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Sneddon's testimony on Monday holds risks for
both sides
By DAWN HOBBS
NEWS-PRESS STAFF WRITER
Michael Jackson's defense lawyers may reel in more than details
about an alleged illegal raid when they put Santa Barbara County
District Attorney Tom Sneddon on the stand Monday — they'll
also likely get a sneak preview of the prosecutor's child molestation
case against the entertainer.
In a rare move, defense attorneys have subpoenaed the district
attorney to testify as a witness in the case he is prosecuting.
They have also called the prosecutor's key witnesses, including
the young accuser's mother, the boy's psychiatrist and the family's
first civil attorney.
Legal experts say putting Mr. Sneddon in the hot seat gives the
defense a chance to discredit him, and questioning Mr. Sneddon's
own witnesses may give them insights into the government's investigation.
"It's a field day for defense lawyers when they get a prosecutor
on the stand," said Laurie Levenson, professor at Loyola School
of Law.
The defense strategy is not without risks, legal experts say. Mr.
Sneddon could stumble on the stand or he could prove to be an impressive
witness with full command of the case.
The testimony could also give the public a glimpse of a high-profile
case that has been shrouded in secrecy. Details have been scarce
since Santa Barbara Superior Court Judge Judge Rodney Melville issued
a gag order that silenced attorneys and witnesses. The judge has
also sealed almost all court documents in the case.
While the case is still months from trial, the hearing is the result
of a defense motion to suppress the evidence that law enforcement
officers seized from a private investigator's office. Defense lawyers
have subpoenaed witnesses to determine if the search was illegal.
The defense will also likely attack the other two raids conducted
on Nov. 18, 2003 — at Mr. Jackson's Neverland Valley Ranch
and at the West Hills home of videographer Hamid Moslehi. Witnesses
who will be questioned about those searches will likely be called
later in the week.
A significant part of the defense strategy has been to question
Mr. Sneddon's involvement through accusations of prosecutorial misconduct
during grand jury proceedings and in preparation for the raid of
the private investigator's office.
Mr. Jackson is expected to be seated at the defense table Monday
with his family behind him while his lead lawyer, Thomas Mesereau,
questions Mr. Sneddon.
"It's an opportunity for the defense to get a message out
to the potential jury pool about questions regarding the credibility
and professionalism of the prosecution," Ms. Levenson said.
"Just by the way the questions are asked, the defense can present
their side.... And this is a way to point out any possible weaknesses
in the prosecution's case or at least how they think they have not
been playing fairly."
However, Mr. Sneddon could be convincing, confident and immune
to Mr. Mesereau's prodding.
"Mesereau may not be able to shake him," Ms. Levenson
said. "Then people will walk away with the impression the prosecution
is in good hands. Sneddon could hit a home run, but there are a
lot of ways for him to strike out or hit foul."
On Monday, questioning is likely to focus on whether Mr. Sneddon
knew, or reasonably should have known, that private investigator
Bradley Miller was working for Mr. Jackson's lawyer at the time,
Mark Geragos, when he issued an affidavit to raid the investigator's
Beverly Hills office in November 2003.
On July 27, at the last hearing in the case, Judge Melville said
he was taking the allegations of misconduct very seriously and approved
the defense subpoenas. Mr. Sneddon told the judge he was ready to
testify that morning and that he had "nothing to hide."
But the judge postponed the testimony until Monday.
"Judges are reluctant to have prosecutors testify in their
own cases — it's not unheard of, but it's rare," Ms.
Levenson said. "However, a prosecutor creates the situation
when he goes out as a prosecutor and witness in the same case."
Judge Melville will likely instruct the defense to limit questioning
to the topic of the Beverly Hills raid, Ms. Levenson said: "The
judge really has to keep a tight rein on it or it could easily get
out of control.... The judge has to keep the questioning focused
on the issue at hand, which is whether the prosecutors knew Miller
was working for Jackson's attorney."
Mr. Jackson's lawyers have alleged that Mr. Sneddon knew law enforcement
was raiding the defense camp. Co-counsel Robert Sanger asserts that
a memo written by Mr. Sneddon shows he was aware that Mr. Miller
was a private investigator for Mr. Geragos. The memo says that before
the Nov. 18, 2003, raid Mr. Sneddon surveilled Mr. Miller's office
and photographed the roster of tenants in the building and the building
itself. He then met the accuser's mother to conduct a photo lineup,
which included a photo of Mr. Miller.
"Sneddon may try to disassociate himself from the police conduct
of sledgehammering their way into the private investigator's office,"
said Robert Pugsley, professor at Southwestern University School
of Law.
"But he certainly cannot disassociate himself from being a
self-appointed investigator in this project," Mr. Pugsley said.
"He scoped out the building, took photographs, and went to
great lengths to make sure the police knew where to go.... This
is extraordinary activity for a district attorney to do. He has
police to do this. He has a DA's investigative staff to do this.
The lead prosecutor does not go out by himself and make these kinds
of investigations and develop the case in this way."
Regardless of Judge Melville's ruling on the issue, Mr. Pugsley
said: "It seems to me Mr. Sneddon may have put himself in a
very difficult position that could potentially damage the ability
of his office to successfully prosecute the case."
Mr. Sneddon has said he was already in the Los Angeles area when
he learned of what needed to be done there for the Jackson case
and offered to do it himself to save Santa Barbara detectives driving
time.
However, by doing so, Mr. Sneddon may have discarded his prosecutorial
immunity, one expert said.
"Prosecutors can actually charge, prosecute and knowingly
convict an innocent defendant and that prosecutor is still immune
from civil liability," said well-known trial lawyer Gerry Spence.
"But when the prosecutor disrobes — that is, takes off
the protective garment of the prosecutor — and engages in
another aspect of the case, namely the investigative procedure in
this case, the general rule is that he loses his immunity from suit
and can be sued for his conduct," Mr. Spence said.
The defense move could also be a way to lay the groundwork for
getting Mr. Sneddon removed from the case.
"They'll get to push buttons and test his personality,"
Ms. Levenson said. "It would be hard to get him recused, but
one of the issues they would explore is what Sneddon's personal
investment in this case is. So this could easily generate other
motions, including a motion to recuse."
Regardless of the outcome of the hearing, however, it will provide
the defense with more ammunition for trial. When Mr. Sneddon opted
in April to conduct a secret grand jury proceeding rather than a
public preliminary hearing, the defense team was cut out of the
process. While prosecutors have already questioned key witnesses,
this is the first opportunity for the defense to question them.
The defense has the transcript from the grand jury hearing, which
can be used to impeach witnesses during trial. But now they'll also
have the transcript from this hearing.
"This presents a huge danger for the prosecution," Ms.
Levenson said. "Every time the defense gets a witness on record,
the more they have to use against them if there are inconsistencies
during trial."
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