Friday, July 22, 2011

The grand jury - the media seeks the release of transcripts

In May 2004 a group of media organisations - which, under the collective moniker of the access proponents, opposed the sealing of documents throughout the case - sought the unsealing of the grand jury transcripts and the resulting indictment. Theodore J Boutrous, the attorney for the access proponents, argued that "grand jury indictments are traditionally, and presumptively, open to the public", and that access to the grand jury proceedings was protected under the First Amendment to the United States Constitution, while the indictment was a matter of public record. The indictment had been released in redacted form, minus the 28 overt acts relating to the conspiracy charge.

While acknowledging that grand jury proceedings are usually carried out in secret, Boutrous contended that "there is no statutory authorization giving courts the power to keep all or any parts of indictments under seal, let alone mandating that they must do so". The motion to unseal the grand jury indictment reasoned that public access to the indictment was an instrument of fair and open justice, and served a role in safeguarding the integrity of the judicial process.

In the access proponents' motion to unseal the grand jury transcript, Boutrous argued that the "only the particular portions of the transcript, if any, that the Court specifically finds threaten the defendant's right to a fair and impartial trial may be kept under seal." He claimed that "the need to protect the identity of the minor accusor" - one of the reasons given by Judge Rodney Melville for sealing the transcripts - was nullified by the fact that his "name is widely known (but not reported), and . . . can be redacted", and that the portions of the transcript relating to the conspiracy charge "should be released in their entirety forthwith". He contended that sealing the entire transcript to protect Michael Jackson's right to a fair trial, because of the significant public interest in the case, "would mean that any time the public was interested in a criminal trial, the grand jury transcript would be kept secret on the theory that dissemination of information in the press could prejudice the defendant's fair trial rights." Boutrous suggested that jury voir dire would be a preferable means to safeguard the integrity of the trial and Jackson's associated rights.

Jackson's attorneys submitted an opposition to these motions three days later, which asserted that the release of the grand jury transcripts would indeed prejudice Michael Jackson's right to a fair trial. Steve Cochran warned that the release of such a one-sided catalogue of testimony - grand juries, by their nature, reflect the prosecution's view of the trial as witnesses are not subject to cross examination - was bound to contaminate the jury pool, as the case "has attracted as much media attention, if not more, than any other litigation ever".

"The press coverage in this case is of the sensationalist variety," he wrote. "Even after this court's careful rulings, the press runs stories and entertainment pieces on every rumor. The court's protective and under-seal orders have, however, reduced the intensity."

According to Cochran the defense had only received the grand jury transcripts a short time before the access proponents' motion to release the transcripts in their entirety, and was still awaiting a substantial amount of discovery - information on witnesses and evidence which the prosecution is required to share with the defense. Indeed, the defense still had a considerable wait for discovery from the district attorney's office, and the issue of sharing crucial information in the trial would become a bone of contention between the two sides in the case (I will be looking at the issue of discovery in greater detail in later posts).

"The indictment and the grand jury transcripts are rife with prejudicial information that reflects a one-sided, prosecution theory of the case," he wrote. "The admissibility of information presented to the grand jury and the overall propriety of those proceedings have yet to be determined [the defense later contested the indictment on both of these points]. It is plainly unfair to Mr Jackson to saturate the media, again, with only the prosecution's view of the this case, particularly while Mr Jackson is subject to the constraints of the protective order.

In a rare concurrence between the two sides in the Jackson case, the prosecution agreed that the details of the grand jury and indictment should remain sealed. "The jurors in this case should learn about the evidence while seated in the jury box, not at the breakfast table or from late-night talk shows," Gerald McC Franklin commented in a rejoinder to the defense opposition to the release of the transcripts. "Those records should remain sealed."

The grand jury transcript did indeed remain sealed, though shortly before the start of the trial transcripts of several witnesses were leaked and published by The Smoking Gun, which was not among the access proponents.

Wednesday, July 20, 2011

A brief history of Michael Jackson's $3 million bail

"It is apparent these crimes are not serious enough for the People to charge the other alleged unindicted conspirators. Perhaps this is because the prosecution realizes that Mr Jackson never conspired with anyone to commit any crime at any time." - Brian Oxman, May 2004.
From his arrest in November 2003 to the day of his acquittal over a year and a half later, Michael Jackson was subject to an almost unprecedented $3 million bail.

Jackson's lawyers appealed for a reduction in bail in May 2004, on the grounds that the "exhorbitant" $3 million placed an undue financial burden on Jackson and was substantially greater than the bail set out in statute for the offences with which he was charged, which amounted to $135,000.

In its motion for the reduction of Jackson's bail, the defense argued that the $3 million bail was "unnecessary and unfair" as Jackson was not a flight risk due to his financial and familial ties to Santa Barbara. He did not have a criminal record, and he was not a danger to the community.

"Mr Jackson's ties to this community are substantial," the motion argued. "For about twenty years Mr Jackson has owned a home in Los Olivos. His ranch covers in excess of 2,000 acres and Mr Jackson employs some 30 residents of this community at that location. Mr Jackson's ranch is commonly made available for recreation by community and charitable organizations."

"The offenses alleged in this matter are unquestionably serious," it continued. "Accordingly, the bail schedule for such charges is relatively high - in the area of $135,000. Application of other relevant criteria does not remotely support a multi-million dollar bail amount. At the outset of these proceedings Mr Jackson appeared voluntarily to confront these charges. To date Mr Jackson has complied with all conditions of release, including attendance in court as required."

The prosecution, by contrast, opined that Jackson was a flight risk due to the serious nature of the charges against him, and that the bail amount was reasonable given Jackson's substantial wealth. "He, like everyone else, is a 'flight risk', and only the prospect of forfeiting significant bail reduces that risk to an acceptable level," the prosecution argued in its opposition to the defense motion.

The prosecution estimated Jackson's bail under the Santa Barbara County bail schedule at $435,000, and contended that a sum substantially larger than this was required to ensure his continued appearance at court, citing a case from 1929 to assert that, once indicted, a defendant should be assumed to be guilty when bail is being determined.

"Plainly the 'monetary incentive' necessary to secure an accused's faithful attendance at pretrial, trial and sentencing proceedings can only be calculated by reference to the relative weath of accused and the likely strength of his desire to avoid the consequences of a conviction on the charges against him," the motion stated. "By all accounts, defendant is well-to-to."

"The defendant here is 'Michael Jackson, international celebrity', a man whose lifestyle would not have prepared him to adapt readily to a prison environment and routine, and whose physical stature will present its own problems for him in making the necessary adjustments," the document continued. "Mr Jackson has doubtlessly given those realities considerable thought.

"If the impulse to flee rather than face the disagreeable consequences of one's actions was not so universally experienced and understood, the requirement that 'reasonable' bail that amount which discourages flight would not exist."

Brian Oxman, who had joined Jackson's defense team in late April, countered that Jackson would not flee for the simple reason that the allegations against him were false and the prosecution's case was "flimsy" and "ridiculous", and "under no conditions would he create such a situation where he ran away from what are fictitious allegations".

"The charges are outrageous and not supported by competent, credible evidence," Oxman wrote. "The prosecution originally filed an information and faced a preliminary hearing. At a preliminary hearing, they risked defense cross-examination and impeachment. Suddenly, they changed their mind and chose secret grand jury where the witnesses could not be cross-examined. No judge or defense lawyer was present in the secret hearing.

"The defense promises that when these flimsy, ridiculous charges are tested in open court, the truth will come out. These bogus, outrageous charges will be revealed as false and malicious.

"The bail in this case is excessive, and the prosecution has not presented any evidence, testimony, or justification for a bail that is 43 times the amount of the bail schedule," Oxman added. "The prosecution fails to respond to the bail standards established by Penal Code sections 1275 and 1289, and the unrebutted facts are that Mr Jackson's financial circumstances, property holdings in this country, family ties, 30 employees, and 17 years of residence in this community make his flight virtually impossible."

Oxman also argued that Jackson could not flee even if he wanted to, as a substantial portion of his assets - including Neverland and his vast collection of memorabilia - were not moveable, and his continued presence at Neverland was required in order to maintain these assets.

"The prosecution makes no showing that Mr Jackson is a flight risk, and the prosecution's speculation and unsworn hearsay is not evidence," the document continued. "'. . . The prosecution's speculation and arbitrary assertions fail to differentiate this case from any other case or to otherwise warrant a bail that is 43 times the normal bail schedule.

"The prosecution speculates the reason Mr Jackson has made all his appearances and complied with every court order is because of the excessive bail. However Mr Jackson voluntarily surrendered on November 20, 2003, with no bail in place, and flight was never a possibility. The fact is Mr Jackson has provided this court with waivers, documents, and appearances having nothing to do with bail because of his deep respect for this court and the people of Santa Maria, and he will not flee because the case against him is a fiction."

Oxman argued there was nowhere Jackson could hide as he was instantly recognisable in every corner of the world, and in any event he did not want to flee. The prosecution, he maintained, had also shown scant concern that any the alleged co-conspirators would flee. In fact, they were not even charged with a crime despite being named as the alleged actors in the conspiracy charge.

"Mr Jackson is charged with allegedly conspiring with several other individuals to threaten, intimidate, molest, and abduct a child," he stated. "There is no evidence Mr Jackson had anything to do with these alleged acts of these other individuals, and the prosecution has not presented the slightest thread to Mr Jackson to any of their alleged conduct. Assuming for the sake of argument only that any of these allegedly conspiratorial acts of these individuals are even remotely true, the seriousness of the charges and the risk of Mr Jackson's flight must be viewed in light of the People's refusal to indict or charge these other individuals.

"Mr Jackson does not wish to make light of the seriousness of these charges because he takes this proceeding with the utmost seriousness and dignity [sic]. However, it is apparent these crimes are not serious enough for the People to charge the other alleged unindicted conspirators. Perhaps this is because the prosecution realizes that Mr Jackson never conspired with anyone to commit any crime at any time."

According to Oxman, Jackson could not leave Neverland, a placed he loved "more than words can describe", because he would then be unable to make mortgage payments, and he would lose the ranch to foreclosure, a loss which would be far greater, both financially and emotionally, than the $3 million bail imposed by the court. When Jackson left Neverland following his acquittal in the summer of 2005, he did indeed lose financial control of his home.

"Wishful thinking by those who have created these false allegations that Mr Jackson would flee will not change the fact that when this comes to court it will be proven false," he added. "Mr Jackson, his family, and his friends are working toward that day because they know the truth will expose an abominable injustice against Mr Jackson.

"The suggestion that his 'physical stature' is such that he would be forced to flee is a sanctimonious abomination contrary to the truth made up by persons who are irresponsible. Mr Jackson will fight these false charges and win."

Judge Rodney Melville ultimately ruled that there was no good reason to reduce Jacksn's bail. "Excessive bail may not be required," Melville argued. "However, the present bail, although in excess of the usual bail schedule, has twice been posted by defendant without objection or apparent difficulty. No evidence has been presented and no argument made to suggest that the bail amount represents a financial hardship for defendant. His substantial wealth is in fact given as a reason why bail should be reduced. Little has changed in the circumstances that led the Court to impose the current bail amount. A grand jury has been rendered adding a charge of conspiracy to the prior information. A trial date has been set [the trial was initially sceduled to begin in September 2004]. While there has to date been no significant issue with regard to the defendant's appearance at scheduled Court events, it continues to appear to the Court that a cognizable financial incentive to do so should be in place."

Jackson's $3 million bail was almost unprecedented. One of the very few people previously required to pay such a high sum to a California court in order to secure his freedom was Ray Buckey, one of five daycare workers accused in 1983 of multiple counts of child molestation involving ritual abuse in the McMartin daycare case.

Buckey and his co-defendents were accused of, among other things, sexually abusing the children in their care, photographing them naked, killing babies, torturing animals, and dressing up as witches and flying. Buckey, who was 25 when he was first arrested, spent five years in prison awaiting trial before he was released on $3 million bail. This was later reduced to $1.5 million.

In March 1985, nearly two years after the investigation began into her claims that her son had been abused by Buckey and others at the McMartin nursery, Judy Johnson was hospitalised and diagnosed with paranoid schizophrenia. Despite Johnson's diagnosis, which was consistent with her increasingly bizarre reports to the district attorney, the investigation continued unabated. By then, hundreds of children had been interviewed using techniques now recognised as likely to elicit false allegations of abuse. Leading questions were employed in the interviews - children who reported abuse were praised as 'smart' and children who said they had no knowledge of the alleged abuse were chided for being 'dumb'. The findings of these interviews - which, predictably, demonstrated that several hundred children had been sexually abused at the McMartin nursery - led to a public outcry for justice and the McMartin defendants were charged on more than 200 counts.

Judy Johnson died in December 1986. The following month it was discovered that the prosecution had witheld details of her mental illness - potentially significant exculpatory evidence - from the defense. Despite this revelation, the case continued for a further two and a half years, with an initial trial seeing most of the defendents acquitted, while Ray Buckey faced a retrial on eight counts, ending in mistrial with a hung jury. The case, encompassing the investigation and both trials, lasted for seven years and cost $15 million, but it is impossible to quantify the losses suffered by Ray Buckey and the other innocent people who were accused of these crimes.

It is now widely acknowledged that Ray Buckey and his co-defendants - which included his mother and his grandmother - were innocent, and that the allegations which started this mammoth witch hunt were a result of Judy Johnson's untreated psychosis.

Wednesday, April 13, 2011

The 'secret' subpoenas

On May 28 2004 Judge Rodney S. Melville ordered that "anything returned under subpoena duces tecum shall not be released to either party until further Court order except the JC Penney documents which were previously stipulated to by Counsel to be opened, copied and released to Counsel."

A few days later, on June 23, a motion submitted to the court by the defence sought "to subpoena materials without disclosing the nature of the subpoena, the person or items sought by the subpoena, or the response to the subpoena and any materials returned therewith".

Effectively Michael Jackson's attorneys were seeking leave of the court to issue subpoenas for documents without disclosing those subpoenas to the prosecution, that the subjects of those subpoenas be instructed not to disclose any information regarding the subpoenas to the prosecution, and that any hearings regarding the subpoenas be held in camera.

The application was made in accordance with Michael Jackson's constitutional right not to disclose his defence strategy to the prosecution, however rather than subpoena third party documents directly under this strategy, records must be brought to the court for a judicial determination on whether the defendant is entitled to receive them.

"Unless the court protects the entire subpoena duces tecum process from the prosecutor's gaze, the public nature of the process would render Mr Jackson's constitutional rights meaningless," the motion argued. "Therefore, the court should order that the defendent be permitted to subpoena materials without disclosing the nature of the subpoena, the person or items sought by the subpoena, or the response to the subpoena and any materials returned therewith."

Judge Melville issued a protective order instructing the clerk of the court to allow the defense to subpoena materials and ordering that neither the clerk nor the persons who were the subject of these subpoenas disclose the nature of the subpoenas to the prosecution. According to the order, "Persons or entities subpoenaed by the defendant shall not disclose directly or indirectly to the the People the fact that they have been subpoenaed or the nature of the subpoena."

The defense issued a raft of subpoenas under this order, including
subpoenas seeking psychiatric records for Janet Arvizo. Among those subsequently subpoenaed by the defense were Raymond Chandler, the Los Angeles Department of Children and Family Services, Los Angeles County Auditor Controller, Santa Barbara Child Protective Services, the Victim Compensation and Government Claims Board, C Michael Adler, one of the attorneys who represented the Arvizo family in the JC Penney case, Feldman & Rothstein, the other legal firm which represented the Arvizos in the JC Penney case, Stan Katz, Larry Feldman, and UCLA Medical Center.

However, despite the fact there was a protective order in place prohibiting subpoenaed parties from disclosing the nature, or even the existence, of these subpoenas to the prosecution, the district attorney's office soon became aware of these subpoenas and objected to a number of them.

Thursday, April 7, 2011

The JC Penney records

James La Chance, an attorney with Kirtland & Packard LLP, the firm which represented JC Penney in the Arvizos' civil case alleging physical and sexual assault by security guards employed by the company in 2000, attended a pre-trial hearing on April 2, 2004 in response to a defense subpoena seeking the company's records from this case. La Chance was, apparently, concerned about the sensitive nature of a large portion of these records.

La Chance brought four boxes of records to the hearing; two of which he said contained discovery materials, deposition transcripts, pleadings and materials that were responsive to the subpoena, while the remaining two boxes contained more sensitive documents including medical records, psychiatric records, school records, employment records and depositions related to those records. He said that, due to the sensitive nature of the records in these latter boxes, he did not feel it was appropriate to release the contents without a court order.

It would later transpire that these boxes contained, among other things, psychiatric reports on the family which indicated that Janet Arvizo was delusional and had likely fabricated sexual assault allegations against the JC Penney security guards, and had coached her children to support these allegations. Dr John Hochman, who carried out psychological assessments on the family, found doubtful aspects to the children's stories about the incident, and argued that it was impossible for the family to have such identical stories given the length of time that had passed.

Judge Rodney Melville ordered that the copies records of non-sensitive material be produced to the district attorney and to Marc Geragos, who was at that point Jackson's lead defense attorney, and that the sensitive materials which were the subject of La Chance's concerns be copied and released to both parties. The judge stipulated that no subpoenaed documents be opened without the consent of the court.

That consent came two months later, when both the defense - by then led by Thomas Mesereau - and the prosecution had the opportunity to examine the contents of the two remaining boxes of documents in the presence of a court officer. Judge Melville then ordered that the district attorney take possession of these records and make two copies of them; one for the prosecution and one for the defense.

Friday, March 25, 2011

Tom Sneddon's private statement

On July 26, 2004, the defence submitted a request for clarification of the court's protective order, following a media report regarding comments by district attorney Tom Sneddon about the case. Sneddon had apparently discussed the publicity surrounding the case at a meeting of district attorneys in Vancouver, Canada, which was subsequently reported in the Canadian press.

In an article published by The Globe and Mail, Sneddon was quoted as saying "We sent letters to some people saying we intended to call them as witnesses in order to keep them off TV."

Robert Matas, the journalist who broke the story, subsequently appeared on MSNBC to discuss Sneddon's remarks, and a transcript of his interview was included in the document submitted to the court:

ABRAMS: We're back. The lead prosecutor in the case against Michael Jackson has been accused of having a vendetta against Jackson. And it's no secret he hasn't been a big fan of the media coverage. But now D.A. Tom Sneddon may be going too far to get the case presented his way. Robert Matas of the national Canadian newspaper, The Globe and Mail attended a closed-door meeting of the National District Attorney's Association in Vancouver yesterday. There Sneddon lashed out at the media and offered some advice on how he's kept some people involved in the case from talking to the press.
According to Matas, Sneddon said - quote - "We sent letters to some people saying we intended to call them as witnesses in order to keep them off TV". And Sneddon even said, "we were able to get some lawyers, if not off, at least more restrained."
That one you're hearing - that last quote you are hearing here for the first time. Matas wasn't able to include it in his article. Before we talk about whether this is misconduct, reporter Robert Matas who broke the story joins me now from Vancouver. Mr. Matas, thanks very much for taking the time. We appreciate it.
ABRAMS: So put this in context for us. What was he speaking about when he made these comments?
MATAS: Well, it was a summer conference for District Attorneys' Association. It was a very informal affair. It was about 200 district attorneys. They were in their jeans and shorts and T-shirts. It was a panel on how to deal with the media in high-profile cases and there were some other prosecutors that were also on the panel and his area for the time that he was allotted was to speak about the Michael Jackson case and how he handled it.


MATAS: The context in which it came up was he was talking about - he started the first time around when - I guess in 1993 when he investigated Michael Jackson. He said the media was different. The media always waited for - the mainstream media at that time second sources before they would come out with something. And now they'll just do what they have to do to be first.
This is his perception, what he was saying. And then he started talking about defense lawyers and saying defense lawyers were going on TV every night talking about things that, as a prosecutor, he felt he had an ethical responsibility to the case and he couldn't respond. So he modelled this gag order to try and control things and level out the playing field. And he said he wanted the gag order to apply not just to the defense lawyers, but to the people that are involved on the defense team. The witnesses and anyone else who's going to comment with inside information, with the evidence, the contents that he wouldn't be able to respond to.
MATAS: And that's when he came out with this statement that he sent some letters out to some people
ABRAMS: But let's be clear. These letters were sent out to people just so that they would stay off the TV?
MATAS: Well, he said the letters were sent out to some people that he intended to call as witnesses to keep them off TV. I mean that's the phrase he used. And he said, we were able to - he referred to some lawyers. He said it succeeded in getting some lawyers restrained.


ABRAMS: Let me go to Mr. Matas on this. Mr. Matas, it is sort of ambiguous, is it not, as to whether he was suggesting that these people would not have been witnesses otherwise, correct?
MATAS: Well he didn't elaborate. So I suppose it could be read either way.
ABRAMS: And I should say this is the response we got from his spokespeople because we called them to find out what it was he meant by that. We were hoping for some clarification. This is the response we got. Being a prosecutor is a tough job, especially in a very high profile case. Because of the gag order, none of us can respond to untruths or innuendos swirling around. This is bound to be frustrating to the media, but as a public relations agency we understand this and try to impart as much information as we can under the circumstances.
You know, it doesn't sound to me, Lisa, like they're saying Mr. Matas got it wrong.
[LISA] PINTO: Well first of all, this was a casual gathering of prosecutors. If they knew a reporter was present, he spoke off the cuff. I would conjecture that possibly some of the attorneys involved were possible rebuttal witnesses. Maybe they knew something...
ABRAMS: I hope so.
PINTO: ... about Geragos' behavior or about Michael Jackson's...
PINTO: ... legal actions and in some way he needed to protect them...
ABRAMS: Well...
PINTO: ... and shield them from the wrath...
ABRAMS: All right. I hope so. Because if he is speaking to prosecutors he should be a lot clearer than that about exactly what he meant. There wasn't supposed to be - you know they didn't even know reporters were there. Mr. Matas did some good journalistic work getting this information out. But I can tell you he was the only one there in terms of journalists, so we're not going to get to talk to anyone else about what was said or wasn't said. Apparently, the D.A. doesn't want to clarify this. But I think this is serious stuff if he was sending out any letters to people just to keep them off TV.

In a supplemental request for clarification submitted to the court on July 29, 2004, Thomas Mesereau questioned whether comments by senior deputy district attorney Ron Zonen, who was quoted responding to the above story in the Santa Barbara News-Press , violated the protective order.

'Senior Deputy District Attorney Ron Zonen, who is co-counsel on the Jackson prosecution team, told the News-Press that the comment quoted in The Globe and Mail was either "a misquote or a lie",' the article stated.
Mr. Zonen insisted that the District Attorney's's [sic] Office sent letters only to witnesses.
"We were notifying the witnesses of the presence of the protective order and that to comment on the case could put them in violation of the order," Mr. Zonen said. "There was no one we sent a letter to who we did not call as a witness. And the way you notify witnesses of the existence of a
protective order is by mail."
Mr. Zonen said there was no specific discussion about the Jackson case, only talk about how to handle high-profile cases.
"(Mr. Sneddon) was also assured that there was no press present," Mr. Zonen said. "And he told everyone he would be answering no questions about Michael Jackson.
"Someone snuck in and then misquoted him. He never said that. We never did that. He did not discuss Michael Jackson. And he did not violate the gag order."'

Sneddon, in response to the media coverage, told the Associated Press his comment had been taken out of context and misinterpreted.

According to the article Robert Matas stood by his report. "He just said what I quoted him as saying," he said. "I didn't ask him to elaborate. And he didn't elaborate. It's just what he said and however that is interpreted I guess is up to someone else."

While several lawyers did eventually testify during the Jackson trial, the only lawyer on record as having received correspondence from Sneddon regarding public statements was Russell Halpern. Larry Feldman and William Dickerman later appeared as prosecution witnesses, while attorneys Mark Geragos and David LeGrand testified for the defense. Halpern did not testify during the trial. The prosecution later sought to have Brian Oxman held in contempt for public statements; however Oxman did not join the defense until July 2004.

The court later ruled the neither Sneddon nor Zonen had violated the gag order.

Wednesday, March 16, 2011

Russell Halpern's public statements

"I do know my client's wife. I would not be surprised if she was the one behind this." - Russell Halpern, January 2004.

On March 23 2004, district attorney Tom Sneddon submitted a request to
the court seeking an order to show cause regarding contempt of the court's protective order in relation to Russell Halpern, an attorney, and the Arvizo children's estranged father, David Arvizo. Sneddon argued that, as a prospective witness in the case, Halpern - who was the main focus of this motion - was subject to the protective order and therefore should not be discussing the case in the media.

"Russell Halpern Esq, the attorney for David Arvizo, the victim's father, had become a public figure in this case by making more than ten appearances on a variety of local and nationally televised news shows including The Today Show, The Abrams Report, and The O'Reilly Factor," Sneddon wrote in his submission, one of many to remain sealed until the trial had ended. "The subject of Mr. Halpern's appearances and the interest the media has shown in broadcasting his remarks have been focused upon one thing -- attacking the victim's credibility by vilifying the victim's mother with assertions that she is manipulating her children to make false allegations against the defendent. Mr. Halpern's nationally televised condemnation not only asserted that the victim's mother is unfit, manipulative and a liar, but also included his numerous attempts to vouch for the character and credibility of the defendent."

In a nutshell, Halpern had claimed that Janet was seriously mentally ill, and had been hospitalised in 1998 for what he termed a "bipolar problem", that she had previously made false allegations of physical abuse against David Arvizo, and that she had fabricated sexual assault allegations in the JC Penney case and had coerced her children into backing up these allegations.

He claimed she was "encouraging her children to make false accusations" and that the children had been "manipulated by her on prior occasions". According to Halpern, Janet invested considerable time and effort in coaching her children to be deposed in the JC Penney case.

"She was extremely controlling, the children were much in her control," Halpern told Fox News' Bill O'Reilly diring an interview in November 2003, "almost as she had a svengali type of . . . control over the kids."

Halpern also reported that David Arvizo "doesn't think Mr Jackson is a pedophile". David Arvizo, meanwhile, had stated in the media that Michael Jackson had been a "real good friend" and that he found it hard to believe the allegations.

According to one Fox News report, featuring Halpern, David Arvizo had submitted documents in one of the many cases the family fought, blaming all the family's problems on Janet's mental illness.

"A review of video clips of Mr. Halpern's statements make plain his newfound celebrity is dependent solely upon the fact that he represents the father of Michael Jackson's accuser," Sneddon's stated in the request for an order to show cause. "It is also obvious that without this circumstance, the media would have no interest in Mr. Halpern or what he has to say about this case. The court must now evaluate more recent remarks made to the press by Mr. Halpern and his client in light of Mr. Halpern's past demagoguery about the credibility of the victim and the victim's mother."

The previous December, Halpern appeared on MSNBC programme Countdown claiming that Janet was motivated by money and that the allegations could likely be attributed to this or to her "mental issues".

"He [David] believes she has the capability of coaching her child into making false accusations," Halpern said on the programme. "He also knows that she is motivated by a lot of money and she's also very erratic individual, easily angered has a some [sic] mental issues that may cause her to act irrationally. So what the motive is, if in fact that's what is occurring and he's not saying that that has happened, would possibly be money or just some emotional problem that she has."

Sneddon stated that he had notified Halpern by fax in January that he and David Arvizo were potential witnesses and therefore subject to the court's protective order precluding witnesses from making public statements regarding the case. In a subsequent phone conversation, Sneddon "cautioned Mr. Halpern to take the directives of the court very seriously." Halpern went on to appear on three news programs discussing the case.

Sneddon outlined the objectionable content of the interviews, stating that on one program, "Mr. Halpern purposely attacked the credibility of a material witness in this case -- the victim's mother -- by asserting that she had suffered from serious mental disorders and claiming she has been treated in a mental hospital".

In a later interview, "Mr. Halpern and Mr. Arvizo talked about Mr. Arvizo's pending visitation and child custody litigation with the victim's mother. Both Mr. Halpern and Mr. Arvizo also discussed prior criminal convictions suffered by Mr. Arvizo for spousal abuse involving the victim's mother and child abuse involving one of the victim's siblings. Both Mr. Halpern and Mr. Arvizo asserted that the accusations made by the victim's mother that led to the convictions were false. In addition, Mr. Arvizo vouched for the defendent when he expressed that defendent has always been a "real good friend." Mr. Arvizo then expressed his personal doubts about whether the victim in this case had ever even made an accusation of sexual misconduct against the defendent.

"These remarks deal with the credibility of material witnesses in the present case and are in direct violation of the court's explicit order not to divulge 'extrajudicial statements of witnesses' or to 'comment upon the weight, value, or effect of any evidence as tending to establish guilt or innocence'."

In a sworn statement, Sneddon said that "Mr. Halpern has stated that he saw documentary evidence his client brought to him that indicates the victim's mother in this case had prepared "scripts" for her children during a prior civil litigation involving JC Penney's."

According to later media reports, there was no mention of Janet's sexual assault claims in the JC Penney settlement documents, and the company settled without any admission of liability.

Sneddon stated that he believed both Halpern and David Arvizo would be witnesses in the trial; in the event, neither man testified. However Halpern disagreed with Sneddon's assertion in an interview with Fox News in February, and claimed that the district attorney was merely trying to stop him talking to the media.

"I spoke to Mr Sneddon personally and I asked him, 'In what way would I be a witness' and he said, 'Well, maybe you could impeach certain witnesses', and then we . . . the conversation went on, and he, and I asked him, 'Who am I going to impeach, your own witnesses?' I mean, it's ridiculous. He knows and everybody knows that I have no information that is legally admissible in the case of Jackson and that's not my concern."

Janet's psychological records from the JC Penney case were made available to the prosecution, on foot of a defense subpoena, in July 2004. Both parties examined the records - which required a court order to facilitate their release because of the sensitive nature of the information contained in them - and the district attorney agreed to copy these records and make them available to the defense. It is not clear from the court records when these copies were handed over to the defense.

According to Fox News, Sneddon had declined to say how much he knew of the family's troubled history before Michael Jackson was arrested.

While Halpern claimed that Janet was possibly bipolar, David Arvizo told defense investigators in late 2004 that his ex wife was "schizophrenic and delusional" and said she heard voices that were not there. There was no specific mention of Janet having schizophrenia at this point in the proceedings, nor was there until after the JC Penney records were made available to the defense.

However, given Russell Halpern's assertions that Janet was seriously mentally ill, the existence of court documents in which her allegations against her husband were attributed to her illness, Stan Katz's claim that there was an issue with Janet regarding "perception versus what really happened", and Janet's bizarre allegations of being falsely imprisoned and kept under surveillance while avoiding imaginary "killers", Tom Sneddon could hardly have been completely unaware of the risk that the case he was seeking to prosecute was based largely on the delusional beliefs of one of his key witnesses. All of these issues had emerged before this motion was submitted to Santa Barbara Superior Court and before the grand jury had convened to hear the prosecution's case.

Friday, March 4, 2011

The indictment

Michael Jackson was indicted in April 2004 on 10 separate counts; namely one count of conspiracy to commit child abduction, false imprisonment, and extortion, four counts of lewd act upon a child, one count of attempt to commit a lewd act upon a child, and four counts of administering an intoxicating agent to assist in commission of a felony, namely child molestation.

Twenty-eight separate overt acts were cited in the conspiracy charge, acts which the prosecution posited as proof that a conspiracy existed and that Michael Jackson was a key participant in that conspiracy.

The overt acts alleged that Jackson had contacted Janet Arvizo following the UK screening of Living With Michael Jackson, claiming that the family's lives were in danger and demanding that the Arvizos travel to Miami to participate in a press conference which never occurred, and that he prevented the Arvizos from watching the US screening of the programme while in Miami. Meanwhile it was alleged Jackson began giving Gavin (John Doe) alcohol on the flight back from Miami, and gave him a watch as a bribe to keep his drinking secret.

The family were then transported to Neverland where members of Jackson's staff used mysterious death threats to coerce Janet (Jane Doe) into participating in a rebuttal video. When the family left five days later, driven home by Neverland employee Jesus Salas, Frank Cascio phoned Janet and asked her to return to Neverland and to participate in the video. According to the indictment he claimed that Ronald Konitzer and Dieter Wiesner, two people Janet had a particular problem with, were no longer at Neverland. When she returned the two men were there, and she demanded that she be allowed leave. It was alleged that while she was allowed return home, her children were not.

Frank Cascio was alleged to have made death threats against Janet Arvizo and her parents while the family was at Neverland, while security staff at Neverland were instructed not to allow Gavin leave the ranch.

The indictment acknowledged that the family did participate in the rebuttal video, though it claimed their answers were scripted. The Arvizo interview took place in the home of Hamid Moslehi, a videographer who often worked for Jackson, and private investigator Brad Miller was present during the filming.

The indictment further claimed that the family was transported around California to obtain birth certificates, passports, and visas in preparation for a trip to Brazil, and all related expenses were paid for by Michael Jackson and his associates.

It was claimed that Jackson had the Arvizo boys sleep in his room during their stays in February and March 2003, and that he showed them sexually explicit material and gave them alcohol during this time. It was also claimed he monitored the family's movements at Neverland through a variety of security systems and video and telephone surveillance, and that the family's apartment was emptied and their possessions moved into storage. Meanwhile the children were checked out of their schools, under the pretext of moving to Phoenix, Arizona.

It was claimed Jackson had tried to convince Gavin not to undergo crucial urine tests related to his ongoing medical treatment because he feared the tests would show that Gavin had been drinking, and that the urine sample was subsequently destroyed on the way to the appointment in a bid to cover Jackson's having given the youngster alcohol. It was also claimed that Brad Miller, the private investigator hired to investigate the family, had videoed the family as part of this conspiracy.

The indictment also alleged that Frank Cascio was paid $1 million from the petty cash at Neverland, and assumed this money was used to fund this conspiracy.

The indictment different in several respects from the original felony complaint filed the previous December. The felony complaint had alleged seven separate lewd acts; however during his grand jury testimony Gavin said he was unable to recall more than two, and seemed unsure if these incidents really happened or not. Similarly, the number of allegations of furnishing alcohol changed, rising from two to four. There was no suggestion in the felony complaint that Jackson had conspired to do anything to the family.

Friday, February 25, 2011

The grand jury - the landlady

Yolanda Lazalde, the manager at the apartment building where the Arvizo family had lived, testified that the tenancy terminated in February or March 2003. She said she received a call from Janet prior to this, in which Janet indicated she wanted to end her tenancy. The $850 in outstanding rent was paid by "a kid" who went to pick up the Arvizos' things. She said this person gave her a letter, along with the keys.

Ms Lazalde said the family's possessions were moved out of the apartment on March 4. She received a call from Janet following the move. She said Janet called her to check that the apartment was clean.

Janet, meanwhile, testified that Jackson's associates had paid the outstanding rent on the apartment so that "no one would come looking for me or the kids". She said she had secretly called Ms Lazalde and told her she did not want to move. While only a short synopsis of Ms Lazalde's testimony is included in the motion to set aside the indictment, there is nothing in her published testimony to suggest that she thought the Arvizos were being forced to relinquish the apartment.

Monday, February 21, 2011

The grand jury - William Dickerman

William Dickerman told the grand jury he became acquainted with Janet Arvizo through Jamie Masada. He met various members of the family three times, once at his office and twice at Masada's club, the Laugh Factory. In March 2003, he began writing to attorney Mark Geragos regarding various complaints the family had regarding Michael Jackson and his associates. He also had discussions with a law firm called Hale Lane in Las Vegas.

Dickerman testified that there were at least five different areas he addressed in a letter to Geragos on March 26, 2003. He said people associated with Jackson were paying unwanted attention to the Arvizo family. He also sought the return of passports, visas, and supporting documentation which had apparently been taken from the family, along with furniture and other materials which had been taken from the Arvizos' apartment, and items of clothing belonging to Gavin which had not been returned from Neverland.

Dickerman also expressed concern in the letter regarding video and audio tapes which had been made of the family, and he said he wanted to ensure they could not be used. He said he had reason to believe that Gavin appeared in Living With Michael Jackson without consent and he wanted to ascertain whether any consent or release had been signed. He also wanted to ensure footage of the children was not displayed in the media again.

Dickerman said he indicated that he would seek a civil restraining order. The letter also asked Geragos to deliver the listed items by March 26 [sic]. Geragos, in response, asked for additional days to gather all the items. He did not appear to know about the passports or Brazil. Geragos never referred to passports, birth certs, or other items in the various letters which the two attorneys exchanged.

Dickerman wrote to Geragos again on April 8. He said it was clear to him that Geragos was creating barriers to returning the Arvizos' possessions. Dickerman wrote a number of letters between April 8 and April 22, demanding the return of these items.

He said Geragos sent him a letter by fax on June 2, indicating that he would forward information on the storage lockers containing the Arvizos' possessions. Brad Miller subsequently contacted him on June 12. He said he did not know if anything was recovered from the storage lockers and he never received the passports, visas, or other documents he requested.

In reality, the two attorneys exchanged a series of increasingly hostile letters in which Dickerman demanded the return of passports and other documents and Geragos prepared for the return of all of the Arvizos' possessions. These exchanges culminated at one point in the entire contents of the Arvizos' apartment - which had been in the storage locker referred to - being delivered to Dickerman's office, and much to Dickerman's annoyance.

At no point during his time representing the Arvizos did he contact Geragos, or anyone representing Michael Jackson, regarding child molestation.

Dickerman also contacted David LeGrand, another attorney representing Michael Jackson, regarding a complaint which had been filed with the UK's Broadcasting Standards Commission regarding Living With Michael Jackson. This complaint incorporated the Arvizos as complainants but Janet did not want to cooperate with LeGrand.

Dickerman said he contacted Larry Feldman and referred the case to him. He had never done business with Feldman before, but knew of his involvement in the 1993 case. He had tried to refer another case to Feldman on one occasion.

Saturday, February 19, 2011

The grand jury - Steve Robel

Investigator Steve Robel, another witness whose testimony was absent from the leaked transcripts, said Gavin originally told him he was molested before the DCFS interview occurred. Gavin later told him that some of the molestations occurred before this interview and some of them occurred after.

Robel, one of two detectives to whom Gavin first disclosed being molested - according to Gavin, on condition that they not tell anyone else - said Gavin told him he was afraid to tell the child protection workers that he was being molested as he feared something would happen to his family if he did. In his own grand jury testimony, Gavin claimed both molestation incidents occurred after the DCFS interview.

Gavin also told Robel that his grandmother told him that if men do not masturbate, they will rape women. He later attributed this statement to Michael Jackson.