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Lawyers battling over evidence in Jackson
case
Strategy is to place "the other side on trial"
By SCOTT HADLY
NEWS-PRESS SENIOR WRITER
Soon after dozens of sheriff's deputies, detectives and local prosecutors
fanned out last November to search Michael Jackson's sprawling Neverland
Valley Ranch and the Beverly Hills offices of his private investigator,
the attorneys arrived.
At Neverland, deputies spent 15 hours searching the bedrooms, playrooms,
closets and bathrooms, going into Mr. Jackson's private apartment
and his office, where they grabbed computer hard drives, videotapes,
day planners and other documents. At the ranch gate were criminal
defense attorneys Bob Sanger and Steve Cochran, clamoring to get
in. They were rebuffed until the search was complete after 11 p.m.
In Beverly Hills, attorney Dan Nixon — working for private
investigator Bradley Miller — arrived soon after three deputies,
a district attorney's investigator and a local police officer broke
down Mr. Miller's locked office door. The team was still searching
his office — pulling the hard drive from his computer and
grabbing video and audio tapes from his conference room —
when Mr. Nixon told them that they were taking documents protected
by attorney-client privilege.
It was a harbinger of things to come for investigators and the
prosecution — challenges at every turn by a savvy, formidable
and well-funded team of advocates for the pop star.
"Jackson has the means and is availing himself of all legal
mechanisms possible" to challenge the case, said Laurie Levenson,
a Loyola University law professor and former federal prosecutor
who has been watching the case.
"Placing the other side on trial"
During pretrial hearings last week in Santa Maria, Mr. Jackson
had a legal team of half a dozen attorneys on hand to attack the
legality of the searches of Mr. Miller's office and Neverland.
Out on $3 million bail, the 45-year-old singer pleaded not guilty
in late April to charges of committing a lewd act upon a child,
administering an intoxicating agent and conspiring to commit child
abduction, false imprisonment and extortion.
But the hearings last week were not focused on the details of the
charges, they were focused on whether prosecutors followed the law
during their investigation.
In the broad expanse of motions filed by the defense over the last
few months, everything from the legitimacy of the affidavits filed
to justify the searches to the criminal grand jury indictment has
been challenged. Mr. Jackson's attorneys have even gone after District
Attorney Tom Sneddon, accusing him of misusing his power, presenting
inadmissible evidence to the grand jury and bullying and intimidating
witnesses.
Mr. Jackson's lead attorney, Thomas Mesereau, has called the search
"outrageous government conduct" and referred to the search
of Mr. Miller's office as a "break-in."
Last month, Deputy District Attorney Gordon Auchincloss said the
defense was grasping at straws. Paraphrasing the Roman philosopher
Cicero, Mr. Auchincloss said Mr. Jackson's lawyers were taking the
approach that, "If you have no defense, place the other side
on trial."
But at the very least, in the court hearings last week, the defense
has knocked a few cracks in the prosecution's case.
In challenging the search of Mr. Miller's office, the defense argues
that prosecutors either knew or should have known that Mr. Miller
worked for attorney Mark Geragos, who represented Mr. Jackson. As
such, they say the items seized, primarily video and audiotaped
interviews of the 13-year-old accuser and his family, are protected
by attorney-client privilege.
What's at stake on this one issue is evidence that could substantiate
the conspiracy charges.
"Without those rebuttal tapes it's very hard to make the conspiracy
charge," Ms. Levenson said.
The alleged conspiracy began in February of last year, according
to the prosecution's sequence of events. And some of the alleged
conspiracy actually predates the time when the molestation is said
to have occurred.
Mr. Jackson and four alleged co-conspirators who have not been
charged reportedly lured the boy and his family to Neverland in
February after the airing of a British documentary in which the
pop star is seen holding hands with the boy and saying he shares
his bed with children. The purpose of bringing the family there
was to get them to record an interview in praise of Mr. Jackson.
Prosecutors allege they were held there against their will until
they made a video to counter the documentary.
In addition, an audiotape was made with the family under the direction
of Mr. Miller, and that tape is one of the key pieces of evidence
recovered in the search of the private investigator's office that
the defense has argued is covered by attorney-client privilege.
The challenge to the search of Mr. Miller's office could undermine
parts of the conspiracy case, but even if the conspiracy charges
go away, the core case regarding the molestation can still stand.
Throwing everything at them
The challenges to the search of Neverland Valley Ranch could be
more troubling to the prosecution, potentially undermining evidence
supporting the alleged abuse, Ms. Levenson said.
In addition, because the documents used to support the issuance
of the search warrant became the cornerstone for supporting the
70 different search warrants issued in the case, a lot of evidence
is at risk.
Evaluating the strength of the case is difficult, because much
of the indictment, the grand jury transcripts and the list of evidence
has been sealed by the court. But if physical evidence was recovered
in the Neverland search that supports the alleged molestation, losing
it could seriously undermine the prosecution's case, Ms. Levenson
said.
She wonders if there is DNA evidence, letters, photographs or some
other documents recovered in the searches that support the allegations.
"So much has been sealed that we can't really say," Ms.
Levenson said.
But it's likely that among the dozens of computers, electronic
copies of tens of thousands of e-mails, photographs, calendars,
billing receipts, videos, tapes, bank statements, credit card bills,
car payment information and more than 300 other items seized at
the ranch, there is evidence the prosecution believes supports their
case.
If the prosecution were to lose the ability to use that evidence,
something Ms. Levenson did not think was likely, it would become
more of a "he said, he said" case of dueling testimony.
To challenge the search of Neverland, Mr. Jackson's attorneys pulled
out all the stops. They said it was an illegal search because the
warrant was "overbroad," that investigators failed to
knock or give notice and that they went on searching after 10 p.m.
"They kind of have thrown everything at them," said Ms.
Levenson.
The strategy is likely to continue, she said.
JACKSON CASE CHRONOLOGY
2003
Feb. 5: Ronald Konitzer, a former Jackson business
associate, hires a team of civil attorneys and criminal defense
lawyer Mark Geragos of Los Angeles. At about the same time, Mr.
Geragos said he retained private investigator Bradley Miller of
Beverly Hills.
Feb. 6: British documentary "Living with
Michael Jackson" airs on ABC, showing him holding hands with
the boy who would become his accuser, and saying he shares his bed
with children. At around this date, the boy and his mother are interviewed
by the Jackson camp and reportedly make positive comments about
the singer.
Feb. 20: "Take Two: The Interview They Wouldn't
Show You," a video compiled for the Jackson camp by Hamid Moslehi
of West Hills, airs on FOX.
Feb. 20-March 10: During this period, authorities
allege Mr. Jackson committed four lewd acts on a child under 14
and gave the boy alcohol to commit the molestation.
April 26: First letter from family attorney William
Dickerman to Mark Geragos requesting return of property allegedly
taken from the family by Mr. Jackson's associates, including personal
letters between Mr. Jackson and the boy. In all, 16 letters are
sent back and forth between Mr. Dickerman and Mr. Geragos over a
two-month period. The family receives some but not all the items
they said were taken from them.
June: The boy reportedly tells the family's civil
attorney, Larry Feldman, that something happened between him and
Mr. Jackson. Mr. Feldman refers the boy to Dr. Stan Katz to determine
the veracity of the comments, who reports the accusations to authorities.
June 13: Santa Barbara authorities reopen their
investigation into allegations of molestation.
Nov. 18: Nearly 70 Santa Barbara County law enforcement
authorities raid Neverland Valley Ranch, the videographer's West
Hills residence and the private investigator's Beverly Hills office.
A warrant is issued for Mr. Jackson's arrest.
Nov. 20: Mr. Jackson, accompanied by Mr. Geragos,
is booked into the Santa Barbara County Jail, forfeits his passport,
posts $3 million bail and is released.
Dec. 18: Santa Barbara County District Attorney
Tom Sneddon files seven felony counts of committing lewd acts on
a child under the age of 14 and two counts of administering alcohol
to commit molestation.
Dec. 18: On CNN's Larry King Live, Mark Geragos
says the case amounts to a "shakedown" by the victim's
family.
Dec. 28: Mr. Jackson tells CBS's "60 Minutes"
that the molestation allegations are motivated by money and that
he was abused by deputies during his arrest. Sheriff Jim Anderson
denies any abuse, says the allegations are false and refers the
matter to the state Attorney General's Office.
2004
Jan. 16: Mr. Jackson pleads not guilty to the
nine felony counts in a Santa Maria courtroom. Superior Court Judge
Rodney Melville issues a gag order silencing anyone involved in
the case.
April 21: The grand jury indicts Mr. Jackson after
12 days of testimony from nearly two dozen witnesses.
April 25: Lead defense lawyer Mr. Geragos learns
he has been replaced by Thomas Mesereau.
April 30: Mr. Jackson pleads not guilty to the
10-count grand jury indictment, including molestation and conspiracy
to commit child abduction, extortion and false imprisonment. If
convicted, he could serve up to 18 years and 8 months in prison.
Aug. 13: Attorney General Bill Lockyer concludes
his investigation into Mr. Jackson's claim of abuse at the hands
of deputies, saying nothing was found to show that deputies hurt
the entertainer.
Aug. 16: Mr. Sneddon takes the stand under defense
subpoena to answer questions from Mr. Mesereau about the Miller
raid. He insists he did not know about the Miller-Geragos relationship.
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