 MR. SANGER: I understand. Could I -- with 2751

1 regard to the protective order, we were given the

2 name of the foreperson by the prosecution two days

3 ago. We weren’t given an address, but we did locate

4 the foreperson.

5 And my understanding is that the foreperson

6 said, “I’ve” -- “I’ve talked to the District

7 Attorney, and I’m not going to talk to you,” in

8 essence. I don’t -- that’s not a quote, but

9 that’s --

10 THE COURT: They didn’t want to talk to you.

11 MR. SANGER: They didn’t want to talk to us.

12 And they made it clear that they had talked to the

13 District Attorney. So there seems to be some

14 allegiance there, which one can understand for

15 someone being in the room with the District Attorney

16 for however long that was.

17 THE COURT: You think that causes allegiance.

18 MR. SANGER: It could cause allegiance or

19 could cause irritation.

20 THE COURT: But that’s the problem that you

21 have with all witnesses. It depends on how things

22 go.

23 MR. SANGER: I think more so here, simply

24 because -- because you do have this -- you know,

25 there -- as we outlined in the grand jury, we had

26 Lieutenant Klapakis apparently marshaling grand

27 jurors around, and he was a witness. And you had

28 the district attorneys in there. And there was a 2752

1 lot of camaraderie, and -- you know, that happens.

2 Anyway -- and they came to a conclusion, and

3 they’re in the international spotlight for having

4 come to that conclusion, I suppose.

5 I would just ask in the protective order

6 that -- that perhaps it could be phrased in a way,

7 and perhaps we could submit a proposed order to the

8 Court, a written order, that would allow us -- that

9 would indicate that the Court is specifically

10 authorizing our representative to talk to them about

11 this particular subject matter, the handling of

12 evidence, something general so we don’t prejudice

13 the viewpoint. And that they’re not -- they’re not

14 obligated to talk to anybody, but the Court would

15 appreciate their cooperation with both sides.

16 And we would like to have an opportunity

17 to -- I don’t know how many grand jurors have been

18 interviewed by the prosecution so far. We haven’t

19 gotten reports. And I think that we’d be entitled

20 to them, quite frankly.

21 But if they haven’t interviewed grand

22 jurors, to at least give us the first shot at this

23 point so we have a fair chance to really find out

24 what happened. We just want to know what happened.

25 So I’d request those additions to the

26 protective order. And then depending on what

27 happens, we can come back and address the Court as

28 to what should happen with regard to actually 2753

1 calling witnesses.

2 THE COURT: Do you want to respond to that.

3 And you can also respond to what I was saying, if

4 you want.

5 MR. ZONEN: Our response is that -- our

6 preference is that each of the grand jurors be

7 interviewed in the presence of both sides at the

8 same time to avoid needless inconvenience to them

9 and needless intrusion into their time; that there

10 certainly be a protective order that keeps their

11 identity secret and not public; and that there be a

12 restriction on the extent of the examination of the

13 witnesses, and limited only to the issue of whether

14 or not these boys touched the magazines, and not any

15 other issue that may have come up in the 12 days of

16 grand jury testimony.

17 THE COURT: Yeah, I definitely would put that

18 restriction on. I don’t want the grand jurors

19 examined on any issue other than this issue.

20 MR. SANGER: Could we though -- could we,

21 say, limit it to, say, handling of evidence. I just

22 worry about telegraphing this particular issue.

23 It’s probably going to be telegraphed in the press

24 anyway. But we really should have an opportunity to

25 just talk in general about handling of evidence, and

26 obviously this is the focus of it.

27 THE COURT: Well, I think we could, as long

28 as you understand - and you understand - that while 2754

1 the statement is rather broad, that the mission is

2 limited.

3 MR. SANGER: Yes, sir. Believe me, we have

4 enough to do. We’re not looking for wild goose

5 chases here. We’re trying to focus on this issue,

6 so --

7 MR. ZONEN: You’re still looking at me. Is

8 there something you wish me to add or answer.

9 THE COURT: No, I’m just trying to think.

10 It’s a difficult problem.

11 MR. ZONEN: It is.

12 THE COURT: I was reflecting, actually, on a

13 statement I made yesterday, I think, that we just

14 had a couple of simple things to look at. I took it

15 back right away, but what was I thinking.

16 Let me -- let me -- I want to sit down with

17 my research team and see if we can ourselves

18 structure an order that will be appropriate as

19 opposed to asking for one from either of you. So

20 I’ll -- let me do that.

21 MR. SANGER: Thank you, Your Honor.

22 THE COURT: Then the next item -- is it

23 break time yet.

24 The next item --

25 MR. SANGER: No, Your Honor, you have three

26 minutes.

27 THE COURT: I’ll use it, too.

28 Motions to quash subpoena duces tecum on the 2755

1 financial issues.

2 This is -- this is what I’m going to do

3 here, is I’m going to deny the motion to quash.

4 Did you have something you wanted to say.

5 MR. SANGER: I suppose, but Your Honor’s

6 already indicated you’re going to deny it. I don’t

7 want to argue it if that’s the ruling.

8 THE COURT: We’ve been through this and

9 through this, you know. So what I thought I would

10 do is to deny the motion to quash, limit the period

11 of time. The subpoenas are too broad. We need to

12 address some limitations on the subpoenas. And

13 indicate that I’m not making any ruling on the

14 admissibility of the records at trial, and I’m not

15 releasing them for their experts to examine.

16 This is not a part of the discovery process.

17 This is a subpoena duces tecum for trial. And --

18 but I think they should have the records here to the

19 extent that they might be used in trial.

20 It’s like a lot of other records that have

21 been subpoenaed. They are not necessarily

22 admissible records. That would depend on how they

23 come, what the issue is at the time they’re asked to

24 be introduced, and what the records are.

25 But anyway, that’s my proposed order on

26 that.

27 MR. AUCHINCLOSS: May I just make one

28 inquiry, Your Honor. 2756

1 THE COURT: Yeah.

2 MR. AUCHINCLOSS: Some of these records will

3 be voluminous. And I’m happy to try and narrow the

4 scope of the request, but there’s no way around

5 getting to the issue of the examiner having to see

6 the exhibit and look at it.

7 THE COURT: See, that’s the whole problem

8 here, is that this is not a subpoena for your expert

9 to prepare himself to testify. That is not what a

10 subpoena duces tecum is, and that’s not what I’m

11 allowing.

12 MR. AUCHINCLOSS: So I guess I’m asking the

13 Court, what are you proposing in terms of how --

14 when the expert can look at the documents and --

15 THE COURT: Absent a stipulation from the

16 other side, you would open the documents here in

17 open court.

18 MR. AUCHINCLOSS: It will -- it will

19 obviously be time-consuming.

20 THE COURT: Well, it may not be, because

21 you’ll have to tell me why you want to open them.

22 And they won’t be opened so you can spend hours

23 thumbing through them and looking at them. And --

24 MR. AUCHINCLOSS: If I -- may I have

25 permission to file some authority for the opening of

26 the documents prior to their examination on the

27 stand.

28 THE COURT: Yes. 2757

1 MR. AUCHINCLOSS: All right. Thank you.

2 MR. SANGER: And --

3 THE COURT: The point is, that the -- you

4 have subpoenaed the records for trial. That’s

5 legitimate to subpoena the financial records,

6 because I’ve already ruled that the -- that under

7 your theory, his general financial statement --

8 “his,” Mr. Jackson’s, general financial statement,

9 can be raised as a motive, as you requested. I

10 agree with you, that that’s appropriate. And I’ve

11 ruled that.

12 I have ruled - if it’s not clear, I’ll make

13 it clear now - that under 352, I am -- I do not --

14 I find that the amount of time that would be

15 involved in proving and disproving his true

16 financial worth outweighs the probative value of

17 doing that. And under 352, I’m not going to allow a

18 detail-by-detail examination of Mr. Jackson’s

19 finances.

20 MR. AUCHINCLOSS: And I do appreciate that,

21 and that’s why I submitted Exhibit A with our

22 papers. And that really is the substance of the

23 testimony we’re seeking to adduce. One page.

24 THE COURT: Just so you see maybe what --

25 both sides see what I’m thinking is, the reason the

26 subpoenas are valid is that his finances are at

27 issue in this general sense.

28 Let’s suppose you have somebody testify -- 2758
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PostSubject: Re: March 18, 2005   March 18, 2005 Icon_minitimeSat Mar 17, 2012 3:50 pm

1 I think somebody already has said that his finances

2 were at issue; that that was part of the public

3 relations effort that should be taken care of,

4 because people were saying that he had bad finance

5 -- his finances were not in good shape.

6 But let’s say a little further, you had

7 someone testify that, in fact, their belief, you

8 know, based on something legitimate, but not much,

9 that he didn’t have good financial standing at the

10 moment, poor cash flow or whatever they say. Then,

11 now, that’s all I allow.

12 See, then let’s say that the defense calls

13 their accountant, and then he says, “Well, they’re

14 absolutely wrong,” you know. “He’s worth eight

15 times as much as anyone thought before, and here it

16 is.”

17 Now you’ve got the records in court, and you

18 say, “Oh, let me look at the records.”

19 Now we have a situation where perhaps

20 looking at the records would be appropriate to

21 cross-examine this accountant.

22 MR. AUCHINCLOSS: All right.

23 THE COURT: So the other way, it doesn’t

24 quite work for me, that you call your expert and

25 say, “You think he’s in bad financial shape.”

26 And he says “Yes,” and he says, “Let me show

27 you all his records,” and see if that substantiates

28 what you’re saying. We sit here for four days while 2759

1 he goes through them.

2 No, that’s not going to happen.

3 MR. AUCHINCLOSS: I understand. Your Honor.

4 Thank you.

5 THE COURT: All right. Let’s take our break.

6 (Recess taken.)

7 MR. SANGER: Your Honor, I have one, and

8 just one, it’s a technical question, because -- and

9 I’m not arguing with the Court.

10 THE COURT: You wouldn’t do that.

11 MR. SANGER: Not that I -- I’m just not.

12 But a technical request.

13 I’m hearing what the Court has ordered is

14 that the general financial -- I think you said the

15 general financial statement of the defendant can be

16 gone into, or status.

17 THE COURT: No, a statement of general

18 finances.

19 MR. SANGER: That’s the Court’s ruling on

20 that issue.

21 THE COURT: Yes.

22 MR. SANGER: I’m not sure that we had that

23 on the record. That’s why -- I think we may have

24 discussed that. It may have been on the record, but

25 I just want to make sure on the record we have

26 whatever the Court’s ruling is.

27 THE COURT: I think that was the ruling, and

28 I reiterated it just before the break. 2760

1 Were you writing down what I was saying.

2 THE REPORTER: Yes, sir.

3 THE COURT: It was on the record.

4 MR. SANGER: Okay. That’s fine. Thank you.

5 MR. ZONEN: Might I be heard on one matter,

6 as well, before -- let me offer one alternative

7 solution to another problem.

8 THE COURT: All right.

9 MR. ZONEN: With regard to the issues of the

10 grand jurors being individually interviewed by all

11 of us, both sides, I assume there’s 19 grand jurors,

12 but there was a court reporter who was present as

13 well, and presumably she’s a witness to that as

14 well.

15 We would accept the defense’s suggestion to

16 the alternative resolution, based on your call

17 entirely. This would be your choice entirely. But

18 we would offer as an alternative, if the Court’s

19 willing to do so, and we’ll accept it, that one of

20 the three prosecutors present would be made

21 available as a witness in this case in lieu of the

22 grand jury.

23 This is done for purposes of protecting

24 their identity, as we had represented to them we

25 would during the course of those grand jury

26 presentations, and the concern that the Court has

27 about keeping this matter moving. We’re talking

28 about 20 potential witnesses. 2761

1 So we would offer that as an alternative, if

2 that’s acceptable to the defense, and if that’s

3 acceptable to the Court. And the Court would make

4 the determination as to whether you prefer to do it

5 that way or prefer to proceed by way of interview of

6 each of the 19 grand jurors, and the court reporter

7 as well.

8 MR. SANGER: May I have just a second.

9 (Off-the-record discussion held at counsel

10 table.)

11 MR. SANGER: Okay. I think that -- I

12 understand that the District Attorney is saying they

13 would pick one of the people. I don’t know that all

14 three of them were in the room at all times, but

15 they would pick one of the three of them to testify.

16 We’ve already heard what they’re going to testify

17 to.

18 I think that under the circumstances,

19 particularly in light of the fact that there’s that

20 one grand juror that’s asking questions about

21 fingerprints, I just have a feeling it would be

22 appropriate for us to interview the rest of the

23 grand jurors and find out what everybody says

24 happened. And we can still decide, when it’s all

25 done. We may end up with a stipulation with the

26 prosecution once we’ve had a chance to investigate.

27 But I think it’s gone -- the ball’s rolled too far

28 in that regard. 2762

1 If the record is -- and I’m not arguing with

2 the Court on that. The record is the record. But

3 if we can go behind it, then we should be allowed to

4 talk to the other people in the room.

5 THE COURT: Well, I would -- you know, I

6 would consider -- this is a difficult problem. It’s

7 not an easy problem. And the grand jury, when they

8 come to serve, you know, expect their identities to

9 be protected and not to be exposed to

10 cross-examination. That’s not something that’s

11 anticipated.

12 If the prosecution is withdrawing their

13 request to call the grand jury foreperson and

14 intends to try to prove their -- the way that --

15 that the records were not touched by the child

16 during the proceedings, then the Court would accept

17 that withdrawal of the request to call the grand

18 jury foreperson. I don’t see any particular

19 problem.

20 Who would be the District Attorney

21 testifying.

22 MR. ZONEN: Your Honor, it would probably be

23 Mr. Auchincloss. There were three of us present at

24 the time that the boys testified initially. They

25 were recalled at the end of the proceeding.

26 Mr. Sneddon at the time was involved in a

27 separate trial in Santa Barbara. He was trying the

28 Harms case at the time. He was not present during 2763

1 the second time.

2 But we would -- it would be Mr. Auchincloss

3 who would be testifying. He certainly witnessed all

4 the events.

5 MR. SANGER: And so we’ll have Mr.

6 Auchincloss’s statement and his criminal history

7 records and all that so we can evaluate him as a

8 witness.

9 I’m saying that to be funny. I’m sure he

10 doesn’t have a criminal history. But we do want to

11 have a statement of the witness, if they call him as

12 a witness.

13 MR. AUCHINCLOSS: Is that a sound bite.

14 MR. SANGER: It was a kind sound bite.

15 But as far as the statement is concerned,

16 the witnesses -- we’re allowed to have -- we are

17 supposed to have the information about the witness

18 and their statement, and that’s --

19 THE COURT: That’s true.

20 MR. SANGER: That’s part of discovery. So

21 I’m asking for proper witness discovery, which, you

22 know, would include all those things.

23 THE COURT: That’s fine. That’s what he’s

24 asking for.

25 But I just want to make clear that I’m not

26 bargaining with you. If he wants to call the other

27 two district attorneys that were present, that

28 wasn’t -- I’m not bargaining with you. You know, 2764

1 you are offering one for one. That wasn’t what I

2 was suggesting. I was saying if you want to

3 withdraw the calling of the grand jury foreperson

4 and submit yourself, or that you may, and if he

5 wanted to, you know, talk to the other District

6 Attorney that was present, you know, it’s the same

7 problem, isn’t it.

8 But I do think that the correct -- you know,

9 I do appreciate and think the right choice is to not

10 call the foreperson and involve the grand jury in

11 this hearing. So I appreciate that.

12 So that being the case, I’ll vacate the

13 order that I was either going to make or did make

14 about interviewing all the grand jurors, and that

15 won’t come into effect unless you -- unless we get

16 back to calling a grand juror.

17 All right.

18 MR. SANGER: Could I ask, just -- since the

19 District Attorney actually raised it, the court

20 reporter is under certain statutory obligations of

21 confidentiality as are the grand jurors.

22 Could the court reporter be relieved from

23 those obligations, to the extent that we could

24 inquire of her of the circumstances in which she

25 recalls the evidence was handled. I mean, we know

26 who she was. Her name is on the -- I won’t repeat

27 it, but her name is on the transcripts.

28 THE COURT: Yeah. 2765

1 MR. SANGER: And I don’t see why that would

2 be a problem.

3 THE COURT: Let me consider that.

4 MR. SANGER: Okay.

5 THE COURT: I’ll need to look at what

6 restrictions they have. You don’t think they

7 actually watch what’s going on, do you.

8 MR. SANGER: There’s a possibility.

9 THE COURT: Okay. Let me look at that.

10 Do you know what code sections. I’ll have to find

11 them. What protections they have.

12 MR. SANGER: I did cite code sections. I

13 just closed it. But I did cite the code section,

14 the general area that talks about grand jury. It’s

15 9-something. Let me just see if I can find it here

16 real quickly.

17 924.1 is the grand jurors, and it’s right

18 around that same area.

19 THE COURT: It talks about the court

20 reporter.

21 MR. SANGER: Yeah. Somewhere in that same

22 series of code sections.

23 THE COURT: Okay. Thank you. I’ll let

24 you -- I’ll look at that this weekend and tell you

25 Monday, and --

26 MR. SANGER: Okay. Would the Court like me

27 to get the exact code section and send it, or --

28 THE COURT: I think we can find it. 2766

1 MR. SANGER: I’m sure.

2 THE COURT: If it’s in this area, don’t

3 worry.

4 MR. SANGER: Yes. Thank you.

5 THE COURT: If you find it’s some other area,

6 some other code or something, I’d appreciate if

7 you’d just --

8 MR. SANGER: Yes, sir.

9 THE COURT: -- phone Carrie or something.

10 Nothing formal.

11 MR. SANGER: Yes, sir, I will.

12 THE COURT: Let the other side know.

13 Then we have -- the next item is the

14 defendant’s motion re admissibility of evidence

15 related to George Lopez.

16 MR. SANGER: Again, we briefed it.

17 I guess the main point that I want to make

18 orally here before the Court is that in a criminal

19 case, the defendant has the constitutional right to

20 confront and cross-examine. And generally, if you

21 have a good-faith belief that something is true,

22 you’re entitled to ask questions on

23 cross-examination to test the recollection and test

24 the credibility of a witness.

25 And I think that the Court’s pre-trial

26 rulings on this were based on information the Court

27 had at the time.

28 But I think it’s very clear at this point 2767

1 that we have a good-faith belief that Gavin Arvizo

2 was involved in this wallet incident with Lopez,

3 with George Lopez. And the prosecution has already

4 raised -- in their own testimony on direct, they

5 raised the issue that there was a falling out with

6 George Lopez.

7 I think that just stepping back from the

8 fact that this is the Michael Jackson case and that

9 it’s George Lopez, who is an actor, ordinarily,

10 fine, we’d be able to say, “We’ll just find out what

11 it was about and get to the bottom of it.”

12 And we understand the Court’s ruling. We’ve

13 all tried to abide by it. But it seems to me that

14 at this point there’s more than enough evidence to

15 suggest that we should be allowed to vigorously

16 cross-examine and find out.

17 As you know, from what we have from the

18 various interviews, there is -- there is clearly

19 some incident that involved David Arvizo and George

20 Lopez that apparently involve the wallet and the

21 accusation that the $300 was taken out of Gavin’s

22 wallet. So it’s Gavin’s wallet that Gavin claimed

23 he left there and claimed he had $300 in it, which

24 is -- David claimed he had $300 in it, which is

25 inherently strange to start with.

26 Secondly, we have information from Louise

27 Palanker that it was Gavin who was brought into it

28 reluctantly by his father to say how much money was 2768

1 in the wallet, and he didn’t say, “No, there was no

2 money in the wallet,” he said, “Oh, I can’t

3 remember, I can’t remember,” based on her version of

4 things.

5 That is enough of a good-faith belief that

6 there’s something going on here with Gavin

7 specifically that is part of the same pattern that

8 occurs throughout, and we’ve shown that there’s

9 parallel patterns. Once there’s a falling-out,

10 there’s an accusation, and the accusations often

11 escalate.

12 What we have at the moment -- you know, as

13 defense lawyers, we have to defend. What we have at

14 the moment is we have the prosecution putting the

15 witness on the stand and saying, “Well, was there a

16 falling out with George Lopez.” “Yes, there was,”

17 and we can’t go into it.

18 So I think we have a good-faith basis, and

19 they’ve brought the subject up. Even if they

20 didn’t, I think we could go into it, but they

21 certainly brought the subject up. We should be

22 allowed to freely cross-examine and really test the

23 recollection and the credibility of the witnesses in

24 what is a particularly critical area and an area

25 that even the prosecution felt was warranted to

26 bring up to this jury.

27 MR. SNEDDON: Judge, let me -- if I could go

28 back and put this in perspective as to the way I 2769

1 recall this issue coming up.

2 I recall being part of a discussion with the

3 Court and counsel and the attorney for Mr. Lopez,

4 and I recall that the motion was to quash the

5 subpoena. And as I recall it, the decision that was

6 made ultimately, at the completion of the day, was

7 that the Court indicated that you would not release

8 Mr. Lopez from the subpoena, but that you asked the

9 lawyers specifically to file information to you with

10 regard to the incident involving the wallet, so you

11 would be in a better position to evaluate whether

12 Mr. Lopez would be a witness or whether it would

13 qualify for some motion under 403.

14 To my -- to my knowledge only - I can only

15 speak for myself - I’ve never seen anything filed by

16 the lawyer in response to the Court’s request as to

17 what I understood was going to be the next step.

18 And let me tell you, from our perspective, how we

19 feel about it.

20 Our recollection, and from a review of the

21 transcript of the defense’s opening statement, Mr.

22 Mesereau said that it was Janet Arvizo, not David

23 Arvizo, who was involved in this wallet incident.

24 And the purpose for us asking questions of

25 people who knew about the incident was to show that

26 it was, in fact, David Arvizo and not Janet Arvizo,

27 because the defense had made a representation to

28 this jury that it was Janet Arvizo who was involved 2770

1 in that incident, and she was not, to the best of

2 our knowledge.

3 So with regard to the good-faith belief, now

4 the defense says it was David, but that wasn’t what

5 they said, I believe the transcript will bear out,

6 in the opening statement. And it was for that

7 reason that we asked the questions of the witness

8 that was on the stand.

9 Putting aside the change in position by the

10 defense, we believe further that the information is

11 that the father, David, tried to induce the child to

12 claim that there was $300 in a wallet, and the child

13 refused to do so and was reluctant to do so.

14 So, I guess our position is, we would like

15 the Court’s order that Mr. Lopez be a witness in

16 this case to stay in effect pending the fact that

17 the lawyer file some kind of declaration or

18 pro-offer proof to the Court, and then at that point

19 either side could make whatever motions that they

20 feel is appropriate in light of the information

21 provided to the Court.

22 We would not want him released. And it

23 could be very well that we want him to testify,

24 because it was, in fact, David, and not Janet

25 Arvizo, who was involved in this incident, and the

26 son, the victim in this case, was not -- was not

27 buying what the father was trying to get him to do.

28 So that, in essence, is our position on 2771

1 this, Your Honor.

2 MR. SANGER: May I respond briefly.

3 THE COURT: Just a moment.

4 Here’s the question I have: I can’t tell

5 from the declaration of Mr. Sanger, or from the

6 attached reports, if Gavin, when he called Mr. and

7 Mrs. Lopez seeking the return of his wallet, claimed

8 at that time that there was several hundred dollars

9 in the wallet. I can’t tell if that’s your

10 proffered --

11 MR. SANGER: Here’s -- the state of that

12 situation is this, as I understand it: Louise

13 Palanker says that she was advised of this wallet

14 incident because it was a big topic of discussion --

15 THE COURT: But can you answer my question.

16 MR. SANGER: Yes. And when she was told

17 about the incident - which is double hearsay, or

18 hearsay at the very least - when she was told, she

19 was told that Gavin made the call, and that later,

20 when David Arvizo tried to get him to stand there in

21 the office and say there was $300, he said, “Well, I

22 can’t remember how much was in there.”

23 THE COURT: Right.

24 MR. SANGER: Okay. Jamie Masada could not

25 remember the incident until he was prompted, and

26 then he remembered it. Then he couldn’t remember

27 all of it. So he went through several stages, but

28 through the course of his statement, he eventually 2772

1 says, “Well, I don’t really remember” -- as I

2 recall, he says, “I don’t really remember what Gavin

3 did.”

4 So we have -- we don’t have a clear

5 understanding, or a witness who is going to clearly

6 say they heard what he said. Hence --

7 THE COURT: To the Lopezes when he called

8 them.

9 MR. SANGER: That’s right. Other than Mr.

10 Lopez, Mr. and Mrs. Lopez.

11 THE COURT: So the statement under your

12 declaration on line 21, 20 and 21 -- are you there.

13 MR. SANGER: Yes.

14 THE COURT: “Gavin later called Mr. and Mrs.

15 Lopez seeking return of his wallet. He claimed that

16 it contained several hundred dollars.”

17 MR. SANGER: That’s my understanding of

18 Louise Palanker’s claim. That’s why we detailed it

19 to show the Court. I mean --

20 THE COURT: So we don’t know that.

21 MR. SANGER: We don’t know that for sure,

22 but we’ve got enough. And as I say, there’s a

23 distinction here. And I think I answered the

24 Court’s question.

25 Okay. There’s a distinction here between

26 what Mr. Sneddon is proposing and what we’re talking

27 about at the moment, I think.

28 Mr. Blancarte, who’s representing Mr. Lopez, 2773

1 did say he would file a supplemental declaration

2 addressing the wallet issue.

3 THE COURT: Well, here’s what I recall. And

4 since I’m in the best position to --

5 MR. SANGER: Yes, evidently.

6 THE COURT: What I recall is that I overruled

7 the objection to the subpoena and said that Mr.

8 Lopez had to attend. And we agreed we wouldn’t call

9 him until April because of his business schedule.

10 The attorney for Mr. Lopez then indicated he

11 was going to file a motion to quash the subpoena,

12 which is different than the objection that he filed.

13 And I told him that if he was going to file

14 a motion to quash the subpoena, I would require a

15 detailed statement from Mr. Lopez as to this wallet

16 incident so I would know what he did or did not have

17 to offer the jury in the way of evidence on the

18 issue.

19 He has not filed a motion to quash the

20 subpoena, so the subpoena is still in effect. And

21 he’s under no duty to file any declaration absent --

22 only if he files a motion to quash, and that would

23 be in an accompanying declaration.

24 MR. SANGER: That’s absolutely correct, from

25 my point of view, proving that the Court is a very

26 percipient witness on a --

27 THE COURT: Okay.

28 MR. SANGER: Now, I was -- in fact, was just 2774

1 shortcutting that, because I didn’t want to go

2 through a long explanation, but the Court very

3 concisely did say what happened.

4 The point of the story is precisely what I

5 was getting at. Whether or not Mr. Lopez is called

6 as a witness is not Mr. Sneddon’s issue right now or

7 my issue right now. The issue right now is whether

8 or not we can confront and cross-examine the

9 witnesses with this incident.

10 THE COURT: I agree.

11 MR. SANGER: And I think --

12 THE COURT: And I think you can.

13 MR. SANGER: Okay. Thank you.

14 THE COURT: The difference we have is -- and

15 there’s been some -- maybe some misunderstanding

16 from the District Attorney, judging from their

17 objections, that on the 403 hearings, when I said

18 that certain things couldn’t be proved, I also said

19 that that did not bar cross-examination of certain

20 witnesses on those items, you know. It’s -- and

21 that’s -- that’s what was going on on some of the

22 ones earlier this week where you seemed to be

23 surprised that I was overruling your objection to

24 cross-examination on some of those issues.

25 So I agree with you, that cross-examination

26 of witnesses that have knowledge of this would not

27 be inappropriate. You know, there’s limits on that,

28 of course. 2775

1 MR. SANGER: Well, I understand. The Court

2 makes rulings as you go along, obviously.

3 Okay. Thank you. I believe that resolves

4 that issue.

5 We did have one more matter that we had.

6 It’s not on the agenda.

7 THE COURT: Yes, we’ll take that up now. A

8 motion for a mistrial.

9 MR. SANGER: That’s right. And just --

10 THE COURT: Let me just -- let me rule on the

11 first motion first, because it’s connected, in a

12 way.

13 MR. SANGER: Okay.

14 THE COURT: And you connected it.

15 What I’m going to rule on the motion for

16 admission of evidence on the alleged prior sexual

17 offenses under Evidence Code Section 1108 is that we

18 will hear argument on the -- on Monday, the -- what

19 date would that be. Would that be the 28th.

20 THE CLERK: Yes.

21 THE COURT: On Monday the 28th.

22 The way I think I would like to do this is

23 to have -- not to call witnesses unless I get to the

24 point where I want to have a witness.

25 So I’ll have the prosecution make their

26 arguments as to why they believe particular

27 witnesses should be called as to particular items,

28 what they’re going to say. And I’ll allow the 2776

1 defense to say -- they can do this in advance. I

2 would encourage some written material if you have

3 time to do it, but not requiring it, as to why -- in

4 a particular case, what you would be doing and why

5 you think it would -- should be excluded under 352,

6 and let you argue those things, and then I may or

7 may not ask for a witness in any particular

8 situation. It will depend on how I hear what you

9 have to say, what my opinion is then.

10 MR. SANGER: And if you were going to

11 request a witness, would it be on a different day,

12 or should we have people lined up outside the

13 courtroom.

14 THE COURT: Well, let’s make it a different

15 day so that we don’t have to inconvenience all sorts

16 of people.

17 MR. SANGER: Okay.

18 THE COURT: But I’m pretty much of the

19 opinion now, having read the cases on this, that the

20 likelihood of having any witnesses is not great.

21 MR. ZONEN: It’s not what.

22 MR. SNEDDON: Not great.

23 THE COURT: Now, on your motion for a

24 mistrial.

25 MR. SANGER: Yes, sir.

26 First of all, a motion for mistrial is

27 generally made orally. And it was made orally in

28 this case, just so the record’s clear, by Mr. 2777

1 Mesereau when he said, “I have a motion.”

2 THE COURT: He did. I understood what he was

3 saying. And I asked him to wait, and he did. And

4 the record was made timely, if that was an issue at

5 all.

6 MR. SANGER: I just wanted to -- we have to

7 connect the dots on the record, you know, so I just

8 wanted to make sure we did that.

9 THE COURT: Yeah. That is your right.

10 MR. SANGER: Thank you.

11 And I understand that we’re not supposed to

12 say the word “mistrial” in front of the jury, and

13 therefore we don’t.

14 THE COURT: That’s correct.

15 MR. SANGER: We filed a memorandum of points

16 and authorities in support of the motion for

17 mistrial this morning, hand-delivered it to the

18 District Attorney.

19 A mistrial, though, is generally -- a

20 motion for mistrial is generally made orally, and I

21 intend to make this orally. The points and

22 authorities just support what we said. And I’d

23 incorporate the points and authorities in my oral

24 presentation so that I don’t have to repeat

25 everything.

26 Having said that, the basis for the motion

27 for mistrial is that the Court made a ruling,

28 whether the Court intends -- or, I shouldn’t say 2778

1 “intends,” whether history bears out later that the

2 Court either grants or denies the 1108 motion, the

3 prosecution was under a clear duty not to go into

4 ‘93, ‘94 matters.

5 And what they did, what Mr. Auchincloss did

6 specifically, was not only ask a question that -- to

7 which a witness responded out of the blue, “Oh,” and

8 named names. And I’ll just avoid saying the names

9 right now, but it’s already in the record, and

10 everybody will see it, I’m sure. But, you know,

11 that can happen. You tell your witness there are

12 certain rules, and the witness gets up on the stand

13 and they’re nervous, and all of a sudden you ask a

14 question, and they blurt out things that they’re not

15 supposed to say.

16 That’s not what happened here. What

17 happened here was that the witness came up with one

18 name, which was Macaulay Culkin, and Mr.

19 Auchincloss, not being satisfied with that, went

20 back directly to the very list of names that he has

21 in his 1108 motion, that he’s been asking the Court

22 to be allowed to go into, and the Court said, “No,

23 not until we rule on it.” And he asked leading

24 questions. “What about so and so.” And then they

25 said, “Yes.” “What about the next person.” She

26 said, “Yes.”

27 It’s in the record and I’ve cited it. I

28 just don’t want to repeat it unless the Court wants 2779

1 me to.

2 THE COURT: No, based on your written

3 material, I read that record this morning.

4 MR. SANGER: And when you compare that to

5 the 1108 motion, there’s nothing accidental about

6 this.

7 Now, the issue or the problem that I see

8 here is that, number one, the Court’s order has been

9 blatantly disregarded. I’m not saying that from the

10 standpoint of being punitive. I’m just saying, as a

11 practical matter, that’s exactly what happened. It

12 couldn’t have been any more blatant and it couldn’t

13 have been any more intentional. It was clearly done

14 with leading questions. So as I said, there’s

15 nothing accidental about this. And it goes right

16 down the list of the people that the prosecution

17 wants to talk about.

18 If you look -- if you compare the 1108

19 motion to the transcript, it’s exactly what he’s

20 doing. He’s getting in the information that the

21 Court had said don’t get into until we have a chance

22 to do it.

23 So I think that the only remedy at this

24 point is a mistrial.

25 Now, the prosecution could argue, “Well, you

26 should grant our 1108 motion anyway, so there will

27 be no harm, no foul,” which means they can then put

28 the Court in this difficult position, deliberately 2780

1 violate the Court’s order, and then get the benefit

2 of all worlds on this.

3 That can’t be right. There’s got to be a

4 sanction. And the only appropriate sanction,

5 reluctantly - I say this reluctantly - is a motion

6 for a mistrial. And I say it reluctantly because I

7 think that when you look at the cases such as

8 Oregon vs. Kennedy, the United States Supreme Court

9 case that we cited, and the People vs. Batts, which

10 is a California case, the case law says that if a

11 mistrial is granted based on prosecutorial

12 misconduct, and it’s granted not at the request of

13 the defense, then jeopardy may have attached and the

14 case is over.

15 On the other hand, we’re in that position

16 where we have that choice. Do we stand here and

17 just say, “Well, we’re going to take it, because if

18 we request a mistrial and the Court grants it, they

19 can just start all over again and prosecute again.”

20 After considering this, we’ve decided that

21 our -- the only thing we can do, as a practical

22 matter, is ask for a mistrial as the first remedy.

23 If that’s denied, there may be other remedies. But

24 I think we have to -- in good conscience, given what

25 happened, and the blatant nature of the violation, I

26 think we have to request a mistrial.

27 Now, the prosecution can come back and say,

28 “Oh, well,” you know, “what’s a little violation of 2781

1 the court order here. I mean, we’ve spent a lot of

2 time and money, the Court’s spent a lot of time and

3 money, look at all these sheriffs are here helping

4 us get to our cars and do things, and the press.”

5 That can’t -- that can’t be a reason to

6 overlook something that in any other case would be

7 just an absolutely intolerable violation of a court

8 order.

9 He went down with leading questions, went

10 down the list of people that the Court has already

11 indicated you can’t get into until we -- until we

12 have a hearing on it.

13 So what do we do. As my former colleague in

14 this case used to say, “We have to do something more

15 than nothing.” And I think that that’s -- that’s

16 precisely what we have to do in this case. And I

17 think the only proper remedy is to grant a mistrial.

18 None of us, believe me, wants to sit here

19 and start this case over again. But what -- you

20 can’t unring the bell. They’ve gotten into specific

21 names and specific allegations that they were told

22 not to get into, and here we are.

23 Now, if the Court decides for some reason

24 that a mistrial should not be granted, then we’ve

25 suggested another possible sanction. But only if

26 the Court denies that motion for a mistrial.

27 We’ve also indicated that we believe, and

28 I’m saying it up front and I’ve said it in the 2782

1 papers, that this -- even though we have requested a

2 mistrial, this still may come within the exception

3 under the Kennedy vs. Oregon or the People vs. Batts

4 cases, in that this appears to be such deliberate

5 misconduct, where the very names are read in leading

6 questions that are in the motion, that it -- it

7 would be viewed as a case in which jeopardy is

8 attached and mistrial is deliberately caused, and

9 there may not be a retrial.

10 But whether that’s the case or not, those

11 consequences are not for the Court to weigh at this

12 point. The Court has to weigh whether or not there

13 was just a blatant disregard of the Court’s order,

14 and if, based on that violation, a mistrial should

15 be granted.

16 And we respectfully submit that that is the

17 proper remedy. And then, as I say, if the Court

18 disagrees and doesn’t grant a mistrial, then we’ve

19 suggested, among other things, as a sanction, the

20 1108 motion should just be summarily denied, the

21 People’s motion on that, because that would -- that

22 would at least be a sanction to deal with this.

23 The Court could then issue an admonition

24 that these -- that, “The reference to people prior

25 to the 2003 time period will be stricken. You’re

26 not to regard them,” and we could go from there.

27 Thank you, Your Honor.

28 THE COURT: Counsel. 2783

1 MR. SNEDDON: My first comment is that

2 Mr. Sanger points out one of the anomalies of the

3 law that we face when we try criminal cases, and

4 that is when there’s an allegation that someone on

5 the prosecution side steps over the boundary, all of

6 a sudden the defense can get up and make mistrials

7 and characterize it in a certain fashion.

8 But on the other hand, when we sit here and

9 watch defense counsel continuously step over the

10 boundaries and get admonished as violating the

11 Court’s 403 rules, the prosecution’s basically at

12 the mercy of the Court, because the law does not

13 allow us to make any kind of motion to rein in or

14 bring under control somebody who just consistently

15 violates the Court’s orders.

16 Having said that, two wrongs never make a

17 right, so I’d like to address the correctness of why

18 we believe that this motion should be denied, there

19 should be no sanctions, and why the Court should

20 ignore this, in the sense that it was not deliberate

21 and not intentional.

22 First of all, the Court’s 1108 motion dealt

23 with specific allegations of misconduct on the part

24 of the defendant involving other young boys. There

25 was no attempt to elicit that information from these

26 witnesses. There was no intent to infer that there

27 was any improper conduct on the part of Mr. Jackson

28 with the individuals. The questions were directed 2784

1 totally at the witness with regard to who were

2 people who came to the ranch and visited Mr. Jackson

3 on certain occasions.

4 And frankly, given the Court’s ruling on

5 staying away from the 1108 areas of misconduct, I

6 can’t see how, frankly, it comes within the purview

7 of just simply asking whether these were individuals

8 who came to the ranch during a particular point in

9 time involving the period of time in which this

10 person was an employee at the ranch.

11 In fact, the Court sustained some

12 objections, but most of the objections you sustained

13 were on the basis of foundation. And it was at that

14 point when Mr. Auchincloss went back and went

15 through them serially, individually, you did not

16 overrule -- in fact, you overruled objections on the

17 part of the defense as to some of those questions.

18 Now, I think it’s pretty hard to stretch

19 that kind of questions and those kind of answers in

20 the kind of context that they were presented as

21 being prosecutorial, deliberate misconduct on the

22 part of somebody, when it was clear that there was

23 nothing inferred with regard to the conduct of these

24 people at the time, and the conduct of the defendant

25 in relationship to these people.

26 And so I just submit to the Court that,

27 given the whole series of questions and answers and

28 the sustaining of objections, that there was nothing 2785

1 really improper that happened in the first place;

2 that this is part of the give and take at trial.

3 And some of the boundaries, I think the Court would

4 probably -- you won’t take judicial notice of it,

5 but the Court has tried to guide us generally

6 through some of these landmines in this case, and

7 it’s not altogether sometimes clear just how far one

8 can go and one can’t go. And I think that’s been a

9 problem on both sides of this case.

10 But to say that something is deliberate and

11 something rises to the magnitude of some kind of a

12 mistrial declaration in this particular case, I

13 think is a very, very big stretch in light of what

14 happened in the total context of this trial and in

15 the total context of the examination of this

16 witness, Your Honor.

17 THE COURT: Any rebuttal.

18 MR. SANGER: Yes. First of all, I’d feel a

19 lot more comfortable, rather than bringing up other

20 things and then saying two rights don’t make a

21 wrong, if we just address the issue. And also, I’d

22 feel a lot more comfortable if the prosecution

23 indicated that they were wrong.

24 However, what’s happened here is we’re

25 saying there was no intent to infer. And as we

26 cited in our papers on page two, and including the

27 footnote on page two, that it was Mr. Auchincloss,

28 not Miss Fournier, who said things like “special 2786

1 relationship” and “special friends.” It was Mr.

2 Auchincloss who was trying to make this relevant to

3 his 1108 motion. It was Mr. Auchincloss who brought

4 out the ages of the children. It was Mr.

5 Auchincloss who asked questions only about boys and

6 not about girls.

7 He chose to do that, why. Not because it

8 was a random discussion of Miss Fournier and what

9 she’d been doing on the ranch for 10 or 12 years.

10 This is directed specifically to the inference. And

11 Mr. Sneddon just got up and said there was no

12 intention of bringing out. You know, I’m just taken

13 aback by that. Of course there was an intention to

14 infer something by this testimony. I can’t believe

15 we’re in the same courtroom.

16 And if you look at that, when Mr.

17 Auchincloss goes on about special relationships,

18 special friend, ages, boys, he’s clearly tying it in

19 to his 1108 argument. And if he wasn’t doing that,

20 the relevance objections would have been sustained,

21 I’m sure.

22 It was -- it was offered as relevant

23 evidence. It wasn’t offered for some background of

24 Miss Fournier. And the Court ruled earlier that

25 that evidence would not be admissible until the

26 Court had a hearing on it.

27 So, you know, it clearly was improper, and

28 it clearly was for a purpose. I just can’t believe 2787

1 I heard to the contrary.

2 The question is, you know, what does the

3 Court do about it. And in saying that somebody on

4 the defense team overstepped boundaries from time to

5 time makes this right, it just doesn’t. And the

6 defendant does have a constitutional right to a fair

7 trial and to have the Court -- the Court’s orders

8 followed by the prosecution.

9 This is a bell that cannot be unrung. And I

10 just think under the circumstances, there’s no

11 choice but to grant a mistrial. As, you know,

12 remarkable as that might seem to the public or

13 somebody else, the fact is, as lawyers and as a

14 Judge, we all know that there are legal rules.

15 These legal rules, in this case that the

16 prosecution follow the court orders, were not

17 followed, and the consequence of those breaches of

18 legal rules is that the Court has to declare a

19 mistrial, and I believe that that’s the appropriate

20 remedy.

21 Thank you, Your Honor.

22 MR. SNEDDON: Judge, I promise it will be

23 less than a minute, but I wrote something down that

24 I didn’t tell you that I think is relevant to this

25 issue.

26 THE COURT: No, we have --

27 MR. SNEDDON: All right.

28 THE COURT: We have opening, response and 2788

1 reply.

2 Well, let me tell you how I was looking at

3 it when I was making the rulings, which is there was

4 some evidence by the District Attorney where -- from

5 which he would like to prove or have the jury infer

6 that when children go to Michael Jackson’s ranch,

7 that they are unsupervised, they become wild and

8 crazy kids, you know. There was a lot of -- the

9 inference they wanted to be drawn, I think, was that

10 that is a situation that Mr. Jackson wanted; that he

11 didn’t supervise them; he wanted them to become

12 uncontrolled children.

13 Then Mr. Mesereau, in cross-examination,

14 spent a good deal of time trying to establish --

15 that’s not a good word, “trying.” I should say

16 working to establishing that, in fact, many

17 truckloads, busloads -- not “truckloads,” busloads

18 of children, carloads of children, appeared at the

19 ranch when he was there, and -- when Michael Jackson

20 was there, and when Michael Jackson wasn’t there.

21 And there was an ongoing entertainment of children,

22 and that -- excuse me, that the children acted as

23 children do when they’re taken to any amusement

24 park. And that, in fact, Mr. Jackson wasn’t there a

25 lot, and wasn’t out watching them a lot and really

26 didn’t have much contact at all with all of these

27 children who took advantage of the rides and zoo and

28 everything. 2789

1 And then the District Attorney came back

2 and, in my acceptance of that evidence at that time,

3 was to try to reestablish or to establish the

4 contact that Mr. Jackson did have with the children.

5 And that, in fact, there were certain children that

6 he had a great deal of contact with, and that this

7 was the balancing of the evidence that I was

8 watching from this position.

9 And so when the District Attorney asked if

10 there weren’t certain children that he had

11 established good, strong relationships with - and

12 she confirmed, the witness confirmed that that was a

13 fact, and started naming them - I didn’t feel that

14 that violated the 1108 order. I didn’t see -- from

15 my standpoint, I didn’t see that it was either

16 harmful or helpful to either the defense or the

17 prosecution.

18 I mean, some of the children that were named

19 were relatives of Mr. Jackson. And I did

20 specifically limit that testimony to that area

21 purposefully. And I thought the District Attorney

22 recognized it when he said he intended to go no

23 further than that, and I said I would hold him to

24 it.

25 And then when the -- when he did mention

26 Jordie Chandler, he said -- he was the one that

27 raised it, not the witness.

28 “How about Jordie Chandler.” 2790

1 And she said, “Yes.”

2 And Mr. Mesereau said, “Your Honor, I’m

3 going to object based on the Court’s ruling on

4 1108.

5 “The Court: Sustained.

6 And Mr. Mesereau said, “Move to strike.”

7 And the Court struck the testimony.

8 And it was after that, of course, that Mr.

9 Mesereau moved for a mistrial. But I felt that that

10 cured the situation.

11 And one has to keep in mind that this isn’t

12 the first that the jury’s heard that name. And even

13 one of the questionnaires for service of jury was to

14 ask the jurors what they knew about the alleged

15 1993 -- or the 1993 alleged incident. And it’s come

16 up -- 1993 has been mentioned by other witnesses.

17 So it’s not like this is the first, nor will it

18 probably be the last time, it’s mentioned.

19 So I’ll deny the motion for a mistrial and

20 any request for sanctions.

21 Let’s see. Is there anything else before

22 me.

23 MR. SNEDDON: Judge, may I ask a question

24 about the procedure on the 28th, in terms of what

25 the expectations are, us moving forward with our

26 case. And then I have one minor thing that I’d like

27 to discuss.

28 THE COURT: Yes. 2791

1 MR. SANGER: Before you change the subject,

2 though, could I just ask one clarification question

3 on that ruling.


5 MR. SANGER: Just so we don’t have a

6 problem -- I mean, the Court is going to rule

7 however it’s going to rule.

8 THE COURT: The Court ruled however it did

9 rule.

10 MR. SANGER: That’s true. I’m speaking

11 about prospectively on other -- if this comes up

12 again. It would be our position that mentioning the

13 names of children who are in the 1108 motion,

14 whether they’re there because -- well, for whatever

15 reason, mentioning those names from ‘93, ‘94, or

16 prior to that should not occur, it would be our

17 position, unless counsel approaches and asks for

18 permission. Because I still believe that that comes

19 within the 1108.

20 I understand what Your Honor said. I’m not

21 arguing with the ruling. But prospectively, until

22 the Court rules on the 1108, that would be my belief

23 and understanding. And I’d ask if we could follow

24 that procedure; that if there is an intention to do

25 something like that, that we have an opportunity to

26 be heard on it.

27 THE COURT: I think that’s only fair. There

28 could be other situations where that testimony is 2792

1 admissible before we get to 1108. It’s not

2 admissible under 1108 or -- so it would have to be

3 some limited purpose. But to prevent the need for

4 further hearings like this, I think you should

5 advise them if you’re going to go through that

6 list --

7 MR. SNEDDON: Okay.

8 THE COURT: -- before then.

9 MR. SANGER: Thank you, Your Honor.

10 MR. SNEDDON: Judge, on the 28th, when you

11 said we were going to have argument, should we

12 anticipate that that will take the day, and we

13 shouldn’t be required to have witnesses standing by.

14 I don’t even mean in connection with the 1108. I

15 mean just --

16 THE COURT: Yeah.

17 MR. SNEDDON: -- to carry on that day.

18 Do you envision that would take the whole

19 day or part of the morning. I just want to get

20 direction so --

21 THE COURT: Well, how long do you think your

22 argument will take.

23 MR. SNEDDON: Depends on whether it’s --

24 who’s arguing it. But -- and depends on how much

25 leeway the Court gives.

26 THE COURT: How much --

27 MR. SNEDDON: Based on our experience, I

28 would expect it would probably take a couple of 2793

1 hours, I guess.

2 THE COURT: I think at least.

3 What do you think. Who’s arguing that here.

4 MR. SANGER: I believe I am, Your Honor.

5 I would say it’s liable to take a couple

6 hours. We could intend to take an hour, but we’ll

7 probably take a couple by the time we’re through

8 THE COURT: So are we talking two hours.

9 Are you each saying two hours total, or are you

10 saying two hours --

11 MR. SNEDDON: I would --

12 THE COURT: -- each.

13 MR. SNEDDON: No, I would anticipate that I

14 would be able to address the Court’s concerns in my

15 opening remarks. And since it’s our motion, we

16 carry the pail on this one, that probably I could do

17 that in a half hour easily, because you already have

18 our declarations.

19 THE COURT: I already have your written

20 declarations.

21 MR. SNEDDON: So I’ll just highlight things

22 and we’ll go from there. So I would expect that

23 mine -- my opening would take less than a half hour.

24 MR. SANGER: And by the time I get through

25 going back and forth, I think total, the whole thing

26 will probably take a couple hours. And we’ll

27 probably have a break, so --

28 THE COURT: So if we had the jury come in on 2794

1 Monday at 11:30 and did the 11:30 to 2:30, that

2 would work.

3 MR. SANGER: I think that would be fine. If

4 the Court needed more time, we could do the jury and

5 take more time on another day.

6 MR. SNEDDON: So 11:30.

7 THE COURT: So we’ll -- we’re going to

8 argue -- the arguments will start at 8:30.

9 MR. SNEDDON: Yes, sir.

10 THE COURT: But you’ll need to have witnesses

11 commencing at 11:30.

12 MR. SNEDDON: Is it the Court’s intention to

13 rule that day.

14 THE COURT: Unless -- yes, unless I need to

15 call a witness.

16 MR. SNEDDON: Okay. So if the Court rules

17 in our favor on one or more witnesses, we could go

18 ahead and put them on right away, then.

19 THE COURT: Yes.

20 MR. SNEDDON: All right.

21 The second thing is kind of a personal

22 thing, and it involves the Court also. You

23 indicated we would not be in session Tuesday

24 afternoon, and the reason is the dedication at the

25 Juvenile Hall. And I know they’re dedicating it to

26 Sue Gionfriddo, who is a close personal friend of

27 mine, and we’ve been colleagues for over 30 years

28 together, and I was very close to her and her 2795

1 deceased husband.

2 I had intended to attend that service, but

3 then you invited all the jury, and I’m a little

4 squeally about going over there, because I don’t

5 want to run into a juror, and I don’t want to get

6 accused of any improper conduct. So I guess what

7 I’m asking the Court is --

8 THE COURT: I would expect you to attend, and

9 I don’t expect any of the jurors to attend. Did

10 you notice the laughter when I --

11 MR. SNEDDON: I know, Judge. But I just

12 want to make sure that I’ve addressed -- I’ve

13 consulted with you about that.

14 THE COURT: I’ll address that with them

15 Monday and tell them I really don’t expect them to

16 attend. I think they’re in tune with my humor.

17 MR. SNEDDON: I don’t want to get accused of

18 showing up if you said they were going to be there,

19 or something like that.

20 THE COURT: No, I understand. I think

21 everybody -- Mr. Sanger might even want to be there.

22 MR. SANGER: I was going to say, Sue

23 Gionfriddo has been a good friend of mine for a long

24 time, too, and I intend to attend. And I assume if

25 we saw a juror, we would go in a different

26 direction.

27 THE COURT: Yes. I’d require them to wear

28 their badges if they went. I don’t think they’re 2796

1 going to go. They’re really looking forward to the

2 break.

3 MR. SNEDDON: Last thing: Do we have an

4 update on the computer. We’re in the middle of

5 trial here. We’d like to get some of that

6 information.

7 Are we done with at least one of the

8 computers with regard to the --

9 THE COURT: I’ll have to defer to Jed.

10 MR. BEEBE: The last word I heard was that

11 the -- that there was -- that the disk, based on the

12 new list, was in the mail yesterday. And so as soon

13 as the special master makes a ruling, that material

14 will be available.

15 MR. SNEDDON: It’s -- can I ask a clarifying

16 question.

17 My understanding was that the Brad Miller

18 computer was completed and that the scoping down of

19 the inquiries was on the Evvy Tavasci computers. Am

20 I mistaken about that.

21 MR. BEEBE: It’s the other way around.

22 MR. SNEDDON: The other way around.

23 MR. BEEBE: Yes.

24 MR. SNEDDON: Oh, but -- the Evvy Tavasci is

25 completed, but Brad Miller’s is the one that we’re

26 re-evaluating.

27 MR. BEEBE: Yes.

28 MR. SNEDDON: I’m sorry, Your Honor, I was 2797

1 trying to get to the point.

2 THE COURT: Go ahead and address him. He

3 knows. Go ahead.

4 MR. SNEDDON: Is it -- have the Evvy Tavasci

5 materials been given to the special master.

6 MR. BEEBE: Yes.

7 MR. SNEDDON: And then the next process is

8 it goes to the Judge. Judge Melville will make a

9 ruling from there.

10 MR. BEEBE: Yes.

11 MR. SNEDDON: I’m just trying to get an

12 update, Judge.

13 THE COURT: I agree.

14 MR. SNEDDON: We’re in the middle of trial

15 and --

16 THE COURT: It’s just something that I’m

17 as -- didn’t know any more than you did. So we both

18 now know where it is.

19 MR. SNEDDON: Perfect. Thank you very much.

20 Thank you for your indulgence.

21 THE COURT: All right. Is there anything

22 else.

23 MR. SANGER: I don’t think so, Your Honor.

24 Thank you.

25 THE COURT: All right. Court’s in recess.

26 Have a good weekend.

27 MR. AUCHINCLOSS: Thank you, Your Honor.

28 MR. ZONEN: You too. 2798

1 MR. MESEREAU: Have a good weekend, Your

2 Honor.

3 (The proceedings adjourned at 11:05 a.m.)

4 --o0o--
























28 2799






6 Plaintiff, )

7 -vs- ) No. 1133603


9 Defendant. )




13 CSR #3304, Official Court Reporter, do hereby

14 certify:

15 That the foregoing pages 2711 through 2799

16 contain a true and correct transcript of the

17 proceedings had in the within and above-entitled

18 matter as by me taken down in shorthand writing at

19 said proceedings on March 18, 2005, and thereafter

20 reduced to typewriting by computer-aided

21 transcription under my direction.

22 DATED: Santa Maria, California,

23 March 18, 2005.





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